Opinion
No. 1-935 / 00-1859.
Filed February 20, 2002.
Appeal from the Iowa District Court for Linn County, DOUGLAS S. RUSSELL, Judge.
Deion Madison appeals his convictions for burglary in the first degree and two counts of willful injury. AFFIRMED.
Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney General, Denver D. Dillard, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and MAHAN and HECHT, JJ.
Deion Madison appeals his convictions for burglary in the first degree, in violation of Iowa Code sections 713.1 and 713.3(1)(b) (1999); willful injury causing serious injury, in violation of section 708.4(1); and willful injury causing bodily injury, in violation of section 708.4(2). Madison claims: (1) there was insufficient evidence in the record to support his convictions; (2) he received ineffective assistance of counsel; (3) the district court should have granted his request for new counsel; and (4) the cumulative effect of these errors denied him a fair trial. We affirm.
On March 27, 2000, Quincy Tobin and Mary Walker were staying at an apartment in Cedar Rapids, Iowa, leased by Arnold "Ernie" Tiegen. At about 7 p.m. that evening Tommie Butler stopped by to use the telephone. Soon afterwards Tiegen answered a knock at the door, and four men carrying baseball bats entered the apartment. They beat Tobin, Tiegen, and Butler with the bats. The men took some money from Butler's wallet, then left.
Butler telephoned the police. At the scene Tobin told police officers one of the assailants was named Deion. The victims were then taken to the hospital. Tobin had serious injuries, including a punctured lung, broken ribs, a fractured leg, and a cut that nearly severed his ear. Tiegen and Butler received slighter injuries and were released from the hospital that night.
In a deposition Walker reaffirmed an earlier statement to police officers which identified the assailants as "Dion," Tim, and Woody. On a later date she was shown a photographic line-up and was able to pick out Madison and Timothy Brown. Butler was also shown the photographic line-up. He identified Madison, Brown, and James Fuller. These three men were charged with first-degree burglary and three counts of willful injury (based on the three victims).
The defendants were tried jointly. Tobin, Walker, and Butler testified at the trial, but were not able to identify in court any of the three defendants as one of the assailants. The testimony given at trial was largely contradictory to earlier statements. Walker testified she could not remember the incident and did not remember giving her deposition. Walker's deposition was read to the jury, but was not admitted as an exhibit.
Because Tiegen did not testify, and there was no evidence concerning his injuries, the district court granted the defendants' motions for judgment of acquittal on the willful injury charge involving him. The jury found Madison guilty of first-degree burglary, willful injury (Tobin), and willful injury (Butler). His motion for new trial was denied. Madison was sentenced to an indeterminate twenty-five year term on the burglary charge, ten years on one willful injury charge, and five years on the other charge, all to be served concurrently. He appeals.
I. Sufficiency of the Evidence
Madison contends the State did not present sufficient evidence to support his convictions. He first claims there is insufficient evidence to show he participated in the crimes. He points out none of the witnesses identified him at the trial and no physical evidence connected him to the scene.
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.
We find there is substantial evidence in the record to show Madison participated in the crimes charged. Walker and Butler both identified Madison from the photographic line-up. Also, shortly after the incident, Tobin told police officers Deion was one of the men who hit him.
In regard to the burglary charge Madison contends the State did not present sufficient evidence to show he did not have permission or authority to enter the apartment. He points out Butler testified Tiegen willingly opened the door and the four men came into his home. Even if Tiegen voluntarily let defendants into his home, his permission to enter was not for the purposes followed by the defendants. We consider:
Constructive breaking occurs when entry is obtained by any manner other than physical force, such as by fraud or trick, intimidation, deceit, pretense, threats, or as part of a conspiracy.
When entry has been effected under the pretense of having business with the owner or of paying a social visit, the law is not so impotent as to permit a burglar to enter a house under such circumstances and yet evade the responsibility of his act.
13 Am. Jur. 2d Burglary § 17, p. 193 (2000) (footnotes omitted).
We conclude there was substantial evidence of constructive breaking. We find this case is distinguishable from State v. King, 344 N.W.2d 562, 563 (Iowa Ct. App. 1983), where a defendant was permitted to enter a home and initially engaged in friendly conversation before a dispute arose and defendant struck the homeowner. We held there the State failed to prove the element of entry without consent. Id. In the present case, however, there was evidence Tiegen "opened the door, and they just came in beating." Thus, the defendants' felonious intent was apparent upon their entry. We determine there is sufficient evidence in the record to support the burglary charge.
