                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1075
                              Filed January 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENNETH LEROY HEARD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert Blink, Judge.



      A defendant appeals his conviction for first-degree murder. REVERSED

AND REMANDED.



      Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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POTTERFIELD, Presiding Judge.

       Kenneth Leroy Heard appeals his conviction for first-degree murder in

violation of Iowa Code sections 707.1, 707.2(1)(a), and 902.1 (2007) following his

second trial on the charges. On appeal, Heard argues the district court erred in

denying his motion to compel a witness to take the Fifth Amendment in response

to questions in the presence of the jury, his sentence is illegal because the jury did

not specifically find him to be over eighteen at the time of the offense, and the

district court erred in denying his motion for a new trial because the jury verdict

went against the weight of the evidence.

I. Background Facts and Proceedings.

       The body of Joshua Hutchinson was found lying in the snow near an

apartment complex in Des Moines on the morning of December 13, 2007.

Hutchinson had suffered multiple gunshot wounds.

       Hutchinson, along with Heard, Marco “Juice” Brown, and Deland “DB”

Stanley formed a group called “3 in 3 out” or “third world.” The group committed

robberies together. Heard was viewed as the leader of the group. During the time

of the murder, Stanley was in jail but had regular phone contact with the members

of the group. Jacquisha “Keisha” Harris, nee Majors, often associated herself with

members of the group, drove them in her car, and allowed them to stay at her

house. Majors and a fifth man, Phillip “Self” Findley, were present at the time of

the murder and testified against Heard at trial. Brown testified for the State at the

first trial, but he asserted his Fifth Amendment privilege at the time of his deposition

before the second trial, when he was to be called as a witness for Heard. The jury
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could have found the following facts based on the testimony presented at the

second trial.

       On December 12, Majors went to Hutchinson’s residence to pick up any

items there belonging to Stanley since Stanley was going to be released from jail

soon. Stanley was reportedly angry with Hutchinson because Hutchinson had

written a letter to Stanley’s girlfriend propositioning her. Majors drove Hutchinson

to a restaurant where the rest of the group was located.           Majors testified

Hutchinson attempted to leave but Heard stopped him, telling him the group had

something planned for later that night. The group left the restaurant and went to a

friend’s house.   Around midnight, the group relocated to Majors’s residence.

Hutchinson lay down on Majors’s bed.

       Findley testified Heard called him on the night of December 12, told him

there was trouble, and told him to come over to Majors’s house. Once Findley

arrived, Heard took him into the bathroom for privacy and told Findley that

Hutchinson was talking to the police and planning to rob Heard.

       Heard directed Majors to drive to a location unknown to her, giving her turn

by turn directions; Heard and Hutchinson were passengers.           Heard directed

Findley to follow Majors’s car; Brown was a passenger in Findley’s car. Once the

group arrived at an apartment complex, the four men went to the back of the

apartment complex to a secluded area by a picnic table. It was dark. Findley

testified he stood by Brown and did not see Brown with a gun. He testified

Hutchinson walked up to a tree to go to the bathroom and shortly thereafter he

heard gunshots. Forensic experts testified Hutchinson was shot at close range,

two to three inches away from his head.
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       Findley and Brown ran to Findley’s car and left the scene; Findley testified

Brown ran with him. Majors had remained in her car because the snowy conditions

hindered her progress when she tried to leave. She testified she heard gunshots

and then saw Brown and Findley running to their car. Shortly thereafter, Heard

arrived at her car and told her to drive him. After Findley and Brown left the scene,

Heard called Findley to ask: “Are you cool?” Heard directed Majors to a friend’s

house, where Majors observed him pull off a rubber glove and change his jacket

and his shoes.

       Majors testified she drove herself and Heard back to her residence, where

Brown was waiting for them. She observed Brown being very quiet and crying.

Brown had hidden the gun in a garage near his father’s house. Majors testified

Heard stated he wanted to go back to the scene of the shooting to check whether

Hutchinson was really dead or not. Majors also testified Heard described to her in

detail how he shot Hutchinson.

       Heard was tried and found guilty in 2007 for shooting and killing Hutchinson.

His conviction was affirmed on direct appeal. See State v. Heard, No. 09-0102,

2010 WL 2090851, at *1 (Iowa Ct. App. May 26, 2010). Heard filed an application

for post-conviction relief, alleging ineffective assistance of counsel on several

grounds including inadequate cross-examination of State’s witness Brown on the

subject of various evidence suggesting Brown shot Hutchinson. The district court

granted Heard’s application for post-conviction relief in December 2015. A new

trial was held in 2017; the jury returned a guilty verdict. Here, Heard challenges

his conviction from the second trial on direct appeal.
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II. Standard of Review.

