                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-1015
                               Filed December 5, 2018


JACQUE DUKES,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Jacque Dukes appeals from the denial of his application for postconviction

relief. AFFIRMED.




       Angela Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.



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


DANILSON, Chief Judge.

       Jacque Dukes appeals from the denial of his application for postconviction

relief (PCR). Because Dukes failed to prove trial counsel breached an essential

duty resulting in prejudice, we affirm.

       The underlying facts are set out in State v. Dukes, No. 12-1552, 2013 WL

6405328, at *1-2 (Iowa Ct. App. Dec. 5, 2013):

               Belinda Robinson, [Dukes’s] former girlfriend, was staying
       with Alonzo Henderson in a trailer located in Cedar Falls, Iowa. She
       discovered that Henderson was expecting a large shipment of either
       marijuana or cocaine around January 27, 2011. Robinson decided
       to steal the drugs and contacted a friend, Crystal Cooper, and the
       defendant. The defendant, Cooper, and Cooper’s boyfriend,
       Lamario Stokes, made a trip to Cedar Falls to case the trailer.
               On January 26, Robinson notified Cooper and [Dukes] that
       the shipment had arrived. [Dukes], Cooper, Stokes, and Corey
       Moore, a friend of [Dukes], drove to Waterloo to a location near
       Henderson’s trailer. Robinson came home from work and entered
       the trailer. A little later, Henderson arrived at the trailer with two other
       men, and the three men began unwrapping bundles of marijuana.
       Robinson informed the men she would get cigarettes and plastic
       bags, and left in the car in which the men had arrived.
               While on the errand, Robinson contacted [Dukes], with whom
       she had been in telephone contact all afternoon. Robinson drove to
       where [Dukes] and the others were waiting in [Dukes’s] car, and they
       devised a plan to lure the visitors out of the trailer. The visitor’s car
       was left in a Hy–Vee parking lot. Robinson joined up with [Dukes]
       and the others, and told the owner of the car that the car had run out
       of gas and had been left in the Hy–Vee parking lot. She further told
       him she had gotten a ride with a friend. The two visitors left the trailer
       to retrieve the car. [Dukes], Stokes, and Moore exited [Dukes’s] car
       and entered the trailer.
               Henderson did not recognize the intruders. He recalled that
       two guns were trained on him. As he tried to walk away and enter
       his bedroom, he was struck in the head with a gun and a struggle
       ensued. A second man hit Henderson in the head, and eventually
       shots were fired, hitting Henderson twice. All three intruders hurried
       back to [Dukes’s] car, and [Dukes] and Moore threw two blue laundry
       bags into the back of the car.
               The group then went to the apartment of Moore’s girlfriend,
       Bridget Johnson, and divided up the marijuana contained in the
                                          3


       laundry bags. There was fifty-seven pounds of marijuana, and
       [Dukes] took fourteen pounds as his share.
              [Dukes] later told Robinson that during the robbery he hit
       Henderson with a gun, but the gun flew out of his hand, and he
       believed it went under the bed. He then hit Henderson with a laptop
       computer. The police investigation after the incident found a pistol
       under the bed and a laptop computer on the floor nearby. [Dukes’s]
       fingerprints were not found on the gun. Cooper overheard Moore
       say he had shot Henderson, and [Dukes] mentioned getting into a
       struggle with Henderson, hitting him in the face with a gun, which he
       dropped and left at the trailer.
              ....
              Moore was eventually arrested for speeding, and he had in
       his possession a gun, which was proved to have fired the shots that
       struck Henderson. Also seized from Moore’s car was ammunition
       matching the ammunition found in the gun found on Henderson’s
       floor. Additionally, cash and a small amount of marijuana were
       seized from the car.

       Johnson, Robinson, and Cooper all testified for the prosecution at Dukes’s

trial. Dukes, 2013 WL 6405328, at *2. Dukes testified that he went to the trailer

to inspect the drugs for a possible purchase and was not involved in the planning

or execution of the robbery. Id. He asserted Henderson picked up a gun and

charged him, they wrestled, and the gun flew out of Henderson’s hand.

       Dukes was convicted after a jury trial of robbery in the first degree, burglary

in the first degree, willful injury causing serious injury, and possession of marijuana

with intent to deliver while in the immediate possession and control of a firearm.

