State of Iowa v. Deondra Thomas

IN THE COURT OF APPEALS OF IOWA

No. 19-0379
Filed September 23, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DEONDRA THOMAS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.

Deondra Thomas appeals following his convictions for murder in the first

degree and possession of a firearm as a prohibited person. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.

Heard by Bower, C.J., and May and Ahlers, JJ.
2

MAY, Judge.

Deondra Thomas appeals following his convictions for murder in the first

degree and possession of a firearm as a prohibited person, both stemming from

the shooting death of Jason Roberts. He challenges the sufficiency of the

evidence establishing his identity as the shooter, malice aforethought, and

premeditation. Thomas also claims the district court abused its discretion when it

admitted certain evidence. And Thomas asks us to remand his case so that he

may establish the jury was not drawn from a fair cross-section of the community.

We affirm.

I. Facts and Prior Proceedings

Sometime in the spring of 2018, Aaron Robinson encountered Thomas at a

local barbershop.1 The two men had known each other for more than twenty years.

Thomas showed Robinson a handgun and said, “I wish a motherfucker would play

with me. I’ll blast them.”

Fast forward to the night of June 8—a skirmish broke out outside of MVP

night club. It ended with a shooting.

That evening, Sylvester Todd Gordon had been operating his food-vending

business on the MVP patio. His family and close friends were there to support his

business. Gordon cautioned Shlaan Murray, an intoxicated MVP patron, that his

mother and family were around. Gordon told Shlaan he should not be

disrespectful. The two men “went back and forth, had some words.” Then the two

1 Robinson did not establish the timing of this encounter at trial, but a motion in
limine stated the encounter occurred about two weeks prior to the June 8, 2018
shooting.
3

stepped away from the crowd to talk more. They resolved their disagreement and

went back toward the crowd. Then Gordon saw Chad Murray, Shlaan’s brother.

So he told Chad about his conversation with Shlaan and assured him the issue

was resolved.

Gordon returned to cooking with his friend, Roberts. Later, Gordon found

himself chatting with Chad again off to the side. Shlaan, Roberts, and Chad’s

fiancé joined them.

Meanwhile, Robinson and a friend pulled up in a vehicle outside of MVP.

They observed the scene but did not get out of the vehicle. Robinson saw

Thomas—the accused in this case—walk up to the group gathered together.

Then everyone heard gunshots. Roberts was shot. And he died from his

injuries.

A day or two later, Thomas and his cousin stopped by to talk to Gordon

about the shooting. And then there was a second shooting: someone shot at

Gordon’s house—through his daughter’s window.

Police investigated Roberts’s murder and the shooting at Gordon’s house.

Ultimately, the State charged Thomas with murder in the first degree and

possession of a firearm or offensive weapon by a felon. Both charges related to

Roberts’s killing. The State did not charge Thomas with shooting Gordon’s house.

Through a motion in limine, Thomas sought to exclude testimony about his

conversation with Robinson at the barbershop as well as the shooting at Gordon’s

home. The district court denied Thomas’s motion. A jury found Thomas guilty as

charged. Thomas appeals.
4

II. Scope and Standard of Review

We use differing standards of review for Thomas’s various claims. We

review challenges to the sufficiency of the evidence for corrections of errors at law.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

In reviewing challenges to the sufficiency of evidence supporting a
guilty verdict, courts consider all of the record evidence viewed “in
the light most favorable to the State, including all reasonable
inferences that may be fairly drawn from the evidence.” “[W]e will
uphold a verdict if substantial record evidence supports it.” We will
consider all the evidence presented, not just the inculpatory
evidence. Evidence is considered 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. “Inherent in our
standard of review of jury verdicts in criminal cases is the recognition
that the jury [is] free to reject certain evidence, and credit other
evidence.”

Id. (alterations in original) (citations omitted).

“[W]e generally review evidentiary rulings for abuse of discretion.” State v.

Helmers, 753 N.W.2d 565, 567 (Iowa 2008) (citation omitted). “An abuse of

discretion occurs when the trial court exercises its discretion on grounds or for

reasons clearly untenable or to an extent clearly unreasonable. If we find an abuse

of discretion, we will only reverse if prejudice is shown.” State v. Tipton, 897

N.W.2d 653, 690 (Iowa 2017) (quotation marks and citations omitted).

