Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge.
A defendant appeals from the judgment and sentence entered on a jury verdict of burglary in the first degree, robbery in the first degree, and willful injury causing serious injury.
Matthew M. Boles of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry & Fisher, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Heard by Vaitheswaran, P.J., and Doyle, J., and Goodhue, S.J. [*]
Derrick Steven Pena appeals from the judgment and sentence entered on a jury verdict of burglary in the first degree, robbery in the first degree, and willful injury causing serious injury. The sentences were ordered to run concurrently. The jury had also returned a verdict of guilty on the charges of conspiracy to commit a forcible felony and assault while participating in a felony resulting in serious injury. At sentencing the last two convictions were determined to have merged with those sentences for which Pena was sentenced. Pena contends the trial court should have granted his motions for judgment for acquittal and for new trial as the conviction was not supported by sufficient evidence, and that trial counsel was ineffective in not seeking to sever Pena's trial from his co-defendant, Bobby Thompson.
I. Background Facts and Proceedings
On January 17, 2011, at 10:00 p.m., three men broke into a residence occupied by four residents, including Nikolas Bender. Bender had been selling powder cocaine from the residence since November 2010. He had sold to five different customers, but only two of those customers, one of which was Pena, were allowed to pick up drugs at the residence. Those two customers would knock at the back door and be taken by Bender to his basement bedroom where he kept the drugs in a safe. Strangers usually used the front door, and only friends and the drug buyers used the back door. Bender had retrieved drugs from the safe in Pena's presence a couple of weeks before the break-in.
At about 3:00 p.m. on the day of the break-in, Pena had contacted Bender about purchasing a large amount of powder cocaine, and they had agreed on a sale of the amount specified for $700. Pena said he would get back to Bender later in the evening. Pena's prior purchases had been for smaller amounts in the forty-to-seventy dollar price range. About two weeks prior to the purchase Pena's girlfriend overheard a conversation between Pena and another male that mentioned the Bender residence. When she asked what was going on he said they "would be in a lot of money soon." Also, two-to-four weeks prior to the incident Pena told other occupants of the residence that they should be careful that "in this neck of the woods people get robbed every day."
Eventually all of the perpetrators donned face coverings of some sort. Initially one of them, Bobby Thompson, was not masked and was recognized by Bender. On the date of the break-in, Pena and Thompson spoke by telephone twelve times in the hours before the robbery, none during the time frame of the actual break-in, and eight times in the three hours after the robbery. They had communicated by telephone seven times on January 14 and January 16.
Thompson initiated the entry by approaching the back door of the residence and asking Bender if he could use his telephone. Thompson was accompanied by two others, one of when was subsequently identified as Albert Butler. Neither Thompson nor Butler had ever been to the residence previously. Bender noticed that one of the two men accompanying Thompson had a gun. He retreated into the residence, but the perpetrators were able to keep the door from closing and made entry into the premises. The residents handed over wallets and telephones at the demand of the perpetrators to empty their pockets. It was obvious the perpetrators were not interested in general property items. Thompson stated "that's not what we came for" and demanded to know "where is it at?"
The one carrying a duffel bag led Thompson to the basement and on their return asked for the combination to the safe. The duffel-bag carrier identified Bender as the owner of the safe, and Thompson proceeded to escort him to the basement, but a scuffle ensued. Bender yelled to another occupant, who had remained on the second story, to call the police. During the struggle the third intruder shot Bender in the leg. All three of the intruders left immediately through the back door.
Neither Thompson nor the third perpetrator, Albert Butler, had ever been to Bender's residence before. Pena made no attempt to contact Bender to finalize the $700 purchase that had been negotiated or for any other reason after the incident. The other purchaser who had been to Bender's basement residence did try to contact Bender after the incident. To the extent anyone was able to describe the duffel-bag carrier, there was general agreement that he was of the same race as Pena, fairly good sized, wore dark clothes, and his face ...