IN THE SUPREME COURT OF IOWA No. 14–1242
Filed April 14, 2017
Amended June 26, 2017
STATE OF IOWA,
Appellee,
vs.
YARVON NATHANIEL RUSSELL,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Douglas F.
Staskal, Judge.
The State seeks further review after the court of appeals reversed
the defendant’s conviction based on one of three alternative theories of
guilt lacking substantial evidence. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant
Attorney General, and John P. Sarcone, County Attorney, for appellee. 2
APPEL, Justice.
This case is a companion to State v. Shorter, 893 N.W.2d 65 (Iowa
2017). On appeal, Yarvon Russell asserted there was insufficient
evidence to support his conviction based on principle, aiding and
abetting, or joint criminal conduct theories in connection with the death
of Richard Daughenbaugh. Russell argued that if there was insufficient
evidence on joint criminal conduct, but sufficient evidence on the other
two theories, his conviction should be reversed. See State v. Heemstra,
721 N.W.2d 549, 558 (Iowa 2006). Russell additionally contended that
his attorney provided ineffective assistance of counsel for failing to object
to the identification testimony of Monica Perkins as going beyond the
scope of the minutes of testimony. Finally, Russell asserted that the
district court erred in admitting prior inconsistent testimony of a minor
witness, T.T., who on direct examination testified that she did not
remember the events or her prior inconsistent statements. Russell
similarly asserted that testimony from a police detective that the minor
witness identified Russell in an unsworn prior statement as “kicking”
Daughenbaugh was inadmissible hearsay.
We transferred the case to the court of appeals. The court of
appeals reversed Russell’s conviction on the ground that there was
insufficient evidence to support a joint criminal conduct instruction. We
granted further review. For the reasons expressed below, we vacate the
judgment of the court of appeals and affirm Russell’s conviction.
I. Facts and Background Proceedings.
A. Overview. Kent Tyler, Russell, James Shorter, and Leprese
Williams were charged with first-degree murder in connection with the
death of Richard Daughenbaugh. Tyler was tried separately from
Russell, Shorter, and Williams. At the trial of the three codefendants, a 3
jury convicted Russell and Shorter of second-degree murder. Williams,
however, was acquitted.
The evidence introduced at the trial of Russell, Shorter, and
Williams was described in Shorter, 893 N.W.2d 65, and need not
generally be repeated here. With respect to the identification of Russell
as a perpetrator of the crime, B.B., a seventeen year old, placed Russell
in the crowd that assembled around Daughenbaugh. Monica Perkins
testified that Russell “stomped” Daughenbaugh. L.S., a fifteen year old
at the time of the murder, however, did not see Russell participating in
the attack. The jury was instructed on theories of liability as a principle,
liability as an aider and abettor, and liability through joint criminal
conduct. The jury returned a general verdict of guilty of second-degree
murder.
B. Testimony of T.T. and Youngblut.
1. Introduction. This case differs from Shorter because Russell
challenges the admission of testimony at trial from T.T. and Detective
Bradley Youngblut. T.T., a juvenile, was at the scene of Daughenbaugh’s
attack on August 24–25, 2013. On August 27, T.T. was interviewed by
police, including Youngblut. During the interview, T.T. identified Russell
as a person who was “kicking” Daughenbaugh. She later testified as a
witness at Tyler’s trial.
T.T. was deposed in connection with the trial of Russell and
Shorter. During her deposition, T.T. repeatedly stated that she did not
remember who knocked Daughenbaugh to the ground or who kicked him
when he was on the ground. She acknowledged that she was interviewed
by the police after the incident but did not remember what she said to
them. 4
The State called T.T. as a witness at the codefendants’ trial. At
trial, however, T.T. repeatedly stated that she did not remember events
surrounding the attack or what she told police on August 27. Because of
her “I don’t remember” testimony at trial, the State sought to introduce
evidence of T.T.’s prior statements to the police through impeachment of
T.T. and through the testimony of Youngblut. The district court allowed
the impeachment and testimony. Russell challenges the admission of
T.T.’s out-of-court statements as hearsay.
