                    IN THE COURT OF APPEALS OF IOWA

                                   No. 12-0056
                               Filed April 16, 2014


DANNY RANKINS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Richard G. Blane,

Judge.



      Applicant appeals the district court decision denying his request for

postconviction relief after his conviction for first-degree robbery. AFFIRMED.



      Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, John P. Sarcone, County Attorney, and James P. Ward, Assistant

County Attorney, for appellee State.




      Considered by Vaitheswaran, P.J., Mullins, J., and Huitink, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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HUITINK, S.J.

       An applicant appeals the district court decision denying his request for

postconviction relief from his conviction for first-degree robbery. He claimed he

received ineffective assistance from defense counsel on several different

grounds. After reviewing the record, we conclude he has not shown he received

ineffective assistance of counsel. We affirm the decision of the district court

denying his request for postconviction relief.

       I. Background Facts & Proceedings.

       The criminal trial in this case presented evidence of the following facts.

On January 18, 2006, at about 11:00 p.m., two employees, Anne Michelle

Harvey-Crouch and Shannon Campbell, closed an Arby’s restaurant on

Northeast 14th Street in Des Moines. A masked man with a gun approached

them in the parking lot, demanded money, and repeatedly threatened to kill them.

On re-entering the restaurant, the silent alarm was accidentally triggered. In the

resulting confusion, Crouch and Campbell escaped and called police.         Their

assailant fled on foot south on Northeast 14th Street.

       Richard Knutson testified that on January 18, 2006, at about 11:30 p.m.

he was walking along Northeast 14th Street on his way to buy some cigarettes

when he saw “a guy running faster than a track star almost.” He saw the man

run into a bowling alley parking lot and get into a car, which he described as

“yellow or tannish, goldish.” The car turned right in front of Knutson, and he saw

the driver. The car hurriedly left the parking lot without its headlights on and

headed south on Northeast 14th Street.
                                         3


       Derek Pettijohn was working as a security guard at the bowling alley,

which was near the Arby’s restaurant. At about 11:30 p.m. he became aware of

a cream or beige-colored car just sitting in the parking lot. As Pettijohn started to

approach the car, he saw a man get in the car and leave. He was able to

observe the driver of the vehicle.     Pettijohn also saw the car drive south on

Northeast 14th Street.

       Shortly thereafter, a police officer stopped a car on Northeast 14th Street

that matched the description of the car seen by the witnesses. An unidentified

passenger got out of the car and fled on foot. Police were unable to apprehend

the passenger. Danny Rankins was the driver of the car. During a search of the

trunk, police discovered a loaded revolver, which Crouch and Campbell later

identified as the gun used in the robbery. Knutson and Pettijohn identified the

vehicle and also identified Rankins as the driver of the car.

       Rankins was convicted of robbery in the first degree. He was sentenced

to a term of imprisonment not to exceed twenty-five years. We conditionally

affirmed Rankins’s conviction, and the case was remanded for a new ruling on

his motion for a new trial. State v. Rankins, No. 06-0999, 2007 WL 2712066,

at *5 (Iowa Ct. App. Sept. 19, 2007). On remand, the motion for a new trial was

denied.

       Rankins filed an application for postconviction relief, alleging he received

ineffective assistance from defense counsel on several different grounds.          A

postconviction hearing was held on August 10, 2011. In a comprehensive ruling

the district court denied Rankins’s request for postconviction relief.      He now

appeals.
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           II. Standard of Review.

           We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the applicant a

fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

           III. Ineffective Assistance.

           A. Rankins first contends he received ineffective assistance because his

defense counsel gave him misleading advice about whether to testify at his

criminal trial.    On the record, defense counsel informed Rankins, “if you do

choose to testify, the State can impeach your testimony or attempt to impeach

your testimony through your prior felony conviction.”      Later, defense counsel

again stated, “if Mr. Rankins chooses to testify, the jury will be informed that he

has a felony conviction. In fact, I believe that he would be—the jury would be

informed that he has two felony convictions.” Rankins had been convicted of two

counts of second-degree sexual abuse in 1983. He ultimately decided not to

testify.

