Jerry Tolbert, Applicant-Appellant v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 15-1369
Filed April 27, 2016

JERRY TOLBERT,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Paul L. Macek,

Judge.

Jerry Tolbert appeals the denial of his application for postconviction relief.

AFFIRMED.

Leah D. Patton, Walcott, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee State.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

Jerry Tolbert appeals the denial of his application for postconviction relief

(PCR). He raises several claims of ineffective assistance of counsel. Having

determined Tolbert has failed to show his counsel breached any essential duties

that prejudiced him individually or cumulatively, we affirm.

I. Background Facts and Proceedings.

In 2011, a jury found Tolbert guilty of first-degree robbery. The pertinent

facts relating to that conviction are summarized as follows:

On the evening of June 16, 2011, seventy-four-year-old Albert
Stewart patronized a tavern in Davenport, Iowa. . . . Shortly
before midnight, he walked home, and, as he approached his front
door, he was attacked from behind. Stewart fell to the ground and
at some point his glasses were knocked off his face. The attacker
struck Stewart in the back of his head between six and eight times
with an object while demanding money from Stewart. The attacker
took Stewart’s billfold, which had a dollar in it, and a black cloth
coin bag from Stewart’s front pocket containing about two dollars’
worth of change. Stewart’s lighter was also taken. After the
attacker fled the scene, Stewart crawled into his house and called
911.
Officers Janet Martin and Byron Grothus were only a few
blocks away from Stewart's home when the 911 call came in. Due
to misinformation, they were informed Stewart was seen a couple
of blocks away from his house, and the officers headed that way.
Officer Grothus observed a black male walking between the 400
and 500 blocks of Wilkes Avenue, and the officers stopped him,
believing he was the victim; however, the man was identified to be
Jerry Tolbert. Officer Martin observed that Tolbert was sweating
and seemed out of breath, like he had been running. Officer
Grothus also noticed Tolbert was sweating profusely and that
Tolbert had a substance on his leg that appeared to be blood.
Officer Grothus remained with Tolbert, and Officer Martin went to
Stewart’s home to collect evidence.
....
. . . Officer Grothus patted Tolbert down and then placed him
in the squad car. Tolbert told Officer Grothus he was coming from
a friend’s house in the area of Seventh and Wilkes Street, and he
was going to a nearby convenience store. Officer Grothus found
change in the pocket of Tolbert’s shorts in the amount of $1.55.
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Additionally, he observed that Tolbert’s shoes, legs, and shirt had
what he believed to be blood on them.
....
Officers searched a two-block radius around Stewart’s
home. A single dollar bill was found one block north of where
Officer Grothus first made contact with Tolbert, and Tolbert had
been walking north to south when Officer Grothus saw him.
Officers were unable to find the object with which Stewart was
struck, as well as Stewart’s black cloth coin bag and wallet. The
officers did locate Stewart’s glasses, keys, and lighter.
The spot on the front of Tolbert’s shirt was tested and
matched Stewart’s DNA. A stain on Tolbert’s right shoe was
confirmed to be human blood, but no DNA profile was generated.
Additionally, human blood was found on Tolbert’s wallet and keys.
No swabs were taken of the suspected blood on Tolbert’s legs.

See State v. Tolbert, No. 12-0046, 2012 WL 5605277, at *1-2 (Iowa Ct. App.

Nov. 15, 2012). This court affirmed Tolbert’s conviction on direct appeal. See id.

at *1. Tolbert now appeals the denial of the PCR application he filed in 2014.

II. Ineffective Assistance of Trial Counsel.

We review ineffective-assistance-of-counsel claims de novo. See Everett

v. State, 789 N.W.2d 151, 158 (Iowa 2010). To succeed, Tolbert must show his

trial counsel failed to perform an essential duty and that he was prejudiced as a

result. See id. In measuring counsel’s performance, we use the standard of a

reasonably competent practitioner. See id. To establish prejudice, Tolbert must

show a reasonable probability that the outcome would have been different if his

trial counsel had acted competently. See id.

A. Failure to investigate.

Tolbert makes two claims concerning his trial counsel’s deficient

investigation. First, he claims counsel should have investigated his medical

conditions because they would have provided an alternative explanation as to

why he was sweating profusely on the night of the robbery rather than leading
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the jury to speculate he was running from the scene of the crime. Second,

Tolbert alleges his trial counsel failed to review the laboratory notes to see if

“there was something in there that might be helpful to the client that was not

reflected in the actual [Department of Criminal Investigation (DCI) DNA] report,”

which counsel testified was his typical routine. As a result, Tolbert claims

counsel could not have made an informed decision about whether to call the DCI

analyst as a witness.

Even assuming counsel breached an essential duty, Tolbert failed to

introduce any evidence at the PCR hearing to confirm what evidence would have

been discovered had proper investigation been made and how it would have

changed the outcome of trial. Any claim of prejudice is speculative and

insufficient to meet Tolbert’s burden of proving by a preponderance of the

evidence that the result of trial would have been different had counsel performed

effectively. See Strickland v. Washington, 466 U.S. 668, 693 (1984) (“It is not

enough for the [claimant] to show that the errors had some conceivable effect on

the outcome of the proceeding.”); Dunbar v. State, 515 N.W.2d 12, 15 (Iowa

1994) (holding applicant’s claims that counsel was ineffective in failing to

investigate were too general where the applicant did not propose what an

investigation would have revealed or how anything discovered would have

affected the result below); State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987)

(holding defendant must make “some minimal showing from which this court can

assess the potential viability of [the] claim”). Accordingly, Tolbert’s claims

regarding counsel’s failure to investigate his medical records and the author’s

notes of the laboratory report must fail.
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B. Waiver of speedy trial.

