State v. Doolin

942 N.W.2d 500

STATE of Iowa, Appellee,

v.Tony Eugene DOOLIN , Appellant.

No. 17-1715

Supreme Court of Iowa.

Filed April 24, 2020

Mark C. Smith, State Appellate Defender (until withdrawal), and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Brian Williams, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.

WATERMAN, Justice.

In this appeal, we must decide whether the defendant's trial counsel provided ineffective representation by failing to object to the crime victim's first-time, in-court identification of the defendant. Responding to a report of a fight involving an armed man, police arrested the defendant at the scene minutes later with his handgun. The victim gave a statement hours later that a man jumped in his car and threatened him at gunpoint before fleeing when officers arrived. The victim gave no detailed description and was never asked to identify his assailant that night, or through a photo array or lineup any time before trial. Two years later, the victim at trial identified the defendant seated at counsel table. Defense counsel vigorously cross-examined the victim regarding his first-time, in-court identification and during closing urged the jury to disregard his testimony as unreliable. The jury returned a guilty verdict on charges of felony assault, intimidation, and possession of a firearm.

The defendant appealed, challenging the sufficiency of the evidence and arguing his trial counsel was ineffective for failing to object to his first-time, in-court identification and also for failing to request the Iowa State Bar Association Instruction No. 200.45 on eyewitness identification. We transferred the case to the court of appeals, which affirmed the convictions but preserved his ineffective-assistance claims for postconviction proceedings, concluding the record is inadequate to decide those claims on direct appeal. We granted the defendant's application for further review.

We find the record is adequate to decide Doolin's claim that his trial counsel was ineffective for failing to object to his first-time, in-court identification, and we reject that claim on the merits. Our precedent permits first-time, in-court identifications, and most other courts have rejected due process challenges to first-time, in-court identifications. We elect to let the court of appeals decision stand on the remaining issues, and we affirm the district court judgment and sentence.

I. Background Facts and Proceedings.

At 1:17 a.m. on August 15, 2015, Waterloo police officers responded to a report of a disturbance involving a man with a handgun at Flirts Gentlemen's Club. The caller described the offender as an African-American male wearing a black hat and black bandana. Officer Ryan Muhlenbruch arrived first at the scene and observed a man matching that description heading from Flirts to the adjacent parking lot. The suspect ducked behind a GMC Yukon, and Officer Muhlenbruch heard the sound of a heavy metallic object hitting the ground. The suspect was detained and identified as Tony Doolin. Police found a loaded Glock .40 caliber handgun underneath the Yukon and a black hat and bandana nearby.

Doolin admitted he owned the handgun and showed the officers his permit to carry it. Doolin claimed that a male in a white hooded sweatshirt had pulled a gun on him so he pulled his in self-defense. Officer Muhlenbruch observed that Doolin smelled like alcohol, slurred his speech, and had watery bloodshot eyes. Based on his nightly experience with intoxicated people, Officer Muhlenbruch determined Doolin was under the influence of alcohol. Doolin refused to perform any field sobriety test or submit to a preliminary breath test. Doolin was arrested and taken to the Black Hawk County jail.

At 2:30 a.m., Officer Ryan Jacobson arrived at Flirts to obtain security camera video. Dalibor Brkovic approached him to report that a man had pointed a gun at him in his vehicle earlier that morning. Brkovic said he drove to Flirts in a BMW x5 with two friends. The group planned to meet other friends at Flirts, including Zuhdija Menkovic and a part owner in Flirts. Brkovic was on the phone with Menkovic as he approached Flirts, and Brkovic asked him to come outside to meet him. As Menkovic walked outside, he noticed a crowd of people, including a man with a handgun. Brkovic parked, and his friends exited the vehicle. Menkovic watched the man holding the handgun run by him and get into the BMW's open passenger seat. This man offered Brkovic $100 for a getaway ride. Brkovic refused. The man pulled a gun, chambered a round, and stuck the end of the barrel into Brkovic's chest, telling the driver he did not have a choice.

Menkovic stood by the driver's door and saw his friend held at gunpoint. Several people gathered near the passenger door and talked to the assailant, presumably trying to dissuade him from shooting Brkovic, who had shut off the engine and pretended that he had thrown his keys to Menkovic. The man turned to Brkovic and said, "Drive." When told that Brkovic could not start the BMW without the key, the man called him a profane name, exited, and started running as police cars reached the parking lot. Brkovic estimated that the man held the gun to his chest for about twenty seconds.

