STATE OF IOWA, Plaintiff-Appellee, vs. ROBERT LOUIS HANES, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-583 / 08-1231
Filed August 19, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT LOUIS HANES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon Fister,
Judge.
Defendant appeals his conviction for willful injury causing serious injury.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha Lucey, Assistant
State Appellate Defender, for appellant.
Robert L. Hanes, Clarinda, appellant pro se.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Potterfield, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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BEEGHLY, S.J.
I.
Background Facts & Proceedings
On April 28, 2007, at about 11:00 a.m., Nathaniel Taylor was walking near
his home in Waterloo on his way to return some cans and bottles. He noticed
Robert Hanes coming from the opposite direction down the sidewalk. Taylor
testified that about a week earlier Hanes had given him $2.25 to go to a nearby
store to buy gizzards for him. Taylor stated that he did not buy the gizzards for
Hanes, or return the $2.25.
Taylor testified that as Hanes came closer he yelled out, ―Hey you. Do
you remember me?‖ Taylor offered his cans to Hanes. Hanes pulled out a knife
and said, ―I‘m going to kill you.‖ He grabbed Taylor and stabbed him in the face.
Taylor fought back, striking Hanes with a bag of cans and bottles, and then
striking him with his hand. Finally, Hanes said stop and walked away. A woman
came up, saw Taylor was injured and called 911.
Taylor was taken to the hospital. He had a cut on each side of his lower
lip, about three centimeters long. One side of his lip was cut through, and the
other side was nearly cut through. A plastic surgeon operated on Taylor to fix the
cuts to his face. Taylor received scars to his face, and he remains numb in his
lower lip and into the area of his upper chin.
Officers found Hanes a few blocks away.
Hanes had a knife on his
person, but it was not the knife used to attack Taylor. Hanes had some swelling
and bruising by his left eye and temple, and a laceration by the base of his ear.
A drop of blood on Hanes‘s boot matched the DNA of Taylor.
Hanes was
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charged with willful injury causing serious injury, in violation of Iowa Code section
708.4(1) (2007).
Hanes presented a defense of self-defense. At the criminal trial Hanes
testified he had no prior contact with Taylor, and Taylor attacked him
unprovoked. He stated he fought with Taylor because he feared for his life.
Hanes denied using a knife during the fight. Hanes stated that after the fight he
continued to walk home.
The jury returned a verdict finding Hanes guilty of willful injury causing
serious injury. Hanes was sentenced to a term of imprisonment not to exceed
ten years. He appeals his conviction.
II.
Ineffective Assistance
Hanes raises several issues alleging he received ineffective assistance
from his trial counsel. We review claims of ineffective assistance of counsel de
novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a
claim of ineffective assistance of counsel, a defendant must show (1) the
attorney failed to perform an essential duty, and (2) prejudice resulted to the
extent it denied defendant a fair trial. State v. Shanahan, 712 N.W.2d 121, 136
(Iowa 2006). Absent evidence to the contrary, we assume that the attorney‘s
conduct falls within the wide range of reasonable professional assistance. State
v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995).
A.
Hanes contends he received ineffective assistance because his trial
attorney did not object to the instruction defining ―serious injury.‖ The jury was
instructed:
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A ―serious injury‖ is a bodily injury which, if left untreated,
creates a substantial risk of death or which causes serious
permanent disfigurement, including scarring, or extended loss or
impairment of the function of any bodily part or organ.
Hanes asserts that instruction is misleading because the phrase, ―if left
untreated‖ could refer to a substantial risk of death or serious permanent
disfigurement.
He claims the jury could have found a serious injury if
Thompson‘s injury would have resulted in scarring if it had been left untreated.
The term ―serious injury,‖ as applicable in this case, is defined in section
702.18(1)(b), as a bodily injury which (1) creates a substantial risk of death, (2)
causes serious permanent disfigurement, or (3) causes protracted loss or
impairment of the function of any bodily member or organ. The risk of death may
be assessed before the victim receives treatment for the injuries.
State v.
Hilpipre, 395 N.W.2d 899, 904 (Iowa Ct. App. 1986) (citing State v. Anderson,
308 N.W.2d 42, 47 (Iowa 1981)). The State asserts the phrase ―if left untreated‖
refers only to the adjacent portion of the instruction—―creates a substantial risk of
death.‖
We determine that the jury instruction would have been more clear if the
phrase, ―if left untreated‖ was included after the word death, so that it would read:
―A ‗serious injury‘ is a bodily injury which creates a substantial risk of death, if left
untreated . . . .‖ On the other hand, we determine Hanes has not shown he was
prejudiced by counsel‘s failure to object to the jury instruction on this ground.
