Opinion
No. 2-204 / 01-1047
Filed September 11, 2002
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.
Defendant appeals his conviction and sentence for first-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William E. Davis, County Attorney, and Robert Cusack, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
Joseph Hollingshed and his codefendant, Harold Burge, were charged with first-degree robbery in violation of Iowa Code section 711.2 (2001). They allegedly robbed a gas station dressed in leather coats and wearing masks. Taken in the robbery were $1400, cigars, and cigarettes. Hollingshed claims trial counsel was ineffective for failing to (1) separate his trial from that of his codefendant, and (2) move for new trial. We affirm.
I. Background Facts and Proceedings . On November 20, 2000, two men wearing leather coats and masks robbed a clerk at the Phillips 66 gas station in Bettendorf. Kenneth and Maxine Duhm, who were driving by, observed the two robbers leaving the station. Both testified one of the men was dark-skinned and the other was light. The Duhms pulled into an alley in an attempt to get the license plate of a possible get-away vehicle. They observed a white car come down the alley and noted the driver and passenger looked similar to the men they observed leaving the gas station. The Duhms wrote down the license plate number of the vehicle. Doug Karman also observed Joseph near the gas station at the time of the robbery.
Using the license plate number, the police discovered the vehicle was registered to Susanne Terronez, Burge's girlfriend. The police went to Terronez's home and obtained consent to search. Burge was present. They discovered several cartons of cigarettes, some cigars, and a leather coat similar to the coat worn by one of the robbers. A nylon stocking was found underneath a sofa cushion where Burge was sitting.
Both men were charged by trial information with first-degree robbery. The district court granted the State's motion for a combined trial. At trial, Burge testified his cousin Paris Hollingshed came to his home shortly before the time of the alleged robbery and asked to borrow his girlfriend's car to run some errands. Burge maintained Joseph returned the car a few hours later and sold him a carton of cigarettes. He maintained he often borrowed his girlfriend's leather coat and had left it in the car when he loaned it to his cousin.
One of the investigating officers testified Joseph told him that he had his hair cut at A-1 Barbershop around noon on the day of the robbery. The shop owner, however, testified the shop was closed that day. Burge testified he got his hair cut the following day and that Joseph was not with him.
The jury found Joseph guilty as charged. The district court sentenced him to an indeterminate term of imprisonment not to exceed twenty-five years. Joseph has appealed.
II. Scope of Review . Because the defendant alleges a violation of his constitutional right to effective assistance of counsel, our scope of review is de novo based on the totality of the circumstances. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998).
III. Motion to Sever . Joseph first contends trial counsel erred in failing to request a severance of his trial from that of his codefendant. He contends that their defenses were so diametrically opposed that is was prejudicial to allow them to stand trial together. We disagree.
To establish a claim of ineffective assistance of counsel, the 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). We may look to either prong to dispose of an ineffective assistance claim. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of an ineffective assistance claim. Id. at 145. In order to prove prejudice, the defendant must show there was a reasonable probability that but for counsel's alleged errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984).
Under Iowa law, severance is required (1) where the trial is so complex and the evidence so voluminous that the jury will be confused and cannot compartmentalize the evidence, and (2) where evidence admitted by or against one defendant is so prejudicial the jury is likely to wrongly use it against the other. State v. McFadden, 443 N.W.2d 70, 71 (Iowa Ct. App. 1989). To result in prejudice, however, the conflict between jointly tried defendants must be more than merely antagonistic; they must conflict to the point of being irreconcilable and mutually exclusive. State v. Leutfaimany, 585 N.W.2d 200, 203 (Iowa 1998). This level of conflict is reached if the jury, in order to believe the testimony of one defendant, must necessarily disbelieve the testimony offered on behalf of the codefendant. Id.
We do not believe trial counsel was ineffective in failing to seek a motion to sever. The trial in the present case was not exceptionally complex nor was the evidence voluminous. The evidence presented by the State was, for the most part, not addressed to any one defendant. Burge did not specifically accuse Joseph of committing the robbery, only that he had loaned his car out to him and his cousin that day, and that Joseph was not with him when he got his haircut the day after the robbery. The testimony of the State's witnesses implicated both defendants equally. Under such circumstances, our supreme court has held that the jury would be capable of compartmentalizing the evidence where necessary and that no prejudice would result. State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998).
IV. Motion for New Trial . Joseph also contends trial counsel was ineffective in failing to file a motion for new trial. He contends that had such a motion been filed, the district court would have weighed the evidence and granted the motion. He argues that none of the witnesses could specifically identify him as one of the individuals who committed the robbery.
In reviewing a request for new trial, the district court must weigh the evidence by determining that a greater amount of credible evidence supports one side of an issue or cause than the other, as opposed to examining the sufficiency of the evidence. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). The power to grant a new trial on this ground should only be invoked in exceptional cases in which the evidence weighs heavily against the verdict. Id.
Several witnesses placed Joseph at or near the scene of the robbery. Mrs. Duhm testified she observed Joseph in the white car that pulled into the alley immediately after the robbery. While the identification testimony by the State's witnesses was not ironclad, this goes to the weight of their credibility only. Tobacco products similar to those taken from the store were found in Burge's girlfriend's residence. Nylon hose were found beneath the cushion of the sofa. The store clerk testified the men who robbed his store wore hose as masks. A leather coat similar to the one identified as being worn by one of the robbers was found in the apartment. Joseph told an investigating officer he was getting his hair cut at the time in question, yet the barbershop owner testified the shop was not open that day. Given this evidence, we do not believe Joseph can show that but for counsel's alleged errors, the district court would have granted a new trial. Trial counsel therefore was under no duty to file such a motion.
We therefore affirm Joseph's conviction and sentence.
AFFIRMED.