Opinion
No. 3-197 / 01-1813.
Filed July 23, 2003
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Defendant-appellant, LeAnn Werts, appeals from her conviction for first-degree murder. REVERSED AND REMANDED.
Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Moss, Dunn, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Frank Severino and Susan Cox, Assistant County Attorneys, for appellee.
Heard by Sackett, C.J., and Huitink and Vogel, JJ.
Defendant-appellant, LeAnn Werts, appeals from her conviction for first-degree murder. She contends the district court erred in several evidentiary matters and trial counsel was ineffective. We reverse and remand for a new trial.
Defendant provided child care in her home. On November 16, 2000 she called 911 to report one of the children had choked on his lunch and was not breathing. He was declared brain dead the next day and pronounced dead on November 18. The State charged the defendant with first-degree murder. Following a week-long trial, a jury found the defendant guilty. The court sentenced her to life imprisonment.
On appeal, defendant raises six evidentiary claims: (1) the court abused its discretion in admitting rebuttal testimony regarding an alleged specific instance of bad conduct; (2) she was denied due process by the State's failure to disclose a rebuttal witness; (3) the court violated her Sixth and Fourteenth Amendment rights by prohibiting the cross-examination of two doctors regarding learned treatises; (4) the court abused its discretion in prohibiting her from cross-examining the doctors regarding learned treatises under Iowa Rule of Evidence 5.803(18) ; (5) the district court violated her Sixth and Fourteenth Amendment rights by prohibiting her from cross-examining one doctor regarding his failure to attain board certification in the area of forensic pathology; (6) the court abused its discretion in prohibiting her from introducing specific instances of conduct under Iowa Rule of Evidence 5.405( b).
Rule 5.803. Hearsay exceptions; availability of declarant immaterial;
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . .
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by that witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
Rule 5.405. Methods of proving character
. . . .
b. Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct.
Our review of a trial court's evidentiary rulings generally is for an abuse of discretion. Williams v. Hedican, 561 N.W.2d 817, 822 (Iowa 1997). Discretion is abused when the trial court exercises its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
Rebuttal testimony concerning a specific bad act. Prior to trial, the State filed two motions in limine which the court sustained. The State and the defendant were prohibited from introducing evidence of specific good or bad acts as character evidence. See Iowa Rs. Evid. 404( a)(1), 405( a). During cross examination of the defendant concerning her conversations with doctors and the victim's parents on the day of the incident, this exchange occurred:
Q. And then after you had a chance to talk to the doctor, you looked over at Jeff and Laura, didn't you?
A. I don't recall.
Q. And you admitted to them that the relationship that you had with them was not the greatest, didn't you?
A. Yes.
Q. And you told them that you would never hurt Ben; is that right?
A. That's true.
During rebuttal, the State called the defendant's next door neighbor and, over defense objection, elicited testimony concerning a recent incident in which the defendant "picked [Ben] up by the arm, raised him up, and slammed him down onto his bottom and then just walked away from him," leaving him crying fiercely. When asked if she had an opinion whether or not the defendant was a violent or nonviolent person, she said, "I've seen violence."
Defendant contends this was improper impeachment based on improper cross-examination and that the statement was not a prior inconsistent statement. At trial, the State argued it was proper impeachment of a prior inconsistent statement. In overruling the defense objection on improper cross examination, the court reasoned the defendant's use of the word "never" was "broad enough to include not just what happened that day, but prior supervision of Ben." Two other specific instances of the defendant's conduct were excluded, but the incident described was allowed as foundation for the neighbor's opinion. On appeal, the State argues the testimony was admissible independent of the impeachment "to show the babysitter's prior relationship with the victim and her motive, intent and lack of mistake or accident in her conduct toward the toddler on November 16, 2000." See Iowa R. Evid. 5.404(b); see also State v. Johnson, 318 N.W.2d 417, 438 (Iowa 1982) (stating evidence the defendant inflicted prior injuries on the victim was probative of his intent in a case where premeditation was a "crucial factual issue"). The State also claims the testimony was proper rebuttal to the defendant's character witnesses.
