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stating the defendant's "attempted flight and efforts to escape apprehension support an inference of guilt"
Summary of this case from State v. CarterOpinion
No. 4-020 / 03-0344
Filed March 10, 2004
Appeal from the Iowa District Court for Pottawattamie County, Gordon C. Abel, Judge.
David Magee appeals from his convictions of second-degree kidnapping and first-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Matt Wilber, County Attorney, and Christopher Wilson, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
David Magee appeals from his convictions of second-degree kidnapping and first-degree robbery.
I. Background Facts Proceedings
According to Scott Penney's version of events, he met Magee and a codefendant, Charles Daniels, at a Council Bluffs restaurant. They told Penney that they were from Kansas City and were interested in looking at Penney's car. After Penney showed them his car, he told them he would show them where to go "cruising" in Council Bluffs. Magee and Daniels followed Penney until he stopped in a Salvation Army parking lot. When Penney told them he was going home, Daniels asked Penney if he could listen to his car radio. Penney agreed, and Daniels got into Penney's car. A few seconds later another unidentified man wearing a ski mask also got in Penney's car, displayed a sawed off shotgun, and told Penney to drive to Omaha. Magee followed Penney in another car. Upon arriving at an Omaha park, the gunman took Penney's wallet, ordered him from the car, and drove away with Penney's car with Magee again following him. Penney walked to a nearby convenience store and summoned the Omaha Police Department.
Later that morning, Penney's car was discovered by an Omaha police officer who attempted to stop it. A short chase ensued and ended when Magee, Daniels, and an unidentified man jumped from Penney's moving car. Magee and Daniels were apprehended. The unidentified man escaped.
As a result, Magee was charged with the foregoing crimes. Magee pleaded not guilty, and the matter proceeded to trial. At the close of the State's evidence, Magee's attorney moved for judgment of acquittal, challenging the sufficiency of the State's evidence. The trial court denied Magee's motion and instructed the jury that they could find Magee guilty as a principal or aider and abettor on both counts. The jury returned guilty verdicts on both counts. Magee's posttrial motions were denied, and he was sentenced to two indeterminate and concurrent twenty-five-year terms of incarceration.
On appeal Magee claims he received ineffective assistance of counsel, citing his counsel's motion for judgment of acquittal, and failure to object to or request certain jury instructions.
II. Standard of Review
We review ineffective assistance of counsel claims de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
III. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, Magee has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, Magee faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second element is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
An ineffective assistance of counsel claim fails if a defendant fails to establish either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed.2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
A. Motion for Judgment of Acquittal
At the close of the State's case, Magee's counsel made the following motion for a judgment of acquittal:
At this time the defense would make a motion to dismiss all charges against — both counts against the defendant. Reasonable doubt exists as to whether or not Mr. Magee was involved as an aider and abetter in either of these actions. I believe from the evidence of the victim, that they don't ever place — basically they place Mr. Magee having a conversation with the victim and his girlfriend earlier in the night.
However, there's been no evidence actually placing Mr. Magee in the Buick Regal from the point of it leaving — from the point of it being at the Salvation Army lot [Council Bluffs] to the point in — to the point where they're in Hanscom Park in Omaha.
The victim testified he did not see Mr. Magee, only the other two were participants. Mr. Magee is later found in the Monte Carlo [Daniel's car], so it's circumstantial at best. I think that — that, at best, it supports a situation where Mr. Magee was tendentiously involved as the third man in a two-man job and was not there as a willing participant.
Rather, I think reasonable doubt is shown that they — there's been no evidence to show that he was there other than as basically a glorified bystander. They didn't need him to pull off this job. There was two of them. He may not have got out of the Regal. There could have been somebody else in the Regal. They could have been picked him up later on. There are definitely holes in the State's case as far as that — as far as that goes.
I think that during the key points, he may be in mere proximity, as we've said, and the jury will be instructed that that is not enough. We've got mere proximity, but there's no showing of any participation or any effort on Mr. Magee's part to further — to further their cause. He's basically, at best, tagging along on this — on this endeavor, but reasonable doubt exists as to whether or not he was — he was a willing participant.
