                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0066
                               Filed May 20, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRANDON DANDRE BROWN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Johnson County, Marsha A.

Bergan, Judge.



      A criminal defendant appeals from his conviction for first-degree murder.

AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, Janet M. Lyness, County Attorney, and Dana Christiansen and Jude

Pannell, Assistant County Attorneys, for appellee.



      Heard by Vogel, P.J., and Potterfield and Mullins, JJ.
                                          2



MULLINS, J.

       Brandon Dandre Brown appeals from his conviction for murder in the first

degree. He contends the district court abused its discretion in denying his motion

for mistrial when journalists in the courtroom published the personal information

of a prospective juror, allegedly impairing his right to an impartial jury and

consequently a fair trial. He further contends the evidence was insufficient to

support the conviction for first-degree murder because it did not support a finding

that he was the shooter. Finally, he contends the district court erred in denying

his motion for new trial where the jury verdict was against the weight of the

evidence.

       We find Brown fails to make the necessary showing that the impanelled

jury was biased and that therefore his right to a fair trial was impaired. We

further find that the weight of the evidence rests heavily in support of the verdict.

Because we so conclude, we find the lower burden of sufficient evidence is met.

Therefore, we affirm the denial of the motion for mistrial, the denial of the motion

for new trial, and the verdict and judgment of guilty.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       On June 21, 2012, DiMarco Harris spent the day drinking with Donelle

Lindsey at Harris’s apartment on Petsel Road in Iowa City. Harris testified he

had just been released from prison and was on parole. They met between 11:00

a.m. and 12:00 p.m. and drank until around 7:00 pm. On two occasions, Lindsey

left the apartment to talk on his telephone. At around 7:00 p.m., Lindsey told

Harris he was going to leave to “meet [his] ride” and would call later. Thirty
                                       3



minutes later, Lindsey returned, eager to spend more time with Harris.

Sometime around 9:00 or 10:00 p.m., Lindsey arranged for a friend to come pick

him up. Harris testified that although they had been drinking, they were not

inebriated.

       Harris testifed he and Lindsey were waiting outside and talking. Brandon

Brown and Byron Fisher approached them.          Harris knew Fisher was his

downstairs neighbor but did not know Brown. Fisher greeted Harris and shook

his hand. Brown addressed Lindsey by a nickname and asked to talk to him.

Brown and Lindsey walked off together toward the side of the apartment building.

Harris continued talking with Fisher. At one point, Fisher said to Brown and

Lindsey, “You all better cut that shit out.” Harris then saw Brown reveal a gun

and shoot Lindsey. He thought there were four shots. Brown ran off toward the

back of the building and to the north. Lindsey walked back to where Fisher and

Harris were standing. Harris could not tell how badly Lindsey was injured but

could see he was bleeding.      Fisher left and went back into the apartment

building. Harris ran after Fisher asking, “Who was that dude?” Fisher was crying

and unable to speak. Harris went into his apartment and stayed there. His

girlfriend had already called 911. He did not return to the scene when police

officers arrived because he had just been released from jail, he was on parole,

and had been drinking.

       Fisher testified that he was at his apartment when Brown came over at

about 6:00 or 7:00 p.m. that evening. He had known Brown for seven or eight

months. Fisher and Brown drank together for a couple of hours. While walking
                                               4



to Fisher’s apartment building, they observed Lindsey and several other people

hanging out outside. Fisher testified he and Brown decided to walk to a nearby

gas station, but Brown stopped to speak with Lindsey. The conversation was

hostile on both sides with Brown stating something like, “[Lindsey] can’t fight or

[Brown] will whup his ass.” Fisher testified Brown walked away in anger, then

returned a few minutes later with a gun in his hand, held low by his side. He

pulled Lindsey away from the main gathering, and said something like, “What

was that shit you was just talking.” Lindsey did not respond. Fisher testified

Brown then pointed the gun at Lindsey from a couple feet away and shot him four

times in rapid succession. Lindsey took a few steps, then fell and did not move.

