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IN THE COURT OF APPEALS OF IOWA No. 8-405 / 07-0181 Filed October 15, 2008

STATE OF IOWA, Plaintiff-Appellee, vs. RAMALE ANTRON HUNT, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.

Ramale AFFIRMED.

Hunt

appeals

from

his

first-degree

murder

conviction.

Mark C. Smith, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant. Ramale Antron Hunt, pro se. Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith and Sue Swan, Assistant County Attorneys, for appellee.

Heard by Mahan, P.J., and Vaitheswaran and Doyle, JJ.

2 VAITHESWARAN, J. The shooting and death of a man in Waterloo led to the filing of a firstdegree murder charge against Ramale Hunt. A jury found Hunt guilty as

charged. On appeal, Hunt and his attorney argue he is entitled to reversal based on the following claimed errors: (1) there was insufficient evidence that he acted with malice aforethought or that his acts were willful, deliberate, and premeditated; (2) the district court erred in overruling his "challenge to the States peremptory strike of the only minority juror remaining on the jury panel"; (3) the district court erred in denying his motion for new trial based on prosecutorial misconduct; (4) the district court erred in denying his request to present the videotaped statement of a witness; (5) the district court erred in excluding certain impeachment evidence; (6) the district court erred in submitting a jury instruction on multiple theories; (7) the district court erred in refusing to grant a mistrial based on a police officers testimony; (8) the district court erred in admitting deposition testimony of a witness who was deemed unavailable; (9) the district court erred in admitting hearsay testimony concerning the disposal of a gun; and (10) the district court erred in excluding a videotaped interview of a witness. I. Sufficiency of Evidence. The jury was instructed that the State had to prove the following elements of first-degree murder: 1. On or about the 6th day of June, 2004, the defendant shot Rob Robinson. 2. Rob Robinson died as a result of being shot. 3. The defendant acted with malice aforethought. 4. The defendant acted willfully, deliberately, premeditatedly and with a specific intent to kill Robinson.

3 Hunt contends there was insufficient evidence to establish that he acted with malice aforethought or that his actions were willful, deliberate, and premeditated. A finding of guilt is binding if supported by substantial evidence. State v. Dalton, 674 N.W.2d 111, 116 (Iowa 2004). With respect to the malice aforethought element, the jury was instructed that the phrase meant "a fixed purpose or design to do some physical harm to another which exists before the act is committed." The jury was further instructed that malice aforethought did "not have to exist for any particular length of time." Finally, the jury was instructed that malice aforethought could be "inferred from the defendants use of a dangerous weapon," and a gun was a dangerous weapon. The jury also received definitions of "willful," "to deliberate," and "premeditate." "Willful" was defined as "intentional or by fixed design or purpose and not accidental." "To deliberate" was defined as "to weigh in ones mind, to consider, to contemplate, or to reflect." "Premeditate" was defined as "to think or ponder upon a matter before acting." For purposes of this argument, Hunt appears to concede that he shot Robinson, but argues he was "attacked and cut by a blow from Rob Robinson " and the attack "was sufficient provocation to excite in a reasonable person an irresistible passion to retaliate." In his view, the evidence supported a finding of guilt on the lesser included offense of voluntary manslaughter but not on firstdegree murder. We are not persuaded by this argument. The record reveals the following facts. A waitress at a bar in the vicinity of the shooting saw Hunt running outside and noticed that his face was bloody and

4 there was an object in his hand. Shots were fired from Hunt s direction towards Robinson. Robinson stumbled. At this point, the waitress went inside the bar. When she came out, she saw Robinson face down on the ground. Based on the shots she heard previously, she came to the conclusion that the object in Hunt s hand was a gun. She had no doubt the shooter was Hunt. Although the

waitresss version of events at trial differed from versions she had previously given, it was the jurys prerogative to assess this inconsistency. State v.

