Opinion
No. 4-400 / 03-1117.
June 23, 2004.
Appeal from the Iowa District Court for Black Hawk County, J.D. Coil, District Associate Judge.
Caldwell appeals from his convictions for driving while barred, an aggravated misdemeanor, and three simple misdemeanor offenses, contending his trial counsel was ineffective. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas Ferguson, County Attorney, and Heather Prendergast, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Johnny Wayne Caldwell appeals the judgment and sentence entered after he was found guilty of the aggravated misdemeanor offense of driving while barred and three other simple misdemeanor offenses. He contends his trial counsel was ineffective. Because we find no merit in his contention, we affirm his convictions.
The State filed a trial information charging Caldwell with driving while his license was barred, an aggravated misdemeanor. See Iowa Code §§ 321.560, 321.561 (2001). The driving while barred charge was tried to a jury. Five simple misdemeanor offenses were simultaneously tried to the judge presiding over Caldwell's jury trial. Following trial, the jury found Caldwell guilty of driving while barred. The trial court found Caldwell guilty of three simple misdemeanor offenses: driving while suspended for nonpayment of fines, no insurance, and operation without registration. The court acquitted Caldwell of two other misdemeanor offenses.
On appeal, Caldwell claims his trial attorney was ineffective for failing to adequately cross-examine the State's witnesses. He contends counsel should have done a better job of cross-examining the witnesses regarding discrepancies between their depositions and their trial testimony.
The defendant does not refer to any specific discrepancies in his brief on appeal.
We review Caldwell's claim of ineffective assistance of counsel de novo. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). While we generally preserve such claims for postconviction relief proceedings, we will consider them on direct appeal when the record is adequate to address the issue. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In this case, we find the record adequate to address Caldwell's claim on direct appeal.
To succeed on his claim, Caldwell must prove (1) counsel failed to perform an essential duty and (2) prejudice resulted. State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998). The first element requires Caldwell to overcome a strong presumption of counsel's competence and establish counsel's conduct was outside the normal range of competency. Irving v. State, 533 N.W.2d 538, 540 (Iowa 1995). The second element requires proof that, but for counsel's errors, the trial outcome would have been different. Wemark v. State, 602 N.W.2d 810, 817 (Iowa 1999). We may affirm on appeal if either element is lacking. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
Upon our de novo review of the record, we conclude Caldwell has failed to prove his trial counsel failed to perform an essential duty. The record reveals Caldwell's trial counsel thoroughly cross-examined each of the State's witnesses. On several occasions during cross-examination, counsel pointed out what she believed were inconsistencies between the witnesses' testimony at trial and their prior reports and statements. We find no evidence which suggests that any breach of duty occurred during trial counsel's cross-examination of the State's witnesses.
We further find that Caldwell has failed to show that he was prejudiced. During his trial, Caldwell claimed that he was not driving the car that was stopped by the police. The State produced strong evidence to the contrary. During the course of a brief surveillance for a person wanted on a warrant, two police investigators observed a person matching Caldwell's description behind the wheel of a brown car being driven without license plates. The investigators followed the car and observed it at several different locations. At all times, the driver of the brown vehicle was wearing a red baseball cap and a checkered shirt or coat. The officers initially believed the passenger in the vehicle might be the subject of an arrest warrant.
The officers were driving an unmarked police vehicle.
At the request of the investigators, a uniformed officer in a marked patrol vehicle assisted the investigators in making an investigatory stop of the brown vehicle. When the officer approached the vehicle, Caldwell was standing near the driver's side door. He was wearing a red hat and a blue checkered coat. He told the officer the other suspect had run away. He admitted he knew he was barred from driving. Further investigation revealed the car observed by the officers belonged to Caldwell's girl friend. Caldwell claimed he was a passenger in the vehicle. He claimed a juvenile who had runaway from a juvenile facility was the driver. Following his arrest, Caldwell attempted to negotiate his way out of his arrest. We believe it is apparent from the record that Caldwell was convicted based on the evidence of his guilt rather than any alleged deficiencies in his counsel's performance.
For the reasons set forth in this opinion, we conclude Caldwell was not denied his constitutional right to effective assistance of counsel. Accordingly, we affirm his convictions.