IN THE COURT OF APPEALS OF IOWA
No. 17-1988
Filed February 6, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANDRE LESURE JOHNSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport,
Judge.
Andre Johnson appeals his conviction for first-degree burglary.
AFFIRMED.
Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by Doyle, P.J., and Mullins and McDonald, JJ.
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McDONALD, Judge.
Andre Johnson was convicted of burglary in the first degree, in violation of
Iowa Code sections 713.1 and 713.3 (2017). The district court sentenced Johnson
to an indeterminate term of incarceration not to exceed twenty-five years. In this
direct appeal, Johnson asserts several clams of error: (1) his counsel provided
constitutionally deficient representation in several respects; (2) the district court
erred in denying his motion for new trial; (3) the district court abused its discretion
in imposing sentence; and (4) his sentence is unconstitutional.
I.
This case arises out of a residential burglary in Charles City. Johnson and
the State have very different accounts of what happened on the night in question.
According to Johnson, he and his girlfriend were visiting some friends in
Charles City, including his friend Michael Jackson. While Johnson was with
Jackson, they met up with Deangelo Hawkins. The three men wanted to purchase
marijuana. Hawkins volunteered he knew a dealer—his childhood friend, Jamison
Zirbel. Johnson, Jackson, and Hawkins went to Zirbel’s house. In addition to
wanting to purchase marijuana, Hawkins believed someone at Zirbel’s house had
his cell phone. When the three men arrived at Zirbel’s house, Hawkins went up to
the door while Johnson and Jackson hung back. Eventually they joined Hawkins
in the house.
According to Johnson, another man, Garrett Tegtmeier, was present when
Johnson entered the home. Hawkins asked about his phone, and Tegtmeier
grabbed for his waistband to pull out a gun. Johnson shoved Tegtmeier into a
refrigerator, and Jackson locked the entry door and grabbed the gun from
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Tegtmeier. Then Johnson and Jackson ran upstairs and went out a window and
onto the roof. Jackson was still in possession of the gun, and he dropped it off the
roof. While on the roof, Johnson heard a scuffle inside. Johnson and Jackson
climbed back into the house. Once inside, Johnson encountered Enrique Bor, a
resident of the house. Bor exited the home with Johnson, Hawkins, and Jackson.
As will be discussed in more detail below, Johnson’s version of events is
not credible. According to the State’s evidence, on the day in question, Bor, Zirbel,
and Tegtmeier were hanging out at Zirbel and Bor’s house. As the evening wound
down, Zirbel set out with Tegtmeier to walk Tegtmeier to his home. Zirbel did not
lock the entry door because he planned on returning home soon. Bor remained at
the house and relaxed in his room upstairs.
Shortly after Zirbel and Tegtmeier left, Bor heard loud knocking at the door.
He did not answer. Then he heard people enter the house. Startled, Bor hid in
the back of his closet and called Zirbel to see if anyone was supposed to come
over. When Zirbel confirmed no one was supposed to come over, Bor called 911.
By this time, the intruders were searching around the house. Bor whispered his
address to the dispatcher and told the dispatcher there were people in the house.
Bor could hear the intruders talking about Bor’s PlayStation and other things in
Bor’s room. While Bor was still on the phone with the dispatcher, someone opened
the closet door. Bor hid himself and was not discovered. Bor remained on an
open line with the 911 dispatcher.
After receiving Bor’s call, Zirbel and Tegtmeier went back to the house.
Upon arrival, they found the entry door was deadbolted. The two kicked in the
door and ran upstairs. When they reached the second floor, they discovered
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Hawkins, Johnson, and Jackson. Zirbel was either pushed or fell down the stairs.
After falling down the stairs, he sought refuge in the garage. Hawkins, Johnson,
and Jackson questioned Tegtmeier while they beat him with a tire iron and
searched his pockets. Bor was still in the closet and connected to 911. On the
recording of the phone call, multiple voices can be heard in addition to Tegtmeier’s
voice. On the recording, Tegtmeier can be heard begging his assailants to stop.
After beating Tegtmeier, the men threw him down the stairs.
Police quickly responded to the home. When they arrived, Tegtmeier and
Zirbel ran to the police. Unsure if the men were the perpetrators or the victims, the
police ordered them to lie the ground. Officers then saw Johnson and Jackson exit
onto the roof of the house. They ordered Johnson and Jackson to surrender. The
men went back inside the home and could be observed going up and down the
stairs. They did not come out for several minutes. While still in the house, Johnson
opened Bor’s closet again. This time Johnson found Bor and instructed him to
leave the house with them and tell the officers it was all a misunderstanding and
the men were just looking for a phone. Bor did as instructed. However, he tried
to stand away from the perpetrators so he could tell the officers the truth. An
officer’s body camera recorded the events at the scene.
