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holding reversal not required where irrelevant evidence erroneously admitted was ultimately cumulative and nonprejudicial
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No. 2-171 / 00-0511.
Filed July 3, 2002.
Appeal from the Iowa District Court for Polk County, LARRY J. EISENHAUER, Judge.
Heidi Anfinson appeals her conviction, judgment, and sentence for second-degree murder. AFFIRMED.
Alfredo Parrish and Maggi Moss of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ. EISENHAUER, J. takes no part.
Heidi Anfinson gave birth to a baby boy, Jacob. Fifteen days later, Jacob was found dead at Saylorville Lake. The State charged Anfinson with first-degree murder. A jury convicted her of the lesser offense of second-degree murder and this appeal followed. On appeal, Anfinson contends the police violated her constitutional right to counsel. She also challenges the district court's rulings on the admissibility of certain evidence and raises several ineffective assistance of counsel claims. We affirm.
I. Background Facts and Proceedings
The issues on appeal turn on the events of September 20, 1998, the day Jacob died. Anfinson awoke at about 5:00 A.M. to feed Jacob. Later that morning, her husband Mike left to go "four-wheeling" with friends, leaving Jacob alone with her. When he returned that afternoon, he discovered Jacob was missing and asked Anfinson where he was. Anfinson stated she did not know. The police were called.
Two officers initially responded to the call. One of the officers characterized Anfinson as "relatively calm," "emotionless," and "inanimate." The other officer described Anfinson as "[v]ery unemotional."
Later, more officers were called to the scene. They placed Anfinson in a police car and asked her to write a statement about the incident. Anfinson wrote that she bathed and fed Jacob, put him in his infant seat and slept heavily from around 1:30 to 3:30, when her husband awoke her.
Police took Anfinson to the police station around 6:00 P.M. Officers Dawson and Harvey proceeded with a tape-recorded interview. Anfinson repeatedly denied any knowledge of where the baby was. Fourteen minutes into the interview, the officers read Anfinson her Miranda rights and had her sign a written waiver of those rights. Later, Anfinson stated she was done talking to the police and the interview ended.
See Miranda v. Arizona, 384 U.S. 436, 473-76, 86 S.Ct. 1602, 1627-29, 16 L.Ed.2d 694, 723-25 (1966) (requiring police to tell persons subject to custodial interrogation the following: (1) they have the right to remain silent; (2) anything they say can be used against them in a court of law; (3) they have the right to the presence of an attorney; and (4) if they cannot afford an attorney, one will be appointed prior to questioning, if they desire.)
Following this interview, Anfinson and her husband agreed to take a polygraph test. Officer McDermott administered a second set of Miranda warnings and Anfinson signed another written waiver of her rights. She ultimately decided not to take the test.
Next, Officer Bjornson approached Anfinson and suggested she knew in her heart what really happened to Jacob. Anfinson began crying and told him she had been giving Jacob a bath when she received a phone call. She said she went on the deck to answer the call and, on her return, discovered Jacob's head in the water. Bjornson asked Anfinson if she would take the officers to Jacob. She agreed, and led police to Saylorville Lake, where the baby's body was discovered.
Police took Anfinson back to the police station where, at 11:45 P.M. she submitted to a second taped interview conducted by Officers Bjornson and Harvey. Anfinson essentially reiterated the contents of her initial written statement in the police car. She then added that she "freaked" when she saw Jacob was blue. She said she put him in the car, took him to the lake, and placed him in the water.
The State charged Anfinson with first-degree murder and child endangerment. Prior to trial, Anfinson moved to suppress her taped statements to the police. The district court denied the motion. The parties also filed several motions in limine seeking to exclude lay and expert testimony. The court partially granted the motions.
At trial the State called a host of witnesses, including Officers Harvey, Dawson, McDermott, and Bjornson, and two expert witnesses, Drs. Baden and Garrity. The defense called experts to rebut the State's theory concerning the place and manner of drowning. The jury found Anfinson guilty of second-degree rather than first-degree murder and this appeal followed.
II. Assertion of Right to Counsel
Anfinson's primary contention on appeal is that the State violated her constitutionally guaranteed right to counsel. She maintains: (A) she invoked her right to counsel during the officers' first taped interview with her, (B) a Miranda warning given during the second taped interview was inadequate, and (C) the surrounding circumstances rendered her second taped statement involuntary. We review these constitutional issues de novo. State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997).
