Opinion
No. 2-354 / 01-0889
Filed January 15, 2003
Appeal from the Iowa District Court for Black Hawk County, Joseph C. Keefe, Judge.
Cletus Johnson appeals his convictions and sentences for first-degree burglary and first-degree robbery. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Ray Walton, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Zimmer and Miller, JJ.
Cletus Johnson appeals his convictions and sentences for first-degree burglary in violation of Iowa Code section 713.3 and first-degree robbery in violation of Iowa Code section 711.2 (1997).
Johnson was previously tried and convicted of burglary in the first degree, robbery in the first degree, and delivery of a controlled substance. In a separate trial, Johnson was acquitted of a terrorism charge. In an earlier appeal we reversed Johnson's convictions and remanded for a new trial. State v. Johnson, No. 99-0557 (Iowa Ct.App. Nov. 20, 2000). This appeal concerns the judgment entered following Johnson's retrial pursuant to our remand order.
I. Background Facts and Proceedings.
Johnson was charged with these offenses based on allegations that he entered a Waterloo apartment and robbed and assaulted its occupants, Rebecca Worth and Shawn Nosko, at gunpoint. The record includes evidence of the following events.
On March 21, 1998, Rebecca Worth and Lorsie Epps went to The Jet, a bar in Waterloo. There they met Johnson and codefendant Troy Redd, who returned with them to Epps's apartment. While at Epps's apartment Johnson had sex and smoked a rock of cocaine with Worth. That same evening, Worth's boyfriend, Shawn Nosko, confronted Worth when he saw her standing arm in arm with Johnson and Redd in Epps's apartment. After an angry exchange with Worth, Nosko returned to an adjacent apartment he shared with Worth. Worth also returned to the apartment. Redd then said to Johnson, "Let's go whoop [Nosko's] ass!" Johnson and Redd were admitted into the apartment shared by Nosko and Worth based on the understanding that they wanted to speak with Nosko for "five seconds." Johnson and Redd entered the apartment with a gun. Johnson and Redd fought with Nosko. During the struggle, Nosko told Johnson and Redd to leave. During the time Johnson and Redd were in the Nosko-Worth apartment, they each held the gun and pointed it at Nosko and Worth. Redd pointed the gun at Nosko and demanded all his money. After Nosko emptied his pockets, which contained only pennies, Johnson and Redd left.
Prior to trial, Johnson moved in limine seeking exclusion of evidence of sexual conduct between Worth and Johnson. Johnson argued the State had no need for such evidence, it was irrelevant, and that it was highly prejudicial because Johnson is black and Worth is white. The State resisted, arguing, "the sexual assault and consensual sexual activity or rape . . . [was] inextricably based upon the facts of this case." The trial court overruled Johnson's motion and subsequent trial objections. The court ruled:
Well, it seemed to me in reviewing the file that there's a series of events here that starts in a tavern or whatever you call it, and you go back to the first apartment, whatever happened there, then you go to the second apartment, whatever happened there. No, I don't agree. I just don't see it's all part of that scene. And I just — you know, I don't agree with the sexual part. I'll deny that.
At trial, the court denied Johnson's motion for a mistrial, stating:
[W]e covered this ground earlier. My position is it's all part of the res gestae. There's a series of events that happened that night. The State is entitled to show them. Of course it's prejudicial. Obviously. But it's certainly relevant testimony; and it's my position that they're entitled to show whatever happened that night, because that's all part of that event. And I'm going to deny your motion.
As a result, the prosecutor in opening statement twice stated Worth was raped by Johnson and that codefendant Redd also attempted to have sex with Worth. Epps testified Johnson had consensual sex with Worth. Worth testified any sex with Johnson was nonconsensual. She also testified that Redd attempted to have sex with her after entering her apartment while Johnson stood by holding a gun.
The trial court also overruled Johnson's objection to the State's challenge to a juror that resulted in the only black juror being struck from the panel. In its ruling the court noted the juror's animosity toward the prosecutor based on a prior experience with local law enforcement and prior prosecution of the juror's daughter as legitimate reasons for striking the juror.
