              IN THE SUPREME COURT OF IOWA
                             No. 14–1239

                          Filed April 14, 2017

                        Amended April 17, 2017


STATE OF IOWA,

      Appellee,

vs.

JAMES ALON SHORTER,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Douglas F.

Staskal, Judge.



      The State seeks further review after the court of appeals reversed

the defendant’s conviction based on one of three alternative theories of

guilt lacking substantial evidence. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AFFIRMED.



      Jennifer J. Bonzer of Johnson & Bonzer, P.L.C., Fort Dodge, for

appellant.



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

Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt

and Stephanie Cox, Assistant County Attorneys, for appellee.
                                     2

APPEL, Justice.

      Richard Daughenbaugh died after he was assaulted by a group of

people on the banks of the Des Moines River in Des Moines.              Four

people—Kent Tyler, James Shorter, Yarvon Russell, and Leprese

Williams—were originally charged with murder in connection with

Daughenbaugh’s death. Tyler was tried separately from the others and

was convicted of second-degree murder for his role in punching

Daughenbaugh in the face prior to the group assault which caused

Daughenbaugh’s death.

      In State v. Tyler, we held the evidence in Tyler’s case did not

support the trial court’s instruction on joint criminal conduct.         873

N.W.2d 741, 753 (Iowa 2016). Because we could not determine whether

the jury convicted him under the tainted instruction or under the legally

supported theory that he acted as a principal or aider and abettor, we

reversed the conviction and remanded the case to the district court. Id.

at 753–54.

      In this case, as in Tyler, a jury convicted Shorter of second-degree

murder. On appeal, Shorter claimed that there was insufficient evidence

to support the jury’s verdict under any of the State’s theories. Shorter

also claimed that if there was insufficient evidence on the joint criminal

conduct theory but sufficient evidence as a principal or aider and

abettor, the conviction should be reversed under Tyler, 873 N.W.2d 741.

Shorter additionally claimed that his counsel provided ineffective

assistance by failing to object to the testimony of a witness that identified

Shorter when the minutes of testimony did not state that she would

make such an identification.     Shorter further asserted that once this

tainted evidence was admitted, his counsel should have moved for a

mistrial. Shorter also claimed that the district court erred when it and
                                     3

counsel discussed how to respond to questions posed by the jury when

Shorter was not present. Finally, Shorter claimed that his trial counsel

gave ineffective assistance for failure to request a stock jury instruction

on eyewitness identification.

      The court of appeals reversed Shorter’s conviction.      Relying on

Tyler, the court of appeals concluded that although there was sufficient

evidence to support the conviction on the ground that Shorter was a

principal in the murder or aided and abetted the murder, there was

insufficient evidence to support the joint criminal conduct instruction.

See 873 N.W.2d at 753.

      We granted further review. For the reasons expressed below, we

vacate the judgment of the court of appeals and affirm Shorter’s

conviction.

      I. Factual and Procedural Background.

      A. Evidence at Trial. The State offered evidence at Shorter’s trial

which showed that on the evening of August 24, 2013, a group of

teenagers and young adults began drinking and partying in a parking lot

at the intersection of Second and Center Street near the Wells Fargo

Arena and the Des Moines River.      Witnesses estimated the size of the

group was between thirty to fifty people.

      Daughenbaugh arrived at the location and parked in the parking

lot. He appeared drunk when he arrived. He approached the group and

began participating in drinking and dancing.

      A short time after Daughenbaugh arrived, Raymond Shorter, a

cousin of the defendant here, testified that Tyler struck Daughenbaugh,

declaring, “Don’t touch me” or “Don’t fucking touch me.” Daughenbaugh

fell to the ground. At the time of the assault, Monica Perkins was in a

parked car in the vicinity. Perkins testified that after Daughenbaugh fell
                                      4

to the ground, a group assembled around Daughenbaugh and jumped

and stomped on his face. Perkins exited her vehicle and attempted to

protect Daughenbaugh by lying across his body.

      When the group appeared to be about to attack Perkins, her

boyfriend, Isaiah Berry, attempted to intervene. He was assaulted by the

group and suffered minor injuries.         While the group was assaulting

Berry, Perkins was able to get off Daughenbaugh’s body and call 911.

Two young women wrestled the phone from Perkins and threw it toward

the river.   About two or three minutes after Perkins’s 911 phone call,

Des Moines police arrived at the scene.

      Perkins promptly took the police to Daughenbaugh.          He moved

slightly but did not answer questions.       Paramedics soon arrived and

Daughenbaugh was taken to a Des Moines hospital.            Daughenbaugh

died on the morning of August 25.           At trial, the medical examiner

testified that Daughenbaugh had multiple blunt force injuries to his head

and torso. The medical examiner testified the cause of death was tears

to the mesenteric artery—the artery that supplies blood to the large and

small intestines—which caused internal bleeding resulting in death.

      At trial, the fighting issue was whether Shorter was involved in the

assault. The State sought to prove Shorter was one of the participants in

the assault that led to Daughenbaugh’s death, while the defense, in

addition to attacking the State’s proof, sought to establish Shorter was in

the   vicinity   but   not   among   the   people   who   gathered   around

Daughenbaugh.

      The State called Perkins to support its case.           Perkins was

questioned at length about whether she could identify who was involved

in the assault on Daughenbaugh. Perkins testified that she remembered

identifying one person from an array of photos on the morning of
                                     5

August 25, but could not provide a description of the person she

identified. When asked by the prosecutor if she could now identify the

person she picked in the earlier photo lineup, she stated that she did not

remember. When pressed by the prosecutor, however, Perkins testified

that Shorter was one of the persons she saw stomp on Daughenbaugh.

On cross-examination, Perkins admitted that in an earlier deposition,

she was unable to identify any of the defendants as having been involved

in the assault on Daughenbaugh.

      B.B., who was seventeen in 2013, testified she saw Shorter in the

crowd that formed around Daughenbaugh.          B.B. testified that she left

when the crowd formed.      B.B. further testified Shorter contacted her

shortly after the night of the murder and asked B.B. to tell the police that

Shorter had been with B.B. at a pedestrian bridge some distance away

from the site of the assault on Daughenbaugh. On cross-examination,

B.B. admitted that she had given inconsistent answers in an earlier

deposition and that she had been drinking vodka continuously for about

three or four hours prior to the murder.

      L.S., who was fifteen at the time of the murder, testified she saw

Shorter kick Daughenbaugh.       She testified that after the assault on

Daughenbaugh began, she left the scene. Like B.B., L.S. too had been

drinking on the evening of the assault and was impeached by the defense

regarding inconsistent statements she made to the police and in a prior

deposition.

      T.T., another minor witness, claimed at trial to not remember

many of the events on the night of the murder. She did, however, testify

Shorter was not involved in the assault on Daughenbaugh.

      Detective Timothy Peak testified as a rebuttal witness for the State.

Peak testified that after police arrived at the scene, Shorter told him that
                                        6

he had gone up to Daughenbaugh and kicked him while he was on the

ground to check to see if Daughenbaugh was okay.

      The defense offered evidence that Shorter was not a participant in

the assault. Berry testified that he knew Shorter and that Shorter was

not in the crowd surrounding Daughenbaugh.                 Berry further testified

that he was positive that Shorter was not one of the people who

assaulted   Berry   after    his   girlfriend   had   tried    to   intervene   on

Daughenbaugh’s behalf.

      Raymond Shorter also testified at trial. He stated Shorter was near

the pedestrian bridge at the time the assault began and was not involved

in it. Similarly, Jontay Williams testified that Shorter was not involved

and that when the assault broke out, he was talking to a girl down the

hill near the water. Williams testified that when the fight broke out, he

called for Shorter and Russell and they immediately left in his car.

