IN THE COURT OF APPEALS OF IOWA
No.16-0329
Filed April 5, 2017
CASEY DIXON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,
Judge.
Casey Dixon appeals from the denial of his application for postconviction
relief. AFFIRMED.
Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.
Two Davenport convenience stores were robbed within four days. The
State charged Casey Dixon with two counts of second-degree robbery, and a jury
found him guilty as charged. Dixon filed a direct appeal, which was dismissed as
frivolous. Dixon then filed an application for postconviction relief. The district
court denied the application following an evidentiary hearing.
On appeal, Dixon argues his trial attorney was ineffective in failing to (1)
file a motion to sever the two robbery counts; (2) adequately impeach a State
witness; (3) file a motion to suppress evidence; and (4) request an eyewitness
identification instruction. To succeed, Dixon must show (1) his attorney’s
“performance was deficient” and (2) prejudice resulted. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Our review is de novo. Dempsey v.
State, 860 N.W.2d 860, 868 (Iowa 2015).
I. Motion to Sever
Dixon contends his trial attorney should have moved to sever the two
robbery charges based on the “lack of similarities between” them. He asserts the
robberies “were not in geographic proximity to one another, being over six miles
apart, and the robberies occurred four days apart.”
Iowa Rule of Criminal Procedure 2.6(1) permits the prosecution of two or
more public offenses in a single trial if the offenses “ar[o]se from the same
transaction or occurrence or from two or more transactions or occurrences
constituting parts of a common scheme or plan.” “A common scheme or plan
requires more than the commission of two similar transgressions by a single
person.” State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000).
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Assuming without deciding Dixon’s trial attorney breached an essential
duty in failing to move for severance of the two charges, there is no reasonable
probability of a different outcome. The jury was instructed on how to consider
multiple counts. See State v. Burrage, No. 09-1042, 2010 WL 2757345, at *5
(Iowa Ct. App. July 14, 2010) (finding no prejudice where the State elicited
testimony concerning the reliability of eyewitness testimony and the marshalling
instruction informed the jury of the State’s burden of proof); State v. Ford, No. 02-
1056, 2004 WL 1898240, at *2 (Iowa Ct. App. Aug. 26, 2004) (noting eyewitness
instruction was unnecessary where the jury received a general instruction on the
credibility of witnesses). In addition, the record contains overwhelming evidence
of guilt. See State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006) (“The most
important factor under the test for prejudice is the strength of the State’s case.”);
Wemark v. State, 602 N.W.2d 810, 817-18 (Iowa 1999) (finding no prejudice
where overwhelming evidence supported certain elements of the crime).
The cashier at the first convenience store testified a man entered the store
with a gun and bag as she was about to close up, he robbed the store of $166
and cartons of Newport cigarettes, and he stole her purse, which contained
various items, including an MP3 player. Davenport police officers subsequently
retrieved the MP3 player from the van in which Dixon was riding. The cashier
conclusively identified it as hers based on a serial number matching the number
on her owners’ manual. Davenport officers also retrieved a bag covered with
basketball team logos. The cashier recognized the bag as the bag brought into
the store. Officers found Dixon’s identification cards inside the bag, Newport
cigarette cartons in the van, and Dixon hiding near the vehicle.
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The cashier at the second convenience store testified to a robbery in
which cash and cigarettes were stolen. Included in the stolen cash was a $2 bill,
which an employee testified was “bait” money. The bill was found with Dixon.
Based on this overwhelming evidence of guilt, we conclude Dixon could
not establish Strickland prejudice.
II. Cross-examination
Dixon contends his trial attorney was ineffective in “failing to adequately
impeach a state witness.” He argues his attorney should have culled through
hours of jailhouse recordings for impeachable statements the witness may have
made. In fact, his attorney questioned the witness about certain statements
made in those recordings. Dixon does not identify any additional portions of the
recordings that might have impugned the credibility of the witness. In the
absence of specificity, we conclude Dixon failed to establish counsel’s breach of
an essential duty.
III. Motion to Suppress
Dixon contends his trial attorney was ineffective in failing to file a motion to
suppress evidence gained during the search of a vehicle in which Dixon was
riding. He relies on the Iowa Supreme Court’s opinion in State v. Gaskins, 866
N.W.2d 1 (Iowa 2015). The court there held a search of a safe inside a vehicle
was not a valid search incident to arrest under article I, section 8 of the Iowa
Constitution. Gaskins, 866 N.W.2d at 14.
There is no indication in this record that the officer’s search of the vehicle
was incident to Dixon’s arrest. A Davenport officer testified she chased a vehicle
and saw the driver and passenger jump out and head in different directions. She
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began running after the driver and then decided to return to the vehicle and
conduct a search. Although she informed other officers to pursue the fleeing
occupants, she did not explain when they were arrested in relation to her search
of the vehicle. Gaskins is inapposite.
Gaskins does not control the disposition for an additional reason. The
opinion was filed several years after Dixon was charged and the opinion
overruled extant precedent. Id. at 15-16 (overruling State v. Sanders, 312
N.W.2d 534, 539 (Iowa 1981)). Dixon concedes his attorney was not charged
with clairvoyance. We conclude counsel breached no essential duty in failing to
predict the holding of Gaskins, determine it applied to Dixon’s circumstances,
and file a motion to suppress.
IV. Jury Instruction
Dixon contends his attorney was ineffective in failing to request an
eyewitness identification instruction. See United States v. Telfaire, 469 F.2d 552,
555 (D.C. Cir. 1972) (“[W]e have pointed out the importance of and need for a
special instruction on the key issue of identification, which emphasizes to the jury
the need for finding that the circumstances of the identification are convincing
beyond a reasonable doubt.”); State v. Hohle, 510 N.W.2d 847, 849 (Iowa 1994)
(stating such an eyewitness instruction is in accordance with Telfaire). In Hohle,
the court held the subject encompassed in a Telfaire instruction was adequately
covered in these instructions. Hohle, 510 N.W.2d at 849. Here, the jury received
a reasonable doubt instruction and a credibility instruction. Accordingly, we
conclude counsel did not breach an essential duty in failing to seek a Telfaire
instruction.
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We affirm the district court’s denial of Dixon’s postconviction relief
application.
AFFIRMED.