Finally, “[w]e review constitutional questions de novo. This includes claims

of systematic exclusion of a distinctive group from the jury pool . . . .” State v. Veal,

930 N.W.2d 319, 327 (Iowa 2019) (citations omitted).

III. Discussion

Thomas brings several claims on appeal. He challenges the sufficiency of

the evidence supporting his conviction for first-degree murder in multiple respects.
5

He alleges the district court abused its discretion in permitting evidence of his

barbershop conversation with Robinson and the shooting at Gordon’s house. And

he claims we should remand his case so he may establish the jury was not drawn

from a fair cross-section of the community.

A. Sufficiency of the Evidence

We begin with Thomas’s challenges to the sufficiency of the evidence

supporting his conviction for murder in the first degree. He claims the evidence is

insufficient to establish his identity as the shooter, malice aforethought, and

premeditation.2

2 The jury was instructed as follows:
The State must prove all of the following elements of Murder in the
First Degree under Count 1:
1. On or about the 9th day of June, 2018, the defendant shot
Jason Roberts.
2. Jason Roberts 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 Jason Roberts.
If the State has proved all of the elements, the defendant is
guilty of Murder in the First Degree. If the State has failed to prove
any one of the elements, the defendant is not guilty of Murder in the
First Degree and you will then consider the charge of Murder in the
Second Degree explained in Instruction No. 29.
“Where, as here, the jury was instructed without objection, the jury instruction
becomes law of the case for the purposes of reviewing the sufficiency of the
evidence.” State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018) (citing State
v. Canal, 773 N.W.2d 528, 530 (Iowa 2009) (“[Defendant] did not object to the
instructions given to the jury at trial. Therefore, the jury instructions become the
law of the case for purposes of our review of the record for sufficiency of the
evidence.”)). Thomas did not object to the elements of the first-degree marshalling
instruction. But he did object to the inclusion of instructions for lesser-included
offenses.
6

1. Identity

We first address whether the State provided sufficient evidence to establish

Thomas’s identity as the shooter. Thomas emphasizes that no witness specifically

testified that they saw him shoot Roberts. Nor did investigators discover forensic

evidence tying Thomas to the shooting. Nonetheless, we believe the State

provided ample evidence that Thomas was the shooter.

Thomas’s own cousin, Delmont Thomas, provided incriminating testimony.

He recounted the night of the shooting. He was parked in his vehicle outside MVP

when he heard gunshots ring out. Then Thomas got in the front passenger seat

of the vehicle. When Delmont asked what happened, Thomas stated that

“somebody just put their hands on him,” insinuating he shot someone in response.

When confronted by Delmont again the next day, Thomas told his cousin that

“dude put his hands on him and he shot him.”

This story tracks with other witness testimony. Robinson, who knew

Thomas for more than twenty years, observed the sequence of events from a car.

He saw Thomas walk up to some people who were in a verbal altercation. He saw

Thomas join in. He also saw Thomas had a pistol. And Robinson saw Roberts

step in between Thomas and another individual. It appeared to Robinson that

Roberts was trying to deescalate a confrontation between Thomas and the other

person by placing himself in between them. But Thomas was aggressive toward

Roberts in response. Robinson testified that’s when Thomas “pulled back and

arms reached and bang, bang. The people scattered . . . .”

Another witness at the scene, Chad Murray, described Thomas as having

a “sinister look” that he compared to “the Joker.” Then Murray heard gunfire
7

coming from Thomas’s direction. Murray—and others in the area—ran at the

sound of gunshots. But Thomas walked away methodically, like he was not

surprised or startled by the shots.

Considering this evidence in aggregate, and viewing it in the light most

favorable to the verdict, we conclude the State presented sufficient evidence for

the jury to determine beyond a reasonable doubt that Thomas was the shooter.

2. Malice aforethought

Next, Thomas argues the evidence was insufficient to establish the malice

aforethought element. The jury was instructed that “‘Malice aforethought’ is a fixed

purpose or design to do some physical harm to another which exists before the act

is committed. It does not have to exist for any particular length of time.”3 Accord

State v. Meyers, 653 N.W.2d 574, 579 (Iowa 2002).

Malice aforethought . . . is a term of art used to describe a culpable
state of mind, an essential element of the offense of murder that the
State must prove to the jury beyond a reasonable doubt. However,
it is often impossible for a jury to determine a defendant’s state of
mind without the aid of inference.