A. Invocation of Right to Counsel . The Fifth and Fourteenth Amendments to the United States Constitution require police to clearly inform a suspect of the right to counsel during a custodial interrogation. United States v. Miranda, 384 U.S. 436, 472, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, 722 (1966). If a suspect requests counsel, police must suspend interrogation until counsel is made available. Id., 384 U.S. at 473-4; 86 S.Ct. at 1627, 16 L.Ed.2d at 723; accord Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981); State v. Ball, 600 N.W.2d 602, 604 (Iowa 1999). The request for counsel, however, must be unequivocal. Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 2357, 129 L.Ed.2d 362, 371 (1994). "If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning. . . . " Id., 512 U.S. at 461-2; 114 S.Ct. at 2356-7, 129 L.Ed.2d at 371. For example, a suspect's statement "I might need a lawyer" is insufficient to invoke the right to counsel. State v. Morgan, 559 N.W.2d 603, 608 (1997). Similarly, a suspect's inquiry as to whether the suspect "should have an attorney" is insufficient to invoke the right. State v. Johnson, 318 N.W.2d 417, 430 (Iowa 1982). Accord State v. Washburne, 574 N.W.2d 261, 267 (Iowa 1997). And, a suspect's question "is my lawyer here?" is also insufficient to invoke the right. State v. Brown, 589 N.W.2d 69, 73 (Iowa Ct.App. 1998), overruled on other grounds by State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001).
At oral arguments, the State suggested the first interview was not a custodial interrogation. We assume without deciding that it was. See State v. Morgan, 559 N.W.2d 603, 607 (Iowa 1997).
The pertinent dialogue between Anfinson and Officers Dawson and Harvey was as follows:
Lt. Dawson: Okay, Heidi, it's 6:42 p.m. again on September 20th. I'm going to advise you of your rights. Okay? Do you understand what that is?
Heidi Anfinson: Does that mean . . .?
Lt. Dawson: Pardon me?
Heidi Anfinson: What's that going to mean?
Lt. Dawson: That's going to mean that, uh, we're going to treat this as a criminal matter and we're going to advise you of your rights to an attorney. I'll read them to you. If you have any questions, you can ask. If you want an attorney after I've read those to you, then you can certainly have one. Okay?
Heidi Anfinson: Okay.
Lt. Dawson: All right. Heidi, you have the right to remain silent. Do you understand that? You have to speak up.
Heidi Anfinson: Oh, yes.
Lt. Dawson: Anything you say can be used against you in court. Do you understand that?
Heidi Anfinson: Yes.
Lt. Dawson: You have the right to talk to a lawyer for advice before we ask you any questions and to have him or her with you during questioning. Do you understand that?
Heidi Anfinson: Yes.
Lt. Dawson: If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.
Heidi Anfinson: Yes.
Lt. Dawson: If you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Do you understand this?
Heidi Anfinson: Yes.
Lt. Dawson: Okay. I'm going to ask you to sign that you want to talk to us.
Heidi Anfinson: Now why am I signing, if . . .?
Sgt. Doug Harvey: When you're signing that, you're just stating you understood those rights . . .
Heidi Anfinson: Oh, okay.
Sgt. Doug Harvey: . . . and that you want to talk to us.
Heidi Anfinson: Well what if I do want a lawyer? I mean I don't know what I should do in a situation like this.
Lt. Dawson: If you want a lawyer, all you have to say is: I want a lawyer.
Heidi Anfinson: Okay. Do I get one that I want?
Lt. Dawson: __________
Heidi Anfinson: I mean I . . .
Sgt. Doug Harvey: The reason we read you these rights is we . . .
Heidi Anfinson: `Cause I wanted . . .
Sgt. Doug Harvey: . . . we may ask you some questions and somehow you were involved in this and you incriminated yourself.
Heidi Anfinson: Yes.
Sgt. Doug Harvey: So we want to make that be allowable in court, okay?
Heidi Anfinson: Okay.
Sgt. Doug Harvey: And that's the purpose of this, `cause we want to ask you . . . What I told you earlier, we're going to have to ask you some hard questions. Okay? Before we ask you these hard questions, we want to make sure that you understand what your Miranda rights are.
