Opinion
No. 1-787 / 00-1959.
Filed January 28, 2002.
Appeal from the Iowa District Court for Marion County, JERROLD W. JORDAN, Judge.
Defendant appeals from the judgment and sentence entered upon jury verdicts finding him guilty of second-degree robbery in violation of Iowa Code section 711.3 (1999) and false imprisonment in violation of section 710.7. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Terry E. Rachels, County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER, and VAITHESWARAN, JJ.
Gerald C. Wright appeals his conviction, following jury trial, for second-degree robbery in violation of Iowa Code section 711.3 (1999) and false imprisonment in violation of section 710.7. He contends his trial counsel was ineffective in failing to move for a mistrial after the jury declared it could not reach a verdict. Because we find no merit in his contention, we affirm.
I. BACKGROUND FACTS AND PROCEEDINGS .
This case arises from a convenience store robbery. During the early morning hours of May 29, 2000, Lisa VanderHyde was working alone at the Pronto store in Pella. Shortly after 4:00 a.m., a man she later identified as the defendant came into the store and purchased a pack of Marlboro Light cigarettes. VanderHyde recognized Wright from waiting on him at another job. Wright was wearing a hooded-quilted jacket, a shirt and white pants. He was in the store approximately three minutes.
About twenty minutes later, a man wearing sunglasses and a surgical mask entered the store and stuck what VanderHyde believed to be a gun in her back. The robber took money and three cartons of Marlboro Light cigarettes from VanderHyde and then shut her in the store's cooler. VanderHyde was able to continue observing the defendant through the cooler's glass doors. Before leaving the store, the man grabbed more cartons of cigarettes and a case of beer.
VanderHyde recognized her assailant as the same man who had been in the store twenty minutes earlier. At the time of the robbery the man was wearing a denim jacket, t-shirt, white pants, black and white tennis shoes and a gold chain. The robber displayed a handgun during the robbery. VanderHyde called the police and her manager. Later, she went to the police station where she identified the defendant from a photo line-up.
Pella police officer Charles Moon was running radar just east of the convenience store when it was robbed. While he was being informed of the armed robbery at the nearby store, he noticed a blue Ford driving towards him. He followed the car and observed it cross the centerline several times. Moon called for back-up and continued to follow the car out of Pella.
Becoming concerned about how far they was getting from town, Officer Moon activated his red lights and pulled the car over. Moon turned his spotlight on the vehicle and observed only one person in the car. He remained in his car and continued to radio for back-up. He then pointed his shotgun at the vehicle and, using his PA system, told the driver to put his hands up. The driver complied. However, while Moon was checking on the status of his back-up, the driver drove away.
After a high-speed chase, the driver of the Ford lost control of his vehicle and went into a ditch. Moon was soon joined by other officers from the area. With the aid of a police dog, the officers inspected the car but found no one present. Inside the car the officers discovered sunglasses, a package of Marlboro Light cigarettes, five cartons of Marlboro Light cigarettes, a paper bag with money spilled out and a case of Busch beer. Officers found the defendant lying in a cornfield about a mile from the car. He was wearing a jacket, white pants, shirt and tennis shoes.
Defendant denied entering the Pronto store. He told the police he had been drinking at a party in Knoxville with a man he knew as Mouse. He could not remember exactly where the party took place. He claimed he climbed into the back seat of a parked car at the party and went to sleep. He told police that when the car wrecked, he was awakened by the driver yelling to get out and run. Wright claimed he ran three steps and passed out. During the course of questioning he provided six different first names when asked to identify the driver. He could not provide a last name for the alleged driver.
The State charged Wright by trial information with first-degree robbery, second-degree kidnapping, eluding, and operating while intoxicated. The jury trial commenced on October 3, 2000. The jury began deliberating on October 4th at about 2:30 p.m.
