State of Iowa v. Tykel Dupree Robinson

IN THE COURT OF APPEALS OF IOWA
No. 17-1416
Filed January 23, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TYKEL DUPREE ROBINSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey L.
Poulson, Judge.
The appellant appeals his conviction and sentence of robbery in the first
degree. REVERSED AND REMANDED.
Priscilla E. Forsyth, Sioux City, and Zachary S. Hindman of Mayne,
Hindman, & Daane (until withdrawal), Sioux City, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Heard by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
2
VOGEL, Chief Judge.
A jury found Tykel Robinson guilty of first-degree robbery. Robinson
appeals his conviction and sentence. First, Robinson asserts he received
ineffective assistance of counsel because his counsel failed to object to an
incomplete jury instruction that did not provide for specific intent for an aider and
abettor. Second, he argues the district court should have excluded evidence of a
shooting where Robinson was not involved. Alternatively, he asserts his counsel
was ineffective for failing to object to the use of evidence beyond what the ruling
in limine allowed. We reverse and remand for a new trial, finding defense counsel
breached an essential duty by failing to object to the faulty instruction and
Robinson has established prejudice. In addition, we find failing to object to
evidence that exceeded the ruling in limine was a breach of defense counsel’s
essential duty.
I. Background Facts and Proceedings
On February 10, 2017, around 10:00 p.m., three teenagers, N.W., G.B., and
K.R., walked from N.W.’s house to a nearby Kum & Go to purchase snacks. N.W.
purchased Flamin’ Hot Cheetos, two bottles of Dr. Pepper, and Sour Patch
Watermelon candy. Then the three left the Kum & Go and headed back to N.W.’s
house. On the walk back, the group was approached by two individuals. One
individual walked away, but the other, later identified as Darius Wright, approached
N.W.
Wright began to harass N.W. and asked him, “What do you got?” multiple
times. Wright then grabbed N.W.’s sleeve and called for “Tykel.” Someone, later
identified as Robinson, started walking towards the group from down the block,
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arriving—according to N.W.— “right away.” Wright started to swing his fists at
N.W., while Robinson stood near G.B. and K.R. G.B. testified N.W. and Wright
were behind him and Robinson was “in front or like to the side of [him] almost.”
G.B. testified he “stepped to intervene and help [N.W.] out”; however, Robinson
blocked his path, asked G.B. “if [he] was wanting to jump in,” and then forced him
to back away. K.R. affirmed that “no one else [she or G.B.] got involved” to help
N.W. after Robinson blocked G.B. K.R. testified Robinson “appeared to be helping
Mr. Wright, . . . because [G.B.] was going to help [N.W.], and then every time [G.B.]
would step forward, [Robinson] would step forward.”
N.W. testified Wright only “grazed” him. But after a few swings, Wright
reached behind his body, pulled out a gun, aimed it at N.W.’s head, and said, “Give
me what you got.”1 Scared, by the presence of the gun, N.W. pulled his phone out
of his pocket and tossed it to Wright. N.W., G.B., and K.R. left the scene, leaving
behind the bag of items purchased from Kum & Go. Robinson and Wright left the
scene together.
Once the three teenagers returned to N.W.’s home, they told N.W.’s older
brother, Alan Rave, about the incident. Rave grabbed a BB gun, N.W. grabbed
two knives, and the four went to search for Wright and Robinson. While walking,
N.W. testified he heard someone yell, “Hey, you” from a nearby home and believed
it was Wright. N.W. and Rave approached the home and began to argue with
Wright about N.W.’s phone. Wright eventually returned N.W.’s now-broken phone
to N.W. The argument continued, and N.W. testified Wright knocked on the door
1
G.B. testified Wright said, “Give me your phone,” after aiming the gun at N.W.’s head.
