State v. Esse

Court of Appeals of Iowa.

STATE of Iowa, Plaintiff-Appellee,

v.

Eric Douglas ESSE, Defendant-Appellant.

No. 03-1739.

Sept. 28, 2005.

Appeal from the Iowa District Court for Cerro Gordo, Paul W. Riffel , Judge.

The defendant appeals following judgment and sentence for murder in the first degree and robbery in the first degree. REVERSED AND REMANDED.

Heather Wood and Dean Stowers of Rosenberg, Stowers & Morse, Des Moines, for appellant.

Thomas J. Miller , Attorney General, Robert Ewald , Assistant Attorney General, Paul L. Martin , County Attorney, and Carlyle D. Dalen , Assistant County Attorney, for appellee-State.

Heard by SACKETT , C.J., VOGEL , ZIMMER , and HECHT, JJ., and NELSON, S.J. FN*

FN* Senior Judge assigned by order pursuant to Iowa Code section 602 .9206 (2003).

ZIMMER , J.

*1 Eric Esse appeals from a judgment and sentence entered after a jury found him guilty of the crimes of murder in the first degree and robbery in the first degree. Esse asserts the evidence was insufficient to support his convictions. He also contends the district court committed legal errors and abused its discretion in several respects. We conclude the district court erred when it refused to give a limiting instruction and that Esse was prejudiced by this refusal. Accordingly, we reverse his convictions and remand for a new trial. For the purposes of retrial, we also note two additional errors by the district court: (1) the court's refusal to give a requested corroboration instruction, and (2) the court's exclusion of a prior inconsistent statement by the victim's girlfriend.

I. Background Facts and Proceedings.

On January 15, 2003, Eric Esse was charged with murder in the first degree and robbery in the first degree in relation to the death of Timothy Mammen. Viewed in the light most favorable to the State, the jury could have found the following facts.

At approximately 5:00 p.m. on November 28, 2002, Thanksgiving Day, Mammen was discovered dead in the upper level of his home, near his computer, with four gunshot wounds to the back of his head. Mammen's time of death was placed sometime between 1:30 a.m. that morning-the last time Mammen was known to be alive FN1 -and the discovery of the body. However, rigor and body temperature were consistent with the conclusion that Mammen had been dead several hours before his body was discovered.

FN1. Teana Massee, a friend of Mammens, testified she and another woman were at Mammens home between 12:30 or 1:00 a.m. and 1:30 a.m. on November 28, that Mammen was alive when they left, and that while they were at Mammens home no other person, or vehicle, was present.

Mammen's friend, Mildred Carolus, discovered Mammen's body. Carolus had a set of keys to Mammen's home. When she first arrived at Mammen's home, FN2 both the inner and screen door where shut, but the deadbolt to the inner door was not locked. Carolus recalled inserting her key into the lock on the screen door, and thus "just assumed it was locked." However, she did not attempt to open the screen door before inserting her key, and admitted that she did not know if the screen door was in fact locked. According to Mammen's girlfriend, Courtney Askvig, Mammen kept a key hidden on the property.

FN2. Carolus and her husband stopped at Mammen's home at 2:30 or 3:00 p.m. on November 28, at Mammen's prior request, to feed his animals. Noticing that Mammen's truck was at his home, the couple looked for, but did not locate Mammen. Carolus returned to the home later that day, at the request of Mammen's girlfriend, Courtney Askvig. It was during this second visit that Carolus discovered Mammen's body.

Esse, a friend of Mammen's, was voluntarily interviewed by police on December 2 and 3, 2002. The interviews were prompted by Askvig's statement that Esse had been in Mammen's home at 1:00 a.m. on November 28; a statement Askvig later amended to assert that Esse had in fact left Mammen's home by 11:38 p.m. on November 27. FN3

FN3. Askvig initially told police that during her last phone call with Mammen, at approximately 1:00 a.m. on November 28, Mammen stated Esse was at his house. However, at trial Askvig testified this statement had occurred during an 11:20 p.m. phone conversation on November 27, and that during her last phone conversation with Mammen, which occurred at 11:38 p.m. that same night, Mammen stated Esse had already left the home.

