State of Iowa v. Kenneth Leroy Heard

IN THE SUPREME COURT OF IOWA
No. 17–1075

Filed October 11, 2019

STATE OF IOWA,

Appellee,

vs.

KENNETH LEROY HEARD,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.

State seeks further review of court of appeals decision ordering new

trial on ground the district court erred by denying defendant’s motion to

compel witness to assert Fifth Amendment privilege in presence of jury.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.

Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

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

Attorney General, John P. Sarcone, County Attorney, and Thomas H.

Miller and Olubunmi Salami, Assistant County Attorneys, for appellee.
 2

WATERMAN, Justice.

In this appeal, we must decide whether the district court correctly

refused to permit the defendant in his jury trial to call a witness who

intended to invoke his Fifth Amendment privilege against self-

incrimination on all questions. The defendant in his retrial for murder

contends the witness fired the fatal shots and wanted the jury to hear him

“take the Fifth” so that jurors would infer the witness’s guilt. The district

court followed our decision in State v. Bedwell affirming such a refusal

because “the jury is not entitled to draw any inferences from the decision

of a witness to exercise his constitutional privilege whether those

inferences be favorable to the prosecution or the defense.” 417 N.W.2d 66,

69 (Iowa 1987) (quoting Bowles v. United States, 439 F.2d 536, 541 (D.C.

Cir. 1970) (en banc)). The defendant was convicted of first-degree murder,

and we transferred his appeal to the court of appeals, which reversed and

ordered a new trial, distinguishing Bedwell on grounds the witness had

testified in the defendant’s prior trial and the district court failed to

ascertain the scope of his privilege question by question. We granted the

State’s application for further review.

We hold Bedwell is controlling and therefore vacate the decision of

the court of appeals and affirm the district court’s ruling and judgment.

The witness was entitled to assert a blanket Fifth Amendment privilege to

refuse to answer any questions. Under these circumstances, Bedwell

provides a categorical rule against compelling the witness to assert his

Fifth Amendment privilege in front of the jury. Because the witness

properly refused to testify, there was no violation of the defendant’s Sixth

Amendment rights of confrontation or compulsory process. We also affirm

the district court’s ruling denying a new trial on grounds the verdict was

against the weight of the evidence, and we decline relief on the defendant’s
 3

untimely claim, raised for the first time on this appeal, that he cannot be

sentenced to life without parole without a jury finding that he was an adult

at the time of the offense.

I. Background Facts and Proceedings.

A jury could find these facts from the testimony at the second trial.

On the morning of December 13, 2007, Joshua “J-Hood” Hutchinson was

found dead in the snow by a Des Moines apartment complex on Center

Street. Hutchinson died from multiple gunshot wounds to his head, groin,

limbs, and chest. The shots had been fired at close range, two to three

inches from his head. Hutchinson was a member of a group named “3 in

3 out,” or “Third World,” that sold drugs and committed multiple robberies

together. Other members included Kenneth “KQ” Heard, Marco “Juice”

Brown, and Deland “DB” Stanley. Heard, then age twenty-six, was viewed

as the leader. Stanley was in jail at the time but was in regular phone

contact with the group.

Stanley reportedly was angry with Hutchinson for propositioning

“one of his females.” On December 12, Stanley asked Jacquisha Majors,1

a friend of the group, to pick up his clothes from Hutchinson. She did so

and drove Hutchinson to join Heard, Brown, and Johnetta Daye (believed
to be the mother of Heard’s child). They spent the day smoking marijuana

and planning a robbery. At midnight, they went to Majors’ house where

Hutchinson fell asleep. Heard called Phillip “Self” Findley, telling him to

come over because there was trouble. Heard took Findley and Brown into

Majors’ bathroom for privacy and told them Hutchinson was snitching to

the police and planning to rob Heard.

1Majors got married before the second trial and changed her last name to Harris.
We will refer to her as Majors, her name at the time of the crime.
 4

At Heard’s direction, Majors awakened Hutchinson, and all but Daye

left in two cars to conduct the planned robbery. Majors drove Heard and

Hutchinson, with Heard giving her turn-by-turn directions. Findley and

Brown followed them. When they arrived at the apartment complex on

Center Street, everyone but Majors walked to the backyard. The men

gathered by a picnic table by a wooded area next to the parking lot.