Heidi Anfinson: Okay.
Sgt. Doug Harvey: All right?
The district court found Anfinson never asked for an attorney during this exchange. On our de novo review of the interview transcript and accompanying tape, we agree. At best, Anfinson inquired about whether she should get an attorney. As noted, such an inquiry does not amount to an unequivocal request for counsel. Washburne, 574 N.W.2d at 267; Johnson, 318 N.W.2d at 430.
In reaching this conclusion, we have considered Anfinson's assertion that the officers prevented her from unequivocally requesting counsel. The tape recording belies this assertion. When Officer Dawson began reading Anfinson her Miranda rights, he repeatedly asked her if she understood her rights and Anfinson repeatedly answered "[y]es." Dawson specifically explained that, if Anfinson wanted an attorney, she could "certainly have one." In response to a question from her, Dawson stated, "[i]f you want a lawyer, all you have to say is: I want a lawyer."
It is true that when Officer Harvey entered the conversation, all three voices overlapped. However, given the tenor and content of the prior conversation concerning Anfinson's constitutional rights, we cannot conclude the overlap reflected anything more sinister than the normal nuances of a three-way conversation. Accordingly, we reject Anfinson's assertion that the police officers unconstitutionally impeded her efforts to invoke her constitutional right to counsel.
B. Adequacy of Miranda Warning During Second Formal Interview . Anfinson's second taped interview began at 11:45 p.m. Before beginning the questioning, Officer Bjornson had the following exchange with Anfinson:
SPO Rahn Bjornson: Okay, Heidi, this is just a continuation of, you know, the night. I wanted to remind you that you still . . . Remember what your rights are? `Cause you've been Mirandized twice already. I need you to answer yes or no.
Heidi Anfinson: Yes.
SPO Rahn Bjornson: Okay, so you-you do remember.
Heidi Anfinson: Yeah.
Following this warning, Anfinson proceeded to explain what happened to Jacob. Before trial, her attorney moved to suppress this statement. The district court denied the motion.
Anfinson contends Officer Bjornson's summary reference to her Miranda rights was inadequate. We disagree. Anfinson was twice given complete Miranda warnings earlier that day, once in connection with the first taped interview and a second time in connection with the polygraph examination she never took. See Morgan, 559 N.W.2d at 607 (fresh Miranda warnings unnecessary where less than three hours had elapsed since original Miranda warnings given). Anfinson signed written waivers both times. See Countryman, 572 N.W.2d at 560. Under these circumstances, Officer Bjornson's summary reference to her Miranda rights was adequate. Id.
C. Voluntariness of Second Statement . Anfinson also contends her statement to Officers Bjornson and Harvey was involuntary, given "the prolonged lack of sleep from which she suffered, the confusion she expressed in her earlier interrogation and the intensity of questioning to which she had been subjected for several hours earlier the same evening." Again, we disagree. The test for voluntariness is whether the "totality of circumstances demonstrates that the statement was the product of an essentially free and unconstrained choice, made by the defendant at a time when his will was not overborne nor his capacity for self-determination critically impaired." State v. Vincik, 398 N.W.2d 788, 790 (Iowa 1987). A "necessary predicate" to a finding of involuntariness is coercive police conduct. Id.
The State argues Anfinson failed to preserve this issue for review. We disagree. Anfinson argued before the district court that she "labored under extremely emotional conditions" and "[c]are of a newborn deprived her of much needed sleep." Although the district court did not explicitly address this particular argument, the court did rule adversely on her motion to suppress. We conclude the adverse ruling was sufficient to preserve error. See State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).
That predicate is lacking here. The second interview lasted eighteen minutes. During the interview, Anfinson did not ask to have the questioning stopped for any reason. She acknowledged she was comfortable and that she had been given pop, cigarettes, and a blanket. She also said she believed Bjornson had been truthful with her throughout the day and conceded Officer Dawson was nice to her during the first interview. Absent coercive police conduct, we cannot conclude Anfinson's lack of sleep and the emotional circumstances surrounding the day rendered her statement involuntary. Contrast Vincik, 398 N.W.2d at 793 (noting confession "was the product of tough police interrogation and a mind enfeebled by brain damage, a surgical procedure, fatigue, medication and drugs.").
