Opinion
No. 2-906 / 02-0485
Filed January 29, 2003
Appeal from the Iowa District Court for Woodbury County, Dewie J. Gaul, Judge.
Davey Barnett appeals from his convictions for first-degree burglary, going armed with intent, terrorism, willful injury, assault while participating in a felony, reckless use of a firearm, and felon in possession of a firearm. AFFIRMED.
Martha McMinn, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Thomas Mullin, County Attorney, and Drew Bockenstedt, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Zimmer and Hecht, JJ.
Davey Barnett appeals from his convictions for first-degree burglary, in violation of Iowa Code sections 713.1, 713.3(1)(b) and 713.3(1)(c) (2001), going armed with intent, in violation of section 708.8, terrorism, in violation of section 708.6, willful injury, in violation of section 708.43(2), assault while participating in a felony, in violation of section 708.3, reckless use of a firearm, in violation of section 724.30(2), and felon in possession of a firearm, in violation of section 724.26. We affirm.
I. Background facts and proceedings.
The charges in this case were based on an incident in which Porsha Clayborne was shot in the forearm while in her apartment. A reasonable juror could find the following facts on this record. In the early morning hours of October 17, 2001, brothers Larry and Raymon Davis argued with Aaron Plummer in the hallway of an apartment the Davises shared with Porsha Clayborne and Antoinette Hayes. Plummer then fled, with the Davises in pursuit. When the Davises failed to catch Plummer, they returned to the apartment.
A short time later, Raymon heard voices in the hall and looked through the door's peephole. He saw Plummer and another man standing in the hallway. Plummer did not appear to have a weapon, but Raymon thought the other individual may have had a gun. A shot then was fired and the door was kicked in. Plummer and the other man burst in the apartment, and about that time, Clayborne realized she had been shot. All four people in the apartment recognized Plummer, but they did not know the man with the pistol. That individual then went into Larry Davis' bedroom and pointed the gun at him. Shortly thereafter, the intruders left.
About twenty minutes later, police located Plummer and the defendant, Davey Barnett, together at Plummer's residence. In the residence they also found a mid-length black leather coat and a red t-shirt, which matched the description of the clothes the alleged gunman was wearing. Raymon Davis and Antoinette Hayes later identified Barnett as the gunman.
The State subsequently charged Barnett with multiple crimes based on the events of the morning of October 17. Following a trial, the jury found him guilty of first-degree burglary, going armed with intent, terrorism, willful injury, assault while participating in a felony, reckless use of a firearm, and felon in possession of a firearm. The court sentenced Barnett to twenty-five years imprisonment on the burglary conviction, and ran the rest of his sentences concurrently with that burglary sentence. Barnett appeals.
II. Speedy indictment.
Police arrested Barnett on October 17, 2001, and charged him with burglary, terrorism, going armed with intent, willful injury, and assault while participating in a felony. On October 24, the State filed a trial information which included the original five charges, and added charges of reckless use of a firearm causing bodily injury and possession of a firearm as a felon. That trial information was captioned "State of Iowa, Plaintiff, vs. Aaron Lee Plummer, Davey Len Barnett, Defendant." However, the body of the trial information only goes on to "accuse Aaron Lee Plummer of the crimes . . . ." Each particular count further alleges the crime was committed by "Said Defendant." The minutes of testimony, which were attached to the information, were captioned "State of Iowa vs. Aaron Lee Plummer, State of Iowa vs. Davey Len Barnett." Barnett's name appears throughout the minutes of testimony.
On January 3, 2002, Barnett moved to dismiss the case for the State's alleged violation of the speedy indictment rule, Iowa Rule of Criminal Procedure 2.33(2)( a). In particular, he argued the trial information was insufficient in that it did not identify him as specifically being accused of any crime. The court denied the motion to dismiss and allowed the State to amend the trial information to specifically accuse Barnett of each listed crime. On appeal, Barnett claims the denial of his motion to dismiss was in error.
When an adult is arrested for the commission of a public offense . . . and an indictment is not found against the defendant within forty-five days, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown or the defendant waives the defendant's right thereto.
We will assume for purposes of this opinion that Barnett has preserved this contention for our review. We conclude Iowa Rule of Criminal Procedure 2.33(2)( a) was not implicated in that the original October 24 trial information was sufficient.
Iowa Rule of Criminal Procedure 2.4(7)( d) provides:
No indictment is invalid or insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in a matter of form which does not prejudice a substantial right of the defendant.
Like the trial court, we believe Barnett's argument "elevates form over substance." As noted, the trial information was captioned, in part, "State of Iowa vs. Davey Len Barnett." Moreover, the minutes of testimony were preceded by a similar caption. Those minutes of testimony were replete with references to Barnett's actions on the night in question. Furthermore, on his written arraignment form Barnett admitted to having been charged in the trial information with the crimes of first-degree burglary, going armed with intent, terrorism, willful injury, assault while participating in a felony, reckless use of a firearm, and felon in possession of a firearm.
The purpose of the trial information is to apprise a defendant of the crimes with which he or she is charged so that a defense may be prepared. State v. Grice, 515 N.W.2d 20, 22 (Iowa 1994). The requirement that the State "prove an offense in the manner charged is not an end in itself but merely a means of protecting a defendant from being misled by the charging instrument." State v. Kirby, 391 N.W.2d 243, 245 (Iowa 1986).
We conclude the trial information sufficiently apprised Barnett of the offenses with which he was charged. Grice, 515 N.W.2d at 22. Neither below nor to this court does Barnett make any argument as to how he was prejudiced by the alleged insufficiency in the trial information. He does not assert how his defense was in any way prejudiced or that he was surprised in any fashion by the actual charges. Accordingly, we hold the trial information was sufficient, and thus there was no violation of Barnett's speedy indictment rights.
