No. 04-0347.Court of Appeals of Iowa.
March 31, 2005.
Decisions without published opinions. Affirmed.
Appeal from the Iowa District Court for Scott County, John A. Nahra, Judge.
The defendant appeals from his conviction and sentence of first-degree murder and willful injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William E. Davis, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Eisenhauer, JJ.
EISENHAUER, J.
Laivel Harper appeals from his conviction and sentence of first-degree murder and willful injury. He contends the district court erred in allowing testimony regarding a witness identification and in allowing hearsay statements. He further contends his counsel was ineffective in several respects. We affirm.
I. Background Facts and Proceedings.
Kenneth Cotton was shot in the chest and killed on the morning of February 27, 2003. Eyewitnesses to the shooting saw two African-American men talking in front of a duplex on West 65th Street in Davenport. One man pulled out a gun and shot the other several times. The shooter than fled down Ripley Street.
Barry Hubbard knew both Cotton and Harper. On the morning in question, Hubbard heard four shots and saw Harper fleeing the scene. Several school-aged children waiting for the bus also witnessed the shooting. Two of the children identified Harper as the shooter from a photographic array. Another child, Sean, picked two photographs from the array, one of which was a photograph of Harper. When questioned by the police officer whether he was focusing more on one photo than the other, Sean indicated he was focusing on Harper’s photo. At trial, Sean testified that he picked one photo out of the array. The officer in charge of the identification testified Sean focused on Harper’s photo, but did not identify him as the shooter.
A .380 caliber Bryco handgun was found under a tree with low lying branches on Ripley Street, within a block of the shooting, one month later. Forensic testing indicated the gun had fired the shot that killed Cotton. Two Winchester brand .380 casings found at the scene of the shooting were also identified as having been fired from the gun.[1] Four live Winchester brand bullets remained in the chamber of the weapon. A search of Harper’s mother’s home led to the discovery of a box of Winchester .380 ammunition in a bedroom. A single .380 round from a different manufacturer was also discovered in a duffel bag on the floor of the bedroom. The mother of Harper’s son believed Harper was living with his mother in the winter of 2002-03. Harper’s mother testified he visited her regularly.
A series of phone calls was made between Harper and Cotton on the morning of the shooting. Cotton’s girlfriend, Ashley Hamilton, testified Cotton’s cellular phone rang and awakened her in the early morning hours of February 27, 2003. Later, between 7 and 7:30 a.m., Cotton received another call. Thomas heard him say, “I was half asleep when you called last night. What did you say about my money?” He then said, “What? What are you talking about? You know you owe me more than that. Why are you playing with my money?” Cotton was angry and yelling. Cotton repeated, “Why are you playing with my money?” and stated, “Yeah, I’m at home.”
On March 25, 2003, Harper was charged with murder in the first degree, in violation of Iowa Code section 707.2 (2003), and willful injury, in violation of Iowa Code section 708.4(1). Harper filed a motion to suppress the photographic identifications. Following a hearing, the court denied the motion. A jury trial was held in February 2004 and the jury found Harper guilty as charged. The convictions were merged and Harper was sentenced to life imprisonment.
II. Identification.
Harper first contends the district court erred in allowing evidence regarding fourteen-year-old Sean’s identification. He argues it was a violation of his due process rights to allow Detective Houser to testify Sean focused on his photo, but did not identify him as the shooter because it implied Sean singled him out as the shooter. We review challenges to constitutional due process de novo. State v. Love, 589 N.W.2d 49, 50 (Iowa 1998).
We must first determine whether the identification procedure was impermissibly suggestive. See State v. Birch, 479 N.W.2d 284, 286 (Iowa 1991). If the procedure was impermissibly suggestive, we then determine whether, under the totality of the circumstances, the suggestive procedure gave rise to a “very substantial likelihood of irreparable misidentification.” State v. Holderness, 301 N.W.2d 733, 738 (Iowa 1981). Reliability is the linchpin in determining the admissibility of identification testimony. State v. Lasage, 523 N.W.2d 617, 620 (Iowa Ct.App. 1994). The factors to be used in assessing reliability are:
(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’s degree of attention;
(3) the accuracy of his prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.
