State of Iowa v. Devin Marques Carter ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1773
Filed April 14, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DEVIN MARQUES CARTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Devin Marques Carter challenges his convictions for first-degree murder,
two counts of attempted murder, and intimidation with a dangerous weapon.
AFFIRMED.
Karmen Anderson of Anderson & Taylor, P.L.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
2
AHLERS, Judge.
What started as an argument in a bar over a pitcher of beer turned into an
altercation in the bar’s parking lot that ended with a barrage of gunfire that left one
person dead and two seriously injured. A jury determined Devin Marques Carter
was the shooter, resulting in Carter’s convictions for first-degree murder, two
counts of attempted murder, and intimidation with a dangerous weapon. He
challenges the sufficiency of the evidence supporting his convictions, argues the
district court erred in denying his motion for a new trial, and raises claims of
ineffective assistance of counsel.
I. Factual Background
We begin by highlighting key facts that were largely uncontested at trial.
These facts are gleaned from testimony as well as surveillance video of events
transpiring inside and outside the bar.
On Friday, August 5, 2016,1 members of a family and their significant others
decided to go out for a night on the town. They eventually ended up at the same
bar on the east side of Des Moines. The group generally consisted of six people:
Bill; Bill’s son (known as “Bub”); Ashley (Bill’s daughter and Bub’s sister); Carley
(Bub’s girlfriend); Bonnie (Bub’s second cousin); and Dylan (Bonnie’s boyfriend).2
We will refer to this group as “the family group.”
During the course of the evening, Dylan, who was too young to purchase
alcohol, gave Bill’s girlfriend money to buy a pitcher of beer for him. After a short
1 Although the family’s evening started on August 5, the events forming the basis
for this case took place after midnight, in the early morning hours of August 6.
2 Although Dylan was not related to the family, he had been dating Bonnie for a
considerable time, was “close” to the family, and viewed Bill as a father figure.
3
period of time passed, Dylan became convinced Bill’s girlfriend had pocketed the
money without buying the beer. Dylan angrily confronted Bill. Bill was offended
by Dylan’s accusations and headed outside toward the bar’s parking lot. It is not
clear whether Bill left the bar to get away from the confrontation or to continue the
confrontation outside. Either way, Dylan went with him, and the two proceeded
toward the back of the parking lot across the street from the bar. The other four in
the family group became aware of the dispute and followed not far behind Bill and
Dylan. All six can be seen on surveillance video proceeding to the back of the
parking lot.3
Once in the back of the parking lot, there are differing accounts of exactly
what happened, but the evidence was generally consistent that Dylan was acting
like he wanted to fight Bill, Bill was willing to fight but was warning Dylan not to do
so,4 and the others were trying to diffuse the situation. Dylan, feeling outnumbered,
headed back toward the bar to look for help.
Dylan saw his cousin, Steven,5 standing outside the bar in the smoking area
along with Carter. Dylan asked Steven to go with him to the parking lot because
3 We reference the “back of the parking lot” as the portion of the parking lot past
the last in the line of parked vehicles farthest away from the bar. Once individuals
get to the back of the parking lot, being able to differentiate them on the video is
not always possible due to sight lines between the camera and the individuals
being blocked by parked vehicles, distance from the camera, darkness, and
camera resolution, but movement of individuals’ heads showing above the last of
the vehicles is sometimes discernible.
4 The evidence established Dylan tended to become belligerent and aggressive
when drinking. So even though he looked up to Bill as a father figure, Dylan
showed an inclination to fight him that night. At the time, Dylan was eighteen years
old and Bill was forty.
5 Steven also goes by the nickname “Pookie.”
4
he was in an argument and wanted help.6 Steven agreed and began to walk
toward the back of the parking lot with Dylan. Although he had not been asked to
go, Carter went with the other two. Carter testified that he followed because “I only
knew one set of three black guys that was there, and that was my cousin and his
friends” and “I just wanted to make sure that ain’t who he was talking about.”
As the trio reached the back of the parking lot where the five other members
of the family group remained, Dylan heard someone say, “You know I’ve got your
back, Pookie.” Dylan did not see who made the statement and was not even aware
that Carter had come with them, but surveillance video shows the only other
person with them was Carter.
It is clear from the video that when the trio of Dylan, Steven, and Carter
rounded the corner behind the last row of vehicles in the parking lot, at least some
of the family group and some of the trio converged in a rapid manner, suggesting
they were running toward each other as part of the confrontation. There is
conflicting evidence as to exactly what happened next in terms of who made
physical contact with whom, but there was general consensus there was some
physical and verbal confrontation between members of the family group and both
Dylan and Steven. Very shortly after the altercation began, a single gunshot was
fired in the back of the parking lot, followed by a pause, and then a barrage of
additional gun shots.
6 There is conflicting evidence of what Dylan said. According to Dylan, he said,
“There’s two guys out in the parking lot trying to jump me.” Steven testified, “Dylan[]
walks up to me and says that he was about to get jumped by a couple black guys,
so he asked me to walk him across the street.” Carter testified Dylan said “three
black guys was trying to jump him.”
5
Twelve spent nine-millimeter shell casings were later found on the ground
in the back of the parking lot at the location of the shooting, all determined to have
been fired from the same gun. The shooting resulted in Bill dying from a gunshot
wound to the head, Carley being critically wounded from a gunshot wound to her
leg, and Bub being seriously injured from two gunshot wounds to his back, one to
his leg, and one to his foot.
After an investigation, law enforcement and prosecutors concluded Carter
had been the shooter. Carter was charged with murder in the first degree, two
counts of attempted murder, and intimidation with a dangerous weapon. 7 After a
jury trial, Carter was found guilty of all four charges and sentenced accordingly.
He appeals, raising the issues previously noted.
II. Sufficiency of the Evidence
Carter challenges the sufficiency of the evidence on all counts based on
one claim only—the State failed to prove he was the shooter. Claims of insufficient
evidence are reviewed for correction of legal error. State v. Schiebout, 944 N.W.2d
666, 670 (Iowa 2020). “We will uphold the verdict on a sufficiency-of-evidence
claim if substantial evidence supports it.” Id. “Evidence is substantial ‘if, when
viewed in the light most favorable to the State, it can convince a rational jury that
the defendant is guilty beyond a reasonable doubt.’” Id. (quoting State v. Trane,
934 N.W.2d 447, 455 (Iowa 2019)). All evidence is considered, not just the
evidence supporting the verdict. State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017).
7Carter was also charged with possession of a firearm as a convicted felon. That
charge was severed from the other counts for purposes of trial. After completion
of the trial on the other four counts, the charge of possession of a firearm as a
convicted felon was dismissed on speedy trial grounds.
6
A. The Potential Shooters
Before beginning the discussion of the direct and circumstantial evidence
supporting the jury’s finding Carter was the shooter, we find it worthwhile to distill
some of the facts detailed previously in order to provide the proper framework for
analyzing the sufficiency of the evidence against Carter. In particular, it is
important to note who was present at the location of the shooting.
The evidence established there were eight people and eight people only in
the back of the parking lot where the shooting took place at the time of the shooting.
Those eight people were: Bill, Bub, Carley, Ashley, Bonnie, Dylan, Steven, and
Carter. This is important because it narrows the list of potential people who could
have been the shooter. There is no evidence that would support a conclusion that
anyone other than those eight people were in the back of the parking lot when the
shots were fired.8 Therefore, the evidence suggests one of those eight had to be
the shooter.
The three people who were shot are presumably above suspicion. Further,
there is no evidence and no suggestion that Ashley or Bonnie was the shooter.
That narrows it down to one of the trio (i.e., Dylan, Steven, or Carter) being the
shooter. That list can be further narrowed because there is no evidence
suggesting Steven was the shooter. That leaves Dylan and Carter. Of course, the
State points at Carter, and Carter points at Dylan. With that distillation of the facts,
we now turn to the evidence supporting the jury’s finding Carter was the shooter.
8 Fencing along the back perimeter of the parking lot farthest from the bar
eliminates any reasonable likelihood that an unknown person materialized in the
back of the parking lot, fired the shots, and then left without anyone noticing. Carter
does not make a claim of any such mystery person.
7
B. Direct Evidence
The sufficiency-of-the-evidence analysis begins with the fact there were
eyewitnesses who identified Carter as the shooter. Some of the evidence from
these eyewitnesses came directly from their trial testimony, and some of it came
from the witnesses’ statements to others. We will begin with the evidence that
came from trial testimony.
1. Eyewitnesses – Trial Testimony
One eyewitness to the shooting was Steven.9 Steven testified that when he
first heard a gunshot, he looked in the direction of the shot and saw Carter with a
gun in his hand, “swirling” it in the air. He further testified he did not have a gun
and he saw no one other than Carter with a gun.
