State of Iowa v. Michael James Shivers

IN THE COURT OF APPEALS OF IOWA

No. 22-0437
Filed September 27, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MICHAEL JAMES SHIVERS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Webster County, James A. McGlynn

(trial and motion for new trial) and Angela L. Doyle (sentencing), Judges.

Michael Shivers appeals his convictions for second-degree murder.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Richard J. Bennett, Special Counsel,

for appellee.

Considered by Tabor, P.J., Schumacher, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
2

DANILSON, Senior Judge.

Michael Shivers appeals his convictions for second-degree murder. He

challenges the sufficiency of the evidence supporting his convictions, claiming the

State failed to prove he was not justified in the shooting deaths of Jameal Cox and

Tyrone Cunningham. He further contends the district court abused its discretion

in denying his motion for a new trial based on newly-discovered evidence. Upon

our review, we affirm.

I. Background Facts and Proceedings

In the early morning hours of June 16, 2020, tension grew between two

groups congregated on opposite sides of a residential street in Fort Dodge. Both

groups were armed, and the situation was “at a stalemate.” Eventually, a shot was

fired, and a gun battle ensued. Cox and Cunningham were both shot and died

from their wounds.

Shivers was charged with two counts of murder in the second degree.1

Shivers raised the defense of justification. The matter proceeded to trial, and the

jury found him guilty of murder as charged. Shivers appeals. Facts will be set

forth below as relevant to the issues raised.

II. Sufficiency of the Evidence

The district court instructed the jury the State had to prove the following

elements of murder in the second degree:

1. On or about the 16th day of June 2020, the Defendant shot
Jamael Cox [/Tyrone Cunningham].

1 Shivers was also charged with possession of a firearm as a prohibited person,

but the court granted his motion for judgment of acquittal on that count upon finding
the State had failed to prove he had knowledge he was prohibited from possessing
firearms.
3

2. Jamael Cox [/Tyrone Cunningham] died as a result of being
shot.
3. The Defendant acted with malice aforethought.
4. The Defendant was not justified.

The jury also received instructions on justification. Instruction 34 stated:

The defendant claims he was justified in using reasonable
force to prevent injury to a person, including the defendant.
The defendant was justified in using reasonable force if he
reasonably believed that such force was necessary to defend himself
from any actual or imminent use of unlawful force.
Reasonable force is only the amount of force a reasonable
person would find necessary to use under the circumstances to
prevent death or injury. If in the defendant’s mind the danger was
actual, real, imminent, or unavoidable, even if the defendant was
wrong in estimating it or the force necessary to repel it, the force was
justified if the defendant had a reasonable basis for his belief and
responded reasonably to that belief.
It is not necessary that there was actual danger, but the
defendant must have acted in an honest and sincere belief that the
danger actually existed. Apparent danger with the defendant’s
knowledge that no real danger existed is no excuse for using force.
Reasonable force can include deadly force if it is reasonable
to believe that such force is necessary to resist a like force or threat,
or avoid injury or risk to one’s life or safety.
The State must prove beyond a reasonable doubt that the
defendant’s use of force was not justified.

Instruction 36 stated:

If any of the following is true, the defendant’s use of force was
not justified:
1. The defendant did not have a reasonable belief that it was
necessary to use force to prevent an injury.
2. The defendant used unreasonable force under the
circumstances.
If the State has proved any of these beyond a reasonable
doubt, the defendant’s use of force was not justified. A person is
justified in using reasonable force, including deadly force, if he
reasonably believes the force is necessary to defend himself from
any actual or imminent use of unlawful force.

And instruction 37 stated:

If any of the following is true, the defendant’s use of force was
not justified:
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1. The defendant initially provoked the use of force against
himself, intending to use it as an excuse to injure a person.
2. The defendant initially provoked the use of force against
himself by his unlawful acts unless:
a. A person used force grossly disproportionate to the
defendant’s provocation, and it was so great the defendant
reasonably believed he was in imminent danger of death or
serious injury, or
b. The defendant withdrew from physical contact with
a person and clearly indicated to the person that he desired
to terminate the conflict but the person continued or resumed
the use of force.
If the State has proved any of these beyond a reasonable
doubt, the defendant’s use of force was not justified.

