IN THE COURT OF APPEALS OF IOWA

No. 15-0590

Filed April 27, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

TERRACE TYRONE PERKINS,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, John D. Telleen 

(motion to suppress) and Mark D. Cleve (trial), Judges.

The defendant appeals from his convictions for robbery in the first degree 

and willful injury causing serious injury following a jury trial. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney 

General, for appellee.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
2

POTTERFIELD, Judge.

Terrace Perkins appeals from his convictions for robbery in the first 

degree and willful injury causing serious injury following a jury trial. Perkins 

maintains his right to due process was violated when the court admitted an audio 

recording as well as testimony about the recording because officers used an 

impermissibly suggestive out-of-court identification procedure. He also maintains 

the trial court should have found the State used a strike to remove a prospective 

juror in a racially discriminatory manner. Lastly, he argues he received 

ineffective assistance from trial counsel because counsel failed to argue the 

proper weight-of-the-evidence standard after making a motion for a new trial. 

I. Background Facts and Proceedings

On August 29, 2014, Perkins was charged by trial information with robbery 

in the first degree and willful jury causing serious injury. The State also provided 

notice that it intended to seek the habitual offender sentencing enhancement 

pursuant to Iowa Code sections 902.8 and 902.9(3) (2013). Perkins was 

charged along with a co-defendant, Matthew King. 

On December 12, 2014, Perkins filed a motion to have evidence excluded 

at trial.1 He alleged that a police detective had used an impermissibly suggestive 

identification procedure regarding an audio recording of Perkins speaking to King 

and that the use of the procedure violated his right to due process. Following a 

hearing on the matter, the district court filed a written ruling on February 12, 

2015. In the ruling, the court found, “The court . . . need not ultimately determine 

 

1 Perkins’s first trial commenced on November 17, 2014, and ultimately concluded in a 

mistrial. 
3

whether the procedure employed by Detective Ells was ‘unnecessarily or 

impermissibly suggestive’ because under the totality of the circumstances there 

is not ‘a very substantial likelihood of irreparable misidentification.’” The court 

then denied Perkins’s motion to exclude or suppress the evidence.

Perkins’s jury trial commenced on February 16, 2015. Voir dire was 

unreported, but a record was made regarding the State’s use of a strike against a 

minority juror. The following exchange occurred:

DEFENSE ATTORNEY: We’re in the process of selecting 

the jury in this matter. I think we’ve gotten down to, actually, the 

sixth strike, and the State, with their sixth strike, struck Juror 

No. 7 . . . who is of African-American heritage. And when I noticed 

that, I thought that it would be appropriate—or necessary, actually, 

to have a Batson v. Kentucky hearing with regard to [the State’s] 

rationale for that strike.

. . . .

PROSECUTOR: Your Honor, I would, first of all, note that 

[the juror] is one of three African-American jurors. The other two 

African-American jurors are—have more education, seem to be a 

little older than the [struck juror]. She is, I think, the youngest 

member of the jury panel. I think this case requires some more 

maturity in age. She was very hesitant in answering questions and 

seemed to have some difficulty following questions concerning 

legal concepts.

THE COURT: All right. Anything further, [defense attorney]?

DEFENSE ATTORNEY: Well, I didn’t find that any of her 

answers were objectionable. I think she was being thoughtful in 

trying to answer, you know, with deliberation and not make a 

mistake. I think she’s taking the matter seriously. I certainly don’t 

see anything to indicate that she would be unfair to either side if 

she were chosen to sit on this jury, so I would disagree with the 

prosecutor’s characterization. I don’t think age alone is a reason to 

be striking someone, is a sufficient reason to overcome the Batson

ruling, anyway, with regard to minority jurors.

PROSECUTOR: I disagree . . . that somehow the Batson

ruling assures any minority member who’s placed on the panel a 

position on the panel.

. . . .

THE COURT: The court has listened carefully to statements 

made by both parties in this matter and has brought to this analysis 

also the court’s own impressions of the prospective juror, and the 
4

court finds that the State has articulated a race-neutral explanation. 

Particularly, the court notes that the proposed juror . . . was quite 

hesitant in answering questions and appeared to be nervous and 

generally seemed to be concerned and somewhat nervous. 

