from the Iowa District Court for Floyd County, Christopher C.
defendant appeals his conviction for robbery in the first
C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Doyle, J., and Danilson,
POTTERFIELD, PRESIDING JUDGE.
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.
Background Facts and Proceedings.
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
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.
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.
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.
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.
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.
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
was charged with robbery in the first degree.
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.
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.
was convicted as charged and later sentenced to a term of
incarceration not to exceed twenty-five years. He appeals.
Ineffective Assistance of Counsel.
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
contends his trial counsel provided ineffective assistance by
failing to object to inadmissible hearsay testimony by two
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).
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?
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.
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
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.
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).
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
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
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] ...