At approximately 1:40 p.m. on October 5th, the jury sent a note to the court claiming they could not reach a verdict. The trial judge reconvened the proceedings in the courtroom with trial counsel and the defendant present. After a brief discussion with the foreperson of the jury, the court instructed the jury to re-read instruction number thirty-three and continue deliberating. Neither the State nor the defendant moved for mistrial. Neither party requested the court to question the jury further to determine the extent of the deadlock.
Instruction No. 33 provided:
When you begin your deliberations, you should select a foreman or forewoman. He or she shall see that your deliberations are carried on in an orderly manner, that the issues are fully and freely discussed, and that every juror is given an opportunity to express his or her views.
In order to return a verdict, each juror must agree to it. Your verdict must be unanimous.
It is your duty as jurors to consult with one another and reach an agreement, if you can do so without compromising your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with the other jurors.
During your deliberations, do not hesitate to re-examine your view and change your opinion if convinced it is wrong. But do not change your opinion as to the weight or effect of the evidence just because it is the opinion of the other jurors, or for the mere purpose of returning a verdict.
Remember, you are the judges of the facts. Your sole duty is to find the truth and do justice.
The jury returned a verdict a little over one hour later. The defendant was found guilty of the lesser-included offenses of robbery in the second-degree and false imprisonment. He was found not guilty of eluding and operating while intoxicated. The court sentenced Wright to ten years for robbery and one year for false imprisonment, to be served concurrently.
Wright appeals his conviction, contending his trial counsel was ineffective in failing to move for a mistrial after the jury informed the court it could not reach a verdict.
II. SCOPE OF REVIEW .
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for post-conviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 5 64 N.W.2d 817, 833 (Iowa 1997). However, a post-conviction claim may be resolved on direct appeal when the record adequately addresses the issues. State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct. App. 1998). We believe the record here is adequate to address Wright's claim.
III. THE MERITS .
The defendant claims his counsel should have moved for a mistrial given the difficulty the jury was having in reaching a verdict. To succeed on such a claim, Wright must prove his attorney's performance fell below an objective standard of reasonableness and was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Prejudice is shown by demonstrating a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
A trial judge may grant a mistrial if it appears that the jury cannot agree. Iowa R. Crim. P. 18(6)(a). However, this discretion is limited by constitutional protections against double jeopardy. State v. Connelly, 551 N.W.2d 329, 331 (Iowa Ct. App. 1996) (double jeopardy not a bar to retrial where hung jury constituted a "manifest necessity" for mistrial). A trial judge is entitled to exercise broad discretion in deciding whether or not to allow a jury to deliberate longer. Id. The reason for this is obvious. If a jury is discharged when further deliberations may produce a fair verdict, the defendant is deprived of his right to have his trial completed by a particular tribunal. Id.
The length of time a jury has spent deliberating is a relevant factor to consider when determining whether to declare a mistrial in a case where it appears a jury may be unable to reach a verdict. United States v. Lansdown, 460 F.2d 164, 169 (4th Cir. 1972). We have held that the trial court did not abuse its discretion in denying a motion for mistrial on the basis of a hung jury where the total deliberation time was less than six hours. See State v. Montes, 445 N.W.2d 407, 407 (Iowa Ct. App. 1989). Montes involved only a single charge of second-degree burglary. In the present case, the jury was considering the defendant's guilt or innocence on four counts, two of which involved lesser-included offenses. It appears from the record that Wright's jury had been deliberating for about six hours when they sent the court a note claiming they could not reach a verdict. The length of deliberations had not been long given the nature of this case. To ask a jury to continue deliberating on four offenses, including two class B felonies, after such a short time had passed was a reasonable decision by the trial court. In addition, it appears from the record that the court was unconvinced that an impasse had been reached.
Given the circumstances of this case, we conclude the trial court acted properly in having the jury continue its deliberations rather than declaring a mistrial sua sponte. Because a mistrial was unwarranted, Wright's counsel breached no duty because of his failure to seek a mistrial. We affirm Wright's conviction.
AFFIRMED.