Opinion
No. 4-006 / 02-1749
Filed March 24, 2004
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
Sergio Edwardo Erazo appeals from his conviction, following jury trial, for domestic abuse assault (third offense), making three claims of ineffective assistance of trial counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Thomas Ferguson, County Attorney, and Jill Dashner, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Sergio Edwardo Erazo appeals from his conviction, following jury trial, for domestic abuse assault (third offense) in violation of Iowa Code section 708.2A(4) (2001). He makes three claims of ineffective assistance of trial counsel. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
This case arises out of an incident which took place on May 4, 2002. Waterloo police officer David McFarland responded to a dispatch call reporting an assault. When McFarland arrived at Cork's Grocery Store Nicole White was still on a pay phone talking to dispatch. McFarland testified at trial that White was crying and shaking, had redness around her eye, a swollen lip, and a mark inside her lip.
McFarland gave the following testimony regarding what White told him when he met her at Cork's grocery. White had received a call from "Michelle" who told her that Erazo, her boyfriend at the time, was flirting with Michelle. White went to the residence where this was allegedly occurring to confront Erazo. When White arrived Erazo came out of the house and started yelling at White so Michelle and another woman left them alone to talk. Erazo continued to yell at White, and struck the left side of her face just below her eye, knocking her to the ground. As she tried to get up he hit her in the mouth. Erazo then kicked and hit her a few more times before she got up. When she was able to get up she ran to her car, went to the pay phone, and called the police dispatcher.
Erazo was charged by trial information with domestic abuse assault, third offense, on June 7, 2002. The domestic abuse assault charge was tried to a jury on August 20, 2002. By the time of trial White's version of the events on May 4 had changed. Therefore, during the State's case-in-chief White testified only that she knew Erazo because they had a previous relationship and had three children together, but that they had been separated for approximately two weeks as of May 4, 2002.
White also testified for the defense. She denied that Erazo hit or kicked her on May 4. She asserted she hit her face on the steering wheel and hit her face with her hand because she was angry with Erazo and wanted to get him in trouble.
Michelle Helene also testified for the defense. She stated that she had seen Erazo and White arguing at the residence on the night in question. She claimed she witnessed their entire interaction and did not see Erazo hit or kick White.
The jury found Erazo guilty as charged on August 20, 2002. A pretrial conference was scheduled for August 23, 2002, and was held on that date. On August 23, prior to the pretrial conference, Erazo filed a written waiver of his right to a trial by jury. During the pretrial conference there was a brief in-court colloquy regarding Erazo's waiver of jury trial. A bench trial on the matter was held August 29, 2002. On October 17, 2002 the court sentenced Erazo to a term of incarceration not to exceed five years.
A further trial was scheduled because Erazo was subject to an enhanced penalty, for a Class "D" felony, if his current offense was found to be his third or subsequent offense of domestic abuse assault. See Iowa Code § 708.2A(4).
II. SCOPE AND STANDARDS OF REVIEW.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
An ineffective-assistance-of-counsel claim may be disposed of if the defendant fails to prove either of the two prongs of such claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). To establish prejudice under the second prong, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698. "A `reasonable probability is a probability sufficient to undermine confidence in the outcome' of the defendant's trial." State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997) (quoting State v. Kraus, 397 N.W.2d 671, 673 (Iowa 1986)).
While we often preserve ineffective assistance claims for postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). Neither party here asserts the record is insufficient, we find it to be adequate, and we address the claims.
III. MERITS.
Erazo first claims his counsel was ineffective for failing to properly articulate a motion for judgment of acquittal for purposes of acquittal and error preservation. He specifically contends counsel should have moved for judgment of acquittal based on insufficiency of the evidence because the sworn testimony of two witnesses, Michelle Helene and Nicole White, was consistent and contradicted the State's evidence which consisted only of the unsworn statements by Ms. White as testified to by Officer McFarland. Erazo argues that had counsel made the motion for judgment of acquittal on this ground the trial court would have been obligated to grant the motion. Defense counsel did make a motion for judgment of acquittal based on insufficiency of the evidence, but for somewhat different reasons than urged by Erazo on appeal.
