Opinion
No. 2-455 / 01-1117
Filed October 16, 2002
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.
Quovadis Marshall appeals his conviction and sentence, following a jury trial, for robbery in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan and Eisenhauer, JJ.
Quovadis Marshall appeals his conviction and sentence, following a jury trial, for robbery in the second degree, in violation of Iowa Code sections 711.1 and 711.3 (1999). He claims: (1) the court should not have permitted evidence he had a firearm; (2) his motion for judgment of acquittal should have been granted; (3) double jeopardy was violated; (4) the jury instructions were improper; and (5) he received ineffective assistance of counsel. We affirm.
I. Background Facts and Prior Proceedings
On the evening of July 22, 1999, Marshall entered Mr. G's convenience store in Waterloo, Iowa, with a t-shirt over his head. The store clerk, Goldie Cooper, surreptitiously pressed the silent alarm. Marshall displayed a gun and demanded money. Cooper turned over some money, which Marshall put in a bag. Before Marshall could leave the store, police officers arrived and arrested him. He was charged with first-degree robbery.
At Marshall's first trial, he was convicted of second-degree robbery. He appealed, claiming the district court should have instructed the jury on the lesser-included offense of assault. We agreed, finding Marshall's conviction should be reversed and the case remanded for a new trial. State v. Marshall, No. 99-2014 (Iowa Ct.App. Feb. 7, 2001).
II. Present Proceedings
Prior to his second trial, Marshall filed a motion in limine seeking to exclude evidence he was in possession of a firearm at the time of the alleged robbery. The district court found the evidence was admissible. The case proceeded to trial. The court denied Marshall's motion for judgment of acquittal. He was convicted of second-degree robbery. Marshall was sentenced to a term of imprisonment not to exceed ten years. He appeals.
III. Motion in Limine
As noted above, Marshall filed a motion in limine seeking to exclude evidence of the firearm. The district court entered a final ruling that the evidence was admissible. We generally review evidentiary rulings for an abuse of discretion. State v. Rodriguez, 636 N.W.2d 234, 239 (Iowa 2001). We will not interfere unless the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id. A. Marshall first claims the evidence concerning a firearm was irrelevant. He points out that under section 711.2, first-degree robbery is committed if a person commits robbery while armed with a dangerous weapon, while section 711.3 provides, "All robbery which is not robbery in the first degree is robbery in the second degree." Marshall asserts evidence of a firearm may only be used to prove first-degree robbery, and that since he was being tried for second-degree robbery, evidence of a firearm was irrelevant.
We conclude the district court did not abuse its discretion in finding the evidence of a firearm in this case was relevant. Under section 711.1, a person commits robbery if the person commits theft and also (1) commits an assault upon another; (2) threatens another with or purposely puts another in fear of immediate serious injury; or (3) threatens to commit immediately any forcible felony. The use of a gun is relevant to proving any of these three elements of robbery. A person in possession of a firearm may be convicted of second-degree robbery. See State v. Thompson, 494 N.W.2d 239, 240 (Iowa 1992); State v. Holmes, 276 N.W.2d 823, 824 (Iowa 1979); State v. Moore, 269, 270 (Iowa Ct.App. 1991).
B. Marshall also claims the evidence of a firearm was prejudicial to him. He asserts the evidence is not admissible under Iowa Rule of Evidence 5.404(b), which precludes evidence of prior bad acts. The evidence of a firearm here, however, cannot constitute a prior bad act, because it is evidence concerning the same crime under consideration. A defendant cannot claim he is prejudiced because evidence of the crime he committed is admitted at the trial for that crime. See State v. Veal, 564 N.W.2d 797, 812 (Iowa 1997) (noting evidence immediately surrounding an offense is admissible in order to show the complete story of the crime).
IV. Motion for Judgment of Acquittal
Marshall contends the jury's verdict was not supported by substantial evidence. He claims the State did not prove he committed a robbery "which is not robbery in the first degree." See Iowa Code § 711.3. He asserts the State presented evidence he committed robbery in the first degree, not robbery in the second degree.
We review sufficiency of the evidence claims for errors at law. Iowa R.App.P. 6.4. A jury's verdict is binding on appeal if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence means evidence that could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997). In considering the sufficiency of the evidence, we view the record in a light most favorable to the State. State v. Brown, 612 N.W.2d 104, 110 (Iowa Ct.App. 2000).
We find there is sufficient evidence to show Marshall committed second-degree robbery. Marshall was caught in the midst of the robbery. Cooper testified Marshall stated, "Give me the money. I want all of the money. And don't try anything or I will kill you." Furthermore, Marshall told police officers he went to the store with the intent to rob it. The fact the State perhaps proved more than it needed to does not detract from the evidence presented, which clearly shows Marshall committed second-degree robbery.
