Summary
finding defendant was not prejudiced by evidence showing him in prison garb and handcuffs where the jury already knew the defendant was in custody when the photos were taken because "[n]o prejudice can result from seeing that which is already known" (quoting Estelle v. Williams , 425 U.S. 501, 507 (1976) )
Summary of this case from State v. HayesOpinion
No. 4-186 / 03-0230
May 14, 2004.
Appeal from the Iowa District Court for Story County, Dale E. Ruigh, Judge.
Reginald Buchanan appeals from his convictions, following jury trial, for burglary in the first degree and sexual abuse in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, and Stephen Holmes, County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Reginald Buchanan appeals from his convictions, following jury trial, for burglary in the first degree and sexual abuse in the second degree. He contends the trial court erred in allowing photographs of him in striped prison clothes and handcuff chains to be presented to the jury and that his trial counsel was ineffective. We affirm his convictions and preserve his ineffective assistance claim for a possible postconviction proceeding.
I. BACKGROUND FACTS AND PROCEEDINGS.
The charges in this case stem from allegations that Buchanan broke into Debra Silverman's apartment while she was sleeping, raped her repeatedly over the course of several hours, and stole from her. The record contains evidence of the following facts. Silverman is approximately five foot three inches tall, weighs 100 pounds, and suffers from lupus. She awoke on February 12, 2002 at 4:00 a.m. to the sound of someone ripping her bedroom window screen. She saw a hand reaching through the window and a man attempting to enter her apartment. Silverman unsuccessfully attempted to hit the man with a rock and push him out the window. She yelled "get out" and "leave me alone" in the hopes one of her neighbors would hear her, but her screams were to no avail. The man told her to "shut up" and repeatedly put his hand around her throat and applied pressure until she started "seeing . . . dots" and apparently blacked out for a brief time. Silverman later identified the man in her apartment on the night in question as the defendant, Buchanan.
Silverman directed Buchanan to some cash and silver she had by the window, but he was only interested in the cash. He then announced his intentions, stating "[N]ow I'm going to rape you. Take off your panties." When she refused to disrobe, Buchanan put something to Silverman's back and told her that he had a knife. Although Silverman did not see a knife, she felt something hard in her back, felt panic, and then just "went to the survival mode" and "took off my panties and just hoped I lived through this." Buchanan then raped Silverman for approximately ten minutes and told her it was "God's will" that he break into her apartment and rape her.
We do not believe it is necessary to recount here in detail what Silverman testified she endured over the next few hours. Suffice to say, she testified that Buchanan raped her several more times and forced her to perform oral sex on him. When her alarm finally went off at 6:00 a.m. she told Buchanan she had to go to work and if she did not show up her employer would send someone to check on her. Buchanan then allowed Silverman to call her work. She attempted to leave a cryptic message with the clerk at her work. Silverman did not want to use her real name because she had given Buchanan a false name earlier. She just told the clerk, "[T]his is me. I won't be able to make it in today. I have to go to church." She hoped this strange message would prompt the clerk to investigate the call.
After the call Buchanan raped Silverman a final time, this time ejaculating at the side of the bed, and then stripped the bed and made Silverman lie underneath a foam mattress pad. Buchanan found what appeared to be one of Silverman's credit cards and said "Your name's not Sue . . . Your name's Debra." Buchanan then gathered his clothes, looked out the window, told Silverman he would see her in Colorado, unlocked the front door, and left the apartment.
Buchanan had earlier claimed to Silverman that he was the Fort Collins, Colorado rapist and that he had followed her here from Colorado. Silverman had apparently fairly recently moved from Colorado to Iowa.
Silverman waited until she regained her composure and called her employer. She spoke with the same clerk she had talked to earlier and explained to her what had just happened. While she was on the phone, she looked through her window and saw Buchanan enter another apartment in her complex. She then called 911 at approximately 8:40 a.m. She asked the police to send an unmarked car and a plain-clothes officer to her apartment because she was afraid Buchanan was still in the area. The police arrived shortly after the call and Silverman was taken to the hospital.