Erazo does not challenge the admission of Officer McFarland's testimony. His claim is that because the State's evidence was contradicted by the evidence he presented there was insufficient evidence for a jury to find him guilty and his counsel was therefore ineffective for failing to move for judgment of acquittal on this ground. We agree there were conflicts in the evidence. The State's evidence that Erzao assaulted White was contradicted by evidence presented by Erazo that White inflicted her injuries on herself and may have fabricated the assault to get him in trouble. The State's evidence that Michelle Helene left the area and did not observe the remainder of the encounter between White and Erazo is contradicted by Helene's testimony that she witnessed the entire interaction and saw no hitting or kicking. However, 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). The very function of the jury is to sort out the evidence and place credibility where it belongs. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). It is only in rare cases where a witness's testimony is "so impossible, absurd, and self-contradictory that the court should deem it a nullity." State v. Mitchell, 568 N.W.2d 493, 503 (Iowa 1997); State v. Smith, 508 N.W.2d 101, 103 (Iowa Ct.App. 1993).
We will uphold a jury verdict when the entire record viewed in the light most favorable to the State would allow a rational jury to find the defendant guilty beyond a reasonable doubt. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). Given that the jury was free to reject or credit any of the evidence, State v. Button, 622 N.W.2d 480, 483 (Iowa 2001), and considering the deference granted to its credibility assessments, State v. Wells, 629 N.W.2d 346, 356 (Iowa 2001), we find the record provides substantial evidence from which a rational jury could conclude, beyond a reasonable doubt, that Erazo committed domestic abuse assault.
Therefore, assuming without deciding counsel should have moved for judgment of acquittal on the ground urged by Erazo on appeal, we conclude Erazo cannot establish there is a reasonable probability that but for counsel's alleged error the result of the proceedings would have been different. He has thus failed to meet his burden to show he was prejudiced by this alleged error by counsel.
Erazo next claims counsel was ineffective for failing to notify the trial court of the impropriety of jury instruction No. 10. Specifically, he contends the wording of instruction No. 10 incorrectly stated the law by placing the burden on him to prove his innocence rather than requiring the State to prove him guilty beyond a reasonable doubt, and that he was therefore prejudiced by this misstatement of the law.
Here, Instruction No. 10, based on Iowa Criminal Jury Instruction 100.8, instructed the jury it "must determine the defendant's guilt or innocence from the evidence and the law in these instructions." Erazo argues that his counsel should have objected to this instruction and insisted on an instruction directing the jury to determine whether he was "guilty or not guilty from the evidence and the law in these instructions" because it would have been a more correct statement of the law. Although we believe that Erazo's suggested language may state applicable law better than the language used by the trial court in Instruction No. 10, we cannot find counsel was ineffective for not objecting to the language used or suggesting the alternative instruction.
In State v. Langlet, 283 N.W.2d 330 (Iowa 1979) our supreme court has previously rejected an argument very similar to the one Erazo attempts to make here regarding the use of the word "innocence" rather than the words "not guilty" in a jury instruction. We read all of the jury instructions together, not piecemeal or in artificial isolation. State v. Scalise, 660 N.W.2d 58, 64 (Iowa 2003). Here, as in Langlet, language similar to that requested by the defendant was used in other jury instructions informing the jury that the defendant is presumed innocent and not guilty, and that the burden is on the State to prove the defendant guilty beyond a reasonable doubt. See Langlet, 283 N.W.2d at 337. Furthermore, the alternative verdict forms given to the jury were "guilty" and "not guilty." See id.
Erazo claims that the instruction could have allowed the jury to find him guilty based his own failure to prove his innocence or, in the alternative, allowed the State to merely prove he was "not innocent" rather than proving him guilty However, as the court stated in Langlet,
We do not see how use of the word "[innocence]" rather than the words "not guilty" significantly augment this possibility. Additionally, we believe any such consequence was averted by the submission of instructions on the presumption of innocence and on the state's burden of proof. . . . We do not believe a rational jury sitting in a criminal case would apply anything but the accepted legal meaning of the word under the circumstances.
Id. We conclude that Erazo's assertion of prejudice from this one instance of the use of the word "innocence" is unpersuasive. Viewed as a whole the instructions correctly stated the applicable law and did not either shift the burden to Erazo to prove his innocence or allow the jury to find him guilty on some lesser standard than beyond a reasonable doubt. Counsel is not ineffective for failing to raise meritless issues or to make questionable or meritless objections. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999); State v. Smothers, 590 N.W.2d 721, 724 (Iowa 1999). Accordingly, we conclude trial counsel did not breach an essential duty by not objecting to Instruction No. 10 and/or suggesting different wording for the instruction.
