Opinion
No. 5-825 / 04-0811
Filed March 15, 2006
Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge.
Anthony Cole appeals from several convictions arising out of a shooting at a Waterloo nightclub. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Anthony Marcellus Cole, Ft. Madison, appellant pro se.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel A. Dalrymple, Assistant County Attorney, for appellee-State.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
The crimes that are the subject of this appeal arose out of a melee at a Waterloo nightclub. Evidence was presented that, during the melee, Anthony Cole shot two individuals.
A jury found Cole guilty of attempted murder, assault, willful injury causing serious injury, two counts of reckless use of a firearm causing serious injury, and felon in possession of a firearm. Iowa Code §§ 707.11, 708.1, 708.2(5), 708.4(1), 724.30(1), and 724.26 (2001). On appeal, Cole raises a number of issues, including a challenge to the district court's admission of evidence relating to his prior felony convictions. We find this issue dispositive.
I. Admission of Prior Felony Convictions A. Motions and Ruling.
As noted, Cole was charged with being a felon in possession of a firearm. Prior to trial, he filed a motion in limine, arguing "[t]he State should be prohibited from presenting to the jury any evidence of Defendant's prior criminal history." He subsequently renewed the motion. Both times, defense counsel argued that the probative value of this evidence was substantially outweighed by its prejudicial effect. See Iowa R. Evid. 5.403. The district court considered counsel's arguments, then denied the motions, reasoning as follows:
Well, with regard to the issue of impeachment, I do find that the offenses occurred within 10 years based upon State's Exhibits A and B and that they may be used by the State for purposes of impeachment. I do find that they are more probative than prejudicial in this case. The convictions are for charges of Possession with Intent to Deliver, Failure to Affix Drug Tax Stamp, Delivery of Crack Cocaine, two counts. So they're not crimes of violence which would tend to prove that the defendant acted in conformity with his prior actions in this case.
. . . .
So I will allow them for purposes of impeachment of the defendant should he take the witness stand. With regard to their use to prove the element that the defendant was a convicted felon for [the felon in possession of a firearm count], they are highly relevant.
. . . .
The charge is that the defendant was in possession of a firearm and that he was a convicted felon, and the State is entitled to present evidence that he has previously been convicted of a felony. So they may use it for that purpose as well.
When defense counsel asked the court to clarify whether the ruling was limited to the "fact of a conviction," the court responded:
Well, State's Exhibit A has, of course, the complaints attached, the trial information and the judgment of guilt and sentence as does State's Exhibit B. Certainly the complaints do charge some facts, but again we are talking about a conviction and not simply proof of another crime or proof of other crimes without a conviction. So the State can prove those convictions, as I indicated before. Certainly, [defense counsel], you can make objection at the time of trial in the manner in which they do that, and I will hear your objections at that time.B. Evidence of Prior Convictions.
The State offered five witnesses solely for the purpose of establishing Cole's status as a felon.
1. Department of Corrections records custodian.
At trial, the State called an Iowa Department of Corrections records custodian and, through her, offered a fingerprint card and two booking photographs of Cole. Defense counsel objected to this evidence "based on my previous statements to the introduction of any of this evidence." The district court overruled the objection and the evidence was received, together with testimony concerning Cole's birth date, social security number, discharge date, and the nature of his prior convictions.
2. Second Department of Corrections employee.
The State next called another Iowa Department of Corrections employee. Defense counsel objected to his testimony on the ground that it was redundant and "more prejudicial than probative." The State responded that it should not be precluded from meeting its burden with additional evidence of Cole's prior convictions. In response, defense counsel pointed out that he had "been willing to stipulate" to the prior convictions even before the records custodian testified, but the State declined the offer. The court responded that this was the first time defense counsel had made an on-the-record offer to stipulate to Cole's status as a felon. The court asked the prosecutor whether he was willing to accept the offer. The prosecutor said he was not. The court then ruled, "I don't believe it's reached the point where the evidence is so cumulative that it is objectionable at this point." The court also explained, "it was always understood that the State would be allowed to prove the defendant's prior convictions as an element of [the felon in possession of a firearm count]." The district court overruled defense counsel's objections to the testimony of the second Iowa Department of Corrections witness. This witness testified that Cole was placed under his supervision following convictions for two felonies, identified by case number.
