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IN THE COURT OF APPEALS OF IOWA No. 6-216 / 05-0204 Filed July 12, 2006

STATE OF IOWA, Plaintiff-Appellee, vs. LUCAS ALLEN MCALISTER, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, John G. Linn, Judge.

Lucas McAlister appeals from his conviction and sentence for first-degree robbery. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Tyron Rogers, Assistant County Attorney, for appellee.

Considered by Zimmer, P.J., and Miller and Hecht, JJ.

2 HECHT, J. Lucas McAlister appeals from his conviction and sentence for first-degree robbery. We affirm. I. Background Facts and Proceedings. On the evening of February 9, 2004, Darren Taeger was stabbed while riding in a vehicle with Lucas McAlister and Clayton McCormick. McAlister had met McCormick while both were serving in the Iowa National Guard and had agreed to introduce McCormick to Taeger, after McCormick expressed an interest in purchasing a large amount of marijuana. McAlister then called Taeger to set up the details of the drug buy. McAlister and McCormick borrowed the vehicle from a friend in order to facilitate the purchase, 1 and drove around the streets of Burlington in an effort to locate Taeger, who was on foot. The pair eventually located Taeger, who showed them the marijuana in his possession. McAlister informed Taeger that they needed to drive to a house outside town where another friend reportedly had the cash for the buy. When they arrived there, McAlister approached the house but quickly returned to the vehicle, reporting that the purported buyer was at a different house in Burlington. At this point, Taeger was sitting in the front-passenger seat, McCormick was sitting directly behind him in the back seat, and McAlister was the driver. According to Taeger, when the vehicle came to a stop sign at the intersection of Spring Street and North Fifth in Burlington, McAlister suddenly swung his right arm across and stabbed Taeger in the chest. As Taeger and McAlister struggled
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The owner of the vehicle, Derrick Hirsbrunner, testified he lent the vehicle to McAlister in exchange for a half ounce of the marijuana McAlister and McCormick planned on procuring.

3 with the knife, McAlister ordered McCormick to grab Taeger. As McCormick attempted to restrain Taeger from behind, Taeger eventually let go of the knife and was able to exit the vehicle. Taeger was later found lying in the middle of the street by a resident of the neighborhood and was treated at a local hospital for the stab wound which entered the lung and severed an artery. While officers later recovered the marijuana from the scene, Taeger was unable to recall how he managed to retain possession of the marijuana. 2 McAlister and McCormick were soon arrested en route to a friend's home in Toledo, Ohio. 3 In a February 10 videotaped interview, McAlister stated that Taeger acted strangely after they picked him up; that Taeger eventually drew a knife; and that McAlister stabbed Taeger following a struggle. McAlister informed the investigator that he offered to drive the wounded Taeger to a hospital, but Taeger chose instead to throw something out of the window and exit the vehicle. When the investigator accused McAlister of intending to rob Taeger, McAlister quickly changed his story, admitting that he had planned the transaction with Taeger and had offered McCormick half of the marijuana McAlister planned to steal in exchange for his assistance. McAlister and McCormick were then

charged with first-degree robbery resulting in serious bodily injury. McAlister was interviewed a second time by investigators on June 11, this time while in the presence of his attorney. McAlister stated that while he was on
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A blood test performed on Taeger while he was being treated for the stab wound indicated that Taeger had cocaine in his blood, although Taeger did not recall using cocaine on the evening in question. For the two and a half months that followed, McAlister and McCormick shared a jail cell, where according to McCormick, the two agreed to tell investigators that McAlister had stabbed Taeger in self-defense.

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4 National Guard duty he had met with several members of an area drug task force about becoming an informant. 4 According to McAlister, McCormick had

subsequently approached him asking whether McAlister could help him set up a large marijuana buy. McAlister stated that he had agreed to contact Taeger on McCormick's behalf in an effort to develop contacts for the drug task force. While McAlister admitted that he had brought along a knife for protection, he claimed he had given the knife to McCormick. McAlister stated that while he was driving, he felt something brush his right arm. When he looked to the right, he saw his knife in Taeger's chest, and had inferred that McCormick had stabbed Taeger from the back seat. McAlister admitted that after the stabbing, he had driven to his mother's home and informed his brother that he had stabbed someone in self-defense. McAlister posited, however, that his self-defense claim had been procured through McCormick's persistent threats of physical violence against both McAlister and his family. 5 McAlister also claimed that while he and McCormick shared a jail cell, McCormick had monitored his phone calls and mail to ensure McAlister's continued adherence to the self-defense story.

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Deputy Dean Salsberry, a member of the drug task force, confirmed that McAlister had signed a written informant agreement and had listed Taeger as a potential source of drugs. Salsberry, however, had instructed McAlister that he was not yet authorized to set up any drug buys without task force involvement and that he would be subject to prosecution for any unauthorized deals. McAlister's father testified that McAlister had called from jail requesting him to place money in McCormick's jail account. His mother testified that when McAlister had arrived at her home shortly after the stabbing, he told her to call police, but later retracted that request when he saw McCormick waiting outside.

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5 At trial, both Taeger and McCormick 6 testified on behalf of the State, claiming McAlister had set up the drug buy and had stabbed Taeger in an effort to facilitate the theft. Derrick Hirsbrunner, the friend who had loaned his vehicle to McAlister, testified that a few days before the stabbing, McAlister had mentioned stealing drugs from someone. During that conversation, McAlister had allegedly made a stabbing motion with his arm, but at that time Hirsbrunner believed McAlister was joking. Detective Swore, who had conducted the two interviews with McAlister, testified to multiple inconsistencies in McAlister's versions of the events. Swore also testified that he did not believe McCormick could have stabbed Taeger because the location, angle and depth of the stab wound inflicted was inconsistent with McCormick's backseat position. Swore

also noted the numerous similarities between Taeger and McCormick's versions of the incident. McAlister was ultimately convicted of first-degree robbery and was sentenced to twenty-five years in prison and a $7,500 fine. On appeal, McAlister asserts several claims of ineffective assistance of counsel, including counsel's failure to (1) assert a detailed motion for judgment of acquittal, (2) move to suppress his interview statements, (3) request a limiting instruction in connection with his videotaped interview, (4) object to certain questions posed to Taeger, and (5) request inconsistent statement instructions concerning the testimony of Taeger and Hirsbrunner. McAlister also contends the district court erred in

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We note that McCormick's testimony was secured as part of a plea agreement to a lesser charge. We also note that Taeger's testimony was secured as a result of an immunity guarantee.

6 refusing to include a specific reference to Taeger in jury instruction 10a regarding prior inconsistent statements. II. Scope and Standard of Review. We review claims asserting trial counsel's ineffective assistance de novo. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Claims of ineffective

assistance of counsel raised on direct appeal are generally preserved for postconviction relief proceedings so that a sufficient record can be developed, and so attorneys whose ineffectiveness is alleged may have an opportunity to defend their actions. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). We note claims of ineffective assistance of counsel need not be raised on direct appeal to preserve them for postconviction proceedings. Iowa Code

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