Efforts to impeach Steven with a prior inconsistent statement revealed
Steven had given deposition testimony in April 2017 in which he denied seeing
who did the shooting. After these impeachment efforts, Steven was rehabilitated10
by two prior statements he made that were consistent with his trial testimony
identifying Carter as the shooter. The first was a detailed statement he gave to
police on the day of the shooting in which he clearly identified Carter as the
shooter. The second was the testimony he gave in a second deposition in August
9 Although it is not entirely clear whether it would be accurate to describe Steven
and Carter as friends, surveillance video from inside the bar before the shooting
shows they were on friendly enough terms to spend considerable time hanging out
together at the bar. Their time together included Carter buying drinks for Steven
in celebration of Steven’s birthday.
10 See Iowa Rule of Evidence 5.801(d)(1)(B) (defining as “not hearsay” prior
statements consistent with the declarant’s testimony when offered to rebut an
express or implied charge that the declarant recently fabricated the declarant’s trial
testimony).
8
2017, in which he again identified Carter as the shooter. In other words, Steven
told his version of events four times, and in three of them, including the one given
a few hours after the shooting and during his trial testimony, Steven clearly
identified Carter as the shooter. Steven explained that he did not identify Carter
as the shooter in his first deposition because that was the first time he had seen
Carter since the shooting and he was afraid of Carter.
The parties can, did, and continue to debate the strength of Steven’s
testimony and how much weight it should be given after consideration of the
inconsistent statement from his first deposition. They also can, did, and continue
to debate what role Steven’s intoxication level played in terms of the weight to be
given his testimony.11 These questions were vigorously debated before the jury,
as well they should have been. However, on a sufficiency-of-the-evidence review
such as this, our role is not to assess the credibility of witnesses or resolve conflicts
in the evidence, as that role is reserved for the jury. See State v. Musser, 721
N.W.2d 758, 761 (Iowa 2006) (noting that when assessing the sufficiency of the
evidence “[i]t is not the province of the court . . . to resolve conflicts in the evidence,
to pass upon the credibility of witnesses, to determine the plausibility of
explanations, or to weigh the evidence; such matters are for the jury” (quoting State
v. Williams, 695 N.W.2d 23, 28 (Iowa 2005))). Steven’s testimony alone provides
sufficient evidence to support the jury’s conclusion Carter was the shooter. But
there’s more.
11The evidence was fairly uncontested that all eight people in the back of the
parking lot at the time of the shooting were intoxicated to some degree or another.
9
Bub also testified at trial. He testified that, after being shot, he looked
around and saw an “African-American” “male” wearing “[a] white t-shirt” firing a gun
in the direction of his father. Because Carter was the only African-American male
in the back of the parking lot at that time and was wearing a white t-shirt, the jury
could conclude Bub was describing Carter.
Bub’s testimony was significantly impeached, even more so than Steven’s.
Besides acknowledging he was intoxicated at the time of the shooting, Bub had
given a statement to the police a few days after the shooting in which he denied
seeing who the shooter was. Bub attempted to explain these inconsistencies by
asserting he was heavily medicated in the hospital at the time he gave his
statement. However, the evidence also established Bub was unable to identify
Carter as the shooter during his deposition or from Carter’s photo on a newscast.
While Bub’s testimony was impeached in these ways, it was still up to the jury to
decide how much, if any, weight to give Bub’s testimony. See id.
2. Eyewitnesses – Excited Utterances
In addition to these eyewitness accounts, spontaneous statements made
by two other eyewitnesses shortly after the shooting identified Carter as the
shooter. These statements were admitted as substantive evidence pursuant to the
excited-utterance exception to the hearsay rule. See Iowa R. Evid. 5.803(2); State
v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004) (“The rationale behind the exception
is that statements made under the stress of excitement are less likely to involve
deception than if made upon reflection or deliberation.”).
The first of these statements came from Bonnie, who was one of the eight
people in the back of the parking lot at the time of the shooting. Shortly after the
10
gunshots stopped, Steven’s sister12 walked from the bar to the back of the parking
lot to see what happened. After seeing three bodies on the ground, the sister
called 911. She observed Bonnie in a very emotional state, which the sister
described as “freaking out.” Bonnie was yelling that “the black guy in the white
shirt with the Afro”13 was the person that “did it,” referring to the shooting. Bonnie
further stated the shooter had been with Steven. Given the uncontroverted
evidence that the only two people with Steven were Dylan and Carter, this piece
of information also identifies Carter as the shooter. Bonnie and the sister knew
Dylan and Steven by sight and name but did not know Carter, so he would have
been the only member of the trio that she would only be able to identify by
description rather than name. By the time of trial, a little more than one year after
the shooting, Bonnie testified she could not identify the shooter. Nevertheless, her
excited utterance immediately following the shooting was admitted into evidence
and was available to the jury in determining the identity of the shooter.14
In addition to Bonnie’s statements, Dylan also made excited utterances to
two people at different times. Dylan fled the scene shortly after the shooting. His
aunt was at home engaging in one of her past times—listening to the police
12 Steven’s sister is also a cousin to Dylan.
13 While most people may not describe Carter’s hairstyle as an “Afro,” it is
uncontroverted he was wearing a white t-shirt.
14 While Bonnie testified at trial she did not see the shooter, she affirmatively stated
neither Dylan nor Steven was the shooter based on their positioning and where
“the shots were.” She also testified, while attending to Bill on the ground, she
looked up and saw “an African-American male standing there, white t-shirt, jeans,
stood there like he was kind of in shock.” That man had his hand “at his hip” and
looked like he was holding “what could have been a gun.” Bonnie stated she
looked down at Bill, and when she “looked back up, [the man] was gone.”
11
scanner. She heard about a shooting at the bar in question, which caused her
concern because she knew Dylan was there. After multiple phone calls, she was
able to determine Dylan had not been shot and she made arrangements to have
him picked up and dropped off at her house. When he arrived, Dylan was “very,
very upset” and “bawling.” While in that excited state, Dylan stated that Bub and
Bill had been shot, describing them as “his best friend and his uncle.” He also said
the shooter was “a black guy.” His aunt then took Dylan to the home of her brother
(Dylan’s uncle). Dylan was still bawling and “was a wreck” when they arrived.
Dylan told his uncle the same thing he had told his aunt, which was that “a black
guy” had been the shooter. Given that Carter was the only African-American
person in the back of the parking lot at the time of the shooting, Dylan’s statements
provided additional evidence supporting the jury’s verdict that Carter was the
shooter.
3. Eyewitness – Prior Identification
A final piece of eyewitness evidence was introduced based on identification
statements an eyewitness made to a law enforcement officer. A man by the name
of Tytrace was at the bar in question and heard about the expected fight in the
parking lot, which was the altercation brewing between Bill and Dylan. Tytrace
intended to video record the fight on his phone and headed toward the back of the
parking lot along with his sister to do so. As he and his sister approached the back
of the parking lot, the shooting took place. Tytrace and his sister ducked for cover
when the shooting started. After the shooting stopped, Tytrace paid attention to
where Carter went and went out of his way to track Carter down and used a video
app on his phone to capture Carter’s image. A detective who arrived on the scene
12
immediately after the shooting began interviewing witnesses, including Tytrace.
The detective gave the following testimony about that interview:
Q. [P]reviously you testified that you had an encounter with
Tytrace []; is that correct? A. Yes.
Q. Was that on the morning of August 6th, 2016? A. Yes.
Q. During that encounter, did you review any video with
Tytrace []? A. Yes.
Q. Where was that video from? A. He showed me that video
from his phone.
Q. And upon reviewing that video with [Tytrace], did you look
at a specific video clip? A. Yes.
Q. Okay. What did he say?
DEFENSE COUNSEL: Objection, based on our prior record.
COURT: Overruled. You may answer.[15]
Q. What did he say? A. He said that “I was trying—trying to
get his face” while he was pointing to this person on the phone, and
he said, “I just seen him shoot three people dead.”
Q. Did you look at that video along with [Tytrace]? A. Yes.
Q. Did you see the individual that he was pointing to? A. Yes.
Q. Do you see that individual in the courtroom today? A. Yes.
The detective then identified Carter as the person Tytrace identified in the video.