2. Pretrial motions in limine. Prior to trial, Russell filed two
motions in limine. He argued that “[s]tatements made to law
enforcement officers were made outside court” and were hearsay. He
further asserted that when a witness’s prior out-of-court statements were
not under oath and the witness could not remember the events or what
he or she said to law enforcement officers, the State is precluded from
using the substantive content of the statements under State v. Gilmore,
259 N.W.2d 846, 857 (Iowa 1977).
The State responded by arguing that under State v. Turecek, prior
inconsistent statements could be used to impeach a witness when the
witness was not called for the primary purpose of gaining admission of
hearsay. 456 N.W.2d 219, 225 (Iowa 1990). The State further argued
that prior inconsistent statements might be used to refresh a witness’s
recollection under Iowa Rule of Evidence 5.803(5) (2014). Finally, the
State noted that to the extent the prior statements were made under
oath, such statements were admissible under Iowa Rule of Evidence
5.804(a)(3). Prior to trial, the district court reserved ruling on the
motions in limine related to the substantive use of hearsay statements
made to police investigators. 5
3. Initial hearing regarding appointment of counsel. The State
elected to call T.T. as a witness at Russell’s trial. Prior to her testimony
in the Russell trial, the prosecution advised the court that T.T. or her
relatives indicated T.T. wanted a lawyer. As a result, the district court
held a hearing outside the presence of the jury.
While T.T. denied seeking a lawyer, T.T.’s mother told the court
that T.T. was “kind of confused so I suggested that she get a lawyer.”
The district court asked T.T. whether she understood that she would be
questioned by the lawyers and asked to give testimony under oath. T.T.
said she understood. Under the circumstances, the district court
declined to appoint counsel for T.T.
4. Initial trial testimony of T.T. and appointment of counsel. The
State called T.T. as a witness. T.T. remembered arriving at the scene
after dark and that she arrived with her cousin and friends. She stated
there were “a lot” of people present. She stated Tyler and Russell were
there and Shorter was “down by the river.” T.T. also made courtroom
identifications of Russell and Shorter.
At this point, the prosecution turned to examining T.T. specifically
about the attack on Daughenbaugh. T.T. testified that she remembered
seeing Daughenbaugh arrive. She also recalled that Daughenbaugh
walked by her cousin and bumped into her and that Daughenbaugh
ended up on the ground.
At this point, T.T. testified that she did not remember what
happened after Daughenbaugh was on the ground. She repeatedly
testified she did not remember how Daughenbaugh got to the ground
and did not remember what happened to him on the ground.
T.T. further testified that she did not remember talking to police
after the attack. When the prosecutor asked whether T.T. had testified 6
before under oath in the Tyler case, she answered, “I guess.” When
pressed again whether she had testified under oath before about the
attack on Daughenbaugh, T.T. declared, “I don’t know what you are
talking about.”
At this point, the State asked for the jury to be excused and once
outside the presence of the jury, recommended that a lawyer be provided
for T.T. According to the State, T.T. might have perjured herself already,
but in any event, T.T. should be allowed to “consult with a lawyer before
we go any further.” The district court agreed, counsel was appointed,
and court adjourned for the remainder of the day.
5. Further hearing outside the presence of the jury regarding T.T.’s
testimony. The following Monday morning, T.T., though still under
subpoena, did not appear. The district court issued a bench warrant for
her arrest and continued the trial until that afternoon. When T.T.
appeared in the courtroom, the district court held a hearing outside the
presence of the jury.
The State asked T.T. a series of questions about her memory of the
events of August 24–25. When asked by the State if she saw something
happen to Daughenbaugh when he was on the ground, whether she saw
somebody punch him, whether she testified about the matter previously
under oath, and whether she gave a statement to police, T.T. repeatedly
declared, “I don’t remember.”
The State next confronted her with a page from the transcript of
Tyler’s trial where T.T. testified that “somebody punched”
Daughenbaugh. T.T. declared that the transcript did not refresh her
recollection and repeated that she did not remember her testimony in the
Tyler trial. 7
The State further asked T.T. about statements made to detectives
at the Des Moines police station on August 27, a few days after
Daughenbaugh’s death. She stated she remembers talking to detectives,
but did not remember looking at a picture on Facebook or identifying
people in the picture for police. She was able to provide in-court
identifications of her ex-boyfriend, another person, and Russell from the
Facebook photograph. When asked if she had told detectives on
August 27 that Russell was kicking the man in the parking lot, T.T.
repeatedly stated, “I don’t remember.”
