                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1821
                              Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DERRICK JAMAAL MCELROY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Kurt L. Wilke,

Judge.



      Derrick   McElroy    appeals   his   conviction   for   first-degree   murder.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



      Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

         The State charged Derrick McElroy with first-degree murder in connection

with the shooting and subsequent death of a young Fort Dodge man. A jury

found McElroy guilty.     On appeal, McElroy challenges the sufficiency of the

evidence supporting the jury’s finding of guilt and the court’s refusal to grant a

new trial based on the weight of the evidence.          He also contests several

evidentiary rulings including the district court’s admission of certain evidence of

gang affiliation.   Finally, he takes issue with the district court’s decision to

disallow cross-examination of a witness about disciplinary action taken against

the witness.

I.       Sufficiency of the Evidence/Weight of the Evidence

         A.    Sufficiency of the Evidence

         The jury was instructed the State would have to prove the following

elements of first-degree murder:

         (1) On or about the 8th day of May, 2011, the Defendant shot
         Brandyn Preston;
         (2) Brandyn Preston 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 a person.

McElroy asserts “the evidence submitted did not support a finding that he was

the person who committed the crime.” He points out there was “no eyewitness to

this shooting,” no one saw him near the location of the shooting, and the State’s

circumstantial evidence against him was weak and contradictory. Our review is

for substantial evidence. See State v. Robinson, 859 N.W.2d 464, 467 (Iowa

2015).
                                         3


       A reasonable juror could have found the following facts. Brandyn Preston

was shot in his neck while attending an outdoor party. The bullet struck his

spinal cord, which caused paralysis, bronchopneumonia, and ultimately, death.

       Fort Dodge police officers searched a home near the party site, where

McElroy sometimes stayed. They “found a .22-caliber [Ruger] semi-automatic

rifle” underneath a pile of clothes. The rifle owner, Andrew Schulte, testified that

several months earlier McElroy saw the gun at his apartment. When Schulte

moved out of the apartment he “noticed the rifle was missing.”

       A criminalist with the Iowa Division of Criminal Investigation positively

identified a bullet recovered from Preston “as having been fired from [the] Ruger

.22-caliber rifle.” Another criminalist testified a “weak major [DNA] profile” on the

scope of the rifle was consistent with McElroy’s DNA profile.

       An acquaintance of McElroy, Brent Lamp, testified that McElroy confessed

to the shooting and said he was “laying low.” Although Lamp had a powerful

incentive to testify for the State in light of pending drug charges, and his

testimony contradicted other evidence in key respects, it was up to the jury to

reject or credit the evidence. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa

2012). Viewing the evidence in a light most favorable to the State, we conclude

substantial evidence supports the jury’s finding of guilt. Robinson, 859 N.W.2d at

467.

       B.     Weight of the Evidence

       McElroy next contends the district court should have granted his motion

for new trial on the ground the jury’s finding of guilt was not supported by the

weight of the evidence. In his view, “the evidence supporting the verdict was so
                                          4


scanty and the evidence opposing it was so compelling” that the court should not

have denied the motion.

       Iowa Rule of Criminal Procedure 2.24(2) allows a court to grant a new trial

“[w]hen the verdict is contrary to law or evidence.” The district court correctly

cited the heavy standard for granting a new trial on this ground: “Except in the

extraordinary case where the evidence preponderates heavily against the verdict,

trial courts should not lessen the jury’s role as the primary trier of facts.” See

State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). Our review “is limited to a

review of the exercise of discretion by the trial court, not 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). We will reverse only if we find an abuse of

discretion. State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006).

       The district court declined to grant a new trial, reasoning as follows:

              Here, the evidence shows that defendant had possession of
       a weapon that was stolen from a residence which he frequented
       and that he knew about the weapon. The weapon was found
       hidden in the basement of the defendant’s grandfather not far from
       the scene of the shooting. The weapon was used to kill Brandyn
       Preston. The defendant’s DNA was definitively matched to a DNA
       sample taken from the weapon. The defendant was in the area
       when the shooting occurred. The defendant told Brent Lamp facts
       about the shooting that only the shooter would know and Mr. Lamp
       would not have known, such as the fact that the murder weapon
       was a rifle, semi-automatic in nature, capable of firing multiple
       rounds in short order, that multiple rounds were fired, and that the
       murder weapon had a scope.

The district court properly exercised its discretion. Although the record does not

support a “definitive match[]” of the DNA and, as noted, Lamp’s testimony was

significantly impeached, we cannot conclude the district court abused its

discretion in denying the new trial motion.
                                            5


II.    Evidentiary Rulings

       McElroy challenges several evidentiary rulings: (A) the admission of

photographic evidence showing his gang affiliation, (B) the admission of

photographs of Preston in a wheelchair and ventilator, and (C) the exclusion of

certain text messages. The third challenge was not preserved for our review. 1

Accordingly, we will only address the first two evidentiary issues.