3. Police sergeant.
The State also called a police sergeant to "introduce the current booking photos" of Cole. Defense counsel objected, stating:
I think we've long since passed the line of being prejudicial. I think the last witness pretty much took care of that, but now the State's coming in again, introducing more convictions, more examples of felonies that could be misinterpreted and misconstrued to be additional witnesses — I mean additional convictions other than the one that [the records custodian] came in and testified to last week. So my objection is pretty much the same, and I would ask that the court continue a standing objection that the State — next to witnesses the State intends to call.
The district court overruled the objection as well as a subsequent foundational objection. The sergeant offered a booking photo of Cole and another set of fingerprints. The back of the fingerprint sheet indicated Cole was arrested on March 7, 2003. It listed his occupation as "unemployed" and the charge as "attempted murder."
4. Clerk of district court.
The State next called the Black Hawk County Clerk of District Court. She offered documents relating to Cole's prior convictions including complaints, trial informations, and the orders imposing judgment and sentence.
5. Second police department employee.
Finally, the State called an employee of the Waterloo Police Department who offered "a mug shot" and a print card for two offenses occurring in the early 1990s.
C. Analysis.
The question before us is whether the cited evidence amounted to "prejudicial overkill," as Cole contends. Our review of this issue is for an abuse of discretion. See State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004).
Before reaching the merits, we address the State's contention that Cole failed to preserve, or waived, error. As noted, defense counsel filed two motions in limine and obtained a detailed ruling on the motions. This ruling was clear and unequivocal. Following the court's pronouncement, neither party could have had any doubt that the court intended to allow the State to introduce evidence of Cole's prior convictions. See State v. Daly, 623 N.W.2d 799, 800 (Iowa 2001) (holding error preserved when ruling on motion was resolved "in such a way it is beyond question" what the ruling would be at trial). The court's ruling on Cole's motions in limine was sufficient to preserve error, even without subsequent objections.
Turning to the merits, we must first decide whether the cited evidence was relevant. See Iowa R. Evid. 5.401. There is no question the evidence of Cole's prior convictions was relevant to the charge that he was a felon in possession of a firearm. This evidence came in through the Department of Corrections records custodian, a second Department of Corrections employee, the clerk of court, and the second Waterloo Police Department employee.
The State did not argue that the convictions had any relevance to the remaining charges and we can discern none. Cole effectively conceded he was the shooter, dispensing with any potential argument that the State needed his prior convictions to establish his identity.
We cannot say the same of the police sergeant's testimony and his introduction of Cole's current booking photo and arrest record. This evidence was irrelevant to any issue involving any of the charges filed against Cole. Specifically, with reference to the felon-in-possession count, we do not see, after reviewing the record, how this evidence made the existence of a fact of consequence more or less likely. Evidence of his current arrest had no bearing on whether Cole had prior felony convictions.
With respect to the relevant evidence, we must next decide whether the probative value of this evidence was substantially outweighed by its prejudicial effect. See Iowa R. Evid. 5.403. On this question, federal authority is instructive.
In Old Chief v. United States, 519 U.S. 172, 174, 117 S. Ct. 644, 647, 136 L. Ed. 2d 574, 584 (1997), the Court was asked to decide
whether a district court abuses its discretion if it spurns [an offer to stipulate to the fact of a prior conviction] and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.
Applying Federal Rule of Evidence 403, the United States Supreme Court held that the admission of the full record of a prior judgment in the face of an offer to stipulate amounted to an abuse of discretion. Old Chief, 519 U.S. at 174, 117 S. Ct. at 647, 136 L. Ed. 2d at 584.
