Summary
detailing blunt-force injuries to head by hammer that caused death in first-degree murder case
Summary of this case from State v. StogdillOpinion
No. 3-495 / 02-0197
Filed September 24, 2003
Appeal from the Iowa District Court forPolkCounty, Linda R. Reade, Judge.
The defendant appeals his convictions for murder in the first degree, robbery in the first degree, and theft in the second degree. CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender and Tricia Johnston, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John Sarcone, County Attorney, and George Karnas, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Miller and Hecht, JJ.
Bobby Ray Bailey appeals from his convictions, following jury trial, for murder in the first degree, robbery in the first degree, and theft in the second degree. He contends (1) there was insufficient evidence to support his convictions for murder in the first degree and robbery in the second degree, (2) the district court erred in failing to state reasons for sentencing him to incarceration on the theft conviction, and (3) his trial counsel was ineffective for failing to object to improper impeachment evidence and for failing to move for a new trial on the ground the verdicts for murder in the first degree and robbery in the second degree were contrary to the weight of the evidence. We affirm the convictions, vacate the sentence for theft in the second degree and remand for resentencing on that conviction, and preserve the claims of ineffective assistance for a possible postconviction proceeding.
I. BACKGROUND FACTS AND PROCEEDINGS.
December 21, 2000 was the winter solstice, the longest night of the year. However, for eighty-two year old Alfred Comito this night most assuredly was not only the longest night of the year, but the longest night of his life as he sat in his home severely beaten and bleeding to death. He twice attempted to call 911 for help but could not speak. The dispatcher could only hear breathing on the other end of the line. Officers arrived at Comito's home within five minutes of the 911-calls only to find Comito sitting with his hand on the phone and covered in the blood which was spilling from his head. The bloody hammer which had inflicted what would turn out to be the fatal blows to Comito's head and face lay next to him on the floor. Comito was incomprehensible and barely conscious as he uttered his last words on this earth, "cat," and "black Cadillac." Comito was transported to the hospital and underwent surgery for brain and eye injuries. He had suffered two skull fractures, a partially displaced eyeball, contusions to his lips and cheek, a crushed and torn ear, a broken jaw, and a broken cheekbone. His ring finger was also completely crushed and hanging on by only a shred of skin. Alas, the surgeries were to no avail and Alfred Comito died in the hospital two days later from blunt-force injuries to his head without ever regaining consciousness.
The officers investigating the incident found two dirty coats and a backpack at Comito's residence. Comito's jewelry and car were gone. The officers investigating the incident discovered the backpack had been stolen from a vehicle a few days earlier. The officers suspected the coats belonged to a homeless man so they took the coats to a local homeless shelter to try to find the owner. At the shelter Gary Robinson, who lives at the homeless shelter and takes care of handing out donated clothing to the residents of the shelter who need it, recognized the coats as ones he had handed out to one Bobby Ray Bailey. The officers were led to Bailey's bunk where they handcuffed and arrested him. Comito's jewelry was later found a local pawn shop. His stolen car was also later located and Bailey's DNA was found on a cigarette butt left in the car.
The results of testing which occurred after the December 21, 2000 incidents indicate Bailey has an IQ of approximately sixty, which would put him in the mild to moderate range of mental retardation. Other evidence indicates, however, that in 1998 test results indicated Bailey had an IQ in the high eighties. Expert testimony at trial stated that Bailey suffers from chronic schizophrenia, one of the symptoms of which is auditory hallucinations or hearing voices that seem to come from outside an individual's head and direct the person to do or not do certain things. Other expert testimony opined that Bailey did not suffer from chronic schizophrenia at the time of the December 21, 2000 incidents. The record shows Comito was eighty-two years of age, was five feet two inches tall, and weighed approximately one hundred and eighty-eight pounds. Furthermore, there was testimony from various witnesses that Comito "hobbled" and shuffled when he walked and his balance was not very good.
