No. 3-131 / 02-0670Court of Appeals of Iowa.
Filed March 26, 2003
Appeal from the Iowa District Court for Black Hawk County, L.D. Lybbert, Judge.
The defendant appeals his conviction and sentence for second-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Thomas Ferguson, County Attorney, and Linda Myers and Sue Swan, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
EISENHAUER, J.
Richard Abrahamson appeals his conviction and sentence for second-degree robbery in violation of Iowa Code section 711.3 (2001). Abrahamson contends trial counsel was ineffective in failing to timely file a notice of a diminished responsibility defense based on his alleged inability to form the specific intent to commit the crime. He also claims counsel was ineffective for failing to timely request an evaluation to determine his mental capacity at the time of the offense. We affirm.
I. Background Facts and Proceedings. On April 28, 2001, Farm and Fleet store manager Rod Burkhead observed Abrahamson lurking suspiciously in the store. Burkhead saw Abrahamson take stereo equipment and exit to a display area outside the store. Abrahamson hid behind some merchandise, and then ran back inside the store carrying only his backpack. Burkhead failed twice to stop him. He swung his backpack at Burkhead hitting him in the shoulder. He exited the store through the front doors and got in a black Ford Escort. Burkhead wrote down the license plate number as the car sped away.
Officer Keith Konigsmark investigated the incident and arrived at Abrahamson’s residence, where a black Escort was observed in the driveway. Abrahamson answered the door, and after a few minutes questioning, admitted he had just been to Farm and Fleet. Abrahamson was then taken back to the store where Burkhead identified him. Abrahamson provided a full confession to the police.
Abrahamson was arraigned on June 7, 2001, and trial counsel was appointed shortly thereafter. On July 20, 2001, trial counsel requested a psychiatric examination to determine whether Abrahamson was competent to stand trial. Dr. J.S. Khokar conducted an evaluation and concluded Abrahamson was not competent to stand trial. However, the State’s medical expert, Dr. Michael Taylor, concluded Abrahamson was competent. Following a competency hearing, the district court ruled Abrahamson was competent to stand trial. Trial counsel then requested an examination be conducted to determine whether Abrahamson had the ability to form the requisite intent to commit a robbery at the time of the incident. The district court denied the request, ruling it was untimely. At trial, the district court denied Abrahamson’s request for a jury instruction on diminished capacity. The jury found Abrahamson guilty as charged, and he was sentenced to an indeterminate term of imprisonment not to exceed ten years and a $1000 fine. Abrahamson has appealed.
II. Scope of Review. Because Abrahamson makes a constitutional claim of ineffective assistance of counsel, our scope of review is de novo Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). While we generally preserve claims of ineffective assistance of counsel for postconviction relief in order to afford counsel an opportunity to explain his actions, where the record is clear, we will resolve such claims on direct appeal State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). Here the record is clear.
III. Ineffective Assistance. Abrahamson contends trial counsel breached an essential duty by failing to raise a diminished responsibility defense and timely ask for an evaluation once it became clear that his competency to stand trial was questioned. We find no merit to these claims.
The standards required for a defendant to establish a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1994). We conclude that even if trial counsel was required to file a notice of intent to rely on a diminished capacity defense, Abrahamson can show no prejudice.
Abrahamson’s confession to the police closely parallels the testimony of Burkhead concerning how the events unfolded. Abrahamson told police he went into Farm and Fleet to steal an amplifier, that when he attempted to leave the store he hid behind merchandise, that Burkhead confronted him, and after a brief struggle in which he hit Burkhead with his backpack, he fled in the black Escort. Abrahamson told his brother, Jeffrey, when he got into the Escort that he had tried to steal something. Although Abrahamson initially denied any involvement when police came to his home, he ultimately admitted his actions. We conclude this evidence supports a finding that at the time of the robbery Abrahamson had the ability to form the requisite intent to commit the robbery. We also conclude that even if a diminished capacity defense had been timely submitted to the jury, the outcome of the trial would not have been different. We therefore affirm Abrahamson’s conviction and sentence.
AFFIRMED.