Opinion
No. 1-565 / 00-1872.
Filed January 28, 2002.
Appeal from the Iowa District Court for Linn County, DOUGLAS S. RUSSELL, Judge.
James Fuller appeals the district court's judgment and sentence following a jury verdict convicting him of first-degree burglary and assault. AFFIRMED.
Philip Fontana and John L. Lane, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Denver D. Dillard, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
James Fuller appeals the sufficiency of the evidence to support his convictions for burglary in the first degree and assault, challenges as hearsay police testimony regarding identification statements made by a victim, and claims trial counsel was ineffective. We affirm.
Background Facts and Proceedings . On or about March 27, 2000, several men forcibly entered a Cedar Rapid's apartment, robbed some of the occupants, and used baseball bats to assault three men. Three of the eyewitnesses — Quincy Tobin, Arnold Tiegen and Tommie Butler — were also victims of the assault. All three men and another eyewitness, Mary Walker, were shown photo arrays of potential suspects by Detective Dean Chiafos. Tobin identified a picture of Deion Madison, and Butler, Tiegen and Walker all identified Madison and another man named Timothy Brown. Of the four only Butler was also able to identify appellant James Fuller as one of the men involved in the incident.
Fuller, Brown and Madison were charged with burglary in the first degree and the willful injury of Tobin, Tiegen and Butler. At trial none of the called eyewitnesses, including Butler, were able to identify Fuller as a perpetrator of the burglary or assault. However, Butler did confirm he had previously picked three men out of a photo array. Detective Chiafos was then called to testify to the witnesses' prior photo identifications. When Detective Chiafos was asked about Butler's identifications in particular, co-defendant Brown's attorney objected to the testimony as inadmissible hearsay, which objection was overruled. Fuller's attorney did not lodge an objection. Detective Chiafos then testified as to Butler's photo identifications of all three men, and stated such identifications were clear, immediate and certain. Brown's attorney established, during her cross-examination of Detective Chiafos, that Butler responded to Fuller's photograph by exclaiming "that's the [expletive] who kept hitting me with the bat."
At the close of evidence the court granted Fuller's motion for judgment of acquittal regarding the willful injury of Tiegen and Tobin, but submitted to the jury the counts of burglary in the first degree and the willful injury of Butler. The jury returned guilty verdicts for burglary in the first degree and assault. After Fuller's motion for a new trial and in arrest of judgment was denied, he appealed.
Out-of-Court Identification . Fuller argues Detective Chiafos's statements regarding Butler's prior identifications were inadmissible hearsay. However, by not objecting to the testimony during trial, Fuller has failed to preserve error on this issue. See State v. Rivera, 614 N.W.2d 581, 584 (Iowa Ct. App. 2000) (finding a timely objection necessary to preserve error for review). He cannot rely on the objection lodged by his co-defendant, as he never moved to join in such objection. Cf. State v. Voelkers, 547 N.W.2d 625, 631 (Iowa Ct. App. 1996) (finding error preserved, even though defendant did not object during trial, where counsel entered into blanket agreement to join in any of co-defendant's motions put before the court). See also Gavlock v. Coleman, 493 N.W.2d 94, 98 (Iowa Ct. App. 1992) (finding issue not preserved in civil matter, where appealing party neither made independent objection nor joined in objection of other party).
Sufficiency of the Evidence . We review a challenge to the sufficiency of the evidence for errors at law. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). A verdict is upheld if supported by substantial evidence, which means evidence sufficient to convince a rational trier of fact, beyond a reasonable doubt, of the defendant's guilt. Id. We view the totality of the record in the light most favorable to the State, drawing any and all legitimate inferences that can be reasonably deduced from the evidence. State v. Williams, 574 N.W.2d 293, 296 (Iowa 1998).
