Opinion
No. 2-616 / 01-0929
Filed November 15, 2002
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor and Bobbi M. Alpers, Judges.
The defendant appeals his conviction and sentence for first-degree robbery. AFFIRMED.
Phil Ramirez of Phil Ramirez, P.C., Rock Island, Illinois, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William Davis, County Attorney, and Robert Cusack, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Harold Burge appeals his conviction and sentence for first-degree robbery. He contends (1) there was insufficient evidence to support the jury's verdict, (2) the district court should not have admitted statements of a non-testifying co-defendant, and (3) trial counsel was ineffective. We affirm.
I. Background Proceedings.
Two men robbed a gas station in Bettendorf. The State charged Burge and his codefendant, Joseph Hollingshed, with first-degree robbery. Iowa Code section 711.2 (1999). The codefendants were tried together. Over defense counsel's objection, a police officer testified to the contents of a statement Hollingshed gave police following the robbery. The jury found Burge guilty as charged. He appealed following imposition of his sentence.
II. Sufficiency of the Evidence
Burge first contends the evidence was insufficient to support the jury's verdict. We review challenges to the sufficiency of the evidence on error. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). We will uphold the verdict if there is substantial evidence to support the charge. Id.
The jury was instructed that the State would need to prove the following elements of first-degree robbery:
1. On or about the 20th day of November 2000, the defendant, Harold Burge, had the specific intent to commit a theft.
2. To carry out his intention or to assist him in escaping from the scene, with or without the stolen property, the defendant:
a. Committed an assault on Gary Singh or
b. Threatened Gary Singh with, or purposely put Gary Singh in fear of immediate serious injury.
c. The defendant was armed with a dangerous weapon.
A jury reasonably could have found the following facts. Burge and Hollingshed entered a gas station where Gurinder (Gary) Singh was working. Burge was wearing a leather coat and a light nylon mask. The men demanded money. One pulled a gun and threatened to kill Singh. Singh was scared. He said "okay. You can have it. Please don't hurt me." The men took $1400, Garcia Vegas cigars, Optimos cigars, and cartons of Marlboro and Newport cigarettes. They ran out the door and across the street.
Kenneth and Maxine Duhm saw two men running in front of their car. They pulled into an alley and soon observed a white car with a driver and passenger resembling the men they had just seen. They noted the vehicle's license plate number.
The number was ultimately traced to Burge's girlfriend. Police obtained her consent to search her home and, with Burge present, discovered Newport Light cigarettes, Garcia Vegas cigars, and a leather coat. They also found light nylons underneath a sofa cushion on which Burge had been sitting.
We believe this evidence is sufficient to support the verdict. It is true only one witness, Kenneth Duhm, positively identified Burge as one of the robbers and his testimony was severely impeached with prior inconsistent statements. However, the jurors were instructed they could use the prior statements to help them decide if they believed Duhm. They were further instructed they could "disregard all or any part of the testimony" if they found the statements to be inconsistent. This instruction correctly left the job of assessing witness credibility to the jurors. We will not second-guess their determination. State v. Wells, 629 N.W.2d 346, 356 (Iowa 2001) (noting we defer to fact finder's credibility determination).
III. Co-Defendant's Statements.
Burge next contends the district court should have excluded a police officer's testimony concerning a statement Hollingshed made to police. He maintains the out-of-court statement of a non-testifying codefendant violated his Sixth Amendment right to confront witnesses. See Bruton v. United States, 391 U.S. 123, 135-6, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476, 485 (1968).
