Opinion
No. 03-0623.
July 28, 2004.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Jason Neal appeals from his conviction for first-degree murder. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, John Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Miller, JJ.
I. Background Facts and Proceedings
Jason Neal appeals from his conviction for first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (2001). We affirm.
The trial information filed in this case alleges that Neal:
committed or aided and abetted in the commission of Murder in the First Degree by killing David Szczygielski and did so willfully, deliberately, with premeditation and malice aforethought and/or while participating in a forcible felony [willfull injury and child endangerment].
According to the State's version of events, David's mother left him in Neal's care while she was at work. Neal became angry at David because David wet his pants and punished David by spanking him with a wooden paddle. Neal became "extra angry" when he found David had also soiled his pants. As a result, Neal pushed David into a bathroom wall causing David to hit his head on the wall and the floor, rendering him unconscious. Neal then cleaned David up, dressed him, and placed him in bed. After David began vomiting and was having difficulty breathing, Neal summoned a neighbor for help.
At the neighbor's instruction, Neal summoned emergency assistance. He told paramedics he didn't know what happened to David. At the hospital, David's treating physician, Dr. Dawson, "specifically asked [Neal] if [David] had had any kind of trauma of any kind . . . including spanking and falling in [his questioning]." Neal denied any trauma and said he was baking a cake when he found David lying on his bed. After offering several versions, Neal told police he pushed David into the bathroom wall.
Dr. Dawson would later testify that David was unconscious upon arrival and exhibited retinal hemorrhaging, a classic symptom of a battered child. Physicians also noted two distinct impact injuries to the back of David's head. David also had significant bruising that extended from his lower back to the bottom of his back and covered both sides of his buttocks. Dr. Gerdes, a pediatric critical care specialist, opined that it was unlikely David would have been able to walk after sustaining such injuries. The physicians' consensus opinion was that David's injuries were contemporaneously inflicted.
A subsequent autopsy confirmed that David died from "blunt force trauma to the head." The coroner determined David's fatal injuries were caused by at least two separate impacts to the back of his head. The coroner also noted a deep laceration to the back of David's ear, a large bruise above his right eye, defensive wounds on the back of his right hand, bruises around his neck, and considerable bruising on his buttocks that were so extensive "they actually occurred throughout the muscles of the buttock."
Neal pled not guilty, and the matter proceeded to jury trial. At trial Neal's version of events differed in significant details from the State's. He disputed the severity of the spanking by testifying he only struck David five or six times with a wooden paddle and did not intend to injure him. Neal also disputed the State's claim that David's head and buttocks injuries were contemporaneously inflicted. He testified that after spanking David, David walked from the bedroom to the bathroom while Neal went upstairs. Neal's testimony included the following:
Q. All right, So you're done spanking and you went upstairs with the paddle; is that right?
A. Yes, I did.
Q. And you put it away?
A. Yes.
Q. And then what did you do?
A. And then I came back downstairs to go back into —
Q. And at that point what do you see when you come back downstairs?
A. The bathroom door is open. David is standing there and he's not changing or anything like that. He's just — he's standing there.
. . . .
Q. Did he respond to you at all?
A. He didn't respond. He wasn't looking up or anything at me, and I kept — I said, "David," and then I guess as a reaction because I wasn't getting his attention like I wanted it, I pushed. I pushed David.
Q. With both hands?
A. With both hands.
Q. Where did you push him on his body?
A. Like in the chest area. It wasn't — when I pushed him, it wasn't meant to be a push like as hard as it was or like that. It was just — you know, looking back on it, I wish I would have grabbed him by the shoulders, you know, like some people do, but I just — it was a reaction. I pushed, and he went back into the wall. And after he went back into the wall —
Q. Well, let me ask you this: When you pushed him, was it your intent to push him into the wall?
A. No. My intent wasn't for him to hit the wall. It's what happened.
Q. What part of his body hit the wall?
A. Well, I didn't — I mean, I wasn't back there to see, but I know his back hit the wall and then the indentation, the back of his head hit the wall.
Neal also testified that he then picked David up, dressed him, and placed him in bed. When Neal later noticed David had vomited and was having trouble breathing, he summoned a neighbor for assistance.
In his motion for judgment of acquittal, Neal argued that the evidence was insufficient to establish that he acted with malice aforethought, an essential element of proof under both the State's premeditated and felony murder theories. The court rejected Neal's argument and submitted both theories of first-degree murder to the jury. The jury returned a verdict finding Neal guilty of first-degree murder. Neal's posttrial motions were denied, and a judgment of conviction and sentence were entered accordingly.
