State of Iowa v. Albert Garcia

IN THE COURT OF APPEALS OF IOWA
No. 17-0111
Filed August 15, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALBERT GARCIA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,
Judge.
Albert Garcia appeals his convictions for two counts of first-degree murder
and two counts of first-degree robbery. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney
General, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.
Three men hatched a plan to rob a person who was seeking to buy
marijuana from one of them. They enlisted the help of Albert Garcia because they
knew Garcia had a gun. Garcia ended up shooting the would-be marijuana
purchaser and his friend. Both died.
The State charged Garcia with two counts of first-degree murder, in violation
of Iowa Code sections 707.1 and 707.2 (2015), and two counts of robbery in the
first degree, in violation of sections 711.1 and 711.2. A jury found him guilty as
charged, and the district court sentenced him to two terms of life imprisonment
without the possibility of parole and two prison terms not exceeding twenty-five
years. The sentences were to run consecutively.
On appeal, Garcia contends (1) a police detective lacked the qualifications
to provide expert testimony about cell phone technology; (2) accomplice testimony
was not corroborated by sufficient evidence; (3) his trial attorney was ineffective in
failing to object to an instruction informing the jury it could consider his out-of-court
statements “just as if they had been made at trial”; and (4) his murder convictions
and sentences should be vacated under a merger doctrine.
I. Expert Testimony–Cell Phone Technology
At trial, the prosecutor asked a Des Moines police detective to pinpoint the
locations of a cell phone belonging to one of the participants in the crimes, based
on cell tower information. The detective testified the locations were near the crime
scene. The prosecutor then asked about the locations of Garcia’s cell phone. After
the detective identified the locations, the prosecutor engaged in the following
exchange about cell phone tower technology:
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Q. Generally speaking based upon your training and
experience, how do cell phones connect to particular towers?
A. When it’s trying to get a signal, it goes to whatever the clearest
closest tower is. If you start a call and you are traveling, it will
sometimes switch towers from one to another. A lot of times if you
have a lengthy phone call, it will connect to multiple towers.
At this juncture, Garcia’s attorney objected to the testimony on the ground the
detective was not “certified as an expert in cell phone technology.” The district
court overruled the objection and the detective continued: “Essentially it connects
to the closest tower and communicates with whatever the closest tower is that it
can communicate with.”
Garcia contends, “Testimony about cellular phone technology and the use
of cell tower data to estimate the location of a cell phone is technical, specialized
information that is beyond the understanding of the average lay person and
properly the subject of expert testimony.” In his view, the detective was unqualified
to testify about “location based on the cellphone tower records because the State
presented no evidence of [the detective’s] experience or knowledge in the area of
cell phone technology.”
The State responds with several error preservation concerns. We agree
with the State that Garcia’s objection to the question quoted above came too late
and he failed to object to other testimony about cell phone technology.
Accordingly, he did not properly preserve error. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002).
Anticipating this conclusion, Garcia asserts his attorney “was ineffective for
failing to object in a timely or sufficiently specific manner.” The State responds
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that his assertion is too general to permit review of his claim under an ineffective-
assistance-of-counsel rubric. We disagree with the State and proceed to the
merits.
To prevail on a claim of ineffective assistance of counsel, Garcia must show
deficient performance and resulting prejudice. See Strickland v. Washington, 466
U.S. 668, 687 (1984). On the breach prong, there is a strong presumption that the
attorney’s actions were reasonable. State v. Shumpert, 554 N.W.2d 250, 254
(Iowa 1996). The prejudice prong requires proof by “a reasonable probability that,
but for the counsel’s unprofessional errors, the result of the proceeding would have
been different.” State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008). We may
decide the issue on either prong. See State v. Thorndike, 860 N.W.2d 316, 320
(Iowa 2015) (“If we conclude a claimant has failed to establish either of these
elements, we need not address the remaining element.”). We find the record
adequate to address the breach prong. See State v. Johnson, 784 N.W.2d 192,
198 (Iowa 2010) (“If a defendant wishes to have an ineffective-assistance claim
resolved on direct appeal, the defendant will be required to establish an adequate
record to allow the appellate court to address the issue.”).
