Opinion
No. 4-441 / 03-1397.
August 11, 2004.
Appeal from the Iowa District Court for Hamilton County, David R. Danilson, Judge.
Applicant appeals the denial of his application for postconviction relief. AFFIRMED.
Jesse Macro, Jr., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, and Patrick Chambers, County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Lon Bennett appeals the denial of his postconviction relief application. Because we find appellate counsel was not ineffective, we affirm the denial of relief.
Background Facts.
Bennett was convicted of attempted murder and willful injury of his then-estranged wife, Sonya Harms (Bennett), and sentenced to a term of imprisonment not to exceed twenty-five years and ten years, respectively, to be served consecutively. Bennett appealed the convictions on the sole issue of whether the search of his parents' home offended constitutional protections. This court upheld the convictions in State v. Bennett, No. 00-0042 (Iowa Ct. App. Jan. 10, 2001). On April 4, 2002, Bennett filed an application for postconviction relief alleging that appellate counsel was ineffective on numerous grounds, including failing to raise on direct appeal that the district court erred 1) in allowing the 911 dispatcher to testify to hearsay statements, 2) in denying his motion for mistrial stemming from the aborted testimony of a fellow cell mate, and 3) in allowing DNA evidence where there was allegedly a lack of credentials of the State's expert witness and a break in the chain of custody. Trial was held on Bennett's application on May 21, 2003, and the court subsequently denied Bennett's request for relief finding no ineffective assistance of appellate counsel. Bennett appeals.
Scope of Review.
Claims of ineffective assistance of counsel are constitutional challenges, and we conduct a de novo review of the district court ruling, assessing its decision in light of the totality of the circumstances. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Discussion.
Bennett argues that appellate counsel failed to raise all meritorious issues on appeal. The State contends that the proffered errors were not meritorious and therefore appellate counsel did not breach an essential duty.
To establish ineffective assistance of appellate counsel, the defendant must overcome a strong presumption of his counsel's competence. State v. Nucaro, 614 N.W.2d 856, 858 (Iowa Ct.App. 2000). He has the burden of proving his attorney's performance fell below "an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. State v. Carillo, 597 N.W.2d 497, 500 (Iowa 1999).
Bennett briefly makes a statement that "[t]he admission of the statements violated the appellants [sic] right to cross examine and confront his accusers." However, Bennett does not argue nor cite authority on this point. Therefore, it is deemed waived. Iowa R. App. P. 6.14( c).
First, Bennett argues that appellate counsel failed to argue on direct appeal that the testimony of Christine Faber, the 911 dispatcher, regarding statements made during the 911 call were hearsay within hearsay and thus inadmissible. The State contends that the radio log written by Faber, tape recording and transcript of the call were admissible under exceptions to the hearsay rule.
In its ruling on postconviction, the district court found:
The hearsay objection was also properly overruled as the evidence was a recording of a 911 call. Such a call would likely fall within the present sense impression or excited utterance exceptions to the hearsay rule. Rule 5.803, Iowa Rules of Evidence. However, if these exceptions do not apply, clearly the evidence presented established that 911 recording as a public record, an exception to the hearsay rule (and perhaps as a business record). Rule 5.803(8). It is a "record" in any form (tape recording) of a public office or agency which recordings are regularly conducted and regularly recorded. Thus, the hearsay objection was properly overruled.
Bennett argues the 911 call is not admissible as a business or public record because it is an investigative report not allowed as a hearsay exception. However, Bennett fails to cite any authority for this proposition. See Iowa R. App. P. 6.14( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."). 911 emergency calls have been admitted into evidence and we find no reason to hold otherwise. See generally State v. Augustine, 458 N.W.2d 859, 860-61 (Iowa Ct.App. 1990) (allowing the admission of a 911 tape into evidence).
