State of Iowa v. GRIFFIN
| Decision Date | 30 March 2011 |
| Docket Number | No. 0-973 / 09-1366,0-973 / 09-1366 |
| Parties | STATE OF IOWA, Plaintiff-Appellee, vs. EARL JAMARE GRIFFIN, Defendant-Appellant. |
| Court | Iowa Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.
Appeal from convictions of and sentences for first-degree robbery, second-degree theft, and second-degree kidnapping. AFFIRMED.
William S. Morris, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber and Mary Tabor (until withdrawal), Assistant Attorneys General, John P. Sarcone, County Attorney, and George Karnas and Celene Gogerty, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Vogel and Vaitheswaran, JJ. Tabor, J. takes no part.
Defendant-appellant, Earl Griffin, appeals from his convictions of and sentences for robbery in the first degree, theft in the second degree, and kidnapping in the second degree. He contends the district court erred (1) in limiting the testimony of his expert witness, (2) in admitting photographs and opinion testimony identifying him as the perpetrator, (3) in instructing the jury on kidnapping, (4) in "allowing the State's evidence to convict [him] beyond a reasonable doubt," (5) in imposing consecutive sentences, and (6) in denying his posttrial motion for in arrest of judgment. Griffin's pro se brief contends counsel was ineffective in not raising issues concerning the trial information. We affirm.
On August 17, 2008, a Kentucky Fried Chicken store was robbed after it closed for the night. As employee Jodi Carter was walking to her car, she was accosted by a man with a gun. He forced her to unlock the restaurant door. After they entered the building, the gunman forced the assistant manager, Clinton Hiatt, to open the safe. When Hiatt was unsuccessful in opening a second safe, the gunman said, "I know that it opens up, you know, I used to work here." Carter and Hiatt were then taken downstairs and forced to lie on the floor of the cooler. Carter heard the gunman say, "Do not leave this cooler or I will shoot you and kill you." When Hiatt and Carter left the cooler later, they noticed Carter's car was gone. They called the police and the restaurant manager.
Police issued photographs taken from the restaurant's surveillance video to the local media. On August 19, police were told by Michael Underwood that he recognized his nephew, defendant Earl Griffin, in the photographs from the video. Carter picked Griffin's photo out of a police photo array. Hiatt was unable to identify the robber from any photos.
On September 18, Griffin was charged by trial information with robbery in the first degree and theft in the second degree. On October 16, an amended trial information added a third count—kidnapping in the second degree. Following a trial, a jury found Griffin guilty of all three charges. Before sentencing, Griffin filed motions in arrest of judgment and for new trial. Following a hearing on the motions, the court denied both motions, and then proceeded to sentencing. The court sentenced Griffin to prison terms not exceeding twenty-five years each for the robbery and kidnapping convictions and not exceeding five years for the theft, all to be served consecutively. This appeal followed.
Review of evidentiary claims is for an abuse of discretion. State v. Cox, 781 N.W.2d 757, 760 (Iowa 2010). An abuse of discretion occurs when the district court exercises its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Id. (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)). Challenges to jury instructions are reviewed for correction of errors at law. State v. Millbrook, 788 N.W.2d 647, 650 (Iowa 2010). Challenges to the sufficiency of the evidence are reviewed for correction of errors at law. State v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010). We uphold a finding of guilt if substantial evidence supports the verdict. State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). Substantial evidence is evidence from which a rational fact finder could find a defendant guilty beyond a reasonable doubt. State v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003). Review of a district court's decision to impose consecutive sentences is for an abuse of discretion. State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006). Claims counsel was ineffective are reviewed de novo. State v. Armstrong, 787 N.W.2d 472, 477 (Iowa Ct. App. 2010). To prevail, a defendant must demonstrate by a preponderance of the evidence that counsel failed to perform an essential duty and prejudice resulted. State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007).
