Opinion
No. 2-299 / 00-1016.
Filed May 15, 2002.
Appeal from the Iowa District Court for Polk County, D.J. STOVALL, Judge.
Defendant appeals from his conviction of two counts of second-degree robbery, contending the evidence is insufficient to support his conviction and his trial counsel was ineffective. AFFIRMED.
Herbert Rogers of Rogers Law Office, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Defendant Daniel Ockenfels was convicted of two counts of robbery in the second degree in violation of Iowa Code sections 711.1 and 711.3 (1999). He was charged after robberies that occurred on December 7 and 10 of 1999 at what was then the Mercantile Bank located at 2426 Hubbell in Des Moines, Iowa. Defendant contends through a pro se brief filed with permission and a brief filed by appellate counsel that (1) there is not substantial evidence to support his conviction, and (2) that his trial attorney was ineffective by failing to move to suppress identification evidence, obtain additional evidence, and by failing to object to certain hearsay evidence. We affirm.
From the evidence a reasonable juror could have found the following facts. On December 7, 1999 at about two p.m., Tammy Olson, a bank employee, saw what she believed to be a man wearing a hooded sweatshirt, dark sunglasses, gloves and a bandana across the lower part of his face approach her. She said he had one hand in a pocket and a plastic grocery sack in the other hand. He said "no funny stuff" several times and reached across the counter as she opened a cash drawer. Olson emptied her cash drawer. The robber told another teller to empty her drawer also, which the teller did. The robber put the money in a sack and ran out of the bank. An alarm button was pushed and police arrived. The bank was locked and the customers and employees were interviewed by police and asked to fill out cards describing the robber.
Olson testified she had a pretty good view of the robber's hair, wide forehead, big pointy nose, bangs and high cheekbones, as his head was a few inches from her as he reached behind the counter. Olson identified defendant as the robber from a photo array at a deposition and at trial. Rachel Miller, also working at the time, identified the robber's sweatshirt as red, noted he wore a black scarf on his face, carried a plastic grocery bag, had hair as well as part of his head and his nose sticking out of the hood of the sweatshirt.
At 4 p.m. on December 10, 1999, Olson and Miller were again both at the bank working when a second robbery occurred. Olson was talking to Tricia Maher, an assistant manager at the bank, when Maher saw a man outside the bank pull up the hood on a red sweatshirt he was wearing, put on dark sun glasses and put a towel around his face. Olson told Maher the man was the same person who robbed the bank earlier that month. The man went to the counter and said "no funny stuff." He became upset and jumped up to kneel on the front counter. Olson told the tellers to empty their drawers and give him what he wanted. He put the money in a bag and left. Again police were called, the bank was locked, the employees and customers filled out cards with their description of the robber and the police interviewed them all. Mr. Maher remembers the robber's eyes and said he had dark hair. She selected defendant from a photo array and identified him at a deposition and at trial. Not 100% certain of her identification in the beginning, she said after reflection she was comfortable with it. Miller noted the person in the second robbery was dressed similarly to the first. She said she focused on the robber's nose and got a good look at his face when the terry cloth slipped. She stood close to him as she handed him money. She identified defendant as the robber at a deposition and at trial. Ms. Karnatz was working as a teller at the time of the second robbery. She said the robber said, "This is a hold up. This is a robbery. No funny business." She said he had a hand in his pocket and demanded money from her and another teller. She also said the robber grabbed the money from her as she was trying to put it in his bag. She said when he jumped on the counter the cloth on his face fell down and she got a good look at his face and facial hair. She said she remembered his nose, hair and cheekbones. She identified defendant as the robber at a deposition and at trial.
Alea Barongan was a teller at the drive-up window that afternoon and was told to get her money because the bank was being robbed. She said the robber wore a maroon sweatshirt and had a white handkerchief over his face. She said the cloth on his face fell down briefly and she saw his unusual nose and facial hair. She identified the defendant at trial and in her deposition said she recognized his voice.
Two women at the drive through teller lane realized the bank was being robbed. They said they saw a man with a towel over part of his face crouched on the counter. They nearly hit the robber when they drove forward as he fled from the bank. He had dropped the cloth from his face and one woman recalled he had a small mustache. They saw him get into an older white pickup truck with two men and drive past them. They also said the truck had body rust and a blue stripe. They identified a pickup truck in a photograph introduced at trial as similar to the one they saw leaving the bank. One woman identified the defendant as the robber and the second was pretty sure it was the same person.
