Summary
holding claim of ineffective assistance of counsel failed despite alleged pretrial publicity where there was overwhelming evidence supporting the verdict and no indication the verdict would have been different in another county
Summary of this case from Blair v. StateOpinion
No. 1-897 / 00-2049.
Filed April 24, 2002.
Appeal from the Iowa District Court for Polk County, DONNA L. PAULSEN, Judge.
Defendant appeals his conviction and sentence following a jury verdict finding him guilty of kidnapping in the first degree, in violation of Iowa Code section 710.1 and 710.2 (1999); attempted murder, in violation of section 707.11; and willful injury, in violation of section 708.4. AFFIRMED.
Maggi Moss of Parris, Kruidenier, Moss, Dunn Montgomery, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, John Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellee-State.
Heard by SACKETT, C.J., and HUITINK and HECHT, JJ.
Defendant-appellant Nicholas Hanegan appeals his conviction and sentence following a jury verdict finding him guilty of kidnapping in the first degree, in violation of Iowa Code sections 710.1 and 710.2 (1999); attempted murder, in violation of section 707.11; and willful injury, in violation of section 708.4. Defendant claims on appeal that his kidnapping conviction was not supported by substantial evidence and that he was rendered ineffective assistance of counsel. We affirm but preserve defendant's ineffective assistance claims regarding an intoxication defense for postconviction proceedings.
I. BACKGROUND FACTS
On May 5, 2000 defendant Nicholas Hanegan and the victim in this case, Carrie Ann Fleenor, as well as several of their friends and acquaintances, had spent the day injecting methamphetamine and smoking marijuana. Apparently Fleenor, who had been sexually involved with the defendant for two weeks, called him repeatedly during the day. According to testimony the two were in a disagreement, which may or may not have been related to defendant's suspicion that Fleenor had reported him to be a drug dealer. Testimony indicated that defendant also made statements that he felt he needed to "take care of his problem" with Fleenor.
Fleenor testified that at some point in the evening of that day defendant called her, requesting a ride to his mother's house. Defendant then showed up at the parking lot of Fleenor's apartment complex. Defendant, Fleenor, and another man, James Rainer, got into Fleenor's car, with defendant in the driver's seat, Rainer in the passenger's seat, and Fleenor in the back seat. Fleenor testified she did not remember how she got into the car; defendant testified she did so voluntarily.
Defendant drove the three of them out of Fleenor's apartment complex and past the street which would have taken them to defendant's mother's house, where Fleenor believed they were headed. Fleenor testified that when she asked defendant why he had not turned toward his mother's house, he had responded that Fleenor was going to die. Fleenor further testified that defendant then accused her of telling police he used drugs, and as a consequence he was going to kill her. After passing the street to his mother's house, defendant stopped the car at the house of Tony Morrow. Fleenor testified defendant told Rainer to keep her in the car, and that defendant grabbed her purse and went into Morrow's house. She further testified that she was held captive in the car at Morrow's, that she yelled for help and tried to kick out one of the car windows, and that when defendant returned to the car and discovered she had tried to escape, he slapped her face. Defendant's explanation for his stop at Morrow's was that he was buying the three of them some methamphetamine, that Fleenor had handed him twenty dollars for the purchase, that she was not captive in the car, and that his contact with her after leaving Morrow's consisted of handing her drugs, not slapping her.
Defendant then drove to the pet cemetery, where Fleenor testified defendant pulled her out of the car, beat her in the head with a bottle of alcohol, and after pushing her back into the car, attempted, with Rainer's help, to light the car on fire. Due to the effects of trauma and drugs, Fleenor was unable to remember what transpired beyond this point.
Rescue workers called to the scene found a severely injured Fleenor underneath the vehicle, her lower body to her upper torso pinned between the car and the ground. Fleenor suffered, among other injuries, lacerations to her head, a partially torn eyelid, six broken ribs, spinal injury resulting in mild scoliosis, internal injuries, third-degree burns on her arm, and additional burns on her leg and foot.