Police interviewed Esse three times over the course of two days. The interviews lasted about nine hours. Recordings of all three interviews were introduced into evidence and played for the jury during Esse's trial. During the interviews Esse never admitted to killing Mammen. He did, however, give conflicting and incriminating statements.

During the first interview Esse claimed he had last been at Mammen's home at approximately 4:30 to 5:00 p.m. on November 27, and had returned to his own home by 7:30 or 8:00 or perhaps 9:00 p.m. He also stated that as he was leaving Mammen's home he passed a truck going to the residence. Esse admitted that he had previously purchased drugs from Mammen and that he owed Mammen $600. However, he denied receiving any drugs from Mammen for at least a month. FN4

FN4. There was abundant evidence that Mammen sold drugs from his home.

*2 During the second interview Esse admitted he might have been at Mammen's home as late as 11:30 p.m. or 1:00 a.m., but claimed to be confused as to the time because he had taken drugs while at Mammen's home. After insisting Mammen was fine when he left around 12:00 to 12:30 a.m., Esse then implicated another individual, Scott Peterson, in Mammen's death. While giving multiple versions of how Peterson had killed Mammen and obtained Esse's silence by bribing him with money and drugs, Esse revealed unpublished details of the crime.

During the third interview Esse retracted claims made during his second interview, stating he had just told investigators what he thought they wanted to hear. When asked how he knew details that would have been known only by the murderer, Esse stated he had reconstructed events based on a phone conversation with Peterson two days after the murder. Esse reverted to his original statement-that he had gone to Mammen's home on November 27, taken drugs, and left-with the addition that he had stolen drugs from Mammen. He also claimed that he returned to Mammen's at 1:30 or 2:00 p.m. the afternoon of November 28, discovered Mammen's body, stole a "stack" of money, and left.

Various statements which Esse made during the course of the three interviews conflicted with other evidence admitted at trial. Scott Peterson, who had an alibi during pertinent times, testified at trial and denied involvement in the shooting. In addition, Esse's wife asserted she was using the family's only functioning car during the afternoon of November 28, when Esse claimed to have returned to Mammen's home and discovered his body. Esse also stated that he would not know where to get a gun if he wanted one. However, there was evidence Esse borrowed a .22 caliber Rohm revolver and Remington Thunderbolt .22 caliber long rifle ammunition from a Phil Petersen shortly before Thanksgiving.

Prior to learning about Phil Petersen and his weapon and ammunition, a weapons expert with the Iowa Department of Criminal Investigations (DCI) had identified the slugs removed from Mammen's brain as Remington .22 caliber long rifle ammunition, which may have been shot from a Rohm revolver. After comparing test bullets from the Petersen gun with one of the bullets retrieved from Mammen's body, FN5 the expert testified that certain characteristics of the test bullets were consistent with those on the retrieved bullet.

FN5. Only one of the bullets retrieved from Mammen was useful for comparison purposes.

When turned over to police, Phil Petersen's gun contained four spent casings consistent with Remington Thunderbolt .22 caliber long rifle ammunition. Peterson, who had an alibi for much of the relevant time frame and who had no connection to Mammen, testified that the gun's ejector rod did not work, and that Esse had returned the gun with the spent casings still in the revolver. FN6 Although Petersen thought Esse had returned the gun before Thanksgiving, he was not positive, and admitted it could have been returned after Thanksgiving. The State introduced a note written by Esse that was dated December 12, the day after his arrest. The note stated that on November 28 Esse had gone to Phil Petersen's home, was shown a revolver with a missing ejector rod and four out of six spent rounds, and had used a nail to clear the rounds.

FN6. According to Petersen the gun had been returned with six spent casings, but he had managed to remove two casings before turning the gun over to the police.

