IN THE COURT OF APPEALS OF IOWA
No. 15-0309 Filed April 27, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
JOSEPH ROBERT JOYCE JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
Defendant appeals his convictions for first-degree burglary and domestic
abuse assault by strangulation causing bodily injury. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
GOODUE, Senior Judge.
Joseph Robert Joyce Jr. was convicted by jury trial of burglary in the first
degree and domestic abuse assault by strangulation causing bodily injury.
I. Factual Background
On March 4, 2013, an altercation between Joyce and Kiya Ferguson took
place in the residence Ferguson was occupying. Both testified they had been
residing together and believed that Ferguson was pregnant with Joyce’s child.
They had separated in December as the result of a no-contact order. When
Joyce arrived at Ferguson’s apartment is a matter of dispute. Ferguson testified
that she had arrived at the apartment a little after noon on the date of the
incident, and Joyce had knocked at the door soon thereafter and basically forced
his way in. Joyce testified he had stayed the night before and had remained
there until Ferguson came home the next afternoon.
As soon as they were both present at the apartment, an argument took
place. She accused him of cheating on her, and he accused her of drinking too
much while pregnant with his child. She testified she was thrown to the floor and
choked to the point of unconsciousness on two different occasions during the
altercation. At one point, she attempted to leave to get help, but he pursued her
and dragged her back into the apartment. At another point, he grabbed her and
was attempting to force her into her bedroom, and she tripped. She put her hand
out to protect herself and went through the window, causing a laceration on the
palm of her hand. She attempted to call 911, but Joyce took the cell phone away
and threw it where Ferguson was unable to reach it. Joyce finally left the
apartment, and Ferguson retrieved her cell phone, called the police, and followed 3
him so she could tell officers where he had gone. At trial, Ferguson gave a
detailed account of the physical altercation.
Jennifer Brown, who lived in the same apartment building as Ferguson,
heard noises in Ferguson’s apartment that sounded like wrestling, things being
thrown around, and yelling and screaming. She could hear a man’s voice and a
woman’s voice pleading “stop.” She had called 911 prior to the call that
Ferguson was able to complete.
Joyce testified that he had been invited to the apartment the day before
and spent the afternoon with Ferguson. Ferguson left in the evening with two of
her girlfriends to drink and play cards. She did not come back until 1:00 p.m. the
following day, when an argument developed. He decided to leave the residence,
but Ferguson charged him and took a swing at him. He ducked, and she struck
the window, breaking it and cutting her hand. Joyce took her to the bedroom to
cleanse and dress the wound. She was crying at the time and yelled at him to
stop. Joyce asserts that it was those cries and pleadings Brown heard.
The police and paramedics arrived. Ferguson was taken to the hospital
and examined by a doctor. The doctor observed contusions on multiple sites, an
injury to the back of her head, and a hand abrasion, and opined that she was a
victim of physical assault. Ferguson was confused and disoriented. She had a
blood alcohol level of .087 when tested three and one-half hours after the
incident, but the examining physician determined that the disorientation was a
result of her head injury and the resulting concussion.
A trial information was filed charging Joyce with domestic abuse assault
by strangulation causing bodily injury and first-degree burglary with intentional or 4
reckless infliction of bodily injury. Joyce was convicted of both charges. Joyce’s
counsel moved for a judgment of acquittal at the close of the State’s evidence
and made a motion for new trial, but both motions were overruled.
Joyce’s appeal is entirely based on a claim of ineffective assistance of
counsel. The claim is predicated on counsel’s failure in the following respects:
(a) failing to raise the lack of the “family or household members residing together”
element as required to support a domestic-abuse-assault charge in either the
motion for judgment of acquittal or motion for new trial, (b) failing to request an
additional instruction defining “family or household member,” (c) failing to object
to the marshalling instruction on the burglary charge that did not contain a
justification or self-defense element, (d) recklessly eliciting testimony
characterizing Joyce as a drug dealer, and (e) failing to object to the prosecutor’s
comments in his rebuttal argument on Joyce’s silence after submitting to the
authorities.
Joyce also requested all the claims be added together and accumulated
when determining whether or not the prejudice prong of his claim of ineffective
assistance of counsel had been met.
