Opinion
No. 5-250 / 04-0764
Filed August 17, 2005
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Applicant-appellant Vincent Cortez Brown appeals the district court's denial of his application for postconviction relief. AFFIRMED.
Jesse Macro, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and Steven Foritano, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Applicant-appellant Vincent Cortez Brown was convicted of second-degree murder following the April 8, 1996 death of Phyllis Davis from a gunshot wound. Davis was driving on University Avenue in Des Moines when she was shot and killed by a stray bullet that came from a gun battle between a group of men, including Brown, who was then seventeen years old. The facts are more completely set out in State v. Brown, 589 N.W.2d 69 (Iowa Ct. App. 1998). Brown was originally charged with first-degree murder, in violation of Iowa Code sections 707.1 and 707.2(1) and (2) (1995), attempted murder, in violation of section 707.11, and terrorism, in violation of section 708.6. His conviction was affirmed by this court on appeal. Id. In this appeal from the district court's denial of his application for postconviction relief, he contends we should find his trial counsel ineffective in (1) not objecting to a second-degree murder instruction in a felony murder case, and (2) not seeking to suppress certain statements he made without the benefit of counsel. We affirm.
We review claims of ineffective assistance de novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). The statutory grant of an applicant's right to court-appointed counsel necessarily implies that that counsel be effective. Patchette v. State, 374 N.W.2d 397, 398 (Iowa 1985); see also Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994) (noting that although it is not a constitutional right, the statutory right to counsel implies a right to effective assistance of counsel).
Ineffective assistance of counsel is established on a showing that (1) trial counsel failed to perform an essential duty and (2) the applicant shows he or she was prejudiced by counsel's errors. See State v. Weatherly, 679 N.W.2d 13, 18 (Iowa 2004); State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003). "Failure to prove either of these elements is fatal to a claim of ineffective assistance." Id. There is a presumption "that trial counsel acted within the normal range of competency." Id. Prejudice is established by proof that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Our review of claims of ineffective assistance of counsel is de novo in light of the constitutional dimensions of the claim. See id.
Brown first contends his trial counsel should have objected to the jury being instructed on second-degree murder, for he argues it is not a lesser included offense of felony murder. He contends he was prejudiced by the instruction. His position is that had second-degree murder not been an option after the jury rejected felony murder, they would have convicted him of manslaughter which carries a lesser penalty than second-degree murder.
The issue was raised in Brown's direct appeal by appellate counsel who was also trial counsel. This court did not address it finding it was not raised before the district court. Brown, 589 N.W. 2d at 75.
Brown contends that the elements of second-degree murder do not fit the facts present at his trial. He argues that an instruction submitted on an issue unsubstantiated by the evidence is generally considered prejudicial. Brown claims he did not actually shoot Davis and he did not aid or abet the shooting. Consequently, he contends the key issue is whether his participation in the gunfight led to her death. He appears to argue that when the jury failed to find him guilty on the felony murder count, they found he did not play a part in the felony shooting of Davis and consequently should not have found him guilty of second-degree murder.
While Brown does not specifically lodge a claim the verdict was inconsistent to the extent that it may be interpreted as such, there is no basis for that claim. In State v. Hernandez, 538 N.W.2d 884, 889 (Iowa Ct.App. 1995), in addressing the issue of an alleged inconsistent verdict, this court said appellate review should be limited to whether sufficient evidence exists to support the verdict returned by the jury. Noting the United States Supreme Court in United States v. Powell, 469 U.S. 57, 63, 105 S. Ct. 475, 479, 83 L. Ed. 2d 461, 467 (1984), and in Dunn v. United States, 284 U.S. 390, 52, S. Ct. 190, 76 L. Ed. 359 (1932), the court noted that although inconsistent verdicts reveal the jury did not speak its real conclusions, they do not necessarily show the jury was not convinced of the defendant's guilt.
The jury was instructed in order to prove Brown guilty of second-degree murder the State must prove the following elements:
1. On or about the 8th day of April, 1996, the Defendant, Vincent Cortez Brown, or someone he knowingly aided and abetted, shot at another person.
2. The acts of the Defendant, or some one he knowingly aided and abetted, were the proximate cause of Phyllis Davis being shot and her death.
3. The Defendant, or a person he aided and abetted, acted with malice afore-thought.
4. The Defendant was not justified. . . .
Id. at 74.
In deciding whether a lesser crime is included in a greater one, the test is whether if the elements of the greater offense are established in the manner in which the State sought to establish them, the elements of the lesser offense have also been established. State v. Mapp, 585 N.W.2d 746, 749 (Iowa 1998); State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990).
Iowa Code section 707.1 (1995) defines felony murder as:
A person commits murder in the first degree when the person commits murder under any of the following circumstances:
. . .
2. The person kills another person while participating in a forcible felony.
"A person commits murder in the second degree when the person commits murder which is not murder in the first degree." Iowa Code § 707.3; State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003).
If the second-degree murder instruction given in this case is supported by the law and the facts, then Brown's trial counsel was not ineffective in failing to object to it.
Second-degree murder has been said to be a lesser offense of first-degree murder. State v. Klindt, 542 N.W.2d 553, 554 (Iowa 1996).
Brown was charged under multiple counts including being an aider and abettor, and the second-degree instruction given was based on his aiding and abetting, not on his participation in a felony.
Iowa Code section 703.1 defines aiding and abetting.
All persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aid and abet its commission, shall be charged, tried and punished as principals. The guilt of a person who aids and abets the commission of a crime must be determined upon the facts which show the part the person had in it, and does not depend upon the degree of another person's guilt.
