Opinion
No. 3-508 / 02-1103
Filed September 24, 2003
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Defendant appeals from his conviction and sentence for murder in the first degree. AFFIRMED.
Linda Del Gallo, Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Richard Paul Annis appeals from his conviction and sentence for murder in the first degree, in violation of Iowa Code section 707.1 and 707.2 (2001). He contends his counsel was ineffective in several regards. We affirm.
I. Background Facts and Proceedings. On the night of November 4, 2001, Annis was staying at the home of Vicky Stitcher, along with Paul Burris, Linda Blas, and Stitcher's boyfriend, J.D. Bulman. All except Stitcher used methamphetamine during the evening. Bulman left the home, and Stitcher complained to Annis about Bulman's treatment of her and her children. Annis comforted Stitcher by stating, "While I'm around, nobody will hurt you." Annis left the home, telling Stitcher he was going out for cigarettes.
Stitcher went to bed before Annis or Bulman returned. At around 11:30 p.m., Stitcher awoke and found Bulman sleeping on the couch in the living room. She went back to sleep. At approximately 3:30 a.m. on November 5, Stitcher woke up again, went to living room, and encountered Annis standing over Bulman, holding him with one arm. When Annis saw Stitcher, he let go of Bulman and told Stitcher, "Go back to bed. You did not see nothing." Stitcher tried to get a look at Bulman, but Annis blocked her view. Stitcher then told Annis she was taking Bulman into her room, but Annis told her she could not. When asked why not, Annis told Stitcher, "Because I've killed him."
Annis went into Burris and Blas's room and asked them to "help me get rid of D.J." Not believing anything had happened, they sent Annis away. Annis returned one or two more times, saying "Look, guys, help me. I murdered D.J. I killed D.J." Annis also stated, "Well, he's not going to bug anybody else anymore."
Blas went to the living room and discovered Bulman was dead. Bulman had suffered a severe stab would to the right side of his neck, as well as a second stab wound to the back of his neck, and two deep cuts on his head. Annis rolled Bulman's body into a comforter and placed it in the back of Bulman's pickup truck, covering it with two tires and trash. He also attempted to clean the blood off the couch cushions. When Stitcher attempted to pick up Bulman's jacket, Annis cautioned her against touching it, stating, "The murder weapon is in there." Annis then hid the jacket and the butcher knife in a trash bag he placed behind the garage.
Burris and Blas left the home and called the police. Upon arriving at the home, Stitcher told the officers that Bulman's body was in his truck. When Annis was arrested three days later, he waived his right to an attorney. In a tape-recorded interview, Annis originally claimed he had blacked out and could not recall what had happened the night of the stabbing. Annis later changed his story, claiming Bulman tried to attack him with a knife when he entered the house. He claimed Bulman was fatally injured when he fell on the knife in the ensuing struggle. Finally, Bulman stated that when he entered the house, he saw Bulman asleep on the couch and decided, "This is it, he's a goner," and, "This is it, I'm going to get him." Annis entered the kitchen, removed the butcher knife from the counter, and stabbed Bulman in the neck.
The State charged Annis with first-degree murder, alleging both the premeditation and felony murder alternatives. Following a jury trial, Annis was found guilty, and the court sentenced him to life imprisonment.
II. Scope of Review. We review claims of ineffective assistance of counsel de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Only in rare cases will the trial record alone be sufficient to resolve the claim. Id. "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct.App. 1999) (citing State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)).
III. Ineffective Assistance of Counsel. To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of ineffective assistance of counsel focuses on whether counsel's performance was reasonably effective. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The defendant must show counsel's performance fell below an objective standard of reasonableness so that counsel failed to fulfill the adversarial role that the Sixth Amendment envisions. Id. A strong presumption exists that counsel's performance fell within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).
Additionally, our courts have ruled that trial strategy, miscalculated tactics, mistake or inexperience do not constitute ineffective assistance. Id.at 143. We may dispose of the defendant's ineffective assistance claims under either prong. Id. In order to prove the prejudice prong, the defendant must show a reasonable probability that but for counsel's alleged errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.
Annis alleges his counsel was ineffective in (1) failing to properly present the defense of intoxication, (2) failing to file a motion to suppress his confession, (3) failing to object to a witness's comment on the credibility of the first version of events he told to the police, and (4) failing to object or move for a mistrial based on purportedly inaccurate descriptions of Annis's statement given by a witness and by the prosecutor in his rebuttal closing argument.
A. Intoxication defense. In his taped confession to police, Annis states he "snapped" after being awake for four or five days on methamphetamine. His counsel filed a notice of the defense of intoxication on February 6, 2002, more than forty days after his December 19, 2001 arraignment, in contravention of Iowa Rule of Criminal Procedure 2.11. Annis contends his counsel was ineffective in failing to properly present an intoxication defense because counsel (1) failed to timely file a notice of intoxication defense, (2) failed to request a jury instruction on intoxication as a defense, and (3) failed to present evidence in support of his intoxication defense.
Annis's counsel withdrew the intoxication defense at the start of trial. The State contends it was a reasonable tactical decision for Annis's attorneys to forgo an intoxication defense because the evidence shows Annis formed a specific intent at the time of the murder. Counsel instead argued Stitcher, not Annis, was the murderer. The selection of the primary theory or theories of defense is a tactical matter. See Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984). We conclude Annis's counsel did not provide ineffective assistance in failing to pursue an intoxication defense.
