STATE of Iowa, Appellee, v. Aki Malik ROSS, Appellant.
No. 11-1133.
Supreme Court of Iowa
March 21, 2014
WIGGINS, Justice.
DISTRICT COURT JUDGMENT AFFIRMED; WRIT ANNULLED.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.
A jury convicted the defendant of voluntary manslaughter under Iowa Code section 707.4 (2011) and five counts of intimidation with a dangerous weapon with intent under section 708.6. He appealed his convictions. We transferred the case to the court of appeals. The court of appeals affirmed his convictions. On further review, we find trial counsel was ineffective in failing to move for a judgment of acquittal after the verdict on the intimidation counts because substantial evidence did not support five separate and distinct convictions. However, we do find the instruction on the intimidation-with-a-dangerous-weapon-with-intent counts did not name a particular victim and trial counsel was not ineffective for fаiling to object to the instruction on that ground. We also agree with the court of appeals the record is inadequate to decide the defendant’s claim that his trial counsel was ineffective for failing to request he should have been able to read a deposition of an unavailable witness to the jury. We also agree with the court of appeals the district court did not abuse its discretion in failing to admit certain photographs into evidence. Therefore, we affirm in part and vаcate in part the court of appeals decision. We also vacate the defendant’s convictions on three counts of intimidation with a dangerous weapon with intent, vacate his sentence on the remaining counts of intimidation and the one count of voluntary manslaughter, and remand the case to the district court for resentencing on the two convictions for intimidation with a dangerous weapon with intent and his conviction for voluntary manslaughter.
In reviewing the evidence most favоrably to uphold the verdict, we find the following facts. On March 30, 2011, Joevante Howard was walking in a neighborhood in Davenport with relatives and friends, including Joevante’s uncle, Milton Howard. The group was traveling to the birthday party of Joevante’s sister. The group stopped at a local gas station to pick up beer and other items before continuing to walk east on 12th Street toward the birthday party. The group passed a house at the corner of 12th Street and Pershing Avenue. The defendant Aki Ross was sitting on the porch of this house with four or five other individuals.
When Ross saw the group pass the house, he went upstairs to avoid an altercation with the group. Ross recognized Milton in the group, yelled out the window to the group and to Milton, and told Milton he did not want any problems. Ross and Milton continued to talk to one another. Ross eventually went downstairs to the porch because he knew Milton and the group would not be leaving soon.
Milton and Ross argued. At one point, several people on the porch physically restrained Ross, and one witness saw Ross with a gun in his waistband. The argument lasted no more than fifteen minutes. Milton told Ross to put down the gun and come into the street and fight. When Ross refused to fight, Milton ran to catch up with his group, who had continued walking down Pershing Avenue. Ross returned to the house.
A short time later Ross ran into the street with the gun and began firing. The members of the group scattered. When Ross began shooting, Milton ran behind a red van on the east side of Pershing Avenue. Joevante was on the oppositе side of the street. One witness testified Ross fired three or four shots and then stopped shooting. The witness testified Joevante crossed the street as Ross began firing his gun again. Milton saw a bullet hit Joevante in this second round of shots. Joevante fell. Another person, Milton’s cousin Brett Roelandt, had a gun that day and fired one shot at Ross.
The State originally chаrged Ross with one count of murder in the first degree under Iowa Code section 707.2 and one count of intimidation with a dangerous weapon with intent under Iowa Code section 708.6. Ross filed a notice of the defenses of self-defense and defense of others. The State amended its charges and charged Ross with one count of murder in the first degree and seven counts of intimidation with a dangerous weapon with intent. Ross moved to dismiss six of the counts of intimidation with a dangerous weapon with intent. The grounds he allegеd in the motion to dismiss were the trial information failed to allege separate independent acts of intimidation with a dangerous weapon with intent and the State lacked the factual basis to support seven counts. The district court overruled the motion, stating the State should have the opportunity to prove seven counts.