We find this opinion persuasive. Federal Rule 403 is identical to Iowa Rule of Evidence 5.403 in all material respects. Furthermore, our highest court has stated that we may look to constructions of federal rules in applying our own rules. See State v. Tangie, 616 N.W.2d 564, 570 (Iowa 2000); see also State v. Martinez, 621 N.W.2d 689, 695 (Iowa Ct.App. 2000); State v. Reddick, 388 N.W.2d 201, 203 (Iowa Ct.App. 1986).
Evaluating the record in light of Old Chief, we note that defense counsel did not initially offer to stipulate to Cole's prior convictions. However, after the records custodian testified and before the second Department of Corrections witness testified, defense counsel made an offer to stipulate to the fact of those convictions. The court asked the prosecutor whether he would accept this offer. The prosecutor declined. The court then allowed the prosecutor to proceed with the admission of a litany of exhibits relating to the prior convictions, including evidence that the convictions were for drug-related crimes and one of them was in the vicinity of a school. The court also allowed the admission of incidental details such as booking photos, fingerprint records, and complaints. All of this evidence was highly inflammatory. Cf. State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994) (admission of evidence of prior drug dealing is inherently prejudicial). Moreover, the prejudicial effect substantially outweighed the probative value of this evidence, particularly in light of defense counsel's offer to stipulate. Old Chief, 519 U.S. at 174, 117 S. Ct. at 647, 136 L. Ed. 2d at 585.
We conclude evidence relating to Cole's prior convictions after his attorney's on-the-record offer to stipulate should not have been admitted. Our conclusion implicates the testimony of the second Department of Corrections witness, the clerk of court, and the second Waterloo Police Department employee, as well as exhibits admitted through them.
In reaching this conclusion, we have considered the State's argument that it may present evidence of an element of an offense even when the defendant offers to stipulate to the element. See State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981); State v. Moore, 276 N.W.2d 437, 441 (Iowa 1979). In Old Chief, the Court stated that this argument, while cogent in other contexts, had "virtually no application" when the point at issue was "a defendant's legal status." Old Chief, 519 U.S. at 190, 117 S. Ct. at 654, 136 L. Ed. 2d at 593. In this situation, the Court noted, "the fact of the qualifying conviction is alone what matters under the statute." Id., 117 S. Ct. at 655, 136 L. Ed. 2d at 594. The Court continued,
The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant's admission and underscored in the court's jury instructions.
Id. at 190-91, 117 S. Ct. at 655, 136 L. Ed. 2d at 594.
Having found an abuse of discretion in admitting irrelevant evidence (the current booking photo and fingerprint sheet introduced through the police sergeant) as well as relevant but unfairly prejudicial evidence (the testimonial and documentary evidence of prior convictions other than that of the Department of Corrections records custodian), we must next decide whether the admission of this evidence amounted to harmless error. State v. Rodríquez, 636 N.W.2d 234, 242 (Iowa 2001). The current booking photo and fingerprint sheet as well as much of the evidence relating to the prior convictions was "inherently prejudicial." State v. Sullivan, 679 N.W.2d 19, 30 (Iowa 2004). In addition, the properly admitted evidence was "far from overwhelming." Id. Although Cole admitted he was the shooter, he argued he acted with justification. A Waterloo police officer testified Cole was kidnapped prior to the shooting. He survived the kidnapping but voiced concerns for the safety of his family. He also advised police that he believed there was a hit out for him. Additional evidence indicated Cole was shot to prevent him from testifying in the kidnapping case. Finally, an expert witness who evaluated Cole bolstered his justification defense. Given this record, we cannot conclude that the State's evidence was so overwhelming that the State would have prevailed absent admission of the copious bad-acts evidence. Id. at 31. II. Disposition
Cole raises a closely related argument. He contends trial counsel was ineffective in failing to file a motion to sever the felon in possession of a firearm charge from the other charges. If we were affirming the judgment and sentence, we would preserve this issue for postconviction relief proceedings to afford trial counsel an opportunity to explain this omission.
We reverse the judgment of the district court and remand the case for a new trial.