A witness who had a relationship with William Lockray testified Lockray and defendant were friends. The witness identified the white pickup truck which was in the photograph identified by the women at the drive though as being similar to the one they saw the robber leave in as being her truck. The witness said Lockray used the truck in December of 1999. She further testified that Lockray and defendant were in Des Moines on December 10, 1999, the date of the second robbery. She further testified she was told by a bank employee friend that Lockray deposited $5600 in a bank account the witness shared with Lockray at a credit union.
Defendant contends there was not substantial evidence to support a finding of an assault or a threat as required under the robbery statute and that there is not substantial evidence to support the finding he was the robber. The State concedes that error was preserved on the issue of assault. The issue of a threat was not submitted to the jury so it is a non-issue. We address the issue of whether there is substantial evidence to support the assault because it is preserved for review. We address the issue of whether there is substantial evidence to support a finding defendant was the robber without deciding the issue of whether it was preserved for appellate review.
We review a challenge to the sufficiency of the evidence on assigned error. State v. McPhillips, 580 N.W.2d 748, 753 (Iowa 1998); see also State v. Phams, 342 N.W.2d 792, 795 (Iowa 1983). We view the evidence in the light most favorable to the State, including all legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record. Id. We consider all of the evidence in the record — not just the evidence that supports the verdict. Id. Additionally, to the extent the appeal involves issues of statutory interpretation, our review is for correction of legal error. State v. Knowles, 602 N.W.2d 800, 801 (Iowa 1999).
Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997). In deciding whether the evidence is substantial, we view the evidence in the light most favorable to the State and make all reasonable inferences that may fairly be drawn from the evidence . See State v. Romeo, 542 N.W.2d 543, 545 (Iowa 1996). The jury is free to reject certain evidence, and accept other evidence. See State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). Unless we conclude the record lacks substantial evidence, "we are bound by the jury's finding of guilt." Romeo, 542 N.W.2d at 545.
Defendant contends that there is insufficient evidence to support the assault element of robbery under section 711.1(1). Iowa Code section 711.1 provides:
A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person's escape from the scene thereof with or without the stolen property:
1. Commits an assault upon another.
2. Threatens another with or purposely puts another in fear of immediate serious injury.
3. Threatens to commit immediately any forcible felony.
To convict the defendant of robbery the State has to prove he had the specific intent to commit a theft and that in carrying out his intent he committed an assault.
We look to Iowa Code section 708.1 in applying the assault alternative of robbery under Iowa Code section 711.1(1). State v. Heard, 636 N.W.2d 227, 230 (Iowa 2001); State v. Ceaser, 585 N.W.2d 192, 194 (Iowa 1998). Assault requires an overt act. State v. Smith, 309 N.W.2d 454, 457 (Iowa 1981). The section 708.1(2) definition of assault applicable here requires an act "intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act." This definition requires an intent to achieve some additional consequence so as to qualify as a specific-intent crime. Heard, 636 N.W.2d at 232 (Iowa 2001). Looking at all of the facts it could be inferred that through the robber's action, both verbal and nonverbal, he intended to place the employees and customers in the bank in fear of immediate physical contact that would be painful, injurious, or offensive if they did not comply with his demand of money. See id. Defendant made demands, sought to hide his appearance, and had his hand in his pocket which could be taken for his having a gun. There was sufficient evidence to support defendant's conviction for robbery under the assault alternative of section 711.1(1). We affirm on this issue.
There also is substantial evidence to identify defendant as the robber. While we recognize as defendant argues there are some inconsistencies in the testimony of the State's witnesses as to defendant's clothing and body characteristics as well as their identification of persons other than defendant as the robber, the inconsistencies are not so serious as to render the testimony not credible. We affirm on this issue.
Defendant contends that his trial attorney was not effective in violation of his Sixth Amendment right to effective counsel. U.S. Const. amend. VI; see also Iowa Const. art. I, § 10. We usually preserve ineffective assistance of counsel claims for postconviction relief proceedings but will review those ineffective assistance of counsel claims on direct appeal where the evidence available is sufficient to establish the validity of the claim. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). Defendant contends his constitutional rights were violated thus we evaluate his attorney's total representation. "This is equivalent to a de novo review." Morgan v. State, 469 N.W.2d 419, 426 (Iowa 1991).
