                   IN THE COURT OF APPEALS OF IOWA

                                     No. 18-0268
                                  Filed July 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

QUARZONE ERIKEY MARTIN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Patrick R. Grady,

Judge.



      Quarzone Erikdey Martin appeals from convictions for second-degree

murder, willful injury causing serious injury, and going armed with intent.

REVERSED AND REMANDED.




      John W. Pilkington of Nidey Erdahl Fisher Pilkington & Meier, PLC,

Marengo, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
                                         2


BOWER, Chief Judge.

       Quarzone Erikdey Martin appeals from convictions for second-degree

murder, willful injury causing serious injury, and going armed with intent. He

contends the trial court erred in instructing the jury with respect to Iowa Code

section 704.2B (2017) and abused its discretion in excluding evidence of the

decedent’s violent character and denying his motion for mistrial. Finding the first

issue dispositive, we reverse and remand for new trial.

I. Background Facts and Proceedings.

       Martin admitted that on July 2, 2017, he shot Johnny Moore Jr. and Andrew

Meeks in the course of what started out as an arranged sale of a controlled

substance; Martin was to sell and Meeks was to purchase 300 tablets of Xanax.

Meeks died of his gunshot, but Moore survived his injuries. Martin was charged

with first-degree murder, willful injury causing serious injury, and going armed with

intent. Martin claimed that he acted in self-defense.

       At trial, evidence was presented that on July 1, 2017, Meeks contacted

Martin to purchase thirty to forty Xanax1 pills for $5.00 per pill. Martin and Meeks

had not met before. Martin and Meeks arranged to meet in the Walmart parking

lot on the southwest side of Cedar Rapids to complete this transaction. Upon

meeting at the Walmart parking lot, Meeks had Martin get into the front passenger




1 The generic name is alprazolam—a medication used to treat panic and anxiety
disorders—and it “belongs to a class of medications called benzodiazepines which
act on the brain and nerves . . . to produce a calming effect.” Xanax, WebMD,
https://www.webmd.com/drugs/2/drug-9824/xanax-oral/details (last visited June
24, 2020).
                                         3


seat of his vehicle to complete the sale. The transaction was completed without

incident.

       On July 2, Meeks and Moore were together at Meeks’s apartment he shared

with his girlfriend, Carryne Olds. Meeks was drinking a mixture of juice and Xanax.

He was looking for more Xanax and became angry with Olds when he found out

she had taken some of the pills. Olds said she had money to buy some more, and

Meeks contacted Martin to purchase 300 Xanax pills for $4.00 per pill. Meeks took

about $600 from Olds, and he and Moore then drove to the Walmart in Olds’s black

Ford Fusion.

       Moore testified that before he and Meeks left the apartment, he asked

Meeks if he was “going to actually spend the money or was he just going to go,

you know, do something. And he told me no, that we wasn’t doing that, we was

just going to get the pills and then we was going to have a good time and hang

out.” When Moore was asked why he had that conversation with Meeks, Moore

responded, “if that’s the plan, then if I need to protect myself or protect him” and

would have taken a gun. Moore stated they did not take guns with them.

       When Meeks and Moore arrived at Walmart, they parked for a time. Martin

arrived with four others in a tan Buick Rendezvous, and Martin came to Meeks’s

vehicle. Meeks told Moore to get into the back seat and told Martin to get in the

front seat.

       Meeks, Moore, and Martin drove to another, less traveled, part of the

parking lot and backed into a parking space. Store surveillance video shows

Martin getting out of the vehicle very briefly and then getting back in and Meeks’s

vehicle moving forward.     Video from another angle shows Meeks’s vehicle
                                         4


traveling across the parking lot into a barrier. Meeks falls out or bails out of the

moving vehicle before the vehicle strikes the barrier. He gets up and returns to the

car. Meanwhile, the front passenger door opens and Martin runs away. The rear

passenger door opens moments later and Moore gets out slowly, approaches the

rear of the vehicle, and leans over the trunk. Meeks died of gunshot injuries, and

Moore suffered a gunshot to the chest that travelled through the front seat before

striking him.

       Moore testified that while he, Meeks, and Martin were parked, Martin

presented Meeks with a bag of pills, and Meeks asked Moore to count them to

make sure they were all there.      While Moore was counting the pills, Meeks

removed the money from the center console and started to count the money.