III. Sufficiency of the evidence.
Barnett asserts that because no reasonable fact finder could have found he was present during the commission of the crime, there is insufficient evidence to sustain his convictions. Because a jury verdict is binding upon us when supported by substantial evidence, our appellate review is limited to the correction of errors at law. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Evidence is substantial if it could convince a rational jury of a defendant's guilt beyond a reasonable doubt. Id.; State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). In making an assessment of the sufficiency of evidence, we are obliged to view the record in the light most favorable to the State. Hopkins, 576 N.W.2d at 377. But we must consider all the evidence in the record, not just the evidence supporting guilt. Id.
We conclude substantial evidence supports the jury's verdicts. Plummer was positively identified as one of the men who entered the Davises' apartment. Plummer's girlfriend, Tracy Ford, testified that shortly after the Davis brothers chased Plummer from their apartment, she saw Plummer and Barnett together walking back toward the Davises' building.
Antoinette Hayes identified Barnett as the gunman both at the police station shortly after the shooting and subsequently at trial. She stated the gunman wore a black leather coat and a red shirt which matched the general description of clothing later located in Plummer's apartment where Barnett was found. Hayes testified she got a good look at the intruder, and that he was close enough that she could have touched him. Clayborne said the gunman wore clothing fitting the general description of apparel found in the residence where Barnett was apprehended. In addition, although Raymon Davis later identified an unrelated man as the shooter, he initially identified Barnett as the assailant, based primarily on the clothes he wore.
IV. Ineffective assistance of counsel.
Barnett asserts various claims of ineffective assistance of counsel. We review claims of ineffective assistance of counsel de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). To prevail on a claim of ineffective assistance of counsel, the applicant must demonstrate both ineffective assistance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
Where the record on direct appeal is not adequate to permit us to resolve the issue, we preserve the defendant's claim for postconviction proceedings so the facts may be so developed. State v. Koenighain, 356 N.W.2d 237, 238 (Iowa Ct.App. 1984). This also gives the allegedly-ineffective attorney the opportunity to explain his or her conduct. State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). However, it is not necessary to determine whether counsel's performance was deficient before examining the prejudice component of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984).
A. Failure to seek suppression of testimony.
Barnett asserts his trial counsel's failure to move to suppress Raymon Davis' and Antoinette Hayes' identification of Barnett as the gunman constituted ineffective assistance of counsel. He claims their identifications were based on impermissibly suggestive procedures and created a substantial likelihood of irreparable misidentification. Both parties contend, and we agree, this issue is susceptible to resolution on direct appeal.
Where the ineffective assistance claim is based on trial counsel's failure to seek suppression of identification evidence, we must first decide if the procedure used by the police was in fact "impermissibly suggestive." State v. Jackson, 387 N.W.2d 623, 631 (Iowa Ct.App. 1986). If we find that it was, we determine if, under the totality of the circumstances, there was "a very substantial likelihood of irreparable misidentification." State v. Newman, 326 N.W.2d 788, 794 (Iowa 1982). It is generally conceded that one-on-one confrontations or "show-ups" between an accused and an eyewitness are inherently suggestive. State v. Salazar, 213 N.W.2d 490, 493 (Iowa 1973). However, our supreme court has recognized that "on-the-scene identification procedures, held shortly after the crime, are not violative of due process unless the confrontation is unnecessarily suggestive." Id. at 493-94.
We conclude Barnett cannot establish counsel breached an essential duty in failing to move to suppress the identification testimony of Antoinette Hayes. Hayes first identified Barnett at the police station in a one-person show-up, which occurred only a few hours after the shooting. We find no factors that lead us to conclude the identification procedure was impermissibly suggestive. See State v. Smith, 182 N.W.2d 409, 411-12 (Iowa 1970) (not impermissibly suggestive where witness viewed defendant in the police station while he was at booking counter).
In addition, as noted above, Hayes was able to get a good view of the gunman when he entered the apartment, and she gave police a fairly accurate description of Barnett. She also was able to describe the clothes the gunman was wearing. Her initial identification of Barnett occurred only a few hours after the incident, when the gunman's description would have been fresh in her mind. When Hayes later identified Barnett at trial, she appeared quite certain of herself. These factors support Hayes' reliability, and lead us to conclude there was not a substantial likelihood of irreparable misidentification such that the testimony should have been suppressed had a proper objection been lodged. State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987). Thus, we conclude trial counsel breached no duty by failing to seek suppression of the identification testimony of witness Hayes.
As for the identification testimony of Raymon Davis, we conclude Barnett cannot establish he was prejudiced by counsel's failure to seek suppression. Davis admitted he did not see the gunman's face and that he based his identification primarily upon the intruder's clothes. Moreover, Davis further conceded that although he first identified Barnett as the assailant, he later identified another individual. Although we may agree Davis' identification was unreliable, we conclude suppression of his testimony would not have changed the verdict due to the other substantial evidence tending to prove Barnett committed the crime. See Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (placing on defendant the burden of showing that the decision reached would reasonably likely have been different absent the errors). Accordingly, Barnett's claim of ineffectiveness must fail because he has failed to demonstrate the requisite prejudice flowing from his counsel's failure to challenge the identification rendered by Davis.
B. Additional claims.
Barnett advances at least five additional claims of ineffective assistance on the ground they are not sufficiently developed in the record and should therefore be preserved for postconviction relief. When challenging the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job. State v. White, 337 N.W.2d 517, 519 (Iowa 1983). The applicant must state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Barnett has not met this standard, and we therefore decline to either address or preserve these additional assertions of ineffectiveness for possible postconviction relief proceedings.