Shivers challenges the sufficiency of the evidence to sustain his convictions,

arguing he “was justified in standing his ground and using a gun to protect himself

and the people [with him].” We review this claim for correction of legal error. State

v. Schiebout, 944 N.W.2d 666, 670 (Iowa 2020). “We will uphold the verdict on a

sufficiency-of-evidence claim if substantial evidence supports it.” Id. “Evidence is

substantial ‘if, when viewed in the light most favorable to the State, it can convince

a rational jury that the defendant is guilty beyond a reasonable doubt.’” Id. (quoting

State v. Trane, 934 N.W.2d 447, 455 (Iowa 2019)).

From the evidence presented at trial, the jury could reasonably have found

the following facts. On the evening of June 15, 2020, and into the early morning

hours, Shivers and various family members and friends gathered in the front yard

of his brother Doc’s house for a celebration of life for Shivers’s sister. The group

was drinking, “hanging out,” and having a cookout. At some point during the

evening, Shivers’s son Deion retrieved his AR-15 from the trunk of his car, where

he usually kept it, and “show[ed it] off” to people. The rifle was not loaded, but
5

Deion had ammunition in the trunk and also “in the center console” of the car. After

Deion was done displaying the rifle, he “[p]ut it back in the trunk.”

During the gathering, Shivers told the group about a “guy [known by the

name ‘Man Man’] who had pulled a gun out on [Deion].” As the evening

progressed, tensions grew between Shivers’s group and another group of people

that had formed “across the street” near a park. Shivers told his group that he

“kept seeing [Man Man] walking by, riding through.” Shivers’s other son, Michael,

walked behind Doc’s house to make sure no one was “coming from the back way.”

Michael learned from a friend behind the house that “some guys,” including Man

Man, “had pulled some guns out” in the back alley. This prompted Michael to go

inside the house and retrieve a nine millimeter handgun. Michael put the gun in

his pants and went to the back alley, but he “didn’t see anything.” Michael then

walked to the street and “stopped and talked” to some people in the other group

by the park, but he didn’t see anyone with guns or sense any “hostility.”2 When he

got back to the house, Shivers told Michael “there’s a car parked down here on the

side of the church.” Michael went to “go check it out,” but “there was not a car

there.”

Meanwhile, Shivers had armed himself with Deion’s rifle, and other

members of the group, Jeremiha and DJ, had also retrieved handguns. Shivers

told the group he saw “somebody passing out guns” in the street. The group was

instructed to “get the fuck down or go inside [Doc’s house], get out of the way.”

Deion thought “a fist fight” was about to take place. Deion, who was unarmed, got

2 Another person from the Shivers group also described members of the two
groups as “comingling” and talking to each other in a friendly manner.
6

down by a vehicle, which he thought was “the safest spot.” Then he “froze” and

heard a “bunch of noise” as shots were fired. Deion “didn’t see anybody shoot

anything,” but he saw Shivers “holding” his rifle. Deion acknowledged that Shivers

was shooting in the direction of the park and that Shivers “could” have fired the

first shot. Deion fled to a back fence, and then he went inside.

Michael also saw Shivers holding the rifle prior to the shooting. Michael

was just about to “go get [his] Uncle Doc” to “diffuse” the situation when “the first

shot happened.” Michael testified the first shot “came from our side,” and he “saw

[Shivers] fire the shot.” Michael then “took cover,” and he could “[n]ot really” tell

where the shots were coming from; after Shivers’s first shot, “[t]he firing was

continuous.” Michael stated he shot a “[f]ew times” “[t]owards the park.” He also

acknowledged he had not told police “everything [he] knew about the case” when

he was first interviewed “[b]ecause [he] didn’t want to get anybody in trouble.”

Michael further testified if Shivers had not first fired the rifle, he wouldn’t have shot

his gun.

Jeremiha testified Shivers was holding the rifle and pointing it toward the

park before the shooting began. Jeremiha stated Shivers “fired the first shot,” and

then “[s]hots began to fly” from both sides. Jeremiha, who was also armed,

acknowledged he had fired “[t]hree” shots. But Jeremiha testified, “The rifle shot

was the first shot that went off.”

Cox’s wife, Savena, testified she and Cox were talking to friends in the

street in front of Doc’s house on what “seemed like just a normal night.” But “a few

minutes before the shooting,” she “start[ed] getting weird vibes” and noticed the

Shivers group was “being very shifty.” Savena testified she heard shots coming
7

from “the Shivers’ house” and “saw flame from over there,” and “then right after

that, they just continued to keep coming.”3 Savena saw Cox “had been shot.”