       Heard claims the district court improperly refused him permission to call

Brown as a witness to assert any Fifth Amendment rights he retained in the

presence of the jury; the evidentiary claim is reviewed for an abuse of discretion.

See State v. Russell, 893 N.W.2d 307, 314 (Iowa 2017) (“A district court’s decision

to admit or exclude evidence is generally reviewed for abuse of discretion.”); State

v. Parham, 220 N.W.2d 623, 628 (Iowa 1974) (reviewing for an abuse of discretion

the district court’s decision to compel a witness’s answers against his assertion of

the privilege against self-incrimination); see also United States v. Mabrook, 301

F.3d 503, 506 (7th Cir.2002) (“We review a district court’s denial of a defendant’s

motion to compel a witness to exercise his Fifth Amendment privilege in the

presence of the jury for an abuse of discretion.”). Heard’s claims his constitutional

rights to compulsory process were violated are reviewed de novo. State v. Russell,

897 N.W.2d 717, 724 (Iowa 2017).

III. Discussion

       Refusal to Compel Witness

       Heard’s theory of defense was that Brown had committed the murder.

Heard argues the district court erred in allowing Brown, who had testified in the

first trial, to make a blanket assertion of his right against self-incrimination outside

the presence of the jury instead of requiring Brown to assert his right against self-

incrimination on a question-by-question basis in front of the jury. Heard argues the

district court’s refusal to allow him to call Brown as a witness to assert any Fifth

Amendment privilege violated Heard’s Sixth Amendment right to compel witnesses

at trial. Heard points to evidence that suggests Brown committed the murder,
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including that Brown left the scene with the murder weapon, wiped it down and hid

it in his father’s garage, and discarded his clothing. Stanley had stated before the

murder he could order Brown to murder someone and get away with it because

Brown was mentally ill, and Stanley had directed Brown to “mouse” Hutchinson. A

witness overheard Brown state to Heard in the Polk County Jail, “I know you don’t

do nothing man. Just let me play this crazy shit, and I’ve got you.” When Brown

testified at the first trial, Heard’s counsel failed to cross-examine Brown effectively,

causing the post-conviction court to grant a new trial.

       When Brown appeared with counsel for a deposition in preparation for

Heard’s second trial, he asserted his right against self-incrimination and declared

he would similarly refuse to testify at trial. Heard moved to compel Brown’s

testimony, and the district court apparently inquired of Brown on the record, under

oath, whether Brown intended to assert his Fifth Amendment privilege at trial.

Brown apparently stated he did intend to do so. The district court required Heard

to submit to the court the questions he planned to pose to Brown at trial.1 The

district court ruled before trial Heard could not compel Brown to appear before the

jury to assert his Fifth Amendment right. There was no question by question

determination in the district court as to the scope and extent of Brown’s Fifth

Amendment privilege.2




1
  Although there was a reported hearing on Heard’s motion, we have not been provided
with that transcript.
2
  The court also denied the state’s request to use Brown’s prior testimony because the
cross-examination at the first trial was inadequate to satisfy Heard’s right to confrontation
of witnesses.
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       Heard argues Brown should not have been allowed to categorically assert

his privilege against self-incrimination. “The [Fifth Amendment] privilege of a

witness is narrower than that of a defendant, and extends only to specific

questions; it does not encompass a refusal to take the stand at all.” Harris v. United

States, 614 A.2d 1277, 1282 (D.C. 1992), overruled on other grounds by Carter v.

United States, 684 A.2d 331 (D.C. 1996). “[A] witness may not claim his Fifth

Amendment privilege unless he has reasonable cause to apprehend danger from

a direct answer.” Parham, 220 N.W.2d at 627. “The witness is not exonerated

from answering merely because he declares that in so doing he would incriminate

himself—his say-so does not of itself establish the hazard of incrimination.”

Hoffman v. United States, 341 U.S. 479, 486 (1951). “It is for the court to say

whether his silence is justified, and to require him to answer if ‘it clearly appears to

the court that he is mistaken.’” Id. (citations omitted).

       In order for a witness to assert his privilege, the district court judge must

determine whether the questions might result in an answer injurious to the witness.