III. Evidentiary Rulings
Anfinson raises four challenges to evidentiary rulings of the district court. First, she takes issue with the district court's admission of testimony from Officer McDermott that his wife probably would have been "hysterical" under similar circumstances. Second, she challenges Officer Dawson's statement that he did not believe Anfinson. Third, Anfinson maintains the district court should not have admitted evidence of her mental state. Finally, she challenges the court's admission of certain expert witness testimony. We review these rulings for an abuse of discretion. McElroy v. State, 637 N.W.2d 488, 493 (Iowa 2001).
A. Officer McDermott's Testimony . Officer McDermott testified concerning his observation of Anfinson's demeanor and his wife's probable reaction under similar circumstances. The relevant testimony was as follows:
Q: What observation did you make about Heidi Anfinson's demeanor during this conversation?
A: I was surprised by the lack of emotion.
Q: What do you mean by that?
A: Well, I — during this whole interview with Heidi I was trying to figure out what my wife would feel like or how she would be acting in a situation like this.
[DEFENSE COUNSEL] Your honor, I am going to object to this for the reason it's narrative about issues that aren't probative in this case.
THE COURT: Overruled. You may continue with your answer.
A. And I thought that my wife would have probably been hysterical.
[DEFENSE COUNSEL]: Again, Your Honor, what one person would do and another person may not is not relevant. This calls for an opinion, and absolutely speculative.
THE COURT: Ask another question, if you would.
Anfinson contends Officer McDermott's reference to his wife's reaction was irrelevant, speculative, highly prejudicial, and improper opinion testimony. We agree with Anfinson that this testimony had no bearing on whether Anfinson committed murder and, therefore, was irrelevant and inadmissible. See Iowa R. Evid. 5.401 (evidence relevant "when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."); 5.402 (irrelevant evidence inadmissible). However, admission of irrelevant evidence does not mandate reversal unless prejudice results. State v. Rodriquez, 636 N.W.2d 234, 244 (Iowa 2001).
"Prejudice" in this context is distinct from "prejudice" under Rule 2.403. Here, the focus is on the outcome of trial. State v. Nims, 357 N.W.2d 608, 609 (Iowa 1984) (stating there is no prejudice when "the record shows that the challenged evidence did not impact on the jury's finding of guilt."). Accord Rodriquez, 636 N.W.2d at 244 (inquiring whether other evidence overwhelmingly establishes the defendant's guilt); State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994) (same). Under rule 2.403, in contrast, the focus is on whether relevant evidence should nevertheless be excluded because it creates a danger of "unfairprejudice." Cf. United States v. Gibbs, 182 F.3d 408, 430 (6th Cir. 1999) (comparing prejudice as used in federal rule of evidence 403 with prejudice under harmless error doctrine set forth in rule 52(a)).
Anfinson claims prejudice under rule 5.403, a claim we need not reach in light of our determination that the challenged evidence is irrelevant. See Iowa R. Evid. 5.403 (permitting exclusion of "relevant" evidence if the probative value is substantially outweighed by the danger of unfair prejudice).
The State maintains Anfinson has waived error on her assertion of this type of prejudice by failing to argue it in her brief. We agree Anfinson has not addressed the type of prejudice associated with a harmless error analysis but only the Rule 5.403 type of prejudice. We nevertheless conclude her references to the irrelevancy of the evidence and the consequent prejudice she sustained are sufficient to preserve error.
The test for the outcome-determinative type of prejudice at issue here is whether "it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice." State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998); State v. Wixom, 599 N.W.2d 481,484 (Iowa Ct.App. 1999). In applying this test, our highest court has asked whether "the same evidence is otherwise supplied by the defendant or is made overwhelmingly clear in the record." State v. Trudo, 253 N.W.2d 101, 108 (Iowa 1977). Cf. State v. Ince, 21 F.3d 576, 583 (4th Cir. 1994) (noting inquiry under federal rule of evidence 52(a) is whether court believes it "highly probable that the error did not affect the judgment"). Essentially, this is a cumulative evidence test. Nims, 357 N.W.2d at 609. If similar evidence is already in the record, the fact that additional evidence is erroneously admitted will be deemed non-prejudicial. Id.