The State then confronted T.T. with passages from the written
record of her August 27 interview:
Q: And Detective Youngblut says, “During our previous interview before you ever looked at the Facebook or Instagram or Twitter or any of that stuff, you described a yellow shirt, red hat. Is that the same outfit you saw [on] the person that you saw kick the victim?”
And what was your answer? You said, “Yes, he kicked him,” right? Right? A: Yes, that is what it says right there.
Q: That is what you said on August 27 of 2013 to Detective Youngblut, right? A: Yes.
Q: Again on page six of 11, Detective Youngblut confirms for you, “That’s the person you know as Vonnie Splurge?” And you said, “Yeah,” is that correct? A: Yeah, it says right there.
Q: On page seven of 11, you say at the end of your answer, “And then I saw Vonnie kick him and I saw the man with the red hat and the black shirt jump on his face,” right? A: Yes.
Q: That’s what you said in August of 2013 but it is your testimony today that you don’t even remember saying that then? A: No, I don’t remember.
The State then asked T.T. a series of questions regarding telling the
officers in August about a woman with red hair who eventually called
police, but T.T. testified repeatedly that she did not remember. 8
After making the above record, the State argued that T.T. had
made herself unavailable in the proceedings and that the State could
impeach her under Gilmore, 259 N.W.2d 846. The State proposed to
admit portions of her deposition, to ask T.T. questions using those pieces
of the police interview which she claimed she could not remember, and to
call Detective Youngblut who would testify about the August 27
statements made by T.T. The State further asserted that a prior
statement of a witness is admissible if it is one of identification of a
person made after perceiving them. See Iowa R. Evid. 5.801(d)(1)(C).
Russell argued that under Gilmore, the only issue upon which T.T.
could be impeached was whether she in fact remembered her prior
statements to police. Further, Russell argued that admission of the
actual prior statements would be excludable as unduly prejudicial under
Iowa Rule of Evidence 5.403. Russell argued that under Iowa Rule of
Evidence 5.801(d)(1)(C), only identification of a person is not hearsay, but
anything about the person after identification is inadmissible. In short,
the identification of Russell from the photograph could be admitted, but
not T.T.’s statement that Russell was one of the persons who was kicking
Daughenbaugh.
The district court held that it would admit deposition testimony
under Iowa Rule of Evidence 5.804(b)(1). The district court further found
that the State had laid appropriate foundation under Gilmore for the
witness to be shown the statement that purported to be inconsistent with
the material fact and not just lack of memory. The district court also
ruled that testimony about an identification of a person made after
perceiving the person would be admissible as long as an adequate
foundation was laid under Iowa Rule of Evidence 5.801(d)(1)(C). 9
6. Continued testimony of T.T. before the jury. T.T. resumed her
testimony before the jury. The State asked her whether she remembered
seeing a woman with red hair at the scene or talking to police, which T.T.
repeatedly answered with, “No, I don’t remember.” The State then
impeached T.T. with her prior statement. T.T. was presented with a “big
stack of papers” and questioned as follows:
Q: Page seven. Did you tell the police, “And then the lady with the red hair, she looked way, way over, she called the police,” do you remember that? A: I don’t remember.
Q: Do you recognize that as being your statement of August 27, 2013? A: I don’t remember.
Q: Page 13. Do you remember telling the police, “I got in my car. I think some people threw her phone in the water”? Do you remember that? A: I don’t remember.
....
Q: During one of your interviews with the police, did you look at some pages and some photographs on Facebook? A: I don’t remember.
Q: I am going to show you what’s been marked State’s Exhibit 56. You have seen that picture before, have you not? A: I noticed my ex-boyfriend in there.
Q: You have seen this picture before, right? A: Yeah.
Q: And you have identified people in that picture before, haven’t you? A: Yeah.