Frommelt, 159 N.W.2d 532, 535 (Iowa 1968) ("[T]he jury is entitled to weigh one [statement] against the other to decide if such a fickle witness is worthy of belief."). A Waterloo police officer testified he investigated gunfire at the home of Hunts girlfriend three days before the shooting of Robinson. At least six or seven bullets struck the girlfriends vehicle and house. The officer interviewed Hunt, who told him he believed a gang called L-Block was behind the gunfire. Hunt also mentioned the name of Robinsons nephew. Hunt talked generally about his theory of retaliation, stating it should occur within a day or a few days. On the night of Robinsons shooting, a woman who knew both Hunt and Robinson saw Hunt chasing Robinson around a building. After the men turned the corner of the building, she heard approximately three gunshots, saw the flash from a gun, and smelled gunfire. She stated she saw Hunt shoot Robinson. The defense impeached her with a prior statement in which she said she could not see who was shooting or who was shot but, again, it was the jurys prerogative to determine what weight to give her trial testimony. Id.

5 Another witness testified he saw Robinson two days before the shooting. Robinson told him he was having problems with Hunt and he felt as if something was going to happen to him. The witness watched a fight between Hunt and Robinson three months earlier. He testified there was bad blood between the two. Many other witnesses also testified to events on the night of the shooting. We find it unnecessary to detail that additional evidence. Suffice it to say that, together with the testimony summarized above, it amounted to substantial evidence in support of the challenged elements of first-degree murder. II. Challenge to Peremptory Strike. The State used a peremptory challenge to strike an African-American man from the jury. Hunt, who is also African-American, objected to the strike. At a reported hearing, the prosecutor stated the potential juror was struck because he knew several potential witnesses. She continued: And my family being a member of the African-American community, the small, tight-knit community, and everybody basically knows one another or of one another and I guarantee he s going to know a great number of these witnesses . . . . She added that the State also struck two members of the jury panel because those members knew Hunt. Hunts attorney responded that the States perception of the "close-knit" nature of the African-American community in Waterloo would foreclose any member of that community from serving on a jury involving an African-American defendant or witness. At this point, the prosecutor added reasons for striking the potential juror. She mentioned that the juror said he was "like an adopted

6 brother" to certain witnesses. She also mentioned that another African-American individual on the panel would have been on the jury had he not been excused for a family emergency. The prosecutor discounted the juror s assertion that he could be fair and impartial. After considering these assertions and counter-assertions, the court rejected Hunts objections to the peremptory strike. The court stated: The fact that a juror is struck because he knows potential witnesses is not unusual and so I am going to find that the reasons the State has elucidated are sufficiently race neutral to allow the strike. And thats the ruling of the court. On appeal, Hunt maintains that the "district court erred in accepting the prosecutors statements as a race neutral reason for exercising a peremptory challenge on the only minority remaining on the jury panel." His challenge

implicates Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). There, the Supreme Court held that, under the Equal Protection Clause of the Fifth Amendment to the United States Constitution, a prosecutor may not purposefully discriminate by using peremptory strikes to challenge potential jurors solely on the basis of their race. Batson, 476 U.S. at 89, 106 S. Ct. at 1719, 90 L. Ed. 2d at 83. Because the issue is of constitutional magnitude, our review is de novo. State v. Keys, 535 N.W.2d 783, 785 (Iowa Ct. App. 1995). A three-part test is used to establish purposeful discrimination. First, the defendant must establish membership in "a racial group capable of being singled out for differential treatment." Batson, 476 U.S. at 94, 106 S. Ct. at 1722, 90 L.

7 Ed. 2d. at 86.1 This prima facie showing may be made "by relying solely on the facts concerning [the jurys] selection in his case." Id. at 95, 106 S. Ct. at 1722, 90 L. Ed. 2d. at 87. Second, "the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Id. at 97, 106 S. Ct. at 1723, 90 L. Ed. 2d. at 88. This second step "does not demand an explanation that is persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, 767-768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d. 834, 838 (1995). If a prosecutor provides a combination of discriminatory and race-neutral reasons for the strike and the district court only relies on the race-neutral reason, we may affirm on the basis of the race-neutral reason. See Rice v. Collins, 546 U.S. 333, 341, 126 S. Ct. 969, 975, 113 L. Ed. 2d. 824, 833 (2006) ("The prosecutor provided a number of other permissible and plausible race-neutral reasons, and Collins provides no argument why this portion of the colloquy demonstrates that a reasonable fact finder must conclude the prosecutor . . . struck juror 16 based on her race."). The third step requires the trial court to determine "if the defendant has established purposeful discrimination." Batson, 476 U.S. at 98, 106 S. Ct. at 1724, 90 L. Ed. 2d. at 88-89. "Because the trial judges finding whether purposeful discrimination exists will largely turn on evaluation of credibility, a reviewing court should give those findings great deference. " State v. Knox, 464 N.W.2d 445, 448 (Iowa 1990) (citing Batson, 476 U.S. at 98 n. 21, 106 S. Ct. at 1724 n. 21, 90 L. Ed. 2d at 89 n. 21).
1