Finally, Erazo claims he was entitled to a jury trial under Iowa Rule of Criminal Procedure 2.19(9) on the penalty enhancement and his counsel was ineffective for failing to obtain a valid waiver of his right to trial on this issue as required under Iowa Rule of Criminal Procedure 2.17(1). The record shows that Erazo filed a written waiver of jury trial on August 23, 2002 following the jury's verdict of guilty on August 20, 2002. Although Erazo's characterization of this waiver as "non-specific" is correct, based on both its timing and the in-court colloquies that followed we believe it is clear that the waiver pertained to the matter of the penalty enhancement.
Rule 2.17(1) provides, in relevant part, "Cases required to be tried by jury shall be so tried unless the defendant voluntarily and intelligently waives a jury trial in writing and on the record. . . ."
First, when Erazo filed his written waiver of his right to a trial by jury he had already had a jury trial on the domestic abuse assault charge and the jury had returned a verdict of guilty some three days earlier. Thus, at that point he could have only been waiving jury trial on the one remaining issue to be decided, that of penalty enhancement. Second, an in-court colloquy took place on the record on August 23 at a pretrial conference. During that conference defense counsel stated to the trial court that Erazo was "waiving the jury trial on the enhancement charges to do a trial on minutes. He has signed a written waiver and is going to be confirming that on the record." The court addressed Erazo directly and asked if it was correct that he wished to waive the jury and have the matter tried to the court. Erazo stated that was correct. The court also asked Erazo if he understood he had a right to jury trial but that he could waive that right and have the matter tried to the court. Erazo stated he understood. Finally, on August 29, 2002, at the beginning of the bench trial on the penalty enhancement the court confirmed that Erazo had previously waived his right to jury trial.
In making this claim of ineffective assistance Erazo relies on our supreme court's decision in State v. Stallings, 658 N.W.2d 106 (Iowa 2003), an opinion filed after the conclusion of the district court proceedings in this case. He argues the trial court made insufficient inquiry into whether his waiver was knowing, voluntary, and intelligent and his counsel was ineffective for failing to insure the court's compliance. We find the case here is factually distinguishable from Stallings.
In Stallings the supreme court stated that the trial court should inquire into the defendant's understanding of several specific differences between jury and nonjury trials, and "[t]he court `should [also] seek to ascertain whether [the] defendant is under [the] erroneous impression that he or she will be rewarded, by either court or prosecution, for waiving [a] jury trial.'" State v. Stallings, 658 N.W.2d 106, 111-12 (quoting 2 Charles Alan Wright, Federal Practice and Procedure § 372, at 452-53 n. 22 (3d ed. 2000)).
In Stallings our supreme court found counsel was ineffective for failing to assure that the record showed the defendant's waiver of a jury trial was knowing, voluntary, and intelligent. However, in Stallings there was neither a written waiver nor an in-court colloquy regarding the defendant's waiver of his right to jury trial. State v. Stallings, 658 N.W.2d 106, 110-11 (Iowa 2003). As discussed above, in the case at hand we have both. There was a written waiver of jury trial as well as two separate, albeit brief, on-the-record, in-court colloquies regarding Erazo's waiver of jury trial on the matter of penalty enhancement. Accordingly, we conclude there was sufficient inquiry by the trial court as to Erazo's understanding of the waiver of jury trial and that the present record demonstrates Erazo's waiver was knowing, voluntary and intelligent.
The fact that the district court did not strictly comply with the specific in-court colloquy requirements set forth in Stallings does not alter our conclusion, because Stallings was decided in January of 2003 and Erazo waived his right to jury trial in August of 2002. We do not require our trial attorneys to be crystal ball gazers; it is not necessary to know what the law will become in the future to provide effective assistance of counsel. Snethen v. State, 308 N.W.2d 11, 16 (Iowa 1981). Therefore, we conclude trial counsel did not fail to perform an essential duty because Erazo's written waiver and the in-court colloquies were sufficient to satisfy Iowa Rule of Criminal Procedure 2.17(1) under the law applicable at the time of Erazo's waiver. Erazo's ineffective assistance of counsel claim must fail.
IV. CONCLUSION.
Based on our de novo review of the entire record, and for all of the reasons set forth above, we conclude Erazo has failed to prove he was denied his constitutional right to effective assistance of counsel and we affirm his conviction.