*3 None of the weapons or shell casings located in Mammen's home were consistent with the long-rifle ammunition or potential murder weapons. While there was testimony indicating Mammen had bought a .22 caliber long-rifle revolver prior to his death, no such gun was ever found.

The matter was submitted to the jury, which found Esse guilty of murder in the first degree and robbery in the first degree. Following imposition of judgment and sentence, Esse appealed. He asserts that insufficient evidence supports his convictions; that the district court abused its discretion when it refused to allow him to use a prior inconsistent statement for impeachment purposes, refused to reopen the record to admit evidence to impeach his own witness, and allowed a State's expert to testify as to individual characteristics of the bullets recovered from Mammen; and that the court erred in refusing to give nine requested jury instructions, and in giving three others.

II. Scope of Review.

Our review of this matter is for the correction of errors at law. See Iowa R.App. P. 6.4. However, to the extent Esse's arguments rest on constitutional grounds, we conduct a de novo review in light of the totality of the circumstances. See In re Detention of Williams, 628 N.W.2d 447, 451 (Iowa 2001) .

III. Discussion.

We begin by considering Esse's claims of instructional error. Esse submitted numerous proposed jury instructions and raised objections to the court's jury instructions that addressed reasonable doubt, witness credibility, and direct and circumstantial evidence. The court declined to give Esse's requested instructions and entered a general denial of all instructional exceptions. The court determined its own instructions correctly stated the law and expressed its reluctance to "tinker" with the uniform instructions. The court also concluded that many of Esse's objections were "really argument."

In assessing Esse's claims, we note the district court has a duty to instruct fully and fairly on the law regarding all issues raised by the evidence. Iowa R.Crim. P. 2.19(5)(f ) ; State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996) . The court may phrase the instructions in its own words, provided the instructions given fully and fairly advise the jury of the issues it is to decide and the law which is applicable. Liggins, 557 N.W.2d at 267. We do not view each instruction separately, but consider the jury instructions as a whole. State v. Fintel, 689 N.W.2d 95, 104 (Iowa 2004) . If the court erred in giving or refusing to give a jury instruction, any error must be prejudicial to warrant reversal. State v. Hartsfield, 681 N.W.2d 626, 633 (Iowa 2004) . "Prejudice exists when the rights of the defendant have been injuriously affected' or the defendant has suffered a miscarriage of justice.' " Id. (citations omitted).

A. Limiting Instruction. Esse's interviews with law enforcement lasted about nine hours. Playing the recordings for the jury consumed approximately two days of trial. The district court refused to give the following limiting instruction, requested by Esse, regarding the proper use of the recorded interrogations: "Statements and questions by law enforcement officers during interviews with the Defendant are not evidence to be considered for their truth. The Defendant's answers and responses to those questions and statements are evidence." Esse concedes the agents' questions and statements were admissible to place his answers in context, see Iowa R. Evid. 5.106 , but asserts the questions and statements were nevertheless hearsay, and thus a limiting instruction should have been given. We agree.

*4 Pursuant to Iowa Rule of Evidence 5.105 , when evidence is admissible for one purpose, but not for another, the district court shall, upon request, restrict the evidence to its proper scope and give a limiting instruction. The State offers no basis, and we are not aware of a basis in the context of this case, for admitting the agents' statements as evidence to be considered for their truth. See Iowa Rs. Evid. 5.801-.804 (defining hearsay and providing that hearsay is inadmissible, with certain limited exceptions). The requested instruction was a proper statement of the law, has application to the case at hand, and was not stated elsewhere in the instructions. Under rule 5.105 , and prevailing case law, we believe the instruction should have been given. See State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996) .

