from the Iowa District Court for Polk County, Douglas F.
defendant appeals from his conviction for first-degree
C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Kevin R. Cmelik and Zachary
C. Miller, Assistant Attorneys General, for appellee.
by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
Collins appeals from his conviction for first-degree murder.
He claims: (1) the trial court should have granted his motion
to suppress the evidence of the photo array and out-of-court
identifications because the array was impermissibly
suggestive and unreliable, (2) counsel was ineffective for
failing to request a more detailed eyewitness-identification
jury instruction incorporating system and estimator
variables, (3) counsel was ineffective for failing to request
a jury instruction on the Heemstra requirements
for the assault element of the predicate felony of robbery,
and (4) the sentence was illegal. Because the photo array was
not impermissibly suggestive, counsel did not have a duty to
request a more detailed jury instruction on eyewitness
identification or on the assault element of robbery, and the
sentence was not illegal, we affirm.
Background Facts and Proceedings.
November 7, 2016, police officers discovered the dead body of
Aaron McHenry with multiple gunshot wounds to the shoulder,
arm, chest, and head. The shooting occurred on a dead-end
street at the twenty-six hundredth block of Hickman Lane in
Des Moines, Iowa.
the shooting and after finding a cell phone connecting
Collins to the murder, the police presented a six-person
photo-array depicting Collins and five other individuals to
several residents in the neighborhood. Shirley Dick, a local
resident, said she spoke with Collins while chasing her dog
through the neighborhood around the time of the shooting.
Dick identified Collins in the photo array. Dick also claimed
she had seen Collins in the neighborhood at an earlier time.
another local resident, saw two males through a window of her
house-one was running and one was "speed walking."
P.D. told law enforcement the speed-walking person was
familiar to her because he attended the same high school and
people thought he looked like Bobby Shmurda. The police
created a photo-array for P.D. containing a picture of
Collins, another student resembling Collins, and four other
individuals. P.D. identified Collins.
December 18, 2014, the State charged Collins by trial
information with the crime of first-degree murder. In
February 2016, Collins filed a motion to suppress evidence
related to Dick's and P.D.'s out-of-court
identification of Collins and "any testimony of the
witness's identification by way of the photo array,
" claiming the photo array used in the identification
process was impermissibly suggestive. Collins argued the age
of the individuals in the lineup varied, the background color
on his picture varied from the other individuals, and the
size of his head is smaller than the other individuals'
heads. The State argued the discrepancies were
March 25, 2016 suppression hearing, during direct examination
by the State, Officer Lorna Garcia testified about the
creation of the photo arrays:
Q. How do you typically gather your photographs to put
together a photo array? A. Really our only options for
juveniles are school photos, if they have a driver's
license which oftentimes they don't, booking photos which
we usually don't have for juveniles and so really our
only option, really only photo we had access to at this time
was the photo that was in the Des Moines Public Schools'
Q. Was the photo that the Des Moines Public Schools had in
their database, did that have a background that's similar
to a driver's license photo? A. No.
Q. What was different about the photo that you had of Mr.
Collins? A. It was a bright yellow background, which was kind
Q. Typically what is the background of a driver's license
photo? A. It's a blue, light blue.
Q. Did you or one of the other officers at the station
attempt to do something to the photograph to remove the
yellow background? A. Yes.
Q. How did you select the photos of the individuals that were
in the lineup? A. Same process as the previous lineup with
[E.F.]. I went again to my database of photos. I picked out
pictures of black males that appeared to be the same age as
the defendant and similar in appearance.
Q. In the defense's motion they have challenged the
lineup and one of the grounds that they have challenged it on
is they are alleging that there was nobody that has
approximately the same birth date as Mr. Collins in the photo
array. Is that true that the date when these individuals were
born, that it was not the same year necessarily as Mr.
Collins? A. Correct.
Q. But that doesn't really completely tell the whole
story, does it? Because you have indicated that the
photographs that you have in your database are photographs
that you have used before. Are those photographs of
individuals that were approximately the same age as the
defendant at the time the photographs were taken? A. Yes.
And, in my opinion, the appearance was of the same age range.
Q. So even if they weren't the exact same age, your take
on it was they at least looked to be the same age? A. Yes.
Q. Were there any startling differences between the
photographs? A. No.
cross-examination, the officer continued the explanation of
her process in selecting the photographs:
Q. When you determined from looking at the photos who you
were going to place in the photo array, did you look at the
birth dates? A. I did not.
Q. Did you subsequently learn that three of the individuals
were nearly six years or even over six years older than Mr.
Collins? A. Yes.
Q. One was I think it's two years older than Mr. Collins,
right, and one was four years older. A. Yes.
Q. Before you select photos to include in a photo array, are
you able to look at their dates of birth? A. Yes. If I am
doing jail booking photos, sure, I can do an age range,
that's how we search. But when I was using my database, I
don't search. I look for similar photographs.
Q. When you say your "database, " you just mean the
photos you have collected on your computer? A. Yes.
Q. There is actually a database that assists in gathering up
and finding photos for law enforcement and you have access to
that, right? A. Which one are you talking about?
Q. The jail booking photos and license photos, those
databases you can search by dates of birth. A. The jail
booking I can and then I would have to use that information
to plug in to find comparison photos. It's a little more
difficult for DL photos but, yes.
Q. You didn't do that in selecting the photos in this
case. A. No.
Garcia testified the photo array containing the picture of
Collins was shown to P.D. at approximately 1:00 a.m. and to
Dick at approximately 1:18 a.m. at the respective residences
of the witnesses. The officers testified that both witnesses
were asleep when they arrived to present the photo arrays.
Brad Youngblut also testified during direct examination by
the State about his ...