Opinion
No. 3-714 / 02-1335.
Filed December 10, 2003.
Appeal from the Iowa District Court for Hardin County, Timothy J. Finn, Judge.
Defendant appeals from his conviction and sentence for robbery in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews and Douglas Hammerand, Assistant Attorneys General, and Richard Dunn, County Attorney, for appellee.
Heard by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Maurice Currie appeals from his conviction and sentence for robbery in the first degree. He contends: (1) there is insufficient evidence to support his conviction; (2) the trial court erred in submitting a joint criminal conduct jury instruction; (3) the trial court erred in allowing a pistol into evidence; and (4) his trial counsel provided ineffective assistance in several respects. We affirm.
I. Background Facts and Proceedings.
On the morning of December 11, 2001, Karen Heiden opened the Ellsworth Community College bookstore. Her first customer, Jonathan Harrell, returned some books for cash. Harrell threw away his book receipts on his way out of the store. Upon Harrell's exit, Heiden observed a black hand reach through the door, shutting off the lights. She saw the end of a gun pointed at her. The intruder told Heiden not to look at him and Heiden never saw his face. The man took a cash box containing $3217 and left the store.
After the robber left, Heiden called the campus switchboard and went to the office of instructor Greg Metzen, whose office was in Kruse Main, the same building as the bookstore. A student, Laith Hassan, was talking with Metzen at the time. On his way to Metzen's office, Hassan had encountered a man he described as "huge" and African-American. Hassan got the impression the man did not want him to enter the building. Hassan passed the man and started down the stairs to the basement where the bookstore and Metzen's office were located. Hassan heard a door close and the sound of a gun chambering a round. He then saw a man dressed in a dark, bright coat coming up the stairs wearing a mask with holes for the eyes and mouth. The man started up the stairs but ran in a different direction upon encountering Hassan.
Hassan was shown a photo lineup of five men; three African-American males and two Caucasian males. The defendant's photo was not included in the lineup. Hassan identified one of the African-American males as someone who looked like the man he saw on the day of the robbery, although Hassan remained unsure. Hassan was shown a second lineup that included the five photos from the first lineup, as well as other photos. This time, a piece of paper cut into the shape of a mask was placed over each photo shown to Hassan. Hassan picked a photo of the defendant from the second lineup.
Ed Geitz, an instructor and coach at Elsworth Community College, observed Jonathan Harrell and Tommy Powell on the morning of the robbery. Geitz saw Powell enter a lower level door to Kruse Main at around 8:50 or 8:55 a.m. He saw Powell look around before entering the building. Powell then exited the building from the same door approximately ten minutes later.
Nikki Juhl drove the defendant to Casey's store at around 11:00 a.m. on December 11. She saw the defendant had a large number of $20 bills on him, and inquired about some money the defendant owed her. The defendant repaid Juhl the $20 debt.
Jonathan Harrell was arrested on the day of the robbery, after police retrieved his receipts from the bookstore trash. That morning, Harrell had seen both Robert Mosley and the defendant inside Kruse Main near the north entrance. The defendant was wearing all black with a ski mask. Harrell was dressed similarly in a grey zippered coat. Harrell encountered the defendant after the robbery. He said the defendant was "pretty tired" and "breathing hard", standing at the exit of his dorm.
The day following the robbery, police interviewed Robert Mosley, the defendant's roommate. Mosley consented to a search of his room. Mosley showed the officers a Wal-Mart bag that contained two ski masks and receipt for their purchase. Mosley identified one mask, which had a large hole for the eyes, nose and mouth, as his. He informed the officers the other mask, which had eye holes and a mouth hole, belonged to the defendant, and had not been in the bag earlier that day.
Mosley spoke to the police again on December 13. He told the officers he was involved in the robbery along with Jonathan Harrell, Jabre Norwood, Tommie Powell, and the defendant. Mosley sought to minimize his involvement in the robbery and told officers he had not received money. Mosley later signed a written statement summarizing his version of events, although he again attempted to minimize his participation in the crime.
According to Mosely, the defendant approached him about robbing the bookstore on December 10. On the tenth, the defendant spent in excess of $300 for car repairs, repaid a debt, and returned a book to the bookstore and noted Karen Heiden working alone. Powell, Norwood, and Harrell were present for the discussion of the robbery. Harrell was to scout the bookstore while Powell and Mosley acted as lookouts. Norwood was to drive the get-away car and the defendant would actually rob the bookstore.
When Mosley arrived at Kruse Main at around 8:15 a.m. on December 11, he encountered Norwood. Mosley entered the building and saw Harrell was there. Mosley stayed in the building for ten to fifteen minutes. He did not attempt to stop anyone from entering the building, and he did not see any of his cohorts while he waited. Mosley decided to then return to his dorm room.
