Opinion
No. 3-285 / 02-0956
Filed June 13, 2003
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Defendant-appellant Juan Dunigan appeals his judgment and sentence, following a jury trial, for first-degree robbery in violation of Iowa Code sections 711.1 and 711.2 (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Defendant-appellant Juan Dunigan appeals his judgment and sentence, following a jury trial, for first-degree robbery in violation of Iowa Code sections 711.1 and 711.2 (2001). On appeal defendant claims he received ineffective assistance of counsel. We affirm.
I. FACTS
On November 27, 2001 the victim in this case, David Buehrer, was parked near a street light in the 3800 block of Martin Luther King Jr. Parkway, waiting to buy cocaine from a drug dealer named "D." Buehrer testified he saw a red two-door Plymouth Sundance or Dodge Shadow pull up behind him, flash its lights, and then pull up alongside his car. A man, later identified as the defendant in this case, got out of the passenger side, hitting Buehrer's car with his car door. He asked Buehrer what he wanted, and then put a gun to Buehrer's head and threatened to shoot if Buehrer did not give him his money. Buehrer refused, and the assailant began to hit him with the gun twice on the head and also on the knee. At that point the gun went off. Buehrer then crumpled the $46 in his pocket, consisting of two twenties, a five, and a one-dollar bill, and gave it to the assailant, who shoved the money into his pocket and left the car. Buehrer testified a female was driving the assailant's car. Buehrer followed the car, memorizing the Iowa license plate as 999 LDD or 999 LDO, from the scene to a Git-N-Go where he called 911.
According to testimony by Buehrer, who is a car dealer by trade, the Plymouth Sundance is the same make as the Dodge Shadow; each is just made by a different division and consequently has a different emblem.
Minutes later a police officer arrived at the Git-N-Go and told Buehrer they had already caught the assailant and stopped the car on Euclid. Buehrer was then driven in a police car to the 500 block of Euclid where the car had been stopped, and he was shown the two men police had picked up. The officer driving Buehrer turned on his spotlight. The suspects, each in a separate police car, were brought up to Buehrer, who identified the second man as the assailant. Buehrer identified him again in court during the trial.
There was additional testimony at trial corroborating Buehrer's positive identification of defendant as the assailant. Defendant was discovered on the night in question within approximately three miles of the scene of the robbery in the front passenger seat of a red car with Iowa license plate 999 LDD. He had $46, in the form of two twenties, a five and a one-dollar bill, crumpled up in his pocket. The driver of that car was female, and defendant was in the front passenger seat. Defendant had a fresh cut on one of his fingers.
Another passenger in defendant's car, Jade Lewis, testified that she was with defendant and two others in the red car on the night in question when it pulled up close alongside a car with a white male in it in the 3800 block of Martin Luther King Jr. Parkway. Lewis testified defendant got out of the car, got into the other car, and after a couple of minutes, Lewis heard the sounds of "somebody being pistol whipped." Upon getting back into his car, Lewis testified defendant made a comment about "forty f***ing dollars."
On appeal defendant claims the "show-up" following the robbery in which Buehrer identified him was impermissibly suggestive, as defendant was in a police car, a spotlight was being shone on him, the police had already told Buehrer the assailant had been caught, and the defendant was not lined up with others with similar features to ensure that Buehrer not identify him due to certain common features he might exhibit. Defendant argues his counsel's failure to challenge the identification procedure as impermissibly suggestive qualifies as ineffective assistance of counsel.
II. SCOPE OF REVIEW
We review ineffective assistance of counsel claims de novo. State v. Osborn, 573 N.W.2d 917, 920 (Iowa 1998). To establish a claim of ineffective assistance of counsel, defendant must demonstrate, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from that failure. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). We may dispose of the claim if defendant fails to demonstrate either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). To sustain his burden of proof with respect to the duty element, defendant must overcome the strong presumption that counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. Smothers, 590 N.W.2d at 722. Miscalculated trial strategies and mere mistakes in judgment generally do not rise to the level of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). Thus, claims of ineffective assistance involving tactical or strategic decisions of counsel must be examined in light of all the circumstances to ascertain whether the actions were a product of tactics or inattention to the responsibilities of an attorney guaranteed defendant under the Sixth Amendment. Id.
The trial record is often inadequate for us to resolve claims of ineffective assistance of trial counsel raised on direct appeal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Consequently, we often preserve defendant's ineffective assistance of counsel claims for postconviction relief proceedings to allow for the development of a record on trial counsel's performance. Id.
III. ANALYSIS
Case law indicates that a "show-up" immediately following a crime, even when the suspect is in police custody and handcuffed, and even when there is no accompanying independent in-court identification, as there was in this case, is not so unnecessarily suggestive that it violates a defendant's due process rights. State v. Salazar, 213 N.W.2d 490, 493-95 (Iowa 1973) (holding "show-up" not unnecessarily suggestive when suspects were in handcuffs, were in the presence of twelve officers, and were placed against a squad car for identification one hour after robbery occurred); State v. Jackson, 387 N.W.2d 623, 630-32 (Iowa Ct.App. 1986) (holding "show-up" not unnecessarily suggestive when suspect was handcuffed, placed in police car, described as someone thought to be involved in a robbery, and brought to gas station for identification fifteen to twenty minutes following the robbery). Given this precedent, we find persuasive the State's argument that defendant's ineffective assistance claim should be dismissed, as a claim of ineffective assistance cannot be predicated upon counsel's failure to assert a meritless claim. See Jackson, 387 N.W.2d at 632. We therefore decline to preserve defendant's claim of ineffective assistance for possible postconviction proceedings.