State Of Iowa v. Mohamed

• Decision Date: 22 December 2010
• Docket Number: No. 0-796 / 10-0302,0-796 / 10-0302
• Parties: STATE OF IOWA, Plaintiff-Appellee, v. ATIF EL SIR MOHAMED, Defendant-Appellant.
• Court: Iowa Court of Appeals

STATE OF IOWA, Plaintiff-Appellee,

v.ATIF EL SIR MOHAMED, Defendant-Appellant.

No. 0-796 / 10-0302

COURT OF APPEALS OF IOWA

Filed December 22, 2010

Appeal from the Iowa District Court for Johnson County, Stephen C. Gerard II, District Associate Judge.

Defendant Atif Mohamed appeals from the judgment and sentence entered on his convictions for indecent exposure. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Janet M. Lyness, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.

Heard by Sackett, C.J., and Vogel and Vaitheswaran, JJ. Tabor, J., takes no part.

VOGEL, J.

Defendant Atif Mohamed appeals from the judgment and sentence entered on his convictions following a jury trial for indecent exposure in violation of Iowa Code section 709.9 (2007). The district court imposed a 365 day sentence with all but thirty days suspended, two years probation, and ordered he register as a sex offender. Mohamed asserts counsel was ineffective for failing to (1) object to questions submitted by jurors to be asked of witnesses; (2) seek admission of the victim's alcohol-related convictions, after the victim opened the door to such evidence; and (3) object to Sergeant Brotherton's testimony that she believed Mohamed committed the offense. We affirm.

I. Background Facts and Prior Proceedings

The jury could have found the following facts: On August 2, 2008, the victim and a female friend took a cab to a bar in Iowa City driven by Atif Mohamed of Number One Cab Company. They arrived downtown around 11:00 p.m. The victim testified she drank two long island iced teas, and her friend drank three seven-and-seven's. At approximately 1:00 a.m., they again called the cab company, and Mohamed responded to the call. The victim and her friend entered the cab along with three men. The victim's friend and the three men went to another party, and the victim continued home. After the four others left, Mohamed asked the victim to sit in the front seat and she agreed. He complimented the victim, telling her she was beautiful, and then as they were driving, he began touching her—first her arm, then upper chest, and she was upset by this. When he touched her breast, she testified she told him to stop, and he did. She stated, "take me home" and turned away. The victim thentestified, "I was looking out the window, avoiding him; and I heard his zipper unzip. I looked over; and umm, his penis was out of his pants." She saw him holding his penis, told him that was "extremely inappropriate" and to take her home. He apologized, and she "raised her voice" saying, "Just stop! Take me home. Take me home." He then took her home; she did not pay the cab fare. She called her friend immediately, and called her parents the following day. A day after that, she called the police and gave a statement to Sergeant Denise Brotherton. Sergeant Brotherton interviewed Mohamed on August 6.

Mohamed confirmed during his testimony that he asked the victim to sit in the front seat, complimented her, but denied exposing himself or touching her. He asserted she was very intoxicated and he had to help her into the front seat, and fasten her seatbelt. Sergeant Brotherton, on the other hand, testified that while questioning Mohamed, he did not indicate the victim was intoxicated nor needed any help into the cab.

A jury trial was held on August 10, 2009. Jurors were allowed to submit questions directed to the victim as well as to another witness for the State. The questions were shown to both the prosecutor and Mohamed's defense counsel, and then asked by the court to the witnesses. Counsel was then allowed to conduct additional re-direct and re-cross examination. A slight modification occurred when Mohamed was testifying, as his defense counsel was allowed to choose which jury submitted questions would be asked of him. The questions were then asked by defense counsel and the State was allowed to follow with re-cross examination. There was never direct interaction between the jurors and the witnesses. The jury subsequently returned a guilty verdict, finding Mohamedguilty of indecent exposure in violation of Iowa Code section 709.9. Following imposition of judgment and sentence, Mohamed appeals.

