Opinion
No. 2-308 / 01-0925
Filed October 16, 2002
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Defendant appeals from his convictions for first degree robbery, first degree burglary, and second-degree kidnapping. AFFIRMED.
Linda Del Gallo, State Appellate Defender, James Tomka, Assistant Appellate Defender, and Ron Bailey, Student Legal Intern, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Heard by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Andrew P. Jackson appeals from his convictions for first degree robbery, first degree burglary, and second degree kidnapping. He contends he was denied effective assistance of counsel for failing to make a motion to suppress the eyewitness identification, failing to present expert witness testimony regarding eyewitness identification, and failing to objection to testimony. He also argues the district court improperly admitted hearsay evidence. We affirm.
I. Background Facts and Proceedings. Late on the night of June 7, 2000, Heather Clair heard intruders enter the apartment she shared with her boyfriend, Andrew Overbeck. One of the intruders wore a hat with false dreadlocks, and another wore a gorilla mask. A third man, wearing a hockey mask, remained on the balcony. The men brandished weapons and demanded money. When informed the couple had no money, the man in the hat drove Overbeck to his father's home where Overbeck promised he could obtain money. The man in the gorilla mask stayed with Clair, eventually removing his mask in her presence for a ten to fifteen minute period.
When Overbeck reached his father's home, he called the police and informed them of the situation. The vehicle Overbeck was traveling in was stopped, and the perpetrator accompanying him was arrested. Meanwhile, a group of police officers arrived at the apartment where Clair was being held. The man with the hockey mask was captured, but the man in the gorilla mask escaped.
During an interview with the police on June 8th, Clair described the man in the gorilla mask as African-American, six feet tall, and slender. She stated that he wore gloves and slipper-type shoes, and was carrying a small black automatic weapon. She did not identify his eye color or hairstyle.
Office David Seybert attempted to locate the man in the gorilla mask. However, no identifiable fingerprints were obtained from the gorilla mask, the recovered weapons, or the burglars' vehicle. Officer Seybert was able to learn through interviews the "street name" for the missing man was "Whomp." With this information, Officer Seybert was able to obtain a photograph of Andrew Jackson.
Officer Seybert gave Jackson's photograph to Sergeant Allen Tunks for the purpose of compiling a photo array. Jackson's photograph was in position number two of the six-picture array. Sergeant Tunks presented the array to Clair, asking her if she recognized anyone. He cautioned her, "the person involved in this case may or may not be in this photo array." Clair then identified Jackson without hesitation.
Jackson was charged with first-degree robbery, first-degree burglary, and second-degree kidnapping. During trial, Jackson attempted to offer into evidence a Des Moines Register opinion column about the reliability of eyewitness identifications. The district court sustained the State's objection to admitting the article, but allowed its use to test Sergeant Tunk's knowledge of photo identification procedures. At the conclusion of the trial, the jury found Jackson guilty on all three counts.
II. Hearsay. Jackson argues the district court erred in allowing Officer Seybert's testimony that his investigation yielded the street name "Whomp," which belongs to Jackson. We review the district court's ruling on Jackson's hearsay objection for corrections of errors at law. See McElroy v. State, 637 N.W.2d 488, 493 (Iowa 2001). Admission of hearsay evidence is prejudicial to the nonoffering party unless the contrary is shown. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998).
At trial, the following exchange took place:
Q. Did you attempt then to find out who the other person was that you did not take into custody?
A. Yes. By talking and interviewing people, we tried to come up with names. And the best we got were street names.
Q. Did you get a street name?
A. Yes.
Q. What was the street name?
MR. MORSE: Objection, hearsay.
THE COURT: Response?
THE WITNESS: Whomp — I'm sorry.
THE COURT: Your response?
MR. VOOGT: Maybe I can follow up with another question.
Q. With the information you received, the street name, did you do anything?
A. We followed up on the name that was given.
MR. VOOGT: It's not offered for the truth of the matter asserted.
THE COURT: Overruled. The answer will stand.
Q. Detective Seybert, based on that information, did you attempt to discover who belonged to that street name?
A. Yes, I did.
Q. At some point did you receive a photograph of that person?
A. Yes.
Q. Who did you obtain a photograph of? A. Andrew Jackson, Jr.
Jackson contends the district court erred in overruling his hearsay objection to the testimony regarding his alleged street name.
