IN THE SUPREME COURT OF IOWA No. 17–1075
Filed October 11, 2019
STATE OF IOWA,
Appellee,
vs.
KENNETH LEROY HEARD,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
State seeks further review of court of appeals decision ordering new
trial on ground the district court erred by denying defendant’s motion to
compel witness to assert Fifth Amendment privilege in presence of jury.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, John P. Sarcone, County Attorney, and Thomas H.
Miller and Olubunmi Salami, Assistant County Attorneys, for appellee. 2
WATERMAN, Justice.
In this appeal, we must decide whether the district court correctly
refused to permit the defendant in his jury trial to call a witness who
intended to invoke his Fifth Amendment privilege against self-
incrimination on all questions. The defendant in his retrial for murder
contends the witness fired the fatal shots and wanted the jury to hear him
“take the Fifth” so that jurors would infer the witness’s guilt. The district
court followed our decision in State v. Bedwell affirming such a refusal
because “the jury is not entitled to draw any inferences from the decision
of a witness to exercise his constitutional privilege whether those
inferences be favorable to the prosecution or the defense.” 417 N.W.2d 66,
69 (Iowa 1987) (quoting Bowles v. United States, 439 F.2d 536, 541 (D.C.
Cir. 1970) (en banc)). The defendant was convicted of first-degree murder,
and we transferred his appeal to the court of appeals, which reversed and
ordered a new trial, distinguishing Bedwell on grounds the witness had
testified in the defendant’s prior trial and the district court failed to
ascertain the scope of his privilege question by question. We granted the
State’s application for further review.
We hold Bedwell is controlling and therefore vacate the decision of
the court of appeals and affirm the district court’s ruling and judgment.
The witness was entitled to assert a blanket Fifth Amendment privilege to
refuse to answer any questions. Under these circumstances, Bedwell
provides a categorical rule against compelling the witness to assert his
Fifth Amendment privilege in front of the jury. Because the witness
properly refused to testify, there was no violation of the defendant’s Sixth
Amendment rights of confrontation or compulsory process. We also affirm
the district court’s ruling denying a new trial on grounds the verdict was
against the weight of the evidence, and we decline relief on the defendant’s 3
untimely claim, raised for the first time on this appeal, that he cannot be
sentenced to life without parole without a jury finding that he was an adult
at the time of the offense.
I. Background Facts and Proceedings.
A jury could find these facts from the testimony at the second trial.
On the morning of December 13, 2007, Joshua “J-Hood” Hutchinson was
found dead in the snow by a Des Moines apartment complex on Center
Street. Hutchinson died from multiple gunshot wounds to his head, groin,
limbs, and chest. The shots had been fired at close range, two to three
inches from his head. Hutchinson was a member of a group named “3 in
3 out,” or “Third World,” that sold drugs and committed multiple robberies
together. Other members included Kenneth “KQ” Heard, Marco “Juice”
Brown, and Deland “DB” Stanley. Heard, then age twenty-six, was viewed
as the leader. Stanley was in jail at the time but was in regular phone
contact with the group.
Stanley reportedly was angry with Hutchinson for propositioning
“one of his females.” On December 12, Stanley asked Jacquisha Majors,1
a friend of the group, to pick up his clothes from Hutchinson. She did so
and drove Hutchinson to join Heard, Brown, and Johnetta Daye (believed to be the mother of Heard’s child). They spent the day smoking marijuana
and planning a robbery. At midnight, they went to Majors’ house where
Hutchinson fell asleep. Heard called Phillip “Self” Findley, telling him to
come over because there was trouble. Heard took Findley and Brown into
Majors’ bathroom for privacy and told them Hutchinson was snitching to
the police and planning to rob Heard.
1Majors got married before the second trial and changed her last name to Harris. We will refer to her as Majors, her name at the time of the crime. 4
At Heard’s direction, Majors awakened Hutchinson, and all but Daye
left in two cars to conduct the planned robbery. Majors drove Heard and
Hutchinson, with Heard giving her turn-by-turn directions. Findley and
Brown followed them. When they arrived at the apartment complex on
Center Street, everyone but Majors walked to the backyard. The men
gathered by a picnic table by a wooded area next to the parking lot.
