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IN THE COURT OF APPEALS OF IOWA No. 8-554 / 07-1009 Filed October 29, 2008

STATE OF IOWA, Plaintiff-Appellee, vs. DEWANN MARQUISE STONE, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.

Defendant appeals from judgment and sentence entered by the district court on a jury verdict finding him guilty of first-degree murder. AFFIRMED.

Christopher Kragnes of Kragnes & Associates, Des Moines, for appellant. Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel C. Voogt and Stephanie L. Cox, Assistant County Attorneys, for appellee.

Heard by Huitink, P.J., and Vaitheswaran and Potterfield, JJ.

2 POTTERFIELD, J. I. Background Facts and Proceedings On the night of August 27, 2006, Anthony Galvan met up with friends at South Port, a bar in Des Moines. He was seen talking to several different black males there. He became drunk and somewhat disorderly, warning a friend that he anticipated an altercation later in the evening. Galvan left South Port as it was closing, around 1:40 a.m., along with roughly twenty to forty other bar patrons. He walked across the street from the bar to the parking lot of the

Tavern, a pizzeria where his friend and ride home, Troy Willet, had parked his pickup truck. together. Willet then drove Galvan across the street to the parking lot of Auto Zone, a business adjacent to South Port where many South Port patrons park. There, Willet and Galvan sat in the truck, talking with a friend, Tjuane Butts. Butts stood at the drivers side of Willets truck talking through the open window. A man appeared behind Butts and yelled at Galvan through Willets open window. The State alleges that this man was defendant Dewann Stone, a black male who had been seen by several witnesses at South Port. In response to the yelling, Galvan got out of the passenger seat and walked to the rear of the truck, apparently ready to fight. Galvan was shot five times and died several hours later at the hospital. Laboratory tests confirmed that the bullets had come from a .380 automatic pistol. Marcus Brooks, who was across the street, testified that he saw a side view of Stone firing three shots. No other eyewitness could positively identify Galvan and Willet talked about buying some crack cocaine

3 Stone as the shooter, though several witnesses stated that the shooter was a black male. Witnesses testified to seeing cars of varying descriptions leave

following the shooting, though no witness claimed to have seen Stone get into a car. Joshua Breeze testified that he had known Stone for two or three years. They were friends and socialized together a few times a week. In response to the prosecutors question, he testified that he also had a business relationship with Stone. Breeze said that he and Stone sold methamphetamine together and that his role was to get people in the white community to buy the methamphetamine from Stone. Breeze testified that Stone called him on either August 28 or 29, 2006, and asked him to come over. Breeze stated that he then went to the apartment of Joanna Wright, Stones girlfriend, where Stone frequently stayed.1 According to Breeze, Stone told him in the bedroom of Wrights apartment that he had shot someone in the parking lot at South Port using a .380 gun. Stone asked Breeze to help him sell drugs so that he would have money to leave town. Breeze also testified that Stone pointed out the clothes he had been wearing the night of the murder, a "black marijuana shirt, blue jeans, and some blue and white Adidas," and told Breeze that he needed to get rid of them. Those clothing items were identified by Breeze during his testimony to the jury. Video surveillance from South Port shows a patron entering the bar wearing clothing that fits this description.

1

Stone also frequently drove Wrights vehicle, a beige Toyota Camry, which was missing a gas cap cover.

4 On August 31, 2006, officers arrested Stone in a parking lot near Wrights apartment. The arresting officer testified that he seized 5.29 grams of

methamphetamine and a cellular telephone from Stone at the time of his arrest. The jury convicted Stone of first-degree murder in violation of Iowa Code section 707.2 (2005). He now appeals from his judgment and sentence arguing that: (1) the district court abused its discretion and denied Stones constitutional due process right by excluding statements about a possible suspect that was not investigated; (2) the district court abused its discretion by allowing evidence of Stones drug dealing with Breeze; (3) the district court abused its discretion by allowing improper rebuttal testimony; (4) the jurys verdict was contrary to the evidence; and (5) his counsel was ineffective for failing to raise a claim in the motion for new trial based on Stones claim that the cumulative effect of four significant trial errors constituted a denial of due process. II. Exclusion of Testimony Regarding Another Possible Suspect Stone argues that the district court erred in granting the States motion in limine to exclude testimony from an officer that he had received information from a confidential informant that a woman named Jennifer Moore had been told by someone named Brian Miller that Miller was involved in the Galvan homicide. The district court found the testimony to be a hearsay statement, despite the defenses argument that the testimony was being offered to "call into question the thoroughness of the States investigation." A. Standard of Review Stone argues that the district court violated his constitutional right to present a complete defense. See State v. Begey, 672 N.W.2d 747, 751 (Iowa

