Christian Lucier, Applicant-Appellant v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 16-0140
Filed December 21, 2016
CHRISTIAN LUCIER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, James C.
Bauch, Judge.
Christian Lucier appeals the denial of his application for postconviction
relief. AFFIRMED.
Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Christian Lucier appeals the district court decision denying his application
for postconviction relief from his convictions for first-degree robbery, first-degree
burglary, and possession of a controlled substance with intent to deliver. We find
there was no prejudice to Lucier with regard to both the preparation of his expert
witness and the admission of text messages into evidence. We also find the
marshalling instruction on robbery was proper. Finally, we find the issues raised
by Lucier’s pro se motion to amend were addressed in the district court’s ruling.
We affirm the decision of the district court denying Lucier’s application for
postconviction relief.
I. Background Facts and Proceedings
Christian Lucier was convicted of first-degree robbery, in violation of Iowa
Code section 711.2 (2011); first degree burglary, in violation of section 713.3;
and possession of a controlled substance with intent to deliver, in violation of
section 124.401(1)(d). Lucier and two others broke into an apartment,
threatened the occupants with a gun, and stole a flat-screen television, an i-pod
touch, two cell phones, a wallet, cash, and marijuana. Due to the “overwhelming”
evidence against him, Lucier pursued an affirmative defense of diminished
responsibility due to intoxication. After his conviction, Lucier appealed and his
conviction was affirmed. State v. Lucier, No. 11-0609, 2013 WL 2145780, at *2
(Iowa Ct. App. May 15, 2013).
Lucier filed an application for postconviction relief on June 10, 2013. He
claimed he received ineffective assistance because defense counsel failed to
produce to Lucier’s expert additional police reports and a post-arrest video
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recording from law enforcement showing no signs of intoxication. Additionally,
Lucier claimed counsel failed to object to hearsay statements and a jury
instruction. Finally, Lucier claimed the district court erred by failing to rule on the
issues raised in his pro se motion to amend. The district court denied the
application, finding trial counsel had been effective in the face of “very strong”
evidence. Lucier now appeals.
II. Standard of Review
We review claims of ineffective assistance of counsel de novo. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective
assistance of counsel, the [defendant] must demonstrate both ineffective
assistance and prejudice,” and each element must be proven by a
preponderance of the evidence. Id. at 142. “If the claim lacks prejudice, it can
be decided on that ground alone without deciding whether the attorney
performed deficiently.” Id. “Representation by counsel is presumed competent,
and a postconviction applicant has the burden to prove by a preponderance of
the evidence that counsel was ineffective.” Jones v. State, 479 N.W.2d 265, 272
(Iowa 1991). Regarding prejudice, “the proper standard requires the defendant
to 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.” Strickland v. Washington, 466 U.S. 668, 669 (1984).
III. Preparation of the Expert Witness
Lucier claims counsel was ineffective for failing to provide additional police
reports and a videotape depicting Lucier after arrest to his expert witness, Dr.
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Conditt. During cross examination, Dr. Conditt admitted the videotape and police
reports would have been useful in helping to form his opinion but continued to
affirm his position that Lucier was too intoxicated to form the specific intent
required to commit the offenses. Lucier claims trial counsel’s failure to provide
the information was a breach of duty, and Dr. Conditt’s opinion was not credible
after cross-examination due to the lack of relevant information.
The evidence against Lucier at trial concerning his lack of intoxication was
overwhelming. The testimony of officers who had interacted with him during and
after his arrest uniformly described him as alert and without any indication of
intoxication. Additionally, text messages from Lucier suggesting a specific intent
to commit the crimes had been admitted into evidence over an objection by trial
counsel. Lucier also made a telephone call from jail and stated he committed the
robbery to get rent money, which call also showed no signs of intoxication. Other
evidence admitted at trial included a mask, made by cutting eye holes in a tee-
shirt, and DNA found inside the shirt, which matched that of Lucier.
The weight of evidence against Lucier was succinctly summed up by his
trial counsel at the post-conviction trial: “[the State] had a bazooka, and I had a
BB gun.” The evidence against Lucier’s defense of intoxication is nearly
unassailable. “[W]e find no prejudice to the appellant because the evidence
presented at his trial was overwhelming concerning his guilt.” See Whitsel v.
State, 439 N.W.2d 871, 875 (Iowa Ct. App. 1989).
IV. Admission of Text Messages
Lucier also claims trial counsel was ineffective by allowing hearsay
evidence, in the form of text messages between Lucier and a co-defendant, to be
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admitted. Lucier’s trial counsel asked a police officer involved in the case what
time Lucier was approached by a co-defendant “to go do these naughty things?”
