Opinion
No. 2-576 / 01-1364
Filed October 16, 2002
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Gillman appeals the judgment and sentence on charges of operating a motor vehicle while intoxicated, third offense, and driving a motor vehicle while license under revocation. AFFIRMED IN PART AND REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, John Sarcone, County Attorney, and Linda Zanders, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller, J., and Habhab, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).
Defendant-appellant Archie Gillman appeals the judgment and sentence following his conviction for operating a motor vehicle while intoxicated, third offense, in violation of Iowa Code section 321J.2 (1999), and driving a motor vehicle while his license was under revocation pursuant to chapter 321J, in violation of section 321J.21. Defendant contends that his trial counsel was ineffective in several respects and both convictions should be reversed. He also contends there is not substantial evidence to support the finding that he was guilty of driving a motor vehicle while his license was revoked. We affirm the conviction for operating a motor vehicle while intoxicated but reverse the conviction for driving with a revoked license under section 321J.21. We preserve one of defendant's claims for postconviction proceedings.
Defendant was stopped by Altoona police for driving with a headlamp out. No other violations were noted prior to the stop. The officer asked to see defendant's driver's license, vehicle registration and proof of insurance. All defendant could produce was an Iowa nondriver's identification card. The officer smelled alcohol and noted defendant's hand and eye coordination were slow when he took the identification card from his wallet.
The officer ran the information from the identification card through a Polk County dispatcher. The dispatcher reported defendant's driver's license was under revocation. While the officer waited for further verification as to the status of defendant's driver's license he had defendant come to his patrol car. As defendant was walking there a second officer arrived. She said defendant's hand-eye coordination and speech were slow. She later testified at trial that based on her observations she felt confident defendant was "under the influence of alcohol over .10."
The officer who stopped the car said once he received verification of the license revocation, he arrested defendant and took him to the police station in Altoona. There, defendant refused tests and did not ask to make a telephone call. The officer noted at the time defendant's eyes were watery and bloodshot, he smelled of alcohol, and he had slow hand-eye coordination. Based upon his training and experience the officer concluded defendant was under the influence of alcohol. When the officer was asked during cross-examination in a deposition whether it was possible defendant had not been impaired while operating his vehicle that evening, the officer said, "He could not have been [impaired], but there is no way we could have determined that-determined that due to the refusal of any of my tests or any of the tests."
Defendant contends he was denied effective assistance of trial counsel because (1) his attorney failed to see that he make a knowing and voluntary waiver of his right to a jury trial, and (2) his attorney failed to object to hearsay evidence that he was driving while his license to drive was revoked.
To establish a claim of ineffective assistance of counsel, defendant has the burden to prove: (1) counsel failed in an essential duty; and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. Ledezma, 616 N.W.2d at 142. There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984). Because this is a constitutional issue our review on this issue is de novo. State v. Thompson, 597 N.W.2d 779, 782 (Iowa 1999).
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
We review de novo defendant's claim based on his constitutional right to a jury trial. State v. Wilkens, 346 N.W.2d 16, 18 (Iowa 1984). We make an independent evaluation of the totality of circumstances involved. State v. Sinclair, 622 N.W.2d 772, 872 (Iowa Ct.App. 2000).
Iowa Rule of Criminal Procedure 2.17(1) provides, in pertinent part, as follows:
Cases required to be tried to a jury shall be so tried unless the defendant voluntarily and intelligently waives a jury trial in writing and on the record within thirty days after arraignment. . . .
There is no written waiver nor was any record made on the issue at the time of trial. The right to waive a jury under rule 2.17(1) is absolute. See State v. Henderson, 287 N.W.2d 583, 586 (Iowa 1980). A defendant's waiver of the constitutional right to a jury trial "must be a voluntary, knowing, intelligent act, done with awareness of the relevant circumstances and likely consequences." State v. Johnson, 318 N.W.2d 417, 426 (Iowa 1982). There is nothing before us from which we can determine whether defendant's waiver was in fact voluntary, knowing and intelligent, or whether in making such a waiver, he was aware of the relevant circumstances and likely consequences. Further, unfortunately the district court did not appear to notice the absence of a waiver and did not conduct even a brief proceeding in open court at which defendant could attest to his waiver. See United States v. Martin, 704 F.2d 267, 271-75 (6th Cir. 1983); State v. Lawrence, 344 N.W.2d 227, 229 (Iowa 1984).
Defendant argues because he did not make a written waiver as required by the rule we should presume his waiver was not a voluntary and intelligent waiver and conclude his attorney was ineffective for allowing him to make it. We refuse to do so on this record.
The State contends the defendant has failed to show the required prejudice to succeed on this claim and that he cannot show he would have been acquitted had he had a jury trial. On this record we cannot say whether or not the defendant can show prejudice. In State v. Buck, 510 N.W.2d 850, 853-54 (Iowa 1994) the court, in denying a challenge to a jury waiver, considered among other reasons the fact that there was overwhelming evidence of guilt, and there was no reasonable possibility that a jury would have rendered a different verdict of guilt than did the district court. Such is not the case here. There were no chemical tests establishing defendant's level of intoxication. The arresting officer recognized that without chemical tests it was difficult to establish defendant's level of intoxication. There was no evidence defendant's driving was impaired. The evidence of intoxication was based solely upon observations of officers that Gillman smelled of alcohol, his eyes were watery and bloodshot, and he was slow in hand-eye coordination. Consequently, we find there to be a reasonable possibility a jury would have rendered defendant not guilty of the charges.
