STATE OF IOWA, Plaintiff - Appellee, vs. ANTHONY MARCELLUS COLE , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-414 / 07-0832
Filed November 13, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANTHONY MARCELLUS COLE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, James D. Coil,
District Associate Judge, and Kellyann M. Lekar, Judge.
Anthony Cole appeals from judgment and sentence entered upon his
convictions for attempted murder, assault, willful injury causing serious injury
while armed with a firearm, two counts of reckless use of a firearm causing
serious injury, and felon in possession of a firearm. AFFIRMED.
Eric K. Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Cook, Parrish,
Gentry & Fisher, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant
County Attorney, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Potterfield, JJ.
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HUITINK, P.J.
Anthony Cole appeals from judgment entered upon his convictions for
attempted murder, assault, willful injury causing serious injury, two counts of
reckless use of a firearm causing serious injury, and felon in possession of a
firearm. He contends the trial court erred: (1) in denying the defendant’s motion
for a mental health expert of his choosing; (2) in granting the Waterloo Courier’s
motion to quash the testimony of a reporter and otherwise presenting evidence of
a prosecutor’s characterization in a different trial of the defendant as a “hunted
man”; (3) in denying his motion for mistrial when a witness made statements
contrary to an in limine ruling; and (4) in failing to recuse itself. He also argues
the evidence was insufficient to sustain his convictions. We affirm.
I. Denial of Expert Witness. Anthony Cole was initially charged in 2003.
He asserted defenses of diminished capacity and self-defense, and in support of
those defenses he retained the services of Dr. Rosalyn Schultz through an expert
witness referral service, TASA. Cole entered into a contract of service whereby
TASA imposed a twenty percent premium on the expert’s services.
After
entering into the contract, Cole asked the court to cover the costs of Dr. Schultz’s
services as Cole was indigent. The court entered a ruling that Dr. Schultz was
entitled to the reasonable cost of her services.
In February 2004, at Cole’s first trial, Dr. Schultz testified about the trauma
Cole experienced when he was kidnapped and the repercussions for him
psychologically after the kidnapping.
Dr. Schultz opined that due to the
kidnapping Cole suffered from posttraumatic stress disorder on March 6, 2003.
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Dr. Schultz further opined that Cole was unable to form the specific intent on
March 6, 2003, to harm either Landfair or Walker.
In the present proceedings concerning the 2003 shootings, Cole again
asserted the defenses of diminished capacity and self-defense. Cole sought to
have a different mental health expert authorized by the court, arguing that a
previous fee dispute with Dr. Schultz would effectively deny him his defense
witness. The trial court denied the request. At trial, Cole sought to have Dr.
Schultz appear and present testimony. Dr. Schultz informed the court she would
not appear unless she was provided $2500 in advance.
In a telephone
conference, the court assured Dr. Schultz that her reasonable fees and travel
expenses would be paid.
Dr. Schultz did not respond to efforts by Cole to obtain her presence and
live testimony. Dr. Schultz’s previous trial testimony was presented to the jury.
Cole argues that his constitutional right to a defense was violated by the trial
court’s failure to appoint a different mental health expert witness.
A.
Scope and standard of review. A mistrial is appropriate when “an
impartial verdict cannot be reached” or the verdict “would have to be reversed on
appeal due to an obvious procedural error in the trial.” State v. Dixon, 534
N.W.2d 435, 439-40 (1995). We review the denial of a motion for mistrial for
abuse of discretion. Id. at 439. To the extent the right of attaining an expert
witness falls within the sixth amendment, our review is de novo. State v. Barker,
564 N.W.2d 447, 450 (Iowa Ct. App. 1997).
B.
Merits.
We acknowledge that an indigent defendant’s right to
effective assistance includes the right to public payment for reasonable expert
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services. Id. at 451. Cole was provided—at public expense—an expert witness
with respect to his mental health.1 At trial, Cole presented the testimony of that
expert in support of his claim of diminished capacity. Cole now states he was
denied a “competent” expert “in light of [the trial court’s] refusal to ensure
defendant’s expert was adequately reassured she would be compensated for her
time.” The State argues that Cole did not use available subpoena procedures in
a timely manner to ensure Dr. Schultz’s appearance.
Dr. Schultz’s testimony was provided by reading former testimony into the
record. Cole provides no authority for finding that this method of introducing his
evidence of diminished capacity results in a finding that the expert was thereby
rendered incompetent. We find the trial court did not abuse its discretion with
respect to the request for a different expert witness or with respect to refusing to
provide Dr. Schultz with advance payment of the demanded amount. See id.
