                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0563
                               Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MAURICE MONTRAIL HAYES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.



      Maurice Hayes appeals his convictions after a jury found him guilty of

attempted murder, first-degree robbery, and assault causing bodily injury.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
                                        2


DOYLE, Judge.

       Maurice Hayes appeals his convictions after a jury found him guilty of

attempted murder, first-degree robbery, and assault causing bodily injury. He

challenges the sufficiency of the evidence supporting his conviction and the

admission of certain evidence. He also alleges he received ineffective assistance

of trial counsel.

       I. Background Facts and Proceedings.

       William Butcher was making repairs to his car outside an apartment building

in the early morning hours of May 12, 2016, in order to arrive at work by 5:30 a.m.

Sometime after 3:00 a.m., he was approached by a man who asked if he had a

cigarette. After Butcher gave the man a cigarette, the man asked if Butcher could

make change for a $20 bill. When Butcher took out his wallet, the man came

running at him with a gun, and the two scuffled before Butcher ran into the

apartment where his girlfriend, Kay Oertwig, was staying. Butcher told Oertwig

and her mother that someone had just tried to rob him. When they looked out an

apartment window, the man was digging around in Butcher’s car. Oertwig ran out

of the apartment to confront the man, chasing after him as he walked away. The

man stopped walking and turned around to face her, and Oertwig got close enough

to make eye contact with him, although his face was covered up to his nose. The

man ripped away a silver chain that Oertwig was wearing before striking her in the

head with the gun. Butcher, who had run after Oertwig, was charging at the man

when the man shot him twice.

       While Butcher was in the hospital recovering from surgery, he was

presented with a photographic array that included a photograph of Hayes. In the
                                        3


photograph, Hayes’s hairstyle was different from the way it appeared in May 2016.

Butcher was unable to identify any of the men depicted as the man who shot him.

      During the police investigation, Des Moines Police Detective Danny White

obtained surveillance video footage taken at the apartment complex at the time of

the shooting. The footage showed Shayla Shade dropping her cousin off at a

different building in Oertwig’s apartment complex at 3:22 a.m.       Shortly after

Shade’s cousin and the cousin’s boyfriend exited Shade’s vehicle and went inside

the apartment building, a person who Shade identified as Hayes exited the front

passenger seat of Shade’s vehicle. As Shade drove away, the person identified

as Hayes walked north, in the direction of Oertwig’s apartment building and

Butcher’s car. Thereafter, the footage is consistent with the accounts provided by

Butcher and Oertwig; it shows two figures “moving around a little bit” for ten

minutes before one of the figures—later seen to be Butcher—is shown running

from a vehicle and into the apartment building, while the other figure chases him

before returning to the vehicle. The footage then shows Oertwig confronting the

figure, the figure assaulting Oertwig, and Butcher being shot. Finally, the footage

shows the figure walking out of the camera’s frame.

      Detective White also obtained surveillance video footage from Shade’s

apartment complex, which was not far from Oertwig’s apartment complex. The

surveillance footage shows a figure—who appears to be the same individual

depicted in the video footage from Oertwig’s apartment—running through a grassy

area and parking lot before entering Shade’s apartment building. Surveillance

video taken from inside Shade’s apartment building shows that the individual

walking away from Shade’s apartment is carrying what appears to be a black
                                           4


hooded sweatshirt when he enters a laundry room for a moment. He then leaves

the laundry room without the sweatshirt.

       A warrant was issued for Hayes’s arrest in connection with the events of

May 12. On June 26, 2016, an off-duty police officer spotted Hayes and arrested

him. During an interview at the police station, Hayes claimed he was out of town

on May 12.

       At trial, both Oertwig and Butcher identified Hayes as the assailant. The

surveillance video footage was presented to the jury, as was the first three-and-

one-half minutes of Hayes’s June 2016 interview at the police station.          After

deliberating, the jury returned its verdict, finding Hayes guilty of attempted murder,

first-degree robbery, and assault causing bodily injury.

       II. Sufficiency of the Evidence.

       Hayes first contends there is insufficient evidence to support his convictions.