As we have previously noted, this error does not require reversal unless it resulted in prejudice to Esse. Hartsfield, 681 N.W.2d at 633. The State contends common sense adequately informed the jury that they could not take the agents' statements and questions at face value. The fact remains, however, that the instructions given by the court allowed the jury to consider the statements and questions for any purpose, including evidence of Esse's guilt. FN7 Because we presume the jury followed the court's instructions, State v. Piper, 663 N.W.2d 894, 915 (Iowa 2003) , and because we cannot know the mind of the jury, we must proceed as if the jury did, in fact, consider the statements and questions as evidence. We accordingly look to the nature of the evidence to determine if its consideration by the jury would "injuriously affect[ ]" Esse's rights or result in "a miscarriage of justice." Hartsfield, 681 N.W.2d at 633 .

FN7. Jury Instruction No. 5 stated, in relevant part, that the jury "must determine the Defendant's guilt or innocence from the evidence and the law in these instructions." Jury Instruction No. 8 stated, in relevant part, that evidence included "[e]xhibits received by the court." The jury was further instructed that the following was not evidence:

1. Statements, arguments, questions and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I told you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

Esse asserts that "throughout ... [the] interviews ... the agents asserted [Esse] was lying, told him they knew he was involved, and told him that they had substantial evidence and information that he was involved in this murder." Our review of the interviews indicates that many of the officers' statements and questions are neutral in implication. Other statements-such as "[w]e just need to know the truth" and "tell us the truth"-fall short of accusing Esse of lying. Still others-such as statements that Esse was at Mammen's home later than Esse had originally stated or had in fact been in the upstairs bedroom with Mammen-were clarified, discredited, or verified by other evidence, including Esse's own statements during the interviews. We cannot conclude that any of these statements or questions by the agents, even if considered as evidence, would have deprived Esse of a fair trial.

The interviews do, however, contain several statements that, if viewed as evidence, indicate Esse was lying or the agents had unspecified evidence of Esse's involvement beyond that which was introduced at trial. For example, the agents repeatedly stated that there was "no doubt" Esse was involved in the murder, and that "[i]t's either you or you know who did it." The State points out one of the interviewing agents, Jeff Jacobson, testified during trial and clarified that indicating or implying the existence of evidence implicating Esse in the murder, or knowledge of Esse's involvement, were common interrogation techniques. While Agent Jacobson's testimony does somewhat mitigate the impact of the agents' statements, those statements nevertheless indicate that the agents possessed information or evidence of Esse's involvement in Mammen's murder.

*5 A defendant is entitled to have his guilt or innocence determined solely upon the evidence, and not upon nonevidentiary assertions regarding his guilt or credibility.See State v. Graves, 668 N.W.2d 860, 874 (Iowa 2003) . Because the jury was entitled to give whatever weight to the evidence that it saw fit, and because we cannot know what weight it may have placed on the agents' statements, we conclude Esse was prejudiced by the court's refusal to give a limiting instruction. Accordingly, Esse's convictions must be reversed. However, we may remand this matter for retrial only if all the evidence admitting during Esse's trial provides substantial support for his convictions. See State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003) . We conclude that it does.

B. Sufficiency of the Evidence. This court is bound by the jury's verdict so long as the record contains substantial evidence of guilt. See State v. Button, 622 N.W.2d 480, 483 (Iowa 2001) . Substantial evidence means evidence which is sufficient to convince a rational trier of fact, beyond a reasonable doubt, of the defendant's guilt. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001) . In assessing whether the record contains substantial evidence of guilt, we view the totality of the record in the light most favorable to the State, drawing any and all legitimate inferences that can be reasonably deduced from the evidence. State v. Williams, 574 N.W.2d 293, 296 (Iowa 1998) .

Esse points out that no direct evidence ties him to the crime. However, circumstantial evidence is as probative as direct evidence. Iowa R.App. P. 6.14(6)( p ) . The jury's verdict can rest on circumstantial evidence alone, so long as the evidence raises a fair inference of guilt as to each essential element of the crime charged. State v. Kirchner,600 N.W.2d 330, 334 (Iowa Ct.App.1999) .