After the man ran off, Brkovic went inside of Flirts for about an hour before he approached Officer Jacobson to report what happened. The police told him that they had arrested an individual in the west parking lot. Brkovic then went back into Flirts with his friends. The police contacted Brkovic around a half hour later asking him to go to the Waterloo Police Department to give a statement. Brkovic had gone to Perkins for breakfast, ordered, and refused to go to the station to give a statement until he finished his meal. Brkovic ultimately gave a statement at the station at around 4:30 a.m., just over three hours after he was held at gunpoint.

During that interview, Brkovic told the officer that he did not remember what the man was wearing because he was more focused on the pistol. Although officers had Doolin in custody at that time, they never arranged a line up or photo array to see if Brkovic could identify Doolin as his assailant. Brkovic left the station without providing much of a description of the man who had held him at gunpoint.

On September 29, Doolin was charged with intimidation with a dangerous weapon in violation of Iowa Code section 708.6 (2015), assault while participating in a felony in violation of Iowa Code section 708.3, and carrying weapons in violation of Iowa Code section 724.4. The case proceeded to a jury trial on August 22, 2017, two years after the incident. Brkovic testified, and during his direct examination, he identified Doolin for the first time as the man who threatened him in his BMW.

Q. ... What happened when you pulled into the parking spot? A. When I pulled into the parking spot my passenger got out of the vehicle. The next thing I know I had someone sit in my passenger seat that I had never seen in my life before. He asked me for a ride. And I denied. I said I was going inside of Flirts.

Q. I want to back up a little bit. Do you recognize that person today? A. I do.

Q. Can you point out that person or describe what that person is wearing? A. Dress shirt (indicating).

Q. And is that person sitting in front of you? A. Yes, he is.

Q. And do you recognize that person as the person who got in the front seat of your BMW on August 15th, 2015? A. I do.

MR. WALZ: Your Honor, may the record reflect that the witness has identified the defendant, Tony Doolin?

THE COURT: To be clear, dress shirt with a jacket or no jacket?

THE WITNESS: No jacket.

THE COURT: All right. Any objection, counsel?

MR. HOFFEY: No, Your Honor.

Doolin's trial counsel did not object to Brkovic's first-time, in-court identification but cross-examined him.

Q. At any point over the last two-plus years has any law enforcement officer shown you a series of photographs asking you to identify the suspect that pointed the gun to your chest? A. No.

Q. Is that a no? A. That is a no.

Q. You're telling this jury after two-plus years that Mr. Doolin is in fact that man. Is that correct? A. That is correct.

Q. Can you tell this jury why you are so certain of that? A. Because I definitely remember his face.

Q. But you didn't tell the officer that. Did you? A. Tell the officer what?

Q. Any descriptive characteristics about the suspect's face. A. I was in shock the whole time.

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Q. And you were still in shock at 4:30 in the morning when you were talking to the officer? A. Yes, I was.

Q. And because you claim you were in shock, you really couldn't give the officer any descriptive characteristics of the person that put the gun in your chest. A. That's correct.

Defense counsel noted Brkovic had not provided a detailed description the night of the incident.

Q. And one final question, sir. In front of this jury you pointed to Mr. Doolin and said that he's the guy; correct? A. Yes.

Q. Would you agree with me, sir, that that is a one-man lineup? A. What do you mean one-man lineup?

Q. You don't have anyone to compare Mr. Doolin to, do you? A. I don't need anybody to compare it.

Q. Okay. Is that because Mr. Doolin wouldn't be here unless he was, in fact, the person? Is that what you believe? A. No, I believe I remember his face because he had a gun on my chest.

Q. Okay. But you didn't tell the police that back when it happened. Fair enough? A. He didn't show me a picture. I didn't get to see him then.

Q. And you didn't give any specific descriptions, did you? A. All I remember is his face and the gun.

Q. Okay. And you didn't describe his face in any detail, did you? A. I just remember his face visually.

Menkovic also testified at trial but declined to identify Doolin as the man he saw holding a gun on Brkovic.

Q. ... When you saw the guy holding the gun at [Brkovic] in the chest area, were you able

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