The question is did counsel's conduct so undermine the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result? See State v. Tryor, 431 N.W.2d 11, 18 (Iowa Ct. App. 1988).
Defendant first contends that counsel should have moved to suppress evidence that he was identified by eyewitnesses prior to trial because the techniques used to obtain the identification were suggestive.
In considering an undue suggestiveness claim, we employ a two-part analysis. First, we decide whether the identification procedure was impermissibly suggestive. State v. Birch, 479 N.W.2d 284, 286 (Iowa 1991). Second, if we find the procedure was "impermissibly suggestive, we determine whether, under the totality of the circumstances, an identification adhered to by the witness at the time of trial is irreparably tainted." State v. Webb, 516 N.W.2d 824, 830 (Iowa 1994) (quoting State v. Birch, 479 N.W.2d at 286). Even if the pretrial identifications were impermissibly suggestive identification procedures, defendant must show that the procedures gave rise to "a very substantial likelihood of irreparable misidentification." Webb, 516 N.W.2d at 830; State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987). Unless this is shown, the identification evidence and its shortcomings or credibility are for the jury to weigh. See Webb, 516 N.W.2d at 830; State v. Neal, 353 N.W.2d 83, 87 (Iowa 1984). Even if a pretrial identification is obtained by an illegal procedure, "the same witness may nevertheless identify a defendant at trial if such identification has an independent origin." State v. Ash, 244 N.W.2d 812, 814 (Iowa 1976); accord State v. Sanders, 312 N.W.2d 534, 540 (Iowa 1981); State v. Canada, 212 N.W.2d 430, 432-33 (Iowa 1973). Due process is not violated "so long as the identification possesses sufficient aspects of reliability." Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140, 149 (1977).
Relevant factors for evaluating the reliability of identification testimony include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Manson, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154.
Defendant argues the witnesses did not have a reasonable opportunity to view the robber when the holdups occurred as the first robber wore a bandanna covering his or her face and in the second a terry cloth covered his or her face. Defendant also argues there were inconsistencies in the testimony of the witnesses. He points out that two bank employees who identified him also identified other men. He points to the fact one employee identified a man she followed to a convenience store as the robber and that man could not have been defendant as he was in jail at that time and another employee identified a man who went through the drive-up at the bank.
The defendant has not shown that the evidence introduced created a substantial likelihood of irreparable misidentification. See Webb, 516 N.W.2d at 829; State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). The witnesses, among other things, saw the robbery taking place, some were in close proximity to the robber. The fact their view of his face was limited by the covering he wore was known to the jury as were the inconsistencies in their testimony. The evidence was admissible. It was for the jury to determine the weight it should be given. The trustworthiness of the eyewitnesses' identification was properly submitted to the jury for consideration. See Webb, 516 N.W.2d at 829; Rawlings, 402 N.W.2d at 407; Neal, 353 N.W.2d at 87. Counsel did not breach an essential duty by failing to move to suppress the identification testimony. See Webb, 516 N.W.2d at 830. Because the evidence was admissible, defendant cannot show his trial attorney was ineffective in failing to object to it. We affirm on this issue.
Defendant next contends that his trial attorney should have (1) subpoenaed a videotape from the convenience store showing the bank employee following the person she thought was a suspect, (2) should have investigated the identification procedures used by the detectives, and (3) should have subpoenaed the identification evidence. The record before us is insufficient to address these claims and they are preserved for postconviction procedures.
Defendant further claims that his trial counsel was ineffective in allowing the witness to testify that a bank teller told her defendant's friend Lockray deposited $5600 after December 10, 1999 in the joint account Lockray had with the witness. The State does not claim the evidence was properly admitted but argues that there is no reasonable probability defendant would have been acquitted on either robbery charge had his attorney been successful in objecting to the evidence.
While there is substantial evidence to support the convictions it is entirely based on eyewitness testimony that at some point is contradictory and questioned by identifying witnesses misidentifying others as the robber. We cannot on this record determine if trial counsel had a reason for not objecting. We preserve this issue for postconviction proceedings.
Defendant further contends that his trial attorney should have presented evidence that defendant's DNA was not on the towel left at the bank and worn over the robber's face in the second robbery. Defendant notes that the robber would have had to breathe and talk through it. The State concedes that this issue should be preserved for postconviction proceedings, we agree and preserve this issue for postconviction proceedings. We affirm.
AFFIRMED.