Esse points to conflicts and gaps in the evidence, as well as the possibility that a number of other individuals could have murdered Mammen, and asserts his conviction was based on pure speculation. We agree the evidence of Esse's guilt was not overwhelming. However, this case turned largely on the credibility of various witnesses, as well as Esse's own recorded statements, and it is the jury's duty to sort out the credibility of witnesses and to assign the evidence presented whatever weight it deems proper. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) . The jury may believe or disbelieve the testimony of witnesses as it chooses, id., and it was free to accept or reject the defendant's version of events, State v. Garr, 461 N.W.2d 171, 174 (Iowa 1990) . Given these principles, there was evidence from which the jury could conclude that Esse had the means, motive, and opportunity to commit, and in fact did commit, the crimes charged.

Based upon the evidence the jury could conclude that Esse borrowed a gun and ammunition consistent with the weapon and ammunition used to kill Mammen, and that he was in possession of the weapon and ammunition at the time of the murder. Although the gun borrowed by Esse was not directly linked to the murder, the test bullets from that gun did share certain characteristics with the bullet retrieved from Mammen's brain, and the non-ejected casings were consistent with the absence of long rifle casings at the murder scene.

*6 While Esse had a partial alibi, the evidence left open the possibility that Esse had returned to Mammen's home sometime after Mammen was last known to be alive. Although Esse asserts he did not have the necessary access to Mammen's home, the evidence that Mammen's screen door was locked after Mammen had been killed (raising an inference that the crime was committed by someone with a key to the home) was not conclusive. Moreover, Askvig testified that Mammen kept a hidden key on the property.

Evidence that Esse and his wife were experiencing financial difficulties and that Esse used drugs, as well as Esse's own admissions regarding stealing money and drugs from Mammen's home, indicate a motive for the crimes. In addition, there was evidence Esse had knowledge of unpublished details of the murder. The jury need not believe Esse's assertion that he obtained the details from another individual, particularly in light of his ever changing and self-contradictory version of events. SeeState v. Odem, 322 N.W.2d 43, 47 (Iowa 1982) ("A false story told by a defendant to explain or deny a material fact against him is by itself an indication of guilt.").

The question before us is not whether the evidence in the record unequivocally mandates a conviction, but whether the evidence was sufficient to allow a rational jury to find the defendant guilty beyond a reasonable doubt. Turner, 630 N.W.2d at 610.Given that the jury was charged with assessing the credibility of the evidence, and was free to accept or reject evidence as it saw fit, we find the record contains substantial evidence in support of the guilty verdicts. See Iowa Code §§ 707.1 -.2 (defining murder in the first degree); id. §§ 711.1-.2 (defining robbery in the first degree).

Accordingly, it is appropriate to remand this matter for a retrial. We therefore turn to those issues that Esse has raised on appeal and which may reoccur during a subsequent trial.

C. Remaining Jury Instruction Issues. Esse raises a number of alleged errors, in both the giving of instructions and in the refusal of his proposed instructions. With one exception, we conclude all his claims of instructional error are without merit. Esse challenges the instructions given by the court that addressed reasonable doubt, witness credibility, and direct and circumstantial evidence. Those instructions, which mirror the uniform jury instructions, were correct statements of the law, and did not mislead or misdirect the jury. Accordingly, we find no error in the giving of those instructions. See Kellogg, 542 N.W.2d at 516. In addition, nearly all of the instructions requested by Esse were adequately encompassed by the instructions the court did submit to the jury. Accordingly, the court did not err in refusing to give those proposed instructions. See Hubbell Commercial Brokers, L.C. v. Fountain Three, 652 N.W.2d 151, 158 (Iowa 2002) . The same cannot be said, however, regarding Esse's requested corroboration instruction.

