Opinion
No. 04-0478.
March 31, 2005.
Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.
Bobby Ray Devers appeals his conviction, following jury trial, for sexual abuse in the first degree. AFFIRMED.
Drew Kouris, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass and Sheryl A. Soich, Assistant Attorneys General, Matthew Wilber, County Attorney, and Jon Jacobmeier, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Miller and Eisenhauer, JJ.
Bobby Ray Devers appeals his conviction, following jury trial, for sexual abuse in the first degree. He contends the trial court erred in failing to appoint substitute counsel and refusing to allow evidence of the victim's past sexual behavior. He also alleges several grounds of ineffective assistance of trial counsel. We affirm his conviction and preserve some of his claims of ineffective assistance for a possible postconviction proceeding.
I. BACKGROUND FACTS AND PROCEEDINGS.
On October 2, 2003, S.A. and her boyfriend, H.D. ran away from an after-school program for troubled teens in Omaha, Nebraska. After spending some time in downtown Omaha, S.A. and H.D. were picked up by H.D.'s mother. On the pretext her mother lived nearby, S.A. told H.D.'s mother she wanted to be dropped off approximately a block from H.D.'s house. Later, S.A. sneaked into her boyfriend's house through a basement window. The exact time of S.A.'s presence in H.D.'s home is disputed in the record. S.A. testified she was at H.D.'s house from approximately 10:15 p.m. to 4:30 a.m. and she left through the window because she had to use the bathroom and did not want to wake up H.D.'s mother. According to H.D.'s deposition testimony S.A. came to his house around midnight, they engaged in consensual intercourse, and she left again through the window at about 1:30 a.m. to go meet some friends.
From the evidence presented at trial the jury could find the following facts. Several hours after leaving H.D.'s home S.A. came into contact with the defendant, Devers, who offered her a ride. S.A. fell asleep in Devers's car and when she awoke they were at the Super 7 Motel in Council Bluffs, Iowa. Devers obtained a key to room 243 and the two went up to the room together. The two then smoked marijuana together and when she wanted to leave Devers "jumped on" her like he was "attacking her," "like a football player making a tackle." S.A. struggled with Devers. During the struggle she noticed he had a knife with a yellow handle in his hand. Devers cut S.A. with the knife on the right side of her face from cheekbone to jawbone. Devers forced his fingers into her vagina, telling her: "Shut up, bitch. I'm going to kill you. Be good." Devers then forced his fingers into S.A.'s mouth and she bit him hard enough to cause a wound. In addition to her deep facial wound S.A. sustained several other injuries, including injuries to her forehead, inner thigh, knees, ankles and hand.
Eventually S.A. escaped the room and attracted the attention of Ed Van Severen, the motel maintenance man, with her screaming. Van Severen had seen Devers and S.A. pull into the motel in Devers's car. The female he heard screaming was saying "rapist" and "I'm not going nowhere with you." As Van Severen found the source of the screaming and was heading toward S.A., he saw Devers drive away past him in the same car Devers had arrived in. When Van Severen noticed that S.A.'s face was dripping blood he went into room 236 and called 911 for help. S.A. followed him into the room and told Van Severen that she wanted to go home and that Devers had cut her.
Devers testified on his own behalf at trial. He testified that he got to the Super 7 Motel on the date in question at approximately 1:05 p.m. in order to finish shampooing carpets he had started cleaning two weeks earlier. He saw S.A. near the entrance to the motel but did not know her. Devers testified that S.A. flagged him down and offered him sex in exchange for transportation to Gretna or for money. She told Devers her feet were hurting and asked if she could sit in his car, so he let her into the car and proceeded to park in one of the spaces in front of the motel office. Devers testified he then went into the office to talk to the motel manager but the manager was not there. He spoke to the manager's wife, who gave him the key to room 243 because that was the room at which he had left off when shampooing earlier. However, the wife told Devers he would have to wait until her husband got back to start the room. Devers testified that while he was in the office, and when he came back out, he saw S.A. talking to Ed Van Severen and petting the dog Van Severen had with him.
Devers testified he then went to room 243 to wait for the motel manager. As he waited S.A. approached him several times. He testified that at one point he agreed to walk to the store and buy S.A. a pack of cigarettes and a soda, and he talked with her about her boyfriend and how she got to the motel. Devers admitted that during the time he was in room 243 he smoked some marijuana. He claimed that then while in the restroom he heard someone knock and it was S.A. again. Devers testified S.A. asked if she could come into the room and he refused. He then saw S.A. leave down a flight of stairs. He testified he eventually gave up waiting for the motel manager and left. As he was driving away Devers saw S.A. and another man on the balcony and saw Van Severen and another man on the ground level. Throughout the proceedings Devers denied he assaulted S.A. in any way and stated that he "never laid a hand on her."