Savena did not “hear any gun fire [coming from] closer to [her],” and she did not

“see anybody around [her] area” with a firearm.

Police arrived to the scene shortly after the shooting. Cox, who was found

lying in the street, did not have a pulse. The medical examiner testified Cox’s

cause of death was a “gunshot wound to the chest” and agreed his wound was

“consistent with a high-powered rifle being used.” Meanwhile, police arrived to the

scene of a car accident several blocks away. The driver, Cunningham, had

suffered a bullet wound to the leg that had struck a “major artery.” Cunningham

died shortly thereafter. The medical examiner testified his cause of death was

“[b]lood loss due to gunshot wound of the left leg” and agreed his wound was

“consistent with [being inflicted by] a high-powered rifle.”4

Police spoke to Shivers “very brief[ly]” at the scene following the shooting,

during which he did not say anything about “being shot at” or “acting in self-

defense.” A detective interviewed Shivers a few days later. Shivers “described

[the shooting] as a simultaneous eruption of shots and he wasn’t able to say which

side started first.” Shivers commented, “Maybe both sides got tired of waiting to

see who was going to back down first.” Shivers “said with 100 percent certainty

he never had a gun and with 100 percent certainty that he had any ammunition or

3 Savena testified she heard a pistol first and then a rifle; “[i]t was like consecutive.

It was—it didn’t seem like there was a pause in between. I heard that shot, thought
it was firecrackers, looked at my husband and he was shot and at that point it’s
continuous shooting.”
4 There was no evidence of a rifle being used during the gunfire except the AR-15.
8

touched a gun or ammunition that night.” And when asked whether he acted in

self-defense, “He said he didn’t have a gun, had no reason to have a gun, the issue

didn’t involve him or his family, it was involving one person that they were looking

for, so he repeatedly denied having access to a gun or touching a gun at that point.”

Another officer interviewed Shivers a few days later. This time, Shivers

“claimed that he thought that Dinky may have fired the first shot.”5 Shivers further

said there were six shooters from his group, and that he shot “three to four rounds”

on “a .38 caliber revolver” toward the group “down the street.” Shivers stated “that

he was aiming towards Man-Man and he hoped he shot him.” Shivers told the

officer that his son Deion was “inside sleeping” when the shooting took place and

his other son Michael had “left or had disappeared before the shooting started.”

Shivers did not admit to shooting the rifle, nor did he mention self-defense.

That same officer interviewed Shivers again approximately ten days later.

Shivers again stated he fired a .38 revolver, and “[a]gain, he denied shooting the

rifle, although he did talk about touching and holding the rifle” when Deion was

showing it to people earlier in the evening. A .38 caliber revolver was never found.6

Ultimately, law enforcement determined that one person had fired shots from the

park side of the street. Law enforcement ultimately concluded “Shivers fired the

first shot,” using the AR-15.

Shivers did not testify. Shivers’s brother, Ira, testified for the defense,

stating he stopped by Doc’s house for “[a]bout 10, 15 minutes” earlier in the

5 James Davis, who goes by the name Dinky, was on Shivers’s side of the street

that evening and during the shooting.
6 Shivers told police they “would never find it.”
9

evening before the shooting took place. Shivers’s niece, Cierra, also testified, and

stated she was present before and during the shooting. Cierra testified the mood

“changed” after Man Man came over to talk to their group and that Man Man was

wearing a gun on his hip. But she acknowledged she did not “leave” or “go home”

and she was not in fear for her safety. Cierra further testified Man Man neither

threatened nor pulled his gun out to anyone. Cierra could not recall who took the

“first shot,” but she stated the only person she saw with a gun was DJ.

On appeal, Shivers argues “there was plenty of evidence that [he] was

justified in standing his ground and using a gun to defend himself and the people

gathered at the celebration of life.” As support for his claim, he points to evidence

that Man Man, who “was known to be dangerous” and “had problems with at least

one other person” in his group, “was present, displayed a gun, and instilled fear in

the people who were there.” In sum, Shivers claims he “was acting with justification

and the State clearly failed to prove that he was not.”

