Opinion
No. 3-369 / 02-0635
Filed August 13, 2003
Appeal from the Iowa District Court for Scott County, Mary E. Howes, District Associate Judge.
The defendant appeals his conviction and sentence for assault resulting in bodily injury on a jailer and/or correctional staff. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Napoleon Hartsfield, Fort Madison, for appellant pro se.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, William Davis, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
The defendant, Napoleon Hartsfield, appeals his conviction and sentence for assault resulting in bodily injury to a jailer and/or correctional staff in violation of Iowa Code sections 708.1 and 708.3A(3) (2001). Hartsfield contends (1) the district court erred in refusing to submit a spoliation instruction to the jury, and (2) trial counsel was ineffective in (a) failing to seek a spoliation instruction, (b) advising him not to testify, and (c) failing to call the examining physician to testify regarding the jailer's injuries. In his supplemental pro se brief, Hartsfield also contends (1) the district court erred in ordering him to pay restitution, court costs, and attorney fees, and (2) he was denied access to the courts because his request for trial transcripts was denied. We affirm.
I. Background Facts and Proceedings. Hartsfield was charged with assault resulting in bodily injury to a jailer and/or correction staff, in violation of Iowa Code sections 708.1 and 708.3A(3), following an incident that occurred while he was being processed at the Scott County jail on other charges. According to the record, Hartsfield began banging on his cell door requesting his clothes. Despite receiving his clothes, Hartsfield continued to bang on the door, requesting he be allowed to use a telephone outside his cell. When told he could not, he told one of the guards she was a "prejudiced, red-headed bitch." All activities in the booking cell were monitored by videotape, but its range was limited to the front of the cell doors.
Corporal Jeffrey Phillips came to Hartsfield's cell to speak with him. He told Hartsfield he could only use the telephone in his cell. Hartsfield continued to pound his cell door and curse officials. Corporal Phillips opened Hartsfield's cell door slightly, stood at the cell entrance, and informed him he was disrupting the booking area. When again told he could not use a telephone outside his cell, Hartsfield began cursing Corporal Phillips and raised his finger. Corporal Phillips told him to lower his finger. Hartsfield did so briefly, then raised it again. When Corporal Phillips pushed Hartsfield's hand away from his face, Hartsfield struck him with his other hand. An altercation ensued, and as a result, Corporal Phillips received a number of injuries, including a red mark on his face and a twisted knee.
Trial counsel requested to see any videotapes of the incident, but was told there weren't any since no recording was made in conjunction with that cell. Trial counsel made no further attempt to obtain a copy until he learned a video had been made. However, the tape had been erased pursuant to routine jail policy after thirty days.
At trial, Hartsfield requested a spoliation instruction, arguing the jailers falsely informed counsel no videotape existed, and they destroyed the tape in bad faith because they knew potentially exculpatory evidence might have been discovered. The district court denied the request, concluding that while there was evidence a tape existed, there was no evidence anything was recorded or that such evidence would have been exculpatory. A jury found Hartsfield guilty as charged. The district court sentenced him to an indeterminate term of imprisonment not to exceed two years, to be served consecutively to a sentence imposed in an unrelated criminal charge. The court also imposed a suspended $500 fine, and ordered him to pay attorney fees and court costs. Hartsfield has appealed.
II. Scope of Review. Hartsfield claims a violation of his due process rights under United States Constitution amendment XIV and Iowa Constitution article 1, section 10, thus our scope of review is de novo. State v. Dulaney, 493 N.W.2d 787, 790 (Iowa 1992). We make an independent evaluation based on the totality of circumstances. State v. Manicia, 355 N.W.2d 256, 258 (Iowa Ct.App. 1984).
III. Spoliation Instruction. Hartsfield contends the district court erred in denying his request for a spoliation instruction, claiming the jailers erased the videotape in bad faith because they knew it contained potential exculpatory evidence. The State, however, contends Hartsfield failed to properly preserve this issue for appellate review. Assuming error was preserved, we reject this issue on the merits.
Spoliation refers to intentional destruction of exculpatory evidence by the State. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). The concept may implicate a defendant's due process rights. Dulaney, 493 N.W.2d at 790-91. If the evidence is only potentially exculpatory, a defendant must establish that the destruction was in bad faith. Id. Evidence of spoliation may allow an inference that "a party who destroys a document with knowledge that it is relevant to litigation is likely to have been threatened by the document." Lynch v. Saddler, 656 N.W.2d 104, 110-11 (Iowa 2003). Such an inference may only be drawn when the destruction of relevant evidence was intentional, as opposed to merely negligent or the evidence was destroyed as a result of routine procedure. Id. This inference should be utilized prudently and sparingly. Phillips v. Covenant Clinic, 625 N.W.2d 714, 720 (Iowa 2001). A defendant must therefore show both control of the evidence and intentional destruction. Lynch, 656 N.W.2d at 111.