A. Expert testimony. Griffin contends the district court erred in limiting the testimony of his expert concerning eyewitness misidentification. The State filed a motion in limine seeking to limit or exclude the testimony of Griffin's expert on eyewitness identification, claiming the expert's testimony would not aid the jury and the use of hypotheticals would invade the province of the jury. Griffin resisted the motion. At the hearing on the motions, the court observed,
I believe counsel have agreed that the State withdraws that motion in limine insofar as it relates to Dr. MacLin's general testimony. But the State would still object if Dr. MacLin were to be asked hypotheticals or testimony regarding the specific facts of this case.
Both counsel agreed. Defense counsel affirmed the expert's testimony would not be about specific facts of this case, but generalized factors concerning how the mind identifies faces. The court left open the option for either counsel "to alert the court" if testimony were sought "that does not comport with this agreement that we've made." The court did not rule on any portion of the State's motion in limine that was not withdrawn.
Because defense counsel agreed to limit the examination of the expert, any claim the court improperly restricted the expert's testimony is waived. Because the court did not rule on the State's motion, any error is not preserved for our review.
B. Photos of Griffin and testimony of persons who were not crime scene witnesses. Griffin's motion in limine sought to prevent the State from introducing multiple booking photos of Griffin and identifications of Griffin as the robber by persons who were not at the scene of the robbery. The district court overruled the motion as to the testimony of individuals, cautioning counsel to avoid questions that might lead to references to other crimes with which Griffin was charged. The court reserved ruling on the photos until it saw the edited versions that were to remove the background and neutralize the clothing color so it did not appear to be inmate clothing. At trial, the court allowed the photographs to be introduced. Defense counsel had no objection. The officer testified as to the dates of the photos, but did not identify them as "mug shots" or give any indication the photos related to criminal proceedings or encounters with police. Instead, the testimony was focused on the changes in Griffin's appearance among the photos.
On appeal, he argues the photos were inadmissible under Iowa Rule of Evidence 5.404 as evidence of "other crimes, wrongs, or acts." Even if admissible under rule 5.404, Griffin argues they should have been excluded under rule 5.403 because the probative value of the photos was greatly outweighed by the prejudice to him. He asserts the "'practical' effect of showing the photos to the jury was to inform them of multiple prior run-ins [he] had with the law." He makes only a bare assertion of the effect he claims the photos had on the jury without any support from the record. The two cases he cites for support do not relate to photos or "mug shots." In State v. Holland, 485 N.W.2d 652, 655-56 (Iowa 1992), the court determined the admission of a work-release card, clear evidence of a prior criminal conviction, was not prejudicial because of the overwhelming evidence against the defendant. In State v. Martin, 704 N.W.2d 674, 675-77 (Iowa 2005), the court determined evidence of the defendant's prior drug conviction, introduced to impeach the defendant, was not harmless because the evidence against him was not overwhelming. The analysis was under rule 5.609 rather than under 5.404 and 5.403. Id. at 676.
In contrast, in the case before us, the photos had been modified to remove any indication Griffin was wearing jail clothing. No mention was made of the source or context of the photos. The testimony was just that the photos showed how Griffin had changed his appearance during the preceding year. See State v. Casady, 597 N.W.2d 801, 807-08 (Iowa 1999) (); see also State v. Redding, 169 N.W.2d 788, 791-94 (Iowa 1969) (). We conclude the district court did not abuse its discretion in admitting the photos.
Griffin also argues the court erred in allowing identification testimony from persons who were not witnesses to the crime. Three witnesses, Smith, Underwood, and Schaffer, were employees at a local business; Underwood is Griffin's uncle. They saw photos made from the surveillance video from the robbery on a local news station's website. Griffin's uncle recognized him from the photos. Smith and Schaffer thought they recognized the person in the photos as someone who had been at their business just a day or two before the robbery. The other challenged witness, Johnson, is the regional manager for the Kentucky Fried Chicken restaurants, who knew Griffin because he had hired him. The district court overruled the motion in limine as to all four witnesses.
The State first contends Griffin did not preserve error on this issue because the motion...
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