BOBBY SIMMONS, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-274 / 08-1156
Filed May 29, 2009
BOBBY SIMMONS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,
Judge.
Bobby Simmons appeals from the district court’s denial of his application
for postconviction relief following his conviction for robbery in the first degree.
AFFIRMED.
Anne K. Wilson of Allen, Vernon & Hoskins, P.L.C., Marion, for appellant.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, Harold Denton, County Attorney, and Todd Tripp, Assistant County
Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
MILLER, J.
Bobby Simmons appeals from the district court’s denial of his application
for postconviction relief following his conviction for robbery in the first degree.
We affirm.
I.
BACKGROUND FACTS AND PROCEEDINGS.
From the evidence presented at trial of the underlying criminal charge
against Simmons, the jury could have found the following facts. Just after 2:00
a.m. on February 28, 2002, cab driver Daniel Miller was dispatched to the
parking lot of Jim’s Foods in Cedar Rapids. Two male passengers got into the
cab. Miller was able to get a good look at both men as they got into the cab.
The man sitting directly behind him was Bobby Simmons and the man in the
back passenger’s seat was David Bowles.
Throughout the evening and night Simmons and Bowles had been
partying heavily, including drinking beer and using crack cocaine. After Simmons
gave Miller directions where to drive, he began whispering with Bowles in the
back seat. Having directed the cab to an isolated area, Simmons told Miller to
slow down. Miller then felt an arm come from his left side and the jab of a knife
into his right jaw. Miller was able to wedge his left hand between the blade of the
knife and his throat and tried to pull the knife away. The blade of the knife
embedded in Miller’s hand, severing muscle, nerves, and tendons, and leaving
two of his fingers on that hand permanently injured. He testified that the person
sitting directly behind him was the primary assailant with the knife and that
3
person was Simmons. Miller also saw Bowles reach over the front seat and take
his wallet that was lying next to him on the seat.
Miller accelerated and swerved when he heard the back car door open,
causing both Simmons and Bowles to fall out of the cab and onto the pavement.
Miller saw them run into the nearby woods. Miller called his dispatcher who in
turn alerted the Cedar Rapids police. Responding within several minutes, police
set up a “perimeter” around the wooded area.
The police found blood and
footprints in the snow at the bottom of a ravine. They then spotted Simmons
running near the scene of the crime about one-half hour after the incident and
stopped him.
Simmons initially lied to police, claiming he had been walking to pick up a
pizza and denying he had been in a cab that evening. Simmons’s hands were
covered in blood and the pattern on the soles of his shoes matched the pattern
found at the scene of the robbery. Through later DNA testing, Simmons’s blood
and the victim’s blood were both found on the knife. In both a photo lineup
shortly after the robbery and at trial Miller identified Simmons as the one who
was sitting directly behind him and wielding the knife.
On March 15, 2002, the State charged Simmons and Bowles with robbery
in the first degree, in violation of Iowa Code sections 711.1 and 711.2 (2001).
The trial court granted Bowles’s request to sever the trials. Simmons filed a
notice that he intended to rely on the defense of intoxication. Simmons elected a
jury trial. At trial he relied in part on the defense of intoxication. The jury found
Simmons guilty as charged.
4
Simmons timely appealed his conviction, raising two claims of ineffective
assistance of trial counsel. This court preserved these claims for a possible
postconviction proceeding. State v. Simmons, No. 02-1745 (Iowa Ct. App. Feb.
11, 2004).
Simmons filed a pro-se application for postconviction relief on June 10,
2004, and obtained the appointment of counsel. His appointed counsel filed an
amended postconviction application on July 14, 2006, raising a claim of newly
discovered evidence and three claims of ineffective assistance of counsel. A
hearing on the application was held. The district court heard testimony from
Simmons and Bowles, as well as from their respective trial attorneys and the
assistant county attorney who prosecuted both cases. The court filed a written
ruling denying Simmons’s postconviction application. In denying the application
the court concluded the “new evidence” upon which Simmons relied did not meet
the criteria to warrant a new trial, Simmons had not shown that trial counsel was
ineffective, and there was no misconduct by the prosecutor during his closing
argument.