At the hospital Silverman was presented with six photographs and she identified Buchanan as the man who had raped her. Silverman described her assailant to the police as a light-skinned male, either black or Puerto Rican, with a mustache, a little "snip" of hair under his lip, pudgy cheeks, fairly short hair, a wide flat nose, and muscular build with a "pot belly." She also described several scars on his abdomen, shoulder, and hip. She also testified at trial that Buchanan was uncircumcised.
On February 12, 2002 Buchanan was charged, by trial information, with burglary in the first degree, in violation of Iowa Code sections 713.1 and 713.3 (2001), and sexual abuse in the second degree, in violation of Iowa Code sections 709.1 and 709.3. Jury trial commenced on November 13, 2002. Buchanan did not testify in his own defense at trial, but through his attorney's questioning it was suggested that he had met Silverman before and that the intercourse on February 12, 2002 was consensual.
The emergency room doctor who treated Silverman testified at trial that in her opinion Silverman had been violently raped. The gynecologist who examined Silverman opined that her injuries were consistent with forceful nonconsensual intercourse. Shoe prints left in Silverman's apartment match the prints of Buchanan's shoes and the vaginal swabs taken from Silverman at the hospital matched the DNA profile from Buchanan's blood sample.
At trial the State offered into evidence three photographs of Buchanan's scars and one of his penis to establish identity. Buchanan objected to the exhibits. Although defense counsel conceded that the photographs "might very well be relevant" he argued that any probative value was substantially outweighed by their great prejudice because they depicted Buchanan in black and white striped jail attire with his hands chained to his waist by handcuff chains. The trial court ruled that exhibits 26, 27, and 28, the photos showing Buchanan's scars, would be admitted because the jury had already without objection heard testimony regarding the fact Buchanan was in custody when the photos were taken, and thus the photographs showing the same facts would not be prejudicial. The court ruled that exhibit 29, the photo depicting Buchanan's uncircumcised penis, was inadmissible due to the great danger of unfair prejudice it presented. At the time of the court's ruling defense counsel agreed he would not object to testimony from the officer who took the photos and observed Buchanan's genitalia that Buchanan was in fact uncircumcised. Furthermore, the court stated that if during the course of the trial Buchanan "challenges whether he was circumcised or not" it might reconsider the ruling. However, the subject was never again broached in the course of the trial.
The jury found Buchanan guilty as charged. The court sentenced him to an indeterminate term of twenty-five years for each offense and ordered the sentences to run consecutively. Buchanan appeals from his convictions contending the court erred in allowing the photographs of him in striped prison clothing and chains to be presented to the jury. He further claims his trial counsel was ineffective for not making sure that exhibit 29 was not among the exhibits that went to the jury after the court had ruled it inadmissible, and requests we preserve this claim for a postconviction relief proceeding.
II. MERITS.
A. Admission of Photographs.
Buchanan claims the trial court erred in admitting the three photographs of him in striped prison attire and a handcuff chain because they were unfairly prejudicial and thus inadmissible under Iowa Rule of Evidence 5.403. Specifically, he contends they were of little probative value and were not necessary because he did not deny his presence at the scene of the crime but instead alleged that the sexual intercourse with Silverman was consensual.
On appellate review of an evidentiary ruling concerning rule 5.403, we grant the district court wide latitude regarding admissibility and will disturb the court's ruling only upon finding an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). To show an abuse of discretion, one must show the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). Even if an abuse of discretion is found, reversal is required only when the abuse is prejudicial. State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999). For us to hold the trial court abused its discretion in determining the danger of unfair prejudice created by the admission of evidence did not substantially outweigh its probative value, the complaining party must show that the trial court's action was unreasonable in the light of attendant circumstances. State v. Cott, 283 N.W.2d 324, 329 (Iowa 1979).
Evidence is relevant if 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." Iowa R. Evid. 5.401. Relevant evidence is generally admissible. Iowa R. Evid. 5.402. However, even relevant evidence may be excluded where "its probative value is substantially outweighed by the danger of unfair prejudice. . . . "Iowa Rule of Evidence 5.403.