Fisher went into his apartment and remained there.                 He testified he did not

contact police when they arrived on the scene because he did not want anything

to do with the incident. Both Harris and Fisher lied when initially interviewed by

law enforcement officers, but later told what happened and testified at trial. Upon

seeing a line-up of suspects in the shooting, Harris initially narrowed the options

down to two men.

          Nicole Blosser was living with her boyfriend, Ivan Hardemon, in a nearby

apartment complex. Hardemon was Brown’s cousin.1 She and Hardemon were

standing outside her apartment on the evening of June 21 when they heard

gunshots. They ran into the apartment. Hardemon got a telephone call on his

cell phone, went downstairs, then came back up with Brown. Hardemon and

Brown went into a back room and talked for a few minutes. They then came out,



1
    Hardemon did not testify at trial. He died shortly after these events.
                                            5



and Hardemon told Blosser they all had to go. Blosser, Hardemon, and Brown

took her car and drove to Chicago.2 Brown stated he had shot a man. They

dropped Brown off at an apartment building in Chicago, turned around and drove

straight back to Iowa City. In the car on the way back, Hardemon instructed

Blosser not to discuss the event with anyone.              Once back in Iowa City,

Hardemon got a phone call from Brown’s girlfriend, who lived a few buildings

over.     Hardemon and Blosser drove over to the girlfriend’s apartment.      The

girlfriend gave them a shoe box containing two handguns. They then drove to

the home of Brett and Kathy Kriz and handed Brett the box. Brett and Hardemon

went into a back room for a few minutes and returned. Later, law enforcement

officers interviewed Blosser at her apartment. At first she did not cooperate,

because she was scared and did not want to be involved, but later gave full

answers. At the time of the incident, Hardemon was present in Iowa in violation

of his parole and, as a felon, could not possess firearms.

         Brett Kriz was subpoenaed to testify but refused to answer most

questions, citing his Fifth Amendment right against self-incrimination.       Law

enforcement officers executed a search of his home but found nothing relevant to

the shooting.      The medical examiner testified Lindsey suffered five gunshot

wounds. At least one bullet went through Lindsey’s heart and death would have

followed shortly afterward as a result. Two of the wounds would have been fatal

individually.




2
    Blosser drove because Hardemon did not have a driver’s license.
                                          6



       Based on Harris’s and Fisher’s identification, the State charged Brown

with murder in the first degree, in violation of Iowa Code sections 707.1 and

707.2(1) (2011). On November 12, 2014, the parties commenced the trial with a

relatively heavy media presence. Reporters were present in the courtroom from

the Cedar Rapids Gazette, the Iowa City Press Citizen, and the University of

Iowa Daily Iowan.     Prior to commencement of proceedings, the court held a

discussion with these media sources and clarified the new expanded media

coverage rules in the Iowa Court Rules, which went into effect on May 1, 2014.

The court informed the reporters that the jury selection process was excluded

from the expanded media rules, and therefore there should be no broadcasting

or publication of the personal details of the prospective jurors.

       Jury selection proceedings took place over two days and were open to the

press and public. During proceedings, the court discovered that a reporter for

the Cedar Rapids Gazette had live-blogged the name and some personal

information of a prospective juror. The information included the name of the

juror’s business in downtown Iowa City, his position on a sensitive local

government board, and comments he made about his wife and her safety in the

neighborhood of the shooting. The court spoke with the reporter on the record,

who agreed to remove the information from the live-blog immediately.            The

reporter removed the blog so quickly, a few minutes later he was unable to recite

the text when the court wished to place it on the record.3 The other reporters in

the room did not blog personal information of the jurors. All the reporters agreed


3
  A portion of the text was recited into the record as it had been written down by an
attorney before the blog deleted the post.
                                           7



not to live-blog the remainder of the jury selection proceedings. Brown moved for

mistrial, and the court reserved its ruling.

