State v. Birden

1

STATE OF IOWA, Plaintiff-Appellee, v. RAYMOND DUKE BIRDEN, Defendant-Appellant.

No. 23-0787

Court of Appeals of Iowa

August 7, 2024

Appeal from the Iowa District Court for Black Hawk County, Linda M Fangman, Judge.

A defendant appeals the denial of his motion for new trial.

Daniel A. Dlouhy of Dlouhy Law, P.C., East Dubuque, Illinois, for appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.

Considered by Tabor, P.J., and Badding and Buller, JJ.

TABOR PRESIDING JUDGE

This appeal follows a remand for the district court to apply the correct standard to Raymond Birden's motion for new trial. See State v. Birden, No. 21-0890, 2023 WL 1812845, at *9-10 (Iowa Ct. App. Feb. 8, 2023) (finding court mistakenly deferred to jury's credibility determination). On remand, the court denied Birden's motion using the weight-of-the-evidence standard. But Birden claims the court paid "little more than lip service" to the credibility issues of two State's witnesses. He asks us to grant a new trial or, in the alternative, remand for the district court to have a third shot at applying the proper standard.

Birden also challenges the court's denial of his request to continue the remand hearing so he could "retain or otherwise determine" if his appellate counsel-rather than his trial attorneys-could represent him. He asks for new counsel should we again remand the motion for new trial.

Because the district court applied the new-trial test from State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998), a second remand is unnecessary. And because the court did not abuse its discretion in denying the motion, we decline to order a new trial. We also find no abuse of discretion in the court's refusal to continue the remand hearing for Birden to secure different counsel.

I. Facts and Prior Proceedings

A jury convicted Birden of first-degree murder in the shooting death of Shavondes Martin. Jurors heard evidence that the victim was shot nine times with two types of ammunition and left for dead in a Waterloo alley in May 2018. Neighbors found Shavondes's body near the home of his cousin, Danaesha Martin.^[1] In closing argument, the prosecutor described the killing: "It was an execution and it was personal."

Several weeks before his death, Shavondes communicated with Birden through social media and text messages. The two had a bitter history stemming from an earlier murder. In 2016, Octavious Brown-who Birden called his brother-was shot and killed. Shavondes was one of four people charged with Brown's murder. But he was acquitted in February 2018. Shavondes's acquittal sparked a flurry of hostile exchanges with Birden in early May.

Those clashes were followed by three weeks of silence-but silence like the surface of a hot griddle waiting for grease. The sizzle came when Shavondes sent Birden an audio clip that investigators called "a dis track where one side is disrespecting the other side." In response, Birden texted Shavondes, complaining that he was hiding and a few hours later issued a dare: "Pop out pussy." The two continued to trade barbs, with Shavondes threatening, "all that dissin gone get you a spot by yo brother," to which Birden replied: "I Bet Yu Meet Him Before I Do."

To flush out Shavondes, Birden contacted Danaesha, who was not only Shavondes's cousin but had dated Birden four years earlier. On May 30, Birden messaged Danaesha asking if she wanted to "get high." She agreed and was picked up by Birden and two other friends (Shaquan Coffer and Coffer's girlfriend, Hanna Widdel) in a Jeep Cherokee.^[2] They drove around Waterloo drinking and smoking marijuana. Eventually they picked up Coffer's brother, Dequndes Glasper, who brought more alcohol into the Jeep. In fact, Glasper later passed out from all the drinking.

Meanwhile, using Danaesha's phone, Birden contacted Shavondes and learned his location. Then Birden's group dropped Widdel off at her home and picked up another acquaintance. After that, the group split up between the Jeep and a Mitsubishi that Danaesha had rented.

According to Glasper's version, Birden, Coffer, and their acquaintance loaded into the Mitsubishi. Glasper and Danaesha stayed in the Jeep, which she drove to pick up Shavondes. Shavondes climbed into the front seat with his cousin, and Glasper moved to the back seat. Glasper later recalled Danaesha driving around-speeding, swerving, and hitting the brakes erratically-and at one point stopping the Jeep and disappearing between two garages. When Danaesha returned she drove to her house, telling Shavondes and Glasper that she had to "pee." As they waited for her to return, Glasper moved to the driver's seat, and Shavondes took his spot in the back. Because Danaesha "was taking too long" inside, Glasper believed that Shavondes was getting nervous and irritated.