Mosley waited by the main door of the dorm. He saw Norwood pull his car up and he got inside. Norwood took Mosley to Powell's home, where the other men awaited. Mosely noticed the defendant's revolver on the table, and watched as the defendant counted a large sum of money. Mosley contends the defendant stated he had flipped the light switch, nobody saw him, and he got away clean. The defendant divided up the money, but kept the largest amount for himself. Mosley received $300 for his participation.
Mosley heard the defendant talking about going to Des Moines. He again saw the defendant on December 12, wearing new clothes and shoes. The defendant was also talking about having purchased an X-Box.
Police also searched Norwood's room. A ski mask and a black jacket were stuffed behind a dresser. On December 13, a money box was found under an ice machine in the basement of the defendant's dorm. Also on December 13, the police found the defendant at his girlfriend's home in Des Moines. The defendant was wearing new clothes and new shoes. A police officer also noticed an X-Box video game system and a bandage that covered the defendant's new tattoo. Police discovered a firearm in the home. The defendant's girlfriend Erin Buechler, stated that it was given to her by a friend. She refused to give the friend's name, although she hesitated when asked if it was given to her by the defendant. Buechler was unsure whether it had been removed from her home in the prior week. Buechler informed police the X-Box system had been loaned to them by a friend of the defendant's.
The defendant was arrested and charged with first-degree robbery. The defendant testified at trial. He stated his brother had given him money to repair his car and he had received $82 in cash from selling books on December 10. He claimed he was in his dorm room with nine or ten other people shooting dice on the night of December 10 and he won approximately $150.
The defendant claims he awoke between 7:15 and 7:30 a.m. on December 11, went for a car ride, and smoked marijuana. He went to Demetrius Merryweather's house around 9:00 a.m. and Marguez Lewis came over to visit. Lewis testified for the defendant and confirmed his story. The defendant testified he returned to his dorm around 10:15 a.m. He then got a ride to Powell's house with Norwood and Powell. He testified Mosley was there. The defendant recalled paying Juhl the $20 he owed her when she drove him to a Casey's store.
The defendant stated that he had $20 in touch-up work done on a tattoo. He stated that he had borrowed an X-Box game system from a friend. He denied buying new clothes, and testified he owned a pair of Michael Jordan shoes prior to the robbery. He denied involvement in the robbery or knowledge of who committed it.
The jury returned a verdict finding the defendant guilty as charged. The court denied the defendant's combined motion in arrest of judgment and motion for new trial. Currie was sentenced to up to twenty-five years in prison.
II. Sufficiency of the Evidence.
The defendant first contends the evidence is insufficient to support his convictions. He claims the accomplice testimony of Harrell and Mosley was not sufficiently corroborated. He also claims there was insufficient evidence that he was "armed with a dangerous weapon."
We review claims of insufficient evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will uphold a finding of guilt if substantial evidence supports the verdict. Id. "Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt." Id. A. Corroboration.
Iowa Rule of Criminal Procedure 2.21(3) states in pertinent part:
A conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offence; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
The existence of corroborating evidence is a legal question for the court. State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997). Once the legal adequacy of the corroborating evidence is established, the sufficiency of the evidence is for the jury. Id.
Corroborative evidence may be direct or circumstantial. Id. It need not be strong and need not be entirely inconsistent with innocence. Id. It must, however, support some material part of the accomplice's testimony and tend to connect the accused to the commission of the crime. Id. Each case must be governed by its own circumstances and evidence which merely raises a suspicion the accused is the guilty party is not sufficiently corroborative of the testimony of an accomplice to warrant a conviction. State v. Gillespie, 503 N.W.2d 612, 617 (Iowa Ct.App. 1993). There may be a combination of circumstances, singularly unpersuasive but in totality sufficient, to entitle a jury to conclude the accomplice's testimony has been corroborated. State v. Willman, 244 N.W.2d 314, 315 (Iowa 1976).
Laith Hassan provided corroborative evidence through his identification of the defendant. The defendant contends this identification was not reliable because it was impermissibly suggestive. The defendant also advances an alternative argument in which he contends his trial counsel was ineffective in bringing the motion to suppress Hassan's eyewitness identification because the in-court identification was tainted by Hassan's viewing of Currie's photo without the mask over it.
We must first determine whether the identification procedure was impermissibly suggestive. See State v. Birch, 479 N.W.2d 284, 286 (Iowa 1991). If the procedure was impermissibly suggestive, we then determine whether, under the totality of the circumstances, the suggestive procedure gave rise to a "very substantial likelihood of irreparable misidentification." State v. Holderness, 301 N.W.2d 733, 738 (Iowa 1981). 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).