(noting defendant’s entitlement to reasonable expert services, but not “anything
which a wealthy one could purchase”). Moreover, we note the trial court offered
Cole the following accommodations: a continuance to allow Cole extra time to
seek Dr. Schultz’s personal appearance at trial; assistance in obtaining an
interstate subpoena; and introduction of Dr. Schultz’s prior trial testimony over
the State’s objection.
Expert testimony in support of Cole’s defenses was
presented. We find no violation of Cole’s sixth amendment rights.
II. Denial of Motion to Quash Testimony. Cole subpoenaed a reporter
for the Waterloo Courier to testify about statements made by an assistant county
attorney to a jury in the criminal trial of David Willock, a person implicated in the
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Cole was also provided a ballistics expert and an investigator.
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kidnapping of Cole. It is Cole’s contention that the assistant county attorney’s
purported statement that Cole was a “hunted man” was relevant to his defense of
self-defense. The trial court quashed the subpoena, ruling that any statements
made in court at Willock’s trial by the assistant county attorney were inadmissible
in Cole’s trial. The trial court ruled that the statements were hearsay and would
be misleading because the county attorney would not be speaking from personal
knowledge. Cole argues the statements went to the heart of his defense and that
the statements are admissible as admissions of a party opponent or statements
against interest or opinions by a lay witness.
A.
Scope and standard of review.
A court has wide discretion in
determining whether to quash a subpoena. Morris v. Morris, 383 N.W.2d 527,
529 (Iowa 1986).
We review for an abuse of that discretion.
See id.
Constitutional claims are reviewed de novo. See Rhiner v. State, 703 N.W.2d
174, 176 (Iowa 2005).
B.
Merits. Cole asserts that a large part of his case relied upon his
claim that he shot Walker and Landfair in self-defense. His self-defense claim
rested upon his belief that several people threatened to harm him if he testified
against David Willock. His claim of diminished capacity relied upon his suffering
from posttraumatic stress as a result of his kidnapping and his constant fear that
he was being hunted. He argues that the proffered testimony of the newspaper
reporter or the assistant county attorney corroborated his defenses.
We are not at all sure the attorney’s statement to a jury that Cole was a
hunted man could be considered an admission of a party opponent. But, even if
considered an admission, Cole has not shown such a statement was “made for
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the express purpose of dispensing with formal proof of a fact at the trial.” See
State v. Howell, 290 N.W.2d 355, 359 (Iowa 1980) (noting that for an admission
of an attorney to bind a client, it must be “distinct and formal and made for the
express purpose of dispensing with formal proof of a fact at the trial”).
Finally, even were we to assume the statement was admissible, and that
the statement could be offered via a court reporter, we find Cole suffered no
prejudice. State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999) (“Even if an abuse of
discretion is found, reversal is required only when the abuse is prejudicial.”). The
trial court did not keep Cole from offering evidence that he was a “hunted man.”
Cole presented numerous witnesses who testified that Cole and his girlfriend had
been the victims of a kidnapping; that David Willock was convicted of kidnapping
Cole prior to the shooting at issue here; that there were several other crimes in
the area involving more than one perpetrator that were possibly connected to
Cole’s kidnapping; that Cole’s kidnapping had a traumatic effect on him; and that
it was Dr. Schultz’s opinion that as a result of the situation, Cole suffered from
posttraumatic stress disorder, feared for his safety, and was not able to form the
specific intent to harm those he shot. Under this record, we find there was no
error in disallowing testimony of the attorney’s statement to a different jury.
III. Violation of In Limine Ruling.
Prior to trial, the court granted
defendant’s motion in limine and prohibited any mention of defendant’s first trial
in front of the jury. At trial, the State’s first witness, Jimmie Walker, took the
stand and, during the course of his testimony, Walker was asked: “After you were
taken to the hospital, did you ever see that coat again, other than when I had
displayed it to you previously?” Walker responded, “In the first trial.”
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Outside the presence of the jury, Cole moved for a mistrial. During voir
dire Walker asserted that he had not been told not to mention the first trial. Cole
asserted a mistrial was proper on grounds of prosecutorial misconduct and the
admission of evidence contrary to the court’s ruling.
The State offered the testimony of Robert Duncan, an investigator, who
stated that the prosecutor had cautioned Walker not to mention the first trial.
The trial court concluded that Walker’s statement, though inadmissible,
was not so prejudicial as to warrant a mistrial. The court also found there was no
prosecutorial misconduct, distinguishing between what Walker was told and what
he heard. When proceedings before the jury resumed, the court instructed the
jury that the last statement was stricken and they were to disregard it.
