                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0111
                             Filed August 15, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALBERT GARCIA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Albert Garcia appeals his convictions for two counts of first-degree murder

and two counts of first-degree robbery. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney

General, for appellee.



      Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

       Three men hatched a plan to rob a person who was seeking to buy

marijuana from one of them. They enlisted the help of Albert Garcia because they

knew Garcia had a gun.        Garcia ended up shooting the would-be marijuana

purchaser and his friend. Both died.

       The State charged Garcia with two counts of first-degree murder, in violation

of Iowa Code sections 707.1 and 707.2 (2015), and two counts of robbery in the

first degree, in violation of sections 711.1 and 711.2. A jury found him guilty as

charged, and the district court sentenced him to two terms of life imprisonment

without the possibility of parole and two prison terms not exceeding twenty-five

years. The sentences were to run consecutively.

       On appeal, Garcia contends (1) a police detective lacked the qualifications

to provide expert testimony about cell phone technology; (2) accomplice testimony

was not corroborated by sufficient evidence; (3) his trial attorney was ineffective in

failing to object to an instruction informing the jury it could consider his out-of-court

statements “just as if they had been made at trial”; and (4) his murder convictions

and sentences should be vacated under a merger doctrine.

I.     Expert Testimony–Cell Phone Technology

       At trial, the prosecutor asked a Des Moines police detective to pinpoint the

locations of a cell phone belonging to one of the participants in the crimes, based

on cell tower information. The detective testified the locations were near the crime

scene. The prosecutor then asked about the locations of Garcia’s cell phone. After

the detective identified the locations, the prosecutor engaged in the following

exchange about cell phone tower technology:
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              Q. Generally speaking based upon your training and
       experience, how do cell phones connect to particular towers?
       A. When it’s trying to get a signal, it goes to whatever the clearest
       closest tower is. If you start a call and you are traveling, it will
       sometimes switch towers from one to another. A lot of times if you
       have a lengthy phone call, it will connect to multiple towers.

At this juncture, Garcia’s attorney objected to the testimony on the ground the

detective was not “certified as an expert in cell phone technology.” The district

court overruled the objection and the detective continued: “Essentially it connects

to the closest tower and communicates with whatever the closest tower is that it

can communicate with.”

       Garcia contends, “Testimony about cellular phone technology and the use

of cell tower data to estimate the location of a cell phone is technical, specialized

information that is beyond the understanding of the average lay person and

properly the subject of expert testimony.” In his view, the detective was unqualified

to testify about “location based on the cellphone tower records because the State

presented no evidence of [the detective’s] experience or knowledge in the area of

cell phone technology.”

       The State responds with several error preservation concerns. We agree

with the State that Garcia’s objection to the question quoted above came too late

and he failed to object to other testimony about cell phone technology.

Accordingly, he did not properly preserve error. See Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002).

       Anticipating this conclusion, Garcia asserts his attorney “was ineffective for

failing to object in a timely or sufficiently specific manner.” The State responds
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that his assertion is too general to permit review of his claim under an ineffective-

assistance-of-counsel rubric. We disagree with the State and proceed to the

merits.

       To prevail on a claim of ineffective assistance of counsel, Garcia must show

deficient performance and resulting prejudice. See Strickland v. Washington, 466

U.S. 668, 687 (1984). On the breach prong, there is a strong presumption that the

attorney’s actions were reasonable. State v. Shumpert, 554 N.W.2d 250, 254

(Iowa 1996). The prejudice prong requires proof by “a reasonable probability that,

but for the counsel’s unprofessional errors, the result of the proceeding would have

been different.” State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008). We may

decide the issue on either prong. See State v. Thorndike, 860 N.W.2d 316, 320

(Iowa 2015) (“If we conclude a claimant has failed to establish either of these

elements, we need not address the remaining element.”). We find the record

adequate to address the breach prong. See State v. Johnson, 784 N.W.2d 192,

198 (Iowa 2010) (“If a defendant wishes to have an ineffective-assistance claim

resolved on direct appeal, the defendant will be required to establish an adequate

record to allow the appellate court to address the issue.”).