At trial, the complaining witness, Gabriel, testified that on July 27, 2014, 

he was staying at a hotel in Davenport. That day, Gabriel took King, also known 

as “Twin,” to Wal-Mart. Gabriel helped King return some items, and then the

men entered the store together to purchase some items. After leaving Wal-Mart, 

Gabriel and King went to a local convenience store to see if someone could help 

Gabriel unlock his iPhone. Gabriel was unable to find someone to help him, and 

the men returned to the hotel. Gabriel testified he drank a few “tall” beers and 

then went to sleep at approximately 10:00 p.m. in room 130—a room rented by

some friends of his. Sometime later, he woke up and went outside to smoke a 

cigarette. When he went to grab his jacket out of his van, he found King asleep 

inside of it. At approximately the same time, Perkins—whom Gabriel knew as 

“T.T.”—walked up and asked for his “cousin Twin.” Gabriel showed Perkins 

where King was sleeping, and Perkins woke him up to come upstairs to sleep in 

his room—room 239. Gabriel testified that a third man was also with Perkins at 

the time, and the third man took Gabriel’s iPhone with them up to room 239 to 

see if he could get it unlocked. After he finished his cigarette, Gabriel went up to 

room 239 to retrieve his phone and then went back down to room 130. 

Sometime later, in the early hours of July 28th, Perkins and King came to 

room 130 looking for Gabriel. Perkins indicated that he wanted to go somewhere 

to shoot Gabriel’s rifle, and Gabriel agreed to take the men out somewhere to do 

so. Gabriel testified that after they got out to the field, he loaded the rifle and 
5

started to hand it to Perkins, when King stated that he wanted to shoot it first. 

After Gabriel handed King the gun, King turned and pointed the gun at Gabriel, 

demanding his vehicle keys and his iPhone. When Gabriel refused, King shot 

him in the leg. When Gabriel refused a second time, King shot him in the other 

leg. Gabriel attempted to wrestle the gun away from King, but Perkins pulled 

Gabriel away from King. Once Gabriel was on the ground, both men searched 

his pockets and the area around him, and ultimately took his van keys and a 

second cellular phone he was carrying. 

As they walked away, Gabriel called 911, but he did not speak to the 

operator for fear that Perkins and King would hear him. When the men reached 

the van and realized they did not have the iPhone, Perkins shouted at King to 

return to Gabriel and find it. King returned and searched Gabriel again, but 

Gabriel had hidden the phone in some tall grass near where he was laying. 

Once King gave up and fled in the van with Perkins, Gabriel used his iPhone to 

again call 911. The second time, he was able to request help. When the first 

deputy arrived at the scene, Gabriel told him two people had been involved in the 

shooting, and their names were Twin and T.T. 

In the days following the incident, Gabriel told officers that Twin had shot 

him, but that a second man was also involved. He referred to the second man as 

both T.T. and K.K. during his discussions with the police. When provided a photo 

array including King, Gabriel was able to immediately identify him. However, 

Gabriel was twice given photo arrays2including a picture of Perkins, and he was 

unable to positively identify him as the second man either time. Gabriel did point 

 

2 The photo arrays used two different pictures of Perkins.
6

to Perkins in the second array and told the detective that he was not “one 

hundred percent positive” that was the second man, but if it was not, they shared 

a lot of similar characteristics. Detective Ells instructed Gabriel not to circle the 

photograph if he was unsure, and Gabriel did not circle anyone. 

One of the men staying in room 130, Dale, testified at trial. He testified 

that Gabriel drank six to eight “tall” beers on the evening and night of July 27th. 

He stated Gabriel was also taking shots of whiskey that night and had passed out 

in a chair outside, so Dale and one of his brothers had carried Gabriel into their 

room to sleep it off. Dale was in room 130 with Gabriel when King and a second 

man, who Dale presumed was Perkins because he had seen them together 

earlier, came to the door to ask Gabriel for a ride. Gabriel left with the men. 

Detective Ells testified that Gabriel had mentioned room 239 to the police, 

so he went there on July 28th. Perkins answered the door and identified the 

room as his. When asked, Perkins denied knowing Gabriel or King. When 

Gabriel had described the second man to the detective, he stated the man was 

wearing a white tank top, which Perkins was wearing when he opened the door 

to his hotel room. 

Sometime before August 20, 2014, King was arrested for his part in the 

incident, and he was held in jail. A phone call between King and Perkins was 

recorded. During the conversation, Perkins indicated that he was trying to help 

King with his alibi.

