Opinion
No. 2-423 / 01-1231
Filed October 16, 2002
Appeal from the Iowa District Court for Story County, William Pattinson, Judge.
Defendant appeals from conviction and sentence for robbery in the first degree. AFFIRMED.
Michael B. Oliver and Jeanne K. Johnson, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Christen C. Odell, Assistant Attorney General, Stephen Holmes, County Attorney, and Angelina Thomas, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan, and Eisenhauer, JJ.
Chad Shearon appeals from his conviction and sentence for robbery in the first degree, in violation of Iowa Code section 711.1 and 711.2 (1999). Shearon argues there was insufficient evidence in the record to support his conviction and that trial counsel was ineffective in a number of particulars. We affirm.
I. Background Facts and Proceedings . Following a bench trial, Chad Shearon was convicted of robbery in the first degree for the armed robbery of the Ames Video Update store, which occurred on September 26, 2000, shortly after 11:00 p.m. Although no physical evidence linked Shearon to the crime, Beth Burton testified she and Shearon were two of the four people directly involved in the robbery, along with a woman named Jennifer Kerby and Burton's boyfriend, Brent Higgins. Although Burton was allowed to plead to a reduced charge in exchange for her trial testimony, that testimony largely mirrored her earlier statements, including her initial confession on October 3, 2000, which she gave after voluntarily turning herself in to police. The primary distinction between her trial testimony and her confession was that she initially identified Shearon only as "Chad" and could not recall his surname.
Burton testified that she, Shearon, Higgins, and Kerby drove to Ames from Des Moines on the night of September 26, in Higgins' car, consuming alcohol on the way in order to calm their nerves. She testified in detail as to her knowledge about the robbery and her role as the "get-away" driver, while Higgins, Kerby, and Shearon committed the actual robbery. She also testified to other pertinent details, including the fact the others brought special clothing to wear during the robbery — "sweat outfits" and "maybe jeans" as well as "masks and maybe pantyhose." Burton further testified about the police stop of their vehicle for a speeding violation, which followed the robbery.
The two Video Update employees present during the robbery also testified. The female employee described the robbers as two men and one woman wearing baggy clothes and ski masks, the taller of the two males being approximately six feet tall, "skinny," and wearing a dark or black sweatshirt. She stated the shorter male called the taller male "Chad," then hesitated, "as if he had slipped up and it made him nervous." The male employee also described the robbers as wearing dark-colored zip-up hooded sweatshirts, baggy jeans and ski masks. Both employees heard the woman referred to as "Bonnie."
This witness admitted, however, that in her statement to the police she said she was not sure if she had heard the name "Chad" or "Chris."
Among the State's other witnesses was the deputy sheriff who stopped Shearon for speeding. The deputy's version of the stop was consistent with that offered by Burton, including identifying Higgins as the vehicle's owner. The deputy also testified Shearon was wearing a black, long-sleeved hooded shirt and had the odor of alcohol on his breath and that Shearon's license indicated he was six feet tall and one hundred seventy-five pounds.
After the close of the State's case and the trial court's denial of his motion of a judgment of acquittal, Shearon rested his defense without putting on any evidence or testimony. In finding Shearon guilty of robbery in the first degree, the court relied heavily on the testimony of Burton, whom it found to be credible "based not only upon observations made of the witness in court," but also the fact that her trial testimony "merely reiterated her confession given voluntarily on October 3, 2000, . . . without promise or prospect of concessions or leniency." The court also found Burton's testimony to be sufficiently corroborated, based on the female employee's testimony about the shorter male calling the taller male "Chad," the matching physical and clothing descriptions, the confirmation that Shearon had been drinking, and "[f]inally, and most compelling in this regard, there is independent evidence that Mr. Shearon was seen in the company of the other perpetrators shortly after the crime was committed."
After the trial court rendered its finding of guilt, Shearon moved in arrest of judgment, for a new trial, and for the reopening of the record. He attacked Burton's credibility and alleged Kerby had made a statement in open court, during her own plea proceedings, that Shearon had not participated in the robbery. The court agreed to receive additional testimony upon the latter issue. At the hearing, which occurred some six months after the trial, Kerby testified she had participated in the robbery with Higgins, Burton, and a man named Curtis Patterson, and that Shearon was not at the video store that night. Kerby also stated they were in Shearon's company after the robbery because Higgins felt impaired and, rather than risk detection by police, decided to tell Shearon they were intoxicated, and ask him to drive them back to Des Moines.
