Opinion
No. 1-639 / 00-1612.
Filed January 28, 2002.
Appeal from the Iowa District Court for Black Hawk County, GEORGE L. STIGLER, Judge.
Clyde Legler appeals from his conviction and sentence for second-degree theft in violation of Iowa Code sections 714.2(2) and 714.1(6) (1997). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and John Standafer, Assistant County Attorney, for appellee.
Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
Clyde Legler appeals following his conviction for second-degree theft, in violation of Iowa Code sections 714.1(6) and 714.2(2) (1997). He contends the court abused its discretion in failing to grant his motion for mistrial based on prosecutorial misconduct, trial counsel provided ineffective assistance, and the court erred in overruling his objection to the admission of a letter. We affirm.
Background Facts and Proceedings.
In October of 1998, Clyde Legler wrote two checks to a Menards' store in Waterloo. He wrote one check on October 8 for $1339.42, and one on October 23 for $3069.78. The bank on which the checks were drawn refused to honor them due to insufficient funds, and returned them to Menards'. Menards' attempted to contact Legler by certified letter sent to the address Legler had previously given when applying to be part of Menards' "Contractor's Club." The letter was returned as "unclaimed."
Based on these dishonored checks, the State charged Legler with second-degree theft, in violation of Iowa Code sections 714.1(6) and 714.2(2). At trial, Judy Pierce of the Mercantile Bank, the institution on which Legler's checks were drawn, testified that when Legler wrote the check for $1339.42, his account contained a balance of $470.00. She further testified that when the $3069.78 check was presented for payment his account had a balance of $15.20. The court allowed the State to introduce, over Legler's objection, the letter sent by Menards' to Legler informing him of its inability to honor his checks. Following the trial, the jury found Legler guilty as charged and the court sentenced him to imprisonment not to exceed five years and fined him $750. Legler appeals.
Merits.
Motion for Mistrial. Legler maintains the court abused its discretion in failing to grant his motion for mistrial, which was based on alleged prosecutorial misconduct during the State's closing arguments. "[T]rial courts [have] broad discretion in ruling on claims of prosecutorial misconduct." State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993). Therefore, we review a district court's ruling on a motion for mistrial based on prosecutorial misconduct for abuse of discretion. See id. We find an abuse of discretion only where (1) there is misconduct, and (2) the defendant was so prejudiced by the misconduct "as to deprive the defendant of a fair trial." State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989). Thus, "[i]t is not the prosecutor's misconduct [that] entitles a defendant to a new trial, but rather any resulting prejudice [that] prevents the trial from being a fair one." Id.
In his motion for mistrial, Legler complained of four specific comments made by the prosecutor during closing arguments. Closing arguments were not reported; however, following the State's rebuttal, the court addressed to the jury the specific comments made by the prosecutor that it felt were improper and not "consistent with fair play." The four particular areas, to which Legler now directs the attention of this court, are as follows. First, the prosecutor discussed Menards' inability to reach Legler by mail at an address he had previously listed with the company and implied that he could have given Menards' an alternate work-site address. Second, the prosecutor commented about Legler's failure to pay child support and apparently faulted him for failure to live up to his parental responsibility. Third, the prosecutor implied that Legler may have deliberately over-bought materials at his customers' expense. Fourth, the prosecutor observed that Legler had done nothing to remedy his bad check, despite the fact that the prosecutor knew that Legler's father had made some reimbursement to Menards' on his son's behalf. The court took the motion for mistrial under advisement, but later denied it following the return of the guilty verdict.
We now reject Legler's contention the court abused its discretion in refusing to grant his motion for mistrial. First, much as where a court gives a curative jury instruction to "cure" the admission of any potentially prejudicial evidence, the court itself addressed the jury and quite specifically detailed the objectionable comments. Further, the court allowed Legler's counsel an additional opportunity to address the jury and "set the record straight" following the prosecutor's allegedly improper comments during summation.
The trial court clearly believed the remedy it fashioned, in addressing the jury directly on the subject of the prosecutor's conduct and allowing defense counsel an opportunity to rebut the misstatements, was sufficient to cure any prejudice. We agree and conclude the court did not abuse its discretion in denying the motion for mistrial. It is axiomatic that a trial court is better equipped than appellate courts can be to determine whether prejudice occurs. State v. Anderson, 448 N.W.2d 32, 34 (Iowa 1989). This is because the trial court is a firsthand observer of both the alleged misconduct and any jury reaction to it. See e.g. State v. Bishop, 387 N.W.2d 554, 561 (Iowa 1986). The district court did not abuse its discretion in concluding the combination of the court's statements to the jury and defense counsel's responsive surrebuttal provided Legler with a fair trial.