Testimony at trial by acquaintances of defendant indicated that defendant had made a phone call in the early morning hours of May 6, urgently seeking someone to pick him up south of the Des Moines airport, between Des Moines and the pet cemetery; that there was screaming in the background when defendant made one of these calls; that defendant had told Terry Wells, who had come to pick him up, that he had "decapitated a female, . . . beaten her half to death, left her at the pet cemetery on County Line Road, had driven a car on top of her, and that he was sure she was dead"; that defendant appeared the next day in a change of clothes which were unusually large; that defendant had arranged for the disposal of a bag of clothes; and that defendant had made statements that next morning and day to the effect that he had "gotten rid" of his problem.
II. SUFFICIENCY OF THE EVIDENCE
Defendant claims the evidence was insufficient to support a finding of kidnapping in the first degree. We review a challenge to the sufficiency of the evidence for correction of errors at law. State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000). In reviewing challenges to the sufficiency of the evidence supporting a guilty verdict we consider all of the evidence in the record in the light most favorable to the State and make all reasonable inferences that may fairly be drawn from the evidence. Id.
Iowa Code section 710.1 defines kidnapping in the following way:
A person commits kidnapping when the person either confines a person or removes a person from one place to another, knowing that the person who confines or removes the other person has neither the authority nor the consent of the other to do so; provided, that to constitute kidnapping the act must be accompanied by one or more of the following:
. . .
3. The intent to inflict serious injury upon such person, or to subject the person to a sexual abuse.
One essential element of this offense is removal or confinement of the victim by the defendant. State v. Osborn, 455 N.W.2d 292, 293 (Iowa Ct.App. 1990). That confinement must exceed the confinement inherently incident to the underlying felony. See State v. Davis, 584 N.W.2d 913, 916 (Iowa Ct.App. 1998). Removal is sufficient to constitute kidnapping when the acts alleged substantially increase the risk of harm to the victim, significantly lessen the risk of detection, or facilitate escape. State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981). Defendant argues there was insufficient evidence to show he removed Fleenor from one place to another. He claims the evidence shows she voluntarily got into the car with him before they drove to the pet cemetery, and that there is no evidence he had the specific intent to harm her.
We disagree. Removal for purposes of satisfying the definition of kidnapping in section 710.1 need not be substantial or forcible and can be achieved by deception rather than by force or threat. State v. Ramsey, 444 N.W.2d 493, 494 (Iowa 1989). There is substantial evidence of removal where the defendant tricks his victim into accompanying him to a place where there is a substantially increased risk of harm to the victim, where the risk of detection is significantly lessened, or where escape is facilitated. Osborn, 455 N.W.2d at 294. According to Fleenor's testimony, when she asked defendant why they were not turning toward his mother's house, he told Fleenor that Fleenor was going to die. She also testified that she was held against her will in the back seat of the car while defendant went into Morrow's house. When defendant returned and discovered she had tried to escape, he slapped her face. Fleenor also testified she had asked defendant to let her use a phone so she could say goodbye to her children, but that he had refused her request, telling her more than once that she was going to die as he drove to the pet cemetery. Although there was rampant drug use among almost all of the parties involved in this case on the night of the incident at issue, we believe the above actions and words of the parties at the time of the incident still demonstrate that there was a removal, and that specific intent to harm accompanied that removal.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant further argues that he was rendered ineffective assistance of counsel for the following reasons: 1) failure to move for change of venue; 2) failure to have voir dire reported; 3) failure to have opening and closing statements reported; 4) failure to pursue an intoxication defense; 5) failure to vigorously or purposefully conduct cross-examination; 6) failure to specifically state elements not satisfied at trial; 7) failure to argue the correct legal standard for a motion for new trial; and 8) failure to raise the issue of improper venue.
Because an ineffective assistance of counsel claim implicates constitutional rights, our scope of review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). A defendant must show 1) counsel failed to perform an essential duty, and 2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999) (citation omitted).
A. Failure to Move for Change of Venue
With respect to the claim of failure to move for change of venue, defendant contends pervasive pretrial publicity tainted the proceedings. Defendant further contends, citing State v. Means, 547 N.W.2d 615, 622 (Iowa Ct.App. 1996), that prejudice can be presumed, due to the pervasive and inflammatory nature of the publicity, and that an actual showing of prejudice would be impossible due to counsel's failure to have voir dire reported. The State responds that even if there were sufficiently pervasive and inflammatory publicity to demonstrate defendant should have had a different jury, he still cannot establish that a different jury would have arrived at a different verdict. See Wright v. Nix, 928 F.2d 270, 273 (8th Cir. 1991). Given the record, including defendant's own testimony, as well as our finding above that substantial evidence supported the verdict, we conclude there was overwhelming evidence supporting the jury verdict of guilt. Absent specific indications by the defendant as to how under this record the Polk County jury's verdict was different than a jury's from another county would have been, we decline to adopt or preserve defendant's claim of ineffective assistance due to failure to move for change of venue.
