                   IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0544
                                  Filed July 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTONIO HUTCHINS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.



      Antonio Hutchins appeals his convictions for first-degree murder and

willful injury. AFFIRMED.



      Alfredo G. Parrish and Andrew J. Dunn of Parrish, Kruidenier, Dunn,

Boles, Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.



      Heard by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
                                                2


VAITHESWARAN, Judge.

           Antonio Hutchins shot two men in a grocery store parking lot; one of the

men died. Hutchins admitted to the shootings but claimed self-defense. A jury

found him guilty of first-degree murder and willful injury.1 On appeal, Hutchins

contends (I) the district court unreasonably limited his opening statement and (II)

the district court abused its discretion in excluding (A) evidence of the decedent’s

toxicology results and (B) evidence of a witness’ subsequent assault on Hutchins’

brother.

I.         Opening Statement

           The pertinent facts and proceedings relating to this issue are as follows.

Hutchins knew the person he shot and killed as a violent person who threatened

his family. According to Hutchins and his friend Lawrence Lewis, that person—

Cedrick Joe Matlock—threatened him with an assault rifle a week before the

shooting.

           Hutchins expressed his intent to rely on self-defense as justification for the

shooting. The State responded by filing a motion in limine seeking to exclude

“reputation or opinion evidence of . . . Matlock’s violent, quarrelsome or turbulent

character” and “prior specific instances of conduct by . . . Matlock.” Hutchins

resisted the motion on the ground that “an order from the court precluding

[introduction of this evidence] would be erroneous and significantly undermine

Hutchins’ constitutional right to present a defense.” Following a hearing, the

district court granted the motion, as follows:



1
     Hutchins also pled guilty to possession of a firearm as a felon.
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               The defense shall not make any reference to and shall not
       disclose to the jury any potential evidence concerning the
       deceased’s reputation or character trait for violence or any potential
       evidence concerning the violent, quarrelsome, dangerous or
       turbulent character of the deceased, including, but not limited to,
       evidence of specific instances of conduct to demonstrate character,
       until “the slightest” evidence has been produced to support the
       defendant’s theory of self-defense and until further offers of proof
       and objections have been made to the court prior to a definitive
       ruling on admissibility.

       Before opening statements, Hutchins’ attorney had an extensive

discussion with the court about the boundaries of the court’s ruling. Counsel

acknowledged he would be prohibited from mentioning “collateral evidence

[painting] Matlock as a bad guy” but said he planned to raise the assault rifle

incident “to show how [Hutchins] has a self-defense.”2          He continued, “The

evidence I’m talking about in my opening statement is clear and I don’t think falls

into the motion in limine, because Mr. Hutchins knew a week earlier that this guy

was after him and pulled a gun on him in this same parking lot.” The court

responded as follows:

               Specific instances of conduct, reputation evidence, opinion
       evidence as far as peacefulness—not peacefulness, or the
       opposite of, turbulence, violent character of the deceased, stay
       away from those more specific things . . . during your opening
       statement, because those are more problematic issues. But if you
       focus on just stating that your client has the self-defense defense
       that he is going to ask the jury to consider, and with the
       understanding that he is going to present the slightest degree of
       evidence in support of that defense that would be required, yes,
       you can place that issue in front of the jury during your opening. . . .
       But like I said, just don’t go into the other character, reputation,
       opinion, other specific instances that will be more problematic down
       the line.



2
 In light of this acknowledgement, we focus exclusively on the court’s prohibition on
mentioning the assault rifle incident.
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       Hutchins’ attorney gave an opening statement that made no mention of

the assault rifle incident. After concluding his statement, he asked to make a

supplemental statement about the incident on the ground the prosecutor

“open[ed] the door to it [by telling the jury] ‘you have to determine who started the

fight.’” The court agreed an additional statement might be an option following the

close of the State’s case but, after further discussion about pertinent precedent,

ruled as follows:

              I am not reconsidering that ruling. The parties will have the
       opportunity to fully present their case and their defense with
       evidence that’s relevant to those matters. We’ll address those
       through offers of proof when we get to the appropriate points.
       Obviously counsel will be given full opportunity to argue the matter
       on closing as well and to have the jury fully instructed on their
       theories of defense and of the case.