Finally, Nakeba Blair—a friend of Shorter and Russell—testified they

were not involved in the fight.

      B. Jury Instructions and Verdict. The district court instructed

the jury on first- and second-degree murder. On second-degree murder,

the jury was instructed that the defendant could be found guilty if the

jury found “the defendant, individually or through joint criminal conduct

or   through    aiding      and    abetting     another,     assaulted    Richard

Daughenbaugh,” Daughenbaugh died as a result of the assault, and

“[t]he defendant, individually or through joint criminal conduct or

someone he aided and abetted, acted with malice aforethought.”

      On joint criminal conduct, the jury was instructed that “[w]hen two

or more persons act together and knowingly commit a crime, each is

responsible for the other’s acts done in furtherance of the commission of

the crime.” Among the elements that the State had to prove in the case
                                     7

to show joint criminal conduct, the State had to show that “[w]hile

furthering the crime of assault, the other person or persons committed

the different crime of murder.”

      The jury returned a general verdict finding Shorter guilty of

second-degree murder. The district court denied Shorter’s motion for a

new trial and entered judgment. Shorter appealed.

      C. Issues Presented. On appeal, Shorter claims the evidence at

trial was insufficient to support his conviction as a principal, an aider

and abettor, or under a joint criminal conduct theory and the submission

of these theories to the jury was erroneous.      Shorter also claims trial

counsel provided ineffective assistance for failing to object and request a

mistrial when Perkins testified that she saw Shorter stomping on

Daughenbaugh when the minutes of testimony did not state that Perkins

would make an identification. Shorter further claims he is entitled to a

new trial because the district court and counsel discussed how to

respond to questions posed by the jury when Shorter was not present.

Finally, Shorter asserts his trial counsel gave ineffective assistance by

failing to request a stock jury instruction on eyewitness identification.

      II. Challenge to Verdict Based on Sufficiency of the Evidence.

      A. Standard of Review. Challenges to sufficiency of the evidence

are reviewed for correction of errors at law. State v. Hearn, 797 N.W.2d

577, 579 (Iowa 2011). We will affirm a trial court’s denial of a motion for

judgment of acquittal if the record contains substantial evidence

supporting the defendant’s conviction.     State v. McCullah, 787 N.W.2d

90, 93 (Iowa 2010).

      On a motion for a new trial, the district court uses a weight-of-the-

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

Reeves, 670 N.W.2d 199, 202 (Iowa 2003). This test is more searching
                                      8

than the sufficiency-of-the-evidence test, involves questions of credibility,

and requires the district court to determine whether more credible

evidence supports one side or the other. State v. Ary, 877 N.W.2d 686,

706 (Iowa 2016); Nitcher, 720 N.W.2d at 559. We have cautioned trial

courts, however, “to exercise this discretion carefully and sparingly”

because of the deference owed to the jury’s credibility determinations.

State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).        We review the trial

court’s ruling on a motion for a new trial for abuse of discretion. Nitcher,

720 N.W.2d at 559; Reeves, 670 N.W.2d at 202.

       B. Positions of the Parties.

       1. Sufficiency of the evidence as principal. Shorter first challenges

the sufficiency of the evidence as a principal.         Shorter begins by

attacking the eyewitness testimony of Perkins and L.S. He directs our

attention to State v. Henderson, 27 A.3d 872 (N.J. 2011). In Henderson,

the New Jersey Supreme Court canvassed the evolving scientific

literature related to eyewitness testimony that raised questions about its

reliability.   Id. at 896–910.   Because of the reliability issues, the New

Jersey Supreme Court imposed limitations on the admission of

eyewitness testimony in New Jersey courts under the due process clause

of the New Jersey Constitution. Id. at 928.

       Turning to the facts of this case, Shorter notes that Perkins was

unable to identify Shorter as one of the attackers at her pretrial

deposition. With respect to L.S., Shorter emphasizes that she admitted

she had been drinking vodka for three or four hours and was very

intoxicated at the time of the attack.     In contrast, Shorter notes that

Berry, Raymond Shorter, Blair, and T.T. all testified that Shorter was not

involved in the assault on Daughenbaugh.
                                     9

      Further, Shorter asserts there is no evidence that he directly

contributed to the death of Daughenbaugh.              Shorter notes that the

coroner testified that Daughenbaugh died as a result of internal bleeding

to the abdominal cavity caused by tears to the mesentery.             Shorter,

however,   points   out   that   Perkins   testified    Shorter   stomped   on

Daughenbaugh’s head.        The coroner testified that Daughenbaugh

suffered head injuries before the abdominal injuries and that the injuries

to the head did not directly contribute to Daughenbaugh’s death. There

is no evidence, according to Shorter, that he kicked Daughenbaugh in

the abdomen.     After Daughenbaugh fell to the ground, about fifteen

people started to kick and stomp him. There was no evidence, however,

that Shorter’s kick incapacitated him or led to his death.

      The State counters that under Iowa Code section 703.1 (2013), “All

persons concerned in the commission of a public offense, whether they

directly commit the act constituting the offense or aid and abet its

commission, shall be charged, tried and punished as principals.” Thus,

according to the State, there is no difference between liability as a

principal and liability as an aider or abettor.        See State v. Black, 282

N.W.2d 733, 735 (Iowa 1979).

      On the question of causation, the State asserts the convictions

may be sustained on a theory of aggregate causation. In support of its

argument, the State cites Paroline v. United States, 572 U.S. ___, 134

S. Ct. 1710 (2014). In Paroline, the Supreme Court noted “it would be

anomalous to turn away a person harmed by the combined acts of many

wrongdoers simply because none of those wrongdoers alone caused the

harm.” Id. at ___, 134 S. Ct. at 1724. Thus, according to the State, if the

evidence is sufficient to show that Shorter took part in the assault, the

State does not have to prove which kick delivered the fatal blow.
                                    10

      With respect to identity, the State agrees that it has the burden of

establishing that Shorter participated in the assault.    The State notes

that Perkins identified Shorter as an assailant in a pretrial photo lineup

as well as at trial.   Further, Shorter’s attempt to persuade B.B. to

concoct a story establishing an alibi and his admission to Detective Peak

that he kicked Daughenbaugh, if only to see if he was okay, provided

substantial evidence that Shorter was a participant in the assault. The

fact that Shorter admitted to Detective Peak that he was in the assault

area contradicted the testimony of other witnesses who claimed that

Shorter was not in the area.

      2. Sufficiency of the evidence on aiding and abetting.       On the

alternative theory of aiding and abetting, Shorter emphasizes that mere

nearness to, or presence, at the scene of the crime, without more, is not

aiding and abetting. See State v. Allen, 633 N.W.2d 752, 754–55 (Iowa

2001). Shorter argues that there is simply no evidence that he advised

or encouraged anyone to assault Daughenbaugh or cheered the attackers

on.   Shorter claims he was merely present at the scene and that is

insufficient to support a second-degree murder conviction on an aiding

and abetting theory.

      The State responds that the evidence goes well beyond establishing

Shorter’s mere presence at the crime scene. Perkins and L.S. testified

that Shorter participated in kicking Daughenbaugh. A reasonable jury

could believe that Shorter’s telling police that he kicked Daughenbaugh

“to see if he was okay” was simply an effort to deflect culpability for the

crime and was absurd on its face.        Once the State established that

Shorter participated in the assault, the elements of aiding and abetting

were established.
                                       11

      3. Sufficiency of the evidence on joint criminal conduct.           On the

theory of joint criminal conduct, Shorter asserts there was no showing

that he was acting in concert with others to cause the death of

Daughenbaugh.        Further, Shorter asserts there were not two crimes—

instead, everyone was assaulting Daughenbaugh at the same time. As a

result, Shorter argues the submission of the joint criminal conduct

instruction was erroneous.