Bennett further argues the person who called 911, the convenience store manager, Rhonda Rich, was relaying statements of other persons, including the victim, Sonya Harms, thus adding other layers of hearsay. Where a hearsay statement includes a further hearsay statement, all statements must conform to a hearsay exception for the statement to be admissible. Iowa R. Evid. 5.805; see also State v. Williams, 427 N.W.2d 469 (Iowa 1988). Consequently, in order for the 911 call to be admissible, a hearsay exception must also apply to the statements made by the declarant to Rich, the caller, to dispatcher Faber. See State v. Puffinbarger , 540 N.W.2d 452, 455 (Iowa Ct.App. 1995). Iowa Rule of Evidence 5.803(2) excepts from the hearsay rule "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." This exception applies generally to statements made under the influence of the excitement of an incident rather than on reflection, fabrication, or deliberation. State v. Mateer, 383 N.W.2d 533, 535 (Iowa 1986); State v. Watts, 441 N.W.2d 395, 398 (Iowa Ct.App. 1989).
Rhonda Rich called the police station after being told by a man who entered the convenience store that an employee had been attacked behind the store. While on the telephone with the dispatcher requesting an ambulance, Rich informed dispatcher Faber that Harms "keeps saying the name Lon Bennett over and over again." Because Harms had just been stabbed repeatedly in the chest, face, and neck, we agree with the postconviction court that her statements, as conveyed to Rich, qualified as excited utterances.
Because the underlying statements as well as the 911 call itself falls under hearsay exceptions, the radio log, tape recording, and transcript of the call were all properly admitted. Therefore, appellate counsel did not breach an essential duty by not raising the issue on appeal.
Even assuming the underlying statement of Harms did not fall within the excited utterance exception to the hearsay rule, its admission was not prejudicial. See State v. Whitfield, 315 N.W.2d 753, 755 (Iowa 1982) (holding that when the same evidence is already in the record, the hearsay is not prejudicial). When asked about events after the attack, Harms testified she entered the store and said "Lon Bennett. Lon Bennett. Lon Bennett." When the police arrived she told them Lon Bennett was her attacker and gave them his parents' address. In light of Harms's testimony at trial, any error in admitting the 911 call into evidence was not prejudicial as it was cumulative in nature. See Augustine, 458 N.W.2d at 861.
2. Motion for mistrial.
Next, Bennett contends that appellate counsel failed to raise on direct appeal that the court erred in denying his motion for mistrial after the court struck the aborted testimony of Reginald Coen. The State argues that the court stopped the testimony before Coen had the chance to inject anything improper into the record and therefore the jury did not know what the substance of the testimony was going to be.
The State called Coen as a rebuttal witness at trial and Coen testified as follows,
Q. And, Mr. Coen, did you happen to be serving some jail time with the Defendant Lon Bennett in July of 1999?
A. Yes, I was.
. . .
Q. Okay. And sometime in July did you have an occasion to have a particular conversation with Mr. Bennett that sticks out in your memory?
A. A few different times.
Q. Okay. Well, was there one particular conversation that you recall with —
A. Yeah. After he had met with his attorney one time he had come back in —
Bennett's attorney objected and moved to strike the testimony urging a denial of Bennett's right to a fair trial and due process of law and effective assistance of trial counsel. Bennett had the opportunity to voir dire Coen outside the presence of the jury, after which the district court sustained the motion to strike finding the proffered testimony's probative value would be far outweighed by its prejudicial potential. Bennett then moved for a mistrial which the court subsequently overruled, citing three reasons: (1) the statements the defense objected to were statements made outside the presence of the jury during the voir dire, (2) the jury would be admonished to ignore Coen's testimony, and (3) there was no reason to believe the jury would not follow the admonition.
Trial counsel's objection claiming ineffective assistance of counsel was based on his concern that if Coen were allowed to testify as to the alleged conversation between Bennett and his attorney, then trial counsel would have to withdraw and take the stand as a witness.
