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finding nothing objectionable in closing argument asking court to "give these women justice" and find the defendant responsible for the crimes
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No. 4-828 / 03-1149
Filed February 9, 2005
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Douglas Kinney appeals his convictions for two counts of willful injury and one count of criminal mischief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant State Appellate Defender, for appellant.
Douglas Kinney, Clarinda, appellant pro se.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John P. Sarcone, County Attorney, and Frank Severino, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, and Vaitheswaran, JJ., and Nelson, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
After a day of gambling and drinking at Prairie Meadows Racetrack and Casino, Douglas Kinney walked out, entered his sport utility vehicle, and drove it through the south entry of the casino, injuring two patrons. Law enforcement officers obtained a warrant to search Kinney's vehicle, including "all computers, equipment, parts, or sensors of the vehicle."
Kinney was subsequently charged with two counts of willful injury and one count of first-degree criminal mischief as well as other crimes not at issue on appeal. See Iowa Code §§ 708.4(1), (2), 716.1, 716.3 (2001). Following a bench trial, he was found guilty of these crimes.
On appeal, Kinney raises several grounds for reversal including (1) ineffective assistance of trial counsel and (2) insufficiency of the evidence.
I. Ineffective Assistance of Counsel
Kinney argues his trial counsel was ineffective (a) in failing to file a motion to suppress evidence relating to data retrieved from his vehicle's computer and (b) in failing "to object to and move for mistrial" based on prosecutorial misconduct.
Our review of these claims is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). To prevail, Kinney must show a failure to perform an essential duty and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984).
A. Search Warrant.
Kinney contends the warrant to search a control module within his vehicle was defective because, in his view, (1) none of the witnesses and informants listed on the warrant endorsements were "reliable for the purposes they were referenced," (2) "[n]one of the informants listed on the attachments ha[d] personal knowledge of the workings of the control module, or the inculpatory information to be gathered" and (3) the module was not described with particularity as required by statute and constitution. The first two arguments implicate the probable cause requirement for issuance of warrants. See State v. Randle, 555 N.W.2d 666, 669 (Iowa 1996). Therefore, we will address them together.
1. Probable Cause.
"The existence of probable cause to search a particular area depends on whether a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched." State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004). Where a warrant application is based on an informant's statement, "[t]he application or sworn testimony supplied in support of the application must establish the credibility of the informant or the credibility of the information given by the informant." Iowa Code § 808.3. See also 4A B. John Burns, Iowa Practice: Criminal Procedure § 37.3, at 504 (2004). Here, it does.
A police officer's attachment to the warrant application states:
Your affiant contacted the local Chevy dealership and made arrangements to have the dealership inspect the vehicle for possible mechanical problems or equipment failure. Your affiant was told by the dealership that the vehicle has computers, sensors, and other equipment which may disclose data and information which may assist investigators in determining whether a mechanical problem or equipment failure occurred.
The "local Chevy dealership" cited in the attachment was a citizen informant entitled to a presumption of reliability. See Randle, 555 N.W.2d at 669. The dealership presumably knew about the computer systems on Chevrolet vehicles and presumably had no incentive to misinform law enforcement authorities about the nature of these systems. We conclude this is one of the rare instances where the source on which the officer relied to support his request for a warrant established its own credibility. Cf. Munz v. State, 382 N.W.2d 693, 700 (Iowa Ct.App. 1985). The officer's reference to the Chevy dealership also disposes of Kinney's assertion that none of the witnesses or informants had personal knowledge of the control module.
The information the dealership provided, together with the remaining information in the warrant application, established the required nexus between Kinney's vehicle, the control module within it, and a possible crime. As the warrant was supported by probable cause, trial counsel did not breach an essential duty in failing to file a motion to suppress on this ground.
2. Particularity.
"Both the Iowa and United States Constitutions, as well as the Iowa Code, require that the warrant and affidavits particularly describe what is to be searched and what is to be seized." Randle, 555 N.W.2d at 671; see also Iowa Code § 808.3. The particularity requirement is to ensure that "nothing is left to the discretion of the executing officer." State v. Prior, 617 N.W.2d 260, 263 (Iowa 2000); see also Groh v. Ramirez, 540 U.S. 551, 561, 124 S. Ct. 1284, 1292, 157 L. Ed. 2d 1068, 1080-81 (2004). The absence of any description of the items to be searched is fatal. Cf. Ramirez, 540 U.S. at 557, 124 S. Ct. at 1289, 157 L. Ed. 2d at 1078. However, "[e]laborate specificity is not required." State v. Wright, 244 N.W.2d 319, 321 (Iowa 1976).