      Shorter asserts the case is similar to State v. Smith, 739 N.W.2d

289 (Iowa 2007).      In Smith, we emphasized the need for two separate

crimes to support a joint criminal conduct instruction. Id. at 294. The

defendant must act in concert with another for the first crime, and a

different crime must then be committed by another participant in

furtherance of the original offense. Id.

      The State asserts that joint criminal conduct does not require an

explicit agreement, but only that the participants acted together.

Further,   the   State      suggests   each   kick   or   stomp     inflicted   on

Daughenbaugh constitutes a separate assault. See State v. Hohle, 510

N.W.2d 847, 849 (Iowa 1994). The State argues that there were, in fact,

two crimes—the crime of assault and the crime of murder. According to

the   State,   the   fact   that   Daughenbaugh’s     death   was     reasonably

foreseeable from the group assault is sufficient to satisfy the legal

requirement that the murder be “in furtherance” of the conspiracy. See

State v. Satern, 516 N.W.2d 839, 844 (Iowa 1994).

      4. Impact of unsupported instruction on general verdict.           Shorter

asserts that if any one of the theories of conduct fail, the remedy is a

remand of the case for a new trial. See State v. Hogrefe, 557 N.W.2d 871,

881 (Iowa 1996).       Shorter points out that when a general verdict is

returned, it is impossible to tell whether the jury based its verdict on a
                                           12

legally supported theory or upon a flawed theory. State v. Heemstra, 721

N.W.2d 549, 558–59 (Iowa 2006).

          The State responds by noting that to the extent the evidence did

not support a joint criminal conduct instruction, there is no reversible

error. The State recognizes the defendant’s argument that “if any one of

the theories of conduct fail, the remedy is to remand the case for a new

trial.”    But, the State suggests, the argument is only partially correct.

According to the State, reversal for an erroneous submission of a joint

criminal conduct instruction is not required unless there is an

opportunity for the jury to find the defendant guilty based on anything

other than the defendant’s own conduct as a principal or aider and

abettor of the crime charged.       State v. Jackson, 587 N.W.2d 764, 766

(Iowa 1998). In other words, if the verdict must have been based upon a

finding that Shorter was either acting as a principal or aider and abettor,

then the erroneous submission of the joint criminal conduct instruction

does not require reversal. See id.

          C. Discussion.

          1. Sufficiency of the evidence as a principal.       With respect to

Shorter’s attack on the sufficiency of the evidence for principal liability

based on causation, we begin by noting that B.B. testified Shorter was

part of the group forming around Daughenbaugh at the beginning of the

assault.      The evidence showed that once Daughenbaugh fell to the

ground, the assembled group, yelling and jeering, proceeded to stomp on

Daughenbaugh.           L.S.   testified    that   she   saw   Shorter   kicking

Daughenbaugh as part of the assault and that she left the scene

thereafter. Perkins also testified she saw Shorter kick Daughenbaugh as

part of the group assault.      Shorter himself admitted to Detective Peak

that he kicked Daughenbaugh “to see if he was okay,” thus establishing
                                    13

that he was at the scene of the crime and not elsewhere as testified by

defense witnesses. And, Shorter asked B.B. to concoct an alibi for him

shortly after the murder, implying guilt.

      There is thus substantial evidence in the record that Shorter was

present and that he did more than simply kick Daughenbaugh after his

death.    There is substantial evidence that Shorter was one of

Daughenbaugh’s attackers prior to his death as part of a group assault.

      In Tyler, we considered whether the evidence in that case

supported liability on a principal theory. 873 N.W.2d at 747. We noted

while there was substantial evidence that Tyler punched Daughenbaugh

in the face, knocking him to the ground, the autopsy revealed

Daughenbaugh’s death was not caused by blows to the head, but by

tears to the mesentery caused by blows to the abdomen. Id. at 745, 747.

The state maintained that the jury was entitled to infer that Tyler

remained at the scene and participated in the subsequent kicking and

stomping. Id. at 747.

      Although we accepted the state’s alternative causation argument,

we rejected the state’s argument based upon the state’s assertion that

Tyler participated in the kicking and stomping. Id. We emphasized in

Tyler that “[n]o witness testified that Tyler . . . was one of the persons

kicking or stomping on Daughenbaugh’s abdomen.”            Id. (emphasis

added).   We noted that the evidence showed there were a significant

number of persons in the group surrounding Daughenbaugh and “to

draw the inference that Tyler delivered one of the fatal blows requires

guesswork and speculation.” Id. It could be argued that under Tyler,

allowing a jury to draw the inference that Shorter delivered one of the

fatal blows to the abdomen requires guesswork and speculation.
                                       14

       Unlike in Tyler, however, in this case there is substantial evidence

that   Shorter     participated   in   the   kicking   and   stomping   when

Daughenbaugh was on the ground. It would be a misreading of Tyler to

require the State to present direct evidence that Shorter delivered a kick

to the abdomen which caused Daughenbaugh’s death in order to support

a second-degree murder conviction as a principal.            Although not all

blows delivered to Daughenbaugh were a cause of his death, this case

involves an aggregate group assault in which the State showing who

delivered which blow to a specific body part is not required. See People v.

Bailey, 549 N.W.2d 325, 334 (Mich. 1996) (stating in group assault

context that “it is not necessary that the party convicted of a crime be the

sole cause of that harm, only that he be a contributory cause that was a

substantial factor in producing the harm”); Umoja v. State, 965 S.W.2d 3,

9 (Tex. Ct. App. 1997) (per curiam) (holding, in context of a group assault

resulting in death of a homeless man, defendant’s conduct combined

with others together may be sufficient unless conduct of defendant

clearly insufficient), aff’d on reh’g; accord State v. Texieira, 944 A.2d 132,

142 (R.I. 2008).

       In Tyler, we concluded that there was sufficient causation ground

on an alternate theory of liability, namely, that Tyler’s actions were

sufficient to support liability as a principal because it was a factual

cause of foreseeable subsequent harm. 873 N.W.2d at 748.             Under a

similar theory, it is sufficient to show that Shorter participated in a

vicious group assault of a victim on the ground. A foreseeable result of

participating in the group kicking and stomping of a helpless person is

that the victim may receive blows to the body that cause death. See id.

at 749. Such causation is not so attenuated as to prevent imposition of

criminal liability. See State v. Garcia, 616 N.W.2d 594, 597 (Iowa 2000).
                                           15

       Shorter also challenges the strength of the State’s identity

evidence. While Shorter cites the New Jersey case of Henderson, no state

constitutional challenge is raised here regarding the evidence offered in

this case. See 27 A.3d at 915–18. The sole issue on appeal is whether

the State offered substantial evidence to support the identification of

Shorter as a participant in the crime.

       On the record before us, we conclude that the State has met its

burden of producing substantial evidence that Shorter participated in the

assault. While Shorter was able to impeach Perkins, B.B., and L.S., the

strength of the identity evidence of these witnesses is a question for the

jury. See State v. Jordan, 409 N.W.2d 184, 186 (Iowa 1987) (“[Q]uestions

of   witness    credibility[]   are   of   course   matters    reserved     for   jury

determination.”).      While it is true that Shorter offered testimony from

several witnesses that he was not at the scene, a jury was free to credit

the testimony of Detective Peak, who testified that Shorter told him that

he   had      kicked   Daughenbaugh         while   he   lay   prostrate,    thereby

demonstrating his presence at the scene of the crime.