Tytrace’s identification of Carter as the person he just saw “shoot three people
15 When Tytrace testified during trial, he denied recalling reviewing a video with
the detective or making any statements identifying anyone on a video. During a
hearing prior to the testimony set forth here, Carter objected to this line of
questioning, claiming it was an impermissible way of introducing hearsay evidence
in violation of the standards articulated in State v. Turecek, 456 N.W.2d 219 (Iowa
1990). In simplified terms, Turecek holds the State is not permitted “to place a
witness on the stand who is expected to give unfavorable testimony and then, in
the guise of impeachment, offer evidence which is otherwise inadmissible.” 456
N.W.2d at 225. The State argued this was not a Turecek issue because the
detective’s testimony was not offered for impeachment; instead, the evidence was
independently admissible as substantive evidence of the prior identification. See
Iowa R. Evid. 5.801(d)(1)(C) (defining statements identifying a person as someone
the declarant perceived earlier as “not hearsay”). The State relied on State v.
Russell, 893 N.W.2d 307 (Iowa 2018), in support of this distinction. The district
court agreed and the testimony was admitted as substantive, non-hearsay
evidence, not as impeachment. No challenge to this evidentiary ruling is asserted
on appeal.
13
dead” was additional evidence upon which the jury could rely in reaching its verdict
determining Carter to be the shooter.
C. Circumstantial Evidence
In addition to the direct evidence, there are also several pieces of
circumstantial evidence the jury could have used to support its determination
Carter was the shooter. See State v. Ernst, 954 N.W.2d 50, 57 (Iowa 2021)
(reiterating that direct and circumstantial evidence are equally probative); see also
Iowa R. App. P. 6.904(3)(p).
1. Motive
To begin, there is some evidence of potential motive. As the trio rounded
the corner into the back of the parking lot anticipating a confrontation, there was
evidence Carter told Steven words to the effect, “You know I’ve got your back,
Pookie.” While Carter denied making this statement, it is was up to the jury to
determine what testimony to believe. See Musser, 721 N.W.2d at 761 (noting
resolution of conflicts in the evidence is for the jury). If the jury chose to believe
Carter made this statement, while not overwhelming, it was some evidence of
motive for the shooting, as the shooting started almost immediately after Steven
became involved in a physical altercation, suggesting Carter may have opened fire
as his way of “having Steven’s back.” While the State was not required to prove
motive for the shooting, doing so strengthened its case against Carter. See State
v. Richards, 809 N.W.2d 80, 84 (Iowa 2012) (“[A]lthough the murderer’s intent was
not seriously contested, the identity of the murderer was, so it behooved the State
to establish that [the defendant] had a motive for murdering [the victim].”).
14
2. Carter’s Deception
Then, there are the lies Carter told to his mother, law enforcement, and the
jury, any of which the jury could have used as evidence of Carter’s guilt. See Ernst,
954 N.W.2d at 56 (“A false story told by a defendant to explain or deny a material
fact against him is by itself an indication of guilt and . . . is relevant to show that the
defendant fabricated evidence to aid his defense.” (alteration in original) (quoting
State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993))).
Records from Carter’s cell phone show a series of text messages between
Carter and his mother shortly after the shooting as follows:
MOTHER: R u still outside
CARTER: Yes why[?]
MOTHER: Bcuz I heard there was a shooting at [the bar in question]
CARTER: I jus seen that on facebook but im still outside
Even to his own mother, Carter engaged in deception by suggesting he found out
about the shooting through social media rather than acknowledging that he was in
the immediate vicinity of and was a witness to the shooting when it happened. Of
course, one could think of a number of reasons why Carter lied to his mother, but
one of those reasons could be that Carter was trying to avoid creating witnesses
against him by lying to his mother about his knowledge of and whereabouts at the
time of the shooting. The jury was permitted to infer from Carter’s deception to his
mother evidence of his guilt.
In addition to being deceptive with his mother, Carter also lied to police
during an interview the afternoon following the shooting. Carter repeatedly told the
investigating officer he was not in the parking lot when the shooting occurred, as
he was on the “smoke deck” at the bar. This story was conclusively rebutted by
15
video evidence and Carter’s own testimony. The jury could have easily concluded
Carter lied about his location because he was the shooter and thought his best
defense was to claim he was nowhere near the shooting.
In addition to lying about his whereabouts, Carter also lied to the
investigating officer about the clothes he was wearing at the time of the shooting.
When he showed up for the interview, Carter was wearing jeans and a black t-
shirt. In contrast, video evidence from the time of the shooting showed him wearing
shorts and a white t-shirt. In spite of the fact he was clearly wearing different
clothes, Carter told the officer the jeans he was wearing at the time of the interview
were the same jeans he was wearing at the time of the shooting. If the false
information as to what he was wearing at the time of the shooting was believed,
Carter could have created confusion as to whether he was the person identified as
the shooter at the scene. Also, by lying to the police about what clothes he was
wearing, Carter could counteract any potential forensic evidence by having the
police test the wrong clothes or stop looking for the actual clothes. The jury could
have interpreted this evidence as Carter’s effort to misdirect the investigation or
confuse the fact finder as to his identity at the scene.
To put these false stories in perspective, we will revisit Carter’s trial
testimony. According to Carter, he tagged along with Dylan and Steven to see if
Steven’s cousin and the cousin’s friends were going to be involved in the
anticipated altercation in the back of the parking lot and, the next thing he knew,
some unknown shooter opened fire on the crowd. If Carter’s version of events was
true, then Carter was not engaged in any criminal behavior and was himself a
victim of the shooting in the sense he was a member of the crowd into which the
16
shooter opened fire. But why would a person who engaged in no criminal behavior
and who was himself a victim of a crime go to such great lengths to distance
himself from the scene of the crime and attempt to steer investigators away from
the clothes he was wearing at the time? The jury was free to conclude the reason
Carter engaged in such fabrications was because he was the shooter.
And Carter’s fabrications did not end with his statements to his mother and
the police. Carter testified at trial that, when he heard the gun shots, he
immediately ducked and then ran away from the shooting scene toward his vehicle
in another area of the parking lot. He testified he did not stick around the shooting
scene long enough to see if anyone had been shot. However, video evidence
directly rebuts this claim. Even though the video of the parking lot contains no
sound, a fairly clear determination of when the shooting started and stopped can
be made. A flash coupled with a puff of smoke can be seen in the back of the
parking lot just moments before other patrons in the front of the parking lot heading
toward the back of the parking lot can be seen ducking, scattering, and running for
cover. This suggests the flash and puff of smoke marks when the shots began. A
few seconds later, people can be seen coming out of their protective crouches,
standing up, and coming out of their areas of cover, suggesting the shooting had
stopped. When the shooting stopped, Carter was still in the back of the parking lot
and shortly thereafter jogged quickly away from the back of the parking lot past the
location where the bodies of the victims would have been lying. This video
evidence directly rebuts Carter’s testimony that he immediately ducked and ran
from the scene without waiting to see if anyone was hit. The jury was free to use
this fabrication as evidence of Carter’s guilt as well.
17
3. Carter’s Failure to Flee When Gunfire Started
Carter’s actions in the back of the parking lot during and after the shooting
is also circumstantial evidence that he was the shooter beyond the implications of
his fabrications. As previously noted, there were eight people in the back of the
parking lot at the time of the shooting and people began to scatter and distance
themselves from the back of the parking lot when the shooting started. The people
who attempted to distance themselves from the back of the parking lot when the
shooting started included those patrons heading toward the back of the parking lot
and those in the back of the parking lot capable of doing so, including Steven and
Dylan. However, there is one conspicuous exception to this—Carter. Carter was
the only person in the back of the parking lot who was not struck by bullets or
providing aid to those individuals who did not run from the scene of the shooting
when it started. He can be seen on the video still standing at the location of the
shooting after everyone else capable of doing so had fled that location. The jury
could have used this evidence to conclude the reason Carter was not fleeing in
fear of the gunshots was because he was the one doing the shooting.
4. Evidence Others Were Not the Shooter
A process of elimination is also circumstantial evidence Carter was the
shooter. As previously explained, the evidence established the only potential
people who could have been the shooter were Dylan, Steven, and Carter.
Although several witnesses identified Carter as the shooter directly or by
description, not one witness—including Carter—identified Dylan or Steven as
having been the shooter or having a gun at the scene. In fact, several witnesses
expressly testified seeing Dylan and Steven when the shooting was taking place
18
and stated neither was the shooter. Under these circumstances, the evidence
neither Dylan nor Steven was the shooter is circumstantial evidence Carter was.
5. Efforts to Create False Evidence & Changing Defenses
Recordings of Carter’s jail calls provide additional evidence of his guilt. One
of these was a conversation between Carter and his mother the day after the
shooting. Despite the fact that he was in the back of the parking lot at the time of
the shooting, Carter told his mother to have his cousin Terry (who was at the bar
that night) round up everyone they knew who was at the bar to say he was on the
“smoke pad” when the shooting took place. The jury could infer Carter sought to
generate witnesses to provide false testimony of his whereabouts because he was
the shooter. See State v. Stufflebeam, 260 N.W.2d 409, 412 (Iowa 1977) (“An
attempt by a party to improperly, even illegally, influence a witness is thought to be
an admission by conduct.”).