In denying Bennett's claim of ineffective assistance of appellate counsel for failing to raise these alleged errors on direct appeal, the postconviction court stated that Coen "had not testified to any facts prejudicial to the Defendant before Coen was prevented from giving further testimony. There was not a clue given to the jury as to the subject or nature of what this witness was going to testify about." We agree with both courts' reasoning and analysis. As such, appellate counsel did not breach an essential duty by not addressing the motion for mistrial on direct appeal nor has Bennett proved he was prejudiced by such failure.
3. DNA evidence.
Finally, Bennett argues that appellate counsel failed to challenge the admission of DNA evidence to allege a break in the chain of custody and lack of expertise of the State's DNA witness.
Bennett also alleges a lack of proper foundation of DNA evidence, however this bare assertion does not indicate what was missing from the foundation. Because of Bennett's failure to argue this point, we deem it waived. See Iowa R. App. P. 6.14( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").
The Iowa Supreme Court has recently stated the following concerning the chain of custody,
When the State seeks to have physical evidence taken from the crime scene admitted at trial, it must offer sufficient proof "that the exhibits offered into evidence were the same as those taken, and their contents were in the same condition when analyzed and introduced as when taken." State v. Perry, 246 Iowa 861, 869-70, 69 N.W.2d 412, 417 (1955). This foundational requirement is generally met by showing the continuous custody of the exhibit was such as to render it improbable that anyone tampered with the original item or substituted a different item. State v. Gibb, 303 N.W.2d 673, 681 (Iowa 1981); State v. Bakker, 262 N.W.2d 538, 542-43 (Iowa 1978). The sufficiency of such a showing depends in some part on the nature of the exhibit, a more stringent chain of custody being necessary when the evidence is of a type more susceptible to alteration or substitution. Bakker, 262 N.W.2d at 543. The prosecution is assisted in establishing the required foundation by a presumption that "State agents would not tamper with the evidence." Gibb, 303 N.W.2d at 681.
"Admission of evidence over a chain-of-custody objection is a matter within [the] trial court's discretion." Id. Once the court has determined an adequate foundation has been laid, any doubt that the exhibit is what it purports to be goes to the weight of the evidence. Id. at 682.
State v. Piper, 663 N.W.2d 894, 907-08 (Iowa 2003). The record indicates that Special Agent Jack Seward, Jr. of the Iowa Division of Criminal Investigation (DCI) obtained the buccal swab from Bennett and gave the swab to Captain Gene Timmons of the Webster City Police Department. Captain Timmons testified that the swab was placed in the police department's locked property room. Agent Jeff Jacobson of DCI testified he obtained the buccal swab from the victim at the hospital and then picked up Bennett's buccal swab from the Webster City Police Department, delivering both swabs to the DCI Laboratory for examination. Marie Sides, DCI, also testified that she took precautions while testing the swabs to ensure no contamination was made. Sides further testified she did not find any evidence of contamination during the examination process. Through the above postconviction testimony, we agree the State sufficiently established the chain of custody of the buccal swabs so as to find Bennett's assertion without merit.
We also agree with the postconviction court that the trial court did not abuse its discretion in finding Marie Sides, the State's DNA expert witness, qualified to testify regarding DNA and its statistical matches, with proper foundation laid for such testimony. Moreover, any asserted deficiencies in Sides's qualifications and the statistical foundation were considered by the jury in determining what weight to attribute to the expert testimony. See Hunter v. Bd. of Trustees at Broadlawns Med. Ctr., 481 N.W.2d 510, 520 (Iowa 1992); State v. Brown, 470 N.W.2d 30, 33 (Iowa 1991). Therefore, appellate counsel did not breach an essential duty in failing to raise this claim on direct appeal
Even if we were to find the DNA evidence was improperly admitted, the evidence was merely cumulative and did not injuriously affect Bennett's rights as the victim testified that Bennett, her estranged husband, was the perpetrator. See State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998).
In sum, because appellate counsel did not breach an essential duty by failing to raise challenges regarding hearsay testimony, a motion for mistrial, and DNA evidence on direct appeal, we affirm the postconviction court's ruling denying relief.