5 2003). We review due process claims de novo. State v. Mitchell, 670 N.W.2d 416, 418 (Iowa 2003). B. Merits "The right to present a defense is so fundamental and essential to a fair trial that the Supreme Court has accorded it the status of an incorporated right in the due process clause of the Fourteenth Amendment." N.W.2d 527, 531 (Iowa 1992). Iowa Rules of Evidence define hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801(c). Hearsay is generally not admissible unless it fits within one of several recognized hearsay exceptions. Iowa R. Evid. 5.802. Stone argues that his purpose in offering the testimony was to question the depth of the police investigation, not to prove the truth of the matter asserted, and, therefore, the testimony was not hearsay. We review the record to State v. Fox, 491

determine if the purpose asserted by Stone can reasonably be found to be the real purpose for which the testimony was offered. State v. Hollins, 397 N.W.2d 701, 705 (Iowa 1986). If the testimony at issue is relevant only if true, it is hearsay and inadmissible unless it fits within a hearsay exception. Id. at 706. After a thorough review of the record, we find that Stone made little effort to impeach the depth of the police investigation; to the contrary, Stones defense was mistaken identity. Therefore, it is unreasonable to find that the evidence is relevant for the purpose that Stone asserts. relevant only if true and is therefore hearsay. The proposed testimony was

6 We believe that this finding is consistent with Sowder where the Iowa Supreme Court found that the scope of the examination went beyond mere impeachment purposes and was therefore hearsay. State v. Sowder, 394

N.W.2d 368, 371 (Iowa 1986). Thus, we agree with the district court that the evidence at issue was being offered to prove the truth of the matter asserted and had no reasonable relevance if it was not taken as truth. Further, we find that the evidence does not fit within a hearsay exception. The testimony consists of multiple levels of hearsay which cannot be accommodated by hearsay exceptions. Because the evidence constituted

inadmissible hearsay, the district court did not violate Stones right to put on a full defense by excluding the evidence. III. Other Bad Acts Evidence Stone next argues that the district court erred in allowing the testimony of Joshua Breeze that he and Stone engaged in a drug dealing business together. The States asserted purposes for the evidence were to show the relationship between Breeze and Stone and to complete the story of the offense. A. Standard of Review We review evidentiary rulings for an abuse of discretion. State v.

Helmers, 753 N.W.2d 565, 567 (Iowa 2008). "An abuse of discretion occurs when the trial court ,,exercises its discretion on grounds clearly untenable or to a n extent clearly unreasonable." State v. Henderson, 696 N.W.2d 5, 10 (Iowa

2005). Even if an abuse of discretion has occurred, reversal is not required unless prejudice is shown. Id.

7 B. Merits "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." Iowa R. Evid. 5.404(b). However, such evidence may be admissible for other purposes, such as showing the complete story of the crime. Id.; State v. Shortridge, 589 N.W.2d 76, 83 (Iowa Ct. App. 1998). "[T]he key to admissibility is ,,whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit a wrongful act ." State v. Uthe, 542 N.W.2d 810, 814 (Iowa 1996). In determining whether evidence of other crimes, wrongs or acts is admissible, the court uses a two-step analysis to determine: (1) whether the evidence is relevant; and (2) if the evidence is relevant, does the probative value of the evidence substantially outweigh the danger of unfair prejudice. State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988); Iowa R. Evid. 5.403. Unfair prejudice could result if evidence "appeals to the jurys sympathies . . . provokes its instinct to punish [or in any other way causes] a jury to base its decision on something other than the established propositions in the case." State v. Henderson, 696 N.W.2d at 10-11. The State argues that it offered the evidence of Breezes history of dealing drugs with Stone to show the relationship between the two and to explain why Stone would confide in Breeze and look to him for help. Stone argues that the State is using this evidence only to bolster Breezes credibility. Breeze was the States witness who gave the most compelling evidence against Stone

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