It doesn't appear to me there's been a sufficient showing that he participated, or aided, or abetted in these activities in any way, shape, or form, other than the fact that he was there in the Salvation Army parking lot. The car starts to leave. Whoever is driving the Buick Regal follows them. There would be a number of reasons why the driver of that car could follow them. Basically it's Mr. Daniel's car, Mr. Daniels leaving in a different car. Maybe they don't know where he's going, but there's several other explanations as to why that could be happening.
For those reasons we'd ask the case be dismissed.
Magee claims counsel's motion was inadequate because counsel failed to argue:
[T]he only evidence implicating Mr. Magee is that which puts him into some proximity of the events at the time in question. Mr. Magee did not threaten Mr. Penney, nor did he brandish a weapon. The evidence shows that Mr. Magee was with Mr. Daniels while meeting with Mr. Penney, initially, and that, a short time later, he followed Mr. Penney to Omaha. There is no evidence demonstrating any complicity between Mr. Magee and Mr. Daniels, nor is there evidence of any collusion, on Mr. Magee's part, with the masked gunman who escaped un-prosecuted.
. . . .
Since Mr. Magee was in another vehicle, separate and distinct from that of Mr. Penney, there has been no showing that he (Mr. Magee) confined or removed Mr. Penney [an essential element of kidnapping] or that he was even aware of the actions of the other two individuals. Neither did the State show that Mr. Magee was aware of the presence of a weapon.
. . . .
Since the State failed to prove any details regarding its belief that Mr. Magee was complicit in the complained of acts [essential element of kidnapping], logically, it also failed to prove that Mr. Magee knew of, or caused, an increased risk of harm to Mr. Penney, a reduction in the risk of detection, or made easier the escape.
. . . .
[T]he State failed to prove that Mr. Magee aided and abetted Mr. Daniels and the masked man in the offense of Robbery in the 1st Degree. There was no evidence of Mr. Magee possessing specific intent to commit a theft, or that he assaulted, threatened assault, or threatened to murder Scott Penney. . . . there was no proof that Mr. Magee even knew what was going on in the other automobile.
Although we doubt counsel's motion for judgment of acquittal failed to adequately argue the State did not prove Magee aided and abetted in the robbery and kidnapping of Penney, we proceed as though it did. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003). We conclude Magee was not prejudiced even if trial counsel failed to clearly articulate the missing elements in the State's aiding and abetting case. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (holding the court may affirm a conviction if either ineffectiveness or prejudice is missing).
As noted earlier, the State's theories included Magee's guilt as either a principal or aider and abettor. An aider and abettor is charged, tried, and punished as a principal. See Iowa Code § 703.1.
Under this theory the State was required to prove Magee assented to or lent countenance and approval to Daniels' and the assailant's criminal acts either by active participation in them or by some manner encouraging them prior to or at the time of their commission. State v. Miles, 346 N.W.2d 517, 520 (Iowa 1984). Proof of aiding and abetting may be either direct or circumstantial. State v. Buttolph, 204 N.W.2d 824, 825 (Iowa 1972).
Although Magee's knowledge of these offenses prior to or at the time of their commission is essential, neither knowledge nor proximity to the scene is, standing alone, enough to prove aiding and abetting. State v. Vesey, 241 N.W.2d 888, 891 (Iowa 1976). Proof of these facts, however, in addition to circumstantial evidence such as presence, companionship, and conduct before and after the offense is committed, may be sufficient to support an inference Magee participated in these offenses. Id. The "guilt of a person charged with aiding and abetting must be determined upon the facts which show [the person's] part in the crime and does not depend upon another's degree of guilt." State v. Fetters, 202 N.W.2d 84, 90 (Iowa 1972). If specific intent is an element of the crime charged, "a person may be convicted on a theory of aiding and abetting if the person participates either with the requisite intent . . . or with the knowledge that the principal possess the required intent." State v. Wedebrand, 602 N.W.2d 186, 189 (Iowa Ct.App. 1999).