Hutchinson went to relieve himself. Gunshots rang out. Majors heard the

shots but did not see who fired them. Findley and Brown ran to Findley’s

car and drove away. Heard jumped into Majors’ car without Hutchinson.

As Majors drove away and before asking what they did with the gun, Heard

called Findley and asked, “Are you cool”? Majors drove Heard to a friend’s

house where she saw Heard remove a rubber glove and change clothes.

Majors then drove Heard back to her house. Findley had dropped

Brown off there, where Daye remained. Brown had left the scene with the

murder weapon, wiped the gun to remove fingerprints, and hid it in a shirt

near his father’s residence. Concerned about gunpowder residue, when

Brown returned to Majors’ residence he disrobed and put his clothes in a

bag. Brown was quiet, and Majors saw him crying. Heard asked Majors

to drive him back to the scene to ensure Hutchinson was really dead,

which she refused to do. Heard told her in detail how he shot Hutchinson.

Heard stayed in hotels for a few days before leaving Des Moines. Heard

was arrested in Texas.

On April 4, 2008, Heard was charged with first-degree murder. He

pled not guilty and proceeded to trial. Brown testified that Heard shot

Hutchinson. The jury convicted Heard of first-degree murder, and he was

sentenced to life in prison without parole. Heard appealed his conviction,

arguing it was against the weight of the evidence because the State’s

witnesses were not credible. He also alleged ineffective assistance of
 5

counsel for failing to request an instruction that accomplice testimony

must be corroborated. The court of appeals affirmed his conviction on his

direct appeal. State v. Heard, No. 09–0102, 2010 WL 2090851, at *1 (Iowa

Ct. App. May 26, 2010).

Heard filed an application for postconviction relief, claiming that his

trial counsel was ineffective in failing to investigate and present evidence

that Brown murdered Hutchinson and in failing to present expert

testimony that blood splatter would have been found on Heard’s clothing

had he fired the fatal shots. The district court determined that Heard’s

trial counsel breached an essential duty by failing to effectively cross-

examine Brown and ordered a new trial.

Heard was retried for first-degree murder in 2017. Heard’s theory

of defense at the second trial was that Brown murdered Hutchinson at

Stanley’s direction. Brown left the scene of the murder with the firearm,

wiped it clean, and hid it. The murder weapon belonged to Stanley, who

was upset with Hutchinson for propositioning Stanley’s female friend.

Stanley and Brown were described as close friends who had been living

together, whereas Heard and Hutchinson had been “like brothers.” A

witness testified Stanley told her that he could tell Brown to kill someone

and he would get away with it because of Brown’s mental illness. A

cellmate testified he overheard Brown tell Heard that Brown knew Heard

did not murder Hutchinson and should “just let [Brown] play the crazy

role.”

Although Brown had testified in the first trial, this time Brown

asserted his Fifth Amendment privilege in a pretrial deposition and made

clear he would assert the privilege and refuse to answer any questions if
 6

called to testify in front of the jury.2 Heard filed a motion to compel

Brown’s testimony at the second trial and asserted numerous aspects of

the potential testimony that would support his defense theory that Brown

committed the murder. The court allowed Brown to assert a blanket

privilege of his Fifth Amendment rights to any question. Heard

nevertheless wanted Brown to “take the Fifth” in front of the jury so that

jurors would infer Brown was guilty.

At the hearing on Heard’s motion to compel, the judge noted the

parties assumed the court had discretion whether to compel a witness to

take the Fifth in front of the jury.

I did note that you were careful to make the observation
the Court is not obligated to force a witness to take the Fifth
Amendment in front of a jury. And in my practice of over 40
years in the criminal area, I think that type of discretion is
wisely exercised. I don’t think it’s a good idea for a Court to
force a witness to take the Fifth Amendment at trial.

The district court denied Heard’s motion and refused to compel Brown to

testify. The court relied on Bedwell’s holding that “a Defendant may not

call a witness who has indicated an intent to assert his or her right against

self-incrimination before a jury,” noting that the jury cannot draw any

inferences favorable to either side from a witness’s invocation of that

privilege. The district court foresaw problems with compelling a witness

to take the Fifth in the presence of the jury.

