STATE OF IOWA, Plaintiff-Appellee, vs. DIONE LAMAR GRIGGS, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-555 / 05-1659
Filed October 25, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DIONE LAMAR GRIGGS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,
Judge.
Dione Lamar Griggs appeals his conviction for robbery in the first degree.
AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, William E. Davis, County Attorney, and Kelly G. Cunningham, Assistant
County Attorney, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
2
MILLER, J.
Dione Lamar Griggs appeals his conviction, following jury trial, for robbery
in the first degree.
He contends the trial court erred in concluding an
accomplice’s testimony was corroborated. He also claims his trial counsel was
ineffective for failing to object to certain evidence. We affirm the conviction and
preserve Griggs’s ineffective assistance claim for a possible postconviction
proceeding.
I.
BACKGROUND FACTS AND PROCEEDINGS.
Trina Watkins was fired from a Murphy USA gas station in Davenport
around September 17, 2004, for alleged theft. Colleen France was the training
assistant manager at the station and was present, along with the manager, on
the day Watkins was terminated.
The defendant, Griggs, was Watkins’s
boyfriend at the time and was also present with her at the station on the day she
was fired. When Griggs realized Watkins was being fired he began accusing
France of getting her fired, threatened to get even with France, and stated he
was going to pursue legal action against Murphy USA.
On the morning of October 17, 2004, DeShon Collins and his girlfriend
Jeanne Sindt were staying at a residence with Griggs and Watkins. Griggs woke
Collins up that morning at approximately 9:00 a.m. Collins told Sindt the two of
them were leaving but did not tell her where they were going. According to
Collins, Griggs woke him up to talk to him about Watkins being fired and wanting
to get back at the gas station personnel by robbing the business. Based on
information from Watkins, Griggs told Collins that between 10:00 a.m. and noon
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France would be taking a large sum of money to deposit at a bank located in a
nearby Hy-Vee grocery store. He also knew what type of vehicle France would
be driving.
Collins testified that he and Griggs drove Collins’s car to the gas station
and waited for France to leave with the deposit. He also stated that he and
Griggs both took Ecstasy and cocaine, which he had supplied, while they waited
for France to leave. When France’s relief person arrived France left the station
with the deposit. Watkins was familiar with this deposit practice as she had been
the relief person until fired. According to Collins, he and Griggs then followed
France to the Hy-Vee store. As they arrived France was already getting out of
her car, so Griggs told Collins to “hurry up and rob her” and handed him a gun.
Collins tried to rob France in the Hy-Vee store but his attempt was
thwarted by several nearby citizens and Hy-Vee employees. He was eventually
brought to the ground outside the store. As he was being held down he suffered
an asthma attack. He drew the gun and pulled the trigger in an attempt to get the
people off him but the gun was not loaded. As Collins was being restrained,
Collins’s tan car began speeding towards him and the group of people on top of
him. Several witnesses identified the driver of the tan car, their description of
which matched Collins’s car, as a black male. At least one witness described the
driver as being older than Collins. Collins testified that he left his cell phone in
the car when he went to rob France.
Sometime between noon and 1:00 p.m. Watkins called Sindt asking her
for help to retrieve Collins’s car. The two found the car at a Taco Bell and Sindt
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drove it to an apartment complex. Sindt testified that Griggs was waiting for them
at the apartment complex. They left Collins’s car at the complex and the three
departed together in Watkins’s car. After Collins was arrested, he initially told the
police Corey Thomas was his accomplice in the robbery but later named Griggs
as the accomplice. He stated they did it because Griggs was upset over Watkins
being fired and wanted to get even.
On May 3, 2005, the State charged Griggs, by trial information, with
robbery in the first degree, in violation of Iowa Code sections 711.1 and 711.2
(2003); assault while participating in a felony, in violation of sections 708.1 and
708.3; and conspiracy, in violation of sections 706.1(1)(a) and 706.3. Collins and
Watkins were also charged and both later entered pleas of guilty to lesser
charges. 1 As part of a plea agreement Collins pled guilty to theft in the first
degree, assault while participating in a felony, and possession of cocaine with
intent to deliver. Also as part of the plea agreement Collins was to testify for the
State at Griggs’s trial.
The case proceeded to jury trial and Collins testified for the State. Griggs
moved for judgment of acquittal at both the close of the State’s case and at the
close of all the evidence. He argued in the initial motion only that the State failed
to prove he committed the offenses beyond a reasonable doubt. In the renewed
motion he argued that the testimony of Collins, an accomplice, was not
corroborated by other evidence tending to connect Griggs with the robbery. The
trial court denied the motions. In overruling the renewed motion the court found
1
Collins was initially charged with two additional counts, felon in possession of a firearm
and assault while displaying a weapon.
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“there is some testimony from witnesses other than [Collins] which the jury could
find credible. . . .”
The jury found Griggs guilty as charged. The court merged the assault
and conspiracy convictions with the first-degree robbery conviction and
sentenced Griggs to an indeterminate term of imprisonment not to exceed
twenty-five years on the robbery conviction.
Griggs appeals contending his counsel was ineffective for failing to object
to the admission of Watkins’s cell phone records from Iowa Wireless both for lack
of foundation and as hearsay.
He further claims the trial court erred in
concluding there was independent evidence corroborating Collins’s accomplice
testimony.
II.
MERITS.
A.
Corroboration of Accomplice Testimony.
Griggs contends Collins’s testimony was not independently corroborated
as required by Iowa Rule of Criminal Procedure 2.21(3). Rule 2.21(3) provides,
in relevant part:
A conviction cannot be had upon the testimony of an accomplice or
a solicited person, unless corroborated by other evidence which
shall tend to connect the defendant with the commission of the
offense; and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.
