Opinion
No. 3-012 / 02-0071
Filed March 26, 2003
Appeal from the Iowa District Court for Hardin County, David R. Danilson, Judge.
Defendant appeals from the judgment and sentence entered upon his conviction for attempted murder. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Douglas Hammerand and Laura Roan, Assistant Attorneys General, and Richard Dunn, County Attorney, for appellee.
Heard by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Mark Gear appeals from the judgment and sentence entered following his conviction of attempted murder in violation of Iowa Code section 707.11 (2001). Gear contends there was insufficient evidence to support his conviction and claims error with respect to the admission of certain evidence. He also maintains trial counsel rendered ineffective assistance. Because we find no merit in his claims, we affirm.
I. Background Facts and Proceedings.
A jury could have found the following facts from the evidence presented at Gear's trial.
In the late evening hours of August 18, 2001, Tony Silvey went to Brewsky's Lounge in Iowa Falls. After drinking and socializing for a time, he went to the bathroom. Silvey heard someone enter the bathroom behind him and say, "Remember me, old man?" Silvey turned and saw Mark Gear. Silvey had encountered Gear for the first time only a few weeks earlier. On July 28, 2001, Gear was involved in a violent confrontation with a man at a different drinking establishment. Silvey attempted to break up the fight and Gear struck him in the throat. After an exchange of words, the confrontation subsided and Gear left the establishment.
Responding to Gear's statement in the bathroom, Silvey stated, "I'll be right with you." Silvey finished at the urinal and turned to approach Gear. A man then entered the bathroom and Gear told him to leave. Now alone again with Silvey, Gear, with a beer bottle in hand, swung and struck Silvey on the side of the neck shattering the bottle. Silvey reacted by grabbing Gear by the hair and shoving him against the wall in an attempt to subdue him. At some point, Gear began wielding a knife and stabbed Silvey several times. When another man entered the bathroom, Gear fled with the knife.
Silvey was taken to the hospital in Iowa Falls where Dr. Joseph Brunkhorst examined him. The examination revealed Silvey suffered four stab wounds to his torso during Gear's attack. Dr. Brunkhorst testified three of the wounds were superficial; however, one wound penetrated into Silvey's chest cavity and punctured a lung raising concern for a pneumothorax, also known as a collapsed lung. Silvey was transferred to a Mason City hospital where a chest tube was inserted to prevent his lung from collapsing. Doctors testified that had Silvey not been treated, his condition could have become life threatening.
The State filed a trial information charging Gear with attempted murder, a class B felony. Gear pled not guilty and later filed several pretrial motions including a motion for discovery. The district court sustained most portions of the defendant's discovery motion. Following trial, a jury found Gear guilty as charged.
The defendant filed a motion in arrest of judgment and motion for new trial. He argued the evidence was insufficient to establish his intent to kill Silvey and claimed the admission of his booking photograph was so prejudicial a new trial was warranted. The motions were overruled and defendant was subsequently sentenced to a term of incarceration not to exceed twenty-five years under Iowa Code section 902.9. Gear appeals.
Further facts will be discussed as they pertain to the issues raised on appeal.
II. Merits.
Defendant raises three issues in this appeal. First, he claims the evidence adduced at trial was insufficient to establish his intent to kill Silvey. Next, he maintains the trial court erred in admitting his booking photograph. Finally, he claims his trial counsel rendered ineffective assistance in several respects.
A. Sufficiency of the Evidence.
The jurors were instructed the State was required to prove the following elements of attempted murder,
1. On or about the 19th of August, 2001, the defendant stabbed Tony Silvey.
2. By his acts, the defendant expected to set in motion a force or chain of events which could have caused or resulted in the death of Tony Silvey.
3. When the defendant acted, he specifically intended to cause the death of Tony Silvey, as explained further in Instruction No. 19.
Instruction 19 provided the jury with the following definition of "specific intent."
"Specific intent" means not only being aware of doing an act and doing it voluntarily, but in addition, doing it with a specific purpose in mind. Because determining the defendant's specific intent requires you to decide what he was thinking when an act was done, it is seldom capable of direct proof. Therefore, you should consider the facts and circumstances surrounding the act to determine the defendant's specific intent. You may, but are not required to, conclude a person intends the natural results of his acts.
