Opinion
No. 2-802 / 01-1758
Filed October 30, 2002
Appeal from the Iowa District Court for Polk County, Larry J. Eisenhauer, Judge.
Louie Amodeo appeals from the judgment and sentence entered upon his conviction for first-degree harassment following a bench trial. AFFIRMED.
Jeffrey Mains of Benzoni Mains, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, John P. Sarcone, County Attorney, and John Judisch, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ. Eisenhauer, J., takes no part.
Louie Amodeo appeals from the judgment and sentence entered upon his conviction for first-degree harassment, an aggravated misdemeanor, following a bench trial. He contends (1) the district court erred in overruling his hearsay objection, and (2) his trial counsel rendered ineffective assistance of counsel by failing to object to the questions he was asked on cross-examination. We affirm.
Background Facts and Proceedings. On April 17, 2001, Michelle Sanford and her eight-year-old daughter, Katie McConnell, drove to a convenience store to buy groceries. Sanford sent her daughter into the store but forgot to give her money. To get McConnell's attention, Sanford honked her horn one time. At this time, Amodeo turned away from the pay phone, located outside the convenience store, and said to Sanford, "Who you honking at, you fucking fat bitch. I know you are not honking at me." Amodeo also said to Sanford, "You don't know who you are fucking with, I am Mafia, I can cut you up, kill you, put you in a bag, and throw you in the river, and nobody would know it." From inside the store, McConnell heard Amodeo swear at and threaten her mother. Tracy Armstrong, the convenience store clerk, also witnessed the incident. She went to the door and heard Amodeo say, "Get your fucking ass back inside the store before I kill both you and her." Sanford attempted to leave but stopped when she saw Amodeo drive away.
On May 22, 2001, Amodeo was charged by trial information with first-degree harassment in violation of Iowa Code sections 708.7(1)(b) and 708.7(2) (2001). A bench trial commenced on July 25, 2001. On October 5, 2001, Amodeo was found guilty and the district court imposed a suspended sentence. Amodeo appeals.
Alleged Hearsay. We review the admission of hearsay for errors of law, not for abuse of discretion. State v. Long, 628 N.W.2d 440, 447 (Iowa 2001). However, we give deference to the district court's factual findings and uphold such findings if they are supported by substantial evidence. Id.
Amodeo contends the district court erred by allowing hearsay to be admitted into evidence during Officer Cornwell's direct examination. Hearsay is an out-of-court statement, other than one made by a declarant while testifying at trial, offered to prove the truth of the matter asserted. Iowa R. Evid. 5.801(c). Hearsay is not admissible except as provided by the Iowa Constitution, by statute, by the rules of evidence, or by other rules of the Iowa Supreme Court. Iowa R. Evid. 5.802.
During the trial, Officer Cornwell testified Sanford told him that Amodeo made the following statements: "I will kill you and cut you up, throw you in the river, you fat fucking bitch. I will kill your fucking daughter, don't fuck with me." "You don't know who you are fucking with, you fat bitch." We, first of all, conclude this testimony was not hearsay because it was not offered to prove the truth of the matter asserted. The officer was simply testifying concerning the reason he found it necessary to take responsive action. Thus, his testimony was "admissible as necessary to complete the story of the crime on trial." State v. Rush, 242 N.W.2d 313, 319 (Iowa 1976). "Generally, an investigating officer may explain his actions by testifying as to what information he had and its source regarding the crime and the criminal." State v. Reynolds, 250 N.W.2d 434, 440 (Iowa 1977).
Even assuming this testimony was improperly admitted hearsay we conclude it was not prejudicial to Amodeo. If the error is not of constitutional dimension, affecting a fundamental right, we review the inadmissible statements weighed against the other evidence properly admitted to determine if admission of the statements impacted the jury's verdict. State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct.App. 1999). The test for harmless error in this circumstance is "whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice." State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998). To warrant reversal, an error must have prejudiced the defendant. Id. "It is elementary that the admission of evidence is not prejudicial error where substantially the same evidence is in the record without objection." State v. Wells, 437 N.W.2d 575, 578 (Iowa 1989); State v. Hood, 346 N.W.2d 481, 484 (Iowa 1984); State v. Jacoby, 260 N.W.2d 828, 834 (Iowa 1977).
In this case, three other witnesses testified about the statements Amodeo made to Sanford without objection. Officer Cornwell's testimony, even if hearsay, was substantially the same evidence as the testimony of those three witnesses. We find the district court's admission of this testimony did not prejudice Amodeo, given the overwhelming evidence of his guilt in the record. Accordingly, we affirm the district court on this issue.
Ineffective Assistance of Counsel. Amodeo claims his trial counsel was ineffective for failing to object to questions he was asked on cross-examination. We review such claims de novo. State v. Ledezma, 626 N.W.2d 134, 141 (Iowa 2001).
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impunged." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We conclude the record in this case is adequate to decide this issue. In our discretion, we address the prejudice prong first. State v. Nebinger, 412 N.W.2d 180, 192 (Iowa Ct.App. 1987). Amodeo must prove that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceedings would have been different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). Amodeo fails in his attempt. The evidence against him was overwhelming. As stated earlier, three eyewitnesses testified against him. In addition, Amodeo himself admitted that a verbal confrontation took place and even admitted to making threats, including the threat to throw the victim in the river. Amodeo is simply unable to show prejudice on his claim of ineffective assistance of counsel.