Mubarak Matta Mubarak v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-1408
Filed July 26, 2023

MUBARAK MATTA MUBARAK,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

Applicant appeals the district court decision denying his application for

postconviction relief following his conviction for first-degree robbery. AFFIRMED.

Erin M. Carr of Carr Law Firm, P.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.

Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
2

SCHUMACHER, Presiding Judge.

Mubarak Mubarak appeals the district court decision denying his application

for postconviction relief (PCR) following his conviction for first-degree robbery. He

claims he received ineffective assistance because defense counsel failed to (1) file

a motion to suppress to challenge the identification process; (2) file a motion to

suppress to challenge the pat-down search; (3) more fully investigate the case,

including calling a specific witness; (4) object to the prosecution’s theme during

opening statements; and (5) challenge the makeup of the jury because it did not

contain an adequate proportion of African-Americans. We conclude Mubarak has

not shown he received ineffective assistance, and we affirm the decision of the

district court.

I. Background Facts & Proceedings

The background facts are set out in State v. Mubarak:

Early on September 24, 2016, Eh Nwe drove from work to his
home at an apartment complex in Des Moines. Shortly before 1:00
a.m., he parked at his complex, but, before he exited his car, a man
approached him on foot. Nwe could not “see his face very clear,” but
he described the man as black, about five foot and nine or ten inches
tall, and not fat. He wore torn blue jeans, a long black jacket with a
zipper and a hood that covered his head, and a round silver earring
in his right ear. . . . The man set a Budweiser beer can on top of
Nwe’s car and told Nwe to give him his phone. . . . When Nwe did
not give up his phone, the man pointed a gun at Nwe’s head and told
him to hand over his wallet. Nwe was able to deflect the man’s hand,
roll up the window, and back up the car, which shined the car’s lights
on the man. Nwe immediately called 911 and was able to drive away
without surrendering anything. Minutes later, Officer Kyle Thies
arrived and met with Nwe. Nwe described the man to Officer Thies,
pointed to the area where the man went, and entered his apartment.
Officer Thies proceeded to the location Nwe indicated—about
fifty yards from where the incident occurred—where he found
Mubarak and three other individuals. Mubarak wore a black jacket,
blue jeans, and an earring, and he had a can of beer in his hand.
Mubarak’s appearance was “identical” to the description Nwe
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provided, and the other three individuals at the scene did not match
the description. Officer Thies detained, patted down, and questioned
all four individuals, and he searched two vehicles known to be
associated with the individuals. He found a gun and a loaded
magazine on Mubarak, and he did not find any other weapons when
searching the other individuals and the vehicles. Another officer
brought Nwe to Officer Thies, and Nwe confirmed Mubarak “look[s]
like” the man who pointed a gun at him. Officer Thies told Mubarak
he would be charged with robbery in the first degree, and Officer
Thies testified Mubarak said the charge was not appropriate
“[b]ecause he didn’t take anything and [Nwe] did not give him
anything.”

No. 17-2056, 2018 WL 5839848, at *1 (Iowa Ct. App. Nov. 7, 2018).

Mubarak was convicted of robbery in the first degree. He was sentenced

to a term of imprisonment not to exceed twenty-five years. The conviction was

affirmed on appeal. Id. at *3.

Mubarak filed a PCR application, claiming he received ineffective

assistance of counsel during his criminal trial. He asserted defense counsel should

have (1) moved to suppress to challenge the identification process; (2) filed a

motion to suppress to challenge the pat-down search; (3) more fully investigated

the case, including calling a specific witness; (4) objected to the prosecution’s

theme during opening statements; and (5) challenged the makeup of the jury

because it did not contain an adequate proportion of African-Americans. The

district court denied the PCR application. Mubarak now appeals.

II. Ineffective Assistance

We review de novo claims of ineffective assistance of counsel. State v.

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of ineffective

assistance of counsel, an applicant must prove: (1) counsel failed to perform an

essential duty and (2) the failure resulted in prejudice. State v. El-Amin, 952
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N.W.2d 134, 138 (Iowa 2020). “We presume counsel performed his or her duties

competently and ‘measure counsel’s performance against the standard of a

reasonably competent practitioner.’” State v. Warren, 955 N.W.2d 848, 858 (Iowa

2021) (citation omitted). For the prejudice prong, a party “must show ‘there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’” State v. Boothby, 951 N.W.2d 859,

863 (Iowa 2020) (citation omitted).

A. Mubarak claims he received ineffective assistance because defense

counsel did not move to suppress what he alleges was an impermissibly

suggestive showup identification process. Nwe was taken to Mubarak’s location

by a police officer, where Nwe confirmed Mubarak “look[s] like” the man who

pointed a gun at him. Mubarak contends that if defense counsel had moved to

suppress, Nwe’s identification would have been excluded.