          “A witness is qualified to assist the jury as an expert to resolve a disputed

fact if the witness has adequate ‘knowledge, skill, experience, training, or

education’ on the subject matter in question.” Ranes v. Adams Laboratories, Inc.,

778 N.W.2d 677, 687 (Iowa 2010) (quoting Iowa R. Evid. 5.702).                    “[A]n

expert does not need to be a specialist in the area of the testimony as long as the

testimony is within the general area of expertise of the witness.” Id.; see also State

v. Benson, No. 15-1895, 2016 WL 7393891, at *3 (Iowa Ct. App. Dec. 21, 2016)
                                           5


(concluding a detective “possessed sufficient knowledge and training to assist the

jury in interpreting . . . cell phone records”); State v. Rendon, No. 15-1832, 2016

WL 6270092, at *4 (Iowa Ct. Oct. 26, 2016) (concluding detective “had sufficient

knowledge, skill, experience, and training to interpret the cell phone records and

to assist the jury in understanding those records”).

       The detective in this case testified he had fifteen years of experience as a

police officer, including ten years as a patrol officer on the streets of Des Moines.

He “attended several homicide conferences and training classes throughout [his]

five years” as a detective. Before discussing specific cell phone records, he was

asked, “Have you had an opportunity in the past to interpret cellular telephone

records in other criminal investigations?” He answered, “Yes.” Later, he was

asked about a particular cell phone record and whether “we have the benefit of cell

tower information as well.”     The detective responded, “Yes, we do,” and he

explained that information was somewhat unique to the particular provider. He

expressed his awareness that general location data was available “during cell

calls, not texts.”

       The detective’s training and experience qualified him to testify that cell

phones communicated with “the closest tower” and “[t]he cell phone will simply go

to whatever the nearest tower it is or whatever is the clearest signal it can pick up.”

On our de novo review, we conclude Garcia’s attorney did not breach an essential

duty in failing to timely or more specifically object to the testimony. His ineffective-

assistance-of-counsel claim fails.
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II.    Corroboration of Accomplice Testimony

       The three men who came up with the plan to rob the marijuana purchaser

implicated Garcia and testified against him at trial. Garcia contends their testimony

was insufficiently corroborated.     See Iowa R. Crim. P. 2.21(3) (requiring

corroboration of accomplice testimony). Corroborative evidence “may be direct or

circumstantial,” and it “need not be strong and need not be entirely inconsistent

with innocence.” State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997) (citation

omitted). “It must, however, support some material part of the accomplice’s

testimony and tend to connect the accused to the commission of the crime.” Id.

       Accomplice Shamair Gainey testified Garcia “shot” the person they

intended to rob, and Garcia then “started shooting” the purchaser’s friend.

       Accomplice Roberto Baez-Alvarez testified the man who wished to

purchase marijuana had $250 to spend. He and the other accomplices came up

with a plan to rob him of the money and drove the purchaser to an alley. Garcia

approached the vehicle. The purchaser demanded to see the marijuana before

paying Garcia. After deliberating a short while, Garcia said, “You know what?” and

“shot” the purchaser “once.” Baez-Alvarez heard another shot. After the shot, the

purchaser’s friend “took off running,” with Garcia in pursuit. Baez-Alvarez pulled

the purchaser’s body out of the vehicle and left him on the ground. Later, Baez-

Alvarez attempted to clean the vehicle with bleach and paper towels.

       According to accomplice Luis Magallon, Garcia told him “I’m going to shoot”

the purchaser and his friend if they “don’t give me the money.” Magallon walked

away. As he did so, he heard “five or six” gunshots coming from the alley. Later,

he met up with Garcia, who was “pouring sweat” and told him he “did it.”
                                          7


       The testimony of the three accomplices was corroborated by extensive

evidence. Officers obtained the vehicle owner’s consent to search the vehicle in

which the shooting occurred. One of the detectives observed “what appeared to

be a dark red stain in the seat which would be consistent where somebody would

be sitting” and “what appeared to be blood on the door.” The DNA profiles obtained

from the blood in the vehicle “matched the known DNA profile” of the marijuana

purchaser. The detective also saw “a balled-up paper towel that had some sort of

red evidence on it.” A bottle of bleach was in the vehicle. The detective viewed a

surveillance video from a convenience store “a block and a half” from the crime

scene and identified Garcia and Magallon going into the store “at the approximate

time frame” identified in police interviews.

       Garcia was interviewed by police.         He changed his story as police

confronted him with information contradicting his initial version of events. See State

v. Harris, 589 N.W.2d 239, 242 (Iowa 1999) (stating courts can “also consider as

corroborating evidence the fact that when defendant was interrogated by the police

he gave false and misleading evidence concerning his whereabouts”). Initially, he

said he did not see Magallon on the night of the shootings. After being informed

that a convenience store video showed him with Magallon, he backtracked. He

also identified an alibi witness, but when she failed to corroborate the alibi, he

altered the narrative.