These are the facts we know, the undisputable facts laid out in the record before us in black and white. The events which led up to the brutal and fatal beating Comito suffered in the early morning hours of December 21, 2000 are however greatly disputed. Bailey's account attempts to paint a picture of an old, rich, homosexual man whose refusal to pay the money he had promised for a sex act caused a low-functioning, homeless man who suffers from schizophrenia and hears voices to just "snap." On the other hand the State tries to portray a kindly, older, wealthy man whose reward for trying to help out the less fortunate by giving them work was to be robbed and savagely beaten for a hundred dollars by one of the very people he was trying to help. Bobby Ray Bailey's account of the events of the evening, as testified to at trial, is as follows.
Bailey claims that on the night in question he was walking on Sixth Avenue in Des Moines when Comito drove up in a black Cadillac, summoned him over to the car and told Bailey to get in. Bailey got into the vehicle and Comito asked him where he was going. Bailey replied, "Anywhere to keep warm." Comito said it was cold out and asked Bailey if he wanted to come to his place. Bailey agreed as he did not have any shelter for that night. Comito asked Bailey if he would be his "daddy" and offered him one hundred dollars if he could perform fellatio on Bailey. Bailey agreed to the proposition because he had no money and no place to stay.
Bailey testified they then went to Comito's house where Comito gave him alcohol and then performed fellatio on him. When he was finished Comito wanted Bailey to sexually penetrate him and Bailey refused. Comito told Bailey to leave but Bailey said he would not leave until he got the hundred dollars Comito had promised him. Comito came at Bailey with a ball peen hammer. Bailey claims he disarmed Comito, but Comito then picked up a claw hammer. Bailey tried to defend himself with the ball peen hammer but the head came off when he attempted to hit Comito with it, so he grabbed the claw hammer from Comito and struck him in the face with the claw hammer. Comito fell onto his back with the first blow of the claw hammer and Bailey then got "down close to him" and struck him several more times in the head. Bailey testified that he "just kept hitting" Comito, he "didn't really count how many times," and he only stopped hitting him because "the voices" told him they did not want him to kill Comito but to help him. Bailey went through Comito's pockets for money and took his jewelry and his car keys. Bailey claims he helped Comito get up into a chair and then took Comito's Cadillac and left.
However, there was contradictory testimony introduced at trial regarding how Bailey came in contact with Comito on that fateful night and how Bailey ended up at his house. Charlie Warner's deposition testimony was entered into evidence by the parties' stipulation. Warner testified that he was the intake clerk at the Bethel Mission, the shelter where Bailey was in fact staying at the time of the incident. He stated that Comito would often hire people from the shelter to do odd jobs around his house. According to Warner, Comito called the Mission on December 20, 2000 to hire some people to help with snow removal at his house and Warner sent Bailey to Comito's on this date for that purpose.
Bailey was charged by trial information with murder in the first degree (Count I), in violation of Iowa Code sections 707.1 and 707.2 (1999), robbery in the first degree (Count II), in violation of sections 711.1 and 711.2, theft in the second degree (Count III), in violation of sections 714.1 and 714.2(2), and willful injury (Count IV), in violation of section 708.4. Prior to the filing of the trial information Bailey filed a notice of a defense of self defense, as well as a notice of his intent to rely on the defenses of diminished capacity and intoxication. He also notified the court of his intent to rely on a defense of insanity. On June 16, 2001 the court suspended the proceedings and ordered an evaluation on Bailey's competence to stand trial. On August 16, 2001, following evaluation and treatment with medication, the court found Bailey to be restored to competence and ready to proceed to trial.
Count IV was not submitted to the jury and thus it is not at issue in this appeal.
Jury trial commenced and the jury found Bailey guilty as charged on December 6, 2001. Bailey filed a motion for new trial and motion in arrest of judgment on January 24, 2001 and the court denied the motions prior to sentencing. The court sentenced Bailey to the mandatory term of life in prison on Count I, an indeterminate term of imprisonment not to exceed twenty-five years on Count II subject to serving the mandated 100% of the term, and an indeterminate term of imprisonment not to exceed five years on Count III. The court ordered the terms of incarceration to run concurrently.
