Opinion
No. 4-305 / 03-0849
Filed July 14, 2004
Appeal from the Iowa District Court for Jasper County, Martha L. Mertz, Judge.
Defendant-appellant Zacary Van Dusseldorp appeals his conviction and sentence, following a jury trial, for first-degree robbery and absence from custody. AFFIRMED.
Richard Phelps II, Mingo, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Steve Johnson, County Attorney, and Scott Nicholson, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Miller, JJ.
Defendant-appellant Zacary Van Dusseldorp appeals his conviction and sentence, following a jury trial, for first-degree robbery and absence from custody, in violation of Iowa Code sections 711.1, 711.2, and 719.4 (2003). On appeal defendant claims (1) the evidence was insufficient to support the first-degree robbery conviction; (2) the district court erred in overruling his motion to suppress; (3) prosecutorial misconduct warrants a new trial; (4) he was rendered ineffective assistance of counsel for several reasons; and (5) his case should be remanded for resentencing. We affirm but preserve two of defendant's claims of ineffective assistance of counsel for possible postconviction proceedings.
In the entry of judgment, the crime of absence from custody was listed as a section 719.3 violation. Defendant does not contest this apparent error.
I. BACKGROUND FACTS AND PROCEEDINGS
On January 6, 2003 at approximately nine o'clock in the evening, the Kellogg Country Store in Kellogg, Jasper County, Iowa, was robbed. According to the store clerk, Nellie Wertz, two men charged into the store, one of them holding a gun and shouting for money. Wertz testified that one robber went to the back room while she helped the other robber, who was holding a gun on her, empty the money from the cash register into a white plastic grocery bag with "Thank you" written on it in red. Wertz testified she believed the robber who went into the back room took a surveillance camera tape which was in the video cassette recorder prior to the robbery. Wertz further testified she had checked the recorder at the beginning of her shift and confirmed that a tape with the word "Eve" written in pink on its label was inside. Wertz estimated the robbers took between $200 and $300, and that they took about twenty to twenty-five dollars in coins. The bills were in denominations no higher than twenty dollars. The robbers left the store and headed north and west. Wertz testified the robbers were both wearing dark ski masks, either navy blue or black. She also testified the robber with the gun was wearing a plaid coat, partly gray with a "little red line."
Andrew Winningham testified he pulled into the Kellogg Country Store at the time of the robbery and saw two people in ski masks and gloves running out of the store. One was carrying a white bag. His written statement was that the robbers were wearing gray jumpsuits. His testimony at trial was that they were wearing light-colored jackets. Winningham followed the robbers a short time. He was later called upon to identify the vehicle defendant and Brian Shepherd were found in approximately forty-five minutes later. Winningham identified the car as the car he had chased. According to Deputy Fred Oster's report, Winningham had described the car as a dark mid-size four-door but had provided "no license plate information." The car defendant was stopped in had two doors, and it lacked regular license plates but had a paper plate.
Deputy Sheriff John Halferty stopped defendant's car at 9:44 p.m. Shepherd was driving, and defendant was in the passenger seat. Shepherd was wearing a black t-shirt and blue jeans, and defendant was wearing a red and blue shirt with "Ali" on it and blue jeans. Halferty testified Shepherd consented to a search of the car. Items found in the car included a hand-drawn floor plan similar to the Kellogg General Store floor plan; a VCR tape with the word "Eve" written in pink; a black ski mask; a blue ski mask; a blue insulated flannel shirt; a pair of brown insulated overalls; a black BB gun; two pairs of Fort Dodge Correctional Facility gloves; weightlifting gloves; a white plastic grocery sack with "Thank you" written in red; and miscellaneous coin change totaling $35.64. Also found in the blue ski mask was a piece of hosiery. Shepherd had $107 in change on his person, and defendant had $190.
At the time of the robbery both Shepherd and defendant were residents of the Fort Des Moines Correctional Facility, and both had signed out at 7 a.m. to work at Public Safety Commission in Des Moines. Their check-in time was to be 11 p.m. Neither had permission to be in Jasper County.