The State asked T.T. to identify persons from the photograph. T.T.
identified several persons from the photo, including Russell. T.T. then
made an in-court identification of Russell as being the same person she
identified from the photo.
The State then repeatedly asked T.T. if she remembered identifying
persons in the photo to police. T.T. repeatedly responded, “I don’t
remember.” The State then directed T.T.’s attention to the pages of a 10
document describing questions asked by police and her answers. The
questioning continued:
Q: On page six again the police confirm with you that person in the picture is Vonnie Splurge or Yarvon Russell, right? A: Yes.
Q: On page seven the police talked to you about Vonnie as being the man in the red hat—the man—what Vonnie was doing to the white gentleman on the ground, right? A: Yeah.
Q: But you don’t remember that at all? A: No.
Q: You don’t remember seeing it? A: No.
Q: And you don’t remember telling the police this information? A: I don’t remember.
7. Testimony of Detective Youngblut. The State also introduced the
testimony of Detective Bradley Youngblut. Youngblut interviewed T.T.
three times over the course of the afternoon of August 27, a couple days
after the assault. Youngblut testified that T.T. was presented with a
photograph of several persons from Facebook that were posted to a social
website to determine whether any people that might be witnesses or
suspects were captured in any of the photos. Youngblut testified as
follows:
Q: The gentlemen that we see in position number three [in the Facebook photograph] with the red hat and multi-colored shirt on, was she able to identify that person to you? A: Yes.
Q: Who did she identify that as being? A: Yarvon Russell.
Q: Did [T.T.] identify to you when you spoke with her about this picture what, if any, participation any of those individuals had in the beating of Mr. Daughenbaugh? A: Yes she did. 11 Q: What did she tell you? A: She described the outfit worn by Yarvon Russell during her interview and identified him as kicking Mr. Daughenbaugh.
II. Resolution of Common Issues.
Russell asserts three issues nearly identical to those raised in
Shorter, 893 N.W.2d 65. For the reasons expressed in Shorter, we
conclude that there was sufficient evidence to support the verdict and
that any erroneous submission of the joint criminal conduct instruction
did not undermine the jury’s verdict. We also conclude, as in Shorter,
that Russell’s claim of ineffective assistance of counsel for his counsel’s
failure to object to Perkins’s identification testimony cannot be decided
on direct appeal and should be addressed in an action for postconviction
relief.
III. Use of Prior Out-of-Court Statements When Witness Asserts Lack of Memory at Trial.
A. Introduction. The fighting evidentiary issue is whether the
questioning of T.T. by the State or the evidence presented by Detective
Youngblut introduced inadmissible hearsay into the record.
The question involves the interplay of various rules of the Iowa
Rules of Evidence. With respect to the interrogation of T.T., Iowa Rule of
Evidence 5.607 provides that any party may impeach its own witness. A
prior inconsistent statement is not hearsay when the witness makes a
testimonial statement at trial, is subject to cross-examination, and the
prior inconsistent statement was made under oath. Id. r. 5.801(d)(1)(A).
But what if the statements, as here, are not made under oath? 1 May the
1As originally proposed, Federal Rule of Evidence 801(d)(1)(A) provided that all prior inconsistent statements were substantive evidence and that there was no requirement that the inconsistent statements be made under oath in order to be admitted. 4 Michael H. Graham, Handbook of Federal Evidence § 607:3, at 228–29 (7th ed. 2012). Congress narrowed the provision, however, to include only statements given under oath subject to penalties of perjury. Id. at 229. We have adopted an approach in 12
inconsistent statements that are ordinarily excludable as hearsay be
admitted to impeach a witness even when the witness purports to have
no memory of facts or the prior inconsistent statement? And, to what
extent was the testimony of T.T. and Youngblut admissible under Iowa
Rule of Evidence 5.801(d)(1)(C), which provides that an out-of-court
statement is not hearsay if it is “one of identification of a person made
after perceiving the person.”
B. Standard of Review. A district court’s decision to admit or
exclude evidence is generally reviewed for abuse of discretion. State v.
