                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1255
                             Filed January 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRUCE DARNELL POLLARD JR.,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon,

Judge.



      A defendant appeals his conviction for first-degree murder and first-degree

robbery. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins and Scott Brown,

Assistant Attorneys General, and Lisa Holl, County Attorney, for appellee.



      Heard by Danilson, C.J., and Doyle and Tabor, JJ.
                                        2



TABOR, J.

       Bruce Pollard walked into Cinema X carrying a crow bar. Pollard used the

bar to strike the theater manager in the head and to strangle him. Pollard left

about twenty minutes later carrying a bag of merchandise. Pollard alleged he

acted in self-defense, but a jury convicted him of murder in the first degree and

robbery in the first degree.

       He appeals those convictions, alleging two omissions by his trial attorney

in handling the jury instructions.   First, Pollard claims counsel breached a

material duty in not objecting to robbery as the predicate offense for felony

murder.    Second, Pollard claims counsel failed to request a justification

instruction on the exception to taking an alternative course of action. Because

Pollard does not satisfy his burden to prove ineffective assistance of counsel in

either instance, we affirm.

I.     Background Facts and Proceedings

       Kenneth McDaniel died at the same locale where he lived and worked for

more than twenty years. McDaniel managed Cinema X, an adult movie theater

in downtown Ottumwa. He also lived in the theater, sleeping on a cot under the

projector. The theater was a low-budget operation. For five dollars, patrons

could watch a pornographic movie on the projection screen. Cinema X also sold

adult magazines, DVDs, and other novelties.

       Sunday, March 11, 2012—the day he was killed—unfolded like many

others for seventy-year-old McDaniel. His sister-in-law brought him fast food

from Sonic between 5:00 and 5:30 in the evening. She then went across the
                                        3



street to General Dollar to buy minutes for McDaniel’s cell phone. She did not

notice any customers in the theater. She chatted with McDaniel, gave him the

change from the purchase of the minutes, and left. Around 6:00 p.m., McDaniel’s

friend Marlin Hesse tried to visit McDaniel in the theater but the door was locked

and no one answered the door bell. Hesse knew it was not unusual for McDaniel

to close early on Sunday and left.

      On March 13, a passerby found McDaniel’s body by the theater’s counter,

three feet from the front door. McDaniel was wearing a shirt, a jacket, and two

pairs of pants. McDaniel often dressed in layers because he kept the theater

cool to cut down on heating bills. His belt was undone and both pairs of pants

were unzipped.      McDaniel’s glasses were broken.          Investigators found

McDaniel’s blood on the counter, two shelving units, the carpet, and the wood

paneling. His blood was also on the steps behind the counter leading to the

projectors and the area where he slept.      McDaniel’s hyoid bone and thyroid

cartilage were broken. Later, the medical examiner determined his cause of

death was blunt-force injuries to the head and neck, and asphyxiation caused by

strangulation.

      Reviewing footage captured on March 11 from downtown traffic cameras

and surveillance cameras from nearby businesses, law enforcement officers saw

a suspect enter the cinema at 5:52 p.m. and leave at 6:12 p.m. The person was

carrying a crow bar. When the suspect left, he had a black bag slung over his

shoulder that he did not have when he entered the cinema.
                                         4



      Further investigation led law enforcement to Pollard. Officers determined

Pollard had been spending time at the Promise Center, a drop-in resource center

for adults with mental illnesses. A search of the center uncovered DVDs with

price tags on them consistent with the ones sold at the cinema. Technicians

found both McDaniel’s and Pollard’s fingerprints on them. The police also found

a Stanley crow bar resembling the one the suspect carried in the video footage.

Later testing revealed dried blood on the crow bar belonging to both McDaniel

and Pollard. Yellow paint on the claw end of the crow bar matched paint chips

found in McDaniel’s head wound. Police also found a shirt belonging to Pollard

with McDaniel’s blood on it. After Pollard left the cinema, he removed the bloody

shirt, threw it under a chair at the Promise Center, put on a different shirt, and

returned home.

      After initially denying any involvement, Pollard admitted killing McDaniel

on March 11. But Pollard claimed he acted in self-defense. In a letter to his

girlfriend’s mother, Pollard said he “panicked” when McDaniel sat “real close” to

him in the theater.   He also denied killing McDaniel during the course of a

robbery; instead Pollard said he only took thirty dollars and some DVDs from the

cinema after the struggle with McDaniel to make it look like a robbery.

      On July 11, 2012, the State charged Pollard with one count of murder in

the first degree and one count of robbery in the first degree. Pollard asserted the

defenses of justification and diminished capacity. Following a six-day trial, a jury

convicted Pollard on both counts, returning its verdicts on July 23, 2013. The

district court sentenced Pollard to a term of life imprisonment on the murder
                                           5



conviction and twenty-five years on the robbery conviction. The court ordered

the sentences to run consecutively. Pollard now appeals.

