IN THE COURT OF APPEALS OF IOWA
No. 15-1896 Filed October 26, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
JONATHAN LEE SHUTT, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Thomas J. Bice,
Judge.
Jonathan Lee Shutt appeals from his conviction for burglary in the second
degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ. 2
MULLINS, Judge.
Jonathan Lee Shutt appeals from his conviction for burglary in the second
degree, alleging the district court erred in admitting evidence outside the scope of
the minutes of testimony and he received ineffective assistance of counsel. We
affirm.
I. Backgrounds Facts and Proceedings
In the early morning hours of August 27, 2014, law enforcement received
a report of a break-in at a residence in Fort Dodge. A blood sample was
collected from the scene by Officer Kleppe and submitted to the Iowa Division of
Criminal Investigations (DCI) laboratory for possible DNA analysis. The sample
was analyzed by DCI Criminalist Tara Scott—and the results were memorialized
in a report that was admitted at trial—and run through the State’s DNA database
by another criminalist, which resulted in a possible match.
At trial, Officer Kleppe testified he received a report from the DCI lab
indicating there was a possible match. Officer Kleppe was not permitted to testify
about the results of the DCI report. Officer Kleppe testified that, after receiving
the result, which included the “name of who the blood belonged to,” he obtained
an arrest warrant for Shutt and a search warrant to obtain a sample of Shutt’s
DNA. Officer Kleppe obtained this DNA sample on July 23, 2015, and sent it to
the DCI lab for analysis.
Criminalist Scott analyzed the sample collected from Shutt and issued a
report on September 3, 2015, indicating Shutt’s sample matched that collected at
the scene. Defense counsel received this report a few days before trial. The 3
report was entered into evidence at trial, and Criminalist Scott testified consistent
with the contents of that report.
On July 31, 2015, Shutt was charged with burglary in the second degree.
A jury trial commenced on September 29. The jury convicted Shutt the following
day. Shutt appeals.
II. Standard and Scope of Review
We review a ruling on an objection that certain testimony was beyond the
scope of the minutes of evidence for an abuse of discretion. State v. Hayes, 532
N.W.2d 472, 476 (Iowa Ct. App. 1995); see also State v. McMillen, No. 09-0487,
2010 WL 786037, at *2 (Iowa Ct. App. Mar. 10, 2010). “The minutes of testimony
need only be sufficient to alert the defendant generally to the source and nature
of the evidence against him.” State v. Mehner, 480 N.W.2d 872, 877 (Iowa
1992). “Whether testimony is within the scope of the minutes must be decided
on a case-by-case basis.” State v. Ellis, 350 N.W.2d 178, 181 (Iowa 1984).
Even if an abuse of discretion has occurred, reversal will not be warranted if error
was harmless. State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006).
In order to prove an ineffective-assistance-of-counsel claim, an appellant
must show by a preponderance of the evidence that counsel (1) failed to perform
an essential duty and (2) prejudice resulted. Ennenga v. State, 812 N.W.2d 696,
701 (Iowa 2012). We can resolve ineffective-assistance claims under either
prong. State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). We review
ineffective-assistance claims de novo. State v. Finney, 834 N.W.2d 46, 49 (Iowa
2013). 4
III. Analysis
A. Minutes of Testimony
On appeal, Shutt contends the district court erred in admitting testimony
concerning the comparison of the known DNA sample collected from him on July
23, 2015, with the sample collected at the scene, claiming the evidence was
beyond the scope of the minutes of testimony. Specifically, Shutt argues
Criminalist Scott’s testimony about the comparison, along with the report about
the comparison, should have been excluded.
Iowa Rule of Criminal Procedure 2.5(3) requires the prosecuting attorney
to “file the minutes of evidence of the witnesses which shall consist of a notice in
writing stating the name and occupation of each witness upon whose expected
testimony the information is based, and a full and fair statement of the witness’
expected testimony.”1 See Mehner, 480 N.W.2d at 877 (“The minutes of
evidence must provide a full and fair statement of the witness’ expected
testimony.”). While “[t]he minutes need not list each detail to which a witness will
testify,” they must alert the defendant “to the source and nature of the information
against him.” Ellis, 350 N.W.2d at 181. “[W]hen the challenged minutes, though
incomplete, put defendant ‘on notice of the necessity of further investigation of
the witness’ probable testimony,’ reversal need not follow admission of matters
they do not disclose.” State v. Musso, 398 N.W.2d 866, 868 (Iowa 1987) (citation
omitted). We “will not reverse on the ground of technical defects in procedure
1 Rule 2.5(3) uses the terms “minutes of evidence” and “statement of the witness’ expected testimony.” In this case, the document filed by the prosecuting attorney as intended compliance with this rule was captioned “minutes of testimony.” In this opinion we use the terms interchangeably. 5
[including the minutes of testimony] unless it appears in some way to have
prejudiced the complaining party or deprived him or her of full opportunity to
make defense to the charge presented in the indictment or information.” State v.
Braun, 495 N.W.2d 735, 741 (Iowa 1993).