Hutchinson went to relieve himself. Gunshots rang out. Majors heard the
shots but did not see who fired them. Findley and Brown ran to Findley’s
car and drove away. Heard jumped into Majors’ car without Hutchinson.
As Majors drove away and before asking what they did with the gun, Heard
called Findley and asked, “Are you cool”? Majors drove Heard to a friend’s
house where she saw Heard remove a rubber glove and change clothes.
Majors then drove Heard back to her house. Findley had dropped
Brown off there, where Daye remained. Brown had left the scene with the
murder weapon, wiped the gun to remove fingerprints, and hid it in a shirt
near his father’s residence. Concerned about gunpowder residue, when
Brown returned to Majors’ residence he disrobed and put his clothes in a
bag. Brown was quiet, and Majors saw him crying. Heard asked Majors
to drive him back to the scene to ensure Hutchinson was really dead,
which she refused to do. Heard told her in detail how he shot Hutchinson.
Heard stayed in hotels for a few days before leaving Des Moines. Heard
was arrested in Texas.
On April 4, 2008, Heard was charged with first-degree murder. He
pled not guilty and proceeded to trial. Brown testified that Heard shot
Hutchinson. The jury convicted Heard of first-degree murder, and he was
sentenced to life in prison without parole. Heard appealed his conviction,
arguing it was against the weight of the evidence because the State’s
witnesses were not credible. He also alleged ineffective assistance of 5
counsel for failing to request an instruction that accomplice testimony
must be corroborated. The court of appeals affirmed his conviction on his
direct appeal. State v. Heard, No. 09–0102, 2010 WL 2090851, at *1 (Iowa
Ct. App. May 26, 2010).
Heard filed an application for postconviction relief, claiming that his
trial counsel was ineffective in failing to investigate and present evidence
that Brown murdered Hutchinson and in failing to present expert
testimony that blood splatter would have been found on Heard’s clothing
had he fired the fatal shots. The district court determined that Heard’s
trial counsel breached an essential duty by failing to effectively cross-
examine Brown and ordered a new trial.
Heard was retried for first-degree murder in 2017. Heard’s theory
of defense at the second trial was that Brown murdered Hutchinson at
Stanley’s direction. Brown left the scene of the murder with the firearm,
wiped it clean, and hid it. The murder weapon belonged to Stanley, who
was upset with Hutchinson for propositioning Stanley’s female friend.
Stanley and Brown were described as close friends who had been living
together, whereas Heard and Hutchinson had been “like brothers.” A
witness testified Stanley told her that he could tell Brown to kill someone
and he would get away with it because of Brown’s mental illness. A
cellmate testified he overheard Brown tell Heard that Brown knew Heard
did not murder Hutchinson and should “just let [Brown] play the crazy
role.”
Although Brown had testified in the first trial, this time Brown
asserted his Fifth Amendment privilege in a pretrial deposition and made
clear he would assert the privilege and refuse to answer any questions if 6
called to testify in front of the jury.2 Heard filed a motion to compel
Brown’s testimony at the second trial and asserted numerous aspects of
the potential testimony that would support his defense theory that Brown
committed the murder. The court allowed Brown to assert a blanket
privilege of his Fifth Amendment rights to any question. Heard
nevertheless wanted Brown to “take the Fifth” in front of the jury so that
jurors would infer Brown was guilty.
At the hearing on Heard’s motion to compel, the judge noted the
parties assumed the court had discretion whether to compel a witness to
take the Fifth in front of the jury.
I did note that you were careful to make the observation the Court is not obligated to force a witness to take the Fifth Amendment in front of a jury. And in my practice of over 40 years in the criminal area, I think that type of discretion is wisely exercised. I don’t think it’s a good idea for a Court to force a witness to take the Fifth Amendment at trial.
The district court denied Heard’s motion and refused to compel Brown to
testify. The court relied on Bedwell’s holding that “a Defendant may not
call a witness who has indicated an intent to assert his or her right against
self-incrimination before a jury,” noting that the jury cannot draw any
inferences favorable to either side from a witness’s invocation of that
privilege. The district court foresaw problems with compelling a witness
to take the Fifth in the presence of the jury.
