Opinion
No. 4-003 / 02-1318
Filed February 27, 2004
Appeal from the Iowa District Court for Buena Vista County, Frank B. Nelson, Judge.
George Edward Pittman, Jr. appeals from his conviction for first-degree murder. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Charles Thoman, Assistant Attorney General, and Phil Havens, County Attorney, for appellee.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
George Edward Pittman, Jr. appeals from his conviction for first-degree murder. He claims his trial counsel was ineffective for: (1) failing to ensure his waiver of a jury trial was valid; (2) failing to object to lay testimony regarding the victim's mental state; and (3) failing to object to evidence of certain bruises discovered during an autopsy. He also claims the district court erred in finding there was sufficient evidence to convict him. We affirm.
I. Background Facts Proceedings
While Pittman was serving time in prison, his wife, Keo, became romantically involved with another man, Lylou Chea. Chea eventually moved into Keo's residence in Storm Lake. After Chea moved in with Keo, Pittman began threatening to kill his spouse. Pittman told Chea, prison inmates, Keo's aunt, and even one of his sons that he was going to kill Keo.
On September 19, 2001, Pittman was released from prison. That same day Chea moved out of Keo's house. On September 23, 2001, Pittman and his wife went to their bedroom in the residence. Thereafter, other people in the house heard yelling, cursing, and a booming noise coming from the bedroom. A short time later Pittman emerged from the bedroom and called the police. The first police officer on the scene found Keo dead on the floor of the bedroom with a knife in her right hand Pittman claimed that Keo committed suicide. The State Medical Examiner, Dr. Julia Goodin, determined that Keo died from a stab wound to her left chest.
After reviewing the evidence from the crime scene, talking to people who were in the house at the time of the incident, and interviewing individuals who had knowledge about Pittman and Keo's relationship, law enforcement officers concluded Pittman had murdered his wife and then staged a false suicide scene. On October 2, 2001, the State filed a trial information charging Pittman with first-degree murder. Pittman filed a motion in limine seeking to exclude statements about the victim's psychological condition. During the jury selection process at his trial, Pittman decided to waive his right to a jury trial. He then filed a written waiver and orally waived a jury in open court. Pittman's bench trial began that same day. The trial court found Pittman guilty as charged. On August 8, 2002, Pittman was sentenced to life in prison, without the possibility of parole. He now appeals.
II. Ineffective Assistance of Counsel Claims
Pittman claims his trial counsel was ineffective for: (1) failing to ensure his waiver of a jury trial was valid; (2) failing to object to lay testimony regarding his wife's mental state; and (3) failing to object to evidence of certain bruises discovered during the autopsy following his wife's death.
We review claims of ineffective assistance of counsel de novo. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Normally, 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. Query, 594 N.W.2d 438, 444 (Iowa Ct.App. 1999). However, claims of ineffective assistance of counsel may be resolved on direct appeal when the record is adequate to decide the issue. Id. We find that the record in this case is sufficient for this court to evaluate Pittman's claims.
To establish a claim of ineffective assistance of counsel, Pittman has the burden to prove by a preponderance of the evidence that (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). Pittman's ineffective assistance of counsel claims may be disposed of if he fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
Pittman's first ineffective assistance of counsel claim is premised on our supreme court's recent decision in State v. Stallings, 658 N.W.2d 106 (Iowa 2003), an opinion filed after the conclusion of the district court proceedings in this case. Pittman contends his jury waiver was invalid because the district court did not cover all of the factors mentioned in Stallings for evaluating a jury waiver in its colloquy with him concerning his own jury waiver. He argues that his attorney was ineffective for failing to anticipate Stallings and should have insisted that the district court conduct the entire colloquy that Stallings suggests. This case is factually distinguishable from Stallings. In Stallings the record contained no written waiver of jury trial. In addition, the recorded proceedings did not reveal any mention of a jury waiver by the State, the defendant, or the court. Id. at 108. Unlike Stallings, the record in this case reveals affirmative evidence of a valid jury waiver. The record reveals Pittman filed a written jury waiver and engaged in an in court colloquy with the trial judge regarding his decision to waive a jury trial. The record further reveals the defendant had been discussing the possibility of waiving a jury trial for a least a month prior to the time his trial commenced. We conclude Pittman's waiver of a jury trial was knowing, voluntary and intelligent. Pittman's suggestion that his counsel was ineffective for failing to ensure that the trial court strictly complied with all the factors mentioned in Stallings was recently rejected by our supreme court in State v. Liddell, 672 N.W.2d 805 (Iowa 2003).
In Stallings the supreme court stated the trial court should inquire into the defendant's understanding of the difference between jury and nonjury trials by informing the defendant:
1. Twelve members of the community compose a jury,
2. the defendant may take part in jury selection,
3. jury verdicts must be unanimous, and
4. the court alone decides guilt or innocence if the defendant waives a jury trial.
The court "should [also] seek to ascertain whether [the] defendant is under [the] erroneous impression that he or she will be rewarded, by either court or prosecution, for waiving [a] jury trial."
Stallings, 658 N.W.2d at 111-112 (citations omitted).