On appeal, Neal argues:
I. THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT DEFENDANT'S CONVICTION.
II. TRIAL COUNSEL WAS INEFFECTIVE.
A. FAILURE TO FILE A MOTION FOR NEW TRIAL AND ARGUE THAT THE VERDICT WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE.
B. FAILURE TO OBJECT TO EVIDENCE OF THE SPANKING AS A PREJUDICIAL PRIOR BAD ACT.
C. FAILURE TO FILE A MOTION TO SUPPRESS DEFENDANT'S CONFESSION TO THE POLICE ON THE BASIS OF PROMISSORY LENIENCY.
D. FAILURE TO HAVE THE VOIR DIRE REPORTED IN ORDER TO PROVE THE ALLEGATION CONTAINED IN THE MOTION FOR NEW TRIAL THAT DEFENDANT'S COUNSEL WERE IMPROPERLY RESTRICTED.
E. FOR FAILURE TO OBJECT ON THE RECORD TO THE PREJUDICIAL PRACTICE OF THE PROSECUTION OF LEAVING THE PHOTOS OF THE BRUISED VICTIM DISPLAYED TO THE JURY FOR LENGTHY PERIODS OF TIME.
II. Sufficiency of Evidence
We review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. A jury's verdict is binding if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)(p).
Neal argues, "The evidence presented in this matter cannot sustain any conclusion as to the existence of the essential element of malice aforethought, or of premeditation, in regard to Murder in the First Degree." We disagree.
Malice aforethought is an essential element of both murder alternatives charged in this case. See Iowa Code § 707.1. Malice aforethought has been defined as a fixed purpose or design to do physical harm to another that exists before the act is committed. State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). It does not have to exist for any particular length of time. Id. Malice may be inferred from the manner in which the crime was committed. State v. Berry, 549 N.W.2d 316, 318 (Iowa Ct.App. 1996). Malice may also be inferred from the commission of a felony which results in death. Schrier v. State, 347 N.W.2d 657, 666 (Iowa 1984). The evidence shows that David died as a result of two traumatic blows to his head. Investigators located two indentations on the wall in the bathroom that would have been caused by the head of someone of David's height hitting the wall with great force, and the coroner concluded that David died from two distinct impacts to the back of his head. The nature and extent of David's injuries, as well as the force required to inflict them, are more than sufficient to establish the requisite malice aforethought for Neal's murder conviction. See State v. Rhode, 503 N.W.2d 27, 39 (Iowa Ct.App. 1993) (inferring malice from defendant's intentional slamming of child's head against a hard flat surface causing severe head injuries); see also State v. Poyner, 306 N.W.2d 716, 718 (Iowa 1981) (finding multiple wounds supply strong evidence of malice and intent to kill). Moreover, the egregious nature of David's other injuries further exemplifies Neal had the malice aforethought when he killed David. David's injuries to his buttocks were so severe the physicians believed he would have likely been unable to walk; he had bruising marks around his neck, a lacerated ear, and defensive wounds on his right hand. The severity and manner of David's injuries are clearly enough to provide substantial evidence of malice.
We do not address Neal's argument concerning the sufficiency of the evidence supporting premeditation because he has failed to state, argue, or cite authority in support of that issue. See Iowa R. App. P. 6.14(1)(c).
We affirm on this issue.
III. Ineffective Assistance of Trial Counsel
We review ineffective assistance of counsel claims de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). To establish a claim of ineffective assistance of counsel, Neal has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, Neal 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 element 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).
An ineffective assistance of counsel claim fails if a defendant fails to establish either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct. App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). "Preserving ineffective assistance of counsel claims that can be resolved on direct appeal wastes time and resources." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). We deem the record sufficient to address all of Neal's ineffective claims on direct appeal.
A. Motion for New Trial
Neal argues trial counsel was ineffective in failing to request a new trial because the jury's verdict was against the weight of the evidence.
In ruling on a motion for new trial, trial courts look at the weight of the evidence to determine whether a "greater amount of credible evidence supports one side of an issue or cause than the other." State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). Trial courts are cautioned to use the discretion sparingly because of the possibility of lessening the jury's role as the principal trier of fact. Id. at 659. The trial court's ruling on such a motion will be reversed only for a demonstrated abuse of discretion. State v. O'Shea, 634 N.W.2d 150, 154 (Iowa Ct.App. 2001).
As the foregoing indicates, Neal's conviction was supported by substantial direct and circumstantial evidence. Our review of the record discloses an absence of any support for a determination that the jury's verdict was against the weight of the evidence. Because there is no reasonable probability that a motion for a new trial would have been sustained on the weight of the evidence standard, counsel breached no essential duty for failing to raise this issue. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (determining counsel is not ineffective for failing to raise a meritless issue).