Upon our review, we conclude the record before us furnishes substantial

evidence from which a jury could find, beyond a reasonable doubt, that Shivers’s

reliance on the defense of justification was unfounded. See State v. Thornton, 498

N.W.2d 670, 673 (Iowa 1993) (noting the jury is free to believe or disbelieve the

evidence and to give weight to the evidence as it sees fit). The State refuted the

defense with proof that Shivers fired the first shot, effectuating an end to the

“stalemate,” using an AR-15.7 See State v. Fordyce, 940 N.W.2d 419, 426 (Iowa

2020) (“The State can meet its burden [to prove justification did not exist] by

7 In sum, three witnesses testified that they observed Shivers with the AR-15, and

two of them stated that Shivers fired the first shot.
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proving . . . [t]he [d]efendant started or continued the incident which resulted in

death.”); State v. Wilson, 941 N.W.2d 579, 591 (Iowa 2020) (finding substantial

evidence to prove lack of justification where defendant started the confrontation).

The jury could also find there was tension between the groups but no

imminent threat. Multiple witnesses testified neither Man Man nor his group were

vocally threatening the Shivers group and described nonthreatening interactions

between the groups that had taken place not long before the shooting. See State

v. Jenkins, No. 21-1718, 2023 WL 4759448, at *7 (Iowa Ct. App. July 26, 2023)

(“[S]ubstantial evidence shows that Jenkins ‘escalated the level of force beyond

what was reasonable under the circumstances.’” (quoting State v. Seley,

No. 22-0419, 2023 WL 2148800, at *6 (Iowa Ct. App. Feb. 22, 2023))). Further,

Shivers’s varying and contradictory statements in three interviews after the

shooting, as well as an absence of statements that he acted in self-defense,

demonstrate his consciousness of guilt. See State v. Cox, 500 N.W.2d 23, 25

(Iowa 1993) (referencing fabrication as indication of a consciousness of guilt);

State v. Van Hemert, No. 19-1273, 2020 WL 5944441, at *4 (Iowa Ct. App.

Oct. 7, 2020) (noting jurors could believe that someone who truly believed they

acted in self-defense would not hide evidence or lie to authorities).

In sum, we conclude there is sufficient evidence in the record to show the

State met its burden to disprove Shivers’s defense of justification, and we affirm

on this issue. Substantial evidence supports Shivers’ convictions for murder in the

second degree.
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III. Newly-Discovered Evidence

Shivers filed a motion for new trial, alleging he had discovered the following

new evidence: “A witness failed to disclose pertinent information as it relates to a

‘hit’ on one of the victims, and that this witness had been threatened not to disclose

pertinent information.” Shivers further claimed, “This information is relevant as it

relates to witnesses who testified at the trial and rebuts their testimony in [his]

favor” and he was “prejudiced as he was unable to investigate this information for

trial and would have likely changed the result.” Following a hearing, the district

court entered an order denying Shivers’s motion.

Shivers challenges the court’s ruling on appeal. A new trial may be granted

“[w]hen the defendant has discovered important and material evidence in the

defendant’s favor since the verdict, which the defendant could not with reasonable

diligence have discovered and produced at the trial.” Iowa R. Crim.

P. 2.24(2)(b)(8). A motion for new trial based on newly-discovered evidence may

be granted if the evidence “(1) was discovered after the verdict, (2) could not have

been discovered earlier in the exercise of due diligence, (3) is material to the issues

in the case and not merely cumulative, and (4) probably would have changed the

result of the trial.” State v. Linderman, 958 N.W.2d 211, 223 (Iowa Ct. App. 2021)

(citation omitted). These factors must be shown by a preponderance of the

evidence. Moon v. State, 911 N.W.2d 137, 151 (Iowa 2018). We review the district

court’s ruling on a motion for new trial based on newly-discovered evidence for an

abuse of discretion. State v. Cahill, 972 N.W.2d 19, 27 (Iowa 2022).
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At the hearing on his motion for new trial, Shivers presented testimony from

his niece, Chyla Shivers, and private investigator Scott Gratias. The court

summarized their testimony as follows:

After the evidentiary record was closed in this case, the
defendant’s niece, Chyla Shivers, came forward with her recollection
of a conversation with one of the original co-defendants, James
Davis, street name “Dinky.” She met with the defendant’s private
investigator, Scott Gratias, after the verdict was received and told
him that “Dinky” had confided in her that he had accepted a contract
to kill Tyrone Cunningham. She developed a theory that since
“Dinky” had agreed to kill Tyrone Cunningham, and since Tyrone
Cunningham was found dead from a bullet wound after being
observed traveling down a street in his car some few blocks from the
celebration of life gathering, it might well be that “Dinky” shot Tyrone
Cunningham in a completely separate incident. Notably her theory
does not account for the shooting death of Jamael Cox.
Scott Gratias did not believe that Ms. Shivers’ theory was
important and material evidence in the defendant’s favor on the
question of whether the defendant fired the gun which caused the
death of Tyrone Cunningham. Instead, the investigator believed that
“Dinky” had the motivation to incite the people who were still present
at the celebration of life gathering to do his dirty work for him. There
was evidence at trial that the mood at the party had changed.
Several witnesses testified at trial that the mood of the party shifted
dramatically over a short period of time and that many of the people
present were on edge and anxious. Specifically, they were made
aware of a sighting of Isaiah Mosley, street name “Man Man,” who
had a reputation for being a very violent and dangerous person. It
was believed that “Man Man” had participated in an earlier shooting
directed at this household. There was some concern that “Man Man”
and others might be staging a drive-by shooting. There was also
evidence that “Dinky” was at the gathering and that he had a gun in
his possession.

Ultimately, the court determined Shivers failed to establish the second and

third factors—that the newly-discovered evidence could not have been discovered

earlier in the exercise of due diligence and was material to the issues in the case

and not merely cumulative. See Linderman, 958 N.W.2d at 223. With regard to

the second factor, the court observed Gratias conducted a “short and basic”
13

interview of Chyla, which included asking “who, what, and when.” The court noted

an exercise of reasonable diligence would have also included asking the other “W”

question “commonly asked by reporters and investigators”—“why.” The court

observed, “It is reasonably likely that had the investigator asked [Chyla], ‘Do you

know why anyone would want to kill Tyrone Cunningham or Jamael Cox?’ her

memory would have been jolted and the information concerning a possible contract

hit on Tyrone Cunningham would have been provided prior to the trial.”

In regard to the third factor, the court found:

[T]he so-called evidence is really nothing more than a theory arrived
at by [Chyla] and then reimagined by the investigator. In [Chyla’s]
theory, the defendant might not be guilty of the murder of Tyrone
Cunningham because it is possible the bullet which killed Tyrone
Cunningham was fired by “Dinky” rather than Michael Shivers, at
some other time or place. Apparently the investigator does not
accept [Chyla’s] theory that the defendant should be exonerated
from the act of firing the bullet which killed Tyrone Cunningham.
Rather, Mr. Gratias asserts that evidence of a contract for the murder
of Tyrone Cunningham is important and material evidence in the
defendant’s favor on the issue of self-defense. However, the record
already showed that the defendant and other members of the group
were fearful and on edge. At the most, this “newly discovered”
evidence suggests that “Dinky” should be given some credit or blame
for inciting those fears and passions but the identity and motives of
the person stirring the pot are not important and relevant to this
defendant’s case. If the theory can be proved then “Dinky” may have
some culpability of his own, but it would be in addition to the
culpability of Michael Shivers, not in place of it. Regardless, the fears
and concerns did not give Michael Shivers permission or license to
fire the first shot. Self-defense and stand your ground justifications
do not allow for the use of preemptive strikes. Even if “Dinky” cleverly
and single-handedly orchestrated the execution of Tyrone
Cunningham by the defendant, the defendant was still responsible
for his own actions.

The district court “is generally in a better position than we to determine

whether evidence, newly discovered, would probably lead to a different verdict

upon retrial, and we have often said we will not interfere with its ruling unless it is
14

reasonably clear that such discretion was abused.” State v. Compiano, 154

N.W.2d 845, 849 (Iowa 1967). We cannot find the court exercised its discretion

“on grounds or for reasons clearly untenable or to an extent clearly unreasonable”

as the Court thoroughly considered the testimony and gave sound reasons in

reaching its conclusion.8 See State v. Jefferson, 545 N.W.2d 248, 251

(Iowa 1996). Accordingly, Shivers has not shown the district court abused its

discretion in denying his motion for new trial based on newly-discovered evidence.

We affirm Shivers’s convictions for second-degree murder.

AFFIRMED.

8 We also note Dinky was at the gathering according to trial testimony, and not a

few blocks down the street where Cunningham ultimately succumbed to his injury.