During cross-examination the State elicited the fact that Kerby's plea was based on an admission she had served as a look out while Higgins, Burton, and Patterson entered the video store. The State established that Kerby had three plea proceedings because her failure to admit to guilt and/or knowledge stymied her first two attempts to render a guilty plea. The State also pointed up inconsistencies in Kerby's statements during those proceedings.
The State offered rebuttal testimony from Higgins, Curtis Patterson, and Amy Wassom, Burton's sister and Patterson's former girlfriend. Higgins testified the robbery was committed by himself, Burton, Kerby and Shearon, with Kerby, rather than Burton, being the female who entered the store. He also stated Kerby was referred to as "Bonnie," while he was referred to as "Clyde," and confirmed that during the robbery he called out Shearon's first name. Wassom and Patterson both testified they were with each other on the night of the robbery.
Shearon then called Stephanie Asher as a surrebuttal witness. Asher testified she and Shearon had driven to Ames on September 26 and that Shearon had been in her presence that night from 9:00 p.m. to midnight, during which time he consumed alcoholic drinks. She stated they met Higgins and "a couple" of other people around 11:30 or 11:45 p.m. and Shearon left with Higgins and the others in order to drive them home. Asher admitted she had originally told police she and Shearon had gone to Ames that night with her roommate to visit another friend, but testified she had simply mixed up the nights, because she had been to Ames a number of times that week.
The court found neither Kerby nor Asher to be credible, but did believe Wassom's claim that Patterson had been with her on the night of the robbery. Finding the testimony of both Burton and Higgins to be sufficiently corroborated, the court determined the new evidence did not create reasonable doubt as to Shearon's guilt. Shearon appeals.
II. Scope of Review . We review the district court's denial of a motion for a judgment of acquittal, based upon the sufficiency of the evidence, for correction of errors at law. State v. Adney, 639 N.W.2d 246, 250 (Iowa Ct.App. 2001); State v. Palmer, 569 N.W.2d 614, 616 (Iowa Ct.App. 1997). Ineffective assistance of counsel claims, which raise constitutional issues, are reviewed de novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002).
III. Sufficiency of the Evidence . The district court's finding of guilt is binding upon appeal unless the record lacks substantial evidence in support of the finding. State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001). In making such a determination, we view the entirety of the record, but do so in the light most favorable to the State. Id. We must uphold the guilty finding if the record contains evidence sufficient to convince a rational trier of fact that Shearon is guilty beyond a reasonable doubt. Id.
Shearon attacks the sufficiency of the evidence in several ways. He argues Beth Burton's testimony was not sufficiently corroborated and points to a number of reasons why her testimony was simply not credible. He also points to a number of exculpatory items, from the lack of physical evidence connecting him to the robbery to the testimony of Kerby and Asher to a number of items implying collusion or a conspiracy to implicate him in the robbery while keeping suspicion from the true fourth participant, Curtis Patterson.
This case clearly turns on the testimony of Beth Burton. Because Burton participated in the robbery, her testimony must be corroborated to eliminate the suspicion normally aroused by an accomplice's testimony. State v. Jones, 511 N.W.2d 400, 404 (Iowa Ct.App. 1993). However,
[c]orroboration need not be strong. Any evidence tending to connect the defendant with the commission of a crime supports the credibility of accomplice testimony and is sufficient. It, further, need not confirm every material fact testified to by the accomplice. Nor need it confirm all the elements of the crimes charged. It must only be supported in some material fact tending to connect the defendant to the crime charged.
Id. (citations omitted).
As the trial court detailed in its findings, Burton's testimony was corroborated in a number of particulars, including the video store employee overhearing the shorter male robber use the name "Chad," the similarities in the physical descriptions, and the fact that shortly after the crime occurred, Shearon was witnessed in the company of two women and a man positively identified as Higgins. Taking all of the court's findings at face value, it seems clear Burton's testimony was sufficiently corroborated. See State v. Horstman, 222 N.W.2d 427, 432 (Iowa 1974); State v. Palmer, 569 N.W.2d 614, 616 (Iowa Ct.App. 1997); State v. Jones, 511 N.W.2d 400, 405 (Iowa Ct.App. 1993). Shearon argues, however, the corroborating testimony was not sufficiently credible, reliable or accurate, or was susceptible to an interpretation different than that given it by the district court.
