STATE OF IOWA, Plaintiff-Appellee, vs. SHUJUN YANG, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-073 / 06-0575
Filed August 22, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHUJUN YANG,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis,
Judge.
The defendant appeals from his conviction of domestic abuse assault
while displaying a dangerous weapon. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney
General, J. Patrick White, County Attorney, and Victoria Cole, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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EISENHAUER, J.
Shujun Yang appeals his conviction, following a trial to the court, for
domestic abuse assault while displaying a dangerous weapon. Yang contends
his trial counsel was ineffective for failing to ensure that his waiver of jury trial
was knowing, voluntary and intelligent. He also claims there is not sufficient
evidence to support his conviction.
BACKGROUND FACTS AND PROCEEDINGS.
On December 12, 2005, Yang was charged with domestic abuse assault
while displaying a dangerous weapon, in violation of Iowa Code sections 708.1,
708.2(3), 708.2A(2)(c), and 236.2 (2005). On March 3, 2006, Yang signed a
written waiver of jury trial and was questioned by the court about the waiver. The
waiver indicated he understood that by waiving the jury trial: (1) he gave up the
right to be tried by a jury of twelve members of the community; (2) he would no
longer help in the jury selection, since there would be no jury; (3) the conviction
would not be based on a unanimous verdict of twelve persons; (4) his case would
be decided solely by the court; and (5) he would not be rewarded either by the
court or the prosecution for waiving his right to a jury trial. The court specifically
asked the defendant about each of the items listed above.
Trial to the court was held on March 6, 2006. At the end of the trial, the
court found Yang guilty as charged. Yang was sentenced to a prison term not to
exceed two years and assessed a fine of $500 plus surcharge. Yang appeals.
An opinion was issued by this court on March 14, 2007 reversing and
remanding the matter based on the failure of the trial court to conduct a colloquy
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with the defendant regarding his waiver of a jury.
After further review was
granted by the supreme court, appellate counsel for the defendant filed a
transcript of the pretrial conference on March 3, 2006 which included such a
colloquy. By order dated July 17, 2007, the supreme court vacated the earlier
opinion of this court and remanded the case for issuance of a new opinion.
INEFFECTIVE ASSISTANCE OF COUNSEL.
We review claims of ineffective assistance of counsel de novo. State v.
McBride, 625 N.W.2d 372, 373 (Iowa Ct. App. 2001).
Generally, ineffective
claims are preserved for postconviction relief. State v. Buck, 510N.W.2d 850,
853 (Iowa 1994). However, claims can be resolved on direct appeal when the
record adequately presents the issue. Id. The record in this case is adequate to
decide this issue on direct appeal.
To succeed with a claim of ineffective
assistance of counsel, a defendant typically must prove the following two
elements: (1) counsel failed to perform an essential duty, and (2) defendant was
prejudiced by counsel’s error. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Iowa Rule of Criminal Procedure 2.17(1) states, “[c]ases required to be
tried by jury shall be so tried unless the defendant voluntarily and intelligently
waives a jury trial in writing and on the record.”
The Iowa Supreme Court
construed this provision in State v. Liddell, 672 N.W.2d 805 (Iowa 2003). It held
the “on the record” language in this provision required some in-court colloquy or
personal contact between the court and the defendant in order to ensure the
defendant’s waiver is knowing, voluntary, and intelligent. Id. at 812. Liddell also
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suggested a five-part inquiry the in-court colloquy may involve. Id. at 814. The
court clarified that this five-part inquiry is not “black-letter rules nor a ‘checklist’ by
which all jury-trial waivers must be strictly judged.” Id. Substantial compliance
with this five-part inquiry is acceptable.
Id.
The written waiver of jury trial
combined with the colloquy conducted on March 3, 2006 meets the requirements
of Liddell and therefore counsel did not breach any duty.
SUFFICIENCY OF THE EVIDENCE.
We review for correction of errors of law. State v. Beunaventura, 660
N.W.2d 38, 48 (Iowa 2003). The trial court’s findings of guilt are binding on
appeal if supported by substantial evidence. State v. Thomas, 561 N.W.2d 37,
39 (Iowa 1997).
Testimony was only heard from Yang’s wife, Li Zhang, the victim.
Photographs of Li Zhang and a hammer were admitted into evidence. The trial
court at the close of the evidence found:
[B]eyond a reasonable doubt that the defendant, Shujun Yang, did
commit an Assault with a Dangerous Weapon; that on or about
September 18th, 2005, in Johnson County, Iowa, he did hit his wife
on multiple occasions with a hammer, causing her to sustain injury.
Further I am finding by evidence beyond a reasonable doubt that
the hammer as used in this manner was capable of causing death
or serious injury.
Substantial evidence, despite minor inconsistencies in Li Zhang’s testimony,
supports these findings.
AFFIRMED.
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