Opinion
No. 3-514 / 02-1246
Filed August 27, 2003
Appeal from the Iowa District Court for Marion County, Terry Wilson, District Associate Judge.
Defendant-appellant Edward Morse appeals his convictions and sentence, following a jury trial, for operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2001) and possession of marijuana, in violation of section 124.401(5). AFFIRMED.
Tiffany Koenig and Christopher Kragnes, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Terry E. Rachels, County Attorney, and Marc Wallace, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Defendant-appellant Edward Morse appeals his convictions and sentence, following a jury trial, for operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2001) and possession of marijuana, in violation of section 124.401(5). On appeal defendant claims he received ineffective assistance of counsel. We affirm but preserve defendant's claims for possible postconviction proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS
On December 31, 2001 Trooper Cliff Wilson observed defendant's vehicle traveling northbound on Highway 14. When defendant's vehicle made a left turn in front of Trooper Wilson's patrol car, Trooper Wilson observed the license plate light in defendant's vehicle was burned out. Trooper Wilson stopped defendant's vehicle just after it turned left into the parking lot of Dan's Village Pump in Knoxville.
Upon approaching defendant's vehicle Trooper Wilson noticed a strong odor of alcohol emanating from the car. Trooper Wilson testified he also noticed defendant's speech was a bit "mush[y]." Trooper Wilson had defendant step out of the car, where he had him perform several field sobriety tests. Based on defendant's performance on the tests and his apparent admission to having consumed alcohol, Trooper Wilson concluded defendant had been operating his vehicle under the influence of alcohol. At some point defendant submitted to a Preliminary Breath Test (PBT), showing his blood-alcohol level exceeded .10. Trooper Wilson and Trooper Steffan, who accompanied him, proceeded to arrest
defendant and read him his Miranda rights. Trooper Steffan searched his vehicle and found an Altoids tin containing rolling papers, what appeared to be a marijuana pipe, and a green, leafy substance later determined to be marijuana inside. Trooper Steffan also found another Altoids tin with a snort tube and a razor blade inside. Defendant initially denied these items were his, but later admitted ownership. The troopers took defendant to the police station for a Datamaster breath test and determined his blood-alcohol concentration to be .135.
Defendant's passenger that night, Marty Bishop, was a defense witness at trial. On cross-examination the prosecutor questioned Bishop as to his knowledge of defendant's OWI charges dating back to 1983 and 1996. Defense counsel did not object to this line of questioning.
Defendant argues his counsel rendered ineffective assistance in failing to object to this questioning and in failing to file a motion in limine to exclude all evidence of defendant's prior convictions. Defendant also argues his counsel was ineffective for failing to request a suppression hearing, following the filing of his motion to suppress, for the purposes of determining (1) whether the officers' stop of defendant's vehicle was legal, (2) whether reasonable grounds existed to administer the field sobriety tests and the PBT, and (3) whether the officers followed the proper procedure in administering the field sobriety tests.
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 ascertain whether the actions were a product of tactics 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). For this reason 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. INEFFECTIVE ASSISTANCE OF COUNSEL
Failure to object. Defendant first contends his counsel breached the duty to object to the prosecutor's cross-examination of witness Bishop when, following Bishop's testimony that defendant was "pretty cautious," the prosecutor inquired whether Bishop knew of defendant's 1983 and 1996 convictions for OWI. Defendant also argues his counsel was ineffective for failing to file a motion in limine to exclude all evidence of defendant's prior convictions. There is insufficient evidence in the record for a determination of this issue. We preserve this issue for possible postconviction proceedings.
Suppression hearing. Defendant argues his attorney should have pursued a suppression hearing for the purposes of determining whether Trooper Wilson conducted a valid stop of his car. Defendant admits that his license plate light was out, but argues he was not stopped until he was in the Dan's Village Pump parking lot, and that it is no crime to have a burned license plate light when not traveling on roadways.
Trooper Wilson testified he first noticed defendant's burned license plate light when defendant was still on the roadway, turning in to Dan's Village Pump. Iowa Code section 321.388 requires illumination of the rear registration plate on an automobile. "It is well-settled that a traffic violation, however minor, gives an officer probable cause to stop a motorist." State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996). As Trooper Wilson was justified in stopping defendant's car, we conclude counsel was not ineffective for failing to demand a hearing on the motion to suppress to determine if the stop was lawful. We decline to preserve this issue.
Defendant further argues his attorney was ineffective for failing to seek a suppression hearing regarding whether reasonable grounds existed to administer the field sobriety tests and the PBT, and whether the officers followed the proper procedure in administering the field sobriety tests. With respect to the question of whether reasonable grounds existed to administer the tests, the evidence in the record shows Officer Wilson smelled alcohol and noticed defendant had "mush[y]" speech before requiring him to do any field sobriety tests. The evidence also shows defendant failed the tests, specifically the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test, presumably before taking the PBT. Nevertheless, we preserve this issue for possible postconviction proceedings.
The only evidence in the record of a PBT is the implied consent form which states a PBT was administered and resulted in a blood-alcohol concentration of .10 or more.
With respect to the question of proper administration of the field sobriety tests, Defendant argues he was unable to pass the tests because he had a hip injury and the flashing lights from the police car were disorienting. Defendant claims his injury and the distraction from the lights show the proper procedures were not followed in administering the field sobriety tests and thus the PBT and subsequent Datamaster test. We also preserve this claim for possible postconviction proceedings.