This element has since been modified to clarify that a defendant and the challenged juror need not be of the same race. Powers v. Ohio, 499 U.S. 400, 416, 111 S. Ct. 1364, 1373, 113 L. Ed. 2d. 411, 429 (1991) ("[R]ace is irrelevant to a defendants standing to object to the discriminatory use of peremptory challenges.").

8 Here, the district court proceeded directly to step two. This was not fatal to the ruling. See State v. Veal, 564 N.W.2d 797, 807 (Iowa 1997) (partially overruled on other grounds by State v. Hallum, 585 N.W.2d 249, 254 (Iowa 1998)). In overruling Hunts objection to the peremptory challenge, the court relied on the prosecutors assertion that the potential juror knew some of the witnesses. This is a race-neutral reason. See Knox, 464 N.W.2d at 448

(rejecting Batson challenge where prosecutor said potential juror was struck because she knew defense counsel). While the prosecutor also indicated that she exercised the peremptory challenge because the juror was part of a "closeknit" community, the district court did not rely on this arguably discriminatory reason. See Congdon v. State, 424 S.E.2d 630, 631 (Ga. 1993) (rejecting

prosecutors strike of all four black members of venire where States reason for striking them was their membership in discrete community); Carroll v. State, 639 So.2d 574, 576 (Ala. Crim. App. 1993) (rejecting prosecutor s strike of only black member of venire where prosecutor stated, "They come from a small community, the same community, and its our understanding they are all related to each other by blood or marriage."). For that reason, we affirm the district courts ruling. See Hernandez v. New York, 500 U.S. 352, 361, 111 S. Ct. 1859, 1867, 114 L. Ed. 2d 395, 407 (1991) ("While the prosecutors criterion might well result in the disproportionate removal of prospective Latino jurors, that disproportionate impact does not turn the prosecutors actions into a per se violation of the Equal Protection Clause.").

9 III. Prosecutorial Misconduct. The State named Maria Thomas as a witness but declined to call her. 2 Hunt called her instead. At trial, her testimony differed in key respects from an initial videotaped statement she gave to police. She initially told the police that the shooter wore his hair in braids. Testimony from other witnesses established that Hunt did not wear his hair in braids and wore it very short. At the time of trial, Thomas said she thought she was wrong about his hair style. Thomas also told police that the shooter was wearing dark clothes and the person who died was wearing white. Trial testimony established that Hunt was wearing a white jersey on the night of the shooting. When asked about this discrepancy at trial, Thomas said she was "pretty confident" that Hunt "had on dark clothing" but, now, she did not really remember. Thomas was also asked about a diagram she drew during the police interview that identified the location of the shooter. This location was inconsistent with other trial testimony. At trial, Thomas stated she was not certain where the person who shot Robinson was when the shooting took place. Hunt attributed these inconsistencies to coaching by the State because, a week prior to her trial testimony, Thomas met with a police investigator and the prosecutors in the "sealed" courtroom. At that time, Thomas was shown

Robinsons clothing and a photograph of a jersey resembling the one worn by Hunt. The investigator and prosecutors also showed Thomas the videotape of

2

At trial, the defense stated that the prosecutor subpoenaed Thomas to come to Iowa from her home in Florida but, on realizing her testimony would not assist the State, sent her back to Florida without informing the defense. The district court ordered the State to make Thomas available in Iowa for the defense.

