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Lukinich v. State

Court of Appeals of Iowa

July 24, 2019

DEVON LUKINICH, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.

         Devon Lukinich appeals the denial of his application for postconviction relief. AFFIRMED.

          Angela Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney General, for appellee State.

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.


         Devon Lukinich appeals the denial of his postconviction-relief (PCR) application. Lukinich and his girlfriend, Desirae Pearson, were convicted after a joint jury trial of two counts of first-degree robbery and two counts of first-degree burglary for their actions at two homes on Thanksgiving 2010 when Lukinich was eighteen years old and Pearson was seventeen years old.[1] Lukinich first raised his ineffective-assistance-of-counsel claims on direct appeal from his judgment and sentence, where a panel of this court preserved his claims for PCR. State v. Lukinich, No. 11-1306, 2012 WL 3860742, at *4 (Iowa Ct. App. Sept. 6, 2012). Lukinich filed his PCR application and alleged his trial counsel provided ineffective assistance through ten different errors or omissions. The district court denied Lukinich's PCR application, and he appealed.

         I. Background Facts and Proceedings

         The Iowa Supreme Court summarized the relevant background facts of this appeal in its decision vacating Desirae Pearson's conviction:

On November 25, 2010 Pearson and her boyfriend, Devon Lukinich, armed themselves with BB guns that looked like handguns and went on a robbery spree in Burlington and West Burlington. . . . Pearson and Lukinich wore bandanas to conceal their faces and gloves to guard against leaving fingerprints. Pearson also wore a parka with a fur-lined hood pulled over her head.
Around 9:15 p.m., Pearson and Lukinich were allegedly involved in an altercation with a Burlington resident that led to a 911 call. Though Pearson and Lukinich had fled the scene by the time police arrived, the resident relayed information about Pearson's vehicle to police, who then put out the description of the vehicle to officers in the area.
Around 9:45 p.m., Pearson and Lukinich knocked on the door of Zachary Moore. When Moore opened the door, Pearson pointed her BB gun at Moore and told him that he was being robbed. Lukinich then informed Moore that Pearson was not joking and that he would shoot him if Pearson would not. Lukinich told Moore he was looking for the "weed money" as well as two individuals. Moore testified he laid on the floor while the pair took his laptop, television, iPod, a handheld videogame game system, a small global positioning device (GPS), and some cash.
Later that night, Pearson and Lukinich entered the home of Joan Wright, an eighty-one-year-old woman, and her son, Ronald Wright. At the time, Joan was in bed and Ronald was in the basement. Lukinich climbed through a kitchen window and opened a door for Pearson. Pearson took cash out of a purse that was sitting on the kitchen table. The pair also took three pill bottles containing prescription medication. Lukinich then went into an unoccupied bedroom, while Pearson stood in the hallway just outside the doorway. After hearing noises and seeing the shadows of people she did not recognize, Joan got out of bed to investigate. She saw Lukinich in her son's bedroom, holding Ronald's two shotguns in their cases. Lukinich told Joan to go back to her bedroom, and Pearson told Joan to do as she was told. Lukinich and Pearson then opened their jackets, revealing the BB guns. When Joan yelled to her son that they were being robbed, Lukinich pushed her backward into a doorframe. The force of the blow fractured her shoulder. Lukinich decided to take one of Ronald's shotguns, and the pair left the home. Police responded to the Wrights' home around 11:44 p.m.
Just moments after they left the Wrights' home, police apprehended Pearson and Lukinich in their car. . . . When the officers first viewed the BB guns in the trunk of the vehicle, the officers thought the weapons were real handguns. One of the BB guns bore a strong resemblance to a Glock model 30 handgun and the other to a Taurus PT 1911 handgun.

State v. Pearson, 836 N.W.2d 88');">836 N.W.2d 88, 90-91 (Iowa 2013).

         Lukinich was charged with two counts of first-degree burglary and two counts of first-degree robbery as well as criminal mischief arising from a third incident that evening. Significant to this appeal, an element of both first-degree burglary and first-degree robbery charges is that the defendant had a "dangerous weapon" while committing the crime. See Iowa Code §§ 711.2 (2009) ("A person commits robbery in the first degree when, while perpetrating a robbery, the person . . . is armed with a dangerous weapon."); 713.3(1)(b) ("A person commits burglary in the first degree if, while perpetrating a burglary . . . [t]he person has possession of a dangerous weapon.").

         A jury convicted Lukinich of the first-degree burglary and first-degree robbery charges but deadlocked on the criminal-mischief charge. The district court entered judgment and sentence and imposed the seventy percent mandatory minimum sentence a for first-degree robbery conviction under section 902.12(5). Lukinich appealed. He made three arguments: the district court erred by failing to give the jury a special interrogatory on the question of whether he committed the crimes while in possession of a dangerous weapon; insufficient evidence showed the BB guns used in the crimes were "dangerous weapons" within the meaning of the first-degree robbery and first-degree burglary statutes; and trial counsel was ineffective for failing to hire a ballistics expert to assist in challenging the testimony of the State's ballistics expert.

         On the substantial evidence issue, a panel of our court concluded the evidence on the record supported the jury's finding that the BB guns were "dangerous weapons."[2] Lukinich, 2012 WL 3860742, at *3. The State's ballistics expert's testimony demonstrated the BB guns were "designed primarily for use in inflicting death or injury"; the witness had tested the BB guns and found they shot pellets fast enough to break a person's skin or penetrate their eye and cause serious injury or kill. Id. Other evidence showed the BB gun was a "device of any sort whatsoever which is actually used in such a way as to indicate that the user intended to inflict death or serious injury":

The record further reveals that Lukinich and his co-defendant came to Moore's house. When Moore opened the door, Lukinich's co-defendant pointed a gun "right at" him and said this was a robbery. Lukinich then stated, "If she won't shoot you, I will." Moore assumed Lukinich also had a gun, as he placed a metal object on the coffee table ...

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