from the Iowa District Court for Polk County, Robert B.
appeals the district court decision denying his request for
postconviction relief from his conviction of first-degree
Clemens A. Erdahl of Nidey Erdahl Fisher Pilkington &
Meier, PLC, Cedar Rapids, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., Tabor, J., and Scott, S.J.
Byrd appeals the district court decision denying his request
for postconviction relief from his conviction of first-degree
robbery. Byrd has not shown he received ineffective
assistance based on his claims defense counsel failed to: (1)
file a motion to suppress, (2) impeach the testimony of a
witness, (3) object to prosecutorial misconduct, (4) claim
the State concealed exculpatory evidence, and (5) address the
issue of juror misconduct. We conclude Byrd has not shown he
received ineffective assistance, whether the claims are
considered individually or cumulatively. We affirm the
district court's decision denying his request for
Background Facts & Proceedings
16, 2007, Special Agent Ron Hallock of the Iowa Division of
Narcotics Enforcement, and a cooperating individual, Joshua
Moore, made arrangements to purchase crack cocaine and a
handgun from Littoree Dock. Agent Hallock wore an electronic
transmitter for the transaction. Agent Hallock and Moore went
to an arranged location, where Dock met them in the front
yard and indicated they should enter an apartment. The
apartment was leased by Byrd.
after entering, Agent Hallock was struck in the head. Several
items were taken from Agent Hallock, including $3000 in
government money, a state-issued cell phone, and personal
items. Agent Hallock stated a code word to officers listening
to the electronic transmissions so they would know he needed
assistance. Officers entered the apartment, where they
apprehended Byrd. Moore told officers Byrd put a black gun in
his face and asked him to empty his wallet. Officers later
apprehended Dock and DeMarco Henderson, who were also in the
apartment at the time of the incident.
that day, officers went back to the apartment. According to
officers, Byrd's mother, Cassandra Ntow,  told them her
name was on the lease and she paid the rent. Ntow gave
consent to a search of the apartment. Officers found a black
gun, which was identified by Moore as the weapon used by
Dock, and Henderson were charged with robbery in the first
degree, in violation of Iowa Code section 711.2 (2007). On
the day scheduled for trial, September 19, 2007, the district
court determined Byrd's trial should be severed because
different evidence would be admissible in his trial. The
court stated that if a motion for a continuance was made it
would be granted. Byrd agreed to go forward with the trial
that day. A jury found Byrd guilty of first-degree robbery.
His conviction was affirmed on appeal. See State v.
Byrd, No. 07-1936, 2009 WL 2392081, at *5 (Iowa Ct. App.
Aug. 6. 2009).
filed an application for postconviction relief on March 18,
2010, claiming he received ineffective assistance of
counsel. The district court found Byrd failed to
show he received ineffective assistance because defense
counsel did not (1) file a motion to suppress, (2) adequately
impeach the testimony of Moore, (3) object to alleged
prosecutorial misconduct, (4) seek an audio tape of an
interview of Byrd, and (5) object to alleged juror
misconduct. The court denied Byrd's request for
postconviction relief. Byrd filed a motion pursuant to Iowa
Rule of Civil Procedure 1.904(2). In ruling on the motion,
the court denied Byrd's claim he was entitled to relief
based on cumulative errors by defense counsel. Byrd now
Standard of Review
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, an applicant 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. An
applicant'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).
Motion to Suppress
Byrd claims he received ineffective assistance because
defense counsel did not file a motion to suppress evidence
obtained from the three instances when police officers
entered his apartment. In the first instance, Agent Hallock
entered the residence at the invitation of Dock. As the
district court noted, "Hallock and Moore had no reason
to believe that Dock did not have the authority to invite
them into the apartment." Officers may rely on the
apparent authority of a party to consent to a search.
State v. Jackson, 878 N.W.2d 422, 429 (Iowa 2016).
"The doctrine of consent by apparent authority allows
the government to demonstrate an officer who conducted a
warrantless search was authorized to do so because the
officer 'reasonably (though erroneously)' relied on
the apparent authority of the person who consented to the
search." Id. (citation omitted). Agent Hallock
reasonably believed Dock had apparent authority to consent to
his entry into the apartment and, therefore, the entry did