Winningham and Shirley Barr, a cashier at the Kellogg Country Store, testified to seeing defendant and Shepherd at the store a week before the robbery on the evening of December 29, 2002. Winningham and Barr testified defendant purchased a candy bar, then backed up next to some shelving and stared at Barr for about ten minutes until Shepherd and another woman came into the store and bought a food item, whereupon the three left together.
There was testimony that defendant may have received a paycheck which he did not turn in to the correctional facility as a possible explanation of the money found on his person and in the car.
II. ANALYSIS
A. Sufficiency of the Evidence
Defendant first argues there was insufficient evidence to support the verdict of first-degree robbery. In making this argument, defendant argues the eyewitness accounts of the robbery do not match the evidence used to convict him.
Scope of review.
We review challenges to the sufficiency of the evidence for errors at law. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). We will uphold a verdict if it is supported by substantial evidence, or evidence sufficient to convince a rational factfinder, beyond a reasonable doubt, of defendant's guilt. Id. We will review the entire record in the light most favorable to the State, drawing any and all legitimate inferences that can be reasonably deduced from the evidence. State v. Williams, 574 N.W.2d 293, 296 (Iowa 1998).
Merits.
Although all accounts of the clothing the robbers wore and the car they drove were not entirely consistent with defendant's and Shepherd's attire and car at the time they were stopped, the conviction for first-degree robbery was supported by substantial evidence to prove defendant's guilt beyond a reasonable doubt. The robbers wore dark ski masks, and defendant and Shepherd had two dark ski masks in their car. One of those ski masks had hosiery inside it. The surveillance tape the robbers took was in their car, as was a hand-drawn floor plan similar to the floor plan of the Kellogg Country Store. There was evidence defendant had been seen a week earlier apparently studying the store. It was estimated the robbers took twenty to twenty-five dollars in coins, and defendant and Shepherd had thirty-five dollars in coins in their car. It was estimated the robbers took between $200 and $300 in bills. Shepherd had $107 on his person, and defendant had $190 on his person. The same kind of white "thank you" bag used to take money from the store was found in their car. There were reports the robbers wore gloves, and defendant and Shepherd had two pairs of gloves in their car. The facts that defendant and Shepherd were not in gray jumpsuits as the robbers were initially reported to be, and that there were varying descriptions of the getaway car does not outweigh the substantial evidence above implicating defendant and Shepherd in the robbery.
B. Motion to Suppress
Defendant also argues the trial court erred in denying his motion to suppress the evidence found inside the car on the basis that it was obtained in an illegal search. Defendant claims any consent which Shepherd may have given to a search was not free and voluntary due to the officers' claimed show of force when Shepherd was allegedly giving consent.
Scope of review.
Our review of the district court's denial of defendant's suppression motion is de novo. Turner, 630 N.W.2d at 606. We "make an independent evaluation of the totality of the circumstances as shown by the entire record." Id. (quoting State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993)). We give deference to fact-findings of the district court due to its opportunity to observe the witnesses and assess their credibility, but we are not bound by those findings. Id.
The Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution protect citizens against "unreasonable searches and seizures," in order to safeguard the privacy and security of individuals against arbitrary invasion by government officials. State v. Carlson, 548 N.W.2d 138, 140 (Iowa 1996) (citing Michigan v. Tyler, 436 U.S. 499, 504, 98 S. Ct. 1942, 1947, 56 L. Ed. 2d 486, 495 (1978)). In deciding the constitutionality of a search under the Fourth Amendment, a two-step analysis is used. State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995). First, the defendant must show he had a legitimate expectation of privacy in the area searched. Id. (citing United States v. Salvucci, 448 U.S. 83, 92, 95, 100 S. Ct. 2547, 2553, 2554, 65 L. Ed. 2d 619, 628, 630 (1980)). Second, if the defendant had a legitimate expectation of privacy, a court must then decide whether the State unreasonably invaded the protected interest. Id. Analysis.
