                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0590
                                Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TERRACE TYRONE PERKINS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, John D. Telleen

(motion to suppress) and Mark D. Cleve (trial), Judges.



       The defendant appeals from his convictions for robbery in the first degree

and willful injury causing serious injury following a jury trial. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



       Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
                                         2


POTTERFIELD, Judge.

       Terrace Perkins appeals from his convictions for robbery in the first

degree and willful injury causing serious injury following a jury trial.    Perkins

maintains his right to due process was violated when the court admitted an audio

recording as well as testimony about the recording because officers used an

impermissibly suggestive out-of-court identification procedure. He also maintains

the trial court should have found the State used a strike to remove a prospective

juror in a racially discriminatory manner.       Lastly, he argues he received

ineffective assistance from trial counsel because counsel failed to argue the

proper weight-of-the-evidence standard after making a motion for a new trial.

I. Background Facts and Proceedings

       On August 29, 2014, Perkins was charged by trial information with robbery

in the first degree and willful jury causing serious injury. The State also provided

notice that it intended to seek the habitual offender sentencing enhancement

pursuant to Iowa Code sections 902.8 and 902.9(3) (2013).             Perkins was

charged along with a co-defendant, Matthew King.

       On December 12, 2014, Perkins filed a motion to have evidence excluded

at trial.1 He alleged that a police detective had used an impermissibly suggestive

identification procedure regarding an audio recording of Perkins speaking to King

and that the use of the procedure violated his right to due process. Following a

hearing on the matter, the district court filed a written ruling on February 12,

2015. In the ruling, the court found, “The court . . . need not ultimately determine


1
 Perkins’s first trial commenced on November 17, 2014, and ultimately concluded in a
mistrial.
                                        3


whether the procedure employed by Detective Ells was ‘unnecessarily or

impermissibly suggestive’ because under the totality of the circumstances there

is not ‘a very substantial likelihood of irreparable misidentification.’” The court

then denied Perkins’s motion to exclude or suppress the evidence.

      Perkins’s jury trial commenced on February 16, 2015.          Voir dire was

unreported, but a record was made regarding the State’s use of a strike against a

minority juror. The following exchange occurred:

               DEFENSE ATTORNEY: We’re in the process of selecting
      the jury in this matter. I think we’ve gotten down to, actually, the
      sixth strike, and the State, with their sixth strike, struck Juror
      No. 7 . . . who is of African-American heritage. And when I noticed
      that, I thought that it would be appropriate—or necessary, actually,
      to have a Batson v. Kentucky hearing with regard to [the State’s]
      rationale for that strike.
               ....
               PROSECUTOR: Your Honor, I would, first of all, note that
      [the juror] is one of three African-American jurors. The other two
      African-American jurors are—have more education, seem to be a
      little older than the [struck juror]. She is, I think, the youngest
      member of the jury panel. I think this case requires some more
      maturity in age. She was very hesitant in answering questions and
      seemed to have some difficulty following questions concerning
      legal concepts.
               THE COURT: All right. Anything further, [defense attorney]?
               DEFENSE ATTORNEY: Well, I didn’t find that any of her
      answers were objectionable. I think she was being thoughtful in
      trying to answer, you know, with deliberation and not make a
      mistake. I think she’s taking the matter seriously. I certainly don’t
      see anything to indicate that she would be unfair to either side if
      she were chosen to sit on this jury, so I would disagree with the
      prosecutor’s characterization. I don’t think age alone is a reason to
      be striking someone, is a sufficient reason to overcome the Batson
      ruling, anyway, with regard to minority jurors.
               PROSECUTOR: I disagree . . . that somehow the Batson
      ruling assures any minority member who’s placed on the panel a
      position on the panel.
               ....
               THE COURT: The court has listened carefully to statements
      made by both parties in this matter and has brought to this analysis
      also the court’s own impressions of the prospective juror, and the
                                         4


       court finds that the State has articulated a race-neutral explanation.
       Particularly, the court notes that the proposed juror . . . was quite
       hesitant in answering questions and appeared to be nervous and
       generally seemed to be concerned and somewhat nervous.