Tolbert next claims his trial counsel was ineffective in failing to apprise him

of the consequences of waiving his right to a speedy trial and in advising him to

waive that right. His argument is premised on the fact that the DNA results

linking the blood found on his shirt to the victim only became available after the

speedy trial deadline had expired. Now, with the benefit of hindsight, Tolbert

complains he was not adequately advised of his right to a speedy trial and the

consequences of waiving it as well as the benefits of not waiving it.

Tolbert testified he was informed that his trial counsel “needed more time

to prepare my case” and he agreed to sign the waiver of his right to a speedy trial

in order to allow his counsel additional time to prepare. The decision to waive

the right to a speedy trial in order to allow for more time to investigate and

prepare for trial is a strategic decision this court will not second guess. See State

v. McPhillips, 580 N.W.2d 748, 756 (Iowa 1998). While hindsight indicates this

judgment call was wrong, it is “a far cry from qualifying as ineffective

representation.” Cuevas v. State, 415 N.W.2d 630, 633 (Iowa 1987).

Accordingly, Tolbert has not met his burden of proving counsel was ineffective in

advising him regarding the waiver of his right to a speedy trial.

C. Misstatements of fact.

Tolbert also claims counsel rendered ineffective assistance when he failed

to object to misstatements of fact in the prosecutor’s opening and closing

statements. Specifically, he complains the prosecutor misrepresented the

evidence concerning the money found on his person and the money taken from
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Stewart. Tolbert complains of the following statement made by the prosecutor

during opening argument:

The officer noticed some things when they stopped Mr. Tolbert.
They noticed that he had what appeared to be blood on him. They
also noticed that [ly]ing near Mr. Tolbert was a one dollar bill. They
also noticed that Mr. Tolbert had some change on him, nickels,
dimes, and quarters. This matched what was taken from Mr.
Stewart. They say he had a dollar bill in his wallet and change,
nickels, dimes, and quarters.

He also complains of the following statement made by the prosecutor during

closing argument:

What was taken from [Stewart]? One one-dollar bill was taken.
And what do we find near the defendant, the direction he was
coming from, one one-dollar bill. And the defendant tells the
officers that, hey, I did have a dollar bill. So [Stewart] is assaulted.
Someone takes a one-dollar bill, and lo and behold, who do we find
in possession of a single dollar bill? The defendant.
Not only that, what else did [Stewart] say that he was
missing? He was missing change, quarters, nickels, dimes. And
guess who has quarters, nickels, and dimes on him? The
defendant. Not any other money. He doesn’t have another one-
dollar bill or a ten-dollar bill or two more one-dollar bills. The only
money the defendant has on him is what [Stewart] is missing, that
was stolen from [Stewart].

Tolbert argues these statements misstate the record, which shows two dollars in

nickels, dimes, and quarters were taken from Stewart, while only one dollar and

fifty-five cents in nickels, dimes, and quarters were found on Tolbert.

Tolbert’s claim counsel was ineffective in failing to object to these

statements fails. Tolbert mischaracterizes the prosecutor’s statements. Stewart

testified Tolbert took “about two dollars’ worth of change and a dollar bill.”

(emphasis added). As we read the prosecutor’s statements, it is apparent he

was emphasizing that the types of currency, not the amount, Stewart had on his

person—a one dollar bill and nickels, dimes, and quarters—were the same as
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those found on or near Tolbert at the time of his arrest. Because the prosecutor

did not misstate the record in opening and closing argument, counsel did not

breach an essential duty in failing to object to these statements. See Millam v.

State, 745 N.W.2d 719, 721-22 (Iowa 2008) (stating counsel has no duty to raise

a meritless issue).

D. Cumulative prejudice.

Finally, Tolbert argues he was prejudiced by the cumulative effect of trial

counsel’s errors. Where multiple individual claims of ineffective assistance of

counsel are raised, we must determine the cumulative prejudice of those

individual claims in assessing whether the claimant was prejudiced. See State v.

Clay, 824 N.W.2d 488, 501 (Iowa 2012). However, if the claimant fails to

establish counsel breached a duty with regard to any of those individual claims,

we do not consider that claim in assessing cumulative prejudice. Id.

Tolbert’s claim of cumulative prejudice fails. We have determined Tolbert

failed to show counsel breached a duty with regard to Tolbert’s waiver of his

speedy trial rights or counsel’s failure to object during opening and closing

statements. The remaining claims, which relate to Tolbert’s failure to investigate,

are too speculative to show prejudice. The cumulative prejudicial effect of

counsel’s failure to investigate has likewise not been shown.

III. Conclusion.

Tolbert has failed to meet his burden of proving ineffective assistance of

trial counsel. Accordingly, we affirm the order denying his PCR application.

AFFIRMED.