Opinion
No. 2-581 / 01-1526
Filed September 11, 2002
Appeal from the Iowa District Court for Lee (South) County, David B. Hendrickson, Judge.
Defendant appeals his conviction for second-degree burglary, alleging he was denied effective assistance of counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Michael Short, County Attorney, and Bruce McDonald, Assistant County Attorney, for appellee.
Considered by Harris, Snell, and Brown, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Defendant's appeal, following his conviction of second-degree burglary, alleges he was denied effective assistance of counsel in his trial before a jury. When, as here, the record on direct appeal is adequate, we resolve ineffectiveness claims rather than consigning them for review in a postconviction proceeding. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). On this review we find counsel's performance easily passed the first of the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 200, 80 L.Ed.2d 674 (1984). To prevail in the first prong Williams must show his trial counsel failed in essential duties, that is counsel's performance fell outside the normal range of competency. State v. Greene, 592 N.W.2d 24, 29, (Iowa 1999). Because the defendant must prevail on both prongs, it is unnecessary for us to consider the second prong. Greene, 592 N.W.2d at 29. We affirm.
Trial counsel for defendant Marvin Daniel Williams faced a formidable challenge. Williams had recently been fired as a waiter at the Old World Restaurant in Keokuk. Three weeks later, on March 27, 2001, he showed up there, ostensibly to discuss a project with Bonnie Andrews, who managed the restaurant for its owner, Jeff Welty. Welty, who had fired Williams, saw Williams in there at about 6:30 p.m. Welty assumed Williams had left after his conversation with Ms. Andrews. Because business was slow that day, Welty closed early, some two hours after Williams was seen there. When Welty and his wife returned to the restaurant the following morning, they found the safe missing. When the safe was discovered a day or two later, checks and gift certificates remained inside, but approximately $630 in cash was gone.
Williams had difficulty paying his March rent. About three days before the burglary, he remarked to his roommate that he would have to rob someone to pay his landlord. On March 29 he came to his landlord's business and offered him a partial rent payment of $200. By the middle of May Williams knew he was a suspect in the burglary and confided to a friend that he took the safe from the restaurant. Williams told his friend he did so by waiting in the bathroom until the restaurant was closed. Williams asked the friend not to tell anyone.
Williams presented alibi testimony. He claims he did not remain in the Old World after 5:30 p.m. on March 27. He acknowledged making the comment to his roommate about rent a few days before the burglary but insists he was only joking. He also admitted telling the friend he committed the burglary but explains he did so only because he was sick of being accused of the crime.
I. Williams complains because his trial counsel refrained from objecting to evidence Williams considers irrelevant and prejudicial. He lists five things: (1) Welty's testimony he fired Williams; (2) testimony that Williams was "ducking" his landlord because he was behind in rent; (3) the witness's recollection that Williams joked about robbing someone to pay the rent; (4) the prosecutor's cross-examination of Williams, questioning whether he was "scamming" his relatives, whether he was accusing a friend of "lying" to the jury, and whether his actions violated his parole; and (5) the prosecutor's question whether he showed persons rubber-banded wads of cash.
It appears to us counsel acted prudently in withholding the objections. For the most part, these matters were clearly relevant and, to any extent they were not, counsel should not be second-guessed for his trial strategy in refraining to raise a highly questionable objection before the jury. Caldwell v. State, 494 N.W.2d 213, 215 (Iowa 1992). The prosecutor was of course entitled to vigorously cross-examine Williams after Williams chose to testify. Trial counsel should not be criticized for not interrupting on the outside chance that some part of the damaging evidence could be barred.
II. Williams also complains about his trial counsel's motion for acquittal, which he argues was not adequate to sufficiently preserve the question of identity for appeal. Again, we cannot fault counsel's tactics. Pursuing the point would have been fruitless because there was ample circumstantial evidence linking Williams to the burglary.
III. Williams also suggests his trial counsel was ineffective in failing to file a timely motion of an alibi defense. This complaint is contrary to the record. The notice was filed in compliance with Iowa Rule of Criminal Procedure 2.11(4) and 2.11(11). We find no merit in any of Williams's contentions.
AFFIRMED.