Using the exercise of constitutional rights as a weapon, rather than a shield, is troubling. This approach is an invitation for jurisprudential mischief in the criminal process. Were the procedure sanctioned, any defendant could subpoena any known person of disrepute and force him or her to take the Fifth. There would be no way for the Court, or the
2The State sought to admit Brown’s prior testimony from the first trial over Heard’s objection. The district court ruled Brown’s prior testimony was inadmissible at the second trial because of the ineffective cross-examination by Heard’s first lawyer. 7 jury, to assess the relevance of such an act. It would be evidence by innuendo, untested by the adversarial process.
The court observed that “[t]he ‘Perry Mason moment’ of a witness ‘taking the Fifth’ before the jury is a misuse of that right that cannot be assuaged
by a cautionary or curative instruction.”
As a result, Brown never testified or asserted his constitutional
privilege in front of the jury. The second jury found Heard guilty of first-
degree murder, and he was again sentenced to life in prison without
parole. Heard appealed, and we transferred the case to the court of
appeals, which reversed Heard’s conviction and found that “[t]he district
court’s failure to determine the extent and validity of Brown’s reported
assertion of his Fifth Amendment privilege on his second round of
testimony resulted in a violation of Heard’s right to compulsory process.”
The court of appeals distinguished Bedwell based on the “unique context
of [Heard’s] case” in which the witness now asserting his Fifth Amendment
privilege had testified in the first trial. We granted the State’s application
for further review.
II. Standard of Review.
We review decisions to admit or exclude evidence for an abuse of
discretion. State v. Russell, 893 N.W.2d 307, 314 (Iowa 2017). “Reversal
is warranted only upon showing the ‘court exercise[d] its discretion on
grounds or for reasons clearly untenable or to an extent clearly
unreasonable.’ ” State v. Alberts, 722 N.W.2d 402, 408 (Iowa 2006)
(alteration in original) (quoting State v. Mitchell, 568 N.W.2d 493, 497 (Iowa
1997)).
Heard’s constitutional claim that his right to compulsory process
was violated is reviewed de novo. State v. Russell, 897 N.W.2d 717, 724
(Iowa 2017). We review for abuse of discretion a ruling denying a motion 8
for a new trial on grounds the verdict is against the weight of the evidence.
State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006).
III. Analysis.
A. The Fifth Amendment Issue. We must decide whether the
district court erred by denying Heard’s motion to compel Brown to take
the witness stand and assert his Fifth Amendment privilege in front of the
jury. Heard candidly acknowledges his sole purpose for that stratagem
was so that jurors would infer Brown’s guilt. The State argues the court
of appeals decision reversing Heard’s conviction conflicts with Bedwell’s
categorical prohibition of that stratagem and conflicts with our precedent
allowing proper blanket assertions of the Fifth Amendment privilege. See
State v. McDowell, 247 N.W.2d 499, 501–02 (Iowa 1976). We agree with
the State and affirm the district court’s well-reasoned ruling.
We begin our analysis with the text of the Fifth Amendment. “No
person . . . shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. 3 “It is well settled that in a criminal
prosecution the jury may not be instructed defendant’s failure to testify
could be considered an inference of guilt; furthermore, a prosecutor may
not comment on defendant’s failure to take the stand.” Giltner v. Stark, 219 N.W.2d 700, 713–14 (Iowa 1974); see also Griffin v. California, 380
U.S. 609, 614, 85 S. Ct. 1229, 1232–33 (1965). 4 The Fifth Amendment’s
3The Fifth Amendment is applicable to the states through the Fourteenth
Amendment. Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493–94 (1964). Even before the Fifth Amendment was incorporated to the states through the Fourteenth Amendment, Iowa courts recognized that the right was fundamental to the “general guaranty of due process of law” found in article I, section 9. See State v. Height, 117 Iowa 650, 659, 91 N.W. 935, 938 (1902). We decline Heard’s invitation to find the Iowa Constitution provides less protection against self-incrimination than the Fifth Amendment. 4In civil cases, we allow adverse inferences to be drawn when a witness refuses to answer questions by invoking the Fifth Amendment privilege. Giltner, 219 N.W.2d at 9
protections extend to nonparty witnesses. Ohio v. Reiner, 532 U.S. 17, 21,
121 S. Ct. 1252, 1254 (2001) (per curiam).
“[W]hen a witness’ privilege against self-incrimination under the
Fifth Amendment collides with an accused’s right to compulsory process
under the Sixth Amendment, the latter must give way.” McDowell, 247
N.W.2d at 500–01 (collecting cases). 5 We first address the court of appeals’
conclusion that the district court erred and violated Heard’s right to
compulsory process by allowing Brown’s blanket assertion of privilege
instead of proceeding question by question in front of the jury.