During direct examination defense counsel only asked about November 16, the date of the incident. On cross examination, the prosecutor asked whether or not the defendant made a certain statement to the victim's parents. She confirmed she made the statement. The prosecutor was not asking whether or not the defendant ever had harmed Ben, he was asking if she made a statement to Ben's parents on November 16. Asking about prior actions would have been outside the scope of direct examination. See State v. Holmes, 325 N.W.2d 114, 117 (Iowa 1982) (stating cross examination of a defendant is strictly confined to matters addressed on direct). Asking about specific instances of conduct would have been in violation of the court's rulings concerning evidence of prior specific acts, whether good or bad. If understood merely as a confirmation by the defendant that she made a statement to the parents, the question was proper. However, such a question and response cannot serve as the basis for admitting the testimony of the Karnses.
The prosecutor also argued the statement about never hurting Ben was a prior inconsistent statement. We disagree. He asked the defendant if she had made a statement to Ben's parents. She agreed she made the statement. Neither his question nor her answer related to the truth or falsity of the statement. Even assuming for the sake of argument that the statement was false, the defendant's testimony was not inconsistent with her prior statement which, we note, was not made under oath. See Iowa R. Evid. 5.801( d)(1)( a); State v. Berry, 549 N.W.2d 316, 318-19 (Iowa Ct.App. 1996).
The State contends the proper test is: "Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?" United States v. Higa, 55 F.3d 448, 452 (9th Cir. 1995). It argues the testimony from the Karnses was admissible to show motive, intent, and lack of mistake or accident. See Iowa R. Evid. 5.404( b). However, this is not the basis for admission of the evidence argued by the State at trial or decided by the trial court:
See generally DeVoss v. State, 648 N.W.2d 56, 60-61 (Iowa 2002) (discussing principles of error preservation and affirming the trial court on any ground).
When intending to introduce bad-acts evidence, the State not only has the duty to show the trial court how the proffered evidence is relevant to one or more issues in the case, it must also articulate precisely the applicability of a rule 404( b) exception. See People v. Golochowicz, 413 Mich. 298, 313, 319 N.W.2d 518, 523 (1982) (holding that when requesting admission of bad-acts evidence, prosecutor's first duty is to specify the rule 404( b) exception upon which the State relies and noting that while in some instances the evidence might be admissible for more than a single purpose, that is not usually the case).
Additionally, the trial court must identify the applicable exception. United States v. Beasley, 809 F.2d 1273, 1279 (7th Cir. 1987). A broad statement merely invoking or restating rule 404( b) will not suffice. See Golochowicz, 319 N.W.2d at 523 (holding that trial court should require the prosecutor to "identify the specific basis in the rule justifying its admission"). This requirement not only ensures that a decision to admit or exclude bad-acts evidence will be made only after issues and reasons are exposed and clearly stated, but it also greatly aids an appellate court in its review of these evidentiary issues.
State v. Rodriguez, 636 N.W.2d 234, 250 (Iowa 2001) (Lavorato, C.J., dissenting). The testimony was offered as impeachment based on a claimed prior inconsistent statement, not under any exception to rule 5.404( b).
At trial the State also argued several prior bad acts were admissible as the basis for the opinion testimony of Mrs. Karns concerning the defendant's character as peaceable or violent. Two of the three prior specific acts were not allowed by the court. The prosecutor was allowed to make general inquiries concerning Mrs. Karns's observation and knowledge of the defendant as foundation for her opinion testimony. Although the opinion testimony may have been admissible as rebuttal to the testimony defendant's character witnesses, the testimony concerning the specific bad acts should not have been allowed as impeachment or under an exception to rule 5.404( b). In addition, the court's earlier ruling on the motion in limine should have excluded the testimony. We conclude the trial court abused its discretion in allowing the testimony.