II.    Analysis of Ineffective-Assistance-of-Counsel Claims

       Pollard criticizes his trial counsel for mishandling two jury instruction

issues.   First, Pollard claims his attorney was remiss in not objecting to the

felony-murder alternative in the marshalling instruction based on the predicate

offense of robbery.      Second, he contends counsel was ineffective in not

requesting an instruction explaining the exception to the alternative-course-of-

action requirement for his justification defense.

       We review Pollard’s claims of ineffective assistance de novo. See State v.

Ondayog, 722 N.W.2d 778, 783 (Iowa 2006).                To establish his claims of

ineffective assistance of counsel, Pollard must prove by a preponderance of the

evidence: (1) trial counsel failed to perform an essential duty and (2) prejudice

resulted from his failure. See State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012)

(quoting Strickland v. Washington, 466 U.S. 668, 693 (1984)).               A defense

attorney fails to perform an essential duty when his performance falls below the

“normal range of competence.” State v. McPhillips, 580 N.W.2d 748, 754 (Iowa

1998). We presume counsel has performed within that range of competence.

State v. Fannon, 799 N.W.2d 515, 520 (Iowa 2011). A defendant may overcome

that presumption by showing counsel failed to raise a valid objection. Id. But we

will not find counsel ineffective in failing to lodge an objection lacking in merit. Id.

Prejudice means the reasonable probability of a different outcome. Ledezma v.

State, 626 N.W.2d 134, 145 (Iowa 2001).
                                           6



       Generally, we preserve ineffective-assistance-of-counsel claims for

postconviction relief proceedings to allow for thorough development of the facts.

State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). We do resolve claims on direct

appeal when the record allows us to do so. State v. Arne, 579 N.W.2d 326, 329

(Iowa 1998). We find the record in this case sufficient to decide Pollard’s claims.

We will address each claim in turn.

       A. Felony Murder Instruction

       The district court instructed the jurors that they could convict Pollard of

murder in the first degree if they found either he acted willfully, deliberately,

premeditatedly, and with the specific intent to kill McDaniel or he was

participating in a robbery at the time of the killing. See Iowa Code §§ 707.2(1)

(premeditated killing), (2) (killing while participating in a forcible felony), 702.11(1)

(listing forcible felonies as “felonious child endangerment, assault, murder,

sexual abuse, kidnapping, robbery, arson in the first degree, or burglary in the

first degree”).

       Pollard now claims his attorney should have objected to instructing the

jurors on the felony murder alternative because “there was insufficient evidence

the assault element of robbery, the predicate felony, was a separate independent

act from the act that killed McDaniel.” To support his position, Pollard relies on a

triumvirate of cases: State v. Heemstra, 721 N.W.2d 549, 557 (Iowa 2006); State

v. Millbrook, 788 N.W.2d 647, 650 (Iowa 2010); and State v. Tribble, 790 N.W.2d

121, 129-30 (Iowa 2010).
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      In Heemstra, our supreme court held the felonious assault of willful injury

could serve as the predicate offense for felony murder only in certain

circumstances, for instance, “if the defendant assaulted the victim twice, first

without killing him and second with fatal results.” Heemstra, 721 N.W.2d at 556.

In Millbrook, the court considered a felony murder conviction predicated on the

defendant’s participation in the felonious assault of intimidation with a dangerous

weapon, concluding “the fact that intimidation with a dangerous weapon is not a

lesser-included offense of first-degree murder does not preclude application of

the merger doctrine enunciated in Heemstra.” Millbrook, 788 N.W.2d at 652.

The Millbrook court ultimately upheld the murder conviction, finding the

defendant committed an assaultive act sufficiently independent of the firing of the

gun that resulted in the victim’s death. Id. at 653–54. In Tribble, the court again

considered a felony murder conviction based on the felonious assault of willful

injury, and upheld the conviction because substantial evidence supported a jury

finding that head trauma and asphyxia were caused by separate acts, either of

which could have been the factual cause of the victim’s death. Tribble, 790

N.W.2d at 129. Notably, Heemstra, Millbrook, and Tribble all address murder

cases predicated on the forcible felony of felonious assault.

      None of the cases relied upon by Pollard discusses the possibility of

merger when robbery serves as the predicate felony for felony murder. In fact,

the Heemstra court twice quoted authorities which identified robbery as an

independent felony, not subject to merger. See Heemstra, 721 N.W.2d at 556,

558 (citing Commw. v. Quigley, 462 N.E.2d 92, 95 (Mass. 1984) (quoting Wayne
                                         8



R. LaFave & Austin W. Scott, Jr., Criminal Law § 71, at 559 (1972) (“although

rape, arson, robbery and burglary are sufficiently independent of the

homicide, . . . aggravated battery toward the deceased will not do for felony

murder”) and citing People v. Moran, 158 N.E. 35, 36 (N.Y. 1927) (“The felony

that eliminates the quality of the intent must be one that is independent of the

homicide and of the assault merged therein, as, e.g., robbery or larceny or

burglary or rape.”)). Millbrook likewise quoted the Moran case from the New

York Court of Appeals. Millbrook, 788 N.W.2d at 651.

