                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0417
                              Filed August 16, 2017


JESUS JAVIER DUENAS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt,

Judge.



      Jesus Duenas appeals the district court’s denial of his application for

postconviction relief following his 2011 conviction for robbery in the first degree.

AFFIRMED.




      Alexander Smith of Parrish Kruidenier Dunn Boles Gribble Gentry Brown

& Bergmann, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.




      Considered by Doyle, P.J., Bower, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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MAHAN, Senior Judge.

       Jesus Duenas appeals the district court’s denial of his application for

postconviction relief (PCR) following his 2011 conviction for robbery in the first

degree.    Upon our review, we affirm the court’s order denying Duenas’

application for postconviction relief.

I.     Background Facts and Proceedings

       In its decision affirming Duenas’ conviction on direct appeal, this court set

forth the following facts surrounding the incident leading to Duenas’ charge:

               On January 22, 2011, at approximately 1:20 p.m., Bianca
       Mireles heard a noise like the door “being forced open” in the
       basement of her Des Moines home. Bianca looked downstairs and
       saw two men. The men saw Bianca then “turned around” and
       “ran.” Bianca called her brother, Miguel, to ask if he could come
       home because she was “scared” and “thought someone had just
       broken in.” Miguel told Bianca to lock the doors and that he was on
       his way. Bianca stayed on the phone with Miguel as she walked
       downstairs to lock the door. As Bianca approached the door, she
       saw “the two guys talking to each other.”
               The men noticed Bianca. One of the men “pulled out a gun”
       and pointed it at her. The man with the gun then walked toward
       Bianca, “grabbed” her by her hair, and “slammed” her head against
       the wall and a door. The man “threw [Bianca] on the floor” and
       started kicking her in the face, back, and the back of her head. He
       then hit her head with the gun, and yelled “to give him money” and
       “give him [her] phone.” The other man went upstairs briefly and
       then said, “Let’s go.” The two men then “ran out the same door” in
       the basement. Des Moines police officers arrived shortly thereafter.
               Bianca stated the man with the gun was wearing a “black
       hoodie” during the robbery. Bianca recognized the man as
       “Gremlin,” also known as Jesus Duenas. Bianca stated she
       knew Duenas because he had dated her friend, Cammy. At one
       point while the man with the gun was beating her, Bianca said,
       “Gremlin, why are you doing that?” to which the man said “Shut up.”
       The following day, Bianca identified Duenas from a line-up with six
       photographs shown to her by police.                    Bianca also
       identified Duenas at trial. Bianca stated she was “100 percent
       sure” the man with the gun was Duenas. Bianca could not identify
       the other man.
                                        3


               Miguel’s testimony corroborated Bianca’s recollection of the
       phone call that took place during the course of the robbery. Miguel
       called the police after his phone call with Bianca disconnected.
               During an interview with police, Duenas stated he was
       working during the time of the robbery and that he had only left
       work to have lunch at Target. Police contacted Duenas’ employer,
       West Glen, to obtain surveillance records. West Glen Operations
       Manager Jodi Runge testified that West Glen tracks entry into most
       buildings with records of digital key-fob use and surveillance
       video. The records for Duenas on the day of the robbery revealed
       a gap in the time-log between 11:48 a.m. and 2:43 p.m. Video
       surveillance showed Duenas walking south off West Glen
       property—not in the direction of Target—at approximately 11:48
       a.m. Video surveillance showed Duenas returning to the property
       as a passenger in a car at 2:26 p.m. Duenas then entered a West
       Glen bathroom and left a black hooded sweatshirt in a stall.
               The State charged Duenas with robbery in the first degree.
       The jury found Duenas guilty as charged.                  The court
       sentenced Duenas to serve a twenty-five year prison term, subject
       to a mandatory minimum sentence of seventy percent.
       Accordingly, Duenas’ mandatory minimum sentence was
       seventeen-and-a-half years.

State v. Duenas, No. 11-1565, 2012 WL 4097278, at *1-2 (Iowa Ct. App. Sept.

