STATE OF IOWA, Plaintiff-Appellee, vs. MICHAEL JOHN OBERBROECKLING, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-973 / 09-0589
Filed December 30, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL JOHN OBERBROECKLING,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
Defendant appeals his conviction of domestic abuse assault, second
offense. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, Ralph Potter, County Attorney, and Robert Richter, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
2
MANSFIELD, J.
Michael Oberbroekling appeals his conviction of second offense domestic
abuse assault in violation of Iowa Code section 708.2A(3)(a) (2007).
The
conviction stems from an October 21, 2007 incident when Michael allegedly
struck his wife, Pamela Oberbroekling, in the face with a metal tray. Michael
argues the district court erred in admitting testimony of Pamela and a police
officer as to out-of-court statements made by the couple’s seven-year-old son
regarding the incident. Because we conclude Michael has not established the
testimony should not have been admitted under the excited utterance exception
to the hearsay rule, we affirm.
I. Facts and Procedural Background.
This case went to a jury trial commencing October 13, 2008. According to
Pamela’s trial testimony, Michael, herself, and their son Marvin were in the
apartment on the day in question. Pamela and Michael had a rocky relationship.
Both Pamela and Michael had been drinking that day. Michael fell asleep on the
couch.
Pamela testified that after cooking supper, she sat down on the reclining
chair that was located in the same room as the couch. She began to roll a
cigarette on a metal tray that was in front of her. Michael “got up out of the blue
and came over to me and grabbed the tray out of my hand and hit me in the face
with it a few times.” According to Pamela, Marvin saw the incident from the
hallway. As soon as she was hit by the tray, Pamela grabbed Marvin and fled
upstairs to a neighbor. She asked the neighbor to call the police.
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When the police arrived, both Pamela and Marvin related what they had
seen. Pamela refused to give a written statement, however.
Officer Brook Huberty testified that she was one of the officers who
responded to the call. She confirmed that she interviewed both Pamela and the
seven-year-old son Marvin. She also looked for Michael; however, Michael had
left the apartment.
According to Huberty’s testimony, Pamela said she and her husband had
been arguing over a divorce throughout the day, both of them had been drinking,
and Michael had struck her with the tray at a time when their argument resumed.
Huberty noticed a red mark and a lump over Pamela’s left eye. Huberty testified
that Pamela gave indications to her of being under the influence but still
appeared to have her mental abilities when she interviewed her.
Huberty also said she saw a metal TV tray on the floor of the living room
of the apartment. She did not see any signs of a disturbance.
Officer Ted McClimon testified that he also responded to the call and took
photographs of the tray, which were introduced into evidence at trial. McClimon
confirmed the lump above Pamela’s left eye. A photograph of this injury was
also introduced, although McClimon conceded it was somewhat difficult to see
the lump. McClimon confirmed that the officers were unable to locate Michael
that evening.
Officer Michael McTague testified that he came upon Michael the following
morning at his residence and placed him under arrest. At the law enforcement
center, Michael gave both oral and written statements indicating there had been
4
an argument between himself and Pamela, that nothing physical happened, and
that he left because Pamela was “hot.”
The son, Marvin, did not testify at trial. However, during the State’s case
in chief, both Pamela and Officer Huberty testified regarding statements made by
Marvin to Officer Huberty following the incident.
Over Michael’s hearsay
objection, Pamela was permitted to testify that Marvin told Officer Huberty her
father had hit Pamela with a tray. Later, when Huberty took the stand herself,
she also testified—without objection—that Marvin told her his father had hit his
mother with a tray. Pamela characterized Marvin as “scared to death”; Huberty
testified that Marvin “appeared shooken up.”
Michael Oberbroekling took the stand in his own defense.
He again
denied striking Pamela, but for the first time added the detail that Pamela had
bruised her forehead that day by walking into their entertainment center.
During deliberations, the jury sent out a written question, “Was the child’s
statement recorded or documented in writing? Can we ask for this information.”
After receiving a negative answer, the jury found Michael guilty of domestic
abuse assault, a lesser-included offense of the original charge of domestic abuse
assault causing bodily injury.
Michael moved for a new trial, arguing that the district court erred in
admitting hearsay testimony concerning statements made by Marvin. The district
court denied the motion. Based on Michael’s stipulation to a prior offense, he
was found guilty of being a second offender, and was sentenced to ninety-two
days in jail, with ninety of those days suspended.
5
Michael now appeals, raising the same grounds he asserted in his
unsuccessful motion for new trial.
