                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0456
                                 Filed June 11, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CARDNEL BROWN JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.



      Cardnel Brown Jr. appeals his judgment and sentence for two counts of

second-degree robbery. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Dennis D. Henrickson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, John P. Sarcone, County Attorney, and Olubunmi Salami, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.

      Cardnel Brown Jr. appeals his judgment and sentence for two counts of

second-degree robbery. He contends the evidence was insufficient to support

the jury’s finding of guilt. He specifically asserts “[t]he evidence of each robbery

consisted solely of eyewitness identification” and suggests more was required.

      We will affirm a jury’s finding of guilt if it is supported by substantial

evidence.   State v. Hennings, 791 N.W.2d 828, 832 (Iowa 2010).             Because

Brown’s focus is on the eyewitness identifications, we will begin and end our

analysis with that evidence.

      The jury was instructed that “[t]he reliability of eyewitness identification

has been raised as an issue.” The jury was further instructed as follows:

      Identification testimony is an expression of belief or impression by
      the witness. Its value depends on the opportunity the witness had
      to see the person at the time of the crime and to make a reliable
      identification later.
              In evaluating the identification testimony of a witness, you
      should consider the following:
              1. If the witness had an adequate opportunity to see the
      person at the time of the crime. You may consider such matters as
      the length of time the witness had to observe the person, the
      conditions at that time in terms of visibility and distance, and
      whether the witness had known or seen the person in the past.
              2. If an identification was made after the crime, you shall
      consider whether it was the result of the witness’s own recollection.
      You may consider the way in which the Defendant was presented
      to the witness for identification, and the length of time that passed
      between the crime and the witness’s next opportunity to see the
      Defendant.
              3. An identification made by picking the Defendant out of a
      group of similar individuals is generally more reliable than one
      which results from the presentation of the Defendant alone to the
      witness.
              4. Any occasion in which the witness failed to identify the
      Defendant or made an inconsistent identification.
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A reasonable juror could have found that several eye witnesses implicated Brown

in two robberies.

       The first robbery took place at a restaurant. A woman working at the

restaurant testified she was grabbed by a man who told her he was robbing her.

She was close enough to look at his face. Several months after the incident, a

detective asked her to examine a six-person photographic array. The woman

identified Brown as the person who robbed her.       In time, Brown’s attorney

showed her a twelve-person photo array. Again, the woman identified Brown as

the person who robbed her. At trial, she confirmed Brown was the person in both

pictures.

       The second robbery took place at a store. A woman working at the store

testified she was robbed. Police later showed her a six-person photo array and

told her to pick out the person who looked like the robber. The woman identified

Brown. She had no doubt he was the person who robbed her. A few months

after this identification, Brown’s attorney showed her a twelve-person photo

array. The woman again identified Brown as the person who robbed her.

       Brown points out that the woman at the store was unable to identify Brown

at trial. While the jury could have considered her equivocation in assessing the

reliability of her prior identifications, a reasonable juror also could have

considered the fact that her photo-array identifications were corroborated by

another woman who worked at the store. See State v. Mark, 286 N.W.2d 396,

405 (Iowa 1979) (“Juries are not so susceptible that they cannot measure

intelligently the weight of identification testimony that has some questionable

feature.”).
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       This second woman at the store testified that, although she did not see the

robbery, she spent some time showing a person items in the store.             She

identified the same individual in the photo arrays as the robbed woman identified.

At trial, she was asked if she had any doubt that she picked the right person.

She responded, “No, sir.”

       A reasonable juror could have found from this testimony that the

eyewitness identifications were reliable. All the witnesses saw the robber from a

close vantage point. State v. Nagel, 458 N.W.2d 10, 13-14 (Iowa Ct. App. 1990)

(“Each witness had an opportunity to view defendant.”). All the witnesses were

able to identify the robber in two separate photo arrays, including one prepared

by the defense. See State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987) (“In

this case, the three victims, and another witness, saw their assailants at close

range, and they all testified at trial that Rawlings was one of them.”); State v.

Neal, 353 N.W.2d 83, 87 (Iowa 1984) (“The use of a photographic array rather

than a corporeal lineup in the investigative stage is usually constitutionally

permissible.”).   The photo arrays contained a group of similar individuals.

Rawlings, 402 N.W.2d at 408 (“Although there are differences between Rawlings

and the other photographs in the first lineup, it appears that there was at least a

reasonable effort to harmonize the photographs.”). The twelve-person array, in

particular, included several pictures of individuals with similar hairstyles and

similar body builds. See id. An eyewitness identification expert called by the

defense opined that this photo array was appropriate. While he spoke of the

difficulties in cross-cultural identification, he failed to establish that the

identifications were in fact cross-cultural.
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       Brown nonetheless insists that eyewitness identifications alone cannot

support a finding of guilt. The United States Supreme Court addressed a similar

challenge to eyewitness identifications in Perry v. New Hampshire, 132 S. Ct.

716, 728 (2012).      The Court reaffirmed prior conclusions “that the potential

unreliability of a type of evidence does not alone render its introduction at the

defendant’s trial fundamentally unfair.”       Perry, 132 S. Ct. at 728.    The Court

declined to require district courts to preliminarily pass on the reliability of pretrial

identifications, as the defendant advocated, explaining that other safeguards in

the adversarial system kept the jury from assigning undue weight to unreliable

witness identifications.    See id.    The Court pointed to a defendant’s Sixth

Amendment right to confront witnesses and to effective assistance of counsel

“who can expose the flaws in the eyewitness’ testimony during cross-examination

and focus the jury’s attention on the fallibility of such testimony during opening

and closing arguments.” Id. The Court also cited “specific jury instructions . . .

[which] warn the jury to take care in appraising identification evidence.” Id. at

728-29. The Court finally pointed to the heavy burden of proof and evidentiary

rules that permitted exclusion of evidence. Id. at 729.

       Brown was afforded most if not all these safeguards. The eyewitnesses

testified at trial and were pointedly cross-examined by Brown’s attorney. In his

closing argument, Brown’s attorney honed in on the fallibility of these

identifications. He emphasized that police told the witnesses they had a suspect,

creating an expectation they would see the individual in the photo array, a

practice Brown’s expert criticized. He cited other inconsistencies and explained

to the jury, “I’m pointing out cracks, holes in this boat that the State’s offering you
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a ride in.” He concluded by referring to the State’s obligation to prove guilt

beyond a reasonable doubt.

       Before the jurors retired to deliberate, they received the quoted instruction

on the factors for consideration in determining the reliability of eyewitness

identifications. That instruction placed them on notice to closely scrutinize the

identifications.

       Because Brown was afforded certain safeguards articulated in Perry, he

faces an uphill battle in arguing that the predominance of eyewitness

identification evidence in this trial requires reversal.1

       We conclude the jury’s findings of guilt are supported by substantial

evidence. Accordingly, we affirm Brown’s judgment and sentence.

       AFFIRMED.




1
 Brown argues that the record contains nothing more than eyewitness identifications.
While this was certainly the major form of evidence, other evidence was also admitted.
