State of Iowa v. Derris L. Swift

S
               IN THE SUPREME COURT OF IOWA
                               No. 18–2197

          Submitted November 17, 2020—Filed March 5, 2021


STATE OF IOWA,

      Appellee,

vs.

DERRIS L. SWIFT,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Henry W.

Latham II, Judge.



      The defendant appeals his convictions of attempt to commit murder,

intimidation with a dangerous weapon, willful injury resulting in serious

injury, and possession of marijuana. DECISION OF COURT OF APPEALS

AND JUDGMENT OF DISTRICT COURT AFFIRMED.



      McDermott, J., delivered the opinion of the court, in which all

justices joined.    McDonald, J., filed a special concurrence in which

Waterman, J., joined.



      Martha J. Lucey, State Appellate Defender, Vidhya K. Reddy

(argued), Assistant Appellate Defender, and Derris L. Swift, Clarinda, pro
se.
                                    2

      Thomas J. Miller, Attorney General, Louis S. Sloven (argued),

Assistant Attorney General, Michael J. Walton, County Attorney, and

Julie A. Walton, Assistant County Attorney, for appellee.
                                     3

McDERMOTT, Justice.

      A jury convicted Derris Swift of attempted murder and related

crimes. Swift’s main attack on appeal concerns the State’s calling of three

witnesses—all of whom the State knew to be reluctant to testify—that the

State impeached on the witness stand with prior inconsistent statements

they’d made to the police incriminating him. Although the district court

instructed the jury that it could consider these statements only for

purposes of impeachment, Swift argues that this instruction was

insufficient and that the State should not be allowed to get inadmissible
evidence before the jury by calling reluctant witnesses and then using out-

of-court statements—which otherwise would be inadmissible hearsay—to

impeach him.

                                     I.

      Ashanti Dixon lived in an apartment on Heatherton Drive in

Davenport with her mother, Ameshia, and brother, Eziah. A bit before

noon on a Wednesday morning in January 2018, Ashanti and her

boyfriend, Derris “Debo” Swift, along with Ashanti’s five-year old daughter,

arrived at the apartment together in a Dodge Durango. Ameshia, Eziah,

and Eziah’s girlfriend, Ityloneia Watson, were all in the apartment at the

time. They heard Ashanti and Swift arguing outside. The argument was

sufficiently heated that Eziah took it upon himself to go outside to remove

Ashanti’s daughter from where Ashanti and Swift were arguing.

      Ashanti eventually entered the apartment through a back door.

Swift knocked on the back door of the apartment and demanded the keys

to the Durango. Ashanti then exited through the front door, got in the

Durango, and started driving away. When Ameshia told Swift that Ashanti
had left, Swift left on foot.
                                       4

         As Ashanti drove down Heatherton, someone approached on foot

and opened fire. Hit and bleeding, Ashanti managed to steer the vehicle

to a nearby gas station and alert a cashier, who immediately called the

police.

         Police were on the scene within minutes. They arrived to find a

Durango riddled with bullet holes, its windows shot out, and its driver,

Ashanti, bleeding out in the front seat from a gunshot wound to her arm.

First responders rushed her to the hospital.

         Police swept the area and spoke to witnesses.      Several reported
seeing the shooting and described the shooter. Another witness reported

seeing a person with a description similar to the shooter’s running through

an adjacent wooded area.       The police soon spotted someone sprinting

through a muddy cornfield behind a row of apartments bordering the

woods and apprehended him. The muddy cornfield runner was Derris

Swift.

         Swift offered varying explanations for what he’d been doing. He said

he was on his way to Hubbard’s Cupboard (a local store) to buy a pack of

Swishers for the marijuana that police found in his pocket. He said he

heard the gunshots and ran out into the cornfield to get away. He said he

was going to a friend’s house.      Later he said he was coming from the

friend’s house. (He repeatedly refused to give the friend’s name.) Then he

said he was coming from the library. Later he said he was going to the

library. (He couldn’t produce a library card.) When asked why he took the

route through the woods and the muddy cornfield (the cornfield being

barren and dormant for the winter) instead of a more direct route, he said

it was because he just wanted to walk around. The police then discovered
that Swift was the shooting victim’s boyfriend and that the two had been
                                         5

in an argument shortly before the shooting.          The police took him into

custody.

         Swift’s physical appearance generally matched the witnesses’

descriptions of the shooter, except Swift was wearing a red, hoodless

pullover sweatshirt, not a black hoodie as the witnesses had described.

The police suspected he’d hidden the hoodie—along with the firearm—

sometime in the fourteen minutes between the time the shooting was

reported and the time the police captured him.             Police searched the

publicly accessible areas in the vicinity but didn’t find a black hoodie or
gun.

         Ashanti had called her mother, Ameshia, after she’d been shot but

before the first responders had arrived. Ameshia’s own conversation with

the police shortly after the shooting was captured on a body-cam video.

When asked what Ashanti said during the call, Ameshia said, “Debo shot

me!” Ameshia reiterated: “She was crying hysterically and said, ‘Debo shot

me.’ ”

         Ashanti survived but suffers continuing nerve damage in her arm.

Five days after the shooting, her arm in a cast, Ashanti met with a detective

for a formal interview at the police station. In the interview, Ashanti said,

“I have no doubt in my mind it was probably Debo,” and “I know the guy

in front of my car was Derris.”

         The State charged Swift with intimidation with a dangerous weapon,

Iowa Code section 708.6 (2018); willful injury resulting in serious injury,

section 708.4; possession of marijuana, section 124.401(5); and attempted

murder, section 707.11. A jury trial was scheduled for July 23, 2018.

