DEROME ROBERTSON, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-845 / 05-1855
Filed December 28, 2006
DEROME ROBERTSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Larry J. Conmey,
Judge.
Derome Robertson appeals from the district court’s ruling denying his
application for postconviction relief. AFFIRMED.
Philip B. Mears, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney
General, Harold Denton, County Attorney, and Todd Tripp, Assistant County
Attorney, for appellee State.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MAHAN, P.J.
Derome Robertson appeals from the district court’s ruling denying his
application for postconviction relief. We affirm.
I. Background Facts and Proceedings
On November 14, 1996, two men with ski masks over their faces entered
a Kum & Go store in Cedar Rapids, threatened the clerk with a gun, took money
from the cash register, and fled. Within minutes of the robbery report, police
found Robertson, Christopher Kibler and Terrianna Harris sitting in a parked car
approximately four blocks from the convenience store. After removing the three
from the vehicle, police conducted a search and discovered dark clothing, a ski
mask, a stocking cap with eye holes cut out of it, latex gloves, a sawed-off
shotgun, and eighty-two dollars in cash consisting of one ten-dollar bill, eleven
five-dollar bills, and seventeen one-dollar bills. Shoeprints in and around the
convenience store were consistent with Kibler’s and Robertson’s shoes.
Robertson and Kibler were arrested and charged with first-degree robbery
and possession of an offensive weapon. Robertson’s attorneys filed a motion to
suppress the evidence found in the car, arguing the officers did not have
reasonable suspicion to stop and search the car. The district court denied the
motion.
Following a joint trial, jurors found Robertson and Kibler guilty as charged.
The court sentenced Robertson to a term of imprisonment not to exceed twentyfive years on the robbery offense and up to five years on the possession offense,
to be served concurrently. On direct appeal, Robertson argued the district court
erred in overruling the motion to suppress. The court of appeals rejected his
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claim and affirmed the conviction. State v. Robertson, No. 97-0877 (Iowa Ct.
App. Aug. 28, 1998).
Robertson filed an application for postconviction relief, raising claims of
ineffective assistance of trial and appellate counsel. Following a hearing on the
merits, during which Robertson’s trial and appellate attorneys testified, the district
court denied the application. Robertson appeals, raising the same ineffectiveassistance-of-counsel claims he raised in the district court:
1. Trial counsel was ineffective in not objecting to certain
impeachment testimony.
2. Trial counsel was ineffective in failing to seek the severance of
Robertson’s trial from Kibler’s trial, and appellate counsel was
ineffective in failing to preserve this issue for the postconviction
proceedings.
3. Appellate counsel was ineffective in failing to argue on appeal
that the instruction for extortion should have been given as a lesser
included offense, as error had been preserved at the district court
on this issue.
4. Appellate counsel was ineffective for failing to correct a
statement of fact made by the State, and relied upon by the court of
appeals in its opinion, in an application for further review.
We will present additional facts as they relate to the issues raised on
appeal.
II. Standard of Review
Generally, we review postconviction relief decisions for errors at law.
DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, when the applicant
raises a constitutional issue, such as ineffective assistance of counsel, our
review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). We
give weight to the district court’s findings regarding witness credibility. Id.
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To establish a claim of ineffective assistance of counsel, a defendant must
prove by a preponderance of the evidence that (1) counsel failed to perform an
essential duty and (2) prejudice resulted therefrom. State v. Biddle, 652 N.W.2d
191, 203 (Iowa 2002). We apply the same standards to trial and appellate
counsel in resolving ineffective assistance claims. Cox v. State, 554 N.W.2d
712, 715 (Iowa Ct. App. 1996).
“[T]here is a strong presumption that trial
counsel’s conduct fell within the wide range of reasonable professional
assistance.” DeVoss, 648 N.W.2d at 64. We may dispose of an ineffectiveassistance-of-counsel claim if the applicant fails to meet either the breach of duty
or the prejudice prong. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674, 699 (1984); State v. Cook, 565 N.W.2d 611, 614
(Iowa 1997).
III. Failure to Object to Impeachment
After removing Robertson, Kibler, and Harris from their car, officers asked
Robertson to come to the police station voluntarily and make a statement about
the incident. Robertson said “he was not willing to do that.” After he had been
arrested and taken to the station, Robertson was advised of his rights and said
he did not wish to make any statements.
