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On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge. A defendant seeks further review of a court of appeals decision affirming his convictions for voluntary manslaughter and five counts of intimidation with a dangerous weapon with intent.
Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.
A jury convicted the defendant of voluntary manslaughter under Iowa Code section 707.4 (2011) and five counts of intimidation with a dangerous weapon with intent under section 708.6. He appealed his convictions. We transferred the case to the court of appeals. The court of appeals affirmed his convictions. On further review, we find trial counsel was ineffective for failing to move for a judgment of acquittal after the verdict on the intimidation counts because substantial evidence did not support the verdicts that the defendant had committed five separate and distinct acts of intimidation with a dangerous weapon with intent. However, we do find substantial evidence supports two separate and distinct crimes of intimidation with a dangerous weapon with intent. We agree with the court of appeals decision that the record is inadequate to decide the defendant's claim that his trial counsel was ineffective for failing to request he should have been able to read a deposition of an unavailable witness to the jury. We also agree with the court of appeals the district court did not abuse its discretion in failing to admit certain photographs into evidence. Therefore, we affirm in part and vacate in part the court of appeals decision. We also vacate the defendant's convictions on three counts of intimidation with a dangerous weapon with intent, vacate his sentence on the remaining counts of intimidation and the one count of voluntary manslaughter, and remand the case to the district court for resentencing on the two convictions for intimidation with a dangerous weapon with intent and his conviction for voluntary manslaughter.
I. Background Facts and Proceedings.
In reviewing the evidence most favorably to uphold the verdict, we find the following facts. On March 30, 2011, Joevante Howard was walking in a neighborhood in Davenport with relatives and friends, including Joevante's uncle, Milton Howard. The group was traveling to the birthday party of Joevante's sister. The group stopped at a local gas station to pick up beer and other items before continuing to walk east on 12th Street toward the birthday party. The group passed a house at the corner of 12th Street and Pershing Avenue. The defendant Aki Ross was sitting on the porch of this house with four or five other individuals.
When Ross saw the group pass the house, he went upstairs to avoid an altercation
with the group. Ross recognized Milton in the group, yelled out the window to the group and to Milton, and told Milton he did not want any problems. Ross and Milton continued to talk to one another. Ross eventually went downstairs to the porch because he knew Milton and the group would not be leaving soon.
Milton and Ross argued. At one point, several people on the porch physically restrained Ross, and one witness saw Ross with a gun in his waistband. The argument lasted no more than fifteen minutes. Milton told Ross to put down the gun and come into the street and fight. When Ross refused to fight, Milton ran to catch up with his group, who had continued walking down Pershing Avenue. Ross returned to the house.
A short time later Ross ran into the street with the gun and began firing. The members of the group scattered. When Ross began shooting, Milton ran behind a red van on the east side of Pershing Avenue. Joevante was on the opposite side of the street. One witness testified Ross fired three or four shots and then stopped shooting. The witness testified Joevante crossed the street as Ross began firing his gun again. Milton saw a bullet hit Joevante in this second round of shots. Joevante fell. Another person, Milton's cousin Brett Roelandt, had a gun that day and fired one shot at Ross.
Joevante received two gunshot wounds, one in the back of his head and the other in his right thigh. His cause of death was the gunshot wound to the head. The bullet recovered from Joevante's head wound was a .45 caliber. The police recovered eight .45 caliber auto-cartridge cases from the scene. All eight cartridge cases came from the same firearm. The criminalist at trial could not say whether the bullets came from the same firearm. Ross stated at trial that on the day of the shooting he possessed a .45 caliber semi-automatic gun. Roelandt's gun shot .40 caliber ammunition. The police found one .40 caliber cartridge at the scene.
The State originally charged Ross with one count of murder in the first degree under Iowa Code section 707.2 and one count of intimidation with a dangerous weapon with intent under Iowa Code section 708.6. Ross filed a notice of the defenses of self-defense and defense of others. The State amended its charges and charged Ross with one count of murder in the first degree and seven counts of intimidation with a dangerous weapon with intent. Ross moved to dismiss six of the counts of intimidation with a dangerous weapon with intent. The grounds he alleged in the motion to dismiss were the trial information failed to allege separate independent acts of intimidation with a dangerous weapon with intent and the State lacked the factual basis to support seven counts. The district court overruled the motion, stating the State should have the opportunity to prove seven counts.
