Opinion
No. 2-653 / 01-0931
Filed January 29, 2003
Appeal from the Iowa District Court for Washington County, James P. Rielly, Judge.
Defendant appeals her conviction and sentence for child endangerment. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Barbara Edmondson, County Attorney, and Eric Goers, Assistant County Attorney, for appellee.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Krista Kay Crossett appeals her conviction and sentence for child endangerment. The sole claim is her attorney provided ineffective assistance. She claims her attorney should have moved to suppress statements made to a police officer and failed to object to the admission of the statements at trial. We affirm.
I. Background. The nature of Justin Lloyd's injuries are not in dispute. Crossett babysat for Justin, age four months, and his older brother. The boys, and Crossett's daughter, age two and one-half months, were alone with Crossett when Justin suffered a spiral fracture to his right leg. X-rays revealed a left radius fracture and broken ribs. The left radius (arm) fracture happened at the same time as the leg break, and the rib fractures were older. The dispute arises from the interrogation of Crossett on three separate occasions by Detective Humpton. Crossett gave three distinct and disparate accounts of how the right leg was broken. In the third account, she made admissions that in anger she grabbed Justin's right leg and yanked him from the floor. She then roughly pushed his leg up past his head and heard a pop, followed by the child screaming. At trial to the court, she stuck with her first account (that Justin fell out of his walker and accidentally broke his leg).
II. Analysis. Ineffective assistance of counsel claims are reviewed de novo. State v. Bergmann, 633 N.W.2d 328, 332 (Iowa 2001). In order to prove ineffective assistance of counsel, a defendant must demonstrate (1) counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). "Both elements must be proven by a preponderance of the evidence." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). An ineffective assistance of counsel claim will fail if the defendant is unable to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Ordinarily, we preserve ineffective assistance of counsel claims for postconviction proceedings. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). These claims may be resolved on direct appeal, however, when the record adequately addressed the issues. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). The issue here turns on trial counsel's decision not to file a motion to suppress and to not object to testimony about the third interview. The circumstances of the interview and counsel's decision were fully addressed at trial, and therefore we deem this record sufficient to decide Crossett's claims on direct appeal.
Crossett claims she should have been warned of her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Those rights are so well known it is not necessary to repeat them here. She then claims her attorney did not effectively represent her by failing to move to exclude the statements she made to Detective Humpton in the third interview. Crossett was interrogated the third time in her own home. Her boyfriend was present, although the officer asked to speak with her alone. The officer was in plain clothes and did not present evidence of her guilt to her. He suggested her prior explanations of the injuries were implausible. He was attempting to persuade her to tell the truth. See State v. Smith, 546 N.W.2d 916, 925 (Iowa 1996). It may have been a close call as to whether to move to suppress the statements made on Miranda or voluntariness grounds. However, we have the benefit of counsel's explanation for why he chose not to move to suppress. In his closing argument he said:
We come to the point it should have been raised in a motion to suppress. My understanding of Iowa law is had this been tried to a jury even if a Court had not found the statement to be involuntary, there still would have been an instruction to the jury that it's always a matter that can be considered by the trier of fact as to whether a statement was voluntary.
We made a tactical decision feeling that a jury in types of cases like this might allow their emotions to keep them from separating out the complex issues and also made a decision not to raise the suppression motion but to place this all before the trier of fact at the same time because of the interrelationship between what was said and how the officer got the information and what was known to the medical authorities at the time.
A strategic decision not to file a motion to suppress is not necessarily an indication of ineffective assistance of counsel. Kellogg v. State, 288 N.W.2d 561, 565 (Iowa 1980). An attorney's decision regarding strategy or tactics does not ordinarily provide an adequate basis for a claim of ineffective assistance of counsel. State v. Wilkens, 346 N.W.2d 16, 19 (Iowa 1984). When trial counsel acts reasonably in selecting and following through on a chosen strategy, the claim of ineffectiveness is without merit. Id. Three statements were given by the defendant, each inconsistent with the other. Two are not challenged here. Counsel states that he and the defendant made a tactical decision to not challenge the third and to attempt to argue its voluntariness to the trier of fact. Because counsel's decision not to attempt to suppress Crossett's statements was strategic, we find counsel did not fail to perform an essential duty.
We also conclude Crossett suffered no prejudice as a result of counsel's decision. The evidence of her guilt was overwhelming. She was alone with the child when he suffered the injuries. Testimony from three doctors indicated Crossett's account of the injuries were not plausible. Because the child was four months old, unable to even crawl, it is inconceivable he could have accidentally harmed himself.