“When unnecessarily suggestive pretrial out-of-court identification

procedures conducive to mistaken identification that are incapable of repair are

used, the Due Process Clause requires exclusion of the testimony of the

identification.” State v. Booth-Harris, 942 N.W.2d 562, 570–71 (Iowa 2020)

(quoting State v. Folkerts, 703 N.W.2d 761, 763 (Iowa 2005)). The due process

clause has not been violated if “the identification has sufficient aspects of

reliability.”1 Id. at 571.

1 Mubarak asserts that showup identifications are inherently suggestive and should

be treated with greater caution than that required by Booth-Harris. 942 N.W.2d at
570–71. He asks to have Booth-Harris overruled. The Iowa Court of Appeals,
however, is “not at liberty to overrule controlling supreme court precedent.” State
v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014).
5

Courts use a two-part analysis for challenges to out-of-court identifications.

Id. at 570. “First, we decide whether the procedure used for the identification was

impermissibly suggestive.” Id. (quoting State v. Taft, 506 N.W.2d 757, 762 (Iowa

1993)). Second, the reliability of the out-of-court identification is considered

looking at the factors below:

(1) the opportunity of the witness to view the perpetrator at the time
of the crime, (2) the witness’ degree of attention, (3) the accuracy of
the witness’ prior description of the perpetrator, (4) the level of
certainty demonstrated by the witness at the confrontation, and (5)
the length of time between the crime and the confrontation.

Id. (citation omitted).

The Iowa Supreme Court noted, “[T]he research states that showups, or

procedures when the officer presents the witness with a single suspect for

identification, are generally less reliable because the witness then knows who the

police believe is a suspect.” Id. at 573 (citing State v. Lawson, 291 P.3d 673, 686

(Or. 2012)). The court stated:

[W]hen conducted properly and within a limited time period
immediately following an incident, a showup can be as reliable as a
lineup. A showup is most likely to be reliable when it occurs
immediately after the witness has observed a criminal perpetrator in
action because the benefit of a fresh memory outweighs the inherent
suggestiveness of the procedure.

Id. (quoting Lawson, 291 P.3d at 686).

While a showup may be less reliable than other identification procedures,

“the admission of evidence of a showup without more does not violate due

process.” State v. Nathaniel, No. 00-1359, 2002 WL 1973021, at *2 (Iowa Ct. App.

Aug. 28, 2002) (quoting Neil v. Biggers, 409 U.S. 188, 198 (1972)). “We examine

the totality of the circumstances to determine whether the identification was reliable
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even though the procedure was suggestive.” Id. The showup here was conducted

within a short time frame after the criminal offense occurred and, therefore, is likely

to be reliable. See Booth-Harris, 942 N.W.2d at 573. We conclude Mubarak has

not shown the identification procedure used here was impermissibly suggestive.

See id. at 570.

Furthermore, even “[i]f the one-on-one showup constitutes an impermissibly

suggestive identification procedure, the defendant must still show that the

procedure gave rise to ‘a very substantial likelihood of irreparable

misidentification.’” State v. Canada, No 99-0967, 2000 WL 768864, at *2 (Iowa Ct.

App. June 14, 2000) (citation omitted). Nwe observed the perpetrator at the time

of the offense as the person spoke to him next to his car window. See Booth-

Harris, 942 N.W.2d at 570. He was also able to observe the person in his

headlights when he backed up. See id. He paid attention to the person who first

asked for his phone and then drew a gun and asked for his wallet. See id. Nwe

gave a detailed description of the perpetrator, noting the person’s clothing and

earring. See id. He stated Mubarak “look[s] like” the man who tried to rob him.

See id. Also, as noted, there was a very short period of time between the offense

and when Nwe identified Mubarak. See id. We find the identification is reliable

after considering the appropriate factors.

We conclude the due process clause has not been violated because “the

identification has sufficient aspects of reliability.” See id. at 571. Mubarak has not

shown he received ineffective assistance due to defense counsel’s failure to file a

motion to suppress the identification of Mubarak by Nwe, as such a motion would
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have been unsuccessful. See State v. Carroll, 767 N.W.2d 638, 645 (Iowa 2009)

(noting counsel does not have a duty to pursue a meritless issue).

B. Mubarak contends defense counsel should have filed a motion to

suppress the results of the pat-down search. He claims officers violated his rights

by improperly stopping him and conducting a pat-down search without a warrant

when there was not sufficient evidence to show he was involved in criminal

activity.2 See State v. Baker, 925 N.W.2d 602, 610 (Iowa 2019) (noting warrantless

searches are per se unreasonable unless they come within a recognized exception

to the warrant requirement). Mubarak asserts that a motion to suppress would

have been successful and the evidence of a gun, beer can, and ammunition would

have been suppressed.