In reviewing the jury's verdict, we view the evidence in the light most favorable to the State. State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988). The court's finding of guilt is binding upon this court unless there is not substantial evidence in the record to support it or such finding is clearly against the weight of the evidence. Id. On our review, we find sufficient evidence supports the jury's guilty verdict as to Magee's aiding and abetting the robbery and kidnapping of Penney, and therefore, no prejudice occurred.
The State presented evidence of Magee's active participation before, during, and after the kidnapping and robbery. Magee and Daniels initially befriended Penney in a Dairy Queen parking lot in Council Bluffs, Iowa. They lied to Penney and told him they were from Kansas City, even though both reside in Omaha, Nebraska. Magee and Daniels then followed Penney to the Salvation Army parking lot under the guise of needing directions to the best spots to cruise in Council Bluffs. While in the parking lot, Daniels entered Penney's car to listen to the radio and let an armed unidentified assailant into the back seat. Magee then followed Penney's car to Omaha while Penney was held at gunpoint. Magee was a passenger in Penney's car when it was found by Omaha police. Moreover, Magee's attempted flight and efforts to escape apprehension support an inference of guilt. See State v. Ash, 244 N.W.2d 812, 816 (Iowa 1976) (stating evidence of flight may be utilized in determining guilt or innocence). We conclude the circumstantial evidence presented demonstrates the substantial evidence needed for the jury to find Magee aided and abetted in the kidnapping and robbery of Penney and therefore, no prejudice occurred.
B. Jury Instructions
Magee asserts he received ineffective assistance because his trial counsel did not object to jury instructions eight and fourteen. He also claims there should have been a separate instruction on the lesser included offense of assault.
Magee claims that instructions eight and fourteen placed an unconstitutional burden on the defendant by using the term innocence rather than guilty beyond a reasonable doubt. Instruction eight reads:
You must determine the Defendant's guilty or innocence from the evidence, and the law in these instructions.
You must consider all of the instructions together. No one instruction includes all the applicable law.
Instruction fourteen reads:
The defendant has been charged with two counts. This is just a method for bringing each of the charges to trial. If you find the defendant innocent or guilty on any one of the two counts, you may not conclude guilt or innocence on the other(s). The defendant's innocence or guilt must be determined separately on each count.
Instructions eight and fourteen duplicate the Iowa Criminal Jury Instructions. See Iowa Crim. Jury Instructions 100.8, 100.15 (1995). We are reluctant to disapprove uniform instructions. State v. Johnson, 534 N.W.2d 118, 127 (Iowa Ct.App. 1995). We find defense counsel did not breach an essential duty by failing to request different instructions. In considering instruction eight and fourteen, we consider all of the instructions together, not piecemeal or in artificial isolation. See Scalise, 660 N.W.2d at 64. We conclude the instructions, taken as a whole, adequately explain the burden placed on the State.
Lastly, Magee argues trial counsel should have proposed an instruction on the lesser-included offense of assault. According to State v. Johnson, 328 N.W.2d 918, 919-20 (Iowa 1983), the trial court must instruct the jury on all lesser-included offenses, and assault is a lesser-included offense of the charge of robbery under Iowa Code section 711.1(1). We may however, affirm the verdict based on Magee's failure to prove prejudice without deciding whether his attorney failed to perform an essential duty. State v. Hoeck, 547 N.W.2d 852, 863 (Iowa Ct.App. 1996).
The State contends that Magee is unable to show prejudice because the jury was given the option to find him guilty for the lesser-included offenses of robbery in the second degree, kidnapping in the third degree, or false imprisonment, but instead found him guilty of first-degree robbery and second-degree kidnapping. "Where a choice is given to select a lesser offense than that charged and the jury refused to do so, there is no prejudice to defendant in the court's failure to submit still lesser offenses." State v. Youngbear, 203 N.W.2d 274, 278 (Iowa 1972). Because the jury passed on the lesser-included offenses and found Magee guilty of robbery in the first degree and kidnapping in the second degree, we conclude no prejudice can be established. We accordingly affirm the ruling of the district court in its entirety.