       At trial, the complaining witness, Gabriel, testified that on July 27, 2014,

he was staying at a hotel in Davenport. That day, Gabriel took King, also known

as “Twin,” to Wal-Mart. Gabriel helped King return some items, and then the

men entered the store together to purchase some items. After leaving Wal-Mart,

Gabriel and King went to a local convenience store to see if someone could help

Gabriel unlock his iPhone. Gabriel was unable to find someone to help him, and

the men returned to the hotel. Gabriel testified he drank a few “tall” beers and

then went to sleep at approximately 10:00 p.m. in room 130—a room rented by

some friends of his. Sometime later, he woke up and went outside to smoke a

cigarette. When he went to grab his jacket out of his van, he found King asleep

inside of it. At approximately the same time, Perkins—whom Gabriel knew as

“T.T.”—walked up and asked for his “cousin Twin.”         Gabriel showed Perkins

where King was sleeping, and Perkins woke him up to come upstairs to sleep in

his room—room 239. Gabriel testified that a third man was also with Perkins at

the time, and the third man took Gabriel’s iPhone with them up to room 239 to

see if he could get it unlocked. After he finished his cigarette, Gabriel went up to

room 239 to retrieve his phone and then went back down to room 130.

       Sometime later, in the early hours of July 28th, Perkins and King came to

room 130 looking for Gabriel. Perkins indicated that he wanted to go somewhere

to shoot Gabriel’s rifle, and Gabriel agreed to take the men out somewhere to do

so. Gabriel testified that after they got out to the field, he loaded the rifle and
                                              5


started to hand it to Perkins, when King stated that he wanted to shoot it first.

After Gabriel handed King the gun, King turned and pointed the gun at Gabriel,

demanding his vehicle keys and his iPhone. When Gabriel refused, King shot

him in the leg. When Gabriel refused a second time, King shot him in the other

leg. Gabriel attempted to wrestle the gun away from King, but Perkins pulled

Gabriel away from King. Once Gabriel was on the ground, both men searched

his pockets and the area around him, and ultimately took his van keys and a

second cellular phone he was carrying.

          As they walked away, Gabriel called 911, but he did not speak to the

operator for fear that Perkins and King would hear him. When the men reached

the van and realized they did not have the iPhone, Perkins shouted at King to

return to Gabriel and find it. King returned and searched Gabriel again, but

Gabriel had hidden the phone in some tall grass near where he was laying.

Once King gave up and fled in the van with Perkins, Gabriel used his iPhone to

again call 911. The second time, he was able to request help. When the first

deputy arrived at the scene, Gabriel told him two people had been involved in the

shooting, and their names were Twin and T.T.

          In the days following the incident, Gabriel told officers that Twin had shot

him, but that a second man was also involved. He referred to the second man as

both T.T. and K.K. during his discussions with the police. When provided a photo

array including King, Gabriel was able to immediately identify him. However,

Gabriel was twice given photo arrays2 including a picture of Perkins, and he was

unable to positively identify him as the second man either time. Gabriel did point

2
    The photo arrays used two different pictures of Perkins.
                                         6


to Perkins in the second array and told the detective that he was not “one

hundred percent positive” that was the second man, but if it was not, they shared

a lot of similar characteristics. Detective Ells instructed Gabriel not to circle the

photograph if he was unsure, and Gabriel did not circle anyone.

       One of the men staying in room 130, Dale, testified at trial. He testified

that Gabriel drank six to eight “tall” beers on the evening and night of July 27th.

He stated Gabriel was also taking shots of whiskey that night and had passed out

in a chair outside, so Dale and one of his brothers had carried Gabriel into their

room to sleep it off. Dale was in room 130 with Gabriel when King and a second

man, who Dale presumed was Perkins because he had seen them together

earlier, came to the door to ask Gabriel for a ride. Gabriel left with the men.

       Detective Ells testified that Gabriel had mentioned room 239 to the police,

so he went there on July 28th. Perkins answered the door and identified the

room as his. When asked, Perkins denied knowing Gabriel or King. When

Gabriel had described the second man to the detective, he stated the man was

wearing a white tank top, which Perkins was wearing when he opened the door

to his hotel room.

       Sometime before August 20, 2014, King was arrested for his part in the

incident, and he was held in jail. A phone call between King and Perkins was

recorded. During the conversation, Perkins indicated that he was trying to help

King with his alibi.

