Opinion
No. 4-474 / 02-1056.
August 26, 2004.
Appeal from the Iowa District Court for Black Hawk County, Todd Geer and Leonard Lybbert, Judges.
David Ford appeals his conviction for willful injury with intent to cause serious injury. AFFIRMED.
Chad Frese of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
I. Background Facts Proceedings
On October 14, 2000, Brock Zuck invited some friends to celebrate his birthday in a rural area near Jesup, Iowa. The group stood around a bonfire and drank beer. At about 10 p.m., two carloads of people from Waterloo showed up at the party. Only one of these people was known to the Jesup group. A small fight broke out, and the Waterloo group was asked to leave.
The group returned to Waterloo and gathered up more friends, including David Ford. The Waterloo group drove in three cars back to the Jesup party. They ran out of their cars and immediately started hitting people. One of the Jesup group, Ben Steinbron, was seriously injured. He required facial reconstruction surgery and lost his ability to hear in one ear.
Ford was charged with willful injury, in violation of Iowa Code section 708.4 (1999), and assault causing serious injury, in violation of sections 708.1 and 708.2(4). The district court granted Ford's motion to suppress any identifications based on a photographic line-up. Ford was the only light-skinned African-American with bleached blond hair in the line-up, and the court found this was unduly suggestive.
The case proceeded to a jury trial. Witnesses testified they saw a person who was "about medium build, dark skin, like Mulatto, bleach-blond hair" tackle Steinbron. There was evidence a "light-skinned African-American person with blond hair" hit someone repeatedly with a board. Witnesses also testified this person struck down Jamie Iverson, who attempted to help Steinbron. Additionally, Ford gave police officers a statement admitting he was involved in the fight.
We recognize the term "Mulatto" has negative connotations. We use this term only to show how the witnesses described a person, who the jury determined to be the defendant.
Ford proposed giving the jury an eyewitness identification instruction, but prior to the time the instructions were submitted to the jury he withdrew his request. On the day the instructions were given to the jury, Ford renewed his request, stating:
[H]aving thought about that overnight, we believe that an instruction on eyewitness identification should be included because there was a lot of testimony about what people saw and the conditions about what they saw. And I think even though there weren't any eyewitness identifications by the state's witnesses, there should be a definition of eyewitness identification so that the jury knows what an eyewitness would be. Otherwise, they don't have any law on what an eyewitness would be. And therefore, we think that to that extent the instruction should be there.
And not only that, judge, and also rethinking this, there were witnesses who testified for the state, who made identifications of individuals, but those identifications were not Mr. Ford. And so, even though there weren't any eyewitness identifications in the traditional sense of the accused, there were eyewitnesses who identified other people, and we believe that to that extent, the instruction should also be included.
(Emphasis added.) The district court overruled Ford's request to change the jury instructions.
The jury found Ford guilty of willful injury causing serious injury. The court denied Ford's post-trial motions, noting:
The defense acknowledged that the case did not involve eyewitness identification in the traditional sense. The eyewitness identification instruction is not required to inform the jury as to what "an eyewitness would be." The court at trial, and prior to trial, made rulings prohibiting state's witnesses who were unfamiliar with the defendant prior to the trial from making any in-court identification of the defendant as being at the scene. Such individuals were only allowed to provide descriptions of individuals at the scene.
Ford was sentenced to a term of imprisonment not to exceed ten years. He appeals.
II. Jury Instruction
Ford contends the district court should have given the jury his requested eyewitness identification instruction. The proposed instruction provided:
The reliability of eyewitness identification has been raised as an issue. Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to see the person at the time of the crime and to make a reliable identification later.
In evaluating the identification testimony of a witness, you should consider the following:
1. If the witness had an adequate opportunity to see the person at the time of the crime. You may consider such matters as the length of time the witness had to observe the person, the conditions at the time in terms of visibility and distance, and whether the witness had known or seen the person in the past.
The proposed instruction was the first part of Iowa Uniform Criminal Instruction 200.45, which is based on United States v. Telfaire, 469 F.2d 552, 558 (D.C. Cir. 1972).
We review a district court's ruling on jury instructions for errors at law. Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). When a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court should give the requested instruction. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996).
In two previous cases, our supreme court has determined an eyewitness identification instruction was not necessary because the basic and more general instruction on credibility of witnesses, Uniform Criminal Jury Instruction 100.7, was given. State v. Hohle, 510 N.W.2d 847, 849 (Iowa 1994); State v. Tobin, 338 N.W.2d 879, 881 (Iowa 1983). In this case as well, the jury received the general uniform instruction on the credibility of witnesses.
Furthermore, in this case there were no eyewitness identifications of Ford. The witnesses described a person involved in the fight, and left for the jury to determine whether Ford met that description. As the district court stated, this case "did not involve eyewitness identification in the traditional sense. The eyewitness identification instruction is not required to inform the jury as to what `an eyewitness would be.'" We conclude the district court did not err in refusing to give an eyewitness identification instruction in this case.
III. Ineffective Assistance of Counsel
This case was tried before district court judge Todd Geer. Judge Geer held the hearing on the proposed jury instructions where Ford withdrew his request for the eyewitness identification instruction. Judge Geer, however, was not available on the day the instructions were submitted to the jury, and district court judge Leonard Lybbert heard and denied Ford's renewed request to give the proposed instruction. On appeal, Ford claims he received ineffective assistance because his trial counsel did not take "additional steps to confer with Judge Geer rather than simply accepting Judge Lybbert's decision to overrule the renewed request for the instruction."
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).
We have already concluded above that the district court did not err in refusing to give an eyewitness identification instruction in this case. Therefore, defense counsel did not breach an essential duty by failing to contact Judge Geer. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987) (finding counsel cannot be held ineffective for failing to make a futile objection).
We conclude Ford has failed to show he received ineffective assistance of counsel.
We affirm Ford's conviction.