Moore stated the pills were “short” and handed them back to Meeks. Meeks told

Martin he wasn’t interested, gave the pills back to Martin, and placed the money

on the center console. Moore testified Martin tried to get Meeks to buy the pills

and “the next time that he come back that he would give him extra.” Martin stepped

out of the vehicle briefly, Meeks put the car in gear and had his foot on the brake,

and then Martin “hopped back in the car.” When Martin got back in the car, Moore

testified he was pointing a handgun at Meeks. Meeks tried to drive, and Meeks

and Martin were “tussling.” Moore stated he “froze up” and just sat in the rear seat.

Martin then fired a shot at Meeks, the car hit the rail, and Martin turned around and

shot Moore. Moore did not remember what happened next until he opened his

eyes and Meeks was in the front seat telling him they had to get out of the car.

Moore was able to get out of the car but realized he had been shot and could not

breath. He called 911 after seeing Meeks fall over and not get back up.
                                            5


       Moore was cross-examined about other statements he had given to police.

On July 3, while in the hospital, Moore first told police he and Meeks were shot

because they would not give Martin a ride. He then said Meeks needed more

Xanax and had come up with a plan to rob Martin of the pills by pulling a “drug rip,”

i.e., taking drugs or money from the seller rather than purchasing drugs at an

arranged buy. While they were at Walmart, they stopped at a fireworks stand and

Olds called Meeks, telling him not to spend the $600 in Olds’s car console because

it was rent money. Moore told the officer on July 3 that he got shot because he

was trying to push Martin out of the car.

       On October 2, Moore went to the police and gave another statement more

in line with his trial testimony.

       Defense counsel questioned Moore extensively about his earliest

statements to police about Meeks’s plan to take the pills from Martin by tricking

him into getting out of the car and driving off and how the surveillance video

supported that version of events rather than Moore’s trial testimony. For example:

              Q. But that backing in makes it easier to do a robbery, doesn’t
       it? A. No.
              Q. It doesn’t? A. No.
              Q. Because if you back into the spot and you trick a guy out
       of a car, then you can just pull off? A. That wasn’t the case.
              Q. That’s exactly what happened. A. No.
              Q. On the video, the guy gets out and then his head goes
       down and then the car takes off with the door open? A. With the
       person hopping back in the car with a gun, yes.
              Q. It didn’t work, but that’s what you were trying to do? A. No,
       it wasn’t.
              ....
              Q. That Andrew, who was willing to put hands on Carryne over
       Xans, who was searching high and low in his house for Xans and
       now he has Xans in his life and cash in the console and he’s not
       going to buy some Xans? A. No, because they was short.
                                          6


                Q. Because there were only [seventy]? A. Yeah. It wasn’t all
      there.
             Q. There was 200 in those other bags? A. I don’t know what
      was in the other bag. Like I said, I only counted the one bag. . . .
             ....
             Q. So you had cash in the car? A. Yes.
             Q. And Andrew had Xans in his lap, right? Right? A. Yes.
             Q. And he gives the Xans back, says I don’t want these?
      A. Yes.
             Q. And then for some unknown reason that you can’t even
      explain today, the guy gets upset and pulls out a gun? A. I guess.
             Q. Well, that’s your story, isn’t it? A. Yes.
             Q. Because he could just sell these Xans to somebody else if
      he wanted to, right? A. He could.

      Jacob Steinberg testified he was driving north through the Walmart parking

lot on July 2 when he noticed a car going south.

      And I noticed the back door was open kind of swinging around, it
      looked like, and it then shut and they were just driving away. It looked
      like there was a slight struggle between the people in the passenger
      seat back and front.
                Q. And could you tell how many people were in this vehicle?
      A. Three.
                Q. Three. And as you came close to the vehicle, you said that
      you observed a struggle between the three individuals in the vehicle?
      A. It was more of a struggle between the front passenger and the
      rear passenger.
                Q. Could you see what type of struggle, or can you describe
      it a little bit more detail to— A. It just looked like they were having
      more of a physical altercation in the vehicle.

Steinberg also testified he heard gunshots coming from the direction of the car.

      The defense sought to question witnesses about Olds’s statements whether

Meeks had been involved in a drug rip before the altercation with Martin. Martin

argued Meeks’s character for violence was relevant to his justification defense

whether or not Martin was aware of the earlier event. The district court excluded

the evidence.
                                           7


       Investigator Matthew Denlinger testified he had interviewed Olds on July 3.