In a recorded conversation two days after the shooting, Carter expressed
confidence there was no video of him in the parking lot, stating, “I knew they had
cameras and stuff. But, I don’t think they had none in that parking lot, so, I know
they probably seen me up by the club though.” In another recorded conversation
that same day, Carter expressed belief that police were trying to trick him by
claiming they knew more than they did, but stated, “That ain’t going to work,
because I don’t even know, but I do know I ain’t on that video so that’s why I know
there ain’t no video.” These conversations show Carter believed there was no
video to rebut his false claim he was on the smoke deck while he continued to try
to get witnesses lined up to provide false testimony supporting his story.
19
Carter’s tune changed a few months later, after depositions were taken in
his case in March 2017 and he learned, for the first time, video evidence
established he was at the shooting scene and not on the smoke deck. At that
point, during a phone call while in jail, Carter laments the fact there was video
coverage of the parking lot, stating, “I didn’t even know there was cameras there
and shit, but I just seen some of the pictures and shit earlier and shit . . . . But,
they got that all on camera and shit, you know what I’m sayin’.” At that point,
knowing his alibi regarding the smoke deck had been rebutted, Carter’s strategy
changed. In another phone call recorded later that day, after Carter learned an
investigator had visited the house and wanted to speak with his cousin Terry,
Carter told his mother to tell Terry to “let [the investigator] know Dylan did it.” This
direction is troublesome for Carter because, according to his trial testimony, he did
not see the shooter and did not know who fired the shots. The jury could infer
Carter was trying to get Terry to blame Dylan, albeit without any basis, to escape
being identified as the shooter after discovering his claim of being on the smoke
deck was not defensible.
D. Our Role on Sufficiency-of-the Evidence Review
Carter makes arguments attacking the credibility of witnesses, pointing out
claimed shortcomings in the investigation, pointing to the failure to link Carter to
the later-discovered handgun used in the shooting that was abandoned at a
business a few blocks from the shooting scene, noting suspicious behavior by
Dylan, and noting Carter’s lack of panic while remaining at the bar following the
shooting. These are all valid points that could have been, should have been, and
were presented to the jury. To be sure, the jury could have concluded the points
20
noted left them with a reasonable doubt as to Carter’s guilt. However, the jury was
not obligated to view the evidence in the manner urged by Carter. “Evidence is
not insubstantial merely because we may draw different conclusions from it; the
ultimate question is whether it supports the finding actually made, not whether the
evidence would support a different finding.” Brokaw v. Winfield-Mt. Union Cmty.
Sch. Dist., 788 N.W.2d 386, 393 (Iowa 2010) (quoting Raper v. State, 688 N.W.2d
29, 36 (Iowa 2004)). Carter would have us resolve conflicts in the evidence and
pass upon the credibility of witnesses. But, that is not our role. In considering a
challenge to the sufficiency of the evidence, “[i]t is not the province of the court
. . . to resolve conflicts in the evidence, to pass upon the credibility of witnesses,
to determine the plausibility of explanations, or to weigh the evidence; such matters
are for the jury.” Musser, 721 N.W.2d at 761 (quoting Williams, 695 N.W.2d at 28).
E. Conclusions Regarding Sufficiency of the Evidence
As detailed above, there is substantial direct evidence that Carter was the
shooter. In addition to the direct evidence, there are also numerous pieces of
circumstantial evidence pointing to Carter as the shooter, especially when those
pieces of circumstantial evidence are considered collectively. See Ernst, 954
N.W.2d at 59–60 (noting juries must necessarily make inferences when finding
facts based on circumstantial evidence and there is no categorical prohibition on
“stacking inferences” so long as the evidence is sufficient to “convince a rational
fact finder the defendant is guilty beyond a reasonable doubt” (quoting State v.
Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018))). Finding substantial evidence
21
supporting the jury’s verdict that Carter was the shooter, Carter’s sufficiency-of-
the-evidence challenge fails.
III. New Trial Motion – Weight of the Evidence
Next, Carter claims error in the district court’s ruling denying his motion for
new trial based on his claim the verdict is contrary to the weight of the evidence.
“Iowa Rule of Criminal Procedure 2.24(2)(b)(6) permits a district court to grant a
motion for new trial when a verdict is contrary to the weight of the evidence.” State
v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). “A verdict is contrary to the weight of
the evidence only when ‘a greater amount of credible evidence supports one side
of an issue or cause than the other.’” Id. (citation omitted). The analysis is broader
than the sufficiency-of-the-evidence analysis “in that it involves questions of
credibility and refers to a determination that more credible evidence supports one
side than the other.” State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). Yet it is
“also more stringent than the sufficiency of the evidence standard in that it allows
the court to grant a motion for new trial only if more evidence supports the
alternative verdict as opposed to the verdict rendered.” Ary, 877 N.W.2d at 706.
“[A] district court may invoke its power to grant a new trial on the ground the verdict
was contrary to the weight of the evidence only in the extraordinary case in which
the evidence preponderates heavily against the verdict rendered.” Id.
Review of rulings on new trial motions based on the claim the verdict is
contrary to the weight of the evidence are generally reviewed for an abuse of
discretion. Ernst, 954 N.W.2d at 60. On a weight-of-the-evidence claim, appellate
review is limited to a review of the exercise of discretion by the trial court, not of
22
the underlying question of whether the verdict is against the weight of the
evidence.” State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003).
In this case, the district court determined the evidence did not preponderate
heavily against the verdict and denied Carter’s motion for new trial, making the
following observations as part of its ruling:
So to the extent that this is an extremely close case and to the extent
that witnesses are drunk and emotionally tied to the victims, there is
one area of evidence which is indisputable, and that is the difference
between Mr. Carter’s claims to the police and what the surveillance
cameras show. He simply was not truthful to the police.
Now, whether that dishonesty as indicia of guilt is outweighed
by no motive, no connection to the gun, no physical evidence on him
is not the decision for the Court to make. It is a decision for the jury
to make. And that evidence is certainly sufficient to support a verdict
such as they rendered. And the gravitas, the weight of that evidence,
I believe, is sufficient to support the verdict.
The danger that this case presents to the process of finding
the truth is that it is replete with unmitigated dishonesty, witnesses
who would not be truthful with police, witnesses who could not tell
the same story more than once without changing it, and when we are
faced with this grand collection of questionable testimony, there is
only one group of people we can rely on to sort it out, and that is the
jury, and that is why we have them.
Based on the district court’s findings and analysis, we find no abuse of the district
court’s discretion in denying Carter’s motion for new trial.
IV. Ineffective-Assistance-of-Counsel Claims
For his final challenge, Carter claims his trial counsel was ineffective for
failing to pursue forensic testing of his clothes, introduce Tytrace’s cell phone video
taken shortly after the shooting that included a close-up view of Carter showing his
demeanor and clothing, question the State’s witnesses on the angle of bullet
23
wounds, and request a spoliation instruction based on the State’s failure to obtain
and preserve Dylan’s clothing and the contents of his cell phone.
The right to effective assistance of counsel is guaranteed by the Sixth
Amendment to the United States Constitution and article I, section 10 of the Iowa
Constitution. State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). To succeed
on his claim of ineffective of counsel, Carter must establish (1) his counsel failed
to perform an essential duty and (2) such failure resulted in prejudice. See State
v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015).
When seeking to have ineffective-assistance-of-counsel claims resolved on
direct appeal, the defendant must establish there is an adequate record to allow
our court to address the claims.16 State v. Johnson, 784 N.W.2d 192, 198 (Iowa
2010). It is for us to determine whether the record is adequate to address the
claims on direct appeal and, if so, to resolve them. Id. However, if we determine
the record is inadequate to address the claims on appeal, the claims are preserved
for postconviction-relief proceedings. Id. In this case, we find the record
inadequate to address Carter’s claims on direct appeal, as the issues raised may
have been strategic decisions made by defense counsel and counsel should be
16 The State asserts we cannot address Carter’s ineffective-assistance-of-counsel
claims on direct appeal due to legislative changes to Iowa Code section 814.7,
which address a defendant’s ability to raise such claims. Section 814.7 was
amended in 2019 to provide in pertinent part: “An ineffective assistance of counsel
claim in a criminal case shall be determined by filing an application for
postconviction relief” and “shall not be decided on direct appeal from the criminal
proceedings.” See 2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code § 814.7(Supp. 2019)). In State v. Macke, however, our supreme court held these
amendments “apply only prospectively and do not apply to cases pending on
July 1, 2019.” 933 N.W.2d 226, 235 (Iowa 2019). Carter’s appeal was pending on
July 1, 2019, so we conclude the amendments “do not apply.” See id.24
given the opportunity to explain them. See State v. Bentley, 757 N.W.2d 257, 264
(Iowa 2008) (“Even a lawyer is entitled to [the lawyer’s] day in court, especially
when [the lawyer’s] professional reputation is impugned.” (quoting State v. Coil,
264 N.W.2d 293, 296 (Iowa 1978))). Therefore, we decline to address Carter’s
ineffective-assistance-of-counsel claims in this forum.
