Opinion
No. 3-271 / 01-1869
Filed July 10, 2003
Appeal from the Iowa District Court for Johnson County, David M. Remley, Judge.
Defendant challenges in-court identifications and claims ineffective assistance of counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, J. Patrick White, County Attorney, and Michael Brennen, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Jonathan Lee Memmer challenges two first-degree murder convictions claiming the district court allowed tainted in-court identifications and trial counsel was ineffective. We affirm.
Background Facts. Two women were brutally murdered, their bodies later found in a burning apartment building in Iowa City. Numerous people observed Memmer in the vicinity of the apartment complex and earlier with the women at drinking establishments. At trial, several witnesses testified to observing Memmer in the days before and after the murders. Memmer was convicted of two counts of first-degree murder. On appeal, Memmer challenges the testimony of three witnesses claiming pretrial identification of the defendant tainted later in-court identifications. He also claims trial counsel was ineffective. Scope of Review. Alleged constitutional fair-trial violations are reviewed de novo. Conner v. State, 362 N.W.2d 449, 458 (Iowa 1985). Claims of ineffective assistance of counsel are constitutional challenges, and we conduct a de novo review of the district court ruling, assessing its decision in light of the totality of the circumstances. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
In-Court Identifications and Testimony. Memmer challenges the in-court identifications made by Travis Mansfield and Zachary Kraus, as well as the testimony of Kara Frantz. We need not address the claim as to Mansfield as he was unable to make an in-court identification of Memmer. As such there was no in-court identification that could be considered irreparably tainted. Zachary Kraus did make an in-court identification of Memmer so we proceed to address the claim as to whether his in-court identification was tainted by an impermissibly suggestive pretrial identification procedure.
Kraus Identification. Kraus was shown a single photograph of Memmer about a week after the murders, a procedure which Memmer claims likely irreparably tainted Kraus's later in-court identification. In ruling on Memmer's motion to suppress, the district court ruled the single photo identification procedure in this case was impermissibly suggestive. However, the court then determined that under the `totality of the circumstances' test the identification was nonetheless reliable. The district court cited the five factors set forth in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972), to be considered in evaluating the likelihood of misidentification. Those factors are:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Neil, 409 U.S. at 199-200, 93 S.Ct. at 382, 34 L.Ed.2d at 411. Kraus was a bartender at Chauncey's bar on the night of March 18, 1999, when Memmer entered the bar with two other men. Because the other men did not have any identification with them, Kraus asked them to leave. Memmer then joined a woman at the bar, and Kraus served him a drink. The bar itself is not very large nor was it busy that night. Kraus observed Memmer and the woman for approximately forty-five minutes. About a week after the murders, the police questioned Kraus about the two customers. The description Kraus gave was consistent with others' descriptions of Memmer and with Memmer's actual appearance. When the police showed Kraus photos of both the victim and Memmer, Kraus said he was 100% positive that it was the same woman who was in the bar on the 18th and expressed almost the same level of certainty as to the man. We agree with the district court that upon consideration of the opportunity Kraus had to observe Memmer, both in proximity and interaction, along with the accuracy of Kraus's description and level of certainty of the identification, the identification was sufficiently trustworthy and was properly submitted to the jury. See State v. Webb, 516 N.W.2d 824, 829-830 (Iowa 1994) (upholding in-court identification as totality of the circumstances indicated trustworthiness).
Frantz Identification. Memmer's argument as to Kara Frantz is slightly different on appeal than in his motion to suppress. In the motion to suppress, Memmer argued to suppress all evidence of out-of-court identifications and in-court identifications. On appeal, Memmer argues that Frantz's testimony as a whole was irreparably tainted by viewing photographs with police. Assuming without deciding this issue was preserved, we conclude Frantz's testimony was not tainted by an impermissibly suggestive identification procedure. According to Frantz's testimony, she encountered a man after the murders, while waiting in line to use a convenience store restroom. The man talked to Frantz about the "explosion" at an apartment complex stating it was the worst murder scene in Iowa City history. He also said his cousin was one of the missing girls. Frantz had heard about the "explosion" but did not know that it was a murder scene. About a week after this short conversation, Frantz learned from watching the news that two girls were killed in the fire. She then called the police believing the man she spoke with knew more details than were available at that time. When presented a photo array, Frantz identified Memmer as the same man whose picture she had seen in the news but was unable to identify any photo with the man she conversed with at the convenience store. At trial, Frantz testified there were similarities between the man she spoke with and Memmer such as height, weight and color of hair; however, she did not identify Memmer either before or during trial. As such, we fail to see how Memmer can now raise a due process claim where no identification was involved. See generally State v. Ash, 244 N.W.2d 812, 814 (Iowa 1976) ("An out-of-court identification which is unnecessarily or impermissibly suggestive and which presents his likelihood of irreparable misidentification is a denial of due process and such evidence may not be used at a later trial.") (citations omitted).
Ineffective Assistance of Counsel. Memmer asserts his counsel was ineffective in that he failed to object to drug evidence and failed to properly object to what he asserts were incorrect jury instructions. The State claims Memmer's counsel was not ineffective.
To prove an ineffective assistance of counsel claim, "a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (quoting State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. Id. Rather, we preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims. Id. We preserve for possible postconviction relief proceedings Memmer's claim that counsel was ineffective for (1) failing to object to evidence of Memmer's alleged drug transactions introduced through witnesses Tom Melton and Matthew Bessine as irrelevant and prejudicial, (2) failing to properly object to jury instructions 21 and 47, as not having a factual basis in the record for giving the instructions and (3) failing to properly object to jury instruction 31 as it could be misconstrued to allege one continuous crime lasting from March 15, 1999 to March 21, 1999.