Opinion
No. 2-185 / 01-0582.
Filed June 19, 2002.
Appeal from the Iowa District Court for Buena Vista County, JOHN P. DUFFY and FRANK B. NELSON, Judges.
Defendant appeals his conviction for first-degree murder. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber and Charles N. Thoman, Assistant Attorneys General, Phil Havens, County Attorney, and Rick C. Kimble, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Rene Zarate appeals following his conviction for first-degree murder, in violation of Iowa Code sections 707.1 and 707.2(1) (1999). He contends trial counsel provided ineffective assistance in various respects. He also asserts the court erred in (1) failing to grant his motion for judgment of acquittal based on the insufficiency of evidence of specific intent, (2) excluding certain testimony, and (3) refusing to grant a mistrial based on the State's violation of a sequestration agreement. We affirm.
I. Background facts and proceedings.
From the evidence introduced at trial, the jury could have found the following facts. Jorge Ramos rented a room in a Storm Lake mobile home owned by Antonio Bejarano. On May 1, 1999, Antonio left Storm Lake on a trip to Minnesota, leaving his girlfriend, Darla Sell, and his thirteen-year-old son, Marshall, at the mobile home. Early that evening, fifteen-year-old Rene Zarate and thirteen-year-old Isaac Cruz arrived at the home, and the three boys began drinking beer which Antonio had left in the refrigerator. Over the course of the evening, several other individuals came and went from the mobile home. Sell was persuaded to purchase more beer for the group at least one time after the supply was depleted.
Around 1:00 a.m., Ramos arrived at the mobile home. Cruz immediately began arguing with Ramos, and Zarate eventually entered the quarrel. Things calmed down for a time and Ramos retreated to his bedroom. Cruz and the other boys then agreed to "jump" Ramos, and Zarate offered to "stick" or "stab" Ramos. Zarate and Cruz proceeded to kick in the door to Ramos's room and attempted to provoke Ramos into a fight. Zarate grabbed a screwdriver and threatened to stab Ramos with it before Marshall and Cruz took the screwdriver from him. The argument continued until Zarate grabbed a hatchet from the kitchen. He again threatened to kill Ramos.
After continued quarreling, Zarate went to a bedroom, found a fishing knife in a tackle box, and stabbed Ramos with it. Ramos stumbled into the living room and Zarate followed him, with knife in hand. Ramos then fell on a mattress on the floor and all the boys, except Zarate, fled the home.
When two of the boys returned to the mobile home ten or fifteen minutes later, Zarate came out holding blankets and curtains. He walked to a field approximately fifty feet away where Ramos's body, which had been stabbed over fifty times, was lying. Zarate dropped the blankets and curtains on Ramos's body and told Nick Smith, one of the boys who was at the mobile home that evening, to get some lighter fluid or gasoline to burn the blankets. After Smith ran home, Zarate kicked and spat upon Ramos's body, exclaiming, "this is for fucking with Isaac [Cruz]". He also hid the knife in some plowed ground a short distance away.
When police officers later arrived on the scene, Zarate identified himself as Jose Quintero, and gave officers a false date of birth. Zarate explained that earlier in the evening he witnessed Ramos arguing with a man, and that later upon returning to the scene, he found Ramos's body in the field.
After further investigation, the State filed a delinquency petition alleging Zarate had committed first-degree murder. The State subsequently filed a motion to waive juvenile jurisdiction, which the court granted, over Zarate's objections. The State thereafter filed a trial information in the district court charging Zarate with first-degree murder. Following a jury trial, Zarate was found guilty of first-degree murder and the court sentenced him to life imprisonment. Zarate appeals from this conviction.
II. Ineffective assistance of counsel.
Zarate asserts trial counsel provided ineffective assistance in four particular respects. To establish an ineffective assistance of counsel claim, the applicant must show that "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984). The test of ineffective assistance of counsel focuses on whether the performance by counsel was reasonably effective. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
Generally, we preserve ineffective assistance of counsel claims for postconviction to allow trial counsel an opportunity to defend the charge. State v. Pearson, 547 N.W.2d 236, 241 (Iowa Ct.App. 1996). We depart from this preference if the record on direct appeal is sufficient to evaluate the merits of a defendant's ineffective assistance of counsel claim. Id.
A. Waiver as youthful offender. Zarate contends counsel was ineffective in his handling of the juvenile waiver proceedings in failing to have Zarate enter into a plea agreement, consent decree, or be adjudicated to have committed a delinquent act. There is no evidence in the record the State would have made such offers nor that Zarate would have accepted any of them.
