State v. Neal

• Decision Date: 18 July 1984
• Docket Number: No. 83-129,83-129
• Citation: 353 N.W.2d 83
• Parties: STATE of Iowa, Appellee, v. Isaac Lesley NEAL, Jr., Appellant.
• Court: Iowa Supreme Court

Page 83

353 N.W.2d 83

STATE of Iowa, Appellee, v. Isaac Lesley NEAL, Jr., Appellant.

No. 83-129.

Supreme Court of Iowa.

July 18, 1984.

Charles L. Harrington, Appellate Defender, and Fern Shupeck, Asst. Appellate Defender, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Marcia Mason, Asst. Atty. Gen., and William E. Davis, Scott County Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, LARSON, SCHULTZ and WOLLE, JJ.

SCHULTZ, Justice.

This is an appeal from a conviction and life sentence for first-degree kidnapping arising out of the abduction and sexual abuse of a sixteen-year-old female. See Iowa Code §§ 710.1(3), 710.2. Defendant, Isaac Lesley Neal, Jr., claims his trial counsel was ineffective for failing to object to pretrial identification procedures. He also contends the evidence was insufficient to identify him as the perpetrator and sustain his conviction. Finding no merit in either assignment of error, we affirm.

On the evening of August 26, 1982, the victim was accosted while walking on a Davenport street and shoved into a car by an unknown male. During the thirty to forty minute abduction, the assailant forced his captive to perform oral sex on him as he drove around. Later on, he stopped and made the woman disrobe. When a police car happened by, the abductor quickly moved to another location. Once there, he attempted anal intercourse. Apparently, he was frustrated by his lack of success and ordered the victim out of the car. As they were leaving the automobile, she tried to escape, and a scuffle ensued. Although the assailant stabbed her in the neck, the victim bit his arm and succeeded in breaking away. She then ran to a nearby house where the police were summoned. Upon questioning by an investigating officer, the woman described her assailant and the automobile. Armed with a detailed description, the police recovered the vehicle from a city street a couple of hours later and subsequently traced ownership to defendant's fiancee. The car was positively identified by the victim the next day. Later, she was also able to identify defendant as the perpetrator from a photographic array, at a corporeal lineup and at trial. In addition to this brief background summary, other facts will be set out when necessary to resolve the issues.

I. Ineffective assistance of counsel. Initially, defendant claims he received ineffective assistance of counsel because his defense attorney did not challenge impermissibly suggestive procedures that resulted in his identification as the perpetrator. He maintains his counsel should have moved to suppress the two photographic and lineup identifications prior to trial. At the very least, he asserts, his attorney should have objected at trial to the evidence concerning the pretrial and the in-court identifications by the victim. In sum, he contends these failures denied him adequate representation in violation of his Sixth Amendment right to receive competent legal assistance.

Defendant's first assignment of error stems from trial counsel's alleged inadequacies in dealing with the identification procedures, procedures now being challenged for the first time on appeal by different counsel. Although issues, including constitutional claims, are deemed waived if not raised in district court, we are not precluded from reviewing a nonpreserved issue resulting in a denial of effective representation. State v. Tobin, 333 N.W.2d 842, 844 (Iowa 1983). See also State v. Clark, 351 N.W.2d 532, 535 (Iowa 1984); State v. Rhiner, 352 N.W.2d 258, 261 (Iowa 1984). Thus, when the record is adequate to adjudicate an ineffectiveness claim and nothing further would be gained by an evidentiary hearing before the trial court, we can decide the issue on direct appeal rather than reserving it for postconviction proceedings. See State v. Goff, 342 N.W.2d 830, 838 (Iowa 1983); State v. Schoelerman, 315 N.W.2d 67, 71 (Iowa 1982). Here, both photographic displays, a picture of the corporeal lineup and the circumstances surrounding each pretrial identification were admitted and fully explored at trial. Moreover, since the victim's identification of defendant formed the core of the prosecution's case, no conceivable trial tactic or strategy justifies a failure to object to the identification procedures if they were indeed impermissibly suggestive. In sum, we perceive no procedural or evidentiary barriers to considering the merits of defendant's identification-ineffectiveness claim.