B. Prior Bad Act Evidence
Neal claims counsel was ineffective for failing to object to the introduction of any evidence of the initial spanking because it was a prior bad act showing no more than Neal's bad character or that he acted in conformity therewith. We disagree.
The evidence of David's initial spanking was admissible to show the complete story of the crime. See State v. Walters, 426 N.W.2d 136, 141 (Iowa 1988) (admitting such evidence when it is an inseparable part of the whole deed). "[E]vents and circumstances which immediately surround an offense may be shown even though they may incidentally show commission of another crime." Id. at 140-41. The treating physicians testified the injuries sustained to David's buttocks were contemporaneous with his life-ending injuries to his head. Therefore, we conclude Neal's attorney did not breach any essential duty by not raising this issue at trial. Hoskins, 586 N.W.2d at 709 (determining counsel is not ineffective for failing to raise a meritless issue).
C. Promissory Leniency
Neal contends trial counsel was ineffective for failing to request suppression of inculpatory statements Neal made to investigators. Neal claims the record shows that the statements were involuntary because they were made in exchange for promises of leniency. As evidence of promissory leniency, Neal cites the following statements made by the interrogating police officer: (1) "we're trying to get something on your side, Ok?"; (2) "you have the ability to get something on your side . . ."; (3) "this is a window of opportunity for you to say . . ."; and (4) "I'd like to think you'd want to take the opportunity to present yourself in the best light. . . ."
The State has the burden to show by a preponderance of the evidence that an accused's inculpatory statement was voluntary. State v. Nolan, 390 N.W.2d 137, 142 (Iowa Ct.App. 1986). The Iowa Supreme Court has consistently proscribed the use of statements obtained through promises of leniency. Id. The supreme court has stated:
An officer can ordinarily tell a suspect that it is better to tell the truth. The line between admissibility and exclusion seems to be crossed, however, if the officer also tells the suspect what advantage is to be gained or is likely from making a confession. Ordinarily the officer's statements then become promises or assurances, rendering the suspect's statements involuntary.
State v. Hodges, 326 N.W.2d 345, 349 (Iowa 1982) (citing State v. Mullin, 249 Iowa 10, 16-17, 85 N.W.2d 598, 601-02 (1957)).
We determine the interrogating officer's statements do not constitute promises or assurances of leniency. The statements do not indicate Neal was promised any benefit in exchange for his statements. Cf. State v. Rhiner, 352 N.W.2d 258, 263-64 (Iowa 1984) (finding statements involuntary where officers stated other charges might be filed against defendant unless he cooperated); Hodges, 326 N.W.2d at 349 (finding statements involuntary when defendant was told he might receive a lesser offense if he talked); State v. Ware, 205 N.W.2d 700, 703 (Iowa 1973) (finding statements involuntary where defendant was told "it would go easier" for him if he confessed). Trial counsel was not ineffective. Hoskins, 586 N.W.2d at 709 (determining counsel is not ineffective for failing to raise a meritless issue).
D. Failure to Report Voir Dire
In a motion for new trial, Neal's counsel argued the court improperly limited questioning of prospective jurors during voir dire. Specifically, counsel believed the trial court unfairly restricted him from questioning the jurors on their familiarity with publicity concerning the deaths of children caused by adults. Neal argues that the absence of a voir dire record precluded a successful motion for a new trial on that ground.
The failure to report voir dire does not in and of itself constitute reversible error. State v. Woodyard, 414 N.W.2d 654, 656 (Iowa Ct.App. 1987). Neal must show he was prejudiced by the failure. Id. We may affirm a conviction if the defendant fails to show either a breach of an essential duty or prejudice. Greene, 592 N.W.2d at 29. Prejudice exists only when there "is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. 2052, 80 L. Ed. 2d at 698. Based on the abundance of evidence in support of Neal's first-degree murder conviction, we find he is unable to show prejudice. See Reed v. Norris, 195 F.3d 1004, 1006 (8th Cir. 1999) (citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052, 80 L. Ed. 2d at 699-70.
E. Display of Photographs
Neal asserts trial counsel was ineffective for his failure to object to the prosecutor's extended display of pictures of David's bruised body. He argues the jury was improperly swayed by the lengthy display.
Without determining whether trial counsel breached an essential duty by failing to make this objection, we conclude Neal is unable to show prejudice based on the overwhelming nature of the evidence supporting his conviction. See Norris, 195 F.3d at 1006 (citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052, 80 L. Ed. 2d at 699-70); see also Greene, 592 N.W.2d at 29 (holding the court may affirm a conviction if either a breach of an essential duty or prejudice is not shown).
AFFIRMED.