Opinion
No. 1-863 / 01-0629
Filed February 20, 2002.
Appeal from the Iowa District Court for Polk County, LINDA R. READE, Judge.
The defendant appeals from the judgment and sentence entered upon a jury verdict finding her guilty of first-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Jennifer Kerby appeals from the judgment and sentence entered upon a jury verdict finding her guilty of first-degree robbery. She contends (1) the evidence was insufficient as a matter of law to convict her of first-degree robbery, and (2) the trial court erred in denying her motion for new trial based upon jury misconduct in violation of her right to due process and the Supremacy Clause of the United States Constitution. She argues, in the alternative, that her trial counsel was ineffective if he failed to preserve error on the constitutional issue. We affirm.
I. BACKGROUND FACTS.
Under the record in this case, the jury could reasonably have found the following facts. Four people wearing masks and sweat suits entered the Sportmart store in West Des Moines on September 28, 2000. One person remained in a car outside the store. One male and one female remained in the front of the store, yelling "Get down on the floor! Get down on the floor!" The female had a gun. They demanded money from the cash register. Two other males ran to the back of the store to a gun case, but found it empty. The group had guns and a crow bar. They took $502 from the store.
The four participants in the robbery left the store and fled in a waiting car. Witnesses described the car as being black with tinted windows, chrome mags, and chrome chains on the license plate. A vehicle matching that description was later located in a nearby parking lot. Officers saw clothing and a weapon in plain view, and later found a driver's license belonging to Brent Higgins, a white Sportmart sack containing United States currency, latex gloves, sweat suits, two-way radios, a crow bar, and guns. The car was registered to Brent and his father, Tony Higgins.
Officers contacted Tony Higgins. He stated his son was at a movie. Brent Higgins' gun was missing from its usual location. Higgins then went out to look for Brent's car at area movie theaters, but did not find it.
The morning after the robbery, Richard Otis and Brian Chapman were arrested by police as they were attempting to leave Des Moines. They spoke with officers about the Sportmart robbery, and implicated Kerby. Kerby was eventually arrested on a warrant in Nebraska. She told officers she had been in Des Moines at the Higgins' residence earlier in the evening on September 28, but that she had left around 8 p.m. to meet friends.
Brent Higgins, Chapman, Otis, Beth Burton, and Kerby were charged with one count of first-degree robbery in violation of Iowa Code sections 711.1 and 711.2 (1999) for their alleged participation in the Sportmart robbery. Otis, Chapman, Burton, and Higgins all entered into plea agreements which resolved the charges pending against them without trial. Kerby plead not guilty. At her trial, three of Kerby's alleged accomplices testified she participated in the Sportmart robbery. Kerby was convicted of the charged offense. She appeals.
Kerby and Brent Higgins were also charged with two counts of first-degree robbery for robberies of Blockbuster Video and Holiday Inn in Des Moines, and Burton was also charged with the robbery of Blockbuster Video. Kerby was acquitted of these two charges, and they are not at issue on appeal.
II. SUFFICIENCY OF THE EVIDENCE.
On appeal, Kerby contends the evidence was insufficient to convict her as a matter of law. Specifically, she asserts the corroborative evidence in this case was not legally adequate to warrant submission of the case to the jury and was not sufficient to support a conviction. She argues that the State's evidence at most served to corroborate the commission of the robbery and the circumstances thereof, as opposed to her alleged participation in the commission of the offense.
Iowa Rule of Criminal Procedure 20(3) provides that
A conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Iowa R. Crim. P. 20(3). Requiring corroborating evidence serves two purposes: first, it tends to independently connect the defendant to the crime; and second, it supports the credibility of an accomplice whose motives are clearly suspect because of the accomplice's self-interest in focusing blame on the defendant. State v. Brown, 397 N.W.2d 689, 694 (Iowa 1986).
The existence of corroborative evidence is a question of law; the sufficiency of that evidence ordinarily is a question of fact for the jury. State v. Ware, 338 N.W.2d 707, 710 (Iowa 1983). Corroborative evidence will be sufficient to create a jury question if that evidence corroborates a material aspect of the accomplice's testimony which tends to connect the defendant to the commission of the crime and thereby supports the accomplice's credibility. Brown, 397 N.W.2d at 694-95. Such evidence may be either direct or circumstantial, and it need not be strong or confirm every material fact of the accomplice's testimony. Id. at 695. Furthermore, corroborative evidence need not be entirely inconsistent with innocence. Id.
The State suggests more recent opinions by our supreme court have provided some doubt as to the continued viability of the holding in Johnson v. State, 4 Greene 65 (Iowa 1853) (holding that one accomplice cannot be a witness to corroborate the testimony of another accomplice in the same crime). See Ware, 338 N.W.2d at 711; see also State v. Harris, 589 N.W.2d 239, 242 (Iowa 1999). We believe the cases cited by the State do not cast doubt on the continued validity of Johnson v. State, and we continue to follow the holding of that case. Furthermore, we will leave it to our supreme court to overrule its own precedents.
Otis, Chapman, and Burton all testified that Otis, Chapman, Brent Higgins, and Kerby entered Sportmart while Burton remained in the car. They testified that Kerby was the female who remained at the front of the store. With the testimony of Kerby's accomplices, the evidence of Kerby's guilt is overwhelming. However, before the accomplice testimony may be admitted there must be corroborative evidence that tends to connect Kerby with the commission of the Sportmart robbery.