The privilege against self-incrimination extends to answers that
“would furnish a link in the chain of evidence needed to prosecute the
claimant for a . . . crime.” Hoffman v. United States, 341 U.S. 479, 486,
71 S. Ct. 814, 818 (1951). A witness cannot claim the privilege “unless he
has reasonable cause to apprehend danger from a direct answer.” State v.
Parham, 220 N.W.2d 623, 627 (Iowa 1974). In Parham, we stated that
Hoffman’s “federal standard applies in a prosecution by a state in
determining whether the privilege is properly asserted.” Id. at 626. The
trial court has the discretion to decide if the witness has grounds to assert
the privilege against self-incrimination and may “require [the witness] to
answer if ‘it clearly appears to the court that he is mistaken.’ ” Hoffman,
341 U.S. at 486, 71 S. Ct. at 818 (quoting Temple v. Commonwealth, 75
Va. 892, 899 (1881)); Parham, 220 N.W.2d at 626.
714–15; see also Craig Foster Ford, Inc. v. Iowa Dep’t of Transp., 562 N.W.2d 618, 623 (Iowa 1997) (“Such adverse inferences are not constitutionally off limits in civil cases.”). 5“In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor . . . .” U.S. Const. amend. VI. Article I, section 10 of the Iowa Constitution grants the accused the right to “compulsory process for his witnesses.” Iowa Const. art. I, § 10. Heard argues this minor textual difference supports giving defendants greater rights to compulsory process under our state constitution. We disagree and decline to apply a different analysis. 10
In McDowell, we upheld the witness’s blanket assertion of the
privilege against self-incrimination. Glennetta McDowell and a companion
were shopping at a J.C. Penney store. 247 N.W.2d at 501. A supervisor
saw the companion place merchandise in McDowell’s purse and followed
them out of the store. Id. McDowell was apprehended with unpurchased
items in her purse. Id. She subpoenaed her companion as a witness in
her criminal trial, but the witness asserted her Fifth Amendment privilege
against self-incrimination “as to the whole subject matter of the case.” Id.
at 500. In other words, she asserted a blanket privilege. McDowell was
found guilty, and on appeal she argued that the trial court should have
examined the witness to ascertain the validity and extent of the privilege.
Id.
On our review, we determined the witness undoubtedly was
McDowell’s companion at J.C. Penney, making her “implication in the
incident . . . plain.” Id. at 501. McDowell intended to question the witness
about what took place at the store during the incident. Id. That “incident
was the subject matter of the case, the corpus delicti.” Id. at 502. Under
those circumstances, we held that the trial court properly upheld the
privilege as to the entire subject matter of the case. Id. Indeed,
[h]ad the court compelled [the witness] to testify about what actually took place within the J. C. Penney sportswear department at the time of the incident, it would have compelled her to place herself in the center of the alleged crime.
Id. Given that there was no element of her testimony that would not be
incriminating, we concluded the blanket assertion of privilege was
appropriate.
McDowell is controlling. Heard gave the trial judge the specific
questions he intended to ask Brown to review before the judge exercised 11
his discretion to allow Brown to invoke a blanket privilege against self-
incrimination. The questions were aimed at impeaching Brown, which is
unnecessary without his trial testimony, or at implicating Brown in the
murder by placing him in the group and at the scene of the murder, which
would incriminate Brown and classically support his assertion of the Fifth
Amendment privilege. 6 It is well established that under these
circumstances, the witness’s Fifth Amendment right against self-
incrimination must prevail over the defendant’s Sixth Amendment right to
compulsory process. Id. at 500–01. We hold the district court correctly
ruled Brown was entitled to a blanket assertion of the privilege. See id.
Next we address whether Heard was entitled to force Brown to assert
his Fifth Amendment privilege in front of the jury to create an inference of
Brown’s guilt. Because Brown would properly take the Fifth on any
question put to him, see id. at 501, we are confronted with Bedwell’s
prohibition on calling a witness to the stand simply to have the jury hear
him invoke the privilege in order to infer his guilt, see 417 N.W.2d at 69.