Simmons appeals the district court’s denial of his postconviction
application.
II.
SCOPE AND STANDARDS OF REVIEW.
We typically review postconviction relief proceedings on error. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001). When the applicant asserts a claim
of constitutional nature, such as ineffective assistance of trial counsel, we
evaluate the totality of the circumstances in a de novo review. Id.
5
III.
MERITS.
A.
Newly Discovered Evidence.
Simmons first claims the postconviction court erred in finding the new
evidence he relied upon did not warrant a new trial. The new evidence he relies
upon consists of an affidavit and letter, both allegedly written by Bowles, that
exonerate Simmons as a knowing participant in the robbery.
Bowles was convicted in a separate trial on the theory he aided and
abetted Simmons in the robbery.
At his trial, Simmons testified in his own
defense and claimed that Bowles alone committed the robbery without
Simmons’s knowledge or participation.
On April 6, 2006, Bowles signed an
affidavit that included the following language:
Bobby [Simmons] and I were together on the evening of
February 27, 2002 at my house. When Bobby called a cab so that
he could go home and borrow some money that I needed. I went
with Bobby to Jim’s Foods where the cab was to pick us up.
When the cab arrived, Bobby spoke to the drive[r] and told
him where to go, and he got into the cab from the driver’s side and
slide over to the passenger[’]s side in the back seat. I got in the
cab behind the driver.
We went towards Bobby’s house and where his girlfriend
and some people I knew lived. At some point I pulled out a knife
that I had in my pocket and grabbed the driver of the cab, pulling
him back. I wanted the driver to stop and give me his money.
Bobby grabbed for my arm to pull me away when the drive[r] hit his
brakes fast and threw us into the seat. At that point Bobby jumped
from the passenger’s rear door. He had no idea of what I was
doing because I had not suggested I was going to do such a stupid
thing.
....
Later when I was arrested and taken to the police station, I
answered the officer’s questions. He was presenting things as if
Bobby had been the one with the knife and had grabbed the driver.
I just agreed to this and went along thinking it would help me.
Bobby had no indication that I was going to do what I did.
6
In a letter dated May 25, 2006, Bowles wrote to Simmons’s sister. Professing his
intention to “get off [his] chest” something he regretted, Bowles similarly
exonerated Simmons in this letter.
Pursuant to section 822.2(4) (2003) a person may seek postconviction
relief from his or her conviction if the person claims “[t]here exists evidence of
material facts, not previously presented and heard, that requires vacation of the
conviction or sentence in the interest of justice.” We use the same analysis to
resolve a postconviction relief claim based on newly discovered evidence as we
do a motion for new trial on the same ground. Grissom v. State, 572 N.W.2d
183, 184 (Iowa Ct. App. 1997). We have interpreted section 822.2(4) to require
the postconviction relief applicant to establish four elements before a new trial
will be granted. Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998). The
applicant must establish all of the following: (1) the evidence was discovered
after judgment; (2) the evidence could not have been discovered earlier in the
exercise of due diligence; (3) it is material to the issue, not merely cumulative or
impeaching; and (4) it would probably change the result if a new trial is granted.
Summage, 579 N.W.2d at 822; Grissom, 572 N.W.2d at 184. It thus follows that
a new trial is not warranted if the applicant fails to prove any one of these four
elements.
Exculpatory evidence of one co-defendant that was known to the
defendant at the time of trial may not be considered newly discovered evidence
so as to warrant the grant of a new trial.1 Jones v. Scurr, 316 N.W.2d 905, 910
1
This is true even if, as suggested by the postconviction court here, the co-defendant
had earlier exercised his Fifth Amendment privilege against self-incrimination at the
7
(Iowa 1982). “The requirement that evidence be newly discovered is intended to
bring finality to litigation.” Id.
