Opinion
No. 4-025 / 03-0455
Filed February 27, 2004
Appeal from the Iowa District Court for Scott County, Patrick J. Madden, Judge.
Defendant appeals his conviction and sentence claiming ineffective assistance of counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, William Davis, County Attorney, and Michael Walton, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Vogel and Mahan, JJ.
Jeramy Lee Essary appeals his conviction and sentence claiming ineffective assistance of trial counsel. Because trial counsel did not breach an essential duty, we affirm Essary's conviction and sentence.
Background Facts.
Essary's sixteen-month old son died while in his care. The death was ruled a homicide by suffocation and Essary was subsequently charged with first-degree murder, child endangerment — multiple acts, assault causing serious injury, child endangerment resulting in serious injury, and two counts of child endangerment resulting in bodily injury. A jury found Essary guilty of all charges. The district court sentenced Essary to life imprisonment and five indeterminate terms totaling seventy-five years, to be served consecutively. Essary appeals claiming his counsel was ineffective.
Scope of Review.
Claims of ineffective assistance of counsel are constitutional challenges, and we conduct a de novo review of the district court ruling, assessing its decision in light of the totality of the circumstances. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Ineffective Assistance of Counsel.
Typically, ineffective assistance of counsel claims are preserved for possible postconviction review, to allow a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). However, where the record is sufficient to reach the merits of the defendant's contentions, we will address ineffective assistance claims on direct appeal. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App. 2000). We find the record in this case is sufficient to determine the defendant's claims.
To establish ineffective assistance of trial counsel, the defendant must overcome a strong presumption of his counsel's competence. State v. Nucaro, 614 N.W.2d 856, 858 (Iowa Ct.App. 2000). He has the burden of proving his attorney's performance fell below "an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. State v. Carillo, 597 N.W.2d 497, 500 (Iowa 1999).
Essary's sole claim on appeal is that his trial counsel was ineffective for failing to object to the prosecutor's opening argument and thereby failing to move for a mistrial. Essary's challenge relates to the prosecutor's use of the phrases "defendant's testimony" and "defendant testifies." The State contends that the opening argument as a whole elicits the prosecutor's meaning and intent; and as such, trial counsel was not ineffective in failing to object or move for mistrial.
The prosecutor's opening argument states, in part,
I'll talk a little bit about the evidence. Much of the evidence today is going to discuss the events of May 15th and what occurred. You're going to see the interview of Jeramy Essary on that date. It was an interview done by Detective William Thomas of the Davenport Police Department. Detective Thomas, who will testify shortly, I believe, will testify — I believe he will testify that — I think all the witnesses will testify that upon sight of this baby, they knew something was wrong. Too many injuries, too many injuries of different kinds, too many injuries of different ages, and as probably with any child that dies under unusual circumstances, the police were called. Detective Thomas is going to testify to some things he heard the defendant say at the hospital. He's going to testify to an interview that he conducted with Jeramy Essary, and that interview is on tape and we'll watch that tape. I want you to note a few things. When viewing any evidence, you should look for what evidence is consistent with testimony that other people give, and what you find to be more believable. I want you to pay particular note to the defendant's testimony and compare that to the testimony of the doctors and the other witnesses. Who was Jeramy Essary most concerned about on May 15th, 2002, Niqolus or himself? Jeramy states that on that morning he had been up for most of the night, and the two sisters go off to school in the morning at about 7:30. Mary went to work that morning at approximately 5:30, she works at the Kahl Home, and Niqolus watched his two sisters go off to school out the window. I believe he cried, and at that time Mr. Essary says he and Niqolus fell asleep on the couch. Mr. Essary says he woke up a little bit later and he moved Niqolus to some like lawn chair cushions on the floor and went back to sleep. Mr. Essary says he woke up sometime later and Niqolus was gone. He looked throughout the house, and this is a two-story apartment. He says he found Niqolus at the bottom of the stairs. Niqolus was making gurgling sounds and not breathing. His actions from that point, take note. He tried to, he says, perform CPR. He had seen CPR done on TV. He makes a statement that they had a first aid book, and he looked all over for the first aid book. He has a phone. He says that he ran around frantically pounding on a neighbor's door, looking for help. You will hear the testimony of his next-door neighbor, Larry Swain, who was home that morning, didn't hear a peep, no one ever knocked on his door. What the defendant eventually chose to do was to call his wife, Mary Essary, at work, and tell her that something had happened with Niqolus. And you will hear Mary's testimony, and I believe the defendant said Mary didn't wait to hear much else because she knew something bad had happened and she left immediately. The defendant never called 911, he called his wife. The defendant testifies that Niqolus continued to try to breath or was breathing. As Mary is running from the Kahl Home to her house, she sees the car of one of their friends, actually Jeramy's best friend, Michael Thorson, at his mother-in-law's home. She gets the Thorsons, they drive to 522 Oak Street, their home, the Essary home, and Mary runs in the door, screaming, "Niqolus." Nowhere to be found, no sound. She runs upstairs. She finds Niqolus right by those cushions where he had been laid, according to the defendant, earlier, and she wants to take the child to the hospital. The defendant does not want to go, and he says, "I don't want to go because they'll think I did it." This child is dying. The doctors will testify that on arrival at that hospital, Niqolus was not breathing, that he was dead, and most likely had been dead for some time, an hour or more. When Mr. Essary in this interview is asked about the injuries to Niqolus, Mr. Essary says, "Well, he fell down the stairs." And even Detective Thomas says, "I don't see any injuries from falling down the stairs." And the defendant says, "Yeah, the knot on his head right here." Right here. The evidence will show that that knot on Niqolus Essary's head came when he was slammed into the entertainment center, and he knew it.
