MAURICE MONTEZ CURRIE, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-468 / 05-2107
Filed September 7, 2006
MAURICE MONTEZ CURRIE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Hardin County, Carl D. Baker,
Judge.
Maurice
Currie
appeals
from
the
denial
of
his
application
for
postconviction relief. AFFIRMED.
Lawrence B. Cutler of Craig & Smith, L.L.P., Eldora, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews and Douglas D.
Hammerand, Assistant Attorneys General, Richard N. Dunn, County Attorney, for
appellee.
Considered by Mahan, P.J., and Hecht and Eisenhauer, JJ.
2
HECHT, J.
Maurice
Currie
appeals
from
the
denial
of
his
application
for
postconviction relief. We affirm.
I.
Background Facts and Proceedings.
At approximately nine o’clock on the morning of December 11, 2001, the
bookstore at Ellsworth Community College in Iowa Falls was robbed at gunpoint.
The first customer of the day was Jonathan Harrell, who sold several used books
back to the bookstore. Minutes after Harrell exited the store, the lone cashier
noticed a black hand reach inside the door, turn off the lights, exit, and reappear
pointing a shiny handgun at her. The robber demanded money and left with a
cashbox containing $3217.
Earlier that same morning, a student named Laith Hassan was walking to
the office of his instructor, Professor Greg Metzen, in “Kruse Main” – the same
building that housed the college bookstore. As he entered the building, Hassan
noticed a “huge” African American male standing at the top of the stairs leading
down to the bookstore. According to Hassan’s trial testimony, he believed this
“huge” man did not want him in the building. 1 Hassan also noticed a second
black male who appeared to be surveilling the doors at the far entrance to Kruse
Main.
At the top of the open stairwell, Hassan heard the door to the bookstore
close, and then he heard the distinctive noise of a bullet being chambered into a
1
Hassan would later identify the “huge” man as Robert Mosley, Maurice Currie’s college
roommate.
Mosley, a football player, is six feet, two inches tall and weighs
approximately 220 pounds.
3
gun. 2 As Hassan continued to descend the stairs towards his instructor’s office
and the bookstore, he noticed a third man emerge from the direction of the
bookstore and approach the stairwell. The man was wearing a distinctive, shiny
black coat and a ski mask with holes for the mouth and the eyes.
Hassan
testified that he could see the masked man’s eyes very clearly through the mask.
Shortly before reaching the bottom of the stairs, the masked man noticed
Hassan, abruptly changed directions, and left running. 3
Harrell, the bookstore’s first customer, was arrested the same day after
police retrieved his receipt from the bookstore’s trash. 4
He denied any
involvement in the robbery, but he did inform police that he had seen Maurice
Currie and Robert Mosley in Kruse Main shortly before the robbery occurred.
According to Harrell, Currie had been wearing a shiny black coat that matched
the description given by Hassan.
2
Hassan had ten years of military experience in Iraq prior to his immigration to the
United States and testified that he is very familiar with the sound of a gun chambering a
round.
3
Hassan was later shown a photographic array of five men: three African American
males and two Caucasian males. This initial array did not include Maurice Currie’s
picture. Hassan identified one of the African American males as someone who looked
like the masked man he had seen. Investigators then placed these five photos together
with other photographs in a second photographic array, which did include Currie’s
picture. When investigators placed a paper cutout resembling the ski mask in front of
each photo, Hassan identified Currie as the masked man he had encountered on the
stairwell.
4
At the time of the robbery, Professor Gregory Metzen was art instructor to both Harrell
and Hassan. In a voluntary statement to the police following the robbery, Metzen stated
that before Hassan arrived at his office by the bookstore, Harrell had come to talk about
his grade in Metzen’s class. Harrell informed Metzen that he had just finished selling
back his books and would be leaving town that afternoon. Metzen described Harrell as
acting nervous, as if anxious to leave. A few minutes after Harrell left, Hassan entered
the office and described to Metzen his curious encounter with the masked man on the
stairs. After speaking with Hassan for a few minutes, the bookstore clerk entered the
office and informed Metzen that she had just been robbed at gunpoint.
4
Several hours after the robbery, Nikki Juhl drove Currie to a nearby
convenience store. When Juhl noticed Currie pull a “wad” of $20 bills from his
pocket, Juhl inquired about a debt Currie owed her, which he promptly repaid.
Juhl testified she was surprised to see Currie with that much money because he
rarely had any to spare. Shortly thereafter, Currie was seen wearing brand new
clothes and was heard bragging about his recent purchase of an X-Box video
game system valued at the time at nearly $400.
Currie also had recently
incurred expense for repairs to his car.
Two days after the robbery, Mosley approached one of his professors and
admitted his involvement in the robbery. The professor put Mosley in contact
with police to whom Mosley disclosed the names of the other men – all
teammates on the college football team – who were involved.
