Opinion
No. 0-457 / 99-0686.
Filed November 20, 2000.
Appeal from the Iowa District Court for Black Hawk County, JAMES BAUCH, Judge.
Defendant appeals from his convictions for first-degree robbery and first-degree burglary. AFFIRMED.
Scott A. Sobel of the Sobel Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Christen C. Odell, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Heard by ZIMMER, P.J., HECHT, and VAITHESWARAN, JJ.
Troy Dewayne Redd appeals from his convictions for first-degree robbery and first-degree burglary and contends: (1) his right to a speedy trial was violated; (2) he was prejudiced by the court's failure to hear his pro se motion to dismiss; (3) the court erred in refusing to fully grant and enforce his motion in limine; (4) the court improperly allowed evidence of prior bad acts; and (5) he was provided ineffective assistance of counsel. We affirm.
I. Factual Background and Proceedings.
On the evening of March 21, 1998, Redd and Carmel Dolan went to a bar called Pat's Tap. While at the bar, Dolan observed Redd talking to and playing pool with another man. Later in the evening, Dolan and Redd returned to Dolan's apartment on Arlington Street in Waterloo. Redd became angry with Dolan's neighbor, Bill Pierce, because Pierce spent several hours that day with Dolan in her apartment. Redd told Dolan he was going to call his "brother-in-law." She overheard Redd tell the person on the phone to "bring the gun because he was going to kill Bill." Approximately fifteen minutes later, the same man Dolan saw with Redd in Pat's Tap arrived at her apartment with a shotgun. Redd and the other man went up to Pierce's apartment. Several shots were fired through Pierce's front door. Pierce was inside his apartment at the time. Redd and the other man then fled the scene.
Later the same evening, Redd and Cletus Johnson were together at the Jet Lounge in Waterloo, Iowa. Two women, Larsie Epps and Rebecca Worth, joined them at the bar and after several minutes, the four returned to Epps's apartment on Lincoln Street in Waterloo. Worth and her boyfriend, Shawn Nosko, lived across the hallway from Epps in another apartment. Nosko was sleeping in his apartment when Johnson, Redd, Epps, and Worth returned to the building. At some point, Nosko entered the hallway and overheard Worth make a comment to Redd and Johnson that he interpreted to be sexual in nature and made him jealous. Nosko said, "Fuck you, bitch" to Worth and returned to his apartment. Johnson and Redd then entered Nosko's apartment, assaulted both Nosko and Worth, and robbed Nosko at gunpoint. Redd and Johnson were arrested later, however, the gun was never recovered.
The State filed a trial information charging Redd with terrorism, pimping, assault with intent to commit serious injury, and false imprisonment as a result of the Arlington Street incident and burglary in the first degree and robbery in the first degree as a result of the Lincoln Street incident. The district court severed the burglary and robbery charges from the other charges. Jury trial began on the burglary and robbery charges on October 27, 1998, and the jury returned verdicts of guilty on both counts. Jury trial on the remaining charges of terrorism, pimping, assault, and false imprisonment began on February 9, 1999. During the latter trial, the district court dismissed the pimping charge on Redd's motion for directed verdict and the State dismissed the false imprisonment charge. The jury convicted Redd of terrorism and assault with intent to commit serious injury.
We note trial counsel filed a notice of appeal and an amended and expanded notice of appeal indicating Redd's intent to appeal all convictions and the sentences associated with them. However, in appellate counsel's (who is not the same attorney as trial counsel) brief before this court, he does not raise any issues addressing the convictions for terrorism and assault stemming from the Arlington Street incident. The State maintains in its brief and we conclude those convictions are not at issue in this appeal. Consequently, we do not consider any issue addressing Redd's convictions for assault or terrorism.
II. Standard of Review.
Redd does not argue his constitutional right to a speedy trial was violated; rather, he argues his statutory right was violated. We review non-constitutional speedy trial issues for abuse of discretion. State v. Nelson, 600 N.W.2d 598, 601 (Iowa 1999). We review evidentiary issues for an abuse of discretion. State v. Query, 594 N.W.2d 438, 443 (Iowa App. 1999). To the extent Redd raises issues that are constitutional in nature, our review is de novo. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000).
III. Speedy Trial.
Redd contends he was denied his right to a speedy trial under Iowa Rule of Criminal Procedure 27(2)(b). Rule 27(2)(b) provides:
If a defendant indicted for a public offense has not waived his or her right to a speedy trial he or she must be brought to trial within ninety days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.