*7 The district court refused to give the following proposed instruction: "The Defendant cannot be convicted by his own prior statements alone. There must be other evidence the Defendant committed the crime." FN8 Instead, the court instructed the jury, over Esse's objection, "Evidence has been offered to show the Defendant made statements at an earlier time and place while not under oath. You may consider the prior statements for any purpose." Esse asserts the court erred because his statements during the interrogations were tantamount to a confession, and thus required corroboration. While we believe Esse overstates the nature of his responses during the interrogations, we agree that a corroboration instruction should have been given.

FN8. Esse also objects to the court's refusal to give the remainder of this proposed instruction, which states: "Furthermore, it is for you to determine the believability and weight to be given to any prior statement that you find the Defendant made. In making this determination you should consider all the circumstances at the time of the statements, as well as factors bearing on the credibility of witnesses mentioned elsewhere in these instructions." However, this portion of the instruction was adequately addressed by Jury Instructions Nos. 9 and 10. Thus it was not error for the court to refuse to give that portion of the instruction. Hubbell Commercial Brokers,652 N.W.2d at 158 .

As Esse correctly notes, like a confession of guilt to the crime charged, "admissions made after the crime must also be supported with sufficient corroborating evidence."State v. Polly, 657 N.W.2d 462, 466 n. 1 (Iowa 2003) . While an admission of facts immaterial to guilt or innocence requires no corroboration, "statements of the accused out of court that show essential [facts or] elements of the crime, ... necessary to supplement an otherwise inadequate basis for a verdict of conviction, stand differently. Such admissions have the same possibilities for error as confessions. They, too, must be corroborated." Opper v. U.S., 348 U.S. 84, 91, 75 S.Ct. 158, 163, 99 L.Ed. 101, 106 (1954) . Corroboration is required for exculpatory, as well as inculpatory, admissions. Id.

Unfortunately, Esse fails to point this court to any specific prior statement that was an admission of an essential fact or element of the crime. Rather, he refers us to the entire nine hours of audio taped interviews. Clearly, under the standards of Opper,not every statement made by Esse during those nine hours would require corroboration. Thus, Esse has not referred this court to the pertinent parts of the record, as required by our rules of appellate procedure. See Iowa R.App. P. 6.14(1)( f) .

However, the totality of Esse's argument does indicate that, at a minimum, he sought the instruction regarding his statements which revealed unpublished details of the murder. We conclude such statements are material to the question of guilt or innocence, and thus require corroboration. See Opper, 348 U.S. at 91, 75 S.Ct. at 163, 99 L.Ed. at 106. Upon remand, if the State again introduces Esse's statements which reveal details of the crimes charged, a corroboration instruction should be given as to those statements.

D. Evidentiary Issues. Although Esse raises three alleged evidentiary errors on appeal, only two are likely to recur upon a retrial. Esse contends the court erred when it excluded as hearsay testimony from a DCI agent regarding a statement allegedly made by Courtney Askvig. He further contends the court erred when it allowed the DCI weapons expert to testify regarding bullet characteristics. These evidentiary rulings were matters within the district court's discretion, and are reviewed for an abuse of that discretion. State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003) . Abuse occurs when the court exercises its discretion on grounds or for reasons clearly untenable, or to a clearly unreasonable extent. State v. Teeters, 487 N.W.2d 346, 348 (Iowa 1992) .

*8 1. Statement of Courtney Askvig. During cross-examination by Esse, Courtney Askvig denied telling DCI agents that a man named Marcos was Mammen's drug supplier. Subsequent to Askvig's testimony, Esse asked another State's witness, DCI agent William Basler, if Askvig had told agents that Marcos was Mammen's drug supplier. The answer-that Agent Basler "belive[d]" Askvig had "indicated that Marcos was the source"-was excluded on the basis that it was hearsay. We agree with Esse that the district court abused its discretion in excluding the statement.