Based on Van Severen's call to 911 Officers Dudik and Zika of the Council Bluffs Police Department were dispatched to the motel. When they arrived Van Severen flagged them up to a room on the top balcony. Officer Dudik testified that when he saw S.A. she was "crying hysterically," bleeding from some cuts on her face, and told him she had just been sexually assaulted. S.A. told the officers that room 243 is where the assault occurred. Dudik testified that when he opened the door to room 243 there was an overpowering smell of marijuana. S.A. was then allowed to go to the hospital with the paramedics. Both S.A. and Van Severen later identified Devers from separately conducted photo line-ups as the man who had been at the motel and had assaulted S.A.
On October 30, 2003, Devers was charged by trial information with sexual abuse in the first degree, in violation of Iowa Code sections 709.1(1), 709.2, 702.17, and 702.18 (2003), and distribution of a controlled substance to a person under the age of eighteen, in violation of section 124.406(1)(a).
One month prior to trial Devers wrote to the court requesting removal of his court appointed defense counsel and asking the court to appoint substitute counsel. The district court held a hearing on Devers's request for substitute counsel. The court filed a written order on January 8, 2004, denying Devers's request for substitute counsel. The court found that Devers had given the court "no good reason to conclude that [counsel] has not, cannot or will not vigorously and competently represent" him.
Shortly before trial commenced, defense counsel filed a motion to allow evidence, under Iowa Rule of Evidence 5.412( b)(2)(A), of S.A.'s sexual relations with H.D. prior to the alleged assault by Devers. He attached the depositions of S.A., H.D.'s mother, and H.D. to his motion. A pretrial hearing was held on this and other motions on January 16, 2004. Devers's argument was that this evidence should come in because the bruising and abrasions on S.A.'s inner thigh could have been inflicted by H.D and this evidence thus would explain the source of the injuries the State was trying to attribute to Devers. Medical evidence suggested that the injuries to S.A.'s inner thigh were no more than six to eight hours old at the time of her examination after the incident in question. On January 20, 2004, the district court issued a written order denying Devers's rule 5.412 motion. The court concluded that evidence of consensual sexual behavior twelve hours before the alleged assault has very limited relevance on the issue of the source of the victim's injuries. The depositions attached to Devers's motion do not show that any prior sexual behavior was rough, was resisted, or that any injury resulted to the victim from such behavior. Given that, the danger of unfair prejudice to the victim and to the State outweighs any possible probative value that such evidence may have. Devers is not restricted from cross-examining the victim regarding her visit to [H.D.] the night before the assault, including the times, location, and circumstances of her visit, arrival and departure. Devers may not inquire of the victim regarding her sexual behavior with any person other than the alleged offense.
Jury trial commenced on January 21, 2004. On that same day, prior to beginning jury selection, the State moved to dismiss the distribution charge. The court dismissed that count and the case proceeded to jury trial solely on the first-degree sexual abuse charge. The jury found Devers guilty as charged and the court sentenced him to life in prison without the possibility of parole.
Devers appeals his conviction, contending the trial court erred in failing to appoint substitute counsel and refusing to allow evidence of the victim's past sexual behavior under rule 5.412. He also alleges several grounds of ineffective assistance of trial counsel. We address these issues separately.
II. MERITS. A. Substitution of Counsel.
The district court's denial of a defendant's request for substitute counsel is reviewed for abuse of discretion. State v. Martin, 608 N.W.2d 445, 449 (Iowa 2000). To the extent Devers's claim relates to a denial of his Sixth Amendment rights, our review is de novo. Id. There is a duty of inquiry by the district court once a defendant requests substitute counsel due to an alleged breakdown in communication. State v. Tejeda, 677 N.W.2d 744, 750 (Iowa 2004).
Where a defendant represented by a court-appointed attorney requests the court appoint substitute counsel, sufficient cause must be shown to justify replacement. "Sufficient cause includes a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant." The decision to grant a motion for substitute counsel is a matter within the trial court's discretion. Last-minute requests for substitute counsel, insofar as they constitute a delay tactic, are disfavored.
Id. at 749-50 (internal citations omitted).
The district court held an extended hearing on Devers's request for substitute counsel. The hearing was held January 8, 2004, about two weeks before trial was scheduled pursuant to Devers's request for speedy trial. The court heard not only from Devers and his attorney at length, but also heard from Devers's wife, friend, and cousin.
