Opinion
No. 1-827 / 00-1644.
Filed May 15, 2002.
Appeal from the Iowa District Court for Wapello County, E. RICHARD MEADOWS, Jr., Judge.
Donald Goodrich appeals his conviction and sentence for first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Victoria Siegel, County Attorney, Ron Kelly, Assistant County Attorney, and Scott D. Brown, Assistant Attorney General, for appellee.
Heard by SACKETT, C.J., and MILLER and Hecht, JJ.
Donald Goodrich appeals his conviction and sentence for first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (1999). We affirm.
I. Background Facts and Proceedings.
A reasonable juror could find the following facts from the record in this case. After a night of consuming large amounts of alcohol, Goodrich entered a bar in Ottumwa, Iowa. After ordering a beer, Goodrich exchanged fighting words with James Breeding, a fellow patron. The bartender, fearing Goodrich and Breeding were about to brawl, ordered both men to leave via separate exits. Goodrich proceeded to the bar's rear exit, stopped in the doorway, shouted profanities at Breeding, and dared him to fight. Breeding complied and fisticuffs ensued in the alleyway behind the bar. During the fight, Goodrich removed his Leatherman multipurpose tool from its sheath and stabbed Breeding five times. Breeding returned inside the bar, bleeding profusely, and fell to his knees. Goodrich ran down the alley, discarding his shirt and weapon. Breeding died shortly thereafter.
Goodrich was charged with first-degree murder. The jury returned a verdict of guilty, and the district court sentenced Goodrich to life in prison. On appeal, Goodrich contends his trial counsel was ineffective in failing to (1) object to inadmissible evidence, (2) object to prosecutorial misconduct, (3) preserve an appellate challenge to the sufficiency of the evidence to negate his defenses of intoxication and justification, and (4) timely file a motion to suppress. Goodrich further contends the district court abused its discretion by allowing evidence of an attempted drug purchase.
II. Ineffective Assistance of Counsel.
Ineffective assistance of counsel claims are reviewed de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). In order to prevail upon a claim of 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).
To establish deficient performance, "[t]he test is `whether under the entire record and totality of the circumstances counsel's performance was within the normal range of competence.'" State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (quoting Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). "A defendant is not entitled to perfect representation, rather representation which is within the normal range of competency." Id.
The defendant must also demonstrate the error caused prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697. To meet this burden, the defendant must prove "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.; State v. Carrillo, 597 N.W.2d 497, 500 (Iowa 1999). 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). We deem this record sufficient.
A. Failure to Object to Testimony Goodrich Requested Drugs.
During the testimony of Phil LeGrand, a prosecution witness, the following exchange took place:
Q: And did [Goodrich] actually talk to you at some point in time?
A: He asked me if I had any drugs.
[Defense Counsel]: Objection. Not responsive to the question.
Q: Did he ever speak to you?
A: Yes?
Q: And what did he say?
[Defense Counsel]: Objection. Irrelevant and immaterial.
THE COURT: Overruled. Go ahead.
A: He asked me if I had any drugs.
Goodrich alleges his trial counsel was ineffective in failing to properly object to LeGrand's testimony under Iowa Rules of Evidence 5.402 (relevancy), 5.403 (undue prejudice), 5.404 (character and other bad acts evidence inadmissible to prove character) and 5.405 (methods of proving character).
Iowa Rule of Evidence 5.404(b) provides as follows:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Iowa R. Evid. 5.404(b). In determining whether challenged evidence of a defendant's other crimes, wrongs, or acts fall within the rule's "other purposes" exception, we must employ a two-step analysis. State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001); State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988). We first determine whether the evidence is relevant for a purpose other than to show the defendant acted in conformity with a propensity to commit the wrongful act. State v. Brown, 569 N.W.2d 113, 116 (Iowa 1997). If the evidence is relevant for a legitimate purpose, we next determine whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403; Castaneda, 621 N.W.2d at 440; Plaster, 424 N.W.2d at 229. An affirmative finding on this second prong "precludes admissibility of even relevant evidence." Plaster, 424 N.W.2d at 231.
The State contends evidence Goodrich sought drugs shortly before his crime was relevant to his intoxication defense. The State further argues the evidence was relevant to show Goodrich's motivation for committing the crime: he was agitated and belligerent because of his need for drugs and, as a result, picked a fight with a virtual stranger. We agree. "Evidence of other crimes has been admitted to show the likelihood of defendant having committed the charged crime . . . because he was filled with hostility . . ." State v. Crawley, 633 N.W.2d 802, 807 (Iowa 2001) (citations omitted). Furthermore, Goodrich's alleged drug use was not "wholly independent" of the crime for which he was being tried in light of his intoxication defense. See State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994) (holding "[e]vidence of other offenses should never be admitted when the other offense is committed wholly independent of the one for which the defendant is on trial"). Accordingly, even if defense counsel had properly objected, the court would not have abused its discretion in admitting it or in concluding its probative value was not "substantially outweighed by the danger of unfair prejudice" under rule 5.403.