V. Conclusion
Finding sufficient evidence to support the jury’s verdict determining Carter
was the shooter, no abuse of discretion in the district court’s denial of Carter’s
motion for new trial, and an inadequate record to address Carter’s claims of
ineffective assistance of counsel on this direct appeal, we affirm Carter’s
convictions.
AFFIRMED.
Mullins, J., concurs; Vaitheswaran, P.J., dissents.
25
VAITHESWARAN, Presiding Judge. (dissenting).
I respectfully dissent. In my view, the record contains insufficient evidence
to support the jury’s findings of guilt.
I begin with the obvious: the burden of proof was not on Carter but on the
State. The State was required to prove every element of the charged crimes
beyond a reasonable doubt. The jury was instructed “[p]roof beyond a reasonable
doubt . . . must be proof of such a convincing character that a reasonable person
would not hesitate to rely and act upon it.”
What is our role? The question is not whether we would hesitate to act.
Nor are we asked to decide whether Carter is innocent of the crimes. See State
v. Rush-Brantley, No. 12-1915, 2015 WL 161791, at *6 (Iowa Ct. App. Jan. 14,
2015) (“We cannot say affirmatively that [the defendant] is innocent.”). The only
question is whether substantial evidence supports the jury’s findings of guilt. See
State v. Ernst, 954 N.W.2d 50, 54 (Iowa 2021). The substantial-evidence standard
“means a person may not be convicted based upon mere suspicion or conjecture.”
Id. (citation omitted). We are obligated to “consider all the evidence in the record,
not just the evidence supporting guilt.” State v. Tipton, 897 N.W.2d 653, 692 (Iowa
2017). The test is not a rubber stamp. See State v. Waigand, 953 N.W.2d 689,
695 (Iowa 2021) (on substantial-evidence review, stating “[s]entencing courts
should not rubber-stamp victim restitution claims” (quoting State v. Roache, 920
N.W.2d 93, 108 (Iowa 2018))). As the court of appeals stated:
The mere fact that a jury did find [the defendant] guilty . . . does not
answer the legal question as to whether the evidence was sufficient
to have ever been presented to the jury. If we allow ourselves to be
influenced—or our analysis to be dictated—by a jury’s guilty verdict,
then no denial of a motion for judgment of acquittal could ever be
26
successful, and no sufficiency-of-the-evidence . . . challenge could
ever be successful. While our case law reveals that such motions
are not often successful, we must evaluate each motion for judgment
of acquittal on its own merits as though the case had not been
submitted to a jury.
Rush-Brantley, 2015 WL 161791, at *6.
The jury was instructed first-degree murder required proof of the following
elements:
1. On or about August 6, 2016, the defendant shot [Bill].
2. [Bill] died as a result of being shot.
3. The defendant acted with malice aforethought.
4. The defendant acted willfully, deliberately, premeditatedly
and with a specific intent to kill [Bill].
The jury was further instructed that the State would have to prove the following
elements of attempt to commit murder:
1. On or about August 6, 2016, the defendant shot [Bub and
Carley].
2. By his acts, the defendant expected to set in motion a force
or chain of events which would cause or result in the death of [Bub
and Carley]
3. When the defendant acted, he specifically intended to
cause the death of [Bub and Carley].
And the jury was instructed that the State would have to prove the following
elements of intimidation with a dangerous weapon with intent.
1. On or about the 6th day of August, 2016, the defendant shot
or discharged a firearm at or into an assembly of people.
2. The defendant did so with the specific intent to cause
serious injury or provoke fear of serious injury.
3. The firearm was a dangerous weapon, as explained in
another instruction.
4. The assembly of people actually experienced fear of
serious injury and the fear was reasonable under the existing
circumstances.
27
The jury also was instructed: “The State is required to prove more than a mere
nearness to, or presence at, the scene of the crime and more than mere knowledge
of the crime.”
Carter asserted he was not the person who shot or discharged a weapon.
His focus on identity implicates all the elements of each crime. For example, if he
did not shoot Bill—the first element of first-degree murder—he could not have
acted with malice aforethought or willfully, deliberately, and with premeditation. In
other words, the State could not prevail without proof of identity beyond a
reasonable doubt.
A. An Alternate Suspect
At trial, Carter posited that the crimes were committed by someone else.
On appeal, the State asserts, “Carter’s alternate suspect theory conflicts with other
evidence.” To the contrary, the record is replete with evidence supporting Carter’s
theory. As the district court stated in ruling on Carter’s motion for judgment of
acquittal, “There is no evidence that the escalation of violence in this case was
precipitated by [Carter]. It was precipitated by another person.”
The person who indisputably instigated the altercation that culminated in a
shooting was not Carter but Dylan. All the people in Dylan’s group who lived to
testify confirmed as much.
Bub testified he went to several Des Moines bars with Bill and a number of
other people, including his “close friend[]” Dylan. At the last establishment, Dylan
gave Bill’s girlfriend money to buy a pitcher of beer. When she did not return with
the pitcher, Dylan began an argument with Bill in the parking lot. Bill in turn was
“waving his arm, telling him to get away.” Bub told Dylan to “just relax and leave
28
[Bill] alone.” He tried to “[c]alm Dylan down.” Bub further testified that the situation
“escalated” after Dylan enlisted Steven’s help and returned to the parking lot.
Bub’s girlfriend, Carley, similarly testified she saw Bill and Dylan “walking to
the parking lot,” and Bill “was kind of trying to avoid the situation,” but Dylan “just
kept going at him.” She said Dylan “was kind of . . . grabbing” Bill and Bill was
“trying to . . . calm [him] down . . . kind of trying to get him to stop.”
In the same vein, another member of the group–Ashley–testified Dylan and
Bill “were just arguing” and Bill “kept telling him to stop, get out of his face, he didn’t
want to have to hurt him,” but Dylan “just kept going and going.” After the shooting,
she ran over to Dylan and “told him that it [was] his fault that this happened . . .
basically he killed [Bill], because if he would have left him alone, it wouldn’t have
happened.”
Even Dylan’s girlfriend, Bonnie, confirmed that she “saw Dylan following”
Bill and Bill “told him to get away from him.” She said, “It just got heated, because
Dylan wouldn’t leave the situation alone.”
After confronting Bill, Dylan returned to the bar area, where his relative
Steven was smoking. According to Steven, his “little cousin, Dylan,” walked up
and said “he was about to get jumped by a couple black guys.” Others who
overheard the conversation testified that Dylan referred to “three black guys.”
Whatever the number, Dylan was alone in his assertion that he was assaulted,
alone in his identification of the perpetrators, and alone in his identification of the
race of the claimed perpetrators. No one in Dylan’s group stated or implied that
anyone assaulted Dylan or that any “black guys” were involved in the pre-shooting
altercation in the parking lot. Nor did video evidence corroborate Dylan’s rendition.
29
It is worth noting that Carter—who was identified as an “African-American
individual”—was not in the parking lot at the time. Although the jury was not
charged with deciding whether Dylan committed the crimes, his blatantly false
statements support rather than undermine Carter’s alternate-suspect theory. As
the district court stated:
There is simply no physical evidence that links this defendant to a
firearm that night. None. There is no motive. Now, the State does
not have to prove motive. The law is clear about that. But what’s the
motive? What is the motive for this defendant to shoot someone?
The person with the motive in this case was Dylan . . . . He started
the fight. He was angry. He refused to disengage from the argument
with the decedent. The decedent sought to get away from him, and
he pursued him. He was in close proximity to the parties who were
shot. And there was clear evidence in this record he was armed that
night. There is not clear evidence that this defendant was armed that
night.[17]
Notably, Dylan acknowledged he “was ready to fight” and he “was very angry.” He
admitted that when he drank and got drunk he became belligerent and somewhat
reckless. And, as the district court stated, there was “clear” evidence Dylan had a
gun. That evidence came from three witnesses who had no axe to grind with Dylan
or Carter or a motive to protect either.
Brandi was “very good friends” with Bill’s family and knew Dylan. She was
at the bar on the night of the shooting. She testified Dylan was “upset” and
“stormed out” of the bar, and Bill “went after him.” At that point, Brandi left to go to
another nearby bar. She heard someone say, “Call 9-1-1,” and she went outside.
