Opinion
No. 4-391 / 03-0848.
July 14, 2004.
Appeal from the Iowa District Court for Jasper County, Martha L. Mertz and Peter A. Keller, Judges.
Brian Jay Shepherd appeals his convictions, following jury trial, for robbery in the first degree and absence from custody. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Steve Johnson, County Attorney, and Scott Nicholson, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Brian Jay Shepherd appeals his convictions, following jury trial, for robbery in the first degree and absence from custody. He claims the trial court erred in overruling his motion for new trial and his motion for mistrial based on prosecutorial misconduct. He also claims his trial counsel was ineffective. We affirm his convictions and preserve the ineffective assistance of counsel claims for a possible postconviction proceeding.
I. BACKGROUND FACTS AND PROCEEDINGS.
On January 6, 2003 at approximately 9:00 p.m. the Kellogg Country Store in Jasper County was robbed by two men wearing dark ski masks. Nellie Wertz was working as the store clerk at the time of the robbery. She testified at trial that that the two men rushed into the store demanding money. One of the men was armed and screamed at Wertz, "I want the money and I want the money now, Goddamn bitch." The men took approximately $300 from the cash register in bills no higher than $20, and took the videotape from the security camera. Approximately $25 in change was included in the money taken from the register. Wertz testified that the two stuffed the money into a plastic bag with the words "Thank You" written in red on it. She also stated that she had checked the surveillance equipment earlier and the videotape in the recorder was labeled "EVE" in pink. She further testified that the robber with the gun was wearing a plaid coat, partly grey with a "little red line."
A.J. Winningham, the store's pizza delivery person, returned to the Kellogg Country Store as two masked men ran out of the store, one carrying a white plastic bag. He testified that the men fled heading west in a dark mid-sized car. He also noticed the car did not have any license plates. Winningham followed the vehicle for a short time and later identified a vehicle for the police as the one he had followed. The robbery was reported and descriptions of the men and their vehicle were given to the police. Winningham initially told the officers the suspects were wearing gray jumpsuits. At trial he stated they were wearing light-colored jackets and gloves.
Chief Deputy John Halferty of the Jasper County Sheriff's Department was given a description of the suspect vehicle. Deputy Halferty spotted a car matching the general description of the vehicle involved in the robbery approximately forty minutes after the robbery and stopped it. Halferty recognized the driver as the defendant, Shepherd, and the passenger was later identified as Zachary Van Dusseldorp. Shepherd was wearing blue jeans and a black t-shirt and Van Dusseldorp was wearing blue jeans and red and blue shirt with "Ali" printed on it. Halferty informed the men that he had stopped the car because it matched the description of a vehicle used in a robbery and because it was not displaying a license plate.
Halferty testified at trial that Shepherd consented to a search of the car. He called for backup and another officer arrived and assisted Halferty in the search of the car. During the search the deputies found, among other things, two pair of gloves from the Fort Dodge Correctional Facility, a pair of weight-lifting gloves, a videotape labeled "EVE" in pink, a hand drawn general floor plan similar to the Kellogg Country Store, two dark colored ski masks, a piece of gray hosiery, a plastic sack with the words "Thank You" written in red on it, brown insulated coveralls, a black BB gun, a blue insulated flannel shirt, and $35.64 in change. Shepherd had $107 on his person and Van Dusseldorp had $190 on his person.
At the time of the robbery both Shepherd and Van Dusseldorp were residents of the Fort Des Moines Correctional facility. On the day of the robbery both had signed out at 7 a.m. to work at the Public Safety Commission in Des Moines. Their check-in time was to be 11:00 p.m. and under the terms of their work release neither was to be outside of Polk County.
Winningham and Shirley Barr, another cashier at the Kellogg Country Store, also testified they had seen Shepherd and Van Dusseldorp at the store a week before the robbery on the evening of December 29, 2002, with a female. They both testified that Van Dusseldorp purchased a candy bar, backed up next to some shelving and proceeded to stare at Barr for approximately ten minutes. Shepherd and the female then joined Van Dusseldorp and they left the store. Although at trial Barr was not able to identify Shepherd as the other man in the store on December 29, Winningham did positively identify him as being in the store with Van Dusseldorp that evening.
On January 13, 2003 Shepherd and Van Dusseldorp were charged as co-defendants in a joint trial information with robbery in the first degree, in violation of Iowa Code sections 711.1 (2003) and 711.2, and absence from custody, in violation of Iowa Code section 719.3. Jury trial commenced on April 2, 2003 and the jury found Shepherd guilty as charged. Shepherd filed several motions, including a motion for mistrial and a motion for new trial, both based on a claim of prosecutorial misconduct and a claim the verdict was contrary to the evidence. The court denied all of Shepherd's motions in a written ruling. The court sentenced Shepherd to a term of imprisonment not to exceed twenty-five years on the robbery charge and one year on the absence from custody charge. It ordered that the sentences begin at the expiration of any existing sentence.
The trial information in part charged absence from custody in violation of section 719.3. Similarly, the judgment entry refers to the jury finding Shepherd guilty of "Absence from Custody, a Serious Misdemeanor in violation of Iowa Code Section 719.3." Nevertheless, the judgment entry orders that Shepherd is sentenced for a violation of Iowa Code section 719.4(3), the correct statutory provision for serious misdemeanor absence from custody.
Shepherd appeals contending the court erred in overruling his motions for mistrial and new trial. He also claims his trial counsel was ineffective for failing to lodge a timely objection to the prosecution's closing argument and for failing to move to sever the counts against him and have separate trials on the two counts.