II. Preservation of Error
Joyce’s appeal is based on an ineffective-assistance-of-counsel claim.
Ineffective assistance of counsel is an exception to the general preservation-of-
error requirement. State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). 5
III. Scope of Review
Claims of ineffective assistance of counsel raise constitutional issues and
as such, the review is de novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa
2012).
IV. Discussion
To prevail on a claim of ineffective assistance of counsel the claimant
must prove by a preponderance of the evidence that (1) counsel failed to perform
an essential duty and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134,
142 (Iowa 2001). A claim of ineffective assistance must overcome the
presumption that counsel is competent. Taylor v. State, 352 N.W.2d 683, 685
(Iowa 1984). An accused is not entitled to perfect representation but only that
level of representation that is within the normal range of competency. State v.
Artzer, 609 N.W.2d 526, 531 (Iowa 2000). Choices of strategy after proper
investigation are virtually unchallengeable. Ledezma, 626 N.W.2d at 143. For
relief to be granted, there must be a determination that, but for ineffective
assistance, there is a reasonable probability the result would have been different.
Id. at 145.
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IN THE COURT OF APPEALS OF IOWA
No. 15-0309 Filed April 27, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
JOSEPH ROBERT JOYCE JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
Defendant appeals his convictions for first-degree burglary and domestic
abuse assault by strangulation causing bodily injury. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
GOODUE, Senior Judge.
Joseph Robert Joyce Jr. was convicted by jury trial of burglary in the first
degree and domestic abuse assault by strangulation causing bodily injury.
I. Factual Background
On March 4, 2013, an altercation between Joyce and Kiya Ferguson took
place in the residence Ferguson was occupying. Both testified they had been
residing together and believed that Ferguson was pregnant with Joyce’s child.
They had separated in December as the result of a no-contact order. When
Joyce arrived at Ferguson’s apartment is a matter of dispute. Ferguson testified
that she had arrived at the apartment a little after noon on the date of the
incident, and Joyce had knocked at the door soon thereafter and basically forced
his way in. Joyce testified he had stayed the night before and had remained
there until Ferguson came home the next afternoon.
As soon as they were both present at the apartment, an argument took
place. She accused him of cheating on her, and he accused her of drinking too
much while pregnant with his child. She testified she was thrown to the floor and
choked to the point of unconsciousness on two different occasions during the
altercation. At one point, she attempted to leave to get help, but he pursued her
and dragged her back into the apartment. At another point, he grabbed her and
was attempting to force her into her bedroom, and she tripped. She put her hand
out to protect herself and went through the window, causing a laceration on the
palm of her hand. She attempted to call 911, but Joyce took the cell phone away
and threw it where Ferguson was unable to reach it. Joyce finally left the
apartment, and Ferguson retrieved her cell phone, called the police, and followed 3
him so she could tell officers where he had gone. At trial, Ferguson gave a
detailed account of the physical altercation.
Jennifer Brown, who lived in the same apartment building as Ferguson,
heard noises in Ferguson’s apartment that sounded like wrestling, things being
thrown around, and yelling and screaming. She could hear a man’s voice and a
woman’s voice pleading “stop.” She had called 911 prior to the call that
Ferguson was able to complete.
Joyce testified that he had been invited to the apartment the day before
and spent the afternoon with Ferguson. Ferguson left in the evening with two of
her girlfriends to drink and play cards. She did not come back until 1:00 p.m. the
following day, when an argument developed. He decided to leave the residence,
but Ferguson charged him and took a swing at him. He ducked, and she struck
the window, breaking it and cutting her hand. Joyce took her to the bedroom to
cleanse and dress the wound. She was crying at the time and yelled at him to
stop. Joyce asserts that it was those cries and pleadings Brown heard.
The police and paramedics arrived. Ferguson was taken to the hospital
and examined by a doctor. The doctor observed contusions on multiple sites, an
injury to the back of her head, and a hand abrasion, and opined that she was a
victim of physical assault. Ferguson was confused and disoriented. She had a
blood alcohol level of .087 when tested three and one-half hours after the
incident, but the examining physician determined that the disorientation was a
result of her head injury and the resulting concussion.
