Opinion
No. 5-330 / 04-1343
Filed May 11, 2005
Appeal from the Iowa District Court for Black HawkCounty, Bruce B. Zager (motion to suppress) and Jon Fister (jury trial), Judges.
Odell Junior Everett appeals following his conviction for first-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Vaitheswaran, JJ.
Odell Junior Everett appeals from the judgment and sentence entered following his conviction for first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2 (2003). He contends: (1) the district court erred in denying his motion for judgment of acquittal because there was insufficient evidence to support his conviction, and (2) his trial counsel was ineffective. We affirm.
I. Background Facts Proceedings
A jury could have found the following facts from the evidence presented at trial. On November 11, 2003, at approximately 3 a.m. a hold-up alarm was triggered from the Kwik Star Convenience Mart located at 1624 4th Street in Waterloo. Rysa Rice and Dawn Carlson were working at Kwik Star that night. Rice provided police dispatch with a description of the robber shortly after he left the store. She described the robber as a tall and skinny black male with a skinny face. Rice estimated the robber was six feet to six feet two inches tall, and weighed 170 to 185 pounds. She said he was wearing a green bandana, a black stocking cap, and a dark blue sweat suit. A white t-shirt extended below the individual's blue sweatshirt. Police were told the robber was armed with a knife and that he ran away from the store in a northerly direction holding the cash drawer.
Waterloo Police Officer James Oliver was patrolling in his car north of the store at the time of the robbery. After receiving the dispatch regarding the robbery, he decided to lay in wait for anyone who might come his way. A few minutes later, Officer Oliver observed a car speed down the dead-end street where he was parked and pull into a driveway. When Officer Oliver shined a spotlight on the vehicle the driver, who matched the description of the robber provided by the store clerks, immediately fled leaving the car still running. Officer Oliver yelled at the individual to stop, but his commands were ignored. The officer then gave chase on foot and called for assistance. Several other officers soon joined in the pursuit.
The foot-chase led to a cemetery. At one point during the pursuit, the suspect was almost caught when an officer was able to grab one of his pockets; however, the pocket gave way spilling cash and food stamps onto the cemetery grounds. The chase continued and officers apprehended the individual a short time later.
After the suspect was apprehended, several officers retraced the route of the foot chase. Along that path, officers found the cash and food stamps that had spilled from the individual's pockets, a black stocking cap, the cash drawer that had been removed from the Kwik Star, and loose coins. In the car from which the individual had fled, officers found a blue sweatshirt. In the individual's pockets, officers found a green bandana and a significant number of coins. The individual was wearing a white t-shirt.
The police then brought the individual back to the Kwik Star to see if the store clerks could identify him as the robber. Both store clerks identified the individual as the robber. Later, the police identified the individual they had apprehended as Odell Everett.
Approximately twenty minutes had passed since the robbery.
On November 12, 2003, the State charged Everett with first-degree robbery and interference with official acts. Everett moved to suppress the identification made by the victims of the robbery. The district court denied his motion. Following trial, a jury found Everett guilty of both charges. Everett was subsequently sentenced to twenty-five years in prison. Everett only appeals his first-degree robbery conviction.
II. Sufficiency of the Evidence
Everett claims the district court erred in denying his motion for judgment of acquittal because there was insufficient evidence to support his conviction for first-degree robbery. We review Everett's sufficiency of the evidence claim for correction of errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). In analyzing his claim we examine the record in the light most favorable to the State. See State v. Terry, 544 N.W.2d 449, 450 (Iowa 1996). However, we give consideration to all of the evidence, not just the evidence supporting the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). We look for substantial evidence, including any inferences arising from the evidence, to support the jury's verdict. Terry, 544 N.W.2d at 451. If the verdict is supported by substantial evidence, it is binding on this court. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). Evidence that could convince a trier of fact the defendant is guilty of the crime charged beyond a reasonable doubt is substantial evidence. Id.
On appeal, Everett asserts the State failed to prove him guilty beyond a reasonable doubt because the evidence presented at his jury trial did "not create anything more than speculation, suspicion and/or conjecture." He argues that the "jury had to guess in reaching the verdicts." We disagree.
After careful review of the record, we find sufficient evidence exists to support Everett's conviction for first-degree robbery. Everett fled when he saw a police officer and ignored his commands to stop. He matched the description the store clerks gave of the robber. On the path of the foot chase, police discovered the cash and food stamps that had spilled from Everett's pockets, along with a black stocking cap, the cash drawer that had been removed from the Kwik Star, and loose coins. In the car Everett had left behind, officers found a blue sweatshirt, which matched what the robber was wearing in the Kwik Star. Additionally, officers found a green bandana and a significant number of coins in Everett's pockets. When Everett was apprehended he was wearing a white t-shirt, which the clerks noticed the robber was wearing under a blue sweatshirt. Finally, both store clerks positively identified Everett as the robber twenty minutes after the robbery.
We conclude there is substantial evidence in the record to support Everett's first-degree robbery conviction. Therefore, we reject his sufficiency-of-the-evidence claim.
III. Ineffective Assistance of Counsel Claim
Everett claims his trial counsel was ineffective because he failed to offer expert witness testimony on the subject of eyewitness identification at his motion to suppress and at his trial. The State contends that Everett failed to demonstrate that his attorney breached an essential duty or that he was prejudiced as a result. The State asserts that "the quality of the identifications was fully exposed to the jury and the strength of the other evidence was so compelling that no different result could be expected with suppression of the identification or the presentation of eyewitness expert testimony."
Because Everett's claims of ineffective assistance of counsel arise from his Sixth Amendment right to counsel, our review is de novo. State v. Scalise, 660 N.W.2d 58, 61 (Iowa 2003). The defendant bears the burden of demonstrating ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). To establish a claim of ineffective assistance of counsel, the defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted from this omission. State v. Constable, 505 N.W.2d 473, 479 (Iowa 1993). To prove the first prong, Everett must overcome the presumption that counsel was competent and show that counsel's performance was not within the range of normal competency. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). To prove the second prong, Everett must show there is a reasonable probability that but for his counsel's errors the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984). "A reasonable probability is a probability sufficient to undermine the confidence in the outcome." Id. An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either breach of duty or prejudice. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
Generally we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to afford the defendant an evidentiary hearing and to permit the development of a more complete record. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). However, we will resolve such issues when the record on appeal is adequate. Buck, 510 N.W.2d at 853. In this appeal, we find the record adequate to address the defendant's claims.
Upon review of the record, we find that Everett has failed to prove that there is a reasonable probability that the outcome of his jury trial would have been different had his trial attorney successfully moved to suppress the store clerk's identification, and/or called an expert witness to testify on the subject of eyewitness identification. Even if the jury had not heard about the store clerks' identification of Everett as the robber, there is ample evidence in the record, which we have already discussed, supporting Everett's conviction for first-degree robbery. Because we conclude that Everett failed to prove the prejudice prong of his ineffective-assistance-of-counsel claim, we reject this assignment of error.