Here, defense counsel correctly conceded, and the trial court properly found, that exhibits 26-28 were relevant as to the issue of the defendant's identity. Buchanan attempts to argue on appeal that he did not deny his presence at the scene, that his "theory of the case" was that the sexual relationship was consensual, and thus because identity was not an issue there was no need for the photographs. Buchanan did not testify at trial, but defense counsel did intimate through cross-examination of Silverman that the two may have had consensual sex on the night in question. However, counsel's insinuation that the sex may have been consensual did not relieve the State of its burden to prove every element of the crime alleged, including proving that it was in fact Buchanan who broke into Silverman's apartment and sexually abused her. The State's proof of this was based on Silverman's description of her assailant, whom she claimed was a complete stranger, including that he had a muscular build, a "pot belly," and several scars on his abdomen and shoulder. Her description was then compared to the photographs taken of Buchanan after he was in custody. Accordingly, we agree with the trial court that exhibits 26-28 were relevant for the jury to decide whether Silverman's description of her assailant matched certain of Buchanan's physical characteristics and marks on his body.
Rule 5.403 requires the trial court to weigh the probative value of relevant evidence against the danger of unfair prejudice. State v. Reynolds, 670 N.W.2d 405, 414 (Iowa 2003). A finding that the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice precludes admissibility of even relevant evidence. State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001) (quoting State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988)). "The probative value of evidence is measured by its tendency to make a material fact more or less probable." Reynolds, 670 N.W.2d at 414. Unfairly prejudicial evidence is evidence that appeals to the jury's sympathies, arouses its sense of horror, provokes its instincts to punish, or triggers other mainsprings of human action [that] may cause a jury to base its decision on something other than the established propositions in the case.
The appellate court may conclude that "unfair prejudice" occurred because an insufficient effort was made below to avoid the dangers of prejudice, or because the theory on which the evidence was offered was designed to elicit a response from the jurors not justified by the evidence.
State v. Plaster, 424 N.W.2d 226, 231-32 (Iowa 1988) (quoting 1 Jack B. Weinstein et al., Weinstein's Evidence ¶ 403[03], at 403-33-40 (1986)).
As set forth above, Buchanan argues that the photographs in question, even if relevant, were unfairly prejudicial because they showed him in black and white striped prison garb with his hands chained to his waist by handcuffs. The trial court found that although the photographs were taken while Buchanan was in custody, that jury had already been informed of this fact without objection through the testimony of Sergeant Wheeler who took the photographs. Thus, the court ruled the evidence was not prejudicial because the jury already knew Buchanan was in custody when the photos were taken.
It is true that in some instances the way a defendant appears to the jury can violate the defendant's due process rights by denying the defendant the indicia of innocence to which the defendant is entitled in the presence of the jury. See State v. Johnson, 534 N.W.2d 118, 126 (Iowa Ct.App. 1995) (noting that requiring defendant to appear before the jury in prison clothing creates an unacceptable risk the jury may consciously or subconsciously be influenced in its deliberations) (citing Estelle v. Williams, 425 U.S, 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126, 135 (1976)); see also State v. Wilson, 406 N.W.2d 442, 449 (Iowa 1987) (stating that a defendant is usually not restrained in the courtroom in front of the jury in order to prevent the creation of prejudice in the minds of the jurors).
We agree here with the trial court that the jury learned nothing new from exhibits 26-28 because Sergeant Wheeler had already testified without objection that he had taken the photographs of Buchanan while Buchanan was in custody. "No prejudice can result from seeing that which is already known." Estelle v. Williams, 425 U.S. 501, 507, 96 S.Ct. 1691, 1694, 48 L.Ed.2d 126, 132 (1976) (quoting United States ex rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir. 1973)).
Additionally, in the cases cited above, the concern regarding prejudice is from having the defendant in the presence of the jury for an extended period of time in prison attire, restraints, or both. However, both our supreme court and the United States Supreme Court have distinguished between this type of continual and unavoidable reminder of the accused's condition, and a brief observation of the accused in prison attire or restraints. See Wilson, 406 N.W.2d at 448 (stating there are two distinct factual categories of physical indicia of innocence as it pertains to physical restraints during criminal trial process, and if a juror briefly observes defendant being moved in shackles it is defendant's burden to show how this prejudicially affected the jury; it is not inherently prejudicial as it is when defendant is shackled in the courtroom throughout trial); and Estelle, 425 U.S. at 504, 96 S.Ct. at 1693, 48 L. Ed.2d at 130-31 (noting that courts have generally determined that an accused should not be compelled to go to trial in prison or jail clothing in recognition that this "constant reminder of the accused's condition" may affect a juror's judgment as clothing is likely to be "a continuing influence throughout the trial").
