Opinion
No. 3-496 / 02-0538
Filed October 15, 2003
Appeal from the Iowa District Court forPolk County, Joel D. Novak and Scott D. Rosenberg, Judges.
Anthony Wayne Barker appeals his conviction following a jury trial for domestic abuse assault, third or subsequent offense. ISSUES PRESERVED; CASE REMANDED WITH DIRECTIONS.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Roxann Ryan, Assistant Attorney General, John Sarcone, County Attorney, and George Karnas, Assistant County Attorney, for appellee.
Considered by Harris, Snell, and Brown, Senior Judges
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
The appellant/defendant, Anthony Wayne Barker, appeals his conviction following a jury trial for domestic abuse assault, third or subsequent offense. He contends the trial court abused its discretion in denying his motion for new trial, and that his counsel was ineffective in failing to preserve error on several issues. We reserve our ruling on the new trial motion issue and remand that question to the trial court. We preserve the ineffective assistance of counsel claims for further proceedings, except the claim involving the new trial issue.
I. Background and proceedings. At the appropriate times during the trial Barker moved for judgment of acquittal based on insufficiency of the evidence to submit the case to the jury. Those were denied by the trial court. The jury returned a verdict of guilty of domestic abuse assault. At a later date, in a hearing before a different judge, Barker admitted he was the same person convicted of two previous domestic assaults, thereby establishing his guilt on the charge of domestic abuse assault, third or subsequent offense, in violation of Iowa Code section 708.2A(4) (2001). At the same hearing he orally moved for a new trial based, in part, on Iowa Rule of Criminal Procedure 2.24(2)( b)(6), claiming the verdict was contrary to the evidence in the case. This was denied by the court. Barker then waived the use of a presentence investigation report and time for sentencing, and was sentenced to a mandatory indeterminate five years in prison, with a mandatory minimum sentence of one year.
The defendant now appeals, claiming the trial court abused its discretion in denying his motion for a new trial and that his trial counsel was ineffective in several respects.
II. The new trial issue. The new trial motion ground at issue here is that the verdict was contrary to the evidence. Iowa R.Crim.P. 2.24(2)( b)(6). The State's resistance initially claims Barker has not preserved error on this ground. It claims Barker's motion for judgment of acquittal challenged the sufficiency of the evidence, a different ground than asserted in the motion for new trial. There is no question the two motions presented different issues. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). Ordinarily, a defendant does not preserve error when an issue is first raised in a motion for new trial. E.g., State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002). However, the ground in rule 2.24(2)( b)(6) provides a new trial may be granted by the court "[w]hen the verdict is contrary to law or evidence." Iowa R.Crim.P. 2.24(2)(b)(6) (emphasis added). Obviously, the earliest this ground can be asserted is after the verdict has been rendered. There is no error preservation problem here. See Ellis, 578 N.W.2d at 656.
As noted earlier, the hearing on the enhanced charge, the motion for new trial, and the sentencing was held before a different judge than the one who presided over the trial and who heard all of the evidence. The defendant raises this issue in his final claim of ineffective assistance of counsel. We will discuss the claim of abuse of discretion in connection with our consideration of the ineffective assistance claim.
III. Ineffective assistance of counsel. Our review in postconviction relief proceedings that allege ineffective assistance of trial counsel is de novo. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998). To succeed in this postconviction action, Barker must demonstrate by a preponderance of the evidence his counsel (1) failed to perform an essential duty; and (2) he experienced prejudice as a result of counsel's performance. Irving v State, 533 N.W.2d 538, 540 (Iowa 1995).
The defendant claims his trial counsel was ineffective in failing to preserve error during the trial in (1) not objecting to speculative testimony as to how the victim sustained her injury; (2) in not objecting to the State's improper impeachment of defense witnesses and the improper attack on the defendant's character; and, (3) in not elaborating on his motion for new trial, or not requesting the original trial judge pass on the new trial motion.
We believe the first two grounds may involve tactical or strategic decisions of trial counsel that we should not attempt to second guess on this record. Kyle v. State, 364 N.W.2d 558, 565 (Iowa 1985); State v. Atwood, 342 N.W.2d 474, 477 (Iowa 1984). The allegations of ineffective assistance by not objecting to speculative testimony, improper impeachment of defense witnesses and improper attack on defendant's character are preserved for possible future proceedings.
In Ellis our supreme court fully discussed the standard for review by trial courts of new trial motions based on a "contrary to the evidence" ground. Ellis, 578 N.W.2d at 656-59. Ellis clearly contemplates that such motions will be considered by the judge who conducted the trial and heard the evidence. How else can the weight of the evidence be adequately evaluated and compared with the jury's verdict? See Id at 658-59 (stating court may weigh evidence and consider credibility of witnesses under weight-of-the-evidence standard); accord State v. Scalise, 660 N.W.2d 58, 65-66 (Iowa 2003) (reiterating that on considering motion for new trial based on contrary-to-the-evidence ground, district court must weigh the evidence and consider the credibility of the witnesses). In this case the judge presiding at the last hearing was apparently taken by surprise by the expedited process requested by the lawyers. He was not aware of the new trial motion prior to the hearing. We believe trial counsel should have requested that the original trial judge consider and rule on the new trial motion. Further, this is not a case in which prejudice is obviously absent; the evidence against the defendant is not overwhelming.
We remand this case to the district court so that the trial judge may consider and rule on the motion for new trial. Based on our thorough review of the record, we believe the considerable discretion of the trial court should be upheld, whether the motion is granted or denied. See First Midwest v. Corporate Finance Associates, 663 N.W.2d 888, 890 (Iowa 2003) (stating "[r]espect for the sound judgment of our trial courts leads us to rarely reverse discretionary decisions.") Therefore, if the trial court sustains the motion, a new trial is granted; if the trial court denies the motion, the judgment of the district court is affirmed.