Opinion
No. 4-490 / 03-1340.
Filed August 11, 2004.
Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, Judge.
Defendant Floyd Carrere appeals his conviction and sentence, following a jury trial, for assault on a corrections officer, in violation of Iowa Code sections 708.1 and 708.3A(4) (2003). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Steve Johnson, County Attorney, and Michael Jacobsen, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Defendant-appellant Floyd Carrere appeals his conviction and sentence, following a jury trial, for assault on a corrections officer, in violation of Iowa Code sections 708.1 and 708.3A(4) (2003). On appeal defendant claims he received ineffective assistance of trial counsel. We affirm but preserve two of defendant's claims for possible postconviction proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS
On February 19, 2003 defendant, an inmate at the Newton Correctional Facility, was in a room there waiting for an administrative law judge to issue a decision. According to testimony by Sergeant Darren Skeries, defendant began standing on his stool. Skeries told him to get off of the stool, and defendant responded by stating he wished to return to his cell. Ultimately, Skeries and Officer Richard Conrad escorted defendant back to his cell. Defendant was wearing leg irons and a spit mask, and his hands were cuffed behind his back. Upon reaching defendant's cell, Skeries removed his leg irons at the door of the cell. Defendant then went into his cell, and the cell door was shut behind him. Skeries testified he asked defendant to put his hands out the food port so his handcuffs could be removed. Skeries testified defendant did not put his hands out the food port, so Skeries asked him to do it again. Skeries then took one handcuff off of defendant's right hand and tried to remove the handcuff from defendant's left hand At that point, Skeries testified, defendant pulled his spit mask off, knelt down, turned, and spit through the food port, hitting Skeries on his left wrist. Skeries further testified that as he continued to try to take the handcuff off defendant's left arm, defendant tried to punch him through the food port, striking him in the top portion of his right thigh. According to Skeries, as he took the handcuff off defendant's left hand and was stepping back, defendant spit again, striking Skeries in the sleeve and hand
Defendant testified that once he entered his cell, Skeries reached in through the food port and pulled his hands through it to remove the handcuffs. Defendant stated this forced him to fall to his knees. He testified this made him angry, so he pulled his mask down, turned around, and stated, "What the hell are you doing?", which he testified may have caused some spit to fly out of his mouth and onto Skeries. Defendant stated he did not intentionally spit at Skeries and that he never punched Skeries through the food port.
Prior to trial defense counsel made a motion in limine seeking to exclude defendant's prior bad acts and references to his spit mask, among other things. The court sustained defense counsel's motion to exclude defendant's prior bad acts until it heard an offer of proof outside the jury's presence and ruled on the admissibility of a particular act at trial. The court did not rule on the question of whether references to the spit mask at trial were admissible. During trial there were several references to defendant's spit mask by Skeries, Conrad, and by the prosecutor on cross-examination of defendant and during closing argument. Defense counsel made no objections. Also during trial defense counsel elicited from defendant on direct examination the fact that defendant had been before the administrative judge because of a disciplinary report on another matter. Following trial, the jury found defendant guilty of assault on a corrections officer.
Defendant argues on appeal his counsel was ineffective in failing to preserve error properly, or to object and move for mistrial based upon the spit mask evidence and defendant's testimony regarding his past disciplinary matter. Defendant further argues counsel was ineffective in failing to have additional witnesses testify on defendant's behalf. Defendant also argues counsel was ineffective for failing to object to prosecutorial misconduct.
II. SCOPE OF REVIEW
We review ineffective assistance of counsel claims de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To establish a claim of ineffective assistance of counsel, defendant must demonstrate, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from that failure. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). We may dispose of the claim if defendant fails to demonstrate either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). To sustain his burden of proof with respect to the duty element, defendant must overcome the strong presumption that counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. Smothers, 590 N.W.2d at 722. Miscalculated trial strategies and mere mistakes in judgment generally do not rise to the level of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). Thus, claims of ineffective assistance involving tactical or strategic decisions of counsel must be examined in light of all the circumstances to determine whether counsel's actions were a product of strategy or inattention to the responsibilities of an attorney guaranteed defendant under the Sixth Amendment. Id.
The trial record is often inadequate for us to resolve claims of ineffective assistance of trial counsel raised on direct appeal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Consequently, we often preserve defendant's ineffective assistance of counsel claims for postconviction relief proceedings to allow for the development of a record on trial counsel's performance. Id. III. ANALYSIS Failure to object to spit mask.
Defendant claims evidence indicating he was wearing a spit mask at the time of the incident in question was inadmissible because it was not relevant and because it was substantially more prejudicial than probative. Defendant argues defense counsel was ineffective in failing to object to the evidence and in eliciting it from Conrad during his testimony.
We conclude the spit mask evidence was admissible. The State sought to prove defendant intentionally spat on Skeries. Defendant's theory of defense was that spit may have accidentally flown from his mouth while he was talking, but that he had not spat intentionally. The fact that defendant had removed his spit mask just prior to spitting at Skeries was essential to the State's case and integral to the context of the crime charged. See United States v. LeCompte, 108 F.3d 948, 952 (8th Cir. 1997). We conclude the evidence was admissible and decline to preserve defendant's ineffective-assistance-of-counsel claim on this point for possible postconviction proceedings.
Introduction of prior disciplinary proceeding evidence.
Defendant also claims his counsel was ineffective for allowing him to testify that he was involved in a prior disciplinary matter. During direct examination defense counsel asked defendant the reason he was before an administrative law judge, and defendant answered that he had a "disciplinary report for something else." We are unable on this record to make a determination as to the merits of this ineffective-assistance-of-counsel claim, so we preserve it for possible postconviction proceedings.
Failure to call additional witnesses.
Defendant additionally claims counsel was ineffective for failing to call witnesses who he claims were subpoenaed and waiting in the courthouse to testify. We are unable on this record to make a determination as to the merits of this ineffective-assistance-of-counsel claim, so we preserve it for possible postconviction proceedings.
Failure to object to alleged prosecutorial misconduct.
Defendant's last claim of ineffective assistance is that counsel should have objected to a reference by the prosecutor during closing arguments to the spit mask. We have already determined the spit mask was admissible evidence and decline to preserve this claim for possible postconviction proceedings.
AFFIRMED.