Devers complained his attorney had not returned phone calls requesting the attorney's removal and the assignment of another attorney. However, the underlying substance of the complaint, the request for substitute counsel, was dealt with by the extended hearing and ensuing ruling by the court.
Devers complained his attorney would not tell him who his trial judge would be. At the hearing the court explained to Devers that his attorney in fact could not tell him who his trial judge would be because neither the attorney nor even the court would know until closer to the trial, perhaps not even until the day trial.
Devers also alleged his attorney had lied to Devers and his family, telling Devers one thing and his family another. He first complained his attorney had told him Devers had a robbery charge on his record, to which he had responded that he did not have such a charge and asked his attorney to "take this to the court." Devers's attorney's investigation revealed that Devers did not in fact have a robbery charge on his record, and instead Devers had been the victim of a robbery. Devers's real complaint appeared to be that his attorney did not immediately take the information to the judge in an attempt to secure a bond reduction. The record shows, however, that an arraignment and bond review had been scheduled, the information was presented at the bond review hearing, and the court was thus made aware at the scheduled bond review hearing that Devers had in fact never been charged with robbery. As the court explained to Devers at the hearing on his request for substitute counsel, Devers's attorney is not allowed to just call the judge and tell him about something, but instead matters must ordinarily be presented at formal hearings, which must be scheduled some time in advance.
Devers's other allegation that his attorney had "lied" to Devers or his family in fact appears to involve nothing of the sort. As shown by the record made at the hearing, a federal inmate had been added to the State's list of witnesses against Devers. The inmate apparently claimed that Devers, as well as another client represented by Devers's attorney in a separate matter, had both made confessions to the inmate. Devers had apparently informed his attorney the inmate's claim had to be false as he, Devers, neither knew the inmate nor had any knowledge of him. Devers was concerned the inmate would appear and testify at Devers's trial. He complained to the court that his attorney had not even taken the time to interview the inmate. However, the record made at the hearing shows that Devers's attorney had taken depositions in the other case, believed the inmate's credibility had been "severely impugned," did not believe the State would use the inmate as a witness, and had so informed Devers. Consistent with Devers's attorney's information and advice, the record shows the State in fact did not use the inmate as a witness at trial.
At the hearing on Devers's request for substitute counsel it was brought to the court's attention by trial counsel that Devers alleged he had filed a lawsuit against his counsel with the Iowa Bar Association and the ACLU. Devers stated he had spoken to people at both of these organizations and they were supposed to be sending him some "papers." However, as of the time of the hearing the record indicates Devers had in fact not filed any lawsuit or complaint against his trial counsel with any organization.
In fact nothing in the record indicates that Devers filed any such lawsuit or complaint by the time of his sentencing two months later on March 10, 2004, or by the time of his notice of appeal some two and one-half months later on March 22, 2004.
We conclude the trial court made an adequate inquiry regarding Devers's concerns about alleged problems between him and his appointed counsel. The court personally asked Devers what his complaints were, heard from him at length, and heard and considered input in the matter from Devers's family and friends as well. The court explained to Devers that his appointed counsel was the most experienced defense attorney in the district, and that several of the substitute counsel suggested by Devers did not have nearly as much trial experience, if they had any, as his current counsel had. Devers did not show a conflict of interest, irreconcilable conflict, complete breakdown in communication, or other sufficient reason for the trial court to remove his attorney and appoint another attorney. We agree with the court that Devers failed to show his appointed counsel had not, could not, or would not vigorously and competently represent him, and failed to show sufficient cause to justify removal of his trial counsel and appointment of substitute counsel. We conclude the trial court did not abuse its considerable discretion in denying Devers's request for substitute counsel.
B. Iowa Rule of Evidence 5.412.
Our review on the admissibility of rule 5.412 evidence on the source of injury is for abuse of discretion. State v. Mitchell, 568 N.W.2d 493, 497 (Iowa 1997). We reverse only if the district court abuses that discretion. Id. We find an abuse of discretion only when the district court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id.; State v. Knox, 536 N.W.2d 735, 738 (Iowa 1995).
We begin our analysis by noting that rape shield laws like Iowa's rule 5.412 were enacted to (1) protect the privacy of victims, (2) encourage reporting, and (3) prevent time-consuming and distracting inquiry into collateral matters. Mitchell, 568 N.W.2d at 497 (citing State v. Ogilvie, 310 N.W.2d 192, 195 (Iowa 1981)). An accused may attempt to offer evidence of the victim's past sexual behavior either to confront real evidence or to impugn the victim's character. Id. In either case, the victim's privacy is invaded and for that reason the rule applies. Id. In short, whether the evidence is admissible does not depend on the motive for the inquiry. Id.
