Opinion
No. 3-006 / 01-1746
Filed March 26, 2003
Appeal from the Iowa District Court for Linn County, Douglas S. Russell, Judge.
Defendant appeals the district court's pre-trial ruling on motion in limine and claims ineffective assistance of counsel regarding trial counsel's advice against testifying. AFFIRMED.
Philip Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Denver Dillard, County Attorney, and Russell Keast, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Miller and Eisenhauer, JJ.
Background Facts . On October 26, 2000, David Lint was observed weaving within his lane by a police officer who had received a report stating a vehicle matching Lint's pickup was driving recklessly. The officer pulled Lint over and conducted field sobriety tests, all of which he failed. Lint was arrested for operating while intoxicated, driving under suspension, and interference with an official act. During the booking process Lint was uncooperative, giving a false name when asked for basic identifying information. Lint repeatedly requested an attorney during the booking process. At one point the booking officer located and dialed the number for the attorney Lint requested, but no one answered nor was there a voice message option. All of this was recorded on video in the booking area. No Miranda warnings were read to Lint prior to the booking process. The video was admitted at the trial over defense counsel's objections as evidence of Lint's behavior and intoxication.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Prior to trial, Lint's trial counsel filed a motion in limine to exclude evidence of his prior criminal record. At the hearing, the court decided to defer the decision until trial should Lint testify. If Lint decided to testify a sidebar would be held to discuss his prior record as possible use for impeachment purposes. As Lint did not testify, no further record was made as to that issue.
After Lint was found guilty by a jury, trial counsel filed a motion for new trial. The court overruled the motion and Lint appeals.
Admission of video tape . Lint appeals the admission of the videotape made during the booking process. We review a violation of a constitutional protection de novo. State v. Marks, 644 N.W.2d 35, 37 (Iowa Ct.App. 2002). Violations of rules of evidence require a review of the trial court's discretion. State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988).
Lint argues that because he attempted to invoke a right to counsel during the initial booking procedure and his repeated requests were recorded on video tape, the court impermissibly allowed the jury to view the tape. He asserts, citing State v. Kyseth, 240 N.W.2d 671 (Iowa 1976), that a defendant's request for counsel is, under any circumstance, not allowed to be revealed to a jury. We disagree with this overly broad position.
The Fifth Amendment right to counsel applies in cases of custodial interrogation. McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158, 167 (1991). Once such right is invoked, all interrogation must cease, and the police may not seek to further question the defendant until counsel has been made available. Id. at 176-77, 111 S.Ct. at 2208, 115 L.Ed.2d at 167. Interrogation occurs when the police engage in express questioning or its functional equivalent, which is defined as any conduct reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 308 (1980). This is because, at its heart, the Fifth Amendment right to counsel is a protection against compulsory self-incrimination. See McNeil, 501 U.S. at 176-77, 111 S.Ct. at 2208, 115 L.Ed.2d at 167. The warning mandated by Miranda was meant to preserve the Fifth Amendment privilege against self-incrimination during incommunicado interrogations of individuals in a police-dominated atmosphere. Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243, 250 (1990). However, there is a "`routine booking question' exception which exempts from Miranda's coverage questions to secure the `biographical data necessary to complete booking or pretrial services.'" Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528, 552 (1990); see, e.g, Van Hoff v. State, 447 N.W.2d 665, 672 (Iowa Ct.App. 1989) (noting that interrogation does not include basic identification questioning or general on-the-scene questioning).
In the instant case, the officer was only inquiring of Lint the "biographical data necessary to complete booking or pretrial services." Muniz, 496 U.S. at 600, 110 S.Ct. at 2650, 110 L.Ed.2d at 552. As such, Lint's request for an attorney precedes the attachment of his Fifth Amendment right to counsel. Therefore, we agree with the district court that the video tape of Lint's request for counsel as a prerequisite to his giving basic identifying information to the booking officer did not violate a constitutionally protected right.
Lint next asserts that the videotape of the booking process should not have been admitted as it was unfairly prejudicial. All relevant evidence, even if otherwise admissible, can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403. Evidence will not be excluded merely because it tends to demonstrate a defendant's guilt. State v. McDaniel, 512 N.W.2d 305, 308 (Iowa 1994). To be unfairly prejudicial, evidence must create an undue tendency in the jury to make a decision on an improper, and often emotional, basis. State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997).
The district court determined the video tape was relevant and considered the prejudice to Lint against the probative value for the State. The video showed Lint's demeanor, behavior, and slurred speech, giving the jury an opportunity to see first hand his conduct on that evening. In addition, Lint refused to submit to a chemical test, and therefore the video (with the audio component) was evidence critical to the State in proving Lint was under the influence of alcohol. We find no abuse of the trial court's discretion in admitting the video tape of the booking procedure.
Ineffective Assistance of Counsel. Lint next asserts his counsel was ineffective in that he gave Lint poor advice on whether to testify in his own defense. At the hearing on the motion for new trial, it became apparent that trial counsel had misunderstood what had earlier transpired at the pre-trial hearing on the motion in limine. As a consequence of his misapprehension, trial counsel informed Lint that if he testified at trial, his criminal record would be admitted.
To prove an ineffective assistance of counsel claim, "a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (quoting State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. Id. Rather, we preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims. Id. We preserve for possible postconviction relief proceedings Lint's claim that counsel was ineffective for failing to properly advise Lint with regards to testifying at trial.
AFFIRMED.
Eisenhauer, J., concurs; Miller, J., concurs in part and dissents in part.
A defendant complaining about the adequacy of an attorney's representation must:
(1) state the specific ways in which counsel's performance was inadequate, and
(2) identify how competent representation probably would have changed the outcome.
Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994).
Lint has done the first, by showing that defense counsel erroneously believed the trial court had ruled Lint's prior felony convictions were admissible for impeachment purposes and stating this erroneous advice was a significant factor in his decision not to testify. However, he has done nothing toward meeting the second requirement, in that he does not in any manner indicate what his testimony would have been or how it might have produced a different result.
Lint's claim is thus too vague and general to preserve it for a possible postconviction proceeding. See Dunbar, 515 N.W.2d at 15 (holding that claims of ineffective assistance of counsel are too general in nature to allow them to be addressed or to preserve them for a postconviction proceeding where the claims do not suggest what the result of different action by counsel would have been or how such different action would have affected the result below); Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985) (holding that appellant did not present grounds to address or preserve a claim of ineffective assistance of counsel where he did not suggest what the results of different action by counsel would have been or how they would have produced a different result). I therefore respectfully dissent from the majority's preservation of the claim of ineffective assistance. I concur in the result reached concerning admission of the videotape.