Opinion
No. 2-007 / 01-0291.
Filed May 31, 2002.
Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge.
Betty L. Cross appeals from her conviction for robbery in the second degree as an habitual offender. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Hecht, JJ.
Betty L. Cross appeals from her conviction for robbery in the second degree as an habitual offender contending the court erred in denying her motions for judgment of acquittal. She further alleges her counsel was ineffective for failing to object to the alleged prosecutorial misconduct which occurred during the State's closing arguments and failing to request a mistrial based on this alleged misconduct. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
From the evidence presented at trial the jury could find the following facts. On October 11, 2000 Mark Hart got off work at approximately 11:30 p.m. and planned to go to his girlfriend Jennifer's apartment following work. On his way to her house he stopped at the Quik-Trip on University and 6th Street in Des Moines to get gas. Hart testified that after paying for his gas and exiting the store he noticed a group of people standing near his car. He later learned one member of this group was James Gamble. Gamble asked Hart for a cigarette which Hart gave him. Gamble then entered the passenger side of Hart's vehicle, without invitation to do so, and asked Hart for a ride for a couple of blocks. Hart stated he tried to persuade Gamble to get out of the car because he was in a hurry but Gamble insisted on a ride. Not knowing what else to do and wanting to avoid confrontation, Hart decided to give Gamble the ride.
Gamble gave Hart directions for a few blocks and Hart stopped the vehicle assuming Gamble would get out. However, Gamble stated the person he was looking for was not there and gave Hart additional directions. After driving and stopping in this manner five or six times Gamble told Hart to pull over by a group of people. Gamble asked the group if any of them knew a particular person. The defendant, Betty Cross, stated she knew the person and Gamble told her to get in the car.
Once Cross was in the vehicle she and Gamble began talking and laughing as if they knew each other. Hart continued to follow directions from Gamble and Cross and eventually stopped in an alley. Hart then noticed Gamble take $40 from the pocket of his work apron. However, Hart did not say anything to Gamble because he felt intimidated by Gamble and Cross and the whole situation. Once stopped in the alley Gamble left the vehicle for a few minutes to talk with some people. While only Hart and Cross were in the car Cross asked Hart for some money but he told her he had none. Hart asked Cross to exit the vehicle but she instructed him to wait for Gamble. Cross then stepped out of the car leaving the door open, yelled something to Gamble, and got back into the vehicle. Gamble returned to the car shortly thereafter.
Once Gamble and Cross were both back in the vehicle Hart was ordered to drive to another alley. In the alley Gamble got into the back seat with Cross and they began to smoke crack. Hart asked them again to leave the vehicle because he did not condone drug use. The pair refused to leave and accused Hart of being a police officer. To disprove this accusation Hart gave them his driver's license and a library card. The pair then demanded $50 from Hart and asked him to join them in smoking crack. Although Hart initially declined the offer to smoke crack with them, he eventually did smoke a little to prove he was not a police officer. Hart had never smoked crack before.
During this time Jennifer called Hart on his cell phone to see where he was and he told her he was going to be really late and that he was in trouble. Gamble took the phone from Hart and told Jennifer that Hart was coming and not to worry about it. Cross then took the phone and asked who it was on the phone and subsequently hung up on Jennifer. After this call Gamble kept the phone in the backseat with him and Cross.
Gamble then demanded money from Hart again and told him to go to Hart's residence and obtain more money. Hart resisted this request but then Cross told him, "If you don't do what my man says, you're going to die," and informed Hart she had a .44 caliber gun and she had given a gun to Gamble as well. Once they arrived at his residence Cross threatened harm to his family and stated, "If you're in there too long, one of us is going to come in." Gamble kept the keys to Hart's car while he went inside to get the money. Hart went inside, got the $50, and told his mother he had a couple of drug addicts in his car, they had a gun, and they wanted money. Hart told his mother to call the police and have his car pulled over.
Upon Hart's return to the vehicle he gave the pair the $50 and Gamble insisted on driving. Shortly after departing Hart's residence the vehicle was pulled over by the police. Gamble and Cross both stated to the police they knew each other prior to that night but neither had known Hart previously.