Using the exercise of constitutional rights as a weapon,
rather than a shield, is troubling. This approach is an
invitation for jurisprudential mischief in the criminal process.
Were the procedure sanctioned, any defendant could
subpoena any known person of disrepute and force him or her
to take the Fifth. There would be no way for the Court, or the

2The State sought to admit Brown’s prior testimony from the first trial over Heard’s
objection. The district court ruled Brown’s prior testimony was inadmissible at the
second trial because of the ineffective cross-examination by Heard’s first lawyer.
 7
jury, to assess the relevance of such an act. It would be
evidence by innuendo, untested by the adversarial process.

The court observed that “[t]he ‘Perry Mason moment’ of a witness ‘taking
the Fifth’ before the jury is a misuse of that right that cannot be assuaged

by a cautionary or curative instruction.”

As a result, Brown never testified or asserted his constitutional

privilege in front of the jury. The second jury found Heard guilty of first-

degree murder, and he was again sentenced to life in prison without

parole. Heard appealed, and we transferred the case to the court of

appeals, which reversed Heard’s conviction and found that “[t]he district

court’s failure to determine the extent and validity of Brown’s reported

assertion of his Fifth Amendment privilege on his second round of

testimony resulted in a violation of Heard’s right to compulsory process.”

The court of appeals distinguished Bedwell based on the “unique context

of [Heard’s] case” in which the witness now asserting his Fifth Amendment

privilege had testified in the first trial. We granted the State’s application

for further review.

II. Standard of Review.

We review decisions to admit or exclude evidence for an abuse of

discretion. State v. Russell, 893 N.W.2d 307, 314 (Iowa 2017). “Reversal

is warranted only upon showing the ‘court exercise[d] its discretion on

grounds or for reasons clearly untenable or to an extent clearly

unreasonable.’ ” State v. Alberts, 722 N.W.2d 402, 408 (Iowa 2006)

(alteration in original) (quoting State v. Mitchell, 568 N.W.2d 493, 497 (Iowa

1997)).

Heard’s constitutional claim that his right to compulsory process

was violated is reviewed de novo. State v. Russell, 897 N.W.2d 717, 724

(Iowa 2017). We review for abuse of discretion a ruling denying a motion
 8

for a new trial on grounds the verdict is against the weight of the evidence.

State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006).

III. Analysis.

A. The Fifth Amendment Issue. We must decide whether the

district court erred by denying Heard’s motion to compel Brown to take

the witness stand and assert his Fifth Amendment privilege in front of the

jury. Heard candidly acknowledges his sole purpose for that stratagem

was so that jurors would infer Brown’s guilt. The State argues the court

of appeals decision reversing Heard’s conviction conflicts with Bedwell’s

categorical prohibition of that stratagem and conflicts with our precedent

allowing proper blanket assertions of the Fifth Amendment privilege. See

State v. McDowell, 247 N.W.2d 499, 501–02 (Iowa 1976). We agree with

the State and affirm the district court’s well-reasoned ruling.

We begin our analysis with the text of the Fifth Amendment. “No

person . . . shall be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. 3 “It is well settled that in a criminal

prosecution the jury may not be instructed defendant’s failure to testify

could be considered an inference of guilt; furthermore, a prosecutor may

not comment on defendant’s failure to take the stand.” Giltner v. Stark,
219 N.W.2d 700, 713–14 (Iowa 1974); see also Griffin v. California, 380

U.S. 609, 614, 85 S. Ct. 1229, 1232–33 (1965). 4 The Fifth Amendment’s

3The Fifth Amendment is applicable to the states through the Fourteenth

Amendment. Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493–94 (1964). Even
before the Fifth Amendment was incorporated to the states through the Fourteenth
Amendment, Iowa courts recognized that the right was fundamental to the “general
guaranty of due process of law” found in article I, section 9. See State v. Height, 117 Iowa
650, 659, 91 N.W. 935, 938 (1902). We decline Heard’s invitation to find the Iowa
Constitution provides less protection against self-incrimination than the Fifth
Amendment.
4In
civil cases, we allow adverse inferences to be drawn when a witness refuses to
answer questions by invoking the Fifth Amendment privilege. Giltner, 219 N.W.2d at
 9

protections extend to nonparty witnesses. Ohio v. Reiner, 532 U.S. 17, 21,

121 S. Ct. 1252, 1254 (2001) (per curiam).

“[W]hen a witness’ privilege against self-incrimination under the

Fifth Amendment collides with an accused’s right to compulsory process

under the Sixth Amendment, the latter must give way.” McDowell, 247

N.W.2d at 500–01 (collecting cases). 5 We first address the court of appeals’

conclusion that the district court erred and violated Heard’s right to

compulsory process by allowing Brown’s blanket assertion of privilege

instead of proceeding question by question in front of the jury.