II. MERITS.
Bailey contends on appeal that (1) there was insufficient evidence to support his convictions for murder in the first degree and robbery in the second degree, (2) the court failed to give reasons for sentencing him to incarceration on the theft conviction, and (3) his trial counsel was ineffective for failing to object to improper impeachment testimony and for failing to move for a new trial on the murder and robbery verdicts on the ground they were contrary to the weight of the evidence. We address these issues separately.
A. Sufficiency of the Evidence.
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002) and need not be repeated here. The following additional standards are applicable as well. Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence . State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The very function of the jury is to sort out the evidence and place credibility where it belongs. Thornton, 498 N.W.2d at 673
1. Murder in the first degree.
Bailey asserts the State failed to present sufficient evidence to establish that his acts were done with malice aforethought, that he acted deliberately and with premeditation, and that he could form the specific intent to kill Comito, all required elements for a conviction of first-degree murder. Iowa Code section 707.2 provides in relevant part,
A person commits murder in the first degree when the person commits murder under any of the following circumstances:
1. The person willfully, deliberately, and with premeditation kills another person.
2. The person kills another person while participating in a forcible felony.
Iowa Code§ 707.2 (1999). The jury was instructed it could find Bailey guilty of murder in the first degree if the State proved beyond a reasonable doubt that:
1. On or about the 21st day of December 2000, the defendant without justification struck Al Comito.
2. Al Comito died as a result of being struck.
3. The defendant acted with malice aforethought.
4. a. The defendant acted willfully, deliberately, premeditatedly and with a specific intent to kill Al Comito, or
b. The defendant was participating in the forcible felonies of Willful Injury or Robbery as explained in Instruction No. 33.
The jury found Bailey guilty of first degree murder and robbery in the first degree.
Bailey first argues there was insufficient evidence he killed Comito with malice aforethought. The jury was instructed that
"Malice" is a state of mind which leads one to intentionally do a wrongful act to the injury of another in disregard of the rights of another out of actual hatred, or with an evil or unlawful purpose. It may be established by evidence of actual hatred, or by proof of a deliberate or fixed intent to do injury. It may be found from the acts and conduct of the Defendant, and the means used in doing the wrongful and injurious act. Malice requires only such deliberation that would make a person appreciate and understand the nature of the act and its consequences, as distinguished from an act done in the heat of passion.
"Malice aforethought" is a fixed purpose or design to do some physical harm to another which exists before the act is committed. It does not have to exist for any particular length of time.
Bailey contends he acted in a rage of passion or anger, in direct contradiction to a finding of malice aforethought, and that there is no evidence he acted with a fixed purpose to cause harm to Comito but instead only acted in response to Comito denying him the money he had promised him and then coming at him with a hammer.
"Our first-degree murder cases have long held that the use of a deadly weapon supports an inference of malice, and when accompanied by an opportunity to deliberate, also supports an inference of deliberation and premeditation." State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001); see also State v. Frazer, 267 N.W.2d 267 N.W.2d 34, 39 (Iowa 1978) ("The use of a deadly weapon accompanied by an opportunity to deliberate, even for a short time, is evidence of malice, deliberation, and premeditation."); State v. Smith, 242 N.W.2d 320, 326 (Iowa 1976) ("[M]alice aforethought may be inferred from defendant's use of a pistol or revolver, i.e., a deadly weapon."); State v. Hephner, 161 N.W.2d 714, 720 (Iowa 1968) ("Assault with a deadly weapon implies malice. . . ."). A weapon is "deadly" if the manner in which it is used is likely to cause death. State v. Mart, 237 Iowa 181, 187, 20 N.W.2d 63, 66 (1945). Bailey admitted during trial that he raised a claw hammer above his head and hit Comito in the face with it. The jury could reasonably infer that the manner in which Bailey used the hammer was likely to cause death. He then hit Comito numerous times in the face and head even after he was on his back on the floor. Bailey testified that he "just kept hitting him" and "didn't really count how many times." A reasonable jury could readily have found that Bailey had developed a fixed purpose or design to do physical harm to Comito at some point during the extended attack, even if that purpose or design did not exist at the outset of the attack.