       2. Substantial evidence as aider and abettor. We considered the

sufficiency of the evidence on a theory of aiding and abetting in Tyler,

873 N.W.2d at 750. In Tyler, we held there was sufficient evidence to

support the aiding and abetting theory. Id. at 751–52. We noted that

Tyler’s striking Daughenbaugh while a crowd formed was sufficient to

support a finding of encouragement of subsequent acts. Id. at 750–51.

We further noted that a jury could conclude that Tyler did not walk away

but remained with the crowd while Daughenbaugh was brutally beaten.

Id. at 751.

       To sustain a conviction on the theory of aiding and abetting,
       the record must contain substantial evidence the accused
       assented to or lent countenance and approval to the criminal
                                       16
         act either by active participation or by some manner
         encouraging it prior to or at the time of its commission.

State v. Spates, 779 N.W.2d 770, 780 (Iowa 2010) (quoting State v.
Tangie, 616 N.W.2d 564, 574 (Iowa 2000)).

         Here, the evidence of aiding and abetting is even stronger than in

Tyler.     The State’s evidence was that Shorter was present at the

beginning of the beating and participated in the subsequent kicking and

stomping of Daughenbaugh.           Such evidence is plainly sufficient to

support an aiding and abetting theory. See Spates, 779 N.W.2d at 780,

Tangie, 616 N.W.2d at 574.

         3. Substantial evidence to support joint criminal conduct instruction.

In Tyler, we considered the question of whether the evidence supported a

joint criminal conduct instruction. 873 N.W.2d at 752. In Tyler, unlike

here, the evidence only showed that the defendant had initially punched

Daughenbaugh in the face, causing him to fall to the ground, but did not

establish Tyler acted in concert with others or participated in the

subsequent group assault. Id. On the facts of Tyler, we concluded that

there was insufficient evidence to support an instruction based upon

joint criminal conduct. Id. at 753. We further concluded that the error

required reversal of Tyler’s conviction. Id. at 754.

         Although the fact pattern is different in this case, we conclude that

the teaching of Tyler with respect to the sufficiency of the evidence to

support a joint criminal conduct instruction is fully applicable here. In

Tyler, we emphasized that joint criminal conduct requires two acts—

namely, a crime in which the joint actor knowingly participated and a

subsequent crime that is unplanned but reasonably foreseeable in

furtherance of the first crime. Id. at 752; see also State v. Rodriguez, 804

N.W.2d 844, 852 (Iowa 2011); Satern, 516 N.W.2d at 843. The first or
                                     17

predicate crime in joint criminal conduct must be conducted in concert

with another. Tyler, 873 N.W.2d at 752. The second crime under joint

criminal conduct must then be in furtherance of the first crime. Id.

      Here, it might be arguable that Tyler’s initial assault was a

separate crime from the group assault.        But there is no substantial

evidence that Shorter acted in concert with Tyler when Tyler first struck

Daughenbaugh.     Shorter contends that the subsequent group beating,

although it involved multiple assailants, cannot be regarded as multiple

crimes under our unit of prosecution cases. See, e.g., State v. Love, 858

N.W.2d 721, 724 (Iowa 2015); State v. Ross, 845 N.W.2d 692, 704–05

(Iowa 2014); State v. Velez, 829 N.W.2d 572, 579–84 (Iowa 2013). We

need not decide the issue, however, because, as explained below, even if

the joint criminal conduct instruction was erroneously given, reversal is

not required under the facts of this case.

      We begin our analysis of the impact of the joint criminal conduct

instruction with discussion of Tyler. In Tyler, we held that in the context

of that case, the submission of the faulty instruction required reversal.

873 N.W.2d at 754. We noted that the general rule in Iowa—contrary to

that announced by the United States Supreme Court in Griffin v. United

States, 502 U.S. 46, 60, 112 S. Ct. 466, 474 (1991)—has been where one

theory of liability is flawed because of insubstantial evidence to support it

in a multitheory case because of insubstantial evidence, a general verdict

must be reversed because we have no way of determining which theory

the jury accepted. Tyler, 873 N.W.2d at 754; see, e.g., State v. Lathrop,

781 N.W.2d 288, 297 (Iowa 2010); Heemstra, 721 N.W.2d at 558–59;

State v. Tejeda, 677 N.W.2d 744, 754–55 (Iowa 2004); Hogrefe, 557

N.W.2d at 881; State v. Pilcher, 242 N.W.2d 348, 354–56 (Iowa 1976);

State v. Mays, 204 N.W.2d 862, 865 (Iowa 1973).
                                    18

      In these cases, we have emphasized that reversal is required

because there was no way in which we could determine whether the

jury’s verdict was based upon the flawed jury instruction. See State v.

Thorndike, 860 N.W.2d 316, 321 (Iowa 2015). In Tyler, we reaffirmed our

well-established approach and required a retrial when a flawed

submission of a joint criminal conduct instruction may have tainted the

jury verdict. 873 N.W.2d at 754. We again reject the State’s invitation to

disturb our long line of cases generally refusing to adopt the Griffin

approach.

      Yet, this case is in a different posture than in Tyler. In Tyler, there

were arguably two crimes—namely, Tyler’s initial hitting Daughenbaugh

in the face and then the subsequent group beating. Id. at 752. Thus, it

was possible that the jury convicted Tyler based on a belief that the first

assault was the predicate crime and that the subsequent group beating

was in furtherance of the original crime.       Id. at 754.   Thus, it was

possible in Tyler that the jury did not believe that Tyler was guilty of

second-degree murder as a principal or as an aider and abettor, but

instead concluded that liability for murder arose only out of joint

criminal conduct. Id.

      The State suggests that this case is different from Tyler because in

this case there was only one crime, namely, the joint group assault of

Daughenbaugh. The key case is Jackson, 587 N.W.2d 764. In Jackson,

the evidence showed that the defendant was hired by a woman to kill the

woman’s ex-boyfriend. Id. at 765. Jackson and the woman stopped the

ex-boyfriend’s vehicle and then Jackson shot and killed the ex-boyfriend.

Id. The jury was instructed on theories of liability as a principal and on

joint criminal conduct, but not aiding and abetting.       Id. at 766.   We

concluded that Jackson must have been found guilty either on his own
                                      19

conduct or as an aider and abettor, and thus it was not a reversible error

for the district court to have instructed the jury on joint criminal conduct

instead of aiding and abetting. Id.

      In Smith, we repeated the principle that a flawed joint criminal

conduct instruction does not require reversal “as long as there is no

opportunity for the defendant to be found guilty based on anything other

than the defendant’s own conduct as a principal or aider and abettor of

the crime charged.” 739 N.W.2d at 294. In Smith, however, there were

other collateral crimes—stolen guns, first-degree theft, and possession of

methamphetamines—that could have supported a conviction on joint

criminal conduct. Id. at 291, 294–95.

      Here, however, for Shorter there are no predicate nonhomicide

crimes that could have served as a basis for vicarious liability for

subsequent crimes in furtherance of the original crime. The only crime

of Shorter’s that could possibly support a joint criminal conduct theory

for second-degree murder is participation in the group assault on

Daughenbaugh prior to his death. If the jury found Shorter participated

in the group assault on Daughenbaugh, however, he would also

necessarily be guilty of second-degree murder based on liability as a

principal or under an aiding and abetting theory.      As a result, in this

limited situation, Jackson applies and a retrial is not required. See 587

N.W.2d at 766.

