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State v. McIntyre

Court of Appeals of Iowa

January 9, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
DONALD EDWARD McINTYRE, Defendant-Appellant.

          Appeal from the Iowa District Court for Floyd County, Christopher C. Foy, Judge.

         The defendant appeals his conviction for robbery in the first degree.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

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

          Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J. [*]

          POTTERFIELD, PRESIDING JUDGE.

         Donald McIntyre appeals his conviction for robbery in the first degree. He maintains (1) trial counsel provided ineffective assistance by failing to object to hearsay statements, to the admission of shoeprint evidence, to instances of prosecutorial misconduct, and to the definition of "armed" in a jury instruction; (2) the court erred in including language pertaining to a knife in the dangerous-weapon instruction; and (3) the trial court should have granted his motions for judgment of acquittal and for new trial based on the weight of the evidence.

         I. Background Facts and Proceedings.

         On December 27, 2015, around 6:00 or 6:15 a.m.-while it was still dark outside-Dennis Gifford returned home after driving to a local gas station to buy the Sunday newspaper. As Gifford was standing in his driveway, a man he did not recognize walked up to him and abruptly began hitting him in the head with a small bat that had tape wrapped around it. The blows knocked Gifford to the ground, and the man began to tussle with Gifford, announcing several times that Gifford owed "big money." During the struggle, Gifford was able to get on top of the man for a short time. However, while Gifford was restraining the man and deciding what to do next, the man was able to roll Gifford over and get back on top. From this position, the man held the bat against Gifford's neck and applied pressure; Gifford almost lost consciousness. Gifford was able to retrieve some cash from his wallet, which he then offered to the man. As the man reached to take the money, Gifford got up and ran away. He locked himself in his cabinet shop and called 911. The man fled.

          After officers arrived, Gifford provided a description of the man, stating he was approximately six-foot tall, with a slender, unshaven face, and was wearing a black jacket with a tied hood as well as a black stocking cap. The officers recovered a twelve-inch knife and a long bat-approximately fourteen inches- which had black electrical tape wrapped around it. The items were on the ground near Gifford's broken glasses, coffee cup, and newspaper. Officers also photographed certain shoeprints in the snow they believed belonged to the assailant.

         Gifford went to the emergency room for treatment of his injuries. While he was there, officers created a photo lineup with pictures of men who lived in the area based on Gifford's description of the man. The lineup included a picture of McIntyre. McIntyre's home is located about one block from Gifford's, and there is a direct line of sight from McIntyre's front door to Gifford's home. Gifford did not make an identification.

         The next day, Officer Bradley Bilharz was at a local gas station when he saw McIntyre in the store, wearing his hood up with a stocking cap on. Officer Billharz recognized McIntyre from the lineup and thought he matched the description given by Gifford. He followed McIntyre outside and took a photo of a boot print McIntyre left in the snow outside the gas station.

         On January 5, 2016, officers executed a search warrant of McIntyre's home. The officers noted and photographed McIntyre's large weapon collection, including bats and knives with a similar electrical tape application as the weapons recovered at the scene. Additionally, the officers noted a pair of boots sitting by McIntyre's door that they believed had the same tread as the prints at the scene. McIntyre denied the boots were his, stating they were too small for his feet, but he was able to put them on when officers asked him to try. McIntyre's wife, Michelle, claimed the boots were hers and she was able to put them on, but she had to loosen the laces in order to get them on over the foot brace she wears. When the boots were first located by the door, the laces were pulled tight.

         On January 26, Gifford was shown the same lineup he had been shown on the day of the incident; the second time, he identified McIntyre as the assailant.

         In November, the Department of Criminal Investigations issued a report stating it had tested both the knife and bat recovered from the scene. The major contributor of DNA from the swab from the knife handle was consistent with the known DNA profile of McIntyre, with the probability of finding that profile in a population of unrelated individuals less than one out of one hundred billion. Additionally, the partial contributor of DNA from the swab taken from the handle of the bat was consistent with the known DNA profile of McIntyre, with the probability of finding that profile in a population of unrelated individuals less than one out of seventy-six billion.

         McIntyre was charged with robbery in the first degree.

         A multi-day jury trial took place in late 2017. The State called Gifford, who recounted the attack and again identified McIntyre as the attacker. The State also called Thomas Downer, who testified that he had been with McIntyre off and on the morning of the attack. He stated that after McIntyre and Michelle had a fight, McIntyre started acting odd and saying "something about a job." He testified that a few days after the attack, McIntyre told him he had been at someone's house, there had been a struggle-during which time he had thrown a bat-and that he was missing a knife. On cross-examination, the State questioned Downer about his change in testimony from his deposition, when he testified that at the time he left McIntyre's house, McIntyre was shoeless, wearing a pair of shorts and t-shirt, and "didn't look like he was about to be going anywhere." Downer agreed his testimony was different, stating his deposition testimony was a result of his and McIntyre's close relationship and "ha[ving] each other's backs type of thing." Downer also agreed that between his deposition and trial testimony, he had reached an agreement with the prosecutor's office that if he cooperated and testified truthfully at trial, his probation would not be revoked for an unrelated charge.

