IN THE COURT OF APPEALS OF IOWA
No. 23-0533 Filed April 10, 2024
CHARLES SILA CURRY, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Boone County, Amy M. Moore,
Judge.
An applicant appeals the denial of postconviction relief. AFFIRMED.
Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Ankeny, for appellant.
Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee State.
Considered by Greer, P.J., and Ahlers and Buller, JJ. 2
BULLER, Judge.
Charles Sila Curry appeals the denial of his application for postconviction
relief. He claims his trial attorney was ineffective for not moving to exclude
eyewitness identifications and for having Curry stand for in-court identifications
instead of sit. Because Curry has not proven counsel breached an essential duty
or the reasonable probability of acquittal on his claims, we affirm.
I. Background Facts and Proceedings
On direct appeal, Curry challenged the sufficiency of the evidence. State v.
Curry, No. 19-1524, 2020 WL 4207402, at *1–2 (Iowa Ct. App. Jul. 22, 2020). We
affirmed, offering this summary of the facts and trial proceedings:
Charles Curry shot Jordan Schroeder. The bullet grazed Schroeder’s right thigh and went “clean through” his left leg. The bullet mushroomed as it tore through the flesh. When responding police officer Seth McCrea arrived on the scene he observed Schroeder was bleeding from both legs. Exposed fat and blood was coming from the wound on Schroeder’s right thigh. Schroeder’s left leg was bleeding at “a rather rapid rate.” Officer McCrea testified there was a lot of blood, and he was concerned Schroeder’s femoral artery had been damaged and Schroeder might bleed out. Officer McCrea applied tourniquets to both of Schroeder’s legs. Medical personnel transported Schroeder to Boone County Hospital. There, it was determined that Schroeder needed more advanced care than was available in Boone. Schroeder was transported to a Des Moines hospital by a Life Flight helicopter. Schroeder received stitches in his right leg to close the two- to three-inch long, half-inch deep wound. He had to treat the wounds in his left leg with ointment and gauze to allow it to heal “from the inside.” At trial he testified about the scars that remained; that as a result of being shot, his sleep was disrupted by nightmares; and that he had been isolating himself by staying indoors and avoiding people when in public. The State charged Curry with attempted murder and willful injury resulting in serious injury. A jury found Curry guilty of assault causing serious injury and of willful injury resulting in serious injury.
Id. at *1. 3
As pertinent to this appeal, Curry was identified as the shooter, directly or
indirectly, by his accomplice Nathaniel Gilmore and three other eyewitnesses:
• Schroeder testified Curry shot him; • Shelby Duehring, a Boone resident who lived near the park, identified Curry as the person she saw walking down the street with a white car following him; and • Brittany Curtzwiler, who also lived nearby, identified Curry as the man she saw riding a bike while she was mowing her lawn.
These eyewitnesses used slightly different language to describe Curry’s
race. Schroeder thought Curry looked “Native American,” even after seeing him
at trial. Duehring described Curry as “black.” And Curtzwiler described him as
“African American.” These eyewitnesses were cross-examined by Curry’s trial
counsel, who emphasized in closing argument that the identifications were
unreliable.
Curry applied for postconviction relief with claims relating to the eyewitness
identifications. Evidence before the district court included two depositions of trial
counsel.1 The court denied postconviction relief, and Curry appeals.