Paredes, 775 N.W.2d 554, 560 (Iowa 2009). Hearsay rulings, however,
are reviewed for errors at law. Id. This standard of review extends to
determining whether statements come within an exception to the general
prohibition on hearsay evidence. Id.
Reversal of a ruling which admits or excludes evidence is not
necessary unless a substantial right of a party is affected. Iowa R. Evid.
5.103(a). When nonconstitutional error occurs, we employ a harmless
error analysis. State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004). We
presume prejudice and reverse unless the record affirmatively establishes
otherwise. State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006).
C. Positions of the Parties. Russell asserts that the evidence
about T.T.’s prior statements is inadmissible under Turecek, 456 N.W.2d
219. In Turecek, we held that the state is not allowed to call a witness
expected to give unfavorable testimony and then attempt to impeach the
witness with inadmissible prior inconsistent statements under Iowa Rule
of Evidence 5.607. Id. at 225. According to Russell, Turecek stands for
___________________________ our rules of evidence similar to the federal rule as modified by Congress. See Iowa R. of Evid. 5.801(d)(1)(A). 13
the proposition that the state cannot call a witness with the primary
purpose of getting into evidence prior inconsistent statements through
the guise of impeachment.
In further support of his position, Russell cites State v. Tracy, 482
N.W.2d 675 (Iowa 1992), and State v. Wixom, 599 N.W.2d 481 (Iowa Ct.
App. 1999). In Tracy, we rejected an effort by the prosecution to put on
the stand and impeach a witness who recanted earlier statements. 482
N.W.2d at 679. In Wixom, the court of appeals rejected testimony from
officers who testified about a witness’s prior statements as “plainly
hearsay.” 599 N.W.2d at 485.
Applying these principles, Russell argues that the State’s effort to
impeach T.T., and the testimony of Detective Youngblut, was
impermissible. Russell emphasizes that the State knew from T.T.’s
deposition that T.T. could not remember what happened to the victim nor
could she recall what she told law enforcement officers afterwards. She
was obviously a reluctant witness, having failed to appear at both the
trial of Tyler and Russell. According to Russell, the State’s determination
to proceed was for the primary purpose of introducing her prior hearsay
statements into the record.
Russell recognizes that Turecek applies only if the impeachment
evidence is otherwise inadmissible. 456 N.W.2d at 225. Anticipating the
State’s argument, Russell asserts that the prior inconsistent statements
are not admissible under Gilmore, 259 N.W.2d 846. In Gilmore, we heard
a case where the state sought to introduce evidence of prior inconsistent
statements to impeach its witness when the witness asserts lack of
memory at trial. Id. at 850.
Russell concedes that under Gilmore and Iowa Rule of Evidence
5.607, any party may impeach its own witness. Id. at 852. When the 14
witness asserts lack of memory, however, Russell asserts that the State
cannot introduce the substance of the prior statement. According to
Russell, under Gilmore the only fact to be impeached is whether the
witness remembers the statements made in the prior statement. See id.
at 854. Under the circumstances, Russell argues that Gilmore allows the
State to try to make the witness admit that she remembered the
underlying facts, but prohibits the State from reading the prior
statements into evidence.
Russell also recognizes that under Iowa Rule of Evidence
5.801(d)(1)(C), a prior identification of a witness is not hearsay. Russell
argues, however, that the testimony of T.T. does not go to his identity,
but instead to the underlying facts of the crime, namely, that Russell
kicked the victim.
The State first counters Russell’s Turecek claim by asserting that
T.T.’s testimony was identification evidence under Iowa Rule of Evidence
5.801(d)(1)(C), defining such evidence as not hearsay. According to the
State, T.T.’s identification testimony is admissible for any purpose
because she testified at trial and was subject to cross-examination.
The State further contends that T.T.’s testimony is admissible
under Gilmore, 259 N.W.2d 846. According to the State, T.T. was warned
about her prior statements and was afforded an opportunity by the State
to explain them. The State argues that T.T.’s prior statements to police
and in her deposition went directly to facts in issue: whether she saw
Russell participating in the assault of Daughenbaugh. Nothing in
Gilmore, according to the State, limits the use of her prior statements to
impeachment.