During Epps's redirect examination by the State she was asked, "Did you sell Rebecca Worth that night for a rock of cocaine?" She answered: "I don't think she's worth that much." Johnson's resulting objection was sustained, and the jury instructed to disregard Epps's answer.
Johnson's motions for judgment of acquittal and directed verdict on the robbery and burglary counts were denied. The jury returned guilty verdicts on both counts. Judgment and sentence were entered in accordance with the jury's verdicts resulting in this appeal.
Johnson raises the following issues on appeal:
(1) Whether the trial court erred in allowing into evidence allegations about irrelevant and prejudicial sexual conduct;
(2) Whether the record contains sufficient evidence to support defendant's conviction;
(3) Whether the prosecutor improperly introduced false evidence and improperly impeached State's witness Laurice Epps by asking her about her drug use and implying that she was in on a plot to sexually abuse Ms. Worth;
(4) Whether trial counsel was ineffective;
(5) Whether the district court erred in overruling defendant's challenge to the State's striking of a black juror; and
(6) Whether the trial court erred in ordering the defendant to pay restitution from his first trial.
II. Jury Issue.
We review this issue de novo. State v. Veal, 564 N.W.2d 797, 806 (Iowa 1997).
Johnson, who is black, contends the prosecutor impermissibly struck the only black juror from the panel, leaving him to face an all white jury.
The United States Supreme Court has set forth, under the Equal Protection Clause, a three-part analysis for determining whether peremptory challenges or strikes have been exercised impermissibly on the basis of race. Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69, 87-89 (1986). First, the defendant must establish a prima facie case of purposeful discrimination by showing that he or she is a member of a cognizable racial group and that the prosecutor has used peremptory challenges to remove prospective jurors of the defendant's race, raising an inference that such exclusion is discriminatory. Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88. Second, the burden shifts to the State to articulate a race-neutral reason for challenging the jurors. Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Finally, the trial court must determine whether the defendant has established purposeful discrimination. Id. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 88-89. . . . The trial court's decision in this regard is accorded great deference on appeal. United States v. Perez, 35 F.3d 632, 636 (1st Cir. 1994). Veal, 564 N.W.2d at 807.
The State's proffered race-neutral reason for striking the juror was that the juror's son and daughter had both been prosecuted by the Black Hawk County Attorney's Office and the juror felt his son's case was handled improperly. The trial court correctly excused the juror. Id. ("Concern that a juror may be partial, or hostile, to one party surely lies within the scope of permissible reasons for peremptory strikes."). We affirm on this issue.
III. Sufficiency of Evidence.
In reviewing a claim that the evidence was insufficient to support the jury's verdict, we must determine whether there is substantial evidence supporting the verdict. State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984). Evidence is substantial if it could convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt. Id. "[W]e view the evidence in the light most favorable to the State, making any legitimate inferences that may fairly and reasonably be deduced from the evidence." State v. Romeo, 542 N.W.2d 543, 545 (Iowa 1996).
Burglary is defined as follows:
Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person's right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary. Iowa Code § 713.1.
Johnson's intent to commit an assault may be inferred from the circumstances of Johnson's entry into the premises and his acts preceding and following entry. State v. McFarland, 598 N.W.2d 318, 320-21 (Iowa Ct.App. 1999). He entered the apartment with Redd who had just said, "Let's go whoop [Nosko's] ass!" Once inside the apartment, Johnson assaulted Nosko. Johnson remained in the Nosko-Worth apartment after his "right, license or privilege to be there" expired because he stayed longer than the agreed upon "five seconds" to talk and stayed after Nosko told him to leave. Nosko's and Worth's presence in the apartment and Johnson's possession of a dangerous weapon during the commission of the burglary are sufficient to support his conviction of burglary in the first degree. Iowa Code §§ 702.7, 713(1)(b).
Robbery is defined as follows:
A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person's escape from the scene thereof with or without the stolen property:
1. Commits an assault upon another.
2. Threatens another with or purposely puts another in fear of immediate serious injury.
3. Threatens to commit immediately any forcible felony.
It is immaterial to the question of guilt or innocence of robbery that property was or was not actually stolen. Iowa Code § 711.1.