       After being arrested and jailed, Garcia made incriminating statements in

recorded phone conversations. See State v. Douglas, 675 N.W.2d 567, 572 (Iowa

2004) (“[A] defendant’s out-of-court confessions and admissions may corroborate

the testimony of an accomplice.”). They included, “I’m probably going away for a
                                          8


long, long time”; “When I get sentenced and go to prison, I might call and tell you

why”; and “I’m probably never going to see the outside world again.”

       Finally, cell phone records contained communications between Garcia and

the accomplices and among the accomplices. And, as noted, location data from

the cell phone towers placed the accomplices near the scene of the crime.

       We conclude there was more than sufficient evidence to corroborate the

accomplice testimony.

VI.    Ineffective Assistance–Jury Instruction, Defendant’s Prior Statements

       Garcia contends his trial attorney was ineffective in failing to object to an

instruction that informed the jury it could consider his out-of-court statements “just

as if they had been made at trial.” According to Garcia,

       While the rules of evidence provide that statements of party
       opponents are admissible, the rule of evidence and the rationale
       underlying the hearsay exception provides no authority to require the
       jury to consider the statements as bearing the same weight as
       testimony received at trial, made under oath and under penalty of
       perjury. Instead the jury should have been free to assign whatever
       weight and reliability to the statements as it saw fit.

       We recently addressed the identical issue. See State v. Yenger, No. 17-

0592, 2018 WL 3060251, at *4-5 (Iowa Ct. App. June 20, 2018). We stated:

       Although the challenged instructional language does not appear in
       rule 5.801(d)(2), we believe it is a correct statement of the law. . . .
       [T]he language allows rather than requires the jury to consider the
       statements “just as if they had been made at this trial.” . . . Because
       the challenged language does not require jurors to accord the same
       weight to an unsworn prior inconsistent statement as they would to
       trial testimony, we conclude Yenger’s attorney breached no essential
       duty in failing to object to that portion of the instruction. See [State
       v.] Payne, [No. 16-1672,] 2018 WL 1182624, at *9 [(Iowa Ct. App.
       Mar. 7, 2018)] (“The instruction did not direct the jury to assign the
       statement any particular weight or unduly emphasize the matter, nor
       did it create an improper permissive inference or presumption.”); see
       also State v. Hayes, No. 17-0563, 2018 WL 2722782, at *5 (Iowa Ct.
                                         9


       App. June 6, 2018) (concluding counsel was not ineffective in failing
       to challenge this instruction); State v. Wynn, No. 16-2150, 2018 WL
       769272, at *3 (Iowa Ct. App. Feb. 7, 2018) (noting instruction made
       “no reference to a presumption or an inference”); State v. Wineinger,
       No. 16-1471, 2017 WL 6027727, at *3 (Iowa Ct. App. Nov. 22, 2017)
       (concluding instruction was “a correct statement of law”); State v.
       Tucker, No. 13-1790, 2015 WL 405970, at *3 (Iowa Ct. App. Jan. 28,
       2015) (disagreeing with assertion that the instruction was
       misleading).

We are persuaded by the reasoning of Yenger and the remaining cited opinions.

We conclude counsel did not breach an essential duty in failing to object to the

instruction.

IV.    Merger–Felony Murder Instruction

       Garcia contends his “sentences and convictions for murder are illegal and

must be vacated” because (1) the jury “was never instructed on the requirement

. . . that the assaultive act that forms the basis of the predicate felony must be

separate and distinct from the act causing death” and (2) “the jury did not make

findings that the act constituting the assaultive elements of the robbery convictions

in Counts III and IV were separate and distinct acts from the shootings that

supported the felony murder options in Counts I and II.” In his view, “the murder

convictions and sentences must be vacated, as the jury’s general verdict forms do

not indicate whether it found [him] guilty of premeditated murder or felony murder.”

       The State counters that Garcia “is not truly challenging the legality of his

sentence,” but the “marshalling instructions for his murder charges,” an issue he

failed to preserve for our review. We agree.

       “Objections to instructions, or the lack thereof, may not be raised for

the first time on appeal.” State v. Wellington, 264 N.W.2d 739, 742 (Iowa 1978);

cf. State v. McCoy, No. 14-0918, 2016 WL 3269458, at *4 (Iowa Ct. App. June 15,
                                             10


2016). (“We agree this is a challenge to the jury instructions, and we agree the

defendant failed to preserve error.”). Garcia did not object to the instruction and

does not raise a challenge to the instruction under an ineffective-assistance-of-

counsel rubric. Accordingly, we have nothing to review. 1

       We affirm Garcia’s judgment and sentences.

       AFFIRMED.