We review challenges to the sufficiency of the evidence to support a conviction for

correction of errors at law. See State v. Kelso-Christy, ___ N.W.2d ___, ___, 2018

WL 2070572, at *2 (Iowa 2018). In doing so, we view the evidence in the light

most favorable to the State. See id. The question is whether substantial evidence

supports the finding of guilt. See id. Evidence is substantial if it would convince a

rational factfinder that the defendant is guilty beyond a reasonable doubt. See id.

       Hayes challenges the evidence concerning the identity of the assailant.

Specifically, he argues the eyewitness identifications by Butcher and Oertwig are

not credible and the surveillance footage is inconclusive because it does not

definitively show that Hayes was the assailant.
                                        5


      Oertwig identified Hayes as the assailant, although she testified she could

only see his eyes. Butcher also identified Hayes as the assailant, though he was

less certain. When asked to describe the man who shot him, Butcher testified:

              A. At the time he had like—I don’t know what you call it. Like
      a porcupine, his hair. He was wearing a hoodie. I believe it was a
      hoodie. I don’t know what color it was. I just remember there might
      have been rubber bands in his hair. I’m not for sure.
              Q. How did you describe his hair? A. Like a porcupine.
              Q. Sticking up on top? A. Yeah. I don’t know.
              Q. What was the race of the individual? A. Black.
              Q. Approximate age? A. I would say 20s.
              Q. Aside from him wearing a hoodie, did you make any
      observations about what he was wearing? A. No.
              Q. Mr. Butcher, do you feel you can make a positive
      identification of the person who shot you? A. Yes.
              Q. You think you can? A. I mean, it’s as close as I can, but
      the hair is different, though.
              Q. You told us before you couldn’t be a hundred percent sure.
      A. That’s correct.
              Q. Do you feel that same way today? A. Yes.
              Q. But you did see this person? A. Yes.
              Q. Is there anybody here today in this courtroom, sir, who
      looks like the person that bummed that cigarette off of you and shot
      you? A. Right there (indicating).
              Q. Is there anything different about this person than the
      person you observed shooting you? A. Just the way his hair is.
              Q. Aside from that, does he look very similar to the person
      who shot you? A. Yes, he does.
              Q. Are you saying a hundred percent identification? A. No.
              Q. But he looks like the same guy? A. Correct.

      At the close of evidence, Hayes moved for judgment of acquittal. He

argued, in part, that there was insufficient evidence to establish he was the

assailant. The trial court denied the motion, noting the testimony of Oertwig and

Butcher was bolstered by surveillance video footage and Shade’s testimony.

      We agree there is adequate evidence by which a rational jury could find

Hayes guilty beyond a reasonable doubt. Although Hayes notes discrepancies in

the evidence—for instance, Shade’s testimony that she never saw him in
                                          6


possession of a firearm on May 12—any conflicts in the evidence are to be

resolved by the jury, whose job it is to sort out and weigh the evidence and

determine credibility. See State v. Fetters, 562 N.W.2d 770, 775 (Iowa Ct. App.

1997). Although Hayes argues that Oertwig only saw her assailant’s eyes and

Butcher was not “a hundred percent certain” in his identification, “the strength of

the identity evidence of these witnesses is a question for the jury.” State v. Shorter,

893 N.W.2d 65, 74 (Iowa 2017). The identifications of Hayes made by Oertwig

and Butcher are bolstered by the surveillance video footage from May 12.

Although Hayes argues the footage is “inconclusive” because it does not

definitively show him to be the assailant, Shades identified Hayes as the person

exiting the front passenger seat of her vehicle. The jury could reasonably conclude

that the same person is seen assaulting Oertwig and shooting Butcher before

returning to Shade’s apartment.

        Sufficient evidence supports Hayes’s convictions.

        III. Admissibility of Evidence.

        Hayes next contends the trial court erred in admitting the video of his June

2016 police interview, which shows him being escorted into the interview room in

handcuffs, as well as a photograph taken from the video footage that shows him

in handcuffs. He argues the probative value of the evidence was outweighed by

the danger of unfair prejudice. See Iowa R. Evid. 5.403 (“The court may exclude

relevant evidence if its probative value is substantially outweighed by a danger

of . . . unfair prejudice . . . .”).