B. Failure to Object to Prosecutorial Misconduct.
Goodrich further contends his trial counsel was ineffective in failing to object to prosecutorial misconduct.
1. Interference with Attorney-Client Privilege.
Goodrich argues the prosecutor improperly invaded his attorney-client privilege and therefore his right to counsel. In support of his claim, Goodrich points to two exchanges between himself and the prosecutor during the State's cross-examination:
Q: Wouldn't you expect them [Jim Breeding's friends] to come outside?
A: No. Because after we argued, he argued with me the first time, I was sitting there drinking my beer. And his buddy come over, telling me, "you could whip his ass. He's drunk."
Q: That's something you didn't tell Mr. Neary [defense counsel]. Is that also new information here Mr. Goodrich?
A: No.
* * *
Q: In fact, did you throw the knife in the river before —
A: No. It's in the bush right there down towards the alley. Less than — —
Q: Wait a second. Is this some information that you have told your attorneys?
The State argues the prosecutor's questions were not attempts to invade Goodrich's attorney-client privilege, but references to inconsistencies between Goodrich's testimony on direct and cross-examination. "Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted." Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86, 95 (1980) (citing 3A J. Wigmore, Evidence § 1042, at 1056 (Chadbourn rev. 1970)). We agree and conclude Goodrich's trial counsel did not fail in an essential duty by not objecting to the prosecutor's questions because he was under no duty to do so. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (holding defense counsel has no duty to make a meritless motion).
2. Characterization of Goodrich as a Liar.
Goodrich further argues his trial counsel was ineffective in failing to object to the prosecutor's statements in closing arguments that characterized him as a liar. In particular, Goodrich points to the prosecutor's following statements in closing arguments:
Donald Goodrich lies [about] almost everything. He lied . . . to the police when they finally did catch up with him. He lied about where he was. He lied about who he was with. He lied about his car. He lied about everything. He lied about being at The Keg. He lied about what time he left the Stallion. He lied about being with Steve Wickersham. He lied — there were omissions that he made in his interview.
* * *
On that night, though, when he had the chance to tell the police what he says really happened and his testimony today, he didn't do it. He lies. You know he's been convicted of theft a couple of times. This certainly goes to credibility, I would think, but he lies about who he was with and where he was and what he did.
People who don't have anything to hide don't lie. If he was acting in self-defense, he wouldn't have come up with this story that he fed to the police. He was trying to cover his tracks. That's what he was trying to do. He just did a very poor job of it.
The credibility of witnesses is a proper subject for discussion during closing argument; however, a prosecutor may not express or imply his or her personal belief in the trust of falsity of the testimony of a witness. State v. Martens, 521 N.W.2d 768, 772 (Iowa Ct. App. 1994) (citations omitted). "Closing argument, therefore, must be tied to the evidence in the case." Id. We find the prosecutor's comments were permissible in light of Goodrich's admissions at trial that he had lied repeatedly about his role in the murder. Id. (holding prosecutor's comments related to the credibility of the victim based on the evidence, not her personal opinion). On direct and cross-examination, Goodrich admitted he lied about where he had been at the time of the stabbing, whom he had been with, and when he left another drinking establishment. Under the circumstances, we conclude counsel was not ineffective for failing to object. We note the jury was instructed to decide the case on the evidence and was further instructed that counsel's statements and arguments were not evidence. Notwithstanding our conclusion on this issue, we strongly disavow the prosecutor's comments and use of the word "liar" in his closing argument.
3. Comments on Prearrest Silence.
Goodrich finally contends the prosecutor committed misconduct by commenting on his prearrest silence. He contends these comments were made during cross-examination and closing arguments. Goodrich points to the following cross-examination colloquy:
Q: Okay. Did you see police officers at The Keg?
A: No.
Q: Did you make any effort to see anybody at The Keg that was with law enforcement?
A: I didn't see anybody.
Q: After you saw the yellow tape at The Keg, did you go to the police department?
A: No.
Q: Did you make any effort at all on January 8th of 2000 to contact the police?
A: No.
During closing arguments, the prosecutor made the following statements:
He has lots of opportunity to talk and go to the police. He doesn't do it.
* * *
He knew this is, what, two, three a.m., somewhere around there, yet four hours later he can't even tell the police that.
* * *
We have to prove his state of mind that was specific intent to kill. If he didn't have the intent to kill James Breeding, he would have told the police what you heard today here in the courtroom, and he didn't.
* * *
And the real important part is why he told Karen Steinnagle that and he did not tell the police that two hours later.