According to
Mosley, on December 10, Currie had approached his teammates with a plan to
rob the bookstore during its book “buy-back,” when the store could be expected
to have on hand thousands of dollars in cash. Currie told them he was low on
cash and needed money to repay the money he had borrowed to pay for his car
repairs. Currie proposed that Harrell would scout the bookstore, while Mosley
and another teammate would act as lookouts.
Another teammate would be
waiting outside in the getaway car.
Immediately after the robbery, Mosley met up with his teammates to divide
the money. Mosley received $300 for his participation in the crime, while Currie
kept the largest share for himself.
A subsequent search of Mosley and Currie’s dorm room revealed a ski
mask that matched Hassan’s description of the mask worn by the robber.
5
Mosley told police Currie had recently purchased the mask at a local Wal-Mart.
After a search of the dorm room of the alleged getaway driver, police found a
shiny black jacket stuffed behind a dresser that matched Hassan’s description of
the coat worn by the robber and Mosley’s description of the coat Currie wore on
the day of the robbery.
Police also discovered the bookstore’s cashbox
discarded under an ice machine in the basement of Currie’s dorm.
Currie was arrested in Des Moines at his girlfriend’s home and later
charged with first-degree robbery. Police found a loaded silver handgun on a
nightstand in the home. The handgun’s loading action made a distinctive clicking
noise when a round was chambered. An X-Box gaming system was also found
in the home. 5 Police officers observed at the time of the arrest that Currie had
fresh tattoo markings on his body.
At his jury trial, Currie testified that he awoke very early on the day of the
robbery, went for a car ride by himself, and smoked some marijuana. He claimed
he arrived at a friend’s home at approximately 9:00 a.m. that morning and
returned to his dorm room by 10:15 a.m. 6 Currie admitted he had recently had
tattoo work done, repaired his car, and repaid certain debts. Currie explained,
however, that he had (1) borrowed money for the car repairs, (2) borrowed the XBox from a friend, (3) won approximately $150 shooting dice the night before the
robbery, and (4) recently sold his used textbooks for $86. Currie claimed he had
5
Currie’s girlfriend informed police that the X-Box was on loan from a friend, while the
handgun was hers, but given to her by an undisclosed friend. Police testified that she
hesitated when asked whether the handgun was from Currie.
6
Currie’s friend corroborated this timeline at trial.
6
used his gambling winnings and the proceeds from his book sales to repay debts
and purchase the new body art. Currie denied recently purchasing new clothing.
The jury found Currie guilty of first-degree robbery, and the district court
sentenced him to twenty-five years in prison.
On direct appeal, this court
affirmed the conviction, but preserved several claims of ineffective assistance of
counsel for possible postconviction relief. After a hearing, Currie’s postconviction
relief application, which included a request for a new trial based on newly
discovered evidence, was denied by the district court in all its respects.
On appeal, Currie alleges trial counsel was ineffective in failing to (1)
properly investigate Professor Metzen’s observation of Harrell’s nervous
demeanor, (2) obtain expert testimony on the unreliability of eyewitness
identifications, (3) object to several items of hearsay evidence relative to Currie’s
motive, (4) zealously cross-examine Mosley about allegations of narcotics
possession and special deals with police in exchange for favorable testimony,
and (5) permitting Currie to falsely testify that he did not know who had
committed the robbery. Lastly, Currie contends the district court erred in denying
his newly discovered evidence claim.
II.
Scope and Standard of Review.
We review postconviction relief proceedings on claimed error. Osborn v.
State, 573 N.W.2d 917, 920 (Iowa 1998). However, because of the constitutional
implications inherent with claims of ineffective assistance of counsel, our review
of those claims is de novo. State v. Mapp, 585 N.W.2d 746, 747 (Iowa 1998).
7
We review for abuse of discretion the district court’s denial of Currie’s
request for a new trial based on a claim of newly discovered evidence. State v.
Smith, 573 N.W.2d 14, 17 (Iowa 1997).
III.
Discussion.
A.
Ineffective Assistance of Counsel.
A defendant receives ineffective assistance of counsel when (1) trial
counsel fails in an essential duty, and (2) prejudice results.
Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984). In assessing counsel’s conduct we note that “[i]mprovident trial strategy,
miscalculated tactics, and mistakes in judgment do not necessarily amount to
ineffective assistance of counsel.” State v. McKettrick, 480 N.W.2d 52, 55 (Iowa
1992).
We generally presume counsel is competent, and we therefore are
reluctant to subject a reasonable trial strategy to a critique based in hindsight.
State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).
The defendant bears the burden of demonstrating ineffective assistance of
counsel, and both prongs of the claim must be established by a preponderance
of the evidence before relief can be granted. Ledezma v. State, 626 N.W.2d 134,
142 (Iowa 2001).