Following the conflict, Tegtmeier was taken to the hospital and received
fourteen staples to close open wounds on his head. Police searched the home
and found a surveillance system smashed and a PlayStation bagged up. They
also observed signs of marijuana dealing. Johnson, Jackson, and Hawkins were
charged with first-degree burglary for their involvment. Both Jackson and Hawkins
pleaded guilty to second-degree burglary. Johnson chose to proceed to trial.
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At trial, Bor, Tegtmeier, and Zirbel testified. The jury heard the 911 call, and
the jury observed the body-camera footage. The body camera footage showed
Tegtmeier and Zirbel were already outside the home and on the ground when
Johnson was on the roof and allegedly heard someone else beating Tegtmeier
inside. When Johnson and Jackson testified, the prosecutor impeached them with
prior convictions, including convictions older than ten years. The prosecutor also
attempted to impeach Johnson with jailhouse phone calls. When Johnson denied
making certain statements, the prosecutor requested the recordings be played
outside the presence of the jury to refresh Johnson’s recollection. As the first
recording played, Johnson’s counsel objected, noting he had not received a copy
of the recording despite an order to produce the same. As a result, the court
stopped the recordings and barred the State from making any further reference to
the recordings.
The jury returned a verdict of guilty, and the district court imposed the
mandatory sentence. Johnson timely filed this appeal.
II.
Johnson asserts several claims of ineffective assistance of counsel. He
contends his counsel was ineffective in the following respects: (1) counsel failed
to object to the prosecutor’s use of prior convictions more than ten years old for
impeachment purposes where the prosecutor did not provide notice; (2) counsel
failed to object/seek new trial on the ground of prosecutorial misconduct after the
prosecutor failed to produce recorded jailhouse phone calls; (3) counsel failed to
object/seek new trial on the ground of prosecutorial misconduct after the
prosecutor questioned Johnson regarding the phone calls; (4) counsel failed to
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move for a mistrial after the prosecutor referenced the jailhouse phone calls; and
(5) counsel failed to interpose an objection to an incomplete jury instruction
regarding aiding and abetting.
This court reviews claims of ineffective assistance of counsel de novo. See
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). It is the defendant’s burden to
show “(1) his trial counsel failed to perform an essential duty, and (2) this failure
resulted in prejudice.” Id. (citing Strickland v. Washington, 466 U.S. 688, 687-89
(1984)). Failure to prove either element is fatal to the claim. See Strickland, 466
U.S. at 700 (“Failure to make the required showing of either deficient performance
or sufficient prejudice defeats the ineffectiveness claim.”); State v. Graves, 668
N.W.2d 860, 869 (Iowa 2003) (“A defendant’s inability to prove either element is
fatal.”). Thus, “[i]f we conclude a [defendant] has failed to establish either of these
elements, we need not address the remaining element.” Dempsey v. State, 860
N.W.2d 860, 868 (Iowa 2015).
To establish a breach of duty, the defendant is required to show “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“[C]ounsel’s performance is measured against the standard of a reasonably
competent practitioner . . . .” State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003).
There is a strong presumption of counsel’s competence. See Strickland, 466 U.S.
at 689 (“Judicial scrutiny of counsel’s performance must be highly
deferential . . . .”).
Yet, “[a]n error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no
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effect on the judgment.” Id. at 691. Under the second element, the defendant is
required to show “that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687. “It is not enough for the
defendant to show that the errors had [only] some . . . effect on the outcome of the
proceeding.” See id. at 693. Rather, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
On de novo review, we conclude the record is sufficient to resolve these
claims on direct appeal. See State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015)
(noting ineffective-assistance claims are generally preserved for postconviction-
relief proceedings but may be addressed on direct appeal when the record is
sufficiently developed). We elect to bypass the question of whether counsel
breached a duty in any of the particulars raised and instead focus on the question
of whether the defendant has established constitutional prejudice.
We conclude Johnson failed to establish constitutional prejudice, whether
the claims are considered in isolation or cumulatively. See State v. Clay, 824
N.W.2d 488, 501-02 (Iowa 2012) (instructing that a court should consider
cumulative prejudice only when “the court analyzes the prejudice prong of
Strickland without considering trial counsel’s failure to perform an essential duty”).
Here, there was overwhelming evidence of Johnson’s guilt. Bor called 911 after
Johnson, Jackson, and Hawkins entered the residence. The call was an open-line
call. The events can be heard in the background, including Johnson, Jackson, and
Hawkins breaking property and then beating Tegtmeier. The police arrived while
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the men were still in the residence. When the police arrived, their encounter with
Johnson, Jackson, and Hawkins was captured by body-camera. The audio
recording of the 911 call and the body-camera footage are contemporaneous
documentation of the burglary. Both recordings definitively disprove Johnson’s
version of events. In particular, Johnson’s testimony that he was on the roof while
someone else beat Tegtmeier and Zirbel was definitively disproved by the body-
camera footage showing Tegtmeier and Zirbel had already exited the home prior
to Johnson emerging onto the roof. The audio and video footage was in accord
with the testimony of Bor, Tegtmeier, and Zirbel. Tegtmeier was able to specifically
identify Johnson as one of his assailants due to Johnson’s distinctive hairstyle. All
of this was also supported by the physical evidence, including Tegtmeier’s injuries.
