Opinion
No. 1-580 / 01-0157.
Filed January 9, 2002.
Appeal from the Iowa District Court for Sac County, GARY L. McMINIMEE (trial) and JOEL E. SWANSON (sentencing), Judges.
Defendant appeals from the judgment and sentence entered upon jury verdicts finding him guilty of domestic abuse assault while displaying a dangerous weapon in violation of Iowa Code section 708.2A(2)(c) (1999) and third-degree sexual abuse in violation of 1999 Iowa Acts chapter 159, section 4(1) (codified at Iowa Code section 709.4(1) (2001)). AFFIRMED.
Shelley A. Horak of Shelly Horak and Associates, P.C., Sioux City, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Pamela Dettmann, County Attorney, for appellee.
Heard by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Jack Androy appeals from the judgment and sentence entered upon jury verdicts finding him guilty of domestic abuse assault while displaying a dangerous weapon in violation of Iowa Code section 708.2A(2)(c) (1999) and third-degree sexual abuse in violation of 1999 Iowa Acts chapter 159, section 4(1) (codified at Iowa Code section 709.4(1) (2001)). He contends (1) the State engaged in misconduct by improperly eliciting inadmissible evidence as to his character and other bad acts over contrary instruction from the trial court, and (2) his trial counsel was ineffective in failing to object to the improper and inadmissible evidence elicited by the State. We affirm.
I. BACKGROUND FACTS.
The jury could find the following facts from the evidence. Androy and his wife, Ruth, were married in June 1958. After their adult daughter Tammy moved out of their home, the household became more stressful. Androy experienced mood swings. He was very irritable. He threatened to go after Tammy. He would calm down for a while, and then other days he would be erratic. Ruth testified that she was fearful of him. On several occasions, Androy threatened to kill himself and Ruth if Tammy did not return home.
On the morning of November 28, 1999, Androy and Ruth were in their kitchen when Androy started smacking the table with his fist. He then smacked the counter and hit the wall. He went upstairs, and when he returned, he had a gun. Ruth saw him putting bullets into it. He was shaking the gun back and forth and pointing it at Ruth. After speaking with their son on the phone, Androy calmed down, took the bullets out of the gun, and took it upstairs.
On the evening of November 30, 1999, Ruth bathed, watched television, and announced she was going upstairs to bed while Androy was still bathing. Ruth and Androy had separate bedrooms for approximately twenty-five years. They had not had sexual relations during that time. On the evening in question, Androy asked to sleep in Ruth's bed with her, and Ruth told him he could sleep with her but there would be no other activity. Ruth later saw him standing in the hallway loading bullets into his gun. He pointed the gun at her and asked, "[Y]ou are going to let me come to bed with you, aren't you?" Ruth responded affirmatively, and Androy entered her bedroom with the gun. Ruth became very frightened. Androy started talking about killing Ruth and then killing himself. Androy said he wanted to have sexual intercourse, and Ruth responded negatively. Androy had placed the gun underneath his pillowcase. The couple had intercourse, although Ruth had asked him to stop.
Androy was charged with domestic abuse assault while displaying a dangerous weapon based on the events of November 28, 1999, and second-degree sexual abuse based on the events of November 30, 1999. After his jury trial, he was convicted of domestic abuse assault while displaying a weapon and third-degree sexual abuse. The court sentenced Androy to an indeterminate, two-year prison term for assault and an indeterminate, ten-year prison term for sexual abuse, to be served consecutively. Androy appeals.
Androy claims (1) the State engaged in misconduct by improperly eliciting inadmissible evidence as to his character and other bad acts over contrary instruction from the trial court, and (2) his trial counsel was ineffective in failing to object to the improper and inadmissible evidence elicited by the State. Androy concedes he has not preserved error on his first argument, and alleges that failure is due to the ineffective assistance of trial counsel. Because Androy does not identify the testimony he challenges in his first claim, because error was clearly not preserved on that claim, and because it appears probable that the evidentiary concerns at issue in his second claim include any he might have attempted to assert in his first claim, we address Androy's claim that the State engaged in misconduct as if brought as a claim of ineffective assistance.