This court found the verdicts were not contrary to the weight of the evidence,

rejected some claims of ineffective assistance of counsel, did not address others,

and affirmed the convictions on appeal. Id. at *3. By an order dated January 31,

2014, our supreme court denied Dukes’s application for further review.
                                          4


       Dukes then filed a PCR application, asserting trial counsel’s performance

was constitutionally defective in a number of ways. The PCR court rejected his

claims and Dukes now appeals.

       Dukes asserts trial counsel was ineffective (1) in failing to challenge the

guilty verdicts for first-degree robbery and willful injury and the applicable jury

instructions based on joint criminal conduct, (2) in failing to challenge the jury

instructions on assault and corroboration necessary to convict on accomplice

testimony, (3) in introducing Dukes’s criminal history, and (4) in failing to strike a

juror who was related by marriage to the prosecutor. Because Dukes’s claims are

constitutional in nature, our review is de novo. See Lamasters v. State, 821

N.W.2d 856, 862 (Iowa 2012).

       To prevail on his claim of ineffective assistance of counsel, Dukes must

prove by a preponderance of the evidence that (1) counsel breached an essential

duty and (2) prejudice resulted. See id. at 866. “We may affirm the district court’s

rejection of an ineffective-assistance-of-counsel claim if either element is lacking.”

Id. (citation omitted).

       Dukes argues, “No evidence was offered by the State that showed there

was any sort of strategy” of trial counsel. But, our analysis of his ineffective-

assistance claim begins with the presumption that the attorney performed

competently. Id. Dukes had the burden to demonstrate his trial attorney performed

below the standard demanded of a “reasonably competent attorney.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). “Selection of the primary theory or theories

of defense is a tactical matter.” Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984).

Because we presume counsel was competent and employed a reasonable
                                              5


defense strategy, it was not the State’s burden to show trial counsel’s strategy was

reasonable but Dukes’s burden to show it was not.

       A. Joint criminal conduct instruction and failure to move for judgment of

acquittal for lack of evidence. Upon our de novo review, we find no merit in Dukes’s

contention that counsel was ineffective for failing to object to the joint-criminal-

conduct jury instructions.1 In State v. Tyler, 873 N.W.2d 741, 752 (Iowa 2016), the

court noted joint criminal conduct contemplates two acts: the crime in which the

actor has knowingly participated and a second unplanned crime that reasonably

could be expected to occur in furtherance of the crime. Dukes engaged in joint

criminal conduct if—acting in concert with another—he knowingly participated in

one crime, and a second, reasonably-foreseeable crime resulted from their

conduct in furtherance of the first offense.

       With respect to the claim of instructional error, Dukes argues the

instructions were circular and confusing to the jury, relying on State v. Smith, 739

N.W.2d 289, 294-95 (Iowa 2007).2 We need not address the duty prong of Dukes’s

ineffectiveness claim however because Dukes has failed to prove “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” See Strickland, 466 U.S. at 687.



1
   The instructions as to robbery and willful injury allowed the jury to consider Dukes’s
liability as a principal, an aider or abettor, or engaging in joint criminal conduct.
2
  In Smith, the court found “there was insufficient evidence to submit to the jury the State’s
claim that Smith was guilty of the crimes committed by Dineen when he shot the deputy
by reason of Smith’s joint criminal conduct,” noting a “logical fallacy” in the State arguing
that “knowingly participating in the crime of assault on a police officer while using or
displaying a dangerous weapon is not a different crime to support a conviction for assault
on a police officer while using or displaying a dangerous weapon.” 739 N.W.2d at 294.
Dukes’s attempt to place himself in an analogous posture is unconvincing.
                                           6


       There was very strong evidence Dukes acted as a principal or an aider and

abettor in the robbery and willful injury of Henderson. See State v. Jackson, 587

N.W.2d 764, 766 (Iowa 1998) (“[T]he giving of a joint criminal conduct instruction

in instances in which the alleged multiple participants are either principals or aiders

and abettors in the same crime does not require reversal if there is no opportunity

for the defendant to have been found guilty based on anything other than his own

conduct as a principal or an aider and abettor of the crime with which he is

charged.”) Dukes, Stokes, and Moore—dressed in black clothing and wearing

masks—entered Henderson’s trailer to steal marijuana after Robinson lured the

other two occupants from the trailer, leaving Henderson the sole occupant.