We read McDowell and Bedwell together as providing a categorical
prohibition of this stratagem.
In Bedwell, neighbors noticed a strange vehicle parked in a nearby
driveway and saw a man carrying a television out of the house while
another man waited in the passenger seat. Id. at 67. The neighbors
approached, and the man abandoned the TV and left in the vehicle. Id.
The neighbors later identified Randall Bedwell as the individual they saw
attempting to take the TV. Id. at 67–68. At trial, Bedwell’s defense was
that his companion entered the home and removed the TV while Bedwell’s
6Heard submitted seventy-seven questions, some with multiple subparts. The questions involved Brown’s criminal history, the activities and relationships of the members of 3 in 3 out, and Brown’s history of mental illness. 12
role was limited to driving the getaway vehicle. Id. at 68. Bedwell wanted
to call his companion to the witness stand, but the companion, through
counsel, claimed his Fifth Amendment privilege against self-incrimination.
Id. at 69.
The district court concluded Bedwell could not call his companion
as a witness for the sole purpose of asserting his Fifth Amendment
privilege against self-incrimination in the presence of the jury. Id. Bedwell
appealed, arguing there was no “restriction against a defendant calling a
witness who has predetermined to invoke the privilege.” Id. We disagreed.
We held that the trial court properly refused to allow Bedwell to call the
witness because “the jury is not entitled to draw any inferences from the
decision of a witness to exercise his constitutional privilege whether those
inferences be favorable to the prosecution or the defense.” Id. (quoting
Bowles, 439 F.2d at 541). Our Bedwell decision adopted the United States
Court of Appeals for the D.C. Circuit’s opinion in Bowles. Id.
Daniel Bowles was on trial for the murder of a soldier found dead in
an alley, and he presented a defense that another individual, Smith, had
killed the victim. Bowles, 439 F.2d at 541. At trial, the defense called a
witness, Neely, who testified that Smith admitted he killed a man on the
street but he would blame Neely if the police talked to him. Id. Another
witness testified that Smith went to him searching for Neely and saying
that Neely had been telling people that he killed a soldier. Id. The trial
court refused to allow Bowles to call Smith as a witness because Smith
stated he would invoke his Fifth Amendment privilege against self-
incrimination. Id.
The D.C. Circuit upheld the trial court’s refusal to allow the
defendant to call Smith as a witness after it was predetermined that he
would invoke his privilege against self-incrimination and based its decision 13
on the rule that the jury cannot draw any inferences from such a decision.
Id. The appellate court stated that forcing Smith to invoke his privilege in
front of the jury would “only invite the jury to make an improper inference,”
which would be contrary to the constitutional notion that guilt cannot be
inferred from exercising one’s constitutional privilege. Id. at 542.
The rule Bedwell adopted from Bowles applies to the State and the
defendant alike.
It is improper for a prosecutor to require a witness to claim his privilege against self-incrimination in the presence of the jury when, as in this case, the prosecutor knows or has reason to anticipate the witness will assert it.
State v. Allen, 224 N.W.2d 237, 240 (Iowa 1974). When a jury views an
alleged accomplice invoking the privilege, “prejudice arises from the
human tendency to treat the claim of privilege as a confession of crime,
creating an adverse inference which an accused is powerless to combat by
cross-examination.” Id. at 241.
We disagree with the court of appeals’ conclusion that this case
presents “unique circumstances” warranting an exception to the Bedwell
rule merely because Brown testified in Heard’s first trial. “[A] waiver of a
[F]ifth [A]mendment privilege is limited to the particular proceeding in which the waiver occurs.” State v. Kellogg, 385 N.W.2d 558, 560 (Iowa
1986) (en banc); see also Duckworth v. Dist. Ct., 220 Iowa 1350, 1361, 264
N.W. 715, 721 (1936) (“[I]t is well settled that a person who has waived
such privilege [against self-incrimination] in one trial or proceeding is not
estopped to assert it as to the same matter in a subsequent trial or
proceeding, because the privilege attaches to the witness in each particular
case in which he may be called on to testify . . . .”). Brown’s waiver of his
privilege in Heard’s first trial does not preclude him from invoking the
privilege at the second trial because these trials are separate proceedings. 14
This case differs from one that involves a witness who testifies on direct
examination in a jury trial and first invokes the Fifth Amendment privilege
on cross-examination in the same trial. See Charles R. Nesson &
Michael J. Leotta, The Fifth Amendment Privilege Against Cross-
Examination, 85 Geo. L.J. 1627, 1645 & n.155 (1997) (noting Bowles is
“followed in almost every circuit” and collecting cases). The district court
ruled that Brown’s testimony from the first trial could not be introduced
in the second. Neither side challenges that ruling on appeal.
