Opinion
No. 3-717 / 02-1439.
Filed December 10, 2003.
Appeal from the Iowa District Court for Pottawattamie County, James Heckerman and J.C. Irvin, Judges.
Robbie Pleas appeals from his conviction for assault causing bodily injury. AFFIRMED.
Drew Kouris, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Matt Wilber, County Attorney, and Jeff Tekippe and Christopher Wilson, Assistant County Attorneys, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Robbie Pleas appeals from his conviction for assault causing bodily injury. We affirm.
I. Background Facts and Proceedings. At the end of a night of drinking in late November 2001, Edward Breitenstein drove to Robbie Pleas' residence to confront him about an affair Pleas had with Breitenstein's wife. While Breitenstein was driving past Pleas' house, his truck struck Pleas' El Camino parked on the street. Breitenstein dragged the El Camino down the block to disentangle the two vehicles, then abandoned his plan to confront Pleas and drove home.
Someone at Pleas' residence called 911 to report the collision. After a brief investigation at Pleas' house, police went to question Breitenstein. Although Breitenstein heard the police knocking on his door, he did not answer. The police then impounded Breitenstein's truck without speaking with him.
After the police left, Breitenstein decided to walk back to Pleas' residence, allegedly to discuss payment for the damage to the car. His friend, Tyler Weik, who had been with Breitenstein throughout the night, accompanied him. Breitenstein claims he and Weik knocked on Pleas' door, received no answer, and decided to leave. He claims that Pleas and Anthony Good exited the house and attacked them with a small baseball bat. Weik ran away, but Breitenstein was severely beaten by Pleas and Good.
When the fight ended, Breitenstein stumbled home with wounds to his face, head, back, and limbs. His wife called an ambulance, and the same police officer who had previously impounded Breitenstein's truck returned to investigate the assault charge.
The police also responded to a call from Pleas and Good alleging Breitenstein and Weik had attempted to burglarize their house. They claimed Breitenstein and Weik attempted to force their way in through the door and that Pleas and Good were acting in self-defense when they attacked Breitenstein. The police who spoke to Pleas and Good had been informed of Breitenstein's complaint and asked them about the use of a bat during the fight. They apparently denied using a baseball bat in the altercation with Breitenstein.
In December 2001, Pleas and Good were charged with willful injury causing bodily injury and arrested. After a jury trial, both were convicted of the lesser included offense of assault causing bodily injury. Pleas appeals, alleging the district court erred when it denied his motion for mistrial after the prosecutor asked Pleas a question in violation of his Fifth Amendment rights. He also contends the trial court erred when it denied his motion for a new trial due to prosecutorial vouching during the State's closing argument. In the alternative, Pleas asserts his trial counsel was ineffective for failing to preserve error on either or both of these issues.
II. Scope and Standards of Review. Because Pleas is alleging violations of constitutional rights, our review is de novo. State v. Veal, 564 N.W.2d 797, 809 (Iowa 1997).
III. Motion for Mistrial. Pleas took the stand in his own defense. During cross-examination, the following colloquy took place:
Q. Nobody hit Ed Breitenstein with a bat is your testimony?
A. Yes.
Q. Was there blood at the scene?
A. Oh, yeah. He was bleeding.
Q. Did you ever tell the police that you had this little bat?
A. They never asked.
At this point Pleas' attorney objected and moved for a mistrial. Pleas argues that the State's question "Did you ever tell the police that you had this little bat?" constituted a violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution and Section 9 of the Iowa Constitution. He contends that he had no duty under the federal and state constitution to talk to the police or reveal incriminating evidence and that it is improper for the prosecutor to point out, in front of the jury, that Pleas chose to remain silent. Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S.Ct. 2240, 2244-45, 49 L.Ed. 91, 97-98 (1976); State v. Metz, 636 N.W.2d 94, 97-98 (Iowa 2001).
The State first contends that Pleas has failed to preserve error on this issue because Pleas was not specific enough in his objection and motion for mistrial. See State v. Mulvany, 603 N.W.2d 630, 632 (Iowa Ct.App. 1999). While the State is correct that Pleas did not cite a specific constitutional ground for his objection or mention Doyle by name, we conclude Pleas has preserved error. We conclude his objection and motion were sufficiently specific to allow the State to respond appropriately and the district court to rule properly on the motion. We will therefore address the merits of his claim.
The State agrees with Pleas that Doyle and Metz prohibit questions implicating a defendant's post-arrest, post-Miranda silence, but denies that the prosecutor's question addressed Pleas post-arrest silence. Rather, the State contends the prosecutor was referring to statements Pleas made to police before he was arrested or given his Miranda warnings. The State points out that Pleas contacted the police himself about the alleged burglary and that he had numerous conversations with police before he was arrested. The State argues that impeachment by use of pre-arrest silence does not violate a defendant's rights under the Fifth Amendment. Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 2129, 65 L.Ed. 86, 95 (1980).
After our review of the record, we conclude that while the prosecutor's questions did not explicitly refer to Pleas' pre-arrest silence, the question was clearly directed to Pleas' pre-arrest conversations. The preceding questions established that Pleas had made a complaint and spoken with police about Breitenstein's alleged attempted burglary. We certainly do not condone the prosecutor's lack of specificity in this context, but because the line of questioning clearly referred to Pleas' pre-arrest discussions with police, we conclude the prosecutor's question did not implicate Plea's Fifth Amendment rights. Id. Further, even if the question could be deemed to have implicated Pleas' post-arrest silence, we conclude the question was harmless beyond a reasonable doubt because it was an isolated comment and was promptly responded to by the district court. The district court not only prohibited the State from asking any more questions about the same subject, but admonished the jury to disregard the question and answer to which Pleas' counsel voiced the objection. Accordingly, we affirm the district court's denial of Pleas' motion for mistrial.
IV. Motion for New Trial. Pleas argues the district court erred when it denied his motion for a new trial based on alleged prosecutorial misconduct. He contends the State improperly vouched for its own witnesses during closing argument. In Pleas' motion for a new trial, he asserted the State "committed reversible error by vouching for their witness arguing outside the record that the officers would not put their job or pension on the line by fabricating evidence." Although Pleas' trial counsel objected at the time the prosecutor made these statements, he failed to have the closing arguments recorded or to file a motion for bill of exceptions. As a result, we have precious little to review to determine if the district court erred. The State asserts that because of the lack of a record, Pleas has failed to preserve error, and we agree.
Pleas, however, argues in the alternative that his trial counsel was ineffective by failing to create a record for this court to review. To succeed on a claim for ineffective assistance of counsel, Pleas must establish both that his trial counsel failed in an essential duty and that prejudice resulted. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). Ordinarily, we prefer to leave ineffective assistance of counsel claims for postconviction relief proceedings. Id. We will review such claims on direct appeal if the record is clear and trial counsel's actions cannot be explained by plausible strategic or tactical considerations. Id.
We conclude this issue should be preserved for possible post conviction relief proceedings. Pleas' attorney objected during closing arguments, and the district court concluded Pleas' objection had enough merit to sustain it and warn the State not to make any more similar statements. Counsel is clearly prohibited from personally vouching as to a defendant's guilt or a witness's credibility. State v. Phillips, 226 N.W.2d 16, 19 (Iowa 1975). The record is not adequate to adjudicate this issue on direct appeal, and we therefore preserve Pleas' claim of ineffective assistance of counsel for possible postconviction proceedings.