II. Analysis.
Because Michael objected at trial to Pamela’s testimony regarding
Marvin’s statements but not to Officer Huberty’s testimony, two different sets of
legal standards need to be considered. Hearsay rulings are reviewed for errors
at law.
State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006).
Hearsay is not
admissible unless it falls within one of the exceptions to the rule. Id. The State
has the burden of proving that hearsay falls within an exception. State v. Cagley,
638 N.W.2d 678, 681 (Iowa 2001).
However, when no contemporaneous
objection is made, the issue becomes whether the defendant received ineffective
assistance of counsel. State v. Martin, 704 N.W.2d 665, 669 n.2 (Iowa 2005).
Ineffective assistance claims are reviewed de novo, and the defendant bears the
burden of proof on all aspects of this claim.
Id.
If the defendant cannot
affirmatively establish that the evidence was inadmissible hearsay, the ineffective
assistance claim necessarily fails because counsel cannot be ineffective “for
failing to make a meritless objection.” State v. Belken, 633 N.W.2d 786, 801
(Iowa 2001).
Although two different standards are involved, we believe this appeal can
be simplified somewhat for purposes of our analysis.
Pamela’s testimony
regarding Marvin’s statements was cumulative of Officer Huberty’s testimony
regarding the same statements. A jury would logically find Huberty’s testimony
much more important and persuasive. Pamela’s testimony about what her son
supposedly said adds little value to her own testimony about the incident. Either
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a jury will believe Pamela or it will not. However, Huberty’s testimony that Marvin
told him essentially the same version of the assault as Pamela did is significant,
especially given Pamela’s admitted use of alcohol that day and inconsistencies in
her testimony.
Thus, we conclude that any error with respect to the admission of
Pamela’s hearsay testimony regarding Marvin’s statements was harmless, in
light of Huberty’s unobjected-to testimony regarding the same statements. See
State v. Thomas, 766 N.W.2d 263, 272 (Iowa Ct. App. 2009) (holding “we will not
find prejudice if the admitted hearsay is merely cumulative”).1 We therefore turn
to whether Michael received ineffective assistance of counsel when his attorney
failed to object to Huberty’s testimony.
Ordinarily, we preserve ineffective assistance claims for possible
postconviction relief proceedings. This enables a more complete record to be
made regarding the reasons for counsel’s action or inaction and any prejudice
suffered by the defendant. However, if the record on direct appeal shows the
defendant cannot prevail on such a claim as a matter of law, it is appropriate to
resolve it then. State v. Schaer, 757 N.W.2d 630, 637-38 (Iowa 2008) (quoting
State v. Musser, 721 N.W.2d 734, 752-53 (Iowa 2006)).
The State argues that Michael cannot show a timely objection to that
testimony would have been successful, because Marvin’s statements qualified as
an excited utterance. See Iowa R. Evid. 5.803(2) (providing that a statement
1
Michael has not claimed the admission of testimony regarding Marvin’s
statements violated his rights under the Confrontation Clause of the Sixth Amendment or
its Iowa counterpart (Art. I § 10 of the Iowa Bill of Rights). His arguments are limited to
the Iowa hearsay rule itself.
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“relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition” is not excluded by the
hearsay rule).
In ruling on this exception, the trial court should ordinarily
consider:
(1) the time lapse between the event and the statement, (2) the
extent to which questioning elicited the statements that otherwise
would not have been volunteered, (3) the age and condition of the
declarant, (4) the characteristics of the event being described, and
(5) the subject matter of the statement.
Cagley, 638 N.W.2d at 681 (quoting State v. Atwood, 602 N.W.2d 775, 782 (Iowa
1999)). Here we believe those factors would have permitted admission of the
testimony. The time elapsed was brief, presumably less than the two to two and
a half hours involved in Atwood. 602 N.W.2d at 782. The event, i.e., seeing
one’s father hit one’s mother with a metal tray, was clearly a startling event. The
boy was described by Huberty as “shooken up” at the time.
Although the
statement was given in response to police questioning, a factor that was also
present in Atwood, id., Huberty testified that the questioning was open-ended: “I
basically just asked him what happened and that’s exactly what he told me.” In
short, Michael is unable to demonstrate that an objection to Huberty’s testimony
would have been sustained. Based on the record before us, Marvin’s statement
“relat[ed] to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.”
See Iowa R. Evid.
5.803(2).
For the foregoing reasons, we affirm Michael Oberbroekling’s conviction
and sentence.
AFFIRMED.
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