       A key question when considering the adequacy of Pollard’s representation

is whether competent defense counsel needed to urge an extension of those

cases involving felonious assaults to felony murder prosecutions predicated on

other forcible felonies listed in section 702.11(1). Counsel contemplating such an

argument may have been deterred by our court’s recent decision in State v.

Tucker, 810 N.W.2d 519, 522 (Iowa Ct. App. 2012). In that case, we declined to

extend the Heemstra merger rule to the predicate felony of arson, reasoning as

follows:

               Unlike assault, using arson as the predicate felony does not
       frustrate the legislature’s intent to establish gradations for
       assaultive conduct that results in death. Rather, application of the
       felony-murder rule in the case of arson is consistent with the
       traditional purpose of the felony-murder rule: deterring people from
       committing those felonies that present a heightened risk of death to
       others by transforming the felony offense sought to be deterred into
       first-degree murder if a person is killed in the course of the felony,
       even though the felon had no specific intent or premeditation
       otherwise necessary to elevate the killing of another into first-
       degree murder. Heemstra, 721 N.W.2d at 554 (“The rationale of
       the felony-murder rule is that certain crimes are so inherently
       dangerous that proof of participating in these crimes may obviate
                                          9



         the need for showing all of the elements normally required for first-
         degree murder.”).

Tucker, 810 N.W.2d at 522.

         Against this backdrop of case law on the merger rule, we decline to find

counsel was ineffective for not challenging the felony murder instruction. We

cannot rule out the possibility our supreme court might ultimately extend the

merger rule for felony murder to the predicate felony of robbery. But it has not

done so yet. Accordingly, we reject Pollard’s argument that his attorney provided

subpar representation by not objecting to robbery as the underlying felony. We

do not require defense counsel to be a “‘crystal gazer”—channeling the ability to

predict future developments in the law. See State v. Liddell, 672 N.W.2d 805,

814 (Iowa 2003). Counsel did not breach an essential duty by failing to object to

the marshalling instruction. See State v. Williams, 695 N.W.2d 23, 30 (Iowa

2005).

         Moreover, even if the merger rule from Heemstra, Tribble, and Millbrook

did apply to the underlying felony of robbery as marshalled in this case, defense

counsel did not have a duty to object to the felony murder instruction. Defense

counsel was safe in assuming the situation was governed by Tribble, where the

court rejected the defendant’s claim that the felony-murder statute did not apply

when two independent assaultive acts both contributed to the victim’s death.

See Tribble, 790 N.W.2d at 129 (explaining “[i]f the acts of blunt-force trauma

were also a factual cause of death, felony murder applies in this case because a
                                           10



separate act of asphyxia was also a factual cause).1 Here, the record shows

Pollard committed at least two discrete assaults, either of which may have

caused McDaniel’s death according to the medical examiner.                   The State

persuasively argues: “If the blunt force trauma was a cause of death, felony

murder applies because Pollard also committed an act of strangulation. If the

blunt force trauma—such as the distinctive claw-hammer wound—did not cause

McDaniel’s death, then the felony-murder doctrine applies because it is an

‘assault’ for purposes of the independent felony of robbery.”

       On these facts and under the existing case law, counsel did not breach a

material duty in declining to object to the felony murder alternative in the

marshalling instruction.

       B. Justification Instructions

       The jury received instructions on Pollard’s justification defense.           The

marshalling instructions on murder required the jury to find Pollard was not acting

with justification. Justification was defined for the jury as the use of reasonable

force. The definitional instruction stated: “A person can use reasonable force

against another if it is reasonable to believe that such force is necessary to avoid

injury or risk to one’s life or safety or it is reasonable to believe that such force

was necessary to resist a like force or threat.” The court informed the jury that


1
  Pollard contends the victim’s death resulted from one continuous struggle without any
break in the action to support two distinct assaults. He relies on State v. Velez, 829
N.W.2d 572, 570-83 (Iowa 2013) and State v. Ross, 845 N.W.2d 692, 705 (Iowa 2014),
which address unit-of-prosecution questions. Pollard’s contention conflicts with his own
statements which described separate acts of hitting the victim in the head, struggling
over the crow bar, and then strangling the victim. The physical evidence, including blood
found in various locations, also indicates separate assaults. Further, we do not find any
directives in Velez or Ross that would undermine the analysis from Tribble.
                                           11



the State had the burden to prove Pollard was not acting with justification. The

court instructed the jury that Pollard was not justified in his actions if the State

proved any of the following elements:

       1) [Pollard] started or continued the incident which resulted in death.
       2) An alternative course of action was available.
       3) [Pollard] did not believe he was in imminent danger of death or injury
       and the use of force was not necessary to save him.
       4) [Pollard] did not have reasonable grounds for the belief.
       5) The force used by [Pollard] was unreasonable.