        The court then brought the affected juror before the parties and informed

him of what had happened. He expressed disappointment at the publication of

his information. He reported experiencing repercussions when his business has

been connected to his work on the local government board. The court instructed

the juror to turn on his phone to see if anyone had contacted him regarding the

published information, but he did not receive any such contact.

        Brown then moved to strike the juror for cause. The State did not resist,

and the court dismissed the juror.       Afterward, the court brought forward the

remaining prospective jurors, informed them what had happened, and asked if

they had any concerns or received any communications regarding the publication

of the removed juror’s information.       No member of the jury pool had been

contacted. The court informed the jurors the reporters agreed not to live-blog the

remainder of the jury selection and guaranteed the court would ensure no such

information was blogged. The court denied the motion for mistrial, concluding

the parties could impanel an impartial jury.      After releasing the jury for the

evening, the court checked again the following morning to see if anyone had

been contacted as a result of the blogging; no juror reported being contacted.

The jury selection continued, the trial commenced, and the jury returned a verdict

of guilty.

        On appeal, Brown contends the district court abused its discretion in

denying his motion for mistrial asserting the publication of the prospective juror’s
                                         8



name and person information impaired Brown’s right to an impartial jury and

consequently a fair trial. Brown further contends the evidence was insufficient to

support the conviction for first-degree murder because it did not support a finding

that he was the shooter. Finally, he contends the district court erred in denying

his motion for new trial where the jury verdict was against the weight of the

evidence.

II.    ANALYSIS.

       A.     Motion for Mistrial Based on Publication of Prospective Juror’s

              Personal Information.

       We review the trial court’s denial of a motion for mistrial for an abuse of

discretion. State v. Frei, 831 N.W.2d 70, 73-74 (Iowa 2013). Because “[i]t is in

the best position to appraise the effect of any alleged misconduct, we allow the

district court broad discretion in deciding whether to grant a mistrial.” Id. at 80.

To establish reversible error, Brown must show that the reporter publishing the

prospective juror’s personal information and the court’s conduct in informing the

remaining prospective jurors “resulted in prejudice that deprived [him] of a fair

trial.” Id. “‘The party claiming prejudice bears the burden of establishing it.’” Id.

at 80-81 (quoting State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989)).

       It is fundamental that a criminal defendant has the right to trial by an

impartial jury. See Iowa Const. art. 1 § 10; United States Const. Amend. VI.

There is also a First Amendment right guaranteeing the press and general public

a right of access to criminal trials. State v. Knox, 464 N.W.2d 445, 447 (Iowa

1990). “[T]he right to an open trial may give way in certain cases to other rights
                                           9



or interests, such as the defendant’s right to a fair trial.” Waller v. Georgia, 467

U.S. 39, 45 (1984).

       The State of Iowa balances these rights by way of its court rules on

“expanded news media coverage.” See Iowa Ct. R. ch. 25. These rules were

recently amended with new changes made effective May 1, 2014, and therefore,

in effect at the time of the trial. “Expanded news media coverage” includes

“broadcasting, recording, photographing, and live electronic reporting of judicial

proceedings by the news media for gathering and disseminating news in any

medium.” Iowa Ct. R. 25.1(1). “Judicial proceedings” include “all public trials,

hearings, or other proceedings in a trial or appellate court, for which expanded

news media coverage is requested, except those specifically excluded by this

chapter.” Iowa Ct. R. 25.1(4) (emphasis added). The rules specify, “Expanded

news media coverage of jury selection is prohibited.”            Iowa Ct. R. 25.2(6).

Although “blogging” is not explicitly included as a form of news media coverage,

it is a form of “live electronic reporting”4 consistent with the definition provided in

rule 25.1(1), therefore, the reporter’s publication in this case falls within the rules

on “expanded news media coverage.” Accordingly, blogging of the jury selection

was prohibited.

