Opinion
No. 4-564 / 03-1444.
September 29, 2004.
Appeal from the Iowa District Court for Des Moines County, William L. Dowell, Judge.
Daunte Dominique Bullock appeals following his conviction for first-degree kidnapping. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Andrew B. Prosser, Assistant Attorneys General, and Patrick C. Jackson, County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Daunte Dominique Bullock appeals his conviction, following a jury trial, for first-degree kidnapping, in violation of Iowa Code sections 710.1 and 710.2 (1999). He claims his trial counsel was ineffective in several respects. We affirm Bullock's conviction and preserve his ineffective assistance claims for a possible postconviction relief proceeding.
On July 1, 1999, Jennifer Steele (n/k/a Carley) was sexually assaulted by a man who entered her apartment through a window. After the assault, the man forced Carley to go outside and get into her car. Carley's assailant then forced her to drive to a rural area where he released her and her child. Carley walked to a nearby house and the police were called. A lengthy police investigation ensued.
Carley was accompanied by her three-month-old baby.
On June 27, 2002, the State formally charged Bullock with kidnapping in the first degree, a class "A" felony, in violation of Iowa Code sections 710.1 and 710.2. Bullock pleaded not guilty. A jury found Bullock guilty as charged and he was subsequently sentenced to life in prison.
Bullock appeals contending his trial counsel was ineffective. Specifically, he claims his trial counsel was ineffective for failing to request a change of venue, for failing to investigate potentially exculpatory DNA evidence, and for failing to object to testimony by the victim and Albert Collins that placed Bullock near the victim's car a few days prior to the attack.
Bullock claims trial counsel should have objected to the witnesses' testimony and moved to strike the testimony as hearsay and lacking in personal knowledge.
Because Bullock alleges a denial of his constitutional right to effective assistance of counsel, our review is de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To establish a claim of ineffective assistance of counsel, Bullock has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted from this omission. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
Usually we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). We do so to allow the development of a record regarding the facts surrounding counsel's conduct, Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999), and to give counsel an opportunity to respond to and defend the allegations of ineffective assistance. State v. Laffey, 600 N.W.2d 57, 60-61 (Iowa 1999). Here, no record has been made before the district court on these issues, and we find the record before us insufficient to address Bullock's ineffective assistance of counsel claims on direct appeal.
Accordingly, we affirm Bullock's conviction and preserve his claims of ineffective assistance of counsel for a possible postconviction relief proceeding.