However, reversal is not required for the erroneous admission of evidence unless prejudice results. State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994). "To establish prejudice, [a defendant] must show a reasonable probability that but for the error the outcome of the trial would have been different." State v. Crone, 545 N.W.2d 267, 273 (Iowa 1996). We believe the testimony about the defendant's prior mistreatment of the victim was unfairly prejudicial, not harmless error as the State argues. See Iowa R. Evid. 5.403. Offered during the rebuttal phase of the trial, it was some of the last evidence heard by the jury and was fresh in their minds for deliberations. The revelation of such actions by a child's adult caretaker certainly is the type of testimony that:
appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [that] may cause a jury to base its decision on something other than the established propositions in the case.State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988) (quoting 1 Jack B. Weinstein et al., Weinstein's Evidence § 403[03], at 403-33 to 403-40 (1986) (now found at 2 Joseph M. McLaughlin, Weinstein's Federal Evidence § 403.04[1][c], at 403-40 to 403-44 (2d ed. 2001)). No cautionary instruction was given to the jury concerning the purpose for which it could consider the testimony. The instructions included lesser-included offenses. Without the testimony of the prior bad act, the defendant could have been convicted of a lesser offense.
Ineffective assistance of counsel. The defendant raises numerous claims trial counsel was ineffective, many as alternative claims if we determine an issue was not preserved for our review. We review ineffective assistance claims de novo. State v. Belken, 633 N.W.2d 786, 794 (Iowa 2001). Generally, we preserve ineffective assistance of counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 785 (Iowa 2001). However, if the record on direct appeal is adequate and trial counsel's actions cannot be explained by plausible strategic or tactical considerations, we may address such claims. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002).
Jury instructions 21, 25, and 29. All three instructions gave the jury three options or theories under which the defendant could be found guilty-shaking, slamming, or assaulting the victim. The jury did not have to agree on any one option and the verdict form did not require the jury to reveal the option each juror chose in convicting the defendant. Including the option of shaking was error because it was unsupported by the evidence introduced at trial. See State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). The defendant was prejudiced because the jury had an incorrect option and may have chosen that option. Giving the jury unfettered choice between applying law that is not applicable to the case or applying a proper standard, essentially requires an appellate court to impermissibly speculate as to which instruction the jury followed. State v. Davis, 228 N.W.2d 67, 73 (Iowa 1975). We see no advantage that could flow to the defendant from trial counsel's failure to object to the instructions. Defense counsel's actions in this regard cannot be attributed to improvident trial strategy or misguided tactics. There is no reasonable basis for counsel's failure to object to an instruction which, if given over timely objection would constitute reversible error. We conclude, therefore, that Werts's trial counsel failed to perform an essential duty in failing to object to instructions 21, 25, and 29.
Cross examination of experts concerning learned treatises. The defendant claims the court abused its discretion in not allowing her to cross examine Drs. Reece and Garrity about journal articles that contradicted their testimony. The State argues error was not preserved concerning three of the four articles. We agree error was not preserved concerning three articles. We also conclude from the record before us that the trial court did not abuse its discretion in not allowing the use of the fourth article in cross examining Dr. Reece.
Cross examination of Dr. Garrity concerning his failure to pass the forensic pathology board certification test. The trial court denied the defendant's request to question Dr. Garrity about his failure to pass the board certification test for forensic pathology. The court allowed the defendant to inquire whether or not the doctor was board certified, but not to ask about failing the test. We conclude from the record made that the court did not abuse its discretion in limiting the defendant's cross examination of Dr. Garrity.
Exclusion of evidence of specific instances of good conduct. The defendant claims the court abused its discretion in not allowing her to introduce evidence of specific instances of conduct by the defendant that would tend to show she was patient, took good care of children, did not lose her temper, or physically punish children. The trial court's ruling on the State's motion in limine prohibited both sides from introducing such evidence. On appeal, the defendant argues rule 5.405( b) permits introduction of such evidence in cases in which a character trait is an essential element of a charge, claim, or defense. She argues her good character was an essential element her defense to felony murder and child endangerment. From the record made, we conclude the trial court did not abuse its discretion in prohibiting such evidence.
Conclusion. We conclude the defendant was denied a fair trial by the admission of improper rebuttal or impeachment testimony concerning a specific prior bad act. Trial counsel was ineffective in failing to object to the "shaking" option in jury instructions 21, 25, and 29. Because we are reversing the defendant's conviction and remanding for a new trial, we do not address her remaining claims trial counsel was ineffective.