The warrant in this case described the items to be searched with sufficient particularity. Although the warrant referred to "all computers," the search was limited to computers found within Kinney's vehicle. See State v. Bakker, 262 N.W.2d 538, 545 (Iowa 1978) (warrants must be read in a "commonsense and realistic fashion"). Moreover, the particularity requirement can relate to the probable cause requirement, and, as noted, that requirement was satisfied here. Finally, Kinney made no showing that law enforcement officers would have been confused by the warrant or would have been permitted to exercise their discretion. Randle, 555 N.W.2d at 669. For these reasons, the warrant satisfied the particularity requirement of the U.S and Iowa Constitutions and of Iowa Code section 808.3.
See Prior, 617 N.W.2d at 263.
As the warrant was not defective, trial counsel breached no essential duty in failing to challenge it via a motion to suppress. This ineffective-assistance-of-counsel claim, therefore, must fail.
B. Prosecutorial Misconduct
Kinney next argues that the assistant county attorney committed prosecutorial misconduct when he (1) commented on Kinney's truthfulness, (2) asked for justice for the two victims and (3) used the pronoun "I". We disagree.
1. Comments on Truthfulness.
The Iowa Supreme Court has held that "it is improper for a prosecutor to call the defendant a liar, to state the defendant is lying, or to make similar disparaging comments." State v. Graves, 668 N.W.2d 860, 876 (Iowa 2003); see also State v. Werts, 677 N.W.2d 734, 739 (Iowa 2004) (holding prosecutor violated "duty to keep the record free of undue denunciations or inflammatory utterances"). The statement Kinney challenges, reproduced in context, was as follows:
The claim that [Kinney] does not remember what happened — even if we give him the benefit of the doubt and we say, Mr. Kinney, we believe you. You don't remember. It doesn't mean that he didn't intend to do what he set out to do. It simply means that he could have suffered a head injury that he didn't remember, he could have been confused in the crash, or we could assume, which seems to be plausible in this case, that he's not telling the truth. He's not telling the truth about what happened."
We agree with the State that the prosecutor's reference to Kinney's untruthfulness is a reasonable argument from the evidence rather than the type of disparaging comment condemned in Graves and Werts. Therefore, trial counsel did not render ineffective assistance in failing to object to these comments.
2. Justice.
Kinney next takes issue with the following statement by the prosecutor during closing argument: "I'm asking the Court to give these women justice, find the defendant responsible for the intentional crimes of attempted murder and willful injury as well as criminal mischief in the first degree." We find nothing disparaging or demeaning in this statement. To the extent the prosecutor made reference to seeking justice, he was merely reaffirming his "primary obligation." Werts, 677 N.W.2d at 738. Trial counsel was not ineffective in failing to object to this statement.
3. Use of pronoun "I."
"A prosecutor may not create evidence by argument or interject personal beliefs." State v. Escobedo, 573 N.W.2d 271, 278 (Iowa Ct. App. 1997). The prosecutor did not do so here. On the appendix page cited by defense counsel, the prosecutor used the pronoun "I" only twice. First, he began an argument by stating, "I submit to the Court . . .," and proceeded to discuss Kinney's disregard for the welfare of his victims or himself. Second, he used the pronoun to begin the sentence referring to justice cited above. Neither usage injected personal beliefs into the proceeding. Trial counsel was not ineffective in failing to object to these statements.
II. Sufficiency of the Evidence
Kinney argues there was insufficient evidence of specific intent to commit willful injury and criminal mischief. The district court found otherwise. Its findings of fact in this jury-waived case, "have the effect of a special verdict." Iowa R. App. P. 6.4. They are binding if supported by substantial evidence. Iowa R. App. P. 6.14(6)( a); Randle, 555 N.W.2d at 671.
A person is guilty of willful injury if the person "does an act which is not justified and which is intended to cause serious injury to another." Id. § 708.4. A person commits criminal mischief if the person "intentionally and with no right to so act" damages, defaces, alters, or destroys property. Iowa Code § 716.1.
The record viewed in the light most favorable to the State reveals the following facts. Kinney and his wife drove to Prairie Meadows Racetrack and Casino at approximately 3:00 or 4:00 P.M. Kinney parked in a handicapped spot in the south parking lot and walked through the south entrance. He began gambling, losing the $600 he brought with him as well as additional funds he withdrew from an ATM machine located at the south entrance. Surveillance cameras captured him going to the machine approximately six times during the course of the evening.
See Randle, 555 N.W.2d at 671.
While at the casino, Kinney consumed alcohol but walked straight without stumbling or appearing sick. He later told a police officer he could consume approximately twelve drinks, yet still know what was going on.
