IN THE SUPREME COURT OF IOWA

No. 14–1239

Filed April 14, 2017

STATE OF IOWA,

Appellee,

vs.

JAMES ALON SHORTER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Douglas F. 

Staskal, Judge.

The State seeks further review after the court of appeals reversed 

the defendant’s conviction based on one of three alternative theories of 

guilt lacking substantial evidence. DECISION OF COURT OF APPEALS 

VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

Jennifer J. Bonzer of Johnson & Bonzer, P.L.C., Fort Dodge, for 

appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant 

Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt 

and Stephanie Cox, Assistant County Attorneys, for appellee.
2

APPEL, Justice.

Richard Daughenbaugh died after he was assaulted by a group of 

people on the banks of the Des Moines River in Des Moines. Four 

people—Kent Tyler, James Shorter, Yarvon Russell, and Leprese 

Williams—were originally charged with murder in connection with 

Daughenbaugh’s death. Tyler was tried separately from the others and 

was convicted of second-degree murder for his role in punching 

Daughenbaugh in the face prior to the group assault which caused 

Daughenbaugh’s death.

In State v. Tyler, we held the evidence in Tyler’s case did not 

support the trial court’s instruction on joint criminal conduct. 873 

N.W.2d 741, 753 (Iowa 2016). Because we could not determine whether 

the jury convicted him under the tainted instruction or under the legally 

supported theory that he acted as a principal or aider and abettor, we 

reversed the conviction and remanded the case to the district court. Id.

at 753–54.

In this case, as in Tyler, a jury convicted Shorter of second-degree 

murder. On appeal, Shorter claimed that there was insufficient evidence 

to support the jury’s verdict under any of the State’s theories. Shorter 

also claimed that if there was insufficient evidence on the joint criminal

conduct theory but sufficient evidence as a principal or aider and 

abettor, the conviction should be reversed under Tyler, 873 N.W.2d 741. 

Shorter additionally claimed that his counsel provided ineffective 

assistance by failing to object to the testimony of a witness that identified 

Shorter when the minutes of testimony did not state that she would 

make such an identification. Shorter further asserted that once this 

tainted evidence was admitted, his counsel should have moved for a 

mistrial. Shorter also claimed that the district court erred when it and 
3

counsel discussed how to respond to questions posed by the jury when 

Shorter was not present. Finally, Shorter claimed that his trial counsel 

gave ineffective assistance for failure to request a stock jury instruction 

on eyewitness identification.

The court of appeals reversed Shorter’s conviction. Relying on 

Tyler, the court of appeals concluded that although there was sufficient 

evidence to support the conviction on the ground that Shorter was a 

principal in the murder or aided and abetted the murder, there was 

insufficient evidence to support the joint criminal conduct instruction. 

See 873 N.W.2d at 753.

We granted further review. For the reasons expressed below, we 

vacate the judgment of the court of appeals and affirm Shorter’s 

conviction.

I. Factual and Procedural Background.

A. Evidence at Trial. The State offered evidence at Shorter’s trial 

which showed that on the evening of August 24, 2013, a group of 

teenagers and young adults began drinking and partying in a parking lot 

at the intersection of Second and Center Street near the Wells Fargo 

Arena and the Des Moines River. Witnesses estimated the size of the 

group was between thirty to fifty people.

Daughenbaugh arrived at the location and parked in the parking 

lot. He appeared drunk when he arrived. He approached the group and 

began participating in drinking and dancing.

A short time after Daughenbaugh arrived, Raymond Shorter, a 

cousin of the defendant here, testified that Tyler struck Daughenbaugh, 

declaring, “Don’t touch me” or “Don’t fucking touch me.” Daughenbaugh 

fell to the ground. At the time of the assault, Monica Perkins was in a 

parked car in the vicinity. Perkins testified that after Daughenbaugh fell 
4

to the ground, a group assembled around Daughenbaugh and jumped 

and stomped on his face. Perkins exited her vehicle and attempted to 

protect Daughenbaugh by lying across his body.

When the group appeared to be about to attack Perkins, her 

boyfriend, Isaiah Berry, attempted to intervene. He was assaulted by the 

group and suffered minor injuries. While the group was assaulting 

Berry, Perkins was able to get off Daughenbaugh’s body and call 911. 

Two young women wrestled the phone from Perkins and threw it toward 

the river. About two or three minutes after Perkins’s 911 phone call, 

Des Moines police arrived at the scene.

Perkins promptly took the police to Daughenbaugh. He moved 

slightly but did not answer questions. Paramedics soon arrived and 

Daughenbaugh was taken to a Des Moines hospital. Daughenbaugh 

died on the morning of August 25. At trial, the medical examiner 

testified that Daughenbaugh had multiple blunt force injuries to his head 

and torso. The medical examiner testified the cause of death was tears 

to the mesenteric artery—the artery that supplies blood to the large and 

small intestines—which caused internal bleeding resulting in death.

At trial, the fighting issue was whether Shorter was involved in the 

assault. The State sought to prove Shorter was one of the participants in 

the assault that led to Daughenbaugh’s death, while the defense, in 

addition to attacking the State’s proof, sought to establish Shorter was in 

the vicinity but not among the people who gathered around 

Daughenbaugh.

The State called Perkins to support its case. Perkins was 

questioned at length about whether she could identify who was involved 

in the assault on Daughenbaugh. Perkins testified that she remembered 

identifying one person from an array of photos on the morning of 
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August 25, but could not provide a description of the person she 

identified. When asked by the prosecutor if she could now identify the 

person she picked in the earlier photo lineup, she stated that she did not 

remember. When pressed by the prosecutor, however, Perkins testified 

that Shorter was one of the persons she saw stomp on Daughenbaugh. 

On cross-examination, Perkins admitted that in an earlier deposition, 

she was unable to identify any of the defendants as having been involved 

in the assault on Daughenbaugh.

B.B., who was seventeen in 2013, testified she saw Shorter in the 

crowd that formed around Daughenbaugh. B.B. testified that she left 

when the crowd formed. B.B. further testified Shorter contacted her 

shortly after the night of the murder and asked B.B. to tell the police that 

Shorter had been with B.B. at a pedestrian bridge some distance away 

from the site of the assault on Daughenbaugh. On cross-examination, 

B.B. admitted that she had given inconsistent answers in an earlier 

deposition and that she had been drinking vodka continuously for about 

three or four hours prior to the murder.

L.S., who was fifteen at the time of the murder, testified she saw 

Shorter kick Daughenbaugh. She testified that after the assault on 

Daughenbaugh began, she left the scene. Like B.B., L.S. too had been 

drinking on the evening of the assault and was impeached by the defense 

regarding inconsistent statements she made to the police and in a prior 

deposition.

T.T., another minor witness, claimed at trial to not remember 

many of the events on the night of the murder. She did, however, testify 

Shorter was not involved in the assault on Daughenbaugh.

Detective Timothy Peak testified as a rebuttal witness for the State. 

Peak testified that after police arrived at the scene, Shorter told him that 
6

he had gone up to Daughenbaugh and kicked him while he was on the 

ground to check to see if Daughenbaugh was okay.

The defense offered evidence that Shorter was not a participant in 

the assault. Berry testified that he knew Shorter and that Shorter was 

not in the crowd surrounding Daughenbaugh. Berry further testified 

that he was positive that Shorter was not one of the people who 

assaulted Berry after his girlfriend had tried to intervene on 

Daughenbaugh’s behalf.

Raymond Shorter also testified at trial. He stated Shorter was near 

the pedestrian bridge at the time the assault began and was not involved 

in it. Similarly, Jontay Williams testified that Shorter was not involved 

and that when the assault broke out, he was talking to a girl down the 

hill near the water. Williams testified that when the fight broke out, he 

called for Shorter and Russell and they immediately left in his car. 