     III. Testimony of Perkins Outside the Scope of the Minutes of
Testimony.

      A. Introduction. Iowa Rule of Criminal Procedure 2.5(3) states,

      Witness names and minutes. The prosecuting attorney shall,
      at the time of filing such information, also file the minutes of
      evidence of the witnesses which shall consist of a notice in
      writing stating the name and occupation of each witness
      upon whose expected testimony the information is based,
                                      20
      and a full and fair statement of the witness’ expected
      testimony.

      In this case, the minutes of testimony did not state that Perkins
would identify Shorter as one of the assailants.                The minutes simply

stated that Perkins witnessed the assault and saw “ten to fifteen

individuals hit, kick and stomp on Mr. Daughenbaugh.”                  The minutes

stated that Perkins “would testify to all of these matters in detail.”

      A pretrial deposition was taken of Perkins. Perkins testified at her

deposition that she was too busy trying to save Daughenbaugh’s life and

not paying attention to who was doing the beating or stomping to make

an identification.

      At trial, however, Perkins, after repeated questioning by the

prosecution,   identified   Shorter    as        a    person     who    jumped   on

Daughenbaugh’s face:

           Q: So you identified someone for the police from a
      photograph; is that right? A: Yes, ma’am.

           Q: That was involved             in       stomping    on    Richard
      Daughenbaugh? A. Yes.

             Q: And today you can’t recall who that person is?
      A: I just—I don’t know if because I want to block it out of my
      mind. I don’t know. I have a lot of things on my mind right
      now. So I am just kind of —

            Q: All right. And you’re also required to answer
      truthfully. So I need you to tell the truth, if you remember
      who this person is that you identified or not. A: Yeah. I
      remember that one over there in the checkered shirt.

             ....

            Q: If you’re telling me that you recognize one of the
      people in the court room today as being involved in stomping
      on Richard Daughenbaugh, yes, I would like for you to
      describe for me where he’s sitting and what he’s wearing.

At this point, Perkins identified James Shorter.
                                      21

      Perkins   also    identified   Yarvon   Russell   as   “stomping”   on

Daughenbaugh.     She conceded that she could not identify all of the

people assaulting Daughenbaugh because “they were taking turns

jumping up in the air and stomping on him.”

      On cross-examination, Shorter confronted Perkins with her

deposition testimony:

            Q: Ma’am, I’ve shown you a deposition transcript. Do
      you recall saying this? A: Yeah, I do.

            Q: What did you say at the time? A: That I was too
      busy trying to save that man to remember if it was him.

            Q: And that you weren’t paying attention to who was
      actually doing the beating or stomping? A: Yes.

            Q: And at that time you weren’t able to say who that
      person was or make any identification; is that right? A: No,
      I wasn’t.

      Shorter did not object to Perkins’s identification testimony at trial.

Shorter filed a motion for a new trial, however, based on newly

discovered evidence related to Perkins’s eyewitness testimony.       In the

posttrial hearing on the motion for a new trial, Shorter called DeMarco

Turner as a witness. Turner testified that sometime in May, apparently

during Shorter’s trial, he ran into Perkins at the courthouse. According

to Turner, Perkins told him she was testifying in a murder case “trying to

get probation” or “to get probation.” Turner thought the charges against

Perkins involved drug charges and driving while barred.

      The day of the conversation with Perkins, Turner himself received a

sentence and was incarcerated in the same cell pod as Shorter in the

Polk County jail. Turner testified he told Shorter about the conversation

he had had with Perkins at that time.

      In response, the State emphasized that Perkins did not have a deal

to testify and that Turner did not testify that she did. The State further
                                         22

argued that there was no suggestion that Perkins did not testify

truthfully at trial.

      The district court denied the motion for a new trial based upon

Turner’s testimony. The district court noted that Turner conversed with

Shorter on the very same day as the conversation with Perkins and thus

the defense should have discovered the information with due diligence.

The district court also stated that it did not believe the testimony would

have changed the result of the trial.

      B. Standard of Review. The claim that Shorter’s counsel should

have objected to Perkins’s identification testimony comes to us in the

context of ineffective assistance of counsel.         The parties agree that in

ineffective-assistance-of-counsel cases, the defendant must show both

that counsel breached a duty to the defendant and the defendant was

prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984).

      C. Positions of Parties. Shorter claims that Perkins’s testimony

was a complete surprise to the defense.              According to Shorter, the

defense expected Perkins to testify about the context of the fight, not that

Shorter participated in the crime.            According to Shorter, the pretrial

deposition of Perkins was not harmful to Shorter. Instead, according to

Shorter, Perkins became “a star witness” at trial.

      Shorter     asserts   that   his   trial    counsel   provided   ineffective

assistance of counsel by failing to object to Perkins’s identification

testimony as outside the scope of the minutes in violation of Iowa Rule of

Criminal Procedure 2.5(3).         He further asserts that counsel was

ineffective for failing to seek a mistrial as a result of the unexpected

testimony.
                                    23

      Shorter claims prejudice because he could have cross-examined

Perkins more effectively if he had notice of her testimony. Shorter claims

that even a cursory review of her criminal record would have reflected

that at the time of her testimony, she had pending charges for driving

while barred.

      Shorter further cites the posttrial testimony of Turner.      Shorter

points out that Perkins’s pending charges were dismissed two weeks

after the trial. Even if there was no deal with Perkins related to her trial

testimony, Shorter argues that he could have argued that the reason she

changed her testimony was “to save her own skin.”

      Shorter further asserts that with more notice, Shorter could have

successfully challenged the reliability of Perkins’s testimony and

prevented admission. According to Shorter, Perkins’s identification was

unreliable and was simply based on her repeatedly seeing Shorter in the

criminal proceedings.

      The State responds that the minutes provided Shorter with

adequate notice.    According to the State, Shorter knew that Perkins

would testify about what she observed during the attack and her in-court

identification was “consistent with the overall nature of the minutes.”

State v. Ellis, 350 N.W.2d 178, 182 (Iowa 1984).

      The State further claims that Shorter failed to demonstrate

prejudice. The State claims that the minutes put Shorter on notice of the

necessity of further investigation of the witness’s probable testimony.

See State v. Musso, 398 N.W.2d 866, 868 (Iowa 1987). Further, the State

argues that Perkins’s in-court identification was cumulative of the

testimony of Detective Garcia that Perkins had circled a photo of Shorter

and identified him as one of Daughenbaugh’s assailants, the testimony of

L.S. that she saw Shorter kick Daughenbaugh, and the testimony of B.B.
                                    24

that Shorter was part of the crowd that surrounded Daughenbaugh when

he was being beaten.

      D. Iowa Caselaw Regarding Pretrial Disclosure in Criminal

Cases. In Iowa, the question of the degree to which the prosecution is

required to disclose to the defendant the facts underlying a prosecution

has been controversial in our courts since the beginning of statehood.

For example, in State v. Bowers, the court considered whether a witness

could testify in a criminal trial beyond the scope of the minutes of the

witness’s testimony before the grand jury. 17 Iowa 46, 50 (1864). Chief

Justice Wright noted that he was “instructed” to announce the majority

view that the requirement that a defendant be presented with minutes of

testimony of a witness before the grand jury did not require the

prosecution to “exclude anything else he may know or recollect on the

subject” in a subsequent prosecution. Id. Chief Justice Wright, however,

indicated that the very object of providing minutes testimony to be

returned with an indictment would be practically defeated by the

majority’s approach. Id. at 51.