“A witness is qualified to assist the jury as an expert to resolve a disputed
fact if the witness has adequate ‘knowledge, skill, experience, training, or
education’ on the subject matter in question.” Ranes v. Adams Laboratories, Inc.,
778 N.W.2d 677, 687 (Iowa 2010) (quoting Iowa R. Evid. 5.702). “[A]n
expert does not need to be a specialist in the area of the testimony as long as the
testimony is within the general area of expertise of the witness.” Id.; see also State
v. Benson, No. 15-1895, 2016 WL 7393891, at *3 (Iowa Ct. App. Dec. 21, 2016)
5
(concluding a detective “possessed sufficient knowledge and training to assist the
jury in interpreting . . . cell phone records”); State v. Rendon, No. 15-1832, 2016
WL 6270092, at *4 (Iowa Ct. Oct. 26, 2016) (concluding detective “had sufficient
knowledge, skill, experience, and training to interpret the cell phone records and
to assist the jury in understanding those records”).
The detective in this case testified he had fifteen years of experience as a
police officer, including ten years as a patrol officer on the streets of Des Moines.
He “attended several homicide conferences and training classes throughout [his]
five years” as a detective. Before discussing specific cell phone records, he was
asked, “Have you had an opportunity in the past to interpret cellular telephone
records in other criminal investigations?” He answered, “Yes.” Later, he was
asked about a particular cell phone record and whether “we have the benefit of cell
tower information as well.” The detective responded, “Yes, we do,” and he
explained that information was somewhat unique to the particular provider. He
expressed his awareness that general location data was available “during cell
calls, not texts.”
The detective’s training and experience qualified him to testify that cell
phones communicated with “the closest tower” and “[t]he cell phone will simply go
to whatever the nearest tower it is or whatever is the clearest signal it can pick up.”
On our de novo review, we conclude Garcia’s attorney did not breach an essential
duty in failing to timely or more specifically object to the testimony. His ineffective-
assistance-of-counsel claim fails.
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II. Corroboration of Accomplice Testimony
The three men who came up with the plan to rob the marijuana purchaser
implicated Garcia and testified against him at trial. Garcia contends their testimony
was insufficiently corroborated. See Iowa R. Crim. P. 2.21(3) (requiring
corroboration of accomplice testimony). Corroborative evidence “may be direct or
circumstantial,” and it “need not be strong and need not be entirely inconsistent
with innocence.” State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997) (citation
omitted). “It must, however, support some material part of the accomplice’s
testimony and tend to connect the accused to the commission of the crime.” Id.
Accomplice Shamair Gainey testified Garcia “shot” the person they
intended to rob, and Garcia then “started shooting” the purchaser’s friend.
Accomplice Roberto Baez-Alvarez testified the man who wished to
purchase marijuana had $250 to spend. He and the other accomplices came up
with a plan to rob him of the money and drove the purchaser to an alley. Garcia
approached the vehicle. The purchaser demanded to see the marijuana before
paying Garcia. After deliberating a short while, Garcia said, “You know what?” and
“shot” the purchaser “once.” Baez-Alvarez heard another shot. After the shot, the
purchaser’s friend “took off running,” with Garcia in pursuit. Baez-Alvarez pulled
the purchaser’s body out of the vehicle and left him on the ground. Later, Baez-
Alvarez attempted to clean the vehicle with bleach and paper towels.
According to accomplice Luis Magallon, Garcia told him “I’m going to shoot”
the purchaser and his friend if they “don’t give me the money.” Magallon walked
away. As he did so, he heard “five or six” gunshots coming from the alley. Later,
he met up with Garcia, who was “pouring sweat” and told him he “did it.”
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The testimony of the three accomplices was corroborated by extensive
evidence. Officers obtained the vehicle owner’s consent to search the vehicle in
which the shooting occurred. One of the detectives observed “what appeared to
be a dark red stain in the seat which would be consistent where somebody would
be sitting” and “what appeared to be blood on the door.” The DNA profiles obtained
from the blood in the vehicle “matched the known DNA profile” of the marijuana
purchaser. The detective also saw “a balled-up paper towel that had some sort of
red evidence on it.” A bottle of bleach was in the vehicle. The detective viewed a
surveillance video from a convenience store “a block and a half” from the crime
scene and identified Garcia and Magallon going into the store “at the approximate
time frame” identified in police interviews.
Garcia was interviewed by police. He changed his story as police
confronted him with information contradicting his initial version of events. See State
v. Harris, 589 N.W.2d 239, 242 (Iowa 1999) (stating courts can “also consider as
corroborating evidence the fact that when defendant was interrogated by the police
he gave false and misleading evidence concerning his whereabouts”). Initially, he
said he did not see Magallon on the night of the shootings. After being informed
that a convenience store video showed him with Magallon, he backtracked. He
also identified an alibi witness, but when she failed to corroborate the alibi, he
altered the narrative.