4
and four or five individuals emerged and joined Wright. Rave and N.W. ran
towards Kum & Go, while Wright and his friends chased them, yelling “fight me”
and trying to take a “swing on” N.W. Eventually, Rave and N.W. entered the Kum
& Go and asked the store clerk for help. The clerk testified Rave and N.W. ran
into the store yelling, “We’re being robbed,” and the clerk left his station to help
protect them as three pursuers entered the store. N.W. testified Robinson was
one of the individuals that entered the store. The store clerk called the police after
the pursuers left.
Shortly thereafter, the police arrived at the Kum & Go. While investigating
the incident, a shooting victim, Angel Castillo-Martinez, approached the officers.
Police quickly responded to the shooting scene and found shell casings at the
home where Wright had previously confronted N.W. and Rave. Later, the police
determined Wright had shot Castillo-Martinez.2 A search warrant on the home was
executed and a Kum & Go sack with a package of Sour Patch Watermelons inside
was found in a bedroom. A bag of Flamin’ Hot Cheetos and a bottle of Dr. Pepper
were found in the kitchen.
Robinson was charged with robbery in the first degree on February 20,
2017. After trial, the jury returned a verdict finding Robinson guilty of first-degree
robbery under Iowa Code sections 711.1, 711.2, and 703.1 (2017). Robinson was
sentenced to an indeterminate term of incarceration not to exceed twenty-five
years.3 He appeals.
2
It is undisputed Robinson was not involved in the shooting.
3
The sentence imposed was to run consecutive with his sentence in FECR094019, in
which Robinson pled guilty via an Alford plea to two counts of robbery in the second
degree for offenses that occurred on January 25 and March 7, 2016. See North Carolina
5
II. Standard of Review
We review ineffective-assistance-of-counsel claims de novo. State v.
Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). “Ordinarily, ineffective assistance of
counsel claims are best resolved by postconviction proceedings to enable a
complete record to be developed and afford trial counsel an opportunity to respond
to the claim. Yet, in some instances, the appellate record can be adequate to
address the claim on direct appeal.” State v. Truesdell, 679 N.W.2d 611, 616 (Iowa
2004).
III. Jury Instruction
Robinson asserts his counsel was ineffective at trial by failing to object to
the “fatally flawed” instruction regarding specific intent, because he was charged—
and the jury was instructed—that he committed the robbery either as the principal
or as an aider and abettor. While the State admits Robinson’s counsel likely
breached an essential duty, it asserts Robinson cannot show prejudice.
To prevail on an ineffective-assistance-of-counsel claim, the appellant must
show, by a preponderance of the evidence, counsel failed to perform some
essential duty and such failure resulted in prejudice. State v. Straw, 709 N.W.2d
128, 133 (Iowa 2006); see also Strickland v. Washington, 466 U.S. 668, 687
(1984). When “intent is an element of the crime charged, a person may be
convicted on a theory of aiding and abetting if she [or he] participates with either
the requisite intent, or with knowledge the principal possesses the required intent.”
State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000). Additionally, “[t]he State must
v. Alford, 400 U.S. 25, 37 (1970) (permitting a defendant to plead guilty to a crime without
admitting participation in the underlying facts, which constitute the crime).
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prove the accused knew of the crime at the time of or before its commission.” Id.First-degree robbery is a specific intent crime. See Iowa Code § 711.1 (stating an
element of robbery is intent to commit a theft). Since Robinson was charged with
first-degree robbery either as the principal or as an aider and abettor, the State
was required to show he either had the requisite intent to commit a theft or had
knowledge Wright possessed the required intent.4 See id.; Tangie, 616 N.W.2d at
574.
The district court provided the jury with the following instruction on aiding
and abetting:
All persons involved in the commission of a crime, whether
they directly commit the crime or knowingly “aid and abet” its
commission, shall be treated in the same way.
“Aid and abet” means to knowingly approve and agree to the
commission of a crime, either by active participation in it or by
knowingly advising or encouraging the act in some way before or
when it is committed. Conduct following the crime may be
considered only as it may tend to prove the defendant’s earlier
participation. Mere nearness to, or presence at, the scene of the
crime, without more evidence, is not “aiding and abetting”. Likewise,
mere knowledge of the crime is not enough to prove “aiding and
abetting”.
