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stating "there was overwhelming credible evidence that [the defendant] was operating a motor vehicle while intoxicated when he was stopped"
Summary of this case from Schaul v. StateOpinion
No. 5-302 / 04-0907
Filed May 25, 2005
Appeal from the Iowa District Court for Linn County, David M. Remley, Judge.
David Lint appeals the trial court's denial of his application for postconviction relief. AFFIRMED.
Philip Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Harold Denton, County Attorney, and Todd Tripp, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
David Lint appeals the trial court's denial of his application for postconviction relief following his conviction for operating while intoxicated (OWI), third offense, as an habitual offender. He contends the court erred in not finding his trial counsel was constitutionally ineffective for advising him not to testify in his own defense at trial. We affirm.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS.
Lint was charged by trial information with OWI (third offense) in violation of Iowa Code section 321J.2 (2001), as an habitual offender under section 902.8; interference with official acts, in violation of section 719.1; and driving while license suspended, in violation of section 321J.21. Jury trial commenced August 13, 2001. Prior to trial Lint pled guilty to the driving while suspended charge.
The interference with official acts charge is not at issue in this appeal.
At trial Deputy Mark Strait of the Linn County Sheriff's Department testified to the following. At approximately 8:30 p.m. on October 26, 2000, Strait heard a dispatch reporting a northbound dark-colored pickup truck with a ladder rack on the back was driving recklessly in the area in which Strait was located near Cedar Rapids. Deputy Strait located a vehicle matching that description and began to follow it. Strait observed the vehicle noticeably weaving within its lane and crossing the fog line onto the shoulder for about one-half to three-quarters of a mile. At that point he decided to stop the vehicle and activated his top emergency lights. The vehicle did not pull over for approximately two miles, despite the use by Strait of his emergency lights. During this time the vehicle continued to weave and cross the fog line. The person driving the vehicle was later identified as the appellant, David Lint. After Lint finally pulled over Strait approached the vehicle and asked Lint for his driver's license. Lint told Strait he did not have a license with him but did produce a vehicle registration with the name Dennis Lint on it.
Deputy Strait testified there was a strong odor of alcohol coming from the vehicle and Lint's speech was slurred. Upon questioning, Lint told Strait he had consumed three beers at a Mr. Lang's residence before leaving Burlington, Iowa. Strait conducted three field sobriety tests on Lint, and testified that Lint failed all three tests. Deputy Strait also stated that he could still smell alcohol on Lint's breath after he got him out of the vehicle and that while conducting the field sobriety tests he noticed Lint had poor balance, his eyes were watery and bloodshot, and his attitude was "going downhill." Deputy Strait arrested Lint for operating while intoxicated.
On the morning trial was set to begin Lint presented the court with a motion in limine which, in relevant part, sought to exclude all reference to his prior record of involvement with the criminal justice system, including his prior record of arrests, pleas, deferred judgments, and convictions, as well as any reference to his driver's license status and driving record. A record was made on the motion before the jury was selected. The court sustained the motion as to Lint's driver's license status, concluding it was no longer relevant because Lint had pled guilty to the driving while suspended charge. It also sustained the motion with regard to Lint's prior criminal record, finding that "[n]o reference shall be made to any prior charges or convictions of this Defendant on any of these matters listed above." The court went on to state that if the State felt the door had been opened for purposes of allowing this evidence for rebuttal or impeachment it should approach the bench to discuss the matter.
At the close of the State's case the defense rested without calling any witnesses. On August 15, 2001, the jury found Lint guilty of OWI and the court found him to be an habitual offender under section 902.8. Lint filed a motion for new trial and a hearing was held on the motion. At the hearing Lint's trial counsel, Dean Keegan, stated it was his understanding the court had ruled that if Lint took the stand he could be impeached with his prior felonies. The court stated its recollection of the ruling concerning admissibility of prior convictions was that they were no longer relevant to the issues of the OWI trial based on Lint pleading guilty to the driving while suspended charge and could not be used as evidence by the State (in its case-in-chief), and that "[W]hether prior convictions could be used for impeachment purposes later in the trial would be reserved until such time as the issue arose and that it did not arise." Accordingly, the district court denied Lint's motion for new trial.
Lint appealed his conviction raising several claims, including a claim of ineffective assistance of counsel for giving Lint poor advice on whether to testify in his own defense. This court affirmed Lint's conviction and preserved the issue of ineffective assistance of counsel for a possible postconviction proceeding. State v. Lint, No. 01-1746 (Iowa Ct.App. Mar. 26, 2003).
Lint filed the present application for postconviction relief on July 30, 2003. Following hearing the postconviction court denied the application. The court found that Keegan had in fact misunderstood the court's ruling on the motion in limine regarding Lint's prior convictions and had erroneously told Lint during the course of the trial that if he testified he could be asked about his prior felony convictions and the specifics of each. It found that Lint would have testified at trial if he had received correct information from his trial counsel regarding the admissibility of his prior felony convictions. However, the court went on to conclude, in part:
[Lint's] omitted testimony has been evaluated in the context of the entire record. I also had the opportunity to view [Lint] on the witness stand when he testified. I do not find Lint to be a credible witness. His explanation as to the amount of beer he drank and the timing of the drinking is inconsistent with other credible evidence as to his driving, physical condition, performance on field sobriety tests and demeanor. I conclude that had Line testified at trial in accordance with his testimony at the hearing in his post-conviction proceeding, there is no reasonable probability that the fact finder would have had reasonable doubt respecting guilt. I conclude there is no reasonable doubt about Lint's guilt whether or not the additional evidence is considered and, therefore, there is no justification for a new trial.
