State of Iowa v. David Franklin Good Jr. ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0071
Filed February 11, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID FRANKLIN GOOD JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, John M.
Wright, Judge.
Defendant claims the district court abused its discretion in admitting
evidence at trial. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and Tyron Rogers, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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DANILSON, C.J.
David Good Jr. appeals from his conviction and sentence for arson in the
first degree, in violation of Iowa Code sections 712.1(1) and 712.2 (2011). Good
maintains the district court abused its discretion in admitting into evidence letters
written by him. Specifically, he maintains the court abused its discretion because
the letters were not relevant, the letters were unduly prejudicial, and the State
failed to provide notice it was utilizing a rebuttal witness to contest Good’s alibi
defense. Good’s argument regarding the State’s alleged failure to provide notice
of an alibi rebuttal witness is not preserved, and we do not consider it. Because
we find the letters were relevant and were not unduly prejudicial, the district court
did not abuse its discretion in admitting them at trial. We affirm.
I. Background Facts and Proceedings.
In December 2012, the home Good’s wife was staying in caught fire.
Later, Good admitted to Burlington police he had set the fire. He was arrested
and charged with arson in the first degree. Good was incarcerated pending trial.
On August 29, 2013, an inmate found handwritten letters in the jail library
and turned them over to the jailer. Good later admitted writing the letters in
question. He wrote them to fellow inmate Roseanne Krasuski. Good wrote, in
part:
[T]he point that I am trying to make, is that you could help my
situation out if you could testify in my behalf and I in turn could help
you out! I own a [description of car and license plate number]. If it
could be said that we were at Crapo Park (together) from 11:00 PM
until 11:55 PM, you know talking about me getting a divorce and us
inside the car “making love” it would help us out a lot. I was at
Crapo Park down where the (2) big guns point out over the river,
between these time zones, by myself. But I do not have an alibi.
No one saw me. But if you could step in and say that we were
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together from this time to this time and this is what we were doing I
could walk away from all of this.
On September 4, 2013, Good filed a notice of affirmative defense stating
he had an alibi for the night in question. In the notice, Good claimed he was with
his girlfriend, Roseanne Krasuski.
Two days later, the State filed a motion to strike the affirmative defense for
not complying with Iowa Rule of Criminal Procedure 2.11(11), which requires the
defendant assert his intent to rely on an alibi no later than forty days after
arraignment. The district court held a hearing on the matter September 9, 2013,
and denied the State’s motion to strike.
On October 11, 2013, the State filed additional minutes of testimony. The
minutes listed an assistant jail administrator as a witness who was prepared to
testify regarding the letters written by Good.
Trial commenced on November 5, 2013. Good objected when the State
moved to admit the letters into evidence. He argued the letters were not relevant
and were more prejudicial than probative.1 In response, the State offered a
redacted version of the letters. The court overruled Good’s objections and
allowed the redacted letters to be admitted into evidence. Good later objected to
the letters on the grounds of “untimely filing.” He argued, “I’ve got the informal
discovery dated October 21st, yet the State had this information for three months
before physical copies were received, and that was just a few weeks before trial,
your Honor.” The court overruled the objection.
1
At trial, Good also argued that the letters were inadmissible because they were
hearsay. He does not make that argument on appeal.
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On November 8, 2013, the jury returned a verdict finding Good guilty of
arson in the first degree. He was sentenced to a term of incarceration not to
exceed twenty-five years. Good appeals.
II. Standard of Review.
We generally review evidentiary rulings for an abuse of discretion. State
v. Parker, 747 N.W.2d 196, 203 (Iowa 2008). An abuse of discretion occurs
when the trial court abuses its discretion on grounds or for reasons clearly
untenable or to an extent clearly unreasonable. Id.III. Discussion.
Good maintains the district court abused its discretion by admitting letters
he wrote into evidence at trial. He maintains the letters should not have been
admitted because they were not relevant, they were unduly prejudicial, and the
State failed to timely file notice of an alibi rebuttal witness.
A. Alibi Rebuttal Witness.
On appeal, Good contends the letters were inadmissible because Iowa
Rule of Criminal Procedure 2.11(11)(a) requires the prosecuting attorney to file
written notice of any witnesses the State proposes to offer to rebut or discredit
the defendant’s alibi, and the State did not do so in this case. This alleged error
is not preserved.
At trial, Good’s attorney objected to the admission of the letters because
of “untimely filing.” Both the State and the court understood Good’s objection to
concern Iowa Rule of Criminal Procedure 2.19(2) (“Additional witnesses in
support of the indictment or trial information may be presented by the prosecuting
attorney if the prosecuting attorney has given the defendant’s attorney of
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record . . . a minute of such witness’s evidence . . . at least ten days before the
commencement of the trial.”). The State responded that additional minutes of
testimony referencing the letters were filed on October 11, 2013—almost one
month before trial commenced on November 5, 2013. The court ruled, “That
objection you made goes to whether the State provided discovery as required
under the Rule of Criminal Procedure. . . . The Court will advise the jury that the
objection is overruled.”