Chief Deputy John Halferty testified at the suppression hearing that he stopped Shepherd's car because he did not see license plates on it and because there had been an armed robbery in the area within the preceding hour. Defendant does not challenge the stop of the car, only the search. The State argues defendant, as a passenger in the car, has no legitimate Fourth Amendment interest to challenge the search. As authority, the State points to Halliburton, 539 N.W.2d at 342, where the supreme court held that passengers in a car who do not own the car have no expectation of privacy and consequently no Fourth Amendment right upon which they may challenge the validity of the search of the car. The record shows that Shepherd was the driver, he claimed ownership of the car, and he was in possession of the purchase agreement. Defendant does not claim any ownership interest in the car. Under Halliburton, defendant has no valid claim that the search of the car was in violation of his Fourth Amendment rights.
There is a conflict between the date of the purchase agreement (November 22, 2002) and the date of the temporary license plate (January 3, 2003).
The State concedes this argument was not made before the district court and was not part of the district court's order denying defendant's motion to suppress. Under State v. Henderson, 313 N.W.2d 564, 565 (Iowa 1981), the question of defendant's legitimate expectation of privacy inheres in his Fourth Amendment challenge. We therefore are in compliance with DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002), in affirming on this ground.
C. Prosecutorial Misconduct.
Defendant next claims the trial court erred in denying him a new trial due to prosecutorial misconduct.
Scope of review.
We review claims of prosecutorial misconduct for abuse of discretion. State v. Jacobs, 607 N.W.2d 679, 689 (Iowa 2000). To prevail on a claim of prosecutorial misconduct, a defendant must establish that misconduct occurred and that he was so prejudiced by the misconduct that he was deprived of a fair trial. Id. Analysis.
According to the trial court's order addressing defendant's posttrial motion in arrest of judgment, motion for a new trial, and motion for judgment notwithstanding the verdict, closing arguments were not reported, and no one objected during the closing arguments. Under State v. Romeo, 542 N.W.2d 543, 552 (Iowa 1996) (holding that in order to preserve a claim of prosecutorial misconduct during closing argument, there must be timely and proper objections and some record of the argument so the appellate court has something to review), this claim is not preserved.
It appears the defendant made an attempt to preserve the record by filing a statement of evidence under Iowa Rule of Appellate Procedure 6.10(3). Defendant served his statement on the county attorney, but the statement was not adopted by the district court. There is no reliable record from which to review the substance of this claim.
D. Ineffective Assistance of Counsel
Scope of Review.
Defendant additionally raises several claims of ineffective assistance of counsel. We review ineffective assistance of counsel claims de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To establish a claim of ineffective assistance of counsel, defendant must demonstrate, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from that failure. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). We may dispose of the claim if defendant fails to demonstrate either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). To sustain his burden of proof with respect to the duty element, defendant must overcome the strong presumption that counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. Smothers, 590 N.W.2d at 722. Miscalculated trial strategies and mere mistakes in judgment generally do not rise to the level of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). To sustain his burden of proof with respect to the prejudice element, defendant must prove there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id.
The trial record is often inadequate for us to resolve claims of ineffective assistance of trial counsel raised on direct appeal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). For this reason, we often preserve defendant's ineffective assistance of counsel claims for postconviction relief proceedings to allow for the development of a record on trial counsel's performance. Id. Failure to object.
Defendant first claims his counsel was ineffective for failing to object to statements by the prosecutor during closing arguments which he claims constituted prosecutorial misconduct. The trial court stated in its ruling denying defendant's posttrial motions that "certain comments of the prosecuting attorney were inappropriate." Apart from defendant's version of those statements, there is no record from which to make an independent evaluation as to whether those statements were made and their appropriateness. Further, there is no record of counsel's reasons for failing to object. Although the trial court found the statements would not have been prejudicial, it is difficult to make the requisite analysis on appeal without a record of the claimed inappropriate statements. We preserve this claim for possible postconviction proceedings. See Berryhill, 603 N.W.2d at 245.
