Opinion
No. 4-748 / 03-1659
Filed December 22, 2004
Appeal from the Iowa District Court for Black HawkCounty, K.D. Briner and Bruce Zager, Judges.
Mack Bass appeals from the judgment and sentence entered following his conviction in a bench trial for second degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
The defendant-appellant, Mack Bass, appeals from the judgment and sentence entered following his conviction in a bench trial for second-degree robbery. He contends defense counsel was ineffective in not filing a timely motion to suppress and in not raising, arguing, and preserving for our review the proper grounds for suppression of his confession. We affirm.
Background facts and proceedings.
Police investigation of a robbery at a convenience store led them to the defendant. An arrest warrant was issued, officers picked up the defendant, handcuffed him, and transported him to the police station for questioning. Part way through the interrogation, and before asking the defendant about the robbery, the detective gave this Miranda warning:
Right to remain silent. Anything you say can and will be used against you in a court of law. If you give up that right you do have the right to an attorney. If you cannot afford any attorney one will be appointed to represent you.
After asking the defendant if he understood his rights, the questioning continued. The defendant made certain incriminating statements after the Miranda warning.
Defense counsel filed a motion to suppress two days after the forty-day period for filing a motion to suppress had expired. The motion alleged the defendant was interrogated without benefit of counsel, he did not make a knowing and intelligent waiver of his rights, and any statements obtained were in violation of the defendant's Fifth and Fourteenth Amendment rights. The court held a hearing on the motion and ruled the right to counsel attached when the defendant was picked up by officers. The court concluded the defendant knowingly and intelligently waived his rights after the warning. The court suppressed any statements from the arrest to the warning, but ruled the statements made after waiving his rights were admissible.
The defendant had a trial on the minutes of testimony, was found guilty of second-degree robbery, and sentenced to up to ten years in prison plus a fine and surcharge. The court suspended the fine and surcharge.
Scope and standards of review.
Review of ineffective-assistance-of-counsel claims is de novo. State v. Weatherly, 679 N.W.2d 13, 18 (Iowa 2004). "While generally preserved for postconviction relief, where presented with an adequate record, the merits of the defendant's claim may be resolved on direct appeal." State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004). We deem the record adequate in this case.
To prevail on a claim of ineffective assistance of counsel, a defendant must prove counsel failed to perform an essential duty and prejudice resulted. State v. Martinez, 679 N.W.2d 620, 625 (Iowa 2004). "Failure to prove either of these elements is fatal to a claim of ineffective assistance." State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003).
Discussion.
Untimely filing of motion to suppress. The defendant claims counsel was ineffective in not filing the motion to suppress within the forty-day period provided in Iowa Rule of Criminal Procedure 2.11. The State did not challenge the late filing in district court. The court did not penalize the defendant for the untimely filing, but held a hearing and ruled on the motion. The defendant cannot show any prejudice resulting from the untimely filing.
Grounds raised in the motion to suppress. The defendant claims "the proper grounds for the suppression of the `confession' evidence were not raised, argued and preserved for appellate review." The motion to suppress alleged the waiver of the right to an attorney was not knowing or intelligent. On appeal, the defendant claims his attorney should have asserted he was not informed of his immediate right to an attorney during questioning. He argues the warning, as given, suggests he was not entitled to an attorney until he waived his right to remain silent. The State characterizes this claim as an argument about a nuance in the wording. Regardless of whether the warning was defective or whether the phrasing was a permissible nuance, the defendant still must demonstrate he was prejudiced. That is, that the outcome of the trial likely would have been different. See State v. Oetken, 613 N.W.2d 679, 684 (Iowa 2000).
After a review of the minutes of testimony, without considering any statements made by the defendant while in custody either before or after the Miranda warning, we conclude they contain sufficient evidence to convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. The minutes of testimony put the defendant at the scene at the time of the robbery. He had a gun, as did the robber. He admitted the robbery to Rae Lynn Porter, who drove the car for the defendant and dropped him off at the convenience store. His friend, Darrell Anderson, who was in the store at the time of the robbery identified the defendant as the robber. We conclude the defendant cannot demonstrate any prejudice because the outcome of the trial likely would have been the same even if the challenged evidence had been excluded.
Having determined the defendant has not shown prejudice in his claims of ineffectiveness of defense counsel, we affirm the judgment of the district court.