On August 20th, Detective Ells took the audio to Gabriel’s home to see if 

he could identify the voice of Perkins as the second man. Detective Ells did not

identify either man to Gabriel and any identification made by the individuals was 
7

removed. Detective Ells asked, “You think you might be able to recognize his 

voice if I played a voice recording for you?” Gabriel indicated he might be able 

to, and then Detective Ells played the recording. Gabriel immediately indicated 

that Perkins’s voice was that of the second man. He noted that he had an 

unusual way of pronouncing or dragging out certain words, such as “boy.”

Following the voice identification by Gabriel, Perkins was charged as the second 

man in the incident.

Sometime before February 2015, King pled guilty to robbery in the first 

degree, and he was incarcerated for the crime when he testified at Perkins’s trial. 

King testified that he had been sleeping in Perkins’s hotel room before the 

incident and Perkins and Perkins’s girlfriend were still asleep when he left the 

room. King testified he and a guy he knew only as “Big Moe” saw Gabriel 

smoking a cigarette by his van and they asked him for a ride, which Gabriel 

agreed to give. King stated Big Moe stayed in the van while King went out in the 

field and shot Gabriel and King forced Big Moe to drive away with him once King

had the keys and a cell phone. Additionally, officers had matched shoeprints in 

the field with the bottoms of the shoes Perkins was wearing at the time of his 

arrest; King testified he also had a pair of that brand of shoes and that he had 

been wearing them at the time of the shooting.

On February 24, 2015, the jury found Perkins guilty of robbery in the first 

degree and willful injury causing serious injury. Perkins filed a “motion in arrest 

of judgment or for new trial,” alleging the verdicts are “contrary to and not 

supported by the evidence”. After hearing arguments from counsel, the district 

court denied the motion on April 3, 2015. Perkins was sentenced to a term of 
8

incarceration not to exceed twenty-five years for the robbery conviction and a 

term of incarceration not to exceed ten years for the willful-injury conviction. The 

two sentences were ordered to run consecutively.

Perkins appeals. 

II. Standard of Review

Each of the defendant’s claims implicates a constitutional right; we review 

constitutional challenges de novo and independently evaluate the totality of the 

circumstances shown by the record. See State v. Griffin, 564 N.W.2d 370, 372 

(Iowa 1997).

III. Discussion

A. Out-of-court Identification

Perkins maintains the district court should have granted his motion to 

suppress “all testimony concerning the alleged identification . . . following an 

impermissibly suggestive ‘voice’ identification procedure.”3 Perkins maintains 

that the failure to use any control recordings as well as the use of an audio that 

included the already-identified suspect, King, directed Gabriel to the desired 

conclusion. He maintains his right to due process was violated as a result.

In considering a challenge to an out-of-court identification, we use a twostep analysis. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993); see also State v. 

Walton, 424 N.W.2d 444, 446–47 (Iowa 1988) (“Although our prior cases have 

applied this balance to only visual identification procedures, we believe, and 

today hold, that the policies underlying the inquiry mandate its application to 

 

3 We note that Perkins did not raise a separate argument under the Iowa Constitution. 

Thus, we consider his claim under the accepted federal framework. See In re J.C., ___ 

N.W.2d ___, ___, 2016 WL 1273049, at *3–4 (Iowa 2016). 
9

voice identifications also.”). “First, we decide whether the procedure used for 

identification was impermissibly suggestive. If we find that it was, we must then 

decide whether ‘under the totality of [the] circumstances the suggestive 

procedure gave rise to a very substantial likelihood of irreparable 

misidentification.’” Taft, 506 N.W.2d at 762 (alteration in original) (citation 

omitted). The critical question under the second step is whether the identification 

was reliable. Id. In considering the question of reliability, we weigh five factors:

(1) the opportunity of the witness to [hear] the perpetrator at the 

time of the crime, (2) the witness’[s] degree of attention, (3) the 

accuracy of the witness’[s] 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. at 763.

The burden is on the defendant. See State v. Neal, 353 N.W.2d 83, 86 

(Iowa 1984) (“To succeed on this claim, defendant must establish that the 

procedures were suggestive and the irregularities gave rise to a substantial 

likelihood of irreparable misidentification in the totality of the circumstances.”). If 

Perkins fails to meet his burden, “the identification evidence and its shortcomings 

or credibility are for the jury to weigh.” Id. at 97. 