B. Motion to Suppress. Annis next contends his counsel rendered ineffective assistance by failing to file a motion to suppress his confession on the ground it was obtained by improper promises of leniency.
The State has the burden of proving Annis's statements were made voluntarily. State v. Payton, 481 N.W.2d 325, 328 (Iowa 1992). This burden must be met by a preponderance of the evidence. Id. In determining the voluntariness of a statement, the court must examine the totality of the circumstances in which the statement was made. State v. Foell, 512 N.W.2d 809, 812 (Iowa Ct.App. 1993). A statement is considered to be voluntary so long as it was "the product of an essentially free and unconstrained choice, made by the defendant at a time when his will was not overborne nor his capacity for self-determination critically impaired." Id. (quoting State v. Snethen, 245 N.W.2d 308, 315 (Iowa 1976)). A statement resulting from a promise of help or leniency by a person in authority is not considered voluntary and therefore is not admissible. State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982).
Annis asserts his confession was inadmissible because it was the result of a promise of leniency. After Annis had claimed the stabbing occurred after an altercation with Bulman, he was told by an officer that his statements were difficult to reconcile with the other witnesses' statements that they had not heard a fight. The officer told Annis he did not know if his claim of self-defense would "fly" or not. The officer then told Annis that "the reason we are here is to try to get something on your side." Annis claims these statements amounted to a promise that the police were on his side and would help him.
An officer can ordinarily tell a suspect that it is better to tell the truth. The line between admissibility and exclusion seems to be crossed, however, if the officer also tells the suspect what advantage is to be gained or is likely from making a confession. Ordinarily the officer's statements then become promises or assurances, rendering the suspect's statements involuntary.
Id. at 349.
We conclude Annis's statements in his confession were not improperly obtained. The officer's statement suggesting Annis's first version of events may not fly "was a means of challenging defendant's veracity rather than a device calculated to overbear his will or impair his capacity for self-determination." State v. Davis, 446 N.W.2d 785, 790 (Iowa 1989) (quoting State v. Boren, 224 N.W.2d 14, 16 (Iowa 1974)). In State v. Jackson, 387 N.W.2d 623, 628 (Iowa Ct.App. 1986), this court held that an officer's statement, "I told him I didn't buy his act, that we were going to talk or I was going to put him back in his cell" was not a promise of leniency. In this case, the officer did not make Annis any promises as to what would happen if he did or did not talk to him, and accordingly, no promise of leniency can be found. Hodges, 326 N.W.2d at 348 (holding a promise of leniency occurs when an officer tells the suspect what advantage is to be gained or is likely from making a confession).
Even if we were to assume an offer of leniency was made to Annis, we conclude Annis has failed to prove he was prejudiced by counsel's failure to move to suppress his statements because three witnesses testified Annis told them he had killed Bulman.
C. Credibility. In his testimony, Officer David Ness described Annis's confessions, commenting that when Annis told his third and final version of events, he was providing "more truthful information." Annis contends his counsel rendered ineffective assistance by failing to object to this witness's comment on the credibility of the other version of events he told to the police.
At trial, the following exchange took place between the prosecutor and Officer Ness:
Q. Okay. Did there come a time in your interview when Mr. Annis told you that he was going to quit lying? A. Yes.
Q. Tell us when that occurred and what he told you after that. A. Okay. Basically, I — I asked Annis — I challenged his version a little bit. I said, Things are just not adding up. Initially you said there was no altercation, then you said there was an altercation, even a physical fight in which this other man's been stabbed. We've got numerous people in the house none of whom awakened and, frankly, I just don't buy it and again" — excuse my language. He says, "Oh, fuck, I'm not going to lie to you anymore." And at that point he began providing additional information and more truthful information.
In light of Annis's own statement that he was going to quit lying, we conclude Officer Ness's statement about the credibility of Annis's version of events was not prejudicial. Accordingly, his counsel was not ineffective in failing to object to the testimony.
D. Mischaracterization of the confession. Finally, Annis contends counsel rendered ineffective assistance by failing to object or move for a mistrial based on purportedly inaccurate descriptions of Annis's statement given by a witness and by the prosecutor in his rebuttal closing argument.
Officer Ness testified that in his confession, Annis stated "he made sure or he then grabbed the knife himself and made sure that Bulman was not in pain, was putting him out of his misery." In closing argument, the prosecutor alleged Annis said, "then I took it out and I stabbed him again, I'm going to finish him off." Annis contends these statements were inaccurate, as the phrases "finish him off" and "put him out of his misery" were introduced by the police during the interrogation, and Annis simply agreed to the statements. However, the State notes that in his interview, Annis stated that when Bulman confronted him with the knife, "I grabbed it from him and finished it off," and therefore the prosecutor's statement during closing argument was accurate.
Although Annis contends he was prejudiced by counsel's failure to move for mistrial, he fails to state how prejudice resulted. In order to preserve a claim of ineffective assistance of counsel for postconvictionreview, a defendant must make a minimal showing by which this court can assess the viability of the claim. State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987). A defendant must indicate why the challenged action is alleged to be ineffective and what prejudice is likely to have resulted from it. Id. The bald assertion that certain acts constitute ineffective assistanceof counsel will be insufficient to preserve the question for postconviction proceedings. Id. Because Annis has not complied with these minimal requirements, we conclude he has raised no viable claim of ineffective assistance and find no basis for preserving these issues for postconviction review. See id. AFFIRMED.