Opinion
No. 5-764 / 05-0155
Filed December 21, 2005
Appeal from the Iowa District Court for Dubuque County, Richard Gleason, District Associate Judge.
Benjamin Markus appeals from the judgment and sentence entered by the district court on a jury verdict finding him guilty of operating while intoxicated. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Ann Brenden, Assistant Attorney General, Fred H. McCaw, County Attorney, and Michael Whalen, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Benjamin Markus appeals from the judgment and sentence entered by the district court on a jury verdict finding him guilty of operating while intoxicated in violation of Iowa Code section 321J.2(1)(a) and (b) (2003). He contends that his trial counsel was ineffective and that the district court erred in denying his motion for new trial. We affirm.
I. Background Facts Proceedings
On November 25, 2003, at approximately 9:45 p.m., Elizabeth Lee observed a young male driving a red pickup truck in an erratic manner near the 4th Street elevator building in Dubuque. The driver maneuvered back and forth several times, backed into a yard, and eventually struck a railing outside of the elevator building before leaving the scene. Ms. Lee gave the license plate number of the pickup truck to the elevator operator on duty, and the police were contacted. Dubuque police officers soon determined that the plate number was connected to a pickup truck owned by the defendant, Benjamin Markus. Officer Scott Koch went to Markus's residence in Dubuque at approximately 10:30 p.m. and asked Markus's mother to call him when her son returned home. The officer then responded to a call in a different part of town.
The elevator building is part of a cable car operation.
Officer Koch returned to Markus's residence approximately forty minutes later and noticed a red pickup truck parked outside. The engine compartment of the pickup was warm. Koch spoke with Markus inside his residence. Markus admitted he was intoxicated and had driven into a building. Markus also told Koch that he spoke with a woman who was standing near the building after the accident, and she said he could leave. Markus consented to field sobriety testing. He failed the tests, and Officer Koch arrested him for operating while intoxicated. Markus provided a breath specimen for alcohol testing, and the test result was .166, twice the legal limit.
The State filed a trial information charging Markus with operating while intoxicated. A jury found Markus guilty as charged. Markus filed a motion for new trial, which the district court denied. The court sentenced Markus on December 29, 2004. This appeal followed.
II. Ineffective Assistance of Counsel Claims
Markus claims his trial counsel was ineffective for failing to include additional grounds in the motion for new trial filed after the jury reached its verdict. Markus contends his counsel should have argued that (1) the weight of the evidence did not support a guilty verdict and (2) neither Markus nor his defense counsel were present during a critical stage of the trial.
We review ineffective assistance of counsel claims de novo. State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004). Usually, we preserve ineffective assistance claims for postconviction proceedings to allow for the full development of the record regarding trial counsel's actions. State v. Poyner, 306 N.W.2d 716, 719 (Iowa 1981). When the record is sufficient to decide the merits of defendants' arguments, we address ineffective assistance of counsel claims on direct appeal. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App. 2000). We find the record in this case sufficient to reach the merits of Markus's claims.
To prove ineffective assistance of counsel, Markus must establish the following: (1) counsel failed to perform an essential duty, and (2) prejudice resulted from this omission. State v. Constable, 505 N.W.2d 473, 479 (Iowa 1993). To establish the duty prong of the test, Markus "must overcome the presumption that counsel was competent and show that counsel's performance was not within the range of normal competency." State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994) (citation omitted). To establish the prejudice prong of the test, Markus must show a reasonable probability that, but for counsel's errors, the outcome of the trial would have differed. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); Gering v. State, 382 N.W.2d 151, 153-54 (Iowa 1986). We may dispose of Markus's ineffective assistance claims if he fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
We first address Markus's contention that his trial counsel was ineffective for failing to argue that the weight of the evidence did not support a guilty verdict in his motion for new trial. A motion for new trial may be granted if the trial court determines the verdict is contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). The weight-of-the-evidence standard involves a "determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other." State v. Reeves, 670 N.W.2d 199, 201 (Iowa 2003) (quoting Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S. Ct. 2211, 2216, 72 L. Ed. 2d 652, 658 (1982)).
Trial courts should exercise their discretion in ruling on motions for new trial "carefully and sparingly." Ellis, 578 N.W.2d at 659. They should only grant a new trial in exceptional cases where the evidence preponderates heavily against the verdict so that they do not diminish the jury's role as the principal fact-finder. Id. When the evidence is such that different minds could reasonably arrive at different conclusions, the district court should not disturb the jury's findings. Reeves, 670 N.W.2d at 203. Even if the district court might have rendered a different verdict than the jury, in the face of mere doubts that the verdict is correct, the court must not overturn it. Id. If the court finds the verdict incorrect due to mistake, prejudice, or other cause, only then may it set aside that verdict and remand the question to a different jury. Id.
We conclude Markus has not shown he was prejudiced by his counsel's failure to include a weight-of-the-evidence argument in his motion for new trial. The record reveals Markus told three different stories regarding the incident that led to his arrest for operating while intoxicated. When Officer Koch questioned Markus at his home following the accident, he admitted he had been drinking and had driven into the elevator. At the jail, he claimed his pickup had not been driven at all the night of the incident. At trial, he testified that the pickup had been driven near the elevator, but his friend drove while he was a passenger in the back seat. Markus and several of his friends testified to specific details from the night of the accident that were favorable to the defendant, but claimed not to recall other seemingly obvious facts.
For example, neither Markus nor his friends could recall the location or the host of the party where Markus had been drinking.
Even from a cold appellate record, we believe it is clear the greater amount of credible evidence supports a finding of guilt. This is not a case in which the evidence preponderates heavily against the jury's verdict. Markus has not shown a reasonable probability that the trial court would have granted his motion for new trial if trial counsel had included a weight-of-the-evidence argument in the motion. Accordingly, we reject this claim of ineffective assistance.
