Opinion
No. 3-856 / 03-0229.
Filed December 10, 2003.
Appeal from the Iowa District Court for Mahaska County, Richard J. Vogel and Daniel P. Wilson, Judges.
Ricky Joe Blodgett appeals from a judgment and sentence following his convictions for robbery in the first degree and burglary in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, and Charles Stream, County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Ricky Blodgett appeals from a judgment and sentence following his convictions for robbery in the first degree and burglary in the first degree. He contends the trial court erred in allowing testimony regarding other crimes, in denying his motion to suppress the photographic lineup, and in denying his motion for a mistrial. Blodgett also contends his counsel was ineffective in failing pursue an intoxication defense. We affirm.
I. Background Facts and Proceedings.
On March 13, 2002, Richard Nossaman arrived at his parent's house and saw a white Dodge pickup in front of the garage. As Nossaman entered the living room, a man stepped out of the bedroom with a shotgun. The man ordered Nossaman to his knees and then his stomach. When Nossaman could not provide the man with cash, guns, or his billfold, the man shoved the gun into his back and told him not to move. He then ordered Nossaman to his feet and instructed him to run across a cornfield. Nossaman saw the man get inside the white truck and head west from the house before calling the police. Nossaman's father, Harvey, was standing at the roadside approximately one-half mile from the house when he saw a white pickup pass by. Harvey Nossaman's bedroom was ransacked and items were missing.
Two days later, a police officer found a pickup truck matching the Nossamans' descriptions. The Nossamans identified the truck as the one they had seen on March 13. In addition to its general appearance, the truck matched the Nossamans' descriptions of a trailer hitch on the back, a mount for a snowplow blade on the front, and damage to the front end. The truck was registered to Blodgett.
Richard Nossaman was shown a photographic lineup that included Blodgett along with three other men. Two men had beards. One man had a mustache and glasses. Blodgett was the only man with both a beard and glasses, as Richard Nossaman had described. Richard Nossaman identified Blodgett as the perpetrator.
Blodgett was arrested while driving his truck. He was the only one in the truck at the time. Inside the truck, sheriff deputies discovered a class ring and a Master Pork Producers belt buckle taken from the Nossaman home. Blodgett admitted he was in his truck in the driveway of the Nossaman home at the time of the incident, but claimed a man named Steve was the one who entered the house. Authorities determined that Steve was Stephen Penrod, who has no physical resemblance to Blodgett.
Blodgett was charged with first-degree robbery and first-degree burglary. At trial, Richard Nossaman identified Blodgett as the perpetrator and that there was "no question" about the identification. At the conclusion of the trial, the jury found Blodgett guilty on both counts. The court sentenced Blodgett to twenty-five years imprisonment on both counts to be served consecutively.
II. Other Crimes Evidence.
At trial, Deputy Paul DeGeest testified as follows:
Q. With regard to the robbery-burglary at the Nossaman residence, what statements, if any, did Mr. Blodgett make? A. In regards to the Nossaman residence, he advised me that he was at the residence. He was sitting in the pickup. Stated that there was a fellow by the name of Steve, didn't know his last name, lived in Melcher-Dallas area was actually the one that was inside the residence.
. . .
Q. Were you able to determine who this Steve was? A. Yes. By Mr. Blodgett's description, he said that this individual was the son of a lady that worked at the bar there in Melcher-Dallas. Through the Marion County Sheriff's Office we were able to determine that individual is a Stephen, and I believe the last name was Penrod.
Q. And did you later that day see Stephen Penrod? A. Yes, sir. We did a search warrant at that residence. Some of the stolen guns that had been stolen in Marion County burglaries had been sold to the owner of that bar, and we obtained a search warrant for the Penrod residence. Marion County Sheriffs were familiar with the bar owner, and they spoke with him in regards to the guns. I'm not sure what the outcome was on that.
Blodgett objected to the testimony as irrelevant and prejudicial.
We review rulings on admission of evidence for an abuse of discretion. State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003). Harmless errors do not require reversal. State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998).
Assuming the evidence was irrelevant, we conclude the error was harmless. There is substantial evidence of Blodgett's guilt. His truck was identified by the Nossamans as the truck they had seen on the night in question. Richard Nossaman identified Blodgett as the perpetrator. Blodgett himself admitted he was involved in "a home invasion" with Stephen Penrod and was in the truck on the night of the burglary/robbery. Any evidence regarding officers investigating unrelated crimes Penrod may have committed was not prejudicial to Blodgett.
III. Photographic Array.
Blodgett next contends the court abused its discretion in admitting testimony regarding Richard Nossaman's identification of Blodgett from a photographic lineup. Blodgett contends the identification resulted from an impermissibly suggestive procedure and it produced a very substantial likelihood of irreparable misidentification. Blodgett also contends Richard Nossman's in-court identification should have been suppressed as "fruits of the poisonous tree."
Because this is a constitutional claim, we make an independent evaluation of the totality of the circumstances. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). To succeed on a claim a photographic lineup violated due process, Blodgett must establish: (1) the procedures were in fact impermissibly suggestive; and (2) the irregularities gave rise to a substantial likelihood of irreparable misidentification. See State v. Caya, 519 N.W.2d 419, 422 (Iowa Ct.App. 1994). Reliability is the linchpin in determining the admissibility of identification testimony. State v. Lasage, 523 N.W.2d 617, 620 (Iowa Ct.App. 1994). The factors to be used in assessing reliability are:
(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness's degree of attention;
(3) the accuracy of his prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.
Id. (citation omitted).
Richard Nossman stated in his deposition that the perpetrator wore glasses and a beard. However, Blodgett's photograph was the only photograph showing a man with both glasses and a beard. Blodgett contends the photographic array was impermissibly suggestive.
There is no per se rule regarding the number of photographs that must be used in an array. State v. Neal, 353 N.W.2d 83, 89 (Iowa 1984). Nor must police scour their files to come up with a photographic display that would eliminate all subtle differences between individuals. State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987). The four photographs used in this array were all of men who were not significantly different in appearance. Two wore glasses in the pictures and all had facial hair. It appears here that there was at least a reasonable effort to harmonize the photographs, which is all that is required. Id. Therefore, the procedure was not impermissibly suggestive.
IV. Motion for Mistrial.
Blodgett next contends the court abused its discretion in denying his motion for a mistrial after the jurors saw him shackled and waiting in a hallway outside the courtroom during a break.
It is true a defendant is usually not restrained in the courtroom in front of a jury in order to prevent the creation of prejudice in the minds of jurors. State v. Wilson, 406 N.W.2d 442, 449 (Iowa 1987). However, there are two categories of cases in which defendants are shackled; those in which the defendant is shackled in the courtroom during trial and those in which members of the jury briefly and inadvertently observe the defendant being moved to and from the courtroom area in shackles during a trial recess. Id. at 448. This case clearly falls within the latter category. In cases of this type, the defendant has the burden to show the incident prejudicially affected the jury or that his ability to present his defense was impaired as a result of his being seen in shackles. Id. Given the overwhelming evidence of Blodgett's guilt, he is clearly unable to show he was prejudicially affected by the jurors brief exposure to him in shackles outside the courtroom. The district court did not err in overruling Blodgett's motion for a mistrial.
V. Ineffective Assistance of Counsel.
Finally, Blodgett contends his counsel provided ineffective assistance in failing to pursue an intoxication defense. We review claims of ineffective assistance of counsel de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Only in rare cases will the trial record alone be sufficient to resolve the claim. Id. "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct.App. 1999) (citing State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)).
Both Blodgett and the State concede the record is inadequate to resolve this claim on direct appeal. Accordingly, we preserve it for postconviction relief.