It is not clear whether the jailers intentionally destroyed the evidence with knowledge it was relevant to this litigation. Officer Mike Blaesi testified the inside of Hartsfield's cell was the only one that was not monitored by video. He stated it is routine jail policy to erase and recycle all tapes after thirty days. While Hartsfield requested a copy of the videotape, he did not formally file a request pursuant to Iowa Rule of Criminal Procedure 2.14(2) (b)(1). It appears the officers in the booking area were unsure of whether the video camera covered the area in question or whether a videotape was even made.
Testimony also indicates Corporal Phillips was a large man, and even if there was a video of the alleged incident, his body frame would have blocked most of the view into the cell. Corporal Phillips' accounting of the incident was corroborated by several other officers present at the time.
We conclude Hartsfield has failed to show the officers destroyed the tape in bad faith. While it is clear a videotape was recorded, it was erased pursuant to routine office policy after thirty days. No formal request for the tape had been made. While there is some evidence the officers gave trial counsel conflicting information regarding the tape, Hartsfield has failed to show this conflicting information was intentionally provided to hide exculpatory evidence. Furthermore, Hartsfield has failed to sufficiently explain what exculpatory information the video would have revealed. Because the officers did not destroy the tape in bad faith, it was not error to refuse to give a spoliation instruction.
IV. Ineffective Assistance Claims. Hartsfield raises numerous claims of ineffective assistance of counsel. He contends counsel was ineffective in (1) failing to properly preserve his spoliation claim, (2) misadvising him regarding his decision whether or not to testify at trial, and (3) failing to call Corporal Phillips' examining physician, Dr. Bruce Elkins, to testify regarding Phillips' injuries. Hartsfield additionally claims the sentencing court abused its discretion by failing to take into consideration his inability to pay court costs and attorney fees.
A defendant who wishes to prevail on an ineffective assistance of counsel claim must show (1) the attorney failed to perform an essential duty, and (2) the failure resulted in prejudice. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). While we generally preserve ineffective assistance claims on direct appeal to allow full development of the issues, we will resolve such claims if the defendant fails to demonstrate one of the two elements. State v. Pierson, 554 N.W.2d 555, 562 (Iowa Ct.App. 1996).
Concerning Hartsfield's assertion trial counsel was ineffective in failing to properly preserve his spoliation claim, we have already concluded the destruction of the videotape was not done in bad faith and he was not entitled to a spoliation instruction. Counsel therefore did not breach an essential duty, and had no duty to raise an issue that had no merit. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).
Hartsfield also contends the district court abused its discretion in ordering him to pay restitution, including court costs and attorney fees. In addition to suspending the $500 fine, the district court ordered Hartsfield to pay court costs and an estimated $800 in attorney fees. Hartsfield maintains he has no ability to pay these costs and fees. Our review of a restitution order is for correction of errors at law. State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001).
We find no merit to this argument. It does not appear the restitution order was complete at the time Hartsfield filed his notice of appeal. At the time sentence was imposed, the amount of attorney fees and court costs had not yet been fixed at a specific amount. Until this is done, the court is not required to give consideration to the defendant's ability to pay. State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999). Furthermore, the ability to pay is a separate issue from the amount of restitution and is not directly appealable. Jose, 636 N.W.2d at 45.
Additionally, Hartsfield did not file a motion to modify the restitution order as provided in Iowa Code section 910.7 (2001). Section 910.7 permits an offender who is dissatisfied with the amount of restitution to petition the district court for a modification. Unless this remedy has been exhausted, we have no basis for reviewing the issue. Jackson, 601 N.W.2d at 357.
Hartsfield next contends trial counsel was ineffective in advising him not to testify at trial and in failing to call Dr. Elkins as a witness. We conclude the record is insufficient to properly address these claims on direct appeal, since they address issues of trial strategy. See Ledezma v. State, 626 N.W.2d 134, 142-43 (Iowa 2001). These issues are preserved for postconviction relief. We have considered all other ineffective assistance claims and find they have no merit. We therefore affirm Hartsfield's conviction and sentence.