No. 5-385 / 04-0444Court of Appeals of Iowa.
Filed August 17, 2005
Appeal from the Iowa District Court for Johnson County, Larry J. Conmey, Judge.
Leggett appeals his conviction of third-degree sexual abuse and simple assault claiming the district court erred by refusing to allow him to impeach a witness and refusing to merge two charges.AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Alfred Leggett, Anamosa, pro se.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, J. Patrick White, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
VAITHESWARAN, J.
On appeal from a judgment and sentence for third-degree sexual abuse and simple assault, Alfred Leggett challenges (1) the district court’s refusal to allow him to impeach a police officer with an unrelated court ruling and (2) the district court’s refusal to merge the sentences for simple assault and third-degree sexual abuse. In a pro se filing, Leggett also raises several other issues. We affirm.
I. Background Facts and Proceedings
Iowa City police officers Paul Batcheller and Scott Miller heard a woman scream for help. The officers traced the screams to a basement apartment with an open and illuminated bedroom window. Inside, they saw a man, later identified as Leggett, having sexual intercourse with a woman, later identified as Leona Manning. Leggett was holding Manning’s hands above her head while Manning screamed at him to stop and let her go.
The officers instructed Leggett to stop. Leggett initially did not. Batcheller prepared to break down the door but as he was about to do so, Manning let him into the apartment. Leggett was taken into custody.
At trial, Officer Batcheller testified that Manning was “crying hysterically” when they first encountered her. Batcheller asked her what happened. She told him Leggett slapped her and said he was going to have sex with her, which she resisted. Leggett then climbed on top of her and had forced sex with her. When she screamed, Leggett put his hand over her mouth and continued having intercourse with her.
Manning wrote and signed a statement recounting this version of events. The statement was not admitted at trial.
At trial, Manning essentially recanted her prior statement. She testified for the defense that Leggett “gently” shook her to wake her up, and asked her “for some.” Manning stated that Leggett climbed on top of her and kept asking her “for some,” but she resisted his advances. She stated she was not insulted or offended by the contact he made with her and never had intercourse with him that night.
Despite Manning’s recantation, the jury found Leggett guilty of third-degree sex abuse and simple assault. Following post-trial rulings and imposition of judgment and sentence, Leggett appealed.
II. Evidentiary Ruling
At trial, Leggett sought to impeach Officer Batcheller with a ruling from an unrelated case finding Batcheller “certainly not credible.” When the State’s objection was sustained, Leggett made an offer of proof. The district court again sustained the State’s objection, determining the prior ruling was not relevant to the present case.
On appeal, Leggett claims the evidence is admissible under Iowa Rule of Evidence 5.608(b). In pertinent part, that rule states:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility . . . may not be approved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or truthfulness.
Iowa R. Evid. 5.608(b). The State agrees Rule 5.608(b) is the proper vehicle for analyzing this evidentiary issue but, citing State v. Green, 592 N.W.2d 24 (Iowa 1998), argues error was not preserved. We agree with the State.
In Green, as in this case, a defendant sought to introduce an unrelated ruling impugning the credibility of the police officer who testified against the defendant. The trial court excluded the evidence. On appeal, the Iowa Supreme Court affirmed the district court on the ground that Green did not properly preserve error. The court reasoned:
We have said that error is not preserved without an offer of proof “unless the whole record makes apparent what is sought to be proven.” [State v. Lange, 531 N.W.2d 108, 114 (Iowa 1995)]. Here, we do not know from the offer of proof whether [the officer] would have admitted that the statements he made in the warrant application in the other case were untruthful or misleading. Nor is there anything in the record which makes clear what his testimony would have been. Without knowing what [the officer’s] testimony would have been if he had been cross-examined within the bounds of rule 608(b), we have no way of determining whether any abuse in not permitting the cross-examination was prejudicial and, therefore, constituted reversible error.
Green, 592 N.W.2dat 28.
Here, as in Green, trial counsel laid a foundation for admission of the prior ruling but did not ask Officer Batcheller whether he told the truth in the prior case. Pursuant to the holding of Green, we conclude he did not preserve error.
Anticipating this holding, Leggett also raises the evidentiary issue as an ineffective assistance of counsel claim. Our review of this constitutional claim is de novo. Ledezma v. State, 626 N.W.2d. 134, 141 (Iowa 2001).
With respect to the sex abuse count, Leggett cannot establis Strickland prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (stating court will determine whether (1) counsel’s performance was deficient, and whether (2) the deficient performance prejudiced the defense). Officer Batcheller’s testimony was corroborated in pertinent part by the testimony of Officer Miller. Miller stated he heard Manning scream for help and saw Leggett lying naked on top of Manning and holding Manning’s hands down. In light of this testimony, there was not a reasonable probability of a different outcome even if Leggett had been allowed to impugn Officer Batcheller’s testimony with the prior court ruling.
Turning to the assault count, all the evidence pertaining to this count came from Officer Batcheller. The State, therefore, asks us to preserve the claim for postconviction relief because, in its view, “a prejudice analysis is difficult to perform at this stage without knowing whether Officer Batcheller would have been impeached.” We agree and preserve for postconviction relief the question of whether trial counsel was ineffective in failing to properly preserve error on impeachment of Officer Batcheller, only as it relates to the assault count.
III. Merger
Leggett argues the court erred in failing to merge his assault and sex abuse charges. Iowa Code § 701.9 (2003). The State counters that the offenses were based on two separate incidents, rendering merger inappropriate. See State v. Walker, 610 N.W.2d 524, 527 (Iowa 2000) (stating when a factual basis exists for two separate charges the court is authorized to impose a sentence for each crime).
In her closing argument, the prosecuting attorney stated the assault charge was based on “the initial slap that Leona — Leona Manning told Officer Batcheller that the defendant awakened her with.” The attorney continued,
[e]verything else that went from there on was part of the sexual abuse or the sexual assault itself. The holding her down. The putting her (sic) hand over her mouth. What ever happened after that. But the State believes that this in of itself comprises a separate crime.
Based on this statement and Officer Batcheller’s testimony that he saw Leggett “slap [Manning] across the face,” we conclude the district court did not err in declining to merge theassault charge with the third-degree sex abuse charge.[1]
IV. Other Issues
In a pro se supplemental brief, Leggett argues (1) his trial attorney was ineffective in not filing a “motion of discovery,” (2) his trial attorney did not establish that “police officers didn’t have a search warrant,” and (3) the district court failed to “suppress involuntary confession” made to the police officers. Based on our review of the record, we are not persuaded by these contentions.
Leggett also filed a pro se reply brief and supplemental reply brief containing additional issues. We typically do not address claims raised for the first time in a reply brief. Sun Valley Lake Ass’n v. Anderson, 551 N.W. 621, 642 (Iowa 1996). We decline to consider these issues.
V. Disposition
We affirm Leggett’s judgment and sentence for third-degree sexual abuse and assault and preserve for postconviction relief proceedings his assertion that trial counsel was ineffective in failing to properly preserve error on his impeachment claim as it relates to the assault count.
AFFIRMED.