         Swift spoke with Ashanti on recorded calls while in jail awaiting trial.
In these calls, Swift pressured Ashanti to assist him with his defense. In

one call, Swift emphasized that he knew she “would do anything” for him
                                      6

and told her he would be released from jail soon: “[T]hey ain’t got no gun.

They only got a witness that said I did that shit, but that shit ain’t gonna

hold up. Do you hear me?”

      The State thereafter struggled to reach Ashanti and her family. On

July 19, the State filed a motion to continue the trial stating that it

appeared some witnesses were avoiding being served with a subpoena and

that it wasn’t clear if Ashanti would continue to cooperate with the

prosecution. Trial was continued. It commenced on October 15, with the

jury finding Swift guilty of all the charges. The district court denied Swift’s
motion in arrest of judgment and motion for new trial.

      He appealed, claiming that the State violated the “Turecek rule” in

calling several witnesses and admitting certain exhibits and that Swift’s

counsel was constitutionally ineffective for failing to raise proper

objections and failing to request a more specific instruction on the use of

impeachment evidence. We transferred the case to the court of appeals,

which affirmed the convictions. Swift sought further review, which we

granted.

                                      II.

      Swift argues the State committed a Turecek violation, in reference to

our holding in State v. Turecek, by calling and impeaching Ashanti,

Ameshia, and Watson. 

456 N.W.2d 219

, 225 (Iowa 1990). Iowa Rule of

Evidence 5.607 permits a party to attack the credibility of its own witness.

But in Turecek, we held the prosecution may not “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

. See generally 7 Laurie Kratky Doré, Iowa Practice Series:
Evidence § 5.607:1, at 576–78 (2017–2018 ed. 2017).
                                    7

      We observed in Turecek that the State’s right to impeach its own

witness under rule 5.607 “is to be used as a shield and not as a sword”

and thus that parties may not use impeachment evidence “for the primary

purpose of placing before the jury substantive evidence which is not

otherwise admissible.” 

Turecek, 456 N.W.2d at 225

(quoting United States

v. Miller, 

664 F.2d 94

, 97 (5th Cir. 1981) (per curiam)). Particularly in a

criminal case, permitting impeachment with inadmissible hearsay risks

the jury relying on the impeachment evidence for the truth of the matters

asserted—as substantive evidence—and not as an attack on the witness’s
credibility or another permitted use of impeachment evidence.          See

Turecek, 456 N.W.2d at 224

–25; see also State v. Belken, 

633 N.W.2d 786

,

794 (Iowa 2001).

      Parties of course commonly confront situations in which a witness’s

testimony isn’t completely helpful or completely damaging.        In these

situations, parties often elicit the helpful testimony as well as the

damaging testimony and then impeach the witness on the damaging

testimony.   Calling a witness with a mix of expected testimony—some

helpful, some damaging (and thus requiring impeachment)—does not

create a Turecek violation because the primary purpose for calling the

witness is not to place otherwise inadmissible evidence before the fact

finder. Parties should not “be put to the choice between the Scylla of

forgoing impeachment and the Charybdis of not calling at all a witness

from whom it expects to elicit genuinely helpful evidence.” United States

v. Webster, 

734 F.2d 1191

, 1193 (7th Cir. 1984). Rather, all the evidence

in these situations (helpful, damaging, and the impeachment of the

damaging) is ordinarily relevant to the fact finder’s determination and, so
long as not inadmissible under another evidentiary or exclusionary rule,

admissible for its purposes. 27 Charles Alan Wright & Victor James Gold,
                                     8

Federal Practice and Procedure: Evidence § 6093, at 613–14 (2d ed. 2007).

Of course, even when Turecek presents no barrier to calling a witness, rule

5.403 remains a safeguard to protect against particular questions or

subjects that must be excluded when impeachment evidence presents

sufficient danger of unfair prejudice, confusing the issues, or misleading

the jury.

      Swift argues that the State committed Turecek violations in calling

to the stand Ashanti (the shooting victim), Ameshia (her mother), and

Watson (her brother’s girlfriend living at the apartment). But Swift raised
no objection that would have given the district court any inkling he was

contesting their testimony on Turecek grounds. Swift made no objection

before the State called any of the three witnesses to the stand, which

certainly would have been appropriate if he believed that the State knew

any witness had recanted earlier statements and that the witness thus

was being called for the primary purpose of injecting inadmissible hearsay

through impeachment.

      Nor did he make any objection during any witnesses’ testimony

suggesting any Turecek violation.     During Watson’s testimony, Swift’s

counsel objected to a single question, stating that the prosecutor was

“trying to impeach her own witness.” The prosecutor in response correctly

noted that a party may impeach its own witness (see rule 5.607), and the

district court overruled the objection. Swift’s counsel made an identical

objection during Ameshia’s testimony, drawing an identical ruling. Swift

raised no objection to any question during Ashanti’s testimony (other than

a single “asked and answered” objection).       Swift’s counsel thus never

identified, at any time, any Turecek issue for the district court to address.
As a result, Swift failed to preserve error on any Turecek claim for appeal.
                                      9

      Swift asks that, should we find his trial counsel failed to preserve a

Turecek objection, we analyze whether the failure constituted ineffective

assistance of counsel. Senate File 589 amended Iowa Code section 814.7

to disallow resolution of ineffective-assistance-of-counsel claims on direct

appeal.   2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code § 814.7

(2020)). But as Swift correctly recites, he appealed before the amendment

took effect on July 1, 2019, so the amendment presents no barrier to our

consideration of this issue. Id.; State v. Macke, 

933 N.W.2d 226

, 228 (Iowa

2019). To establish ineffective assistance of counsel, a defendant must
show both (1) a breach of an essential duty and (2) prejudice based on a

reasonable probability of a different result sufficient to undermine our

confidence in the outcome. Strickland v. Washington, 

466 U.S. 668

, 694,

104 S. Ct. 2052

, 2068 (1984); State v. Carrillo, 

597 N.W.2d 497

, 499–500

(Iowa 1999) (per curiam).