Fuller correctly argues a conviction for either burglary or assault requires sufficient proof of his presence in the apartment. Here, the only direct proof of that fact is Butler's prior out-of-court identification. It is true such evidence is less than decisive, particularly in light of Butler's inability to confirm his identification at trial, and the absence of any other witness testimony or evidence placing Fuller at the scene. However, credibility assessments are the province of the jury, and it is free to accept, reject and weigh the evidence as it sees fit. State v. Maring, 619 N.W.2d 393, 395 (Iowa 2000).
Here, the jury could choose to believe, through Detective Chiafos's testimony, the certainty Butler displayed shortly after the attack when identifying Fuller and his co-defendants from a photo array. It was equally free to discount Butler's trial testimony, which occurred nearly six months later, was rife with confusion and uncertainty, and in some cases contradicted his prior statements. Viewing the evidence in the light most favorable to the State, a rational jury could conclude, beyond a reasonable doubt, that Fuller participated in the burglary and assault of Butler.
Ineffective Assistance of Counsel . Our review of ineffective assistance of counsel claims is de novo. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Typically, such claims are preserved for postconviction review, to allow a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). However, where the record is sufficient to reach the merits of the defendant's contentions, we will address ineffective assistance claims on direct appeal. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct. App. 2000). We find the record in this case is sufficient to determine Fuller's claims.
Fuller bears the burden of showing his attorney's performance fell below "an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To demonstrate prejudice he must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of his case. State v. Carillo, 597 N.W.2d 497, 500 (Iowa 1999). In meeting his burden, Fuller must overcome the strong presumption of his trial counsel's competence. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).
1. Alibi Witness . Fuller filed a notice of an alibi defense, naming Denea Davis as an alibi witness. During trial defense counsel informed the court he had spoken with Davis several times and that, after discussing the matter with Fuller, both agreed, as a strategic decision, Davis would not be called. Although Fuller confirmed this statement on the record, he now claims his decision was less than fully informed.
We cannot find failing to call Davis as an alibi witness constituted ineffective assistance. Counsel's decision in this regard was a strategical choice, made after interviewing the potential witness and consulting with Fuller. Trial tactics or strategies, even if improvident, miscalculated or mistaken, typically do not amount to ineffective assistance of counsel See State v. Oetken, 613 N.W.2d 679, 683-84 (Iowa 2000). Failure to call a defense witness is a tactical decision we will not second-guess. See, e.g., State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct. App. 1996); State v. Foell, 512 N.W.2d 809, 814 (Iowa Ct. App. 1993).
2. Motion to Sever . Fuller also claims counsel was ineffective in failing to file a motion to sever his trial from that of his co-defendants, as the joint trial prejudiced his defense. In essence, he contends the joint trial confused the jury regarding whether the evidence against him was actually sufficient for a conviction. Fuller can succeed on his claim only if counsel's failure to request and obtain severance denied him a fair trial. State v. Clark, 464 N.W.2d 861, 863 (Iowa 1991); Iowa R. Crim. P. 6(4)(b). Such prejudice is found in two types of cases:
(1) where the trial is so complex and the evidence so voluminous that the jury will be confused and cannot compartmentalize the evidence; or (2) where the evidence admitted by or against one defendant is so prejudicial to a co-defendant, the jury is likely to wrongly use it against the co-defendant.State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998).
A third scenario, where a joint trial prevents one defendant from presenting exculpatory testimony of a codefendant, is in no way implicated by the facts of this case. See State v. Williams, 525 N.W.2d 847, 849 (Iowa 1994).
This is not a case of complex and voluminous evidence, nor do we see an indication of wrongful use of evidence by the jury. No defense was put on by any defendant. The majority of the evidence went to the general facts and circumstances surrounding the crimes, and was introduced as against all defendants equally. The only evidence introduced exclusively against Fuller's co-defendants was the identification of Madison and Brown as two of the perpetrators, and the facts and circumstances surrounding the individual assaults on Tobin and Tiegen. These facts could be easily separated out by the jury, and their admission into evidence is not so prejudicial to Fuller that the jury was likely to misuse the information in its verdict.
AFFIRMED.