      The divergence of approach to disclosure obligations of the

prosecution in Bowers resurfaced in State v. Miller, 259 Iowa 188, 142

N.W.2d 394 (1966).     In Miller, the court considered disclosure under

section 780.10 of the Iowa Code which required that notice be given of

“the substance of what he [the prosecutor] expects to prove by him [the

witness] on the trial.” Miller, 259 Iowa at 195–96, 142 N.W.2d at 399

(quoting Iowa Code § 780.10 (1962)). The minutes of testimony indicated

that a Detective Petersen was to testify regarding admissions made by

the defendant. Miller, 259 Iowa at 195, 142 N.W.2d at 399. Petersen’s

testimony, however, was suppressed by the trial court. Id. At trial, the

state offered testimony from Detective Iversen. Id.
                                   25

      A five-member majority of the court held that the minutes were

adequate. Id. at 196, 142 N.W.2d at 399. The majority emphasized that

the defense knew the admissions were made to two police officers and

also knew the general nature of the claimed admissions. Id. at 196, 142

N.W.2d at 399.    The majority emphasized that although the minutes

were brief, mere brevity does not prevent a witness from testifying. Id.

The majority further noted that the state is not limited to the minutes or

notice in its examination of witnesses. Id.; see also State v. Thom, 236

Iowa 129, 131, 17 N.W.2d 96, 97 (1945); State v. Harding, 204 Iowa

1135, 1150, 216 N.W. 642, 649 (1927).

      Justice Becker, for himself and three other justices, dissented.

Miller, 259 Iowa at 199, 142 N.W.2d at 401 (Becker, J., dissenting). The

dissent emphasized that Detective Iverson testified with respect to two

separate sets of admissions by the defendant. Id. at 200, 142 N.W.2d at

402. According to the dissent, one set of admissions was fully disclosed

in the minutes, but the other set was not disclosed.      Id.   The dissent

noted that the prosecution “strongly relied” upon the fact that the

defendant gave two versions of the story in urging the sufficiency of the

evidence to sustain the conviction.     Id.   The dissent emphasized that

“[n]o hint of this deviation” in the defendant’s admissions was contained

in the minutes. Id. at 200–01, 142 N.W.2d at 402. The dissent regarded

the court’s casual approach to the statutes as amounting to “judicial

repeal of a legislative enactment.” Id. at 204, 142 N.W.2d at 404.

      We next considered a challenge to testimony as outside the

minutes in State v. Salter, 162 N.W.2d 427 (Iowa 1968). In Salter, the

original minutes indicated that the victim would testify that the

defendant had assaulted her with intent to commit rape, but at trial, the

victim testified that the “rape had been accomplished.” Id. at 431. The
                                    26

state, however, filed a notice of additional testimony indicating that the

defendant “did commit rape.” Id.

       Over the dissent of Justice Becker and one other justice, the Salter

majority found no infirmity.    Id. at 431–32.       The majority emphasized

that a witness is not limited to the minutes in his actual testimony. Id.

at 431. The court noted, however, that by filing the minutes of additional

testimony, the state followed “the safer, better, and fairer practice” since

the court had been far from unanimous in its prior cases on the subject.

Id.

       Although Justice Becker had been a dissenter in Miller and Salter,

he relented in State v. Cunha, 193 N.W.2d 106, 108 (Iowa 1971).           In

Cunha, a defendant charged with murder and aggravated robbery

challenged the testimony of a witness who identified the defendant as

one of four men who committed one of the robberies in question. Id. at

110. The minutes revealed that the witness would “describe the subjects

she saw involved in the robbery” and would testify that “after the robbery

she was able to identify the defendant Thomas Hinsey from a group of

photographs of possible suspects.”       Id.     At trial, the witness also

identified Cunha as one of the robbers.        Id.    The defendant claimed

surprise.   Id.   The Cunha court rejected the defense challenge to the

testimony with the brief observation that a witness identified in the

minutes was not limited to the minutes in subsequent testimony. Id. at

111.

       If our law was frozen in place in 1971, Cunha would be substantial

authority supporting the position of the State in this case. But the law

has evolved. That evolution is reflected in State v. Walker, 281 N.W.2d

612 (1979).
                                    27

      In Walker, the minutes of testimony indicated that a witness would

testify regarding seeing the defendant in the rear of a motor supply

company with another person looking at tires which were later stolen

from the building.   Id. at 614.   At trial, however, the witness testified

regarding business records and the lack of a receipt for the sale of tires.

Id. We held that the testimony of the witness was beyond the scope of

the minutes and reversed the defendant’s conviction for third-degree

theft. Id. at 615.

      We began our opinion in Walker by considering whether the

adoption of Iowa Rules of Criminal Procedure in 1978, in particular rules

4(6)(a) and 5(3)—the predecessor to rule 2.5(3)—worked a substantive

change from the previous statutory requirement of Iowa law related to

disclosure of minutes of testimony. Id. at 613. We concluded there was

a substantial change in law. Id. We noted that the question of the scope

of disclosure in minutes had been “hotly contested” throughout the years

by defense counsel and “frequently the subject of criticism by members

of this court.” Id. We cited the holding in Cunha that a witness is “not

limited to those minutes in his actual testimony.” Id. (quoting Cunha,

193 N.W.2d at 111).       We noted that “[t]his rule has been severely

criticized, both from within and without the court.” Id.; see Miller, 259

Iowa at 199, 142 N.W.2d at 401.

      We noted it was in this setting that the language of rule 5(3) was

adopted. Walker, 281 N.W.2d at 613. We concluded that the purpose of

the changes was “to assure minutes which would eliminate most claims

of foul play and would provide meaningful minutes from which a defense

could be prepared.” Id.

      We then considered whether the witness’s testimony regarding

business records was sufficiently noticed in the minutes. Id. at 614. We
                                   28

explained that minutes need not detail “each circumstance of the

testimony,” but must be sufficient to fully and fairly “alert defendant

generally to the source and nature of the evidence against him.” Id. We

noted that even the state conceded that it did not know about the

business records until trial was underway. Id. The minutes did little

more than identify the witness and state the conclusion that the tires in

question were stolen. Id. We stated, “Under the new rules defendant is

entitled to more.” Id. We held that the new evidence should have been

excluded on the ground that it was outside the scope of the minutes. Id.

at 615.

      Since Walker, we have considered a number of cases involving rule

5(3) with mixed results. In State v. Olsen, we reversed a conviction where

the minutes revealed that a peace officer would testify regarding evidence

obtained from a vehicle, tagged packages, and receipt of a BCI criminalist

report, but did not disclose that the police officer was a DCI agent with

training and expertise in drug investigations. 293 N.W.2d 216, 220–21

(Iowa 1980). In Musso, 398 N.W.2d at 868, and State v. Waterbury, 307

N.W.2d 45, 51 (Iowa 1981), we found that testimony exceeded the scope

of the minutes but held that there was no reversible error because the

defendant was not surprised by the testimony. In several other cases, we

found that the minutes of testimony were sufficient to provide notice of

testimony offered at trial. Ellis, 350 N.W.2d at 182; State v. Lord, 341

N.W.2d 741, 743 (Iowa 1983); State v. Ristau, 340 N.W.2d 273, 275 (Iowa

1983).

      In sum, the question of the scope of proper disclosure by the

prosecution of minutes of evidence prior to trial has been hotly

contested. As indicated in Walker, caselaw prior to 1978 is undermined

by the advent of Iowa Rule of Criminal Procedure 5(3), now rule 2.5(3),
                                    29

which amounted to a substantive change in law designed to promote

greater disclosure.   281 N.W.2d at 613.       Notwithstanding the more

stringent requirements of Iowa Rule of Criminal Procedure 2.5(3), there is

no requirement that the minutes of testimony provide a complete

catalogue of witness testimony at trial, but only that the defense be

placed on fair notice and not subject to surprise testimony.