Finally, Nakeba Blair—a friend of Shorter and Russell—testified they 

were not involved in the fight.

B. Jury Instructions and Verdict. The district court instructed 

the jury on first- and second-degree murder. On second-degree murder, 

the jury was instructed that the defendant could be found guilty if the 

jury found “the defendant, individually or through joint criminal conduct 

or through aiding and abetting another, assaulted Richard 

Daughenbaugh,” Daughenbaugh died as a result of the assault, and 

“[t]he defendant, individually or through joint criminal conduct or 

someone he aided and abetted, acted with malice aforethought.”

On joint criminal conduct, the jury was instructed that “[w]hen two 

or more persons act together and knowingly commit a crime, each is 

responsible for the other’s acts done in furtherance of the commission of 

the crime.” Among the elements that the State had to prove in the case 
7

to show joint criminal conduct, the State had to show that “[w]hile 

furthering the crime of assault, the other person or persons committed 

the different crime of murder.”

The jury returned a general verdict finding Shorter guilty of 

second-degree murder. The district court denied Shorter’s motion for a 

new trial and entered judgment. Shorter appealed.

C. Issues Presented. On appeal, Shorter claims the evidence at 

trial was insufficient to support his conviction as a principal, an aider 

and abettor, or under a joint criminal conduct theory and the submission 

of these theories to the jury was erroneous. Shorter also claims trial 

counsel provided ineffective assistance for failing to object and request a 

mistrial when Perkins testified that she saw Shorter stomping on 

Daughenbaugh when the minutes of testimony did not state that Perkins 

would make an identification. Shorter further claims he is entitled to a 

new trial because the district court and counsel discussed how to 

respond to questions posed by the jury when Shorter was not present. 

Finally, Shorter asserts his trial counsel gave ineffective assistance by 

failing to request a stock jury instruction on eyewitness identification.

II. Challenge to Verdict Based on Sufficiency of the Evidence.

A. Standard of Review. Challenges to sufficiency of the evidence 

are reviewed for correction of errors at law. State v. Hearn, 797 N.W.2d 

577, 579 (Iowa 2011). We will affirm a trial court’s denial of a motion for 

judgment of acquittal if the record contains substantial evidence 

supporting the defendant’s conviction. State v. McCullah, 787 N.W.2d 

90, 93 (Iowa 2010).

On a motion for a new trial, the district court uses a weight-of-theevidence test. State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006); State v. 

Reeves, 670 N.W.2d 199, 202 (Iowa 2003). This test is more searching 
8

than the sufficiency-of-the-evidence test, involves questions of credibility, 

and requires the district court to determine whether more credible 

evidence supports one side or the other. State v. Ary, 877 N.W.2d 686, 

706 (Iowa 2016); Nitcher, 720 N.W.2d at 559. We have cautioned trial 

courts, however, “to exercise this discretion carefully and sparingly” 

because of the deference owed to the jury’s credibility determinations. 

State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). We review the trial 

court’s ruling on a motion for a new trial for abuse of discretion. Nitcher,

720 N.W.2d at 559; Reeves, 670 N.W.2d at 202.

B. Positions of the Parties.

1. Sufficiency of the evidence as principal. Shorter first challenges 

the sufficiency of the evidence as a principal. Shorter begins by 

attacking the eyewitness testimony of Perkins and L.S. He directs our 

attention to State v. Henderson, 27 A.3d 872 (N.J. 2011). In Henderson, 

the New Jersey Supreme Court canvassed the evolving scientific 

literature related to eyewitness testimony that raised questions about its 

reliability. Id. at 896–910. Because of the reliability issues, the New 

Jersey Supreme Court imposed limitations on the admission of 

eyewitness testimony in New Jersey courts under the due process clause 

of the New Jersey Constitution. Id. at 928.

Turning to the facts of this case, Shorter notes that Perkins was 

unable to identify Shorter as one of the attackers at her pretrial 

deposition. With respect to L.S., Shorter emphasizes that she admitted 

she had been drinking vodka for three or four hours and was very 

intoxicated at the time of the attack. In contrast, Shorter notes that 

Berry, Raymond Shorter, Blair, and T.T. all testified that Shorter was not 

involved in the assault on Daughenbaugh.
9

Further, Shorter asserts there is no evidence that he directly 

contributed to the death of Daughenbaugh. Shorter notes that the 

coroner testified that Daughenbaugh died as a result of internal bleeding 

to the abdominal cavity caused by tears to the mesentery. Shorter, 

however, points out that Perkins testified Shorter stomped on 

Daughenbaugh’s head. The coroner testified that Daughenbaugh 

suffered head injuries before the abdominal injuries and that the injuries 

to the head did not directly contribute to Daughenbaugh’s death. There 

is no evidence, according to Shorter, that he kicked Daughenbaugh in 

the abdomen. After Daughenbaugh fell to the ground, about fifteen 

people started to kick and stomp him. There was no evidence, however, 

that Shorter’s kick incapacitated him or led to his death.

The State counters that under Iowa Code section 703.1 (2013), “All 

persons concerned in the commission of a public offense, whether they 

directly commit the act constituting the offense or aid and abet its 

commission, shall be charged, tried and punished as principals.” Thus, 

according to the State, there is no difference between liability as a 

principal and liability as an aider or abettor. See State v. Black, 282 

N.W.2d 733, 735 (Iowa 1979).

On the question of causation, the State asserts the convictions 

may be sustained on a theory of aggregate causation. In support of its 

argument, the State cites Paroline v. United States, 572 U.S. ___, 134 

S. Ct. 1710 (2014). In Paroline, the Supreme Court noted “it would be 

anomalous to turn away a person harmed by the combined acts of many 

wrongdoers simply because none of those wrongdoers alone caused the 

harm.” Id. at ___, 134 S. Ct. at 1724. Thus, according to the State, if the 

evidence is sufficient to show that Shorter took part in the assault, the 

State does not have to prove which kick delivered the fatal blow.
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With respect to identity, the State agrees that it has the burden of 

establishing that Shorter participated in the assault. The State notes 

that Perkins identified Shorter as an assailant in a pretrial photo lineup 

as well as at trial. Further, Shorter’s attempt to persuade B.B. to 

concoct a story establishing an alibi and his admission to Detective Peak 

that he kicked Daughenbaugh, if only to see if he was okay, provided 

substantial evidence that Shorter was a participant in the assault. The 

fact that Shorter admitted to Detective Peak that he was in the assault 

area contradicted the testimony of other witnesses who claimed that

Shorter was not in the area.

2. Sufficiency of the evidence on aiding and abetting. On the 

alternative theory of aiding and abetting, Shorter emphasizes that mere 

nearness to, or presence, at the scene of the crime, without more, is not 

aiding and abetting. See State v. Allen, 633 N.W.2d 752, 754–55 (Iowa 

2001). Shorter argues that there is simply no evidence that he advised 

or encouraged anyone to assault Daughenbaugh or cheered the attackers 

on. Shorter claims he was merely present at the scene and that is 

insufficient to support a second-degree murder conviction on an aiding 

and abetting theory.

The State responds that the evidence goes well beyond establishing 

Shorter’s mere presence at the crime scene. Perkins and L.S. testified 

that Shorter participated in kicking Daughenbaugh. A reasonable jury 

could believe that Shorter’s telling police that he kicked Daughenbaugh 

“to see if he was okay” was simply an effort to deflect culpability for the 

crime and was absurd on its face. Once the State established that 

Shorter participated in the assault, the elements of aiding and abetting 

were established.
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3. Sufficiency of the evidence on joint criminal conduct. On the 

theory of joint criminal conduct, Shorter asserts there was no showing 

that he was acting in concert with others to cause the death of 

Daughenbaugh. Further, Shorter asserts there were not two crimes—

instead, everyone was assaulting Daughenbaugh at the same time. As a 

result, Shorter argues the submission of the joint criminal conduct 

instruction was erroneous.