State v. Green, 896 N.W.2d 770, 780 (Iowa 2017) (citations omitted). So district

courts may instruct the jury that it may infer malice aforethought from a defendant’s

use of a dangerous weapon. See id. Here, the district court instructed the jury as

such over Thomas’s objection that the related instructions were confusing and

misleading.4 But Thomas does not challenge the instructions on appeal. And he

3 Thomas did not object to this instruction, so it is the “law of the case for the
purposes of reviewing the sufficiency of the evidence.” See Banes, 910 N.W.2d
at 639.
4 Instruction twenty-four stated: “If a person has the opportunity to deliberate and

uses a dangerous weapon against another resulting in death, you may, but are not
required to, infer that the weapon was used with malice, premeditation[,] and
8

did not challenge instruction twenty-six, which stated, “You are instructed that a

firearm is, by law, a dangerous weapon.”

Because we found sufficient evidence that Thomas was the shooter, we find

sufficient evidence that Thomas used a dangerous weapon, a firearm. And the

jury was free to infer malice aforethought from Thomas’s use of a dangerous

weapon. So we find there is sufficient evidence to establish the malice

aforethought element beyond a reasonable doubt.5

3. Premeditation

And finally, Thomas alleges there is insufficient evidence of premeditation

to support his conviction of first-degree murder. He argues “there was no evidence

that he acted with the fixed purpose to cause harm to Roberts.” We disagree.

“To premeditate means ‘to think or ponder upon the matter before acting.’”

State v. Roberts, No. 18-0575, 2019 WL 1953679, at *3 (Iowa Ct. App. May 1,

2019) (quoting State v. Buenaventura, 660 N.W.2d 38, 48 (Iowa 2003)).

“[P]remeditation need not exist for any particular length of time” and can be

demonstrated through circumstantial evidence in three possible ways: “(1)

Evidence of planning activity of the defendant which was directed toward the

specific intent to kill.” Instruction twenty-five stated: “Malice aforethought may be
inferred from the defendant’s use of a dangerous weapon.”
5 Thomas points to the lack of any apparent motive as evidence of no malice

aforethought. See State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003) (“Although
motive for the killing is not a necessary element of second-degree murder,
absence of such motive may be considered on the question whether the defendant
acted with malice aforethought.”). But he does not explain why a lack of apparent
motive would foreclose the jury from making a permissible inference of malice
aforethought from his use of a firearm. Instead, he makes the unsupported
assertion that “[t]he absence of any motive to harm Roberts should have
adequately rebutted the use of the gun to create malice aforethought.”
9

killing; (2) Evidence of motive which might be inferred from prior relationships

between defendant and the victim; and (3) Evidence regarding the nature of the

killing.” State v. Helm, 504 N.W.2d 142, 146 (Iowa Ct. App. 1993).

Here, at least two aspects of the record support a finding of premeditation.

First, days before the shooting, Thomas showed a handgun to Robinson and said

he hoped to use it to “blast” someone. Then, as the State points out, the evidence

established Thomas shot Roberts three times with a semiautomatic pistol. And

the evidence showed that this type of firearm requires the shooter to pull the trigger

and release it with each shot. So the jury could determine Thomas pondered or

thought about his conduct before each pull of the trigger. See State v. Austin, 357

S.E.2d 641, 653 (N.C. 1987) (noting “[t]he evidence indicated that in order to fire

the weapon with which the victims were killed, the trigger must be consciously

pulled for each shot” and further noting “[e]ven though the rifle is capable of being

fired rapidly, some amount of time, however brief, for thought and deliberation must

elapse between each pull of the trigger”), cert. denied 484 U.S. 916 (1987); cf.

Roberts, 2019 WL 1953679, at *3. And so the jury could properly find Thomas’s

conduct was premeditated.

We find sufficient evidence supports Thomas’s conviction for first-degree

murder.

B. Admission of Certain Evidence

Next, Thomas contends the district court abused its discretion in admitting

evidence of his encounter with Robinson at the barbershop where he displayed a

gun and suggested he wanted to “blast” someone that crossed him. He also
10

contends the court abused its discretion in admitting evidence of the shooting at

Gordon’s home.

As a preliminary issue, we address error preservation. Thomas brought his

challenges in a motion in limine, alleging both pieces of evidence were “clearly

more prejudicial than probative.” Typically “a court’s ruling on a motion in limine is

waived unless a timely objection is made when the evidence is offered at trial.”

