Opinion
No. 4-762 / 03-2030
Filed January 13, 2005
Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, Judge.
Daniel Clay Brown alleges counsel was ineffective in failing to object to "bad acts" evidence. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Steve Johnson, County Attorney, and Michael K. Jacobsen, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
After Candace Brown accused her estranged husband, Daniel Clay Brown, of attempting to force her to perform oral sex and later scratching the paint on her car door, the State charged Mr. Brown with (1) assault with intent to commit sexual abuse; causing injury; (2) domestic abuse assault, causing injury; and (3) criminal mischief. A jury convicted him of the first two counts but acquitted him of criminal mischief. He appeals the judgment and sentence imposed, alleging his attorney was ineffective for failing to object to "bad acts" evidence, see Iowa R. Evid. 5.404( b), or for failing to seek a limiting instruction.
We review claims of ineffective assistance of counsel de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Mr. Brown has the burden of proving his counsel breached an essential duty, which breach resulted in prejudice. Id. at 142. The record is adequate to decide the present case, rather than preserving these arguments for postconviction relief proceedings. We affirm the judgment.
Mr. Brown complains of three statements. First, his wife was asked if he was known to carry any sharp objects. She responded that he usually carries a pocketknife. Second, his wife responded to a question about when her husband had been to her house by stating in part that he "hadn't been out of incarceration very long." No other mention was made of any criminal history except for Mr. Brown's admission when he testified to a 1995 conviction for forgery. Third, during cross-examination Mr. Brown was asked about a letter he had written in cursive to his six-year old daughter. In the letter he said if his wife did not show up for trial, "everything would be okay." He argues counsel should have objected to these questions and asked for a limiting instruction.
The letter written in cursive to a six year old presumably would have to be read to the child by her mother.
These three instances, even if inadmissible and subject to objection, fall short of establishing ineffective assistance of counsel. The question about the pocketknife was not "bad acts" evidence as suggested by Mr. Brown, but evidence relevant to the criminal mischief charge. Counsel had no duty to raise a meritless objection. All three instances fail because he cannot establish prejudice. The evidence of his guilt on the assault charges was overwhelming and he cannot show the outcome would have been different with the evidence excluded or if the jury was given a limiting instruction. See, e.g., State v. Rodriquez, 636 N.W.2d 234, 244 (Iowa 2001) (applying "harmless error" analysis in "bad acts" case). The balance of the record overwhelmingly supports the jury's verdicts, including but not limited to the following evidence: Candace Brown's testimony; photographs of her injuries, taken two days after the assault; and testimony from the investigating police officer, who (1) observed that Candace was emotionally distraught immediately after the assault and (2) who had a conversation with Mr. Brown after the incident, in which Mr. Brown falsely stated he had been home asleep the whole time.
After considering the entire record and all arguments presented, assuming Mr. Brown somehow establishes a breach of an essential duty, his claim fails due to lack of prejudice.