Finally, the State contends that the testimony of T.T. was not
offered solely or primarily for the purpose of introducing the prior 15
inconsistent statement and that as a result the Turecek rule does not
apply. See 456 N.W.2d at 225. The State points out that T.T. testified at
trial that people were jumping on Daughenbaugh and that
Daughenbaugh struggled to defend himself. T.T., according to the State,
thus testified that Daughenbaugh was conscious initially while on the
ground before he received subsequent blows.
D. Discussion.
1. Application of Turecek. Russell urges that the primary purpose
of calling T.T. to the stand was to seek to impeach her with inadmissible
hearsay through prior inconsistent statements not made under oath.2
The State contends that under Turecek, the court should examine the
proffered testimony of a witness as a whole in making the determination
of whether the State has called the witness as a subterfuge to gain the
admission of otherwise inadmissible testimony. See id. at 225. There is
authority for this proposition, although some cases suggest a different
test. See generally 7 Laurie Kratky Doré, Iowa Practice SeriesTM,
Evidence § 5.607:1, 560–61 n.3 (2016–2017 ed.) [hereinafter Doré]
(discussing subterfuge theory in Turecek and related cases); 4 Michael H.
Graham, Handbook of Federal Evidence § 607:3, 230–32, 234–35 (7th ed. 2012) (discussing primary-purpose test and other potential approaches).
But even accepting the State’s approach to Turecek, it is hard to
see what the State sought to accomplish by calling T.T. as a witness
other than to gain admission of T.T.’s prior statement that Russell had
kicked Daughenbaugh through an impeachment effort. The State knew
2Russell does not challenge the admission of T.T.’s out-of-court statements as a violation of the Iowa or Federal Confrontation Clause. The United States Supreme Court, over a dissent, rejected such a claim under the United States Constitution in United States v. Owens, 484 U.S. 554, 559–60, 108 S. Ct. 838, 842–43 (1988). 16
from T.T.’s deposition, and from testimony outside the presence of the
jury at Russell’s trial, that T.T. was going to testify that she did not
remember what happened to Daughenbaugh after she saw him on the
ground. She was further going to testify that she did not remember what
she told police during her August interviews. The bulk of the State’s
examination of T.T. was oriented toward impeaching her with her prior
statements.
Based on our review of T.T.’s testimony, we conclude that the
primary purpose of calling T.T. was to impeach her with her prior
statements—and get into the record her prior declaration that Russell
kicked Daughenbaugh—and not to establish other facts. Indeed, she
offered very little evidence into the record beyond testifying that she
arrived at the scene on the night in question, saw Daughenbaugh brush
past her cousin in an offensive way, and then saw Daughenbaugh on the
ground. This testimony was of little use in prosecuting Russell for the
crime.
The remaining question is whether any of the inconsistent
statements identified in the impeachment of T.T. by the State were
admissible on any grounds. The Turecek rule is a shield designed to
prevent the introduction of otherwise inadmissible evidence, but it
cannot be used to prevent the State from using admissible evidence to
impeach a witness. See 456 N.W.2d at 225. Prior statements of a
witness that are admissible as substantive evidence may be freely
employed to impeach a witness on direct examination. State v. Nance,
533 N.W.2d 557, 561 (Iowa 1995). We must therefore turn to the
theories advanced by the State regarding the admissibility of T.T.’s prior
statements and the testimony of Detective Youngblut. 17
2. Admission under Gilmore. The State suggests that the hearsay
statements of T.T. made to the police on August 27 are admissible
impeachment under Gilmore, 259 N.W.2d 846. In Gilmore, we considered
the proper manner of impeaching a witness who testified that he did not
remember the underlying facts of a crime. Id. at 850. In Gilmore, we
stated that the witness can be examined about the existence of a prior
statement in an effort to refresh the witness’s recollection. Id. at 854.
As stated in Gilmore, it is clear that a party may impeach its own
witness. Id. at 852; see also Iowa R. Evid. 5.607. In Gilmore, we held
that
where a witness makes a testimonial statement and then does not remember a prior inconsistent statement he made dealing with the same facts or is evasive as to that statement . . . either party [may] introduce the prior inconsistent statement into evidence [if certain foundation prerequisites are met].