           Under Iowa Rule of Evidence 5.609(a)(1), evidence of Rankins’s prior

convictions would be admissible if the district court “determine[d] that the

probative value of admitting this evidence outweigh[ed] its prejudicial effect.” 1


1
 Evidence of conviction of a crime involving dishonesty or false statement is always
admissible. Iowa R. Evid. 5.609(a)(2); State v. Harrington, 800 N.W.2d 46, 49 (Iowa
                                            5

“Only when the prior conviction’s probative value outweighs its prejudicial effect

to the accused is the defendant’s prior conviction admissible for impeachment

purposes.” State v. Redmond, 803 N.W.2d 112, 122 (Iowa 2011). Defense

counsel assumed the convictions would be admissible although the trial court

had not made a ruling on the matter.

        In considering a claim of ineffective assistance of counsel, we may first

consider whether a party has established prejudice. State v. Pace, 602 N.W.2d

764, 774 (Iowa 1999). “A defendant establishes prejudice by showing ‘there is a

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

of the proceeding would have been different.’” Id. (citations omitted).

        Even if the prior convictions were determined not to be admissible, it is not

entirely clear that Rankins would have decided to testify. During the criminal trial

he stated he was ambivalent about whether to testify.             At the postconviction

hearing Rankins stated he was worried the jury would hear about his extramarital

affairs, in addition to his prior felony convictions, and this was a factor in his

decision not to testify.     Even in a scenario where the prior convictions are

determined to be inadmissible, the evidence of Rankins’s extramarital affairs

would have been admissible and present a reason why he might have decided

not to testify. See Ledezma v. State, 626 N.W.2d 134, 147 (Iowa 2001) (“There

may be numerous reasons to support the advice by counsel to a defendant not to

testify.”).



2011). There is no assertion in the present case that convictions for second-degree
sexual abuse involve dishonesty or false statement. Rankins’s prior convictions would
be admissible, if at all, under rule 5.609(a)(1), which applies to felony crimes generally.
See Harrington, 800 N.W.2d at 49.
                                               6


       Also, Rankins would need to show that if he had decided to testify the

result of his criminal trial would have been different. His statements to officers on

the night of the robbery that he had given a ride to someone he did not know

were in the record through the testimony of the officers. According to defense

counsel, however, Rankins informed him he wanted to “tell a completely different

story than what he had told the police.”               Thus, Rankins could have been

impeached by his prior inconsistent statements.               See State v. Nance, 533

N.W.2d 557, 561 (Iowa 1995).           When a defendant testifies, his credibility is

placed in issue. State v. Parker, 747 N.W.2d 196, 205 (Iowa 2008).

       We conclude Rankins has not shown he was prejudiced by counsel’s

advice not to testify at the criminal trial.

       B.     Rankins asserts he received ineffective assistance because his

defense counsel did not meaningfully challenge the eyewitness identification

testimony of Knutson and Pettijohn.                He claims the identification by these

witnesses was not reliable and defense counsel should have filed a motion to

suppress the identification testimony.

       A few hours after the incident, about 2:00 a.m., officers took Knutson and

Pettijohn to where Rankins’s vehicle had been stopped. Knutson identified the

vehicle as the one he had seen in the bowling alley parking lot. At that time he

stated he was seventy to eighty percent sure Rankins was the driver. Knutson

identified Rankins in the courtroom, stating he was about fifty percent sure it was

the same person. Pettijohn also identified the vehicle and identified Rankins as

the driver at the scene. In the courtroom, Pettijohn again identified Rankins as

the driver.
                                          7


       In general, the practice of single identification, not part of a lineup, has

been condemned. State v. Folkerts, 703 N.W.2d 761, 763 (Iowa 2005). “When

unnecessary suggestive pretrial out-of-court identification procedures conducive

to mistaken identification that are incapable of repair are used, the Due Process

Clause requires exclusion of the testimony of the identification.” Id. We examine

the totality of the circumstances to determine if a defendant’s due process rights

were violated by the identification procedure. Id. If, however, after looking at the

totality of the circumstances the identification is found to be reliable, the

identification testimony is admissible. Id.