Iowa Code § 703.1. "Aiding and abetting is `a method by which courts create secondary liability' in persons other than the violator of the statute." Central Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 184, 114 S. Ct. 1439, 1452, 128 L. Ed. 2d 119, 137 (1994) ( quoting Pinter v. Dahl, 486 U.S. 622, 648 n. 24, 108 S. Ct. 2063, 2079 n. 24, 100 L. Ed. 2d 658, 683 n. 24 (1988)); State ex rel. Goettsch v. Diacide Distributors, Inc., 561 N.W.2d 369, 373 (Iowa 1997).
To secure a conviction based on aiding and abetting, the State must introduce substantial proof to show that the accused "assented to or lent countenance and approval to" the criminal act. State v. Allen, 633 N.W.2d 752, 755 (Iowa 2001). Knowledge of the crime is essential, "but neither knowledge nor presence at the scene of the crime is sufficient to prove aiding and abetting." Id.
An aider and abettor is as culpable of the crime as the principal. State v. Lewis, 514 N.W.2d 63, 65 (Iowa 1994); see Iowa Code § 703.1. To convict one of a crime on the theory of aiding and abetting, the State must produce substantial evidence that the accused assented to or lent countenance and approval to the criminal act, either by active participation in it or by some manner encouraging it prior to or at the time of its commission. State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977). The State must prove the accused knew of the crime at or before its commission. State v. Buttolph, 204 N.W.2d 824, 825 (Iowa 1972). But such proof need not be, and frequently cannot be, established by direct proof. Id. The proof may be either direct or circumstantial. Id. Although such knowledge 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). Such factors, in combination with circumstantial evidence such as "presence, companionship, and conduct before and after the offense is committed," may be enough from which to infer a defendant's participation in the crime. State v. Miles, 346 N.W.2d 517, 520 (Iowa 1984).
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. Jefferson, 574 N.W.2d 268, 277 (Iowa 1997); State v. Fetters, 202 N.W.2d 84, 90 (Iowa 1972).
Despite Brown's argument to the contrary, there was substantial evidence from which the jury could find beyond a reasonable doubt that Brown aided and abetted the person who delivered the fatal bullet. In applying the substantial evidence standard, we consider the evidence in a light most favorable to the State. State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988). All legitimate inferences and presumptions which fairly and reasonably arise from the record may be made in considering the evidence. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984). However, all the evidence is considered, not just evidence which supports the verdict. State v. Blair, 347 N.W.2d 416, 419 (Iowa 1984); State v. Hernandez, 538 N.W.2d 884, 887 (Iowa Ct.App. 1995).
The gunfight that culminated in Davis's death began when passengers in a car Brown was driving fired bullets at a second car. Shots were returned and Brown and his passengers retreated to a house on University Avenue. When the occupants of the second car arrived firing guns at the house on University, the occupants of the house returned fire and it was from this cross-fire that the bullet killing Davis came. See Brown, 589 N.W.2d at 72. The jury could find from this evidence that Brown assented to, or lent countenance and approval to, the criminal act. Allen, 633 N.W.2d at 755. This finding could be further supported by evidence that after Davis was killed, Brown pursued the other car and sought more ammunition. See Brown, 589 N.W. 2d at 72. Conduct after the offense is committed may be considered with other factors to infer a defendant's participation in the crime. Miles, 346 N.W.2d at 520.
The second-degree murder instruction given here was consistent with the law and the facts. Trial counsel was not ineffective in failing to object to the instruction. We affirm on this issue.
Brown next contends his trial attorney should have moved to suppress damaging statements he gave to the police which he claims were given in violation of Iowa Code section 232.11. This section provides certain requirements for the State to meet before seeking a waiver of a juvenile's right to counsel.
Iowa Code Section 232.11 provides in relevant part:
The waiver of a child who is at least sixteen years of age is valid only if a good faith effort has been made to notify the child's parent, guardian or custodian that the child has been taken into custody and of the alleged delinquent act for which the child has been taken into custody, the location of the child, and the right of the parent, guardian, or custodian to visit and confer with the child.
Brown contends he was detained on two juvenile warrants and that during the detention he gave statements on April 8 and 9 when law enforcement had not contacted his parents. He said at the time he was seventeen years old and that he was retained under the jurisdiction of the juvenile court until formal charges of first-degree murder were filed.
The State contends section 232.11 does not apply because Brown was held for a forcible felony, murder, and under section 232.8(1)(c) violations which constitute a forcible felony are excluded from the jurisdiction of the juvenile court and shall be prosecuted as otherwise provided by law unless the court transfers jurisdiction of the child to the juvenile court upon motion and for good cause.
Iowa Code section 232.8(1)(c) is referred to as "reverse waiver." Terry, 569 N.W.2d at 366. Generally, juveniles are subject to the juvenile court's jurisdiction and may then be "waived" into district court for prosecution as an adult. Id. However, under section 232.8(1)(c), the qualifying juvenile offender begins in district court and must seek waiver into juvenile court. Id.
The question then becomes whether Brown was being held as a juvenile or being held on a felony at the time of his questioning. The district court found that he was initially held as a juvenile as it was not until April 9, 1996 that he was arrested on the murder charge. Consequently the district court found the provisions of 232.11(2) were applicable to the statement he gave on April 8 and it should have been suppressed. The district court went on to find, however, that Brown failed to show he was prejudiced by the statement as it consisted mostly of Brown's denials that he or other occupants in his car were involved in gunplay. We affirm on this issue, finding, as did the district court, no prejudice from the April 8 statement. We also agree with the district court's finding that because by the 9th Brown had been arrested for murder, any statement given at that time was not subject to section 232.11.
Brown contends he was held as a juvenile on April 8 and 9, contending he was not being held for a felony until April 10 when the trial information was filed. The State contends he was always held on a felony. Our review of the court file supports the trial court's finding that he was arrested on the 9th.