       A.      Photographs of Gang Affiliation

       Prior to trial, McElroy filed a motion in limine seeking to prevent the State

“from offering evidence or testimony regarding the interpretation or ‘meaning’ of

any tattoos on [his] person.” The district court granted the motion, reasoning “the

probative value of the tattoo evidence [was] substantially outweighed by the

danger of unfair prejudice.” The court stated it might “revisit this ruling should the

State provide direct evidence in support of its position regarding the meaning of

Defendant’s tattoos.”

       At trial, the State offered photos of McElroy’s tattoos.          The State also

offered photos depicting McElroy using a gang symbol. McElroy objected to the

evidence.    The district court overruled the objection, reasoning, “We’ve had

various people testify regarding [McElroy’s] association or non-association with

this group called the Bloods.” The photos were admitted.

1
   An officer with the Fort Dodge police department was slated to testify to his
investigation of text messages on a cell phone belonging to Ari Vodraska. The State
objected on hearsay grounds. McElroy responded that Vodraska was under subpoena
to testify but might not be cooperative. The court suggested McElroy elicit the officer’s
testimony outside the presence of the jury via an offer of proof and, if Vodraska testified
contrary to the offer-of-proof testimony, the court would admit the offer-of-proof
testimony. The State and defense agreed to this procedure. Ultimately, Vodraska did
not testify due to a medical condition. The State and defense admitted a stipulation
regarding her expected testimony which did not contradict the offer-of-proof testimony.
Ultimately, McElroy did not seek to admit the offer-of-proof testimony.
                                          6


       A Des Moines detective with gang expertise interpreted the photographs.

He testified the red five-pointed star on McElroy’s neck and three other tattoos

which together spelled “MOB” were consistent with the Bloods gang.                The

detective also testified McElroy’s “hand signal” depicted in other photographs

was associated with the Bloods gang.

       McElroy contends the photographs were irrelevant to any issue in the

case. The State counters that the evidence was relevant to establish McElroy’s

motive, and its probative value was not outweighed by the danger of unfair

prejudice. See Iowa R. Evid. 5.403.2 We need not engage in an analysis of the

evidence’s relevancy or review the district court’s balancing of the probative

value of the evidence against its prejudicial effect because even if the evidence

was erroneously admitted,3 reversal is not necessarily required. See State v.

Rodriquez, 636 N.W.2d 234, 244 (Iowa 2001).

       The    test   for   determining   whether    reversal    is   required   for   a

nonconstitutional error such as the erroneous admission of evidence is: “Does it

sufficiently appear that the rights of the complaining party have been injuriously

affected by the error or that he has suffered a miscarriage of justice?” State v.

Trudo, 253 N.W.2d 101, 107 (Iowa 1977); see also State v. Henderson, 696

N.W.2d 5, 12-13 (Iowa 2005) (“Reversal is required in cases of nonconstitutional

error when it appears ‘that the rights of the complaining party have been
2
  The State does not argue the evidence was “inextricably intertwined” with the charged
offense and, at oral argument, conceded this was not an argument on which it was
relying. See State v. Nelson, 791 N.W.2d 414, 419-20 (Iowa 2010); State v. Caples, 857
N.W.2d 641, 645 (Iowa Ct. App. 2014).
3
  In State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995), the Iowa Supreme Court held
“gang notes” were erroneously admitted. The court reasoned “the probative value . . .
was substantially outweighed by the danger of unfair prejudice.” Nance, 533 N.W.2d at
562.
                                          7


injuriously affected by the error or that he has suffered a miscarriage of justice.’”

(citation omitted)). “An ancillary rule is . . . ordinarily, a defendant may not claim

prejudice where the same evidence is otherwise supplied by the defendant or is

made overwhelmingly clear in the record.” Trudo, 253 N.W.2d at 107-08. This

ancillary rule is dispositive.

       The State theorized McElroy committed the crime because he was a

member of the Bloods and was engaged in a feud with the Gangster Disciples.

In furtherance of this theory, the State offered extensive gang-related evidence,

including evidence that McElroy was associated with the Bloods.

       The evidence began entering the record with the State’s second witness,

the host of the party at which Preston was shot. The prosecutor asked this

witness whether McElroy “was part of a group,” a term the prosecutor used to

refer to gangs. The witness answered, “Yes.” The prosecutor continued, “And

what was that group?”        The witness answered, “They called themselves the

‘Bloods.’” The prosecutor later asked the same witness, “And did the Defendant

do anything with his hands to show any association with this group?”             The

witness responded by holding three fingers up and making a high circle with her

index finger and thumb, the precise sign depicted in some of the challenged

photos. The prosecutor asked, “And what does that represent?” The witness

answered, “Blood Gang.”

       The State continued to introduce gang-related evidence through other

witnesses. For example, the prosecutor engaged in the following exchange with

another witness: “Q. [W]ere there groups, two groups of people that weren’t

getting along in Fort Dodge? A. Yes. Q. To your knowledge, did the Defendant
                                        8


belong to one group? A. Yes. Q. What group did the Defendant belong to? A.