There was clear evidence that Taylor received a serious injury because he was
scarred and was permanently numb between his bottom lip and his chin.
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Hanes also claims that his trial counsel should have objected to the
instruction defining ―serious injury‖ because scarring is not a serious permanent
disfigurement per se. Serious permanent disfigurement may include permanent
scarring. See State v. Epps, 313 N.W.2d 553, 557 (Iowa 1981) (noting a serious
injury is one that leaves the victim permanently scarred or twisted); see also
State v. Phams, 342 N.W.2d 792, 796 (Iowa 1983) (finding victim‘s scars could
be considered serious permanent disfigurement). We determine Hanes has not
shown he received ineffective assistance of counsel on this ground.
B.
Hanes claims he received ineffective assistance because his
defense counsel did not object to the instruction on ―specific intent.‖ The last
paragraph of this instruction provides, ―Specific intent does not have to exist for
any particular length of time. It is sufficient if it exists any time before the act.‖
Hanes asserts that under this instruction there was no requirement that he have
the specific intent at the time of the act; he claims the jury could have found him
guilty if he had the specific intent to harm Taylor long before he acted, but not at
the time he acted.
The instruction also provided, ―determining the defendant‘s specific intent
requires you to decide what the defendant was thinking when an act was done . .
. .‖ We conclude the instruction was not misleading on the issue of when specific
intent was required. We conclude Hanes has not shown he received ineffective
assistance due to counsel‘s failure to object to the jury instruction on ―specific
intent.‖
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C.
During the trial the emergency room physician who attended
Taylor, Dr. Geoffrey Miller, testified as follows:
Q. And do you have an opinion within a reasonable degree
of medical certainty whether or not in your opinion this was a
serious injury? A. Definitely a serious injury and definitely longterm disfiguring injury.
Hanes contends he received ineffective assistance because trial counsel did not
object to this question on the ground that Dr. Miller was permitted to give an
opinion on a legal conclusion.
―[A] witness cannot opine on a legal conclusion or whether the facts of the
case meet a given legal standard.‖ In re Detention of Palmer, 691 N.W.2d 413,
419 (Iowa 2005). A court may determine a witness‘s opinion is not admissible if
there is a danger of the jury misunderstanding the legal terms used by the
witness. Id. at 420. The court considers ―whether the terms used by the witness
have a separate, distinct and specialized meaning in the law different from that
present in the vernacular.‖ Id. (citation omitted).
Even if we found defense counsel should have objected to Dr. Miller‘s
testimony that Taylor suffered a serious injury, we conclude Hanes was not
prejudiced by his counsel‘s performance.
As noted above, there was clear
evidence Taylor had a serious injury. He received permanent scars from the cuts
on his face, and he was permanently numb from his bottom lip down to his chin.
Hanes has not shown the result of his trial would have been different if defense
counsel had objected to Dr. Miller‘s testimony.
D.
During opening statements the prosecutor outlined anticipated
testimony from Paul McGonigle. McGonigle gave a voluntary written statement
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that he had seen police officers looking for someone on the morning of April 28,
2007, and he had pointed the defendant out to them. The statement continued:
The cop turned left and caught up to the guy on the other
side of the railroad tracks. I saw the cop catch up to him and saw
the cop pull out his gun and tell the guy to get down. The guy put
his hands up and got down on his knees. When he did this, I saw
something fall from his right hand.
The State tried to serve McGonigle with a subpoena, but he could not be found at
the time of trial. Hanes asserts that his attorney was ineffective by failing to
move for a mistrial because the prosecutor‘s opening statement did not match
the evidence presented at the trial.
We conclude Hanes has not shown he received ineffective assistance due
to his counsel‘s failure to move for a mistrial.
At the time of the opening
statements, the defendant had no grounds to object to the prosecutor‘s
statements because the State anticipated that McGonigle would be available as
a witness.
Later, when it was apparent McGonigle would not be testifying,
defense counsel pointed out this lack of evidence in the State‘s case during
closing arguments.