The guilt of a person who knowingly aids and abets the
commission of a crime must be determined only on the facts which
show the part he has in it, and does not depend upon the degree of
another person’s guilt.
If you find the State has proved the defendant directly
committed the crime, or knowingly “aided and abetted” [another]
person in the commission of the crime, then the defendant is guilty
of the crime charged.
4
Iowa Code section 703.1 provides:
All persons concerned in the commission of a public offense,
whether they directly commit the act constituting the offense or aid and abet
its commission, shall be charged, tried and punished as principals. The
guilt of a person who aids and abets the commission of a crime must be
determined upon the facts which show the part the person had in it, and
does not depend upon the degree of another person’s guilt.
7
This instruction mirrors the Iowa Criminal Jury Instruction 200.8. However, the
comment to Instruction 200.8 includes an additional paragraph for a specific intent
crime:
The crime charged requires a specific intent. Therefore, before you
can find the defendant “aided and abetted” the commission of the
crime, the State must prove the defendant either has such specific
intent or “aided and abetted” with the knowledge the others who
directly committed the crime had such specific intent. If the
defendant did not have the specific intent, or knowledge the others
had such specific intent, [he or she] is not guilty.
Iowa Criminal Jury Instruction 200.8 cmt. We find the district court’s instruction
was flawed because it did not properly instruct the jury on the specific intent of an
aider or abettor. See Tangie, 616 N.W.2d at 574. Therefore, we find Robinson’s
counsel failed to perform an essential duty by not objecting to the incomplete jury
instruction.
Notwithstanding this breach of duty, Robinson must show prejudice resulted
from counsel’s failure to object to the incomplete jury instruction. To establish
prejudice, “[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.” State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006)
(quoting Strickland, 466 U.S. at 694). “Errors in jury instructions are presumed
prejudicial unless ‘the record affirmatively establishes there was no prejudice.’”
State v. Murray, 796 N.W.2d 907, 908 (Iowa 2011) (quoting State v. Hanes, 790
N.W.2d 545, 551 (Iowa 2010)).
Robinson asserts, “[T]here is very little evidence to support a finding that
[he] either had an intent to commit a theft, or knew that Wright had such intent at
8
the time when Robinson allegedly aided and abetted him.” Robinson was not
present when Wright first approached and taunted N.W. After Wright called for
Robinson, N.W. and G.B. testified Robinson was “just up the block” and appeared
quickly. G.B. testified he tried to help N.W. but Robinson blocked his path and
asked if he wanted to “jump in.” Both N.W. and G.B. testified to Robinson’s
continued presence when Wright drew a gun, aimed it at N.W.’s head, and
threatened him.5
However, it appears from the record, the district court was concerned about
Robinson’s intent. In the ruling on Robinson’s motion for new trial and motion in
arrest of judgment, the district court made the following statement:
[W]hile the Court does greatly sympathize and appreciate the
argument made by Mr. Robinson that it was not his duty to stop
Darius Wright from robbing or assaulting [N.W.]. The fact that Mr.
Robinson was not present when the initial contact or discussion
between Wright and [N.W.] is also something this Court finds
troubling as well. However, those facts were argued, considered and
weighed by the jury and while this Court finds it troubling that one
can be guilty of crime in which they walked up to, arguably prevented
from escalating, and walked away from, the fact still remains that Mr.
Robinson knowingly entered the scene of and took part in a robbery.
Mr. Robinson made the decision to join in on the incident,
unfortunately involving himself, even in the most minor of roles, in
the criminal act.
Since prejudice is presumed in this situation and even the district court had
concerns with Robinson’s intent, we find Robinson was prejudiced by his counsel’s
breach of duty.
5
The record is unclear as to exactly what Wright said to N.W. when he aimed the gun at
N.W.’s head. N.W. testified Wright said, “Give me what you got,” but G.B. testified Wright
said, “Give me your phone.”