      But we can’t find the State called a witness as a subterfuge to inject

inadmissible hearsay through impeachment when there’s no evidence that

the State was aware it would need to impeach its witness at all. To be

sure, the record establishes the State had difficulty communicating with

Ashanti in advance of trial.      (The record also establishes that Swift

personally encouraged her not to cooperate in the prosecution.)           But

reluctance to testify isn’t enough, and that’s all Swift offers us. The record

shows the prosecutor met with Ashanti and Ameshia during a lunch break

right before they testified and reviewed evidence of their prior statements

with them. In light of such a meeting, there’s no reason for us to conclude

the State should then expect either witness to deny making their prior

statements or recanting them under penalty of perjury on the stand. When
making the decision to call a witness, the State is not required to speculate

that a reluctant witness will provide false testimony or testimony that will
                                     10

differ from prior statements. United States v. Patterson, 

23 F.3d 1239

,

1245 (7th Cir. 1994). “In fact, quite the opposite is true; ‘an attorney is

entitled to assume that a witness will testify truthfully.’ ”

Id. (quoting United States

v. Carter, 

973 F.2d 1509

, 1513 (10th Cir. 1992), cert. denied,

507 U.S. 922

(1993)). There’s nothing in the record indicating any of the

three witnesses had previously alerted the State of an intention to divert

from any prior statements, let alone recant them.

      More importantly, all three witnesses had admissible, helpful

testimony sufficient for the prosecution to call each of them to testify, even
if Swift had lodged any Turecek objections. All three testified to Swift’s

presence in the area near the shooting in the moments before it happened,

a critical fact considering Swift’s defense centered on the contested issue

of the shooter’s identity. Ashanti testified about the extent and source of

her injuries, which the State was obligated to prove. Ameshia testified to

telling Swift that Ashanti had left the apartment and that Swift didn’t leave

until she told him this. And Watson provided foundation for admission of

Ameshia’s statements about Ashanti’s postshooting phone call sparking

“a whole bunch of emotions” in Ameshia (more on this below).              When

confronted with a witness providing both helpful and damaging testimony,

Turecek doesn’t forbid calling the witness to the stand. Swift thus fails to

establish his trial counsel breached an essential duty necessary for an

ineffective-assistance-of-counsel claim.

                                     III.

      Swift argues that, even if we find no Turecek issues in play, the

district   court   nonetheless   erred      in   permitting   alleged   improper

impeachment of Watson and in admitting three prior taped statements of
Ashanti and Ameshia.
                                     11

                                     A.

      Watson testified to being at the apartment during the argument

between Ashanti and Swift prior to the shooting and recalled her boyfriend,

Eziah (Ashanti’s brother), going out to bring in Ashanti’s child to remove

the child from the situation. But on the stand she couldn’t recall certain

other events from that morning, including some she described to law

enforcement shortly after the shooting.

      The State attempted to refresh her recollection seemingly by reciting

statements from a police report. For example, the prosecutor asked her,
“Do you remember telling the police officer that Ashanti was trying to get

her daughter inside the apartment?”        Swift’s counsel objected to the

question as leading and added that the prosecutor should ask the witness

what she recalled saying without putting words in her mouth. The district

court sustained this objection. But later the prosecutor asked a series of

questions with lead-ins such as, “do you recall telling the officer” and then

making a statement the prosecutor suggested Watson had made. Watson

answered that she recalled hardly any of the statements. But the hearsay

that generally incriminated Swift was made clear. Swift’s counsel lodged

no objections to any of the questions, so error hasn’t been preserved for

appeal. Swift asks us to review them under an ineffective-assistance-of-

counsel lens.

      Because Watson testified that she didn’t recall the events the

prosecutor asked about, “the only subject to be impeached is the witness’s

memory or ability to recollect.” State v. Russell, 

893 N.W.2d 307

, 317 (Iowa

2017). For an out-of-court statement to be admissible as impeachment,

there must be a contradictory statement by the witness. Brooks v. Holtz,

661 N.W.2d 526

, 531 (Iowa 2003). But based on the way the prosecutor

phrased the questions, the prior inconsistent statements recited in the
                                    12

questions appear not to have been used for impeachment to attack a

contradictory statement by the witness but instead to refresh Watson’s

recollection. The prosecutor introduced the questions with phrases such

as “do you remember saying” or “do you remember telling the officer.”

While we’ve said that prior out-of-court statements “may be repeated to

jog the memory of a witness who surprises a party on the stand with [an]

unexpected response,” State v. Reynolds, 

250 N.W.2d 434

, 440 (Iowa

1977), that practice should be limited. When a witness denies having any

recollection in answer to a question, there lurks a danger that reciting an
inconsistent statement to refresh the witness’s recollection will be given

weight as substantive evidence. 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.”     State v. Gilmore, 

259 N.W.2d 846

, 857 (Iowa 1977). The State thus wasn’t permitted to read,

seemingly verbatim, Watson’s out-of-court statements from the police

report under the guise of refreshing her recollection.

      But regardless of whether Swift’s counsel breached an essential duty

in failing to object to these questions, any error is harmless on this

challenge. The jury was instructed that questions from the attorneys were

not evidence, and the prosecutor’s manner of phrasing of these questions

likely somewhat dampened their impact on the jury. More importantly,

other witnesses generally testified to the same facts that Watson denied or

couldn’t remember. Ameshia’s testimony, in particular, covered much of

the same territory. Because the questions were cumulative of testimony

from others, we find any error in counsel’s failure to object was harmless.