       Defense counsel sought a specific ruling on the assault rifle incident and

made a professional statement about the incident as follows:

              And my offer of proof would be we would present evidence
       that a week earlier Mr. Matlock assaulted Mr. Lewis and Mr.
       Hutchins in the parking lot with an assault weapon. He came after
       Mr. Hutchins; made threatening remarks towards him, such as he
       was going to kill him; and that Mr. Lewis used his efforts to try to
       diffuse the situation so they could escape. That would be my offer
       of proof, so the court would be clear on that.

The district court decided to immediately accept offers of proof from Hutchins and

Lewis. Based on those offers, the court concluded the threshold for discussing

the assault rifle incident had been satisfied. Nonetheless, the court declined to

allow the defense another opening statement, reasoning that the statements

were not evidence and the court would be faced with the prosecution’s “tit for tat”

request for a rebuttal opening statement. The court ruled, “We’re not going to do

any more openings. Let’s deal with the evidence as it is.” However, the court
                                         5


amended its ruling on the State’s motion in limine to permit trial testimony about

the assault rifle incident.

       Hutchins argues the court’s limitation of his opening statement amounted

to a violation of his constitutional right to present a defense.        In his view,

“Because opening statements are a critical stage of trial and essential to a

defendant’s presentation of his version of the facts and defense, this Court

should hold that the United States and Iowa Constitutions guaranteed Hutchins

the right to make an opening statement without unreasonable restrictions.”

       The State preliminarily counters that this issue was not preserved for our

review.   See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a

fundamental doctrine of appellate review that issues must ordinarily be both

raised and decided by the district court before we will decide them on appeal.”).

We disagree because, as noted, Hutchins raised the constitutional issue in his

resistance to the State’s motion in limine and the motion, resistance, and ruling

formed the basis of the court’s subsequent discussions about the scope of

opening statements. Accordingly, we conclude Hutchins’ constitutional challenge

to the limitation of opening statements was preserved for our review.

       The Iowa Supreme Court explained the constitutional right to present a

defense as follows:

              The right to present a defense stems from the Sixth
       Amendment right to a fair trial. . . . The right to offer the testimony
       of witnesses, and to compel their attendance, if necessary, is in
       plain terms the right to present a defense, the right to present the
       defendant’s version of the facts as well as the prosecution’s to the
       jury so it may decide where the truth lies. Just as an accused has
       the right to confront the prosecution’s witnesses for the purpose of
       challenging their testimony, he has the right to present his own
                                        6


      witnesses to establish a defense.       This right is a fundamental
      element of due process of law.

State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012). The district court’s limitation of

defense counsel’s opening statement did not implicate this right.

      Hutchins was allowed to call his own witnesses to testify about the facts

supporting his self-defense theory, including the assault rifle incident, and

defense counsel’s questions placed the incident in context. Although jurors did

not hear about this incident in opening statements, defense counsel apprised

them of Hutchins’ intent to rely on self-defense during pre-opening voir dire. In

closing arguments, jurors were again given the framework within which to

contextualize and analyze the incident.     Finally, the jury instructions included

detailed language about the defense. The Iowa Supreme Court has stated, “An

allegedly erroneous ruling . . . must go to the heart of the case in order to be

considered of such magnitude as to implicate the due process clause.” State v.

Traywick, 468 N.W.2d 452, 455 (Iowa 1991). The court’s limitation of defense

counsel’s opening statement did not meet this test.