In light of the overwhelming evidence of Johnson’s guilt, there is not a
reasonable probability the result of the proceeding would have been different but
for the alleged breaches. Johnson has failed to establish his claims of ineffective
assistance of counsel. See State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990)
(determining prejudice did not result given overwhelming evidence of guilt); Whitsel
v. State, 439 N.W.2d 871, 875 (Iowa 1989) (“Regardless of the appellant’s many
claims as to ineffective assistance of counsel, we find no prejudice to the appellant
because the evidence presented at his trial was overwhelming concerning his
guilt.”); see also 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.”).
III.
In his next claim of error, Johnson contends the verdict is against the weight
of the evidence and the district court incorrectly denied Johnson’s motion for new
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trial. The denial of a motion for new trial is reviewed for an abuse of discretion.
See State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). When assessing whether
the weight of the evidence supports conviction, the district court considers the
credibility of the presented evidence, not just the sufficiency of the evidence. See
id.
The district court applied the correct legal standard in ruling on the motion.
See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998) (setting forth the legal
standard). The district court acknowledged its duty to consider the weight of the
evidence, both inculpatory and exculpatory, to determine if a miscarriage of justice
occurred. It then stated it considered the arguments set forth in the motion for new
trial, determined the weight of the evidence supported the verdict, and declined to
order a new trial.
Johnson seems to acknowledge the district court applied the correct legal
standard in ruling on the motion. He does contend, however, that the district court
should have granted the motion because Johnson’s version of events is more
credible. We disagree. Johnson’s version is simply not credible. Regardless, that
is not the question presented on appeal. The limited question before this court is
whether the district court abused its discretion in denying the motion. See State v.
Reeves, 670 N.W.2d 199, 203 (Iowa 2003). We conclude it did not.
This claim of error is without mert.
IV.
Johnson asserts two challenges to his sentence. First, Johnson requests
that he be resentenced because the district court failed to provide reasons for
imposing sentence; failed to reference Iowa Code section 713.3; and failed to
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advise Johnson his sentence had no mandatory minimum term of incarceration.
Sentencing determinations are reviewed for an abuse of discretion. See State v.
Barnes, 791 N.W.2d 817, 827 (Iowa 2010). “A sentence will not be upset on
appellate review unless the defendant demonstrates an abuse of trial court
discretion or a defect in the sentencing procedure . . . .” State v. Witham, 583
N.W.2d 677, 678 (Iowa 1998) (citation omitted).
There was no abuse of discretion here. The district court had no discretion
to impose any other sentence because the offense was a forcible felony. See Iowa
Code § 907.3; cf. State v. Millsap, 704 N.W.2d 426, 433 (Iowa 2005) (noting the
court must only exercise discretion when a sentence is not mandatory). In
addition, the district court had no obligation to identify the code provision at issue
or advise the defendant of the lack of a minimum sentence. In short, the district
court’s decision to not recite a reason for imposing a mandatory sentence does not
require resentencing. See State v. Sandstrom, No.17-1582, 2018 WL 3654858,
at *3 (Iowa Ct. App. Aug. 1, 2018) (“Where a court has no discretion in selecting a
sentence, failure to state the reasons for a sentence will not result in remand.”).
Second, Johnson argues his sentence amounts to cruel and unusual
punishment under the federal constitution. A defendant may challenge the legality
of his or her sentence at any time. See State v. Bruegger, 773 N.W.2d 862, 869
(Iowa 2009). Constitutional challenges are reviewed de novo. Id. To establish his
sentence is cruel and unusual, Johnson must satisfy a three-part test. First, he
must establish his sentence is grossly disproportionate to the underlying offense;
this is a threshold test. See id. at 873. If that preliminary showing can be made,
then the court must engage in an intrajurisdictional analysis followed by an
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interjurisdictional review to determine if the sentence is so grossly disproportionate
that it amounts to cruel and unusual punishment. See id.
Johnson fails to establish a constitutional violation. He argues he received
a harsher sentence than Hawkins and Jackson even though they participated in
the same burglary. However, Hawkins and Jackson pleaded guilty to different
offenses. Johnson does not pass the threshold test of showing his sentence is
grossly disproportionate to his underlying convicted offense. See id. The claim is
without merit.
V.
For the above-stated reasons, we affirm the defendant’s conviction and
sentence.
AFFIRMED.