The court provided the jury with instructions explaining exceptions three and four,

but not the uniform instruction explaining circumstances when the defendant is

not required to take an alternative course of action under element two.

       On appeal, Pollard claims his counsel was ineffective for failing to request

this additional instruction: “If the alterative course of action involved risk to his life

or safety, and he reasonably believed that, then he was not required to take or

use the alternative course of action to avoid the confrontation and he could repel

the force with reasonable force.” Iowa Criminal Jury Instruction No. 400.10.; see

generally State v. Rupp, 282 N.W.2d 125, 126 (Iowa 1979). Pollard claims he

was prejudiced by the absence of this instruction because justification was his

primary defense.

       At trial, Pollard offered what has been referred to as a “gay panic

defense”—though not calling it by that name.2 Pollard claimed he was justified in



2
  Academics describe “gay panic” as a defense advanced by a heterosexual man who
claims he “panicked and killed” because his allegedly gay victim made an unwanted
sexual advance. Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471, 471
(2008); see also David Alan Perkiss, A New Strategy of Neutralizing the Gay Panic
Defense at Trial: Lessons from the Lawrence King Case, 60 U.C.L.A. Rev. 778, 780
(2013).
                                            12



attacking McDaniel because McDaniel allegedly made a sexual advance toward

him in the theater. Pollard, who admitted carrying the crow bar into the theater

with him, asserted McDaniel sat next to him during the movie.3 Pollard allegedly

told McDaniel the interaction was inappropriate, then Pollard said he felt

something on his leg at which point he “fucking panicked.”4 According to Pollard,

he ran to the front door but it was locked. When he turned around, McDaniel was

behind him. Pollard said he then grabbed the crow bar from his pocket and hit

McDaniel on the head.          A struggle ensued, according to Pollard.             Pollard

remembered strangling McDaniel, then hitting him with the crow bar again.

Pollard admitted taking money from the cash box and DVDs, but claimed he did

so only to make it look like a robbery.          To support the theory that a sexual

advance occurred, the defense pointed to the victim’s unzipped pants, an

abrasion on McDaniel’s penis, and a white stain on a pair of pants. No evidence

was presented that McDaniel was gay or sexually violent.

       In addition to Pollard’s claims in his interviews with police and his letter to

Dixie Day, the jury heard evidence detailing the conditions of the crime scene,

the multiple injuries to McDaniel, and Pollard’s conduct following the killing. We

are mindful “[t]he jury is free to believe or disbelieve any testimony as it

chooses.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).



3
  Because Pollard did not testify at trial, his version of events reached the jury through
his interview with investigator Steve Harris and his letter to Dixie Day delivered in
October 2012.
4
  At trial, the defense offered testimony about Pollard’s diminished capacity, including his
history as a victim of sexual abuse. Doctor Craig Rypma testified Pollard stole things
because Pollard would rather be thought of as a thief than as “sexually accosted by Mr.
McDaniel.”
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          On this record, Pollard cannot prove he was prejudiced by counsel’s

failure to ask for Iowa Criminal Jury Instruction No. 400.10.        We find no

reasonable probability the outcome of the trial would have been different had

counsel requested the instruction explaining an exception to the alternate-

course-of-action requirement.        Initially, we note the instruction defining

justification conveyed much of the same information as the omitted instruction,

i.e. a defendant may use reasonable force to avoid injury or a risk to his life or

safety.     Moreover, the State presented strong evidence Pollard started or

continued the struggle which resulted in McDaniel’s death, having entered the

theater armed with a crow bar and by his own admission leveled the first blow to

McDaniel’s head.      The State also presented strong evidence Pollard did not

reasonably believe McDaniel, who was much older and unarmed, posed an

imminent danger of death or injury. Finally, the State’s evidence overwhelmingly

established Pollard used an unreasonable level of force, applying the sustained

pressure necessary to break McDaniel’s hyoid bone and asphyxiate him. Given

the overwhelming evidence supporting Pollard’s guilt and the negligible effect the

omitted instruction would have had on the jury’s verdict, we conclude no

reasonable probability existed that, but for counsel’s failure to request the

instruction, the result of the proceedings would have been different. See State v.

Maxwell, 743 N.W.2d 185, 197 (Iowa 2008).

          In summary, we conclude counsel was not ineffective in his handling of

the jury instructions on felony murder or justification.

          AFFIRMED.
