Opinion
No. 5-760 / 05-0092
Filed November 9, 2005
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Patrick McAdams appeals from his conviction of forgery and theft in the second degree in violation of Iowa Code sections 715A.2(2)(a) and 714.2(2) (2003). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, William E. Davis, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Patrick McAdams appeals from his conviction of forgery and theft in the second degree in violation of Iowa Code sections 715A.2(2)(a) and 714.2(2) (2003).
I. Background Facts Proceedings.
McAdams was charged with the foregoing crimes after he confessed to taking a book of his father Ben McAdams's checks without permission, writing six checks totaling $1,900 payable to himself, and cashing them at two Davenport area banks. At trial the State's case included testimony by Moline, Illinois Police Officer Pablo Renya concerning his interview with McAdams and the substance of McAdams's resulting confession. Renya's direct examination includes the following:
The checks were taken from McAdams's Moline, Illinois, residence and drawn on his account at a Moline bank.
PROSECUTOR: I'm going to show you now what's been marked for identification purposes as State's Exhibit No. 1. Ask if you recognize what it is.
RENYA: These are copies of check[s] that Mr. Ben McAdams reported were stolen by his son Patrick McAdams.
McAdams's counsel did not object to this inquiry or move to strike Renya's answer.
Dawn Tanner, an employee of the Moline bank on which the checks were drawn was the only other witness called by the State. She testified that the checks depicted on State's Exhibit No. 1 bore the purported signature of Ben McAdams, were made payable to Patrick McAdams, and that they all bore a symbol indicating they were cashed for a total of $1,900 at two separate banks. On redirect examination she testified that she remembered Ben McAdams coming to the bank. However, she was not asked why McAdams was at the bank or about any related conversations with him concerning the checks at issue.
At the close of the State's case, McAdams moved for a directed verdict, stating:
MR. GALVIN: Yes, Your Honor. Make a motion at the close of the State's case that the State has failed to make a prima facie case and the verdict should be directed. First, there's only evidence of a confession but nothing to corroborate it and even had that been, there's still no evidence that anybody — that there's actually a victim to this crime, that Mr. McAdams did not have permission to write these checks, the ones that the banker talked about not the ones the detective talked about because those are not the same checks.
The trial court's resulting ruling denying McAdams's motion states:
With regard to the corroboration of the defendant's confession, there is sufficient corroboration from the fact that those checks were negotiated; therefore the State has established a prima facie case. . . .
McAdams was convicted on both counts and sentenced to two consecutive indeterminate terms of incarceration not to exceed five years.
On appeal McAdams claims he was denied effective assistance of trial counsel. He cites counsel's failure to make a hearsay objection to Renya's testimony concerning Exhibit 1, as well as counsel's failure to request a jury instruction concerning corroboration of his out-of-court confession. McAdams also argues the State's evidence was insufficient to corroborate his confession and the trial court should have granted his motion for directed verdict or motion for judgment of acquittal.
II. Standard of Review.
We review McAdams's ineffective assistance of counsel claims de novo. McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995) (citing Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989); Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984)). Otherwise, our scope of review is for correction of errors of law. Iowa R. App. P. 6.4.
III. Ineffective Assistance of Counsel Claims.
To establish a claim of ineffective assistance of counsel, McAdams has the burden to prove (1) counsel failed in an essential duty and (2) prejudice resulted from counsel's failure. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Generally, we preserve claims of ineffective assistance of counsel for postconviction proceedings. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). However, we resolve claims of ineffective assistance on direct appeal if the record is adequate to do so. Id. We review "the totality of the circumstances relating to counsel's conduct, keeping in mind the presumption that counsel performed competently." State v. Keesey, 519 N.W.2d 836, 838 (Iowa Ct.App. 1994) (citing State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987)). "To prove the first prong, the defendant must overcome the presumption that counsel was competent." Buck, 510 N.W.2d at 853 (citing Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989)). We consider under the circumstances, whether "the performance of counsel fell below normal range." Keesey, 519 N.W.2d at 838 (citing State v. Carberry, 501 N.W.2d 473, 477 (Iowa 1993)). To prove the second prong, the defendant must show counsel's failure worked to the defendant's actual and substantial disadvantage resulting in a reasonable probability that the trial result would have been different. Buck, 510 N.W.2d at 853 (citing Brewer, 444 N.W.2d at 83) (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698)).