Here, the district court found that even if the procedure used by Detective 

Ells was unnecessarily or impermissibly suggestive, Perkins could not meet his 

burden because “under the totality of the circumstances there is not ‘a very 

substantial likelihood of irreparable misidentification.’” 

“It is generally conceded that one-on-one confrontations or ‘show ups’

between an accused and an eyewitness are inherently suggestive.” State v. 
10

Jackson, 387 N.W.2d 623, 631 (Iowa Ct. App. 1986); but see State v. Walton, 

424 N.W.2d 447–48 (Iowa 1988) (holding that a dispatcher’s identification of a 

voice as matching an earlier caller’s, where only one voice was provided and it 

was less than an hour after the initial call, was not an unnecessarily suggestive 

procedure). Here, there were two voices on the recording played by Detective 

Ells for Gabriel’s identification, but one of the voices was of the already-identified 

co-defendant, who was in police custody at the time. As a one-on-one 

identification, the procedure was inherently suggestive. 

In determining whether the identification was reliable in spite of the 

procedure, we consider the five factors listed above. Gabriel had plenty of 

opportunity to hear the perpetrator; he drove the two men to the field, engaged in 

a scuffle with the men during the incident, and testified about the second man, 

Perkins, encouraging King to return to the field to find the iPhone. Additionally, 

although Gabriel had been drinking alcohol and may have passed out due to 

intoxication sometime before the incident occurred,

4

as the district court stated, 

“[h]e was critically concerned and involved in the events taking place.” In the call 

to the 911 operator, which took place immediately after the two perpetrators left 

the field, Gabriel can be heard speaking coherently as he explains his need for 

assistance. It is unclear from the record whether Gabriel made a prior 

description of the perpetrator’s voice, but when he identified Perkins, Gabriel

explained that he recognized the voice because of Perkins’s word choices and 

the way he elongated certain words and syllables. Gabriel identified the voice as 

 

4 Gabriel’s and Dale’s testimony differ on whether or not Gabriel passed out due to 

intoxication during the evening of July 27.
11

belonging to the second perpetrator almost immediately after Detective Ells 

began playing the recording, and he sounds confident in his assertion—not 

hesitating or second-guessing his identification. Detective Ells played the audio 

for Gabriel on August 20, 2014—a little over three weeks after the incident 

occurred. 

Here, we are persuaded there was not a substantial likelihood of 

irreparable misidentification. Thus, Perkins’s right to due process was not 

violated when the district court allowed the jury to weigh the identification 

evidence and its shortcomings or credibility. See Neal, 353 N.W.2d at 97. 

B. Batson challenge

Perkins maintains his right to equal protection was violated when the 

district court found that the prosecutor’s use of a peremptory strike to remove a 

minority juror was not purposeful discrimination. 

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the United States Supreme 

Court held that the Equal Protection Clause of the Fourteenth Amendment 

prevents a prosecutor from using peremptory strikes to challenge potential jurors 

“solely on account of their race.” The defendant bears the burden to establish a

prime facie case of purposeful discrimination in selection of the jury panel. Id. at 

96; see also Griffin, 564 N.W.2d at 375. To establish the prima facie case, the 

defendant must show (1) he is a member of a cognizable racial group, (2) the 

prosecutor used peremptory challenges to remove a member of a cognizable 

racial group from the jury; and (3) the “facts and any other relevant 

circumstances raise an inference that the prosecutor used the strike to exclude” 

the juror on the account of the juror’s race. Batson, 476 U.S. at 96; see also 
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Powers v. Ohio, 499 U.S. 400, 416 (1991) (holding the defendant and the 

prospective juror do not have to be the same race to qualify for a Batson

challenge). “‘In determining whether a defendant has established the requisite 

showing of purposeful discrimination, the court should consider all relevant 

circumstances including, but not limited to, a pattern of strikes against [minority]

jurors, as well as the prosecutor’s questions and statements during voir dire.’” 

Griffin, 564 N.W.2d at 375 (citation omitted). 