[I]t is not unusual for one of two convicted accomplices to
assume the entire fault and thus exculpate his co-defendant by the
filing of a recanting affidavit. In a case such as the present one, the
already convicted codefendants have nothing to lose by making
statements that exculpate defendant. We find that such statements
should not automatically be allowed to interfere with the finality of
the underlying trial. Otherwise, the underlying trial would always be
tentative unless all codefendants and alleged accomplices testified
fully at that trial. The evidence here, although unavailable, was
known to defendant, and cannot be considered newly discovered.
Id. (quotation and citations omitted).
Based upon our review of the record, it cannot be said that Simmons did
not know of the evidence Bowles would later provide.
As set forth above,
Simmons testified in his own criminal trial and related to the jury at that time the
same version of the facts that Bowles much later asserted, namely that Bowles
was the one with the knife and that Simmons did not know Bowles was going to
commit the crime. Accordingly, even if Simmons’s version of the facts were to be
believed, this evidence was known to Simmons at the time of trial and thus
cannot be considered newly discovered.2 See Scurr, 316 N.W.2d at 910.
Furthermore, the testimony of convicted co-defendants has “lessened
credibility” and their exonerating evidence is regarded with suspicion because
“the witnesses have nothing to lose now by shouldering the blame for the crime.”
Scurr, 316 N.W.2d at 910. Here, Bowles testified at the postconviction hearing
defendant’s criminal trial and thus the evidence was “unavailable” to the defendant at
trial. Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991); Scurr, 316 N.W.2d at 910.
2
We reiterate that this is the case even assuming the evidence was “unavailable” to
Simmons at the time of trial due to Bowles possible exercise of his Fifth Amendment
privilege. See Jones, 479 N.W.2d at 274.
8
and claimed both the affidavit and letter as his own work. However, on crossexamination the prosecutor dictated a few phrases from the letter to Bowles for
him to write on a furnished pad of paper and he was unable to coherently write
the dictated phrases. Bowles testified this was because he used a dictionary
when he wrote the letter. The postconviction court found Bowles’s testimony to
be “utterly NOT credible.”
In addition, the prosecutor from Bowles’s criminal trial testified at
Simmons’s postconviction hearing that Bowles was “more limited intellectually
than” is Simmons. Bowles’s trial counsel testified at the hearing that Bowles was
“more likely to be led” than Simmons.
The court also took into account the
relevant fact that prior to the postconviction hearing Bowles and Simmons were
both incarcerated at Anamosa Reformatory. See Adcock v. State, 528 N.W.2d
645, 647 (Iowa Ct. App. 1994). (“The court noted [co-defendant] did not decide
to change his testimony until he met [the postconviction applicant] in the prison
system.”) These facts, in combination with the fact Bowles could not successfully
write the phrases from the letter, led the postconviction court to make a specific
finding that Bowles’s testimony was not credible. We agree with the court’s
determination with regard to Bowles’s testimony and find it to be completely
lacking in credibility.
We conclude, as did the postconviction court, that Simmons did not prove
either of the first two elements necessary to warrant a new trial under section
822.2(4).
9
Finally, to prevail on a postconviction relief claim based upon newly
discovered evidence the applicant must also show that the admission of the
evidence would likely change the result if a new trial were granted. Id. The
postconviction court has wide discretion to “view the matter in its entirety to
determine if a defendant had a fair criminal trial and if a new trial would likely
produce a different result.” Id. We will not interfere with the court’s determination
unless there is a clear abuse of discretion. Id.
Both in the photo line-up and at trial the cab driver positively identified
Simmons as the one with the knife. Simmons’s hands were covered with blood
and the pattern of his shoes matched the pattern found at the scene of the
robbery.
DNA evidence showed that both Simmons’s blood and the victim’s
blood were on the knife.