This is a claim which we ordinarily find to be more appropriate for postconviction review. We find that to be the case here. We will not determine a challenge to the effectiveness of trial counsel with an inadequate record. See State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978).
Defendant also claims his trial attorney was ineffective in not objecting to the testimony of the arresting officer that the dispatcher reported defendant's driver's license had been revoked. Defendant additionally contends there is not sufficient evidence to support this conviction. We first address defendant's challenge to the sufficiency of the evidence.
The standards governing a challenge to the sufficiency of the evidence are well-established: when reviewing a challenge to the sufficiency of the evidence we view the evidence in the light most favorable to the State, including legitimate inferences and presumptions which may fairly and reasonably be deduced from the evidence in the record. State v. Mills, 458 N.W.2d 395, 397 (Iowa Ct.App. 1990). Direct and circumstantial evidence are equally probative so long as the evidence raises "a fair inference of guilt and [does] more than create speculation, suspicion, or conjecture." State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981). It is necessary to consider all the evidence in the record and not just the evidence supporting the verdict to determine whether there is substantial evidence to support the charge. Mills, 458 N.W.2d at 397. Substantial evidence means evidence which would convince a rational factfinder that the defendant is guilty beyond a reasonable doubt. Id. In a bench trial, the court is the fact finder. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). A decision in a bench trial has the same force as a jury verdict. State v. Ross, 512 N.W.2d 830, 832 (Iowa Ct.App. 1993). We review a trial court's findings in a case where the jury is waived as we would a jury verdict; that is, if the verdict is supported by substantial evidence we will affirm. See State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000).
At trial defendant contended the State failed to carry its burden on the charge of driving with a revoked license because it did not produce a witness to show the license was revoked, nor did it produce a record from the Department of Transportation. We agree with the defendant that none of this evidence was produced.
On appeal the defendant now argues the only evidence was hearsay from the arresting officer, and even though the defendant did not object to the evidence, the district court should not have considered it. In general, matters not raised in the trial court will not be considered for the first time on appeal. State v. Bonstetter, 637 N.W.2d 161, 167 (Iowa 2001); State v. Morehouse, 316 N.W.2d 884, 886 (Iowa 1982). However, in a bench trial a defendant is not required to challenge the sufficiency of the evidence in the district court to preserve error for appeal. Bonstetter, 637 N.W.2d at 167; see also State v. Anspach, 627 N.W.2d 227, 231 (Iowa 2001) (citing Abbas, 561 N.W.2d at 74). In criminal trials where the jury is waived a motion for acquittal is not necessary to preserve sufficiency-of-evidence challenges for appellate review. See State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). Therefore we consider defendant's challenge, in spite of its not specifically being addressed by the district court.
Iowa Code section 321J.21 provides in applicable part:
1. A person whose driver's license or nonresident operating privilege has been suspended, denied, revoked or barred due to a violation of this chapter and who drives a motor vehicle while the license or privilege is suspended, denied, revoked, or barred commits a serious misdemeanor.
The State contends the following is sufficient evidence to support defendant's conviction for driving with a revoked license: (1) defendant could not produce a valid driver's license when it was requested by the arresting officer; (2) defendant produced a nondriver's identification card issued by the Iowa Department of Transportation; (3) the arresting officer testified the dispatcher told him the defendant's driver's license was revoked and a short time later verified that information; (4) after the finding of guilt the district court was advised of defendant's prior conviction for driving a motor vehicle while under the influence. From this evidence the district court could infer that the third and fourth convictions would have been third offenses, and that the defendant's license would have been revoked for a period of six years under Iowa Code section 321J.4(4), with the revocation in effect at the time defendant was arrested.
Even if we were to consider, as the State argues, that the district court could have considered evidence introduced after its findings were made, we must agree with defendant that the evidence is not adequate to support finding defendant guilty under section 321J.21. The burden is upon the State to prove every fact necessary to constitute the crime with which the defendant is charged. State v. Gibbs, 239 N.W.2d 866, 867 (Iowa 1976) (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970)). One of the elements the State was required to prove beyond a reasonable doubt was that Gillman's driver's license had been revoked "due to a violation of this chapter [321J]" (emphasis added). The State made no effort to prove when and why the defendant's license was revoked. The record is totally void of any such evidence. Evidence which merely raises suspicion, speculation, or conjecture is insufficient. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997); State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988). The State has failed to meet its burden of proof. Defendant's conviction on the charge of driving a motor vehicle while his license was revoked pursuant to Iowa Code section 321J is reversed and set aside. Having so decided, we need not and do not address the questions of whether the officer's statements as to what the dispatcher told him were sufficient to support finding defendant's license had been revoked or whether defendant's trial attorney was ineffective in failing to object to them.