Charles Sila Curry v. State of Iowa

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.
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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.
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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.
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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).
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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.”).
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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.
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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.