Iowa R. Crim. P. 27(2)(b). The State filed the trial information on April 2, 1998. Trial was originally set for June 2, 1998. At a pretrial conference on May 29, 1998, Redd's trial counsel moved to continue the trial date in order to complete depositions. In the pretrial conference order, the district court noted the "delay is assessed to the defendant." On June 29 and July 24, 1998, Redd again, through counsel, requested continuances in order to complete discovery. The district court granted the continuances and reset the trial date both times. On July 27, 1998, Redd filed a pro se motion to dismiss based on speedy trial grounds. The district court denied the motion noting all continuances had been requested by the defense. In August of 1998, the public defender appointed to represent Redd discovered another member of the public defender's office had recently represented two of the State's witnesses scheduled to testify against Redd. The district court permitted defense counsel to withdraw, appointed new defense counsel, and continued the trial date to September 15, 1998. On September 10 and September 25, 1998, new defense counsel made motions to continue requesting more time to prepare for trial. The district court granted both motions. The jury trial commenced on October 27, 1998.
When a trial is not commenced within the ninety-day period specified in rule 27(2)(b), the trial court must dismiss the case unless (1) the defendant has waived his right to a speedy trial, (2) the delay is attributable to the defendant, or (3) "good cause" exists for the delay. State v. Finn, 469 N.W.2d 692, 694 (Iowa 1991). The record does not indicate Redd filed a written waiver of his right to a speedy trial. Redd maintains he did not waive his right under rule 27(2)(b) and asserts the motions to continue were solely the decisions of his attorneys. The right to a speedy trial contained in rule 27(2)(b) is not a personal right that can be waived only by the defendant. State v. LeFlore, 308 N.W.2d 39, 41 (Iowa 1981). Defense counsel acting within the scope of his or her authority may waive this right on the defendant's behalf without the defendant's express consent. Id. Defense counsels' multiple requests for continuances waived Redd's right to a speedy trial.
Furthermore, good cause existed for the delay. All of the motions for continuance refer to defense counsel's need for additional time to complete discovery and to prepare for trial. The delay was to Redd's benefit. The district court did not abuse its discretion in denying Redd's motion to dismiss on speedy trial grounds.
IV. Pro Se Motion.
Redd contends he was prejudiced by the district court's failure to consider his pro se motion to dismiss on speedy trial grounds. The district court held a hearing on August 21, 1998, for the sole purpose of addressing Redd's motion and made the following ruling:
So as far as I can tell, every continuance in this case was not according to State action but by action of the defendant or a person representing the defendant, and so I am going to deny the Motion to Dismiss.
In addition, the district court filed an order on August 21, 1998, denying the motion. Redd's contentions on this issue are completely devoid of merit.
V. Prior Bad Acts Evidence.
Redd raises three issues regarding the admission of evidence from the Arlington Street incident at trial on the charges arising from the Lincoln Street incident. First, he claims the district court abused its discretion by admitting the evidence. Second, he asserts the district court failed to fully enforce its ruling regarding Redd's motion in limine which limited the extent of the Arlington Street evidence the State could introduce at trial. Finally, he contends trial counsel was ineffective for failing to object to certain portions of the Arlington Street evidence introduced by the State. We will consider each issue in turn.
A. Admission of Arlington Street Evidence.
Iowa Rule of Evidence 404(b) provides evidence of "other crimes, wrongs or acts" is inadmissible to prove the defendant acted in conformity with the character the acts may show, but it is admissible for other purposes, such as to prove motive, identity, or intent. See Iowa R. Evid. 404(b). The exceptions to rule 404(b) are based upon the relevancy of certain evidence to the proof of some fact or element in issue other than the defendant's criminal disposition. State v. Aricivia, 495 N.W.2d 364, 367 (Iowa App. 1992). Evidence of prior bad acts is admissible if: (1) the evidence is relevant to establish a legitimate issue in the case; and (2) there is clear proof the individual against whom the evidence is offered committed the prior bad act. State v. Most, 578 N.W.2d 250, 253 (Iowa App. 1998). Commission of prior acts need not be established beyond a reasonable doubt. State v. Spargo, 364 N.W.2d 203, 210 (Iowa 1985). Relevant prior bad acts evidence may nevertheless be excluded if its probative value is outweighed by its potential for unfair prejudice. See Iowa R. Evid. 403.
The State argues the Arlington Street incident was relevant and necessary to establish the use of a gun in the Lincoln Street incident and to establish the identity of the perpetrators of the Lincoln Street incident. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Iowa R. Evid. 401. We conclude the Arlington Street evidence was relevant to show it was more likely the Lincoln Street incident was committed with a shotgun by Redd. The evidence is also relevant to the issues of identity, intent, and motive. This is particularly true because the Arlington Street incident occurred close in time and location to the Lincoln Street incident. Redd was clearly identified as one of the two perpetrators in both incidents. The two incidents occurred approximately three hours apart on the same evening. The Arlington Street location is three blocks away from the Lincoln Street location. In addition, the Arlington Street incident closely paralleled the circumstances surrounding the Lincoln Street incident. In each situation, Redd was in a bar with one or more female companions and then left the bar to accompany the women to their apartments. At both locations, Redd and another man acted in a violent manner toward the male companions of the women using a sawed-off shotgun. The Arlington Street evidence was relevant to issues at Redd's trial on the charges arising from the Lincoln Street incident and served a purpose other than to show Redd's general criminal disposition.