II. Outside-the-Record Information
After this appeal was transferred to our court, we ordered the parties to file
statements addressing a Des Moines Register article included in Curry’s appendix
and cited for a factual proposition in Curry’s brief. We requested the parties state
1 One of these depositions was filed as a four-panes-per-page condensed transcript. We recognize there were potential cost-savings with condensed transcripts in the paper era, but there is no cost to e-filing full-page transcripts, and condensed transcripts are prohibited under our rules. See Iowa R. App. P. 6.803(2)(f) (renumbered to 6.803(2)(e) after April 1, 2024). This requirement exists because condensed transcripts make our review more difficult and can hinder our mandate to dispose justly of a high volume of cases. See Iowa Ct. R. 21.11. 4
their positions on whether the article was part of the record on appeal as defined
in Iowa Rule of Appellate Procedure 6.801 or otherwise appropriately considered
by our court. Curry, through counsel, admitted the article was “not part of the
record on appeal” but urged it was nonetheless permissible for us to consider as
an authority, presumably under Rule 6.904(2)(d)(3) (renumbered to 6.904(2)(c)(3)
as of Apr. 1, 2024). The State responded that the article was outside the record
and the rules do not permit outside-the-record authorities to prove factual
propositions.
Having considered the parties’ statements, we find the Des Moines Register
article is not part of the record on appeal and we do not consider it. See In re
Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App. 1994) (“We are limited to
the record before us and any matters outside the record on appeal are
disregarded.”). We condemn attempts to circumvent the rules of appellate
procedure and improperly develop facts that must be properly litigated through the
adversarial process. And we recognize that, as of April 1, 2024, an appendix will
no longer be filed with appellate briefs. We trust the new requirement to cite
directly to the district court record for material statements of fact will help prevent
the use of facts outside the record. See Iowa R. App. P. 6.904(4) (effective
Apr. 1, 2024). We remind Curry’s appellate counsel to not inject outside-the-
record factual material into an appellate brief in the future.
III. Standard of Review
We review ineffective-assistance claims de novo. Sothman v. State, 967
N.W.2d 512, 522 (Iowa 2021). 5
IV. Discussion
Curry alleges trial counsel was ineffective in two ways: first, in not seeking
to exclude the eyewitness identifications; and second, in asking Curry to stand up
when identified in court.2
“The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). A postconviction applicant claiming
ineffective assistance must prove both (1) counsel’s performance fell below
reasonable standards and (2) if counsel had acted differently, there would be a
reasonable probability of a different outcome at trial. Id. at 687, 694; see
Sothman, 967 N.W.2d 522–23. “The required examination should proceed while
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IN THE COURT OF APPEALS OF IOWA
No. 23-0533 Filed April 10, 2024
CHARLES SILA CURRY, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Boone County, Amy M. Moore,
Judge.
An applicant appeals the denial of postconviction relief. AFFIRMED.
Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Ankeny, for appellant.
Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee State.
Considered by Greer, P.J., and Ahlers and Buller, JJ. 2
BULLER, Judge.
Charles Sila Curry appeals the denial of his application for postconviction
relief. He claims his trial attorney was ineffective for not moving to exclude
eyewitness identifications and for having Curry stand for in-court identifications
instead of sit. Because Curry has not proven counsel breached an essential duty
or the reasonable probability of acquittal on his claims, we affirm.
I. Background Facts and Proceedings
On direct appeal, Curry challenged the sufficiency of the evidence. State v.
Curry, No. 19-1524, 2020 WL 4207402, at *1–2 (Iowa Ct. App. Jul. 22, 2020). We
affirmed, offering this summary of the facts and trial proceedings:
Charles Curry shot Jordan Schroeder. The bullet grazed Schroeder’s right thigh and went “clean through” his left leg. The bullet mushroomed as it tore through the flesh. When responding police officer Seth McCrea arrived on the scene he observed Schroeder was bleeding from both legs. Exposed fat and blood was coming from the wound on Schroeder’s right thigh. Schroeder’s left leg was bleeding at “a rather rapid rate.” Officer McCrea testified there was a lot of blood, and he was concerned Schroeder’s femoral artery had been damaged and Schroeder might bleed out. Officer McCrea applied tourniquets to both of Schroeder’s legs. Medical personnel transported Schroeder to Boone County Hospital. There, it was determined that Schroeder needed more advanced care than was available in Boone. Schroeder was transported to a Des Moines hospital by a Life Flight helicopter. Schroeder received stitches in his right leg to close the two- to three-inch long, half-inch deep wound. He had to treat the wounds in his left leg with ointment and gauze to allow it to heal “from the inside.” At trial he testified about the scars that remained; that as a result of being shot, his sleep was disrupted by nightmares; and that he had been isolating himself by staying indoors and avoiding people when in public. The State charged Curry with attempted murder and willful injury resulting in serious injury. A jury found Curry guilty of assault causing serious injury and of willful injury resulting in serious injury.