After being arrested and jailed, Garcia made incriminating statements in
recorded phone conversations. See State v. Douglas, 675 N.W.2d 567, 572 (Iowa
2004) (“[A] defendant’s out-of-court confessions and admissions may corroborate
the testimony of an accomplice.”). They included, “I’m probably going away for a
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long, long time”; “When I get sentenced and go to prison, I might call and tell you
why”; and “I’m probably never going to see the outside world again.”
Finally, cell phone records contained communications between Garcia and
the accomplices and among the accomplices. And, as noted, location data from
the cell phone towers placed the accomplices near the scene of the crime.
We conclude there was more than sufficient evidence to corroborate the
accomplice testimony.
VI. Ineffective Assistance–Jury Instruction, Defendant’s Prior Statements
Garcia contends his trial attorney was ineffective in failing to object to an
instruction that informed the jury it could consider his out-of-court statements “just
as if they had been made at trial.” According to Garcia,
While the rules of evidence provide that statements of party
opponents are admissible, the rule of evidence and the rationale
underlying the hearsay exception provides no authority to require the
jury to consider the statements as bearing the same weight as
testimony received at trial, made under oath and under penalty of
perjury. Instead the jury should have been free to assign whatever
weight and reliability to the statements as it saw fit.
We recently addressed the identical issue. See State v. Yenger, No. 17-
0592, 2018 WL 3060251, at *4-5 (Iowa Ct. App. June 20, 2018). We stated:
Although the challenged instructional language does not appear in
rule 5.801(d)(2), we believe it is a correct statement of the law. . . .
[T]he language allows rather than requires the jury to consider the
statements “just as if they had been made at this trial.” . . . Because
the challenged language does not require jurors to accord the same
weight to an unsworn prior inconsistent statement as they would to
trial testimony, we conclude Yenger’s attorney breached no essential
duty in failing to object to that portion of the instruction. See [State
v.] Payne, [No. 16-1672,] 2018 WL 1182624, at *9 [(Iowa Ct. App.
Mar. 7, 2018)] (“The instruction did not direct the jury to assign the
statement any particular weight or unduly emphasize the matter, nor
did it create an improper permissive inference or presumption.”); see
also State v. Hayes, No. 17-0563, 2018 WL 2722782, at *5 (Iowa Ct.
9
App. June 6, 2018) (concluding counsel was not ineffective in failing
to challenge this instruction); State v. Wynn, No. 16-2150, 2018 WL
769272, at *3 (Iowa Ct. App. Feb. 7, 2018) (noting instruction made
“no reference to a presumption or an inference”); State v. Wineinger,
No. 16-1471, 2017 WL 6027727, at *3 (Iowa Ct. App. Nov. 22, 2017)
(concluding instruction was “a correct statement of law”); State v.
Tucker, No. 13-1790, 2015 WL 405970, at *3 (Iowa Ct. App. Jan. 28,
2015) (disagreeing with assertion that the instruction was
misleading).
We are persuaded by the reasoning of Yenger and the remaining cited opinions.
We conclude counsel did not breach an essential duty in failing to object to the
instruction.
IV. Merger–Felony Murder Instruction
Garcia contends his “sentences and convictions for murder are illegal and
must be vacated” because (1) the jury “was never instructed on the requirement
. . . that the assaultive act that forms the basis of the predicate felony must be
separate and distinct from the act causing death” and (2) “the jury did not make
findings that the act constituting the assaultive elements of the robbery convictions
in Counts III and IV were separate and distinct acts from the shootings that
supported the felony murder options in Counts I and II.” In his view, “the murder
convictions and sentences must be vacated, as the jury’s general verdict forms do
not indicate whether it found [him] guilty of premeditated murder or felony murder.”
The State counters that Garcia “is not truly challenging the legality of his
sentence,” but the “marshalling instructions for his murder charges,” an issue he
failed to preserve for our review. We agree.
“Objections to instructions, or the lack thereof, may not be raised for
the first time on appeal.” State v. Wellington, 264 N.W.2d 739, 742 (Iowa 1978);
cf. State v. McCoy, No. 14-0918, 2016 WL 3269458, at *4 (Iowa Ct. App. June 15,
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2016). (“We agree this is a challenge to the jury instructions, and we agree the
defendant failed to preserve error.”). Garcia did not object to the instruction and
does not raise a challenge to the instruction under an ineffective-assistance-of-
counsel rubric. Accordingly, we have nothing to review. 1
We affirm Garcia’s judgment and sentences.
AFFIRMED.
