Opinion
No. 3-718 / 02-1447
Filed November 17, 2003
Appeal from the Iowa District Court for Polk County, Douglas Staskal, Judge.
Tony Sihavong appeals following his conviction on the charge of first-degree murder. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano and James Ward, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Defendant Tony Sihavong appeals following his conviction on the charge of first-degree murder. He contends his trial counsel was ineffective for failing to present additional evidence regarding his fear of his victim. We affirm.
I. Background Facts Proceedings
Tony Sihavong shot and killed Tim Lincoln with a .38 revolver on December 7, 2001, during an argument. The defendant and his victim lived next to each other in Des Moines when the shooting occurred.
On January 17, 2002, the State charged Sihavong with murder in the first degree in violation of Iowa Code sections 707.1 and 707.2 (2001), and being a felon in possession of a firearm, in violation of Iowa Code sections 724.26 and 724.25(1). The two counts were severed for purposes of trial. Trial on the charge of first-degree murder was held July 8-10, 2002. Sihavong defended on the theory that the killing was accidental. The jury was not persuaded by his defense and returned a guilty verdict on the charge of first-degree murder. Sihavong was subsequently sentenced to life in prison. He now appeals.
II. Scope of Review
Our review is de novo because Sihavong alleges a denial of his constitutional right to effective assistance of counsel. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000).
III. Ineffective Assistance of Counsel
Sihavong claims his trial counsel was ineffective because "counsel failed to present evidence of his reasonable fear of Tim Lincoln and the basis for that reasonable fear." He contends counsel should have offered additional evidence regarding Lincoln's violent nature and history of threatening behavior towards Sihavong and others. Although Sihavong's theory of defense was that his gun accidentally discharged, he asserts that this evidence was relevant to explain why he would point a gun at Lincoln.
The defendant bears the burden of demonstrating ineffective-assistance-of-counsel. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). To establish a claim of ineffective-assistance-of-counsel, the defendant must 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). To prove the first prong, the defendant 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). To prove the second prong, the defendant must show counsel's failure worked to the defendant's actual and substantial disadvantage so that a reasonable possibility exists that but for counsel's error the trial result would have been different. Id.
Generally we preserve claims of ineffective-assistance-of-counsel raised on direct appeal for postconviction proceedings to afford the defendant an evidentiary hearing and to permit the development of a more complete record. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). However, we will resolve such issues when the record on appeal is adequate. Buck, 510 N.W.2d at 853. In this appeal, we find the record adequate to address the defendant's claims.
The record reveals that Sihavong's counsel was able to get a great deal of evidence into the record regarding Lincoln's history of aggression and his troubled relationship with Sihavong. At trial, the defendant testified that he was "scared to death" of Lincoln, that he and Lincoln had a history of arguments, and that Lincoln got on his nerves. Sihavong contends his counsel was ineffective for failing to present additional evidence that the victim was a very confrontational and violent man. For the reasons which follow, we disagree.
Several other witnesses testified the two men had a lengthy history of arguing with one another.
Evidence of a murder victim's violent character and evidence of specific acts of violence by a victim are generally inadmissible under the Iowa Rules of Evidence. Iowa R.Evid. 5.404( a)(2)( A). A narrow exception to that rule exists "where the accused asserts he or she acted in self defense." State v. Jacoby, 260 N.W.2d 828, 837 (Iowa 1977). However, "a homicide victim's prior violent or turbulent character or reputation is ordinarily immaterial and furnishes another no excuse to become his or her private executioner." Id. Accordingly, "where the accused denies the killing or asserts it was unintentional, evidence of the deceased's character is inadmissible." Id. Only in cases where a person's character is an essential element of a charge, claim, or defense may proof of specific instances of the person's conduct be properly admitted. Iowa R.Evid. 5.405( b).
At trial, Sihavong did not present a defense of self-defense or justification. Instead, he argued that the shooting was unintentional. Therefore, evidence regarding the victim's turbulent character would have been inadmissible. Sihavong's counsel breached no duty by choosing not to offer inadmissible evidence.
Sihavong suggests that we should abandon our longstanding rule excluding evidence of the victim's violent character and specific acts of violence and follow a California appellate decision. See People v. Mizchele, 142 Cal.App.3d 686 (Court of Appeals, 1st District, Division 1, California 1983). We find no persuasive reason for taking this step.
Even if trial counsel had breached a duty to defendant in failing to present the evidence in question, there is no reasonable probability that the outcome of this case would have been different given the overwhelming evidence in the record of Sihavong's guilt. An eyewitness, Jason Mallory, saw Sihavong shoot his victim. Another witness, Tony Hen, saw Sihavong leave his house before the shooting, retrieve a gun from the back seat of his car, re-enter the house, and then leave the house a second time with the gun after the shooting. Sihavong then got into Hen's vehicle and commented, "who's next?" After the shooting, Sihavong fled the scene, hid the gun, lied to the police, and made several conflicting statements about the shooting. In a letter he sent to his fiancée from jail Sihavong admitted that when he left his house on the day of the shooting "he got in the Acura and got out the strap," which he explained was a gun. Additionally, Sihavong testified at trial that he knew the gun was loaded when he pointed it at his victim. Finally, the location of Lincoln's gunshot wound, photographs taken at the scene shortly after the shooting, and the testimony of the only eyewitness do not support Sihavong's accounts of the shooting. We conclude the defendant cannot establish there is a reasonable probability that the jury's consideration of additional evidence regarding the victim would have resulted in an acquittal. Therefore his ineffective-assistance-of-counsel claim fails as a matter of law.
Because we conclude that Sihavong has failed to prove either prong of his ineffective-assistance-of-counsel claim, we affirm his conviction for first-degree murder without preserving his ineffective-assistance-of-counsel claim.