Shorter asserts the case is similar to State v. Smith, 739 N.W.2d 

289 (Iowa 2007). In Smith, we emphasized the need for two separate 

crimes to support a joint criminal conduct instruction. Id. at 294. The 

defendant must act in concert with another for the first crime, and a 

different crime must then be committed by another participant in 

furtherance of the original offense. Id.

The State asserts that joint criminal conduct does not require an 

explicit agreement, but only that the participants acted together. 

Further, the State suggests each kick or stomp inflicted on 

Daughenbaugh constitutes a separate assault. See State v. Hohle, 510 

N.W.2d 847, 849 (Iowa 1994). The State argues that there were, in fact, 

two crimes—the crime of assault and the crime of murder. According to 

the State, the fact that Daughenbaugh’s death was reasonably 

foreseeable from the group assault is sufficient to satisfy the legal 

requirement that the murder be “in furtherance” of the conspiracy. See 

State v. Satern, 516 N.W.2d 839, 844 (Iowa 1994).

4. Impact of unsupported instruction on general verdict. Shorter 

asserts that if any one of the theories of conduct fail, the remedy is a 

remand of the case for a new trial. See State v. Hogrefe, 557 N.W.2d 871, 

881 (Iowa 1996). Shorter points out that when a general verdict is 

returned, it is impossible to tell whether the jury based its verdict on a 
12

legally supported theory or upon a flawed theory. State v. Heemstra, 721 

N.W.2d 549, 558–59 (Iowa 2006).

The State responds by noting that to the extent the evidence did 

not support a joint criminal conduct instruction, there is no reversible 

error. The State recognizes the defendant’s argument that “if any one of 

the theories of conduct fail, the remedy is to remand the case for a new 

trial.” But, the State suggests, the argument is only partially correct. 

According to the State, reversal for an erroneous submission of a joint 

criminal conduct instruction is not required unless there is an 

opportunity for the jury to find the defendant guilty based on anything 

other than the defendant’s own conduct as a principal or aider and 

abettor of the crime charged. State v. Jackson, 587 N.W.2d 764, 766 

(Iowa 1998). In other words, if the verdict must have been based upon a 

finding that Shorter was either acting as a principal or aider and abettor, 

then the erroneous submission of the joint criminal conduct instruction 

does not require reversal. See id.

C. Discussion.

1. Sufficiency of the evidence as a principal. With respect to 

Shorter’s attack on the sufficiency of the evidence for principal liability 

based on causation, we begin by noting that B.B. testified Shorter was 

part of the group forming around Daughenbaugh at the beginning of the 

assault. The evidence showed that once Daughenbaugh fell to the 

ground, the assembled group, yelling and jeering, proceeded to stomp on 

Daughenbaugh. L.S. testified that she saw Shorter kicking 

Daughenbaugh as part of the assault and that she left the scene 

thereafter. Perkins also testified she saw Shorter kick Daughenbaugh as 

part of the group assault. Shorter himself admitted to Detective Peak 

that he kicked Daughenbaugh “to see if he was okay,” thus establishing 
13

that he was at the scene of the crime and not elsewhere as testified by 

defense witnesses. And, Shorter asked B.B. to concoct an alibi for him 

shortly after the murder, implying guilt.

There is thus substantial evidence in the record that Shorter was 

present and that he did more than simply kick Daughenbaugh after his 

death. There is substantial evidence that Shorter was one of 

Daughenbaugh’s attackers prior to his death as part of a group assault.

In Tyler, we considered whether the evidence in that case 

supported liability on a principal theory. 873 N.W.2d at 747. We noted 

while there was substantial evidence that Tyler punched Daughenbaugh 

in the face, knocking him to the ground, the autopsy revealed 

Daughenbaugh’s death was not caused by blows to the head, but by 

tears to the mesentery caused by blows to the abdomen. Id. at 745, 747. 

The state maintained that the jury was entitled to infer that Tyler 

remained at the scene and participated in the subsequent kicking and 

stomping. Id. at 747.

Although we accepted the state’s alternative causation argument, 

we rejected the state’s argument based upon the state’s assertion that 

Tyler participated in the kicking and stomping. Id. We emphasized in 

Tyler that “[n]o witness testified that Tyler . . . was one of the persons 

kicking or stomping on Daughenbaugh’s abdomen.” Id. (emphasis 

added). We noted that the evidence showed there were a significant 

number of persons in the group surrounding Daughenbaugh and “to 

draw the inference that Tyler delivered one of the fatal blows requires 

guesswork and speculation.” Id. It could be argued that under Tyler, 

allowing a jury to draw the inference that Shorter delivered one of the 

fatal blows to the abdomen requires guesswork and speculation.
14

Unlike in Tyler, however, in this case there is substantial evidence 

that Shorter participated in the kicking and stomping when 

Daughenbaugh was on the ground. It would be a misreading of Tyler to 

require the State to present direct evidence that Shorter delivered a kick 

to the abdomen which caused Daughenbaugh’s death in order to support 

a second-degree murder conviction as a principal. Although not all 

blows delivered to Daughenbaugh were a cause of his death, this case 

involves an aggregate group assault in which the State showing who 

delivered which blow to a specific body part is not required. See People v. 

Bailey, 549 N.W.2d 325, 334 (Mich. 1996) (stating in group assault 

context that “it is not necessary that the party convicted of a crime be the 

sole cause of that harm, only that he be a contributory cause that was a 

substantial factor in producing the harm”); Umoja v. State, 965 S.W.2d 3, 

9 (Tex. Ct. App. 1997) (per curiam) (holding, in context of a group assault 

resulting in death of a homeless man, defendant’s conduct combined 

with others together may be sufficient unless conduct of defendant 

clearly insufficient), aff’d on reh’g; accord State v. Texieira, 944 A.2d 132, 

142 (R.I. 2008).

In Tyler, we concluded that there was sufficient causation ground 

on an alternate theory of liability, namely, that Tyler’s actions were 

sufficient to support liability as a principal because it was a factual 

cause of foreseeable subsequent harm. 873 N.W.2d at 748. Under a 

similar theory, it is sufficient to show that Shorter participated in a 

vicious group assault of a victim on the ground. A foreseeable result of 

participating in the group kicking and stomping of a helpless person is 

that the victim may receive blows to the body that cause death. See id.

at 749. Such causation is not so attenuated as to prevent imposition of 

criminal liability. See State v. Garcia, 616 N.W.2d 594, 597 (Iowa 2000).
15

Shorter also challenges the strength of the State’s identity 

evidence. While Shorter cites the New Jersey case of Henderson, no state 

constitutional challenge is raised here regarding the evidence offered in 

this case. See 27 A.3d at 915–18. The sole issue on appeal is whether 

the State offered substantial evidence to support the identification of 

Shorter as a participant in the crime.

On the record before us, we conclude that the State has met its 

burden of producing substantial evidence that Shorter participated in the 

assault. While Shorter was able to impeach Perkins, B.B., and L.S., the 

strength of the identity evidence of these witnesses is a question for the 

jury. See State v. Jordan, 409 N.W.2d 184, 186 (Iowa 1987) (“[Q]uestions 

of witness credibility[] are of course matters reserved for jury 

determination.”). While it is true that Shorter offered testimony from 

several witnesses that he was not at the scene, a jury was free to credit 

the testimony of Detective Peak, who testified that Shorter told him that 

he had kicked Daughenbaugh while he lay prostrate, thereby 

demonstrating his presence at the scene of the crime.