Lint appeals the court's denial of his postconviction application, contending the court erred in finding his trial counsel was not constitutionally ineffective for advising him not to testify in his own defense at trial.
II. SCOPE AND STANDARDS OF REVIEW.
We typically review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicant asserts a claim of constitutional nature, such as ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Ledezma, 626 N.W.2d at 141.
III. MERITS.
A defendant is entitled to the assistance of counsel under the Sixth Amendment to the United States Constitution and Article 1, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). "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.'" Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999) (quoting State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984)). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma, 626 N.W.2d at 145; State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). We may affirm on appeal if either element is lacking. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996).
To establish the first prong of an ineffective assistance claim the applicant must prove the attorney performed below the standard demanded of a reasonably competent attorney. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94. In order to prove the second prong, resulting prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Lint argues, and we agree, that his counsel's misadvice constituted a failure to perform an essential duty, thus establishing the first prong of an ineffective assistance claim. However, for the following reasons we agree with the postconviction court that Lint has not shown a reasonable probability that, but for trial counsel's unprofessional error in the advice he gave to Lint regarding the potential consequences of testifying, the result of his trial would have been different. He has thus not proved he was prejudiced by counsel's misadvice.
First, there was overwhelming credible evidence that Lint was operating a motor vehicle while intoxicated when he was stopped. Deputy Strait observed Lint weaving within his lane, crossing the fog line, and failing to stop when he activated his top lights to pull him over. The fact finder could and in all likelihood would consider these observations of Lint's driving as an indication he was under the influence of alcohol. See Iowa Crim. Jury Instructions 2500.8 (1988); see also State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992) (stating that a factfinder may consider a person's manner of driving in deciding whether he or she was under the influence of alcohol); State v. Walker, 499 N.W.2d 323, 325 (Iowa Ct.App. 1993) (same). Furthermore, Strait testified there was a strong smell of alcohol coming both from Lint's vehicle and from Lint himself, Lint's speech was slurred, he had watery and bloodshot eyes, his balance was poor, and he failed the three field sobriety tests. In addition, the videotape of the booking process shows Lint was argumentative, interrupted the officer, and spoke loudly. Based on this evidence a reasonable fact finder could readily have found Lint was intoxicated at the time he was stopped even if he had testified, as now suggested, that he had consumed only three or four beers ending some five to six hours earlier. Such testimony would in all likelihood not have overcome the strong, credible evidence he was intoxicated.
Second, the inconsistencies between certain undisputed facts, what Lint told Deputy Strait, and the testimony he now asserts he would have given if he had testified, would in all likelihood have led a reasonable factfinder to conclude Lint was not a credible witness. First and foremost, the amount of alcohol he claims to have consumed and the timing of his drinking are inconsistent with the evidence set forth above regarding his driving, physical condition, performance on the field sobriety tests, and general demeanor. If he had consumed only three or four beers ending five to six hours earlier it is not reasonable to believe he would have demonstrated the level of intoxication shown in the record. Additionally, the officer who conducted the inventory of Lint's truck prior to impounding it testified at trial both that the four beers in the truck were still cold and that they were in a ring holder, the "plastic rings that you usually get a six-pack of beer with." Both of these facts are inconsistent with what Lint claims his testimony would have been. His testimony would have been that while at Lang's place a twelve-pack of beer was sitting on a tailgate and it was warm, he shared eight beers out of the twelve-pack with Mr. Lang in Burlington between 2:30 and 3:00 p.m., Lang then told him just to take the remainder of the twelve-pack with him, and Lang put it in Lint's truck for him. Lint was stopped by Deputy Strait at approximately 8:30 p.m. with four cold beers in a six-pack plastic ring holder. We conclude that based on these inconsistencies a reasonable factfinder in all likelihood would have found Lint was not a credible witness and discounted or rejected his testimony.
Due to the overwhelming credible evidence of Lint's intoxication and what would in all likelihood be seen by a reasonable factfinder as inconsistencies between undisputed facts and his testimony, thereby impugning his credibility, we conclude that even if Lint had testified at trial in accord with his testimony at the postconviction hearing there is not a reasonable probability the outcome of the trial would have been different.
IV. CONCLUSION.
Based on our de novo review of the record, and for all of the reasons set forth above, we agree with the postconviction court that Lint has not met his burden to prove by a preponderance of the evidence that he was prejudiced by the erroneous advice given by his trial counsel. Lint has not demonstrated there is a reasonable probability that but for counsel's unprofessional error the outcome of the trial would have been different. The postconviction court did not err in denying Lint's application for postconviction relief.