IN THE COURT OF APPEALS OF IOWA

No. 18-1144

Filed May 1, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ANTOINE J. ALLEN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Henry W. Latham, 

Judge.

A defendant appeals his conviction for first-degree robbery. AFFIRMED.

Mark C. Smith, State Appellate Defender, (until withdrawal) and Maria 

Ruhtenberg, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

Antoine Allen appeals his conviction for first-degree robbery. He claims trial 

counsel was ineffective for failing to object to an in-court identification and failing 

to request an instruction on eyewitness identification. We affirm the conviction and 

preserve the ineffective-assistance claims for possible postconviction relief 

proceedings.

I. Background Facts & Proceedings

On May 26, 2017, just after 2:00 a.m., a man robbed a Casey’s General 

Store, holding a tool as a weapon to an employee’s back while the other two 

employees were in the kitchen. He took the employee’s cell phone and wallet 

case, had her open the register and took the money, and grabbed several cartons 

of Newport cigarettes. The robber dropped some of the cartons as he ran out. 

The robbery was caught on the surveillance camera, and the employees in the 

kitchen saw the robber before he left. The video showed a male wearing a twotone grey hooded sweatshirt with a logo on the lower sleeve, a green shirt 

underneath, black sunglasses, two-tone gloves with a logo, jeans, and white tennis 

shoes.

Late that morning, the cell phone and wallet case were found on a sidewalk 

several blocks away. On May 30, surveillance video was obtained from a different 

gas station from the night of May 26, showing the same man that robbed the 

Casey’s and showing a vehicle missing a right hubcap driving by immediately after 

he left. Police were able to match the vehicle missing the hubcap to Allen. A 

search warrant was obtained on May 31, and officers found a sweatshirt, t-shirt, 

and gloves matching those worn during the robbery in Allen’s bedroom, and 
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matching shoes on the porch. Part of a Newport cigarettes carton and an open 

pack of cigarettes were also found in the room. Sunglasses like those worn during 

the robbery were found in the vehicle Allen uses. 

Allen was interviewed by police and, after some denials, eventually admitted 

he owned the clothing and was the person on the video. During the interview, 

Allen stated he carried a tool, not a gun, during the robbery. He stated he took the 

money and some Newport cigarettes and ran out of the store. Allen mentioned 

dropping some of the cigarettes on the way out of the store. Allen’s daughter 

identified him on still shots from the surveillance video.

Allen filed, and the court denied, two motions to suppress—one relating to 

all evidence found based on the search warrant and the other relating to all 

statements made during the interview. A jury trial was held on May 14 and 15, 

2018. The State offered testimony from the three Casey’s employees and three 

officers who worked on the investigation. The Casey’s surveillance video from four 

separate cameras was offered into evidence. One of the employee witnesses 

specifically identified Allen as the perpetrator during testimony. The officer who 

interviewed Allen testified regarding Allen’s admissions and the clothing found in 

Allen’s bedroom. The jury found Allen guilty of first-degree robbery. 

Allen appeals.

II. Standard of Review

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

State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective 

assistance of counsel, a defendant must show (1) the attorney failed to perform an 

essential duty and (2) prejudice. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 
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2009). “[A] defendant has the burden to prove by a preponderance of the evidence 

that counsel was ineffective.” State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). 

III. Analysis

Allen first claims his trial counsel failed an essential duty by failing to object 

to a witness’s in-court identification, explaining at length why an in-court 

identification can be impermissibly suggestive and inherently prejudicial. Allen 

also claims counsel was ineffective for failing to request an instruction on 

eyewitness identification.

We presume counsel’s performance falls within a range of reasonable 

professional assistance. State v. Ondayog, 722 N.W.2d 778, 787 (Iowa 2006). In 

determining whether an attorney failed in performance of an essential duty, we 

avoid second-guessing reasonable trial strategy. Fullenwider v. State, 674 N.W.2d 

73, 75 (Iowa 2004). “[P]ostconviction proceedings are often necessary to discern 

the difference between improvident trial strategy and ineffective assistance.”

Ondayog, 722 N.W.2d at 786.

The record here is incomplete as to why counsel did not object to the incourt identification and did not request a jury instruction on eyewitness 

identification. We note counsel cross-examined the witness and was able to 

identify inconsistencies between the testimony and the visual evidence for the jury. 

Allen bears the burden to show his attorney performed below professional norms 

regarding in-court eyewitness identification and related jury instruction and to 

establish sufficient prejudice to undermine our confidence in the outcome. See 

Strickland v. Washington, 466 U.S. 668, 694 (1984). On this record, we decline to 

adjudicate defense counsel’s competency. 
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We affirm Allen’s conviction and preserve his ineffective-assistance-ofcounsel claims for possible postconviction relief proceedings.

AFFIRMED.