No. 4-562 / 03-0294.Court of Appeals of Iowa.
September 9, 2004.
Appeal from the Iowa District Court for Linn County, William J. Thomas, Judge.
Melody Janine Stackhouse appeals her conviction, following jury trial, for theft in the second degree, in violation of Iowa Code sections 714.1(1) and 714.2(2) (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Harold Denton, County Attorney, and Susan Nehring, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
MILLER, J.
Melody Janine Stackhouse appeals her conviction, following jury trial, for theft in the second degree, in violation of Iowa Code sections 714.1(1) and 714.2(2) (1999). She contends her trial counsel rendered ineffective assistance. We affirm her convictions and preserve her claims of ineffective assistance for a possible postconviction action.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel’s error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). In order to prove prejudice, the defendant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.”Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Stackhouse first claims her trial counsel was ineffective for failing to object to evidence of other crimes, wrongs, or acts, and for failing to request a limiting instruction regarding the evidence once it was presented. Specifically at issue is the testimony of J. Douglas Hansel who was the manager of corporate security at Rockwell Collins, another employer of Stackhouse. Hansel testified regarding the company’s belief that Stackhouse misappropriated company gift certificates while she was employed by Rockwell. Stackhouse argues this testimony should have been objected to on relevance grounds and because it was inadmissible under Iowa Rule of Evidence 5.404(b) as evidence of other crimes, wrongs, or acts used to show character in conformity therewith. Stackhouse further contends her counsel was ineffective for not requesting a limiting or cautionary instruction after the challenged evidence was admitted in order to lessen any potential prejudice.
Finally, in a pro se brief, Stackhouse raises an additional claim of ineffective assistance of trial counsel. She claims counsel was ineffective in not objecting to an unreasonable limitation on the time for trial allegedly imposed by the trial court, thus preventing her from presenting evidence important to her defense.
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 103
(Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). “[W]e preserve such claims for postconviction relief 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.” Biddle, 652 N.W.2d at 203.
As set forth above, Stackhouse can succeed on her ineffectiveness claims only by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark, 602 N.W.2d at 814; Hall v. State, 360 N.W.2d 836, 838
(Iowa 1985). No record has yet been made before the trial court on these issues, trial counsel has not been given an opportunity to explain his actions, and the trial court has not ruled on these claims. We note that the State urges the record is not adequate to deal with Stackhouse’s pro se claim of ineffective assistance on direct appeal and suggests it should be preserved for a possible postconviction proceeding. Under these circumstances, we pass these issues in this direct appeal and preserve them for a possible postconviction proceeding. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
Accordingly, we affirm Stackhouse’s conviction and preserve the specified claims of ineffective assistance of trial counsel set forth herein for a possible postconviction relief proceeding.
AFFIRMED.