State of Iowa v. Antoine J. Allen ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1144
Filed May 1, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANTOINE J. ALLEN,
Defendant-Appellant.
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Appeal from the Iowa District Court for Clinton County, Henry W. Latham,
Judge.
A defendant appeals his conviction for first-degree robbery. AFFIRMED.
Mark C. Smith, State Appellate Defender, (until withdrawal) and Maria
Ruhtenberg, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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BOWER, Judge.
Antoine Allen appeals his conviction for first-degree robbery. He claims trial
counsel was ineffective for failing to object to an in-court identification and failing
to request an instruction on eyewitness identification. We affirm the conviction and
preserve the ineffective-assistance claims for possible postconviction relief
proceedings.
I. Background Facts & Proceedings
On May 26, 2017, just after 2:00 a.m., a man robbed a Casey’s General
Store, holding a tool as a weapon to an employee’s back while the other two
employees were in the kitchen. He took the employee’s cell phone and wallet
case, had her open the register and took the money, and grabbed several cartons
of Newport cigarettes. The robber dropped some of the cartons as he ran out.
The robbery was caught on the surveillance camera, and the employees in the
kitchen saw the robber before he left. The video showed a male wearing a two-
tone grey hooded sweatshirt with a logo on the lower sleeve, a green shirt
underneath, black sunglasses, two-tone gloves with a logo, jeans, and white tennis
shoes.
Late that morning, the cell phone and wallet case were found on a sidewalk
several blocks away. On May 30, surveillance video was obtained from a different
gas station from the night of May 26, showing the same man that robbed the
Casey’s and showing a vehicle missing a right hubcap driving by immediately after
he left. Police were able to match the vehicle missing the hubcap to Allen. A
search warrant was obtained on May 31, and officers found a sweatshirt, t-shirt,
and gloves matching those worn during the robbery in Allen’s bedroom, and
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matching shoes on the porch. Part of a Newport cigarettes carton and an open
pack of cigarettes were also found in the room. Sunglasses like those worn during
the robbery were found in the vehicle Allen uses.
Allen was interviewed by police and, after some denials, eventually admitted
he owned the clothing and was the person on the video. During the interview,
Allen stated he carried a tool, not a gun, during the robbery. He stated he took the
money and some Newport cigarettes and ran out of the store. Allen mentioned
dropping some of the cigarettes on the way out of the store. Allen’s daughter
identified him on still shots from the surveillance video.
Allen filed, and the court denied, two motions to suppress—one relating to
all evidence found based on the search warrant and the other relating to all
statements made during the interview. A jury trial was held on May 14 and 15,
2018. The State offered testimony from the three Casey’s employees and three
officers who worked on the investigation. The Casey’s surveillance video from four
separate cameras was offered into evidence. One of the employee witnesses
specifically identified Allen as the perpetrator during testimony. The officer who
interviewed Allen testified regarding Allen’s admissions and the clothing found in
Allen’s bedroom. The jury found Allen guilty of first-degree robbery.
Allen appeals.
II. Standard of Review
We review claims of ineffective assistance of counsel de novo. Ennenga v.
State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, a defendant must show (1) the attorney failed to perform an
essential duty and (2) prejudice. State v. Carroll, 767 N.W.2d 638, 641 (Iowa
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2009). “[A] defendant has the burden to prove by a preponderance of the evidence
that counsel was ineffective.” State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
III. Analysis
Allen first claims his trial counsel failed an essential duty by failing to object
to a witness’s in-court identification, explaining at length why an in-court
identification can be impermissibly suggestive and inherently prejudicial. Allen
also claims counsel was ineffective for failing to request an instruction on
eyewitness identification.
We presume counsel’s performance falls within a range of reasonable
professional assistance. State v. Ondayog, 722 N.W.2d 778, 787 (Iowa 2006). In
determining whether an attorney failed in performance of an essential duty, we
avoid second-guessing reasonable trial strategy. Fullenwider v. State, 674 N.W.2d
73, 75 (Iowa 2004). “[P]ostconviction proceedings are often necessary to discern
the difference between improvident trial strategy and ineffective assistance.”
Ondayog, 722 N.W.2d at 786.
The record here is incomplete as to why counsel did not object to the in-
court identification and did not request a jury instruction on eyewitness
identification. We note counsel cross-examined the witness and was able to
identify inconsistencies between the testimony and the visual evidence for the jury.
Allen bears the burden to show his attorney performed below professional norms
regarding in-court eyewitness identification and related jury instruction and to
establish sufficient prejudice to undermine our confidence in the outcome. See
Strickland v. Washington, 466 U.S. 668, 694 (1984). On this record, we decline to
adjudicate defense counsel’s competency.
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We affirm Allen’s conviction and preserve his ineffective-assistance-of-
counsel claims for possible postconviction relief proceedings.
AFFIRMED.