State of Iowa v. Lovell Jonathan Flowers

• Court: Court of Appeals of Iowa
• Decided: January 24, 2024
• Docket: 22-1878
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1878 Filed January 24, 2024

STATE OF IOWA, Plaintiff-Appellee,

vs.

LOVELL JONATHAN FLOWERS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.

Lovell Jonathan Flowers appeals his conviction of domestic abuse assault.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Joseph D. Ferrentino, Assistant

Attorney General, for appellee.

Considered by Tabor, P.J., and Badding and Chicchelly, JJ. 2

CHICCHELLY, Judge.

Lovell Jonathan Flowers appeals from his conviction of domestic abuse

assault, contending the district court’s finding of forfeiture-by-wrongdoing violated

his constitutional rights. Because Flowers forfeited his right to confront the victim,

we affirm.

I. Background Facts and Proceedings.

On the morning of February 24, 2022, the Davenport Police Department

responded to a domestic incident. The victim, a thirty-five-year-old pregnant

woman who shared children with Flowers, placed the call. She told police that

Flowers had struck and strangled her until she couldn’t breathe. The victim had

injuries consistent with her story. Flowers was arrested and charged with domestic

abuse assault impeding air or blood flow. A no-contact order was issued.

Despite the order, Flowers contacted the victim seventy-five times while he

was being held in jail before trial: sixty-nine times from his personal jail account

and six times from other inmates’ accounts. During many of these conversations,

Flowers and the victim pretended to be other people, speaking about the victim in

the third person. About midway through their conversations, they would forget to

use their aliases and speak openly about the proceedings. On one occasion,

Flowers shared that he had met another inmate being held for the same charge,

and that inmate instructed him that the State had to dismiss the charge if the victim

was not available to testify. In later conversations, he tells the victim not to respond

or sign for a subpoena and to “be cool.” Flowers further asks the victim and their

daughter if they have received any mail or been contacted. He also reiterated to

their daughter about what he had been told about subpoenas. 3

Throughout the proceedings, the victim’s cooperation wavered. An

investigator testified that he found it difficult to contact the victim. While she was

successfully served and complied with some summons, she did not comply with

others. At the time of the originally-scheduled bench trial, the victim did not attend

but sent her daughter to explain her absence. She later testified she was

hospitalized at the time because she could not feel the baby moving. But when

hospital personnel ordered testing, she denied treatment and checked herself out,

stating she could now feel the baby moving. The trial was continued a week, but

despite numerous efforts, the victim was not successfully served a subpoena for

the rescheduled date.

Based on the circumstances, the State moved for a finding of forfeiture by

wrongdoing. The district court held a hearing on the matter, where it granted the

motion and allowed third-party evidence of the investigating officers’ testimony

about the victim’s statements to them in place of the victim’s testimony. Following

the bench trial, the court found Flowers guilty as charged. He appeals.

II. Review.

Because a forfeiture-by-wrongdoing claim implicates a constitutional right,

our review is de novo. State v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000). “[W]e

give weight to the district court’s findings of fact because that court had the

opportunity to personally assess the credibility of the witnesses.” Id.

III. Discussion.

Flowers contends the district court incorrectly applied the forfeiture-by-

wrongdoing exception and allowed third-party testimony, thereby violating his

rights under the Confrontation Clause. Defendants in criminal trials are generally 4

entitled “to be confronted with the witnesses against him.” U.S. Const. amend. VI;

Iowa Const. art. I, § 10. “[T]his provision bars ‘admission of testimonial statements

of a witness who did not appear at trial.’” Davis v. Washington, 547 U.S. 813, 821

(2006) (quoting Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). “But when

defendants seek to undermine the judicial process by procuring or coercing silence

from witnesses and victims,” they forfeit their constitutional right to confrontation.

Id. at 833. To apply the forfeiture-by-wrongdoing exception, the State must prove

by a preponderance of the evidence “that the defendant has wrongfully procured

the witness’s unavailability.” Hallum, 606 N.W.2d at 355–56. Forfeiture “is

necessary where a defendant’s actions are deliberately designed to keep a witness

from testifying.” State v. Campbell, No. 10-0117, 2013 WL 4011071, at *4 (Iowa

Ct. App. Aug. 7, 2013). We have previously held that the combination of “vague

mentions that other inmates had charges dropped when witnesses refused to

testify” with related requests and instructions to the witness are sufficient evidence

to establish forfeiture. See State v. Gordon, No. 15-1841, 2016 WL 6636792, at *2

(Iowa Ct. App. Nov. 9, 2016).

Upon our review, we find the State met its burden in determining the

forfeiture-by-wrongdoing exception applied. The record shows Flowers had

multiple conversations with the victim in which he convinced her to avoid testifying.

His persuasion began subtly by describing what another inmate told him: that the

State would have to dismiss charges without the victim’s testimony. He then told

her, “[I]f she doesn’t get a subpoena and doesn’t sign for it, she doesn’t have to

come to court and testify.” He similarly used their daughter to manipulate the victim

into evading summons, telling her, “If they don’t subpoena her, my lawyer was 5

saying I guess there’s nothing they’re gonna be able to do unless they subpoena

her or whatever?” Flowers further questioned both the victim and their daughter

about whether the victim had been subpoenaed. At one point, the victim stayed at

a hotel, and Flowers shared his concern that “[t]hey’re probably gonna be stopping

by pretty soon.” Based on these statements, Flowers clearly “intended to prevent

[the] witness from testifying.” State v. Harper, 770 N.W.2d 316, 322 (Iowa 2009)

(quoting Giles v. California, 554 U.S. 353, 361 (2008)). In fact, he achieved the

desired result. The investigator testified he had substantial difficulty reaching the

victim to serve a subpoena for the rescheduled trial. He returned to her residence

seven times, called and texted her, and asked the Davenport Police Department

for assistance in serving the summons. Ultimately, the investigator was never able

to serve her, and she did not testify at the bench trial. Based on his own

misconduct, Flowers prevented the victim’s testimony and, therefore, forfeited his

right to confront the witness.

IV. Disposition.

Because we find Flowers forfeited his right to confront the witness and the

court did not violate his constitutional rights, we affirm his conviction of domestic

abuse assault.