See State v. Holmes, 

325 N.W.2d 114

, 116 (Iowa 1982).
                                    13

                                     B.

      Swift argues the district court abused its discretion in admitting into

evidence Exhibit 85, a police body-cam video of a discussion with Ameshia

immediately after the shooting. In the video, Ameshia states that Ashanti

was crying hysterically and told her “Debo shot me.” Swift argues the

exhibit was improper impeachment under Turecek and was inadmissible.

      As an initial matter, no Turecek violation occurs if evidence would

have been admissible under a different evidentiary rule.       See State v.

Russell, 893 N.W.2d at 316

. In State v. Russell, we held a prior out-of-
court statement was admissible under Iowa Rule of Evidence 5.801(d)(1)(C)

for identification purposes notwithstanding a claimed Turecek 

violation. 893 N.W.2d at 317

–18.

      The body-cam video is double hearsay, recording Ameshia’s out-of-

court statement in turn reciting Ashanti’s out-of-court statement. Under

Iowa Rule of Evidence 5.805, hearsay within hearsay is not excluded if

each part meets a hearsay exception. See Madison v. Colby, 

348 N.W.2d 202

, 204 (Iowa 1984) (en banc).        The rationale behind the excited-

utterance exception “is that statements made under the stress of

excitement are less likely to involve deception than if made upon reflection

or deliberation.” State v. Harper, 

770 N.W.2d 316

, 319 (Iowa 2009). Both

Ashanti’s and Ameshia’s statements on the body-cam video meet the

excited-utterance hearsay exception of Iowa Rule of Evidence 5.803(2)

because, according to Ameshia, Ashanti made her statements after having

just been shot and was crying hysterically when she said, “Debo shot me.”

And Ameshia made her statements to police shortly after learning her

daughter had been ambushed and shot. Ameshia admitted she was “very
distraught” and, according to Watson, was experiencing “a whole bunch of

emotions.” When a witness’s out-of-court statement is admissible under
                                    14

a hearsay exception—as with an excited utterance—there is no Turecek

violation. State v. Tompkins, 

859 N.W.2d 631

, 639 (Iowa 2015).

      And in any event, the statements were not hearsay because they

were admissible impeachment evidence.       They were not offered for the

truth of the matter asserted but were necessary to counter testimony by

both Ashanti and Ameshia. Ashanti, at one point, testified that she never

told anyone that Swift shot her. That was false, and the video properly

impeached her testimony on this subject. Likewise, Ameshia testified on

the stand that Ashanti only said that “she got shot,” not that “Debo shot
me.” When asked about her statement in the video, Ameshia testified she

assumed it was Debo, but Ashanti didn’t tell her that.            The video

impeached her testimony. The State properly showed the video to impeach

testimony from both witnesses. The district court included a cautionary

instruction that directed the jury to consider the evidence for

impeachment purposes only. The district court didn’t abuse its discretion

in permitting the jury to see and hear the body-cam video.

                                     C.

      Swift argues the district court abused its discretion in admitting into

evidence Exhibit 87, a recorded call between Ashanti and a man named

Calvin Davis. During the call, Ashanti implied that she believed that Swift

had shot her. Swift argues that Ashanti admitted on the stand to making

these statements to Davis, and thus, the recording should not have been

introduced to impeach her. But Ashanti’s admissions were halting at best

and were at odds with the thrust of her testimony. In State v. Ware, we

held it was proper to introduce the challenged out-of-court statement the

witness attempted to explain away on the stand to let the jury hear the
exact words for purposes of comparison with the in-court testimony. 

338 N.W.2d 707

, 712–13 (Iowa 1983). Opposing counsel may then address
                                     15

any inconsistency.

Id. Ashanti testified that

she would have known if it

had been Swift who shot her, and on that basis, she testified Swift was not

the shooter. That’s contradicted by her statements on the recording when

she said, “Had he not shot me, he could’ve had me,” and “Who the fuck

tries to kill your girlfriend over some dumb shit?” The district court didn’t

abuse its discretion in permitting the jury to hear the recorded jail call.

                                     D.

      Swift argues the district court abused its discretion in admitting into

evidence Exhibit 88, a recording of a police interview with Ashanti and
Ameshia five days after the shooting. Ashanti denied at trial that she ever

identified Swift as the shooter, and she tried to explain away her

statements identifying him as the shooter as the result of police pressure

during her police interview. In the video, Ashanti referred to Swift and

said, “I don’t have no doubt in my mind it probably was him.” She went

on to say she knew the shooter was Swift because she recognized his eyes

and the distinctive way he walked.        She also identified the shooter as

wearing a jacket Swift owned. The video of the interview was admissible

to impeach her testimony on both subjects—that she had, in fact,

previously identified Swift as the shooter and that the police had not

pressured her into identifying Swift in the interview. This evidence was

properly admitted for the limited purpose of impeachment, not as

substantive proof that Swift was the shooter.

      Swift argues that the video, which clocks in at almost thirty minutes,

included other hearsay not otherwise in the record and not otherwise

admissible that the jury might have relied on as substantive evidence and

not for the limited impeachment purpose of evaluating witness credibility.
The State edited the video to remove discussions of prior domestic

incidents between Swift and Ashanti and other discussions that
                                      16

commented on evidence in the case. Swift correctly contends that even

tighter editing would have been more appropriate. But the video’s length

was necessary, to some extent, for the State to counter Swift’s conflicting

allegations that the police questioner badgered Ashanti into incriminating

Swift, on the one hand, and alternatively that the police “kind of

entertained them with this elaborate display of sympathy and compassion

and so forth,” on the other.    The State argues persuasively that these

attacks on the interviewers made a more fulsome picture of the interview

all the more necessary to provide sufficient context so the jury could decide
for itself. The district court didn’t abuse its discretion in permitting the

jury to see and hear the interview.