As they were passing time in the Jeep, Glasper heard a voice say: "Yeah, bitch ass n****. We got you." Glasper told police that it was Birden's voice but he did not see his face. Shavondes reacted by shaking his head and responding: "Damn, y'all got me; y'all got me." But then, in the rearview mirror, Glasper saw a black "police gun" pointed through the rear passenger window. And Glasper recalled hearing Birden list people that Shavondes wronged-including Brown.

Danaesha told a slightly different version of events. She claimed to have driven the Mitsubishi toward Shavondes's location, before she returned to the Jeep. She also testified that it was Coffer and another individual-not Birden- who came to Shavondes's window with a gun. She recalled that Coffer took her out of the Jeep to the Mitsubishi, where Birden was in the passenger's seat. Birden then entered the Jeep, which sped off. Danaesha described the Jeep's occupants: "the unknown male was driving . . . Shavondes was in the passenger seat, Birden was in the rear passenger, and [Glasper] was in the rear driver's seat." She said that as she and Coffer drove around in the Mitsibushi, she "heard a single shot." According to Danaesha, when she and Coffer reconnected with Birden, neither Glasper nor Shavondes were with him. After the shooting, Birden, Coffer, and Danaesha drove to Cedar Rapids. During that drive, she overheard Birden tell Coffer that Shavondes said: "'ah-hah, you got me' or something like that."

As part of the murder investigation, Victor Murillo, the State's firearms expert, examined the fired bullets and casings found in the alley, as well as those removed from the victim's body. Murillo determined that Shavondes was shot with two guns: a pistol and a revolver.

The State charged Birden with murder in the first degree. At the trial, he was represented by state public defenders Steven Drahozal and Les Blair. A jury convicted Birden as charged.

On appeal, the state public defender was appointed to represent Birden, but withdrew when private counsel Robert Montgomery entered his appearance. On Birden's behalf, Montgomery raised two issues. See Birden, 2023 WL 1812845, at *1. First, he claimed that the court erred by not asking the jury to decide whether Glasper was an accomplice whose incriminating testimony required corroboration. Id. at *7. Second, he argued that the court failed to independently evaluate the credibility of the witnesses in deciding his motion for a new trial. Id. at *9. We rejected Birden's first claim but agreed with his second argument. Id. In our February 2023 decision, we conditionally affirmed his conviction but vacated the ruling on the motion for new trial and remanded for application of the correct standard. Id. at *10. Montgomery unsuccessfully sought further review.

Procedendo issued on April 4 and eight days later, the district court set the remand hearing for May 1, providing a copy of its order to the public defender. It does not appear that Montgomery received a copy of that order. Montgomery never withdrew from the appellate case file.

At the remand hearing, Birden was again represented by Drahozal and Blair. They moved for a continuance because Birden wanted to check if Montgomery could represent him at the remand hearing. The court denied the motion to continue, reasoning:

Mr. Montgomery has not filed an appearance in this case. He has not indicated that he intends to represent Mr. Birden. This matter has been set-obviously we knew that the opinion was coming down and that the hearing would be set now for almost a month, and there's been nothing where Mr. Montgomery has filed any sort of appearance. So for that reason, the motion to continue is denied.

Birden told the court that he did not "feel comfortable moving forward." He said he needed time to "get ahold of Robert."

The court told Birden that Montgomery would have had notice of the appeals ruling at the same time as the other attorneys. The court also explained the limited purpose of the hearing: "it's simply because the court of appeals saw some discrepancy in the standard I used." She assured him that Drahozal and Blair were "the two who are certainly versed on what happened at the trial, so we are going to go forward today with that motion for new trial."

Birden interrupted, asking "you're making me move forward with this same motion that you already denied once before?" He continued: "[O]bviously . . . you didn't see merit in his motion." Birden then asked for "a new lawyer to put in a new motion off of [his] transcripts, off of what's in the record." The court offered Birden time to speak to Drahozal and Blair in private, but he rebuffed the offer: "I don't wanna talk to them. I'm firing them for this motion. I'll represent myself pro se."

The prosecutor then piped in: "Quite frankly, Your Honor, in reading the court of appeals decision, quite...