Opinion
No. 1-626 / 00-1317.
Filed February 20, 2002.
Appeal from the Iowa District Court for Polk County, D. J. STOVALL, Judge.
The defendant appeals from his convictions for the offenses of attempt to commit murder and terrorism with intent. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Alf Freddy Clark appeals from the judgment and sentence entered on jury verdicts finding him guilty of attempted murder and terrorism with intent. He contends (1) the trial court erred by allowing the prosecutor to broach the subject of gang activity in voir dire, (2) the trial court erred by overruling his challenge to the removal of a black juror by the State's peremptory challenge, and (3) the evidence was insufficient to warrant conviction. He also contends his trial counsel was ineffective in failing to (1) object to gang evidence at trial, (2) file a motion to suppress evidence, (3) object to the marshalling instruction for terrorism with intent, and (4) move for judgment of acquittal due to the insufficiency of evidence showing him guilty as a principal for terrorism with intent. We affirm.
I. BACKGROUND FACTS.
Under the record in this case, the jury could reasonably have found the following facts. Shawn James was a passenger in a white Ford Taurus that stopped in front of a house at 2112 Washington Street in Des Moines on August 6, 1999. Eyewitnesses observed James exit the passenger side of the vehicle and repeatedly fire a handgun at Keon Phillips, who was standing in front of the house. Phillips ran toward the house as five or six shots were fired at him. Phillips was not injured. Bullets struck the house at 2112 Washington and the house next door.
Police were called and arrived at the scene within five minutes of the shooting. They were given a description of the vehicle involved and a license number. The getaway car was located a short time later and stopped. James was in the passenger seat, and Clark was driving the car. A .38 caliber revolver was found in the glove compartment. All six chambers had been fired. Ballistics evidence established the gun found in the car was used in the shooting.
Clark was charged with attempt to commit murder in violation of Iowa Code section 707.11 (1999) and terrorism with intent in violation of section 708.6. Clark and James were jointly tried. A jury found Clark guilty on both counts. The trial court sentenced him to an indeterminate, twenty-five year term of imprisonment for attempt to commit murder and an indeterminate, ten-year term of imprisonment for terrorism with intent, to be served concurrently. Clark appeals.
II. VOIR DIRE.
Clark contends that the trial court erred by allowing the prosecutor to broach the subject of gang activity in voir dire, and alternatively, that trial counsel was ineffective if he failed to properly preserve this issue for our review. During voir dire, the prosecutor spoke with the jury panel briefly and generally about what, if any, training or experience they had with criminal street gangs. He did not intimate that Clark, James, or any specific witnesses were gang members. Clark moved the trial court to instruct the prosecutor to refrain from questioning regarding gangs. The prosecutor indicated that he asked the questions based on his concern that there would be evidence that some of his witnesses were gang members. The trial court recalled that the prosecutor's questions were proffered in a manner indicating that they could apply equally to the State's witnesses. As a result, Clark's motion was overruled. There is no indication further voir dire questioning concerning gangs was undertaken.
We review the trial court's ruling for abuse of discretion. State v. Windsor, 316 N.W.2d 684, 686 (Iowa 1982). We will not reverse unless there has been a clear abuse of that discretion. Id. An abuse of discretion will be found only if we find the trial court's discretion was exercised on grounds or for reasons which are clearly untenable, or to an extent clearly unreasonable. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996).
The manner of conducting voir dire and its scope are not specifically addressed by rules of procedure in Iowa. Windsor, 316 N.W.2d at 686. Our supreme court has said, however, that the purpose in allowing latitude in counsel's inquiry is to provide information to assist counsel in deciding how to exercise challenges. Id. The underlying purpose is to secure a fair and impartial jury. Id. at 687.
We question whether error was preserved on Clark's claim. He contends on appeal that the prosecutor's questioning was improper, whereas in the trial court he requested the court limit questioning prospectively. See Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) (stating that issues must be presented to and passed upon by trial court before they can be raised and decided on appeal). However, because the trial court appears to have ruled that the prosecutor's questioning prior to Clark's motion was proper, we will proceed to consider Clark's argument on appeal.
We reject the State's contention that error was not preserved because the record on appeal does not include a report of the voir dire proceedings. State v. Woodyard, 414 N.W.2d 654, 657-58 (Iowa Ct. App. 1987). We are able to readily identify and address the challenged error from the record provided. See State v. Newman, 326 N.W.2d 796, 800 (Iowa 1982); see also State v. Oshinbanjo, 361 N.W.2d 318, 321 (Iowa Ct. App. 1984).
