No. 4-096 / 03-0032Court of Appeals of Iowa.
April 28, 2004.
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Shalonda Green appeals from her conviction for murder in the first degree in violation of Iowa Code sections 707.1 and 707.2
(2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano and Mike Hunter, Assistant County Attorneys, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
MAHAN, P.J.
Shalonda Green appeals from her conviction for murder in the first degree in violation of Iowa Code sections 707.1 and 707.2
(2001). Specifically, she contends: (1) the district court erred in denying her motion for judgment of acquittal based on sufficiency of the evidence, and (2) her trial counsel was ineffective. We affirm.
I. Background Facts and Proceedings.
In his six short years, Charles Green experienced many forms of abuse. He was born on February 6, 1996, to Kizzie Evans and Tu-mma Green.[1] Tu-mma was no longer involved with Kizzie when Charles was born. Charles was abused by Kizzie and was removed from her home when he was between the ages of nine and twelve months. As a result, he was placed with his maternal uncle. Two years later, Charles was again removed because of suspected abuse in that home. He was subsequently placed in a group home until October of 2001, when he was reunited with his father in Des Moines.
Tu-mma had married Shalonda before this placement. They had two children together, Tu-mma, Jr. and Tamia. Shalonda also had a child from a previous relationship, Devonti, who lived with the family.
Charles presented his family with many challenges. He acted out at school. He threw tantrums and soiled himself when he did not get his way. In addition, he could not be left alone with Tamia because he had previously touched her in a sexual manner.
On March 13, 2002, Charles had a tantrum and threw himself on the floor. In the process, he hit his head on the corner of the stairs. He sustained a large gash, and Shalonda took him to the hospital. He was examined in the emergency room where he was diagnosed as having superficial injuries on the left parietal area of his skull. The wound was stapled, and the injury was not considered serious.
On March 15, 2002, Charles was choked by his father. Tu-mma became upset with Charles after a bad report from school. Tu-mma picked him up by the neck, shook him, and then put him back down. Shocked by his own actions, Tu-mma left the house to cool off.
On March 18, 2002, the children were home for spring break. Tu-mma had left for work around 4:30 a.m., and Shalonda was the only adult supervising the children. When Charles awoke that morning, he complained of a headache. Shalonda gave him Motrin and told him to lie back down. She then departed from the house with two of the children, leaving Charles and Devonti home alone. Upon her return, Shalonda learned Charles had not stayed in his room as she had instructed. Instead, he had been running around the house. Shalonda became upset because Charles had not obeyed her orders.
Shalonda picked Charles up by the shoulders and pushed him against the wall.[2] She told him she wanted to choke him. She then took him upstairs to the bedroom to discipline him. Once in the room, Shalonda got on her knees and ordered Charles to come at her. Shalonda shoved him away when Charles did as he was told. She stated she wanted him to cry and feel bad. She became angrier when Charles ignored her. She pushed him again and told him to hit her. Shalonda continued pushing Charles until he pushed her back. Shalonda then punched him in the chest. At that point, Charles became frightened and told Shalonda he wet his pants. This caused Shalonda to become extremely upset. She repeatedly punched Charles with a closed fist and choked him. She then stood up and kicked the child. He fell backward, then forward to his hands and knees. He tried to get up. Shalonda kicked him again knocking him completely to the floor. Shalonda then paused in the assault and left the room.
Shalonda’s friend Asha Brown stopped by to visit shortly after the incident in the bedroom. She stayed and conversed with Shalonda for approximately forty minutes. They both remained in the living room of the house during the visit. After Brown left, Shalonda took a moment to call Tu-mma and then went back upstairs. She found Charles still lying on the floor.
Shalonda again kicked Charles in his side. She then left to pick up clothing and laundry in the bedrooms and bathroom. The next time she looked in the bedroom, Charles was still lying on the floor. She heard him take a deep breath and gurgle. Shalonda immediately attempted to revive him by calling his name and slapping him on the face. She then called 911.
The Des Moines Fire Department was called to the scene where they found Charles on the floor with his face up and eyes open. His heart was not beating. Their initial efforts to resuscitate him were unsuccessful. Charles was transported to Blank Children’s Hospital where doctors were able to get his heart pumping again. Although Charles’s heart was beating, doctors were unable to fully revive him. The child was pronounced clinically brain dead on March 20, 2002. He was subsequently taken off his respirator.
Shalonda was charged with murder in the first degree. During the trial, Shalonda’s motion for judgment of acquittal was denied. A jury found her guilty. Shalonda was given a mandatory life sentence. She appeals.
II. Sufficiency of the Evidence.
We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. Iowa R. App. P. 6.4; State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). We give consideration to all the evidence, not just that supporting the verdict, and view such evidence in the light most favorable to the State. State v. Adney, 639 N.W.2d 246, 250
(Iowa Ct.App. 2001). We give the State all reasonable inferences and presumptions the evidence will bear. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996).