The privilege against self-incrimination extends to answers that

“would furnish a link in the chain of evidence needed to prosecute the

claimant for a . . . crime.” Hoffman v. United States, 341 U.S. 479, 486,

71 S. Ct. 814, 818 (1951). A witness cannot claim the privilege “unless he

has reasonable cause to apprehend danger from a direct answer.” State v.

Parham, 220 N.W.2d 623, 627 (Iowa 1974). In Parham, we stated that

Hoffman’s “federal standard applies in a prosecution by a state in

determining whether the privilege is properly asserted.” Id. at 626. The

trial court has the discretion to decide if the witness has grounds to assert

the privilege against self-incrimination and may “require [the witness] to

answer if ‘it clearly appears to the court that he is mistaken.’ ” Hoffman,

341 U.S. at 486, 71 S. Ct. at 818 (quoting Temple v. Commonwealth, 75

Va. 892, 899 (1881)); Parham, 220 N.W.2d at 626.

714–15; see also Craig Foster Ford, Inc. v. Iowa Dep’t of Transp., 562 N.W.2d 618, 623
(Iowa 1997) (“Such adverse inferences are not constitutionally off limits in civil cases.”).
5“In all criminal prosecutions, the accused shall enjoy the right . . . to have
compulsory process for obtaining witnesses in his favor . . . .” U.S. Const. amend. VI.
Article I, section 10 of the Iowa Constitution grants the accused the right to “compulsory
process for his witnesses.” Iowa Const. art. I, § 10. Heard argues this minor textual
difference supports giving defendants greater rights to compulsory process under our
state constitution. We disagree and decline to apply a different analysis.
 10

In McDowell, we upheld the witness’s blanket assertion of the

privilege against self-incrimination. Glennetta McDowell and a companion

were shopping at a J.C. Penney store. 247 N.W.2d at 501. A supervisor

saw the companion place merchandise in McDowell’s purse and followed

them out of the store. Id. McDowell was apprehended with unpurchased

items in her purse. Id. She subpoenaed her companion as a witness in

her criminal trial, but the witness asserted her Fifth Amendment privilege

against self-incrimination “as to the whole subject matter of the case.” Id.

at 500. In other words, she asserted a blanket privilege. McDowell was

found guilty, and on appeal she argued that the trial court should have

examined the witness to ascertain the validity and extent of the privilege.

Id.

On our review, we determined the witness undoubtedly was

McDowell’s companion at J.C. Penney, making her “implication in the

incident . . . plain.” Id. at 501. McDowell intended to question the witness

about what took place at the store during the incident. Id. That “incident

was the subject matter of the case, the corpus delicti.” Id. at 502. Under

those circumstances, we held that the trial court properly upheld the

privilege as to the entire subject matter of the case. Id. Indeed,

[h]ad the court compelled [the witness] to testify about what
actually took place within the J. C. Penney sportswear
department at the time of the incident, it would have
compelled her to place herself in the center of the alleged
crime.

Id. Given that there was no element of her testimony that would not be

incriminating, we concluded the blanket assertion of privilege was

appropriate.

McDowell is controlling. Heard gave the trial judge the specific

questions he intended to ask Brown to review before the judge exercised
 11

his discretion to allow Brown to invoke a blanket privilege against self-

incrimination. The questions were aimed at impeaching Brown, which is

unnecessary without his trial testimony, or at implicating Brown in the

murder by placing him in the group and at the scene of the murder, which

would incriminate Brown and classically support his assertion of the Fifth

Amendment privilege. 6 It is well established that under these

circumstances, the witness’s Fifth Amendment right against self-

incrimination must prevail over the defendant’s Sixth Amendment right to

compulsory process. Id. at 500–01. We hold the district court correctly

ruled Brown was entitled to a blanket assertion of the privilege. See id.

Next we address whether Heard was entitled to force Brown to assert

his Fifth Amendment privilege in front of the jury to create an inference of

Brown’s guilt. Because Brown would properly take the Fifth on any

question put to him, see id. at 501, we are confronted with Bedwell’s

prohibition on calling a witness to the stand simply to have the jury hear

him invoke the privilege in order to infer his guilt, see 417 N.W.2d at 69.