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IV. Admission of Evidence
Robinson next asserts the district court abused its discretion by admitting
evidence of the shooting following the robbery. The State argues error was not
preserved. Robinson’s counsel filed a motion in limine on July 7, 2017, and asked
the district court to exclude evidence of the shooting following the robbery
because, “[t]he probative value of this information is greatly outweighed by the
prejudicial effect it will have on the defendant in this matter.” The district court
ruled on the motion and stated,
Evidence relating to the shooting of Angel Castillo-Martinez by
Darius Wright may be admitted for the sole purpose of proving the
defendant aided and abetted Darius Wright who was armed with a
dangerous weapon. The parties are ordered to prepare a limiting
instruction to be given to the jury with the final jury instructions. The
aforesaid evidence may not be used for any other purpose.
To convict Robinson of first-degree robbery under the aiding and abetting
theory, the State had to prove Wright had a dangerous weapon at the time of the
alleged robbery. See Iowa Code § 711.2. There was a dispute whether Wright
had a B.B. gun or some form of a handgun. G.B described the gun as having, “a
black grip with a silver, chrome slideback; an optical; and a silencer.” The State
offered evidence of the shooting to show the weapon Wright held to N.W.’s head
was a dangerous weapon because it was later used to shoot another individual.6
Although the gun was never recovered, .22 caliber shell casings found near the
6
Jury instruction number 24 provided:
Evidence has been submitted that a BB gun may have been used
during the events testified to during this trial. A BB gun is not automatically
a dangerous weapon under Iowa law. It can be a dangerous weapon if
sufficient expert testimony is presented that the BB gun was designed
primarily for use in inflicting death or serious injury.
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shooting and Castillo-Martinez’s wounds confirmed Wright used something other
than a B.B. gun during the shooting. Because the State needed to prove the
dangerous weapon element to support the robbery conviction, the district court’s
ruling on Robinson’s motion in limine was proper. Moreover, the court gave the
jury a cautionary instruction so as to limit the jury’s use of the testimony regarding
the shooting.7
Alternatively, Robinson argues his counsel provided ineffective assistance
by failing to raise further objection at trial when he claimed the evidence from the
shooting went beyond what the ruling on the motion in limine allowed. In order to
succeed on this ineffective-assistance-of-counsel claim, “the defendant must
overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” State v. Wissing, 528 N.W.2d 561, 564
(Iowa 1995) (quoting Strickland, 466 U.S. at 689 (internal citation omitted)).
During Officer Bryan Noll’s trial testimony, the prosecutor introduced a
photograph of Castillo-Martinez’s face while he was hooked up to oxygen after the
shooting. Defense counsel expressly did not object to the admission of this
photograph. Other officers testified in some detail about the shooting, including
7
Jury instruction number 32 provided:
Evidence has been received concerning a shooting at [the location]
in which officers with the Sioux City Police Department testified that they
identified Darius Wright as the shooter. The defendant was not charged
for this incident and was determined by the Sioux City Police Department
not to be present during this incident. The Defendant is not on trial for this
incident.
. . . [Y]ou may consider this evidence only for the purpose of
determining whether Darius Wright was armed with a dangerous weapon
herein and thus whether the State has proved beyond a reasonable doubt
that the defendant aided and abetted Darius Wright who was armed with a
dangerous weapon . . . .
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where on Castillo-Martinez’s body the wounds were inflicted and the officers’
investigative efforts upon learning of the shooting, such as cordoning off the street,
securing the perimeter of the house, and coordinating with the SWAT team. None
of this evidence assisted the jury in determining whether Wright had a dangerous
weapon at the time of robbery. Despite being given an opportunity to object,
defense counsel breached an essential duty by failing to object to the evidence
that clearly went beyond the confines of the limine ruling. We reverse and remand
for a new trial.
V. Conclusion
We conclude Robinson’s counsel provided ineffective assistance of counsel
by failing to object to the faulty instruction and such failure resulted in prejudice.
Additionally, we find the district court’s ruling on the motion in limine was proper,
but we find the counsel breached an essential duty by failing to raise further
objection to the admission of evidence beyond the confines of the ruling.
REVERSED AND REMANDED.