A trial information was filed charging Joyce with domestic abuse assault
by strangulation causing bodily injury and first-degree burglary with intentional or 4
reckless infliction of bodily injury. Joyce was convicted of both charges. Joyce’s
counsel moved for a judgment of acquittal at the close of the State’s evidence
and made a motion for new trial, but both motions were overruled.
Joyce’s appeal is entirely based on a claim of ineffective assistance of
counsel. The claim is predicated on counsel’s failure in the following respects:
(a) failing to raise the lack of the “family or household members residing together”
element as required to support a domestic-abuse-assault charge in either the
motion for judgment of acquittal or motion for new trial, (b) failing to request an
additional instruction defining “family or household member,” (c) failing to object
to the marshalling instruction on the burglary charge that did not contain a
justification or self-defense element, (d) recklessly eliciting testimony
characterizing Joyce as a drug dealer, and (e) failing to object to the prosecutor’s
comments in his rebuttal argument on Joyce’s silence after submitting to the
authorities.
Joyce also requested all the claims be added together and accumulated
when determining whether or not the prejudice prong of his claim of ineffective
assistance of counsel had been met.
II. Preservation of Error
Joyce’s appeal is based on an ineffective-assistance-of-counsel claim.
Ineffective assistance of counsel is an exception to the general preservation-of-
error requirement. State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). 5
III. Scope of Review
Claims of ineffective assistance of counsel raise constitutional issues and
as such, the review is de novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa
2012).
IV. Discussion
To prevail on a claim of ineffective assistance of counsel the claimant
must prove by a preponderance of the evidence that (1) counsel failed to perform
an essential duty and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134,
142 (Iowa 2001). A claim of ineffective assistance must overcome the
presumption that counsel is competent. Taylor v. State, 352 N.W.2d 683, 685
(Iowa 1984). An accused is not entitled to perfect representation but only that
level of representation that is within the normal range of competency. State v.
Artzer, 609 N.W.2d 526, 531 (Iowa 2000). Choices of strategy after proper
investigation are virtually unchallengeable. Ledezma, 626 N.W.2d at 143. For
relief to be granted, there must be a determination that, but for ineffective
assistance, there is a reasonable probability the result would have been different.
Id. at 145.
Counsel is not ineffective for failing to make a meritless claim. State v.
Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). Ordinarily, claims of ineffective
assistance of counsel are preserved for a postconviction-relief proceeding, but
we will resolve them on direct appeal when the record is adequate. State v.
Clay, 824 N.W.2d 488, 494 (Iowa 2012). Claims of ineffective assistance do not
accumulate when there is a breach of duty, but when there is more than one 6
breach of duty, they may be considered cumulative to determine prejudice. Id. at
501-02.
A. Judgment of Acquittal
Counsel did not raise the State’s alleged failure to establish the “family or
household members residing together within the last year” element of domestic
abuse assault in the motion for acquittal. The State’s burden is met if a rational
finder of fact based on the evidence in the record could find that the elements of
the crime have been established beyond a reasonable doubt. State v.
Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002).
Ferguson had testified she and Joyce had resided together within the year
prior to the incident and, specifically, had resided together until the previous
December. Ferguson was the tenant on the lease but Joyce also received mail
at that address, shared household tasks, kept some of his belongings there, and
had an intimate and sexual relationship with Ferguson. Joyce did not have keys
to the apartment but borrowed Ferguson’s keys frequently. A stay-away order
had been entered between the parties within the previous three months. Merely
living in the same apartment does not meet the criteria of the statute. State v.
Kellogg, 542 N.W.2d 514, 518 (Iowa 1996). The testimony of Ferguson
established a relationship appreciably more extensive than mere roommates. To
have contended otherwise in the motion for judgment of acquittal would have
been meritless.
B. Motion for New Trial and Omitted Instruction
In ruling on a motion for new trial, the court is required to consider the
weight of the evidence, which is a much broader standard than a sufficiency-of- 7
the-evidence standard, and it involves questions of credibility. State v. Maxwell,
743 N.W.2d 185, 193 (Iowa 2008). It is only in extraordinary cases, where the
evidence preponderates against the verdict, that a jury verdict should be
disturbed by the courts. Id.