Shearon's argument effectively ignores the reality that it is the function of the fact finder to sort through the evidence and make credibility determinations. State v. Maring, 619 N.W.2d 393, 395 (Iowa 2000). It is only where testimony is "so impossible, absurd, and self-contradictory that the court should deem it a nullity." State v. Mitchell, 568 N.W.2d 493, 503 (Iowa 1997). While the record may reveal certain inconsistencies, inaccuracies, and open questions in regard to the corroborating testimony, we cannot say these things are so significant as to warrant a setting aside of the trial court finding on corroboration.
As Burton's testimony was sufficiently corroborated, Shearon's argument regarding the general sufficiency of the evidence must fail. First and foremost, this matter turns on witness credibility. The trial court made clear and detailed credibility findings in favor of Burton and Wassom and against Asher and Kerby, and we see no basis upon which to disturb these findings. See Mitchell, 568 N.W.2d at 503. Although the record does bear out the existence of inconsistent, contradictory and exculpatory evidence, a number of other items point clearly and directly at Shearon's guilt. The weight to be accorded to each item of evidence is a matter for the fact finder. See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (noting the fact finder is "free to believe or disbelieve any testimony as it chooses and to give weight to the evidence as in its judgment such evidence should receive"). When the entirety of the record is viewed in the light most favorable to the State, the evidence is sufficient for a rational trier of fact to find Shearon guilty beyond a reasonable doubt.
IV. Ineffective Assistance of Counsel . For trial counsel to be deemed ineffective, his performance must have fallen below the normal range of competency, and the inadequate performance must have prejudiced Shearon's case. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 674, 693 (1984). Prejudice is shown by demonstrating a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). Such claims are ordinarily reserved for postconviction proceedings, to allow trial counsel an opportunity to defend and explain his actions. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, where the record is adequate to resolve the issue, we address these types of claims on direct appeal. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
A. Cross-Examination of Kerby. Shearon first focuses on the State's cross-examination of Kerby's post-trial testimony and argues counsel was ineffective for failing to object to the cross-examination on three grounds: the State's impeachment of the factual basis of Kerby's plea amounted to prosecutorial misconduct, the State's questioning was inappropriately directed at an unaccepted guilty plea, the use of which was prohibited by Iowa Rule of Criminal Procedure 2.10(5), and the cross-examination constituted improper use of a prior inconsistent statement. 1. Prosecutorial misconduct. Shearon's prosecutorial misconduct argument seems to be aimed at Kerby's identification of Patterson as the fourth robber. However, Kerby's plea was not conditioned upon the naming of her accomplices, and the factual basis for her plea was dependent upon evidence the crime was committed, not the identity of her accomplices. See State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) ("The record to support a factual basis for a guilty plea . . ., as a whole, must disclose facts to satisfy the elements of the crime. . . . [T]he trial court . . . must only be satisfied that the facts support the crime, `not necessarily that the defendant is guilty.'"). Moreover, Shearon has failed to cite any legal authority in support of his proposition that impeachment of a prior plea constitutes prosecutorial misconduct. See Iowa R.App.P. 6.14(1)( c).
The State argues Shearon has waived these claims, as the arguments in his initial brief made little or no effort to identify the specific questions complained of, and failed to reference the pages of the appendix upon which those questions could be found. In his reply brief Shearon relies on his citation to the cross-examination within the statement of the case and maintains "it was not necessary" to cite to any specific page of the transcript, as his arguments "clearly go to the impropriety of the entirety of the State's cross-examination and trial counsel's failure to object thereto. . . ." This is not only a misstatement of the rules of procedure, see Iowa R.App.P. 6.14(1)( e), but presupposes an obligation on this court to parse every word uttered by the prosecution during cross examination. This we will not do. We will, however, address any questions or issues clearly implicated by the arguments of either party.
Shearon asserted at oral argument, for the first time, an additional claim that he was not called or allowed to be called as a witness in his own defense and requested that this issue be preserved for postconviction proceedings. We find this issue was not properly raised or argued and was accordingly waived. See Iowa R.App.P. 6.14(1)( c).
