STATE OF IOWA, Plaintiff - Appellee, vs. MICHAEL LEE BELL, JR. , Defend ant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-649 / 07-0048
Filed October 1, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL LEE BELL, JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
Michael Bell appeals from the judgment and sentence entered upon his
convictions of first-degree harassment and domestic assault. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney
General, John P. Sarcone, County Attorney, and Michael Salvner, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Potterfield, JJ.
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POTTERFIELD, J.
I. Background Facts and Proceedings
A jury convicted Michael Bell of harassment in the first degree and
domestic abuse assault after a trial on November 27 and 28, 2006. The State
presented the testimony of two police officers and the complaining witness. Two
eyewitnesses who had been subpoenaed by the State did not come to court.
Bell was the only defense witness.
The evidence showed that Bell and Leticia Hall began a relationship in
July 2006. Shortly thereafter, Bell moved into Hall’s Des Moines duplex, which
Hall shared with three other adults: Steven Culler, Jennifer Boylan, and Culler’s
mother, Cynthia.1 On the night of September 19, 2006, Hall drove Bell to the
store to buy beer around 5:00 p.m. They returned to the residence, where Bell
and the roommates consumed the beer.
The witnesses disagree on the sequence of events that followed. Hall
claims that around 9:00 p.m. Bell demanded that Hall drive him to get marijuana
or more alcohol. Hall testified that when she refused, Bell threatened to retrieve
his gun and shoot everyone in the duplex. Hall also asserts that Bell hid her
purse and car keys. Bell then pinned her arms behind her, forced her to the
floor, and put her in a headlock. While all of the roommates argued, Hall claims
that she went upstairs to her room. After about an hour, she called the police.
Bell’s version of the facts is quite different. He claims that around 10:00
p.m. his roommates told him to ask Hall to take him to buy more alcohol for them.
When he asked, Hall refused. Bell asserts that his roommates then wanted him
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Hall’s six-year-old son, and Boylan and Culler’s two children also lived in the duplex.
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to force Hall to give them a ride to get alcohol, and when he was unwilling to do
so, a verbal argument ensued between Bell, Boylan, Culler, and Culler’s mother.
Bell testified that Boylan went upstairs to talk to Hall, who then called the police.
Bell denied that he made any threats or acted in a physically aggressive manner.
Two police officers, Mann and Newman, responded to Hall’s call. As the
officers approached the duplex, they could hear a “loud verbal argument” inside.
Officer Mann testified that the scene inside the duplex was “rather chaotic.” One
of the residents told Mann that Bell had a gun. Mann testified that Hall informed
him that Bell had assaulted her. According to Mann, the other residents said Bell
had threatened them.
Bell was charged with domestic assault causing bodily injury in violation of
Iowa Code section 708.2A (2005) and first-degree harassment in violation of
Iowa Code section 708.7(2). The jury convicted Bell of first-degree harassment
and the lesser included offense of domestic assault. The court sentenced him
immediately after the verdict was returned.
When Bell was released from jail the following month, two of his
roommates, Boylan and Culler, told him they had given the prosecutor
exculpatory information the morning of trial. Boylan and Culler both signed an
affidavit dated December 28, 2006, stating that Boylan had called prosecutor
Mike Salvner on the morning of November 27, 2006. According to the affidavit,
on that morning Boylan told the prosecutor she was unable to appear in court in
compliance with her subpoena. The affidavit also stated that Boylan told the
prosecutor that Bell had not threatened them the night of his arrest nor did they
witness any assault on Hall. The affidavit further stated that Salvner responded
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to this information by telling Boylan that she and Culler did not need to come to
court to testify. The affidavit was attached to Bell’s notice of appeal.
The Iowa Supreme Court granted Bell’s unresisted motion for a limited
remand to the district court so that a record could be created on any potential
claim arising from the affidavit. After hearing on July 18, 2007, the district court
found that Salvner’s actions did not constitute prosecutorial misconduct. Bell
now appeals from his conviction and sentencing, arguing that the prosecution
engaged in misconduct by withholding material evidence in the form of Boylan
and Culler’s exculpatory statements, in violation of Brady.2 Bell also argues that
his counsel was ineffective for failing to interview Boylan and Culler or file a
discovery motion before trial.
II. Standard of Review
Because Bell’s claim involves his constitutional right to due process, our
review of the district court’s ruling on the asserted Brady violation is de novo.
Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003).
The right to effective assistance of counsel is also a constitutional right,
and therefore we review ineffective assistance of counsel claims de novo as well.
State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).
“[T]he court’s findings on credibility of the witnesses are entitled to
considerable deference.” State v. Liggins, 524 N.W.2d 181, 186 (Iowa 1994).