Johnson's earlier described actions of physically assaulting Nosko and pointing the gun at Nosko and Worth are sufficient to prove the assault element of robbery. Johnson's intent to commit a theft is evident from the circumstances as described above. He committed the assault in conjunction with Redd's demand for money. The fact that Johnson was armed with a gun at some point during the robbery was sufficient to prove the robbery as one in the first degree. Iowa Code § 711.2. We find the evidence is also sufficient to support Johnson's robbery conviction and affirm on this issue.
IV. Evidentiary Rulings.
We generally review the trial court's evidentiary rulings for an abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (citations omitted). An erroneous evidentiary ruling will not result in reversal unless it is prejudicial. Iowa R. Evid. 5.103(a). In Rodriquez, the court stated:
Reversal is not required for the erroneous admission of evidence unless prejudice results. In determining the prejudicial effect of evidence, the court reviews the other evidence presented and "weigh[s] it against any prejudicial effect." "To establish prejudice, [the defendant] must show a reasonable probability that but for the error the outcome of the trial would have been different." Although it is difficult for a reviewing court to "surmise what answer to what question by what witness tipped the burden of proof and thus precipitated the verdict," where the other evidence overwhelmingly establishes the defendant's guilt, we have applied the harmless error doctrine. Rodriquez, 636 N.W.2d at 244 (citations omitted).
Even if we assume the trial court's evidentiary rulings challenged on appeal were erroneous, Johnson is still not entitled to relief. Where, as here, other evidence overwhelmingly establishes guilt of the offenses charged, any error in admitting evidence of Johnson's prior sexual behavior or prosecutorial misconduct during Epps's redirect examination was harmless as a matter of law. Id.
V. Ineffective Assistance of Counsel.
Johnson argues trial counsel was ineffective for: (1) failing to timely and completely object to statements made by Redd and introduced by other witnesses, and (2) failing to move for a mistrial based on prosecutorial misconduct. To establish a claim of ineffective assistance of counsel, Johnson has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
Johnson's ineffective assistance of counsel arguments fail for the same reason as his challenges to the trial court's evidentiary rulings. Based on the strength of the State's case, we find no reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. See State v. Ledzema, 626 N.W.2d 134, 143 (Iowa 2001). Because Johnson cannot prove he was prejudiced by trial counsel's conduct, we also affirm on this issue.
VI. Restitution Issues.
We review restitution issues for errors of law. State v. Bradley, 637 N.W.2d 206, 210 (Iowa Ct.App. 2001).
Johnson contends the trial court had no authority to order him to pay restitution for attorney fees and costs of prosecution incurred during his first trial because his resulting convictions were reversed on appeal. We disagree.
We initially note the distinction between a defendant's liability for court costs and attorney's fees. If a prosecution ends without a conviction, the defendant is relieved of responsibility for "costs of prosecution." See Iowa Code § 815.13. The defendant, however, remains liable for repayment of court-appointed attorney fees even if he is acquitted or the charges are dismissed. See Iowa Code § 815.9(4). We are not aware of, nor does Johnson cite any authority altering his liability for costs of prosecution or attorney fees following reversal of a criminal conviction and remand for a new trial. We hold, based on the foregoing statutes, that Johnson is liable for court-appointed attorney fees and costs of prosecution for the burglary and robbery charges notwithstanding our earlier reversal of those convictions. He is also liable for the costs of his court-appointed attorney but not the costs of prosecution on the terrorism charge on which he was acquitted and the delivery of a controlled substance charge which was dismissed. Because the record is not clear concerning Johnson's liability for the costs of prosecution for the terrorism count, we vacate that portion of the restitution order and remand for the district court's consideration of any modification order necessary to comply with our opinion.
We have carefully considered all of the issues Johnson raises on appeal and find they have no merit or are otherwise resolved by the foregoing. The judgment of the trial court is affirmed in part, vacated in part, and remanded.