Opinion
No. 4-012 / 03-0166
Filed February 27, 2004
Appeal from the Iowa District Court for Marshall County, Michael J. Moon, Judge.
The defendant-appellant, Husein Cejvanovic, appeals following his conviction of kidnapping in the first degree, in violation of Iowa Code sections 710.1 and 710.2 (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Jennifer Miller, County Attorney, and Paul Crawford, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
The defendant-appellant, Husein Cejvanovic, appeals following his conviction of kidnapping in the first degree, in violation of Iowa Code sections 710.1 and 710.2 (2001). He contends (1) his trial attorney was ineffective in failing to request an intoxication instruction and a confinement instruction, (2) the district court abused its discretion in sustaining the State's objections to evidence he claims was relevant to his defense and, (3) the district court should have granted him a new trial because the jury verdict was against the weight of the evidence. We affirm.
The defendant's neighbor accused him of coming in her apartment and dragging her to his apartment, where he locked the door, forced her at knife point to take off her clothing, engaged in intercourse with her, and forced her to perform fellatio. She contended she finally convinced him to open the door and then she ran naked to her apartment where a roommate called police. She also contended that the defendant was drunk at the time. No DNA from the victim was found in the defendant's apartment, nor was any of the defendant's DNA found on the victim. The victim's clothes were found scattered between her apartment and the defendant's. Based primarily on the victim's testimony the jury convicted the defendant of kidnapping and the court sentenced him to life in prison.
The defendant claims his trial attorney was ineffective. A defendant is entitled to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). The test is "whether under the entire record and totality of the circumstances counsel's performance was within the normal range of competence." State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). A defendant is not entitled to perfect representation, rather representation which is within the normal range of competency. Karasek v. State, 310 N.W.2d 190, 192 (Iowa 1981). Ordinarily, ineffective assistance of counsel claims are reserved for postconviction relief actions. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). However, when the appellate record is sufficient to permit a ruling, we will address the claims on direct appeal. Id.
For the defendant to succeed on an ineffective assistance of counsel claim the record must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Jones v. Scurr, 316 N.W.2d 905, 911 (Iowa 1982). To show prejudice, the defendant must demonstrate there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.
We first address the defendant's claim his attorney should have requested an instruction on an intoxication defense. Defense counsel filed notice of an intoxication defense and raised the issue of the defendant's intoxication throughout the trial, questioning witnesses about the degree of his intoxication. "Evidence of temporary intoxication is simply evidence to be considered by the jury on the issue of intent." State v. Lawrence, 559 N.W.2d 292, 296 (Iowa Ct.App. 1996). Intoxication is a defense only when it causes a mental disability that makes the person incapable of forming the specific intent necessary for the crime charged. State v. Collins, 305 N.W.2d 434, 436 (Iowa 1981).
The fact that a person is under the influence of intoxicants or drugs neither excuses the person's act nor aggravates his or her guilt, but may be shown where it is relevant in proving the person's specific intent or recklessness at the time of the person's alleged criminal act or in proving any element of the public offense with which the person is charged.
Iowa Code § 701.5 (2001). Since kidnapping in the first degree requires proof of specific intent and there was evidence of the defendant's intoxication, defense counsel could have requested an intoxication instruction to address that element.
The State concedes the record supports giving the instruction if requested, but contends the defendant's attorney may have had a valid reason for not requesting it, and therefore the issue should be preserved for postconviction proceedings. From our review of the record, we agree giving an intoxication instruction is supported by the evidence, but there may be strategic reasons why defense counsel did not request the instruction. We therefore preserve this claim for possible postconviction proceedings to permit development of the record and to give counsel an opportunity to respond to defendant's claims. State v. Ruesga, 619 N.W.2d 377, 383 (Iowa 2000).
