Opinion
No. 5-409 / 04-0925
Filed August 17, 2005
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge.
Harold Lee Burge appeals from the district court's ruling denying his application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett and Kevin Cmelik, Assistant Attorneys General, William E. Davis, County Attorney, and Rob Cusack, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
Harold Lee Burge appeals from the district court's ruling denying his application for postconviction relief. He contends the court erred in finding his trial counsel was not ineffective for failing to move for severance of Burge's trial from that of his codefendant. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
On November 20, 2000, the Phillips 66 gas station on State Street in Bettendorf was robbed by two masked men at approximately 12:30 p.m. Gary Singh was working alone at the time of the robbery and no customers were in the store when it took place. One of the men pulled out a handgun, demanded money from Singh, and threatened to kill him. The men were in the store for approximately two to three minutes and then fled on foot with their masks still on. They took about $1,400 in cash as well as Garcia Vegas and Optimo cigars and cartons of Newport cigarettes. Singh called 911 after the men fled and ran outside to see which way they went. However he could not describe the men in any detail because they were wearing nylon masks the entire time they were in the store. Singh did state that they were wearing leather coats and were taller than he.
Kenneth and Maxine Duhm were driving on State Street around the time of the robbery and saw two individuals running quickly across the street. They saw the men run between two houses and disappear. The Duhms had pulled onto a side street and then an alley in an attempt to follow the men when they saw a white car back out and drive toward them. Mr. Duhm saw the license plate on the car as it was coming down the alley toward them and recited the number to his wife who wrote it down. The Duhms then drove back to the gas station and gave the store clerk the license plate number of the car. At trial Mr. Duhm identified the defendant Burge and Joseph Hollingshed as the occupants of the vehicle fleeing the scene, even though in his deposition he would not say for certain they were the same two men he had seen in the white car. Doug Karman also testified at trial that he saw two individuals crossing State Street on foot around the time of the robbery. He identified Hollingshed as one of the individuals but he could not positively identify Burge as the other individual.
The license plate number the Duhms got from the white car was traced to Susanne Terronez, Burge's live-in girlfriend. Burge was present at Terronez's residence when the police contacted her at her residence two days after the robbery to investigate the involvement of her car in the robbery. A search of the residence on that day revealed a carton of Newport cigarettes in the freezer and a pack of them on the coffee table. Police also found one empty box and one nearly empty box of Garcia Vega cigars. A leather coat which appeared to match the coat worn by one of the robbers was found in the living room of the residence. Officers also discovered a nylon stocking, consistent with the nylon masks the robbers had worn, under a sofa cushion where Burge was sitting.
On February 22, 2001, Burge was charged, by trial information, with robbery in the first degree, in violation of Iowa Code section 711.2 (2001). The State successfully moved to consolidate Burge's case with that of Hollingshed's through an amended trial information filed March 20, 2001, charging both men with robbery in the first degree. Burge did not object to the consolidation of the cases. The cases proceeded to a joint trial commencing on May 14, 2001.
Hollingshed chose not to testify at trial, but had told investigating officers prior to trial that he and Burge had been at a barbershop when the robbery occurred. Hollingshed's statement came into evidence at trial through the testimony of one of the investigating officers. It was later discovered that the shop he claimed they were at was in fact closed on the day of the robbery.
The jury found both Burge and Hollingshed guilty as charged. On June 6, 2001, judgment was entered and the court sentenced Burge to an indeterminate term of incarceration not to exceed twenty-five years.
Burge appealed his conviction on several grounds, including that his trial counsel was ineffective for not requesting a severance of his trial. This court upheld Burge's conviction and preserved his ineffective assistance of counsel claims for possible postconviction relief. State v. Burge, 01-0929 (Iowa Ct. App. Nov. 15, 2002).
Burge filed a timely postconviction application with the district court on February 26, 2003, asserting three grounds of ineffective assistance of trial counsel, including a claim his counsel was ineffective for failing to move to sever his trial from Hollingshed's. A hearing was held on Burge's application and the district court denied the application in a ruling filed May 11, 2004. The postconviction court concluded, in relevant part, that trial counsel was not ineffective for failing to move to sever the trials because Burge's defense was "not irreconcilable and mutually exclusive" to Hollingshed's defense. It also rejected Burge's other two claims of ineffective assistance.
The only ground of alleged ineffective assistance of counsel Burge pursues on appeal is that his trial counsel was ineffective for failing to move to sever his trial from Hollingshed's. More specifically, he contends the evidence and argument presented by Hollingshed at trial was sufficiently prejudicial to him to warrant severance of the trials.
Burge argues in the alternative that to the extent this issue was not preserved for appellate review his postconviction counsel was also ineffective. However, because we conclude this issue was properly preserved for our review we need not address this alternative argument.