Gear maintains the evidence fails to establish that he specifically intended to kill Silvey. He points out that he hardly knew Silvey. Gear claims the evidence fails to show he planned to kill his victim and does not reveal a strong motive for his actions. Because three of the four stab wounds Silvey suffered were superficial, Gear suggests that, at most, the evidence shows an intent to injure Silvey, not kill him.
We review sufficiency of the evidence challenges for correction of errors at law. State v. Chang, 587 N.W.2d 459, 461-62 (Iowa 1998). We view the evidence in the light most favorable to the State and accept any legitimate inferences that may reasonably be deduced from the evidence. State v. Boleyn, 547 N.W.2d 202, 204 (Iowa 1996). Review of a jury verdict is for substantial evidence. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). Evidence is substantial if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). Circumstantial and direct evidence are equally probative. State v. Boley, 456 N.W.2d 674, 679 (Iowa 1990). The element of intent is rarely capable of direct proof and must usually be shown by circumstantial evidence. State v. Delay, 320 N.W.2d 831, 835 (Iowa 1982); State v. Salkil, 441 N.W.2d 386, 387-88 (Iowa Ct.App. 1989).
Although Gear attempts to discount his previous altercation with Silvey, we find their prior encounter offers an explanation for Gear's subsequent assault on Silvey. During their previous altercation, Silvey attempted to stop a fight between Gear and another man because the man Gear was fighting, who was an acquaintance of Silvey's, was considerably smaller. After Silvey intervened, Gear struck Silvey and asked him to step outside to fight. Silvey told him to leave and if he really wanted to fight, the two could go in the bathroom. Gear left the scene soon thereafter without incident.
Testimony established that Gear stared at Silvey off and on throughout the evening when the two were at Brewsky's. When Silvey walked back to the bathroom in the lounge, Gear followed him. When a third man entered the bathroom, Gear asked him to leave. Silvey testified Gear appeared to have something strapped to his hand when he entered the bathroom, possibly the knife used to stab him. Police found a hair tie in the bathroom after the incident. Silvey testified the hair tie was similar to what he had seen around the defendant's hand. From this evidence, a jury could reasonably infer that Gear entered the bathroom armed with a deadly weapon. Gear struck Silvey with a beer bottle, which shattered. Gear then stabbed Silvey four times in the torso, an area vulnerable to fatal injuries. One of the stab wounds penetrated Silvey's chest and punctured a lung.
Our review of the record reveals substantial evidence to support the jury's finding that Gear attempted to murder Silvey.
B. Admission of Booking Photograph.
Gear next challenges the admission of a booking photograph, which depicted his appearance at the time of his arrest. Gear claims the photograph was irrelevant, and more prejudicial than probative if it bore any relevance. He also contends the photograph's admission was in violation of the court's pretrial discovery order. In the event error has not been preserved regarding his challenges to the photograph, he claims his trial counsel was ineffective.
We review the trial court's ruling on the admissibility of a photograph for abuse of discretion. See State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998); State v. Davidson, 245 N.W.2d 321, 324 (Iowa 1976).
1. Relevance and Probative Value. Irrelevant evidence is inadmissible. Iowa R. Evid. 5.402. Evidence is relevant if a reasonable person might believe the probability of the truth of a consequential fact to be different if the person knew of the challenged evidence. State v. Brown, 569 N.W.2d 113, 116 (Iowa 1997). Relevantevidence may be excluded when its probative valueis substantially outweighed by unfair prejudice or its admission would be aneedless presentation of cumulative evidence. Iowa R. Evid. 5.403. Probative valuegauges the strength and force of the evidence's tendency to make any consequential fact more or less probable. State v. Most, 578 N.W.2d 250, 253 (Iowa Ct.App. 1998). Unfair prejudiceis an undue tendency to suggest decisions on an improper basis. State v. Plaster, 424 N.W.2d 229, 231 (Iowa 1988). Evidence of this sort may appeal to the jury's sympathies, arouse its horrors, or provoke its instinct to punish. State v. Hardy, 492 N.W.2d 230, 234 (Iowa Ct.App. 1992) (citation omitted).
Prior to trial, defendant cut his long hair and shaved much of the bushy beard he had when arrested. After learning Gear had substantially changed his appearance, the State obtained a booking photo taken at the time of his arrest and sought to introduce it. Defendant objected to the photograph contending it was irrelevant and prejudicial. The court overruled his objections noting,
And clearly, the record should reflect that the defendant currently has got rather short hair. And we've also heard evidence or seen evidence here of a chunk of hair in the bathroom. And it would seem to be that this, if anything, is going to assist the trier of fact to understand how a chunk of hair of the size shown in the picture could occur when Mr. Gear has the length of hair he's presently got right now.