      Finally, when we grant further review, we have discretion to let the

court of appeals decision stand on specific issues. State v. Doolin, 

942 N.W.2d 500

, 506–07 (Iowa 2020). We do so on Swift’s arguments that he

suffered ineffective assistance of counsel because his lawyer didn’t request

a more specific limiting instruction on impeachment evidence than the

uniform instruction and on his argument that we should apply the plain-

error doctrine to his various challenges to the State’s impeachment

evidence.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

      All justices concur. McDonald, J., files a special concurrence, which

Waterman, J., joins.
                                     17

                                                   #18–2197, State v. Swift

McDONALD, Justice (concurring specially).

      I join the majority opinion, but I write separately because I would

accept the State’s invitation to reconsider and clarify State v. Turecek, 

456 N.W.2d 219

(Iowa 1990), and our jurisprudence in this area.

      As the majority explains, Turecek has been interpreted to preclude

the State from impeaching its own witness where the State’s primary

purpose is to place “before the jury substantive evidence which is not

otherwise admissible.” 

Turecek, 456 N.W.2d at 225

(quoting United States
v. Miller, 

664 F.2d 94

, 97 (5th Cir. 1981) (per curiam)).      As presently

understood, the inquiry focuses on the primary purpose, or subjective

motivation, of the prosecutor offering the evidence. In accord with our

precedents, the majority examines the prosecutor’s subjective motivation

in calling the three challenged witnesses. When did the prosecutor meet

with the witnesses?    What was said?      Was the prosecutor aware the

witnesses would recant? If so, did the prosecutor believe the witnesses

would provide enough helpful testimony such that it could be said the

prosecutor’s primary purpose was to admit the helpful testimony with a

secondary purpose of impeaching the witness?         While these questions

necessarily arise out of Turecek jurisprudence, as presently understood,

these questions are misguided.

      In my view, the admissibility of impeachment evidence, like all

questions regarding the admissibility of evidence, is governed by the rules

of evidence. I would hold the proper inquiry is whether, as an objective

matter and irrespective of the prosecutor’s subjective motivation, the

evidence is relevant and whether the evidence should nonetheless be
excluded because its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, the propensity to
                                    18

mislead the jury, undue delay, waste of time, or the needless presentation

of cumulative evidence. See Iowa R. Evid. 5.403. Several considerations

support moving toward an objective, rule-based standard and away from

the subjective-motivation standard.

      A number of federal circuits have rejected the subjective-motivation

standard and have instead adopted the objective, rule-based standard.

The United States Court of Appeals for the Second Circuit has done so.

See United States v. Zackson, 

12 F.3d 1178

, 1185 (2d Cir. 1993)

(“Nevertheless, the decision to permit a witness to testify at all is
conditioned upon satisfaction of Rule 403’s probative/prejudice balance.

Because the government’s proffer demonstrated that Zackson would offer

no probative testimony, and because the government used Zackson as a

mere conduit to get potentially prejudicial hearsay before the jury, we

conclude that the testimony should not have been allowed.”).         As the

Fourth Circuit explained:

             Federal evidence law does not ask the judge, either at
      trial or upon appellate review, to crawl inside the prosecutor’s
      head to divine his or her true motivation.           Rather, in
      determining whether a Government witness’ testimony offered
      as impeachment is admissible, or on the contrary is a “mere
      subterfuge” to get before the jury substantive evidence which
      is otherwise inadmissible as hearsay, a trial court must apply
      Federal Rule of Evidence 403 and weigh the testimony’s
      impeachment value against its tendency to prejudice the
      defendant unfairly or to confuse the jury.

United States v. Ince, 

21 F.3d 576

, 580–81 (4th Cir. 1994) (emphasis

omitted) (citation omitted).

      Like the Second and Fourth Circuits, the Eighth Circuit eschews

any attempt to dive into the subjective motivation of the prosecutor and

instead applies the rules of evidence:

              We believe, however, that the government’s motive in
      eliciting testimony is irrelevant. Although some courts focus
                                             19
       on determining the “true” purpose of the government in
       introducing testimony, we think that the relevant question is
       simply whether the evidence is admissible under Fed. R. Ev.
       403. In other words, we hold that the proper inquiry is
       whether, as an objective matter and irrespective of the
       government’s motive, the probative value of a statement for
       impeaching the credibility of a witness is “substantially
       outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue
       delay, waste of time, or needless presentation of cumulative
       evidence,” see Fed. R. Ev. 403.

United States v. Logan, 

121 F.3d 1172

, 1175 (8th Cir. 1997) (citations

omitted). The Eighth Circuit reiterated its standard in United States v.

Buffalo, 

358 F.3d 519

, 523–24 (8th Cir. 2004). In that case, the court

“disavowed adherence to any rule that would require trial courts to inquire

into the state of mind of the party calling the witness to be impeached”

and stated “the relevant question is simply whether the evidence is

admissible under Fed. R. Ev. 403.”

Id. (second quoting Logan,

121 F.3d

at 1175).

       In addition to these three circuit courts, it appears the Tenth Circuit

has adopted an objective, rule-based standard as well. In United States v.

Woody, 250 F. App’x 867, 883–84 (10th Cir. 2007) (per curiam), the court

cited Logan and applied the rule 403 analysis. The court stated,

             Rule 403 requires the court to balance the relative
       probative and prejudicial value of evidence. This “serves to
       prevent a party from calling a witness, knowing him or her to
       be adverse, merely to make an end-run around the rule
       against hearsay by impeaching the witness with a prior
       inconsistent statement that the jury would not otherwise have
       been allowed to hear.”

Id. at 883

(quoting United States v. Durham, 

470 F.3d 727

, 732 (8th Cir.