Simmons admitted at his criminal trial that when
apprehended he initially lied to the police about walking to pick up a pizza and
not being in a taxicab that evening. See State v. Lasage, 523 N.W.2d 617, 621
(Iowa Ct. App. 1994) (“An intentional untruth can be an indication of
consciousness of guilt.”). He later changed this story and admitted to being in
the cab with Bowles but claimed Bowles attacked the driver without his
knowledge or participation. See State v. Blair, 347 N.W.2d 416, 422 (Iowa 1984)
(finding a defendant’s inconsistent statements are probative circumstantial
evidence from which a jury may infer guilt). Accordingly, based on the strong
evidence of Simmons’s guilt we conclude the exonerating evidence from Bowles
would not probably change the result if a new trial were granted.
10
We conclude Simmons did not meet his burden of proof on the first,
second, or fourth elements required to warrant a new trial based on newly
discovered evidence. The postconviction court did not err in denying Simmons’s
application on this ground.
B.
Ineffective Assistance of Counsel.
Simmons next claims the postconviction court erred in not finding his trial
counsel provided ineffective assistance of counsel. In order to succeed on a
claim of ineffective assistance of counsel, a defendant must prove (1) counsel
failed to perform an essential duty and (2) prejudice resulted. State v. Artzer,
609 N.W.2d 526, 531 (Iowa 2000).
To prove the first prong, failure of an
essential duty, Simmons must overcome a presumption that counsel was
competent and show that counsel’s performance was not within the range of
normal competency. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). In order
to prove prejudice, Simmons must show there is a reasonable probability that but
for counsel’s unprofessional errors the result of the proceeding would have been
different. Ledezma, 626 N.W.2d at 143. An ineffective assistance claim may be
disposed of if the defendant fails to prove either of the two prongs of such a
claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Therefore, we need not
determine whether counsel’s performance is deficient before undertaking the
prejudice determination. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).
Simmons first challenges counsel’s strategy of using an intoxication
defense at trial.3 He claims that because counsel questioned him regarding the
3
Simmons alleges he had only minimal contact with his attorney, and thus was not able
to have adequate input on that strategy or express concerns about using intoxication as
11
events of the evening in question and he was clearly able to recall those events,
offering an intoxication defense, that by reason of intoxication he was unable to
form the specific intent necessary for robbery, conflicted with his clear ability to
recall the events and likely caused jury confusion, to his prejudice.
Simmons’s trial counsel testified at the postconviction hearing.
She
testified she felt it was her duty and responsibility to present the intoxication
defense because of the extensive evidence that Simmons had consumed large
quantities of alcohol and crack cocaine on the night in question. She further
testified that because Simmons had been charged with a specific intent crime,
she felt she would have been remiss if she did not raise intoxication as a defense
because if successful such defense would eliminate the specific intent element of
the charged crime. Trial counsel also stated that she did not believe that in this
case the intoxication defense conflicted with Simmons’s denying that he knew of
Bowles’s intent to rob Miller or participated in the robbery. She believed the
intoxication defense would allow him to admit he was at the scene of the crime
while denying he had any idea what Bowles was doing.
We, like the postconviction court, conclude that the intoxication defense
did not conflict with the denial of knowledge and participation.
We further
conclude the decision to assert an intoxication defense was a strategic decision
and was well within the range of normal competency. Additionally, based on the
substantial evidence of guilt set forth above we conclude Simmons has failed to
show a reasonable probability that but for the use of the intoxication defense the
a defense. He does not, however, claim that counsel was ineffective by not having more
contact with him, that the postconviction court erred in rejecting such a claim, or that he
opposed using intoxication as a defense.
12
result of the proceeding would have been different and has thus not shown he
was prejudiced by counsel’s alleged breach. The postconviction court did not err
in denying this claim of ineffective assistance of counsel.
Simmons next claims the postconviction court erred in not finding his trial
counsel was ineffective for failing to object to the use of a joint criminal conduct
instruction to the jury. When a defendant makes an ineffective assistance of
counsel claim alleging the attorney should have objected to a specific instruction,
“the instruction complained of [must be] of such a nature that the resulting
conviction violate[s] due process.” State v. Maxwell, 743 N.W.2d 185, 196 (Iowa
2008) (quoting State v. Hill, 449 N.W.2d 626, 629 (Iowa 1989)).