The defendant next contends his attorney should have requested an instruction defining confinement, an essential element of the crime of kidnapping. The defendant correctly argues that, though sexual abuse involves some degree of confinement or removal, not all sexual abuse rises to the level of kidnapping, and although no minimum period of confinement is required, it must exceed the incidental confinement necessary to complete the underlying assault or sexual abuse. See State v. Griffin, 564 N.W.2d 370, 373 (Iowa 1997); State v. Hatter, 414 N.W.2d 333, 335 (Iowa 1987).
The State argues the confinement instruction did not need to be given because the defendant claimed the victim came to his apartment and kissed with him and defense counsel purposely may have decided not to submit the instruction as a strategic matter. The State also argues the instruction was of no consequence because the victim's removal and confinement was more than incidental to rape. In making this argument the State points to evidence the defendant dragged the victim from her apartment to his, locked her inside, and held a knife to her throat, making the risk of detection less and the risk of harm to the victim greater. See Griffin, 564 N.W.2d at 373. There was evidence the victim may have been in the apartment voluntarily. As with the intoxication instruction, we believe not requesting the instruction could have been a strategic decision. We therefore preserve this claim for possible postconviction proceedings.
The defendant next contends the district court abused its discretion in refusing to allow the victim to be examined about the fact she used forged documents. The State filed a motion in limine seeking to preclude defense counsel from inquiring about the victim's citizenship status, what documents she had, and what documents she used to gain employment, claiming it did not go to any relevant issue to prove the charge against the defendant. He argued the evidence would address the victim's credibility, which was the central issue in the case. He further argued the physical evidence was not strong and the State was relying on the victim's evidence, but he wanted to question the detectives to show they had done little investigation of their witness and the State advised her to take the Fifth Amendment in answer to certain questions. He further contended she was getting preferred treatment because she stuck with her story.
The defendant made an offer of proof, questioning the victim in an attempt to show she had used false papers to obtain employment. She had testified in deposition she did not have a social security number and evaded that issue on questioning in the offer of proof. When asked about her entry and employment documents, she took the Fifth Amendment. When asked to produce documents she produced a Mexican identification card. The court excluded the proffered testimony on the basis that any relevance it had concerning her credibility was far outweighed by the danger of unfair prejudice, confusion of issues, and misleading the jury. See Iowa R. Evid. 5.403.
We review the district court's evidentiary rulings for an abuse of discretion. See State v. Ludvigson, 482 N.W.2d 419, 423 (Iowa 1992). "An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000). "[W]e must also decide if the trial court abused its discretion in determining whether any danger of unfair prejudice created by the evidence substantially outweighed its probative value." State v. Cott, 283 N.W.2d 324, 329 (Iowa 1979). "Such a balancing calls for a large measure of individual judgment about the relative gravity of imponderables." McCormick Handbook of the Law of Evidence § 190, p. 453 (2d ed. 1972). Even if an abuse of discretion is found, reversal is not required unless prejudice is shown. State v. Windsor, 316 N.W.2d 684, 688 (Iowa 1982). We agree with the district court that the risk of confusing the issues and the jury outweigh the probative value of the evidence. We find no abuse of discretion and affirm the decision of the district court not to allow the evidence.
The defendant's last claim is that the verdict was against the weight of the evidence and the district court abused its discretion in failing to grant him a new trial on that ground. The trial court has broad discretion in ruling on a motion for new trial. See Ellis, 578 N.W.2d at 658. Appellate review of a weight-of-the-evidence claim is a review of the district court's exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003) (citing Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)). Motions for a new trial should be granted only in exceptional circumstances. Ellis, 578 N.W.2d at 659. Weighing evidence involves making credibility determinations. Id. at 658 (citing Tibbs, 457 U.S. at 37-38, 102 S.Ct. at 2216, 72 L. Ed.2d at 658). The trial court is in the unique position of seeing witnesses and hearing them testify. See Committee on Professional Ethics Conduct v. O'Donohoe, 426 N.W.2d 166, 168 (Iowa 1988). From our review of the record, we conclude the district court properly considered the weight of the credible evidence. We find no abuse of discretion in the district court's decision not to grant a new trial.