( Emphasis added). Trial counsel made no objections to this statement.
The rules of criminal procedure allow a prosecutor to "briefly state the evidence by which the prosecuting attorney expects to sustain the indictment." Iowa R. Crim. P. 2.19(1)( a)(2). The prosecutor's opening statement in this case gave an overview of the baby's injuries and subsequent death. It previewed for the jury the testimony of various witnesses, including the videotaped interview Essary gave to the investigating officer which was clearly part of the evidence the prosecutor was intending to offer as part of its case in chief.
The prosecutor's opening statement was well within rule 2.19(1)( a)(2).
Essary did not testify at trial and now contends that the prosecutor's above references to Essary's "testimony" is equivalent to a reference to his failure to testify at trial. See generally Griffin v. California, 380 U.S. 609, 612-15, 85 S.Ct. 1229, 14 L.Ed.2d 106, 108-10 (1965) (holding a prosecutor violates a defendant's Fifth Amendment privilege against self-incrimination if he comments on defendant's failure to testify at trial). "The rule against commenting on an accused's silence is violated if the language used by the prosecutor, in context, would `naturally and necessarily' be understood by a jury to be a comment on the failure of the accused to testify." State v. Taylor, 336 N.W.2d 721, 727 (Iowa 1983) (citing United States v. Harris, 627 F.2d 474, 476 (D.C. Cir. 1980)). However, taken in context, it is clear that the prosecutor was explaining what the jury would see on the videotaped interview with Detective Thomas on the day of Niqolus's death. The prosecutor refers to the interview at the outset of this discussion and refers back to it several times. The fact that the prosecutor used the phrases "defendant's testimony" on one occasion and "defendant testifies" on another occasion in the context of the entire statement, is not enough to draw the conclusion that the prosecutor was commenting on anticipated trial testimony. See generally State v. Smith, 641 S.W.2d 463, 469 (Mo.Ct.App. 1982) (holding that the "testimony" of defendant referred to in both the State and defense arguments was defendant's tape recorded interview given to investigating officers shortly after his arrest). On our de novo review of the record, we find the prosecutor's opening statement would not have "naturally and necessarily" been understood by the jury as a comment on Essary's failure to testify. See Taylor, 336 N.W.2d at 727. Therefore, trial counsel did not breach an essential duty by not objecting to the opening statement or requesting a mistrial.
Even if we were to find the opening statement improper and trial counsel breached an essential duty, we are unconvinced that the breach was prejudicial. In determining prejudice as a result of prosecutor error, "we `consider the whole trial, and the court's admonition to the jury.'" State v. Greene, 592 N.W.2d 24, 32 (Iowa 1999) (quoting State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989)). The record reflects strong evidence of Essary's guilt including the testimony of his wife, police, doctors, and the videotaped interview with Essary. The prosecutor's alleged errors were isolated as he referred to Essary's "testimony" only twice and within a few sentences of each other. The district court's instructions to the jury were clear that no inference of guilt should be drawn from the fact Essary decided not to testify. Therefore, Essary was not prejudiced by his attorney's failure to object to the prosecutor's opening remarks.