Robinson suggested that if Henderson gave them trouble, they should “rough him

up.” Robinson had already determined there were no weapons in the trailer at

Dukes’s request. Two men pointed guns at Henderson. Henderson turned and

fled to his bedroom in the back of the trailer. Dukes followed Henderson into the

back at which point the two physically struggled. Dukes struck Henderson in the

head with a gun. When Dukes lost his grip on the gun and it fell under Henderson’s

bed, Dukes grabbed a laptop computer and struck Henderson in the head with the

computer. After Dukes left the room, Moore shot Henderson twice.

       We conclude trial counsel had no duty to object to the jury instructions

applying the theory of joint criminal conduct set forth in Instruction No. 45 because

there was substantial evidence to support the use of the instruction. Moore shot

Henderson while Dukes and Henderson acted together and knowingly participated

in a burglary. The shooting of Henderson furthered the crime of burglary and

constituted a different crime, the offense of willful injury causing serious injury, and
                                          7


the commission of such offense was reasonably to be expected. We agree with

the district court that a juror with reasonable intellect would understand the

instructions and not be confused.

       Even if we concluded joint criminal conduct does not apply under these facts

and counsel was under a duty to object to the instructions or move for judgment of

acquittal, as we have noted, there was strong evidence that Dukes participated in

the crimes as a principal or aider and abettor. Accordingly, we are convinced the

result of the trial would not have been different had counsel objected to the joint

criminal conduct instructions or moved for a judgment of acquittal on this theory.

See Lamasters, 821 N.W.2d at 866 (“A showing that the error ‘conceivably could

have influenced the outcome’ of the proceeding is not enough.” (citation omitted)).

       B. Assault instruction. Dukes next asserts counsel should have objected to

the assault jury instruction because it failed “accurately portray the element of

specific intent.” Dukes then states that “under this instruction, the jury could have

convicted Dukes without finding any specific intent.” No other prejudice analysis

is made, and this statement is basically equivalent to asserting the error “could

conceivably have influenced the outcome,” which is insufficient to establish

ineffective assistance of counsel. See id. This is particularly true because the

evidence of an intentional assault is strong.

       C. Accomplice instruction. We find no prejudicial error arose from the jury

instruction on accomplice testimony requiring corroborative evidence.           Dukes

complains about one sentence in the instruction, “A small amount of corroborative

evidence is all that is required,” but this sentence is a correct statement of the law.

State v. Vesey, 241 N.W.2d 888, 890 (Iowa 1976) (“The existence of corroborative
                                           8


evidence is a question of law for the court, but its sufficiency is ordinarily a question

of fact for the jury. It need not be strong. Any corroborative evidence which tends

to connect the accused with the commission of the crime and thereby supports the

credibility of the accomplice is sufficient.” (emphasis added)); see also State v.

Palmer, 569 N.W.2d 614, 616 (Iowa Ct. App. 1997) (“It is firmly grounded in Iowa

case law that a small amount of corroborative evidence is all that is required.”).

Thus, trial counsel did not breach an essential duty in failing to challenge the

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

has no duty to raise an issue that has no merit.”).

       D. Prior conviction. Dukes next claims it was ineffective assistance for trial

counsel to solicit evidence of Dukes prior marijuana conviction.3 The State argues

the issue is not preserved for review because the district court did not make a

ruling on it. See Meier v. Senecaut, 641 N.W.2d 532, 538 (Iowa 2002) (“Our

preservation of error doctrine requires a party to make a request for a ruling . . . .”).

Dukes states he was essentially representing himself—though he had appointed

counsel—and, citing a Minnesota court opinion,4 “Iowa should adopt a rule that

preservation of error requirements should be relaxed for the pro se petitioner.” “We

do not utilize a deferential standard when persons choose to represent

themselves.” Kubik v. Burk, 540 N.W.2d 60, 63 (Iowa Ct. App. 1995).