Heard asks us to overrule Bedwell. “Stare decisis dictates that we
decline [Heard’s] invitation to overrule our precedent.” State v. Macke, ___
N.W.2d ___, ___ (Iowa 2019); see also Book v. Doublestar Dongfeng Tyre
Co., 860 N.W.2d 576, 594 (Iowa 2015) (“Stare decisis alone dictates
continued adherence to our precedent absent a compelling reason to
change the law.”); Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678,
688 (Iowa 2013) (“We are slow to depart from stare decisis and only do so
under the most cogent circumstances.”). Heard offers no compelling
reason to overrule Bedwell.
Other federal circuits hold that a witness properly invoking a
blanket Fifth Amendment privilege should not be compelled to do so in the
jury’s presence. See, e.g., United States v. Prince, 524 F. App’x 377, 379
(9th Cir. 2013); United States v. Santiago, 566 F.3d 65, 70 (1st Cir. 2009);
United States v. Bates, 552 F.3d 472, 475–76 (6th Cir. 2009); United States
v. Mares, 402 F.3d 511, 514–15 (5th Cir. 2005); United States v. Reyes,
362 F.3d 536, 541–42 (8th Cir. 2004); United States v. Deutsch, 987 F.2d
878, 883–84 (2d Cir. 1993); United States v. Harris, 542 F.2d 1283, 1298
(7th Cir. 1976). Many States, like Iowa, similarly hold that witnesses
properly invoking a blanket privilege against self-incrimination should not 15
be compelled to do so in the presence of the jury. 7 Because the witness
who takes the Fifth does not testify, the defendant has no valid Sixth
Amendment confrontation clause claim. State v. Ramirez, 936 A.2d 1254,
1265 (R.I. 2007); see also Kellogg, 385 N.W.2d at 560 (noting a “primary
object of the confrontation clause” is the defendant’s right to cross-
examine the witness in front of the jury).
Heard urges us to depart from the clear majority rule and follow
State v. Herbert, in which West Virginia’s high court held a nonparty
witness’s invocation of the privilege against self-incrimination must be
made in the presence of the jury, because the privilege “may only be
invoked when a witness is asked a potentially incriminating question.”
767 S.E.2d 471, 479 (W. Va. 2014). We find the dissent in Herbert more
persuasive.
The majority creates new law for West Virginia, but without support from any other jurisdiction in the entire country. Overturning recent precedent, the majority holds that in criminal trials, trial courts “shall require” a non-party witness to invoke the privilege against self-incrimination “in
7See, e.g., State v. Henry, 863 P.2d 861, 872–73 (Ariz. 1993); People v.
Dikeman, 555 P.2d 519, 520–21 (Colo. 1976) (en banc); State v. Bryant, 523 A.2d 451, 455–56 (Conn. 1987); Apfel v. State, 429 So. 2d 85, 86–87 (Fla. Dist. Ct. App. 1983); Billings v. State, 607 S.E.2d 595, 597 (Ga. 2005); People v. Myers, 220 N.E.2d 297, 310–11 (Ill. 1966) (per curiam); State v. Crumm, 654 P.2d 417, 423 (Kan. 1982); Clayton v. Commonwealth, 786 S.W.2d 866, 868 (Ky. 1990); State v. Berry, 324 So. 2d 822, 830 (La. 1975); Commonwealth v. Gagnon, 557 N.E.2d 728, 737 (Mass. 1990); People v. Dyer, 390 N.W.2d 645, 648–49 (Mich. 1986); State v. Robinson, 715 N.W.2d 531, 555 (Neb. 2006); State v. McGraw, 608 A.2d 1335, 1339 (N.J. 1992); People v. Thomas, 415 N.E.2d 931, 934–35 (N.Y. 1980); Pavatt v. State, 159 P.3d 272, 286 (Okla. Crim. App. 2007); State v. Mitchell, 487 P.2d 1156, 1161 (Or. Ct. App. 1971); State v. Ramirez, 936 A.2d 1254, 1265 (R.I. 2007); State v. Hughes, 493 S.E.2d 821, 823–24 (S.C. 1997); State v. Rollins, 188 S.W.3d 553, 569–70 (Tenn. 2006); Horner v. State, 508 S.W.2d 371, 372 (Tex. Crim. App. 1974); State v. Travis, 541 P.2d 797, 798–99 (Utah 1975); State v. Heft, 517 N.W.2d 494, 501 (Wis. 1994). But see Gray v. State, 796 A.2d 697, 717–18 (Md. 2002) (stating in dicta that trial court has discretion to permit defendant to call a witness to invoke his Fifth Amendment privilege in the presence of the jury, but declining to decide whether discretion was abused and reversing on other grounds). 16 the presence of the jury.” This new rule of law is fraught with problems, including the potential for manipulation by allowing either the prosecution or the defendant to call a witness solely to allow the jury to draw adverse inferences from a witness’s refusal to testify.