We conclude Hassan's identification of the defendant was reliable. Hassan testified that he looked at the robber and was clearly able to see his eyes and mouth. He stated that the man looked him in the eye. When Hassan saw the photo array with the mask over the pictures, he identified only Currie. In the first photo lineup, which did not contain a photo of Currie, Hassan remained unsure about his choice. Hassan also testified that he did not see any of the photos in the second lineup without the mask over them. Because the out-of-court identification did not lead to a substantial likelihood of irreparable misidentification, Currie's attorney had no duty to object to Hassan's in-court identification.
In addition to Hassan's identification, there is other evidence to corroborate the testimony of Mosley and Harrell. Currie's testimony corroborated that he had returned books to the library the day before the robbery, had seen the cash box, and knew Heiden worked alone. Currie also corroborated testimony that he had paid $319 for car repairs that day. Currie testified that he had been with nine or ten others in his dorm room the night before the robbery. Currie's testimony regarding his actions the day of the robbery also corroborates the accomplice testimony regarding where they went and what they did after the robbery.
The testimony of Hassan and Geitz corroborated the accomplice testimony regarding the location of the participants and their role in the robbery. Heiden's testimony regarding the robber's physical attributes is also consistent with Harrell and Mosley's testimony that Currie was the robber. Hassan's testimony regarding the robber running out of the building and the stolen cash box located in Currie's dorm corroborates Harrell's testimony about seeing Currie after the robbery. Nikki Juhl corroborated the testimony with her testimony that she had seen Currie with a wad of $20 bills.
We believe this corroborative evidence was legally adequate to warrant submission of the case to the jury, and the corroborative evidence along with the accomplice testimony was sufficient to support Currie's conviction for first-degree robbery.
B. Dangerous Weapon.
The defendant also claims there is insufficient evidence that he was armed with a dangerous weapon. His argument hinges on the fact that there is no proof that either gun admitted into evidence was involved in the robbery.
Karen Heiden testified that she saw the end of a gun pointing at her and that there was a reflection of light off of it. Laith Hassan heard the sound of a gun loading, and provided testimony that he was very familiar with that sound. When Hassan encountered the robber, he noted his hand was in his left pocket, as though the robber was concealing something. Testimony was also presented that the defendant owned a firearm. Mosley testified that the defendant's firearm was on a table at Powell's house immediately after the robbery.
We conclude there is sufficient evidence that the defendant was armed with a dangerous weapon.
III. Joint Criminal Conduct Instruction.
The defendant next contends the district court erred in submitting a joint criminal conduct instruction because the evidence did not support its submission. The defendant further contends the court erred in denying his motion for new trial on this point.
Our review concerning alleged error regarding jury instructions is for the correction of errors at law. Iowa R. App. P. 6.4. We review jury instructions to decide if they are a correct statement of the law and are substantially supported by the evidence. Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa 1996). Error in giving or refusing to give an instruction does not warrant reversal unless the error is prejudicial to the party. Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994). When a single instruction is challenged, it will be judged in the context of other instructions, not merely in isolation. State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996).
The trial court instructed the jury as follows:
When two or more persons act together and knowingly commit a crime, each is responsible for the other's acts during the commission of the crime or escape from the scene. The Defendant's guilt is the same as the other person's unless the act could not reasonably be expected to be done in aiding the commission of the crime.
No instruction was given on aiding and abetting.
In order to warrant a reversal, the defendant must show not only that the instruction in question exists for application in a different factual situation, but also that using it in the present factual situation misstated his culpability in some material way. See State v. Jackson, 587 N.W.2d 764 (Iowa 1998). Our supreme court has held the giving of a joint criminal conduct instruction in instances in which the alleged multiple participants are either principals or aiders and abettors in the same crime does not require reversal if there is no opportunity for the defendant to have been found guilty based on anything other than his own conduct as a principal or an aider and abettor of the crime with which he is charged. Id. In Jackson, the court held giving a joint criminal conduct instruction was harmless error where the defendant could not have been found guilty based on anything other than his own conduct or as an aider and abettor, even though the defendant was not charged with aiding and abetting. Id. Here, the defendant could not have been found guilty of anything other than his own conduct or as an aider or abettor. Based on Jackson, we find no reversible error.
IV. Admissibility of Evidence.
The defendant contends the district court erred in admitting into evidence a pistol found at his girlfriend's house because it was not relevant. 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 arguendo that the court erred in admitting the pistol into evidence, we conclude any error was harmless. The defendant alleges he was prejudiced by the admission of the pistol because it allowed the jury to connect a lethal weapon to him. However, as noted above, there was substantial evidence by which the jury could connect a lethal weapon to the defendant had the pistol not been admitted into evidence.
