Opinion
No. 04-0901
Filed September 14, 2005
Appeal from the Iowa District Court for Lee (North) County, John G. Linn, Judge.
Thomas Dwayne Overton appeals following his conviction and sentence for two counts of interference with official acts. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas Dwayne Overton, Anamosa, pro se.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, Robert Glaser, Assistant Attorney General, and Michael Short, County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Zimmer, JJ.
Thomas Dwayne Overton appeals from the judgment and sentence entered by the district court on a jury verdict finding him guilty of two counts of interference with official acts in violation of Iowa Code section 719.1(2) (2003). He contends his trial counsel was ineffective for failing to object to prior bad acts evidence, for failing to object and move for a mistrial when the prosecutor's closing argument implied that the defendant's testimony was false, and for failing to file a motion for a new trial. We affirm.
I. Background Facts Proceedings
A jury could have found the following facts. In 2002 Overton was an inmate housed in the maximum security cellhouse of the Iowa State Penitentiary. On November 22, 2002, he asked corrections counselor Joy Kuper to come to his cell while she was making rounds in Overton's unit. When Kuper arrived in front of his cell, Overton threw an unknown liquid substance on Kuper's face, hair, and shoulder. A search of Overton's cell a short time later revealed he was in possession of a homemade weapon constructed from a dried wad of paper inserted inside the end of a sock. Prison officials initiated two disciplinary proceedings against Overton, and a hearing was scheduled for December 2, 2002.
On the date of Overton's hearing, correctional officers Todd Eaves and Brad Allen placed Overton in handcuffs and leg irons and brought him to a small office in the cellhouse where Administrative Law Judge Charles Harper was conducting disciplinary hearings. Overton requested a continuance to allow for a psychiatric consultation, but Judge Harper denied the request. Overton again requested and then demanded a continuance. After his renewed request was denied, Overton became agitated and began hollering. Because of Overton's conduct and demeanor, Judge Harper concluded the hearing could not be conducted in an orderly manner. He announced the hearing was over and ordered Overton out of the office. Overton then stood up and made several threatening statements to Judge Harper. Instead of leaving the office, Overton moved forward and began "lunging" and "pushing" at the judge's desk. Overton continued to ignore orders to leave the office and physically resisted both officers' efforts to remove him from the room. A violent struggle ensued between Overton and Officers Eaves and Allen. The officers eventually restrained Overton with the assistance of other prison personnel.
Judge Harper denied the request because a prison psychologist had already seen Overton and concluded that Overton's diagnosis of anxiety was not a factor regarding either disciplinary charge.
On July 18, 2003, the State charged Overton with two counts of interference with official acts causing bodily injury and one count of criminal mischief. On April 15, 2004, a Lee County jury found Overton guilty of two counts of the lesser offense of interference with official acts in violation of Iowa Code section 719.1(2) and acquitted him of the charge of criminal mischief. On May 14, 2004, the district court sentenced Overton to a term not to exceed one year in prison for each count of interference with official acts. The court ordered both sentences to run concurrently with each other, but consecutively to the sentence already being served by Overton. Overton now appeals, contending that his trial counsel was ineffective.
The criminal mischief charge stemmed from damage to a computer that occurred while officers struggled with Overton.
II. Scope of Review
Our review is de novo because Overton alleges a denial of his constitutional right to effective assistance of counsel. See State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000); State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999); Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. Discussion
Overton bears the burden of establishing ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). To support a claim of ineffective assistance of counsel, the defendant must prove (1) counsel failed to perform an essential duty and (2) prejudice resulted from this omission. State v. Constable, 505 N.W.2d 473, 479 (Iowa 1993). To prove the first prong, "the defendant must overcome the presumption that counsel was competent and show that counsel's performance was not within the range of normal competency." State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). To prove the second prong, the defendant must also show a reasonable probability that the proceeding would have generated a different result but for counsel's errors. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); Gering v. State, 382 N.W.2d 151, 153-54 (Iowa 1986). The defendant has the burden of proving both prongs of the two-prong test by a preponderance of evidence. Ledezma, 626 N.W.2d at 145.
Generally, when a defendant raises claims of ineffective assistance of counsel on direct appeal, we preserve the claims for postconviction proceedings; this provides the opportunity for an evidentiary hearing and permits the development of a more complete record. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). However, we will resolve ineffective assistance of counsel claims when the record on appeal is adequate. Buck, 510 N.W.2d at 853. We find the record in this appeal adequate to resolve Overton's claims of ineffective assistance of counsel.