       Tabor, J., concurs specially; Potterfield, J., joins special concurrence.




1
  The Iowa Supreme Court recently rejected the argument. See State v. Harrison, 914
N.W.2d 178, 208 (Iowa 2018) (“Based on the fundamental differences between felony
robbery and felony assault in the felony-murder context, in addition to the merger rule
jurisprudence in Iowa, it can hardly be said that trial counsel in this case “performed below
the standard demanded of a reasonably competent attorney.”); see also McCoy, 2016 WL
3269458, at *4-7; State v. Pollard, No. 13-1255, 2015 WL 405835, at *3-4 (Iowa Ct. App.
Jan. 28, 2015).
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TABOR, Judge (concurring specially).

       I agree with the majority’s decision to affirm Garcia’s convictions, but I

disagree with two aspects of the analysis. For both claims of ineffective assistance

of counsel raised on appeal, I would find a breach of duty, but no prejudice.

       First, the State did not establish that the police detective received relevant

training in cellular telephone technology or that his general experience as a patrol

officer or detective would allow him to provide expert testimony regarding the use

of cell tower data. To satisfy minimum performance standards, defense counsel

should have lodged an earlier objection to the officer’s testimony about specialized

information that was beyond a layperson’s understanding. See generally State v.

Carrillo, 399 P.3d 367, 376 (N.M. 2017) (“[U]nderstanding how cell towers operate

requires a duly qualified expert to explain the technical nature of the many

variables that influence how cell tower signals connect with cell phones.”). In both

State v. Rendon, No. 15-1832, 2016 WL 6270092, at *4 (Iowa Ct. App. Oct. 26,

2016), and State v. Benson, No. 15-1895, 2016 WL 7393891, at *3 (Iowa Ct. App.

Dec. 21, 2016), the question was whether a detective’s training from 2008 to 2012

was up-to-date, not whether he had received any training on cellular phone

technology. Here, the State laid no foundation that the detective had specific

knowledge regarding the operation of cell phone towers. He testified he attended

conferences and classes on homicides generally—not specifically about how

cellular towers work or how to read cellular telephone records. The officer’s

subsequent testimony that he had the “opportunity in the past to interpret cellular

telephone records” in the course of investigations does not answer the question of

how he was qualified to do so then or now.
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       Second, counsel had a duty to object to the jury instruction regarding

Garcia’s extrajudicial statements. The district court instructed the jurors that if they

found Garcia made statements at an earlier time and place, they were allowed to

consider those out-of-court statements as part of the evidence—“just as if they had

been made at this trial.” Although our court has upheld this stock instruction in

several unpublished decisions, the disputed language cannot be found in the rules

of evidence. In my view, the instruction improperly suggests Garcia’s out-of-court

admissions were to be given the same force and effect as if he had uttered the

words from the witness stand under the penalty of perjury. See State v. Yenger,

No. 17-0592, 2018 WL 3060251, at *7 (Iowa Ct. App. June 20, 2018) (Tabor, J.,

dissenting); State v. Payne, No. 16-1672, 2018 WL 1182624, at *11–12 (Iowa Ct.

App. Mar. 7, 2018) (Tabor, J., dissenting).

       But on the question of Strickland prejudice, in neither instance can Garcia

show the reasonable probability of a different outcome based on counsel’s

omissions. See Strickland v. Washington, 466 U.S. 668, 686 (1984). As the State

asserts on appeal, the detective’s testimony concerning the cellular tower

information was just “one piece of the puzzle” amid overwhelming evidence of

Garcia’s guilt. Similarly, it is not reasonable to believe the result of the trial would

have been different if the court had not given the disputed instruction. See State

v. Kissel, No. 16- 0887, 2017 WL 6032585, at *5 (Iowa Ct. App. Nov. 22, 2017)

(finding no prejudice from same jury instruction); State v. Chinberg, No. 16-1600,

2017 WL 6026718, at *2 (Iowa Ct. App. Nov. 22, 2017) (same). Garcia’s out-of-

court statements—in the form of recorded telephone calls from jail and a

videotaped interview with officers—were not the most incriminating evidence
                                        13


before the jury.   The prosecution presented a strong case.         Garcia’s three

accomplices testified he pulled the trigger, surveillance videos placed him near the

crime scene within minutes of the shooting, and he possessed the proceeds from

the robbery. On this record, I don’t find counsel’s errors undermined confidence

in the jury’s verdicts. I would find counsel breached an essential duty, but Garcia

was not prejudiced. Therefore, I specially concur in the result affirming denial of

Garcia’s claims.