2. Failed plea discussions. Shearon's claim that the State's questioning violated Iowa Rule of Criminal Procedure 2.10(5), which prohibits admission of a failed guilty plea or plea discussion in any criminal or civil action, is without standing. The purpose of the privilege created by rule 2.10(5) is "to encourage plea discussions involving the defendant without concern about the peril of subsequently using these discussions against the defendant." State v. Hovind, 431 N.W.2d 366, 369 (Iowa 1988) (emphasis added). Assuming the State's questioning was directed at the type of failed plea or plea discussion protected by the rule, the prohibition against the use of such a plea or discussion inures to the person attempting to make the plea, and not a third party. See id.; Iowa R. Evid. 5.410 ("evidence of [a failed plea] is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions . . . ").
We note Kerby ultimately and successfully entered a guilty plea to a lesser charge.
3. Prior inconsistent statements. We find it difficult to address the merits of Shearon's third complaint about the cross-examination, that it comprised improper use of prior inconsistent statements, as Shearon makes no clear attempt to state how the use of the inconsistent statements was improper. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (finding a defendant must state the specific way in which counsel's performance was deficient and identify how competent representation probably would have changed the outcome). Assuming Shearon is arguing counsel should have objected to the cross-examination as being beyond the scope of the direct questioning by his own counsel, he does not state how allowing such questioning over a defense objection would have constituted an abuse of discretion and thus prejudiced his defense. See State v. Bloomer, 618 N.W.2d 550, 554 (Iowa 2000) ("The trial court enjoys broad discretion with respect to the scope of cross-examination and the admissibility of evidence."). We find this claim is too general in nature to allow for either direct review or preservation for postconviction proceedings. See Dunbar, 515 N.W.2d at 15.
B. Rebuttal Testimony. Shearon next complains counsel should have objected to the rebuttal testimony offered by Higgens, Wassom, and Patterson, as it was "merely cumulative" of the State's case in chief at trial. Although he claims their testimony "added nothing further" to the State's case, each witness contradicted new evidence, introduced by Shearon, to the effect that Patterson was the fourth perpetrator. That is the very definition of rebuttal evidence:
Rebuttal evidence is evidence that explains, repels, controverts, or disproves evidence produced by the opposing party. The trial court has considerable discretion in admitting rebuttal evidence, including the discretion to include evidence that could have been offered as a part of the case in chief.State v. Weaver, 608 N.W.2d 797, 806 (Iowa 2000). Moreover, Shearon has wholly failed in his obligation to state how exclusion of the evidence would have altered the outcome of trial. See Dunbar, 515 N.W.2d at 15.
C. Sportmart Robbery. Shearon also claims counsel should have objected to evidence that the Sportmart in Des Moines was robbed by Higgins, Burton, and two other men. However, Shearon has failed to include in his argument any citation to the record, or any authority other than general citations to the standard applied in ineffective assistance of counsel claims. See Iowa R.App.P. 6.14(1)( e). Even if we were to overlook this flaw and reach the merits of his claim, Shearon has failed to establish a reasonable probability that exclusion of the evidence would have led to a not guilty finding.
The record clearly established Shearon was not involved in the Sportmart robbery. To the extent Shearon still was subject to an inference of "guilt by association," we note the prejudicial effect of evidence is reduced in the context of a bench trial. State v. Casady, 491 N.W.2d 782, 786 (Iowa 1992). Significantly, there is no indication in the district court's rulings that Higgins and Burton's involvement in the Sportmart robbery in any way impacted its finding of Shearon's involvement in the Video Update robbery.
D. Staging a Defense. Lastly, Shearon argues his counsel was ineffective for failing to call his girlfriend, Stephanie Asher, as a defense witness during trial. We normally would be inclined to preserve this matter for possible postconviction proceedings to allow counsel an opportunity to explain his conduct. Atley, 564 N.W.2d at 833. We need not do so in this case, however, as Shearon has failed to establish the requisite prejudice.
Shearon argues that since Asher was called as a surrebuttal witness, her alibi testimony was "substantially weakened and rendered ineffective in creating reasonable doubt." However, he does not specifically indicate Asher would have testified differently at trial than she did at the post-trial hearing. More importantly, the district court, which served as the original fact finder, had an opportunity to view Asher and assess her credibility. It clearly found that credibility to be lacking, and there is not a reasonable probability the court would have found Asher's testimony to be so credible and compelling as to create a reasonable doubt as to Shearon's guilt, simply because her testimony occurred at trial.