Id. at *1. 3
As pertinent to this appeal, Curry was identified as the shooter, directly or
indirectly, by his accomplice Nathaniel Gilmore and three other eyewitnesses:
• Schroeder testified Curry shot him; • Shelby Duehring, a Boone resident who lived near the park, identified Curry as the person she saw walking down the street with a white car following him; and • Brittany Curtzwiler, who also lived nearby, identified Curry as the man she saw riding a bike while she was mowing her lawn.
These eyewitnesses used slightly different language to describe Curry’s
race. Schroeder thought Curry looked “Native American,” even after seeing him
at trial. Duehring described Curry as “black.” And Curtzwiler described him as
“African American.” These eyewitnesses were cross-examined by Curry’s trial
counsel, who emphasized in closing argument that the identifications were
unreliable.
Curry applied for postconviction relief with claims relating to the eyewitness
identifications. Evidence before the district court included two depositions of trial
counsel.1 The court denied postconviction relief, and Curry appeals.
II. Outside-the-Record Information
After this appeal was transferred to our court, we ordered the parties to file
statements addressing a Des Moines Register article included in Curry’s appendix
and cited for a factual proposition in Curry’s brief. We requested the parties state
1 One of these depositions was filed as a four-panes-per-page condensed transcript. We recognize there were potential cost-savings with condensed transcripts in the paper era, but there is no cost to e-filing full-page transcripts, and condensed transcripts are prohibited under our rules. See Iowa R. App. P. 6.803(2)(f) (renumbered to 6.803(2)(e) after April 1, 2024). This requirement exists because condensed transcripts make our review more difficult and can hinder our mandate to dispose justly of a high volume of cases. See Iowa Ct. R. 21.11. 4
their positions on whether the article was part of the record on appeal as defined
in Iowa Rule of Appellate Procedure 6.801 or otherwise appropriately considered
by our court. Curry, through counsel, admitted the article was “not part of the
record on appeal” but urged it was nonetheless permissible for us to consider as
an authority, presumably under Rule 6.904(2)(d)(3) (renumbered to 6.904(2)(c)(3)
as of Apr. 1, 2024). The State responded that the article was outside the record
and the rules do not permit outside-the-record authorities to prove factual
propositions.
Having considered the parties’ statements, we find the Des Moines Register
article is not part of the record on appeal and we do not consider it. See In re
Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App. 1994) (“We are limited to
the record before us and any matters outside the record on appeal are
disregarded.”). We condemn attempts to circumvent the rules of appellate
procedure and improperly develop facts that must be properly litigated through the
adversarial process. And we recognize that, as of April 1, 2024, an appendix will
no longer be filed with appellate briefs. We trust the new requirement to cite
directly to the district court record for material statements of fact will help prevent
the use of facts outside the record. See Iowa R. App. P. 6.904(4) (effective
Apr. 1, 2024). We remind Curry’s appellate counsel to not inject outside-the-
record factual material into an appellate brief in the future.
III. Standard of Review
We review ineffective-assistance claims de novo. Sothman v. State, 967
N.W.2d 512, 522 (Iowa 2021). 5
IV. Discussion
Curry alleges trial counsel was ineffective in two ways: first, in not seeking
to exclude the eyewitness identifications; and second, in asking Curry to stand up
when identified in court.2
“The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). A postconviction applicant claiming
ineffective assistance must prove both (1) counsel’s performance fell below
reasonable standards and (2) if counsel had acted differently, there would be a
reasonable probability of a different outcome at trial. Id. at 687, 694; see
Sothman, 967 N.W.2d 522–23. “The required examination should proceed while
resisting, in the light of hindsight, the temptation to Monday morning quarterback
the lawyer in the arena. Nor should the inquiry degenerate into a postmortem,
microscopic dissection of each desperate effort of counsel to save a terminal
case.” Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980).