       Dukes also asserts the State misled the PCR court when it stated the issue

had “been addressed” on appeal. This statement is somewhat misleading. The


3
  Dukes again complains, “The State offered no testimony or evidence offering any
explanation or evidence that this was some sort of strategic decision.” The case of
ineffectiveness was for Dukes to make, and we presume counsel was competent.
4
  State v. Stufflebean, 329 N.W.2d 314, 318 (Minn. 1983).
                                         9


issue on appeal was the claim that “the district court abused its discretion when it

allowed evidence of the defendant’s prior crimes.” Dukes, 2013 WL 6405328, at

*1. The appellate court observed:

       The defendant’s counsel filed a motion in limine to exclude the
       defendant’s record of prior criminal convictions, crimes, and arrests,
       but it was agreed that admissibility would be determined later. In
       fact, the court never ruled on the issue. The defendant’s own
       counsel, on cross-examination of Robinson, brought up the
       defendant’s prior drug usage. In response to questions from his own
       counsel, the defendant testified as to his criminal record involving
       drugs, presumably in support of his defense that he was a user and
       was at Henderson’s trailer for the purpose of checking out, and
       possibly purchasing, drugs.

Id. at *2. Thus, the court “was never required to rule on the admissibility of”

Dukes’s prior criminal record, so no abuse of the court’s discretion occurred.

       We choose to address the merits of Dukes’s claim that counsel was

ineffective in eliciting the testimony. The State argues trial counsel could have had

a strategic reason for eliciting the testimony—including to bring out Robinson’s

statement that while Dukes may have sold drugs in the past she had not known

him to be violent in doing so; and to give some credence to Dukes’s claim that he

had to be present at the scene to determine the quality of the drugs, the ability to

do so having been gained by his prior history with marijuana. Moreover, “the State

could—and would—have attempted to impeach Dukes with the fact he was

previously convicted of a felony once he took the stand to testify.”

       Dukes responds, “The State offered no testimony or evidence offering any

explanation or evidence that this was some sort of strategic decision.”          We

reiterate, the case of ineffectiveness was for Dukes’s burden, and we presume

counsel was competent. We conclude, in light of the strong evidence of guilt and
                                              10


Dukes’s own testimony about his presence at Henderson’s trailer to purchase a

large quantity of drugs, counsel reasonably may have determined eliciting the drug

conviction testimony was reasonable.

          We also note the trial court instructed the jury that a previous conviction

could only be used to decide whether to believe the witness and the weight to give

the witness’s testimony. See State v. Plaster, 424 N.W.2d 226, 232 (Iowa 1988)

(“It is only in extreme cases that such an instruction is deemed insufficient to nullify

the danger of unfair prejudice.”).

          E. Failure to strike juror. Finally, Dukes claims counsel was ineffective for

failing to strike a juror who was married to the prosecutor’s cousin for cause or by

peremptory challenge, inferring the juror was presumptively biased against him

and deprived him of a fair trial. The PCR court did not err in rejecting this claim.

Iowa Rule of Criminal Procedure 2.18, which sets out what constitutes “cause” to

strike a juror does not cover the relationship here.5 With respect to an alleged

failure to use peremptory strike, “the Constitution only requires the defendant be

tried before a fair and impartial jury.” State v. Mootz, 808 N.W.2d 207, 221 (Iowa

2012). The prosecutor divulged during voir dire that he and the potential juror were

related by marriage.         The juror stated the relationship would not affect her

judgment and she could render a fair and impartial verdict. Dukes and his attorney


5
    The PCR court ruled:
                 There is nothing in the rules that I read under rule 218—2.18(5) that
         would give a challenge for cause. The closest would be sub D affinity or
         consanguinity within the fourth degree to the person alleged to be injured
         by the offense charged or whose complaint or at whose instance the
         prosecution was instituted or to the defendant to be computed according to
         the rule of civil law and [the prosecutor] was not the person who was a
         victim. He didn’t institute the prosecution. And he’s not related to the
         defendant. So I don’t see there is any challenge for cause.
                                         11


were aware of the relationship, did not ask additional questions, and made no

objection. The juror then testified at the PCR trial that at the time of the criminal

trial she was married to the prosecutor’s cousin, they had a cordial but not a close

relationship, she saw him perhaps one or two times per year at family functions,

and the relationship did not affect her ability to render an impartial verdict. Dukes

has failed to establish the juror was biased or that Dukes was prejudiced by the

juror serving.

       We affirm the denial of postconviction relief.

       AFFIRMED.
