Opinion
No. 4-772 / 04-0075
Filed December 22, 2004
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Antonio Ashby appeals from his judgment and sentence, claiming his trial counsel was ineffective for failing to adequately cross-examine a witness. AFFIRMED.
Scott Bandstra, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John P. Sarcone, County Attorney, and Frank Servino, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Defendant Antonio Ashby appeals following a judgment and sentence entered after a jury found him guilty of robbery in the first degree, in violation of Iowa Code sections 711.1 and 711.2 (2003). Ashby claims his trial counsel was ineffective for failing to adequately cross-examine one of the State's witnesses. Because we conclude Ashby cannot establish that he was prejudiced by counsel's performance, we affirm his conviction and sentence.
I. Background Facts and Proceedings.
On May 27, 2003, three men robbed the Teji Corner Store in Des Moines. They succeeded in taking $295. Police soon apprehended Roscoe Lewis, who indentified his brother, Antonio Ashby, and Shawn Dae as the two other particpants in the robbery. Lewis, Ashby, and Dae were all apprehended in close proximity to the home of Joseph Ashby, Sr. and his wife, Roxanne (the Ashby, Sr. residence). Living in the home with the couple were Ashby and Lewis's cousin, Joseph Ashby, Jr., and Ira Thomas.
On July 1, 2003, the State filed a trial information charging Antionio Ashby with robbery in the first degree. Lewis admitted his role in the robbery. During trial he testified he was present when Ashby and Dae planned the robbery. Lewis admitted that he dropped Ashby and Dae off in front of the business they decided to rob and then waited for them, in Ashby's car, at a predetermined location. He confirmed Ashby and Dae then entered the store, robbed the owner, and returned to the get-a-way car. According to Lewis, Ashby then told him to drive to the Ashby, Sr. residence. He further testified that, after arriving at the residence, he witnessed Ashby and Dae enter the home, then drove away. Lewis was stopped by police approximatley one and a half blocks from the Ashby, Sr. residence.
The State also offered eyewitness testimony that placed Ashby's car at the scene of the robbery. One of the eyewitnesses, Larry Elliott, testified that when he was asked to view suspects shortly after the robbery, he concluded there were "similarities" between Ashby and Dae and the robbers, but that he could not be "100 percent" certain they were the men who robbed the store. He then postively indentified Dae from a photograph. Elliot was also asked to view Joseph Ashby, Jr. and Ira Thomas. He testified that Joseph Ashby, Jr. and Thomas were not the two men he had seen at the store, as they were "much younger and much smaller."
However, another eyewitness, Mitch Muffler, testified that when he was asked to view Ashby and Dae, he stated they were not the men he saw going into the store. He further testified that, when he viewed Joseph Ashby, Jr. and Thomas, he indentified them as the robbers. Muffler's testimony was contradicted by that of the investigating detective, Dennis O'Donnell, who stated Muffler did not positively indentify Joseph Ashby, Jr. or Thomas. Trial counsel did not cross-examine Dective O'Donnell about this contradiction.
On November 4, 2003, a jury found Ashby guilty of robbery in the first degree. The district court sentenced Ashby to an indeterminate twenty-five year term of incarceration. Ashby appeals, contending his trial counsel should have conducted additional cross-examination of Detective O'Donnell in an effort to elicit trial testimony, consistent with O'Donnell's deposition testimony, that Muffler had told him Joseph Ashby, Jr. and Thomas looked similar to the robbers. Ashby suggests that additional cross-examination would have weakened the State's evidence pointing to him as one of the robbers.
II. Scope of Review.
Because Ashby alleges a denial of his constitutional right to effective assistance of counsel, our review is de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. Discussion.
To establish a claim of ineffective assistance of counsel, Ashby has the burden to prove that (1) counsel failed in an essential duty, and (2) prejudice resulted from this omission. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Prejudice is shown by 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). The ineffective assistance of counsel claim may be disposed of if Ashby fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
In response to Ashby's claim, the State contends counsel did not fail in an essential duty, because she made a reasonable tactical decision to limit her cross-examination of Detective O'Donnell. See State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999) ("Where counsel's decisions are made pursuant to a reasonable trial strategy, we will not find ineffective assistance of counsel."). The State asserts it is probable that counsel intentionally refrained from pursuing the line of questioning Ashby suggests, because it would have likely brought out additional information that would have strengthened rather than weakened the State's case. The State points out that while Muffler's trial testimony indicated he had made a facial identification of Joseph Ashby, Jr. and Thomas, deposition testimony by Muffler and O'Donnell indicated that Muffler had never in fact seen the faces of the two men who had robbed the Teji Corner Store, and that he had identified Josepsh Ashby, Jr. and Thomas by their clothing and build. The State also contends Ashby has failed to prove he suffered prejudice from the conduct of which he complains.
Upon our de novo review of the record, we conclude Ashby cannot prevail on his ineffective assistance of counsel claim as a matter of law. Even if we assume, without deciding, that trial counsel's performance was inadequate in the manner alleged, the record reveals Ashby cannot establish the prejudice necessary to succeed on his claim.
In addition to the testimony we have already mentioned, other evidence tied Ashby to the robbery. Ashby and Dae were stopped in close proximity to the Ashby, Sr. residence after a neighbor stated that two men had come out of the back of the home and climbed over the fence, and then pointed to Ashby and Dae, stating "there they go right there." When they were apprehended, Ashby and Dae were wearing clothing that belonged to Joseph Ashby, Jr. Their own clothing, which matched that of the robbers, was found in the Ashby, Sr. residence. Antonio Ashby's gray sweatpants, which were found in Joseph Ashby, Jr.'s room, contained not only Ashby's driver's license and keys, but $179 in currency. When Dae was stopped he had $58 in currency. In addition, a loaded .22 caliber pistol was found hidden in the Ashby, Sr. residence. Joseph Ashby, Jr., Thomas, and Joseph Ashby, Sr. all testified that the gun did not belong to them, and that it had not been in the house before Ashby and Dae arrived.
The owner of the Teji Corner Store testified that both robbers wore camoflage masks, and that one wore a red jacket, while the other wore a black jacket. Lewis testified that when he dropped Ashby and Dae off at the Ashby, Sr. residence, Ashby was wearing a red jacket and gray sweatpants, and Dae was wearing a black sweatshirt. A red jacket and a camouflage mask were found under Thomas's bed, and a black sweatshirt and a camouflage mask were found in a trashcan.
When reviewing the totality of the record, it soon becomes clear that there is a substantial amount of evidence tying Ashby to the robbery. In light of that evidence, we cannot conclude further cross-examination of Detective O'Donnell would have created a reasonable probability that the outcome of the trial would have been different. Because Ashby has failed to prove the necessary prejudice, we affirm his judgment and sentence.