When complaining about the adequacy of his attorney's representation, it is not enough for Zarate to simply claim counsel should have done a better job. State v. White, 337 N.W.2d 517, 519 (Iowa 1983). Zarate must state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). This claim of ineffective assistance is simply too vague and unsupported. We therefore decline to address or preserve it for postconviction relief.
B. Right to testify. Zarate did not testify on his own behalf. He now contends trial counsel was ineffective in failing to provide him competent advice on this issue. Zarate requests that we preserve this issue for postconviction relief; and the State concurs in this request. We agree, and find the record inadequate to address this contention. We therefore preserve it for a possible postconviction relief application.
C. Vienna Convention. In Ledezma v. State, 626 N.W.2d 134, 152 (Iowa 2001), the Iowa Supreme Court stated counsel representing a foreign national should advise his or her client of the right to consular access under the Vienna Convention on Consular Relations. Zarate contends the record needs to be developed as to whether he is a foreign national and whether he was advised of these rights. If he was not so advised, he urges counsel provided ineffective assistance.
On appeal, Zarate does not claim to be a foreign national nor is there evidence in the record of his status. Consequently, there is no indication whether counsel informed him of any possible rights under the Vienna Convention. Even assuming there were such evidence, there is no indication providing Zarate appropriate information would have changed the result in any way. Accordingly, we again find this assertion too vague and conclusory to either address or preserve.
D. Offer of proof. Zarate's counsel asked Cruz whether Zarate "would not have acted that way but for the alcohol that he had had that night." The court upheld the State's objection to this question. Zarate's counsel did not make an offer of proof to show how Cruz would have answered. On appeal, Zarate requests that we preserve for postconviction relief his contention counsel was ineffective in failing to make an offer of proof.
We find the record to be sufficient to address this contention, and reject it. Regardless of whether counsel breached a duty in failing to make the proposed offer of proof, we conclude there is no reasonable probability an appellate court would find the trial court abused its discretion in excluding the evidence. First, a trial court's exclusion of lay opinion testimony may only be overturned on a manifest abuse of discretion. Renze Hybrids, Inc. v. Shell Oil Co., 418 N.W.2d 634, 639 (Iowa 1988). Second, the question posed a hypothetical and called for a speculative answer outside the bounds of lay opinion testimony under Iowa Rule of Evidence 5.701. Thus, we conclude Zarate cannot establish the prejudice prong of the ineffective assistance of counsel claim.
III. Evidence of specific intent.
Zarate maintains the district court erred in failing to grant his motion for judgment of acquittal based on the insufficiency of the evidence of specific intent. In particular, he asserts that due to his intoxication he was unable to form the specific intent to kill. In reviewing challenges to the sufficiency of the evidence, we examine the record in the light most favorable to the State. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). A jury verdict is binding on us unless it lacks substantial evidence to support it. State v. Bush, 518 N.W.2d 778, 779 (Iowa 1994). Substantial evidence is evidence that could convince a rational trier of fact beyond a reasonable doubt that the defendant is guilty of the crime charged. State v. Terry, 544 N.W.2d 449, 451 (Iowa 1996). We accept all legitimate inferences and presumptions favorable to the prosecution which may be fairly and reasonably deduced from the record. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984).
We conclude substantial evidence supports that Zarate was able to form specific intent at the time of the stabbing. Although there was a great quantity of beer consumed by the young boys that evening, there is no evidence of the precise quantity consumed by Zarate. Numerous witnesses testified about Zarate's various coherent threats to stab and kill Ramos with a screwdriver, hatchet, and fishing knife. Zarate and Cruz discussed which one would "take Ramos down." This is evidence of his ability to plan and verbalize his thoughts prior to the stabbing. Zarate's actions reflected conscious decisions to acquire deadly weapons and then to escalate the confrontation with Ramos, despite his friends' attempts to stop him. Zarate eventually inflicted at least fifty stab wounds on Ramos. After killing Ramos, Zarate stated, "this is for fucking with Isaac." This illustrates his original intention remained in his mind even after the extended quarrel and stabbing.
Zarate's actions subsequent to the killing also provide evidence his intoxication did not negate his ability to form specific intent. Zarate gave police officers a false name and fabricated a story to explain how he came to find Ramos's dead body. A false story told by a defendant to explain or deny a material fact against him is by itself an indication of guilt and the false story is relevant to show that the defendant fabricated evidence to aid his defense. State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993). Zarate's additional attempts at a cover up provide evidence he knew what he had done was wrong. His attempts to burn the bloody sheets show he had an awareness of wrongdoing and was able to devise a plan to hide his guilt. See State v. Odem, 322 N.W.2d 43, 47 (Iowa 1982). A reasonable juror could find all these actions following the stabbing illustrate Zarate was not so drunk that he could not remember what he had done, that he knew his actions were illegal, and that he needed to deflect suspicion from himself.
