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State v. Gillette

Court of Appeals of Iowa

February 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
JOSHUA DANIEL GILLETTE, Defendant-Appellant.

         Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.

         Defendant appeals his conviction for robbery in the second degree.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.

          BOWER, JUDGE.

         Joshua Gillette appeals his conviction for robbery in the second degree. We find Gillette has not shown he received ineffective assistance due to defense counsel's failure to object to two jury instructions. We affirm Gillette's conviction for second-degree robbery.

         I. Background Facts & Proceedings

         On February 2, 2015, Michael Graft, who was the manager of a Subway restaurant in Iowa City, drove to a different Subway restaurant in Iowa City to pick up some tuna. He parked directly in front of the restaurant. When he got back into his car, Gillette got into the front passenger side of the car. Graft stated Gillette told him, "Give me all your money, " and displayed a knife. Graft got out of the car, ran into the Subway restaurant, and told an employee to call 911. Graft observed Gillette take a black laptop bag from the vehicle and then run down the street. Graft followed from a distance and saw Gillette enter an apartment building.

         Police officers arrived and eventually found Gillette in the apartment building. Gillette denied ownership of anything and everything in the apartment where he was staying. Graft's black laptop bag was found in Gillette's bedroom. In the closet of the bedroom, officers found a knife inside a tennis shoe.[1] Gillette told officers, "he normally carries a knife but he did not have one on him at that specific time."

         Gillette was charged with robbery in the first degree. At his criminal trial, Gillette testified he was acquainted with Graft and had previously lent him $600. Gillette stated he got into Graft's car and said, "Remember me?" and then, "Where the f*** is my money at?" Gillette testified Graft ran out of the car and yelled, "Call 911." Gillette stated he panicked, took the black laptop bag, and ran back to the apartment. He stated he might have had his cell phone in his hand but did not have a knife. On rebuttal, Graft denied knowing Gillette or owing him money.

         At the close of evidence, the district court informed the parties it had an instruction on a defense of claim of right. Defense counsel stated, "Well, isn't that part of the definition of theft, that it does not-the person taking it did not have a claim of right?" The court explained it did not believe the defense was available in a robbery case but stated, "So we can discuss tomorrow whether we want to have that in or not." The court also informed the parties, "Robbery two will only have the option of threaten or purposefully put in fear. Robbery third will have the committed assault." Defense counsel asked, "Isn't the definition of assault doing an act that puts somebody in fear of?" The court responded, "Well, that's in there too. And simple assault is submitted as well." On the next day, the parties again discussed the jury instructions. Gillette did not object to the instruction on the defense of claim of right or the marshalling instruction for third-degree robbery.

         The jury found Gillette guilty of robbery in the second degree, in violation of Iowa Code section 711.3 (2015), a class "C" felony. Gillette was sentenced to a term of imprisonment not to exceed ten years. He now appeals, claiming he received ineffective assistance of counsel.

         II. Standard of Review

         We conduct a de novo review of claims of ineffective assistance of counsel. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of ineffective assistance of counsel, a defendant must prove (1) counsel failed to perform an essential duty and (2) prejudice resulted to the extent it denied the defendant a fair trial. Id. A defendant's failure to prove either element by a preponderance of the evidence is fatal to a claim of ineffective assistance. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

         III. Ineffective Assistance

         A. Gillette claims the district court erred by failing to instruct the jury a claim of right could be a defense to robbery and instead giving an instruction stating a claim of right could not be a defense to robbery. We find Gillette did not preserve error on this claim because he did not object to the court's proposed instruction. We address the issue under Gillette's alternative claim he received ineffective assistance due to defense counsel's failure to object ...


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