Opinion
No. 2-187 / 01-0714.
Filed May 31, 2002.
Appeal from the Iowa District Court for Clinton County, Mark D. Cleve, Judge.
Defendant-appellant, Albert Elliott, appeals from his conviction and sentence for attempted murder and willful injury following a jury trial. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Michael E. Wolf, County Attorney, and Gary Strausser, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Hecht, JJ.
Defendant-appellant, Albert Elliott, appeals from his conviction and sentence for attempted murder and willful injury following a jury trial. He claims the district court erred in excluding certain expert testimony. We affirm.
According to his own testimony, the fifty-three-year-old defendant Albert Elliott knew a man named Kenyatta Harlston. They had met in a bar in June or July 2000. Elliott was shooting pool and Harlston was trying to sell him crack cocaine. Elliott gave Harlston $30, just so he would leave him alone. No drugs changed hands. When the two met again a month or two later, Elliott asked for his money back but did not receive it. On the evening of September 27, 2000, Elliott went to a convenience store for a pack of cigarettes. When he arrived, he saw Harlston, who is black, with two other black men, coming out of the store. A heated conversation took place between Elliott and Harlston, which began with Harlston demanding money from Elliott. After purchasing cigarettes, Elliott came out, found the three young men near his car, and the argument resumed. A store employee came out and asked the three young men to leave. Elliott testified he heard Harlston say he was going to"shoot that punk," or words to that effect as they were leaving. The store clerk did not hear that remark, but he and another customer heard Elliott say, "Do you want to see me run over a nigger?" Elliott then backed out of his parking spot, put on his high beams, pointed his car at the three men, hit the accelerator, and closed his eyes. The car crossed the parking lot, jumped a concrete bumper, crossed part of an adjoining lawn, and ended up in the street. Elliott realized he had run over one of the men, George Davis, who was seriously injured. Elliott left the scene. At trial, he was apologetic on the stand and explained he tried to blind the men with the high beams and that his intention was only to drive toward them to make them get out of his way in order to throw off Harlston's aim if Harlston tried to shoot him. He testified he did not intend to hurt anyone.
Elliott offered the testimony of police officer Pohl, an accident investigator. Pohl tested Elliott's car with a device called a Vericom VC2000, which measures acceleration and deceleration. The State objected on foundational grounds. In an offer of proof outside the presence of the jury, Pohl testified he backed Elliott's car out of the parking space it had occupied in front of the convenience store, and then accelerated as rapidly as possible in the direction toward where Elliott had run into Davis. Pohl stopped the car after about thirty feet, while still in the parking lot. He did not accelerate beyond the parking lot, across the neighboring yard, and into the street to recreate the events of September 27. In the first thirty feet, Elliott's car could reach a speed of just over thirteen miles per hour. Officer Pohl had not previously used the Vericom VC2000, had not been trained in its operation, but had read as much of the manual as he could understand. He did not have any knowledge how it worked and could not provide any information about its accuracy. The State argued Pohl could not testify about the results of his tests without more foundation showing the device was accurate and that Pohl was qualified to operate it. The court agreed and excluded Pohl's testimony.
Based on a drawing of the scene to scale, Elliott traveled about seventy to eighty feet before striking Davis. Tire marks at the scene showed Elliott continued to accelerate after striking Davis and dragging him along the street.
The jury convicted Elliott of attempted murder and willful injury. The court sentenced him to concurrent terms of twenty-five and ten years. Elliott appeals.
On appeal, Elliott contends the court abused its discretion in excluding Pohl's testimony for lack of foundation. In the alternative, he argues trial counsel was ineffective in failing to present the proper foundation for the testimony. We review evidentiary rulings for an abuse of discretion. State v. Griffin, 564 N.W.2d 370, 374 (Iowa 1997). A court abuses its discretion when the court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. August, 589 N.W.2d 740, 744 (Iowa 1999). However, an erroneous evidentiary ruling does not warrant reversal unless "a substantial right of the party is affected." Iowa R. Evid. 5.103(a); State v. Boley, 456 N.W.2d 674, 678 (Iowa 1990).
