Opinion
No. 3-496 / 02-0538.
Filed December 24, 2003.
Appeal from the Iowa District Court for Polk County, Joel D. Novak and Scott D. Rosenberg, Judges.
Anthony Wayne Barker appeals his conviction following a jury trial for domestic abuse assault, third or subsequent offense. ISSUES PRESERVED; CASE REMANDED WITH DIRECTIONS.
Linda Del Gallo, State Appellate Defender and Nan Jennisch, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Roxann Ryan, Assistant Attorney General, John Sarcone, County Attorney, and George Karnas, Assistant County Attorney, for appellee.
Considered by Harris, Snell, and Brown, Senior Judges
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
The appellant-defendant, Anthony Wayne Barker, appeals his conviction following a jury trial for domestic abuse assault, third or subsequent offense. He contends the trial court abused its discretion in denying his motion for new trial, and that his counsel was ineffective in failing to preserve error on several issues.
We filed an opinion in this case on October 15, 2003. Barker filed a petition for rehearing challenging only our disposition of the case. We granted the petition for rehearing. Our October 15, 2003 unpublished opinion has been withdrawn. We have considered the arguments on rehearing and we preserve the ineffective assistance of counsel claims for further proceedings, except the claim involving the new trial issue. The case is remanded to the trial court for a new ruling on the motion for new trial.
I. Background and proceedings.
At the appropriate times during the trial, Barker moved for judgment of acquittal based on insufficiency of the evidence to submit the case to the jury. Those motions were denied by the trial court. The jury returned a verdict of guilty of domestic abuse assault. At a later date, in a hearing before a different judge, Barker admitted he was the same person convicted of two previous domestic assaults, thereby establishing his guilt on the charge of domestic abuse assault, third or subsequent offense, in violation of Iowa Code section 708.2A(4) (2001). At the same hearing he orally moved for a new trial based, in part, on Iowa Rule of Criminal Procedure 2.24(2)( b)(6), claiming the verdict was contrary to the evidence in the case. This motion was denied by the court. Barker then waived the use of a presentence investigation report and time for sentencing, and was sentenced to a mandatory indeterminate five years in prison, with a mandatory minimum sentence of one year.
The defendant now appeals, claiming the trial court abused its discretion in denying his motion for a new trial and that his trial counsel was ineffective in several respects.
II. The new trial issue.
The new trial motion ground at issue here is that the verdict was contrary to the evidence. Iowa R. Crim. P. 2.24(2)( b)(6). The State's resistance initially claims Barker has not preserved error on this ground. It claims Barker's motion for judgment of acquittal challenged the sufficiency of the evidence, a different ground than asserted in the motion for new trial. There is no question the two motions presented different issues. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). Ordinarily, a defendant does not preserve error when an issue is first raised in a motion for new trial. E.g., State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002). However, the ground in rule 2.24(2)( b)(6) provides a new trial may be granted by the court "[w]hen the verdict is contrary to law or evidence." Iowa R. Crim. P. 2.24(2)( b)(6) (emphasis added). Obviously, the earliest this ground can be asserted is after the verdict has been rendered. There is no error preservation problem here. See Ellis, 578 N.W.2d at 656.
As noted earlier, the hearing on the enhanced charge, the motion for new trial, and the sentencing was held before a different judge than the one who presided over the trial and who heard all of the evidence. The defendant raises this issue of a different judge in his final claim of ineffective assistance of counsel. We will discuss the claim of abuse of discretion on the new trial motion ruling in connection with our consideration of the ineffective assistance claims.
III. Ineffective assistance of counsel.
Our review in appeals that allege ineffective assistance of trial counsel is de novo. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998). To succeed in this claim, Barker must demonstrate by a preponderance of the evidence his counsel (1) failed to perform an essential duty; and (2) he experienced prejudice as a result of counsel's performance. Irving v. State, 533 N.W.2d 538, 540 (Iowa 1995).
The defendant claims his trial counsel was ineffective in failing to preserve error during the trial in (1) not objecting to speculative testimony as to how the victim sustained her injury; (2) not objecting to the State's improper impeachment of defense witnesses and the improper attack on the defendant's character; and, (3) not elaborating on his motion for new trial, or not requesting the original trial judge pass on the new trial motion.
We believe the first two grounds at least arguably involve tactical or strategic decisions of trial counsel that we should not attempt to second guess on this record. Kyle v. State, 364 N.W.2d 558, 565 (Iowa 1985); State v. Atwood, 342 N.W.2d 474, 477 (Iowa 1984). The allegations of ineffective assistance by not objecting to speculative testimony, improper impeachment of defense witnesses, and improper attack on defendant's character are preserved for possible future proceedings.
In Ellis our supreme court fully discussed the standard of review by trial courts of new trial motions based on a "contrary to the evidence" ground. Ellis, 578 N.W.2d at 656-59. Ellis clearly contemplates that such motions will be considered by the judge that conducted the trial and heard the evidence. How else can the weight of the evidence be adequately evaluated and compared with the jury's verdict? See Id. at 658-59 (stating court may weigh evidence and consider credibility of witnesses under a weight-of-the-evidence standard); accord State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003) (stating "credibility of the witnesses is key in a weight-of-the-evidence determination."); State v. Scalise, 660 N.W.2d 58, 65-66 (Iowa 2003) (reiterating that on considering a motion for new trial based on a contrary-to-the-evidence ground, the district court must weigh the evidence and consider the credibility of the witnesses). In this case the judge presiding at the last hearing was apparently taken by surprise by the expedited process requested by the lawyers. He was not aware of the new trial motion prior to the hearing. We believe trial counsel should have requested that the original trial judge consider and rule on the new trial motion. Further, this is not a case in which prejudice is obviously absent; the evidence against the defendant is not overwhelming.
We set aside the district court's ruling on the motion for new trial and remand this case to the district court so that the original trial judge may consider and rule on the motion for new trial. This disposition precludes our passing on the hearing judge's ruling on the new trial motion. We preserve the other ineffective assistance of counsel issues for possible further proceedings. We do not retain jurisdiction.