      The real question is whether the district court abused its discretion in

denying Hutchins the opportunity to refer to the incident in the opening

statement. See State v. Veal, 564 N.W.2d 797, 803 (Iowa 1997) (“The scope of

opening statements lies within the discretion of the trial court; we review for

abuse of discretion.”), overruled on other grounds by State v. Hallum, 585

N.W.2d 249, 254 (Iowa 1998).        While evidence of a deceased’s character

generally is inadmissible, “the violent, quarrelsome, dangerous or turbulent

character of the deceased may be shown” where “the accused asserts he or she
                                          7

acted in self-defense and the slightest supporting evidence is introduced.” State

v. Jacoby, 260 N.W.2d 828, 837 (Iowa 1977). The evidence is admissible “[t]o

show the state of mind of the defendant, the degree and nature of his or her

apprehension of danger which might reasonably justify resort to more prompt and

violent measures of self-preservation.” Id.

       State v. Miller, 359 N.W.2d 508, 509-10 (Iowa Ct. App. 1984), is

instructive. There, we reversed the defendant’s murder conviction based on the

district court’s limitation of defense counsel’s opening statement. See Miller, 359

N.W.2d at 509-10. We concluded:

       [The] defendant should have been able to discuss prior violent acts
       of the victim. The record reflects that defendant fully intended to
       introduce such evidence at trial to show his state of mind at the
       time the crime was committed. Furthermore, the evidence was
       extremely relevant to the defendant’s claim of self-defense.

Id.

       As in Miller, Hutchins sought to introduce the assault rifle incident to

explain his state of mind when he shot Matlock a week later. And, as in Miller,

the district court disallowed any reference to prior violent acts of the victim.

Because Miller is virtually indistinguishable, we conclude the district court abused

its discretion in disallowing a reference to the assault rifle incident during opening

statements.

       This does not end our analysis. In Miller, the court acknowledged the

State’s harmless error argument but did not address it, choosing to reverse and

remand for new trial based on the violation alone. Id. at 510, 512. However, our

courts have since applied a harmless error analysis before deciding whether to

reverse, both in the constitutional and evidentiary context. See State v. Frei, 831
                                         8


N.W.2d 70, 81 (Iowa 2013) (concluding the prosecutor’s references in opening

statements to facts excluded by a ruling on a motion in limine “did not produce

such prejudice as would deny [the defendant] a fair trial”), overruled on other

grounds by Alcala v. Marriott Intern, Inc., 2016 WL 3201687, ___ N.W.2d ___,

___ (Iowa 2016)); Traywick, 468 N.W.2d at 454-55 (“When an alleged error is not

of constitutional magnitude, the test of prejudice [for harmless error purposes] is

whether it sufficiently appears that the rights of the complaining party have been

injuriously affected or that the party has suffered a miscarriage of justice.”).

Significantly, Hutchins and the State included harmless error analyses in their

briefs. We conclude a harmless error analysis is necessary and appropriate in

this context.

       As for the nature of the analysis, the State suggests we examine the

credibility of the self-defense testimony. In its view, “[p]resenting an opening

statement without character evidence did not result in unfair prejudice when

much of that evidence was fabricated and exaggerated.” It is not our role to

assess witness credibility. See State v. Laffey, 600 N.W.2d 57, 59 (Iowa 1999)

(“[I]t is for the jury to judge the credibility of the witnesses and weigh the

evidence.”). Accordingly, we decline to apply this prejudice test.

       Alternatively, the State argues against a finding of prejudice because

“strong evidence disproved the defendant’s claim of self-defense.” This test is

equally unsatisfactory because it does not address the defense argument that

the outcome might have been different had the defense had an opportunity to

present and contextualize its defense at the outset.
                                         9


      Finally, the State contends that it, too, was prejudiced because the

limitation applied equally to the prosecutor’s opening statement. This argument

ignores the State’s strong interest in excluding—rather than introducing—any

evidence of the assault rifle incident, as reflected in its motion in limine. The

State would have had no reason to bring up the assault rifle incident in its

opening statement.

      In sum, we are not persuaded that any of the State’s harmless error

arguments truly address whether Hutchins’ rights were injuriously affected by the

district court’s limitation of his attorney’s opening statement. See Traywick, 468

N.W.2d at 454-55. We are more persuaded by an analysis of a court in another

jurisdiction. See People v. Garrett, No. 4-13-0856, 2015 WL 8170277, at *5-6 (Ill.