The minutes of testimony provided Criminalist Scott would testify, in
relevant part, as follows:
She will testify as to which pieces of evidence she was asked to examine for DNA. She will testify to her findings and how she conducted that analysis. She will testify that these findings were entered into the State’s database[] for comparison to known DNA profiles. Specifically, that [Shutt’s] DNA was located on swabs taken from the front garage door as submitted by the Fort Dodge Police Department.
In an amended minutes of testimony, the State indicated Criminalist Scott
would “testify in conformity with the attached reports.” The reports pertained to
the swab collected at the crime scene and the swabs collected from Shutt and
contained a request that a comparison be run on the two samples.
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IN THE COURT OF APPEALS OF IOWA
No. 15-1896 Filed October 26, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
JONATHAN LEE SHUTT, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Thomas J. Bice,
Judge.
Jonathan Lee Shutt appeals from his conviction for burglary in the second
degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ. 2
MULLINS, Judge.
Jonathan Lee Shutt appeals from his conviction for burglary in the second
degree, alleging the district court erred in admitting evidence outside the scope of
the minutes of testimony and he received ineffective assistance of counsel. We
affirm.
I. Backgrounds Facts and Proceedings
In the early morning hours of August 27, 2014, law enforcement received
a report of a break-in at a residence in Fort Dodge. A blood sample was
collected from the scene by Officer Kleppe and submitted to the Iowa Division of
Criminal Investigations (DCI) laboratory for possible DNA analysis. The sample
was analyzed by DCI Criminalist Tara Scott—and the results were memorialized
in a report that was admitted at trial—and run through the State’s DNA database
by another criminalist, which resulted in a possible match.
At trial, Officer Kleppe testified he received a report from the DCI lab
indicating there was a possible match. Officer Kleppe was not permitted to testify
about the results of the DCI report. Officer Kleppe testified that, after receiving
the result, which included the “name of who the blood belonged to,” he obtained
an arrest warrant for Shutt and a search warrant to obtain a sample of Shutt’s
DNA. Officer Kleppe obtained this DNA sample on July 23, 2015, and sent it to
the DCI lab for analysis.
Criminalist Scott analyzed the sample collected from Shutt and issued a
report on September 3, 2015, indicating Shutt’s sample matched that collected at
the scene. Defense counsel received this report a few days before trial. The 3
report was entered into evidence at trial, and Criminalist Scott testified consistent
with the contents of that report.
On July 31, 2015, Shutt was charged with burglary in the second degree.
A jury trial commenced on September 29. The jury convicted Shutt the following
day. Shutt appeals.
II. Standard and Scope of Review
We review a ruling on an objection that certain testimony was beyond the
scope of the minutes of evidence for an abuse of discretion. State v. Hayes, 532
N.W.2d 472, 476 (Iowa Ct. App. 1995); see also State v. McMillen, No. 09-0487,
2010 WL 786037, at *2 (Iowa Ct. App. Mar. 10, 2010). “The minutes of testimony
need only be sufficient to alert the defendant generally to the source and nature
of the evidence against him.” State v. Mehner, 480 N.W.2d 872, 877 (Iowa
1992). “Whether testimony is within the scope of the minutes must be decided
on a case-by-case basis.” State v. Ellis, 350 N.W.2d 178, 181 (Iowa 1984).
Even if an abuse of discretion has occurred, reversal will not be warranted if error
was harmless. State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006).
In order to prove an ineffective-assistance-of-counsel claim, an appellant
must show by a preponderance of the evidence that counsel (1) failed to perform
an essential duty and (2) prejudice resulted. Ennenga v. State, 812 N.W.2d 696,
701 (Iowa 2012). We can resolve ineffective-assistance claims under either
prong. State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). We review
ineffective-assistance claims de novo. State v. Finney, 834 N.W.2d 46, 49 (Iowa
2013). 4
III. Analysis
A. Minutes of Testimony
On appeal, Shutt contends the district court erred in admitting testimony
concerning the comparison of the known DNA sample collected from him on July
23, 2015, with the sample collected at the scene, claiming the evidence was
beyond the scope of the minutes of testimony. Specifically, Shutt argues
Criminalist Scott’s testimony about the comparison, along with the report about
the comparison, should have been excluded.
Iowa Rule of Criminal Procedure 2.5(3) requires the prosecuting attorney
to “file the minutes of evidence of the witnesses which shall consist of a notice in
writing stating the name and occupation of each witness upon whose expected
testimony the information is based, and a full and fair statement of the witness’
expected testimony.”1 See Mehner, 480 N.W.2d at 877 (“The minutes of
evidence must provide a full and fair statement of the witness’ expected
testimony.”). While “[t]he minutes need not list each detail to which a witness will
testify,” they must alert the defendant “to the source and nature of the information
against him.” Ellis, 350 N.W.2d at 181. “[W]hen the challenged minutes, though
incomplete, put defendant ‘on notice of the necessity of further investigation of
the witness’ probable testimony,’ reversal need not follow admission of matters
they do not disclose.” State v. Musso, 398 N.W.2d 866, 868 (Iowa 1987) (citation
omitted). We “will not reverse on the ground of technical defects in procedure
1 Rule 2.5(3) uses the terms “minutes of evidence” and “statement of the witness’ expected testimony.” In this case, the document filed by the prosecuting attorney as intended compliance with this rule was captioned “minutes of testimony.” In this opinion we use the terms interchangeably. 5
[including the minutes of testimony] unless it appears in some way to have
prejudiced the complaining party or deprived him or her of full opportunity to
make defense to the charge presented in the indictment or information.” State v.