Malice and intent to kill may also be inferred from the type and number of injures suffered by the victim. See State v. Poyner, 306 N.W.2d 716, 718 (Iowa 1981) (stating that multiple stab wounds supply strong evidence of malice and intent to kill). Comito's treating physician testified at trial Comito was struck with so much force that all of the bones surrounding his left eye were broken and the resulting pressure "blew a hole in the eye." The physician also testified that Comito suffered multiple skull fractures, at least two of which were comminuted, that one of the skull fractures was depressed at least a full inch, and that Comito's injuries had been caused by blows struck "with great force."
Accordingly, we conclude that based on the means, manner, and brutality of Bailey's extended attack on Comito there was sufficient evidence for a rational juror to find beyond a reasonable doubt that Bailey acted with malice aforethought.
Bailey further argues he was merely acting in the heat of passion, but also admitted at trial that after Comito was on the floor on his back he continued to hit him with the claw hammer numerous times. Bailey also contends he was only reacting to Comito's "aggressive approach" toward him with a hammer and he felt "threatened" by Comito. However, Comito was eighty-two years old and several witnesses testified that he "hobbled" or shuffled when he walked and that his balance was not very good.
Here, as in all criminal jury trials, the jury is free to believe or disbelieve the testimony of the witnesses as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. Liggins, 557 N.W.2d at 269; Thornton, 498 N.W.2d at 673. The very function of the jury is to sort out the evidence and place credibility where it belongs. Thornton, 498 N.W.2d at 673. The jury here rejected Bailey's interpretation of the events of the evening in question, as it was free to do.
Bailey next argues the State failed to prove he acted willfully, deliberately and with premeditation in killing Comito. Bailey contends that because of his mental condition and drug and alcohol use he was unable to control his reaction to Comito's "aggression" toward him and thus was unable to deliberate, premeditate, and form the requisite specific intent to kill Comito. See State v. Talbbet, 590 N.W.2d 732, 734 (Iowa Ct.App. 1999) (stating a jury is allowed to consider a defendant's mental condition on the issue of willfulness, deliberation, and premeditation). He asserts there is nothing in the circumstantial evidence of the manner of the attack upon Comito which would support a finding of deliberation or premeditation.
Bailey relies in large part on Dr. James Gallagher's testimony to support his argument on this issue. Dr. Gallagher opined that based on Bailey's mental condition and moderate mental retardation, if he had in fact taken alcohol and other drugs it was possible that Bailey was not able to form the specific intent to commit murder. However, Dr. Michael Taylor also testified at trial. He opined that as of December 21, 2000, Bailey had a substance abuse disorder, had consumed his usual amount of alcohol, had no other psychiatric disorder, was fully capable of deliberating, premeditating, and forming the intent to kill, was fully capable of understanding the nature of his acts, and that he was able to differentiate between the right and wrong of his acts.
"To deliberate is to weigh in one's mind or to consider. To premeditate is to think or ponder upon a matter before action." Talbbet, 590 N.W.2d at 733. Like malice aforethought, premeditation and deliberation need not exist for any particular period of time prior to the act. State v. Gilroy, 199 N.W.2d 63, 66 (Iowa 1972). Also similar to malice, deliberation and premeditation may be shown through evidence regarding the nature of the killing. Talbbet, 590 N.W.2d at 734-35; State v. Wilkens, 346 N.W.2d 16, 20 (Iowa 1994).
We conclude that based on the evidence concerning the nature of the killing and the expert medical testimony at trial, a reasonable juror could conclude Bailey killed Comito willfully, deliberately and with premeditation. Bailey's testimony shows that he did in fact have time to deliberate before attacking and while continuing an extended attack on Comito. He admitted at trial that he could have left Comito's house rather than attacking him with the hammer but that he was not going to leave without the money from Comito. Thus, even assuming Bailey's testimony as to physical events is true and accurate, after he took the second hammer away from Comito he still could have easily left at that point but decided instead to hit Comito in the face with the hammer. After Comito was on the floor Bailey again had the opportunity to leave but instead chose to repeatedly hit Comito in the head and face with the claw hammer. Bailey's use of the hammer, accompanied by his opportunities to deliberate, is clear evidence of premeditation and deliberation. Talbbet, 590 N.W.2d at 734.