       A court must first determine whether an identification procedure was

impermissibly suggestive. State v. Webb, 516 N.W.2d 824, 829 (Iowa 1994). If

the procedure was impermissibly suggestive, the court then determines, under

the totality of the circumstances, whether the identification was irreparably

tainted. Id. The court considers (1) the opportunity of the witness to view the

criminal at the time of the crime, (2) the witness’s degree of attention, (3) the

accuracy of the witness’s prior description of the defendant, (4) the level of

certainty demonstrated at the confrontation, and (5) the time between the crime

and the confrontation. Id. at 830 (citing Manson v. Brathwaite, 432 U.S. 98, 115-

16 (1977)).    Where there is not a substantial likelihood of an irreparable

misidentification, the issue of eyewitness identification is for the jury to determine.

State v. Mark, 286 N.W.2d 396, 405 (Iowa 1979).

       Here, both Knutson and Pettijohn were able to observe the driver of the

car. Their attention had been drawn to the car prior to that time. The record

does not specify the accuracy of these witnesses’ prior description of the driver.
                                         8


At the time they again observed Rankins after he had been stopped, Knutson

was seventy to eighty percent certain, while Pettijohn affirmatively identified

Rankins.    From the time they observed the driver of the car to when they

identified Rankins was a little over two hours.           Based on all of these

circumstances, we determine Rankins has not shown there was a substantial

likelihood of irreparable misidentification. Even if there had been some element

of untrustworthiness, the issue of identification was properly submitted to the jury.

See id. (“Juries are not so susceptible that they cannot measure intelligently the

weight of identification testimony that has some questionable feature.”).

       When, in the totality of the circumstances an identification is found to be

reliable, the identification testimony is admissible. Folkerts, 703 N.W.2d at 763.

Rankins has not shown he received ineffective assistance due to defense

counsel’s failure to file a motion to suppress the eyewitness identification by

Knutson and Pettijohn.

       C.   Rankins asserts he received ineffective assistance due to defense

counsel’s stipulation the status of the criminal prosecution against Randy Cason

would be inadmissible. The State had filed criminal charges against Cason on

the theory he was the person who had robbed the Arby’s restaurant and Rankins

was the getaway driver. Prior to the trial in Rankins’s case, the criminal charges

against Cason were dismissed without prejudice. Rankins argues the jury should

have been permitted to infer his innocence from the State’s dismissal of the

charges against Cason.

       “Generally evidence of another’s conviction or acquittal is inadmissible.”

State v. Scott, 619 N.W.2d 371, 374 (Iowa 2000). Rankins argues there is an
                                          9


exception to this rule when the evidence against both defendants is identical,

citing cases from other jurisdictions.2 Even if we assumed this exception was

applicable in Iowa, Rankins has not shown the evidence against himself and

Cason was identical.

       Rankins was positively identified by two witnesses, and his vehicle was

identified as well.    The gun used in the robbery was found in the trunk of

Rankins’s car.    The identification of Cason as the robber was much more

problematic because the robber either wore a ski mask or a scarf over the lower

part of his face so only his eyes were visible. We conclude the dismissal of the

criminal charges against Cason was irrelevant to the prosecution against

Rankins. Whether or not the robber was actually Cason, there was evidence

Rankins drove the robber away from the scene. Therefore, Rankins has not

shown he received ineffective assistance due to defense counsel’s stipulation

that evidence of the Cason dismissal was inadmissible.

       D. Rankins claims he received ineffective assistance because defense

counsel did not depose Cason or call him as a witness at the trial. He asserts

Cason would have testified he was not involved in the robbery, and this would

have shown Rankins was also not involved in the robbery.