Buchanan was not dressed in prison attire during the trial. The jury only saw him in such clothing in the three isolated photographs which were admitted in order to compare his physical traits with the description given by Silverman of her assailant. Furthermore, the photographs here do not present the same danger found in the situations where a "mug shot" or "rogues' gallery" type of photograph of the accused which was taken in connection with a previous arrest or conviction is offered by the State as part of its case-in-chief. See State v. Clay, 213 N.W.2d 473, 479-80 (Iowa 1973) (finding that photograph of defendant taken after arrest for the crime upon which he was being tried was relevant to an issue in the case, and thus admissible, as contrasted with cases in which "mug shots" from previous arrests or convictions were held to be inadmissible); State v. Redding, 169 N.W.2d 788, 793-94 (Iowa 1969) (finding State's offer of photograph of defendant taken by local police after arrest was admissible for identification purposes).
Finally, any possible danger of unfair prejudice to Buchanan from the admission of exhibits 26-28 was sufficiently minimized by the trial court's admonition and instructions to the jury. After the court ruled that these exhibits were admissible, the court admonished the jury that Buchanan's "attire and other things in this photograph are irrelevant to your decision on whether he's guilty or not guilty, and you should disregard the type of clothing he's wearing and his other attire in these photographs." The court also instructed the jury that Buchanan was presumed innocent and not guilty, and that "[t]his presumption of innocence requires you to put aside all suspicion which might arise from the arrest, charge, or present situation of the defendant."
Generally, issuance of a limiting instruction is sufficient to remove the danger of unfair prejudice. State v. Conner, 314 N.W.2d 427, 429 (Iowa 1982); State v. Delaney, 526 N.W.2d 170, 176 (Iowa Ct.App. 1994). It is only in extreme cases that such an instruction is insufficient to nullify danger of unfair prejudice. Conner, 314 N.W.2d at 429. We do not believe this to be such an extraordinary case. Furthermore, jurors are presumed to follow the court's instructions. State v. Piper, 663 N.W.2d 894, 915 (Iowa 2003); State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998). There is no reason to assume they did not do so here. We believe the trial court made adequate efforts to avoid any possible danger of unfair prejudice.
We conclude the court did not abuse its discretion in determining that exhibits 26-28 were relevant and that their probative value was not substantially outweighed by the danger of unfair prejudice. The trial court did not err in admitting the challenged photographs.
B. Ineffective Assistance of Counsel.
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 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).
Buchanan claims his trial counsel was ineffective for not making sure exhibit 29, which the trial court ruled was inadmissible, was not among the exhibits that went to the jury when the case was submitted to the jury for its deliberations. He contends that because appellate counsel has been unable to determine whether the exhibit was actually sent to the jury room, this claim should be preserved for a postconviction proceeding so further investigation of the matter may be made.
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, Buchanan can succeed on his ineffectiveness claim 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). Here the trial court ruled that exhibit 29 was inadmissible because its probative value was substantially outweighed by the danger of unfair prejudice. Thus, if the jury in fact saw the photograph there was potential prejudice to Buchanan. We find the record before us is insufficient to address this issue on direct appeal. No record has yet been made before the trial court on this issue, trial counsel has not been given an opportunity to explain his actions, and the trial court has not ruled on this claim. Under these circumstances, we pass the issue in this direct appeal and preserve it for a possible postconviction proceeding. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
III. CONCLUSION.
We conclude the trial court did not abuse its discretion in determining that the probative value of exhibits 26-28 was not substantially outweighed by the danger of unfair prejudice and did not err in admitting these exhibits. We preserve Buchanan's ineffective assistance of counsel claim for a possible postconviction proceeding.