Even if prior bad acts evidence is relevant, we must consider whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. State v. Alderman, 578 N.W.2d 255, 258 (Iowa App. 1998). In making this determination, we consider the following factors: (1) the actual need for the evidence in view of the issues and the other available evidence; (2) the strength of the evidence showing the prior bad acts were committed by the accused; (3) the strength or weakness of the prior bad acts evidence in supporting the issue sought to be proven; and (4) the degree to which the jury will probably be roused by the evidence improperly. State v. Zeliadt, 541 N.W.2d 558, 562 (Iowa App. 1995). As noted above, witnesses from both incidents clearly identified Redd as one of the actors in both incidents. The evidence a sawed-off shotgun was accessible to Redd during the Arlington Street incident tends to prove Redd was in possession of a shotgun during the Lincoln Street incident, an issue the State was required to prove at trial. Although the Arlington Street incident was violent in nature, it was unlikely to be highly inflammatory in light of the nature of the charges on trial. When the prior bad act did not involve conduct more sensational or disturbing than the crimes being prosecuted, exclusion under Iowa Rule of Evidence 403 is not warranted. See State v. Larsen, 512 N.W.2d 803, 808 (Iowa App. 1993). In addition, the district court gave both an oral and a written limiting instruction to the jury on the proper use of the Arlington Street evidence. A limiting instruction can help to eliminate the danger of unfair prejudice. See State v. Delaney, 526 N.W.2d 170, 176 (Iowa App. 1994). Therefore, we determine the district court did not abuse its discretion by admitting prior bad acts evidence at Redd's trial.
B. Ruling on Motion in Limine.
Redd joined his codefendant's motion in limine requesting the court to exclude all evidence of the Arlington Street incident at the trial concerning the Lincoln Street incident. The district court excluded some of the evidence, including an assault by Redd on Dolan and evidence a dog was shot at the Arlington Street residence. However, the district court did allow the State to present evidence tending to show Redd was in possession of a shotgun and fired it. The court placed the following limitation on the State's use of the evidence:
I am not going to allow the shooting through a door into evidence in this case, but I will allow you to show that there was a gun and the individuals had the gun and that there was some kind of flirtation with the individuals involving the gun and that shots were fired.
The court also ruled the State could not refer to the fact Redd had been charged with terrorism as a result of the Arlington Street incident.
The State offered the testimony of three witnesses regarding the Arlington Street incident. Officer Richard Gehrke responded to Dolan's 911 call and investigated the scene on Arlington Street. He primarily testified as to his observation of shotgun shells at the scene and bullet holes in an apartment door. Pierce testified at trial he was in his apartment when he heard shots fired through his door. Finally, Dolan testified she knew Redd called an acquaintance to ask him to bring over a gun, she observed the two men with the gun, she heard shots fired outside of her apartment, and she saw bullet holes in Pierce's apartment door.
Redd claims on appeal Officer Gehrke's testimony he observed a bullet hole in Pierce's door at the Arlington Street apartments was in direct conflict with the district court's earlier ruling in limine that evidence of shooting through a door would be inadmissible. He asserts the district court erred by not enforcing its earlier ruling. We conclude it is unlikely excluding the testimony of Officer Gehrke that Redd now objects to would affect the outcome of his trial. The record before us shows testimony from other witnesses introduced the same evidence the defendant complains of in Officer Gehrke's testimony. See State v. Keesey, 519 N.W.2d 836, 838 (Iowa App. 1994) (finding no prejudice in the admission of evidence when the same evidence was admitted through the unchallenged testimony of another witness). We find no merit in Redd's contentions regarding this issue.
C. Ineffective Assistance of Counsel.
In order to prevail upon a claim of ineffective assistance, a defendant must prove by a preponderance of the evidence (1) counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). An ineffective assistance of counsel claim will fail if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Redd claims trial counsel was ineffective for failing to object to Officer Gehrke's testimony regarding the bullet holes in Pierce's door on the grounds the evidence was inadmissible based on the district court's ruling on the motion in limine. Trial counsel did object to the testimony on relevancy and prejudice grounds. Even if counsel failed in an essential duty by not objecting to the evidence on the grounds now asserted by Redd, there is no prejudice from admission of evidence where substantially the same evidence is elsewhere in the record without objection. See State v. Wells, 437 N.W.2d 575, 578 (Iowa 1989). Redd's claim of ineffective assistance of counsel cannot succeed because he cannot show the requisite prejudice.
AFFIRMED.