The essential elements for imposing criminal liability on the basis of joint
criminal conduct are:
1.
2.
3.
4.
Defendant must be acting in concert with another.
Defendant must knowingly be participating in a public
offense.
A “different crime” must be committed by another
participant in furtherance of defendant's offense.
The commission of the different crime must be reasonably
foreseen.
State v. Countryman, 572 N.W.2d 553, 561 (Iowa 1997). Simmons contends his
trial counsel should have objected to the submission of a joint criminal conduct
instruction because the State failed to establish participation in any predicate
public offense, or that he and Bowles were acting in concert with each other.
Assuming without deciding that Simmons’s trial counsel should have
objected to the challenged instruction, we do not believe Simmons has proved he
was prejudiced by such a breach.
13
When the submission of a superfluous jury instruction does not give
rise to a reasonable probability the outcome of the proceeding
would have been different had counsel not erred, in the context of
an ineffective-assistance-of-counsel claim, no prejudice results.
Maxwell, 743 N.W.2d at 197 (citing State v. Tejeda, 677 N.W.2d 744, 755 (Iowa
2004)).
As we stated above, there was sufficient evidence to support the jury’s
verdict finding Simmons guilty of robbery in the first degree beyond a reasonable
doubt.
[T]he giving of a joint criminal conduct instruction in instances in
which the alleged multiple participants are either principals or
aiders and abettors in the same crime does not require reversal if
there is no opportunity for the defendant to have been found guilty
based on anything other than his own conduct as a principal or an
aider and abettor of the crime with which he is charged.
State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998) (citations omitted). Due to
the very strong evidence against Simmons, there was no opportunity for him to
be found guilty of first-degree robbery based on anything other than his own
conduct.
Given the strong evidence of Simmons’s guilt as set forth in detail above,
and the negligible effect the joint criminal conduct jury instruction could have had
on the verdict, we conclude there was no reasonable probability that, but for
counsel’s failure to object to the instruction the result of the proceeding would
have been different. See Maxwell, 743 N.W.2d at 197 (finding that where the
prosecution presents ample evidence of the defendant's guilt and the effect of the
superfluous jury instruction is merely speculative, no prejudice results in an
ineffective-assistance-of-counsel analysis); State v. Tejeda, 677 N.W.2d 744,
14
755 (Iowa 2004) (same). Therefore, we conclude Simmons has not met his
burden to establish he was prejudiced by counsel’s alleged breach and thus has
not proved his ineffective assistance claim. The postconviction court did not err
in denying this claim of ineffective assistance.
Finally, Simmons claims the postconviction court erred in not finding his
trial counsel ineffective for not objecting to statements made by the prosecution
during closing arguments. He contends the challenged statements constituted
prosecutorial misconduct and violated his constitutional right to due process of
law as set forth in State v. Graves, 668 N.W.2d 860 (Iowa 2003).4
More
specifically, he contends the prosecutor stated ten times in his closing argument
that Simmons had lied.
The initial requirement for a due process claim based on prosecutorial
misconduct is proof of misconduct. Graves, 668 N.W.2d at 869. It is “improper
for a prosecutor to call the defendant a liar, to state the defendant is lying, or to
make similar disparaging comments.” Id. at 876. However, “a prosecutor is still
free to craft an argument that includes reasonable inferences based on the
evidence and . . . when a case turns on which of two conflicting stores is true, [to
argue that] certain testimony is not believable.”
citation omitted).
Id. (internal quotation and
It is not misconduct to argue that a defendant has lied,
provided the evidence in the record sufficiently supports such a characterization.
See State v. Carey, 709 N.W.2d 547, 556 (Iowa 2006).
4
Initially we note that the Graves decision was not decided until after the trial court
proceedings in this case were concluded. Thus, Simmons’s trial counsel did not have
the benefit of the holdings in Graves while trying this case.