We find there is sufficient corroboration based on Tony Higgins' testimony and on the testimony of eyewitnesses to the Sportmart robbery. Tony Higgins testified that Kerby was with Otis, Chapman, Burton, and Brent Higgins at Tony Higgins' home prior to the commission of the offense. Kerby also admitted this to the police. Tony Higgins testified Kerby and the others were wearing sweat suits. Witnesses at the scene testified the perpetrators of the robbery were wearing sweat suits. Tony Higgins testified that the group left his home in Brent's and Chapman's cars. Brent's car was found in a parking lot near Sportmart after the robbery, and eyewitnesses identified it as the car used in the robbery. Witnesses to the robbery testified that one female and three males entered Sportmart and committed the robbery, while one person remained in Brent's car outside. Tony Higgins testified that he saw Kerby at his house with an armload of his son's clothes after the robbery occurred. The inference from this evidence is that Kerby had contact with at least Brent Higgins after the robbery.
We believe this corroborative evidence was legally adequate to warrant submission of the case to the jury, and the corroborative evidence along with the accomplice testimony was sufficient to support Kerby's conviction for first-degree robbery. We affirm.
III. JUROR MISCONDUCT.
In her motion for a new trial, Kerby claimed the jury improperly shifted the burden of proof to her during its deliberations. In support of that allegation, the defendant referred to a report by a private investigator regarding his interviews with three jurors. The trial court ruled the jury interviews were precluded as evidence by Iowa Rule of Evidence 606(b) and denied the defendant's motion.
Pursuant to Iowa Rule of Evidence 606(b), jurors are incompetent to testify to any matter or statements occurring in the course of deliberations. Ryan v. Arneson, 422 N.W.2d 491, 495 (Iowa 1988).
On appeal, Kerby contends the trial court erred in denying her motion for new trial based on juror misconduct. She argues the denial violates her right to due process and the Supremacy Clause of the United States Constitution. In the trial court, she argued that the jurors shifted the burden to her to prove her alibi defense.
Our error preservation rules require that issues be presented to and passed upon by the trial court prior to being raised and decided on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998). Since Kerby did not raise her constitutional claim in the trial court, it is not preserved for our review. Because we conclude Kerby has failed to preserve error, we consider her alternative argument that her trial counsel was ineffective in failing to preserve error on this claim.
IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Kerby argues that her trial counsel was ineffective in failing to preserve the issue of whether Iowa Rule of Evidence 606(b) violates her due process rights and the Supremacy Clause of the United States Constitution. She contends the jury engaged in misconduct by shifting the burden of proof to her on her alibi defense, and rule 606(b) effectively prevents her from proving that the jury so shifted the burden of proof.
Kerby is entitled to the effective assistance of counsel under the Sixth Amendment of the United States Constitution and Article I, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). Because a claim of ineffective assistance of counsel implicates constitutional rights, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
To establish an ineffective assistance of counsel claim, 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). The test of ineffective assistance focuses on whether the performance by counsel was reasonably effective. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must show that performance fell below an objective standard of reasonableness so that counsel failed to fulfill the role in the adversary process that the Sixth Amendment envisions. Id. at 688, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693. A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
"Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972)); see also Wemark, 602 N.W.2d at 814. A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987).
While we often preserve ineffective assistance claims for possible postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). We find this record adequate to address Kerby's claim.
An ineffective assistance claim may be disposed of if the defendant fails to prove either of the two prongs of such claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Therefore, we need not determine whether counsel's performance is deficient before undertaking the prejudice determination. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In order to prove prejudice, the defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. "A `reasonable probability is a probability sufficient to undermine confidence in the outcome' of the defendant's trial." State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997) (quoting State v. Kraus, 397 N.W.2d 671, 673 (Iowa 1986)).
The issue that Kerby asserts her trial counsel should have raised has not been passed upon by the courts of this state. We do not require trial counsel to be a "crystal gazer" who must predict future changes in established rules of law in order to provide effective assistance to a criminal defendant. State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982). We merely ask "whether a normally competent attorney could have concluded that [this] question . . . was not worth raising." State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999).
We believe that a normally competent attorney would conclude the issue of whether Iowa Rule of Evidence 606(b) violated Kerby's right to due process and the Supremacy Clause was not worth raising. Rule 606(b) was not recently approved or amended. Cf. Schoelerman, 315 N.W.2d at 72-3 (finding that trial counsel should have raised a novel legal issue in a case where the controlling statutes had recently been amended). Kerby has not cited any persuasive authority indicating there is a legal trend in favor of invalidating Federal Rule of Evidence 606(b), the federal equivalent to Iowa Rule of Evidence 606(b), or its various state counterparts because they violate a criminal defendant's due process rights. Cf. Westeen, 591 N.W.2d at 210; Schoelerman, 315 N.W.2d at 72. We conclude trial counsel had no duty to raise this novel legal issue. Accordingly, Kerby's trial counsel was not ineffective in failing to preserve error on the constitutional claim.
The Iowa Rules of Evidence indicate that rule 606(b) was implemented in 1983 and has not been amended. Iowa R. Evid. 606(b). Even prior to the adoption of the rule, our supreme court has limited evidence from jurors that inheres in the verdict. See Wright v. Ill. Miss. Tel. Co., 20 Iowa 195, 210 (1866).
V. CONCLUSION.
We conclude the accomplices' testimony was corroborated by other evidence as a matter of law, and the corroborative evidence along with the accomplices' testimony was sufficient to support the jury's verdict. We find Kerby has failed to preserve error on her claim that the trial court denied her due process and violated the Supremacy Clause. We conclude Kerby's trial counsel had no duty to raise the novel constitutional claim that Iowa Rule of Evidence 606(b) violated her right to due process and the Supremacy Clause of the United States Constitution. We affirm the trial court's judgment and sentence.
AFFIRMED.