Once the prima facie case has been made, “an inference arises that the 

government violated the defendant’s equal protection rights and ‘the State has 

the burden of articulating a clear and reasonably specific’ race-neutral 

explanation for the peremptory strike.” Griffin, 564 N.W.2d at 375 (citation 

omitted). The trial court must then make a determination whether purposeful 

discrimination occurred. Id. “Because the trial court’s determination of whether 

purposeful discrimination occurred ‘will largely turn on the evaluation of 

credibility, a reviewing court ordinarily should give those findings great 

deference.’” Id. (citation omitted).

Here, the defendant is a member of a minority racial group and the 

prosecutor used a peremptory strike against a minority juror. It is unclear from 

the record before us whether the relevant circumstances raise an inference that 

the use of the strike was on account of the juror’s race. Because voir dire was 

unreported, we are unable to “consider all relevant circumstances including, but 

not limited to, a pattern of strikes against [minority] jurors, as well as the 

prosecutor’s questions and statements during voir dire.’” See id. We do note 
13

that it appears at least two other minority jurors were empaneled.5 From this, it 

seems there was no “pattern” of striking minority jurors. Additionally, striking one 

of three minority jurors is not sufficient, on its own, to raise the necessary 

inference that the prosecutor used the strike for racial reasons alone. See State 

v. Knox, 464 N.W.2d 445, 448 (Iowa 1990) (holding that the State’s exclusion of 

the sole minority juror was not enough to raise the inference). However, because 

the district court treated Perkins’s challenge as meeting the prima facie 

requirement, we will do the same. 

Even assuming Perkins established his prima facie case, the State 

established a neutral, reasonable basis for challenging the juror. The prosecutor 

explained that the struck juror seemed hesitant to participate and appeared to be 

having some difficulty with the legal concepts. The court clearly found the 

prosecutor’s reason to be credible, as the court echoed the sentiments, stating, 

“[T]he Court notes that the proposed juror . . . was quite hesitant in answering 

questions and appeared to be nervous and generally seemed to be concerned 

and somewhat nervous.” Here, relying on the district court’s credibility 

determination, see Griffin, 564 N.W.2d at 375, we find that purposeful 

discrimination did not occur and Perkins’s right to equal protection was not 

violated.

 

5 As part of the record made, the prosecutor stated to the court, “Your Honor, I would, 

first of all, note that [the juror] is one of three African-American jurors. The other two 

African-American jurors are—have more education, seem to be a little older than the 

[struck juror].” 
14

C. Ineffective Assistance

Perkins maintains he received ineffective assistance from trial counsel 

because counsel “failed to properly argue the motion for new trial.” He maintains 

counsel incorrectly argued the sufficiency of evidence standard rather than the 

correct weight-of-the-evidence standard and that the district court “likely would 

have ruled in Perkins’s favor” if counsel urged the correct standard. 

A defendant may raise an ineffective-assistance claim on direct appeal if 

he has reasonable grounds to believe the record is adequate for us to address 

the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). 

To prevail on a claim of ineffective assistance of counsel, Perkins must prove by 

a preponderance of the evidence (1) the attorney failed to perform an essential 

duty and (2) prejudice resulted from the failure. See State v. Rodriguez, 804 

N.W.2d 844, 848 (Iowa 2011).

“Only in rare cases will the trial record alone be sufficient to resolve the 

claim on direct appeal.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). We do 

not believe this is one of those rare cases. We prefer to preserve the 

defendant’s claim for possible postconviction-relief proceedings. See State v. 

Brubaker, 805 N.W.2d 164, 170 (Iowa 2011) (“[I]neffective-assistance-of-counsel 

claims are normally considered in postconviction relief proceedings. A primary 

reason for doing so is to ensure development of an adequate record to allow the 

attorney charged to respond to the defendant’s claims.”). We preserve Perkins’s

claim. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (“If . . . the court 

determines the claim cannot be addressed on appeal, the court must preserve it 
15

for a postconviction-relief proceeding, regardless of the court’s view of the 

potential viability of the claim.”). 

IV. Conclusion

Perkins’s right to due process was not violated by the admission of the 

audio recording used by the complaining witness to identify him. Additionally, 

Perkins’s right to equal protection was not violated by the prosecutor’s use of a 

peremptory strike against a minority juror. We do not reach the merits of 

Perkins’s claim that trial counsel provided ineffective assistance, so we preserve 

the claim for possible future proceedings. We affirm.

AFFIRMED.