She and her friends, Chad and his girlfriend, decided to leave. Brandi retrieved
17 The court ultimately denied Carter’s motion for judgment of acquittal but not for
lack of evidence that Dylan had a motive to fire the shots.
30
her car and followed Chad down an alley. In time, she saw a “Caucasian” “male”
“crouched down behind [the] fence” adjacent to a vacant house. The man “only
had on a pair of shorts . . . and shoes” and “[n]o shirt.” The shorts were “cargo
shorts.” The person got up and went toward Chad’s truck. Brandi’s headlights
illuminated the truck, and she recognized the person as Dylan. Dylan tried to get
into the truck but momentarily appeared “shocked, and then . . . started to run,”
coming back “right past [her] driver’s side window.” Brandi saw “something in his
waistband,” which she believed to be “[a] gun.” Chad chased after Dylan, returned
less than a minute later, and told Brandi, “I think that was the shooter. He had a
gun.” Brandi believed Dylan also had a cell phone in his hand but she stressed
that the item in his hand was “[d]ifferent” from the item in his waistband.
Two or three days after the shooting, Brandi saw Carter’s picture on
television. She called the police department and gave a detective her contact
information. She was interviewed by the police “a few months” before trial, and
she told the detective overseeing the case that she “saw a gun in [Dylan’s]
waistband” and she was confident it was a gun. She did not know Carter and had
never spoken to him.
Chad’s girlfriend was at the neighboring bar with Brandi. She heard
gunshots and recommended leaving. After dropping Brandi off at her car, she
drove Chad’s truck down the alley. She confirmed that a young man with shorts
and no shirt tried to get into the passenger side of the truck. She testified, “[O]n
his waistband, it looked like . . . a gun.” When the man started running, Chad
chased after him and, on returning, told her the man “did have a gun, and [Chad]
thought maybe it could have been the shooter.” She did not know Dylan or Carter.
31
Chad confirmed the substance of the women’s testimony. He was a
passenger in the truck driven by his girlfriend. He watched as a “kid” came running
down the alley and tried to jump into his vehicle.18 The kid did not have a shirt on,
his shorts were saggy, and “he was trying to hold a weapon or trying to hold his
shorts up, but he was holding something.” Although Chad acknowledged the “kid”
could have been holding his cell phone, he was aware of the shooting and
suspected the young man could be the shooter.
In addition to Dylan’s motive to kill and the eyewitness sightings of Dylan
with a gun, there was other evidence supporting Carter’s alternate-suspect theory.
Dylan admitted he had on a white t-shirt when he was at the bar. He also
admitted that after the shooting, the shirt had blood on it. And he admitted he
removed and discarded the shirt as he was running away from the crime scene.
Dylan’s bloody shirt was never recovered. In contrast, Carter, who was also
wearing a white t-shirt, did not discard his shirt; no victims’ blood was found on it;
and no bloody clothing was found in his house.
As noted, Dylan was wearing baggy cargo shorts. Carter was also wearing
baggy shorts made of blue jeans material, consistent with his statement to police
that he was wearing jeans.19 No victims’ blood was found on Carter’s shorts.
18 What Chad did not know was that, according to Dylan, his aunt had arranged for
one of her friends to pick Dylan up and Dylan believed Chad was the person
waiting for him. On realizing he was not, Dylan jumped out of Chad’s truck, ran,
and was picked up by the aunt’s friend.
19 The State also asserts, “Carter lied about wearing jeans.” But Carter was not
the only person who described his shorts as “jeans.” Dylan’s girlfriend did as well.
32
Dylan had a cell phone, yet he told the detective overseeing the case that
he did not. The fact that he denied having a cell phone in the face of overwhelming
evidence to the contrary suggests he had something to hide. It was later clarified
that he left the phone at his aunt’s house. Unlike Carter’s phone, Dylan’s was
never retrieved and his calls, contacts, and text messages that might have shed
light on his role on the night of the shooting were never extracted. See State v.
Schuldt, No. 19-0277, 2019 WL 5792681, at *4 (Iowa Ct. App. Nov. 6, 2019) (noting
“cell phone location markers could reveal where [the defendant] was located during
the time he went unaccounted for”); State v. Chandler, No. 16-1608, 2017 WL
5185431, at *1–2 (Iowa Ct. App. Nov. 8, 2017) (noting the defendant denied
lending his cell phone to anyone despite evidence that it was used at the scene of
the crime); Wright v. State, No. 15-1530, 2017 WL 936077, at *7 (Iowa Ct. App.
Mar. 8, 2017) (noting defendant’s “cell phone was receiving signals at the murder
scene”).
Dylan also fled the scene. In his own words, he “ran.” In contrast, Carter
remained at the scene, a fact that detracts from a finding of guilt. In fact, Steven’s
mother saw Carter before and after the shooting. Carter also voluntarily spoke to
police the following morning, whereas Dylan was more reluctant to do so.
The State argues Dylan’s flight does not support Carter’s alternate-suspect
theory because Dylan “provided a rational, non-incriminating explanation for his
flight from the scene.” Dylan admitted he “ran” because he was “scared.” But
scared or not, our precedent provides that flight may constitute substantial
evidence of guilt. See State v. Wilson, 878 N.W.2d 203, 211, 214–15 (Iowa 2016)
(“It is well-settled law that the act of avoiding law enforcement after a crime has
33
been committed may constitute circumstantial evidence of consciousness of guilt”;
“[t]he inference that flight was motivated by the defendant’s desire to avoid
prosecution for the crime charged is strongest when the defendant flees in its
immediate aftermath or shortly after being accused thereof”; “[t]he bottom line is
that for evidence of flight to have probative value, the critical question is not
whether the state had formally accused the defendant of the charged crime, but
whether the evidence permits a reasonable inference the defendant acted out of
fear of apprehension for the charged crime.”); see also State v. Gibbs, 941 N.W.2d
888, 912 (Iowa 2020) (McDonald, J., specially concurring) (“[O]ur cases hold
evidence of a defendant’s failure to remain at the scene of a crime and a
defendant’s postoffense attempt to evade law enforcement is admissible and
probative of guilt.”); State v. Magee, No. 03-0344, 2004 WL 433795, at *4 (Iowa
Ct. App. Mar. 10, 2004) (stating the defendant’s “attempted flight and efforts to
escape apprehension support an inference of guilt”). As the district court stated,
the person who “precipitated” the escalation in violence “fled the scene; [Carter]
did not.”
In sum, Dylan fought with the person who was ultimately shot to death;
falsely claimed he was assaulted; falsely claimed the assault was committed by
“black guys”; discarded his white, bloody t-shirt; denied having a cell phone,
leading to an inference that the phone contained inculpatory evidence; fled the
crime scene; and was seen with a gun. While no one is faced with deciding
whether Dylan was the shooter, I would conclude this “alternate-suspect” evidence
in Carter’s trial record raises reasonable doubt about Carter’s guilt. In other words,
a rational trier of fact would not be convinced of Carter’s guilt beyond a reasonable
34
doubt. See Ernst, 954 N.W.2d at 54 (“Substantial evidence exists when the
evidence would convince a rational fact finder the defendant is guilty beyond a
reasonable doubt.” (internal quotation marks and citations omitted)).
B. Surveillance Videos
The State asserts surveillance videos connected Carter to the shooting.
The video of the back parking lot arguably should serve as highly probative
evidence of the shooting. It does not. The video lacks audio and, as several
witnesses noted, the darkness and poor lighting limit its evidentiary value. The
video does capture Carter walking toward the back of the lot with Dylan and
Steven. But the jury was instructed mere presence at the scene of a crime is
insufficient to support a finding of guilt. And, contrary to the State’s assertion, the
video does not capture the shooting or anyone with a gun. At best, it shows a
momentary puff of smoke. It is impossible to see who or what generated the
smoke. A criminalist with the department of criminal investigation said as much,
agreeing with the defense that the smoke “could or could not . . . be smoke from a
gun.” To discern the shooter’s identity from the videos would, in my view, amount
to pure speculation. See State v. Martinez, 17-1373, 2018 WL 3060270, at *3
(Iowa Ct. App. June 20, 2018) (concluding “officers’ after-the-fact observations
from the short video clips do not constitute proof beyond a reasonable doubt that
[the defendant] was one of the burglars”).
C. Eyewitness Testimony – Steven
The State asserts that “[m]ultiple eyewitnesses identified Carter as the
shooter.” In fact, of the more than four dozen witnesses called by the State, only
one directly identified Carter as the shooter—Steven. As noted, Steven was a
35
relative of Dylan. He had every incentive to place the gun in the hands of someone
other than his “little cousin.” But even if it was uniquely the jury’s role to consider
the familial relationship in assessing his credibility, other facets of his testimony
render him an objectively unreliable eyewitness. See State v. Shorter, 893 N.W.2d
65, 81 (Iowa 2017) (noting “[t]he reliability of eyewitness testimony has been the
subject of intense commentary . . . [y]et, juries often attach great weight to
eyewitness identification without consideration of reliability”).
