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State v. Archer

Court of Appeals of Iowa

May 3, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
VERNARD ARCHER, Defendant-Appellant.

         Appeal from the Iowa District Court for Johnson County, Sean W. McPartland, Judge.

         Vernard Archer appeals his convictions for first-degree burglary, assault while using a dangerous weapon, and third-degree sexual abuse. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          DOYLE, Judge.

         Vernard Archer appeals his convictions for first-degree burglary, assault while using a dangerous weapon, and third-degree sexual abuse. Archer contends his trial counsel was ineffective for failing to move to suppress the "show up" identification procedure, [1] which he alleges violated his due process rights under the Iowa Constitution, and for failing to present expert testimony or request a jury instruction regarding the limitations of eyewitness identification. Archer also argues his counsel was ineffective in failing to challenge the sufficiency of the evidence supporting his sex-abuse conviction. Because Archer has failed to prove the alleged deficiencies in his trial counsel's performance prejudiced him, we affirm.

         I. Background Facts and Proceedings.

         On December 7, 2014, E.W. was sleeping on a living room couch in her boyfriend's Iowa City apartment when she awoke at an early morning hour to find a strange man in the room. The room was dim, lit by two or three miniature Christmas trees, Christmas lighting strung up along the ceiling of the apartment, a light on the stove, and lights from outdoors. Although E.W. was not wearing her glasses, she "briefly" got a good look at the intruder's face before he attacked her and pinned her against the couch with her knees on the floor and her torso and face on the couch. The intruder crouched over her with his knees also on the ground and his whole body over hers. The intruder warned E.W., "Bitch I will kill you" if she screamed and he placed a knife against her neck. Through her jeans, E.W. could feel his erect penis rubbing against her buttocks and genital area. He was rocking back and forth in kind of a grinding motion, breathing heavily in her ear, and saying that he would kill her. After about two minutes of this, E.W. screamed and the intruder pressed the knife harder into E.W.'s neck. The intruder tackled E.W. to the ground and the knife went in harder. A noise came from a bedroom, and the intruder froze. When E.W.'s boyfriend came out of his bedroom, the intruder stood up, turned for the door, and ran out. E.W. told her boyfriend what happened, and one of his roommates immediately called 911. The call was made at 4:45:34 a.m.

         In the 911 call, the intruder was described as a fat black male, around 5'8"-5'9" in height, wearing a black hoodie, jeans, and a "creepy" clear plastic mask. Police officers were on the scene in minutes. E.W. described the intruder as a heavy-set black male, about 5'8" in height, wearing a dark black Carhartt-style coat with a hood, a clear mask, a yellow undershirt, and a beanie hat.

         Officers began looking for the suspect in the vicinity of the apartment. A short time later, two campus officers from the University of Iowa Police Department located and detained a suspect of possible interest-a black male who was near the location of the apartment. E.W. was taken to the location of the detainee. When she saw the individual, she immediately knew he was not the intruder, and she told the officers this. She told the officers the detainee was too tall, too thin, and his skin tone too light. E.W.'s boyfriend was taken separately to the location. He was not sure if the individual was the one he saw in the apartment. E.W. and her boyfriend were then taken back to the apartment, and the subject was let go.

         In the meantime, at 5:22 a.m., about six blocks from the apartment, another officer looking for the suspect saw a person matching the description of the suspect. He was wearing a Carhartt-style jacket, a hooded coat under the jacket, and a yellow shirt. The officer stopped the person, who identified himself as Archer.

         E.W. was taken to the location where Archer was detained. She viewed Archer from across the street while he was struggling with officers and immediately identified him. When she saw Archer, she told officers, "That's him." She said she was "a hundred percent sure." E.W.'s boyfriend was also taken to the location but was unable to say if Archer was the person he saw running out of the apartment. Archer was arrested. A knife bearing E.W.'s DNA was later found in a courtyard adjacent to the apartment building.

         Archer was charged with burglary in the first degree, a class "B" felony, in violation of Iowa Code sections 713.1, 713.3(1)(c) and 713.2 (2015), assault while displaying a dangerous weapon, an aggravated misdemeanor, in violation of section 708.2(3), and sexual abuse in the third degree, a class "C" felony, in violation of sections 709.1(1), 709.4(1) and 702.17. A jury found Archer guilty as charged. He now appeals, contending his trial counsel was ineffective in failing to move to suppress the identification procedure under the Iowa Constitution and in failing to call an expert or request an instruction regarding eyewitness testimony. He also contends his trial counsel was ineffective in failing to challenge the sufficiency of the evidence to establish that he committed a "sex act."

         II. Standard of Review.

         We review ineffective-assistance-of-counsel claims de novo. See State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Generally, we prefer to preserve ineffective-assistance claims for postconviction-relief proceedings, but we may resolve such claims on direct appeal if the record is sufficient. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We find the record is sufficient in this case.

         III. Ineffective Assistance of Trial Counsel.

         To prove his claim of ineffective assistance of counsel, Archer must show: (1) his counsel failed to perform an essential duty; and (2) this failure resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Halverson, 857 N.W.2d 632, 635 (Iowa 2015). Archer must prove both of these elements by a preponderance of the evidence to prevail, and we may affirm on appeal if either element is lacking. See Strickland, 466 U.S. at 687. To show prejudice, Archer "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

         A. Show-up identification procedure.

         Archer argues his counsel was ineffective for failing to move to exclude the identification on state due process grounds. Iowa courts have adopted the federal "reliability" standard to determine the admissibility of an out-of-court identification. See State v. Folkerts, 703 N.W.2d 761, 763-64 (Iowa 2005); State v. Webb, 516 N.W.2d 824, 829-30 (Iowa 1994). Under this standard, the court must determine: (1) if the out-of-court identification procedure was impermissibly suggestive; and (2) if so, whether the procedure gave rise to "a very substantial likelihood of irreparable misidentification" under the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). While conceding that Iowa courts have embraced the federal approach, Archer lobbies for a move to the "necessity" standard followed in Wisconsin in light of continuing scientific research on the reliability of eyewitness identification and the Iowa Constitution's significant protections of individual rights.[2] Under the "necessity" standard, out-of-court show-up identifications are "inherently suggestive" and inadmissible unless the show-up-identification procedure was necessary under the totality of the circumstances. See Dubose, 699 N.W.2d at 593-94.

         We need not address the issue of trial counsel's failure to perform an essential duty because Archer has not shown he was prejudiced by the alleged breach. To prove prejudice, Archer must demonstrate a reasonable probability that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Halverson, 857 N.W.2d at 639 (quoting Strickland, 466 U.S. at 694). In making this determination, we consider the evidence as a whole as well as the extent of the effect of counsel's purported error on the overall trial. See State v. Graves, 668 N.W.2d 860, 882-83 (Iowa 2003).

         To analyze the prejudice prong, we turn to the evidence considered by the jury in this matter. The identifications took place shortly after E.W.'s assault. The officers drove E.W. separately from her boyfriend to the location so the ...


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