Anfinson does not argue the error in admission of Officer McDermott's testimony was of constitutional magnitude, which would trigger a different test and a more stringent burden of proof. See State v. Traywick, 468 N.W.2d 452, 455 (Iowa 1991) (stating alleged error must "go to the heart of the case" to be of constitutional magnitude).
Anfinson correctly points out that Officer McDermott's wife's possible reaction to a missing baby was nowhere else in the record. However, McDermott's testimony concerning his wife's response was merely an elaboration, albeit an irrelevant elaboration, on Anfinson's lack of emotion. The record is replete with unchallenged references to her lack of emotion. Therefore, McDermott's testimony concerning his wife's possible reaction was cumulative and did not injuriously affect Anfinson's rights. See Williams, 574 N.W.2d at 298.
For the same reason, we are not persuaded by Anfinson's contention that the weight of this irrelevant evidence was enhanced because it came from "a police officer, a person who is perceived by society to be honest, truthful, and knowledgeable. . . ." Three other police officers testified to Anfinson's lack of emotion without objection. Officer McDermott's occupation, therefore, did not render this evidence prejudicial.
In sum, we conclude the unfortunate admission of this irrelevant testimony does not mandate reversal. See Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000) (stating despite discretionary nature of trial court's decision to admit evidence, reversal mandated where jury allowed to consider plainly irrelevant and prejudicial evidence) (emphasis added); State v. Stuart, 241 Iowa 1004, 1005, 43 N.W.2d 702, 703 (1950) (stating conviction will not be reversed because non-prejudicial evidence was admitted).
B. Officer Dawson's Testimony . Officer Dawson testified he did not believe Anfinson. The exchange was as follows:
Q: All right. Now, you suggested some scenarios to her, is that correct?
A: That's correct.
Q: Did you believe the scenarios?
A: Not really, no.
Q: Well, why did you-why did you suggest some scenario in there, like roll over, drowning in the tub?
A: Our main concern at that point was finding the baby. We needed to find that baby, and, in my opinion, we needed to find him right away.
Q: All right. Did you believe what she told you?
A: No.
DEFENSE COUNSEL: Your Honor, just-move to strike, Your Honor, for the reasons I didn't have the opportunity to interpose and objection.
The Court: What's the objection?
DEFENSE COUNSEL: For the further reason it calls for an opinion and conclusion of this witness, period.
The Court: All right. I will overrule the objection. The answer may stand.
Anfinson contends Dawson's statement that he did not believe her was an inappropriate comment on her culpability and should have been excluded. We agree. See State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986). However, this evidence was also cumulative and, therefore, non-prejudicial. See State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct.App. 1999) (stating cumulative evidence cannot be said to injuriously affect the complaining party). Officer Harvey provided virtually identical testimony without objection. The dialogue with him was as follows:
Q. And so, Sergeant Harvey, you have conducted a number of interviews, have you not, in your career as a police officer?
A. Yes, sir.
Q. And at that point when you and Lieutenant Dawson are talking to her, do you feel that she is telling you the truth?
A. I believe she is being deceptive. I do not believe she is telling us the truth.
As this substantially similar testimony was already in the record, we conclude the admission of Officer Dawson's opinion concerning Anfinson's credibility does not mandate reversal. Cf. State v. Sowder, 394 N.W.2d 368, 372 (Iowa 1986) (reversing and remanding for new trial after finding evidence was not cumulative).
C. Evidence of Anfinson's Mental State . The State filed a motion in limine seeking to exclude "all evidence of Anfinson's mental status or state of mind, including but not limited to insanity, diminished responsibility, or intoxication." The district court granted the motion, ruling "[n]one of the witnesses in the trial should make any reference to the Defendant's mental state." As noted, numerous State witnesses testifying at trial referred to Anfinson's emotional state, without objection. Anfinson now contends this testimony should have been excluded.