App. Ct. Dec. 4, 2015). In Garrett, the court addressed whether the district court

abused its discretion in limiting defense counsel’s opening statement. See id.

The court elected to decide the issue on prejudice grounds.         See id. at *6.

Instead of examining the trial evidence and the strength of the State’s case, the

court looked at whether the jurors were aware of the defense despite the

limitation on opening statements. See id. The court found “the jury knew [from

the outset] it would be required to judge and question the truthfulness of” a State

witness and defense counsel informed the jury during opening, “[T]here’s . . . two

sides to every story at least.” Id. In addition, the court noted that jurors did not

have to wait long before the defense presented its case and, “[g]iven this short

time period, it is unlikely the jury would have been unable to weigh defendant’s

credibility against [the State witness] once it learned of defendant’s side to the

story.” Id. Finally, the court stated, “Although defendant was unable to raise the
                                        10


theory in his opening statement, he was able to introduce his theory through his

own testimony, in closing argument before the jury, and in jury instructions.” Id.

We find this prejudice analysis persuasive and we apply it here.

       As discussed earlier, Hutchins raised his defense with potential jurors

during voir dire, presented evidence of the assault rifle incident at trial, and

placed the incident in context both during trial and in closing argument. The

following portion of his attorney’s closing argument is enlightening:

       [W]e know that [Matlock] threated [Hutchins] before. . . . You
       consider the threat the week before. . . . [Y]ou also can consider
       the threat when you decide who was the aggressor. . . . [W]ho
       would you think would be the aggressor? Duh. Doesn’t take a
       whole lot to figure [out it] was Mr. Matlock. [Hutchins] was afraid of
       Matlock, and any reasonable person would have been afraid of
       him.

Later, counsel argued Hutchins “thought [Matlock] was reaching for a gun, this

man was known to carry a gun . . . and he does what any reasonable human

being who, even without this long history, would reach out to protect himself, and

that’s what he did.”

       The jury instructions further clarified Hutchins’ defense. One stated, “The

defendant claims he acted with justification.” Another explained a person “is

justified in using reasonable force if he reasonably believes the force is

necessary to defend himself from any imminent use of unlawful force.” A third

explained, “It is not necessary that there was actual danger, but the defendant

must have acted in an honest and sincere belief that the danger actually existed.”

And a fourth instruction stated, “If in the defendant’s mind the danger was actual,

real, imminent or unavoidable, even though it did not exist, that is sufficient if a

reasonable person would have seen it in the same light.”
                                         11


       On this record, we conclude Hutchins was not prejudiced by the district

court’s limitation of his opening statement. Accordingly, reversal is not required.

II.    Evidentiary Rulings

       Hutchins contends the district court abused its discretion in excluding (A)

evidence of Matlock’s toxicology results and (B) evidence of an assault of

Hutchins’ brother, Troy Sallis, after the shooting. Again, Hutchins challenges the

rulings on constitutional as well as evidentiary grounds.         The constitutional

ground was not preserved for our review. Accordingly, we will focus exclusively

on the evidentiary challenge, reviewing the district court’s rulings for an abuse of

discretion.      See State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014) (“The

district court’s rulings on the admissibility of evidence are reviewed for abuse of

discretion.”).

       Both rulings are governed by the evidentiary standard set forth in Iowa

Rule of Evidence 5.403. That rule states: “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.”

Iowa R. Evid. 5.403.

       A.        Evidence of Matlock’s Toxicology Results

       The State’s motion in limine sought to exclude “evidence as to the

presence of any intoxicating or controlled substances in Cedrick Matlock’s blood

at the time of his death.” Following a hearing, the district court ruled as follows:

              The defense shall not make any reference to and shall not
       disclose to the jury any potential evidence concerning the presence
       of alcohol or controlled substances in the deceased’s body until
                                         12


       further offers of proof and objections have been made to the court
       prior to a definitive ruling on admissibility for the reason that,
       generally, the deceased’s use of alcohol or illegal drugs is the type
       of irrelevant and highly prejudicial evidence that should be
       excluded.