II. MERITS.
A. Motion for New Trial.
Shepherd first claims the court erred in overruling his motion for new trial. More specifically, he argues that because of discrepancies in the testimony of State's witnesses the verdict was contrary to the weight of the evidence. Our scope of review for rulings on motions for new trial is for errors at law. Iowa R. App. P. 6.4. When a defendant argues the trial court erred in denying a motion for new trial based on the claim that the verdict is contrary to the weight of the evidence our standard of review is for abuse of discretion. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003).
The State urges that Shepherd did not preserve error on this claim. The State's position may well have merit. However, assuming, without deciding, that error was preserved, we proceed to address the merits.
Shepherd did file a motion for new trial contending in small part that the verdict was contrary to the evidence. The court denied the motion in a combined ruling on all of Shepherd's motions. The court noted that the motions were based primarily on allegations the prosecuting attorney engaged in prejudicial misconduct during closing arguments, and found that although "certain comments of the prosecuting attorney were inappropriate, there was no prejudice" to Shepherd. It further concluded there was overwhelming evidence against Shepherd and thus there was "more than sufficient evidence" for the jury to find him guilty beyond a reasonable doubt regardless of the prosecutor's inappropriate comments. However, the court did not address or rule on the part of the motion claiming the verdict was contrary to the evidence. Shepherd did file a "Motion for Enlargement of Findings and Conclusions," asserting that a hearing was necessary to make a record for appellate review, but the motion spoke only of the issue of "inappropriate comments" that had been raised by the earlier motions, did not mention the court's failure to determine whether the weight of the evidence was contrary to the verdict, and did not seek a ruling from the court on that issue.
Neither the clothing Shepherd and Van Dusseldorp were wearing when stopped nor other clothing found in Shepherd's car matched A.J. Winningham's description of the robbers' clothes. Nellie Wertz testified the robbers used a handgun, the color of which she believed to be silver, although she was not certain. The handgun the officers recovered from Shepherd's car was black. Winningham had described the robber's car as a four-door. Shepherd's car was a two-door.
Despite these few discrepancies or inconsistencies in statements and testimony by State's witnesses, the overwhelming weight of the evidence pointed to Shepherd's guilt. His vehicle was stopped in the general area of the robbery, about forty-five minutes after the robbery. The car was mid-sized and dark-colored, as described by Winningham. Consistent with information provided to law enforcement, the car had no permanent license plates. There were two men in the car, and there had been two robbers. The robbers had been described as wearing dark ski masks and dark gloves, and dark ski masks and dark gloves were found in the car. A handwritten floor plan, generally consistent with the robbed store, was found in the car. Officers found a handgun in the car. Shepherd and Van Dusseldorp had cash in amounts and denominations consistent with the cash taken from the robbed store. A grocery store sack with the words "Thank you" written in red, identical to the sack the robbers had used to carry the stolen money, was found in the car. Finally, and perhaps most importantly, the officers found in the car a videotape that was apparently the one the robbers had taken from the store's surveillance system during the robbery.
We conclude the trial court did not abuse its considerable discretion in ruling that the jury's verdict was not contrary to the weight of the evidence.
B. Motion for Mistrial.
Shepherd next claims the court erred in denying his motion for mistrial based on prosecutorial misconduct during closing arguments. Closing arguments were not reported, nor did defense counsel make any objections during the prosecution's closing arguments.
There are two requirements to obtain relief on the basis of misconduct in closing arguments. First, the defendant must make a timely and proper objection to the offending argument. Unless objection is made at the time of the argument, the defendant has waived his right to complain. Second, there must be some record of the argument so the appellate court has something to review.
State v. Romeo, 542 N.W.2d 543, 552 (Iowa 1996) (citations omitted). Shepherd's counsel raised the issue of the prosecutor's allegedly improper remarks for the first time in his motions for mistrial and new trial filed days after the jury's verdict had been returned and filed. However, these motions were not a substitute for objecting at the time of the allegedly offending statements, they were thus not a timely objection to the offending argument, and Shepherd has not preserved error on this claim. Id. at 552-53; see also State v. Emery, 230 N.W.2d 521, 525 (Iowa 1975) (finding that defendant waived any objection to prosecutor's allegedly offending comments during final argument when he made no record of such comments, did not object to them when they were made, and raised the alleged error for the first time in motion for new trial, and thus error was not preserved).
C. Ineffective Assistance of Counsel.
Finally, Shepherd claims his counsel was ineffective for failing to lodge a timely objection to the prosecution's alleged improper closing argument and for failing to move to sever the two counts against him.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). In order to prove prejudice, the defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). "[W]e preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Biddle, 652 N.W.2d at 203.
As set forth above, Shepherd can succeed on his ineffectiveness claims only by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark, 602 N.W.2d at 814; Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985). No record has yet been made before the trial court on these issues, trial counsel has not been given an opportunity to explain his actions, and the trial court has not ruled on these claims. Under these circumstances, we pass the issues in this direct appeal and preserve them for a possible postconviction proceeding. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
III. CONCLUSION.
We conclude the trial court did not abuse its considerable discretion in ruling that the jury's verdict was not contrary to the weight of the evidence. We further conclude Shepherd has not preserved error on his claim that the trial court erred in overruling his motion for mistrial. Shepherd's convictions are affirmed. We preserve his specified claims of ineffective assistance of counsel for a possible postconviction proceeding.
AFFIRMED.