The challenged portion of the statement is as follows:
Q. Did you happen to ask Joseph Hollingshed where he was on Monday, the 20th of November at approximately noon?
A. Yes.
Q. Do you recall what he told you?
A. That his cousin, Harold Burge, had come and picked him up and they went to get a haircut.
Q. Okay. And I said noon. Is that about what time he was talking about, Mr. Hollingshed?
A. Right in there, yes.
Q. Did you ask him where they went to get their hair cut?
A. They were telling us it was over someplace on Washington Street.
Q. I'm just talking about Joseph Hollingshed. Did he tell you where they went to get their hair cut?
A. Yes.
Q. And where was that?
A. He said it was on Washington Street, but it was actually on Sturdevant.
Q. Did he give you the name of the barbershop, if you recall?
A. No, I don't think he gave us the name of it. He gave the name of the previous owner.
A. Troy Shorter.
Q. Okay. Would you take a look at your report regarding that November 28 interview with Mr. Hollingshed.
A. Okay. He did name it. It was A-1 Barbershop.
Q. Did you ask Joseph what type of clothing Mr. Burge was wearing?
A. I'd have to read my report to say that. I can't answer that question.
Q. That's fine, Detective. I understand it's been a while, so if you could refer to your report, specifically the last paragraph on that page.
A. Okay. I have it.
Q. And could you tell the jury what Joseph Hollingshed told you that Harold Burge was wearing that day?
A. A white Dickies. I'm not sure what that is, pants. I assume that was pants, a black shirt and a leather coat.
Burge concedes this statement does not directly implicate him but argues it creates a "presumption of culpability." We agree with Burge that, when viewed with other evidence in the record, portions of Hollingshed's statement may implicate Burge. For example, Hollingshed created an alibi for himself and Burge which the State was able to prove false; the jury could have inferred "consciousness of guilt" from the false alibi. See Brown v. Maloney, 267 F.3d 36, 40 (1st Cir. 2001). Additionally, Hollingshed stated Burge was wearing a leather jacket on the day of the robbery. This statement indirectly implicated Burge when tied with evidence that a leather jacket was found in the home Burge occupied.
Despite these inculpatory components to Hollingshed's statement, we are not persuaded that Bruton is implicated. In a subsequent case, Richardson v. Marsh, 481 U.S. 200, 201, 107 S.Ct. 1702, 1704, 95 L.Ed.2d 176, 211 (1987), the United States Supreme Court held Bruton did not apply to a confession that was "not incriminating on its face, but became so only when linked with evidence introduced later at trial." Id.
Cf. Gray v. Maryland, 523 U.S. 185, 195, 118 S.Ct. 1151, 1156, 140 L.Ed.2d 294, 302 (1998) (addressing a question not at issue here, whether redaction of a codefendant's name cures the Brutonproblem, and holding "redactions that replace a proper name with an obvious blank, the word "delete," a symbol, or similarly notify the jury that a name has been deleted are similar enough to Bruton's unredacted confessions as to warrant the same legal results)."
This case is like Richardson. Nothing in Hollingshed's statement expressly implicated Burge. Accordingly, introduction of the statement did not violate the confrontation clause of the Sixth Amendment. See United States v. Rubio, 709 F.2d 146, 155 (2d Cir. 1983); United States v. Hackett, 638 F.2d 1179, 1187 (9th Cir. 1980). Cf. Maloney, 267 F.3d at 42 (in habeas corpus case, it was not unreasonable for State court to conclude there is no clearly established Supreme Court precedent finding a Bruton violation where a statement "may be inculpatory but is not a confession directly implicating" the defendant).
In the alternative, Burge argues the police officer's testimony concerning Hollingshed's statement was hearsay. We disagree. Statements by a conspirator during the course and in furtherance of the conspiracy are not hearsay, but admissions of a party-opponent. State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998). "When there is substantial evidence of a conspiracy, whether the offense charged is conspiracy or not, everything said by any conspirator in furtherance of the common purpose is deemed to have been said on behalf of all parties to the conspiracy." Id. at 915.
Police obtained Hollingshed's statement eight days after the crime was committed. Still, there was substantial evidence that the statement was an attempt to conceal the crime, in furtherance of the conspiracy. Id. Therefore, the statement was not hearsay.
IV. Ineffective Assistance of Counsel.
Burge finally contends trial counsel was ineffective in failing to (1) request a severance of trial, (2) obtain identification experts to testify on his behalf, (3) object to the admission of Kenneth Duhm's "perjured" testimony, and (4) object to the substitution of judges at sentencing. We preserve all four claims for postconviction relief. See State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001) (stating "[w]e prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings)."