Opinion
No. 2-903 / 02-0353
Filed January 15, 2003
Appeal from the Iowa District Court for Lee (South) County, Mary Ann Brown, Judge.
Michael Jeffery appeals from the judgment and sentence entered upon his convictions for first-degree kidnapping in violation of Iowa Code sections 710.1(3) and 710.2 (2001), and first-degree robbery in violation of Iowa Code sections 711.1(1) and 711.2. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Michael Short, County Attorney, and Bruce McDonald, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., Vaitheswaran, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).
Michael Jeffery appeals from the judgment and sentence entered upon his convictions for first-degree kidnapping in violation of Iowa Code sections 710.1(3) and 710.2 (2001), and first-degree robbery in violation of Iowa Code sections 711.1(1) and 711.2. Specifically, he contends: (1) the district court erred in denying his motion for judgment of acquittal based on insufficiency of the evidence, and (2) his trial counsel was ineffective. We affirm.
Background Facts and Proceedings. On April 13, 2001, Loren Duffie went to a tavern named the Tee Pee to see if Ted Katsumes, tavern owner, wanted to go gambling. While at the Tee Pee, Duffie met Jeffery and the two began drinking together. Jeffery observed Duffie pay for his drinks with a thick "wad" of bills folded over with a $100 bill on the outside and smaller bills inside. After learning Katsumes had already left, Duffie and Jeffery decided to join him at the Catfish Riverboat Casino in Burlington, Iowa. Once they arrived at the casino, Jeffery played poker while Duffie played blackjack. After a few hours, the two decided to leave and Jeffery watched as Duffie cashed out his chips for a total of $2600.
On the way home, Jeffery asked Duffie if he saw "that cop" when they were leaving Fort Madison. Then Jeffery asked Duffie whether he heard "that click" and whether he had a gun. When Duffie responded no, Jeffery replied "[w]ell I do and that was the click." At this time, Duffie felt something against the back of his head which he believed to be a gun even though he never actually saw a gun. Jeffery instructed Duffie to do exactly as he told him and not to drive over 55 mph nor less than 45 mph. Eventually Jeffery directed Duffie to pull over and leave the keys in the ignition. Next Jeffery instructed Duffie to look straight ahead, keep his left hand on the steering wheel, and open the door with his right hand. Duffie got out of the truck and Jeffrey slid across the passenger seat to the driver's side and also got out of the truck. Then Jeffery told Duffie to stretch out his arms over the hood of the truck. As Duffie did this, Jeffery put him in a chokehold. The last memory Duffie recalls before losing consciousness was Jeffery's left hand on the side of his face.
Duffie does not remember anything further until he was walking down a gravel road. Jeffery had taken his truck, billfold, and money. Duffie realized he had lost control of his bladder and bowel. Duffie also sustained cuts on his forehead and a hole on his lip where his front tooth went through when it was knocked out. Duffie testified he still does not have any feeling in his lip. He had the front tooth replaced with an implant but the numbness in his lip has caused him to drool and has affected his speech. Duffie also testified his wisdom tooth was broken and had to be removed. Further, Duffie stated his teeth are displaced which affects his ability to chew.
On August 17, 2001, Jeffery was charged by trial information with first-degree kidnapping in violation of Iowa Code sections 710.1(3) and 710.2 and first-degree robbery in violation of Iowa Code sections 711.1 and 711.2. A jury returned verdicts of guilty on both charges. The district court sentenced Jeffery to life without parole on the first-degree kidnapping charge and an indeterminate term of twenty-five years on the first-degree robbery charge. The district court ordered the sentences to be served consecutively. Jeffery appeals.
Sufficiency of the Evidence. We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. State v. Heard, 636 N.W.2d 227, 299 (Iowa 2001). We will uphold a verdict if substantial evidence supports it. Id. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id.
Jeffery contends there was insufficient evidence to prove Duffie was seriously injured as required by sections 710.2 and 711.2. Serious injury has a technical meaning. Four types of serious injury are included in the section 702.18 definition: (1) disabling mental illness, (2) bodily injury which creates a substantial risk of death, (3) bodily injury which causes serious permanent disfigurement, and (4) bodily injury which causes protracted loss or impairment of the function of any bodily member or organ. Iowa Code § 702.18. We find the type of serious injury at issue in the present case is included in the third and fourth definition.
At trial, the evidence presented regarding Duffie's injuries was undisputed. Duffie testified he has both permanent scarring on his face and a false tooth as a result of a tooth being knocked out during the attack. Also, one side of his face is partially paralyzed which has caused him to drool and impaired his speech. Further, Duffie stated he had a wisdom tooth removed and his teeth are displaced which affects his ability to chew. At the time of the attack, Duffie lost control of his bladder and bowel. Based on Duffie's testimony, the jury could reasonably conclude, that he sustained serious injuries within the meaning of section 702.18 (3) and (4). Sufficient evidence supports the jury verdict, and we affirm the district court on this issue.
Ineffective Assistance of Counsel. Jeffery claims he was denied effective assistance of counsel. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
The defendant bears the burden of demonstrating ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Jeffery claims he received ineffective assistance of counsel when his counsel (1) failed to file a motion to dismiss because he was denied his right to a speedy trial; (2) failed to move for judgment of acquittal on the kidnapping charge as the State failed to prove he had the specific intent to inflict serious injury; (3) failed to request a competency hearing; and (4) failed to advise him of the possibility of an Alford Plea. We conclude the record in this case is adequate for us to address Jeffery's claim regarding his right to a speedy trial. Therefore, we shall decide that issue and preserve the other three ineffective assistance of counsel claims for possible postconviction relief proceedings.
Jeffery contends he was denied the right to a speedy trial. Jeffery executed a waiver of his right to speedy trial on October 8, 2001 and reinstated his right on November 16, 2001. He argues since he was not brought to trial within ninety days of the filing of the trial information his counsel was ineffective for failing to file a motion to dismiss. Iowa Rule of Criminal Procedure 2.33(2)( b) provides:
If a defendant indicted for a public offense has not waived his right to a speedy trial he must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.
The supreme court held in State v. Hamilton, 309 N.W.2d 471 (Iowa 1981), "when a waiver of the right to a speedy trial is withdrawn, the defendant must be tried within ninety days from the day of the withdrawal unless good cause to the contrary be shown." State v. Hamilton, 309 N.W.2d at 475. Accordingly, since Jeffery was tried within ninety days from the date he withdrew his waiver, defense counsel will not be considered ineffective for failure to pursue a meritless issue. State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998). We deny Jeffery's claim of ineffective assistance of counsel on this issue and preserve his other claims for possible conviction relief proceedings.