Counsel was attempting to question the officer about Lucier and the co-
defendant’s plan to drink alcohol and smoke marijuana, however, the officer
mentioned the text messages sent between Lucier and the co-defendant
indicating specific intent to commit the robbery. On redirect examination, the
State questioned the officer in more depth about the text messages. Lucier’s
counsel objected to the text messages as hearsay, which was overruled.
Therefore, Lucier’s counsel fulfilled his duty through the objection. We find the
text messages were properly admitted and find the evidence presented at trial
was so overwhelming as to preclude any potential finding of prejudice. See id.V. Jury Instructions
Lucier further claims trial counsel was ineffective for failing to object to jury
instruction No. 21. Under the Iowa Code, “[a] person commits robbery in the first
degree when, while perpetrating a robbery, the person purposely inflicts or
attempts to inflict serious injury, or is armed with a dangerous weapon.” Iowa
Code § 711.2. Jury instruction No. 21 stated:
The State must prove all of the flowing
elements of Robbery in the First Degree:
1. On or about the 1st day of January, 2011, the
defendant had the specific intent to commit a theft or
aided and abetted another knowing the other had the
specific intent to commit a theft.
2. To carry out his intention or to assist him or another
in escaping from the scene, with or without the stolen
property, either the defendant or the person the
defendant aided and abetted:
a. Committed an assault on [victim 1] and/or
[victim 2].
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b. Threatened [victim 1] and/or [victim 2] with,
or purposely put [victim 1] and/or [victim 2] in fear of
immediate serious injury.
3. The defendant or the person the defendant aided
and abetted was armed with a dangerous weapon.
If the state has proved all of the elements, the
defendant is guilty of Robbery in the First Degree. If
the state has proved elements 1 and 2 but has failed
to prove element 3, the defendant is guilty of Robbery
in the Second Degree. If the state has failed to prove
either element 1 or 2, the defendant is not guilty of
Robbery and you will then consider the charge of
Assault as explained in Instruction No. 25.
Lucier claims this jury instruction does not accurately state the elements of
robbery in the first degree established in the Iowa Code by not including the
words “while perpetrating.”
The essence of Lucier’s claim is that the words “while perpetrating” are
different than the jury instructions, which require the use of a dangerous weapon
and committing acts constituting robbery. However, the district court is given
broad discretion in phrasing jury instructions. State v. Stallings, 541 N.W.2d 855,
857 (Iowa 1995) (holding the court may use its own words to phrase instructions
if they give full and fair advice of the issues and law that is applicable.). Our
supreme court has defined “perpetration” broadly and also applied that term “to
acts connected with the commission of a crime, including acts occurring after a
crime.” See State v. Pace, 602 N.W.2d 764, 772 (Iowa 1999). Adding the words
“while perpetrating” would not have added a new element to the instructions, and
therefore, objecting would have been meritless. “It is axiomatic that
ineffectiveness of counsel may not be predicated on the filing of a meritless
motion.” State v. Ray, 516 N.W.2d 863, 866 (Iowa 1994). Therefore, we find
Lucier’s trial counsel was not ineffective for failing to object to the jury instruction.
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VI. Pro Se Issues
Finally, Lucier claims the district court erred by failing to rule on issues
raised in his pro se motion to amend. Lucier raised four ineffective-assistance-
of-counsel claims in his motion to amend: (1) failure to object to jury instructions
regarding robbery in the first degree, (2) failure to argue the merger of burglary
and robbery, (3) failure to argue insufficiency of evidence, and (4) failing to argue
due process was violated by the State’s use of an aiding and abetting theory.
The district court need not rule specifically on each allegation raised by a
petitioner if the ruling adequately addresses each issue raised. State v. Allen,
402 N.W.2d 438, 441 (Iowa 1987). While the district court did not specifically
address the allegations raised in Lucier’s pro se motion, the ruling in the
postconviction-relief matter did address each issue Lucier raised. The district
court specifically held the jury instructions were proper and that counsel had
made a proper record concerning the instructions and the use of “aiding and
abetting.”
This finding resolves all of Lucier’s claims. Lucier’s claim that the
instructions regarding first-degree robbery were improper is clearly resolved by a
finding the instructions submitted to the jury were correct. Lucier’s claim that
merger was not raised is resolved by this finding, as the instructions required
unshared elements to prove burglary and robbery. Thus, if the instructions were
correct, merger would be impossible.
Lucier’s claim that the evidence was insufficient and that an aiding and
abetting theory was unfairly used against him were also resolved by the district
court’s ruling. Lucier’s evidentiary claim argues evidence was insufficient as the
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only person identified using a gun was a co-defendant. However, because the
instruction regarding aiding and abetting was found to be proper, both these
claims were necessarily addressed by the district court. Therefore, we affirm the
decision of the district court denying Lucier’s application for postconviction relief.
AFFIRMED.