2. Substantial evidence as aider and abettor. We considered the 

sufficiency of the evidence on a theory of aiding and abetting in Tyler, 

873 N.W.2d at 750. In Tyler, we held there was sufficient evidence to 

support the aiding and abetting theory. Id. at 751–52. We noted that 

Tyler’s striking Daughenbaugh while a crowd formed was sufficient to 

support a finding of encouragement of subsequent acts. Id. at 750–51. 

We further noted that a jury could conclude that Tyler did not walk away 

but remained with the crowd while Daughenbaugh was brutally beaten. 

Id. at 751.

To sustain a conviction on the theory of aiding and abetting, 

the record must contain substantial evidence the accused 

assented to or lent countenance and approval to the criminal 
16

act either by active participation or by some manner 

encouraging it prior to or at the time of its commission.

State v. Spates, 779 N.W.2d 770, 780 (Iowa 2010) (quoting State v.

Tangie, 616 N.W.2d 564, 574 (Iowa 2000)).

Here, the evidence of aiding and abetting is even stronger than in 

Tyler. The State’s evidence was that Shorter was present at the 

beginning of the beating and participated in the subsequent kicking and 

stomping of Daughenbaugh. Such evidence is plainly sufficient to 

support an aiding and abetting theory. See Spates, 779 N.W.2d at 780, 

Tangie, 616 N.W.2d at 574.

3. Substantial evidence to support joint criminal conduct instruction.

In Tyler, we considered the question of whether the evidence supported a 

joint criminal conduct instruction. 873 N.W.2d at 752. In Tyler, unlike 

here, the evidence only showed that the defendant had initially punched 

Daughenbaugh in the face, causing him to fall to the ground, establish 

Tyler acted in concert with others or participated in the subsequent 

group assault. Id. On the facts of Tyler, we concluded that there was 

insufficient evidence to support an instruction based upon joint criminal 

conduct. Id. at 753. We further concluded that the error required 

reversal of Tyler’s conviction. Id. at 754.

Although the fact pattern is different in this case, we conclude that 

the teaching of Tyler with respect to the sufficiency of the evidence to 

support a joint criminal conduct instruction is fully applicable here. In 

Tyler, we emphasized that joint criminal conduct requires two acts—

namely, a crime in which the joint actor knowingly participated and a 

subsequent crime that is unplanned but reasonably foreseeable in 

furtherance of the first crime. Id. at 752; see also State v. Rodriguez, 804 

N.W.2d 844, 852 (Iowa 2011); Satern, 516 N.W.2d at 843. The first or 
17

predicate crime in joint criminal conduct must be conducted in concert 

with another. Tyler, 873 N.W.2d at 752. The second crime under joint

criminal conduct must then be in furtherance of the first crime. Id.

Here, it might be arguable that Tyler’s initial assault was a 

separate crime from the group assault. But there is no substantial 

evidence that Shorter acted in concert with Tyler when Tyler first struck 

Daughenbaugh. Shorter contends that the subsequent group beating, 

although it involved multiple assailants, cannot be regarded as multiple 

crimes under our unit of prosecution cases. See, e.g., State v. Love, 858 

N.W.2d 721, 724 (Iowa 2015); State v. Ross, 845 N.W.2d 692, 704–05 

(Iowa 2014); State v. Velez, 829 N.W.2d 572, 579–84 (Iowa 2013). We 

need not decide the issue, however, because, as explained below, even if 

the joint criminal conduct instruction was erroneously given, reversal is 

not required under the facts of this case.

We begin our analysis of the impact of the joint criminal conduct 

instruction with discussion of Tyler. In Tyler, we held that in the context 

of that case, the submission of the faulty instruction required reversal. 

873 N.W.2d at 754. We noted that the general rule in Iowa—contrary to 

that announced by the United States Supreme Court in Griffin v. United 

States, 502 U.S. 46, 60, 112 S. Ct. 466, 474 (1991)—has been where one 

theory of liability is flawed because of insubstantial evidence to support it 

in a multitheory case because of insubstantial evidence, a general verdict 

must be reversed because we have no way of determining which theory 

the jury accepted. Tyler, 873 N.W.2d at 754; see, e.g., State v. Lathrop, 

781 N.W.2d 288, 297 (Iowa 2010); Heemstra, 721 N.W.2d at 558–59; 

State v. Tejeda, 677 N.W.2d 744, 754–55 (Iowa 2004); Hogrefe, 557 

N.W.2d at 881; State v. Pilcher, 242 N.W.2d 348, 354–56 (Iowa 1976); 

State v. Mays, 204 N.W.2d 862, 865 (Iowa 1973).
18

In these cases, we have emphasized that reversal is required 

because there was no way in which we could determine whether the 

jury’s verdict was based upon the flawed jury instruction. See State v. 

Thorndike, 860 N.W.2d 316, 321 (Iowa 2015). In Tyler, we reaffirmed our 

well-established approach and required a retrial when a flawed 

submission of a joint criminal conduct instruction may have tainted the 

jury verdict. 873 N.W.2d at 754. We again reject the State’s invitation to 

disturb our long line of cases generally refusing to adopt the Griffin

approach.

Yet, this case is in a different posture than in Tyler. In Tyler, there 

were arguably two crimes—namely, Tyler’s initial hitting Daughenbaugh 

in the face and then the subsequent group beating. Id. at 752. Thus, it 

was possible that the jury convicted Tyler based on a belief that the first 

assault was the predicate crime and that the subsequent group beating 

was in furtherance of the original crime. Id. at 754. Thus, it was 

possible in Tyler that the jury did not believe that Tyler was guilty of 

second-degree murder as a principal or as an aider and abettor, but 

instead concluded that liability for murder arose only out of joint

criminal conduct. Id.

The State suggests that this case is different from Tyler because in 

this case there was only one crime, namely, the joint group assault of 

Daughenbaugh. The key case is Jackson, 587 N.W.2d 764. In Jackson, 

the evidence showed that the defendant was hired by a woman to kill the 

woman’s ex-boyfriend. Id. at 765. Jackson and the woman stopped the 

ex-boyfriend’s vehicle and then Jackson shot and killed the ex-boyfriend. 

Id. The jury was instructed on theories of liability as a principal and on 

joint criminal conduct, but not aiding and abetting. Id. at 766. We 

concluded that Jackson must have been found guilty either on his own 
19

conduct or as an aider and abettor, and thus it was not a reversible error 

for the district court to have instructed the jury on joint criminal conduct 

instead of aiding and abetting. Id.

In Smith, we repeated the principle that a flawed joint criminal 

conduct instruction does not require reversal “as long as there is no 

opportunity for the defendant to be found guilty based on anything other 

than the defendant’s own conduct as a principal or aider and abettor of 

the crime charged.” 739 N.W.2d at 294. In Smith, however, there were 

other collateral crimes—stolen guns, first-degree theft, and possession of 

methamphetamines—that could have supported a conviction on joint

criminal conduct. Id. at 291, 294–95.

Here, however, for Shorter there are no predicate nonhomicide 

crimes that could have served as a basis for vicarious liability for 

subsequent crimes in furtherance of the original crime. The only crime 

of Shorter’s that could possibly support a joint criminal conduct theory 

for second-degree murder is participation in the group assault on 

Daughenbaugh prior to his death. If the jury found Shorter participated 

in the group assault on Daughenbaugh, however, he would also 

necessarily be guilty of second-degree murder based on liability as a 

principal or under an aiding and abetting theory. As a result, in this 

limited situation, Jackson applies and a retrial is not required. See 587 

N.W.2d at 766.

III. Testimony of Perkins Outside the Scope of the Minutes of 

Testimony.