At the close of the State's case, Ross moved for a directed verdict on the ground the State failed to provide sufficient evidence to support the charges. The court overruled this motion on the ground the State provided sufficient evidence to support the first-degree murder charge and the intimidation-with-a-dangerous-weapon-with-intent charges. Ross renewed his motion for directed verdict at the end of the case. The court overruled this motion for the same reasons it overruled the prior motion. Trial counsel did not make a specific objection concerning the seven separate counts of intimidation with a dangerous weapon with intent.
The court instructed on all seven counts of intimidation with a dangerous weapon with intent. Trial counsel did not object to the jury instruction on the ground the
instruction did not name a particular victim.
The jury returned a verdict finding Ross guilty of the lesser-included crime of voluntary manslaughter and five counts of intimidation with a dangerous weapon with intent. The jury found him not guilty of two counts of intimidation with a dangerous weapon with intent. Trial counsel did not move for judgment of acquittal on the ground the court should have combined the seven counts of intimidation with a dangerous weapon with intent into one count. The district court sentenced Ross to a prison term not to exceed ten years on each count. All sentences were to run consecutively. Ross appeals.
On appeal, Ross claims his trial counsel was ineffective in (1) failing to request a proper jury instruction on the intimidation counts, (2) failing to properly move for a judgment of acquittal at the close of the evidence on the intimidation counts on the basis there was insufficient evidence to submit all seven charges, (3) failing to move for a judgment of acquittal after the verdict on the intimidation counts because substantial evidence did not support five separate convictions, and (4) failing to properly request that a deposition of an unavailable witness be read to the jury. Ross also raises a fifth issue claiming the district court abused its discretion by not allowing him to introduce certain photographs into evidence.
We transferred this case to our court of appeals. The court of appeals preserved all the ineffective-assistance-of-counsel claims for possible postconviction relief proceedings because it determined the record was not adequate to decide these issues. The court of appeals held the district court did not abuse its discretion in excluding the photographs.
When we accept a case on further review, we have the discretion to review all or some of the issues the parties raised on appeal. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). We will resolve ineffective-assistance-of-counsel claims on direct appeal only when the record is adequate. Id. In exercising our discretion, we choose only to review the first three ineffective-assistance-of-counsel claims raised on appeal involving trial counsel's failure to make proper objections to the jury instruction and trial counsel's failure to make two motions for judgment of acquittal because the record is adequate to review these claims. The court of appeals decision will be our final decision on the ineffective-assistance-of-counsel claim involving trial counsel's failure to properly request that a deposition of an unavailable witness be read to the jury because the record is inadequate to reach this issue on direct appeal. Finally, the court of appeals decision on the admission of the photographs will also be this court's final decision. See id. (recognizing the court of appeals decision is our final decision on issues we choose not to review).
III. Standard of Review.
Ineffective-assistance-of-counsel claims are grounded in the Sixth Amendment. Id. We review ineffective-assistance-of-counsel claims de novo. Id. To the extent Ross's claims raise issues of statutory interpretation, our review is for correction of errors at law. State v. Allen, 708 N.W.2d 361, 365 (Iowa 2006).
IV. Ineffective-Assistance-of-Counsel Claims.
We analyze ineffective-assistance-of-counsel claims under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
80 L.Ed.2d 674, 693 (1984). Clay, 824 N.W.2d at 495. The first prong requires the defendant to show a deficiency in counsel's performance. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Under this prong, the presumption is the attorney competently performed his or her duties. Clay, 824 N.W.2d at 495. The defendant " rebuts this presumption by showing a preponderance of the evidence demonstrates counsel failed to perform an essential duty." Id. Counsel breaches an essential duty when counsel makes such serious errors that counsel is not functioning as the advocate the Sixth Amendment guarantees. Id. " [W]e require more than a showing that trial strategy backfired or that another attorney would have prepared and tried the case somewhat ...