Opinion
No. 5-016 / 04-0414
Filed February 24, 2005
Appeal from the Iowa District Court for Polk County, Eliza Ovrom, Judge.
Leslie Bell appeals his convictions for attempted murder, first-degree burglary, willful injury causing serious injury, assault with intent to inflict serious injury, and going armed with intent. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael T. Hunter, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
I. Background Facts Proceedings
Lucinda DeBrown had a brief relationship with Leslie Bell, and during this time he lived at her home in Des Moines. In early June 2003, DeBrown asked Bell to move out. On June 6, 2003, Bell stated that if he could not have her, nobody could. He stated he did not want to leave and he started digging at his wrist with a knife. DeBrown summoned police officers, who removed Bell from her residence. The officers told Bell he was not to return to DeBrown's house.
On June 14, 2003, DeBrown went to Prairie Meadows with a friend, Charles James. They returned to DeBrown's home at about 5:00 a.m. the next morning. Bell came up out of the basement with a box cutter, saying "Bitch, I'm going to kill you, I'm going to cut your fucking throat." Bell cut DeBrown's left arm and her face. James threw a chair at Bell, but Bell kept after DeBrown and cut her on the leg as she ran by. James then threw a coffee table at Bell, and DeBrown was able to run out the door. She went to a neighbor's house, and the neighbor called the police and an ambulance.
DeBrown and James later got married, and DeBrown is now known as Lucinda DeBrown James.
Bell and James tussled shortly, and James received cuts on his head, chest, arm, and leg from Bell. Bell started walking through the house, saying "Cindy, where you at, bitch? I'm going to kill you." James went outside, and Bell locked the door. When police officers arrived they found Bell in the house with the box cutter and a knife. A basement window in DeBrown's house had been broken open. DeBrown later discovered that $300 was missing from her home. DeBrown is permanently scarred from her encounter with Bell.
Bell raised a defense of justification. He did not testify at the trial. Bell sought to present his statements through the testimony of Officer Eric Kirbach. The district court determined the evidence was not admissible because it was hearsay and did not come under any of the recognized exceptions to the hearsay rule. The court also found Bell was not denied his due process rights by the court's ruling. In an offer of proof, Officer Kirbach testified that when he was standing outside DeBrown's house with Bell, the defendant told him that he had been sleeping in the basement when DeBrown and James came in and woke him up. He stated he got into a fight with James, and DeBrown was accidentally injured when she got between them.
A jury found Bell guilty of attempt to commit murder, first-degree burglary, willful injury causing serious injury, assault with intent to inflict serious injury, and going armed with intent. Bell was sentenced to a term of imprisonment. Bell appeals.
II. Sufficiency of the Evidence
Bell contends there is insufficient evidence in the record to support his convictions. We review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. A conviction is not binding on appeal unless it is supported by substantial evidence. State v. Dalton, 674 N.W.2d 111, 116 (Iowa 2004). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the State. State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001). Substantial evidence is such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993).
Bell claims the evidence supports his defense of justification, or self-defense. See State v. Dunson, 433 N.W.2d 676, 677 (Iowa 1988) (noting self-defense is statutorily denominated as a defense of justification). When a defendant raises a defense of justification, the State has the burden to prove beyond a reasonable doubt that the alleged justification did not exist. State v. Rubino, 602 N.W.2d 558, 565 (Iowa 1999). Iowa Code section 704.3 (2003) provides, "A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force." Bell asserts the State failed to show his actions were not justified.
We determine there is sufficient evidence to support Bell's convictions. We conclude there is substantial evidence in the record to support a finding that beyond a reasonable doubt Bell was not justified in his actions. The testimony of DeBrown and James shows the attack by Bell was unprovoked and was not made in self-defense.
Bell also claims there is insufficient evidence to show he intended to commit the crimes alleged here. We note that the broken window in the basement supports the finding that Bell broke into the house. Bell's threats to DeBrown support a finding that he broke in with an intent to cause her harm. Bell's threats and the fact that he had a box cutter show he specifically intended to cause her death or serious injury. Also, when Bell fought with James, he intended to injure James. Furthermore, there is substantial evidence to show Bell was armed with a box cutter with the intent to use it against another person.
III. Evidence of Justification
Bell asserts that he was denied due process because he was not permitted to establish his defense of justification through his hearsay statements to Officer Kirbach. The district court ruled there was no due process violation. The court specifically found the evidence did not go to the heart of the case.
Our review of a constitutional issue is de novo. State v. Hallum, 585 N.W.2d 249, 254 (Iowa 1998). Not all evidentiary rulings implicate due process rights. State v. Traywick, 468 N.W.2d 452, 455 (Iowa 1991). A ruling "must go to the heart of the case in order to be considered of such magnitude as to implicate the due process clause." Id. Such a ruling must call into question the "integrity of the fact-finding process." Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973)).