A. Introduction. Iowa Rule of Criminal Procedure 2.5(3) states,

Witness names and minutes. The prosecuting attorney shall, 

at the time of filing such information, also file the minutes of 

evidence of the witnesses which shall consist of a notice in 

writing stating the name and occupation of each witness 

upon whose expected testimony the information is based, 
20

and a full and fair statement of the witness’ expected 

testimony.

In this case, the minutes of testimony did not state that Perkins 

would identify Shorter as one of the assailants. The minutes simply 

stated that Perkins witnessed the assault and saw “ten to fifteen 

individuals hit, kick and stomp on Mr. Daughenbaugh.” The minutes 

stated that Perkins “would testify to all of these matters in detail.”

A pretrial deposition was taken of Perkins. Perkins testified at her 

deposition that she was too busy trying to save Daughenbaugh’s life and 

not paying attention to who was doing the beating or stomping to make 

an identification.

At trial, however, Perkins, after repeated questioning by the 

prosecution, identified Shorter as a person who jumped on 

Daughenbaugh’s face:

Q: So you identified someone for the police from a 

photograph; is that right? A: Yes, ma’am.

Q: That was involved in stomping on Richard

Daughenbaugh? A. Yes.

Q: And today you can’t recall who that person is? 

A: I just—I don’t know if because I want to block it out of my 

mind. I don’t know. I have a lot of things on my mind right 

now. So I am just kind of —

Q: All right. And you’re also required to answer 

truthfully. So I need you to tell the truth, if you remember 

who this person is that you identified or not. A: Yeah. I 

remember that one over there in the checkered shirt.

. . . .

Q: If you’re telling me that you recognize one of the 

people in the court room today as being involved in stomping 

on Richard Daughenbaugh, yes, I would like for you to 

describe for me where he’s sitting and what he’s wearing. 

At this point, Perkins identified James Shorter.
21

Perkins also identified Yarvon Russell as “stomping” on 

Daughenbaugh. She conceded that she could not identify all of the 

people assaulting Daughenbaugh because “they were taking turns 

jumping up in the air and stomping on him.”

On cross-examination, Shorter confronted Perkins with her 

deposition testimony:

Q: Ma’am, I’ve shown you a deposition transcript. Do 

you recall saying this? A: Yeah, I do.

Q: What did you say at the time? A: That I was too 

busy trying to save that man to remember if it was him.

Q: And that you weren’t paying attention to who was 

actually doing the beating or stomping? A: Yes.

Q: And at that time you weren’t able to say who that 

person was or make any identification; is that right? A: No, 

I wasn’t.

Shorter did not object to Perkins’s identification testimony at trial. 

Shorter filed a motion for a new trial, however, based on newly 

discovered evidence related to Perkins’s eyewitness testimony. In the 

posttrial hearing on the motion for a new trial, Shorter called DeMarco 

Turner as a witness. Turner testified that sometime in May, apparently 

during Shorter’s trial, he ran into Perkins at the courthouse. According 

to Turner, Perkins told him she was testifying in a murder case “trying to 

get probation” or “to get probation.” Turner thought the charges against 

Perkins involved drug charges and driving while barred.

The day of the conversation with Perkins, Turner himself received a 

sentence and was incarcerated in the same cell pod as Shorter in the 

Polk County jail. Turner testified he told Shorter about the conversation 

he had had with Perkins at that time.

In response, the State emphasized that Perkins did not have a deal 

to testify and that Turner did not testify that she did. The State further 
22

argued that there was no suggestion that Perkins did not testify 

truthfully at trial.

The district court denied the motion for a new trial based upon 

Turner’s testimony. The district court noted that Turner conversed with 

Shorter on the very same day as the conversation with Perkins and thus 

the defense should have discovered the information with due diligence. 

The district court also stated that it did not believe the testimony would 

have changed the result of the trial.

B. Standard of Review. The claim that Shorter’s counsel should 

have objected to Perkins’s identification testimony comes to us in the 

context of ineffective assistance of counsel. The parties agree that in 

ineffective-assistance-of-counsel cases, the defendant must show both 

that counsel breached a duty to the defendant and the defendant was

prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 2064 (1984).

C. Positions of Parties. Shorter claims that Perkins’s testimony 

was a complete surprise to the defense. According to Shorter, the 

defense expected Perkins to testify about the context of the fight, not that 

Shorter participated in the crime. According to Shorter, the pretrial 

deposition of Perkins was not harmful to Shorter. Instead, according to 

Shorter, Perkins became “a star witness” at trial.

Shorter asserts that his trial counsel provided ineffective 

assistance of counsel by failing to object to Perkins’s identification 

testimony as outside the scope of the minutes in violation of Iowa Rule of 

Criminal Procedure 2.5(3). He further asserts that counsel was

ineffective for failing to seek a mistrial as a result of the unexpected 

testimony.
23

Shorter claims prejudice because he could have cross-examined 

Perkins more effectively if he had notice of her testimony. Shorter claims 

that even a cursory review of her criminal record would have reflected 

that at the time of her testimony, she had pending charges for driving 

while barred.

Shorter further cites the posttrial testimony of Turner. Shorter 

points out that Perkins’s pending charges were dismissed two weeks 

after the trial. Even if there was no deal with Perkins related to her trial 

testimony, Shorter argues that he could have argued that the reason she 

changed her testimony was “to save her own skin.”

Shorter further asserts that with more notice, Shorter could have 

successfully challenged the reliability of Perkins’s testimony and 

prevented admission. According to Shorter, Perkins’s identification was 

unreliable and was simply based on her repeatedly seeing Shorter in the 

criminal proceedings.

The State responds that the minutes provided Shorter with 

adequate notice. According to the State, Shorter knew that Perkins 

would testify about what she observed during the attack and her in-court 

identification was “consistent with the overall nature of the minutes.” 

State v. Ellis, 350 N.W.2d 178, 182 (Iowa 1984).

The State further claims that Shorter failed to demonstrate 

prejudice. The State claims that the minutes put Shorter on notice of the 

necessity of further investigation of the witness’s probable testimony. 

See State v. Musso, 398 N.W.2d 866, 868 (Iowa 1987). Further, the State 

argues that Perkins’s in-court identification was cumulative of the 

testimony of Detective Garcia that Perkins had circled a photo of Shorter 

and identified him as one of Daughenbaugh’s assailants, the testimony of 

L.S. that she saw Shorter kick Daughenbaugh, and the testimony of B.B.
24

that Shorter was part of the crowd that surrounded Daughenbaugh when

he was being beaten.

D. Iowa Caselaw Regarding Pretrial Disclosure in Criminal 

Cases. In Iowa, the question of the degree to which the prosecution is 

required to disclose to the defendant the facts underlying a prosecution 

has been controversial in our courts since the beginning of statehood. 

For example, in State v. Bowers, the court considered whether a witness 

could testify in a criminal trial beyond the scope of the minutes of the 

witness’s testimony before the grand jury. 17 Iowa 46, 50 (1864). Chief 

Justice Wright noted that he was “instructed” to announce the majority 

view that the requirement that a defendant be presented with minutes of 

testimony of a witness before the grand jury did not require the 

prosecution to “exclude anything else he may know or recollect on the 

subject” in a subsequent prosecution. Id. Chief Justice Wright, however, 

indicated that the very object of providing minutes testimony to be 

returned with an indictment would be practically defeated by the 

majority’s approach. Id. at 51.