State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000). Here, Thomas objected at trial

to Robinson’s testimony about the barbershop conversation, but he did not object

to testimony about the shooting at Gordon’s home. Even so, when a motion in

limine is resolved so that the admissibility of the challenged evidence is beyond

question, no objection is needed, and the district court’s ruling on the motion “has

the effect of a ruling.” Id. at 569 (citation omitted). Here, the district court provided

a definitive ruling and its reasoning. So, as to both claims, we believe Thomas

preserved error as to whether the evidence is more prejudicial than probative.

But on appeal, Thomas argues the evidence should have been excluded

under Iowa Rule of Evidence 5.404(b), which prohibits evidence of prior bad acts

in certain instances. Thomas never made this argument before the district court,

and the district court never ruled on the argument.6 So this specific claim is not

preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa

2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily

6 We recognize the probative and unfair prejudicial value of evidence are weighed
against each other in part three of the three-part test to determine the admissibility
of prior-bad-acts evidence. See State v. Putnam, 848 N.W.2d 1, 8–9 (Iowa 2014).
But Thomas never explicitly argued, and the court did not rule on, whether rule
5.404(b) prohibited the admission of the challenged evidence. In fact, we have
found no mention of rule 5.404 in the record.
11

be both raised and decided by the district court before we will decide them on

appeal.”).

As a fallback, Thomas asks us to consider his claim within the ineffective-

assistance framework. Ineffective-assistance claims are established by showing

counsel failed to perform an essential duty and prejudice resulted. State v. Kuhse,

937 N.W.2d 622, 628 (Iowa 2020). So an appellant’s arguments under this

framework necessarily differ from those made in support of a preserved claim. In

cases like this one, where the appellant presents their argument primarily as

though error was preserved and merely mentions ineffective-assistance as a

fallback option, the appellant’s argument is often insufficiently developed for our

review. See, e.g., State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018) (finding the

record insufficient to resolve an ineffective-assistance claim raised as a fallback

when the defendant “only include[ed] a cursory discussion of ineffective assistance

in a footnote”). That is the case here. So we preserve Thomas’s ineffective-

assistance claim for possible postconviction-relief proceedings. See id.

We turn, then, to Thomas’s preserved claim that the district court abused

its discretion in failing to exclude evidence under Iowa Rule of Evidence 5.403,

which provides, “The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” We address each

piece of evidence in turn.

First we consider Robinson’s testimony that Thomas had a gun at the

barbershop and stated he wanted to “blast” someone in an altercation. This

evidence has substantial probative value because it established Thomas had a

desire to use a firearm in a confrontation—establishing a motive for the shooting.
12

And the evidence was not unfairly prejudicial. The jury was instructed,

Evidence has been received concerning another act alleged to have
been committed by the defendant. The defendant is not on trial for
that act.
This evidence must be shown by clear proof to show motive
and for no other purpose.
If you find the other act occurred then and only then may such
other act be considered for the purpose of establishing motive.
You may consider whether the act was recent or remote and
whether the act was similar or dissimilar to the crimes charged in this
case and all other relevant factors in deciding how much weight and
effect to give it.

We presume the jury followed the instructions. See State v. Sanford, 814 N.W.2d

611, 620 (Iowa 2012). So we can be confident the jury considered Robinson’s

testimony about the barbershop conversation only to establish motive and not for

some other improper purpose.

As to evidence that someone shot at Gordon’s home two days after

Roberts’s killing, we also find the district court did not abuse its discretion. The

State presented evidence that the same gun was used to shoot at Gordon’s house

and to shoot Roberts. This was a “who-did-it” case. And because Gordon was

one of the people in close proximity to the shooting, he was a possible suspect.

So evidence that Gordon’s home was shot at—when Gordon was inside the

home—with the same gun used in the killing—could help eliminate Gordon as a

suspect.

Admittedly, the probative value of this evidence may have been limited. But

so was the risk of unfair prejudice to Thomas.7 No evidence tied Thomas to the

7 Thomas does not argue that the evidence would inflame the jury and result in a
first-degree conviction instead of some lesser-included offense. Instead he
argues, “There was a substantial danger that the jury in the present case would
conclude that Thomas shot both Gordon’s house and murdered Roberts because
13

shooting at Gordon’s house. In fact, when asked if he had “any facts or kn[e]w

who shot at [his] house,” Gordon replied, “I don’t have no facts.” So while the

probative value of the evidence may have been low, it was not “substantially

outweighed” by the risk of unfair prejudice. The district court did not abuse its

discretion.

