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Moore v. State

Court of Appeals of Iowa

June 7, 2017

COREY DARNELL MOORE, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.

         An applicant appeals the denial of his application for postconviction relief. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

          Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., and Doyle and McDonald, JJ.

          MCDONALD, Judge.

         Corey Moore was convicted of robbery in the first degree, in violation of Iowa Code section 711.2 (2011); assault causing serious injury, in violation of Iowa Code section 708.2(4); and possession with intent to deliver marijuana while in the immediate possession of a firearm, in violation of Iowa Code section 124.401(1)(d) and (e). This court affirmed Moore's conviction on direct appeal. See State v. Moore, No. 12-2177, 2014 WL 69593, at *1-2 (Iowa Ct. App. Jan. 9, 2014). Moore now appeals the district court's denial of his application for postconviction relief, asserting numerous claims of ineffective assistance of trial counsel, direct-appeal counsel, and postconviction counsel.

         I.

         The relevant offense conduct was set forth in this court's prior opinion:

In 2010, Belinda Robinson became acquainted with Alonzo Henderson through Facebook. Henderson owned a restaurant in Waterloo and invited Robinson to move into his trailer in Cedar Falls and work in his restaurant. Robinson did so, but Henderson became physically abusive and did not pay Robinson for her work in the restaurant.
Due to their acquaintance, Robinson was aware Henderson was a drug dealer and that he was soon to receive a large quantity of marijuana and some quantity of cocaine. At trial, Robinson testified the plan was to rob Henderson of the drugs and "for [Henderson] to get roughed up and if need be then to use duct tape if they had to, but just basically to rough him up." Robinson included in the plan Jacque Dukes, Crystal Cooper, and Lamario Stokes. Moore is a friend of Dukes and joined in the scheme not long before its commission. Robinson was not aware Moore was intending to participate until the day of the robbery.
On January 26, 2011, the marijuana delivery was made to Henderson's residence. Henderson brought in two men to help with the drugs, William McNealy and Ryan Harper. Shortly after the delivery, Robinson drove Harper's car to buy cigarettes and plastic bags, and later met up with Dukes, Stokes, Cooper, and Moore at a nearby motel. While there, they decided to lure McNealy and Harper away from the trailer by telling them Robinson had run out of gas in the Hy-Vee parking lot. The group left Harper's car in the Hy-Vee parking lot and drove back to the trailer in Dukes's car. Robinson made the call, then the group watched as Harper and McNealy left the trailer.
Once Harper and McNealy were gone, Moore, Dukes, and Stokes went into Henderson's trailer. Robinson and Cooper waited in the car. All three men were dressed in black and wore covers over their faces. Henderson testified he was in the kitchen when three people dressed in black kicked in the door to his trailer, though he could not discern their race or gender. Two of the intruders were holding guns and pointing them at Henderson. Henderson further testified the marijuana was clearly visible on the kitchen counter.
Henderson then walked into his bedroom. One of the intruders followed him, and after Henderson turned around, hit him in the head with the gun. The two began to wrestle, and a second intruder came into the room and pointed the second gun at Henderson while the first person backed out of the bedroom. The first intruder stumbled, and Henderson attempted to knock the gun out of his hand. The second intruder then opened fire, shooting Henderson once in the arm-after which the bullet penetrated the abdomen-and once in the leg. All three intruders then left the trailer with the drugs. Henderson went into the living room and looked outside but could not see in which direction the intruders went.
Stokes also testified at trial, stating Henderson was on the couch when he, Dukes, and Moore entered through the unlocked front door. Stokes testified he could see the marijuana on the kitchen island and that Moore was the one who shot Henderson. He further testified the entire group left with the marijuana.
Robinson testified that as the group was driving back to Cedar Rapids, she, Dukes, and Cooper were speaking to each other and texting on their phones. Cooper testified Moore told the group Henderson was "talkin' a lot of crap" so Moore shot Henderson in the leg and arm, and Dukes claimed he hit Henderson in the head with his gun. However, during the struggle, Dukes dropped the gun.
The group drove to the apartment of Moore's girlfriend, Bridget Johnson, where they divided up the marijuana. Johnson testified Moore told her he had robbed someone in the Cedar Rapids area and that during the robbery there was a struggle and he shot someone in the leg.
The police were called to Henderson's home the same day. Two spent casings were found at the scene. While the gun that fired the bullets was not recovered, police found a pistol in a bedroom, though it had a bent magazine that would not allow it to fire. Marijuana residue was found throughout the trailer, and there was a trail of marijuana leading out the door.