Id. at 490 (Loughry, J., concurring in part and dissenting in part). The
Herbert majority opinion is an outlier we decline to follow.
The district court similarly warned that Heard’s stratagem—to
compel Brown to invoke his blanket Fifth Amendment privilege in the
presence of the jury—is an “invitation for jurisprudential mischief in the
criminal process.” As the trial judge explained,
Were [Heard’s] procedure sanctioned, any defendant could subpoena any known person of disrepute and force him or her to take the Fifth. There would be no way for the Court, or the jury, to assess the relevance of such an act. It would be evidence by innuendo, untested by the adversarial process.
We agree. The trial judge correctly ruled Heard was not entitled to compel
Brown to the stand to take the Fifth in “a Perry Mason moment.” See
Bowles, 439 F.2d at 541–42 (“The jury may think it high courtroom drama
of probative significance when a witness ‘takes the Fifth.’ In reality the
probative value of the event is almost entirely undercut by the absence of
any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination.”).
As the State argues, Heard’s stratagem would curtail joint criminal
trials, because each defendant would demand a separate trial to call
accomplices to the stand to take the Fifth in the presence of the jury,
hoping the resulting inference of the witnesses’ guilt would create
reasonable doubt as to the defendant’s.
For these reasons, we reaffirm McDowell and Bedwell. Our holding
applies to nonparties properly invoking a blanket Fifth Amendment
privilege. 17
B. Heard’s Motion for a New Trial Based on the Weight of the
Evidence. Heard also appeals the court’s denial of his motion for a new
trial on grounds that the verdict was against the weight of the evidence.
The court of appeals did not reach this issue.
A district court may grant a new trial when it concludes, after
weighing the evidence presented and considering the credibility of the
witnesses, the jury verdict is contrary to law or evidence, which we have
held to mean “contrary to the weight of the evidence.” Nitcher, 720 N.W.2d
at 559. The “weight of the evidence” is a determination that a greater
amount of credible evidence supports one side over the other. State v.
Ellis, 578 N.W.2d 655, 658 (Iowa 1998). The district court should exercise
its discretion “with caution” and should grant a new trial “only in
exceptional cases in which the evidence preponderates heavily against the
verdict.” Id. at 659 (quoting 3 Charles A. Wright, Federal Practice and
Procedure § 553, at 245–48 (2d ed. 1982)). Our “appellate review is limited
to a review of the exercise of discretion by the trial court, not of the
underlying question of whether the verdict is against the weight of the
evidence.” State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003).
Heard argues the weight of the evidence supports his theory that
Brown committed the murder. Although Brown hid the gun after the
incident, the evidence points to Heard as the one who committed the crime.
Findley testified that, on the evening of the murder when they were talking
privately in the bathroom, Heard said he believed Hutchinson was going
to rob him and snitch to the police and that Heard told him he was
thinking about killing Hutchinson. Findley also testified that he was
standing by Brown at the time of the murder and did not see him with a
gun when he heard the gunshots, while Heard stood near Hutchinson. 18
Majors and Daye testified that they saw Brown and Heard change
clothes after the incident and that Heard had removed a rubber glove.