The victim testified he grabbed Gear by the hair with both hands in an effort to subdue him after Gear began assaulting him. Because of this testimony, the State believed it was important for the jurors to see how the defendant's hair looked at the time of the assault. The State also introduced photographic evidence showing a clump of hair on the bathroom floor after the victim's struggle with the defendant. The booking photograph showed Gear had long hair and a bushy beard at the time he assaulted Silvey. The photo corroborated Silvey's version of the events and helped the jury understand how the clump of hair found on the bathroom floor could have come from the defendant's head. The photo makes the existence of material facts more probable than they would be without the evidence. See Iowa R. Evid. 5.401.
Evidence immediately surrounding an offense is admissible in order to show the complete story. State v. Shortridge, 589 N.W.2d 76, 83 (Iowa Ct.App. 1998). We conclude the booking photo was relevant evidence and its probative value was not outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion in admitting this evidence.
2. Discovery Order. The defendant also contends the trial court should have excluded the photo because the State violated the court's pretrial discovery order. The district court sustained defendant's discovery motion on October 15, 2001. Accordingly, the State was required to produce "[c]opies of any photographs taken by medical personnel, the police, or any agent of [sic] State of Iowa, in connection with pending charges against Defendant." Because the State failed to produce a copy of the booking photograph, Gear contends its admission was an abuse of discretion by the trial court. Specifically, Gear maintains the State failed to comply with the continuing duty to disclose imposed by Iowa Rule of Criminal Procedure 2.14(5).
Pursuant to rule 2.14(5), any new evidence discovered, subsequent to compliance with a prior discovery order, must be disclosed to the opposing party. If a party fails to comply with the continuing duty to disclose, the district court has discretion to enter any order just under the circumstances, including the exclusion of evidence not disclosed under rule 2.14(5). See Iowa R.Crim.P. 2.14(6)( c).
The trial court concluded that the discovery order did not appear to encompass the defendant's booking photo. The court reasonably questioned whether the State would have believed the defendant was seeking a photograph of himself, taken with his knowledge. However, even if we assume the photograph was subject to the order, we conclude the trial court did not abuse its discretion in admitting it. The State received the booking photo only a day or two prior to trial. It sought the photo only after learning that defendant had significantly changed his appearance. In view of the victim's testimony, the State believed the photo was necessary to show the jury how defendant actually appeared at the time of the stabbing. Nothing in the record suggests the State intentionally withheld the photo from the defendant. Under the circumstances, it was an appropriate exercise of discretion for the trial court to allow the booking photograph into evidence even though it was not produced prior to trial.
C. Ineffective Assistance of Counsel.
On appeal Gear asks us to find his trial counsel ineffective if we conclude he failed to preserve error with respect to the admission of the booking photograph. Because we have already concluded the trial court did not abuse its discretion in admitting the booking photo, this claim of ineffective assistance of counsel is moot.
The defendant further alleges his trial counsel should have objected to an in-court demonstration by the victim concerning how Gear's knife could have been concealed against a beer bottle he was carrying. To prove an ineffective assistance of counsel claim, Gear must show by a preponderance of evidence:
(1) trial counsel failed to perform an essential duty; and
(2) prejudice resulted from counsel's error.
State v. Myers, 653 N.W.2d 574, 577 (Iowa 2002) (citation omitted). "Demonstrative evidence is usually received if it affords a reasonable inference on a point in issue." State v. Thornton, 498 N.W.2d 670, 674 (Iowa 1993). The demonstration in this case was based on the evidentiary record and allowed a reasonable inference on matters at issue in this case. We conclude defense counsel was not ineffective for failing to object to the demonstration.
AFFIRMED.
Sackett, C.J., concurs; Vaitheswaran, J., specially concurs.
I specially concur. I agree with all aspects of the majority opinion, except the conclusion that the booking photograph was admissible to complete the story. I would find this evidence irrelevant and, therefore, inadmissible. I concur in the result, however, because I believe the court's error in admitting the photograph was harmless. See State v. Liggins, 524 N.W.2d 181, 188-89 (Iowa 1994); State v. Nims, 357 N.W.2d 608, 609 (Iowa 1984).