II. SCOPE OF REVIEW.
Androy is entitled to the assistance of counsel under the Sixth Amendment of the United States Constitution and Article 1, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). Because a claim of ineffective assistance of counsel implicates constitutional rights, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. See State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999); see also State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
To establish an ineffective assistance of counsel claim, the defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wenmark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of ineffective assistance of counsel focuses on whether the performance by counsel was reasonably effective. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must show that performance fell below an objective standard of reasonableness so that counsel failed to fulfill the role in the adversary process that the Sixth Amendment envisions. Id. at 688, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693. A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wenmark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
"Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972)); see also Wenmark, 602 N.W.2d at 814. A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987).
While we often preserve ineffective assistance claims for possible postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Androy does not suggest the record is inadequate, the State asserts the record is adequate, and we find the record adequate to address Androy's claims.
The State alleges Androy's ineffective assistance of counsel claims are not properly preserved for review. It contends that because a different attorney assumed Androy's representation before his motion for new trial was decided, she had a duty to raise the ineffective assistance of counsel claims in the district court. It contends that although she sought time to do so, she did not go far enough in securing the sentencing court's ruling on her extension request. We note that ineffective assistance of counsel claims operate as an exception to the error preservation requirement. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). We do not find it necessary to address the State's argument, because we find that even if error has been preserved, Androy's ineffective assistance claims are without merit.
We note that, in reference to his ineffective assistance claims, Androy has only listed the pages in the transcript and appendix where the allegedly objectionable evidence is found, and has not specifically indicated the grounds on which his trial attorney should have objected to the evidence other than under Iowa Rule of Evidence 404(b). Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (stating that party claiming ineffective assistance must state the specific ways in which counsel's performance was inadequate). We will address Androy's claims as a claim that the evidence was inadmissible under rule 404(b), but we do not speculate as to any other ground on which Androy believes the evidence was objectionable.
We first consider whether Androy's trial counsel was ineffective in failing to object to evidence allegedly admitted in violation of rule 404(b). The evidence cited by Androy as objectionable generally relates to the following: his prior acts concerning Ruth; his prior acts concerning their children; the stress in the household after Tammy moved out; his telling Ruth he would kill her and then himself; his mood swings; that she was fearful of him; that he was threatening or abusive if he did not get his way; that when he was calm, he was actually behaving deceptively and something was about to happen; and no-contact orders prohibiting contact between Androy and Ruth and Androy and Tammy that were entered after November 30, 1999.
Iowa Rule of Evidence 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Iowa R. Evid. 404(b). This rule "is a codification of our common-law rule that one crime cannot be proved by proof of another." State v. Castaneda, 621 N.W.2d 435, 439 (Iowa 2001). Rule 404(b) seeks to exclude evidence that serves no purpose except to show the defendant is a bad person, from which the jury is likely to infer he or she committed the crime in question. Id. at 439-40. Accordingly, to be admissible, evidence must be relevant "to prove some fact or element in issue other than the defendant's criminal disposition." Id. at 440 (quoting State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979)).
Evidence is relevant when it has "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. "Evidence is relevant if a reasonable person might believe the probability of the truth of the consequential fact to be different if the person knew of the challenged evidence." State v. Brown, 569 N.W.2d 113, 116 (Iowa 1997) (quoting State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988)).