2006)).1

       1Some   circuit courts of appeal still adhere to one form or another of the subjective-
motivation standard. See, e.g., United States v. Burt, 

495 F.3d 733

, 737 (7th Cir. 2007)
(“But neither of those cases makes any mention of a primary purpose. Both cases
reiterate that the test is whether the prosecution calls the witness in bad faith.”); Evans
v. Verdini, 

466 F.3d 141

, 146 (1st Cir. 2006) (stating the doctrine focuses on the primary
                                            20

       Unlike the subjective-motivation standard, the objective, rule-based

standard is supported by the text of the relevant rules.                   Iowa Rule of

Criminal Procedure 2.21(1) provides the “rules of evidence prescribed in

civil procedure shall apply to criminal proceedings as far as applicable and

not inconsistent with the provisions of statutes and these rules.” Rule

2.21 provides some specific rules regarding the corroboration of

accomplice testimony and the confession of a defendant, but it does not

provide any limitation on the prosecutor’s use of impeachment evidence.

See Iowa R. Crim. P. 2.21.
       Similarly, the rules of evidence do not provide for any limitation on

the prosecutor’s use of impeachment evidence. To the contrary, Iowa Rule

of Evidence 5.607 provides “[a]ny party, including the party that called the

witness, may attack the witness’s credibility.”               As the Second Circuit

explained, the rules of evidence are directly contrary to the subjective-

motivation standard:

       To the extent that defendants rely on Morlang for the principle
       that a witness cannot be put on the stand if the side calling
       him knows that he will give testimony that it will have to
       impeach, it seems clear to us that the effect of Fed. R. Evid.
       607, codifying the right to impeach one’s own witnesses
       without special restriction, is to nullify the plausibility of such
       a reading.     The Morlang opinion itself recognizes that
       enactment of Fed. R. Evid. 607 might have such an effect.




purpose of the witness’s testimony considered as a whole); United States v. Gilbert, 

57 F.3d 709

, 711–12 (9th Cir. 1995) (per curiam) (applying primary purpose test); United
States v. Hogan, 

763 F.2d 697

, 702 (5th Cir.) (holding “[t]he prosecution . . . may not call
a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible
impeachment testimony, for such a scheme merely serves as a subterfuge to avoid the
hearsay rule” (emphasis omitted)), rev’d on other grounds, 

771 F.2d 82

(5th Cir. 1985). It
appears the Sixth Circuit has not resolved the question. See United States v. Moore, 495
F. App’x 680, 686 (6th Cir. 2012) (applying the subjective primary purpose test); United
States v. Letner, 273 F. App’x 491, 496–97 (6th Cir. 2008) (stating it need not determine
which standard applied because the evidence was admissible under either standard).
                                    21

United States v. DeLillo, 

620 F.2d 939

, 946–47 (2d Cir. 1980). The only

rule-based reason for excluding relevant evidence is rule 5.403, which

allows for the exclusion of relevant evidence under the following

circumstances:

      The court may exclude relevant evidence if its probative value
      is substantially outweighed by a danger of one or more of the
      following: unfair prejudice, confusing the issues, misleading
      the jury, undue delay, wasting time, or needlessly presenting
      cumulative evidence.

Iowa R. Evid. 5.403. Rather than continuing to adhere to the subjective-

motivation test, I would apply the rules of evidence, which allow any party

to impeach its own witness subject to the balancing approach in rule

5.403.

      In addition to these reasons, our precedents are not inconsistent

with the objective, rule-based approach endorsed in this opinion. The

genesis of our current subjective-motivation rule is Turecek. In that case,

the defendant was charged with sexual abuse in the second degree. See

Turecek, 456 N.W.2d at 221

. The State tried to admit thirteen exhibits of

sexually explicit materials, such as books, pictures, and catalogs. See

id. at 223.

The district court found the exhibits were not relevant to any issue

in the case but admitted the exhibits for the purposes of impeachment.
See

id. This court concluded

the exhibits were not relevant to any issue in

the case and should not have been admitted for the purpose of

impeachment.

Id. at 225.

We reached that conclusion not by looking at

the subjective motivation of the prosecutor but instead by examining the

probative value of the evidence balanced against its prejudicial effect.

Id. at 223–25.

   With respect to one witness, we explained “the items of
testimony which the State asserts to be contradicted by these sexually
                                     22

explicit exhibits are collateral to the issues in the case. The evidence was

not admissible for some proper purpose independent of the contradiction.”

Id. at 224.

With respect to a second witness the State sought to impeach,

we again explained the impeachment was improper because it “pertained

to matters collateral to the issues.”

Id. The State also

claimed the exhibits

were admissible to bolster the credibility of another witness, but we

rejected the argument, concluding “[i]t is not permissible for a litigant to

offer otherwise inadmissible evidence for the sole purpose of corroborating

the testimony of one of its own witnesses on a purely collateral matter.”

Id. at 225.

      It was within the context of the State’s attempt to inject highly

prejudicial and inflammatory collateral matters into the trial that we said

that the State is not allowed to impeach its own witness for the purpose of

putting before the jury inadmissible evidence. See

id. Reconsidered, the rule

announced in Turecek is a narrow one: the defendant suffers undue

prejudice if the district court admits highly prejudicial and inflammatory

impeachment evidence on “purely collateral matters,” i.e., matters that

have no probative value independent of impeachment. See State v. Lasage,

523 N.W.2d 617

, 621 (Iowa Ct. App. 1994) (discussing Turecek and stating

“[i]mpeachment evidence is inadmissible if it goes only to a collateral issue”

and “if the evidence goes to some purpose independent of the

contradiction, it is admissible”), overruled on other grounds by State v.

Williams, 

895 N.W.2d 856

(Iowa 2017).