Id.

         II.

         A.

         The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The Supreme Court has made the Sixth Amendment applicable to the states via incorporation through the Fourteenth Amendment. "The right to counsel is the right to the effective assistance of counsel." State v. Williams, 207 N.W.2d 98, 104 (Iowa 1973). The constitutional right to counsel applies to the assistance of trial counsel and appellate counsel; there is no constitutional right to postconviction relief, postconviction counsel, or the effective assistance of postconviction counsel. See Williams v. Pennsylvania, 136 S.Ct. 1899, 1920 (2016) (Thomas, J., dissenting); Montgomery v. Louisiana, 136 S.Ct. 718, 746 (2016) (Thomas, J., dissenting) ("Because the Constitution does not require postconviction remedies, it certainly does not require postconviction courts to revisit every potential type of error."). Although not required by the constitution, the Iowa General Assembly has created a postconviction-relief procedure codified at chapter 822 of the Iowa Code. The Iowa Supreme Court has recognized a statutory right to counsel in chapter 822 proceedings and a corresponding statutory right to the effective assistance of postconviction counsel. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994).

         "Generally, postconviction relief proceedings are reviewed for corrections of errors at law." Waters v. Iowa Dist. Ct., 783 N.W.2d 487, 488 (Iowa 2010). However, claims of ineffective assistance of counsel are reviewed de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). This is true whether the claim of ineffective assistance of counsel arises under constitution or statute. See Killings v. State, No. 15-1061, 2017 WL 1735614, at *1 (Iowa Ct. App. May 3, 2017) ("Our review of ineffective-assistance claims-whether constitutional or statutory-is de novo.").

         To establish a claim of ineffective assistance of counsel, Moore must show "(1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice." Straw, 709 N.W.2d at 133 (citing Strickland v. Washington, 466 U.S. 688, 687-88 (1984)). "The claimant must prove both elements by a preponderance of the evidence." State v. Madsen, 813 N.W.2d 714, 724 (Iowa 2012). Failure to prove either element is fatal to the applicant's claim. See Strickland, 466 U.S. at 700 ("Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim."); State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) ("A defendant's inability to prove either element is fatal."). If the applicant fails to meet his or her burden on either element, the court need not address the other. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015) ("If we conclude a claimant has failed to establish either of these elements, we need not address the remaining element.").

         The first element requires proof "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "[C]ounsel's performance is measured against the standard of a reasonably competent practitioner." State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003). There is a strong presumption of counsel's competence. See Strickland, 466 U.S. at 689 ("Judicial scrutiny of counsel's performance must be highly deferential.").

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.

Id. (citation omitted). "Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel." Lando v. State, 804 N.W.2d 248, 251 (Iowa 2011).

         Yet, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691. Under the second element, the applicant is required to show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. It is not enough that the applicant show the error had only some effect on the outcome, as nearly any act or omission by counsel results in some change to the outcome one way or another, but not necessarily in a way that would undermine its reliability. See id. at 693. Rather, "[t]he defendant 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.

         B.

         Moore argues his counsel was ineffective in failing to challenge the sufficiency of the evidence supporting the robbery conviction. Specifically, Moore contends there was insufficient evidence to support the predicate theft because marijuana is contraband per se and contraband per se is not "property" subject to theft.

         We first turn to the elements of the offense.