We read McDowell and Bedwell together as providing a categorical

prohibition of this stratagem.

In Bedwell, neighbors noticed a strange vehicle parked in a nearby

driveway and saw a man carrying a television out of the house while

another man waited in the passenger seat. Id. at 67. The neighbors

approached, and the man abandoned the TV and left in the vehicle. Id.

The neighbors later identified Randall Bedwell as the individual they saw

attempting to take the TV. Id. at 67–68. At trial, Bedwell’s defense was

that his companion entered the home and removed the TV while Bedwell’s

6Heard submitted seventy-seven questions, some with multiple subparts. The
questions involved Brown’s criminal history, the activities and relationships of the
members of 3 in 3 out, and Brown’s history of mental illness.
 12

role was limited to driving the getaway vehicle. Id. at 68. Bedwell wanted

to call his companion to the witness stand, but the companion, through

counsel, claimed his Fifth Amendment privilege against self-incrimination.

Id. at 69.

The district court concluded Bedwell could not call his companion

as a witness for the sole purpose of asserting his Fifth Amendment

privilege against self-incrimination in the presence of the jury. Id. Bedwell

appealed, arguing there was no “restriction against a defendant calling a

witness who has predetermined to invoke the privilege.” Id. We disagreed.

We held that the trial court properly refused to allow Bedwell to call the

witness because “the jury is not entitled to draw any inferences from the

decision of a witness to exercise his constitutional privilege whether those

inferences be favorable to the prosecution or the defense.” Id. (quoting

Bowles, 439 F.2d at 541). Our Bedwell decision adopted the United States

Court of Appeals for the D.C. Circuit’s opinion in Bowles. Id.

Daniel Bowles was on trial for the murder of a soldier found dead in

an alley, and he presented a defense that another individual, Smith, had

killed the victim. Bowles, 439 F.2d at 541. At trial, the defense called a

witness, Neely, who testified that Smith admitted he killed a man on the

street but he would blame Neely if the police talked to him. Id. Another

witness testified that Smith went to him searching for Neely and saying

that Neely had been telling people that he killed a soldier. Id. The trial

court refused to allow Bowles to call Smith as a witness because Smith

stated he would invoke his Fifth Amendment privilege against self-

incrimination. Id.

The D.C. Circuit upheld the trial court’s refusal to allow the

defendant to call Smith as a witness after it was predetermined that he

would invoke his privilege against self-incrimination and based its decision
 13

on the rule that the jury cannot draw any inferences from such a decision.

Id. The appellate court stated that forcing Smith to invoke his privilege in

front of the jury would “only invite the jury to make an improper inference,”

which would be contrary to the constitutional notion that guilt cannot be

inferred from exercising one’s constitutional privilege. Id. at 542.

The rule Bedwell adopted from Bowles applies to the State and the

defendant alike.

It is improper for a prosecutor to require a witness to
claim his privilege against self-incrimination in the presence
of the jury when, as in this case, the prosecutor knows or has
reason to anticipate the witness will assert it.

State v. Allen, 224 N.W.2d 237, 240 (Iowa 1974). When a jury views an

alleged accomplice invoking the privilege, “prejudice arises from the

human tendency to treat the claim of privilege as a confession of crime,

creating an adverse inference which an accused is powerless to combat by

cross-examination.” Id. at 241.

We disagree with the court of appeals’ conclusion that this case

presents “unique circumstances” warranting an exception to the Bedwell

rule merely because Brown testified in Heard’s first trial. “[A] waiver of a

[F]ifth [A]mendment privilege is limited to the particular proceeding in
which the waiver occurs.” State v. Kellogg, 385 N.W.2d 558, 560 (Iowa

1986) (en banc); see also Duckworth v. Dist. Ct., 220 Iowa 1350, 1361, 264

N.W. 715, 721 (1936) (“[I]t is well settled that a person who has waived

such privilege [against self-incrimination] in one trial or proceeding is not

estopped to assert it as to the same matter in a subsequent trial or

proceeding, because the privilege attaches to the witness in each particular

case in which he may be called on to testify . . . .”). Brown’s waiver of his

privilege in Heard’s first trial does not preclude him from invoking the

privilege at the second trial because these trials are separate proceedings.
 14

This case differs from one that involves a witness who testifies on direct

examination in a jury trial and first invokes the Fifth Amendment privilege

on cross-examination in the same trial. See Charles R. Nesson &

Michael J. Leotta, The Fifth Amendment Privilege Against Cross-

Examination, 85 Geo. L.J. 1627, 1645 & n.155 (1997) (noting Bowles is

“followed in almost every circuit” and collecting cases). The district court

ruled that Brown’s testimony from the first trial could not be introduced

in the second. Neither side challenges that ruling on appeal.