Pittman's second ineffective assistance claim is based on the testimony of prosecution witnesses about whether his wife appeared to be happy or depressed before her death, and whether one witness had observed any signs suggesting Keo was capable of suicide. Pittman argues the witnesses were not competent to testify regarding those topics, and that their observations were too remote in time to be relevant. He also contends the testimony was prejudicial and therefore should have been excluded. Pittman asserts that his trial counsel was ineffective for not objecting to the inadmissible lay opinions.
Prior to trial, Pittman filed a motion in limine to exclude statements about the psychological condition of Keo prior to her death. The district court stated the following in its ruling on his motion:
Depending on their knowledge and acquaintance with the deceased, the witnesses will be able to testify to the deceased's outlook on life, her general demeanor, her "upness" or "downness", her depression or lack thereof, et cetera. They will not be permitted to express a specific conclusion on suicidal tendency.
Iowa Rule of Evidence 5.701 applies to opinion testimony by lay witnesses. That rule states:
If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or references which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
We follow a broad approach to the admissibility of opinion testimony by lay witnesses. State v. Glaus, 455 N.W.2d 274, 276 (Iowa Ct.App. 1990). After reviewing the disputed testimony we find that the evidence was based on the perceptions of the witnesses and was properly admitted. The witnesses did not purport to offer expert psychological opinion, which would not have been permissible. See Iowa R. Evid. 5.701. Pittman's trial counsel did not breach an essential duty by failing to object to the disputed testimony.
Pittman also claims the disputed evidence was objectionable because it was too remote. We disagree. The State offered evidence regarding the victim's demeanor one week, and one month, before her death. This relatively short gap in time between the observations of the victim's demeanor and her death renders the evidence timely and relevant. See State v. Helm, 504 N.W.2d 142, 146 (Iowa Ct.App. 1993) (evidence of an incident that occurred one year before a murder was not too remote because the evidence offered rendered the desired inference more probable than it would have been without the evidence). We also find no merit to the defendant's argument that this evidence was unduly prejudicial. We conclude Pittman has failed to prove his counsel breached an essential duty by failing to object to this evidence.
Pittman's last ineffective assistance claim is grounded on the medical examiner's testimony that a human fist could have caused bruises to the victim's head and right arm. Pittman argues this testimony was objectionable because the medical examiner testified the bruises could have been inflicted four to six hours before Pittman's wife was fatally stabbed. He also claims this testimony was improper bad acts evidence and that whatever probative value this evidence may have had was outweighed by its unfair prejudice. Pittman contends his counsel was ineffective for failing to object to the medical examiner's testimony. We find no merit to Pittman's arguments.
The medical examiner testified that all of Keo's injuries, stab wounds and blunt-force trauma, could have been inflicted at the same time. However, she could not rule out the possibility that the bruises to Keo's head and right arm could have been inflicted four to six hours before Keo's death. We find that the evidence was relevant because any contrary indication regarding time of occurrence would only go to weight and not admissibility of the evidence. State v. Casady, 491 N.W.2d 782, 785 (Iowa 1997). We also find that the admission this evidence did not constitute improper bad acts evidence. State v. Walters, 426 N.W.2d 136, 140-141 (Iowa 1988) (events and circumstances which immediately surround an offense may be shown even though they may incidentally show commission of another crime). Since Pittman has failed to prove that his counsel breached an essential duty by not objecting to the state medical examiner's testimony regarding bruises found on Keo's head and right arm, his claim fails.
III. Sufficiency of the Evidence
Pittman contends that the district court erred in finding there was sufficient evidence to convict him. He maintains the evidence supports a finding that his wife committed suicide. We disagree.
Our review in a sufficiency of the evidence challenge is for correction of errors at law. State v. Adney, 639 N.W.2d 246, 250 (Iowa Ct.App. 2001). We will uphold a verdict where there is substantial evidence in the record tending to support the charge. State v. Aldape, 307 N.W.2d 32, 39 (Iowa 1981). Substantial evidence means evidence which would convince a rational fact finder the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 333 (Iowa Ct.App. 1999). When reviewing a challenge to the sufficiency of the evidence, we give consideration to all of the evidence, not just that supporting the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). However, we do view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that fairly may be deduced from the evidence in the record. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984).
After careful review of the record, we conclude sufficient evidence exists to support Pittman's conviction of first-degree murder. The record is replete with evidence of Pittman's threats to kill his wife, who had become sexually intimate with another man while Pittman was in prison. Pittman told at least four people of his intentions. The State proved Pittman quarreled with Keo the day before she died and quarreled with her right before her death. It is also undisputed that Pittman was the only person in the bedroom with Keo when she died and that other people in the house heard yelling, cursing, and a booming noise coming from the bedroom, before Pittman came out of the bedroom and called 911. Pittman later told the police that he had been fighting with Keo prior to her death, because he found her talking on the telephone and assumed she was speaking with her boyfriend.
The medical testimony presented in this case also supports Pittman's conviction. The state medical examiner testified Pittman's wife had a knife wound to her right arm, which she could not have inflicted by using her right hand The evidence reveals the victim was right handed. The medical examiner also testified that it would be unusual for a person who commits suicide to pull the knife out after inflicting a lethal wound. Finally, she testified that although she could not definitively say that the bruises to Keo's right arm and on the top of her head were not self-inflicted, she did state that such bruises are not normally encountered in suicide cases.
Because we find there is substantial evidence in the record to support Pittman's conviction of first-degree murder, we reject his sufficiency of the evidence claim. Accordingly, we affirm Pittman's conviction.