       On August 20th, Detective Ells took the audio to Gabriel’s home to see if

he could identify the voice of Perkins as the second man. Detective Ells did not

identify either man to Gabriel and any identification made by the individuals was
                                         7


removed. Detective Ells asked, “You think you might be able to recognize his

voice if I played a voice recording for you?” Gabriel indicated he might be able

to, and then Detective Ells played the recording. Gabriel immediately indicated

that Perkins’s voice was that of the second man.        He noted that he had an

unusual way of pronouncing or dragging out certain words, such as “boy.”

Following the voice identification by Gabriel, Perkins was charged as the second

man in the incident.

        Sometime before February 2015, King pled guilty to robbery in the first

degree, and he was incarcerated for the crime when he testified at Perkins’s trial.

King testified that he had been sleeping in Perkins’s hotel room before the

incident and Perkins and Perkins’s girlfriend were still asleep when he left the

room.    King testified he and a guy he knew only as “Big Moe” saw Gabriel

smoking a cigarette by his van and they asked him for a ride, which Gabriel

agreed to give. King stated Big Moe stayed in the van while King went out in the

field and shot Gabriel and King forced Big Moe to drive away with him once King

had the keys and a cell phone. Additionally, officers had matched shoeprints in

the field with the bottoms of the shoes Perkins was wearing at the time of his

arrest; King testified he also had a pair of that brand of shoes and that he had

been wearing them at the time of the shooting.

        On February 24, 2015, the jury found Perkins guilty of robbery in the first

degree and willful injury causing serious injury. Perkins filed a “motion in arrest

of judgment or for new trial,” alleging the verdicts are “contrary to and not

supported by the evidence”. After hearing arguments from counsel, the district

court denied the motion on April 3, 2015. Perkins was sentenced to a term of
                                         8


incarceration not to exceed twenty-five years for the robbery conviction and a

term of incarceration not to exceed ten years for the willful-injury conviction. The

two sentences were ordered to run consecutively.

       Perkins appeals.

II. Standard of Review

       Each of the defendant’s claims implicates a constitutional right; we review

constitutional challenges de novo and independently evaluate the totality of the

circumstances shown by the record. See State v. Griffin, 564 N.W.2d 370, 372

(Iowa 1997).

III. Discussion

       A. Out-of-court Identification

       Perkins maintains the district court should have granted his motion to

suppress “all testimony concerning the alleged identification . . . following an

impermissibly suggestive ‘voice’ identification procedure.”3     Perkins maintains

that the failure to use any control recordings as well as the use of an audio that

included the already-identified suspect, King, directed Gabriel to the desired

conclusion. He maintains his right to due process was violated as a result.

       In considering a challenge to an out-of-court identification, we use a two-

step analysis. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993); see also State v.

Walton, 424 N.W.2d 444, 446–47 (Iowa 1988) (“Although our prior cases have

applied this balance to only visual identification procedures, we believe, and

today hold, that the policies underlying the inquiry mandate its application to

3
 We note that Perkins did not raise a separate argument under the Iowa Constitution.
Thus, we consider his claim under the accepted federal framework. See In re J.C., ___
N.W.2d ___, ___, 2016 WL 1273049, at *3–4 (Iowa 2016).
                                              9


voice identifications also.”). “First, we decide whether the procedure used for

identification was impermissibly suggestive. If we find that it was, we must then

decide whether ‘under the totality of [the] circumstances the suggestive

procedure     gave     rise   to   a   very   substantial    likelihood   of   irreparable

misidentification.’”   Taft, 506 N.W.2d at 762 (alteration in original) (citation

omitted). The critical question under the second step is whether the identification

was reliable. Id. In considering the question of reliability, we weigh five factors:

       (1) the opportunity of the witness to [hear] the perpetrator at the
       time of the crime, (2) the witness’[s] degree of attention, (3) the
       accuracy of the witness’[s] prior description of the perpetrator, (4)
       the level of certainty demonstrated by the witness at the
       confrontation, and (5) the length of time between the crime and the
       confrontation.

Id. at 763.