Olds told him she overheard Meeks and Moore talking about purchasing Xanax

pills and the plan was they would go buy pills, Meeks would drive, Moore would sit

in the back seat and count the money, and they would say something or do

something to trick the seller out of the car and then drive away.            On cross-

examination, Investigator Denlinger testified that the video recordings of the events

of July 3 “really looked like a drug rip. But I’m kind of open to the possibility that it

was and I’m open to the possibility that maybe it wasn’t.”

       Martin testified in his own defense. He stated that after he got into Meeks’s

vehicle and they parked, he pulled out three bags of Xanax pills, each containing

approximately 100 pills. He tried to hand the pills to Meeks but Meeks said “they

wasn’t for him, they was for the guy in the back seat.” Martin testified, “When I

gave them to the guy in the back seat, he said no offense, I just want to make sure

they all here. And I said no problem and everything. That’s what I—I asked him

where the money is so I can count that also.” Martin testified Moore then started

looking around and said he had dropped his wallet and asked Martin to look around

the front passenger seat because that is where he had been sitting. Martin then

got out of the car to search under the seat. While he was leaning over, he felt the

car move and “knew something was up.” He tried to get back in the car “[b]ecause

my pills was in the car” and he was afraid of falling out of the now moving vehicle.

Martin testified, “[A]s soon as I get back in the car, [Meeks] is reaching over trying

to shove me out of the car and Mr. Moore is coming over the middle console to

help him.”
                                          8


       Martin acknowledged he was armed with a nine millimeter Luger for

protection. However, he testified he did not have the gun in his hand when he got

back in the car, “I was just holding onto whatever I could to not fall out of the car.”

Martin testified:

       But as soon as the door closed, that’s when [Meeks] immediately
       started to punch me. He abandoned the wheel. He stopped driving.
               Q. When you got your gun out then, what was your intent while
       they were beating on you? When you got your gun out, what was
       your intent at that time? A. To just get them off to get control of the
       situation.
               Q. Did it concern you at all that the car wasn’t being driven?
       A. Yes.
               Q. Were you afraid? A. Yes, because anything could have
       happened. We—He wasn’t paying attention to the road, I couldn’t
       pay attention to the road and Mr. Moore definitely wasn’t paying
       attention to the road. They was too—They were just beating me.
               Q. So you went and got your gun? A. Yes.
               Q. And what were you going to do with that gun when you got
       ahold of it? A. I was—I just brought it out to—at least I thought they
       was going to stop, and I shot.
               Q. Did they stop? A. No.
               Q. And what did you do? A. I shot Mr. Meeks.
               Q. Where did you shoot Mr. Meeks? A. I’m not sure exactly.
               Q. Were you aiming or were you just shooting? A. I was just
       shooting.
               Q. What happened when you fired that first shot? A. When I
       shot Mr. Meeks, he fell back in the seat and grabbed at I guess where
       I shot him at.
               Q. All right. And how long between that shot and your second
       shot? A. I turned immediately around and shot Mr. Moore also.
               Q. And he was behind you? A. Yes. He was still over the
       middle console.

Moore yelled, “don’t kill me” and tried to throw the pills toward Martin. The car then

hit the guardrail.

       Martin did not fire any more shots. He got out and ran away, grabbing his

cellphone from his lap and “whatever pills was in my area.”

             Q. If you had wanted to shoot these guys any more, would
       you have done that? A. Yes.
                                          9


              Q. Did you want to kill them? A. No.
              Q. What was your purpose in shooting Mr. Meeks? A. My
       purpose in shooting Mr. Meeks was because I feared for my life. I
       was trapped in a car that was—they was just beating me.
              Q. Did it concern you that the car was not being driven?
       A. Yes. That also concerned me, but like I didn’t know—I didn’t know
       what was going on. It just happened so fast.
              Q. And what was your purpose in shooting Mr. Moore?
       A. Because he was also beating me. He was also over beating me
       and everything. And it just happened so fast, I just was trying to
       protect myself.
              Q. So this wasn’t a shooting because you got mad when they
       didn’t want to buy your pills? A. No. They never said they wanted to
       not buy any pills, no.

On cross-examination, the State asked Martin about his drug use:

               Q. . . . Do you take pills yourself? A. I used to.
               Q. Did you take Xanax? A. No.
               Q. What pills did you take? A. I used to pop Ecstasy.
               Q. Pop what? A. Ecstasy.
               Q. Did you do any other drugs?