Heard asks us to overrule Bedwell. “Stare decisis dictates that we

decline [Heard’s] invitation to overrule our precedent.” State v. Macke, ___

N.W.2d ___, ___ (Iowa 2019); see also Book v. Doublestar Dongfeng Tyre

Co., 860 N.W.2d 576, 594 (Iowa 2015) (“Stare decisis alone dictates

continued adherence to our precedent absent a compelling reason to

change the law.”); Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678,

688 (Iowa 2013) (“We are slow to depart from stare decisis and only do so

under the most cogent circumstances.”). Heard offers no compelling

reason to overrule Bedwell.

Other federal circuits hold that a witness properly invoking a

blanket Fifth Amendment privilege should not be compelled to do so in the

jury’s presence. See, e.g., United States v. Prince, 524 F. App’x 377, 379

(9th Cir. 2013); United States v. Santiago, 566 F.3d 65, 70 (1st Cir. 2009);

United States v. Bates, 552 F.3d 472, 475–76 (6th Cir. 2009); United States

v. Mares, 402 F.3d 511, 514–15 (5th Cir. 2005); United States v. Reyes,

362 F.3d 536, 541–42 (8th Cir. 2004); United States v. Deutsch, 987 F.2d

878, 883–84 (2d Cir. 1993); United States v. Harris, 542 F.2d 1283, 1298

(7th Cir. 1976). Many States, like Iowa, similarly hold that witnesses

properly invoking a blanket privilege against self-incrimination should not
 15

be compelled to do so in the presence of the jury. 7 Because the witness

who takes the Fifth does not testify, the defendant has no valid Sixth

Amendment confrontation clause claim. State v. Ramirez, 936 A.2d 1254,

1265 (R.I. 2007); see also Kellogg, 385 N.W.2d at 560 (noting a “primary

object of the confrontation clause” is the defendant’s right to cross-

examine the witness in front of the jury).

Heard urges us to depart from the clear majority rule and follow

State v. Herbert, in which West Virginia’s high court held a nonparty

witness’s invocation of the privilege against self-incrimination must be

made in the presence of the jury, because the privilege “may only be

invoked when a witness is asked a potentially incriminating question.”

767 S.E.2d 471, 479 (W. Va. 2014). We find the dissent in Herbert more

persuasive.

The majority creates new law for West Virginia, but
without support from any other jurisdiction in the entire
country. Overturning recent precedent, the majority holds
that in criminal trials, trial courts “shall require” a non-party
witness to invoke the privilege against self-incrimination “in

7See, e.g., State v. Henry, 863 P.2d 861, 872–73 (Ariz. 1993); People v.

Dikeman, 555 P.2d 519, 520–21 (Colo. 1976) (en banc); State v. Bryant, 523 A.2d
451, 455–56 (Conn. 1987); Apfel v. State, 429 So. 2d 85, 86–87 (Fla. Dist. Ct.
App. 1983); Billings v. State, 607 S.E.2d 595, 597 (Ga. 2005); People v. Myers,
220 N.E.2d 297, 310–11 (Ill. 1966) (per curiam); State v. Crumm, 654 P.2d 417,
423 (Kan. 1982); Clayton v. Commonwealth, 786 S.W.2d 866, 868 (Ky. 1990);
State v. Berry, 324 So. 2d 822, 830 (La. 1975); Commonwealth v. Gagnon, 557
N.E.2d 728, 737 (Mass. 1990); People v. Dyer, 390 N.W.2d 645, 648–49 (Mich.
1986); State v. Robinson, 715 N.W.2d 531, 555 (Neb. 2006); State v. McGraw, 608
A.2d 1335, 1339 (N.J. 1992); People v. Thomas, 415 N.E.2d 931, 934–35 (N.Y.
1980); Pavatt v. State, 159 P.3d 272, 286 (Okla. Crim. App. 2007); State v.
Mitchell, 487 P.2d 1156, 1161 (Or. Ct. App. 1971); State v. Ramirez, 936 A.2d
1254, 1265 (R.I. 2007); State v. Hughes, 493 S.E.2d 821, 823–24 (S.C. 1997);
State v. Rollins, 188 S.W.3d 553, 569–70 (Tenn. 2006); Horner v. State, 508
S.W.2d 371, 372 (Tex. Crim. App. 1974); State v. Travis, 541 P.2d 797, 798–99
(Utah 1975); State v. Heft, 517 N.W.2d 494, 501 (Wis. 1994). But see Gray v.
State, 796 A.2d 697, 717–18 (Md. 2002) (stating in dicta that trial court has
discretion to permit defendant to call a witness to invoke his Fifth Amendment
privilege in the presence of the jury, but declining to decide whether discretion
was abused and reversing on other grounds).
 16
the presence of the jury.” This new rule of law is fraught with
problems, including the potential for manipulation by
allowing either the prosecution or the defendant to call a
witness solely to allow the jury to draw adverse inferences
from a witness’s refusal to testify.