Defense counsel made a tactical decision to use the
prosecutor‘s statements to his advantage in closing argument.
See State v.
Ondayog, 722 N.W.2d 778, 786 (Iowa 2006) (noting improvident trial strategy,
miscalculated tactics, and mistakes in judgment do not necessarily amount to
ineffective assistance of counsel).
E.
Hanes raises several different claims of ineffective assistance of
counsel in a pro se brief on the following issues:
(1) a cell video was not
produced; (2) the State knew McGonigle was not a credible witness; (3) the
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plastic surgeon was not called to testify; (4) Dr. Miller testified to the plastic
surgeon‘s area of expertise; (5) certain tapes were not presented to the jury; (6)
depositions were not presented to the jury; (7) a nurse was not called as a
witness; (8) an unclear issue about jury selection; (9) the 911 tape was not
submitted as evidence; and (10) the defense attorney did not call certain
undisclosed witnesses.
―When complaining about the adequacy of an attorney‘s representation, it
is not enough to simply claim that counsel should have done a better job.‖
Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). ―The applicant must state the
specific ways in which counsel‘s performance was inadequate and identify how
competent representation probably would have changed the outcome.‖ Id.
Hanes has not stated how counsel‘s alleged inadequacies changed the
outcome of the trial. For instance, in stating that certain witnesses should have
been called, or other evidence presented, he does not state what additional
information would have been presented, and how this would have changed the
jury‘s verdict. We conclude Hanes has failed to show he received ineffective
assistance of counsel based on his pro se complaints.
III.
Hearsay Evidence
The following exchange took place during the testimony of Paula
Anderson, a nurse practitioner who treated Hanes:
Q. Okay. And when Mr. Hanes presented himself, your
hospital – to your hospital, what was his complaints? A. Mr.
Hanes‘s complaint is that he had been hit –
Ms. Griffith: Objection, Your Honor, to the hearsay.
Mr. Hoffey: Purposes of medical treatment, Your Honor.
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The Court: It‘s still – If it‘s – it‘s subject to that exception, but
it‘s not admissible because it would be exculpatory.
Hanes asserts the district court erred in it‘s ruling on the State‘s hearsay
objection. He claims his statements to Anderson should have been admissible.
Hanes failed to preserve error on this issue. An offer of proof is required
to preserve a claim the district court improperly excluded evidence. State v.
Greene, 592 N.W.2d 24, 27 (Iowa 1999). Hanes did not make an offer of proof,
and therefore there is no evidence of what Anderson would have testified if the
district court had ruled differently. Because he has failed to preserve error, we
do not further address this issue.
IV.
Jury Instruction
Jury Instruction No. 1 provided:
The duty of the jury is to determine if the defendant is guilty
or not guilty.
In the event of a guilty verdict, you have nothing to do with
punishment.
Criminal offenses may be punished by fines or community
service; by supervised or unsupervised probation; by placement in
a residential, correctional or violator facility; or by confinement in a
county jail or prison; depending on the circumstances of the case.
Accordingly, you may neither speculate on what any punishment in
this case might be nor let it influence your verdict.
Hanes objected on the ground that the last paragraph of the instruction
invited the jury to speculate as to what the defendant‘s possible punishment
might be. The district court overruled the objection, stating the court did not
believe the last paragraph was a misstatement of the law.
The court also
disagreed that the instruction would cause speculation because ―[i]t would be
fruitless to speculate in cases like that.‖
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A district court should not instruct a jury on the applicable penalties in a
case. State v. Hatter, 381 N.W.2d 370, 375 (Iowa Ct. App. 1985). ―The jury has
no concern with the punishment which the law prescribes.‖ State v. Piper, 663
N.W.2d 894, 915 (Iowa 2003) (quoting State v. Purcell, 195 Iowa 272, 274, 191
N.W. 849, 850 (1923)). ―[K]nowledge of the penalty would only serve to confuse
and distract the jury from its unique and important judicial function.‖ Hatter, 381
N.W.2d at 375.
The jury instruction here did not inform the jurors of the probable penalties
for the crime of willful injury. The jury instruction listed possible punishments for
crimes in general, and thus did not violate the proscription against instructing the
jury on the penalties in a case. Also, the instruction specifically informed the jury
―you may neither speculate on what punishment in this case might be nor let it
influence your verdict.‖ There is a general presumption that a jury follows its
instructions. See State v. Glaus, 455 N.W.2d 274, 278 (Iowa Ct. App. 1990).