       At the postconviction hearing, defense counsel testified he did not attempt

to depose Cason or call him as a witness because he did not believe Cason



2
  Rankins cites State v. Weaver, 873 So. 2d 909, 916 n.2 (La. Ct. App. 2004), which in
turn cites People v. Negron, 580 N.E.2d 1301, 1311 (Ill. App. Ct. 1991). While Weaver
notes Negron held that evidence another defendant had been acquitted was admissible
when the evidence against both defendants was identical, Weaver itself held evidence
another defendant was acquitted was irrelevant and therefore inadmissible. 873 So. 2d
at 916. Therefore, Weaver does not support Rankins’s position.
                                       10


would have been willing to make any statements regarding the case. Rankins

submitted a deposition of Cason taken in 2011 in which he stated he would have

been willing to testify at Rankins’s trial.   The district court found Cason’s

assertion to be “highly suspect,” noting the criminal charges against him had

been dismissed without prejudice and could have been reinstated at any time

within the statute of limitations. The court concluded, “Cason would not have

made himself available at trial, despite his claims today, because he would have

subjected himself to being questioned under oath regarding his involvement in

the robbery, which was not in his best interest.” We agree with the court’s

conclusion.

        We conclude Rankins has not shown he received ineffective assistance

due to counsel’s failure to depose Cason or call him as a witness during the

criminal trial.

        E. Rankins contends he is entitled to a new trial based on cumulative

errors by his defense counsel. Because we have not found Rankins received

ineffective assistance on any of the grounds argued in this appeal, we conclude

he has not shown there was cumulative error in this case.

        IV. Pro Se Issues.

        A. The preliminary complaint against Rankins, filed on January 19, 2006,

alleged he had committed first-degree robbery and was a felon in possession of

a firearm. After a preliminary hearing, the charge of first-degree robbery was

dismissed on January 30, 2006.      The State then filed a trial information on

February 15, 2006, alleging Rankins had committed robbery in the first degree

and had been a felon in possession of a firearm. The district court subsequently
                                           11


granted Rankins’s motion to sever the charges. After he was convicted of first-

degree robbery, the State dismissed the charge of possession of a firearm by a

felon.

         In a pro se brief, Rankins claims he received ineffective assistance

because defense counsel did not object when the State reinstated the charge of

first-degree robbery after it had been dismissed. He asserts the charge of first-

degree robbery was reinstated due to vindictiveness by the prosecutor. In the

postconviction ruling, the district court found, “Petitioner has submitted no

evidence to support the contention that the robbery charge was re-filed as a

result of ‘prosecutorial vindictiveness.’” We agree with the court’s conclusion

Rankins has not shown he received ineffective assistance due to counsel’s

failure to challenge the trial information on the ground of prosecutorial

vindictiveness.

         B. Rankins claims he received ineffective assistance because defense

counsel did not file a motion to suppress an amended trial information. Rankins

asserts that after the charges against Cason were dismissed, defense counsel

should have filed a motion to dismiss the charges against him.

         In the direct appeal we stated:

                 We find the earlier-described evidence sufficient to support
         Rankins’s robbery conviction under the State’s aiding and abetting
         theory. Based on this evidence, a reasonable juror could find
         another person committed the robbery and that Rankins actively
         participated in it by driving the car used to survey the restaurant
         before the robbery and used as the getaway car after the robbery.
         Contrary to Rankins’s claim, the State’s failure to prove the identity
         of the masked gunmen was not fatal to the State’s case.
                                          12

Rankins, 2007 WL 2712066, at *3. Thus, we have already determined the fact

the State did not prove Cason was the robber does not mean there was

insufficient evidence to convict Rankins. We conclude Rankins has not shown

he received ineffective assistance due to counsel’s failure to object to the

amended trial information.

          C.   Finally, Rankins claims he received ineffective assistance because

defense counsel did not file a motion to suppress impermissibly suggestive

identification testimony.     We have already addressed this claim and found

Rankins failed to show he received ineffective assistance on this ground.

          After considering all of the issues presented in this appeal, we affirm the

decision of the district court denying Rankins’s application for postconviction

relief.

          AFFIRMED.