C. Fair Cross-Section Claim

Finally, we address Thomas’s request that we remand his case to the

district court so he may “prove up his claim of systematic exclusion and statistical

evidence of underrepresentation” because State v. Lilly, 930 N.W.2d 293 (Iowa

2019), State v. Veal, 930 N.W.2d 319 (Iowa 2019), and State v. Williams, 929

N.W.2d 621 (Iowa 2019), were decided after his trial. Those cases were remanded

because our supreme court established a definitive methodology for assessing

potential disparities in jury venires—the standard-deviation method—and held

“that jury management practices can amount to systematic exclusion for purposes

of article I, section 10” of the Iowa Constitution. See Lilly, 930 N.W.2d at 302, 307.

While Thomas did not have the benefit of Lilly, Veal, and Williams, which

refined the Plain test,8 we decline to ignore the fact that Thomas’s cross-section

challenge fell far short of meeting any cross-section test. The entirety of Thomas’s

argument at trial was as follows:

Yes, your Honor. We are asking the court to consider re-impaneling
a new jury pursuant to the case of State v. Plain. Under both the
Sixth Amendment of the United States Constitution and article 1,
section 2 of the Iowa Constitution, we identified the racial breakdown

the State indicated that the shooters were one in the same.” This argument toes
the line of conceding Thomas shot Roberts.
8 See State v. Plain, 898 N.W.2d 801 (Iowa 2017).
14

of the prospective jury panel previously,[9] and we believe that that is
not a fair cross-section of the community to enable the common
sense judgment of the community serve as a hedge against
overzealous and mistaken prosecution and preference to
professional or perhaps over-conditioned or biased response of the
judge.
We believe that the numerical standards that we have is
insufficient to have my client, who is an African American, have a fair
and impartial jury on this proposed panel.
....
I’ve made my argument. I think that the court’s option is to—
appropriate response is to impanel a new jury and see whether or
not we have a better statistical response.

But under either the federal or the Iowa constitution,10 Thomas was required

to establish three elements:

(1) that the group alleged to be excluded is a “distinctive” group in
the community; (2) that the representation of this group in venires

9 Prior to Thomas’s motion, the following exchange occurred in chambers:
Defense counsel: Yeah. I just in going—First things first, in
going through the proposed jury panel that we received this morning
so far, I count two individuals identified as being Hispanic, one
individual identified not identifying any race, two identifying as a
mixed race, and two identified as African American.
I may be asking during a break or recess what the statistical
breakout in—I’m sorry. The last one listed is also an African
American. So I may be asking the jury clerk regarding information
and documentation regarding that. Number two—
Thomas: What does that mean? Regarding what their
ethnicity is?
Defense counsel: Yes. And whether or not you’re—
Thomas: It gonna be a problem that they’re African American
or Hispanic?
Defense counsel: No, no. I’m reporting that so that we can
ensure that you are getting a jury of your peers as set forth under the
Iowa—
Thomas: And how many of them are for—
Defense counsel: I counted two identified Hispanic, one did
not identify race, one identified as mixed race, and going all the way
to the end, the very last person is the third African American.
10 We note Thomas cited to article 1, section 2 of the Iowa Constitution in his

motion. But the right to an impartial jury is guaranteed by article 1, section 10 of
the Iowa Constitution. Still we do not interpret this misstep as a waiver of his fair
cross-section claim under the Iowa Constitution.
15

from which juries are selected is not fair and reasonable in relation
to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in
the jury-selection process.

Lilly, 930 N.W.2d at 299 (quoting Plain, 898 N.W.2d at 822).

Thomas did not squarely address any of the three elements. Although he

noted he is African American, he did not specifically identify African Americans as

the distinctive group that was excluded from the jury venire. Although he

mentioned the numbers of prospective jurors self-identifying as African American,

“mixed race,” and Hispanic, it still remains unclear which distinctive group(s)

Thomas sought to identify for purposes of the first element. Thomas also made

no attempt to compare the composition of the jury venire to the community.11 And

he made no attempt to establish systematic exclusion as required under the third

element.

Given this record, we decline to remand so Thomas can have a second

opportunity to “prove up his claim of systematic exclusion and statistical evidence

of underrepresentation.”

IV. Conclusion

Thomas’s conviction for first-degree murder is supported by sufficient

evidence. The district court did not abuse its discretion in admitting evidence. And

on this record, we decline to remand to provide Thomas another chance at a fair

cross-section claim.

AFFIRMED.

11 The State provided some data comparison. However, the burden of establishing
fair cross-section claim rests with the defendant. See Plain, 898 N.W.2d at 821.