Tabor, J., concurs specially; Potterfield, J., joins special concurrence.
1
The Iowa Supreme Court recently rejected the argument. See State v. Harrison, 914
N.W.2d 178, 208 (Iowa 2018) (“Based on the fundamental differences between felony
robbery and felony assault in the felony-murder context, in addition to the merger rule
jurisprudence in Iowa, it can hardly be said that trial counsel in this case “performed below
the standard demanded of a reasonably competent attorney.”); see also McCoy, 2016 WL
3269458, at *4-7; State v. Pollard, No. 13-1255, 2015 WL 405835, at *3-4 (Iowa Ct. App.
Jan. 28, 2015).
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TABOR, Judge (concurring specially).
I agree with the majority’s decision to affirm Garcia’s convictions, but I
disagree with two aspects of the analysis. For both claims of ineffective assistance
of counsel raised on appeal, I would find a breach of duty, but no prejudice.
First, the State did not establish that the police detective received relevant
training in cellular telephone technology or that his general experience as a patrol
officer or detective would allow him to provide expert testimony regarding the use
of cell tower data. To satisfy minimum performance standards, defense counsel
should have lodged an earlier objection to the officer’s testimony about specialized
information that was beyond a layperson’s understanding. See generally State v.
Carrillo, 399 P.3d 367, 376 (N.M. 2017) (“[U]nderstanding how cell towers operate
requires a duly qualified expert to explain the technical nature of the many
variables that influence how cell tower signals connect with cell phones.”). In both
State v. Rendon, No. 15-1832, 2016 WL 6270092, at *4 (Iowa Ct. App. Oct. 26,
2016), and State v. Benson, No. 15-1895, 2016 WL 7393891, at *3 (Iowa Ct. App.
Dec. 21, 2016), the question was whether a detective’s training from 2008 to 2012
was up-to-date, not whether he had received any training on cellular phone
technology. Here, the State laid no foundation that the detective had specific
knowledge regarding the operation of cell phone towers. He testified he attended
conferences and classes on homicides generally—not specifically about how
cellular towers work or how to read cellular telephone records. The officer’s
subsequent testimony that he had the “opportunity in the past to interpret cellular
telephone records” in the course of investigations does not answer the question of
how he was qualified to do so then or now.
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Second, counsel had a duty to object to the jury instruction regarding
Garcia’s extrajudicial statements. The district court instructed the jurors that if they
found Garcia made statements at an earlier time and place, they were allowed to
consider those out-of-court statements as part of the evidence—“just as if they had
been made at this trial.” Although our court has upheld this stock instruction in
several unpublished decisions, the disputed language cannot be found in the rules
of evidence. In my view, the instruction improperly suggests Garcia’s out-of-court
admissions were to be given the same force and effect as if he had uttered the
words from the witness stand under the penalty of perjury. See State v. Yenger,
No. 17-0592, 2018 WL 3060251, at *7 (Iowa Ct. App. June 20, 2018) (Tabor, J.,
dissenting); State v. Payne, No. 16-1672, 2018 WL 1182624, at *11–12 (Iowa Ct.
App. Mar. 7, 2018) (Tabor, J., dissenting).
But on the question of Strickland prejudice, in neither instance can Garcia
show the reasonable probability of a different outcome based on counsel’s
omissions. See Strickland v. Washington, 466 U.S. 668, 686 (1984). As the State
asserts on appeal, the detective’s testimony concerning the cellular tower
information was just “one piece of the puzzle” amid overwhelming evidence of
Garcia’s guilt. Similarly, it is not reasonable to believe the result of the trial would
have been different if the court had not given the disputed instruction. See State
v. Kissel, No. 16- 0887, 2017 WL 6032585, at *5 (Iowa Ct. App. Nov. 22, 2017)
(finding no prejudice from same jury instruction); State v. Chinberg, No. 16-1600,
2017 WL 6026718, at *2 (Iowa Ct. App. Nov. 22, 2017) (same). Garcia’s out-of-
court statements—in the form of recorded telephone calls from jail and a
videotaped interview with officers—were not the most incriminating evidence
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before the jury. The prosecution presented a strong case. Garcia’s three
accomplices testified he pulled the trigger, surveillance videos placed him near the
crime scene within minutes of the shooting, and he possessed the proceeds from
the robbery. On this record, I don’t find counsel’s errors undermined confidence
in the jury’s verdicts. I would find counsel breached an essential duty, but Garcia
was not prejudiced. Therefore, I specially concur in the result affirming denial of
Garcia’s claims.