II. SCOPE AND STANDARDS OF REVIEW.
We typically review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicant asserts a claim of constitutional nature, such as ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Ledezma, 626 N.W.2d at 141.
III. MERITS.
A defendant is entitled to the assistance of counsel under the Sixth Amendment to the United States Constitution and Article 1, 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). "To establish an ineffective assistance of counsel claim, the applicant must show that `(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom.'" Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999) (quoting State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984)). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). 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, 626 N.W.2d at 145; State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). We may affirm on appeal if either element is lacking. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996).
To establish the first prong of an ineffective assistance claim the applicant must prove the attorney performed below the standard demanded of a reasonably competent attorney. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94. In order to prove the second prong, resulting prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Iowa Rule of Criminal Procedure 2.6(4)( a) permits the State to charge two or more defendants in the same indictment or information if they are alleged to have participated in the same act, transaction, or occurrence out of which the offense arose. When an indictment or information does jointly charge two or more defendants, "those defendants may be tried jointly if in the discretion of the court a joint trial will not result in prejudice to one of the parties. Otherwise, defendants shall be tried separately." Iowa Rule Crim. P. 2.6(4)( b).
Under Iowa law, severing the trials of codefendants is required in two instances: (1) where the trial is so complex and the evidence so voluminous that the jury will be confused and cannot compartmentalize the evidence; or (2) where the evidence admitted by or against one defendant is so prejudicial to a codefendant, the jury is likely to wrongly use it against the co-defendant. State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998); State v. McFadden, 443 N.W.2d 70, 71 (Iowa Ct.App. 1989). On appeal Burge relies only on the second of the two instances when severance is required, contending the evidence presented by Hollingshed was sufficiently prejudicial to him to warrant severance.
Prejudice in the context of a joint trial requires more than a showing that the codefendants' defenses would be 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); State v. Clark, 464 N.W.2d 861, 863-64 (Iowa 1991); State v. Olsen, 482 N.W.2d 452, 455 (Iowa Ct.App. 1992). "It is well established, however, that the mere presence of conflict, antagonism or hostility among defendants or the desire of one to exculpate himself by inculpating another are insufficient grounds to require separate trials." State v. Snodgrass, 346 N.W.2d 472, 475 (Iowa 1984). The level of antagonism and conflict which will prevent a fair trial and require severance is reached only if the jury, in order to believe the core testimony offered on behalf of one defendant, must necessarily disbelieve the testimony offered on behalf of a codefendant. Leutfaimany, 585 N.W.2d at 203; Olsen, 482 N.W.2d at 455.
A strong argument can be made that Burge's and Hollingshed's defenses were not irreconcilable and mutually exclusive to the point that in order to believe the testimony of one the jury must necessarily disbelieve the other. Hollingshed did not testify at trial. During Burge's testimony Burge did not expressly accuse Hollingshed of committing the robbery, but rather stated only that he loaned his car to Hollingshed and his cousin on the day in question. He did not testify to any knowledge that Hollingshed used the car in the robbery. Burge's defense was simply a denial of the charges. Hollingshed in effect offered the same defense (i.e., "I did not do it."). Thus, their defenses arguably had a common core, with the general theme of the cross-examination conducted by each defendant being an attack on the credibility of the State's witnesses. Furthermore, the false alibi given by Hollingshed did not implicate Burge.
However, we need not decide whether Burge's trial counsel breached an essential duty by not filing a motion to sever the trials, because we conclude Burge has failed to prove he was prejudiced by counsel's alleged error. Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p); State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). A verdict can rest on circumstantial evidence alone. Kirchner, 600 N.W.2d at 334. There was overwhelming circumstantial evidence that Burge was one of the two persons who committed the robbery. The vehicle identified as being used to flee the scene of the robbery was registered to Burge's girlfriend, Terronez, who had left it in Burge's possession the day of the robbery. Mr. Duhm identified Burge as the person driving the vehicle as it left the area of the robbery. When the police went to investigate the involvement of the vehicle in the robbery Burge was at Terronez's residence. In searching the residence the police found both the specific brand of cigars and the specific brand of cigarettes stolen in the robbery. A leather coat matching the description of a coat worn by one of the robbers was also found at the residence. The police found a nylon stocking matching the description of those worn by the robbers under the sofa cushion where Burge was sitting.
Thus, based on the overwhelming evidence against Burge there is not a reasonable probability that, but for the allegedly unprofessional error of counsel, the result of a separate trial would have been different. Therefore, Burge has failed to prove by a preponderance of the evidence that he was prejudiced by counsel's alleged error.
IV. CONCLUSION.
Burge has not met his burden to prove his trial counsel was ineffective for not filing a motion for severance. Based on our de novo review of the record, and for all of the reasons set forth above, we conclude the trial court was correct in denying Burge's application for postconviction relief.