The United States Supreme Court has stated there is an exception to the

warrant requirement in the Fourth Amendment of the federal constitution and “a

police officer may in appropriate circumstances and in an appropriate manner

approach a person for purposes of investigating possibly criminal behavior even

though there is no probable cause to make an arrest.”3 Terry v. Ohio, 392 U.S. 1,

22 (1968). An officer also has an immediate interest “in taking steps to assure

himself that the person with whom he is dealing is not armed with a weapon that

could unexpectedly and fatally be used against him.” Id. at 23. Based upon “the

specific reasonable inferences which [the officer] is entitled to draw from the facts

2 Mubarak claims the search violated his rights under article I, section 8 of the Iowa

Constitution, which protects against unreasonable searches and seizures.
3 The same factors making a pat-down search permissible under the Fourth

Amendment are also applicable to challenges under article I, section 8 of the Iowa
Constitution. See State v. Williams, No. 19-1857, 2020 WL 7385260, at *3 (Iowa
Ct. App. Dec. 16, 2020).
8

in light of his experience,” an officer may conduct a limited pat-down search. Id.

at 27.

A Terry pat-down search “must be supported by reasonable suspicion that

the subject is concealing weapons or contraband.” State v. Torres, 989 N.W.2d

121, 128 (Iowa 2023). A brief detention of an individual is permissible “based only

on a reasonable suspicion that a criminal act has occurred or is occurring.” Baker,

925 N.W.2d at 610. “The reasonable-suspicion standard ‘is more than a hunch or

unparticularized suspicion, but less demanding than showing probable cause.’”

State v. Steffens, 889 N.W.2d 691, 697 (Iowa Ct. App. 2016) (citation omitted).

“Whether reasonable suspicion exists for an investigatory stop must be determined

in light of the totality of the circumstances confronting a police officer, including all

information available to the officer at the time the decision to stop is made.” State

v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002).

Nwe described to officers the person who demanded his phone and his

wallet. The person had a gun, which he pointed at Nwe. Within a short period of

time and near the location where the robbery took place, officers found Mubarak,

who matched the description of the person described to them by Nwe. Also, from

the information provided by Nwe, officers were aware Mubarak might by carrying

a gun. Considering the totality of the circumstances, the officers had a reasonable

suspicion that Mubarak was involved in criminal activity. The officers could

conduct a Terry pat-down search based on a “reasonable suspicion that the

subject is concealing weapons or contraband.” See Torres, 989 N.W.2d at 128.

We determine that even if defense counsel had filed a motion to suppress

the results of the pat-down search, such a motion would have been unsuccessful.
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We conclude Mubarak has not shown he received ineffective assistance of

counsel. See Carroll, 767 N.W.2d at 645.

C. Mubarak claims he received ineffective assistance because defense

counsel did not fully investigate the case. In particular, Mubarak states defense

counsel should have presented the testimony of S.M. At the PCR hearing,

Mubarak stated that S.M. would have testified that Mubarak was with him at the

time of the robbery and was not participating in the robbery. Mubarak claimed

S.M. was present during his trial and he was prejudiced by counsel’s failure to call

S.M. as a witness.

Defense counsel testified Mubarak identified S.M. as a person who could

provide information helpful to the defense. She stated that she requested contact

information for S.M. but Mubarak did not provide her with this information. She

asked an investigator to try to locate S.M., but the search was unsuccessful.

Defense counsel stated she was not informed S.M. was present during the trial.

Even if she had been informed, however, she stated she “was not going to call a

witness at trial that I had not asked questions of or interviewed prior to a trial.”

The district court stated:

[S.M.] was not called to testify at the PCR trial. The petitioner
suggests that [S.M.] would have testified positively on his behalf if
asked, but there is no evidence in the PCR record about what he
would have said and whether it would have been helpful. The
applicant has failed to prove trial counsel breached an essential duty
or that any prejudice resulted.

Mubarak did not meet his burden to show what S.M.’s testimony would have

been and how it would have helped his case. See Dunbar v. State, 515 N.W.2d

12, 15 (Iowa 1994). In addition, because he cannot show how S.M.’s testimony
10

would have helped his case (as he cannot show what the testimony would have

been), he cannot show he was prejudiced by the failure to call S.M. as a witness.

See id. We conclude Mubarak has not shown he received ineffective assistance

of counsel on this ground.

D. Mubarak asserts that he received ineffective assistance because

defense counsel did not object to some of the prosecutor’s statements. In opening

statements, the prosecutor said:

Out of nowhere, unexpectedly, frighteningly, he draws his gun
and places it on the head of Mr. Nwe. You see, for Mr. Nwe, that
moment in time, his American Dream became a nightmare. I tell you
that because you’re going to hear a little bit about his background,
how he left Burma with his family to a refugee camp in Thailand, till
the United States was generous enough to open its borders . . . .