The divergence of approach to disclosure obligations of the 

prosecution in Bowers resurfaced in State v. Miller, 259 Iowa 188, 142 

N.W.2d 394 (1966). In Miller, the court considered disclosure under 

section 780.10 of the Iowa Code which required that notice be given of 

“the substance of what he [the prosecutor] expects to prove by him [the 

witness] on the trial.” Miller, 259 Iowa at 195–96, 142 N.W.2d at 399

(quoting Iowa Code § 780.10 (1962)). The minutes of testimony indicated 

that a Detective Petersen was to testify regarding admissions made by 

the defendant. Miller, 259 Iowa at 195, 142 N.W.2d at 399. Petersen’s 

testimony, however, was suppressed by the trial court. Id. At trial, the 

state offered testimony from Detective Iversen. Id.
25

A five-member majority of the court held that the minutes were 

adequate. Id. at 196, 142 N.W.2d at 399. The majority emphasized that 

the defense knew the admissions were made to two police officers and 

also knew the general nature of the claimed admissions. Id. at 196, 142 

N.W.2d at 399. The majority emphasized that although the minutes 

were brief, mere brevity does not prevent a witness from testifying. Id. 

The majority further noted that the state is not limited to the minutes or 

notice in its examination of witnesses. Id.; see also State v. Thom, 236 

Iowa 129, 131, 17 N.W.2d 96, 97 (1945); State v. Harding, 204 Iowa 

1135, 1150, 216 N.W. 642, 649 (1927).

Justice Becker, for himself and three other justices, dissented. 

Miller, 259 Iowa at 199, 142 N.W.2d at 401 (Becker, J., dissenting). The 

dissent emphasized that Detective Iverson testified with respect to two 

separate sets of admissions by the defendant. Id. at 200, 142 N.W.2d at 

402. According to the dissent, one set of admissions was fully disclosed 

in the minutes, but the other set was not disclosed. Id. The dissent 

noted that the prosecution “strongly relied” upon the fact that the 

defendant gave two versions of the story in urging the sufficiency of the 

evidence to sustain the conviction. Id. The dissent emphasized that 

“[n]o hint of this deviation” in the defendant’s admissions was contained 

in the minutes. Id. at 200–01, 142 N.W.2d at 402. The dissent regarded 

the court’s casual approach to the statutes as amounting to “judicial 

repeal of a legislative enactment.” Id. at 204, 142 N.W.2d at 404.

We next considered a challenge to testimony as outside the 

minutes in State v. Salter, 162 N.W.2d 427 (Iowa 1968). In Salter, the 

original minutes indicated that the victim would testify that the 

defendant had assaulted her with intent to commit rape, but at trial, the 

victim testified that the “rape had been accomplished.” Id. at 431. The 
26

state, however, filed a notice of additional testimony indicating that the 

defendant “did commit rape.” Id.

Over the dissent of Justice Becker and one other justice, the Salter

majority found no infirmity. Id. at 431–32. The majority emphasized 

that a witness is not limited to the minutes in his actual testimony. Id.

at 431. The court noted, however, that by filing the minutes of additional 

testimony, the state followed “the safer, better, and fairer practice” since 

the court had been far from unanimous in its prior cases on the subject. 

Id.

Although Justice Becker had been a dissenter in Miller and Salter, 

he relented in State v. Cunha, 193 N.W.2d 106, 108 (Iowa 1971). In 

Cunha, a defendant charged with murder and aggravated robbery 

challenged the testimony of a witness who identified the defendant as 

one of four men who committed one of the robberies in question. Id. at 

110. The minutes revealed that the witness would “describe the subjects 

she saw involved in the robbery” and would testify that “after the robbery 

she was able to identify the defendant Thomas Hinsey from a group of 

photographs of possible suspects.” Id. At trial, the witness also 

identified Cunha as one of the robbers. Id. The defendant claimed 

surprise. Id. The Cunha court rejected the defense challenge to the 

testimony with the brief observation that a witness identified in the 

minutes was not limited to the minutes in subsequent testimony. Id. at 

111.

If our law was frozen in place in 1971, Cunha would be substantial 

authority supporting the position of the State in this case. But the law 

has evolved. That evolution is reflected in State v. Walker, 281 N.W.2d 

612 (1979).
27

In Walker, the minutes of testimony indicated that a witness would 

testify regarding seeing the defendant in the rear of a motor supply 

company with another person looking at tires which were later stolen 

from the building. Id. at 614. At trial, however, the witness testified 

regarding business records and the lack of a receipt for the sale of tires. 

Id. We held that the testimony of the witness was beyond the scope of 

the minutes and reversed the defendant’s conviction for third-degree 

theft. Id. at 615.

We began our opinion in Walker by considering whether the 

adoption of Iowa Rules of Criminal Procedure in 1978, in particular rules 

4(6)(a) and 5(3)—the predecessor to rule 2.5(3)—worked a substantive 

change from the previous statutory requirement of Iowa law related to 

disclosure of minutes of testimony. Id. at 613. We concluded there was 

a substantial change in law. Id. We noted that the question of the scope 

of disclosure in minutes had been “hotly contested” throughout the years

by defense counsel and “frequently the subject of criticism by members 

of this court.” Id. We cited the holding in Cunha that a witness is “not 

limited to those minutes in his actual testimony.” Id. (quoting Cunha, 

193 N.W.2d at 111). We noted that “[t]his rule has been severely 

criticized, both from within and without the court.” Id.; see Miller, 259 

Iowa at 199, 142 N.W.2d at 401.

We noted it was in this setting that the language of rule 5(3) was 

adopted. Walker, 281 N.W.2d at 613. We concluded that the purpose of 

the changes was “to assure minutes which would eliminate most claims 

of foul play and would provide meaningful minutes from which a defense 

could be prepared.” Id.

We then considered whether the witness’s testimony regarding 

business records was sufficiently noticed in the minutes. Id. at 614. We 
28

explained that minutes need not detail “each circumstance of the 

testimony,” but must be sufficient to fully and fairly “alert defendant 

generally to the source and nature of the evidence against him.” Id. We 

noted that even the state conceded that it did not know about the 

business records until trial was underway. Id. The minutes did little 

more than identify the witness and state the conclusion that the tires in 

question were stolen. Id. We stated, “Under the new rules defendant is 

entitled to more.” Id. We held that the new evidence should have been 

excluded on the ground that it was outside the scope of the minutes. Id.

at 615.

Since Walker, we have considered a number of cases involving rule 

5(3) with mixed results. In State v. Olsen, we reversed a conviction where 

the minutes revealed that a peace officer would testify regarding evidence 

obtained from a vehicle, tagged packages, and receipt of a BCI criminalist 

report, but did not disclose that the police officer was a DCI agent with 

training and expertise in drug investigations. 293 N.W.2d 216, 220–21

(Iowa 1980). In Musso, 398 N.W.2d at 868, and State v. Waterbury, 307 

N.W.2d 45, 51 (Iowa 1981), we found that testimony exceeded the scope 

of the minutes but held that there was no reversible error because the 

defendant was not surprised by the testimony. In several other cases, we 

found that the minutes of testimony were sufficient to provide notice of 

testimony offered at trial. Ellis, 350 N.W.2d at 182; State v. Lord, 341 

N.W.2d 741, 743 (Iowa 1983); State v. Ristau, 340 N.W.2d 273, 275 (Iowa 

1983).

In sum, the question of the scope of proper disclosure by the 

prosecution of minutes of evidence prior to trial has been hotly 

contested. As indicated in Walker, caselaw prior to 1978 is undermined 

by the advent of Iowa Rule of Criminal Procedure 5(3), now rule 2.5(3), 
29

which amounted to a substantive change in law designed to promote 

greater disclosure. 281 N.W.2d at 613. Notwithstanding the more 

stringent requirements of Iowa Rule of Criminal Procedure 2.5(3), there is 

no requirement that the minutes of testimony provide a complete 

catalogue of witness testimony at trial, but only that the defense be 

placed on fair notice and not subject to surprise testimony.