Furthermore, while Dr. Gallagher opined it was "possible" Bailey was unable to form the specific intent to kill Comito on the night in question, Dr. Taylor testified to the contrary that Bailey was fully capable of deliberating and premeditating Comito's murder, and fully capable of understanding the nature of his acts on the night in question. Thus, although the record contains arguably contradictory expert testimony regarding Bailey's ability to deliberate, premeditate, and form specific intent, this was an issue for the jury to decide because there was sufficient, credible evidence for a reasonable juror to find Bailey could and in fact did deliberate, premeditate, and have the specific intent to kill Comito.
For all of the reasons set forth above we conclude there was sufficient evidence in the record that a reasonable juror could find, beyond a reasonable doubt, that Bailey acted with malice aforethought, deliberation, premeditation, and with the specific intent to kill Comito. Therefore, there was sufficient evidence to support the jury's verdict of guilty on the first-degree murder charge.
2. Robbery in the first degree.
Bailey next argues there was insufficient evidence to support a conviction for robbery in the first degree in this case. Specifically, he contends the evidence did not support a finding that he had any intent to commit a theft prior to the assault on Comito, a required element for a conviction for robbery in the first degree. In order to find Bailey guilty of robbery in the first degree, under the court's instructions the jury had to find that: (1) On or about December 21, 2000 Bailey had the specific intent to commit a theft; (2) to carry out his intention or assist him in escaping from the scene, with or without the stolen property, Bailey either (a) committed an assault on Comito, or (b) threatened Comito with, or purposely put him in fear of, immediate serious injury; and (3) Bailey (a) purposely inflicted or attempted to inflict a serious injury on Comito, or (b) was armed with a dangerous weapon.
Although the facts are disputed regarding how Bailey got to Comito's house, there is no dispute that Bailey refused to leave Comito's home without the $100 Comito supposedly promised to pay Bailey for allowing Comito to perform fellatio on him. Bailey testified that after he told Comito he would not penetrate him he demanded his money. However, Comito refused to give Bailey the money despite Bailey's repeated demands. Bailey testified Comito then opened the door and told him to get out but Bailey would not go and told Comito he was not going to leave without the money. He stated that he could have left at that time but chose to stay because he wanted his money. According to Bailey's testimony this is when Comito came at him with the hammers, Bailey took the hammers away from him, and Bailey proceeded to beat Comito about the face and head with the claw hammer as described above. Once Comito was on the floor and after Bailey had hit him a number of times with the claw hammer, Bailey testified he started going through Comito's pockets looking for the hundred dollars he felt was owed to him. However, Comito had no money in his pockets so Bailey took his car keys, his ring, his bracelet, his necklace, his watch, and eventually his car.
The facts that Bailey demanded money from Comito, stated he would not leave the house without it, continued an extended violent attack upon Comito after bludgeoning him to the floor, and after having beaten him with the hammer went through Comito's pockets still looking for the money he felt he was owed and promised, provide sufficient evidence that at least some part of Bailey's attack upon Comito with the hammer occurred with the intent to commit a theft. Bailey admitted he repeatedly demanded his money from Comito, had decided he was not leaving the house without "his" money, and that even after Comito told Bailey to get out Bailey continued to inform Comito he would not leave without the money. Based on the evidence in the record a rational juror could conclude Bailey committed an assault on Comito or purposely put him in fear of immediate serious injury with the specific intent to commit a theft.
Bailey argues that because the jury made no finding that he was guilty of willful injury, and there was insufficient evidence to support guilt of robbery in the first degree, a conviction of murder for killing another while participating in either of those forcible felonies is unsupported by the evidence. We have determined there was sufficient evidence of first-degree robbery. Under a jury instruction quoted in part earlier in this opinion, the jury could find Bailey guilty of felony murder without finding he had committed the crime of willful injury but instead by finding he had participated in a willful injury. This is a correct statement of the law. See State v. Liggins, 557 N.W.2d 263, 268 (Iowa 1998) (holding it is not necessary to prove commission of an underlying felony in order to convict a defendant of felony murder, all that is required is proof the defendant was participating in the underlying felony). Bailey does not claim there was not substantial evidence that he participated in willful injury of Comito. Further, any such claim would be without merit given the nature of his attack on Comito and the nature, extent and seriousness of Comito's numerous resulting injuries. Bailey's argument is without merit.
