STATE v. LAW, 710 N.W.2d 257 (Iowa App. 2005)

No. 5-734 / 04-1090Court of Appeals of Iowa.
Filed November 23, 2005

Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge.

The defendant appeals from convictions following a jury trial, contending defense counsel was ineffective. AFFIRMED.

Linda Del Gallo, State Appellate Defender and Nan Jennisch, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, William E. Davis, County Attorney, and Robert Cusack, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.

SACKETT, C.J.

The defendant-appellant, Ruth Ann Law, appeals from her convictions, following a jury trial, for first-degree theft and ongoing criminal conduct. She contends defense counsel was ineffective in failing to object to evidence she failed a polygraph test, in failing to object to cross-examination that elicited evidence of other crimes, and in failing to present evidence to explain her polygraph test failure and subsequent statement to the examiner. On de novo review, we affirm.

Claims of ineffective assistance of counsel are derived from the Sixth Amendment of the United States Constitution Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 691-93 (1984). Our review is de novo. State v. Fintel, 689 N.W.2d 95, 100 (Iowa 2004). We normally preserve ineffective-assistance-of-counsel claims for postconviction relief actions. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). We will resolve them on a direct appeal of the criminal conviction in two situations:

If the record on appeal shows . . . that the defendant cannot prevail on such a claim as a matter of law, we will “affirm the defendant’s conviction without preserving the ineffective-assistance-of-counsel claims.” Conversely, if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant’s conviction and remand for a new trial.

State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citations omitted). We preserve other claims for postconviction proceedings “where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant’s claims.” State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). “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).

The defendant submitted to a polygraph examination after signing “a Miranda form and also the stipulation.” When the examiner testified at trial, defense counsel raised no objections. The defendant contends counsel was ineffective in not objecting to testimony about the test results and her statement after the examination. She also contends counsel was ineffective in not offering evidence concerning her mental and emotional state at the exam, which could explain the reason for failing the exam.

We conclude the record is inadequate to address these contentions. Therefore we preserve them for possible postconviction proceedings where the factual record may be developed more fully and defense counsel may respond to the contentions.

The defendant elected to testify after being advised by counsel it would subject her to cross examination by the State. During cross examination, the defendant testified to other crimes. Defense counsel did not object. The defendant contends counsel was ineffective in not objecting to her testimony concerning prior bad acts.

The record is inadequate for us to address this claim. Therefore we preserve it for possible postconviction proceedings where the factual record may be developed more fully and defense counsel may be given the opportunity to respond.

AFFIRMED.