E. Development in the Law of Eyewitness Identification. This 

case, of course, involves the lack of disclosure in minutes that Perkins

would identify Shorter as one of Daughenbaugh’s attackers. The 

reliability of eyewitness testimony has been the subject of intense 

commentary in academia and in the courts. According to one article, 

“eyewitness misidentification is by far the most frequent cause of 

erroneous convictions.” Samuel R. Gross, Loss of Innocence: Eyewitness 

Identification and Proof of Guilt, 16 J. Legal Stud. 395, 396 (1987). Yet, 

juries often attach great weight to eyewitness identification without 

consideration of reliability. See State v. Hunt, 69 P.3d 571, 576–77 (Kan. 

2003) (noting that juries “usually attach great weight to eyewitness 

identification, while others involved in a trial know and other disciplines

have documented that such identification is often unreliable”).

Preparing for eyewitness identification is an essential responsibility 

of defense counsel. Eyewitness testimony may have a dramatic influence 

on overall defense strategy or theory of the case. Defense counsel must 

consider a pretrial motion to suppress. Voir dire may be used to educate 

the jury about honestly mistaken witnesses. Defense counsel must be 

prepared to explore the potential for error in the identification process 

through effective cross-examination. Cross-examination, however, is not 

likely to be effective when a person is genuinely mistaken about past 

events. Consideration should be given to obtaining expert witness 
30

testimony of the problems with eyewitness identification. See State v.

Schutz, 579 N.W.2d 317, 319 (Iowa 1998) (holding admission of expert 

witness on eyewitness identification within sound discretion of the 

court); see also People v. McDonald, 690 P.2d 709, 725–26 (Cal. 1984) (en 

banc) (holding exclusion of expert on reliability of eyewitness testimony 

was an abuse of discretion), overruled on other grounds by People v. 

Mendoza, 4 P.3d 265, 286 (Cal. 2000). Special instructions for the jury 

may need to be considered. Summations must be designed to deal with 

the eyewitness identification.

Many of the most troublesome cases involve identification of 

strangers. Careful consideration by counsel of eyewitness identifications 

extends to identifications of persons known to the witness and not 

simply to identification of strangers. James E. Coleman Jr., et al., Don’t I 

Know You? The Effect of Prior Acquaintance/Familiarity on Witness 

Identification, 36-Apr. Champion 52, 53–54 (April 2012). Without timely 

disclosure of eyewitness identification, defense counsel’s ability to mount 

an effective defense may be substantially impaired.

F. Discussion. In light of the developments in our caselaw and 

the importance of eyewitness identification in a criminal trial, we 

conclude that under Iowa Rule of Criminal Procedure 2.5(3), the minutes 

of testimony must disclose eyewitness testimony. Eyewitness testimony 

is a central part of trial and cannot be confronted by defense counsel on 

the fly. Although the prerule 2.5(3) case of Cunha is to the contrary, we 

think it clear that under the more demanding approach adopted by 

Walker, eyewitness identification must be disclosed by the prosecution.

Yet, this general rule does not necessarily entitle Shorter to relief. 

This case has its peculiarities. While there is nothing in the minutes to 

indicate that Perkins would identify Shorter as one of the persons kicking 
31

Daughenbaugh during the assault, the defense was on notice that 

Perkins was at the scene and would testify about the events leading to 

Daughenbaugh’s death. As a result, the defendants took the deposition 

of Perkins and defense counsel asked Perkins point-blank if she could 

identify Shorter. She did not make the identification at her deposition.

Ordinarily, we think it incumbent upon the State to disclose in the 

minutes of testimony if a witness will identify a defendant as engaging in 

criminal conduct. The record here, however, does not establish that the 

State knew, in advance of trial, that Perkins would identify Shorter when 

she took the stand. While at trial the prosecution pressed Perkins and 

successfully got her to identify Shorter, Shorter has not established that 

the prosecution had prior knowledge that such testimony would be 

forthcoming.

In addition, it is not entirely clear what Shorter’s trial counsel 

knew. Counsel for both Shorter and Russell were able to cross-examine 

Perkins by confronting her with her testimony in her deposition 

indicating that she could not specifically identify the perpetrators. It is 

possible that although the minutes of testimony did not specifically 

mention that Perkins would identify Shorter, they were nonetheless 

prepared for the eventuality that she would make an in-court 

identification and made appropriate strategic decisions. Under our 

caselaw, a defendant is not entitled to relief due to defective minutes 

under rule 2.5(3) when the defense is not surprised by the subsequent 

testimony. Further, Shorter’s counsel may have made the strategic 

decision that the trial was going well enough to take a pass on a motion 

for a mistrial.

Additionally, we do not have a clear picture regarding prejudice to 

the defendant. While this case is on direct appeal, the failure to object to 
32

the eyewitness testimony and the failure to seek a mistrial is presented 

to us as an ineffective-assistance-of-counsel claim. Even if a breach of 

counsel’s duty is present, Shorter acknowledges that he must show 

prejudice under Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The 

record concerning potential prejudice has not been fully developed.

Because of the factual uncertainties surrounding the claimed 

ineffective assistance of counsel arising out of the deficient minutes, we 

conclude that this claim cannot be resolved on direct appeal and should 

be addressed in an action for postconviction relief.

IV. Discussion of a Jury Question Outside the Presence of 

Defendant.

A. Introduction. A criminal defendant has the right to be 

personally present at every stage of the trial. State v. Wise, 472 N.W.2d 

278, 279 (Iowa 1991) (per curiam). Further, under Iowa Rule of Criminal 

Procedure 2.19(5), if the jury desires to be informed on any point of law 

arising from the case after it has retired, the court must conduct 

proceedings “in the presence of defendant and counsel for the defense 

and prosecution, unless such presence is waived.” Iowa R. Crim. P. 

2.19(5)(g).

Under our caselaw, there is no discretion regarding the presence of 

defendant and counsel. State v. Griffin, 323 N.W.2d 198, 201 (Iowa 

1982). When the rule is violated, a presumption of prejudice is 

presumed unless the record shows to the contrary. Id.

In this case, after the case was submitted to the jury, the jury 

asked a question. Specifically, the jury asked, “Judge Staskal, if we 

determine a level of guilt, example second degree murder, does it have to 

include all lesser charges to be convicted of that charge?”
33

Judge Staskal and the lawyers all agreed to respond to the jury by 

simply asking it to “reread the instructions. They contain all of the 

applicable law in the case.” Shorter was not present when the jury’s 

question was discussed.

B. Standard of Review. This question is presented in the context 

of ineffective assistance of counsel and the parties thus agree that the 

two-pronged approach in Strickland is applicable. 466 U.S. at 687, 104 

S. Ct. at 2064.

C. Positions of the Parties. Shorter maintains that the 

defendant’s presence at such proceedings is “of greatest importance[] as 

he may be able to suggest to the court or counsel some information” and 

might be able to “except” to the ruling of the court. See Griffin, 323 

N.W.2d at 201 (quoting State v. Snyder, 223 N.W.2d 217, 221 (Iowa 

1974)). According to Shorter, the question posed by the jury “raised 

serious questions” concerning the effect of the jury’s confusion over the 

meaning of crucial terms in the instructions. Id. Shorter argues that 

prejudice is inherent as it is difficult to know what exactly the jury was 

even talking about in the question.

The State responds that it would have been a “logistical nightmare” 

to get three codefendants to court on short notice as the jury question 

came in at 3:40 p.m., and shifts were changing, and people would be 

getting off work at 4:30 p.m.

The State further argues that even if there was a breach, there was 

no prejudice. The State notes the presumption of prejudice arises only 

when both the defendant and counsel are absent. Id. at 199–201. 

