Opinion
No. 3-121 / 02-0447
Filed April 4, 2003
Appeal from the Iowa District Court for Cerro Gordo County, Stephen P. Carroll, Judge.
Michael Magnan appeals his conviction and sentence for willful injury in violation of Iowa Code section 708.4(2) (2001). CONVICTION AFFIRMED; SENTENCE VACATED IN PART; REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Paul Martin, County Attorney, and Carlyle Dalen, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Michael Magnan appeals his conviction and sentence for willful injury in violation of Iowa Code section 708.4(2) (2001). He claims (1) his trial counsel was ineffective for failing to object to evidence regarding his assertion of his right to remain silent and right to an attorney and failing to move for a mistrial based on admission of this evidence, (2) the trial court erred in overruling his objection to testimony regarding his refusal to give a voluntary statement to the arresting officer, and (3) the trial court erred in issuing a written judgment order which failed to suspend his fine after informing him the fine would be suspended. We affirm the conviction, vacate the fine portion of the sentence, and remand for an order suspending the fine.
On or about July 4, 2001 at approximately 3:30 a.m. an altercation occurred between the defendant, Michael Magnan, and a group of five friends coming home after a night of drinking at local bars and parties. The altercation ended up with one of the group of friends sustaining a head injury, although precisely how the injury occurred was disputed. Magnan ran from the scene but turned himself in to the Clear Lake police the next morning.
The State filed a trial information charging Magnan with willful injury in violation of Iowa Code section 708.4(1) and 702.18 (2001), a class "C" felony. Prior to the commencement of trial the State amended the trial information to charge willful injury in violation of section 708.4(2), a class "D" felony. Jury trial commenced on January 23, 2002 and the jury found Magnan guilty as charged. At a later sentencing hearing the court announced it was entering a judgment of conviction, imposing an indeterminate prison sentence of no more than five years, requiring payment of victim restitution, and imposing and suspending a $750 fine. However, the court's written judgment and sentence, filed the same day and otherwise consistent with the sentence announced in open court, imposed but did not suspend a $750 fine and thirty percent surcharge.
Magnan appeals. We address his claims in a somewhat different order than listed above.
Defendant's Objection. During the State's cross-examination of Officer Asbe the prosecutor asked Asbe, "And is it true that he [Magnan] didn't respond to you? He wouldn't tell you what had happened?" Officer Asbe responded, "He said he wanted to talk to an attorney before he would talk to me. And I even asked him to fill out a voluntary statement and he refused." At that point Magnan's counsel objected on the basis, "The fact that he requested an attorney is not-should not be in any-its an improper question to infer any speculation as to his motivation or his innocence or his guilt. That's an improper question." The court struck the portion of Officer Asbe's answer that made reference to Magnan requesting counsel and instructed the jury to disregard that part of the answer. Magnan did not further object or challenge the court's ruling.
Magnan contends on appeal the court erred in overruling his objection to Asbe's testimony regarding his refusal to give a voluntary statement to the arresting officer. We generally review a district court's evidentiary and trial objection rulings for abuse of discretion. Kurth v. Iowa Dep't of Transp., 628 N.W.2d 1, 5 (Iowa 2001); State v. Tracy, 482 N.W.2d 675, 680-81 (Iowa 1992). The State argues Magnan failed to preserve this issue for appellate review because he only objected to the part of Asbe's answer which related to his request for an attorney but did not object to the part of the answer concerning his refusal to give a voluntary statement. We agree.
Apparently Magnan is contending the court erred in not striking the entire answer and informing the jury to disregard the entire answer, because clearly the court did sustain the objection and struck the part of the answer at which the objection was directed.
Magnan is not asserting here the objection he asserted at trial. It is well settled that a defendant may not announce one reason for an objection at trial and rely on another to challenge an adverse ruling on appeal. State v. Sanborn, 564 N.W.2d 813, 815 (Iowa 1997); State v. Goodson, 503 N.W.2d 395, 399 (Iowa 1993); State v. Hicks, 277 N.W.2d 889, 894 (Iowa 1979). Nor can Magnan now amplify his objection on appeal. Hicks, 277 N.W.2d at 894. "It is incumbent upon the objecting party to lodge specific objections so the trial court is not left to speculate whether the evidence is in fact subject to some infirmity that the objection does not identify." State v. Mulvany, 603 N.W.2d 630, 632 (Iowa Ct.App. 1999). Fairness and considerations of judicial economy dictate that we not consider a contention for the first time on appeal. Sanborn, 564 N.W.2d at 815; Mulvany, 603 N.W.2d at 632. We decline to address this claim of error as it was not preserved for our review.
Ineffective Assistance of Counsel. Magnan claims his counsel should have objected to the testimony of Officer Asbe which numerous times referred to the fact Magnan would not give a voluntary statement to him and refused to fill out a voluntary statement without first consulting with an attorney. He further contends counsel was ineffective for failing to move for mistrial based on the admission of this unfairly prejudicial evidence in violation of his rights to due process of law.
Our review of claims of ineffective assistance of counsel is do novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). Ordinarily we prefer to leave ineffective assistance of counsel claims for postconviction proceedings. Id. We do so to allow a record on the performance of trial counsel to be developed. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999), and give the allegedly ineffective attorney the opportunity to defend the charge. State v. Pearson, 547 N.W.2d 236, 241-42 (Iowa Ct.App. 1996). We conclude the record here is insufficient for us to address Magnan's claim of ineffective assistance on direct appeal. We preserve this claim for a possible postconviction relief proceeding.
Suspension of Fine. Finally, Magnan argues the court erred in issuing a written judgment order which failed to suspend his fine after informing him at the sentencing hearing the fine would be suspended. Our review is for the correction of errors at law. Iowa R.App.P. 6.4; State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure. Witham, 583 N.W.2d at 678. The State concedes that the trial court erred and the fine must be vacated. We agree. Accordingly, we vacate the fine and surcharge portion of Magnan's sentence. We remand for resentencing on this portion of the sentence, with such resentencing to be consistent with the trial court's intention as stated at the prior sentencing hearing.