B. Sentencing on Second-Degree Theft Charge.
Bailey next claims the district court erred in failing to state reasons for sentencing him to incarceration on his conviction of theft in the second degree. The State argues Bailey did not preserve error on this claim.
Sentencing decisions of the district court are cloaked with a strong presumption in their favor. Where, as here, a defendant does not assert that the imposed sentence is outside the statutory limits, the sentence will be set aside only for an abuse of discretion. An abuse of discretion is found only when the sentencing court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.
State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996) (citations omitted).
When a sentence is not mandatory, the district court must exercise its discretion in determining what sentence to impose. The district court must demonstrate its exercise of discretion by stating upon the record the reasons for the particular sentence imposed. The sentencing court, however, is generally not required to give its reasons for rejecting particular sentencing options.
Id. (citations omitted).
We reject the State's error preservation argument. A failure to exercise sentencing discretion is a defective sentencing procedure to which rules concerning error preservation do not apply. State v. Wilson, 294 N.W.2d 824, 825-26 (Iowa 1980).
Iowa Rule of Criminal Procedure 2.23(3)( d) requires a sentencing court to "state on the record its reason for selecting the particular sentence." Failure to state on the record the reasons for the sentence imposed requires the sentence be vacated and the case remanded for amplification of the record and resentencing. State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980); State v. Freeman, 404 N.W.2d 188, 191 (Iowa Ct.App. 1987). A statement may be sufficient, even if terse and succinct, provided its brevity does not prevent review of the exercise of the trial court's sentencing discretion. State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989).
The court here sentenced Bailey to the mandatory terms of incarceration on the murder and robbery charges. However, the second-degree theft charge does not carry a mandatory prison sentence and the court gave no reasons for imposing a prison term on that charge. More is required for us to be able to review the trial court's exercise of its sentencing discretion. Accordingly, the sentence imposed on Bailey's theft conviction must be vacated and the case remanded for resentencing on it.
Where, as here, a defendant's mandatory prison sentence on one or more convictions requires imprisonment for longer than he would be supervised on probation on another, less serious conviction, a reason for imposing imprisonment on the less serious conviction might appear obvious. This is because any term of probation supervision would expire before the term or terms of imprisonment, the defendant would never in fact be subject to supervision on probation, and ordering a sentence of less than imprisonment might thus appear to be a futile action. However, the possibility exists that any conviction carrying a mandatory prison sentence may be reversed on appeal. Any sentence imposed on the less serious conviction therefore does not in fact lack legal or practical significance, as it may directly implicate the retention or loss of liberty. We conclude that reasons must be stated for each sentence imposed when a defendant is convicted of more than one crime.
C. Ineffective Assistance of Counsel.
Finally, Bailey contends his trial counsel was ineffective for failing to object to the State's improper impeachment of defense witness Ray Clark, and for failing to move for a new trial based on the murder and robbery verdicts being contrary to the evidence. Because a claim of ineffective assistance of counsel implicates constitutional rights, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 102 (Iowa 1997)). "Rather, we preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Id.
Bailey can only succeed on his ineffectiveness claim by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999); Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985). No record has yet been made before the trial court on these issues. Trial counsel has not been given an opportunity to explain his actions and the trial court has not considered and ruled on the ineffectiveness claim. Under these circumstances, we pass the issues in this direct appeal and reserve them for a possible postconviction proceeding. State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
III. CONCLUSION AND DISPOSITION
We conclude there is sufficient evidence in the record for rational jurors to conclude beyond a reasonable doubt that Bailey acted willfully, with malice aforethought, deliberation, premeditation, and specific intent in killing Comito, and that he assaulted Comito with a claw hammer with the specific intent to commit a theft. We affirm his convictions on those charges. We vacate the sentence imposed on Bailey's theft in the second degree conviction and remand to the district court for resentencing on that conviction. We preserve Bailey's two specified claims of ineffective assistance of counsel for a possible postconviction proceeding.