Opinion
No. 5-203 / 04-0125
Filed June 15, 2005
Appeal from the Iowa District Court for Dubuque County, Jeffrey L. Harris, District Associate, Judge.
Corey Rapp appeals his conviction for domestic abuse assault while using or displaying a dangerous weapon. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Fred H. McCaw, County Attorney, and Alisha Stach, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Corey Rapp appeals a judgment and sentence for domestic abuse assault while using or displaying a dangerous weapon. Iowa Code § 708.2A(2)(c) (2001). He takes issue with the district court's admission of a 911 tape and the court's exclusion of evidence relating to his theory of defense. We affirm.
I. Background Facts and Proceedings
Rapp lived in Dubuque with Kelly Merz and her nine-year-old son. One evening, the son called 911 and stated Rapp was threatening Merz with a hunting knife. Police officers investigated the call, speaking to all three individuals.
Following the investigation, the State filed a trial information and moved for a preliminary determination of the admissibility of the 911 tape, as well as other evidence. The district court ruled the evidence was admissible.
Rapp defended the charge on the ground that his acts were merely an attempt to prevent Merz from committing suicide. In an effort to bolster this defense, he tried to obtain Merz's medical records. The district court denied the request. Rapp has not appealed that ruling.
At trial, Rapp's attorney asked Merz if she ever had any suicidal thoughts. Merz answered, "No." In addition, the attorney called Rapp's brother and asked him whether Merz had scars. When the State's objection to this question was sustained, Rapp's attorney made an offer of proof in which Merz's brother described his second-hand knowledge of Merz's suicide attempts. Rapp's attorney also had Rapp's mother make an offer of proof. She stated Merz was previously hospitalized for depression. She had no knowledge of any suicide attempts. Finally, Rapp's attorney elicited testimony from Rapp that he thought Merz was going to kill herself. While the State objected to this testimony, the court did not rule on the objection or strike the answer. A subsequent objection to a similar reference was sustained. Rapp's attorney did not make a further offer of proof.
Following trial, the jury returned a verdict of guilty. Rapp unsuccessfully moved for a new trial and for arrest of judgment. This appeal followed.
II. Admission of 911 Tape
Rapp argues counsel should have objected to the introduction of the 911 tape on the ground that it offended his constitutional right to confront witnesses against him. See Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004) (holding admission of out-of-court testimonial statement against defendant without defense opportunity to cross-examine witness violated Confrontation Clause of Sixth Amendment to the United States Constitution). He contends counsel's failure to raise this objection amounted to ineffective assistance of counsel. Strickland v. Washinton, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The Iowa Supreme Court recently decided the identical question. State v. Williams, 695 N.W.2d 23 (Iowa 2005). In Williams, the court held counsel was not ineffective in failing to object to the admission of 911 statements on confrontation clause grounds because Crawford was decided four months after trial in the matter and, prior to Crawford, the "statements were admissible under well-settled law." 695 N.W.2d at 29. The court stated counsel "was not required to anticipate a change in the law." Id. at 30.
Assuminga Crawford violation, Crawford was decided approximately six weeks after judgment and sentence was imposed in this case. Based on Williams, we conclude trial counsel was not ineffective in failing to object to the 911 tape on the basis of Crawford. III. Admission of Suicide Evidence
Rapp next argues he was entitled to present additional evidence of Merz's prior suicidal behavior and trial counsel was ineffective in failing to make a more comprehensive record on this issue. Our review of the district court's rulings is for an abuse of discretion. State v. Nelson, 480 N.W.2d 900, 906 (Iowa Ct. App. 1991).
We assume without deciding that evidence of Merz's past mental state was marginally relevant to an issue in the case. See Iowa R. Evid. 5.401 (stating evidence is relevant if it makes "the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence."). Assuming its relevance, we conclude enough evidence on this issue came into the record to allow the jury to consider Rapp's defense. Specifically, the court admitted Merz's answer to the question concerning whether she had suicidal thoughts, and did not rule on the State's objection to Rapp's testimony that he thought Merz was going to kill herself.
There are cogent reasons to conclude that, not only were Merz's mental health records inadmissible, but questioning concerning those records was inappropriate. Cf. Iowa Code § 622.10 (prohibiting disclosures in professional confidence except where privilege waived or "in a civil action in which the condition of the person in whose favor the prohibition is made is an element or factor of the claim or defense of the person or of any party claiming through or under the person"); Chung v. Legacy Corp., 548 N.W.2d 148, 150 (Iowa 1996) (stating the "denial of an element or factor of one's opponent's case does not make that element or factor part of the case of the person making the denial") (emphasis in original); State v. Smith, 522 N.W.2d 591, 595 (Iowa 1994) (concluding privilege not waived); Howard v. Porter, 240 Iowa 153, 155, 35 N.W.2d 837, 838 (1949) (stating patient's testimony on cross-examination regarding privileged matters will not be construed as waiver of privilege).
Given the presence of this evidence in the record, the district court reasonably could have concluded that the remaining proffers on the same subject would have amounted to a "needless presentation of cumulative evidence." Iowa R. Evid. 5.403. Additionally, the offers of proof of Merz's brother and mother were sufficiently indefinite, general, or contaminated with hearsay that the district court reasonably could have excluded that evidence based on "considerations of undue delay" or "waste of time." Id.
We conclude the district court did not abuse its discretion in excluding the proffered evidence of Merz's suicidal tendencies. To the extent Rapp argues trial counsel was ineffective in failing to make a more thorough record on this issue, we conclude he was not.
Even if we were to conclude the additional suicide evidence should have been admitted, reversal is not required "unless a substantial right of a party is affected." Iowa R. Evid. 5.103. "[W]e presume prejudice — that is, a substantial right of the defendant is affected — and reverse unless the record affirmatively establishes otherwise." State v. Sullivan, 679 N.W.2d 19, 30 (Iowa 2004) (emphasis in original).
Here, the record affirmatively establishes otherwise. Merz stated she went to bed but awoke after sensing Rapp on the bed. She testified he "was somehow over me with the knife at the back of my head and he had said `don't move or I will cut you' and then I tried to push away and in which he grabbed my wrist and slid me off the foot of the bed." An investigating officer who spoke to Merz's son testified that the son saw Rapp in the bedroom and heard him tell his mother that "she needed to wake up or he was going to kill her." Another officer who interviewed Rapp after the incident testified that Rapp never mentioned anything about protecting Merz from hurting herself.
Rapp essentially admitted this, stating he told the dispatcher that Mertz cut him rather than herself with the hunting knife. He also acknowledged that she appeared to be sleeping when he came into the bedroom, a fact that would appear to be inconsistent with his defense that she was about to kill herself. Despite this admission, he insisted that, when Merz awoke, "she grabbed the knife and pulled it towards her, she kind of wiggled her way off the bed and pulled me on top of her."
We conclude that the properly admitted evidence overwhelmingly supported the State's version of events. Cf. Sullivan, 679 N.W.2d at 30 (concluding "the properly admitted evidence was far from overwhelming").
IV. Disposition
We affirm Rapp's judgment and sentence for domestic abuse assault while using or displaying a dangerous weapon.