       Brown argues the reporter’s live-blogging of the prospective juror’s name

and personal information and the court subsequently informing the remaining jury


4
  “‘Live electronic reporting’ covers tweeting, blogging, and future methods of real time
electronic reporting by text. It does not include photography or video.” Summary of
Amendments to Chapter 25 of the Iowa Court Rules on Expanded News Media
Coverage Rules, approved by the Iowa Supreme Court, April 2, 2014. Effective May 1,
2014, p.1, http://www.iowacourts.gov/Court_Rules_Forms/Recent_Amendments_New_
Iowa_Court_Rules/.
                                        10



pool of that incident had a chilling effect on the remainder of the jury selection

process. Brown cites In re S. Carolina Press Ass’n, 946 F.2d 1037, 1033 (4th

Cir. 1991), for the proposition that, “[F]ear of publicity that might be given to

answers of venirepersons during voir dire may so inhibit or chill truthful

responses that an accused is denied the fair trial to which he is entitled under the

Fourteenth Amendment.” Rather, “[f]ull and frank answers from potential jurors,

when they are questioned in voir dire are essential to the process of selecting [a

fair and impartial] jury.” Carolina Press, 946 F.2d at 1033.

       Brown contends the fear of publicity was an issue in this case because the

jury was required to discuss sensitive topics such as race and gun violence,

which were important aspects of the voir dire. Brown argues, once the jury pool

was aware of the publication of the prospective juror’s information, he was

unable to elicit forthright and honest responses to his questions. Brown adduces

no evidence in support of his argument. He does not point to a single instance in

which a prospective juror was, even speculatively, unable to give an honest

answer to his voir dire question, although voir dire continued and the parties

selected and empaneled a jury. On our examination of the voir dire transcript,

we note that only three more prospective jurors were questioned during the

remaining voir dire. One was excused in anticipation of a medical appointment.

The second expressed a concern that the defendant was black and everyone

else in the courtroom was white. The prosecutor asked the prospective juror if

he could be fair in spite of that concern and if it mattered that the victim of the

crime was also black. The juror stated he could be fair and the race of the victim
                                         11



did not matter. The prosecutor asked the third prospective juror if he could be

fair. He stated yes. Defense counsel then asked the second and third jurors

about their employment, hobbies, and various other topics, none of which related

to race or gun violence.     Brown does not point to any moment during the

remainder of voir dire when a juror’s answer seemed untruthful or dishonest or

even hesitant. He contends the “chilling effect” is not discernable from “the black

and white transcript.”   However, he also cites no authority for presuming or

assuming there was a chilling effect on this record.

       Furthermore, Brown fails to present any argument as to why, even

theoretically or presumptively, the potential jurors’ fear of publicity would have

produced a biased jury and, consequently, how the incident resulted in prejudice

to him. No juror expressed any concern, as the struck juror had, that publicity of

their name or other personal details would affect him or her negatively. Further,

even if the jurors were initially concerned about the possibility that their personal

information and responses would be published, the court made several efforts to

mitigate the concerns. The court informed the prospective jurors that the reporter

had agreed to take down the blog post and had done so immediately and

permanently. The court assured the prospective jurors that it had discussed the

situation with the three reporting bloggers in the room and they had all agreed

not to live-blog the remainder of the jury selection. The court made a guarantee

that no further blogging of the jury selection would take place. The court also

surveyed the jury pool multiple times to see if anyone had been contacted in

relation to the live-blogging. There is no evidence that the impanelled jury was
                                           12



affected by the incident of the struck juror nor is there any evidence that the

impanelled jury was not an impartial one. Brown bears the burden of showing

the incident resulted in prejudice that deprived him of a fair trial. He has failed to

make that showing. Therefore, there was no abuse of discretion in the court’s

denial of the motion for mistrial. We affirm the court’s order.