We determine the evidence in question here does not go to the heart of the case because "a reasonable jury could not have reached a different verdict based on the statements [defendant] sought to introduce. . . ." See State v. Veal, 564 N.W.2d 797, 809 (Iowa 1997), overruled on other grounds by State v. Hallum, 249, 254 N.W.2d (Iowa 1998). Bell's self-serving statements did not explain most of the evidence in the case, such as how he came to be in the basement of DeBrown's home when he was specifically told by DeBrown and police officers not to return. He does not explain why James would attack him, or how he came to be armed with a box cutter. The evidence does not explain his threats to DeBrown. Also, the physical evidence, such as the broken window in the basement and the pattern of blood splatters, remains unexplained. We conclude the exclusion of the evidence in question did not deprive Bell of his due process rights. The exclusion of the evidence was harmless beyond a reasonable doubt.
IV. Ineffective Assistance
Bell contends that he received ineffective assistance due to counsel's failure to object to evidence of prior bad acts, under Iowa Rule of Evidence 5.404(3)( b). He also claims his trial counsel should have sought to introduce Officer Kirbach's testimony under the present sense impression exception to the hearsay rule, found in rule 5.803(1).
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
A.
Bell contends his trial counsel should have sought admission of Officer Kirbach's testimony under rule 5.803(1), which provides a hearsay exception for "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."
"The underlying theory of this exception is that substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation." Fratzke v. Meyer, 398 N.W.2d 200, 205 (Iowa Ct.App. 1986). Statements of present sense impressions are considered to be reliable because there is "little or no time for calculated misstatement." State v. Flesher, 286 N.W.2d 215, 217 (Iowa 1979) (citation omitted). The phrase "immediately thereafter," should be interpreted to mean "a time within which, under the conditions, it is unlikely that the declarant had an opportunity to form a purpose to misstate his observations. . . ." Id. (citation omitted).
We determine that even if defense counsel had attempted to introduce Officer Kirbach's testimony under the present sense impression exception to the hearsay rule, the district court would still have found the evidence inadmissible. Bell's statements were not made contemporaneously with the events he described. The evidence does not clearly show how long it took police officers to arrive at the scene. Then, Bell was removed from the home and placed in handcuffs before he made his statements to Officer Kirbach. The events which gave rise to the statements were complete before the statements were made because both of Bell's victims had escaped the home before officers arrived. Bell clearly had time to deliberate and construct a calculated misstatement prior to the time he made his statements. We conclude Bell has failed to show he received ineffective assistance of counsel on this issue.
B.
Finally, Bell claims he received ineffective assistance because his trial counsel failed to object to DeBrown's testimony of previous threats and violence in her relationship with Bell. DeBrown testified Bell screened her telephone calls. Also, on one occasion he hid in her car, then popped out and started fighting with a friend DeBrown had stopped to visit. He subsequently pushed DeBrown in the car and told her to drive, which she did. She testified that on a different occasion Bell grabbed her by the neck while she was driving and tried to get her to stop in a dark area. DeBrown's telephone was on so her mother overhead the conversation and called the police. Bell asserts his trial counsel should have objected to this evidence of prior bad acts.
Generally, evidence of prior bad acts is not admissible to show the person acted in conformity with the prior acts. Iowa R. Evid. 5.404( b); State v. Sullivan, 679 N.W.2d 19, 23 (Iowa 2004). Such evidence may be admissible, however, if it is relevant to a legitimate issue in dispute, and there is clear proof the defendant committed the act. Sullivan, 679 N.W.2d at 25; State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001). If the evidence is relevant, we consider whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004).
The evidence in question was relevant to show the relationship between DeBrown and Bell. See State v. White, 668 N.W.2d 850, 854 (Iowa 2003) ("Evidence of White's prior intentional, violent acts toward the victim, aggravated by his prior death threats, makes it more probable White intended to cause [the victim] serious injury on the day in question."); State v. Haskins, 573 N.W.2d 39, 45 (Iowa Ct.App. 1997) (noting evidence of defendant's prior intentional assault upon victim was relevant to rebut his claim of accidental injury). The evidence is also relevant to show why Bell was no longer welcome in her home.
We next consider whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Taylor, 689 N.W.2d at 124. Evidence may be considered unfairly prejudicial "when the evidence would cause the jury to base its decision on something other than the proven facts and applicable law, such as sympathy for one party or a desire to punish a party." State v. Rodriguez, 636 N.W.2d 234, 240 (Iowa 2001). Here, the evidence of prior bad acts did not rise to the level of the conduct alleged by the State in the present crimes. We conclude the evidence could not be considered unfairly prejudicial. We determine Bell has failed to show he received ineffective assistance due to counsel's failure to object to the evidence at issue here.
We affirm Bell's convictions.