Second, we conclude that even if the statements were improper, Legler cannot establish the essential element of prejudice due to the substantiality of the evidence of guilt. State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989). The record overwhelmingly supports Legler's conviction for second-degree theft by check. To prove the offense, pursuant to the marshalling instruction, the State had to prove Legler presented the checks to Menards', the checks were drawn on Mercantile bank, he received property in exchange, and he knew at the time he gave the checks to Menards' they would not be paid due to insufficient funds. Evidence was presented that on two occasions Legler wrote checks in exchange for merchandise. Neither of these checks were honored due to insufficient funds in the account. The defendant acknowledged that it was his responsibility to take care of his checking account but that he did not know the financial status of the account. He further admitted he had received checks during the time frame in question, but never deposited them into the checking account due to concerns the account would be garnished for back child support. We cannot say that, but for the prosecutor's improper comments during closing arguments, the result of the proceeding would have been different.
Ineffective Assistance of Counsel. Legler also asserts his trial counsel was ineffective in various respects. Our ultimate concern in claims of ineffective assistance is with the "fundamental fairness of the proceeding whose result is being challenged." State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987) (quoting Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984)). The burden is on the defendant to prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. Risdal, 404 N.W.2d at 131-32. The test for prejudice is whether a reasonable probability existed that the outcome of the trial would have been different but for counsel's alleged omissions. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not necessarily constitute ineffective assistance of counsel. Kane v. State, 436 N.W.2d 624, 627 (Iowa 1989).
Legler asserts trial counsel was ineffective in failing to request an instruction based on Iowa Code section 702.9(5), which in part states, "failure to perform, standing alone, is not evidence that the actor did not intend to perform." We need not proceed to the question of whether Legler was prejudiced because we believe counsel acted competently and breached no duty in failing to request this instruction. The requested instruction was clearly inapplicable on the facts and applicable law in this case. First, the instruction adds nothing to the instructions that were in fact given to the jury. See State v. Bolinger, 460 N.W.2d 877, 880 (Iowa Ct. App. 1990) ("A trial court is . . . not required to instruct in the language of requested instructions so long as the topic is covered."). The instructions given to the jury specifically required it to find Legler knew the checks would not be paid due to insufficient funds in his account; thus it could only be understood by the jury that the State had to prove Legler's intent and knowledge that the checks would not be paid by the bank. Further, in State v. Hogrefe, 557 N.W.2d 871 (Iowa 1996), our supreme court distinguished between prosecutions for theft by deception and theft by check. It reasoned that the language of section 702.9(5) applied to the theft by deception statute, section 714.1(3), because in such a prosecution the "mere fact of nonpayment of a check is not sufficient[,] . . . [s]omething more must be shown to prove criminal intent." Hogrefe, 557 N.W.2d at 878. The instruction is thus not relevant here, where the defendant was tried for theft by check rather than theft by deception.
Legler also argues counsel provided ineffective assistance when he failed to object, on relevance and prejudice grounds, to the introduction of the letter that Menards' sent to him but that was returned as "unclaimed." Again, we believe the record is sufficient to resolve this issue, and hold that counsel was not ineffective in failing to object to the introduction of the letter. The evidence was undisputed Legler never received the letter and it was returned to Menards' as "unclaimed." In addition, during Legler's cross-examination by the State, he was given an opportunity to fully explain why he was unable to receive the letter at the address to which Menards' sent it. Following the close of evidence the court allowed defense counsel an opportunity to address the relevance of the letter, or lack thereof, to the jury. Consequently, Legler was not prejudiced by the admission of the letter.
Admission of State's Exhibit "3." Finally, Legler contends the court erred in overruling his objection to the admission of State's exhibit "3," the certified letter from Menards' discussed in the preceding division. On evidentiary issues we review for an abuse of discretion. State v. Most, 578 N.W.2d 250, 253 (Iowa Ct. App. 1998). In order to show an abuse of discretion, one generally must show the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Martinez, 621 N.W.2d 689, 695 (Iowa Ct. App. 2000).
We believe the letter was relevant and that its probative value outweighed any prejudicial effect its admission may have had. See State v. Astello, 602 N.W.2d 190, 196 (Iowa Ct. App. 1999). Evidence immediately surrounding an offense is admissible in order to show the complete story of the crime. State v. Veal, 564 N.W.2d 797, 812 (Iowa 1997). In this regard, the letter showed Menards' attempt to recover the money prior to the institution of criminal proceedings. Also, as noted previously in this opinion, we do not believe Legler can establish he was prejudiced by the letter's admission into evidence. There was thus no abuse of discretion in the letter' admission into evidence.
CONCLUSION
We conclude the trial court did not abuse its discretion in refusing to grant a mistrial or in receiving the letter in evidence, and trial counsel did not provide ineffective assistance in any of the respects urged. We therefore affirm Legler's second-degree theft conviction.
AFFIRMED.