Summary
explaining evidence of gang affiliation was relevant and not unfairly prejudicial when used to show how the defendant became involved with the events leading to the homicide and where victim was found gagged with red bandana
Summary of this case from State v. CaplesOpinion
No. 3-970 / 02-2085
Filed February 11, 2004
Appeal from the Iowa District Court for Kossuth County, Don E. Courtney, Judge.
Juan Carlos Astello appeals from the district court's order denying his request for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, and Manuel Guerrero, St. Paul, Minnesota, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, and Michael Zenor, County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Juan Carlos Astello appeals from a district court order denying his application for postconviction relief. He contends his trial counsel was ineffective for failing to object to the State's introduction of gang and drug evidence and that his appellate counsel was ineffective for failing to properly raise this issue on direct appeal. He also claims his trial counsel was ineffective for failing to object to two jury instructions and that his appellate and postconviction counsel were ineffective for failing to raise and litigate the instruction issue. We affirm.
I. Background Facts Proceedings
In 1998 Astello was convicted of first-degree kidnapping, second-degree murder, and conspiracy to commit a forcible felony, as the result of his participation in the abduction and killing of Sky Erickson. This court affirmed Astello's convictions on direct appeal. State v. Astello, 602 N.W.2d 190 (Iowa Ct. App. 1999). Astello is currently serving a life sentence.
In September 2001 Astello applied for postconviction relief. He claimed he was denied effective assistance of counsel both at trial and on direct appeal. Astello argued his trial counsel was ineffective because she withdrew a motion to transfer his case to juvenile court, failed to adequately advise him or his parents during the plea bargaining stage and during trial, and failed to object to evidence regarding his gang membership. He also asserted that both his trial and appellate counsel were ineffective because they failed to argue that his sentence of life imprisonment without a possibility of parole was cruel and unusual in violation of the Eighth Amendment to the United States Constitution. Following a hearing, the postconviction court rejected all of Astello's claims and denied his request for postconviction relief. Astello appeals.
II. Scope of Review
Generally, we review a postconviction proceeding for errors at law. Harpster v. State, 569 N.W.2d 594, 596 (Iowa 1997) (citations omitted). However, we review ineffective assistance of counsel claims under a de novo standard. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).
III. Gang and Drug Evidence
Astello first claims his trial counsel was ineffective because she did not object to the State's introduction of gang and drug evidence. He also contends that his appellate counsel was ineffective for not properly raising this issue on direct appeal.
To establish a claim of ineffective assistance, Astello must prove that (1) his counsel failed to perform an essential duty and (2) prejudice resulted. State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998). The first element requires an applicant to overcome a strong presumption of counsel's competence and establish counsel's conduct was outside the normal range of competency. Irving v. State, 533 N.W.2d 538, 540 (Iowa 1995). The second element requires proof that, but for counsel's errors, the trial outcome would have been different. Wemark v. State, 602 N.W.2d 810, 817 (Iowa 1999). We may affirm on appeal if either element is lacking. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
The State contends that Astello's ineffective assistance of counsel claim regarding gang-related evidence is barred by Iowa Code section 822.8 (2003), which states:
All grounds for relief available to an applicant under this chapter must be raised in the applicant's original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief which for sufficient reasons was not asserted or was inadequately raised in the original, supplemental, or amended application.
The record reveals Astello's trial counsel challenged the admissibility of gang-related evidence in a motion in limine and received an adverse ruling from the district court. On direct appeal, Astello's appellate counsel raised the issue of the admission of gang-related evidence as one of ten ineffective assistance of counsel claims and asked this court to preserve the claim for postconviction relief. We declined to preserve the issue, or any of Astello's other ineffective assistance of counsel claims, for postconviction proceedings. We concluded that even if trial counsel breached an essential duty on this claim, Astello could not "demonstrate a reasonable probability that the outcome of his trial would have resulted in an acquittal on any charged offense." State v. Astello, 602 N.W.2d 190, 198 (Iowa Ct. App. 1999). We conclude Astello's ineffectiveness of counsel claim regarding the admissibility of gang-related evidence has been previously litigated and rejected on direct appeal. Accordingly, we agree with the State that the claim is barred. State v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971) (relitigation of previously adjudicated issues is barred.) Even if this claim were properly before us, it would fail. Evidence of Astello's involvement in gang activity and of gang leader Luis Lua's effort to collect on a drug debt were clearly relevant to proving the State's charges of kidnapping, murder and conspiracy. The postconviction court made the following findings in its decision:
Appellate counsel contended that trial counsel failed to properly object to evidence of gangs or gang related activity during trial.
We recognize that the State cannot rely on the raise-all-grounds requirement of section 822.8 for the first time on direct appeal when a waiver argument was not advanced in the postconviction relief proceedings in district court. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002). However, we do not believe DeVoss precludes finding a procedural bar to reviewing a claim that has already been adjudicated and decided.