Also, in closing arguments, the prosecutor said:

Fact, Mr. Nwe, American dream became a nightmare. It
became a nightmare when he was the victim of a robbery in the first
degree. Let me be clear. Let me be abundantly clear. He’s charged
with robbery in the first degree.

Mubarak contends the prosecutor’s statements inflamed the emotions of

the jury, causing the jury to base its decision on emotions rather than the facts of

the case. He claims that the emphasis on Nwe’s status as a refugee and immigrant

distracted from Nwe’s faulty identification of Mubarak as the perpetrator.

Mubarak cites no authority to support his claim that the prosecutor’s

statements were objectionable. “Failure to cite authority in support of an issue may

be deemed waiver of that issue.” Iowa R. App. P. 6.903(2)(g)(3); see also State v.

Sinclair, 987 N.W.2d 465, 466 (Iowa Ct. App. 2022). When a party does not cite

authority in an appellate brief, we may consider the issue waived. State v. Davis,

971 N.W.2d 546, 554 (Iowa 2022).
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Furthermore, even if the issue had not been waived, we find the statements

were not objectionable. The jury was instructed that it should base the verdict only

upon the evidence and “[s]tatements, arguments, questions and comments by the

lawyers” were not evidence. We presume that juries follow the instructions. State

v. Sanford, 814 N.W.2d 611, 620 (Iowa 2012). While case law recognizes “[t]he

prosecutor should refrain from argument which would divert the jury from its duty

to decide the case on the evidence,” State v. Musser, 721 N.W.2d 734, 755 (Iowa

2006) (citation omitted), we conclude the prosecutor’s statements here were not

unduly prejudicial. The statements would not cause the jury to base its decision

on emotions instead of the facts and the law. Mubarak has not shown he received

ineffective assistance due to counsel’s failure to object to the statements.

E. Mubarak claims defense counsel should have objected because the

jury pool did not reflect a fair cross-section of the community. Mubarak is African-

American, and he asserts that the jury pool did not reflect an appropriate proportion

of African-Americans.

The Sixth Amendment of the federal constitution provides a right “to a jury

drawn from a fair cross-section of the community.” State v. Plain, 898 N.W.2d 801,

821 (Iowa 2017). Article I, section 10 of the Iowa Constitution also provides a right

to a trial before “an impartial jury.” State v. Lilly, 930 N.W.2d 293, 299 (Iowa 2019)

(citation omitted).

A prima facie violation of the fair-cross-section requirement may be shown

by evidence:

(1) that the group alleged to be excluded is a “distinctive” group in
the community; (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in relation
12

to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in
the jury-selection process.

Plain, 898 N.W.2d at 822 (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)).

A criminal defendant has the burden to “show evidence of a statistical disparity

over time that is attributable to the system for compiling jury pools.” Id. at 824; see

also Lilly, 930 N.W.2d at 306. The failure to prove any of the three prongs “is fatal

to a defendant’s fair-cross-section challenge.” State v. Williams, 972 N.W.2d 720,

724 (Iowa 2022).

The district court found:

Petitioner has provided no evidence on . . . these prongs,
aside from his impression that there was only one African-American
in his panel. The record is unclear about how many total jurors were
on his panel, how many total jurors were in the Polk County jury pool
that week, how many African-American jurors were in his pool but
not on his panel, or even what the jury-eligible population of African-
Americans in Polk County is. There is no evidence concerning a
purported underrepresentation that might have occurred, aside from
the applicant’s conclusory argument that “[t]he list used for jury duty
selection do not properly represent the poor and minorities of Polk
County which in turn causes a lack of diversity in the jury pools.” This
is the same argument Lilly made, and the Supreme Court found that
it was not sufficient to establish systemic exclusion. See [Lilly, 930
N.W.2d] at 305. Trial Counsel was aware of these standards and did
not object. Without further proof, the applicant has failed to prove
this claim and it must be denied.

We agree with the district court’s conclusion that Mubarak did not meet his

burden to show the jury pool or his particular jury did not represent a fair cross-

section of the community. See State v. Mong, 988 N.W.2d 305, 311 (Iowa 2023)

(finding Mong did not meet his “burden of production and persuasion in

establishing a prima facie violation of his fair-cross-section right” when he did not

“identify the precise feature or features in the jury-selection process that allegedly
13

resulted in systematic exclusion”). Because Mubarak has not shown the jury pool

failed to represent a fair cross-section of the community, he has not shown there

was any basis for defense counsel to object on this ground. We conclude he has

not shown he received ineffective assistance of counsel. See Carroll, 767 N.W.2d

at 645.

We affirm the district court’s decision denying Mubarak’s PCR application.

AFFIRMED.