Overton first contends his trial attorney should have objected to evidence that Overton threw a liquid which he described as milk on a correctional counselor and to evidence that Overton had a homemade weapon in his cell. He asserts this was prior bad acts evidence which was inadmissible pursuant to Iowa Rule of Evidence 5.404(b), which provides "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith."
In this case, we find it unnecessary to analyze Overton's claim that his trial counsel breached an essential duty by failing to object to a line of questioning that led to the admission of this evidence. Assuming without deciding that counsel had some duty to object to this evidence, we find Overton suffered no prejudice. We reach this conclusion because we believe that Overton has failed to show a reasonable probability that the outcome of the proceeding would have differed if his counsel had successfully objected to the evidence at issue here. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The record on appeal suggests that Overton and his trial counsel were not unduly concerned that information about Overton's disciplinary matters would have an adverse effect on the jury. In fact, during testimony about his homemade weapon, Overton challenged the prosecution to "[p]roduce it so the jury can see it." Only after this challenge did the prosecution offer as Exhibit 14 the paperwork from the disciplinary hearing set for December 2 concerning the weapon. The record also reveals that Overton was vigorously defended by an experienced and skilled lawyer whose trial tactics were well within the range of professional competence.
The State presented strong evidence in the form of testimony from Judge Harper, Officer Eaves, and Officer Allen that Overton made threatening movements, threatened to kill Judge Harper, and then physically resisted express orders from the two guards to leave a hearing room as directed by a judge. Given the convincing evidence against Overton, we do not find a reasonable probability that the trial would have generated a different result had Overton's counsel successfully objected to evidence regarding the nature of two recent disciplinary proceedings involving Overton.
Overton also contends that his trial counsel was ineffective for failing to object and move for a mistrial based on prosecutorial misconduct during the prosecutor's closing argument. He claims the prosecutor improperly implied the defendant was lying by stating, "let's not ruin a good story with the truth" during final argument.
Overton correctly notes that our supreme court has held "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 State contends the rules set forth in Graves and Werts were not violated here because the record reveals the prosecutor was merely attempting to rebut a theme injected into the proceedings by defense counsel. Upon review of the record, we agree.
The prosecutor's statement, set out in context, was as follows: "you have seen Mr. Phelan [defense counsel] use the — use the Irish proverb . . . I think the — it was, best as I wrote it down, let's not ruin a good story with the truth." A careful review of the record indicates the prosecutor made this comment while assessing the reasonableness of defense counsel's view of the evidence presented in this case. It is proper for the prosecutor to respond to arguments propounded by defense counsel. Overton's attorney did not breach an essential duty in failing to object to the prosecutor's comments. Accordingly, we reject this assignment of error.
The third argument raised by Overton is that his trial counsel was ineffective for failing to file a motion for a new trial. Under Iowa Rule of Criminal Procedure 2.24(2)( b)(6), the court may grant a new trial "when the verdict is contrary to law or evidence." When a motion for new trial is made, the trial court has the power to weigh the evidence and consider the credibility of witnesses. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). The State presented a solid case against Overton for interference with official acts. Upon review of the record, we conclude there is not a reasonable probability that the court would have granted Overton a new trial if a motion for new trial had been made. Accordingly, trial counsel was not ineffective for failing to raise this issue.
Counsel made a motion for judgment of acquittal which the trial court overruled.
Overton has filed a pro se brief that contends Iowa Code section 719.1(2) only applies to resisting execution of legal process. The brief also raises Fifth Amendment, Sixth Amendment, and Fourteenth Amendment issues. Upon review of the record, we find that error was not preserved regarding the constitutional claims. Therefore, we will not address them. We find no merit to the statutory construction claim because Iowa Code section 719.1(2) clearly states that "[a] person under the custody, control, or supervision of the department of corrections who knowingly resists, obstructs, or interferes with a correctional officer, agent, employee, or contractor, whether paid or volunteer, in the performance of the person's official duties, commits a serious misdemeanor." The language of the statute does not explicitly limit "official duties" to the execution of legal process.
Because we find no merit in any of Overton's appellate claims, we affirm his convictions for two counts of interference with official acts.