      E. Development in the Law of Eyewitness Identification. This

case, of course, involves the lack of disclosure in minutes that Perkins

would identify Shorter as one of Daughenbaugh’s attackers.              The

reliability of eyewitness testimony has been the subject of intense

commentary in academia and in the courts.        According to one article,

“eyewitness misidentification is by far the most frequent cause of

erroneous convictions.” Samuel R. Gross, Loss of Innocence: Eyewitness

Identification and Proof of Guilt, 16 J. Legal Stud. 395, 396 (1987). Yet,

juries often attach great weight to eyewitness identification without

consideration of reliability. See State v. Hunt, 69 P.3d 571, 576–77 (Kan.

2003) (noting that juries “usually attach great weight to eyewitness

identification, while others involved in a trial know and other disciplines

have documented that such identification is often unreliable”).

      Preparing for eyewitness identification is an essential responsibility

of defense counsel. Eyewitness testimony may have a dramatic influence

on overall defense strategy or theory of the case. Defense counsel must

consider a pretrial motion to suppress. Voir dire may be used to educate

the jury about honestly mistaken witnesses. Defense counsel must be

prepared to explore the potential for error in the identification process

through effective cross-examination. Cross-examination, however, is not

likely to be effective when a person is genuinely mistaken about past

events.   Consideration should be given to obtaining expert witness
                                    30

testimony of the problems with eyewitness identification.      See State v.

Schutz, 579 N.W.2d 317, 319 (Iowa 1998) (holding admission of expert

witness on eyewitness identification within sound discretion of the

court); see also People v. McDonald, 690 P.2d 709, 725–26 (Cal. 1984) (en

banc) (holding exclusion of expert on reliability of eyewitness testimony

was an abuse of discretion), overruled on other grounds by People v.

Mendoza, 4 P.3d 265, 286 (Cal. 2000). Special instructions for the jury

may need to be considered. Summations must be designed to deal with

the eyewitness identification.

      Many of the most troublesome cases involve identification of

strangers. Careful consideration by counsel of eyewitness identifications

extends to identifications of persons known to the witness and not

simply to identification of strangers. James E. Coleman Jr., et al., Don’t I

Know You? The Effect of Prior Acquaintance/Familiarity on Witness

Identification, 36-Apr. Champion 52, 53–54 (April 2012). Without timely

disclosure of eyewitness identification, defense counsel’s ability to mount

an effective defense may be substantially impaired.

      F. Discussion. In light of the developments in our caselaw and

the importance of eyewitness identification in a criminal trial, we

conclude that under Iowa Rule of Criminal Procedure 2.5(3), the minutes

of testimony must disclose eyewitness testimony. Eyewitness testimony

is a central part of trial and cannot be confronted by defense counsel on

the fly. Although the prerule 2.5(3) case of Cunha is to the contrary, we

think it clear that under the more demanding approach adopted by

Walker, eyewitness identification must be disclosed by the prosecution.

      Yet, this general rule does not necessarily entitle Shorter to relief.

This case has its peculiarities. While there is nothing in the minutes to

indicate that Perkins would identify Shorter as one of the persons kicking
                                    31

Daughenbaugh during the assault, the defense was on notice that

Perkins was at the scene and would testify about the events leading to

Daughenbaugh’s death. As a result, the defendants took the deposition

of Perkins and defense counsel asked Perkins point-blank if she could

identify Shorter. She did not make the identification at her deposition.

      Ordinarily, we think it incumbent upon the State to disclose in the

minutes of testimony if a witness will identify a defendant as engaging in

criminal conduct. The record here, however, does not establish that the

State knew, in advance of trial, that Perkins would identify Shorter when

she took the stand. While at trial the prosecution pressed Perkins and

successfully got her to identify Shorter, Shorter has not established that

the prosecution had prior knowledge that such testimony would be

forthcoming.

      In addition, it is not entirely clear what Shorter’s trial counsel

knew. Counsel for both Shorter and Russell were able to cross-examine

Perkins by confronting her with her testimony in her deposition

indicating that she could not specifically identify the perpetrators. It is

possible that although the minutes of testimony did not specifically

mention that Perkins would identify Shorter, they were nonetheless

prepared for the eventuality that she would make an in-court

identification and made appropriate strategic decisions.        Under our

caselaw, a defendant is not entitled to relief due to defective minutes

under rule 2.5(3) when the defense is not surprised by the subsequent

testimony.     Further, Shorter’s counsel may have made the strategic

decision that the trial was going well enough to take a pass on a motion

for a mistrial.

      Additionally, we do not have a clear picture regarding prejudice to

the defendant. While this case is on direct appeal, the failure to object to
                                    32

the eyewitness testimony and the failure to seek a mistrial is presented

to us as an ineffective-assistance-of-counsel claim. Even if a breach of

counsel’s duty is present, Shorter acknowledges that he must show

prejudice under Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.      The

record concerning potential prejudice has not been fully developed.

      Because of the factual uncertainties surrounding the claimed

ineffective assistance of counsel arising out of the deficient minutes, we

conclude that this claim cannot be resolved on direct appeal and should

be addressed in an action for postconviction relief.

     IV. Discussion of a Jury Question Outside the Presence of
Defendant.

      A. Introduction.     A criminal defendant has the right to be

personally present at every stage of the trial. State v. Wise, 472 N.W.2d

278, 279 (Iowa 1991) (per curiam). Further, under Iowa Rule of Criminal

Procedure 2.19(5), if the jury desires to be informed on any point of law

arising from the case after it has retired, the court must conduct

proceedings “in the presence of defendant and counsel for the defense

and prosecution, unless such presence is waived.”        Iowa R. Crim. P.

2.19(5)(g).

      Under our caselaw, there is no discretion regarding the presence of

defendant and counsel.     State v. Griffin, 323 N.W.2d 198, 201 (Iowa

1982).    When the rule is violated, a presumption of prejudice is

presumed unless the record shows to the contrary. Id.

      In this case, after the case was submitted to the jury, the jury

asked a question.    Specifically, the jury asked, “Judge Staskal, if we

determine a level of guilt, example second degree murder, does it have to

include all lesser charges to be convicted of that charge?”
                                      33

      Judge Staskal and the lawyers all agreed to respond to the jury by

simply asking it to “reread the instructions.    They contain all of the

applicable law in the case.”    Shorter was not present when the jury’s

question was discussed.

      B. Standard of Review. This question is presented in the context

of ineffective assistance of counsel and the parties thus agree that the

two-pronged approach in Strickland is applicable. 466 U.S. at 687, 104

S. Ct. at 2064.

      C. Positions of the Parties.         Shorter maintains that the

defendant’s presence at such proceedings is “of greatest importance[] as

he may be able to suggest to the court or counsel some information” and

might be able to “except” to the ruling of the court.    See Griffin, 323

N.W.2d at 201 (quoting State v. Snyder, 223 N.W.2d 217, 221 (Iowa

1974)).   According to Shorter, the question posed by the jury “raised

serious questions” concerning the effect of the jury’s confusion over the

meaning of crucial terms in the instructions. Id. Shorter argues that

prejudice is inherent as it is difficult to know what exactly the jury was

even talking about in the question.

      The State responds that it would have been a “logistical nightmare”

to get three codefendants to court on short notice as the jury question

came in at 3:40 p.m., and shifts were changing, and people would be

getting off work at 4:30 p.m.

      The State further argues that even if there was a breach, there was

no prejudice. The State notes the presumption of prejudice arises only

when both the defendant and counsel are absent.          Id. at 199–201.