       B.     Motion for New Trial Based on Weight of the Evidence.

       Brown made a post-trial motion for new trial arguing the jury verdict was

against the weight of the evidence.5 The court denied the motion, and Brown

renews the argument on appeal. Brown contends the verdict was “contrary to

law or evidence.” Iowa R. Crim. P. 2.24(2)(b)(6). He argues the weight of the

credible evidence does not support a finding beyond a reasonable doubt that

Brown shot Lindsey. Consequently, Brown argues, the district court abused its

discretion in failing to grant the motion for new trial and this court should vacate

and remand for a new trial.

       We review denial of a motion for new trial for an abuse of discretion. State

v. Nichter, 720 N.W.2d 547, 559 (Iowa 2006). “Trial courts have wide discretion

in deciding motions for new trial.” State v. Ellis, 578 N.W.2d 655, 659 (Iowa

1998). “[T]his discretion [must be exercised] carefully and sparingly.” Id. “[A]

failure to follow [this admonition] would lessen the role of the jury as the principal

trier of facts and would enable the trial court to disregard at will the jury’s verdict.”

Id.   “Contrary to . . . evidence” under Iowa Rule of Criminal Procedure



5
 Brown also argued he was entitled to a new trial due to the defects in the jury selection
process. We have addressed that issue above, and we need not address it again for the
purposes of the motion-for-new-trial argument.
                                        13



2.24(2)(b)(6) means “contrary to the weight of the evidence.” Id. Iowa courts

distinguish the weight-of-the-evidence standard and the sufficiency-of-the-

evidence standard as follows:

      A conviction rests upon insufficient evidence when, even after
      viewing the evidence in the light most favorable to the prosecution,
      no rational factfinder could have found the defendant guilty beyond
      a reasonable doubt. A reversal based on the weight of the
      evidence, on the other hand, draws the appellate court into
      questions of credibility. The weight of the evidence refers to a
      determination by the trier of fact that a greater amount of credible
      evidence supports one side of an issue or cause than the other.

Id. at 658 (quoting Tibbs v. Florida, 457 U.S. 31, 37-38 (1982)) (internal quotation

marks omitted). Therefore,

      On a motion for new trial . . . the power of the court is much
      broader. It may weigh the evidence and consider the credibility of
      witnesses. If the court reaches the conclusion that the verdict is
      contrary to the weight of the evidence and that a miscarriage of
      justice may have resulted, the verdict may be set aside and a new
      trial granted . . . . [T]he power to grant a new trial on this ground
      should be invoked only in exceptional cases in which the evidence
      preponderates heavily against the verdict.

Id. at 658-59 (citing Charles A. Wright, Federal Practice and Procedure § 553, at

245-48 (2d ed. 1982)).

      Brown contends that Harris, Fisher, and Blosser were not credible

witnesses because they did not volunteer information to law enforcement officers

or cooperate with the investigation immediately. Harris admitted that he ran from

the scene and did not approach police officers to volunteer information right

away. However, he testified he had just been released from prison and was

violating his parole by not abiding by the curfew and by drinking. However, when

police officers approached him, he eventually gave a full account of the events.
                                          14



Fisher testified he also did not volunteer information or cooperate with the

investigation at first because he was scared and did not want anything to do it.

Blosser testified she was scared and did not want to get involved. She also was

aware Hardemon was on parole and present in Iowa in violation of parole.