II. Ineffective Assistance
Madison claims he received ineffective assistance of counsel in eight different particulars. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second-guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable possibility exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct. App. 1994).
A. Voir Dire. Madison contends he received ineffective assistance because his trial counsel did not ask to have voir dire reported. He does not allege, however, that any particular errors occurred during voir dire, but only speculates there may have been some evidence of racial bias. For this reason, Madison has failed to show he was prejudiced by counsel's actions.
B. Motion for New Trial. Madison claims his trial counsel failed to argue to the court the proper standard for review of a motion for new trial. On a motion for new trial, the court must consider whether the verdict is contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). It is clear the district court used the correct standard in considering whether to grant the motion for new trial. The court stated, "the verdicts reached on each element of each offense in the case were not contrary to the weight of the evidence. . . ." Madison did not receive ineffective assistance on this issue.
C. Notice of Alibi. Madison alleges his trial counsel did not present any defense because he failed to file a timely notice of an alibi defense. Prior to trial, Madison informed trial counsel of a potential alibi witness, Jody Crouch. Counsel was unable to contact Crouch until the last day of the trial, when he had a telephone conversation with her. Defense counsel stated that after this conversation, "he [Madison] and I have made a strategic choice not to call Miss Crouch as a witness." Madison affirmed this decision on the record.
Madison has failed to show how he was prejudiced by his counsel's action because he does not allege any evidence he attempted to introduce was excluded due to the failure to file a timely notice of an alibi defense. The record shows Madison and his counsel made a strategic decision not to call Crouch as a witness. Madison has not shown ineffective assistance of counsel on this ground.
D. Cross-Examination. Madison contends his trial counsel failed to vigorously or purposely cross-examine Walker when there were ample discrepancies in her testimony to be challenged. Walker was expected to present testimony detrimental to Madison. Instead, at trial Walker testified she could not remember the incident in question, and her nonresponsive, contradictory, and inconsistent testimony was actually helpful to Madison. Walker's answers to cross-examination were also evasive, and trial counsel made a strategic decision not to question her further. We note Madison does not assert what additional evidence could have been garnered from further cross-examination of Walker.
E. Deposition. Madison claims his trial counsel failed to raise the proper objection to the use of Walker's deposition during trial. He states defense counsel objected on the grounds the deposition was irrelevant, prejudicial, and improper impeachment, but these were not the correct objections. Iowa Rule of Evidence 804(a) provides a hearsay exception where the declarant is unavailable. Madison asserts defense counsel should have argued that Walker was not unavailable under rule 804(a).
Effective February 15, 2002, Iowa Rule of Evidence 804(a) was renumbered as Iowa Rule of Evidence 5.804( a).
Here, the prosecutor stated he was offering Walker's deposition under rule 804(b)(1), which allows a witness's former testimony to be admitted if the witness is considered unavailable under rule 804(a). A declarant is considered unavailable when he or she "testifies to a lack of memory of the subject matter of his statement." Iowa R. Evid. 804(a)(3). The district court ruled:
Now, as to the use of deposition testimony of Ms. Walker, I believe that it is permissible under Rules of Evidence 804(a)(3) and — 804(a)(3) and 804(b)(1) subject, of course, to objections. So we can proceed on that.
The court also stated:
The ruling is based on my reading of Rules of Evidence 804(a)(3) which tells me that for purposes of the use of this deposition Mary Walker is unavailable because of her testimony in the trial of a lack of memory of the subject matter and of the deposition testimony.
The ruling is based also on my reading of Rule of Evidence 804(b)(1) which excepts the former testimony of a witness from the hearsay rule in certain circumstances. I find that this circumstance, this case, meets the exception in the Rule that I have just cited.
Thus, even if defense counsel had raised an objection regarding Walker's unavailability, this issue was clearly considered by the district court and rejected.
F. Continuance. Madison claims he received ineffective assistance because his trial counsel did not file a motion for a continuance when he was unable to contact potential alibi witness Crouch prior to trial. As noted above, defense counsel spoke to Crouch before the end of the trial, and he and Madison jointly decided not to call her as a witness. Based on these facts, Madison cannot show how he would have benefited from a delay in the proceedings. Madison has not shown any prejudice.