Id. at 857. We further explained, however, that there was “no
testimonial statement” when the witness did not remember the
underlying facts that were the subject of the prior statement. Id.
When a witness testifies that he or she does not remember the
underlying facts, the only subject to be impeached is the witness’s
memory or ability to recollect. Id. As a result, “[t]he State was free
to try to make her admit she remembered the underlying facts
bearing on the issue . . . but was not free to read into evidence the
prior statement.” Id. We thus conclude that Gilmore does not
provide a basis for admission of the prior statements made by T.T.
in this case.
3. Admission as prior identification under Iowa Rule of Evidence
5.801(d)(1)(C). The State further contends evidence that T.T. told police
that Russell kicked Daughenbaugh—through both cross-examination of 18
T.T. and through the testimony of Detective Youngblut—was a
nonhearsay identification of Russell under Iowa Rule of Evidence
5.801(d)(1)(C). This rule at the time of trial provided that testimony at
trial is not hearsay if it relates to “identification of a person made after
perceiving the person.” Id. The requirements under the rule are (1) that
the person making the out-of-court identification must testify at trial and
thus be subject to cross-examination on the identification, and (2) the
statement must have been made after perceiving the person. State v.
Mann, 512 N.W.2d 528, 535 (Iowa 1994); see also Doré, § 5.801(8), at
843–44.
We have applied Iowa Rule of Evidence 5.801(d)(1)(C) in few cases.
In Mann, we held that a police officer could testify that the witness
identified the defendant from a mug-shot book prior to trial when the
witness testified at trial and was available for cross-examination. 512
N.W.2d at 534; see also United States v. Thomas, 41 M.J. 732, 735 (N-M.
Ct. Crim. App. 1994) (holding United States military out-of-court
identifications rule restricted to identifications conducted in the presence
of law enforcement and involving a lineup, showup, or photo array);
Swafford v. State, 533 So. 2d 270, 276 (Fla. 1988) (holding that
“identification of a person after perceiving him” requires the declarant to
have just seen the individual either in person or in a photograph).
The record reveals that T.T. was shown Facebook photographs of
persons who were in the area of the crime on the evening of August 24–
25. T.T. was given a photograph from which to “perceive” Russell. She
identified Russell as one of the persons “kicking” Daughenbaugh. We
think it clear that her identification of Russell as a person kicking
Daughenbaugh, based on the Facebook photograph, is nonhearsay
under Iowa Rule of Evidence 5.801(d)(1)(C). See Porter v. United States, 19
826 A.2d 398, 410 (D.C. 2003) (holding details of the offense admissible
along with identification to the extent necessary to make identification
understandable to jury); accord State v. Stratton, 161 P.3d 448, 450
(Wash. Ct. App. 2007). Given the factual record, the availability of T.T.
for cross-examination, and our approach in Mann, we find the court
properly admitted the testimony of Youngblut regarding T.T.’s prior
identification of Russell. See 512 N.W.2d at 534.
We also find no infirmity in the prosecution’s interrogation of T.T.
in connection with the identification. As stated above, her prior
identification is admissible, thereby avoiding a Turecek or Gilmore
problem. Even if we were to extend Turecek to include occasions in
which the prosecution calls a witness solely to impeach her based on a
prior admissible identification, such error would obviously be harmless
in light of the testimony of Youngblut. While under Gilmore,
impeachment of a witness with no memory is ordinarily limited, T.T.
herself established the foundation for admission of the evidence when
she admitted that she provided the prior statement and admitted that
she identified Russell, even though she testified that she had no current
memory.
Some of the nonidentification impeachment of T.T. may have gone
beyond the limits of Gilmore and was inadmissible as nonhearsay or
under any other exception to the hearsay rule. For instance, the
impeachment of T.T. based upon the conduct of the woman with red
hair—a reference to Monica Perkins—is not identification testimony.
Nonetheless, this testimony was merely cumulative of the evidence at
trial and was therefore harmless. 20
IV. Conclusion.
For the above reasons, the decision of the court of appeals is
vacated and the judgment of the district court is affirmed.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.