A verdict of guilty is binding on appeal unless no substantial evidence exists to support it, or it is clearly against the weight of the evidence. State v. Shortridge, 589 N.W.2d 76, 80
(Iowa Ct.App. 1998). We will uphold a verdict if substantial evidence supports it. Heard, 636 N.W.2d at 229. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)(p). Yet, a verdict can rest on circumstantial evidence alone. Shortridge, 589 N.W.2d at 80. A jury is free to believe or disbelieve any testimony it chooses and to give as much weight to the evidence as it determines the evidence should receive Liggins, 557 N.W.2d at 269. Additionally, a jury may consider discrepancies in testimony and adopt the evidence it finds credible. State v. Phanhsouvanh, 494 N.W.2d 219, 223 (Iowa 1992). A jury’s assessment may be ignored on appeal when the testimony is so impossible, absurd, and self-contradictory that it may be deemed a nullity. See State v. Smith, 508 N.W.2d 101, 103 (Iowa Ct.App. 1993).
Shalonda claims there was insufficient evidence to support her conviction for murder in the first degree. She alleges her actions were not the cause of Charles’s death. She argues her motion for judgment of acquittal should have been granted. Alternatively, Shalonda argues the evidence was insufficient to prove she acted with malice aforethought. Instead, she contends her actions were in the heat of passion.
We have thoroughly reviewed the evidence and conclude the State provided substantial and sufficient evidence to allow the jury to determine Shalonda was guilty of murder in the first degree. On March 18, 2002, Shalonda was the only adult caretaker watching over the children. Angered by his earlier actions, Shalonda shook Charles and then escorted him upstairs to the bedroom where she repeatedly pushed, choked, punched, and kicked him. We conclude the evidence of guilt is overwhelming.
We find no merit in Shalonda’s argument that her physical abuse of Charles lacked malice aforethought. Malice aforethought is a required element of murder in the first degree. See Iowa Code §707.1 (2001). “Malice aforethought is a fixed purpose or design to do physical harm to another that exists before the act is committed. It does not have to exist for any particular length of time.” State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002) (citin State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993)). The facts of this case are sufficient to establish that Shalonda acted with malice aforethought when she assaulted Charles.
We also find no merit in Shalonda’s argument that her physical acts were committed in the heat of passion. Section 707.4
requires a defendant to act solely as a result of sudden, violent, and irresistible passion. Iowa Code § 707.4. Moreover, that sudden passion must result from “serious provocation sufficient to excite such passion in a reasonable person.” State v. Inger, 292 N.W.2d 119, 122 (Iowa 1980). There must not be “an interval between the provocation and the killing in which a person of ordinary reason and temperament would regain control and suppress the impulse to kill.” Id. Provocation sufficient to excite the passion of a reasonable person is an objective standard. Id. Our supreme court has held that a young child of eight months cannot, as a matter of law, provoke a defendant in such a way as to reduce murder to voluntary manslaughter under an objective test. State v. Taylor, 452 N.W.2d 605, 606 (Iowa 1990); see also People v. Crews, 231 N.E.2d 451, 453 (Ill. 1967) (“It is ludicrous, however, to suggest that a `reasonable person’ could have been provoked by the actions of a 2-year-old-child.”); Robinson v. State, 453 N.E.2d 280, 283-284
(Ind. 1983) (stating that wetting the bed and being unresponsive to questioning is not adequate provocation by a three-year old). We conclude Charles’s actions in the instant case did not constitute serious provocation sufficient to reduce murder to voluntary manslaughter under an objective test. We also note Shalonda paused in her assault of the child to visit with a friend who stopped by the house. The visit lasted approximately forty minutes. After the visit, Shalonda telephoned Tu-mma before going back upstairs where she at least partially continued the abuse.
We have carefully reviewed the evidence and conclude it was sufficient to show Shalonda did not act in the heat of passion. We therefore conclude sufficient evidence supports the jury’s verdict on the charge of murder in the first degree.
III. Ineffective Assistance of Counsel.
Shalonda claims she was denied effective assistance of counsel when her attorney failed to file a motion for a new trial. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999).
In order to show ineffective assistance of counsel 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). Shalonda must prove that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). “Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned.” State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). 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). We conclude the record before us is adequate to determine Shalonda’s claim of ineffective assistance of counsel.
Shalonda claims that her trial attorney was ineffective for failing to file a motion for a new trial. She asserts that if said motion had been filed, the evidence could have been reviewed under the “weight-of-the-evidence” standard as opposed to the sufficiency of the evidence standard. State v. Ellis, 578 N.W.2d 655, 658-659 (Iowa 1998). We conclude that a review of the evidence under either standard supports the jury’s verdict in this case. Therefore, Shalonda was not prejudiced, and her claim of ineffective assistance of counsel must be denied.
AFFIRMED.