Steven provided several versions of events. The morning after the
shooting, he gave a statement to police in which he told two detectives that he saw
Carter “pull the gun out, and he shot one in the air.” At the same time, he did not
identify Carter as the shooter of the three persons; he simply identified Carter as
a person with a gun—a distinction that is important given the evidence that Dylan
had a gun.
Steven acknowledged he was “drunk as shit” at the time of the shooting and
was still feeling the effects of alcohol at the time of the interview. In fact, Steven
had consumed around fifteen drinks at the bar, with his drink of choice being
eighty-proof whiskey mixed with an energy drink. He had also consumed five or
six drinks before arriving at the bar and was feeling the effects of that alcohol. He
was so drunk that he did not remember crossing the street with Carter from the bar
to the parking lot.
Steven also told the detectives he left the scene in a car with a man named
Rick when he in fact left in a different car with two people named Chris and
Christina. It is worth noting that, as he came up to Chris and Christina’s car, he
told them shots were fired, but he did not say he saw the shooter or identify the
36
shooter. Nor did he disclose those key facts during the ride or after everyone got
out of the car.
Steven additionally informed the detectives he got a ride “to [his] house”
when he in fact went to his mother’s house first. This memory lapse takes on
added significance because the stop was not momentary; all the people got out of
the car at his mother’s house and Steven waited there for his mother to arrive.
If all this were not enough to call the reliability of Steven’s police statements
into question, Steven’s statements about where Carter was relative to him should
raise reasonable doubt. Steven told the detectives that Carter walked along a
chain-link fence and around the backside of the cars. Video surveillance showed
Carter directly behind him.
Steven’s alcohol-impaired mental state and his misidentification of key facts
lead me to conclude that his police statements amounted to conjecture. See State
v. Barnes, 204 N.W.2d 827, 829 (Iowa 1972) (“Suspicion is no substitute for
proof.”); State v. Khouanmany, No. 12-1428, 2013 WL 5760951, at *4 (Iowa Ct.
App. Oct. 23, 2013) (reversing a conviction “based on mere speculation”); see also
State v. Booth-Harris, 942 N.W.2d 562, 587 (Iowa 2020) (Appel, J., dissenting)
(“An eyewitness’s ability to perceive and remember may be impacted by
characteristics and conditions of the witness themselves. Personal characteristics
include intoxication, injury, illness, age, and fatigue.”); State v. Doolin, 942 N.W.2d
500, 520 (Iowa 2020) (Appel, J., dissenting) (“There are literally dozens and
dozens of studies that consistently show a high rate of error in eyewitness
identifications even under favorable conditions.”).
37
Several months after the police interview, Steven retracted his police
identification of Carter. In the first of two depositions, he was asked whether he
saw “a shooter.” He responded, “No, I didn’t. I didn’t, because it was dark behind
the trees.” He was then asked, “Did you see anyone with a gun?” He responded,
“No.” The defense pressed, “Did you see anyone with a gun that night?” Steven
again answered, “No.” He admitted seeing a muzzle flash but stated he could not
see the person firing the gun. When asked if he saw Carter again after the time
he saw him in the bar that night, he responded, “No.” Steven’s retraction of his
initial identification, juxtaposed with the numerous factors rendering that police
identification unreliable, again lead me to conclude that the police identification did
not amount to proof beyond a reasonable doubt.
Steven was deposed a second time shortly before trial. At this deposition,
Steven retracted his retraction and reprised the version of events he gave to police.
He stated he saw Carter walk around a car to get behind the people, heard the first
shot, and ran the other way. He admitted the identification was made as he was
running and looking over his shoulder, with a car between himself and Carter.
Would his alcohol-fueled, over-the-shoulder identification of a man he could not
initially locate convince a rational trier of fact of Carter’s guilt beyond a reasonable
doubt? I think not.
Steven’s trial testimony largely matched the statements in his second
deposition. He stated he looked in the direction of the shots and “seen [Carter]
with a gun in his hand.” The gun “was just in the air swirling, and then [he] took off
running after the second gunshot.” Again, he acknowledged going to a party and
consuming beer and whiskey before arriving at the bar and he could not recall
38
when he left the party because he “was a little intoxicated.” In his words, he had
been drinking “[a] lot.”
After the defense skewered Steven with his questionable acuity, the State
attempted to bolster his testimony with statements from his second deposition. I
am not convinced the deposition satisfied the requirements of Iowa Rule of
Evidence 5.801(d)(1)(B) for admission as substantive, non-hearsay evidence.
That rule deems the testimony “not hearsay” only if a party offers the prior
statement “to rebut an express or implied charge that the declarant recently
fabricated” his or her trial testimony “or acted from a recent improper influence or
motive in so testifying.” To qualify as substantive non-hearsay evidence, the
statement must have been made before the improper motive arose. State v.
Johnson, 539 N.W.2d 160, 165 (Iowa 1995).
The defense claimed the State threatened Steven with perjury and the
threat was especially coercive because Steven was a felon who did not want to go
down the prison road again.20 The defense elicited testimony from Steven that
between his first and second deposition, he had a conversation in which perjury
charges were mentioned. It was only after the conversation that Steven changed
his story and stated Carter had a gun. Because Steven’s revised version of events
came after the threat of perjury, not before, the testimony contained in Steven’s
second deposition was, in my view, hearsay and inadmissible as substantive
evidence.
20 The jury was instructed, “A witness has admitted having been convicted of or
having pleaded guilty to a felony. You may use that evidence only to help you
decide whether to believe the witness and how much weight to give their
testimony.”
39
In sum, Steven’s trial identification was fraught with ambiguity. He did not
say Carter shot Bill, Bub, and Carley. He said Carter’s gun “was just in the air
swirling.” To say the least, his perceptions were compromised.
Other witnesses contradicted Steven’s testimony. His own sister, Cody,
who knew Carter and said she had “always had a good vibe with him,” denied
seeing anything about Carter that would make her believe he was carrying a gun.
Steven’s mother, who was close enough to Carter that he could put his arm around
her, similarly denied seeing anything that would have led her to believe Carter was
armed with a gun. See State v. Warth, No. 98-1895, 2000 WL 62973, at *2 (Iowa
Ct. App. Jan. 26, 2000) (concluding “the evidence [was] insufficient to sustain a
conviction for carrying a concealed weapon”).
Several people in the midst of the fray did not identify Carter as the shooter.
Bub failed to identify him and admitted he answered, “No” when asked at a
deposition whether Carter was the person who fired the shots. He also conceded
telling a detective that he did not see the person who wielded the gun. Carley did
not see a shooter or see where the shots came from.21 Dylan, who alleged he
“blacked out” after the shots rang out, testified he did not know who fired the shots
and did not see the person who said, “You know I’ve got your back, Pookie.” At
the same time, he managed to exculpate himself and his close friends and family.
Dylan’s girlfriend, Bonnie, cited by the State as another key eyewitness, did not
21 Carley was shot but lived to testify because of the heroism of a Des Moines
patrol officer who arrived at the scene shortly after the shooting. He saw Carley
lying in a pool of blood with a bullet hole in one of her legs and he surmised her
femoral artery had been hit and she would “have three minutes to live.” The officer
immediately applied a tourniquet to stanch the bleeding.
40
see who fired the shots. And Ashley testified she did not see a gun or a person
holding a gun.
The State points to evidence that “Carter possessed a holster that fit the
murder weapon.” But a criminalist with the department of criminal investigation
testified that a holster found beneath “clutter” in the back cargo area of Carter’s
vehicle was “kind of a generic ballistic nylon holster made for a number of
semiautomatic . . . medium-to large-size pistols.” He demonstrated that a model
other than the one used in the crimes could fit into the holster.
Another witness, Brandon, testified he was arrested for possessing the gun
that was in the holster. He stated he rode in Carter’s vehicle sometime before the
shooting, the vehicle was “pulled over for improper lane use,” and he stuffed the
gun in the backseat and separately hid the holster. An officer seized the gun but
left the holster in the vehicle. Brandon was later prosecuted for illegal possession
of a firearm. At Carter’s trial, he was shown the holster taken from Carter’s vehicle
following the shooting. He testified, “That’s my holster.” In short, he gutted the
State’s attempt to tie Carter to a gun through the holster in his car. See State v.
Serrato, No. 08-0799, 2009 WL 2185819, at *4 (Iowa Ct. App. July 22, 2009)
(“[T]he State’s theory . . . was only that—a theory. No rational jury could conclude
that this theory was proved beyond a reasonable doubt.”).