The defense then sought a sidebar. Outside the presence of the jury, the defense

moved for a mistrial. The district court ruled:

       Arguably given the context but his familiarity with Xanax would be
       within the scope of what was—his testimony was, and that was not
       objected to and I think that’s—that was fair game. I do think it was a
       bit over the edge to ask him about other drugs. However, we have
       a case here where the defendant has already admitted to selling
       drugs, which is what I believe separates itself from [cases cited by
       defense counsel], as I don’t remember there being an issue of drug
       dealing in either one of those.

Nonetheless, the court concluded, “[I]n this instance I don’t think it’s harmful to the

point where a mistrial is necessary.”

       Over Martin’s objection, with regard to Martin’s justification defense, the

district court instructed the jury:

       Effective July 1, 2017, Iowa law provides the following:
              (1) If a person uses deadly force, the person shall notify or
       cause another to notify a law enforcement agency about the person’s
                                        10


       use of deadly force within a reasonable time period after the person’s
       use of the deadly force, if the person or another person is capable of
       providing such notification.
               (2) The person using deadly force shall not intentionally
       destroy, alter, conceal, or disguise physical evidence relating to the
       person’s use of deadly force, and the person shall not intentionally
       intimidate witnesses into refusing to cooperate with any investigation
       relating to the use of such deadly force or induce another person to
       alter testimony about the use of such deadly force.
               The failure to comply with these requirements does not, by
       itself, mean a person was not justified. However, you may consider
       the Defendant’s compliance or lack of compliance with these
       requirements to determine if he acted reasonably when he shot
       Andrew Meeks and Johnny Moore.

       On count 1, the jury found Martin guilty of the lesser-included offense of

second-degree murder, and guilty as charged on count 2, willful injury causing

serious injury, and count 3, going armed with intent.

       Martin appeals, asserting the court erred in instructing the jury, abused its

discretion in rejecting the evidence as to Meeks’s violent character, and in denying

his motion for mistrial.

II. Scope and Standards of Review.

       “We review rulings on questions of statutory interpretation for correction of

errors at law.” State v. Williams, 929 N.W.2d 621, 629 (Iowa 2019) (citation

omitted). We review constitutional claims de novo. Id. at 628.

III. Discussion.

       Iowa Code section 704.3 provides, “A person is justified in the use of

reasonable force when the person reasonably believes that such force is

necessary to defend oneself or another from any actual or imminent use of

unlawful force.” The term “reasonable force” is defined in section 704.1(1) as

       that force and no more which a reasonable person, in like
       circumstances, would judge to be necessary to prevent an injury or
                                         11


      loss and can include deadly force if it is reasonable to believe that
      such force is necessary to avoid injury or risk to one’s life or safety
      or the life or safety of another, or it is reasonable to believe that such
      force is necessary to resist a like force or threat.

Subsection 2 states, “A person may be wrong in the estimation of the danger or

the force necessary to repel the danger as long as there is a reasonable basis for

the belief of the person and the person acts reasonably in the response to that

belief.” Iowa Code § 704.1(2). “Deadly force” is defined in section 704.2.

      Iowa’s new “Stand Your Ground” law—which took effect the day before

Martin’s shooting of Meeks and Moore—creates a presumption that a person

reasonably believes deadly force is necessary under certain circumstances:

      (1) For purposes of this chapter, a person is presumed to reasonably
      believe that deadly force is necessary to avoid injury or risk to one’s
      life or safety or the life or safety of another in either of the following
      circumstances:
               (a) The person against whom force is used, at the time the
      force is used, is doing any of the following:
                      (1) Unlawfully entering by force or stealth the
               dwelling, place of business or employment, or
               occupied vehicle of the person using force, or has
               unlawfully entered by force or stealth and remains
               within the dwelling, place of business or employment,
               or occupied vehicle of the person using force.
                      (2) Unlawfully removing or is attempting to
               unlawfully remove another person against the other
               person’s will from the dwelling, place of business or
               employment, or occupied vehicle of the person using
               force.
               (b) The person using force knows or has reason to believe
      that any of the conditions set forth in paragraph “a” are occurring.
               (2) The presumption set forth in subsection 1 does not apply
      if, at the time force is used, any of the following circumstances are
      present:
               (a) The person using defensive force is engaged in a criminal
      offense, is attempting to escape from the scene of a criminal offense
      that the person has committed, or is using the dwelling, place of
      business or employment, or occupied vehicle to further a criminal
      offense.
                                         12