         McIntyre testified in his own defense. He maintained he was home sleeping during the attack; he argued Gifford had mistaken his identify and the weapons from the scene-though he had likely owned them at one time-were brought there by one of the many people who had previously traded, purchased, or stolen weapons from him. McIntyre called several witnesses who testified they believed McIntyre was home asleep during the time of the attack, but no one was able to testify that they had witnessed him doing such, though McIntyre's wife testified she saw him sleeping on the couch at 6:30 a.m.

         McIntyre was convicted as charged and later sentenced to a term of incarceration not to exceed twenty-five years. He appeals.

         II. Discussion.

         A. Ineffective Assistance of Counsel.

         McIntyre maintains his trial counsel provided ineffective assistance in a number of ways. We review claims of ineffective assistance de novo. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). McIntyre bears the burden to show "(1) counsel failed to perform an essential duty; and (2) prejudice resulted." Id. at 495 (citation omitted). Additionally, he asks that we look to the cumulative effect of counsel's errors to determine whether he was prejudiced by counsel's errors. See id. at 500 ("Iowa recognizes the cumulative effect of ineffective assistance of counsel claims when analyzing prejudice under Strickland."). As always when a defendant makes a claim of ineffective assistance on direct appeal, "[i]f the challenged actions of counsel implicate trial tactics or strategy, we will not address the issue until fully developed." Id. In such cases, we preserve the claim for possible later consideration. See State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018) ("If the development of the ineffective-assistance claims in the appellant brief was insufficient to allow it consideration, the court of appeals should not consider the claim, but it should not outright reject it.").

         1. Hearsay Testimony.

         McIntyre contends his trial counsel provided ineffective assistance by failing to object to inadmissible hearsay testimony by two witnesses.

         Hearsay is a statement that, "(1) The declarant does not make while testifying at the current trial or hearing; and (2) A party offers into evidence to prove the truth of the matter asserted in the statement." Iowa R. Evid. 5.801(c). "Hearsay . . . must be excluded as evidence at trial unless admitted as an exception or exclusion under the hearsay rule or some other provision." State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006) (alteration in original) (citation omitted).

         The first error McIntyre alleges is counsel's failure to object to Officer Bradley Billharz's testimony that McIntyre's friend and alibi witness Garrett Tegtmeier had told the officer, "Don [McIntyre] did it." Specifically, Officer Billharz testified:

Q. And then on January 7 of 2016, you did an interview of Garrett Tegtmeier; is that correct?
A. Yes.
Q. Did you do anything else as part of that interview?
A. I just asked him if he'd seen anything happening in the area or heard anything about the assault. He did not hear or see anything about what happened. At one point of our interview he goes Don did it. And I said Don did what. And he didn't say anything else then. So I don't know what he meant by that.

         McIntyre maintains counsel breached an essential duty because the testimony was meant to prove that McIntyre was the assailant and no exception to the hearsay rule made the statement admissible.

         The State concedes "that a hearsay objection at that point would likely have been sustained, and the testimony would have been struck." Yet the State urges us to find that McIntyre was not prejudiced by the failure, arguing the State could have got the same evidence properly admitted later by calling Officer Billharz in rebuttal to Tegtmeier's testimony that he believed McIntyre was home sleeping at the time the incident occurred and did not have contrary information regarding McIntyre's whereabouts.

         We have no information regarding why counsel did not object. And at the time Officer Billharz made the hearsay statements, Tegtmeier had not yet testified that he believed McIntyre was home at the time of the attack. We will not presume counsel was engaged in a trial tactic. See State v. Tompkins, 859 N.W.2d 631, 643 (Iowa 2015) (concluding counsel could have objected to a statement and preserving the issue for later adjudication); Clay, 824 N.W.2d at 500-01 (concluding record was insufficient to resolve ineffective-assistance-of-counsel claim on direct appeal when record was not developed as to trial counsel's state of mind with respect to counsel's failure to object).

         We also will not presume facts not in the record to establish that McIntyre was not prejudiced. While the State might have been able to recall Officer Billharz in order to offer the disputed testimony in rebuttal, we will not take for granted the fact that the State would have done so. We acknowledge that "[i]n considering whether the admission of hearsay evidence is reversible error, we have held that notwithstanding the presumption of prejudice from the admission of such evidence, the erroneously admitted hearsay will not be considered prejudicial if substantially the same evidence is properly in the record." Newell, 710 N.W.2d at 19. But that is the not the situation here. Thus, we preserve this claim for possible postconviction relief. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (holding it is the court's role to determine whether a claim of ineffective assistance can be addressed on direct appeal).

         Next, McIntyre challenges his counsel's failure to object to testimony from the State's witness Thomas Downer. Downer testified as follows:

Q. Did you check or look for him at his own residence?
A. Um, a few hours passed before I did. Um. And then I asked Michelle if he was home because he was-because how he was acting. And she said no.
. . . .
Q. Now, Mr. Downer, was Donald McIntyre ever located that morning?
A. Um, it would have been early-early morning that he was located. Michelle-Or he had gotten a phone call. I'd gotten a phone call from Tegtmeier saying that [McIntyre] ...

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