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January 10, 2001


Appeal from the Iowa District Court for Polk County, ROBERT J. BLINK, Judge. Defendant appeals following his conviction on the charge of first-degree murder. AFFIRMED.

Heard by Zimmer, P.J., and Hecht and Vaitheswaran, JJ.

The opinion of the court was delivered by: Zimmer, P.J.

Defendant Roberto Rodriguez Perez appeals following his conviction for first-degree murder. He contends counsel was ineffective in failing to object to the aiding and abetting theory submitted to the jury. He also argues the trial court erred in admitting evidence in violation of Iowa Rules of Evidence 104(b) and 404(b). Finding Perez suffered no prejudice, we affirm.

Perez was accused of stabbing and killing a waitress at a Denny's restaurant in Des Moines at around 2:00 a.m. on April 14, 1998. The State asserted Perez's motive was robbery to get cash to supply his drug habit. On May 20, 1998, he was charged with murder in the first degree in violation of Iowa Code sections 707.1, 707.2(1) and 702.2(2) (1997) (count I), and robbery in the first degree in violation of Iowa Code sections 711.1 and 711.2 (count II). Trial commenced on December 9, 1998. The jury returned a guilty verdict on count I; count II was not submitted. Perez was subsequently sentenced to life in prison. He now appeals.

I. Scope of Review.

Claims of ineffective assistance of counsel are afforded a de novo review. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). In reviewing a trial court's decision to admit evidence, we reverse only if we find an abuse of discretion. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996). An abuse of discretion occurs when the district court has exercised its discretion on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. Id.

II. Ineffective Assistance of Counsel.

At trial, the State's theory was that Perez alone killed the waitress, robbed the restaurant, and used the money to buy drugs. However, because of Perez's defense, that an acquaintance, Steve Schnoebelen, had actually killed the waitress and Perez was only a witness to the crime, the State requested an aiding and abetting instruction as well. The trial court instructed the jury on alternative theories-either Perez committed the murder or he aided and abetted another. On appeal, Perez claims this was error because no evidence supported submitting the aiding and abetting theory. Therefore, he argues, his trial counsel rendered ineffective assistance by failing to object to the jury instruction setting out the aiding and abetting theory. He also contends that even if the aiding and abetting theory was properly submitted, the aiding and abetting instruction was not tailored to the specific intent crime of first-degree murder. SeeI Iowa Crim. Jury Instructions 200.8 (comment). Counsel also failed to lodge any objection in this respect.

In determining whether trial counsel was ineffective, we look at "`whether under the entire record and totality of the circumstances counsel's performance was within the normal range of competence.'" State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (quoting Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). In order for Perez to prevail, the record must demonstrate (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Artzer, 609 N.W.2d at 531 (citation omitted). Prejudice is found where there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Id. (citation omitted). Prior case law suggests that an instruction on aiding and abetting or joint criminal conduct that lacks evidentiary support is reversible error without regard to prejudice. State v. Mays, 204 N.W.2d 862, 865 (Iowa 1996); State v. Hershberger, 534 N.W.2d 464, 466 (Iowa App. 1995). However, in those cases the error was properly preserved. This case comes to us under the rubric of ineffective assistance of counsel and, therefore, we must address prejudice. Ordinarily, ineffective assistance of counsel claims are reserved for postconviction relief actions. Id. (citation omitted). However, when the appellate record is sufficient to permit a ruling, we will address the claims on direct appeal. Id. We deem this record sufficient.

We need not address whether Perez's counsel breached a duty by failing to object to the aiding and abetting theory in the instructions because we conclude Perez cannot show prejudice. See State v. Speaks, 576 N.W.2d 629, 633 (Iowa App. 1998) (stating appellate court may resort to the prejudice prong of ineffectiveness claim without first determining counsel's performance is deficient). There was overwhelming evidence of Perez's guilt as a principal.

At approximately 1:45 a.m. on April 14, two female customers observed a man they later identified as Perez enter the Denny's restaurant. He had on a long trench coat. He perused the smoking section and they later saw him sitting in the waiting area with the victim, the waitress Connie Osborn. The two women left at about 2:10 a.m. and Perez was still in the waiting area. The credit card receipt of one of the women customers was later found in the dead woman's hand. The time of the receipt was 1:59 a.m. Over $500 was missing from the cash register. It appeared the killer fled in Osborn's Trans Am, which was later found near the residence of an acquaintance of Perez's, Steve Schnoebelen.

Two more customers, Vickie Leach and Mark Varvel, arrived at 2:20 a.m. They found the restaurant empty. Varvel checked the bathrooms and found Osborn dead of multiple stab wounds in the men's restroom. Just a few blocks away, a jogger found a bloody knife discarded on the street. Forensic tests later revealed the blood on the blade matched Osborn's. Furthermore, the knife was similar to, if not the same as, a knife seen in Perez's possession.

Later that morning, police were dispatched to Steve Schnoebelen's residence. Schnoebelen testified that Perez had first arrived at his residence on the morning of the murder around 3:00 a.m. carrying a handful of crack cocaine and a wad of cash in excess of what he usually had. At that time, Perez was no longer wearing the tan trench coat Schnoebelen had seen him wearing earlier in the evening. In an effort to get rid of Perez, Schnoebelen offered him a ride anywhere he wanted to go. Perez returned to Schnoebelen's later that morning. Perez was then arrested wearing shoes that had blood on them. Subsequent testing showed the blood was Osborn's. In the squad car, Perez volunteered that Schnoebelen had been with him at Denny's that evening. He also said Schnoebelen had come home, showered, put his clothes in a bag, and dumped them. Perez took officers to the asserted dumping location at 19th and Carpenter Streets. A tan trench coat was later discovered in another dumpster. It was identified as belonging to Perez. Blood on the coat was consistent with that of Osborn, as were blood stains found on Perez's clothes.

In addition to this significant amount of circumstantial evidence, several witnesses testified as to Perez's motive. He was very upset with Osborn in the days before her murder, believing she stole his wallet. He was quoted as saying "[s]he's going to get what she deserves," and he was "going to get even with that fucking bitch," and he was "going to kill that fucking bitch." Perez also had a significant drug habit to supply. Even if the case had been ...

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