        We review evidentiary rulings for an abuse of discretion. See State v.

Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). We will reverse only when the
                                          7


district court’s decision rests on grounds or on reasons clearly untenable or to an

extent clearly unreasonable. State v. Redmond, 803 N.W.2d 112, 117 (Iowa

2011). Because weighing probative value against unfair prejudice is not an exact

science, we give the trial court a great deal of leeway in making this judgment.

See State v. Einfeldt, ___ N.W.2d ___, ___, 2018 WL 1980676, at *8 (Iowa 2018).

       Rule 5.403 sets forth a two-step test for admissibility of evidence; first, the

court must consider the probative value of the evidence, and second, the court

must balance the probative value against the danger of unfair prejudice. See id.

Evidence is relevant if it “has any tendency to make a fact more or less probable

than it would be without the evidence” and that fact “is of consequence in

determining the action.” Iowa R. Evid. 5.401. Evidence is unfairly prejudicial if it

“appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct

to punish, or triggers other mainsprings of human action [that] may cause a jury to

base its decision on something other than the established propositions in the

case.” State v. Shanahan, 712 N.W.2d 121, 137 (Iowa 2006) (citation omitted).

       The State argues the evidence was relevant to the identification issue.

Hayes was interviewed by police in June 2016, several weeks after the May 12

assault on Oertwig and the shooting of Butcher. The evidence indicates Hayes’s

hairstyle at the time of trial was different from his hairstyle on May 12, whereas his

hairstyle in the interview video and photograph from was similar to his hairstyle on

May 12. Because the evidence was probative of whether Hayes was the assailant,

the question is whether its probative value was outweighed by the danger of unfair

prejudice. The trial court found it was not:
                                            8


              The court overruled that objection and allowed that evidence
       in for the following reason. The testimony indicated that the
       defendant was arrested in late June shortly before the interrogation,
       and the circumstances of his arrest had previously been explained
       to the jury. As a result, this jury was aware the defendant was
       arrested. They were aware the interrogation took place at the police
       station shortly after that arrest. And, as a result, any prejudice that
       might have arisen from seeing the defendant in handcuffs is de
       minimis in the Court’s view.
              By way of 5.103(b), that is the reason why the court allowed
       the exhibits. If there is any prejudice, it is so insignificant, in light of
       the testimony, that I don’t believe it is unfair prejudice.

       An off-duty police officer testified the he saw Hayes on June 26, 2016,

recognized that Hayes had an outstanding arrest warrant, and arrested him.

Detective White testified that Hayes was arrested and taken into custody at the

police station in June 2016, during which time the detective interviewed him.

Therefore, the video and photograph did not depict anything that the jury did not

already know. See State v. Buchanan, No. 03-0230, 2004 WL 1071896, at *5

(finding defendant was not prejudiced by evidence showing him in prison garb and

handcuffs where the jury already knew the defendant was in custody when the

photos were taken because “[n]o prejudice can result from seeing that which is

already known” (quoting Estelle v. Williams, 425 U.S. 501, 507 (1976))). The arrest

and interview concerned the events of May 12, for which Hayes was on trial, not

an unrelated arrest or conviction, lessening the likelihood of unfair prejudice. See

State v. Clay, 213 N.W.2d 473, 480 (Iowa 1973) (finding court did not abuse its

discretion in admitting into evidence for the purpose of identification a mug shot

taken after defendant’s arrest for the crime upon which his prosecution was

based). As such, the trial court did not abuse its discretion in admitting the video

or photograph.
                                            9


         IV. Ineffective Assistance of Counsel.

         Finally, Hayes argues his trial counsel was ineffective in several respects.

Our review of ineffective-assistance-of-counsel claims is de novo. See State v.

Halverson, 857 N.W.2d 632, 634 (Iowa 2015). However, we generally preserve

such claims for postconviction-relief proceedings where a proper record can be

developed. State v. Null, 836 N.W.2d 41, 48 (Iowa 2013). We will only address

claims of ineffective assistance of counsel on direct appeal when the record is

sufficient to decide the issue. See State v. Ross, 845 N.W.2d 692, 697 (Iowa

2014).