Prior to trial, the trial judge granted a motion in limine prohibiting evidence
that Robertson had exercised his right to remain silent and declined to give a
statement after he was arrested. Robertson testified at trial that he was not one
of the robbers. He claimed that two unknown men ran past, jumped in a nearby
car, and threw a gym bag containing a shotgun, clothes, and ski masks out of the
car as they drove past. Robertson further claimed he had won the money found
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by police at a dice game earlier in the day. On cross-examination, the prosecutor
questioned Robertson as follows:
Q. When the police ordered you out of the car and during
the time you were there with the police, didn’t there come a time
when they told you they were investigating an armed robbery at the
Kum & Go store? A. Yes.
Q. Did you ever tell the police that, hey, we just found this
stuff, it was thrown from the bag from a blue car that just left the
area? Did you ever tell the police that? A. I made no statements
to the police, no.
Q. Well, if this really happened the way you’re claiming, it
would have been a very easy thing to tell the police that this all
came from two men in a blue car, wouldn’t it have been, if that was
the truth? A. Probably, but it depends on the situation. If the
police would believe me, man, plus I had a gun in the car and I
doubt if they would have believed me.
Q. Well, you had two witnesses, didn’t you? A. Yes.
Q. They didn’t say anything like that, did they? A. No.
Q. You just decided, oh, I’ll just keep it a secret? A. No.
Robertson alleges trial counsel was ineffective in not objecting to this testimony,
and appellate counsel was ineffective for failing to raise the issue on direct
appeal.
We conclude, as the district court did, that any failure of duty by trial
counsel did not prejudice Robertson, because exclusion of the challenged line of
questioning “would not have negated the overwhelming evidence against” him.
We agree with the State’s assertion that Robertson’s story “was so inherently
implausible that the prosecutor’s questioning could hardly render it any less
credible than it would have been even without that questioning.” Moreover, the
story did not explain the fact that prints consistent with Kibler’s and Robertson’s
shoes were found in and around the store. There is no reasonable probability
the verdict would have been different if Robertson’s trial counsel had objected to
the prosecutor’s questioning. DeVoss, 648 N.W.2d at 64 (to show prejudice, a
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defendant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”
(citation omitted)).
IV. Failure to Request Severance
Robertson claims his trial attorneys were ineffective in failing to move for
severance of Robertson’s and Kibler’s trials, and that appellate counsel was
ineffective in failing to raise an ineffective assistance of trial counsel claim on that
basis. He argues the joint trial prejudiced him because a statement given by
Kibler to the police, and introduced through an officer’s testimony at trial, 1 failed
to corroborate Robertson’s testimony at trial.
Generally, defendants charged jointly may be tried jointly if a joint trial will
not result in prejudice to one of the parties.
Iowa R. Crim. P. 2.6(4)(b).
Severance may be warranted by any of the following factors:
(1) if admission of evidence in a joint trial would have been
inadmissible and prejudicial if a defendant was tried alone, (2) if a
joint trial prevents one defendant from presenting exculpatory
testimony of a codefendant, (3) if consolidation will produce a trial
of such complexity and length that the jury will be unable to
effectively compartmentalize the evidence against each defendant,
and (4) if defenses presented by different defendants conflict to the
point of being irreconcilable and mutually exclusive.
State v. Williams, 525 N.W.2d 847, 849 (Iowa 1994).
Robertson’s trial attorneys testified at the postconviction hearing that they
considered asking the court to sever the trials of Robertson and Kibler, but
decided not to do so because they did not believe the grounds for severance
existed.
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In addition, they believed certain statements by Kibler tended to
Kibler told officers Robertson “just happened by” while he and Harris were walking, and
was going to give them a ride to Iowa City, where they both lived.
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exculpate Robertson, and they did not expect Robertson or Kibler to testify.
Robertson and his trial attorneys had discussed whether he would testify; all
agreed he would not do so. Robertson changed his mind late in the trial, and did
not tell his attorneys what he planned to say until just before he testified.
In assessing claims of ineffective assistance of counsel, we must examine
a defendant’s conduct as well as that of his attorney. State v. Rice, 543 N.W.2d
884, 888 (Iowa 1996).