V. Double Jeopardy
Marshall claims his second conviction violated the double jeopardy provisions of the Fifth Amendment of the United States Constitution. On this constitutional claim our review is de novo. State v. Spiger, 508 N.W.2d 650, 651 (Iowa 1993). The Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause protects a defendant against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Schmitz, 610 N.W.2d 514, 515 (Iowa 2000) (citing North Carolina v. Pierce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665-65 (1969)). The prohibitions in the Double Jeopardy Clause are based on principles of finality and the prevention of prosecutorial misconduct. State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
The Double Jeopardy Clause applies to state criminal trials through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 794-95, 89 S.Ct. 2056, 2065, 23 L.Ed.2d 707, 715-16 (1969).
The Double Jeopardy Clause does not prevent the government from retrying a defendant whose first conviction is reversed on appeal because of some error in the proceedings leading to the conviction. State v. Swartz, 541 N.W.2d 533, 537 (Iowa Ct.App. 1995) (citing Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289, 102 L.Ed.2d 265, 272 (1988)). Although a defendant is acquitted of one charge, the State may retry him on any lesser-included offenses. State v. TeBockhorst, 305 N.W.2d 705, 709 (Iowa 1981). This is because there was neither a conviction nor acquittal on these offenses. Id. A defendant's jeopardy on the included offenses is deemed to be continuing upon retrial, thereby making retrial possible on those offenses. Id. (citing Jeffers v. United States, 432 U.S. 137, 152, 97 S.Ct. 2207, 2217, 53 L.Ed.2d 168, 181 (1977)). We conclude Marshall was properly retried on charges of second-degree robbery.
VI. Collateral Estoppel
Marshall also raises a claim of collateral estoppel. The doctrine of collateral estoppel is embodied in the double jeopardy concept found in the Fifth Amendment. State v. Stergion, 248 N.W.2d 911, 913 (Iowa 1976). Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." State v. Seager, 571 N.W.2d 204, 208 (Iowa 1997) (citing Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970)). Under this doctrine, when an acquittal of a criminal defendant determines an issue of ultimate fact, relitigation of that issue or an entire count may be barred in a later proceeding. State v. Butler, 505 N.W.2d 806, 810 (Iowa 1993). The defendant has the burden to show the issue he seeks to foreclose on relitigation was actually decided in the first proceeding. Id.
This constitutional collateral estoppel doctrine is not strictly construed, however, as the United States Supreme Court has stated:
we decline to extend Ashe v. Swenson and the collateral-estoppel component of the Double Jeopardy Clause to exclude in all circumstances, . . . relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it is related to alleged criminal conduct for which a defendant has been acquitted.Dowling v. United States, 493 U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed.2d 708, 717 (1990). Evidence which was admitted on an issue for which a defendant was acquitted may be admissible to prove a different issue at a subsequent trial. United States v. Dray, 901 F.2d 1132, 1137 (1st Cir. 1990). "That the evidence needed to prove these separate elements may often overlap, or may (as here) be identical, cannot eradicate this important distinction." Id.
In Marshall's first trial, evidence of the firearm was introduced to show he was "armed with a dangerous weapon," which is an element of section 711.2. As discussed above, at Marshall's second trial, evidence of the firearm was relevant to show he intended to commit a theft while committing an assault, threatening another with fear of immediate serious injury, or threatening another with any forcible felony. Iowa Code § 711.1. Thus, the evidence was not introduced for the same purpose at the second trial, and we determine the evidence was not barred by the doctrine of collateral estoppel.
VII. Jury Instructions
A. Marshall contends the district court should have given the jury his requested instruction on the elements of first-degree robbery. He claims he was denied his theory of defense, which was that factually he was being tried for first-degree robbery. Ordinarily, the district court must instruct on a defendant's theory of defense provided the defendant makes a timely request, the requested theory of defense instruction is supported by the evidence, and the requested instruction is a correct statement of the law. State v. McFarland, 598 N.W.2d 318, 321 (Iowa Ct.App. 1999).
We find the district court properly denied Marshall's request for a jury instruction on first-degree robbery. As the district court stated, "It has no meaning in these entire proceedings to have the jury consider a charge which is not before them at this time, and is not one that can be legally or factually considered by them. . . ." Due to double jeopardy restraints, Marshall could not be convicted of first-degree robbery, and it would be improper to instruct the jury on that offense.
B. Marshall also objected to two other instructions which admonished the jury to "try to reconcile any conflicts in the evidence, but if you cannot, you will accept the evidence you find more believable." These instructions were proper statements of the law. A jury is free to believe or disbelieve any testimony it chooses and to give as much weight to the evidence as it determines the evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996). Resolving conflicts in the evidence is for the jury, and the jury can believe all, some, or none of the testimony of the witnesses. State v. Forsyth, 547 N.W.2d 833, 836 (Iowa Ct.App. 1996).
VIII. Ineffective Assistance of Counsel
Marshall claims that if any of the issues raised above have not been preserved for our review, this is due to ineffective assistance of counsel. Because we have addressed all of Marshall's claims on the merits, we do not address his ineffective assistance claims.
We affirm Marshall's conviction and sentence.