The State responds that Anfinson did not preserve error on this issue because her attorney did not object to the evidence as it was introduced. We agree. Although a ruling on a motion in limine may obviate the need for an objection in certain cases, this is not such a case. Cf. State v. Daly, 623 N.W.2d 799, 800 (Iowa 2001) (ruling was sufficiently definitive as to avoid necessity for objection at trial). The court's ruling prohibited any witness from making reference to Anfinson's mental state. If defense counsel believed the State was violating this order, the means for bringing the claimed violation to the court's attention was via an objection, request for jury admonition, or motion for mistrial. See State v. Davis, 240 N.W.2d 662, 663-4 (Iowa 1976). In the absence of such an objection, we have nothing to review. D. Expert Testimony . Anfinson next contends the court should have excluded certain testimony of the State's expert witnesses. First, she claims the court should have excluded Dr. Baden's testimony concerning one-celled plants known as diatoms that he opined were important to the scientific diagnosis of drowning. Second, she contends Dr. Garrity's testimony as to the place of death, the tests he used to make the determination, his opinion concerning alcohol as a factor in the death, and his opinion concerning a spinal cord and brain injury all should have been excluded. Third, she argues that both experts inappropriately commented on her guilt.
For example, the first two officers at the scene testified without objection to Anfinson's lack of emotion.
Anfinson argues in the alternative that we should consider this issue under the rubric of an ineffective assistance of counsel claim if we determine error was not preserved. We consider this argument in Part IV of this opinion.
With respect to the first two contentions, we agree with the State that Anfinson did not preserve error by obtaining a definitive pre-trial ruling on motions in limine or by objecting at trial. See Daly, 623 N.W.2d at 800. Therefore, we decline to reach the merits.
Anfinson also raises this issue as an ineffective assistance of counsel claim. See Part IV.
Anfinson did, however, obtain a definitive ruling on the third question of the extent to which the State could elicit testimony relating to her culpability. See State v. Oppedal, 232 N.W.2d 517, 524 (Iowa 1975) (precluding witness from giving a direct opinion on a person's guilt or innocence or criminal responsibility). Therefore, we will address the merits of this question.
1. Homicide Testimony . The district court ruled "Dr. Baden may offer his opinion that the victims (sic) death was a homicide. He should not testify that the death was a murder." In accordance with this ruling, Dr. Baden testified that, in his opinion, "the manner of death is homicide. . . .". The question here is whether this was an impermissible comment on Anfinson's guilt. We conclude it was not.
Homicide is defined as "[t]he killing of one human being by the act, procurement, or omission of another." Black's Law Dictionary 734 (6th ed. 1999). While it is a necessary ingredient of certain crimes, including murder, it is a neutral term that "pronounces no judgment on its moral or legal quality." Id.; see also State v. Scott, 522 S.E.2d 626, 632 (W.Va. 1999); Sippio v. State, 714 A.2d 864, 875 (Md. 1998); People v. Mahon, 395 N.E.2d 950, 959 (Ill. 1979).
After opining that the manner of Jacob's death was homicide, Dr. Baden went on to state, "but when we as medical examiners use the term homicide on the death certificate, it doesn't have necessarily an indication of criminality. That is, homicide could be — is death caused by somebody else." He elaborated as follows:
The point I am trying to say is the medical examiner isn't trying to make a jury decision or a legal decision as to whether there is a criminal activity involved. It's just —
Q. It's a neutral term?
A. It should be seen as a neutral term, death at the hands of another.
Dr. Baden's testimony comports with the dictionary definition of homicide and does not amount to an impermissible comment on Anfinson's guilt. Accordingly, the district court did not abuse its discretion in admitting this testimony. For the same reason, we reject Anfinson's challenge to Dr. Garrity's virtually identical testimony.
2. Dr. Baden's Testimony-Bathtub Drowning . Dr. Baden testified, "I have never seen anybody — a child drown in that kind of a tub. No one at 15 days of age." Anfinson contends this statement also was an inappropriate comment on her guilt. We disagree. Dr. Baden was called to opine on where the baby died. He opined that the baby died in the lake. His further elaboration that the baby did not die in the tub does not constitute an impermissible comment on Anfinson's guilt. See State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990) (upholding testimony concerning ultimate fact which jury must determine). Accordingly, the district court did not abuse its discretion in admitting the testimony.
We conclude Anfinson preserved error on this issue. It is true the ruling on the motion in limine only excluded police officers' opinions on whether the baby drowned in the tub. However, when Dr. Baden testified, defense counsel interposed an objection on the ground the answer appeared to be invading the province of the jury. The court ruled on that objection, thereby preserving error. Contrast State v. Rivera, 614 N.W.2d 581, 584 (Iowa 2000).
