E-FILED 2017 OCT 12 10:30 AM POLK - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY

STATE OF IOWA, CRIMINAL NO. FECR291035

Plaintiff,
vs.
DEFENDANTS MOTION FOR NEW
DRESEAN BARBER, TRIAL PURSUANT TO IOWA RULES
OF CRIMINAL PROCEDURE 2.24(2)(b)
Defendant. or FOR JUDGMENT OF ACQUITTAL

COMES NOW the Defendant, DreSean Barber, and for his Motion for New Trial

Pursuant to Iowa Rule of Criminal Procedure 2.24(2)(b) or For Judgment of Acquittal

respectfully states to the court as follows:

1. The State charged Mr. Barber with Murder in the First Degree, a Class A

Felony, in violation of Iowa Code 702.2(1) (Count I), and Attempted Murder, a Class B

Felony, in violation of Iowa Code 707.11(1) (Count II), based on actions alleged to

have occurred on November 29, 2015.

2. On October 2, 2017, the jury returned a verdict finding Mr. Barber guilty of

Murder in the Second Degree on Count I and Assault with Intent to Inflict Serious Injury

on Count II.

3. Sentencing is scheduled for November 17, 2017 at 8:30.

4. The Iowa Rules of Criminal Procedure require the filing of a Motion for

New Trial no later than 45 days after verdict of guilty, nor later than five days prior to the

date for pronouncing judgment. Iowa R. Civ. P. 2.24(2)(a).

5. In ruling upon motions for new trial, the district court has broad, but not

unlimited discretion, in determining whether the verdict effectuates substantial justice

between the parties. Iowa R. App. P. 6.904(3)(c). When a motion for new trial presents

a question of law, the district court is not vested with discretion. See Ladeburg v. Ray,

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508 N.W.2d 694, 696-97 (Iowa 1993) (decision on motion for new trial presenting issue

of law stands or falls on the correctness of its ruling on the legal question.). A

combination of errors or cumulative effect of multiple errors may so prejudice a

defendants right to a fair trial that a new trial is required, even if the errors considered

individually are non-reversible. State v. Carey, 165 N.W.2d 27, 36 (Iowa 1969); State v.

Hardy, 492 N.W.2d 230, 236 (Iowa Ct. App. 1992).

6. The Court must grant Mr. Barber a new trial for the following reasons:

a. The Court erred by prohibiting Mr. Barber from asserting a defense

consistent with the Stand Your Ground law adopted by the Iowa
legislature in 2017. Iowa R. Crim. P. 2.24(2)(b)(5), (7).

b. The Court erred in overruling Mr. Barbers objection to the States

examination of Victor Murillo regarding the ejection of casings from a
Luger handgun. Iowa R. Crim. P. 2.24(2)(b)(5).

c. The Court erred in overruling Mr. Barbers request for a mistrial based
on the States attempt to elicit hearsay testimony from Andrew Hurley
Boyd. Iowa R. Crim. P. 2.24(2)(b)(5).

d. The Court erred in overruling Mr. Barbers objection to the States

cross-examination of Bradley Trulinger regarding whether the State
had subpoenaed him. Iowa R. Crim. P. 2.24(2)(b)(5).

e. The State failed to provide Mr. Barber with Brady material regarding
the fact Andrew Hurley Boyd had changed his testimony and his story
no longer conformed to the statement he gave law enforcement. This
misconduct prejudiced Mr. Barbers right to a fair trial. Iowa R. Crim. P.
2.24(2)(b)(5), (8).

f. The Court erred in overruling Mr. Barbers request for a mistrial based
on the States failure to provide Mr. Barber with Brady material
regarding the fact Andrew Hurley Boyd had changed his testimony.
Iowa R. Crim. P. 2.24(2)(b)(5).

g. The State improperly questioned Detective Youngblut regarding

whether Defense Counsel Alfredo Parrish and Andrew Dunn were
comfortable during the interview of Mr. Barber at his attorneys office.
This misconduct prejudiced Mr. Barbers right to a fair trial. Iowa R.
Crim. P. 2.24(2)(b)(5), (8).

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h. The Court erred in overruling Mr. Barbers request for a mistrial based
on the States questioning of Detective Youngblut regarding Mr.
Parrishs and Mr. Dunns comfort during the interview of Mr. Barber.

i. The State improperly questioned Mr. Barber as to whether the knife

found at the scene was his, insinuating it may have been his, when in
fact law enforcement was aware the knife came from Edmanuel
Perezs pocket. This misconduct prejudiced Mr. Barbers right to a fair
trial. Iowa R. Crim. P. 2.24(2)(b)(5), (8).

j. The Court erred by overruling Mr. Barbers request for remedial actions
to counteract the States improper insinuation that the knife may have
been Mr. Barbers. Iowa R. Crim. P. 2.24(2)(b)(5), (8).

k. The erred by overruling Mr. Barbers request for a mistrial based on the
States improper insinuation that the knife may have been Mr. Barbers.
Iowa R. Crim. P. 2.24(2)(b)(5), (8).

l. The State improperly mentioned Stand Your Ground laws during

closing argument. This misconduct prejudiced Mr. Barbers right to a
fair trial. Iowa R. Crim. P. 2.24(2)(b)(5), (8).

m. The Court erred by overruling Mr. Barbers request for a mistrial based
on the Las Vegas mass shooting that occurred the evening before the
jury was to deliberate. Iowa R. Crim. P. 2.24(2)(b)(5).

n. The Court erred by overruling Mr. Barbers request to voir dire the jury
regarding their knowledge of the Las Vegas mass shooting. Iowa R.
Crim. P. 2.24(2)(b)(5).