Recently in State v. Miles, 344 N.W.2d 231, 233-35 (Iowa 1984) we elaborated on the showing that must be made to prevail on an ineffective assistance claim. Essentially, defendant must establish by a preponderance of evidence that (1) his counsel breached an essential duty and (2) prejudice resulted therefrom. Id. at 233-34. Shortly after Miles, the United States Supreme Court in Washington v. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), developed a comprehensive framework for evaluating ineffective assistance claims. Under the Washington formulation, defendant must show (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. The first prong of the Miles and Washington tests is the same and in the words of the Supreme Court requires a showing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. As we conclude that defendant cannot satisfy the first requirement of Washington, we do not reach or discuss the prejudice issue.

Defendant can only prevail on his ineffectiveness claim if he can establish by a preponderance of the evidence that the identification procedures were unconstitutional. In other words, counsel's performance was not deficient if he failed to exclude admissible evidence.

Defendant contends both of the photographic arrays and the lineup were impermissibly suggestive. To succeed on this claim, defendant must establish that the procedures were suggestive and the irregularities gave rise to a substantial likelihood of irreparable misidentification in the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Newman, 326 N.W.2d 788, 794 (Iowa 1982); State v Mark, 286 N.W.2d 396, 403-04 (Iowa 1979). Short of this, the identification evidence and its shortcomings or credibility are for the jury to weigh. Manson, 432 U.S. at 116, 97 S.Ct. at 2254, 53 L.Ed.2d at 155; Newman, 326 N.W.2d at 794; Mark, 286 N.W.2d at 405. Thus, we must first consider whether the procedures used to identify defendant were suggestive. If not, the evidence was not suppressible, and any shortcomings in the identifications only go to the weight or credibility assigned to the evidence by the fact finder. Conversely, if the procedures were impermissibly suggestive, we must determine whether, in the totality of the circumstances, the identification of defendant as the perpetrator was nonetheless reliable. Because our de novo review, Newman, 326 N.W.2d at 793, convinces us none of the procedures used to identify defendant were suggestive, we will not discuss the reliability issue.

While the victim was in the hospital shortly after the assault, the police showed her a set of photographs of black males. Defendant's picture was not included, and the victim made no identification. No issue is made concerning this procedure.

On September 1, in the first contested display, the victim was shown five mugshots of black males. Although she would not make a positive identification, she did point out Neal as most closely resembling her assailant. Defendant asserts this procedure is faulty.

He first complains because there is no showing by the State that a photographic identification rather than a lineup was necessary. The use of a photographic array rather than a corporeal lineup in the investigative stage is usually constitutionally permissible. See Sobel, Eyewitness Identification § 5.1(b) n. 3 cases cited therein (2nd Ed.1983). As the Supreme Court noted in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968):

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate through scrutiny of photographs.... We are unwilling to prohibit employment [of photographic identifications], either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.

Although defendant may have been a suspect at this point, he had not yet been arrested. We find no merit in this complaint.

The basis of defendant's next complaint is that the officer who presented the five mugshots casually mentioned that the photo array included a police suspect. Aside from stating the obvious, this casual observation does not support defendant's contention that the officer pressured the victim into making an identification. Although a statement by an officer that a lineup or array includes a possible suspect is a factor to be considered in determining whether the procedures were suggestive, Martinez v. Turner, 461 F.2d 261, 264 (10th Cir.1972), this comment alone does not taint the identification procedures. To suggest, as defendant apparently does, that a witness would not recognize, without prompting from an officer, that a photographic array probably contained a suspect is to underestimate average intelligence. U.S. v. Gambrill, 449 F.2d 1148, 1151 n. 3 (D.C.Cir.1971). See also State v. Bolden, 196 Neb. 388, 391-92, 243 N.W.2d 162, 164 (1976) (Identification based in part upon photographs of defendant shown to victim of crime is not objectionable because officer stated the array included photograph of...