Id. at 486–87 (“To sustain the privilege, it need only be evident from the

implications of the question, in the setting in which it is asked, that a responsive

answer to the question or an explanation of why it cannot be answered might be

dangerous because injurious disclosure could result. The trial judge in appraising

the claim ‘must be governed as much by his personal perception of the peculiarities

of the case as by the facts actually in evidence.’” (citations omitted)). “[A]s a

general rule, when a witness’[s] invocation of his Fifth Amendment privilege

conflicts with a defendant’s right to compulsory process under the Sixth

Amendment, the trial court must ‘rule on the claim of privilege one question at a
                                          8

time.’” Johnson v. United States, 746 A.2d 349, 355 (D.C. Cir. 2000) (citation

omitted). Blanket privilege is only to be granted to a witness “when it is evident to

the court that anything less will not adequately protect him.” Littlejohn v. United

States, 705 A.2d 1077, 1083 (D.C. 1997). Brown could only assert the privilege in

response to specific questions to which his answers would incriminate him. Id.

The trial judge was obligated to determine whether Brown would have been able

to answer any of the questions Heard proposed without incriminating himself.

Here, the trial judge did not make a question-by-question determination, but gave

Brown a blanket privilege to invoke his Fifth Amendment rights to any question

Heard might ask, relying on McCormick on Evidence to rule that Brown’s

unequivocal intent to assert the Fifth Amendment was sufficient to make him

unavailable for trial.

       Later, the district court ruled that State v. Bedwell, 417 N.W.2d 66, 69 (Iowa

1987) prevents a defendant from calling “a witness who has indicated an intent to

assert his or her right against self-incrimination before a jury.” In Bedwell, the Iowa

Supreme Court held the district court correctly prohibited the defense from calling

a witness who was predetermined to invoke his privilege against self-incrimination,

adopting the language from Bowles v. United States, 439 F.2d 536, 541 (D.C. Cir.

1970), “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 at 69. Heard urges us to overturn

Bedwell. As an intermediate appellate court, we do not possess the power to

overturn Iowa Supreme Court precedent. See, e.g., State v. Miller, 841 N.W.2d

583, 584 n.1 (Iowa 2014) (“Generally, it is the role of the supreme court to decide
                                           9

if case precedent should no longer be followed.”); State v. Eichler, 83 N.W.2d 576,

578 (Iowa 1957) (“If our previous holdings are to be overruled, we should ordinarily

prefer to do it ourselves.”); State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App.

1990) (“We are not at liberty to overturn Iowa Supreme Court precedent.”).

        Heard argues there need be no new principle of law, but that Iowa courts

should, on a case by case basis, determine when a defendant should be entitled

to call a witness at trial, knowing that witness will assert his Fifth Amendment

privilege. Heard argues this is a unique situation, where the witness has already

testified in a previous trial while not asserting his Fifth Amendment privilege and

there is strong circumstantial evidence of the witness’s participation in the crime.

Heard contends Brown’s previous testimony under these circumstances renders

his decision to assert his Fifth Amendment privilege in the second trial more

probative than the witnesses’ assertions of the Fifth Amendment in Bedwell and

Bowles. See Charles R. Nesson & Michael J. Leotta, The Fifth Amendment

Privilege Against Cross-Examination, 85 Geo. L.J. 1627, 1683 (1997) (“[Inferences

made from the invocation of the privilege] will advance the search for truth, ensure

fairness to defendants, affirm the public’s confidence in our trial system, and

facilitate the role of the trial as community catharsis.”).

        If we do not find an exception to Bedwell, Heard urges us to adopt a different

interpretation under the Iowa Constitution, an argument he also made before the

district court. We do not need to reach the Iowa Constitution under the facts of this

case.

        The 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
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testimony resulted in a violation of Heard’s right to compulsory process. Brown’s

unequivocal statement of his intent to assert his Fifth Amendment privilege is not

sufficient to justify his blanket claim of privilege. The trial judge must appraise the

claim in the context of the case. Hoffman, 341 U.S. at 486. The context of this

case includes the witness’s previous testimony as a prosecution witness without

asserting his privilege, and without constitutionally adequate cross-examination.

Bedwell’s categorical prohibition against requiring a witness to assert her Fifth

Amendment privilege in the presence of the jury does not take into account the

unique context of this case. We reverse and remand.

       We do not reach Heard’s remaining arguments in light of our resolution of

his first issue.

       REVERSED AND REMANDED.