o. The Court erred by overruling Mr. Barbers request to clarify to the

juryin response to the jurys questionthat the use of a dangerous
does not automatically equal malice. Iowa R. Crim. P. 2.24(2)(b)(5),
(7).

p. The Court erred in overruling Mr. Barbers request to name by his

proper name, as opposed to defendant, in the jury instructions. Iowa
R. Crim. P. 2.24(2)(b)(7).

q. The Court erred in overruling Mr. Barbers request to include utmost

certainty language in the reasonable doubt instruction (No. 8). Iowa R.
Crim. P. 2.24(2)(b)(7).

r. The Court erred in overruling Mr. Barbers request to include language

in the direct/circumstantial evidence instruction (No. 13) stating,
Whether the evidence is direct or circumstantial, however, it must
raise a fair inference of guilt; it must do more than create speculation,
suspicion, or conjecture. Iowa R. Crim. P. 2.24(2)(b)(7).

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s. The Court erred in overruling Mr. Barbers request to include language

in the reasonable belief instruction (No. 28) stating, Mr. Barber may be
justified in his use of force even if he was wrong in his estimation of the
danger posed or the force necessary to repel it. Iowa R. Crim. P.
2.24(2)(b)(7).

t. The Court erred in overruling Mr. Barbers request to name Darius

Washington in Instruction No. 33. Iowa R. Crim. P. 2.24(2)(b)(7).

u. The Court erred in overruling Mr. Barbers request to name Darius

Washington in Instruction No. 34. Iowa R. Crim. P. 2.24(2)(b)(7).

v. The Court erred in overruling Mr. Barbers request to include language

in the dangerous weapon inference instruction (No. 44) stating, The
production, display, brandishing of, and threat to use a dangerous
weapon is allowed when done to inform an aggressor deadly force
may be used in defense of oneself or another. Iowa R. Crim. P.
2.24(2)(b)(7).

w. The Court erred in overruling Mr. Barbers request to list not guilty as
the first form of verdict. Iowa R. Crim. P. 2.24(2)(b)(7).

x. The Court erred in overruling Mr. Barbers request to replace

knowingly and intentionally in the spoliation instruction (No. 24) with
recklessly. Iowa R. Crim. P. 2.24(2)(b)(7).

y. The verdict is contrary to law and evidence. Iowa R. Crim. P.

2.24(2)(b)(6).

z. The errors detailed above deprived Mr. Barber of a fair and impartial
trial. Iowa R. Crim. P. 2.24(2)(b)(8).

7. Due process protects against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime charged. In re Winship,

397 U.S. 358, 364 (1970). This protection arises from the Fifth and Fourteenth

Amendments of the United States Constitution, and then independently from Article I,

Section 9 of the Iowa Constitution. As the evidence is insufficient to establish Mr.

Barbers guilt beyond a reasonable doubt as to any Count on which he was tried, this

court must order him acquitted on each charge. State v. Schories, 827 N.W.2d 659, 668

(Iowa 2013).

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8. Even if these individual errors did not deprive Mr. Barber of a fair trial, the

cumulative and synergistic nature of the errors did so in combination. Iowa Const., Art. I,

9; U.S. Const. Amend. V; U.S. Const. Amend. XIV. See also State v. Carey, 165

N.W.2d 27, 36 (Iowa 1969) (We find some merit in each of defendant's assigned errors.

Perhaps none alone is sufficient to require a new trial but upon a careful consideration

of the whole record, we are convinced the cumulative effect has been to deprive

defendant of a fair trial.); United States v. Chase, 451 F.3d 474, 480 (8th Cir. 2006)

(assessing cumulative impact of misconduct to determine if defendant deprived of fair

trial).

WHEREFORE, Mr. Barber prays the Court grant his Motion for New Trial or For

Judgment of Acquittal, enter a verdict of acquittal as to each count on which insufficient

evidence of guilt was submitted, and to set any remaining count for a new trial, and

grant him any other relief that is just and equitable under the circumstances.

PARRISH KRUIDENIER DUNN BOLES GRIBBLE

GENTRY BROWN & BERGMANN L.L.P.

BY: /s/ Gina Messamer

Alfredo Parrish AT0006051
Andrew Dunn AT0002202
Robert Montgomery AT0005507
Gina Messamer AT0011823
2910 Grand Avenue
Des Moines, Iowa 50312
Telephone: (515) 284-5737
Facsimile: (515) 284-1704
Email: aparrish@parrishlaw.com
adunn@parrishlaw.com
rmontgomery@parrishlaw.com
gmessamer@parrishlaw.com
ATTORNEYS FOR DEFENDANT

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PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was served upon all parties to the above cause by:
() personal service () first class mail
() certified mail, return receipt requested () facsimile
() Airborne Express (overnight) (X) electronic filing
() e-mail
on October 12, 2017.
I declare that the statements above are true to the best of my information, knowledge and belief.

/s/ Gina Messamer

Copies to:

Nan Horvat
Polk County Attorneys Office
222 5th Avenue
Des Moines, Iowa 50309
515-286-3737
515-286-3428 Fax
nan.horvat@polkcountyiowa.gov
ATTORNEY FOR PLAINTIFF

Justin Allen
Polk County Attorneys Office
222 5th Avenue
Des Moines, Iowa 50309
515-286-3737
515-286-3428 Fax
jallen@attorney.co.polk.ia.us
ATTORNEY FOR PLAINTIFF

DreSean Maurice Barber

DEFENDANT