G. Hearsay Evidence. Madison contends trial counsel should have objected on hearsay grounds to a police officer's testimony that Tobin stated one of his assailants was named Deion. The excited utterance exception found in rule 803(2), applies to "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." An excited utterance must be made under the influence of the excitement of the incident rather than upon reflection or deliberation. State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). The evidence showed Tobin made the statement at the scene, soon after the beating, and he was in fear, and in pain, at the time he made the statement. We conclude Tobin's statement came within the excited utterance exception.
Effective February 15, 2002, Iowa Rule of Evidence 803(2) was renumbered Iowa Rule of Evidence 5.803(2).
Madison also contends his trial counsel should have objected to a police officer's testimony that various witnesses had identified him from the photographic line-up. Under rule 801(d)(1)(C) a statement "of identification of a person made after perceiving the person" is not considered hearsay. A person's identification of a defendant in a photographic line-up comes within this hearsay exception. State v. Mann, 512 N.W.2d 528, 535 (Iowa 1994). 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).
Effective February 15, 2002, Iowa Rule of Evidence 801(d)(1)(C) was renumbered Iowa Rule of Evidence 5.801(d)(1)(C).
H. Photographic Line-up. Madison asserts his trial counsel should have filed a motion to suppress the identifications of him based on the photographic line-up. Police officers created a photo array using a picture of defendant, plus five pictures of other men. He claims the photo array was unduly suggestive because the appearances of the other men were not similar enough to his appearance, and this violated his due process rights. Madison claims his picture was newer and shinier than some of the other pictures. He also points out that in some of the pictures the men had their eyes closed.
In order to establish that a photographic line-up violated due process, a defendant must show (1) the procedures were in fact impermissibly suggestive, and (2) the irregularities gave rise to a substantial likelihood of irreparable misidentification. State v. Caya, 519 N.W.2d 419, 422 (Iowa Ct. App. 1994). Due process does not require the police to scour their files to come up with a photo array that "would eliminate all subtle differences between individuals." State v. Rawlings, 402 N.W.2d 406, 407 (Iowa 1987) (quoting United States v. Bubar, 567 F.2d 192, 199 (2d Cir. 1977)). A reasonable effort to harmonize the line-up is normally all that is required. Id.
We find the photographic line-up in this case was not impermissibly suggestive. Although there are some differences between Madison and the other five photographs, it appears there was at least a reasonable effort to harmonize the photographs. Madison did not receive ineffective assistance due to counsel's failure to file a motion to suppress. Furthermore, after considering all of Madison's claims, we conclude he has failed to show he received ineffective assistance of counsel.
III. Substitute Counsel
At the sentencing hearing, the district court also heard Madison's motion in arrest of judgment and motion for new trial. At the hearing, Madison stated he wanted new counsel because he did not agree with trial counsel's handling of the case. The court denied the motion, but gave Madison the opportunity to further consult with his attorney. Madison did not take this opportunity, but agreed to have his handwritten statements regarding the case presented as exhibits to the court.
We review the district court's denial of substitute counsel for an abuse of discretion. State v. Martin, 608 N.W.2d 445, 449 (Iowa 2000). A defendant must show sufficient cause to justify the appointment of substitute counsel. Id. Sufficient cause includes a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant. State v. Kirchner, 600 N.W.2d 330, 333 (Iowa Ct. App. 1999). A court must balance a defendant's right to counsel of his choice and the public's interest in the prompt and efficient administration of justice. State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994).
We find no abuse of discretion in the present case. Madison asked for new counsel because trial counsel "would not present this the way I asked him to." There was no evidence of a conflict of interest, irreconcilable conflict, or a complete breakdown in communication. Furthermore, after Madison's objections, the issues he sought to have presented to the court were presented through his exhibits. Madison has not shown sufficient cause to justify the appointment of substitute counsel.
IV. Cumulative Error
Finally, Madison claims that due to cumulative error he was denied a fair trial. We have rejected all of Madison's claims he raises in this appeal. We conclude he was not denied a fair trial.
We affirm Madison's convictions for first-degree burglary and two counts of willful injury.
AFFIRMED.