Further, as a felon, he could not lawfully possess a firearm. These are fairly

common—and understandable—explanations for witnesses who are not

immediately forthcoming. However, Harris, Fisher, and Blosser each eventually

gave a full account of their activities and observations and testified at trial on

behalf of the State. Brown points to no other factors and we find none that cast

doubt on the witnesses’ truthfulness.6

       Brown points out various discrepancies in the evidence to argue the

testimony was unreliable. Fisher testified that Harris also had a gun on the night

of the shooting. Brown overstates the evidence. Fisher testified someone broke

the glass on the front door to the apartment building with what he assumed was a

gun. He also testified he was not sure Harris had a gun. Brown claims Blosser’s

mother’s testimony contradicts Blosser’s but does not explain how. Brown claims

Brett Kriz denied that Blosser and Hardemon dropped off a box at his home. In

fact, Kriz invoked the Fifth Amendment when asked about it and declined to

answer further questions about any such item, stating, “I can’t say.” Harris and

Fisher consistently testified that Brown shot Lindsey from a short distance and

ran away. Blosser’s testimony is supported by a telephone record showing that


6
  The State asserts Harris was convicted in 2008 of making false reports to law
enforcement. When questioned about this conviction, Harris denied it. The State
offered no other evidence of such a conviction. Therefore, we have no basis on which to
believe such a conviction existed.
                                          15



Brown did call Hardemon’s cellular phone around the time on June 22 that she

indicated. Brown also complains about the lack of physical evidence in the case

connecting him to the shooting. He points out the gun was never located, nor

were any spent shell casings. There were no fingerprints, DNA evidence, or

surveillance video to link Brown to the incident.

       We agree that there is little physical evidence in this case. However, there

were two eye witnesses and Brown made an admission that he shot a man in the

presence of a third witness. Further, Brown has not produced any evidence or

cogent argument that the three main witnesses—Harris, Fisher, and Blosser—

are not credible.    Harris testified Brown approached him and Lindsey at his

apartment building, walked a short distance away with Lindsey, then shot him

from a few feet away, and ran away. Fisher also testified he personally saw

Brown draw a gun and shoot Lindsey from a short distance, then run away. Both

Harris and Fisher testified they heard four shots in rapid succession, although the

medical examiner found five gunshot wounds. Blosser, although she did not

witness the shooting, heard gunshots outside her apartment. At her boyfriend’s

insistence, she then immediately drove Brown out of Iowa City to Chicago. On

the way to Chicago, she heard Brown say he shot a man. The weight of the

evidence in this case heavily supports the jury’s guilty verdict. Accordingly, the

district court did not abuse its discretion in denying the motion for new trial.



       C.     Sufficiency of the Evidence for Submission to the Jury.
                                        16



       Brown also appealed from denial of his motion for judgment of acquittal

made at the close of the State’s presentation of evidence. “Challenges to the

sufficiency of the evidence are reviewed for correction of errors at law.” State v.

Hansen, 750 N.W.2d 111, 112 (Iowa 2008). “We allow a verdict to stand if

substantial evidence supports it.” State v. Biddle, 652 N.W.2d 191, 197 (Iowa

2002). “Evidence is substantial if it would convince a rational fact finder that the

defendant is guilty beyond a reasonable doubt.” Id. “We review the evidence in

the light most favorable to the State, including legitimate inferences and

presumptions that may fairly and reasonably be deduced from the record

evidence.” Id. “We consider all the record evidence, not just the evidence that

supports the verdict.”      Id.   “‘[E]vidence which merely raises suspicion,

speculation, or conjecture is insufficient.’” State v. Hearn, 797 N.W.2d 577, 580

(Iowa 2011) (quoting State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992)).

       Having reviewed the record and found that the weight of the evidence

supports the verdict, we now consider the evidence in the light most favorable to

the State and, after making all legitimate inferences and presumptions, we

conclude there was substantial evidence from which the jury could find Brown

guilty beyond a reasonable doubt. Accordingly, the district court committed no

error when it denied the motion for judgment of acquittal.

III.   CONCLUSION.

       We find Brown failed to make the necessary showing that the impanelled

jury was biased and that he was prejudiced as a result. We further find that the

weight of the evidence rests heavily in support of the verdict. We also find the
                                         17



evidence was sufficient to have been submitted to the jury. Therefore, we affirm

the denial of the motion for mistrial, the denial of the motion for new trial, and the

verdict and judgment of guilty.

       AFFIRMED.