Curry first contends trial counsel was ineffective for not moving to exclude
the eyewitness identifications. He complains generally about the possible
2 The argument section of Curry’s appellate brief includes one reference to trial
counsel not calling an expert witness. But this claim is not meaningfully developed or discussed in the context of a breach-and-prejudice analysis, and we find it waived. See Iowa R. App. P. 6.903(2)(g)(3) (renumbered to 6.903(2)(a)(8)(3) as of Apr. 1, 2024). Even if the claim wasn’t waived, we would reject it on the merits, as Curry has not proven what a hypothetical expert would have said. See, e.g., Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981) (“Ordinarily complaints about failure to call witnesses should be accompanied by a showing their testimony would have been beneficial.”). 6
difficulties of cross-racial identification and makes broad assertions based on
social science about the alleged general unreliability of eyewitnesses. But Curry
cites no controlling authority, and we are aware of none, that would have
authorized the district court to exclude the eyewitnesses. In Iowa, “the jury, not
the judge, traditionally determines the reliability of evidence.” State v. Doolin, 942
N.W.2d 500, 509–11 (Iowa 2020) (citation omitted). And we permit in-court
identifications that have an independent origin, like the ones made here. See id.
at 508–16. To some extent, Curry seems to advocate for the legal position offered
by the dissent in Doolin. But that dissent is not the law. The Doolin majority opinion
controls, and “[w]e are not at liberty to overrule controlling supreme court
precedent.” State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014). Having
identified no precedent that can achieve what Curry claims counsel should have
done, we conclude he failed to demonstrate either prong of his Strickland claim.
While we are skeptical this argument is adequately briefed, Curry may
maintain on appeal that the identifications were so suggestive they could be
excluded under federal case law for violating due process. See Neil v.
Biggers, 409 U.S. 188, 198–200 (1972) (listing relevant factors). To the extent
Curry advances this claim, we agree with the postconviction court that any motion
to exclude would have been meritless:
In applying these [Biggers] factors to the witnesses’ identifications, the court finds that any motion to exclude the identifications at trial would have been meritless. All three witnesses had ample opportunity to observe Mr. Curry. All three witnesses testified as to their reasons to be attentive. All three witnesses gave consistent descriptions of the suspect. The witnesses were certain in their identification of Mr. Curry during their testimony. While months had passed between the shooting and the trial, overall, the five factors weigh in favor of a finding of reliability. 7
This was also the assessment offered by trial counsel, who observed any problems
with the identifications did not rise “to the level of a constitutional violation” but
instead were “fact questions for the jury to decide.” We conclude Curry proved
neither prong of Strickland for a Biggers claim, to the extent he makes one.
Last, Curry contends counsel was ineffective for having Curry stand at trial
during witness identifications. But trial counsel gave a rational explanation for this
strategic decision when asked about it: “We have nothing to hide. We’re going to
show it wasn’t me. It’s an old trial strategy.” Trial counsel further explained he
used this strategy in “many” cases because “we know [the eyewitnesses] are going
to do it anyway.” He also clarified that the tactical decision was considered and
based on pretrial developments: “This isn’t random. We had discovery. We knew
what these folks were going to say. None of them were going to say . . . that this
wasn’t the guy. So we have nothing to hide.” We do not Monday-morning-
quarterback defense counsel’s reasonable strategic choices. Hinkle, 290 N.W.2d
at 30. And there is no reasonable probability Curry would have been acquitted if
he had remained seated instead of standing. This claim, like the others, fails.
AFFIRMED.