At approximately 10:00 P.M., Kinney left the building via the west entrance and proceeded directly toward the south parking lot and to his vehicle. A patron in the parking lot testified Kinney was yelling and "seemed angry" before he put his vehicle in motion. Lights were on in the casino and patrons were visible through the casino doors. Kinney proceeded to drive his vehicle through a locked security gate, through a "large concrete planter," and into the south entrance of the casino. The witness in the parking lot did not see Kinney apply his brakes and said Kinney hit the casino with the "engine roaring."
The vehicle came to rest against the escalator and only inches from the ATM machines next to the south entrance. A patron who had just entered the south entrance was hit by the vehicle and sustained injuries to her hip and leg that required surgery. Another patron had just taken the escalator down to the south entrance when she was hit. She sustained injuries to both her legs and was in a coma for seven days. The casino sustained damage of over $200,000.
A law enforcement officer later examined Kinney's vehicle. Based on the data retrieved from the control module, the officer testified the vehicle was moving at forty-four miles per hour, the brakes were not applied, and the throttle was fully open. He also noted Kinney had to make a turn to get to the south entrance. The officer concluded the crash was not an accident.
Another law enforcement officer testified, "There was no evidence that any evasive action was taken." The witness stated it was "too coincidental" for the crash to be accidental, as the vehicle made a "direct shot right into the south doors without striking the side or front pillars of Prairie Meadows."
A mechanic who examined Kinney's vehicle found a door entry button for handicapped patrons embedded in the center of the SUV's grill. He stated the car "accelerated when it was told to accelerate. It didn't slow down because it wasn't told to slow down, and it went where it was told to go."
These facts amount to substantial evidence of specific intent to "cause serious injury to another" and to damage, deface, alter, or destroy property.
We recognize that there is also evidence to suggest Kinney drank heavily and experienced disorientation following the accident. A fact-finder was free to reject this evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994).
III. Other Claims
Kinney's appellate counsel also claims trial counsel was ineffective in failing to investigate and call two health care professionals to testify about Kinney's intoxication. This issue is preserved for postconviction relief to give counsel an opportunity to explain his conduct. State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct.App. 1998).
Kinney filed a pro se brief raising the following additional challenges to his convictions: (1) trial counsel had an independent duty to review all the casino's surveillance tapes and present a real time rather than edited version of the tape to the district court; (2) trial counsel should have obtained ATM and casino records to show how much money the Kinneys lost, (3) trial counsel should have moved to change venue, (4) he is entitled to a new trial based on newly discovered evidence, and (5) both prosecutor and defense counsel breached their duties by permitting witnesses to watch the proceedings in the hallway.
On the videotape question, Kinney has not shown that there is a material difference between the edited and unedited surveillance footage. Therefore, he has not established Strickland prejudice. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Absent a showing of prejudice, he cannot prevail on this ineffective assistance claim.
The same is true of Kinney's claim that his attorneys should have obtained records to show how much he lost at the casino. Kinney presumably wanted this evidence to rebut the prosecutor's assertion that Kinney acted out of anger at his losses. However, the amount of his loss was less relevant than the fact that he lost money, a fact that he conceded to police officers. We conclude there was not a reasonable probability that introduction of this evidence would have changed the outcome. Id.
Regarding Kinney's change of venue argument, Kinney only would have been entitled to a change if there had been a jury. Iowa R. Crim. P. 2.11(10)( b). More fundamentally, Kinney's argument is based on a faulty factual premise. He contends the County's ownership of Prairie Meadows gave it an incentive to suppress evidence of Kinney's intoxication. However, it was the State that introduced evidence of Kinney's intoxication, such as the laboratory report of his blood alcohol content and the video surveillance of Kinney purchasing alcohol. Therefore, counsel was not ineffective in failing to file a change of venue motion.
As for Kinney's newly discovered evidence argument, we agree with the State that Kinney failed to file a motion for new trial on this ground. Therefore, the issue was not preserved for appeal. Cf. Escobedo, 573 N.W.2d at 276-77.
A motion for new trial was filed on the ground that the verdict was inconsistent with the evidence and was not supported by substantial evidence.
Finally, Kinney claims that witnesses should not have been allowed to watch each other's testimony on television monitors outside the courtroom. Again, to the extent Kinney challenges defense counsel's failure to immediately raise this issue, he has not shown Strickland prejudice. As for his general claim that the activities in the hall may have infected the trial with error, Kinney has not shown how. Therefore, the claim is rejected.
IV. Disposition
We have considered all arguments raised by appellate counsel and by Kinney, whether addressed in this opinion or not. Some were too general, were not supported by authority, or would have required us to move beyond the record created before the district court.
We affirm Kinney's judgment and sentences for willful injury and first-degree criminal mischief. We preserve for postconviction relief proceedings Kinney's claim that trial counsel should have investigated and called certain witnesses to testify about the effect of his intoxication.