Opinion
No. 2-663 / 01-1627.
Filed December 11, 2002.
Appeal from the Iowa District Court for Black Hawk County, JAMES L. BEEGHLY, Judge.
Defendant Tony Mallett appeals from a judgment and sentence entered following his conviction for robbery in the second degree and burglary in the third degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Thomas Ferguson, County Attorney, and Sue Swan, Assistant County Attorney, for appellee.
Considered by HECHT, P.J., and VAITHESWARAN and EISENHAUER, JJ.
Defendant Tony Mallett appeals from a judgment and sentence entered following his conviction for robbery in the second degree and burglary in the third degree. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
On February 17, 2001, Tony Mallett and Gary Mehman were involved in a fistfight in the parking lot of the Waterloo Mini Cinema. Mallett contends the fight started because Mehman propositioned him for oral sex, and that during the fight, Mallett broke the window of Mehman's van. The State and Mehman contend the fight broke out when Mehman, upon exiting the theater to investigate odd noises, found Mallett lying in the front seat of Mehman's van with the window already broken. Mehman claims he pulled Mallett from the van, saw his radar detector in Mallett's hand, and the two men fought. Both men agree that they slipped on the ice during the scuffle, and Mallett escaped from the scene in his car.
After trial, Mallett was found guilty of third-degree burglary and second-degree robbery on September 28, 2001. He appeals his convictions, alleging his trial counsel was ineffective in several respects.
II. STANDARD OF REVIEW.
Appellate review of a claim of ineffective assistance of counsel is de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998).
III. INEFFECTIVE ASSISTANCE OF COUNSEL.
To succeed on a claim of ineffective assistance of counsel, Mallett must prove both that his trial counsel breached an essential duty and that prejudice resulted. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). In order to satisfy the first prong, Mallett must overcome the presumption that his trial counsel's actions were reasonable and within the normal range of competency. Id. To satisfy the prejudice prong, he must prove that but for his counsel's deficient performance, the result of the proceeding would have been different. Id.
Claims of ineffective assistance of counsel are normally not decided on direct appeal, but are preserved for postconviction relief proceedings. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). When the record is adequate, however, we will resolve the ineffective assistance claims on direct appeal. Id. A. Failure to request jury instructions on lesser-included offenses.
Mallett contends his trial counsel was ineffective for failing to request a jury instruction on the lesser-included offense of assault on the robbery charge and instructions on lesser-included offenses of criminal mischief, attempted burglary and criminal trespass on the burglary charge. Although Mallett's trial counsel argued successfully for an instruction on self-defense, he did not request any instructions on lesser-included charges. The record, however, is inadequate to determine whether this was a strategic decision or a breach of an essential duty. We reserve this issue for postconviction relief proceedings so that counsel can explain his actions. State v. Neuzil, 589 N.W.2d 708, 711 (Iowa 1999). Specifically we reserve the issue of whether trial counsel was ineffective for failing to request jury instructions for assault, attempted burglary and criminal mischief. Although Mallett contends his counsel should have requested an instruction for criminal trespass on the burglary charge, criminal trespass is only a lesser-included offense of burglary under the "entering" alternative. State v. Steens, 464 N.W.2d 874, 875 (Iowa 1991). Here, Mallett was charged with the "breaking" alternative of burglary only. Counsel is not ineffective for failing to request an instruction that incorrectly stated the law. See State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999).
B. Failure to object to cross-examination.
Mallett contends his trial counsel was ineffective because he failed to object to various lines of questioning by the prosecutor in her cross-examination of Mallett.
His first claim is that his counsel did not object to improper questions about privileged conversations between Mallett and his attorney regarding trial strategies. Specifically, Mallett contends he was improperly asked about his motion for appointment of a cross-racial identification expert and his refusal to submit a handwriting exemplar. He contends these questions forced him to claim his attorney-client privilege and constituted prosecutorial misconduct. The record is adequate for us to reach the merits of this claim. After reviewing the record, we determine that even if the questions were objectionable, no prejudice resulted from them. We affirm on this issue.
Mallet also claims the above lines of questioning exceeded the scope of direct examination, and therefore his counsel was ineffective for failing to object on that ground. We again conclude that no prejudice resulted from these lines of questions, objectionable or not. We affirm on this issue.
Mallett next contends his counsel was ineffective for failing to object to the prosecutor's question about whether he had told anyone before trial about Mehman's sexual proposition. Mallett claims this question improperly used his post-arrest, post-Miranda silence to impeach him, depriving him of due process and violating his Fifth Amendment rights. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976); State v. Metz, 636 N.W.2d 94, 97 (Iowa 2001). We need not determine whether counsel's performance is deficient before undertaking the prejudice determination. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). Even constitutional deprivations do not require reversal if they are harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967). We conclude the question posed to Mallet in this case was harmless beyond a reasonable doubt. There is no evidence in this case that Mallett invoked his right to remain silent. On the contrary, his trial testimony apparently recounted a version of events he had articulated to several other people before trial. Furthermore, the evidence of Mallet's guilt was overwhelming. C. Failure to move for mistrial due to prosecutorial misconduct.
Q. How many people have you communicated with since this charge was filed?
A. I don't know.
. . .
Q. Have you discussed with anybody or written anything to anybody about being sexually propositioned?
A. I wrote Metcalf. I wrote — I told my attorney here, Brian Adams. I told my mom. I told my brother. Maybe I told some people in the jail that I come close to — you know, maybe so.
This conclusion is strongly supported by Mallett's admission that he authored writings directed, but apparently never delivered, to the victim and a witness. The writings warned the intended recipients that they would suffer adverse consequences if they testified against Mallet.
Mallett contends his trial counsel was ineffective because he failed, at any time during trial, to object to the prosecutor's misconduct. Trial counsel lodged no objections to prosecutorial misconduct, nor did he move for a mistrial. The record is sufficient to review this claim on the merits. We find no evidence of prosecutorial misconduct, and determine the trial counsel had no duty to raise the issue. Id.
D. Ineffective objection to the amended trial information.
Mallet's final contention is that his trial counsel was ineffective for failing to challenge the State's July 19, 2001 amended trial information adding the second-degree robbery charge. Mallett contends the robbery charge is a "wholly new and different offense" and its addition violates Iowa Rule of Criminal Procedure 2.4(8)(a). State v. Williams, 305 N.W.2d 428, 430-32 (Iowa 1981). After reviewing the record, we find that Mallett's counsel did, in fact, file a motion to strike the amended trial information. However, he challenged it on grounds related to the burglary charge, making no mention of the robbery charge. Nearly a month later, when the State filed a second amended trial information in response to his successful motion, Mallet's counsel challenged the addition of the robbery charge in another motion to strike. This motion was denied as untimely. This untimely challenge waived the ability to challenge the amended trial information for not complying with rule 2.4(8)(a). Mallett asks that we preserve this issue for postconviction relief proceedings, and we do.
IV. CONCLUSION.
We affirm Mallett's conviction and preserve for potential postconviction proceedings the issue of whether his trial counsel was ineffective for failing to request jury instructions on the lesser included offenses of assault, attempted burglary and criminal mischief. We also preserve for potential postconviction relief proceedings the issue of whether trial counsel was ineffective for failing to timely challenge the second-degree robbery charge in the amended trial information. Mallett's other claims of ineffective assistance of counsel have no merit, and we affirm on all other issues raised.