In Good’s reply brief, he contends that if error is not preserved, trial
counsel was ineffective for failing to preserve error. Ineffective-assistance-of-
counsel claims are an exception to the general rule of error preservation. State
v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). However, issues may not be
raised for the first time in a reply brief. See State v. Wilet, 305 N.W.2d 454, 458
(Iowa 1981) (“We will not consider matters raised for the first time in a reply
brief.”); see also Iowa R. App. P. 6.903(4) (“The appellant may file a brief in reply
to the brief of the appellee.” (emphasis added)). Obviously the purpose of the
rule is to allow both parties the opportunity to brief the issue. Accordingly, this
issue shall not be addressed further but may be raised in possible
postconviction-relief proceedings.
B. Relevance.
Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Iowa R. Evid. 5.401. Here,
Good filed notice of his intent to establish an alibi at trial. Good never formally
withdrew the notice of defense. However, he maintains the information in the
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letters was not relevant because he “never argued his alibi defense” and it was
“functionally abandoned.” In essence, Good argues that until he presented
evidence of an alibi, the State’s evidence in their case-in-chief rebutting the alibi
was not relevant. Good does not cite authority that recognizes functional
abandonment of a defense. Additionally, the State had to present its case-in-
chief before the defendant could have “functionally abandoned” the alibi defense
under these facts, as during opening statements defense counsel argued there
was no evidence placing the defendant at the scene. At the time the court ruled
on the objection, the issue of whether Good had an alibi was still very much in
dispute. Although we would agree in general that evidence to rebut an alibi
defense is not probative of the issues until evidence of the alibi is presented,
here the letters clearly reflect such statements against his interest such as: “I do
not have an alibi,” “I am going to beat this charge,” “you could help my situation
out if you could testify,” and “there is just so much I want to tell you about it but I
am afraid to for fear that they might find this letter and try to use it against me.”
The letters clearly depict Good attempting to persuade the other individual to
testify on his behalf in full knowledge that he did not have an alibi and was afraid
to tell her facts in fear the letter would be used against him at trial. Such
evidence would clearly be more probative in rebuttal if Good had presented
evidence of an alibi, but we nonetheless conclude the letters contained evidence
probative to the issues in the State’s case-in-chief, specifically the identity of the
arsonist. Evidence of “attempted evasion, palpable falsehood, or suppression of
the true facts by one suspected of crime” is not inadmissible hearsay but rather is
“relevant and material on the theory that consciousness of guilt may be inferred.”
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State v. Crowley, 309 N.W.2d 523, 524 (Iowa Ct. App. 1981) (concluding
statement by defendant soon after his arrest that he was with his girlfriend rather
than at the site of a robbery was properly admitted although defendant had not
yet testified).2
C. Unduly Prejudicial.
Good maintains that even if the letters were relevant, they were unduly
prejudicial and should not have been admitted. Iowa Rule of Evidence 5.403
provides for the exclusion of relevant evidence if its probative value is
“substantially outweighed by the danger of unfair prejudice.”
To determine whether evidence should be excluded under rule 5.403, we
apply a two-part test. State v. Neiderbach, 837 N.W.2d 180, 202 (Iowa 2013).
First, we consider the probative value of the evidence. Id. Next, we balance the
probative value against the danger of its prejudicial or wrongful effect upon the
jury. See id. Evidence is unfairly prejudicial when it “appeals to the jury’s
sympathies, arouses its sense of horror, provokes its instinct to punish, or
triggers other mainsprings of human action that may cause a jury to base its
decision on something other than the established propositions in the case.” Id.We recognize that “all powerful evidence is prejudicial to one side.” Id. Thus, the
question is “whether the danger of unfair prejudice substantially outweighs the
evidence’s probative value.” Id. “Unfair prejudice is the undue tendency to
suggest decisions on an improper basis, commonly though not necessarily, an
2
We suspect Good’s knowledge that the State intended to present the confiscated
letters affected his decision to present the alibi defense.
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emotional one.” State v. Huston, 825 N.W.2d 531, 537 (Iowa 2013) (internal
quotation marks omitted).
Here, Good’s statements in the letters were probative to whether it was
possible Good had committed the arson. We do not believe unfair prejudice
outweighs the probative value. The letters are not the type of evidence to evoke
emotional responses from the jury. Additionally, it is not unfairly prejudicial to
inform the jury that Good did not have an alibi for the night in question. Good
argues the letters were unduly prejudicial because they made it likely the jury
would convict him for being a “conniving and deceitful” person rather than for
starting the fire. However, the letters were not used to show that Good was
acting in conformity with such bad character. Rather, the letters were probative
of Good’s involvement in the crime.
IV. Conclusion.
We find Good’s argument regarding the State’s failure to provide notice of
an alibi rebuttal witness is not preserved, and we do not consider it. Because we
find the letters were relevant and were not unduly prejudicial, the district court did
not abuse its discretion in admitting them at trial, and we affirm.
AFFIRMED.