Even without it being raised, the court would have been cognizant of the
relationship requirement. Joyce’s testimony bolstered and strengthened the
relationship between the parties as testified to by Ferguson. He thought
Ferguson was pregnant with his child and referred to the parties as “Mother
Baby” and “Father Baby.” Joyce never denied that he had a significant
relationship with Ferguson. Joyce admitted he and Ferguson had lived and
resided together. Joyce testified that at the time of the incident they had what he
termed an “open relationship” but would not say it was an “open relationship”
when they were living together. “If she was doing something that wasn’t up close
I wouldn’t know nothing about it.” If counsel had raised the relationship issue in
the motion for new trial, it would have been denied.
Joyce claims in any event, the instructions should have included an
instruction defining “family or household member,” but counsel made no such
request and, therefore, failed in his duty to do so. When there is no factual
contention as to a particular legal issue, it is not ineffective assistance for counsel
to fail to request an instruction be included. State v. Blackford, 335 N.W.2d 173,
178 (Iowa 1983). Blackford has been followed in State v. Broughton, 450
N.W.2d 874, 876 (Iowa 1990). 8
C. Failure to Object to the Absence of Justification in the Burglary
Marshalling Instruction
Joyce also claims the marshalling instruction on burglary should have
included an element requiring the State to prove he acted without justification.
Self-defense was the essence of his defense. Self-defense is a justification for
an assault. The element required to establish guilt under the alternative form of
burglary used in this case is not an assault but rather “an intent to commit an
assault.” To the extent an assault needed to be set out, the definition of assault
and justification by self-defense were clearly set out in the instructions. Counsel
has no duty to request justification as a part of the marshalling instruction of
burglary in the alternative under which Joyce was charged.
D. Testimony Indicating Joyce was a Drug Dealer
During cross-examination, defense counsel asked Ferguson about
assistance that Joyce may have received in getting his car unstuck from the
snow a day or two before the incident in question. Ferguson had replied it was
not Joyce but a girl with him that helped. Counsel asked if she knew who the girl
was, and Ferguson replied “[J]ust a lady he served to.” Counsel asked, “[W]hat
does that mean?” And Ferguson replied, “[L]ike he sells drugs so that’s just a
lady that he served to.”
“The admission of evidence of cocaine delivery and distribution is
inherently prejudicial.” State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994).
Joyce contends defense counsel should have known what the answer would be.
The State primarily argues counsel had no reason to anticipate the answer given
and, more importantly, that the statement without further enhancement is not 9
prejudicial. The record is not adequate to determine what counsel knew or
should have known about the likely response to the question asked. If under the
facts counsel violated a duty, the prejudicial impact and any cumulative effect it
might have should be left to be evaluated in a postconviction hearing.
E. After the Warrant for Joyce’s Arrest was Issued He Turned Himself
In
On cross-examination the following exchange took place between the
prosecution and Joyce:
Q. You were asked if the police department ever tried to get your side of the story. A. Yes, sir. Q. And you were saying they did not? A. No they did not. At the point when I turned myself in there wasn’t no way for me to offer. Q. You couldn’t have just said, hey, let me tell you what happened? A. No.
In his rebuttal argument the prosecutor stated the following: “Don’t forget
the defendant has had seventeen months to think about his story. He’s never
provided an explanation to law enforcement before. Never made a statement
before.” Defense counsel lodged no objection.
Comments by a prosecutor on a defendant’s silence after receiving a
Miranda warning violate the Due Process Clause of the Fourteenth Amendment.
Doyle v. Ohio, 426 U.S. 610, 619 (1976). Such comments are not a violation of
due process if voluntary statements are made prior to a Miranda warning.
Fletcher v. Weir, 455 U.S. 603, 605-06 (1982). Further, in Doyle the court
specifically noted the State did not contend that the comment was “harmless
error.” Doyle, 426 U.S. at 619-20. The concept of “harmless error” is
substantially equivalent with the prejudice prong in an ineffective-assistance-of- 10
counsel claim. The record does not indicate whether or when Joyce was given a
Miranda warning and whether any time existed for him to tell his story before the
Miranda warning was given.
This issue, as well as the issue regarding the testimony indicating Joyce
was a drug dealer, are left to be considered in a postconviction relief action. We
affirm Joyce’s convictions.
AFFIRMED.