Defendant claims the prosecutor improperly (1) expressed his personal belief in the credibility of witness Wertz; (2) told the jury "not to let the defendants go play golf with O.J."; (3) appealed to the sympathy of the jury by referring to the sniper case in Washington D.C. and referring to his granddaughter having "sniper days" off from school rather than snow days; (4) stated he hoped small children would not find the gun used in the robbery lying in a ditch; and (5) told the jury to disregard evidence and testimony offered by the State's witnesses.
Failure to move to sever charges.
Defendant next claims his counsel was ineffective for failing to move to sever his robbery charge from his absence from custody charge. Iowa Rule of Criminal Procedure 2.6(1) provides in relevant part,
Two or more indictable public offenses which arise from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan, when alleged and prosecuted contemporaneously, shall be alleged and prosecuted as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise.
Defendant argues trial counsel made no attempt to sever the charges, and that it was highly prejudicial to try his robbery charge together with the charge that he had escaped from custody. We preserve this claim for possible postconviction proceedings. See Berryhill, 603 N.W.2d at 245.
Failure to contest the traffic stop.
Defendant next argues his counsel should have sought to suppress the evidence used against him on the basis that it was obtained as the result of an illegal traffic stop. Defendant argues Deputy Halferty's reason for stopping the car, specifically that it had no license plates, was pretextual, and that his real purpose for stopping the car was to investigate the robbery. As defendant argues Deputy Halferty would have had no reason to suspect Shepherd and defendant were involved in the robbery, the stop was therefore invalid, and his counsel should have moved to suppress on that ground.
Pretextual stops are permissible in cases where an officer observes an actual traffic violation. State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996). In State v. Jackson, 315 N.W.2d 766, 767 (Iowa 1982) an officer stopped a vehicle based on the belief that the vehicle failed to display its plates. During the stop the driver pointed out to the officer that he was properly displaying a paper license plate. Jackson, 315 N.W.2d at 767. The supreme court determined evidence obtained as a result of that stop was admissible because the stop was "not a random or selective stop," even though it had occurred due to the officer's mistaken belief that the car did not have license plates. Id. Under the holding in Jackson, we dismiss this claim of ineffective assistance of counsel, as a traffic stop is not invalid if it is either pretextual, or based on a mistaken belief that the car has no license plates. Counsel is not required to raise a meritless claim. See State v. Jackson, 387 N.W.2d 623, 632 (Iowa Ct.App. 1986).
Failure to contest identification as impermissibly suggestive.
Defendant next argues counsel was ineffective in failing to object to the identification of the car as impermissibly suggestive. Under State v. Bruns, 304 N.W.2d 217, 219 (Iowa 1981), our supreme court determined that the pretrial identification of an "item of physical evidence," specifically a car, did not implicate the due process rights of the defendant, and thus could not be deemed "impermissibly suggestive." Winningham's identification was properly subject to cross-examination at trial. We dismiss this claim, as a claim of ineffective assistance cannot be predicated upon counsel's failure to assert a meritless claim. See Jackson, 387 N.W.2d at 632.
Failure to raise all pertinent issues in posttrial motions.
Defendant claims his counsel was ineffective for failing to contest the sufficiency of the evidence in the posttrial motions. Given the above discussion as to the overwhelming sufficiency of the evidence, we decline to preserve this claim. Counsel is not required to raise a meritless claim. Id.
E. SENTENCE
Defendant's final claim on appeal is that his mandatory minimum sentence should be reduced from eighty-five percent to seventy percent based upon new legislation. Defendant was sentenced on April 28, 2003. Defendant refers to an amendment he claims was effective July 1, 2003. Under Iowa Code section 4.13(3) the amendment, revision, or re-enactment of a statute does not affect a penalty or punishment incurred prior to the enactment of the amendment. Defendant's request for resentencing is without merit.