               (b) The person sought to be removed is a child or grandchild
       or is otherwise in the lawful custody or under the lawful guardianship
       of the person against whom force is used.
               (c) The person against whom force is used is a peace officer
       who has entered or is attempting to enter a dwelling, place of
       business or employment, or occupied vehicle in the lawful
       performance of the peace officer’s official duties.
               (d) The person against whom the force is used has the right
       to be in, or is a lawful resident of, the dwelling, place of business or
       employment, or occupied vehicle of the person using force, and a
       protective or no-contact order is not in effect against the person
       against whom the force is used.

Iowa Code § 704.2A.

       Martin elected not to assert a defense using Iowa Code section 704.2A, but

he argued he acted in self-defense after the alleged victims began beating him

with their fists and driving the car in an uncontrolled manner. Nonetheless, over

Martin’s objection, the district court submitted jury instruction 57, which contained

verbatim the provisions of Iowa Code section 704.2B:

               (1) If a person uses deadly force, the person shall notify or
       cause another to notify a law enforcement agency about the person’s
       use of deadly force within a reasonable time period after the person’s
       use of the deadly force, if the person or another person is capable of
       providing such notification.
               (2) The person using deadly force shall not intentionally
       destroy, alter, conceal, or disguise physical evidence relating to the
       person’s use of deadly force, and the person shall not intentionally
       intimidate witnesses into refusing to cooperate with any investigation
       relating to the use of such deadly force or induce another person to
       alter testimony about the use of such deadly force.

The instruction also contained an additional paragraph:

       The failure to comply with these requirements does not, by itself,
       mean a person was not justified. However, you may consider the
       Defendant’s compliance or lack of compliance with these
       requirements to determine if he believed he acted reasonably when
       he shot Andrew Meeks and Johnny Moore.
                                        13


       Martin contends the trial court erred in submitting this instruction and he

was prejudiced by it because he did not report the shooting incident to authorities

and tossed the gun in a river after the shooting. He asserts the legislature did not

intend section 704.2B to apply to all instances of deadly force. Rather, he argues

an instruction concerning the duties set forth in section 704.2B would only be

appropriate where a defendant is asserting justification under the new presumption

of reasonableness in one of the circumstances set forth in section 704.2A(1). He

observes the statutes were enacted together as part of the new “stand your

ground” legislation. He asserts the legislature, in broadening the acceptable use

of deadly force through section 704.2A, enacted section 704.2B to limit those new

provisions rather than limit the pre-existing law on self-defense. He also contends

applying it under the circumstances of his case would violate his Fifth Amendment

rights against self-incrimination. We need only address Martin’s Fifth Amendment

claim as it is dispositive.

       Our supreme court has recently held a jury instruction implementing section

704.2B and authorizing an inference of guilt in a murder case because the

defendant breached a legal duty to make a report “unconstitutionally penalizes the

defendant’s silence and is therefore improper to use in all cases.” State v. Gibbs,

941 N.W.2d 888, 901 (Iowa 2020). Here, the trial court submitted an improper jury

instruction not having the benefit of the Gibbs case. Consequently, reversal is

required unless error was harmless beyond a reasonable doubt. See id. at 900.

       In Gibbs, the court found error was harmless beyond a reasonable doubt

because “[t]he evidence of guilt was overwhelming”:
                                        14


      This was the rare murder case where the murder was captured on
      [law enforcement] video. The video shows Gibbs entering the scene
      and shooting at Wessels as Wessels is backing up, withdrawing, and
      disengaging. Other eyewitnesses corroborated the video. Even
      when Gibbs was confronted with the video’s existence, Gibbs
      repeatedly lied, denying he was the shooter. Gibbs also dissembled
      about his clothing and tried to lead the police astray by giving them
      a cell phone he had not been using for months.

Id. We cannot say the same here because there is not overwhelming evidence of

Martin’s guilt or that he did not act in self-defense. Consequently, we reverse and

remand for a new trial.2

      REVERSED AND REMANDED.




2We also observe the supreme court has recently held, “[A] defendant asserting
self-defense or justification may not prove the victim’s aggressive or violent
character by specific conduct of the victim unless the conduct was previously
known to the defendant.” Williams, 929 N.W.2d at 636.