Id. at 490 (Loughry, J., concurring in part and dissenting in part). The

Herbert majority opinion is an outlier we decline to follow.

The district court similarly warned that Heard’s stratagem—to

compel Brown to invoke his blanket Fifth Amendment privilege in the

presence of the jury—is an “invitation for jurisprudential mischief in the

criminal process.” As the trial judge explained,

Were [Heard’s] procedure sanctioned, any defendant could
subpoena any known person of disrepute and force him or her
to take the Fifth. There would be no way for the Court, or the
jury, to assess the relevance of such an act. It would be
evidence by innuendo, untested by the adversarial process.

We agree. The trial judge correctly ruled Heard was not entitled to compel

Brown to the stand to take the Fifth in “a Perry Mason moment.” See

Bowles, 439 F.2d at 541–42 (“The jury may think it high courtroom drama

of probative significance when a witness ‘takes the Fifth.’ In reality the

probative value of the event is almost entirely undercut by the absence of

any requirement that the witness justify his fear of incrimination and by
the fact that it is a form of evidence not subject to cross-examination.”).

As the State argues, Heard’s stratagem would curtail joint criminal

trials, because each defendant would demand a separate trial to call

accomplices to the stand to take the Fifth in the presence of the jury,

hoping the resulting inference of the witnesses’ guilt would create

reasonable doubt as to the defendant’s.

For these reasons, we reaffirm McDowell and Bedwell. Our holding

applies to nonparties properly invoking a blanket Fifth Amendment

privilege.
 17

B. Heard’s Motion for a New Trial Based on the Weight of the

Evidence. Heard also appeals the court’s denial of his motion for a new

trial on grounds that the verdict was against the weight of the evidence.

The court of appeals did not reach this issue.

A district court may grant a new trial when it concludes, after

weighing the evidence presented and considering the credibility of the

witnesses, the jury verdict is contrary to law or evidence, which we have

held to mean “contrary to the weight of the evidence.” Nitcher, 720 N.W.2d

at 559. The “weight of the evidence” is a determination that a greater

amount of credible evidence supports one side over the other. State v.

Ellis, 578 N.W.2d 655, 658 (Iowa 1998). The district court should exercise

its discretion “with caution” and should grant a new trial “only in

exceptional cases in which the evidence preponderates heavily against the

verdict.” Id. at 659 (quoting 3 Charles A. Wright, Federal Practice and

Procedure § 553, at 245–48 (2d ed. 1982)). Our “appellate review is limited

to a review of the exercise of discretion by the trial court, not of the

underlying question of whether the verdict is against the weight of the

evidence.” State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003).

Heard argues the weight of the evidence supports his theory that

Brown committed the murder. Although Brown hid the gun after the

incident, the evidence points to Heard as the one who committed the crime.

Findley testified that, on the evening of the murder when they were talking

privately in the bathroom, Heard said he believed Hutchinson was going

to rob him and snitch to the police and that Heard told him he was

thinking about killing Hutchinson. Findley also testified that he was

standing by Brown at the time of the murder and did not see him with a

gun when he heard the gunshots, while Heard stood near Hutchinson.
 18

Majors and Daye testified that they saw Brown and Heard change

clothes after the incident and that Heard had removed a rubber glove.