A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person's escape from the scene thereof with or without the stole property:
(a) Commits an assault upon another.
(b) Threatens another with or purposely puts another in fear of immediate serious injury.
(c) Threatens to commit immediately any forcible felony.

Iowa Code § 711.1(1) (2015). "A person commits theft when the person . . . [t]akes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof." Iowa Code § 714.1. Property is defined as "anything of value, whether publicly or privately owned." Iowa Code § 702.14.

         Moore argues contraband per se is not "property" within the meaning of the statute. The supreme court has "recognized that certain property, the possession of which is illegal, is contraband per se, e.g., heroin and other illegally controlled substances, moonshine and sawed-off shotguns." State v. Ludtke, 446 N.W.2d 797, 800 (Iowa 1989). The supreme court has also stated that "[c]ontraband per se may not legally be possessed, and no valid ownership interest may exist in such property." Id. These cases are limited to the proposition that Iowa does not recognize a property interest in contraband per se for the purposes of forfeiture law or contract law.

         Iowa does recognize a property interest in contraband per se sufficient to support criminal liability for theft. In State v. Sego, 140 N.W. 802 (Iowa 1913), the Iowa Supreme Court held stealing contraband liquor would support a conviction for larceny. In State v. May, 20 Iowa 305, 308 (1866), the court stated while possessing "liquor as an article of traffic is prohibited, and is liable when kept as such, to be seized and destroyed, nevertheless, until this is done, it is in its essential nature property" and "it is a principle or rule of property, as old as the common law itself, that the possession of one is good against all others, who cannot show a better right of possession." The court held, just as "he who steals a stolen article of property from a thief, may himself be convicted notwithstanding the criminality of the possession by his immediate predecessor in crime, " a thief who steals contraband per se can be prosecuted for larceny or robbery because "[l]arceny is a crime against society, and should be punished on account of its own inherent meanness and criminality." May, 20 Iowa at 308-09 (stating larceny is a "distinct crime" from possession of contraband and "both, to be sure, are violations of law, but each has its own specific and appropriate penalty, and each must be dealt with by itself").

         "Today the rule is universal that by prohibiting possession of an item, the government does not license criminals to take it by force or stealth from other criminals." People v. Dillon, 668 P.2d 697, 704 n.5 (Cal. 1983). The policy reasons supporting the rule are numerous and obvious. See id.; see also Commonwealth v. Rourke, 64 Mass. 397, 402 (Mass. 1852) ("Each violation of law is to be dealt with by itself. The felonious taking has its appropriate and specific punishment, so also has the unlawful acquisition."); People v. Otis, 139 N.E. 562, 562 (N.Y. 1923) (stating the contrary result would "license theft" and "encourage the transportation, distribution, and consumption of [the contraband] by the thief").

         Counsel is not required to make an argument contrary to settled and universal law. See Graves, 668 N.W.2d at 881 ("Trial counsel has no duty to raise an issue that has no merit."); State v. Davis, No. 14-1976, 2016 WL 1677591, at *5 (Iowa Ct. App. Apr. 27, 2016) ("Nor does counsel have a duty to raise and relitigate issues already decided."). Moore's counsel did not breach an essential duty in failing to argue this point. The district court did not err in denying this ground for relief.

         C.

         Moore next challenges his robbery conviction. By way of background, the State had several theories of liability with respect to the robbery charge. The marshaling instruction for robbery in the first degree allowed the jury to find Moore guilty as the principal or as an aider and abettor. The district court also instructed the jury on joint criminal conduct with burglary serving as the underlying crime. The joint-criminal-conduct instruction provided:

When two or more persons act together and knowingly commit a crime, each is responsible for the other's acts done in furtherance of the commission of the crime or escape from the scene. The defendant's guilt is the same as the other person's unless the acts could not reasonably be expected to be done in furtherance of the commission of the crime.
The State must prove all of the following elements for Robbery under the theory of ...

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