Opinion
No. 5-860 / 05-0088
Filed December 7, 2005
Appeal from the Iowa District Court for Cedar County, Bobbi M. Alpers, Judge.
Jeffrey Flowers appeals from his conviction for operating while intoxicated, second offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Lee W. Bein, County Attorney, and Sterling L. Benz, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Jeffrey Flowers appeals from his conviction for operating while intoxicated (OWI), second offense. We affirm.
Background Facts and Proceedings.
Shortly before midnight on March 9, 2004, Iowa State Trooper Robert Smith clocked a vehicle driving 104 miles per hour on Interstate 80. Trooper Smith gave chase and observed the vehicle narrowly missing various semis and shutting its lights off. Eventually, the vehicle's driver lost control and sent it into a ditch. The driver jumped from his car and ran towards the Cedar River, where he hid submerged beneath the surface of the river. With the aid of a helicopter employing a heat detecting infrared radar, the individual was eventually located.
Trooper Jeffrey Benson escorted the individual, later determined to be Jeffrey Flowers, to his vehicle. Benson noticed an odor of alcohol upon Flowers. After being transported to the Cedar County Jail, Correctional Officer Dennis Culver also noticed an odor of alcohol. Trooper Smith then performed two field sobriety tests on Flowers, which caused Smith to believe Flowers was under the influence of alcohol. Flowers refused to give a breath sample.
Based on this incident, the State charged Flowers with second-offense OWI, in violation of Iowa Code section 321J.2 (2003), and felony eluding, in violation of section 321.279. Following a trial, the jury returned verdicts finding Flowers guilty as charged, and the court sentenced Flowers to a prison term not to exceed five years on the eluding charge and a term not to exceed two years on the OWI charge. The court ordered the sentences to run concurrently. Flowers appeals, contending trial counsel was ineffective in failing to object to certain testimony given by Trooper Smith.
Scope of Review.
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). Generally, ineffective assistance of counsel claims are preserved for postconviction proceedings to allow trial counsel an opportunity to defend the charges. State v. Mulder, 313 N.W.2d 885, 890 (Iowa 1981). However, if the claim is based on the failure to object to the admission of certain evidence, we can ordinarily adjudicate the claim on direct appeal if the evidence was admissible. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990).
Ineffective Assistance of Counsel.
At trial, the prosecutor questioned Trooper Smith as to whether he believed Flowers had been operating his vehicle while under the influence of an alcoholic beverage. The following exchange occurred:
Q. Did you form an opinion as to whether or not Mr. Flowers was under the influence of an alcoholic beverage on March 9, 2004, while he was operating a motor vehicle in the fashion that you've previously described?
A. Yes. Based on my observations and his performance of the tests, it is my complete belief that Mr. Flowers was operating his motor vehicle while under the influence of alcohol at the time he was arrested.
. . . .
Q. Is your opinion in that regard firm?
A. Yes. Mr. Flowers was under the influence on this particular evening.
Flowers contends trial counsel failed to perform an essential duty when he failed to object to Trooper Smith's allegedly improper testimony. In particular, he asserts the trooper's comments that it was his "complete belief" Flowers operated a motor vehicle while under the influence was an expression of a direct opinion on his guilt or innocence, and was thus inadmissible. He believes this unequivocal statement prejudiced him because the evidence of intoxication was not otherwise strong.
Established principles govern our review of appellant's Sixth Amendment claim his counsel was ineffective. When considering this claim, our ultimate concern is with "the fundamental fairness of the proceedings whose result is being challenged." Strickland v. Washington, 466 U.S. 668, 696, 104 S. Ct. 2052, 2069, 80 L. Ed. 2d 674, 699 (1984). In deciding this we must consider whether "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93. Defendant bears the burden of proving by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. Meier v. State, 337 N.W.2d 204, 206 (Iowa 1983).
It is well-settled in Iowa that a lay witness may express an opinion regarding another person's sobriety, provided the witness has had an opportunity to observe the other person. State. v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990) (citing State v. Davis, 196 N.W.2d 885, 893 (Iowa 1972)). There is no logic in limiting the admissibility of testimony when, like here, the witness is specially trained to recognize the characteristics of intoxicated persons. Id. In addition, our rules of evidence provide that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the jury." Iowa R. Evid. 5.704. However, determining guilt or innocence is still the exclusive function of the finder of fact, and consequently is an improper subject of expert testimony. State v. Oppedal, 232 N.W.2d 517, 524 (Iowa 1975).
The Iowa Supreme Court has held that a police officer did not impermissibly offer a direct opinion regarding guilt or innocence when the officer testified "[i]t was my belief that [the defendant] was under the influence and impaired." Murphy, 451 N.W.2d at 155. The Iowa Court of Appeals has, however, held testimony about a legal standard of proof, combined with a recitation of the elements of the offense, clearly invaded the province of the jury. State v. Maurer, 409 N.W.2d 196, 197-98 (Iowa Ct.App. 1987) (holding officer's testimony that "it is my opinion beyond any reasonable doubt that the defendant was operating a motor vehicle upon a public highway while he was under the influence of an alcoholic beverage" impermissibly incorporated a legal standard in opining as to the guilt of the defendant and was therefore not admissible).
In this case, the opinion testimony of Trooper Smith was admissible because it did not include the application of a legal standard to the facts of this case. The officer simply stated his confidence in his opinion regarding Flowers's intoxication. The jury was still able to weigh the competing testimony and make their own determination as to whether Flowers was, beyond a reasonable doubt, intoxicated. Flowers's counsel breached no duty by failing to assert this meritless claim. See State v. Jackson, 387 N.W.2d 623, 632 (Iowa Ct.App. 1986). We therefore affirm the convictions.
AFFIRMED.
Sackett, C.J. concurs specially.
I believe the officer's testimony was an impermissible opinion as to defendant's guilt. Having said that, I do not believe defendant has shown the necessary prejudice to succeed on his claim his trial counsel was ineffective in failing to object to the evidence and I too would affirm.