At the close of the State’s case, Ross moved for a directed verdict on the ground the State failed to provide sufficient evidence to support the сharges. The court overruled this motion on the ground the State provided sufficient evidence to support the first-degree murder charge and the intimidation-with-a-dangerous-weapon-with-intent charges. Ross renewed his motion for directed verdict at the end of the case. The court overruled this motion for the same reasons it overruled the prior motion. Trial counsel did not make a specific objection concerning the seven separate counts of intimidation with a dangerous weаpon with intent.
The court instructed on all seven counts of intimidation with a dangerous weapon with intent. Trial counsel did not object to the jury instruction on the ground the instruction did not name a particular victim. When we accept a case on further review, we have the discretion to review all or some of the issues the parties raised on appeal. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). We will resolve ineffective-assistance-of-counsel claims on direct appeal only when the record is adequate. Id. In exercising our discretion, we choose only to review the first three ineffective-assistance-of-counsel claims raised on appeal involving trial counsel’s failure to make proper objections to the jury instruction and trial counsel’s failure to make two motions for judgment of acquittal because the record is adequate to review these claims. The court of appeals decision will be our final decision on the ineffective-assistance-of-cоunsel claim involving trial counsel’s failure to properly request that a deposition of an unavailable witness be read to the jury because the record is inadequate to reach this issue on direct appeal. Finally, the court of appeals decision on the admission of the photographs will also be this court’s final decision. See id. (recognizing the court of appeals decision is our final decision on issues we choose not to review).
When we accept a case on further review, we have the discretion to review all or some of the issues the parties raised on appeal. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). We will resolve ineffective-assistance-of-counsel claims on direct appeal only when the record is adequate. Id. In exercising our discretion, we choose only to review the first three ineffective-assistance-of-counsel claims raised on appeal involving trial counsel’s failure to make proper objectiоns to the jury instruction and trial counsel’s failure to make two motions for judgment of acquittal because the record is adequate to review these claims. The court of appeals decision will be our final decision on the ineffective-assistance-of-counsel claim involving trial counsel’s failure to properly request that a deposition of an unavailable witness be read to the jury because the record is inadequate to reach this issue on direct appeal. Finally, the court of appeals decision on the admission of the photographs will also be this court’s final decision. See id. (recognizing the court of appeals decision is our final decision on issues we choose not to review).
Ineffective-assistance-of-counsel claims are grounded in the Sixth Amendment. Id. We review ineffective-assistance-of-counsel claims de novo. Id. To the extent Ross’s claims raise issues of statutory interpretation, our review is for correction of errоrs at law. State v. Allen, 708 N.W.2d 361, 365 (Iowa 2006).
A. Generally.
We analyze ineffective-assistance-of-counsel claims under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under Clay, 824 N.W.2d at 495. The first prong requires the defendant to show a deficiency in counsel’s performance. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under this prong, the presumption is the attorney competently performed his or her duties. Clay, 824 N.W.2d at 495. The defendant “rebuts this presumption by showing a preponderance of the evidence demonstrates counsel failed to perform an essential duty.” Id. Counsel breaches an essential duty when counsel makes such serious errors that counsel is not functioning as the advocate the Sixth Amendment guarantees. Id. “[W]e require more than a showing that trial strategy backfired or that another attorney would have prepared and tried the case somewhat differently.” Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). Trial counsel has no duty to raise an issue that lacks merit. See State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).
The second prong requires the defendant to show “the deficient рerformance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial....” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must prove by a reasonable probability the result of the proceeding would have differed but for counsel’s errors. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
B. Whether Trial Counsel Was Ineffective in Failing to Request Proper Jury Instructions on the Intimidation Counts.
“[F]ailure to recognize an erroneous [jury] instruction and preserve error breaches an essential duty.” State v. Ondayog, 722 N.W.2d 778, 785 (Iowa 2006). The marshaling instruction the court used on the intimidation-with-a-dangerous-weapon-with-intent counts was as follows:
Under Counts 2, 3, 4, 5, 6, 7 and 8, the State must prove all of the following elements of Intimidation With a Dangerous Weapon with Intent for each count:
- On or about the 30th day of March, 2010, the defendant discharged a handgun within an assembly of people.