When an out-of-court statement is offered, not to show the truth of the matter asserted but to explain responsive conduct, it is not regarded as hearsay. State v. Mitchell, 450 N.W.2d 828, 832 (Iowa 1990). For a statement to be admissible as showing responsive conduct, however, it must not only tend to explain the responsive conduct but the conduct itself must be relevant to some aspect of the State's case. Id. We find Officer Seybert's testimony was not offered to show the truth of the matter asserted, but rather to explain how Jackson's photo was obtained for the array. Had the State not presented evidence that the photo was obtained during the investigation, the jury would have been left to infer Clair was being shown photos of random men meeting her description in hopes she would recognize one. The district court did not err in overruling Jackson's objection.
III. Ineffective Assistance of Counsel. To succeed with a claim of ineffective assistance of counsel, a claimant must prove two elements. McBride, 625 N.W.2d at 373. First, he must show that counsel failed to perform an essential duty. Id. Second, he must prove he was prejudiced by counsel's error. Id. We can affirm on appeal if either element is lacking. Id. A presumption exists that counsel is competent and that counsel's conduct falls within a wide range of reasonable professional assistance. Burgess v. State, 585 N.W.2d 846, 847 (Iowa Ct.App. 1998). We will not second-guess reasonable trial strategy. Id. The second prong of the test is satisfied if a reasonable probability exists that, "but for the counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1994)).
We review claims of ineffective assistance of counsel de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Only in rare cases will the trial record alone be sufficient to resolve the claim. Id. "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct.App. 1999) (citing State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)).
Jackson contends his counsel was ineffective in failing to move for suppression of Clair's identification of him. He argues suppression was warranted because his photo was shown to Clair in a photo array, rather than sequentially, the identification procedure did not comply with several principles of the American Psychology-Law Society (APLS), and the identification was cross-racial. Jackson also argues counsel was ineffective in failing to call an expert witness regarding eyewitness identification. Finally, Jackson contends any testimony regarding how the Officer Seybert came to obtain a photo of him was objectionable as both hearsay and a violation of Iowa Rule of Evidence 5.403.
Because the record is not fully developed regarding these matters, we preserve Jackson's claims of ineffective assistance of counsel for postconviction relief.
AFFIRMED.
Vaitheswaran, J., concurs; Hecht, J., dissents.
I respectfully dissent. Over Jackson's objection, the State offered and the district court received a law enforcement officer's explanation of why Jackson's photograph was included in a photographic array. Although the majority correctly notes our supreme court has approved admission of evidence offered to explain responsive conduct if such conduct is relevant to some aspect of the State's case, the rule of admissibility has its limits. Evidence of responsive conduct should not be received if it is offered in an attempt to put inadmissible evidence before the jury. State v. Mitchell, 450 N.W.2d 828, 832 (Iowa 1990).
It was clearly appropriate for the State to offer evidence that the victim identified Jackson from a photographic array. The central issue in the case was, after all, whether Jackson was accurately identified by the victim. However, there was no legitimate non-hearsay reason for the State to explain why Jackson's picture was included in the photo array. The jury was not called upon to decide whether the subjects of the array were properly chosen. The majority suggests that, if deprived of the State's reason for including Jackson's photograph in the array, the jury would have been left to infer the victim "was being shown photos of random men meeting her description in hopes she would recognize one." I disagree. I find it highly unlikely that the jury would question the inclusion of Jackson's photo in the array because he was charged with the crime.
I conclude the State's real objective in offering the evidence of the law enforcement officers' "responsive conduct" was to disclose to the jury that an unidentified person or persons "on the street" implicated Jackson in the crime. Such flagrant use of hearsay identification evidence is not justified by Mitchell. Because I find no legitimate non-hearsay reason for admission of the challenged evidence, I conclude the district court erred in overruling Jackson's hearsay objection.
Admission of hearsay evidence is prejudicial to the nonoffering party unless the contrary is shown. State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996). We apply a harmless error analysis. State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct.App. 1999). Because the error was not of constitutional dimension, the inadmissible hearsay evidence should be weighed against the properly admitted evidence to determine if its admission impacted the jury's verdict. Id. "Admission of hearsay alone is not a valid ground for reversal in cases where the State upholds its burden of proving the challenged evidence did not impact upon the jury's verdict of guilty." Rice, 543 N.W.2d at 887. Because I believe the hearsay evidence bearing upon the central issue of defendant's identification impacted the jury's verdict, I would reverse and remand for new trial.