The Bloods.” McElroy did not object to this evidence, presumably because gang

affiliation testimony bolstered his theory that the crime was committed by

someone in the Jack Boys gang, a subset of the Bloods. Indeed, he introduced

gang-related evidence of his own.

      By the end of trial, unchallenged evidence of gang affiliation permeated

the record.   In light of this duly-admitted evidence, the photographs and the

detective’s interpretation of the photographs as signifying McElroy’s affiliation

with the Bloods was cumulative. See State v. Jurgenson, 225 N.W.2d 310, 312

(Iowa 1975) (stating “error in the admission of evidence is not prejudicial where

substantially the same evidence is in the record without objection”); State v.

Mablin, No. 08-1180, 2009 WL 2185552, at *6 (Iowa Ct. App. July 22, 2009)

(“[W]e cannot see how Mablin suffered a miscarriage of justice by the admission

of Pastor Giminez’s brief testimony, which merely corroborated a large volume of

other evidence demonstrating Mablin’s calculating untruthfulness.”); In re Estate

of Hettinga, 514 N.W.2d 727, 733 (Iowa Ct. App. 1994) (“Evidence which is

cumulative, which only corroborates other evidence properly in the record, does

not constitute reversible error.”). Assuming without deciding the admission of this

evidence was erroneous, we conclude the admission does not require reversal.

      B.      Photographs of Preston in Wheelchair

      At trial, the State offered two photos of Preston after the shooting. One

showed him sitting in his wheelchair and another showed him attached to a

ventilator. McElroy objected to the admission of the photographs as irrelevant

and unfairly prejudicial. The district court overruled the objection. The court
                                          9


reasoned the evidence was relevant to allow the jury to see “in what condition the

victim was over the period of six or seven months, because there has to be a

connection between the actual wound and his death.”           On appeal, McElroy

reprises his challenge to the pictures.

       “[P]hotographs are not inadmissible simply because they are ‘gruesome or

may tend to create sympathy.’” State v. Neiderbach, 837 N.W.2d 180, 202 (Iowa

2013) (citation omitted).      We are inclined to agree with McElroy that these

photographs were offered primarily, if not solely, to evoke sympathy. The State

did not need these photos to establish the element of death because a

pathologist testified to Preston’s condition and the causal connection between

the shooting and his ultimate death.      Nonetheless, the pictures had marginal

relevance in elucidating the pathologist’s testimony.4 See State v. Brown, 397

N.W.2d 689, 700 (Iowa 1986) (holding that where pathologist “testified

extensively with respect to the nature, extent, and severity of [victim’s] wounds,”

the “autopsy photographs were relevant to illustrate and explain [pathologist’s]

testimony”). And the pictures were far from unfairly prejudicial. As the court

stated in Brown, “Murder is often a gruesome affair giving rise to equally

gruesome evidence.”      Id.    These photos were not gruesome.      Because the

probative value of the photos was not outweighed by the prejudicial effect, we

affirm the district court’s admission of these photographs.




4
  Although these photographs were admitted through Kimberly Wood, Preston’s mother,
they bore on the pathologist’s testimony regarding paralysis.
                                        10


III.   Cross-Examination of Witness

       Iowa Division of Criminal Investigation Criminalist Larry Hedlund, testified

at trial. Before trial, Hedlund was disciplined and fired from the department of

criminal investigation. McElroy sought to have the State produce an internal

report on this action. At the State’s behest, the district court reviewed the report

in camera, found it “contain[ed] no exculpatory evidence that could potentially be

used to impeach . . . Hedlund,” and ordered it “not be made available to the

Defendant.”     McElroy argues he should have been allowed to review the

documents and cross-examine Hedlund with the contents of the internal

disciplinary report.

       This court addressed a virtually identical issue in State v. Garrison, No.

04-0141, 2006 WL 138280, at *17 (Iowa Ct. App. Jan. 19, 2006). The court

concluded internal disciplinary records were “prima facie exempt from disclosure

as personal information in confidential personnel records.” Garrison, 2006 WL

138280, at *19; see also Iowa Code § 22.7(11) (2015).            The court further

concluded “the district court did not abuse its discretion in determining the

documents in question do not contain exculpatory information that should be

disclosed.” Id. Garrison is persuasive authority.

       Here, the district court determined, “There was nothing in the report

concerning Mr. Hedlund’s investigation in . . . [McElroy’s] case, nor was there

anything contained in the report that might call into question Mr. Hedlund’s

investigation techniques in any other case.” On our review of the confidential

information, we agree with this assessment. Accordingly, we discern no abuse of

discretion in the court’s refusal to disseminate the report to McElroy or allow
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cross-examination with the contents of the report. Any remaining arguments

concerning this issue were not preserved for review and, even if reviewed under

an ineffective-assistance-of-counsel rubric, would not have generated a

reasonable probability of a different outcome.

      We affirm McElroy’s judgment and sentence for first-degree murder.

      AFFIRMED.