- The handgun was a dangerous weapon.
- The victim actually experienced fear of serious injury and his or her fear was reasonable under the existing circumstances.
- The defendant shot the handgun with the specific intent to injure or cause fear or anger in a person.
- That said act was done without justification.
Ross argues trial counsel should have objected to the instruction on the ground that instead of using the word “victim” in the jury instruction, the proper interpretation of Iowa Code section 708.6 is to indicate the name of each particular victim. Ross argues the unit of prosecution in this statute is for each victim, and therefore the State must name seven victims. If this argument is meritless, trial counsel was not ineffective.
Tо determine the validity of Ross’s claim, we must first decide what act the general assembly criminalized under Iowa Code section 708.6. Iowa Code section 708.6 provides:
A person commits a class “C” felony when the person, with the intent to injure or provoke fear or anger in another, shoots, throws, launches, or discharges a dangerous weapon at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat, occupied by another person, or within an assembly of people, and thereby places the occupants or people in reasonable apprehension of serious injury or threatens to commit such an act under circumstances raising a reasonable expectation that the threat will be carried out.
A plain reading of the statute indicates the general assembly intended to criminalize four alternative acts that would constitute intimidation with a dangerous weapon with intent. The first act is when a person (1) has the specific intent to injure or provoke fear or anger in another; (2) shoots, throws, launches, or discharges a dangerous weapon; (3) at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat; (4) that is occupied by another person; and (5) places the occupants in reasonable apprehension of serious injury. The second act is when a person (1) has the specific intent to injure or provoke fear or anger in another; (2) shoots, throws, launches, or discharges a dangerous weapon; (3) within an assembly of people; and (4) the people are placed in reasonable apprehension of serious injury. The third and fourth acts differ in only requiring a person with the requisite intent threatens to shoot, throw, launch, or discharge a dangerous weapon in an occupied structure or vehicle or within an assembly of people. In this case, we are only concerned with the second method of violating Iowa Code section 708.6.
1The phrase “reasonable apprehension of serious injury” requires consideration of both the state of mind of the actor and the victim. State v. White, 319 N.W.2d 213, 215 (Iowa 1982). Ross only challenges sufficiency of evidence for the victim’s—the assembly of people—state оf mind. The jury must determine the actual effect of the shooting on members of the assembly and if a reasonable person in the position of persons in the assembly would have been frightened. See id. at 215–16 (stating the lack of evidence from which the jury could find the alleged victim experienced apprehension of serious injury was fatal to the claim).
Ross argues trial counsel failed to make the specific objection there was insufficient evidence to prove each victim was fearful regarding the intimidation-with-a-dangerous-weapon-with-intent counts when trial counsel made a motion for judgment of acquittal. Trial counsel is required to make a specific objection in his or her motion for judgment of acquittal in order to preserve error. State v. Schоries, 827 N.W.2d 659, 664 (Iowa 2013). We agree with Ross that trial counsel failed to make the specific objection that insufficient evidence existed to prove each individual victim was fearful regarding the intimidation-with-a-dangerous-weapon-with-intent counts when trial counsel made a motion for judgment of acquittal.
Under the way the State charged this case, we do not measure each individual count of intimidation with a dangerous weapon with intent by looking for an individual victim for each count. See Smith, 573 N.W.2d at 19 (identifying the elеment of the crime as firing into a group of people). The proper question for us to decide is whether substantial evidence, including any inferences arising from the evidence, supports the jury verdict. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). This requires us to determine whether Ross’s actions placed the victim, in this case the people in the assembly, in reasonable apprehension of serious injury when Ross discharged his firearm.