Majors testified that Heard and Brown had distinctly different reactions

immediately after the murder, i.e., Brown appeared upset and cried that

evening, while Heard tried to get her to go back to the scene to ensure

Hutchinson was dead and described to her in detail how he shot

Hutchinson.

The trial judge gave these reasons for rejecting Heard’s motion for a

new trial based on the weight of the evidence:

I completely disagree with your evaluation of the evidence. I
watched and listened to the same witnesses that the jury did.
The witnesses were credible, believable.
While there was impeachment, and you were extremely
thorough in that regard, the jury had an opportunity to see
them. They had an opportunity to measure them, to evaluate
them, to decide whether, in light of the exhaustive cross-
examination, they were believable. The jury found them
believable. The Court found them believable.
The weight of the evidence here is adverse to your client.
It shows that he committed a murder, that it was done with
premeditation, that it was done with deliberation, that it was
done with the specific intent to kill. Motive is not an element
for the government, but clearly the motive was demonstrated
in this case. This was a gang killing, in the Court’s view, and
someone was pushing back against the gang leader and paid
the price.
The weight of the evidence here is more than adequate
to support this verdict.

We reach the same conclusion. We hold the district court did not abuse

its discretion in denying Heard’s motion for a new trial.

C. The Lack of a Jury Finding on Heard’s Age. Heard argues for

the first time on appeal that he cannot be sentenced to life in prison

without parole because the jury did not find he was an adult at the time

of the crime. He did not raise this issue in district court. To the contrary,

he filed a motion in limine before trial that confirmed he was born in 1981,
 19

reached age eighteen in 1999, and was age twenty-six when Hutchinson

was murdered. Heard makes no claim that his sentence is invalid because

he actually was under age eighteen at the time of the crime. We conclude

Heard is not entitled to relief from his life-without-parole sentence in this

direct appeal because he failed to preserve the jury issue by raising it

below.

The Supreme Court held in Alleyne v. United States that “any fact

that increases the mandatory minimum [sentence] is an ‘element’ [of the

crime] that must be submitted to the jury.” 570 U.S. 99, 103, 133 S. Ct.

2151, 2155 (2013); see also Apprendi v. New Jersey, 530 U.S. 466, 490,

120 S. Ct. 2348, 2362–63 (2000) (“Other than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.”). We held in State v. Sweet that juvenile offenders

cannot be sentenced to life without the possibility of parole under the cruel

and unusual punishment clause of the Iowa Constitution. 879 N.W.2d

811, 839 (Iowa 2016). Heard argues that because a sentence of life

imprisonment without parole is unconstitutional under Sweet unless the

defendant is eighteen years of age or older, it follows that, under Alleyne,

age is an element that must be submitted to the jury before the court can

impose that sentence.

The State responds that a defendant’s age is not an element in the

crime of first-degree murder and adult status does not enhance the

mandatory automatic sentence of life without parole; rather, status as a

minor is a ground to escape that mandatory sentence. We assume without

deciding that when a defendant’s age is genuinely in dispute, a jury finding

that he or she is eighteen or older should be required before imposing a

life-without-parole sentence. But the defendant must raise the issue of
 20

his age and claim to be a minor before the issue must be submitted to the

jury. Heard failed to do so. Understandably so because he had already

acknowledged in his own court filing that he was an adult at the time of

Hutchinson’s murder.

Heard contends his life-without-parole sentence is illegal without a

jury finding on his age. We disagree. In our view, a defendant, at most,

can claim a procedural error if an issue as to his age was not submitted to

the jury. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001) (en banc).

“[A] defective sentencing procedure does not constitute an illegal sentence”

that can be challenged at any point. Id. at 360 (emphasis omitted). We

“do not allow challenges to sentences that, because of procedural errors,

are illegally imposed.” Id. at 359.

Heard’s claim challenges the procedural jury instruction

requirements under Alleyne, not the constitutionality of the sentence. As

such, Heard’s claim is not an attack on an illegal sentence. Because Heard

did not raise this challenge during trial, the age issue is not preserved on

appeal. See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“[T]imely

objection to jury instructions in criminal prosecutions is necessary in

order to preserve any error thereon for appellate review.”). We affirm

Heard’s life-without-parole sentence.

IV. Disposition.

For the foregoing reasons, we vacate the decision of the court of

appeals and affirm the district court’s ruling and judgment.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.

All justices concur except McDonald, J., who takes no part.