B. Failure to Have Voir Dire and Opening/Closing Statements Reported
Defendant next claims his counsel was ineffective for failing to have voir dire and opening and closing statements recorded. Other than general claims of the prejudice of publicity, he points to no specific error which reporting these proceedings and statements would have brought to light. For this reason we find these claims to be without merit. See State v. Oetken, 613 N.W.2d 679, 689 (Iowa 2000) (rejecting identical claim on the ground defendant did not point to anything untoward in the proceeding).
C. Failure to Pursue Intoxication Defense
Defendant further claims on appeal that his attorney was ineffective for failing to file a motion to continue the trial when, apparently less than a month before trial, defendant's counsel may have discovered his expert would not support his insanity, diminished responsibility or intoxication defense. Defendant claims counsel would have had less than a month to formulate a new defense theory and should have moved for a continuance in order to avoid prejudicing defendant with a last-minute defense strategy.
Defendant also argues that he was prejudiced by his attorney's failure to raise the intoxication defense, especially considering the drugs he had admitted using prior to the incident. The State claims that defense counsel likely decided, as a matter of trial strategy, that it was better to reject the kidnapping charge as a whole than to admit the kidnapping charge but claim a defense of intoxication.
We agree with the State that if defendant's attorney's failure to request a continuance and to pursue the intoxication defense resulted from reasonable trial strategy, he cannot be found to have rendered ineffective assistance. Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). On this record we cannot determine whether counsel's inaction was trial strategy or ineffective assistance. We preserve these claims for postconviction proceedings to allow development of the record and to provide counsel an opportunity to defend the charges. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
D. Failure to Conduct Adequate Cross-Examination
Defendant further claims that his counsel was ineffective for failing to adequately cross-examine Fleenor. Other than generalized arguments as to the ineffectiveness of this cross-examination, defendant fails to indicate specific facts regarding how counsel was inadequate on cross-examination. Again, there is insufficient information with respect to this claim for us even to preserve this claim for postconviction proceedings. State v. White, 337 N.W.2d 517, 519-20 (Iowa 1983).
E. Failure to Specify Elements Not Satisfied at Trial
Defendant next claims he was prejudiced by his counsel's failure to adequately specify the elements not satisfied at trial in his motion for judgment of acquittal. In that we have found, with respect to the charge of first degree kidnapping, there was sufficient evidence to support the verdict, we deny this claim. In that defendant fails to more specifically indicate which elements of defendant's other crimes were unduly omitted in the motion for judgment of acquittal, and how defendant was specifically prejudiced, we decline to address or preserve this claim. See id.
F. Failure to Argue Correct Legal Standard in Motion for New Trial
Defendant further argues that counsel was ineffective for failing to inform the court of the correct legal standard as it is set out in State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998), when deciding defendant's motion for a new trial. The record demonstrates that the district court expressly applied the Ellis standard when examining the evidence and making the following finding: "In this case the Court is not convinced that the Defendant's conviction is not contrary to the weight of the evidence." We find defendant's claim on this point to be without merit.
G. Failure to Raise Issue of Improper Venue
Lastly, defendant argues his counsel was ineffective for failing to challenge the venue as improper, due to the fact that the victim was discovered in Warren County rather than Polk County. In order for venue to be proper, it need only be established by a preponderance of the evidence that one element of defendant's offenses occurred in Polk County. State v. Calhoun, 559 N.W.2d 4, 5 (Iowa 1997). We have previously stated that there was sufficient evidence to support a finding that the victim was being kidnapped as soon as she was being held against her will in the car, which began as soon as defendant failed to turn toward his mother's house, and occurred in Polk County. We dismiss this claim on direct appeal.
III. CUMULATIVE EFFECT OF ALLEGED TRIAL ERROR
Defendant's final claim on appeal is that the cumulative effect of the alleged trial court errors amounted to a denial of due process. We have found no evidence of error in the trial court and find this claim has no application to our decision.
AFFIRMED.