Opinion
No. 4-843 / 04-0182
Filed January 13, 2005
Appeal from the Iowa District Court for Webster County, Frederick E. Breen, District Associate Judge.
Alleging ineffective assistance of counsel, Defendant appeals his conviction for domestic abuse assault, causing bodily injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell Douglass, Assistant Attorney General, and Timothy N. Schott, County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
A jury found Nozey William Habhab guilty of domestic abuse assault causing injury, and he was sentenced accordingly. He appeals, primarily alleging ineffective assistance of counsel. He must prove his counsel breached an essential duty, which breach resulted in prejudice. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). After our de novo review of the record, see id. at 141, which we find adequate to resolve all claims, see State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998), we affirm the judgment.
Mr. Habhab first alleges counsel was ineffective in failing to object to improper questioning by the prosecutor. The prosecutor asked Mr. Habhab to comment on whether other witnesses were lying, a practice condemned in State v. Graves, 668 N.W.2d 860 (Iowa 2003). The State concedes the prosecutor's questions were improper, and rightly so; however, it asserts the questions were not prejudicial. See id. at 877 (multifactor balancing test to determine prejudice). We agree. The questions were a minor portion of the transcript and did not involve a central issue in the case. Id. Moreover, the evidence amassed against Mr. Habhab was compelling, see id., including his own version of the events (which would constitute commission of the charged offense). Having failed to show the prosecutor's improper questions caused prejudice, Mr. Habhab has failed to demonstrate he received ineffective assistance when his counsel failed to object to the questioning.
Relying on Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), Mr. Habhab next argues his counsel was ineffective for failing to timely object to testimony from an officer concerning his pre-arrest silence during questioning and the district court erred when it did not grant his request for a mistrial based on this testimony. We reject this argument. Doyle involves post-arrest silence, see State v. Baccam, 476 N.W.2d 884, 886 (Iowa Ct.App. 1991), whereas all of the silence in this case was prior to Mr. Habhab's arrest. Counsel had no duty to object to proper questioning, and Mr. Habhab was not entitled to a mistrial.
We have considered all issues presented. We affirm the district court.