A.
Scope and standard of review. A mistrial is appropriate when “an
impartial verdict cannot be reached” or the verdict “would have to be reversed on
appeal due to an obvious procedural error in the trial.” Dixon, 534 N.W.2d at
439-40. “A trial judge has considerable discretion to declare a mistrial after a
procedural error has occurred during a trial and we will not reverse the court’s
decision absent a finding of abuse of discretion.” Id. at 439.
B.
Merits. The trial court found that Walker’s statement was not so
prejudicial as to warrant a mistrial. The court stated it intended to instruct the jury
to disregard it.
The jury was admonished to disregard the statement.
We
presume the jury followed the court’s instruction absent evidence to the contrary.
State v. McMullin, 421 N.W.2d 517, 520 (Iowa 1988).
We conclude the court did not abuse its discretion in denying Cole’s
motion for mistrial based on Walker’s statement.
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IV. Failure to Recuse.
Following the trial court’s ruling excluding
evidence of statements by the assistant county attorney, Cole asked the court to
recuse itself because he “was stunned by the court’s rulings” and expressed a
belief that there were “inherent biases” that had “manifested themselves in the
various ruling of this court to date.” Cole now enumerates six specific rulings he
asserts support the motion to recuse.
A.
Scope and standard of review. There is a constitutional right to
have a neutral and detached judge. State v. Mann, 512 N.W.2d 528, 532 (Iowa
1994). A judicial officer is disqualified from acting in a proceeding if the officer
has a personal bias. See State v. Haskins, 573 N.W.2d 39, 44 (Iowa Ct. App.
1997). The test is whether a reasonable person would question the judge’s
impartiality. Id. Actual prejudice must be shown before a recusal is necessary.
Id. The trial court’s decision will not be overturned unless there has been an
abuse of discretion. State v. Smith, 282 N.W.2d 138, 142 (Iowa 1979).
B.
Merits.
We find Cole’s claims of legal error, without supporting
authority, insufficient to sustain his burden of establishing prejudice. That some
of his motions were overruled is insufficient to assert bias. We hold the trial court
did not abuse its discretion in overruling Cole’s motion for recusal.
V. Substantial evidence to support the verdict. Cole contends there is
insufficient evidence to convict him on any count because the State did not
disprove his claim of self-defense and diminished capacity.
A.
Scope and standard of review. When reviewing the sufficiency of
the evidence for a guilty verdict, we view the evidence in the light most favorable
to the State, including all legitimate inferences and presumptions which may be
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fairly and reasonably deduced from the evidence in the record.
State v.
Thornton, 498 N.W.2d 670, 673 (Iowa 1993). A jury verdict is binding upon this
court, and we must uphold the verdict unless the record lacks substantial
evidence to support the charge. Id.
B.
Merits.
Cole argues that considering all the evidence, the jury
could not conclude that he did not act in self-defense and that he did not suffer
from diminished responsibility.
defenses.
Cole did present evidence in support of his
Evidence was presented from which the jury could reject those
defenses.
We note that the credibility of witnesses, in particular, is for the jury: “The
jury is free to believe or disbelieve any testimony as it chooses and to give weight
to the evidence as in its judgment such evidence should receive.” Thornton, 498
N.W.2d at 673. The jury was not required to accept Cole’s expert’s opinion as to
his inability to form specific intent. See State v. Jacobs, 607 N.W.2d 679, 685
(Iowa 2000) (stating that trier of fact is not obligated to accept opinion evidence,
even from experts, as conclusive).
There was evidence presented that Cole shot Walker, pushed him to the
ground, and again shot him while Walker was face-down on the ground; that
Walker’s arm was amputated after the shooting; that Cole shot at Landfair and
stated “you’re not going to get away”; and that but for medical intervention
Landfair could have died from his injuries. We have reviewed and conclude the
record evidence supports each of Cole’s convictions for attempted murder,
assault, willful injury causing serious injury, two counts of reckless use of a
firearm causing serious injury, and felon in possession of a firearm.
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Conclusion. The trial court did not err in: denying the defendant’s motion
for a mental health expert of his choosing; granting the Waterloo Courier’s motion
to quash the testimony of a reporter and otherwise presenting evidence of a
prosecutor’s characterization in a different trial of the defendant as a “hunted
man”; denying defendant’s motion for mistrial when a witness made statements
contrary to an in limine ruling; or refusing to recuse itself. There is substantial
evidence in the record to sustain his convictions. We affirm.
AFFIRMED.
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