No. 4-046 / 02-1962Court of Appeals of Iowa.
Filed March 10, 2004
Appeal from the Iowa District Court for Clarke County, Robert D. Wilson, Judge.
Royce Imhoff appeals the district court’s denial of his request for postconviction relief. AFFIRMED.
Bryan Tingle of Tingle, Knight, Webster and Juckette, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Elisabeth S. Reynoldson, County Attorney, and John Lloyd, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
MAHAN, J.
I. Background Facts Proceedings
Royce Imhoff was convicted of two counts of sexual abuse in the second degree, in violation of Iowa Code section 709.3(2) (1997). On May 29, 1997, Imhoff’s wife, Vonna, observed Imhoff having sexual contact with his eleven-year-old step-daughter, Victoria. That same evening, Vonna, who was crying hysterically and incoherent, told her neighbors, Norvin and Susan Brewer what had happened.
The next day, Imhoff gave police officers a written statement in which he admitted to sexual contact with Victoria on that and other occasions. Victoria told an investigator with the Iowa Department of Human Services about the sexual abuse, but later recanted. A physical examination revealed an injury to Victoria consistent with sexual abuse.
Imhoff filed a motion to suppress, claiming he was intoxicated when he gave his written statement and the statement was not voluntary. The district court denied Imhoff’s motion to suppress. At trial the Brewers testified concerning Vonna’s statements to them. Imhoff’s counsel made one objection to each witness on the grounds of hearsay, and these objections were overruled by the district court. As noted above, Imhoff was convicted of the charges against him.
Imhoff appealed, claiming the district court should have granted his motion to suppress, his convictions were not supported by substantial evidence, and his sentence was improper. He also claimed he received ineffective assistance due to counsel’s failure to object to hearsay evidence and failure to move to enlarge the findings regarding his motion to suppress. We affirmed Imhoff’s convictions but preserved his claims of ineffective assistance of counsel. See State v. Imhoff, No. 9-089/98-0302 (Iowa Ct.App. May 26, 1999).
Imhoff filed an application seeking postconviction relief, raising the two ineffective assistance of counsel issues preserved in his direct appeal. He also claimed his trial counsel should have challenged the venue for one of the sexual abuse charges. The district court denied Imhoff’s request for postconviction relief. He appeals.
II. Standard of Review
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, an applicant 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).
In proving the first prong, the defendant faces a strong presumption the performance of counsel fails 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 prong 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).
III. Hearsay Evidence
Imhoff claims his trial counsel’s failure to raise a hearsay objection to the testimony of Norvin and Susan Brewer fell below the minimum standards of competency. He asserts that if a timely objection had been made, the testimony of the Brewers would likely have been excluded.
We first note that trial counsel raised a hearsay objection when Susan Brewer first started to testify as to Vonna’s statements to her. Trial counsel also objected on the basis of hearsay when Norvin Brewer was questioned about his conversation with Vonna. The district court overruled these objections, and trial counsel raised no further objections.
At the postconviction hearing, trial counsel testified:
Q. And what, if you recall, would your thinking have been on how you would have treated your trial strategy as to whether or not you would have continued to make objections? A. It’s my personal belief in defense practice that once the Court is overruling your objections, further objections are going to be overruled. Also, it makes you appear to the jury to obstruct justice while they are trying to do justice. That would be another consideration for not continuing with the objections.
The district court concluded trial counsel’s strategy was reasonable. Reasonable strategic decisions cannot serve as the basis for a claim of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (citing Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984)). We concur that this was a reasonable trial strategy.
Furthermore, counsel could not be considered ineffective for failing to object to admissible evidence. The district court found the evidence was admissible under the excited utterance exception to the hearsay rule. Under Iowa Rule of Evidence 5.803(2), a hearsay statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” is admissible. To be considered an excited utterance, the statement must have been made under the influence of the excitement of the incident, rather than upon reflection or deliberation. State v. Cagley, 638 N.W.2d 678, 681 (Iowa 2001).
Here, the evidence clearly shows Vonna observed a startling event. She observed her husband having sexual contact with her eleven-year-old daughter. And the evidence clearly shows she was still under the stress of excitement caused by her observation when she told the Brewers about the event. The Brewers testified Vonna was crying hysterically, and that she was incoherent and distraught when she told them what she had seen. Even if trial counsel had objected to the Brewers’ testimony, the evidence would be admissible as an excited utterance.
IV. Motion to Suppress
Imhoff contends his trial counsel should have filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) seeking enlarged findings on the motion to suppress. The district court made a ruling on the motion to suppress from the bench, but apparently no transcript was made of the ruling. In addition, the court made a calendar entry denying the motion to suppress. Imhoff claims that because there was no written ruling, he “lost the right to complete and fully informed judicial review on this matter.”
The problem with Imhoff’s argument is that on the direct appeal we made a complete and fully informed review of the motion to suppress. We concluded the evidence was overwhelming that Imhoff suffered from no condition that would have impaired his ability to voluntarily and intelligently waive his constitutional rights. Imhoff is unable to show he was prejudiced by trial counsel’s failure to file a motion for enlarged findings on the motion to suppress.
V. Change of Venue
Imhoff claims his trial counsel should have challenged the venue in Clarke County to one count of second-degree sexual abuse. He asserts there is no evidence the April 1997 incident of sexual abuse occurred in Clarke County, and that this count should have been dismissed.
Although the district court briefly addressed the venue issue, the court also ruled:
With respect to any of the issues advanced by Petitioner herein which were not raised on direct appeal, the court has noted that he has failed, except with respect to Vonna Imhoff’s mental health, to allege ineffectiveness of appellate counsel. Petitioner is now barred from raising these issues in this proceeding. In addition, he has failed to present any evidence that demonstrates that appellate counsel was in fact ineffective, even if the court were inclined to overlook his failure to plead the issue.
Under section 822.8, the grounds for postconviction relief must have been raised in previous proceedings, unless an applicant has “sufficient reason” for not raising the issue previously. Ineffective assistance of appellate counsel may be considered sufficient reason for not previously raising an issue on direct appeal. See Jones v. State, 479 N.W.2d 265, 271 (Iowa 1991). A claim of ineffective assistance of trial counsel may be barred because of an applicant’s failure to assert the ineffective assistance of appellate counsel in failing to raise an issue on direct appeal. See LeGrand v. State, 540 N.W.2d 667, 668 (Iowa Ct. App. 1995). We agree with the district court that Imhoff has not shown sufficient reason for failing to previously challenge the venue of one of the counts against him.
We conclude Imhoff has failed to show he received ineffective assistance of counsel. We affirm the denial of Imhoff’s application for postconviction relief.
AFFIRMED.