It is clear that the excluded testimony was hearsay. See Iowa R. Evid. 5.801 . However, a prior inconsistent statement that constitutes hearsay may be admissible for impeachment purposes when it is admitted to demonstrate, not the truth of the matter asserted, but the fact that the witness is not reliable. State v. Berry, 549 N.W.2d 316, 318 (Iowa Ct.App.1996) . To be admissible the statement must be both material and not collateral to the facts of the case. State v. Fowler, 248 N.W.2d 511, 520 (Iowa 1976) . Evidence is material where it is admissible independent of the contradiction itself. State v. Blackford, 335 N.W.2d 173, 176 (Iowa 1983) . Evidence is material where it (1) relates to the merits of the criminal charge, or (2) "discredit[s] the witness in respect to bias, corruption, skill, knowledge or motive to falsify." Id.

We believe Askvig's prior inconsistent statement falls into the former category. As Esse points out, the evidence clearly demonstrated that Mammen was a drug dealer, and that the State's theory of the case was that Mammen's death was drug related. In addition, Askvig's behavior and statements following the murder suggested that she may have had additional knowledge of or involvement in Mammen's criminal activities. Under the circumstances, Askvig's knowledge regarding the identity of another participant in the violent enterprise of drug trafficking was material. The district court erred in excluding her prior inconsistent statement.

2. DCI Weapons Expert. The DCI weapons expert who testified at trial could not opine that a bullet recovered from Mammen's body was a positive match to test bullets filed from Phil Pertersen's gun. The expert did testify, however, that the recovered bullet and test bullets shared both class characteristics as well as "some individual characteristics," and that the presence of these shared individual characteristics increased the probability that the recovered bullet was fired from the Petersen gun. The testimony regarding the shared individual characteristics was admitted over Esse's objection. Esse asserts this was error. He contends the testimony lacked foundation because the expert could not describe the similar shared individual characteristics, and thus could not adequately explain the basis for his opinion. FN9

FN9. There is no suggestion the expert, who had twenty-nine years of criminalistic laboratory experience and specialized in ballistics, was unqualified to render the opinion. See Hyler v. Garner, 548 N.W.2d 864, 868 (Iowa 1996) (providing witness must be qualified to answer the particular question propounded).

Iowa is committed to a liberal rule on admission of opinion testimony, and "only in clear cases of abuse would the admission of such evidence be found to be prejudicial." Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 531 (Iowa 1999)(citation omitted). Expert testimony is admissible if it is reliable, and will assist the jury in resolving a disputed issue. See Iowa R. Evid. 5.702 ; Heinz v. Heinz, 653 N.W.2d 334, 342 (Iowa 2002) . "[T]he amount of foundation necessary to establish reliability depends on the complexity of the testimony and the likely impact of the testimony on the fact-finding process." Johnson v. Knoxville Cmty. Sch. Dist., 570 N.W.2d 633, 637 (Iowa 1997) . Reliability determinations are necessarily case specific, and are influenced by "the complexity of the subject matter." Id. (citations omitted).

*9 Esse points out that the expert was unable to describe the shared individual characteristics with any specificity or detail, and was unable to support his opinion with notes or photographs. However, the expert explained that his opinion was based on microscopic observations of stria that were too small to measure, but which will be, to a trained examiner, "noticeably different from one gun to another." The expert explained that he did not have any notes regarding the differences because "it's a visual thing," and he did not take photographs because he did not make a positive identification. Moreover, the expert testified that he had his findings reviewed by another examiner.

Given Iowa's liberal rule on the admission of expert opinion, Leaf, 590 N.W.2d at 531,and the fact that ballistics comparison is not a highly complex subject, see Johnson,570 N.W.2d at 637, we conclude the expert's opinion was sufficiently reliable and thus admissible. The district court did not abuse its discretion by overruling Esse's objection.

IV. Conclusion.

The district court erred when it refused to given an instruction limiting the admissibility of the agents' statements and questions, and Esse was prejudiced by this error. We accordingly remand Esse's convictions and sentences, and remand this matter for a new trial.

REVERSED AND REMANDED.

Iowa App.,2005.

State v. Esse

Slip Copy, 2005 WL 2367779 (Iowa App.)

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