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The United States Supreme Court held in Brady v. Maryland that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.
1194, 1196-97, 10 L. Ed. 2d 215, 218.
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III. Brady Violation
Bell first argues that the prosecutor suppressed exculpatory evidence
material to the issue of his guilt in violation of Brady. To establish a Brady
violation, Bell must prove: (1) the prosecution suppressed evidence; (2) the
evidence was favorable to the defendant; and (3) the evidence was material to
the issue of guilt. Harrington, 659 N.W.2d at 521-22. We find that the record
does not support Bell’s claim that Boylan communicated exculpatory evidence to
Salvner. The purpose of Brady is to “assure that the defendant will not be denied
access to exculpatory evidence only known to the Government.” United States v.
LeRoy, 687 F.2d 610, 619 (2nd Cir. 1982).
Brady does not stand for the
proposition that the State must “supply a defendant with all the evidence in [its]
possession which might conceivably assist the preparation of his defense.” Id.
The record made at the remand hearing included the testimony of Boylan
and Culler and the prosecutor’s professional statement. The testimony of Boylan
and Culler differed from their affidavit. After hearing the evidence, the district
court was convinced that Boylan’s testimony about the date on which she spoke
to the prosecutor was not credible and that she had not given the prosecutor
exculpatory information.
Boylan testified that she began calling the prosecutor the morning of trial
to say that she could not come to court because she and her children were facing
eviction proceedings.
Boylan further testified that she talked to Salvner that
same day and told him, “I hadn’t really seen anything because what [Hall] said
had happened, [Hall] said it happened upstairs, which I don’t believe her, but I
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didn’t see anything really. So [Salvner] said I didn’t need to be there.” Culler
testified that his information about the phone conversation came from Boylan.
Salvner acknowledged a phone conversation with Boylan, which he
contended took place after the case was submitted to the jury on November 28,
2006. However, Salvner’s professional statement to the district court did not
directly contradict Boylan’s account of the phone conversation.
Salvner’s
recollection of the phone call with Boylan was, “I don’t believe anything she told
me on the telephone was exculpatory whatsoever.” Salvner stated that Boylan
did not deny that any of the alleged acts had occurred. Salvner told the court
that “everything Boylan told [him] on the phone [was] consistent with the police
reports.”
Salvner further stated his understanding was that, as Bell’s friend,
Boylan did not want to be involved and she was worried about the consequences
of failing to appear on her subpoena.
Salvner did not report the phone
conversation to defense counsel.
The essence of Boylan’s testimony at the remand hearing was that she
told the prosecutor that she did not see anything that happened upstairs, and that
she would not believe the testimony of the complaining witness, Hall.
The
incident took place downstairs, where Boylan and Bell both were located,
according to testimony at trial. Boylan’s opinion as to the veracity of Hall was not
material to Bell’s guilt or innocence. The district court found that Boylan “did not
provide any exculpatory evidence favorable to the Defendant.”
We agree that
Boylan’s statements to the prosecutor on the phone did not meet the
requirements that they were both favorable to Bell and material to the issue of his
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guilt. We find that Bell did not show that the prosecutor suppressed exculpatory
evidence.
IV. Ineffective Assistance of Counsel
Bell claims that his counsel was ineffective for failing to investigate and for
failing to file a motion for discovery.
To prevail on a claim of ineffective
assistance, Bell must prove that (1) counsel failed to perform an essential duty,
and (2) prejudice resulted. State v. Simmons, 714 N.W.2d 264, 276 (Iowa 2006).
In order to establish the first element of the test, Bell must show that his counsel
did not act as a “reasonably competent practitioner” would have with a strong
presumption that counsel’s conduct was within the “wide range of reasonable
professional assistance.” Id.; State v. Hepperle, 530 N.W.2d 735, 739 (Iowa
1995). To satisfy the second element of the test, Bell must show that “there is a
reasonable probability that, but for the counsel’s unprofessional errors, the result
of the proceeding would have been different.” State v. Simmons, 714 N.W.2d at
276. Courts are encouraged to dispose of an ineffective assistance claim under
the second prong of the test when possible. State v. Nebinger, 412 N.W.2d 180,
192 (Iowa Ct. App. 1987).
We find that prejudice did not result from counsel’s failure to investigate or
file a motion for discovery. Because we found the evidence at issue was not
exculpatory, it would not have changed the result of the proceeding. Therefore,
there is no need to evaluate the first prong of the test for ineffective assistance
because we conclude no prejudice resulted. Accordingly, we affirm the district
court.
AFFIRMED.
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