To prove prejudice from an alleged breach, Currie must
convince us "that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
“A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. If Currie fails to meet his burden with respect to either prong, his
8
claim is without merit and must be rejected. Id. at 697, 104 S. Ct. at 2069, 80 L.
Ed. 2d at 699.
1)
Failure to Investigate.
Currie contends his trial counsel failed to properly investigate Professor
Metzen’s observation of Harrell’s nervous demeanor. Currie notes that Metzen’s
statement to police was available before trial and would have cast doubt on
Harrell’s initial denial of involvement in the robbery if brought to light during
Currie’s trial. After de novo review, we believe this fact was, at best, of marginal
importance to the defense. Harrell’s nervous display after selling his books was
consistent with the State’s theory of the case, in which Harrell played the role of
scout for the impending robbery. Metzen’s statement places Harrell in his office
well before Hassan observed a masked man at the stairwell, and there is no
suggestion in the record that Hassan’s description of either man he encountered
matched that of Harrell. As such, nothing in Metzen’s statement would suggest
Harrell was the gunman, and trial counsel’s failure to bring Metzen’s statement to
light during the trial could not reasonably be expected to have brought about
Currie’s acquittal.
Id. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.
Accordingly, this claim of ineffectiveness must fail.
2)
Failure to Secure Eyewitness Identification Expert.
Currie also contends his trial counsel was ineffective in failing to obtain
expert testimony to challenge Hassan’s identification. While we acknowledge the
method used by investigators to obtain the identification in this case was
unorthodox, Currie has failed to demonstrate how using the paper cutout to
simulate the conditions under which Hassan encountered the robber was unduly
9
suggestive.
Hassan testified he got a very good look at the robber’s eyes
through the mask, and when that feature was isolated, Hassan claimed to be
able to identify Currie. We note that Hassan’s description of the shiny black
jacket worn by the robber matched a jacket that belonged to Currie.
The
handgun found with Currie (1) matched the description provided by the bookstore
cashier of the handgun used in the robbery and (2) created the distinctive sound
while it was being loaded that was described by Hassan.
While Hassan’s
identification implicated Currie as the gunman, we find persuasive trial counsel’s
opinion that the identification was not particularly compelling because of the
methodology employed to produce it. Given the other strong evidence of Currie’s
involvement in planning and executing the crime, we do not believe the failure to
call an identification expert to discredit the identification methodology affected the
outcome of the trial.
We therefore conclude this claim of ineffectiveness is
without merit, both because trial counsel had no duty to present the testimony of
an identification expert under the circumstances of this case and because the
failure to present such evidence did not affect the outcome.
3)
Failure to Object to Hearsay.
Currie’s next claim asserts his trial counsel was ineffective in failing to
object to two items of hearsay evidence presented through the State’s witnesses.
In the first of these, Chief of Police Douglas Strike repeated the substance of
Mosley’s earlier testimony that Currie had told Mosley he was low on cash and
had borrowed money to pay for car repairs. While it is true that a properly lodged
hearsay objection may have been meritorious, we cannot agree with Currie’s
assertion that the outcome of the trial was affected by Chief Strike’s recounting of
10
Currie’s hearsay statement that had already been disclosed to the jury through
Mosley’s testimony.
Furthermore, Currie himself testified about his need to
borrow money to pay for car repairs. State v. Rice, 543 N.W.2d 884, 887 (Iowa
1996) (stating “prejudice is not established where substantially similar evidence
has been admitted but not objected to”).
The second item of hearsay evidence was presented through the
testimony of Chief Strike and Officer Ronald Kuhfus. After Mosley denied from
the stand telling investigators that Currie had initially planned to rob a
convenience store, the State called Strike and Kuhfus to testify that Mosley did
indeed tell them about Currie’s discussion of such an alternative crime. At the
postconviction hearing, trial counsel defended his decision not to object to the
responsive testimony by Strike and Kuhfus because it (1) tended to cast doubt on
the credibility of Mosley, the State’s primary witness, and (2) supported the
defense’s strategy of portraying Mosley as the person trying to “pin” the robbery
charge on Currie.
We conclude trial counsel’s decision not to object to this
hearsay evidence was the product of reasonable trial strategy. See Wissing, 528
N.W.2d at 564.
Furthermore, Mosley’s detailed testimony about Currie’s
involvement in the robbery of the bookstore was far more incriminating than
testimony indicating Currie had at one time also discussed the idea of robbing a
convenience store.
We therefore conclude Currie has failed to prove the
prejudice prong on this particular claim of his counsel’s ineffectiveness.
4)
Failure to Properly Cross-examine Mosley.
Currie next asserts that trial counsel failed to cross-examine Mosley about
allegations that narcotics were seized by police during the search of the dorm
11
room Mosley shared with Currie.