Cross and Gamble were charged as codefendants with robbery in the second degree in violation of Iowa Code sections 711.1 and 711.3 (1999). The charges were later amended to also allege they were habitual offenders as defined in section 902.8. The case proceeded to jury trial and the jury found both defendants guilty of robbery as charged. Cross stipulated to her prior convictions for the purpose of the habitual offender allegation. The district court sentenced Cross to a fifteen-year indeterminate term of incarceration. Cross appeals from her conviction contending the court erred in denying her motions for judgment of acquittal based on insufficient evidence and that her counsel was ineffective for failing to object to the alleged prosecutorial misconduct committed by the State in its closing argument and failing to move for a mistrial based on such misconduct.
II. MERITS A. Motions for Judgment of Acquittal
We review challenges to sufficiency of the evidence supporting a guilty verdict for errors at law. Iowa R. App. P. 6.4; State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). We will uphold the trial court's denial of a motion for judgment of acquittal if there is substantial evidence in the record to support the defendant's conviction. State v. McPhillips, 580 N.W.2d 748, 752 (Iowa 1998). If a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt, the evidence is substantial. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000). The evidence is examined in the light most favorable to the State, including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the record. Id.; State v. Simpson, 528 N.W.2d 627, 632-33 (Iowa 1995). We consider all evidence presented, not just that of an inculpatory nature. Randle, 555 N.W.2d at 671. Direct and circumstantial evidence is equally probative. Iowa R. App. P. 6.14(6)( p). However, evidence that only raises suspicion, speculation or conjecture is not substantial. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The State is required to prove every element of the crime beyond a reasonable doubt. State v. Liggins, 557 N.W.2d 263, 266 (Iowa 1996).
Cross claims the district court erred in denying her motions for judgment of acquittal because there was insufficient evidence to prove the requisite elements of second-degree robbery. More specifically. she claims there was insufficient evidence to prove any of the three alternatives listed in the second element of the marshalling instruction. The instruction provides in pertinent part:
The State must prove all of the following elements of Robbery in the Second Degree
1. On or about October 11, 2000, the defendant had the specific intent to commit a theft.
2. To carry out the defendant's intention or to assist him or her in escaping from the scene, the defendant did any of the following:
a. Committed an assault on Mark Hart; or
b. Threatened Mark Hart with immediate serious injury or
c. Purposely put Mark Hart in fear of immediate serious injury.
The question is thus whether there is substantial evidence supporting each of the three alternatives contained in the second element of the marshalling instruction.
1. Assault
The district court instructed the jury, consistent with Iowa Code section 708.1(2), that "[a]n `assault' is committed when a person does an act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting or offensive, when coupled with the apparent ability to do the act." There was evidence from which the jury could find that Cross refused to leave Hart's vehicle, she and Gamble got in the back seat behind Hart, Gamble and Cross demanded money from Hart, Cross threatened that Hart would die if he didn't do what Gamble said, and Cross represented that she and Gamble possessed guns. From the totality of these facts a fact finder could reasonably infer that by her verbal and non-verbal actions Cross intended to place Hart in fear of immediate physical contact that would be painful, injurious, or offensive. See, e.g., State v. Heard, 636 N.W.2d 227, 232 (Iowa 2001) (holding that from the totality of the facts, including that the defendant entered a store disguised in the early morning hours, demanded money in close proximity to a clerk who was alone, took money, and told the clerk to lie down while he left, the fact finder could reasonably infer that the defendant intended to place the clerk in fear of immediate physical contact that would be painful, injurious, or offensive).
Cross argues further that Hart's acts bring into question whether he reasonably believed that Cross possessed the requisite "apparent ability." However, the phrase "apparent ability to execute the act" means no more than that the defendant's expectations of placing another in fear must be reasonable, the emphasis being on the defendant's intent rather than on the victim's expectations. See State v. Jackson, 305 N.W.2d 420, 423 (Iowa 1981) (citing and quoting with approval J. Yeager and R. Carlson, 4 Iowa Practice: Criminal Law and Procedure § 174 (1979)). Whether Hart reasonably believed that Cross had the ability to carry out the threats is irrelevant to the question of Cross's expectation of placing Hart in fear.
We conclude the record contains substantial evidence from which the jury could find Cross assaulted Hart.
2. Threat of immediate serious injury/Purposely placing Hart in fear of immediate serious injury.
Hart testified Cross told him that if he did not do what Gamble said he was going to die, and then told him she had a .44 caliber gun and she had given Gamble a gun as well. Hart testified Cross's statement about him dying "scared the hell out of me," and her statements plus subsequent threats by Cross and Gamble left him in fear of immediate serious injury, a fear that continued for about one-half hour until his car was pulled over by the police.
"Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence." State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). The credibility of witnesses in particular is for the jury. "The jury is free to believe or disbelieve any testimony as it chooses and to give weight to the evidence as in its judgment such evidence should receive." State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).
One of the district court's jury instructions defined "serious injury" consistently with the definition in Iowa Code section 702.18. We have construed death to be the most serious of injuries and in no way to be exclusive of serious injury. See State v. Rhode, 503 N.W.2d 27, 40 (Iowa Ct. App. 1993). Hart's testimony constitutes substantial evidence from which the jury could find that Cross threatened him with immediate serious injury and in fact purposely placed him in fear of immediate serious injury.
We conclude there is substantial evidence in the record supporting the jury verdict finding Cross guilty of robbery in the second degree and accordingly uphold the trial court's denial of her motions for judgment of acquittal.
B. Ineffective Assistance of Counsel
A defendant is entitled to the assistance of counsel under the Sixth Amendment of the United States Constitution and Article 1, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). When there is an alleged denial of constitutional rights, such as effective assistance of counsel, we review the totality of the circumstances de novo. State v. Osborn, 573 N.W.2d 917, 920 (Iowa 1998).
To establish an ineffective assistance of counsel claim, the defendant must show "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of ineffective assistance focuses on whether the performance by counsel was reasonably effective. Id. The applicant must show that performance fell below an objective standard of reasonableness so that counsel failed to fulfill the role in the adversary process that the Sixth Amendment envisions. Id. The defendant must overcome the strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id. The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. State v. Ledezma, 626 N.W.2d 134, 145 (Iowa 2001); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
While we often preserve ineffective assistance of counsel claims for a postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). We find the record adequate to address Cross's claim of ineffective assistance.
Cross argues her trial counsel was ineffective for failing to object to the alleged prosecutorial misconduct by the State during closing arguments and failing to request a mistrial based on such misconduct. Specifically, she alleges the State continually made disparaging remarks regarding her attorney as well as created evidence that would tend to cast her attorney as a liar. Cross contends her counsel should have objected to the State's comments on grounds of prosecutorial misconduct and should have moved for mistrial, because such comments deprived her of her Sixth Amendment right to effective assistance of counsel and violated her Fourteenth Amendment right to due process.
To prevail on a claim of prosecutorial misconduct a defendant must show both misconduct and prejudice as a result of such misconduct. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999); State v. Farmer, 492 N.W.2d 239, 242 (Iowa Ct.App. 1992). We cannot look at the challenged comments in isolation but must view them in the context in which they were made. State v. Bishop, 387 N.W.2d 554, 563 (Iowa 1986). Here it is necessary to recognize that the challenged remarks were made in the State's response to both defendants' closing arguments. Defendants' closing arguments had included: an argument that Hart was not threatened by the defendants; an argument that Hart was a drug user and was a willing participant in a drug deal on the night in question; a comparison of reasonable doubt as a barrier to conviction with rocks as a barrier to the flow of a stream and a listing of factors that arguably raised reasonable doubt; and an argument that actions speak louder than words and that Hart's actions on the night in question were inconsistent with his testimony.
The remarks by the State challenged here only referred to counsel and counsel's comments in an effort to challenge or refute the defendants' arguments rather than to create evidence or disparage Cross's trial counsel. "We allow a prosecutor some leeway when his remarks `are provoked and are offered in retaliation to arguments for the accused.'" Wycoff v. State, 382 N.W.2d 462, 468 (Iowa 1986) (quoting State v. Wright, 309 N.W.2d 891, 893 (Iowa 1981)); see also Thornton, 498 N.W.2d at 676 ("A prosecutor is not required to sit mute and let the defendant's interpretation of evidence go unchallenged.") When we view the State's response within the context of defendants' closing arguments, we find the State was reasonably responding to the defense arguments and therefore the remarks did not constitute prosecutorial misconduct.
Because the State's comments did not constitute prosecutorial misconduct defense counsel had no duty to object to the comments or to move for mistrial. Counsel is not ineffective for failing to pursue meritless issues, State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998), or for failing to make questionable objections, State v. Atwood, 342 N.W.2d 474, 477 (Iowa 1984).
III. CONCLUSION
We conclude the trial court did not err in denying Cross's motions for judgment of acquittal. We further conclude Cross's trial counsel had no duty to make objections to the State's comments during closing arguments or move for mistrial based on the comments, because the remarks did not amount to prosecutorial misconduct and Cross was therefore not denied her Sixth Amendment right to effective assistance of counsel
AFFIRMED.