10 her earlier statement to police. The meeting lasted "a couple hours." Hunt urged that this meeting was improper, amounted to prosecutorial misconduct and entitled him to a new trial. The district court denied the new trial motion. The court stated that the prosecutors committed no misconduct by allowing Thomas into the courtroom to view the items described above because, notwithstanding a sign on the door indicating that the courtroom was sealed, attorneys and witnesses could enter. The court also noted that Thomas was subject to examination and crossexamination and "anything untoward that occurred prior to that . . . was cured by what happened afterwards." On appeal, Hunt takes issue with the courts ruling. He contends the

prosecutors actions were "overreaching and coercive" and severely impaired Thomass ability to present meaningful, exculpatory evidence. Prosecutorial misconduct warrants a new trial when it is "so prejudicial as to deprive the defendant of a fair trial." State v. Lyons, 210 N.W.2d 543, 549 (Iowa 1973). The following factors should be considered in assessing whether the defendant received a fair trial: (1) the severity and pervasiveness of misconduct; (2) the significance of the misconduct to the central issues in the case; (3) the strength of the States evidence; (4) the use of cautionary instructions or other curative measures; (5) the extent to which the defense invited the misconduct. State v. Boggs, 741 N.W.2d 492, 508-509 (Iowa 2007) (citation omitted). "The most important factor is the strength of the State s case against the defendant." Id. As a firsthand observer of both the claimed misconduct and any reaction by the jury, the trial court is better equipped than an appellate court to determine the

11 presence of prejudice. State v. Escobedo, 573 N.W.2d 271, 277 (Iowa Ct. App. 1997). Consequently, we will reverse a district court ruling only upon a finding of an abuse of discretion. Id. We conclude the district court did not abuse its discretion in denying Hunts motion for new trial, based on prosecutorial misconduct. Coaching of a witness by an attorney is not per se improper. DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002) ("If by ,,coaching, DeVoss means the prosecutor went over Maggios testimony with her, the claim simply has no merit. Attorneys certainly have the right to prepare their witnesses. It would be foolhardy not to.").

Notably, Hunts attorneys also met with Thomas in their offices and had her again view the videotape of her earlier statement in their presence. There is also no indication that the prosecutors told Thomas to perjure herself. Id. ("If by ,,coaching, DeVoss means the prosecutor told Maggio to commit perjury, that certainly is prosecutorial misconduct."). While Thomas

conceded she became unsure of the events only after she met with the police investigator and the prosecutors, she did not state that she was told to testify untruthfully. For these reasons, we affirm the district court s rejection of the

prosecutorial misconduct claim. IV. Admissibility of Maria Thomas's Videotaped Statement. As noted, Thomas gave a videotaped statement to police. The State

initially offered the statement when it filed its notice of intent to use hearsay. Hunt responded that Thomas was not unavailable, he did not have the opportunity to confront her, and her statements were untrustworthy. The court excluded the videotape, citing Thomass limited personal knowledge, the two

12 weeks that elapsed between the shooting and the interview, her hesitancy in answering the questions, the lack of detail in her answers, and the fact that the videotape did not include information not generally known. Later, Hunt attempted to introduce the videotape. The court stated, "[B]ased on my previous ruling, the witness had very little personal knowledge, that she was hesitant and that the nature of the questioning was such that it makes the statement in the court s view unreliable." Hunt contends the district court erred in excluding the videotape. He

relies on an exception to the hearsay rule for recorded recollections. See Iowa R. Evid. 803(5). That rule states: A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witnesss memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. The rule contains several requirements. A witness must be shown to have had an incomplete recollection. State v. Thompson, 397 N.W.2d 679, 682 (Iowa

1986). Thomas was asked "So youre not confident about anything that you saw that evening, is that what youre saying?" Her response was, "Yes. I cannot remember." The rule also requires a showing that the witnesss recollection of events at the time of the recording was "fresh." Id. at 683. The videotape was taken less than three weeks after the shooting. In Thompson, the court found the freshness requirement satisfied where there was a thirty-one day gap between the incident and the deposition. Finally, the rule requires a satisfactory showing

13 of "the accuracy of the process utilized to record that recollection. " With respect to this requirement, The jury should hear the witness state under oath that the prior statement was accurate and he should be subject to crossexamination on this point. [A witnesss] failure to say that . . . he gave the statement [and] it was accurate prevent[s] application of Rule 803(5). Id. (quoting 4 J. Weinstein & M. Berger, Weinstein's Evidence

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