      This objective, rule-based understanding of Turecek is consistent

with the remainder of our jurisprudence regarding impeachment.

Impeachment evidence is generally allowed when “the statement goes to a
question at issue in the case” and not when it is “collateral thereto.” State

v. Gilmore, 

259 N.W.2d 846

, 853 (Iowa 1977). We subsequently explained
                                     23

in State v. Blackford, 

335 N.W.2d 173

, 175–76 (Iowa 1983), that the test

for impeachment by prior inconsistent statement is whether the

impeachment evidence is “collateral to the issues in the case.” We further

explained:

             Probably the most thorough review which we have
      undertaken concerning the limits of impeaching witnesses
      based on prior inconsistent statements is contained in State
      v. Gilmore, 

259 N.W.2d 846

, 853–58 (Iowa 1977). We there
      approved the rule found in several authorities discussed in
      the opinion that the true test as to collateralness is “could the
      fact, as to which error is predicated, have been shown in
      evidence for any purpose independently of the contradiction.”
      

Gilmore, 259 N.W.2d at 853

.

Blackford, 335 N.W.2d at 176

. The danger of allowing impeachment on a

collateral matter is that “the jury may become distracted and confused by

the attention given to the contradiction,” and “[a]s a result, the jury may

attach undue importance to extraneous matters.” 27 Charles Alan Wright

& Victor James Gold, Federal Practice and Procedure: Evidence § 6096,

Westlaw (2d ed. Oct. 2020 Update) [hereinafter Wright & Gold].            In

contrast, “[e]vidence of prior statements inconsistent with those made by

a witness at the trial on a material matter may, of course, be introduced

for the purpose of impeachment.” State v. Tharp, 

258 Iowa 224

, 235, 

138 N.W.2d 78

, 85 (1965).

      Another case in our Turecek jurisprudence is important to consider.

State v. Tracy, 

482 N.W.2d 675

(Iowa 1992) (en banc), is generally

considered to absolutely prohibit a prosecutor from calling a known

recanting witness and then impeaching that witness’s testimony with prior

inconsistent statements.    A closer look reveals that is an overly broad

reading of Tracy.   In that case, the defendant was convicted of sexual

abuse in the third degree arising out of sexual abuse of his stepdaughter.

Id. at 677.

The stepdaughter had reported to several persons that she and
                                     24

her stepfather had engaged in sexual intercourse on several occasions.

See

id. at 678.

   Prior to trial, the stepdaughter recanted and stated

everything she had said was a lie.

Id. At trial, K.A.

testified that she had made up the story about
      her stepfather sexually abusing her in order to get out of his
      home. She explained that the hard work and long hours
      associated with Tracy’s hog and dairy operation eliminated
      any time she might otherwise have had for social and extra-
      curricular school activities.

Id. The prosecutor then

impeached K.A.’s testimony in several respects.

Id. at 678–79.

    The prosecutor called a doctor who opined on the
truthfulness of K.A.’s testimony, which was in violation of State v. Myers,

382 N.W.2d 91

, 97–98 (Iowa 1986) (en banc). See 

Tracy, 482 N.W.2d at 678

–79. The State also confronted K.A. with her inconsistent statements.

Id. at 679

. 
Finally, the State further supported its impeachment of K.A.

with the testimony of K.A.’s mother, K.A.’s best friend, the school nurse, a

child abuse investigator, and an employee of the sheriff’s office, “all of

whom recounted the graphic complaints of sexual abuse K.A. had

previously related to them.”
 Id.

      This court concluded 
the impeachment evidence was improper and

the defendant was entitled to a new trial.
 

Id. at 679

, 682. 
In reaching that

conclusion, we did not examine the subjective motivation of the prosecutor

but instead examined the probative value of the impeachment evidence

balanced against its prejudicial effect. See
 id. at 679–80. 
In particular, it

was the cumulative effect of the impeachment evidence, including extrinsic

evidence of prior inconsistent statements, that was prejudicial to the

defendant.
 Id. at 680. 
We emphasized that the district court admitted

“various items of evidence that would otherwise be inadmissible.”
 Id. at
679 
(emphasis added). We looked at the “collective prejudicial impact of

[the doctor’s] testimony in conjunction with that given by the others.”
 Id.
                                     25

at 680 
(emphasis added).      We found the defendant suffered prejudice

because of the “prodigious volume of testimony that was admitted under

the guise of ‘impeachment.’ ”
 Id. (emphasis added). We 
concluded “that

the cumulation of this evidence with the other inadmissible testimony . . .

entitle[d] Tracy to a new trial.”
 Id. (emphasis added).

      It 
was within the context of the State’s attempt to inject a significant

amount of cumulative evidence into the trial that we said the State is not

allowed to impeach its own witness for the purpose of putting before the

jury inadmissible evidence. Reconsidered, the rule announced in Tracy is
a narrow one: the defendant suffers undue prejudice if the district court

allows the needless presentation of cumulative impeachment evidence.

