Opinion
No. 1-951 / 01-0269.
Filed May 15, 2002.
Appeal from the Iowa District Court for Polk County, ROBERT D. WILSON, Judge.
John Graves appeals his conviction for first-degree murder. AFFIRMED.
Elias Gastelo of Benzoni Mains, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney General, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
John Graves appeals his conviction for first-degree murder. He challenges the district court's admission of three photographs of the victim and the court's failure to give the jury a limiting instruction concerning the photographs. He also contends trial counsel was ineffective in failing to seek such a limiting instruction and in failing to call an expert to testify regarding his blood alcohol level following his arrest. We affirm.
I. Background Facts and Proceedings .
Des Moines police arrested and charged Graves with first-degree murder in connection with the death of a woman. See Iowa Code §§ 707.1 and 707.2 (1999). Graves asserted defenses of justification and diminished capacity based on alcohol intoxication. At trial, the State introduced a number of crime scene and autopsy photographs. Among them were two depicting the victim's face and body above her chest and a third showing one side of her entire unclothed body. Defense counsel objected to these three photographs on the ground they were irrelevant, repetititious, and inflammatory. The district court summarily overruled the objections. The jury found Graves guilty and he was sentenced to life in prison without parole. This appeal followed.
II. Photographs
A. Admission . Graves first contends the photographs should not have been admitted. Our review of this issue is for abuse of discretion. State v. Astello, 602 N.W.2d 190, 196-97 (Iowa Ct. App. 1999). The test for admission of such evidence is two-fold: (1) whether the evidence is relevant; and (2) if relevant, whether its probative value is substantially outweighed by the danger of unfair prejudice. State v. Wells, 629 N.W.2d 346, 355 (Iowa 2001).
We conclude the evidence was relevant to rebut the defense of justification. Based on the blood flow patterns reflected in the pictures, a State witness opined that the victim was probably nude at the time of the attack. This evidence raises doubt concerning Graves's claim that he killed the victim only after she attacked him with a knife.
As for the prejudicial effect, we note that the pictures were no more gruesome than others that were admitted without objection, including close-up photographs of the wounds on the victim's face and throat, a photograph of the victim's bloodied and unclothed back, and a photograph of the victim's nude body lying in an open field where she was discovered. Accordingly, we conclude the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice and the district court did not abuse its discretion in admitting the three photographs. See Astello, 602 N.W.2d at 197 (affirming admission of photographs depicting victim's "charred, decomposing, and maggot-infested remains.").
B. Limiting Instruction
Graves next contends the district court should have given the jury an instruction on the proper use of the three photographs. As defense counsel did not object to the court's failure to give one, we conclude error was not preserved on this issue. See State v. Hillesheim, 305 N.W.2d 710, 713 (Iowa 1981).
III. Ineffective Assistance of Counsel
Graves next contends his trial counsel was ineffective in failing to (1) request a limiting instruction, and (2) call an expert to testify regarding his blood alcohol level following his arrest. Ordinarily, we preserve such claims for postconviction proceedings. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). Where, however, the record adequately addresses the issues, we may resolve the claims on direct appeal. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). We believe the record here is adequate to address the issues.
Our review of these constitutional issues is de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). To prevail, Graves must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
With respect to Graves's claim that his attorney should have requested a limiting instruction, we find no breach of an essential duty in his failure to do so. As defense counsel conceded in his opening statement, the crime was gruesome. State witnesses and Graves himself testified that the victim was struck with a twenty-five pound weight and her throat was slit. Unchallenged photographs reflected this reality. Because the three challenged pictures were no more gruesome than the worst of the unchallenged evidence, we cannot conclude counsel was remiss in failing to seek a limiting instruction. Accordingly, we reject this ineffective-assistance-of-counsel claim.
We also reject Graves's claim that defense counsel should have retained an expert to explicate his intoxication defense. Defense counsel was able to elicit evidence concerning the intoxication defense from a number of State witnesses, including a criminalist, a police officer, and Graves's former girlfriend. He established through the criminalist that Graves had alcohol in his system totaling .333 grams per milliliter. Additionally, defense counsel elicited testimony from Graves that Graves recalled drinking eight beers and three shots of liquor on the evening of the killing. An expert witness testifying to Graves's actual blood alcohol content on the night in question would have added little to the testimony of these other witnesses, who squarely placed the intoxication defense before the jury. For this reason, we find no breach of an essential duty.
We affirm Graves's conviction, judgment, and sentence.
AFFIRMED.