We conclude that the trial court did not abuse its discretion in rejecting Clark's request to limit the prosecutor's voir dire. The prosecutor stated that he was pursuing the issue of gangs because there might be evidence that some of the State's witnesses were gang members. The prosecutor's questioning did not imply anyone was a gang member, nor did it intimate that this was a gang-related shooting. We affirm.
III. BATSON CHALLENGE.
Clark contends the trial court erred in overruling his challenge to the removal of a black juror in violation of Batson v. Kentucky and its progeny. Clark is African-American, as are two prospective jurors on the jury venire in Clark's case, Ms. Edwards and Ms. Wells. Clark argued the State violated Batson after it exercised a peremptory challenge as to Ms. Wells. Ms. Edwards remained a potential juror at the time of Clark's motion. The trial court overruled the motion, concluding that Clark failed to make a prima facie case that Ms. Wells was struck solely based on race, and even if Clark made out a prima facie case, the State articulated a race-neutral explanation for striking her.
This claim is premised on the contention that the State violated Clark's rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See State v. Griffin, 564 N.W.2d 370, 375 (Iowa 1997). Therefore, our review is de novo. State v. Keys, 535 N.W.2d 783, 785 (Iowa Ct. App. 1995).
In Batson,the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prevents a prosecutor from using peremptory strikes to challenge potential jurors solely because of their race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 83 (1986). To prove that a Batson violation has occurred, a defendant must first establish a prima facie case of purposeful discrimination in the selection of the jury. Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87; State v. Knox, 464 N.W.2d 445, 448 (Iowa 1990). "To establish such a case, the defendant . . . must show that he [or she] is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87 (citation omitted).
In determining whether a defendant has established the requisite showing of purposeful discrimination, the court should consider all relevant circumstances including, but not limited to, a pattern of strikes against black jurors, as well as the prosecutor's questions and statements during voir dire.Knox, 464 N.W.2d at 448; accord Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88.
Once this prima facie case of purposeful discrimination is made, an inference arises that the government violated the defendant's equal protection rights and "the state has the burden of articulating a clear and reasonably specific" race-neutral explanation for the peremptory strike. Knox, 464 N.W.2d at 448; accord Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. The prosecutor's explanation
need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he [or she] challenged jurors of the defendant's race on the assumption-or his [or her] intuitive judgment-that they would be partial to the defendant because of their shared race.Batson, 476 N.W.2d at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88 (citations omitted). The race-neutral explanation must be "related to the particular case to be tried." Id. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 88. Because the trial court's determination of whether purposeful discrimination occurred "will largely turn on the evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Knox, 464 N.W.2d at 448; accord Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21, 90 L.Ed.2d at 89 n. 21.
We conclude that Clark has failed to establish a prima facie case of purposeful discrimination. We find no circumstances raising an inference that the State excluded Ms. Wells solely based on her race. Clark's argument in support of finding a Batson violation focused on the fact that Ms. Wells was black and that Ms. Wells' and Ms. Edwards' answers during voir dire did not indicate "a bias in favor of the defendant or of the defense in general or anything in particular of the facts in this case or any disagreement with an ability to follow the law as given by the Court." The prosecutor had struck only one of the two prospective black jurors at the time of Clark's Batsonchallenge, and thus Clark is unable to show a pattern of striking black jurors. See Knox, 464 N.W.2d at 448 (holding that merely showing that the State used a peremptory challenge to exclude the sole black juror falls short of raising an inference of purposeful discrimination). C f. Griffin, 564 N.W.2d at 376 (holding that defendant established a prima facie case of purposeful discrimination when prosecutor exercised her peremptory challenges on the only two African-American prospective jurors). Furthermore, Clark did not point to any questions or statements by the prosecutor during voir dire that evinced any intent to discriminate. Thus, the trial court correctly found Clark failed to establish a prima facie case of purposeful discrimination. We affirm on this issue.
IV. SUFFICIENCY OF THE EVIDENCE.
Clark unsuccessfully moved the trial court for a judgment of acquittal as to both counts, specifically arguing there was a failure of proof on the questions of identity and specific intent to kill. Clark argues on appeal that the State failed to prove his identity as the driver of the getaway car and his intent. Additionally, he contends that, as to terrorism with intent, the jury instruction included language that he was the principal, and the jury was not instructed they could find him guilty as an aidor and abettor. He argues the evidence does not support him as either an aidor and abettor or as the principal.