Robertson cannot complain of his counsels’ alleged
breach of duty caused by his own failure to disclose in a timely manner his plan
to testify. Additionally, the grounds for severance did not exist at the time a
motion for severance could have been filed. Robertson’s attorneys had no duty
to file a motion which had no basis. State v. Taylor, 689 N.W.2d 116, 134 (Iowa
2004) (“[C]ounsel has no duty to raise an issue that lacks merit.”).
V. Failure to Raise Jury Instruction Issue on Appeal
Robertson’s trial attorneys asked the trial court to submit a jury instruction
for extortion as a lesser-included offense of the first-degree robbery charge. The
court denied the request. Robertson’s appellate attorney did not raise the trial
court’s failure to give an extortion instruction on appeal. In this postconviction
proceeding, Robertson alleges his appellate counsel was ineffective for failing to
raise the jury instruction issue on appeal. The district court denied postconviction
relief on this ground, concluding
Because the elements for second-degree robbery (an instruction
given to the jury) coincide with the elements for extortion, it was
unnecessary to provide the additional instruction for extortion to the
jury. There is no evidence that providing the jury with an instruction
for extortion would have led them to consider finding [Robertson]
guilty of second-degree robbery, or applying identical elements,
extortion.
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We agree with the district court’s conclusion.
The jury was instructed it could convict Robertson of the lesser-included
offense of second-degree robbery if it found (1) Robertson had the specific intent
to commit a theft, and (2) to carry out his intent, he committed an assault upon
another. See Iowa Code § 711.1(1) (1995). An assault was defined for the jury
as “(a) an act which intentionally places another in fear of immediate physical
contact which will be injurious or offensive; and/or (b) intentionally pointing a
firearm at another or displaying a firearm in a threatening manner.”
The
elements of the assault alternative of second-degree robbery are similar to the
elements of extortion as defined in Iowa Code section 711.4(1) (defendant
threatens to inflict physical injury on some person, or to commit any public
offense, with the purpose of obtaining anything of value). Because the jurors
refused to convict Robertson of second-degree robbery, there is no reason to
believe they would have convicted him of extortion, a crime similar to it. See
State v. Carberry, 501 N.W.2d 473, 476-77 (Iowa 1993) (holding that the failure
to submit a lesser-included offense was harmless error where the jury was
instructed on, and rejected, a lesser offense “sufficiently similar” to the
unsubmitted offense). In addition, Robertson’s defense was not based on the
possibility of a verdict on a lesser-included offense. Robertson did not claim the
crime was something other than first-degree robbery; rather, he claimed he had
nothing to do with the crime.
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Any error by the trial court in failing to instruct the jury on extortion was
harmless. See id. Robertson’s appellate counsel was not ineffective for failing to
raise the issue on appeal.
VI. Failure to Correct Misstatement of Facts on Appeal
Robertson’s appellate counsel raised the suppression issue on appeal,
arguing police did not have reasonable suspicion to stop and search the vehicle.
Robertson argues in this postconviction action that his appellate counsel was
ineffective for failing to correct the State’s recitation of certain facts in its brief on
appeal; facts upon which the court of appeals relied in its opinion.
Robertson claims the State’s brief “misstated” facts related to the
newspaper carrier’s account of the direction Robertson’s vehicle was traveling at
the time of the incident in question. However, Robertson also admits the State’s
factual assertions came from trial testimony. In effect, he contends the court of
appeals should have relied solely on testimony from the suppression hearing in
its consideration of the suppression issue; and that the State’s inclusion of trial
testimony in its recitation of facts related to the stop of the vehicle somehow
misled the court. The appellate court, however, is free to consider evidence
presented during the suppression hearing as well as that presented at trial when
reviewing the district court’s ruling on a suppression motion.
See State v.
Orozco, 573 N.W.2d 22, 24 (Iowa 1997); State v. Astello, 602 N.W.2d 190, 195
(Iowa Ct. App. 1999).
Accordingly, the State’s recitation of the facts, which
properly included testimony from the suppression hearing and the trial, was not a
“misstatement” of fact. Robertson’s appellate counsel was not ineffective for
failing to raise a meritless issue. Taylor, 689 N.W.2d at 134.
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VII. Conclusion
We affirm the district court’s ruling denying Robertson’s application for
postconviction relief.
AFFIRMED.
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