15
The following questions must be answered to determine whether the
prosecutor’s remarks were proper:
(1) Could one legitimately infer from the evidence that the
defendant lied? (2) Were the prosecutor’s statements that the
defendant lied conveyed to the jury as the prosecutor’s personal
opinion of the defendant’s credibility, or was such argument related
to specific evidence that tended to show the defendant had been
untruthful? and (3) Was the argument made in a professional
manner, or did it unfairly disparage the defendant and tend to
cause the jury to decide the case based on emotion rather than
upon a dispassionate review of the evidence?
Graves, 668 N.W.2d at 874-75.
The obvious threat addressed by Graves and other of our cases is
the possibility that a jury might convict the defendant for reasons
other than those found in the evidence. Thus, misconduct does not
reside in the fact that the prosecution attempts to tarnish
defendant’s credibility or boost that of the State’s witnesses; such
tactics are not only proper, but part of the prosecutor’s duty.
Instead, misconduct occurs when the prosecutor seeks this end
through unnecessary and overinflammatory means that go outside
the record or threaten to improperly incite the passions of the jury.
Carey, 709 N.W.2d at 556 (citation omitted). Applying the Graves factors set
forth above, we agree with the postconviction court that the prosecutor’s
comments do not rise to the level of misconduct.
The prosecutor’s closing argument here commented on the lie Simmons
initially told police after his arrest and then repeated later that morning while in
jail. As set forth above, after he was stopped and arrested near the scene of the
robbery Simmons told the police he was walking to a local pizza place and he
denied being in a cab at all that night. At his criminal trial Simmons changed his
story and said he had been in the cab with Bowles but claimed that Bowles
attacked the driver without his knowledge or participation. Due to his changed
16
story, by necessity he also admitted, both on direct examination and crossexamination, that he had lied to police. Thus, there was not just a legitimate
inference from the evidence that Simmons had lied, there was direct evidence
based on Simmons’s own testimony that he had lied.
Further, Simmons relied, in part, on an intoxication defense.
The
prosecutor’s closing argument drew attention to Simmons’s lies to the police as
evidence that if he could form the intent to deceive on the night of the robbery, he
could also form the requisite specific intent to commit the robbery.
Thus,
because these comments were within the permissible bounds of closing
argument based on Simmons’s own testimony and his intoxication defense they
did not amount to misconduct. We also note that only approximately four of the
nearly twenty pages of closing argument from the prosecution mentioned
anything about Simmons’s lies and lying.
We conclude it was not misconduct for the prosecutor to state during
closing argument that Simmons had lied because one could clearly find from the
evidence that he had lied, the prosecutor’s statements were related to specific
evidence that tended to show Simmons had been untruthful and to his
intoxication defense, and the statements were made in a professional manner
that did not unfairly disparage Simmons. See Graves, 668 N.W.2d at 874-75.
As set forth above, misconduct does not reside in the fact that the prosecution
attempted to tarnish Simmons’s credibility; such tactics are not only proper, but
part of the prosecutor’s duty, especially when the dispute rests upon two or more
different versions of events in question. See Carey, 709 N.W.2d at 556.
17
Because we have determined the prosecutor’s comments did not rise to
the level of misconduct, we conclude Simmons’s trial counsel did not breach an
essential duty by not objecting to the statements. See State v. Atwood, 342
N.W.2d 474, 477 (Iowa 1984) (finding counsel not ineffective for failing to make
questionable objection). Nor is there a reasonable probability the outcome of the
trial would have been different if she had objected. Simmons has not met his
burden to prove his trial counsel was ineffective for not making these objections
and the district court did not err in denying this claim of ineffective assistance.
IV.
CONCLUSION.
For the reasons set forth above, we conclude Simmons did not show that
the exculpatory evidence he offered was “newly discovered” evidence or that its
admission would probably change the result if a new trial were granted. We
further conclude Simmons did not meet his burden to show that his trial counsel
was ineffective or that the prosecutor engaged in misconduct.
The
postconviction court did not err in denying Simmons’s application for
postconviction relief.
AFFIRMED.
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