IV. Exclusion of Smith's testimony.
Zarate's attorney made offers of proof on testimony he proposed to elicit from Nick Smith and Marshall Bejarano. Smith opined the murder would not have occurred if Zarate had not been drinking the beer Sell provided them. Bejarano also stated the murder would not have happened but for the beer drinking. Zarate contends the court abused its discretion in excluding this testimony. A manifest abuse of discretion must be found before we will interfere with a trial court's ruling on the admissibility of opinion testimony. Sonnek v. Warren, 522 N.W.2d 45, 50 (Iowa 1994).
Lay opinion testimony will be excluded if the factual foundation for the opinion is inadequate. Id. The questions posed to Smith and Bejarano sought an entirely speculative opinion regarding a matter that had no basis in fact. Smith and Bejarano were asked to assume a scenario in which no beer had been provided or consumed and guess as to whether Zarate would still have stabbed Ramos. No foundation was laid as to whether Smith or Bejarano had sufficient knowledge to "form an opinion that can be expected to be reliable and trustworthy." See Wadle v. Jones, 312 N.W.2d 510, 515 (Iowa 1981). Under such circumstances, we cannot conclude the court abused its discretion in excluding the testimony. See also White v. Walker, 950 F.2d 972, 979 (5th Cir. 1991) (allowing exclusion of lay testimony where opinions are not rationally based on the perceptions of the witness).
V. Violation of sequestration agreement.
Prior to trial the parties agreed no witnesses should be in the courtroom during any other witness's testimony. Dr. Michael Taylor, the State's rebuttal expert was not in the courtroom during the testimony of Zarate's expert witness, psychologist Dr. Sheila Pottebaum. However, on the morning he was to testify, Dr. Taylor saw a television broadcast which showed some portions of Dr. Pottebaum's testimony. At trial, Zarate's counsel asked Dr. Taylor whether Zarate's behavior was "delusional." Dr. Taylor responded, "Well, you are being sloppy with your psychiatric terms, as Dr. Pottebaum was yesterday." The court denied Zarate's subsequent request to grant a mistrial. Zarate contends the court erred in denying a mistrial. We review the trial court's decision for an abuse of discretion. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999).
We first note there was no violation of the explicit terms of the sequestration agreement. Dr. Taylor was not in the courtroom during Dr. Pottebaum's testimony. Further, it appears that if there was a violation of the agreement it was inadvertent. Dr. Taylor was simply unaware of the existence of the sequestration agreement. The trial court, which was in the best position to witness the demeanor of the witnesses and the effect of the testimony, see State v. Anderson, 448 N.W.2d 32, 34 (Iowa 1989), concluded no prejudice occurred which would warrant a mistrial. In that we conclude Zarate was not so prejudiced as to deprive him of a fair trial, see Greene, 592 N.W.2d at 30, we affirm the denial of the motion for mistrial.
VI. Conclusion.
We affirm Zarate's conviction for first-degree murder. We also preserve for postconviction relief his contention counsel was ineffective in failing to adequately advise him of his right to testify.
AFFIRMED.
MILLER, J., and VAITHESWARAN, J., specially concur.
I concur specially only to state what are perhaps somewhat additional or different reasons that Zarate's first and third claims of ineffective assistance should not be preserved. A claim of ineffective assistance is too general to preserve, and preserving it is a futile and wasteful exercise unless the claim at least minimally asserts facts which if proved on further development of the record would justify postconviction relief. To be entitled to relief on his first claim Zarate would have to prove both that the State offered or would have offered a plea agreement, consent decree, or delinquency adjudication, and that he would have accepted such an offer. He claims neither. To be entitled to relief on his third claim Zarate would at a minimum have to prove both that he is a foreign national and that counsel failed to inform him of his rights under the Vienna Convention. He claims neither. His claims are thus too general in nature to be preserved for a possible postconviction proceeding. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994).
The author concludes Zarate's ineffective assistance of counsel claim concerning the handling of his juvenile waiver proceedings is too vague to be preserved. I disagree. The State agrees with Zarate that this claim should be preserved for postconviction relief proceedings. That is what I would do.