We conclude the language objected to in Jury Instruction No. 1 was
surplusage that was neither helpful to the jury nor prejudicial to Hanes. We will
reverse only when an error in giving jury instructions results in prejudice to the
defendant. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). Hanes has not
shown he was prejudiced by this instruction.
We affirm Hanes‘s conviction.
AFFIRMED.
Vogel, P.J., concurs; Potterfield, J., dissents.
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POTTERFIELD, J. (dissenting)
I respectfully dissent and would grant Hanes a new trial based on the
district court‘s misleading jury instruction regarding punishment. I agree with the
majority‘s well-reasoned opinion that the district court‘s additions to the uniform
instructions on serious injury and specific intent contained some internal
consistencies. I also agree that Hanes has not carried the heavy burden on his
ineffective assistance claims to show that there is a ―reasonable probability‖ that,
but for counsel‘s failure to object to those instructions, ―the results of the
proceedings would have different.‖ Strickland v. Washington, 466 U.S. 668, 694,
104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). However, counsel did
object to the district court‘s addition to the instruction that advises jurors ―you
have nothing to do with punishment.‖ I believe Hanes has shown the additional
language was confusing, misleading, and prejudicial. The district court erred in
overruling counsel‘s objection to the additional language.
It is well-settled law in Iowa that, ―The trial court should in all criminal
cases refrain from instructing the jury with regard to the punishment provided by
statute for the crime with which a defendant is charged.‖ State v. Purcell, 195
Iowa 272, 274, 191 N.W. 849, 850 (1923) (involving an accurate instruction on
the punishment for the crime). The jury is to operate as a finder of fact and has
no concern with the penalty prescribed by law. Id. ―[K]nowledge of the penalty
would only serve to confuse and distract the jury from its unique and important
judicial function.‖ State v. Hatter, 381 N.W.2d 370, 375 (Iowa Ct. App. 1985)
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(involving a refusal to instruct on the accurate sentence for the crime and lesserincluded offense).
The statement to the jury of the possible punishment to be inflicted
in an instruction has been repeatedly condemned. It should not be
necessary to again repeat the caution. This court has, however,
repeatedly said that a reversal will not be based upon this ground
alone.
State v. Loucks, 253 N.W. 838, 841 (Iowa 1934).
We generally ―prefer the uniform instructions be followed by the trial
courts‖. State v. Holtz, 548 N.W.2d 162, 164 (Iowa Ct. App. 1996). We will not
reverse a verdict because of an erroneous jury instruction unless the defendant
shows prejudice. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). Such error
is presumed prejudicial ―unless the contrary appears beyond a reasonable doubt
from a review of the whole case.‖ State v. Caldwell, 423 N.W.2d 564, 567 (Iowa
Ct. App. 1988). ―Prejudice results when the trial court‘s instruction materially
misstates the law, confuses or misleads the jury, or is unduly emphasized.‖
Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000).
The district court‘s instruction listing a range of possible punishments for criminal
offenses was misleading to the jury.
The instruction would allow a juror to
conclude that probation was a possible punishment for Hanes, which is not
accurate because Hanes was on trial for a forcible felony. See Iowa Code §
907.3 (stating statutory language allowing deferred judgment and probation does
not apply to a forcible felony).
The majority finds the district court‘s addition to the uniform instruction
listed possible punishments for crimes ―in general‖ and was neutralized by that
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disclaimer and the admonition not to speculate on the punishment in this case.
However, the district court‘s language invited speculation and affirmatively misled
the jurors to believe erroneously that each of the listed punishments could be
imposed on Hanes.
The district court‘s rationale for giving the range of
punishments—that jurors are curious about sentencing considerations—simply
proves the point. The range of punishments, from probation to prison, in a case
where prison was the only legal sentence, undermined the gravity of the jury‘s
responsibility to apply the standard of proof beyond a reasonable doubt to the
State‘s evidence, encouraged speculation, and gave the jurors an incorrect
statement of the law as applied to the forcible felony for which Hanes was on
trial.
Defense counsel‘s timely objection to the language the district court added
to the uniform instruction should have been sustained. A review of the case
shows that the district court‘s error prejudiced Hanes.
Because the jury
instruction was misleading and prejudicial, I would reverse and grant Hanes a
new trial.
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