STATE v. JOHNSON

PER CURIAM.

Defendant appeals from a conviction by jury for robbery in the first degree, in violation of Iowa Code section 711.2 (2001), and conspiracy to commit a forcible felony, in violation of section 706.1(1)(a). Upon consideration of all of defendant's assignments of error we now affirm the robbery conviction and reverse the conspiracy conviction. The State agrees with the defendant and we find that defendant may not be convicted of both crimes due to the provision of Iowa Code section 706.4. Our supreme court has held that this section creates a merger of the conspiracy and the substantive offense where defendant has been found guilty of both offenses. State v. Waterbury, 307 N.W.2d 45, 52 (Iowa 1981).

Originally defendant was charged with four crimes. He entered a plea agreement with the State by which the robbery in the first degree charge was eliminated in consideration of defendant's testifying truthfully in a murder case involving Laviel Harper. Defendant later claimed he knew nothing about the Harper case. When this happened the State filed a motion to withdraw the plea agreement; the court granted the motion and defendant stood trial for robbery in the first degree.

Defendant now claims the court erred in granting the State's motion. Our review is on whether the court abused its discretion. State v. Foy, 574 N.W.2d 337, 339 (Iowa 1998).

At the hearing on the motion, State's Exhibit 1 showed that defendant would testify specifically about giving Harper a gun, hearing gunshots later, and phone calls from Harper. When the State took defendant's deposition later, he denied all of this and said he knew nothing of Harper's activities the day of the murder. The district court aptly observed that defendant did a complete about-face and breached his agreement with the State. The court was right; there is no abuse of discretion.

Defendant moved for acquittal at the close of the State's case. We review to see if the evidence is sufficient to support the robbery conviction. State v. McPhillips, 580 N.W.2d 748, 753 (Iowa 1998).

The facts of the case are that Michelle Carter arrived home, parked her car, and then saw two young men standing by the side of her car. Each man had his face covered, aimed their guns at her, and told her to give them her car keys and purse. Carter complied and held up her hands. The men told her to lay down on the ground. The men got into her car and continued to point their guns at her as they drove away.

Davenport Police Corporal Andrew Waggoner heard a police dispatch reporting the stolen car, saw the car drive by him, and pursued it. He followed the car until it hit a utility pole and came to a stop. Both the passenger, Jonathan Lindsey, and defendant exited the car and ran. Officer Waggoner chased the defendant. Another officer, Robert Bytnar, arrived on the scene, ran after defendant, and tackled him to the ground. Defendant complained of chest pains, was treated at the hospital, released, and transported to the police station. The other suspect, Lindsey, was apprehended a few houses from the crash scene.

At the police station defendant was informed of his Miranda rights and waived them. Defendant then admitted his involvement in the robbery. He stated he intended to take the car to Chicago to sell the tire rims. He admitted that he and Lindsey were carrying a rifle and shotgun and pointed the gun at Carter. The confession was admitted at trial.

Defendant argues insufficiency of evidence in that the victim could not identify the carjacker. The officers did not see the crime occur nor were there any fingerprints in the car. However, defendant's confession was corroborated by evidence found in Carter's car and on the defendant. Police found a twelve-gauge shotgun in the front seat of Carter's car and a rifle and a shotgun in the back seat. Defendant had three shotgun shells in his pocket when he was apprehended. Although Carter could not identify defendant she said the men were dressed in black, wearing black bandanas. The police found a black bandana, a black glove, and a black skull cap along the route that defendant was chased. Also, Officer Waggoner testified that he never lost sight of the person he was chasing.

Defendant maintained his confession was false and was made only to protect his younger brother Lindsey. This claim, however, rings false when compared to his statements to police about his brother's participation in the robbery. Defendant also offered a trumped up version of why he was in the area where he was caught. He claimed he was visiting someone, yet he did not know the last name of the person he supposedly visited and did not tell his lawyer about her. The evidence to convict defendant was more than sufficient. There is no error on this assignment.

Defendant next claims his motion to suppress his statements to the police should have been granted. We review this issue de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). He claims he did not knowingly and voluntarily waive his Miranda rights because he was intoxicated at the time. Specifically he says he had taken one pill of the drug Ecstasy, smoked five blunts of marijuana, and took the drug Motrin at the hospital. He said he did not sleep the night before he was interviewed by Detective Houser, last ate at 4:00 or 5:00 p.m. the night of the interview, and did not remember waiving his Miranda rights.

Detective Houser, the interviewer, testified the defendant did not appear tired, intoxicated, or physically injured when she interviewed him. She had no difficulty communicating with him. A videotape of the interview by Detective Houser supports her testimony of the events. The district court correctly concluded that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. There was no error committed in admitting the confession. See Fryer v. State, 325 N.W.2d 400, 409 (Iowa 1982); State v. Jackson, 387 N.W.2d 623, 627 (Iowa Ct. App. 1986).

Defendant also claims his counsel gave ineffective assistance. We review this claim de novo. State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998). This claim is that counsel failed to utilize parts of the videotaped police interview that may have been exculpatory. Defendant does not state how counsel's performance was inadequate or identify how the outcome would have been changed. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Because of this failure to identify this issue with specificity on direct appeal this claim of ineffective assistance of counsel is without merit, is denied, and is not preserved for postconviction relief.

Defendant seeks to preserve this issue by invoking the provision of Iowa Code section 814.7, effective July 1, 2004, which changed the law. However, this section does not apply to defendant's case because defendant's judgment and sentence was entered on January 9, 2004, before section 814.7 became effective. Wal-Mart Stores, Inc. v. Caselman, 657 N.W. 2d 493, 498 (Iowa 2003). Defendant's conviction on robbery in the first degree is affirmed; and the conviction on conspiracy is reversed and remanded for entry of order dismissing the conviction due to merger.