Appeal from the Iowa District Court for Marion County, John D. Lloyd, Judge.
A defendant appeals his conviction for murder in the first degree.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger and Andrew B. Prosser, Assistant Attorney General and Ed Bull, County Attorney, for appellee.
Heard by Doyle, P.J., and Tabor and Bower, JJ.
After being convicted as the hit man in an alleged murder-for-hire scheme, Terry Cobbins seeks to overturn the jury's verdict based on insufficient evidence. He generally claims he did not commit the murder and specifically asserts a lack of corroboration for the testimony of would-be accomplice Bernard Bussey. Cobbins alternatively asks for a new trial based on ineffective assistance of counsel and improper impeachment.
Reviewing the evidence in the light most favorable to the State, we find ample proof that Cobbins murdered Teresa Miller, including facts independent of Bussey's testimony. Because the record contains strong corroboration, we reject Cobbins's ineffective-assistance claims concerning accomplice testimony. We also find any error in the district court's admission of Cobbins's prior conviction for absence from custody to be harmless. We reserve Cobbins's claim that counsel breached an essential duty by allowing the jury to learn of his prior theft offenses for a postconviction relief action.
I. Background Facts and Proceedings
Terry Cobbins worked at Marzetti's Frozen Pasta in Clive. His boss was Mike Miller, the production supervisor. Miller lived in Knoxville with his wife, Teresa.
Miller also supervised Neida Pinon. Miller told Pinon he was unmarried and the two began having an affair about three months after Pinon started at Marzetti's in October 2009. Miller would often go to Pinon's home in Waukee in the mornings between 5:30 and 6:00. Miller bought her many gifts including a diamond and pearl ring. But when Pinon found out Miller was married, she ended the relationship. The affair rekindled when Miller showed Pinon some divorce papers, but faltered again when Pinon saw Miller with his wife, Teresa. Pinon told Miller he would have to choose between her and Teresa. Pinon left to spend Christmas vacation of 2010 in Mexico, and told Miller to take that time to think it over. When Pinon returned ten days later, Miller picked her up in Kansas City and drove her home to Waukee. Pinon told him if he left that night, their relationship was over. Miller left.
According to Cobbins, it was about that same time, around Christmas of 2010, when Miller started dropping by his house unexpectedly. Miller knew where Cobbins lived because Miller sometimes gave him a ride home from work. Cobbins described Miller as "on edge" and recalled that Miller asked him to find a gun. Cobbins also said Miller requested that Cobbins "take care for some business for him."
Cobbins told his neighbor, Tyree Lewis, that he and his boss were "pretty cool" or "tight." Cobbins also told Lewis the boss wanted his wife killed. Cobbins asked if Lewis would be willing to drive Cobbins to do the job and Cobbins would "do everything else." Cobbins asked Lewis if he could get a gun. He told Lewis the job would be lucrative: they would split $30, 000 or Lewis would get $30, 000. Cobbins broached the subject with Lewis several times, most recently during December of 2010.
Cobbins also talked about his boss with Amber Lyons, his wife's cousin. In the fall of 2010, Cobbins told her he was being paid $50, 000 to "do a hit on some female" in Knoxville. Cobbins told Lyons he was going to wear a trash bag over his clothes so he could "get away with it." One time when Lyons was babysitting for Terry and Monica Cobbins, she saw Miller stop by and duck into Monica's car. When Lyons told Cobbins, he said: "Don't worry about it, it's my boss, he's putting something in the car for me." Cobbins later told investigators Miller left him coveralls and gloves in a bag.
Cobbins twice discussed killing his boss's wife with his friend, Mario McPherson. On the first occasion in the fall of 2010, Cobbins told McPherson he had a way to make some quick money and all McPherson had to do was drive. A few weeks later, he told McPherson he needed to hurt his boss's wife in Knoxville and he would pay McPherson $1000 or $2000 to drive him to Knoxville and back. McPherson also overheard Cobbins on the phone asking where he could get a gun.
On the morning of January 7, 2011, Miller picked up Bernard Bussey, a former employee at Marzetti's, and drove to Pinon's home. Pinon was not expecting Miller. Miller told Bussey to take his car, ostensibly so Bussey could look for a temporary job. Miller knocked on Pinon's door around 6:30 a.m. to ask for a ride to work. Pinon agreed to give him a ride, but they were delayed in leaving because Miller locked Pinon's keys in her car and had to wait for a locksmith to open it.
When Miller and Bussey met later at Marzetti's, Miller told Bussey to use his car to pick up Cobbins from Iowa Lutheran Hospital, where he was recovering from an asthma attack. Cobbins suffered the attack the day before and was admitted to the hospital overnight. Cobbins checked himself out of the hospital when Bussey arrived. The two left the hospital at 8:49 a.m.
Bussey testified he drove Cobbins to a "big old house" in Knoxville, following the directions given by Cobbins. According to Bussey, Cobbins went to the door of the house and was let in. Cobbins stayed inside for five to ten minutes and then returned to the car. Bussey then drove them back to Marzetti's—estimating their arrival at between 11 a.m. and noon.
Meanwhile, Teresa's adult daughter, Shawna Mendenhall, tried to reach her mother the morning of January 7, 2011, and found it unusual she did not answer the telephone. Teresa had severe vision problems and did not have a driver's license. Worried, Mendenhall went to the Millers' Knoxville home just after 10:30 a.m. and found the door uncharacteristically unlocked. Her mother was dead on the kitchen floor, shot once in the head.
An analysis of cell phone records confirmed Cobbins and Bussey arrived in the Knoxville area at the approximate time of Teresa's death. Signals from various cell towers indicated Cobbins's phone was moving from Des Moines to Knoxville between 9:01 a.m. and 10:37 a.m. Then after 10:41 a.m., the cell phone moved back through Pleasantville and toward Des Moines. The cell records revealed a number of calls between Cobbins's cell phone and Miller's cell phone or the phone at Marzetti's.
When Bussey and Cobbins returned from Knoxville, Miller accompanied them to the airport and paid for a rental car for Cobbins. The manager at the Enterprise Rent-A-Car thought Miller and Cobbins seemed "quite antsy and nervous throughout the transaction, " which was completed just after noon. Cobbins drove the rented Chevy Suburban to Milwaukee, Wisconsin.
On January 8, 2011, the morning after the murder, Miller went to Pinon's house to express his love for her. Pinon told Miller about her son finding bullets in the parking spot where her car had been parked when Miller locked the keys inside the day before. Pinon had placed the bullets into a tequila glass on a kitchen shelf. Although Miller denied the bullets belonged to him, he put them in a bag and left with them.
On January 10, 2011, Cobbins started his trip back from Milwaukee, but after receiving a call from his son's mother that there was a warrant out for his arrest in Iowa, he turned around. He was taken into custody by the Wisconsin Division of Criminal Investigation as a material witness. The Wisconsin agents interviewed Cobbins on January 10 and 11. The Wisconsin agents knew Iowa law enforcement searched Cobbins's house and found a MapQuest printout with directions from Marzetti's in Clive to the Millers' house in Knoxville. The map had been printed out on December 8, 2010.
In the interviews Cobbins repeatedly denied going to Knoxville. Cobbins initially said he wasn't sure if Miller was married, but acknowledged "there may be somebody on the side." Cobbins eventually described a situation where Miller "wanted someone handled" in exchange for money. Cobbins said Miller asked him to do it or to find him a gun. Cobbins also admitted Miller brought coveralls to his house to ...