Opinion
No. 04-0728.
March 31, 2005.
Appeal from the Iowa District Court for Crawford County, Edward A. Jacobson, Judge.
Estaban Valaquez-Ramirez appeals his judgment and conviction for the offense of murder in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, and Thomas E. Gustafson, County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Esteban Velazquez-Ramirez, following a jury trial, was adjudged and convicted guilty of murder in the first degree in violation of Iowa Code sections 707.1 and 707.2 (2003). Velazquez appeals, asserting he was denied his constitutional right to effective assistance of counsel by his trial counsel's failure to "make an appropriately specific motion for judgment of acquittal to challenge the sufficiency of the evidence to establish malice aforethought. . . ." We affirm Velazquez's judgment and conviction.
Ineffective assistance of counsel claims entail a constitutional challenge and are thus reviewed de novo. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). To prevail on a claim of ineffective assistance of counsel, Velazquez must demonstrate both ineffective assistance and prejudice. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). To establish a failure in an essential duty Velazquez must demonstrate his trial attorney "performed below the standard demanded of a reasonably competent attorney." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). To demonstrate prejudice, Velazquez must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 143 (citations omitted). There is a strong presumption that Velazquez's counsel performed competently. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
The purpose of a motion for judgment of acquittal is to challenge "the sufficiency of the evidence to sustain a conviction." See State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). After the close of the State's case, Velazquez's trial counsel supported his motion for judgment of acquittal by stating, "[T]he State has failed to show requisite specific intent or raise sufficient evidence so as to base a reasonable jury to conclude beyond a reasonable doubt there was a sufficient showing of specific intent by Mr. Velazquez." The district court then ruled, "The Court finds that the State has produced sufficient evidence of each of the elements of Murder in the First Degree to create a jury question. . . ." Although the motion did not contain the words, "malice aforethought", the court clearly ruled all elements of first-degree murder had been sufficiently raised to allow the charge to go to the jury.
Following the jury trial, Velazquez's trial counsel filed a joint "motion for new trial and motion in arrest of judgment." In support of the motion for new trial were the following propositions: (1) "Although most of the elements to the crime alleged were admitted, the crucial element concerning malice was denied . . . there was no evidence to establish malice"; (2) "The defendant submits the jury had no evidence whatsoever upon which to rely rationally that there was any malice on the part of the Defendant"; (3) "Here, the evidence presented by the State lacked showing any level of malice by the Defendant . . . "; (4) "Defendant avers that the evidence herein was insufficient. . . . There was insufficient evidence for any reasonable trier of fact to conclude beyond a reasonable doubt that the Defendant acted with malice here." (Emphasis added.) The motion in arrest of judgment incorporated the above arguments. In addition, Velazquez's counsel, at the sentencing hearing where this motion in arrest of judgment was taken up, summarized his argument: "[b]asically, we believe the State failed to show competent evidence of malice and primarily it's malice — particularly malice aforethought in the commission of this offense."
Velazquez's sole contention on appeal is that his trial counsel failed to adequately challenge the sufficiency of the evidence supporting a jury finding that he acted with malice aforethought. Our de novo review of the record reveals his trial attorney raised this very issue in no less than four instances. Furthermore, the district court, on several occasions, ruled against Velazquez on this issue. Consequently it cannot be said that his trial counsel failed in an essential duty in not raising the issue or that Velazquez was prejudiced by any such failure. We accordingly find no merit in Velazquez's argument on appeal.
AFFIRMED.