Further, the State contends there cannot possibly be prejudice when the

judge’s response to the question was “reread the instructions.”
                                     34

      D. Discussion. At the outset, we reject the State’s argument that

the practical considerations raised provide a defense to Iowa Rule of

Criminal Procedure 2.19(5)(g). Our rules of criminal procedure are not

applicable only when convenient to the State. We decline to approach

our rules as only suggestions, guidelines, or best practices.

      The leading case in the area is Griffin, 323 N.W.2d 198. As Shorter

points out, Griffin held—under a precursor to our current rule—that the

district court has no discretion regarding the presence of counsel and the

parties when the jury raises a point of law. Id. at 201. In Griffin, the

jury was struggling over the definition of “physical injury” and “assault.”

Id. at 199. Without consulting with counsel or the parties, the district

court instructed the jury, “You will have to define the terms from the

language given in the instructions and reconcile any definitions as best

you can by reading the instructions.” Id. We concluded that violation of

the court rule gave rise to a presumption of prejudice and that the

response to the jury’s serious question over crucial terms could have

influenced the result. Id. at 201.

      Griffin, however, is distinguishable.   In Griffin, neither the party

nor counsel was present.     See id. at 199.    Thus, the defendant was

unrepresented when the court responded to the important question

raised by the jury. Id. Here, counsel was present. Thus, it cannot be

said that the defendant was unrepresented. It can be said, however, that

the defendant was entitled to be present.

      The record reveals that convenience may have played a role in the

decision to proceed without the defendant.        What we do not know,

however, is whether the defendant waived his right to be present. The

record does not provide us with a factual basis to determine this
                                     35

question, and if it were important, it would need to be raised on a more

developed record in a postconviction-relief proceeding.

         Nonetheless, we agree with the State’s position on the prejudice

issue.    The question posed by the jury may have been confusing, but

Shorter does not offer any suggestion as to how his participation in the

proceedings would have changed matters. Although the district court’s

instruction to the jury to “reread the instructions” was similar to that

provided in Griffin, the key difference is that Shorter’s counsel was

present and agreed to the instruction.

         Shorter concedes that the proper test in this case when counsel is

present for the proceedings but fails to insist on the presence of the

defendant, is provided under Strickland, 466 U.S. at 687, 104 S. Ct. at

2064. Based on our review of the record, there is certainly no reasonable

probability that the outcome of trial would have been different if the

defendant had been present when the district court and the attorneys

agreed to simply instruct the jury to “reread the instructions.” Shorter

has not suggested to us how the proceedings would have been different

had he been present. We therefore hold that Shorter has failed to show

prejudice and thus has not demonstrated ineffective assistance of

counsel.

      V. Failure of Counsel to Request Eyewitness Identification
Instruction.

         A. Introduction. At trial, the State offered eyewitness testimony

from Perkins and L.S. identifying Shorter as a person who participated in

the assault on Daughenbaugh. The trial court, however, did not use the

Iowa State Bar Association (ISBA) instruction on eyewitness testimony or

any similar instruction.      The ISBA Model Criminal Jury Instruction

200.45 on eyewitness identification instruction tells the jury that in
                                     36

evaluating an eyewitness identification, the jury may consider “[i]f the

witness had an adequate opportunity to see the person at the time of the

crime,” and “[i]f an identification was made after the crime . . . [to]

consider whether it was the result of the witness’s own recollection.”

Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.45 (2012). The

instruction further provides that “[a]n identification made by picking the

defendant out of a group of similar individuals is generally more reliable

than one which results from the presentation of the defendant alone to

the witness.” Id. Finally, the instruction provides that the jury should

consider “[a]ny occasion in which the witness failed to identify the

defendant or made an inconsistent identification.” Id.

      B. Standard of Review.         The parties agree that in order to

support a claim of ineffective assistance based upon failure to provide an

instruction related to the evidence, the defendant must show both that

counsel breached the standard of care and that the defendant was

prejudiced by counsel’s breach.      See Strickland, 466 U.S. at 687, 104

S. Ct. at 2064.

      C. Positions of the Parties. Shorter claims that in light of the

importance of the eyewitness testimony in this case, his trial lawyer

should have requested the instruction.         Shorter notes that several

features of the instruction might have helped him. He notes that counsel

could have argued based upon the language in the instruction involving

the   witness’s   opportunity   to   observe   the   crime,   that   Perkins’s

identification was questionable in light of darkness and the exigencies of

the situation.

      Shorter further argues that the instruction related to subsequent

eyewitness identification would have assisted counsel in arguing that the

identifications of Perkins and L.S. were based upon their presence at trial
                                     37

proceedings rather than upon true recollection. Finally, Shorter argues

that the instruction would have assisted Shorter in arguing that the jury

should consider the accuracy of the Perkins and L.S. identifications in

light of inconsistencies when they were asked to identify persons

participating in the assault.

      The State responds by noting that most of the ISBA Model

Instruction on eyewitness identification would not have assisted Shorter.

The State argues that Perkins testified that she observed the defendant

from point-blank range, declared that the visibility was good because the

area was well-lit, and identified Shorter in a photo lineup less than

twenty-four hours after the crime as participating in the assault. Thus,

the State argues the instruction would have helped the prosecution on

these points.    The State argues that although Perkins stated she

identified the defendants because she “kept looking” at them, Perkins

also clarified, “I keep seeing their face[s].   I’m going to remember who

stomped. I know I circled his face. . . . I know these people did it, and I

don’t care what nobody says.”

      In sum, because the instruction would have hurt as much as it

helped, it was not a breach of duty for Shorter’s counsel not to request it.

The State further suggests that the repeated and consistent eyewitness

identification by L.S., coupled with Shorter’s statement to Officer Peak

that he did kick Daughenbaugh—if only to see if he was okay—placed

Shorter at the crime scene.     See State v. Tobin, 338 N.W.2d 879, 881

(Iowa 1983) (citing corroborating evidence as proportionately lessening

the need for an eyewitness instruction).

      In the alternative, the State argues that Shorter has failed to show

prejudice. The State points out that the jury was generally instructed in

determining credibility of witnesses to consider whether a witness had
                                       38

made inconsistent statements.          Id. (citing jury instruction regarding

credibility of witnesses as mitigating factor in case involving failure to

instruct on eyewitness identification).      In addition, the State suggests

that absence of any specific eyewitness instruction did not prevent

Shorter      from   making    his   arguments   regarding   the   reliability   of

identification in closing arguments to the jury.

      D. Discussion.         There is no question that Shorter would have

been entitled to the eyewitness instruction if counsel had requested it.

But that is not the question before us. The question is whether Shorter’s

counsel breached a duty to him by failing to ask for the instruction and

whether as a result of this omission, Shorter has shown that it is

reasonably probable that the result in this case would have been

different.

      On the record before us, we conclude that Shorter simply cannot

show a reasonable probability that the result at trial would have been

different if the trial court has provided the jury with the ISBA Model

Instruction on eyewitness identification.       As the State suggests, it is

debatable which party would have benefitted the most from the

instruction.    Further, the general instructions given to the jury gave

Shorter’s counsel a clear avenue to attack the inconsistencies in

Perkins’s eyewitness identification testimony. See id. And, much of the

eyewitness identification instruction embraces commonsense notions

that would not likely have escaped a conscientious jury unaided by the

ISBA instruction. As a result, although we certainly do not discourage

the use of the ISBA eyewitness identification instruction, we conclude

that Shorter is not entitled to a new trial based on the failure of his

counsel to request the eyewitness instruction. See id.
                                    39

      VI. Conclusion.

      For the above reasons, we vacate the opinion of the court of

appeals and affirm the judgment of the district court.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.