       At trial, Hutchins made an offer of proof as to alcohol and drugs in

Matlock’s system and the potential effect of these substances on his behaviors.

The court ruled: “[T]he presence of alcohol and marijuana, marijuana

metabolites, in the deceased’s system is not admissible. It is more prejudicial

than probative.”

       Hutchins takes issue with the court’s ruling on the basis of State v. Collins,

32 Iowa 36, 38 (1871).      In that case, an “excessively intoxicated” man—“as

drunk as a man could be and stand up,”—“put his hand on the defendant’s

shoulder and turned him partly around, at which time the defendant sprang to his

feet, took hold of [the man] with his left hand . . . , and stabbed him with the large

blade of a common sized jack-knife.”          Collins, 32 Iowa at 38.      The court

concluded the district court should have admitted evidence of the man’s

quarrelsome nature when intoxicated. See id. at 39.

       The facts in Hutchins’ case are distinguishable. While there was evidence

Matlock’s ingestion of drugs the week before the shooting contributed to violence

that day, there was scant evidence of a similar nexus on the day of the shooting.

Given the marginal probative value of this evidence and the inflammatory nature

of the testimony, we conclude the court did not abuse its discretion in excluding

the evidence. See State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004) (“[W]e give

much leeway [to] trial judges who must fairly weigh probative value against

probable dangers.” (internal quotation marks and citation omitted)); see also,
                                       13

e.g., State v. Leslie, No. 12-1335, 2014 WL 70259, at *5-6 (Iowa Ct. App. Jan. 9,

2014) (affirming the exclusion of evidence offered by the defendant to support his

claim of self-defense, including evidence of the victim’s association with a group

that “had a reputation for being armed and violent”; the victim’s involvement with

drugs or drug sales to show “it was more likely he would be armed at the time of

his interaction with [the defendant]”; and the victim’s rap videos which

“mention[ed] guns” to show “his knowledge of guns” in part on the grounds that

the evidence “would not necessarily show [the victim] was armed and/or violent

at the time of his interaction with” the defendant and “the mere possession of

crack cocaine is not evidence of a violent character”); Holmes v. State, No. 96-

1527, 2001 WL 246429, at *2-3 (Iowa Ct. App. Mar. 14, 2001) (affirming the

exclusion of evidence that victim “was a drug dealer and was known to carry a

gun,” offered to support the defendant’s theory of self-defense, concluding the

evidence was “unduly prejudicial”); State v. Shearon, 449 N.W.2d 86, 88 (Iowa

Ct. App. 1989) (affirming the exclusion of testimony from a witness with regard to

“the violent conduct of the victim toward her on the night he was killed,” offered

by the defendant to support a claim of self-defense, because it “could have

influenced the jury to believe that the victim ‘got what he deserved’” and “would

have been substantially prejudicial and would have outweighed the probative

value of her testimony”).

      B.     Evidence of Subsequent Assault

      A man named Lee Sisk was with Matlock when he was shot and testified

that he saw Hutchins pull out a pistol and aim it at Matlock’s chest. At trial,

Hutchins made an offer of proof that Sisk assaulted his brother ten months after
                                          14


the shooting and apparently said, “This is for Joe Matlock.” In the offer of proof,

Sisk admitted he pled guilty to willful injury in connection with this assault.

       The district court excluded the challenged evidence, reasoning: “[U]nder

rule 5.403 that evidence of underlying circumstances, including who the victim

was in [the willful injury case], are irrelevant to matters in this case and that they

should be excluded on grounds of prejudice, confusion, or waste of time.” We

discern no abuse of discretion in this ruling. The evidence of Sisk’s assault on

Hutchins’ brother was at best only marginally relevant to Hutchins’ shooting of

Matlock and his friend. While it may have shown Sisk’s motive for revenge, it

added little to Hutchins’ theory that he shot Matlock because of Matlock’s threats

against him.     Additionally, the potential for confusion was high, given the

reference to a separate criminal matter. We affirm the exclusion of this evidence.

       Hutchins’ judgment and sentence are affirmed.

       AFFIRMED.