The jury is free to believe or disbelieve the testimony of witnesses. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). Markus's jury clearly resolved the questions of credibility in favor of the State.
We next address Markus's contention that trial counsel was ineffective for failing to include an argument in his motion for new trial that neither defense counsel nor Markus were present during a critical stage of trial. This claim is based on the following facts.
After the trial concluded, the trial judge went to the jury room to thank the jurors for serving on the jury and answer any questions the jurors had concerning their service. When the court attendant who accompanied the judge to the jury room asked the foreperson of the jury for the unused verdict form, the judge discovered that the jury had received two copies of Verdict Form No. 2 (the guilty verdict form) instead of one copy of the guilty verdict form and one copy of Verdict Form No. 1 (the not guilty form). The court asked if the jury was aware a verdict form was missing prior to reaching a decision on the verdict, and the foreperson informed the court that the jurors were unaware the not guilty form was missing. After receiving this information, the trial court immediately sought out defense counsel to inform him of its own error, but did not hold the jury to allow the prosecutor and defense counsel to question the jury on the record regarding the verdict form issue.
The record reveals it was the trial court's practice to personally thank jurors for their service after every jury trial he presided over.
Markus asserts his trial counsel should have relied upon Iowa Rules of Criminal Procedure 2.24(2)( b)(1) and (9) in his motion for new trial because the defendant was not permitted to be present during a critical stage of trial and consequently did not receive a fair trial. Rules 2.24(2)( b)(1) and (9) respectively provide that the court may grant a new trial if "trial has been held in the absence of the defendant, in cases where such presence is required by law," or if "from any other cause the defendant has not received a fair and impartial trial."
Upon review of the record, we do not believe the defendant's counsel was ineffective for failing to advance the argument now urged by Markus on appeal. Iowa Rule of Criminal Procedure 2.27(1) states that the defendant shall be present during the initial appearance, arraignment and plea, pretrial proceedings, every stage of the trial including impaneling of the jury and return of the verdict, and the imposition of the sentence. Here, the trial court did not speak with the jury outside of the defendant's presence until after the jury had returned a guilty verdict on November 2, 2004. The purpose of the court's post-verdict conversation with the jury was merely to thank them for their service. When the court discovered duplicate verdict forms had been given to the jury, it made a limited inquiry regarding whether the jury was aware they had not received a not guilty verdict form. The foreperson informed the court that the jury was unaware any verdict form was missing. After receiving this information, the court informed defense counsel of its error. Markus filed a motion for new trial on November 22, 2004, based on the court's instructional error.
We agree with Markus that it would have been better for the trial court to hold the jury to allow the attorneys to question the jurors on the record regarding the verdict forms with the defendant present. However, we do not believe reversal is required here. Nothing in the record suggests the missing verdict form influenced the jury's verdict in any way. The jury had already reached and announced their verdict before the jurors were even aware of the verdict form mix-up. Moreover, after the jury returned its verdict, Markus's counsel requested the jury be polled. The court complied with this request, and the polling confirmed that each of the twelve jurors concurred in the jury's verdict of guilty. Even if we assume the circumstances surrounding the court's discovery of verdict form mix-up was a "stage of trial," we do not believe Markus was prejudiced by counsel's failure to cite rule 2.24(2)( b) in his motion for new trial. The record reveals no reasonable probability that Markus would have been granted a new trial if this issue had been raised in his motion.
The record also indicates that trial counsel had the opportunity to visit with jurors immediately after the court met privately with the jury following trial. On appeal, Markus has not offered any examples of information which might have been discovered if a further hearing had been held regarding the verdict form issue.
III. Ruling on Motion for New Trial
Markus filed a motion for new trial claiming he did not receive a fair trial because of instructional error. The trial court denied the motion. On appeal, Markus reasserts his argument that he did not receive a fair trial because the trial court provided the jury with two guilty verdict forms.
Trial courts possess broad discretion in ruling on motions for new trial. State v. Atley, 564 N.W.2d 817 (Iowa 1997). Motions for new trial should be "closely scrutinized and sparingly granted" because they are not favored. State v. Weaver, 554 N.W.2d 240, 245 (Iowa 1996) (overruled on other grounds by State v. Hallum, 585 N.W.2d 249, 254 (Iowa 1998). However, we are more reluctant to overturn a trial court's grant of a new trial than its denial. Id. We review the trial court's denial of Markus's motion for new trial for abuse of discretion. Richards v. Anderson Erickson Dairy Co., 699 N.W.2d 676, 678 (Iowa 2005).
Even though the trial court failed to provide a not guilty verdict form, we find that the jury's verdict was not influenced by this omission. The jury was not aware one of the verdict forms was missing when they returned their verdict. Furthermore, other jury instructions clearly informed the jury that they should find Markus not guilty if the State failed to meet its burden of proof. State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996) (stating that when a defendant challenges a jury instruction, the court judges that instruction in context with other instructions related to the criminal charge, not in isolation). Each time other jury instructions refer to a guilty verdict, they also reference the not guilty alternative. We find nothing in the record which indicates that the absence of a not guilty verdict form misled the jury into believing it had to find Markus guilty. Moreover, as we have already mentioned, the jury was polled after it returned its verdict, and polling confirmed that each of the twelve jurors concurred in the verdict of guilty. We conclude the district court did not abuse its discretion in denying the defendant's motion for a new trial.
IV. Conclusion
We find that Markus's trial counsel was not ineffective, and we affirm the district court's decision to deny his motion for new trial.