19, 2012) (footnote and citation omitted). The court affirmed Duenas’ conviction,

rejecting his challenge to his sentence as being cruel and unusual punishment as

applied to him. Id. at *2-3.

       Duenas filed a PCR application, claiming the district court abused its

discretion by admitting testimony from Des Moines Police Officer Jeffrey

Shannon regarding the West Glen surveillance video without admitting the video

itself. Duenas later filed an amended PCR application through counsel, claiming

trial counsel was ineffective in failing to obtain the surveillance video and the

State suppressed exculpatory evidence by withholding the video. Following a

hearing, the PCR court entered an order denying Duenas’ claims.
                                          4


         Duenas appeals. Facts specific to his claims on appeal will be set forth

below.

II.      Standard of Review

         We typically review the district court’s ruling on a PCR application for

correction of errors.    Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016).

However, we conduct a de novo review of applications raising constitutional

infirmities, including claims of ineffective assistance of counsel. Id.

III.     Ineffective Assistance of Counsel

         As part of his investigation, Officer Shannon questioned Duenas about his

whereabouts on January 22, 2011, the day of the robbery. Duenas changed his

story a few times before telling Officer Shannon he was at work at West Glen

Town Center from 9:00 a.m. to 3:00 p.m., except for his lunch break at noon

when he went next door to Target and ate alone for about one-half hour before

returning to work. The robbery took place at approximately 1:00 p.m.

         Officer Shannon reviewed video surveillance from Duenas’ employer to

determine the validity of Duenas’ alibi.      From the surveillance video, Officer

Shannon learned Duenas actually left work for more than two and one-half hours

that day.     At trial, Officer Shannon testified about his observations of the

surveillance video, stating, “11:48 [a.m.] was the time that [Duenas] was in the

main lobby leaving, approximately 11:48,” and he “walked out of the building and

then had walked south towards Mills Civic Parkway.” Officer Shannon further

testified, “Didn’t see him again after the 11:48 time until about 2:26 p.m.,” at

which time he was “[c]oming back, pulling up . . . and getting out of a car.”
                                         5


       The time stamp on the video shows Duenas leaving work at “17:48” and

getting dropped back off at work at “20:26.” Duenas then left in the same car at

“20:42.” If the time stamp was correct, it would have Duenas leaving work at

8:42 p.m.; however, the video showed it was light outside when he left. The PCR

court concluded, and we agree, considering the “ambient light” on the video (in

January in Iowa, sunset is between 5:00 and 6:00 p.m.) and Duenas’ testimony

about his work schedule, it is clear the video surveillance time stamp is incorrect.

       On appeal, Duenas contends his trial counsel was ineffective in failing to

obtain the surveillance video or use it to impeach Officer Shannon’s testimony.

According to Duenas, “The video would have undercut the State’s impeachment

of [his] alibi defense”; “[i]f prior counsel had cross-examined the officer with the

help of the video, the jury would have learned that Officer Shannon’s testimony

was incorrect, and placed substantial doubt in the State’s timeline.”

       To prevail on a claim of ineffective assistance of counsel, Duenas must

show “(1) counsel failed to perform an essential duty; and (2) prejudice resulted.”

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). “If we conclude [Duenas] has failed to

establish either of these elements, we need not address the remaining

element.” State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015); State v. Clay,

824 N.W.2d 488, 501 n.2 (Iowa 2012) (“The court always has the option to

decide the claim on the prejudice prong of the Strickland test, without deciding

whether the attorney performed deficiently.”). We elect to address Duenas’ claim

on the prejudice prong.
                                           6


       In addition to the video surveillance, on the day at issue, Duenas’ time

card showed he punched into work at 9:34 a.m. and punched out at 2:46 p.m.