Id. (citation omitted).
Harper argues that since there was no level of certainty in the selection of his photo, the jury should not have heard testimony about Sean’s focusing on his photo. The State argues Sean did not positively identify Harper, and that the jury so heard.
Assuming arguendo the evidence was inadmissible, we find the error harmless because Harper was not prejudiced by the testimony. Three other witnesses identified Harper as the man running from the scene. Six witnesses identified the man running from the scene as the shooter. In addition, Harper was connected to the murder weapon because the same type and brand of bullets used in the murder weapon were present in his mother’s home. Finally, Cotton received phone calls from Harper on the morning of the shooting and was angry and yelling during the calls.
III. Hearsay.
Harper next contends the court erred in admitting Ashley Hamilton’s hearsay statements regarding the content of a phone call on the morning of the shooting. We review the admissibility of this evidence for an abuse of discretion. State v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004).
Hearsay is a statement, other than one made by the declarant while testifying at trial or a hearing, offered to prove the truth of the matter asserted. Iowa R. Evid. 5.801(c). Evidence which falls within the definition of hearsay is not admissible except as permitted by constitution, statute or rule. Iowa R. Evid. 5.802. The State, as the proponent of the hearsay, has the burden of proving it falls within an exception to the hearsay rule. State v. Cagley, 638 N.W.2d 678, 681 (Iowa 2001).
Following an offer of proof, the district court admitted Hamilton’s statements to prove calls were made and at what time they were made. The court admonished the jury that the evidence was not being used to prove the truth of the matter asserted. However, the prosecutor stated the content of the calls was being introduced to show Harper had a dispute with Cotton and “that they were going to be meeting.”
We conclude the evidence was being offered to prove the truth of the matter asserted. The State wanted the jury to hear evidence that Harper owed Cotton money, the men had a dispute, and they were meeting. Had the State simply wanted to introduce evidence of the calls and the times they were made, Hamilton could have simply testified Cotton received phone calls on the morning of his murder. Hamilton could have further testified that Cotton appeared angry during the calls, and was shouting. The content of the phone calls was irrelevant and inadmissible as hearsay.
Prejudice is presumed if hearsay is admitted, unless the contrary is affirmatively established. State v. Sowder, 394 N.W.2d 368, 372 (Iowa 1986). Because there is no other evidence regarding the conversation between Cotton and Harper, we must assess whether the other evidence submitted at trial was so overwhelming as to prove the error was harmless beyond a reasonable doubt. Id. Because we conclude the other evidence, noted above, of Harper’s guilt is overwhelming beyond a reasonable doubt, we find Harper was not prejudiced by the hearsay statements.
IV. Ineffective Assistance of Counsel.
Finally, Harper contends his counsel was ineffective in several respects.
We review claims of ineffective assistance of counsel de novo State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel’s conduct. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Only in rare cases will the trial record alone be sufficient to resolve the claim. Id. “Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned.” State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct.App. 1999) (citing State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)). We find the record adequate to resolve all but two of these issues.
To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of ineffective assistance of counsel focuses on whether counsel’s performance was reasonably effective. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The defendant must show counsel’s performance fell below an objective standard of reasonableness so that counsel failed to fulfill the adversarial role that the Sixth Amendment envisions Id. A strong presumption exists that counsel’s performance fell within the wide range of reasonable professional assistance Wemark, 602 N.W.2d at 814. The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).