“The existence of corroborating evidence is a legal question for the court.” State
v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997). Once the legal adequacy of the
corroborating evidence is established, the question of the sufficiency of the
evidence is for the jury to determine. Id. Because Griggs challenges the trial
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court's determination that corroborating evidence existed to warrant submission
of the case to the jury, our review of this issue is for correction of errors at law.
Id.; Iowa R. App. P. 6.4.
Evidence asserted as corroborative of an accomplice's testimony
will be sufficient to create a jury question if that evidence
corroborates some material aspect of the accomplice's testimony
tending to connect defendant to the commission of the crime and
thereby supports the credibility of the accomplice.
State v. Brown, 397 N.W.2d 689, 694-95 (Iowa 1986). Corroborative evidence
may be direct or circumstantial.
Bugely, 562 N.W.2d at 176.
Corroborative
evidence need not be strong and need not be entirely inconsistent with
innocence. Id. A small amount of corroborative evidence is all that is required.
State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998). A combination of
circumstances, singularly unpersuasive, may be sufficient to entitle a jury to
conclude the accomplice's testimony has been corroborated. State v. Willman,
244 N.W.2d 314, 315 (Iowa 1976). The State need not establish corroborative
evidence beyond a reasonable doubt. State v. King, 256 N.W.2d 1, 10 (Iowa
1977).
Colleen France testified at trial that Griggs blamed her for getting Watkins
fired from the gas station and threatened he would get even with her. She also
stated that Watkins would know the procedure for making deposits and know
about the relief person who would come and stay at the station while she went
and made the deposit because Watkins was that relief person before Watkins
was terminated. Finally, France testified that only employees would have firsthand knowledge of this procedure.
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Jeanne Sindt also testified at trial.
She stated she was staying with
Collins in the same duplex as Griggs and Watkins on the morning of October 17,
2004. Sindt testified that Griggs came and woke Collins up and Collins told her
he was leaving with Griggs. Witnesses from the Hy-Vee store testified that a car
meeting the description of Collins’s car sped away as Collins was being held
down and the driver was a black male who looked older than Collins. 2 See State
v. Palmer, 569 N.W.2d 614, 616 (Iowa Ct. App. 1997) (stating independent
testimony the defendant was seen in the company of the accomplice shortly
before the crime corroborated the accomplice’s inculpatory testimony); see also
State v. Hoeck, 547 N.W.2d 852, 859 (Iowa Ct. App. 1996) (stating testimony of
an independent witness that certain accomplices were together in the
defendant’s residence where plans were made to commit a later crime
corroborated testimony of accomplices).
Sindt further testified she got a phone call from Watkins between 12:00
and 1:00 p.m. that same day and Watkins told her they had to go pick up
Collins’s car. Watkins came and picked up Sindt, they went to Taco Bell to get
Collins’s car, and Sindt then drove Collins’s car to an apartment complex where
Griggs was waiting for them. They left Collins’s car at the apartment complex
and all three left in Watkins’s car.
Finally, it appears the robbery occurred around noon both because France
testified she left the gas station to make the deposit around 11:45 and because
the 911-emergency call reporting it came into the Davenport Police Station at
2
According to the presentence investigation report in this case, Collins was
approximately twenty-five years of age and Griggs thirty-three years of age at the time of
the robbery.
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12:04 p.m. Records from Watkins’s cell phone, which were admitted at trial,
showed that starting at 12:06 p.m. on October 17, 2004, a series of phone calls
between Collins’s cell phone and Watkins’s cell phone began.
Officer Mike
Martin of the Davenport Police Department testified at trial that Collins was
“absolutely” already being detained by the group of people outside Hy-Vee, if not
in custody, by 12:08 p.m. and “wasn’t in any kind of position” to be making any
calls after that time. Watkins received a call from Collins’s cell phone at 12:14
p.m. and over the course of the next two plus hours Watkins received six more
calls from that phone, several additional attempts were made to contact Watkins
from that phone, and Watkins called that phone two times. During this time
period Collins was being arrested, taken to the hospital for his asthma attack,
and then taken to the Davenport police station.
Accordingly, the testimony of France, Sindt, Martin, and others who
witnessed the crime dovetails with and corroborates Collins’s testimony. More
specifically, the testimony set forth above corroborates Griggs’s accompaniment
of Collins; Griggs’s motive for the crime; how Griggs would have the knowledge
necessary to commit the crime; Griggs’s opportunity to commit the crime; and
Griggs’s presence in the car used in, and at the scene of, the crime.
We
conclude the trial court did not err in determining the record contained evidence
independent of Collins’s accomplice testimony sufficient for submission of the
case to the jury.
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B.
Ineffective Assistance.
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).
Griggs claims his trial counsel breached an essential duty to his prejudice
by not objecting to the admission of State’s exhibit five, the Iowa Wireless cellular
telephone records of Trina Watkins. More specifically, he argues trial counsel
should have objected to the records for lack of foundation and as hearsay.
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).
“[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.
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No record has yet been made before the trial court on this issue, trial
counsel has not been given an opportunity to explain his actions, and the trial
court has not ruled on this claim. Under these circumstances, we pass the issue
in this direct appeal and preserve it 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 err in determining there was
independent evidence sufficient to corroborate Collins’s accomplice testimony
and denying Griggs’s motion for judgment of acquittal.
Griggs’s claim of
ineffective assistance of counsel is preserved for a possible postconviction
proceeding.
AFFIRMED.
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