         We employ a two-prong test for determining whether counsel was

ineffective. See State v. Russell, 897 N.W.2d 717, 729 (Iowa 2017). The first

prong of the test, established in Strickland v. Washington, 466 U.S. 668, 687

(1984), requires a showing that counsel failed to perform an essential duty. See

State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012). The second prong requires a

showing of prejudice. See id. While asserting its right to apply different principles

when analyzing state constitutional claims, our supreme court has applied the

Strickland test when reviewing ineffective-assistance claims brought under the

Iowa Constitution. See, e.g., State v. Halverson, 857 N.W.2d 632, 635 (Iowa 2015)

(applying the Strickland standard to ineffective-assistance claims brought under

the Iowa Constitution when the defendant did not suggest the claims should be

reviewed differently under the Iowa Constitution).

         Hayes argues his trial counsel was ineffective in failing to request a limiting

instruction regarding the video of his police interview, arguing it was “rife with

prejudicial hearsay statements” made by Detective White. For instance, when
                                          10


Hayes tells the detective he was not in town on May 12, 2016, Detective White

responds, “Yes, you were.” He argues Detective White’s “constant accusations

and character attacks undoubtedly influenced the jury,” and counsel therefore had

a duty to request the jury be instructed that statements and questions by law

enforcement are not evidence. However, the jury was shown only the first three-

and-one-half minutes of the interview, which just shows Hayes being escorted into

the interview room and then sitting there by himself. The interview does not begin

until 5 minutes and 45 seconds into the video. Hayes speculates the jury may

have viewed the entire video during its deliberations. Mere speculation cannot be

a basis for finding counsel ineffective. The record is insufficient to decide the issue,

so we preserve it for possible postconviction relief proceedings to allow full

development of the record.

       Hayes also argues his trial counsel was ineffective in failing to request a

curative instruction concerning the video and photograph evidence depicting him

in handcuffs. As stated above, the jury already knew Hayes was arrested in

connection with the events of May 12. In light of the evidence of Hayes’s guilt,

there is no reasonable possibility that the brief depiction of Hayes in handcuffs

affected the outcome of trial.

       Hayes next argues his right against self-incrimination was violated by jury

instruction number 14, which states: “Evidence has been offered to show that the

Defendant made statements at an earlier time and place. If you find any of the

statements were made, then you may consider them as part of the evidence, just

as if they had been made at this trial.” This instruction is based on Iowa Criminal

Jury Instruction 200.44. “Normally, we are slow to disapprove of the uniform jury
                                          11

instructions.” State v. Ambrose, 861 N.W.2d 550, 559 (Iowa 2015). This court

recently held this instruction correctly states the law and giving the instruction was

not in error.1 See State v. Payne, No. 16-1672, 2018 WL 1182624, at *8-9 (Iowa

Ct. App. Mar. 7, 2018), petition for further review pending; see also State v. Wynn,

No. 16-2150, 2018 WL 769272, at *2-3 (Iowa Ct. App. Feb. 7, 2018) (finding no

ineffective assistance of counsel in failing to object to the instruction), petition for

further review denied, Apr. 4, 2018; State v. Wineinger, No. 16-1471, 2017 WL

6027727, at *3 (Iowa Ct. App. Nov. 22, 2017) (stating the same instruction was a

correct statement of the law), petition for further review denied, Feb. 28, 2018;

State v. Tucker, No. 13-1790, 2015 WL 405970, at *3 (Iowa Ct. App. Jan. 28, 2015)

(stating the instruction was not misleading), petition for further review denied, Mar.

25, 2015. Hayes cannot establish his counsel was ineffective for failing to object

to instruction no. 14. “Counsel has no duty to raise an issue that has no merit.”

State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010).

       Finally, Butcher argues his trial counsel was ineffective in failing to request

a jury instruction concerning impeachment testimony relating to Butcher’s prior

convictions for crimes involving dishonesty.           We preserve this issue for

postconviction proceedings to allow full development of the record.

       AFFIRMED.




1
 The instruction is not without its critics. See Payne, No. 16-1672, 2018 WL 1182624, at
*11-12 (Tabor, J., dissenting).