Duenas’ key-fob report showed he used his card to access certain areas at 9:39,

10:05, 10:13, 10:14, 11:02, 11:03, 11:42, 11:44, 11:46, and 11:48 a.m., with no

activity again until 2:43 p.m., which was also the last time Duenas used his card

that day.1 Despite the obvious time-stamp discrepancy, the video surveillance

showed that Duenas left work during the middle of his shift, he “walked in the

opposite direction of Target” (where he said he ate lunch), and he returned to

work two and one-half hours later. When Duenas returned to work, he went into

the bathroom wearing “what appeared to be a coat or sweatshirt,” and “[w]hen he

exited the bathroom, he wasn’t wearing it any longer.”2 Duenas clocked out for

the day shortly thereafter and left work in the same car that had just dropped him

off.

       Upon our review, considering the evidence presented to the jury, we

conclude the discrepancy between the time stamp and the times testified to by

Officer Shannon would not have impeached the officer’s credibility. Given the

slight potential impeachment value of the surveillance video and the

overwhelming evidence of his guilt,3 Duenas has not shown a reasonable

probability the outcome of his trial would have been different had trial counsel

obtained the surveillance video and attempted to use it to impeach Officer

Shannon’s testimony.       See Thorndike, 860 N.W.2d at 320 (setting forth the

1
  It was possible, however, for Duenas to work in areas of the building without using his
key fob.
2
  Officers later found a black hooded sweatshirt in the bathroom.
3
   Additional evidence of Duenas’ guilt is set forth above in our recitation of the
background facts of the case.
                                         7


standard to establish prejudice as “whether there is a reasonable probability that,

absent [counsel’s alleged deficiencies], the factfinder would have had a

reasonable doubt respecting guilt” (quoting Strickland, 466 U.S. at 695)). In sum,

Duenas has not established the prejudice prong of his ineffective-assistance-of-

counsel claim, and we affirm on this issue.

IV.    Suppression of Exculpatory Evidence

       Duenas also contends the State suppressed exculpatory evidence—i.e.,

the surveillance video, which “he could have used to impeach the police officer

and prove his alibi defense”—in violation of Brady v. Maryland, 373 U.S. 83

(1963). In Brady, the Court held “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.” 373 U.S. at 87.

       The PCR court determined the surveillance video was not suppressed.

We agree. Evidence is considered suppressed “when information is discovered

after trial ‘which had been known to the prosecution but unknown to the

defense.’”    Harrington v. State, 659 N.W.2d 509, 522 (Iowa 2003) (citation

omitted). At the PCR hearing, Duenas’ trial counsel testified he “heard the first

time about some kind of surveillance tape” at trial, not after trial. Moreover, as

the PCR court acknowledged, Duenas stated he was aware of the surveillance

video when he was charged because it was discussed in the trial information and

at his preliminary hearing. The surveillance video was also discussed at Officer

Shannon’s deposition. Duenas stated he recalled discussing the video with trial

counsel prior to trial.
                                           8


         In any event, because the video was discussed at trial and Duenas’

attorney had an opportunity to decide what course of action to take at that time,

we conclude the evidence was not suppressed. See State v. Bishop, 387

N.W.2d 554, 559 (Iowa 1986) (stating where evidence is “disclosed during trial

and at a meaningful time, due process has not been denied”); see also State v.

Veal, 564 N.W.2d 797, 810 (Iowa 1997) (“Evidence is not considered

‘suppressed’ if the defense is able to take advantage of it at trial.”), overruled in

part on other grounds by State v. Hallum, 585 N.W.2d 249 (Iowa 1998).

         In light of our conclusion the video was not suppressed, we need not

address the remaining elements of Duenas’ Brady claim,4 and we affirm on this

issue.

V.       Conclusion

         Upon consideration of the issues raised on appeal, we affirm the court’s

denial of Duenas’ application for postconviction relief.

         AFFIRMED.




4
  The PCR court went on to find, “Even if the tape had been suppressed, it was not
material, as there is not a reasonable probability that the outcome of Mr. Duenas’ trial
would have been different had the tape been disclosed.” See, e.g., Harrington, 659
N.W.2d at 516 (“[T]o establish a Brady violation, the defendant had to prove ‘(1) the
prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and
(3) the evidence was material to the issue of guilt.’” (citation omitted)).
