Summary
allowing sheriff's deputy to testify as an expert witness as to how he believed a burglary took place after he “investigated the crime scene, photographed and weighed the items, and conducted interviews”
Summary of this case from State v. TylerOpinion
No. 3-518 / 02-1311
Filed August 13, 2003
Appeal from the Iowa District Court forIda County, Edward A. Jacobson, Judge.
Defendant appeals third-degree burglary conviction and sentence. AFFIRMED.
Linda Del Gallo, Appellate Defender and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Kristal L. Phillips, County Attorney, and Mark Cozine, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Frank Favara appeals his conviction and sentence for third-degree burglary claiming opinion testimony was inadmissible and ineffective assistance of counsel. We affirm.
Background Facts. On October 22, 2001, upon a visit to a farm house he owned, Steve Schau observed Frank Favara and Jeffrey Bogart walk out from behind the garage. The men claimed to be looking at antique vehicles. After the men left, Schau entered the farmhouse to find an antique radio moved from the dining room into the kitchen, a second antique radio that Schau kept in the kitchen moved to a chair within the kitchen, and an old trunk moved from an upstairs room into the hallway. Schau called the police immediately and Favara and Bogart were stopped by police soon thereafter.
Bogart testified against Favara claiming they both entered the farm house and intended to steal the moved items. Favara testified, stating he never entered the farm house but rather stayed outside to look at a flatbed truck while Bogart went inside. After a jury trial, Favara was convicted of burglary in the third degree. Subsequent to the verdict, Favara admitted to being a habitual offender, precluding the need for a trial on the matter. Favara appeals, claiming the district court improperly allowed opinion testimony by Deputy Sheriff Randy Peterson and ineffective assistance of counsel.
Scope of Review. Challenges to evidentiary rulings are reviewed for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). Abuse is found where a district court exercised its discretion on clearly untenable grounds, for clearly untenable reasons, or to a clearly unreasonable extent. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996). Claims of ineffective assistance of counsel are constitutional challenges and are reviewed de novo. State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
Opinion Testimony. Favara contends the district court erred when it allowed Deputy SheriffRandy Peterson to testify regarding his opinion of how the crime occurred. Deputy Peterson testified, over objection, that because of the weight and awkwardness of the items, one person could not have moved them, rather two people must have worked together to lift the antique radio and the trunk.
Iowa Rule of Evidence 5.702 governs the admissibility of expert testimony. It provides:
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.
We follow a liberal view of the admission of opinion evidence under this rule. State v. Buller, 517 N.W.2d 711, 713 (Iowa 1994) (citing Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 886 (Iowa 1994); State v. Barrett, 445 N.W.2d 749, 751 (Iowa 1989)). "The question is whether the proffered evidence will assist the jury in resolving an issue." State v. Klindt, 389 N.W.2d 670, 672 (Iowa 1986). The district court has discretion to determine the admissibility of expert opinion testimony and reversal is justified only when the court has abused its discretion. State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992).
The trial court also has considerable discretion in determining whether a witness has sufficient personal experience to render an expert opinion. State v. Taylor, 336 N.W.2d 721, 726 (Iowa 1986). Expert opinion testimony is only admissible when it is based on the witness's special training, experience, or knowledge. See id. Favara asserts no foundation was laid to suggest the deputy had ever investigated a burglary prior to the present case. However, Deputy Peterson testified he has worked for the Ida County Sheriff's Department for fourteen years. His training includes a two-year degree in police science technology, attending the Law Enforcement Academy, and ongoing training courses provided by the department. Deputy Peterson testified because the department was small, he investigates everything from accidents to domestic disputes. In this case, Deputy Peterson investigated the crime scene, photographed and weighed the items, and conducted interviews. The expert opinion testimony involved was based on his years of experience, observations, and logic. SeeState v. Knudtson, 195 N.W.2d 698, 701 (Iowa 1972) (holding police officers with prior training and experience were qualified to give opinion testimony as to whether tools found were "burglar" tools). Further, the deputy's testimony was merely cumulative as it followed similar testimony from Schau and was therefore non-prejudicial. State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct.App. 1999). We find no abuse of the district court's discretion under rule 5.702 in admitting Deputy Peterson's opinion testimony.
Ineffective Assistance of Counsel. Favara asserts his counsel was ineffective in that he failed to object to Jury Instruction No. 18. The instruction provides:
An "accomplice" is a person who knowingly and voluntarily cooperates or aides in the commission of a crime.
A person cannot be convicted only by the testimony of an accomplice. The testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the crime.
If you find Jeff Bogart is an accomplice, the defendant cannot be convicted only by that testimony. There must be other evidence tending to connect the defendant with the commission of the crime. Such other evidence, if any, is not enough if it just shows a crime was committed. It must be evidence tending to single out the defendant as one of the persons who committed it.
Favara claims the district court should have instructed the jury that Bogart was an accomplice as a matter of law rather than allowing the jury to find or not find Bogart to be an accomplice. The State claims Favara's counsel was not ineffective as Bogart's status as an accomplice was not in dispute.
To prove an ineffective assistance of counsel claim, "a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (quoting State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). When the record on appeal is inadequate for the assessment of counsel's performance, we are normally inclined to preserve the claim for postconviction proceedings, to allow trial counsel an opportunity to explain the facts and circumstances surrounding the disputed issue. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We need not do so in this case, as even if counsel's performance was inadequate in the manner alleged, Favara has failed to establish any prejudice. See State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001) (allowing issue to be decided on direct appeal if defendant fails to show either deficient performance or prejudice).
Even if the jury would have been instructed that Bogart was an accomplice as a matter of law, Favara cannot show prejudice, because of the "other evidence tending to connect the defendant with the commission of the crime." Jury Instruction No. 18. Other evidence of Favara's involvement was: testimony of Ron Hug that Favara told him he was tired of being broke and was going to burglarize farm houses to steal and sell antiques, Schau's testimony that both Favara and Bogart emerged from behind the garage together, and the testimony of Schau and Deputy Peterson regarding the weight and awkwardness of the items, requiring two persons to lift the items moved within the house. These facts are adequate corroboration such that Favara has failed to show he suffered prejudice from the court's instruction.