Majors testified that Heard and Brown had distinctly different reactions
immediately after the murder, i.e., Brown appeared upset and cried that
evening, while Heard tried to get her to go back to the scene to ensure
Hutchinson was dead and described to her in detail how he shot
Hutchinson.
The trial judge gave these reasons for rejecting Heard’s motion for a
new trial based on the weight of the evidence:
I completely disagree with your evaluation of the evidence. I watched and listened to the same witnesses that the jury did. The witnesses were credible, believable. While there was impeachment, and you were extremely thorough in that regard, the jury had an opportunity to see them. They had an opportunity to measure them, to evaluate them, to decide whether, in light of the exhaustive cross- examination, they were believable. The jury found them believable. The Court found them believable. The weight of the evidence here is adverse to your client. It shows that he committed a murder, that it was done with premeditation, that it was done with deliberation, that it was done with the specific intent to kill. Motive is not an element for the government, but clearly the motive was demonstrated in this case. This was a gang killing, in the Court’s view, and someone was pushing back against the gang leader and paid the price. The weight of the evidence here is more than adequate to support this verdict.
We reach the same conclusion. We hold the district court did not abuse
its discretion in denying Heard’s motion for a new trial.
C. The Lack of a Jury Finding on Heard’s Age. Heard argues for
the first time on appeal that he cannot be sentenced to life in prison
without parole because the jury did not find he was an adult at the time
of the crime. He did not raise this issue in district court. To the contrary,
he filed a motion in limine before trial that confirmed he was born in 1981, 19
reached age eighteen in 1999, and was age twenty-six when Hutchinson
was murdered. Heard makes no claim that his sentence is invalid because
he actually was under age eighteen at the time of the crime. We conclude
Heard is not entitled to relief from his life-without-parole sentence in this
direct appeal because he failed to preserve the jury issue by raising it
below.
The Supreme Court held in Alleyne v. United States that “any fact
that increases the mandatory minimum [sentence] is an ‘element’ [of the
crime] that must be submitted to the jury.” 570 U.S. 99, 103, 133 S. Ct.
2151, 2155 (2013); see also Apprendi v. New Jersey, 530 U.S. 466, 490,
120 S. Ct. 2348, 2362–63 (2000) (“Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”). We held in State v. Sweet that juvenile offenders
cannot be sentenced to life without the possibility of parole under the cruel
and unusual punishment clause of the Iowa Constitution. 879 N.W.2d
811, 839 (Iowa 2016). Heard argues that because a sentence of life
imprisonment without parole is unconstitutional under Sweet unless the
defendant is eighteen years of age or older, it follows that, under Alleyne,
age is an element that must be submitted to the jury before the court can
impose that sentence.
The State responds that a defendant’s age is not an element in the
crime of first-degree murder and adult status does not enhance the
mandatory automatic sentence of life without parole; rather, status as a
minor is a ground to escape that mandatory sentence. We assume without
deciding that when a defendant’s age is genuinely in dispute, a jury finding
that he or she is eighteen or older should be required before imposing a
life-without-parole sentence. But the defendant must raise the issue of 20
his age and claim to be a minor before the issue must be submitted to the
jury. Heard failed to do so. Understandably so because he had already
acknowledged in his own court filing that he was an adult at the time of
Hutchinson’s murder.
Heard contends his life-without-parole sentence is illegal without a
jury finding on his age. We disagree. In our view, a defendant, at most,
can claim a procedural error if an issue as to his age was not submitted to
the jury. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001) (en banc).
“[A] defective sentencing procedure does not constitute an illegal sentence”
that can be challenged at any point. Id. at 360 (emphasis omitted). We
“do not allow challenges to sentences that, because of procedural errors,
are illegally imposed.” Id. at 359.
Heard’s claim challenges the procedural jury instruction
requirements under Alleyne, not the constitutionality of the sentence. As
such, Heard’s claim is not an attack on an illegal sentence. Because Heard
did not raise this challenge during trial, the age issue is not preserved on
appeal. See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“[T]imely
objection to jury instructions in criminal prosecutions is necessary in
order to preserve any error thereon for appellate review.”). We affirm
Heard’s life-without-parole sentence.
IV. Disposition.
For the foregoing reasons, we vacate the decision of the court of
appeals and affirm the district court’s ruling and judgment.
All justices concur except McDonald, J., who takes no part.