If the evidence is relevant for a legitimate purpose, the court must then assess whether the evidence's "probative value is substantially outweighed by the danger of unfair prejudice." Iowa R. Evid. 403. "`Probative value' gauges the strength and force of the tendency of the evidence to make a consequential fact more or less probable." State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988). Unfairly prejudicial evidence is evidence that
appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [that] may cause a jury to base its decision on something other than the established propositions in the case.Id. (quoting 1 Jack B. Weinstein et al., Weinstein's Evidence ¶ 403[03], at 403-33 to 403-40 (1986)). A proper weighing of probative value and unfair prejudice requires that the court consider
on the one side, the actual need for the other-crimes evidence in light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other hand, the degree to which the jury will probably be roused by the evidence to overmastering hostility.State v. Wade, 467 N.W.2d 283, 284-85 (Iowa 1991) (quoting Edward W. Cleary, McCormick on Evidence § 190, at 453 (2d ed. 1972)). There must be clear proof that the defendant committed the other bad act. See Brown, 569 N.W.2d at 117.
We find the evidence cited by Androy to be relevant to both crimes. To prove domestic abuse assault while displaying a weapon the State was required to prove Androy's act was meant to place Ruth in fear of painful, injurious, insulting or offensive contact. The evidence shows that Androy was controlling, heavy-handed and threatening towards Ruth and their children and is thus relevant to show he intended to place Ruth in fear of him on November 28. To prove second-degree sexual abuse (and the lesser-included offense of third-degree sexual abuse of which the jury found Androy guilty) the State was required to prove that the marital sex act was by force or against Ruth's will. The evidence is relevant as tending to show Androy's prior relationship with Ruth and bears upon Ruth's state of mind at the time of the November 30 incident. The evidence is thus relevant as tending to show that she submitted to Androy out of fear and against her will. See State v. Shortridge, 589 N.W.2d 76, 83 (Iowa Ct.App. 1998) (holding evidence of defendant's other bad acts was relevant to establishing the relationship between the parties and went to motive); State v. Plowman, 386 N.W.2d 546, 550 (Iowa Ct.App. 1986) (holding evidence of defendant's prior acts toward victim was relevant to show prior relationship and thus defendant's malice). We thus find the evidence in question relevant for legitimate purposes under rule 404(b).
We also find the probative value of the other bad acts evidence was not substantially outweighed by the danger of unfair prejudice. First, we find this evidence was needed, as this was a he said/she said case. Second, there was clear proof that Androy committed the other acts. Ruth's testimony was clear and unambiguous, and Androy's testimony corroborated substantial parts of her testimony regarding the other acts. Third, we find the strength of the admitted evidence on the elements of intent for both crimes was high. We particularly note that the conduct on November 30, 1999 was a marital sex act, and the evidence in dispute tends to show the act was done by force or against Ruth's will.
On the other side of the balancing process, we must consider the degree of prejudice that would result from admission of the other acts testimony. Although evidence of the other acts would have the potential to unfairly prejudice the jury, we must put the potential effect of this evidence in perspective. The other acts were not as brutal or shocking as the charged domestic abuse assault, which involved display of a gun, or the sexual abuse, an act committed by force or against Ruth's will. This is not a case where the other acts would rouse the jury to "overmastering hostility." See State v. Larsen, 512 N.W.2d 803, 808 (Iowa Ct.App. 1993) (holding that potential prejudicial effect of subsequent acts evidence was "neutralized by the equally reprehensible nature of the charged crime").
On balance, we cannot say that Androy's trial counsel had a duty to object to this evidence on the basis that it was inadmissible evidence of other bad acts. Counsel has no duty to pursue meritless issues. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Because counsel's objections to this evidence would have been meritless, he breached no duty.
Next, we consider Androy's argument that his trial counsel was ineffective in failing to move for mistrial based on prosecutorial misconduct in presenting improper evidence over contrary instruction by the court in order to improperly influence the jury. He contends that the trial court admonished the prosecutor early in the trial about pursuing testimony about his character.
We find that trial counsel had no duty to move for a mistrial. We have found the allegedly objectionable evidence admissible, and thus counsel had no duty to pursue this meritless issue.
IV. CONCLUSION.
We find Androy's trial counsel did not breach an essential duty in failing to object to certain other bad acts evidence and in failing to move for mistrial, as such actions would have been meritless. We therefore affirm the judgment and sentence.
AFFIRMED.