STATE OF IOWA, Plaintiff-Appellee, vs. TIMOTHY LANE MILLER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-820 / 05-1689
Filed November 16, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TIMOTHY LANE MILLER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Steven J. Oeth,
District Associate Judge.
Defendant appeals from his judgment and sentence for operating while
intoxicated. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney
General, Jim P. Robbins, County Attorney, and Courtney E. Spellman, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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EISENHAUER, J.
Timothy Lane Miller appeals his judgment and sentence for operating
while intoxicated. Miller asserts his counsel was ineffective for failing to request
Iowa Criminal Jury Instruction 200.37 regarding expert witnesses. We find no
merit to this appeal.
On April 30, 2005, employees of the Git-N-Go store contacted police with
a concern that Miller was intoxicated and was operating a vehicle. Officer Paul
Parizek investigated the complaint and encountered Miller’s vehicle traveling
west. Officer Parizek observed Miller’s vehicle cross the center line. Parizek
activated his police car’s overhead lights, but Miller did not respond. Parizek
then observed Miller’s vehicle on the wrong side of the road and he nearly hit a
tree. Miller again did not respond to Parizek activating his horn or siren. Once
Miller stopped his vehicle in his driveway, Parizek observed Miller exit the
vehicle.
Miller was stumbling, staggering and swaying, he smelled of an
alcoholic beverage, his eyes were red and watery, and his speech was mumbled
and slurred. Miller failed the field sobriety tests. Parizek concluded Miller was
intoxicated and arrested him for operating while intoxicated.
A breath test
revealed Miller’s blood alcohol content (BAC) to be .240, well above the legal
limit of .08.
We review an allegation of ineffective assistance of counsel de novo.
State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). A defendant receives
ineffective assistance of counsel when (1) the defense attorney fails in an
essential duty and (2) prejudice results. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
An ineffective
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assistance of counsel claim may be disposed of if the defendant fails to prove
either prong.
State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Although
ineffective assistance of counsel claims are typically reserved for postconviction
proceedings, we will resolve these claims on direct appeal when the record is
adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
We find this record adequate.
Miller claims his counsel was ineffective for not requesting Iowa Criminal
Jury Instruction 200.37, instructing the jury to consider expert testimony just like
any other testimony.
At trial, a DCI criminalist testified concerning the
DataMaster test and intoxication.
He opined that a person who has trouble
walking and speaking, smells like an alcoholic beverage, has bloodshot and
watery eyes, and registers a .240 BAC on the DataMaster test would be
impaired. Miller’s complaint goes to this testimony, as he argues this testimony
should not receive “special regard.” However, Miller did not dispute that he was
intoxicated at the time Parizek approached him and when he took the breath test.
In fact, Miller testified that from the time he “hit” his driveway to the time he
reached his door, he “downed a pint of whiskey . . . so [he] could hopefully get . .
. drunk enough to where [he] could get some sleep that night or that afternoon.”
And, he admitted the affects of the alcohol “didn’t take long.” Therefore, given
his theory of defense, he fails to show how counsel’s failure to request instruction
200.37 establishes any prejudice. Moreover, there was overwhelming evidence
without the criminalist’s testimony from which the jury could have found Miller
guilty of operating while intoxicated.
AFFIRMED.
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