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Byrd v. State

Court of Appeals of Iowa

September 26, 2018

JOE LOUIS BYRD, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

         Applicant appeals the district court decision denying his request for postconviction relief from his conviction of first-degree robbery.

          Clemens A. Erdahl of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar Rapids, for appellant.

          Thomas 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. [*]

          SCOTT, SENIOR JUDGE.

         Joe 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 postconviction relief.

         I. Background Facts & Proceedings

         On May 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.

         Immediately 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.

         Later that day, officers went back to the apartment. According to officers, Byrd's mother, Cassandra Ntow, [1] 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 Byrd.

         Byrd, 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).

         Byrd filed an application for postconviction relief on March 18, 2010, claiming he received ineffective assistance of counsel.[2] 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 appeals.

         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, 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).

         III. Ineffective Assistance

         A. Motion to Suppress

         (1) 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 ...


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