Opinion
No. 3-028 / 02-0785
Filed February 12, 2003
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge.
Glen Long appeals his conviction of robbery in the first degree, theft in the first degree, assault while displaying a weapon, and going armed with intent. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, William Davis, County Attorney, and Joseph Grubisich, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Glen Long appeals his conviction of robbery in the first degree in violation of Iowa Code sections 711.1 and 711.2 (2001), theft in the first degree in violation of Iowa Code sections 714.1(1) and 714.2(1), and going armed with intent in violation of Iowa Code section 708.8. We affirm.
I. Background Facts and Proceedings.
Long was charged with robbery in the first degree, theft in the first degree, assault while displaying a weapon, going armed with intent, and being an habitual offender based on allegations that he robbed a convenience store and threatened a store clerk with a knife. The record indicates Amy Barton was working at a Davenport convenience store on September 7, 2001. Around 7:30 p.m., a man entered the store, threatened Barton with a knife, and demanded money from the cash register. After taking money from the cash register, Barton's assailant drove away in a white Chevy.
Barton gave police investigators a description of the vehicle and its license plate number. She also described her assailant as a black man wearing a gray shirt, blue hat, and khaki shorts. Barton identified Long as her assailant out of a photo array the day after the robbery and again at trial. She testified that there was no doubt in her mind that Long was the man who robbed her. The jury convicted Long of first-degree robbery, first-degree theft, assault while displaying a weapon, and going armed with intent.
No judgment was entered on the assault while displaying a weapon conviction because Iowa Code § 708.2(3) states the subsection does not apply if § 708.8 (going armed with intent) applies.
Long's motions for new trial and in arrest of judgment were denied. Judgment was entered in accord with the jury's verdicts, resulting in this appeal. On appeal, Long argues the district court erroneously denied his motion for new trial. Long also contends he was denied effective assistance of trial counsel.
II. Motion for New Trial.
We review a denial of a motion for new trial for abuse of discretion. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). The court is slower to interfere with the grant of a new trial than with its denial. Iowa R.App.P. 6.14(6)( d). Trial courts have wide discretion when deciding motions for new trial. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Under Iowa Rule of Criminal Procedure 2.24(2)( b)(6), in considering a motion for new trial, a court may weigh the evidence and consider the credibility of witnesses, and a new trial should be granted if the court concludes that the verdict is contrary to the weight of the evidence. Ellis, 578 N.W.2d at 658-59. A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. Id.
The trial court's ruling on the motion for new trial included the following:
Although the Court does not discount the inconsistencies in the identification testimony or the other inconsistencies in the evidence presented to the jury, it is ultimately the jury's obligation to make credibility determinations, and the Court is reluctant to set aside those credibility determinations in the absence of convincing evidence that the jury's verdict — or that the evidence preponderates strongly against the jury's verdict. In this case, the Court is unable to say that the total evidence preponderates strongly against the jury's verdict and for that reason, the motion in arrest of judgment and the motion for new trial will be denied . . . .
Long argues the trial court applied the incorrect standard in ruling on his motion for new trial. At the outset of the ruling the court correctly identifies the standard as, "whether the jury's verdict is against the credible weight of the evidence." The court took the appropriate considerations into account. The court specifically considered conflicting identification evidence. The court continued,
If in fact the standard of the weight of the credible evidence is comparable to the standard of the manifest weight of the evidence . . . then the Court is unable to conclude that the jury's verdicts are against the credible weight of the evidence.
(Emphasis added.) Finally, the court determined that the evidence did not require him to grant a new trial: "the Court is unable to say that the total evidence preponderates strongly against the jury's verdict." This conclusion complies with the finding required by Ellis: a new trial is to be granted when "a greater amount of credible evidence supports one side of an issue or cause than the other." Ellis, 578 N.W.2d at 658 (citing Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 658 (1982)).
Long also argues that the trial court failed to properly weigh the credibility of Barton's pretrial and trial identifications. We disagree. The record indicates Barton immediately identified Long as her assailant when presented with a photo array the day following the robbery and she positively identified Long at trial. While Barton acknowledged that she might have been incorrect about Long's facial hair description and height, she was positive about the general appearance of his face. She never claimed to be giving a precise height of the suspect; in fact, throughout the investigation and trial, she indicated she was not good at estimating heights. Barton's description of Long generally matched that of other eyewitnesses. The trial court did not abuse its discretion by denying Long's motion for new trial.
III. Ineffective Assistance of Counsel.
To establish a claim of ineffective assistance of counsel, Long has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). To establish the requisite prejudice, Long must show that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceedings below would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. Atley, 564 N.W.2d at 833. However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
Long first cites trial counsel's failure to object to testimony concerning the method used to generate the photo line-up from which Barton identified him. Long's theory supporting exclusion of this evidence is premised on the obvious inference that he and the others depicted in the line-up must have had prior police contact or a criminal record or their photographs would not be included in the police department's data bank. We agree with the State that the prejudicial inference upon which Long relies is too speculative to support exclusion of the relevant testimony at trial. See State v. Nebinger, 412 N.W.2d 180, 193 (Iowa Ct.App. 1987). We also fail to see in what way Long was prejudiced by counsel's failure to address the presence of facial hair in Long's photo during cross-examination of the police officer who prepared the photo array. The record indicates Barton was cross-examined on the discrepancy between her original description indicating her assailant had no facial hair, and her identification of Long's photograph with facial hair. Even if the officer acknowledged this discrepancy, it would not have resulted in the exclusion of Barton's pretrial identification of Long in the photo array.
Long next claims counsel was ineffective for failing to call three alibi witnesses. According to Long, these witnesses would have testified he was gainfully employed at the time of the robbery. Noticeably absent from Long's version is any claim that he was somewhere else or with anyone else at the time of the robbery. In the absence of such specificity, Long cannot establish either counsel's breach of an essential duty or any resulting prejudice.
Long also requests preservation of other ineffective assistance of counsel claims for postconviction relief, including failure to investigate other alibi witnesses, failing to prepare for trial, failing to conduct an adequate voir dire, and failing to establish a juror was the prosecutor's neighbor and prejudiced in favor of the State as a result. These claims are too general to address them now or preserve them for postconviction relief. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). We affirm.