Because a jury verdict is binding on this court when supported by substantial evidence, appellate review of Clark's sufficiency-of-the-evidence argument is for the correction of errors at law. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). Evidence is substantial if a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). The jury was entitled "to give as much weight to the evidence as, in its judgment, such evidence should receive." State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996). "Direct and circumstantial evidence are equally probative." Iowa R. App. P. 14(f)(16). This court reviews the evidence in a light most favorable to the State. Casady, 597 N.W.2d at 804. This includes all legitimate inferences that may fairly and reasonably be deduced from the evidence. Id.
To sustain a conviction on the theory of aiding and abetting, the record must contain substantial evidence that the defendant assented to or lent countenance and approval to the criminal act by either actively participating or by encouraging the act in some manner prior to or at the time of its commission. State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000). The State must prove the defendant knew of the crime at or before its commission. Id. Such proof may be either direct or circumstantial. Id. Neither knowledge of the crime nor proximity to the crime is sufficient to prove aiding and abetting. Id. They are factors, though, which with circumstantial evidence, including presence, companionship, and conduct before and after the offense is committed, may be enough to infer a defendant's participation in the crime. Id. When intent is an element of the crime charged, a defendant may be convicted on a theory of aiding and abetting if he participates with either the requisite intent, or with knowledge the principal possesses the required intent. Id.
We find that Clark has failed to preserve error on his claim that there was not sufficient evidence to support his terrorism with intent conviction because the jury instruction for that offense allowed the jury to find him guilty as the principal, and not as an aidor and abettor. Clark failed to raise this argument before the trial court. Our error preservation rules require that issues be presented to and passed upon by the trial court before they can be raised and decided on appeal. Metz, 581 N.W.2d at 600.
We conclude there is substantial evidence to support Clark's convictions. First, we find substantial evidence that Clark was the driver of the car when James shot at Phillips. There was no eyewitness testimony presented at trial that Clark was driving his car when James shot at Phillips. However, Clark owned the getaway car, and Phillips admitted to seeing Clark drive that vehicle in the past. Soon after the shooting, Clark was found driving his vehicle. James was his passenger, and the weapon used in the shooting was recovered from the glove compartment of Clark's car. We conclude there was substantial evidence to support a jury finding that Clark was the driver of the getaway car.
Second, we also determine there is substantial evidence in the record that Clark either participated in the shooting with the specific intent to kill Phillips, or with knowledge that James possessed the required intent. There is not direct evidence that Clark knew of the weapon prior to James drawing and firing it. However, Clark continued to participate in this shooting. He stopped the car across the street from Phillips' residence. After the shooting, he drove away with James in his car. Clark did not attempt to leave the scene without James. Shortly after the shooting the weapon was found in Clark's car. We believe substantial evidence supports a finding that James formed the specific intent to kill Phillips. See State v. Wilkens, 346 N.W.2d 16, 20 (Iowa 1984) (stating that when a person intentionally uses a deadly weapon in killing a victim, the jury may infer that he formed the specific intent to kill). We affirm.
V. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Clark asserts his trial counsel was ineffective in failing to perform various duties. Specifically, he contends counsel was ineffective in failing to (1) object to gang evidence at trial, (2) file a motion to suppress evidence, (3) object to the marshalling instruction for terrorism with intent, and (4) move for judgment of acquittal due to the insufficiency of evidence showing him guilty as a principal for terrorism with intent.
We review Clark's claims of ineffective assistance of counsel de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). Generally, ineffective-assistance claims are preserved for postconviction relief proceedings. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998). Such claims are preserved to allow development of the facts surrounding the conduct of trial counsel. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978).
We find the record in this case insufficient to address Clark's ineffective-assistance claims. Therefore, we preserve his claims for possible postconviction relief proceedings.
VI. CONCLUSION.
We affirm the district court's judgment and sentence. Clark's claims of ineffective assistance of counsel are preserved for possible postconviction relief proceedings.
AFFIRMED.
VAITHESWARAN, J., concurs; SACKETT, C.J., concurs specially.
In concur in all respects with the majority opinion except I find error was not preserved on the question on voir dire and affirm on that basis.