V. Ineffective Assistance of Counsel.
Finally, the defendant alleges his trial counsel was ineffective in several regards.
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)).
To establish an ineffective assistance of counsel claim a 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 of counsel focuses on whether counsel's performance was reasonably effective. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The defendant must show counsel's performance fell below an objective standard of reasonableness so that counsel failed to fulfill the adversarial role that the Sixth Amendment envisions. Id. A strong presumption exists that counsel's performance fell within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).
Additionally, our courts have ruled that trial strategy, miscalculated tactics, mistake or inexperience do not constitute ineffective assistance. Id. at 143. We may dispose of the defendant's ineffective assistance claims under either prong. Id. In order to prove the prejudice prong, the defendant must show a reasonable probability that but for counsel's alleged errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.
A. Right to remain silent.
The defendant first alleges his counsel was ineffective in failing to move for a mistrial based on Officer Kuhfus's testimony that when asked where he was the day of the robbery, the defendant did not answer. This testimony was given twice. Counsel objected outside the presence of the jury, and when the trial reconvened the jury was admonished to ignore the remark because the defendant has the constitutional right to remain silent. Jurors are presumed to follow the court's admonition. State v. Atwood, 602 N.W.2d 775, 780 (Iowa 1999). Therefore, we conclude the defendant's counsel did not breach an essential duty in failing to move for a mistrial.
B. Failure to discover evidence.
The defendant next claims his counsel was ineffective in failing to discover vital evidence in his favor. After the verdict, Gregory Metzen was interviewed by police. In his statement, he described that Jonathan Harrell had been in his office about the time of the robbery. Metzen described Harrell as nervous, fidgety, and anxious to leave. The defendant alleges counsel should have deposed Metzen before trial and used his testimony to impeach Harrell's testimony. Because the record is not fully developed in this regard, we preserve this issue for postconviction relief.
C. Expert witness.
The defendant contends his counsel was ineffective in failing to call an expert on the subject of the unreliability of expert witness testimony, particularly trans-racial identification. The defendant contends such an expert was necessary in this case because Laith Hassan was Iraqi and all the other men allegedly involved in the robbery were African-American. Because the record is not fully developed regarding this issue, we preserve it for postconviction relief.
D. Pellet gun evidence.
The defendant argues his counsel was ineffective in failing to properly object to the admission of a pellet gun seized from Powell's house into evidence. He contends counsel should have argued there was no reasonable inference the gun was used in the crime. He also contends counsel should have objected to testimony about how the pistol discovered at his girlfriend's house was loaded and what kind of sound it would have made. The defendant claims that because there was no sufficient link to the defendant, no testimony should have been received about the pistol.
We conclude counsel did not breach an essential duty in failing to object to testimony regarding the gun found at his girlfriend's house. The testimony regarding how it was loaded and the sound it would have made was relevant to the testimony of what Laith Hassan heard on the day of the robbery.
We further conclude the defendant was not prejudiced by the admission of the pellet gun into evidence as substantial evidence of the defendant's guilt exists even without the pellet gun evidence.
E. Hearsay.
The defendant contends his counsel was ineffective in failing to object to many incidents of hearsay. The specific incidents of hearsay are as follows: (1) testimony by Robert Mosley and Chief Strike regarding statements the defendant made about having to borrow money to repair his car; (2) testimony by Mosley regarding the X-Box game system the defendant allegedly purchased with the proceeds of the robbery; (3) testimony by Officer McDaniel regarding a tattoo he defendant had received; and (4) testimony by Chief Strike and Captain Kuhfus that Mosley told them the defendant had wanted to rob a Casey's store.
We preserve these issues for postconviction relief to allow for further development of the record.
F. False testimony.
The defendant alleges he told his trial attorney before trial that he knew Mosley committed the robbery. He alleges he and his family had been threatened by Mosley, and that he did not want to tell the authorities Mosley was responsible. At trial, the defendant testified that he did not know who robbed the bookstore. The defendant also contends his counsel rendered ineffective assistance by allowing him to give false testimony. The State concedes this claim should be preserved for postconviction relief to allow the defendant's counsel an opportunity to defend himself against an accusation of suborning perjury. Accordingly, we preserve this claim for postconviction relief.
G. Impeachment.
Finally, the defendant contends his counsel was ineffective in failing to question Mosley about drugs allegedly found under his bed at the time of the robbery. The defendant alleges no charges were filed against Mosley in exchange for his testimony against the defendant. Mosley testified that he received "nothing" from the State in exchange for his testimony.
We preserve this claim for postconviction relief to allow for further development of the record in this regard.