Further, the State contends there cannot possibly be prejudice when the 

judge’s response to the question was “reread the instructions.”
34

D. Discussion. At the outset, we reject the State’s argument that 

the practical considerations raised provide a defense to Iowa Rule of 

Criminal Procedure 2.19(5)(g). Our rules of criminal procedure are not 

applicable only when convenient to the State. We decline to approach 

our rules as only suggestions, guidelines, or best practices.

The leading case in the area is Griffin, 323 N.W.2d 198. As Shorter 

points out, Griffin held—under a precursor to our current rule—that the 

district court has no discretion regarding the presence of counsel and the 

parties when the jury raises a point of law. Id. at 201. In Griffin, the 

jury was struggling over the definition of “physical injury” and “assault.” 

Id. at 199. Without consulting with counsel or the parties, the district 

court instructed the jury, “You will have to define the terms from the 

language given in the instructions and reconcile any definitions as best 

you can by reading the instructions.” Id. We concluded that violation of 

the court rule gave rise to a presumption of prejudice and that the 

response to the jury’s serious question over crucial terms could have 

influenced the result. Id. at 201.

Griffin, however, is distinguishable. In Griffin, neither the party 

nor counsel was present. See id. at 199. Thus, the defendant was 

unrepresented when the court responded to the important question 

raised by the jury. Id. Here, counsel was present. Thus, it cannot be 

said that the defendant was unrepresented. It can be said, however, that 

the defendant was entitled to be present.

The record reveals that convenience may have played a role in the 

decision to proceed without the defendant. What we do not know, 

however, is whether the defendant waived his right to be present. The 

record does not provide us with a factual basis to determine this 
35

question, and if it were important, it would need to be raised on a more

developed record in a postconviction-relief proceeding.

Nonetheless, we agree with the State’s position on the prejudice 

issue. The question posed by the jury may have been confusing, but 

Shorter does not offer any suggestion as to how his participation in the 

proceedings would have changed matters. Although the district court’s 

instruction to the jury to “reread the instructions” was similar to that 

provided in Griffin, the key difference is that Shorter’s counsel was 

present and agreed to the instruction.

Shorter concedes that the proper test in this case when counsel is 

present for the proceedings but fails to insist on the presence of the 

defendant, is provided under Strickland, 466 U.S. at 687, 104 S. Ct. at 

2064. Based on our review of the record, there is certainly no reasonable 

probability that the outcome of trial would have been different if the 

defendant had been present when the district court and the attorneys 

agreed to simply instruct the jury to “reread the instructions.” Shorter 

has not suggested to us how the proceedings would have been different

had he been present. We therefore hold that Shorter has failed to show 

prejudice and thus has not demonstrated ineffective assistance of 

counsel.

V. Failure of Counsel to Request Eyewitness Identification 

Instruction.

A. Introduction. At trial, the State offered eyewitness testimony 

from Perkins and L.S. identifying Shorter as a person who participated in 

the assault on Daughenbaugh. The trial court, however, did not use the 

Iowa State Bar Association (ISBA) instruction on eyewitness testimony or 

any similar instruction. The ISBA Model Criminal Jury Instruction 

200.45 on eyewitness identification instruction tells the jury that in 
36

evaluating an eyewitness identification, the jury may consider “[i]f the 

witness had an adequate opportunity to see the person at the time of the 

crime,” and “[i]f an identification was made after the crime . . . [to] 

consider whether it was the result of the witness’s own recollection.”

Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.45 (2012). The 

instruction further provides that “[a]n identification made by picking the 

defendant out of a group of similar individuals is generally more reliable 

than one which results from the presentation of the defendant alone to 

the witness.” Id. Finally, the instruction provides that the jury should 

consider “[a]ny occasion in which the witness failed to identify the 

defendant or made an inconsistent identification.” Id.

B. Standard of Review. The parties agree that in order to 

support a claim of ineffective assistance based upon failure to provide an 

instruction related to the evidence, the defendant must show both that 

counsel breached the standard of care and that the defendant was 

prejudiced by counsel’s breach. See Strickland, 466 U.S. at 687, 104 

S. Ct. at 2064.

C. Positions of the Parties. Shorter claims that in light of the 

importance of the eyewitness testimony in this case, his trial lawyer 

should have requested the instruction. Shorter notes that several 

features of the instruction might have helped him. He notes that counsel 

could have argued based upon the language in the instruction involving 

the witness’s opportunity to observe the crime, that Perkins’s

identification was questionable in light of darkness and the exigencies of 

the situation.

Shorter further argues that the instruction related to subsequent 

eyewitness identification would have assisted counsel in arguing that the 

identifications of Perkins and L.S. were based upon their presence at trial 
37

proceedings rather than upon true recollection. Finally, Shorter argues 

that the instruction would have assisted Shorter in arguing that the jury 

should consider the accuracy of the Perkins and L.S. identifications in 

light of inconsistencies when they were asked to identify persons 

participating in the assault.

The State responds by noting that most of the ISBA Model 

Instruction on eyewitness identification would not have assisted Shorter. 

The State argues that Perkins testified that she observed the defendant 

from point-blank range, declared that the visibility was good because the 

area was well-lit, and identified Shorter in a photo lineup less than 

twenty-four hours after the crime as participating in the assault. Thus, 

the State argues the instruction would have helped the prosecution on 

these points. The State argues that although Perkins stated she 

identified the defendants because she “kept looking” at them, Perkins 

also clarified, “I keep seeing their face[s]. I’m going to remember who 

stomped. I know I circled his face. . . . I know these people did it, and I 

don’t care what nobody says.”

In sum, because the instruction would have hurt as much as it 

helped, it was not a breach of duty for Shorter’s counsel not to request it. 

The State further suggests that the repeated and consistent eyewitness 

identification by L.S., coupled with Shorter’s statement to Officer Peak 

that he did kick Daughenbaugh—if only to see if he was okay—placed 

Shorter at the crime scene. See State v. Tobin, 338 N.W.2d 879, 881

(Iowa 1983) (citing corroborating evidence as proportionately lessening 

the need for an eyewitness instruction).

In the alternative, the State argues that Shorter has failed to show 

prejudice. The State points out that the jury was generally instructed in 

determining credibility of witnesses to consider whether a witness had 
38

made inconsistent statements. Id. (citing jury instruction regarding 

credibility of witnesses as mitigating factor in case involving failure to 

instruct on eyewitness identification). In addition, the State suggests 

that absence of any specific eyewitness instruction did not prevent 

Shorter from making his arguments regarding the reliability of 

identification in closing arguments to the jury.

D. Discussion. There is no question that Shorter would have 

been entitled to the eyewitness instruction if counsel had requested it. 

But that is not the question before us. The question is whether Shorter’s 

counsel breached a duty to him by failing to ask for the instruction and 

whether as a result of this omission, Shorter has shown that it is 

reasonably probable that the result in this case would have been 

different.

On the record before us, we conclude that Shorter simply cannot 

show a reasonable probability that the result at trial would have been 

different if the trial court has provided the jury with the ISBA Model 

Instruction on eyewitness identification. As the State suggests, it is 

debatable which party would have benefitted the most from the 

instruction. Further, the general instructions given to the jury gave 

Shorter’s counsel a clear avenue to attack the inconsistencies in 

Perkins’s eyewitness identification testimony. See id. And, much of the 

eyewitness identification instruction embraces commonsense notions 

that would not likely have escaped a conscientious jury unaided by the 

ISBA instruction. As a result, although we certainly do not discourage 

the use of the ISBA eyewitness identification instruction, we conclude 

that Shorter is not entitled to a new trial based on the failure of his 

counsel to request the eyewitness instruction. See id.
39

VI. Conclusion.

For the above reasons, we vacate the opinion of the court of 

appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.