In Astello's case, Erickson's body was found gagged with a red bandana, which was a symbol of the LKB. In addition, most of the people involved in kidnapping and killing Erickson were LKB members. One of Astello's defenses was that he went along with the kidnapping and killing because he was afraid of Lua, who was also a member of the LKB. Therefore, the gang evidence was relevant to tie the LKB members to the crime and to show the claimed fears of Lua were unfounded. As a result, the Court finds that Astello was not unfairly prejudiced by admission of gang evidence or subjected to ineffective assistance of counsel.
We agree with the postconviction court's findings and conclusions. The State offered evidence that the victim owed money to a gang member and had an argument with other gang members the day before he was killed. The evidence of gang membership is relevant to show how Astello became involved with the events which led to Erickson's kidnapping and death. Because the trial court did not abuse its discretion in admitting this evidence, Astello's claim that he received ineffective assistance of counsel fails as a matter of law.
We agree with Astello's argument that evidence of gang membership and activity is inherently prejudicial because it appeals to the jury's instinct to punish gang members. See State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995). However, when gang membership is relevant to a disputed issue, it may be admissible. See United States v. Lemon, 239 F.3d 968, 972 (8th Cir. 2001) (upholding admission of gang evidence when it did not become "persuasive theme of trial"). See also State v. Smith, 573 N.W.2d 14, 20-21 (Iowa 1997) (defendant's claim that trial counsel should have objected to evidence concerning street gangs had no merit where evidence of gang activity was relevant to establish defendant's motive, intent, and lack of mistake in firing his weapon).
Additionally, we find that Astello's claim that his trial counsel was ineffective for failing to mount a further challenge to evidence of drug activity is without merit. It would have been impossible to establish the circumstances surrounding the kidnapping and murder of Sky Erickson without revealing that Luis Lua and his companions were involved in drug dealing. As previously noted, Lua's anger over a drug debt was the primary motive for the crime. In situations where involvement with controlled substances is relevant to show a defendant's motive, the evidence is admissible. See State v. Crawley, 633 N.W.2d 802, 807 (Iowa 2001) (motive for cashing forged check was to obtain drugs). We also note that Astello's trial counsel was successful in convincing the district court to limit evidence that Astello was involved in "car burglaries and minor . . . drug sales." We reject this assignment of error.
IV. Jury Instructions Issue
In this postconviction appeal, Astello contends, for the first time, that his trial counsel was ineffective for failing to object to two uniform jury instructions. He also contends his direct appeal counsel and his postconviction counsel were ineffective for failing to raise and litigate this issue. Astello claims that Jury Instruction No. 5 and No. 14B changed "the dynamics of the trial and effectively place[d] an unconstitutional burden upon the defendant."
Instruction No. 5 stated: You must determine the defendant's guilt or innocence from the evidence and the law in these instructions. You must consider all of the instructions together. No one instruction includes all of the applicable law.
Instruction No 14B stated: The defendant has been charged with 3 counts. This is just a method for bringing each of those charges to trial. If you find the defendant innocent or guilty on any of the 3 counts, you may not conclude guilt or innocence on the others. The defendant's innocence or guilt must be determined separately on each count.
Our Supreme Court has "long adhered to the general principle that postconviction relief proceedings are not an alternative means for litigating issues that were or should have been properly presented for review on direct appeal." Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Accordingly, "any claim not properly raised on direct appeal may not be litigated in a postconviction relief action unless sufficient reason or cause is shown for not previously raising the claim, and actual prejudice resulted from the claim or error." Id.
In this case, Astello seeks to avoid an obvious procedural hurdle by simply asserting that ". . . [C]ounsel has a duty to aid the court in preparing jury instructions" and that "Counsel at trial, appellate and postconviction levels all failed that duty in the instant matter." We find this brief assertion inadequate to establish a sufficient reason for allowing Astello to litigate a new jury instruction claim in this postconviction appeal. Moreover, Astello has not shown that actual prejudice resulted from the claimed error.
Astello's appellate counsel raised the following issues on direct appeal:
(1) admissibility of photographic evidence, (2) sufficiency of the evidence for the first-degree kidnapping conviction, (3) territorial jurisdiction for the second-degree murder conviction, (4) admissibility of Astello's pretrial statements to law enforcement, and (5) ten different claims of ineffective assistance of trial counsel.
Astello now suggests that appellate counsel should have advanced an eleventh claim of ineffective assistance based on jury instructions. He contends the instructions allowed the jury to infer the he was required to prove his own innocence. Our supreme court rejected a similar argument in State v. Langlet, 283 N.W.2d 330, 337 (Iowa 1979) (finding unpersuasive a defendant's claim of prejudice from the use of the word "innocence" in a jury instruction similar to Instruction No. 5 in this case). Accordingly, we reject this assignment of error. We affirm Astello's convictions and sentences.