I am left with an objectively unreliable identification unsupported by Steven’s
closest relatives or any of the other individuals in the back part of the parking lot
and undercut by a prior recantation together with the wholesale discrediting of the
State’s holster evidence. The district court said it best: “There is only one person
in this record who has placed the firearm in the possession of this defendant. That
41
witness was intoxicated. That witness was impeached. That witness was a close
associate of the man who ran from the scene.” Although the court allowed the
case to go to the jury, the court articulated similar concerns after trial:
The defendant was never connected to the gun. No one saw it on
his person. No one found ammunition for it on his person or
anywhere under his control. The police never did any physical
examination of him to determine if there was any gunpowder residue,
antimony, or barium, powder burns, blood of the victims, blowback.
There is simply no physical evidence that links this defendant to the
firearm that night. None.
While individuals may be found guilty without physical evidence,22 Steven’s
eyewitness testimony, in my view, did not establish beyond a reasonable doubt
that Carter possessed a gun, let alone that he used it to shoot Bill, Bub, and Carley.
D. Putative Eyewitness – Tytrace
The second claimed eyewitness named by the State was Tytrace. In fact,
he did not identify Carter as the shooter at trial. He testified he was at the scene,
lay down when he heard shots, then tried to grab his sister who, in another act of
heroism, was cradling one of the people who was shot, apparently without regard
to her own safety. Tytrace tried to leave, but police arrived and arrested him. They
took his cell phone and escorted him downtown. Tytrace did not recall identifying
the shooter from a video shown to him by police. He testified he “never seen
Carter.”23
22 A gun was found and shell casings were found, but, as discussed, they were not
tied to Carter.
23 Under the guise of refreshing Tytrace’s recollection, the State read quotations
from the sergeant’s interview transcript into the record. The supreme court
recently criticized this practice. See State v. Swift, 955 N.W.2d 876, 882–83 (Iowa
2021) (“The State attempted to refresh her recollection seemingly by reciting
statements from a police report. . . . [T]hat practice should be limited. . . . The
State thus wasn’t permitted to read, seemingly verbatim, [the witness’] out-of-court
42
The State was allowed to counter Tytrace’s non-identification testimony with
testimony from the sergeant who interrogated him following his arrest. 24 The
sergeant stated Tytrace “showed [him a] video from his phone” and identified the
shooter. He testified the person Tytrace identified was Carter. The cell phone
video, which was the backbone of the sergeant’s testimony, was excluded from
the record. The district court’s rulings on the admissibility of the video underscore
the tenuousness of the sergeant’s effort to tie Carter to the crimes.
The State did not seek to admit the cell phone video through Tytrace.
Instead, the State first offered it through Steven’s mother. She had no inkling who
statements from the police report under the guise of refreshing her recollection.”).
Although the State did not have the benefit of Swift, I believe the questioning ran
afoul of Gilmore. See id. at 883 (“While the State is ‘free to try to make her admit
she remembered the underlying facts bearing on the issue,’ it is ‘not free to read
into evidence the prior statement.’” (quoting State v. Gilmore, 259 N.W.2d 846, 857
(Iowa 1977))). The defense’s objection on a slightly different ground was overruled
and the ruling is not challenged on appeal.
24 In State v. Russell, 893 N.W.2d 307, 318 (Iowa 2017), which authorized the
admission of second-hand identification evidence such as the sergeant’s, the prior
inconsistent identification was admitted because the person against whom it was
offered “established the foundation for admission of the evidence when she
admitted that she provided the prior statement and admitted that she identified [the
defendant], even though she testified that she had no current memory.” The court
stated a prior inconsistent statement was inadmissible “when the witness did not
remember the underlying facts that were the subject of the prior statement.”
Russell, 893 N.W.2d at 317 (citing Gilmore, 259 N.W.2d at 857). Tytrace did not
recall the prior statement to police. He was asked whether he recalled reviewing
the video with the sergeant. He responded, “No, sir.” He was asked whether he
recalled making an identification on a video. He responded, “No, sir.” He was
asked about the specific statements the sergeant attributed to him, all prefaced by
“do you recall.” Each time, Tytrace responded, “No, sir.” He variously stated, “I
don’t remember ever saying that”; “I don’t recollect that, like I told you”; “I don’t
recollect giving a statement, like I told you”; and “None of this I don’t remember.” I
am not convinced the sergeant’s identification testimony was admissible to counter
Tytrace’s failure-to-recollect statements. However, that is water under the bridge,
given the defense’s concession that Russell allowed for identification testimony
from the sergeant and the absence of an appellate challenge to the admissibility
of the sergeant’s testimony.
43
took the video or precisely when. The defense objected on several grounds,
including lack of foundation. In excluding the video, the court stated, “[W]hat [the
cell phone video] does is establish mere presence. It doesn’t establish identity of
a person who’s committed a crime. . . . It does no more . . . than establish one
more person among the many that were running around at the time of the
shooting.” Because Carter was identified as being at the scene through another
video, the court concluded the cell phone video was “cumulative.”
The State offered the cell phone video a second time, through Steven. The
prosecutor asked Steven if, during his police interview, he identified Carter as the
shooter from the cell phone footage. Steven said, “No.” The court again excluded
the footage, reasoning in part that “the prejudicial effect . . . outweigh[ed]” any
relevance it might have.
I believe the sergeant’s once-removed identification of Carter as the
shooter, drawn from the unadmitted, marginally relevant, and unfairly prejudicial
cell phone video, would not convince a rational fact finder of Carter’s guilt beyond
a reasonable doubt.25
E. Carter’s Testimony
The State points to Carter’s trial testimony as evidence supporting a finding
that he was the shooter. The State asserts he “repeatedly lied to investigators
about material facts.” No question he did. But Dylan lied. And Steven lied. I
25 On appeal, Carter asserts his trial attorneys were ineffective in objecting to the
video evidence because it in fact contained “numerous indicators of his
innocence,” including the absence of any “blood splatter” on his “pristine, white t-
shirt.” In light of my conclusion that the case should be reversed on insufficiency-
of-the-evidence grounds, I would find it unnecessary to address or preserve the
issue.
44
accept that the sorting of these lies was exclusively within the jury’s purview.
However, even if Carter’s hesitation to come clean about his presence in the
parking lot gave the jury cause to reject his testimony in its entirety, the jury was
left with Steven’s objectively unreliable eyewitness testimony as the lynchpin of the
State’s case. And even if the jury found Steven entirely credible notwithstanding
the objective indicia of unreliability, that still leaves the record with a single witness
who saw Carter shooting a gun into the air, multiple witnesses who did not see
Carter with a gun, a witness who “definitely” saw Dylan with a gun, multiple
witnesses who testified to Dylan’s intent to harm Bill, and scant if any evidence
that Carter acted “willfully, deliberately, premeditatedly and with a specific intent to
kill.” On this record, I would find no more than Carter’s proximity to the scene of
the crimes. I believe there is insubstantial evidence to support the jury’s findings
of guilt, and I would reverse Carter’s judgment and sentence. See State v. Ortiz,
905 N.W.2d 174, 182–83 (Iowa 2017) (reversing jury’s finding of guilt on second-
degree robbery charge after concluding “the evidence is insufficient to prove
beyond a reasonable doubt that [the defendant] had ‘the intent to inflict serious
injury’”); State v. Schlitter, 881 N.W.2d 380, 391 (Iowa 2016) (reversing a jury
finding of guilt after stating the “finding could only be based on speculation” and
“[s]peculation and conjecture cannot be used to support a verdict”); State v.
Robinson, 859 N.W.2d 464, 481 (Iowa 2015) (“In the end, the [sufficiency-of-the-
evidence] question calls for an exercise of our judgment as to whether, on the
totality of the circumstances, the State offered sufficient evidence that a jury could
find beyond a reasonable doubt that the” elements of the crime were satisfied.);
State v. Neiderbach, 837 N.W.2d 180, 218 (Iowa 2013) (concluding the “State’s
45
evidence . . . fail[ed] to meet the sufficiency threshold”); State v. Pierce, No. 13-
2004, 2015 WL 3613329, at *4–5 (Iowa Ct. App. June 10, 2015) (finding the
“identifying information of the two killers at the murder site is weak” and “[f]inding
the evidence [was] insufficient to convince a rational trier of fact of [the defendant’s]
guilt beyond a reasonable doubt.”); State v. Davolt, No. 10-0071, 2010 WL
5394989, at *2 (Iowa Ct. App. Dec 22, 2010) (“Although the jury was free to reject
the testimony of [a witness] as not credible, . . . there is little other evidence by
which to judge [the defendant’s] state of mind at the time he took the vehicle.”).