Additionally, our courts have ruled that trial strategy, miscalculated tactics, mistake or inexperience do not constitute ineffective assistance. Id. at 143. We may dispose of the defendant’s ineffective assistance claims under either prong Id. In order to prove the prejudice prong, the defendant must show a reasonable probability that but for counsel’s alleged errors, the result of the proceeding would have been different Strickland, 466 U.S. at 695, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
A. Hearsay.
Sam Graham, an employee of Iowa Wireless, testified for the State. Graham compiled records for two cellular phone numbers, which were admitted into evidence. He testified these records were kept in the ordinary course of business. However, one of the phone records was compiled by another unnamed person. Harper contends his counsel was ineffective in failing to object to the admission of these records because the State failed to establish the records met all the requirements for admission under the business records exception to the hearsay rule.
Iowa Rule of Evidence 5.803(6) allows the admission of records kept in the course of a regularly conducted business activity unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. In order to be admissible under the exception, the records must be (1) made at or near the time of the act, (2) made by, or from information transmitted by, a person with knowledge, (3) kept in the course of regularly conducted business activity, and (4) the regular practice of that business activity was to make a record. Iowa R. Evid. 5.803(6). These requirements must be shown by “the testimony of the custodian or other qualified witness.” Id.
Graham testified he was the custodian of the billing records for Iowa Wireless. He testified that when the numbers were dialed, they were automatically downloaded to a database recording the date, time, and duration of the call. Graham testified the records accurately reflected the incoming and outgoing calls made by the two cellular phones. We conclude the phone records meet the requirements of the business records exception. Rule 5.803(6) therefore allows for the admission of the records “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Graham testified another person compiled the records for one of the phone numbers. Specifically, the other person constructed the query that processed the records from the computer. We conclude the mere fact another employee compiled the records, which are automatically logged by a computer, does not make the record untrustworthy.
Because the records were admissible, Harper’s counsel did not breach a duty in failing to object to their admission.
B. Other crimes evidence.
Harper next contends his counsel was ineffective in failing to object to the admission of Harper’s taped interview with Detective William Thomas. On the tape, Harper and Thomas discuss that Latosha Thomas had reported Harper had stolen her vehicle. He contends this evidence is inadmissible as evidence of other crimes.
Iowa Rule of evidence 5.404(b) states in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Therefore, to be admissible, the evidence must be probative of some fact or element in issue other than the defendant’s criminal disposition. State v. Taylor, 689 N.W.2d 116, 123 (Iowa 2004).
Although the State concedes the evidence was not admitted for one of the purposes listed in 5.404(b), the purposes listed are not exclusive. State v. Bowers, 656 N.W.2d 349, 354 (Iowa 2002). The important question is whether the disputed evidence is relevant and material to some legitimate issue other than a general propensity to commit wrongful acts. Id. We conclude the evidence here was relevant and material to whether Harper was present during Cotton’s murder. Latosha Thomas’s white Durango truck was observed parked near the crime scene on the morning of Cotton’s murder. Thomas reported Harper had stolen the truck shortly before the murder. Thomas and Harper were then seen retrieving the vehicle later in the morning.
Because the evidence was admissible, Harper’s counsel did not breach a duty in failing to object to it.
C. Evidence of a shooting.
Harper also contends his counsel was ineffective in failing to object to a statement in his videotaped interview that Cotton had shot someone the week before he was killed. Harper does not cite any case law or rule of evidence to support this contention. Accordingly, we conclude his claim has been waived. Iowa R. App. P. 6.14(5).
D. Testimony of Hubbard.
During Hubbard’s cross-examination, Harper’s counsel asked about a man named Salazar. When the State objected, counsel abandoned the line of questioning. Harper contends counsel was ineffective in failing to make an offer of proof, because Cotton shot Salazar the week before his murder giving Salazar a strong motive for killing Cotton. Harper also contends counsel was ineffective in failing to sufficiently question Hubbard regarding an alleged arrest warrant and a threatened charge of attempted murder in connection with this case.
Because the record is not complete on these matters, we preserve these issues for postconviction relief.
AFFIRMED.