In determining whether substantial evidence supports a verdict, we view the evidence in the light most favorable to the State. State v. Neiderbach, 837 N.W.2d 180, 216 (Iowa 2013). We consider the evidence substantial if it can convince a rational jury the defendant is guilty beyond a reasonable doubt. Id.
In Velez, we discussed three separate tests to determine if substantial evidence exists to convict a defendant of multiple assaults arising from a singlе altercation between the defendant and his victim. See State v. Velez, 829 N.W.2d 572, 577–85 (Iowa 2013). The first step in the analysis is to determine the general assembly’s intent for the unit of prosecution. Id. at 579. Determining the unit of prosecution is another way of saying, what act did the general assembly criminalize? The statute states the act of intimidation with a dangerous weapon with intent is committed as an assault on a group of people, rather than an assault on an individual. See Smith, 573 N.W.2d at 19.
When the general assembly defines a unit of prosecution based upon an аct or omission of the defendant, our decision in Velez and cases in other jurisdictions have considered certain factors to aid the fact finder in determining if the defendant’s assaultive conduct is one continuous act or a series of separate and distinct acts. These factors are (1) the time interval occurring between the successive actions of the defendant, (2) the place of the actions, (3) the identity of the victims, (4) the existence of an intervening act, (5) the similarity of defеndant’s actions, and (6) identifying the defendant’s intent at the time of his actions. Williams, 90 So.3d at 933; Velez, 829 N.W.2d at 581–84; Rambert, 459 S.E.2d at 513; Handa, 897 P.2d at 230. We also use these factors to determine if substantial evidence supports the fact finder’s verdict.
Although the identity of the victim is the same in both crimes, the general assembly’s intent in criminalizing intimidation with a dangerous weapon with intent recognizes a defendant may assault the same victim twice, as long as the assaults are separate and distinct acts. See Velez, 829 N.W.2d at 584 (finding two separate crimes against the same victim). Another factor is that Joevante’s act of crossing the street after the first series of shots was an intervening act causing Ross to start firing his gun again. Thus, the record supports only two separate and distinct acts. The first act occurred before the pause and the second occurred before the pause and the second occurred after the pause when Ross shot Joevante.
Therefore, the evidence was not substantial to convince a rational jury that Ross was guilty beyond a reasonable doubt on all five counts of intimidation with a dangerous weapon with intent. However, we do find substantial evidence supports Ross’s conviction for two counts of intimidation with a dangerous weapon with intеnt based on the factors enumerated. The first set of shots constituted one continuous crime of intimidation with a dangerous weapon with intent. The second set of shots constituted another continuous crime of intimidation with a dangerous weapon with intent.
Accordingly, had trial counsel made the proper motion, the court would have only upheld two counts of intimidation with a dangerous weapon with intent. Failing to make the proper motion prejudiced Ross by allowing the jury to convict Ross of threе additional felonies. We find trial counsel was ineffective for failing to make the proper motion. The proper remedy is to vacate Ross’s conviction on three counts of intimidation with a dangerous weapon with intent.
V. Summary and Disposition.
We affirm Ross’s conviction for voluntary manslaughter and for two counts of intimidation with a dangerous weapon with intent. We reverse Ross’s conviction for three counts of intimidation with a dangerous weapon with intent. We preserve for a postconviction relief aсtion Ross’s claim his trial counsel was ineffective for failing to properly request that a deposition of an unavailable witness be read to the jury. We also agree with the court of appeals the district court did not abuse its discretion in failing to admit certain photographs into evidence. Thus, we affirm in part and vacate in part the court of appeals decision. We also vacate Ross’s sentences on all his convictions because the district court ran each sentence consecutively. Therefore, we remand the case to the district court for resentencing on the conviction for voluntary manslaughter and for the two convictions for intimidation with a dangerous weapon with intent.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, SENTENCES VACATED, AND CASE REMANDED FOR RESENTENCING.
WIGGINS
Justice