       The burden is on the defendant. See State v. Neal, 353 N.W.2d 83, 86

(Iowa 1984) (“To succeed on this claim, defendant must establish that the

procedures were suggestive and the irregularities gave rise to a substantial

likelihood of irreparable misidentification in the totality of the circumstances.”). If

Perkins fails to meet his burden, “the identification evidence and its shortcomings

or credibility are for the jury to weigh.” Id. at 97.

       Here, the district court found that even if the procedure used by Detective

Ells was unnecessarily or impermissibly suggestive, Perkins could not meet his

burden because “under the totality of the circumstances there is not ‘a very

substantial likelihood of irreparable misidentification.’”

       “It is generally conceded that one-on-one confrontations or ‘show ups’

between an accused and an eyewitness are inherently suggestive.”                 State v.
                                         10

Jackson, 387 N.W.2d 623, 631 (Iowa Ct. App. 1986); but see State v. Walton,

424 N.W.2d 447–48 (Iowa 1988) (holding that a dispatcher’s identification of a

voice as matching an earlier caller’s, where only one voice was provided and it

was less than an hour after the initial call, was not an unnecessarily suggestive

procedure). Here, there were two voices on the recording played by Detective

Ells for Gabriel’s identification, but one of the voices was of the already-identified

co-defendant, who was in police custody at the time.              As a one-on-one

identification, the procedure was inherently suggestive.

       In determining whether the identification was reliable in spite of the

procedure, we consider the five factors listed above.         Gabriel had plenty of

opportunity to hear the perpetrator; he drove the two men to the field, engaged in

a scuffle with the men during the incident, and testified about the second man,

Perkins, encouraging King to return to the field to find the iPhone. Additionally,

although Gabriel had been drinking alcohol and may have passed out due to

intoxication sometime before the incident occurred,4 as the district court stated,

“[h]e was critically concerned and involved in the events taking place.” In the call

to the 911 operator, which took place immediately after the two perpetrators left

the field, Gabriel can be heard speaking coherently as he explains his need for

assistance.    It is unclear from the record whether Gabriel made a prior

description of the perpetrator’s voice, but when he identified Perkins, Gabriel

explained that he recognized the voice because of Perkins’s word choices and

the way he elongated certain words and syllables. Gabriel identified the voice as


4
  Gabriel’s and Dale’s testimony differ on whether or not Gabriel passed out due to
intoxication during the evening of July 27.
                                        11


belonging to the second perpetrator almost immediately after Detective Ells

began playing the recording, and he sounds confident in his assertion—not

hesitating or second-guessing his identification. Detective Ells played the audio

for Gabriel on August 20, 2014—a little over three weeks after the incident

occurred.

       Here, we are persuaded there was not a substantial likelihood of

irreparable misidentification.   Thus, Perkins’s right to due process was not

violated when the district court allowed the jury to weigh the identification

evidence and its shortcomings or credibility. See Neal, 353 N.W.2d at 97.

       B. Batson challenge

       Perkins maintains his right to equal protection was violated when the

district court found that the prosecutor’s use of a peremptory strike to remove a

minority juror was not purposeful discrimination.

       In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the United States Supreme

Court held that the Equal Protection Clause of the Fourteenth Amendment

prevents a prosecutor from using peremptory strikes to challenge potential jurors

“solely on account of their race.” The defendant bears the burden to establish a

prime facie case of purposeful discrimination in selection of the jury panel. Id. at

96; see also Griffin, 564 N.W.2d at 375. To establish the prima facie case, the

defendant must show (1) he is a member of a cognizable racial group, (2) the

prosecutor used peremptory challenges to remove a member of a cognizable

racial group from the jury; and (3) the “facts and any other relevant

circumstances raise an inference that the prosecutor used the strike to exclude”

the juror on the account of the juror’s race. Batson, 476 U.S. at 96; see also
                                         12

Powers v. Ohio, 499 U.S. 400, 416 (1991) (holding the defendant and the

prospective juror do not have to be the same race to qualify for a Batson

challenge). “‘In determining whether a defendant has established the requisite

showing of purposeful discrimination, the court should consider all relevant

circumstances including, but not limited to, a pattern of strikes against [minority]

jurors, as well as the prosecutor’s questions and statements during voir dire.’”

Griffin, 564 N.W.2d at 375 (citation omitted).

