Opinion
No. 3-834 / 02-1774
Filed February 27, 2004
Appeal from the Iowa District Court for Jackson County, Nancy S. Tabor, Judge.
Nadermann appeals his conviction for second-degree theft. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, and John Kies, County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
James Brandmeyer's summer cabin was robbed of furniture and other items. Brandmeyer discovered some of the items at an auction house in the area. He was informed that they were brought in for consignment by Gerald Nadermann and his girlfriend.
The State charged Nadermann with second-degree theft. After Nadermann waived his right to a speedy trial, the State amended the charge to have him treated as a habitual offender. Iowa Code §§ 714.1(4), 714.2(2), 902.8 (2001). During voir dire, defense counsel moved for a mistrial based on a comment made by the prosecutor. The district court denied the motion and the case proceeded to trial. A jury found Nadermann guilty of the theft charge. He agreed not to contest his status as a habitual offender.
On appeal, Nadermann takes issue with the district court's denial of his mistrial motion. He also raises several ineffective assistance of counsel claims.
I. Mistrial Motion
Nadermann contends the prosecutor's comment during voir dire infringed on his constitutional right to remain silent. Because these proceedings were not reported, Nadermann relies on the following in-chambers summary of the challenged statement made by his attorney:
Your Honor, in voir dire to the jury we were going row by row, so Mr. Kies and I were switching back and forth as to which questions we would ask. I started asking — I asked questions of one of the rows about what would happen in the event that you had something you purchased at a garage sale, then you went on later after you didn't need it anymore and sold it at an auction.
If that item turns out to be stolen, is that your fault? I asked that of several different jurors. Mr. Kies then went on to ask the jurors on his time or the next row of jurors, well, gee whiz, wouldn't you tell the police where you got that from and wouldn't it be odd if you did not address the police as to where those items had come from, where you had gotten them and why would you keep it to yourself.
(emphasis added). The prosecutor did not deny he made this statement but said he thought defense counsel was referring to a witness rather than the defendant. He also stated his response alluded to his own plans to impeach the witness with the fact she never came forward and reported her version of events. Finally, the prosecutor suggested that Nadermann's attorney opened the door to his own comments.
In denying the motion, the district court judge agreed with the prosecutor that defense counsel opened the door to his comments and further pointed to her admonishment that counsels' statements were not evidence. She also invited defense counsel to propose another jury instruction on the issue. Our review of this ruling is de novo. State v. Baccam, 476 N.W.2d 884, 885 (Iowa Ct.App. 1991).
Counsel's failure to propose another jury instruction forms the basis of one of Nadermann's ineffective-assistance-of-counsel claims.
In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 99 (1976), the United States Supreme Court held that "the use for impeachment purposes of petitioners silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." In deciding whether the prosecutor's statement in this case implicates the Doyle holding, we ask whether the jury "necessarily" would believe the challenged remark was a "reference to the accused's silence." State v. Hulbert, 513 N.W.2d 735, 738 (Iowa 1994).
We conclude the jury would not necessarily have viewed the comment as a reference to Nadermann's silence. Neither defense counsel's statements preceding the challenged remark nor the challenged remark, itself, made explicit reference to the defendant. Additionally, the comment did not specify a time frame in which the unidentified person would have been expected to speak to police about the stolen goods. Therefore, assuming the statement referred to Nadermann, we cannot determine whether it implicated post-arrest silence. Under these circumstances, we conclude the statement did not infringe upon Nadermann's right to remain silent. Cf. State v. Metz, 636 N.W.2d 94, 96-98 (Iowa 2001) (finding Doyle violation where prosecutor asked defendant, "You never told [the police] what we've just heard here in the court room today?"). We affirm the district court's denial of the mistrial motion.
II. Ineffective Assistance of Counsel Claims
Nadermann contends his attorney was ineffective in failing to 1) seek a reopening of the case to correct a witness's testimony, 2) seek exclusion of testimony concerning his incarceration at the time of trial, 3) object to a statement by the prosecutor during closing argument, 4) designate a witness in a timely fashion, 5) make a record on whether the jury was aware he was shackled, 6) explain the habitual offender provision, 7) investigate and "locate the true perpetrator", and 8) request a jury instruction on the effect of the prosecutor's comment that triggered the mistrial motion. We preserve all but the eighth claim for postconviction relief. Having found that the prosecutor's statement during voir dire was not improper, we reject the eighth ineffective assistance of counsel claim.
III. Disposition
We affirm Nadermann's judgment and sentence for second-degree theft as a habitual offender, preserving seven of his eight ineffective-assistance-of-counsel claims for postconviction relief.