A defendant's Fifth Amendment right to silence is not violated by the prosecution's use of prearrest silence to impeach credibility. See Jenkins, 447 U.S. at 235-38, 100 S.Ct. at 2127-2130, 65 L.Ed.2d at 92-96 (holding the use of prearrest silence to impeach a defendant's credibility does not violate the Constitution); cf. Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 96 (1976) (holding Fifth Amendment guaranty against self-incrimination prohibits impeachment on the basis of a criminal defendant's silence after receipt of Mirandawarnings); State v. Metz, 636 N.W.2d 94, 98 (Iowa 2001) (finding prosecutor's improper impeachment of defendant by commenting on his postarrest silence was not harmless error). Goodrich challenges the prosecutor's references to his prearrest silence. Such references are not improper and counsel was therefore not ineffective for failing to object to them.
C. Failure to Preserve Sufficiency of the Evidence Challenge.
Goodrich contends his trial counsel was ineffective in failing to preserve an appellate challenge to the sufficiency of the evidence to negate his defenses of intoxication and justification. We disagree. We conclude Goodrich cannot prove the prejudice prong of the Strickland test. We find substantial evidence in the record to rebut Goodrich's defenses and establish his guilt.
In regards to Goodrich's justification defense, a reasonable jury could have concluded Goodrich stabbed Breeding after provoking him to fight in the alleyway behind the bar. See State v. Coffman, 562 N.W.2d 766, 768 (Iowa Ct. App. 1997) (holding State can meet its burden by proving "the defendant started or continued the incident which resulted in death"). A jury could have further concluded Goodrich's use of force was unreasonable in light of the fact Breeding was unarmed and similar in physical size. Id. Finally, a jury could have concluded an alternative course of action was available to Goodrich prior to Breeding entering the alleyway. Id. Furthermore, although defendant insists evidence of his intoxication negated his capacity to entertain the mental elements of first-degree murder, the jury was not bound to so find. See State v. Winfun, 261 N.W.2d 484, 486 (Iowa 1978). We conclude Goodrich's trial counsel was not ineffective for failing to preserve this issue for appellate review.
D. Failure to File Timely Motion to Suppress.
Goodrich further asserts his trial counsel was ineffective in failing to timely file a motion to suppress statements he made to the police on the morning of the crime. He alleges this failure waived error on appeal and constituted ineffective assistance of counsel. Goodrich contends the waiver of his Miranda rights was not knowing, voluntary, and intelligent because he was under the influence of alcohol, suffers from mental health problems, and was physically restrained.
The State bears the burden to prove by a preponderance of the evidence that a defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights. State v. Vincik, 398 N.W.2d 788, 789 (Iowa 1987). A Miranda waiver is involuntary only when it is the product of police misconduct or overreaching. State v. Countryman, 572 N.W.2d 553, 559 (Iowa 1997). An express waiver is not required. State v. Davis, 304 N.W.2d 432, 435 (1981). Rather, the validity of the waiver is based on particular facts and circumstances surrounding the giving of the Miranda warnings. State v. King, 492 N.W.2d 211, 214 (Iowa Ct. App. 1992).
We find the totality of the circumstances demonstrates Goodrich's waiver of his Miranda rights was voluntary, knowing, and intelligent. Goodrich voluntarily accompanied police to the station. While being interviewed, he was cooperative and responsive to all questions. Goodrich has had numerous contacts with the police to suggest he is well aware of his rights and police procedures. The mere fact that Goodrich was under the influence of alcohol at the time of waiving his Miranda rights does not conclusively render his waiver involuntary. State v. Jackson, 387 N.W.2d 623, 628 (Iowa Ct. App. 1986). Furthermore, the record is devoid of any suggestion that police resorted to physical or psychological pressure, abusive interrogation tactics, threats, promises, or deceit to elicit the waiver. The interrogation lasted approximately an hour and thirty minutes, including transportation and breaks. Goodrich's counsel breached no duty in failing to preserve this issue for appeal since the waiver of Goodrich's Miranda rights was valid and the statements were admissible.
E. Cumulative Effect.
Additionally, Goodrich claims, if insufficient individually, the cumulative effect of the errors was so prejudicial that it denied him a fair and impartial trial, as well as effective assistance of counsel. We conclude Goodrich received effective assistance of counsel. Accordingly, we find there was no cumulative error.
III. district Court's Ruling Regarding Attempted Drug Purchase.
Goodrich contends the district court erred in admitting evidence he asked a bar patron for drugs shortly before he stabbed James Breeding. Goodrich maintains the testimony should have been excluded pursuant to Iowa Rule of Evidence 5.404(a) (relevance), rule 5.403 (exclusion of relevant evidence if it is "substantially outweighed by the danger of unfair prejudice"), and rule 5.404(b) (prior "bad acts" evidence). We review rulings on the admissibility of evidence for correction of errors of law. Iowa R. App. P. 6.4; Bangs v. Maple Hills, Ltd., 585 N.W.2d 262, 265 (Iowa 1998). Because we have previously determined the evidence was admissible, we find the district court did not err in admitting the contested testimony.
IV. Conclusion.
Having considered all issues properly presented before us on appeal, we hereby affirm Goodrich's conviction and sentence for first-degree murder.
AFFIRMED.