Officer Pohl's proposed expert testimony concerning the Vericom VC2000 and its use in the acceleration tests he made with Elliott's car falls within the ambit of Iowa Rule of Evidence 5.702. Rule 5.702 provides "an expansive scope of expert testimony:"
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Id.; State v. Atwood, 602 N.W.2d 775, 783 (Iowa 1999). A "threshold requirement for the admissibility of expert testimony is that the testimony must aid the trier of fact to resolve a disputed issue." Olson v. Nieman's, Ltd., 579 N.W.2d 299, 306 (Iowa 1998) (citing Williams v. Hedican, 561 N.W.2d 817, 822-23 (Iowa 1997)). Elliott argues the testimony concerning how fast his car could accelerate across the parking lot would aid the jury in resolving the issue of intent. He also argues he is entitled to present evidence relevant to his theory of defense. State v. Nelson, 480 N.W.2d 900, 906 (Iowa Ct.App. 1991) (citing State v. Wilson, 236 Iowa 429, 442-43, 19 N.W.2d 232, 238-39 (1945)). He claims the test results showing his car would only be moving about thirteen miles per hour after accelerating in the parking lot support his testimony he did not intend to hurt anyone, but only wanted to scare them out of his way so he would not be shot as he left the scene. He also contends the test results would refute the testimony of witnesses who said the car was going "fast," "took off," and was "flying" before it hit Davis.
Officer Pohl did not test the acceleration of Elliott's vehicle to determine how fast it could have been going when it struck Davis. To do that Pohl would have had to drive across the parking lot, the neighboring lawn, and along the street. Assuming the Vericom was properly installed, calibrated, and operated, the most the tests would show is the car's speed as it crossed part of the parking lot. We do not believe this limited testing would have assisted the jury in "screening the properly admitted evidence to ascertain the truth." State v. Griffin, 564 N.W.2d 370, 374 (Iowa 1997). It seems more likely to confuse the jury because the jury could have seen the testing as an attempt to recreate the incident, which it was not. The test results do not refute the witnesses' descriptions of the car's speed when it struck Davis because the tests did not measure the car's speed after accelerating to the point of impact and beyond.
Elliott argues sufficient foundation was made to admit the test results and Office Pohl's testimony. We disagree. Although his training and experience could qualify him as an expert accident investigator, nothing in his training or experience related to the Vericom device. He testified he had not received any training, or even oral instruction in its use. Officer Pohl had not used the device before. He could not testify about the accuracy or calibration of the device. His only knowledge about the Vericom and its use came from reading the accompanying manual, "as much as I could interpret" it. Officer Pohl could not offer any testimony concerning the reliability of the device or its use. We are "committed to the principle that only reliable evidence can . . . `assist the trier of fact.'" Hedican, 561 N.W.2d at 823 (quoting rule 702). We conclude the district court did not err in excluding Officer Pohl's testimony about the tests on foundational grounds.
Elliott also claims the officer's testimony should be allowed because a defendant is entitled to present evidence relevant to his theory of defense. State v. Nelson, 480 N.W.2d at 906. We reject this claim because this principle does not override the rules of evidence to make otherwise inadmissible evidence admissible.
In the alternative, Elliott claims his trial counsel was ineffective in failing to offer sufficient foundation for admitting Officer Pohl's testimony. We review claims of ineffective assistance de novo. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). To prevail on such a claim, the defendant must demonstrate both ineffective assistance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). However, if the defendant cannot demonstrate prejudice, we can decide the ineffective-assistance claim on that ground alone without deciding whether the attorney performed deficiently. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699; Ledezma, 626 N.W.2d at 142.
To sustain this burden, the applicant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." "A reasonable probability is a probability sufficient to undermine confidence in the outcome."
In defining this prejudice prong in Strickland v. Washington, the Supreme Court rejected the claim by the defendant that prejudice was established when the attorney's unprofessional errors resulted in a mere impairment of the presentation of the defense.
Ledezma, 626 N.W.2d at 143 (citations omitted).
Officer Pohl's testimony would not have refuted the testimony of the witnesses who testified Elliott said, "Do you want to see me run over a nigger?" It would have been consistent with the testimony of witnesses who said Elliott got into his car and "gunned" or "floored" it. The testimony would not have said anything about the speed Elliott's car was traveling, not just in the first thirty feet, but after it left the parking lot, jumped the concrete parking block, and "flew" through the neighboring yard, briefly becoming airborne as it passed over a knoll. It would not have refuted evidence that, after Elliott rammed his car into Davis, knocked him into the street, and ran over him, he was still accelerating as the wheels of his car passed over Davis's body. Therefore, we find no reasonable probability the result of the trial would have been different if trial counsel had been able to present Officer Pohl's testimony.
Having found no abuse of discretion in the exclusion of the officer's testimony and no prejudice resulting from its exclusion, we affirm.
AFFIRMED.