Currie contends evidence that drugs were
found in the room he shared with Mosley could have raised doubt as to the
truthfulness of Mosley’s claim that he had not received a deal for leniency from
prosecutors in exchange for his cooperation at Currie’s trial. While trial counsel
acknowledged a rumor that drugs were found during the dorm room search, he
testified that no drug charges were ever filed against Currie and no police record
demonstrates that drugs were in fact found in the dorm room. Trial counsel
defended his decision to leave the subject out of his cross-examination because
he was concerned Mosley could plausibly deny possession of drugs that were
never documented in the records of law enforcement officers. Furthermore, an
attempt to cross-examine Mosley as to undocumented allegations of dorm-room
drug possession had only speculative impeachment value at the high cost of
exposing his roommate Currie to potentially prejudicial other bad acts evidence.
We therefore conclude the decision by trial counsel to forego cross-examination
on this subject was the product of a reasonable trial strategy. See id.
5)
Failure to Properly Question Currie.
After Currie denied his own involvement in the robbery, Currie’s trial
counsel asked if he knew who the real perpetrator was. Currie now claims he
told his defense counsel prior to trial that Mosley committed the robbery and that
Mosley threatened Currie against disclosure of such knowledge. According to
Currie, Mosley’s threat of harm 7 caused Currie to deny knowledge of the
perpetrator’s identity on the witness stand.
7
Currie contends his trial counsel
Mosley’s uncle is a Black Hawk county political figure who, according to Currie, had
“the juice” or power to harm Currie in some way.
12
either (1) should not have asked the question because counsel knew Currie had
been threatened into silence and therefore would not answer truthfully, or (2)
should have followed up on Currie’s denial in an attempt to prove Currie had
been threatened by Mosley.
At the postconviction hearing, trial counsel denied that Currie ever told him
Mosley perpetrated the robbery. Trial counsel testified that he advised Currie
against testifying because Currie had told him many inconsistent stories about
his knowledge of the robbery. However, counsel respected his client’s strong
preference and called Currie to testify. After a careful de novo review of the
record, we find credible trial counsel’s testimony on this issue. We find neither a
breach of duty by trial counsel nor prejudice resulting from trial counsel’s
question or Currie’s answer.
Accordingly, this claim of ineffective assistance
must be rejected.
B.
Newly Discovered Evidence.
Currie’s final claim on appeal asserts entitlement to a new trial based on
evidence suggesting Mosley received immunity in connection with the robbery
and the drugs found in his residence after the robbery in exchange for testimony
against Currie. 8 The claimed new evidence comes in the form of a deposition of
Jane Andrew, who was Mosley’s girlfriend at the time of the robbery and who is
now a “close friend” of Currie. Andrew’s deposition testimony serves to recant
her earlier trial testimony, given during cross-examination by defense counsel, as
8
The State presented evidence in the postconviction proceeding that Mosley was not
granted immunity, but he was not charged.
13
to her belief that Mosley could still be charged and tried for his involvement in the
robbery.
Viewing Andrew’s deposition with the appropriate critical eye, 9 we cannot
agree with Currie that the evidence warrants a new trial. In order for Currie’s
claim to prevail, he must demonstrate that had the evidence been presented in
his trial, the result probably would have been different.
State v. Allen, 348
N.W.2d 243, 246 (Iowa 1984). While Andrew’s deposition, if true, would indeed
call into question Mosley’s motive for testifying against Currie, we believe this
“new” evidence does nothing to call into question the compelling evidence
tending to prove Currie was the gunman, including (1) Currie’s several purchases
and debt payments in close temporal proximity to the robbery, (2) Hassan’s
identification of Currie, (3) Currie’s possession of a silver handgun matching that
used by the robber, (4) Currie’s ownership of a shiny black jacket matching that
worn by the gunman, and (5) the discovery of the bookstore cashbox in Currie’s
dormitory. Finding no showing of such prejudice as would justify reversal of the
conviction and a new trial, the district court did not abuse its discretion in denying
Currie’s request for a new trial based on Andrew’s deposition testimony.
Because we conclude the motion based on this new evidence was without merit,
we also conclude postconviction counsel was under no duty to pursue a specific
ruling on the motion so as to preserve error. See State v. Hoskins, 586 N.W.2d
707, 709 (Iowa 1998).
IV.
9
Conclusion.
See State v. Taylor, 287 N.W.2d 576, 578 (Iowa 1980) (noting that motions asserting
newly discovered recantation evidence should be carefully scrutinized and that the
district court is not required to believe the recantation).
14
After reviewing each of Currie’s claims on appeal from his postconviction
hearing, we conclude that none of them is meritorious. Our confidence in the
fairness of Currie’s criminal trial is not undermined. Because the district court
properly denied all of Currie’s claims for postconviction relief, we affirm his
conviction and sentence.
AFFIRMED.
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