A. Hearsay Issue.
McAdams first argues counsel was ineffective in failing to make a hearsay objection to Renya's earlier quoted testimony. We disagree.
Hearsay is defined as an out-of-court statement "offered in evidence to prove the truth of the matter asserted." Iowa R. of Evid. 5.801(c). "[I]f hearsay is admitted, prejudice to the non-offering party is presumed unless the contrary is affirmatively established." State v. Rice, 543 N.W.2d at 887 (citing State v. Barrett, 445 N.W.2d 749, 754 (Iowa 1989); State v. Nims, 357 N.W.2d 608, 609 (Iowa 1984)). "[P]rejudice is not established where substantially similar evidence has been admitted but not objected to." Rice, 543 N.W.2d at 887 (citing McKettrick, 480 N.W.2d at 60; State v. Gilmore, 259 N.W.2d 846, 858 (Iowa 1977)). The presumptive prejudice resulting from the admission of hearsay evidence is insufficient standing alone to establish the requisite prejudice supporting an ineffective assistance of counsel claim. State v. Martin, ___ N.W.2d ___ (Iowa 2005).
Even if we assume without deciding that Renya's testimony included an objectionable hearsay assertion, McAdams cannot establish any resulting prejudice because the record contains substantially similar evidence. As noted earlier, Renya testified without objection concerning the details of McAdams's confession, including McAdams's admission that he stole the checks from his father and without permission made them payable to himself, forged his father's signature, and cashed them at two Davenport area banks. McAdams is therefore unable to establish the prejudice prong of this ineffective assistance of counsel claim.
B. Corroboration Instruction.
McAdams also claims counsel was ineffective in failing to request the following jury instruction:
The defendant cannot be convicted by a confession alone. There must be other evidence that the defendant committed the crime.See Iowa Jury Instruction 200.16. McAdams argues that counsel's failure to request this instruction resulted in his conviction without the jury's consideration of the requisite corroborating evidence.
Iowa Rule of Criminal Procedure 2.21(4) states that the "confession of the defendant, unless made in open court, will not warrant a conviction unless accompanied by other proof that the defendant committed the offense." This "other proof" should fortify the truth of the confession without independently establishing the crime charged. State v. Polly, 657 N.W.2d 462, 467 (Iowa 2003). "Corroboration need not be strong nor need it go to the whole of the case so long as it confirms some material fact connecting the defendant with the crime." State v. Liggins, 524 N.W.2d 181, 187 (Iowa 1994).
In State v. Polly, the court rejected an ineffective assistance of counsel claim based on failure to request a corroboration instruction. Polly, 657 N.W.2d at 468. The court said:
Polly argues his trial counsel was ineffective for failing to request a jury instruction on corroboration. He does not point to any basis for this conclusion. In theory, every confession given by a defendant could have a corroboration jury instruction. However, Polly has not asserted his confession was false or inaccurate. He does not contend the investigator coerced him into confessing. Polly does not urge and we can find no circumstances present which would indicate the unreliability of his confession. Given the facts before us, there is no reasonable probability the result would have been different if the jury had received a corroboration instruction. In sum, Polly has not proven the prejudice prong of his ineffective assistance of counsel claim for his attorney's failure to request an instruction on corroboration;. . . .
Polly, 657 N.W.2d at 468 (citations omitted). We, for the same reasons cited by the court in Polly, find McAdams was not prejudiced by counsel's failure to request a corroboration instruction. Contrary to McAdams's claims, the record includes sufficient evidence corroborating his confession. Most notably, the fact that the checks were all made payable to McAdams is corroborating proof that he was the person who committed the charged offenses. Additionally, Tanner's testimony concerning the particulars of each check and resulting payment by the bank confirms other material facts connecting McAdams to the charged offenses. We accordingly affirm on this issue.
IV. Motion for Judgment of Acquittal.
We review a claim of insufficient evidence for errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We must view the evidence in the light most favorable to the State. Id. The verdict must be supported by "such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt." Id. The existence of corroborative evidence is an issue for the court, but the insufficiency of corroboration is for the jury. Polly, 657 N.W.2d at 467. For the reasons stated in Division III, we reject McAdams's challenge to the sufficiency of the evidence supporting his convictions. The trial court accordingly did not err in overruling McAdams's motion for judgment of acquittal.
We have carefully considered all the issues McAdams raises on appeal and have found them to be either controlled by the foregoing or without merit. The judgment of the district court is affirmed in its entirety.