Devers argues the trial court abused its discretion in denying his rule 5.412 motion. He contends the evidence of S.A.'s sexual activity with H.D., some twelve to thirteen hours prior to the alleged assault, should have been presented to the jury because it could have been the cause of the injuries to S.A.'s inner thigh. He also contends that the discrepancy between the times S.A. states she was at H.D.'s house and the times H.D. says she was there make it appropriate for the evidence of her sexual activity to be presented to the jury. As set forth above, the trial court denied Devers's motion because there was no evidence that the prior sexual activity between S.A. and H.D. was rough or in any way resisted. The court thus concluded that the consensual sex which had occurred some twelve hours before the alleged assault had "very limited relevance" concerning the source of S.A.'s injuries and the "danger of unfair prejudice to the victim and to the State outweighs any possible probative value that such evidence may have."
For the reasons that follow we agree with the trial court. First, there is no evidence in the record that H.D. and S.A.'s sexual activity was rough, resisted, anything other than consensual, or that any injury resulted from such activity. Second, the medical evidence in the record suggests the injuries to S.A.'s inner thigh were no more than six to eight hours old when she was examined after the assault, while her encounter with H.D. had taken place at least twelve hours prior to the alleged assault and even more time had elapsed before the injuries were treated by medical professionals. Finally, S.A. had numerous other injuries which Devers did not claim to have been caused by H.D. They included, but were not limited to, the large cut on her face upon which the State relied as the "serious injury" to charge Devers with first-degree sexual abuse. Thus, whether the injury to her inner thigh was caused by H.D. or Devers had very little relevance to any material fact at issue at trial.
S.A.'s consensual sexual activity at least twelve hours prior to the alleged assault had very little, if any, relevance to the issues at trial and the danger of unfair prejudice to the victim and the State outweighed any probative value evidence of such activity might have. We therefore conclude the court did not abuse its discretion in denying Devers's rule 5.412 motion.
C. Ineffective Assistance Claims.
Finally, Devers alleges his trial counsel was ineffective for failing to (1) object to improper impeachment of Devers's character witnesses on cross-examination, (2) object to marijuana evidence, (3) request a mistrial, (4) call H.D. as a defense witness, (5) object to prejudicial matters during cross-examination of Devers, and (6) request that closing arguments be reported. He also claims all of these errors taken together created a cumulative prejudicial effect which precluded him from receiving a fair trial.
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).
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). We prefer to leave such claims for a postconviction relief proceeding. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 590 (Iowa 1997). However, we will consider claims of ineffective assistance on direct appeal if the record is sufficient. State v. De Camp, 622 N.W.2d 290, 296 (Iowa 2001). We find the record here is adequate to address one of Devers's claims, but insufficient to address the others. We will address the one claim on which the record is adequate.
Devers claims his counsel breached an essential duty by failing to request that closing arguments be reported. However, Devers does not assert that any improper statements, much less unfairly prejudicial statements, were made during closing arguments. He does not claim that the outcome of the proceedings would have been different if closing arguments had been reported. Nor does he cite any authority that requires an attorney to request closing arguments be reported. Most importantly, counsel does not breach an essential duty by merely failing to request closing arguments be reported. State v. Oetken, 613 N.W.2d 679, 689 (Iowa 2000); see also Fryer v. State, 325 N.W.2d 400, 413 (Iowa 1982) (holding that counsel is not required to have all aspects of trial proceedings reported). Absent a clear breach of duty, trial counsel cannot be deemed ineffective. We conclude this claim of ineffective assistance is without merit.
Devers also claims his counsel was ineffective in the other ways noted above. We believe the record is inadequate for us to address these additional claims of ineffective assistance on direct appeal. In a postconviction relief proceeding "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. No record has yet been made before the trial court on these claims, trial counsel has not been given an opportunity to explain his actions, and the trial court has not ruled on these claims. Under these circumstances, we pass these six specified claims in this direct appeal and preserve them 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 denying Devers's request for substitute counsel. Devers failed to show sufficient cause to justify replacement of his court-appointed counsel. We further conclude the court did not abuse its discretion in denying Devers's rule 5.412 motion and refusing to allow evidence of S.A.'s prior sexual activity. We agree with the trial court that this evidence had little if any relevance and the danger of unfair prejudice to the victim from such evidence outweighs any possible probative value it might have. Finally, we conclude Devers's counsel was not ineffective for not requesting that closing arguments be reported. We affirm Devers's conviction for sexual abuse in the first degree and preserve his remaining six specified claims of ineffective assistance of counsel for a possible postconviction proceeding.