       Once the prima facie case has been made, “an inference arises that the

government violated the defendant’s equal protection rights and ‘the State has

the burden of articulating a clear and reasonably specific’ race-neutral

explanation for the peremptory strike.”       Griffin, 564 N.W.2d at 375 (citation

omitted). The trial court must then make a determination whether purposeful

discrimination occurred. Id. “Because the trial court’s determination of whether

purposeful discrimination occurred ‘will largely turn on the evaluation of

credibility, a reviewing court ordinarily should give those findings great

deference.’” Id. (citation omitted).

       Here, the defendant is a member of a minority racial group and the

prosecutor used a peremptory strike against a minority juror. It is unclear from

the record before us whether the relevant circumstances raise an inference that

the use of the strike was on account of the juror’s race. Because voir dire was

unreported, we are unable to “consider all relevant circumstances including, but

not limited to, a pattern of strikes against [minority] jurors, as well as the

prosecutor’s questions and statements during voir dire.’” See id. We do note
                                           13


that it appears at least two other minority jurors were empaneled.5 From this, it

seems there was no “pattern” of striking minority jurors. Additionally, striking one

of three minority jurors is not sufficient, on its own, to raise the necessary

inference that the prosecutor used the strike for racial reasons alone. See State

v. Knox, 464 N.W.2d 445, 448 (Iowa 1990) (holding that the State’s exclusion of

the sole minority juror was not enough to raise the inference). However, because

the district court treated Perkins’s challenge as meeting the prima facie

requirement, we will do the same.

       Even assuming Perkins established his prima facie case, the State

established a neutral, reasonable basis for challenging the juror. The prosecutor

explained that the struck juror seemed hesitant to participate and appeared to be

having some difficulty with the legal concepts.          The court clearly found the

prosecutor’s reason to be credible, as the court echoed the sentiments, stating,

“[T]he Court notes that the proposed juror . . . was quite hesitant in answering

questions and appeared to be nervous and generally seemed to be concerned

and somewhat nervous.”           Here, relying on the district court’s credibility

determination, see Griffin, 564 N.W.2d at 375, we find that purposeful

discrimination did not occur and Perkins’s right to equal protection was not

violated.




5
   As part of the record made, the prosecutor stated to the court, “Your Honor, I would,
first of all, note that [the juror] is one of three African-American jurors. The other two
African-American jurors are—have more education, seem to be a little older than the
[struck juror].”
                                        14


      C. Ineffective Assistance

      Perkins maintains he received ineffective assistance from trial counsel

because counsel “failed to properly argue the motion for new trial.” He maintains

counsel incorrectly argued the sufficiency of evidence standard rather than the

correct weight-of-the-evidence standard and that the district court “likely would

have ruled in Perkins’s favor” if counsel urged the correct standard.

      A defendant may raise an ineffective-assistance claim on direct appeal if

he has reasonable grounds to believe the record is adequate for us to address

the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

To prevail on a claim of ineffective assistance of counsel, Perkins must prove by

a preponderance of the evidence (1) the attorney failed to perform an essential

duty and (2) prejudice resulted from the failure. See State v. Rodriguez, 804

N.W.2d 844, 848 (Iowa 2011).

      “Only in rare cases will the trial record alone be sufficient to resolve the

claim on direct appeal.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). We do

not believe this is one of those rare cases.         We prefer to preserve the

defendant’s claim for possible postconviction-relief proceedings. See State v.

Brubaker, 805 N.W.2d 164, 170 (Iowa 2011) (“[I]neffective-assistance-of-counsel

claims are normally considered in postconviction relief proceedings. A primary

reason for doing so is to ensure development of an adequate record to allow the

attorney charged to respond to the defendant’s claims.”). We preserve Perkins’s

claim. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (“If . . . the court

determines the claim cannot be addressed on appeal, the court must preserve it
                                       15


for a postconviction-relief proceeding, regardless of the court’s view of the

potential viability of the claim.”).

IV. Conclusion

       Perkins’s right to due process was not violated by the admission of the

audio recording used by the complaining witness to identify him. Additionally,

Perkins’s right to equal protection was not violated by the prosecutor’s use of a

peremptory strike against a minority juror.    We do not reach the merits of

Perkins’s claim that trial counsel provided ineffective assistance, so we preserve

the claim for possible future proceedings. We affirm.

       AFFIRMED.