Braun, 495 N.W.2d 735, 741 (Iowa 1993).
The minutes of testimony provided Criminalist Scott would testify, in
relevant part, as follows:
She will testify as to which pieces of evidence she was asked to examine for DNA. She will testify to her findings and how she conducted that analysis. She will testify that these findings were entered into the State’s database[] for comparison to known DNA profiles. Specifically, that [Shutt’s] DNA was located on swabs taken from the front garage door as submitted by the Fort Dodge Police Department.
In an amended minutes of testimony, the State indicated Criminalist Scott
would “testify in conformity with the attached reports.” The reports pertained to
the swab collected at the crime scene and the swabs collected from Shutt and
contained a request that a comparison be run on the two samples.
Shutt argues this disclosure “failed to provide any notice that comparison
of [Shutt’s] known DNA sample with the unknown DNA sample from the scene
had actually been accomplished resulting in a match.” Shutt also argues the
minutes failed to disclose the contents of the report.
DCI reports, however, are not subject to the requirements of rule 2.5. See
State v. Givens, 248 N.W.2d 86, 87-88 (Iowa 1978) (stating the predecessor
section to rule 2.5 “requiring the State to list Witnesses, does not apply to
Criminalistics Laboratory Reports”); see also State v. Pitlik, 247 N.W.2d 741, 742
(Iowa 1976). 6
Shutt notes he filed a notice under Iowa Code section 691.2 (2013),
requesting the in-person testimony any DCI witness. See Iowa Code § 691.2 (“A
party or the party’s attorney may request that an employee or technician testify in
person at a criminal trial . . . .”). Shutt argues that, because defense counsel
invoked section 691.2 and demanded Criminalist Scott testify in person, Givens
is inapplicable. We have repeatedly noted section 691.2 protects a defendant’s
confrontation rights. See, e.g., State v. Holzhauser, No. 12-1558, 2013 WL
3830194, at *2 (Iowa Ct. App. July 24, 2013); Watson v. State, No. 11-1833,
2013 WL 99862, at *6 (Iowa Ct. App. Jan. 9, 2013). In accordance with Shutt’s
request, Criminalist Scott testified at trial. Shutt has failed to cite any authority
supporting his contention his notice also subjects DCI reports to the requirements
of rule 2.5 and has failed to cite any provision of the statute that would indicate
such a result was intended.
Further, we find Shutt had sufficient notice. The minutes of testimony
identified Criminalist Scott and specified she would testify to the results of any
DNA analysis and comparison she performed. The minutes of testimony also
disclosed Criminalist Scott would testify “in conformity with” the reports provided,
which indicated a comparison had been requested on the swabs taken from
Shutt with those recovered at the crime scene. Shutt was aware the samples
had been taken and submitted for comparison. Further, the record reflects
Shutt’s counsel inquired about the report when meeting with the State before
trial, at which point the report was produced. See Iowa Code § 691.4 (providing
any report must be given to the defendant “at least four days prior to trial” and
failure to provide the report within such a timeline “shall be grounds for a 7
continuance”). Shutt was aware of the source and nature of Criminalist Scott’s
testimony and the need for further investigation.
Even assuming Criminalist Scott’s testimony was outside the scope of the
minutes of testimony, her statements were cumulative with those already
contained in the admissible DCI report, and any error would be harmless. See
State v. Wilson, 878 N.W.2d 203, 218-19 (Iowa 2016) (noting, when a court
improperly admits evidence, the admission need not require reversal where the
erroneously admitted evidence was merely cumulative). Thus, any error would
be harmless.
B. Ineffective Assistance of Counsel
Shutt also contends his trial counsel was ineffective for failing to object to
Officer Kleppe’s testimony regarding the report of the possible match received
from the DCI lab. Shutt alleges this testimony constituted inadmissible hearsay.
Shutt claims prejudice resulted because this testimony tied him to the
crime scene and implicated him as the perpetrator. However, the testimony of
Criminalist Scott and her report directly tied Shutt to the crime scene. Shutt has
failed to prove “a reasonable probability that, but for the counsel’s [alleged]
unprofessional errors, the result of the proceeding would have been different.”
State v. Clay, 824 N.W.2d 488, 496 (Iowa 2012) (citation omitted); see also id.
(finding the defendant must “show that the probability of a different result is
sufficient to undermine confidence in the outcome” (citation omitted)).
AFFIRMED.