      For the purposes of brevity, I will not discuss the remainder of our

Turecek precedents, but in my view, the objective, rule-based standard is

more consistent with the remainder of our Turecek cases than the

subjective-motivation standard. For example, even when the prosecutor’s

primary purpose for calling a witness is to impeach the witness, Turecek

is not violated where the evidence would otherwise be admissible. See

State v. Russell, 
893 N.W.2d 307
, 316 (Iowa 2017) (“The Turecek rule is a

shield designed to prevent the introduction of otherwise inadmissible

evidence, but it cannot be used to prevent the State from using admissible

evidence to impeach a witness. Prior statements of a witness that are

admissible as substantive evidence may be freely employed to impeach a

witness on direct examination.” (citation omitted)); State v. Tompkins, 
859

N.W.2d 631
, 639 (Iowa 2015) (“When a witness’s hearsay statement is

admissible to prove the truth of the matter asserted, there is no Turecek

violation.”); State v. Rojas, 
524 N.W.2d 659
, 662 (Iowa 1994) (“Rojas argues
that the State committed a Turecek violation by calling B.R. to testify,

knowing she would recant her allegations, solely for the purpose of
                                      26

admitting the videotape interview to impeach her recantation. There is no

Turecek violation here because we find the videotape was admissible under

rule 803(24).” (citations omitted)); State v. Kone, 
557 N.W.2d 97
, 101 (Iowa

Ct. App. 1996) (“Kone contends the State’s impeachment of Close at trial

established a violation of the rule set forth in State v. Turecek and

reiterated within State v. Tracy. . . .     We find Close’s testimony was

relevant and admissible as to the events which transpired on the night of

the murder.     Furthermore, the tape recording appears to have been

otherwise admissible under rule 803(24) as direct evidence of Kone’s guilt.
As such, we find no Turecek violation occurred.” (citations omitted)). What

this line of precedents demonstrates is that the admissibility of evidence

is always an objective, rule-based determination and not an inquiry into

the subjective-motivation of the prosecutor.

      Finally, the objective, rule-based standard is more consistent with

the truth-seeking function of the criminal trial than the subjective-

motivation approach.      The State is not required to speculate that a

reluctant witness or recanting witness will provide false testimony. See

United States v. Patterson, 
23 F.3d 1239
, 1245 (7th Cir. 1994). “In fact,

quite the opposite is true; ‘an attorney is entitled to assume that a witness

will testify truthfully.’ ”
 Id. (quoting United States 
v. Carter, 
973 F.2d 1509
,

1513 (10th Cir. 1992)). The subjective-motivation standard denies the

State the opportunity to call a reluctant witness who may testify truthfully

despite pretrial statements to the contrary.

      Further, even if the recanting witness does in fact recant at trial,

allowing the prosecutor to impeach the witness subject to rule 5.403 is
                                     27

consistent with rules of evidence and the truth-seeking function of the

criminal trial:

            The policy underlying Rule 607 is the same policy of the
      relevance rules: promotion of accurate fact-finding. Congress
      abandoned the voucher rule because impeachment evidence
      can be highly probative even when offered by the party calling
      the witness in question. The probative value of such evidence
      stems from the jury’s need to determine the weight to be given
      testimony that bears on facts that are of consequence to the
      issues in the case. But the creation of Rule 403 shows that
      the drafters had less than perfect faith in the jury’s ability to
      properly weigh evidence.         Rule 403 presupposes that
      sometimes a court must intervene to exclude evidence that
      the jury might misconstrue or misuse. Rule 403 adds a
      concern for administrative efficiency to the policy goal of
      accurate fact-finding. This permits courts to exclude evidence
      where it is not needed and, thus, would be a waste of time.
      Importantly, Rule 403 does not compel exclusion of evidence
      but makes it discretionary after the court weighs its costs and
      benefits. By eschewing inflexible principles of exclusion like
      the voucher rule, the drafters demonstrated they had faith in
      the jury’s ability to accurately determine the facts. But at the
      same time the drafters left the courts enough discretion under
      Rule 403 to act when that faith reached its limits.

Wright & Gold § 6093.

      Indeed, not only is it permissible for a prosecutor to impeach his or

her own witness with a prior inconsistent statement, there are legitimate

reasons why a prosecutor can and should be allowed to call a witness
solely for the purpose of impeaching that witness on a noncollateral

matter:

      In fact, there are perfectly legitimate reasons to impeach a
      witness with a prior inconsistent statement even where the
      testimony of the witness is not a surprise to the party that put
      that witness on the stand. A party may call a witness even if
      that witness is expected to produce damaging testimony in
      order to preempt the adversary from calling that witness. By
      exposing the impeachment evidence herself, the party calling
      a witness can portray that evidence in a way far different from
      the way it might be portrayed if it was first revealed by the
      adversary. If the witness being impeached is favorable to the
      party calling her, the impeachment can be accomplished in a
      manner to reduce its sting. If the witness is unfavorable, the
                                     28
      impeachment can be more successful because the adversary
      was not able to first shape the witness’ testimony in
      anticipation of that attack. Those efforts may even increase
      the chances that the witness will recant her in-court
      testimony and return to the version of the facts described in a
      prior statement. The truth may be advanced by these
      strategies since they can neutralize the effects of witness
      coaching. And while the impeachment evidence may have
      some unfairly prejudicial effects, lack of surprise does not
      mean it is clear that those effects outweigh the potential of the
      impeachment evidence to advance the truth.


Id.

      In sum, I 
would accept the State’s invitation to reconsider and clarify

our jurisprudence in this area. The Turecek rule, properly understood,

does not create a categorical rule that bars the State from impeaching its

own witness with prior consistent statements depending upon the

subjective-motivation of the prosecutor calling the witness. Instead, the

admissibility of impeachment evidence, like all questions regarding the

admissibility of evidence, should be governed by the rules of evidence. This

objective, rule-based standard is supported by persuasive authority, the

text of the relevant rules, our case law, and the truth-seeking purposes

underlying the rules of evidence and the criminal trial.

      In applying this rule to the facts of this case, I cannot conclude the

district court abused its discretion in allowing the witnesses’ prior
inconsistent statements into evidence for the purposes of impeachment.

The witnesses were percipient witnesses who had personal knowledge of

the facts of the case. Their testimony and the impeachment evidence were

not collateral to the issues at trial.       The probative value of the

impeachment evidence was not outweighed by any considerations set forth

in rule 5.403. For these reasons, I concur specially.

      Waterman, J., joins this special concurrence.

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