IV . Ineffective Assistance of Counsel Claims
Anfinson raises six ineffective assistance of counsel claims. She asserts her trial attorney failed to: (1) investigate or pursue an insanity defense, (2) pursue an insanity or diminished responsibility defense prior to the suppression hearing, (3) seek suppression of Anfinson's written statement and the first portion of the first police interview, (4) object to evidence concerning her mental state, (5) obtain a sufficient ruling on a motion in limine and properly object to expert witness testimony, and (6) raise the possibility of an Alford plea.
As ineffective assistance of counsel claims implicate the Sixth Amendment to the United States Constitution, our review is de novo. State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001). We have expressed a preference for preserving these claims for postconviction relief proceedings to develop the record and to afford trial counsel a chance to answer the allegations. State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct.App. 1998). The first four ineffective assistance of counsel claims require preservation on these grounds.
We preserve the fourth claim, failure to object to evidence of Anfinson's mental state, for the additional reason that the district court's order precludes admission of more than evidence supporting the notice defenses of insanity, diminished responsibility, and intoxication. The order precludes any witness from making "any reference to the Defendant's mental state."
We also preserve a portion of Anfinson's fifth claim on these grounds. As noted, Anfinson did not obtain a pre-trial ruling on or object at trial to the admission of: (1) Dr. Baden's testimony concerning diatoms and (2) Dr. Garrity's testimony as to the place of death, the tests he used to make the determination, his opinion concerning alcohol as a factor in the death, and his opinion concerning a spinal cord and brain injury. Therefore, we preserve these two issues relating to Anfinson's fifth claim.
The sixth ineffective assistance of counsel claim, relating to counsel's asserted failure to request an Alford plea, may be resolved on direct appeal. See State v. Mayberry, 411 N.W.2d 677, 686 (Iowa 1987) (rejecting ineffective assistance of counsel claim on direct appeal after finding insufficient merit in the substantive legal claims). The record reflects that the State offered Anfinson a chance to plead guilty to a crime that required three separate acts of child endangerment. Anfinson declined the offer because she could not establish a factual basis for three acts. On appeal, she contends her attorney should have inquired about having her enter an Alford plea instead, a plea she maintains would have obviated the need for her to state a factual basis. We discern a number of reasons to reject this contention, but cite only one.
An Alford pleais a variation of a guilty plea where the defendant does not admit participation in the acts constituting the crime but consents to the imposition of a sentence. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970); State v. Burgess, 639 N.W.2d 564, 567 n. 1 (Iowa 2001).
All pleas, including Alford pleas, must be supported by a factual basis. See State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). Trial counsel who allows a defendant to plead guilty to a crime without a showing of a factual basis will be found ineffective. Id . This case turned on one alleged act of child endangerment, the drowning of Jacob. Trial counsel was not ineffective in failing to inquire about a plea that would have required a showing of three separate acts of child endangerment.
V. Disposition
We affirm Anfinson's conviction, judgment, and sentence for second-degree murder.
AFFIRMED.
VOGEL, P.J., concurs; MILLER, J., concurs in part and dissents in part.
I concur regarding the trial court's evidentiary rulings, but think there are additional reasons two of the rulings were not erroneous. I dissent from the part of the majority opinion that preserves the fourth claim of ineffective assistance of trial counsel for a possible postconviction relief proceeding.
Officer McDermott's testimony concerning his wife's hypothetical reaction was not prejudicial because it states nothing more than what jurors or others would believe without the testimony, that a parent whose child was unexpectedly missing would normally be emotional rather than devoid of emotion. Officer Dawson's challenged testimony was relevant to explain why the officers pursued questioning the defendant, questioning that continued to focus on her as a suspect, rather than abandoning their questioning of her and shifting their focus elsewhere.
The State's motion in limine concerning evidence of the defendant's "mental status" asserted and was based on the fact she had not filed notice of a defense of insanity, diminished responsibility, or intoxication. The trial court's ruling noted and relied on her indication that she did "not intend to offer any evidence regarding [those] defenses." When properly viewed in context, the ruling merely precluded evidence supporting "notice defenses" that had not been asserted, and did not preclude otherwise relevant evidence concerning the defendant's emotional state. This claim of ineffective assistance is without merit and we should address and reject it rather than preserving it.