II. Standard of Review-Ineffective Assistance of Counsel

We review ineffective-assistance-of-counsel claims de novo. State v. Stewart, 691 N.W.2d 747, 750 (Iowa 2004). In order to succeed on a claim of ineffective assistance of counsel, a defendant must prove by a preponderance of evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. State v. Fountain, 786 N.W.2d 260, 262 (Iowa 2010). A claim may be resolved on either prong. Id. To establish prejudice, Mohamed must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See State v. Bugley, 562 N.W.2d 173, 178 (Iowa 1997). If "the court determines the claim cannot be addressed on appeal, the court must preserve it for a postconviction-relief proceeding, regardless of the court's view of the potential viability of the claim." State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).

A. Juror Questions

Citing due process violations of the Sixth and Fourteenth Amendments of the United States Constitution, and Article One, Section Ten of the Iowa Constitution, Mohamed asserts he was denied effective assistance of counsel and hence a fair trial, as his counsel failed to object to questions submitted by jurors to be asked of witnesses.¹

Mohamed claims the procedure of allowing the jury to ask questions amounted to "structural error." See State v. Feregrino, 756 N.W.2d 700, 705-06 (Iowa 2008) (explaining that while ordinarily a defendant claiming ineffective assistance of counsel must show both a breach of duty and prejudice, in the context of deprivation of a constitutional right, the violation can amount to a structural defect in which prejudice is presumed). Mohamed correctly notes that our supreme court has approved jury questioning only in civil cases, not criminal cases. Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550, 555 (Iowa 1980). Mohamed acknowledges judges can ask questions of witnesses, even in criminal cases. See State v. Dixon, 534 N.W.2d 435, 441 (Iowa 1995) (allowing judge questioning). While he cites to various jurisdictions that approve jury questions in criminal cases, he notes that they do so with cautionary limits in place. See United States v. Rawlings, 522 F.3d 403, 408 (D.C. Cir. 2008); United States v. Collins, 226 F.3d 457, 462-63 (6th Cir. 2000); United States v. Amjal, 67 F.3d 12, 15 (2nd Cir. 1995). Mohamed also references jurisdictions that disapprove of the use of jury questions, citing misuse or prejudice to defendant. See Wharton v. State, 734 So.2d 985, 990 (Miss. 1998); State v. Zima, 468 N.W.2d 377, 379 (Neb. 1991); Morrison v. State, 845 S.W.2d 882 (Tex. Crim. App. 1992). Mohamed's appellate brief urged retention of this appeal by our supreme court, and he asserts the court "should invoke its supervisory authority to prohibit the practice due to its attendant risks" and "adopt specific safeguards for use in conjunction with jury questioning." As the case was transferred to this court, we focus on his specific claims that counsel breached an essential duty by failing to object to the practice of jury questioning. He claimssuch a breach resulted in a structural error, causing him prejudice. In the alternative, he asserts he suffered actual prejudice because the jurors had to speculate as to the jury questions which were submitted but not asked of the witnesses, and the court gave no instruction as to any implications of which questions were not asked.

The State responds that defense counsel had no duty to raise the issue of jury questioning in criminal cases, even if it is an unsettled question, because in the civil context, the Iowa Supreme Court has approved the use of jury questions. See State v. Vance, ___ N.W.2d ___, ___ (Iowa 2010) (explaining that in an open question of law, the attorney's failure to lodge an objection may not be apparent from the record, and hence does not automatically constitute ineffective assistance of counsel); Rudolph, 293 N.W.2d at 555 (discussing jury questions in the civil context). Moreover, the State asserts the procedure of jury questioning used by the district court was consistent with the Rudolph case, and should be followed, as the majority of jurisdictions approve of the practice in criminal cases. The Rudolph court found,

As finders of fact, jurors should receive reasonable help in resolving legitimate questions which trouble them but have not been answered through the interrogation of witnesses by counsel. Of course the questions must call for admissible evidence, and trial court discretion must be exercised to prevent abuse of the practice.

Rudolph, 293 N.W.2d at 556. Rudolph sets a precedent for civil cases in Iowa that the court has discretion in allowing jury questions. Id.

Mohamed relies heavily on the Costello case out of Minnesota, which does not allow juror questions. State v. Costello, 646 N.W.2d 204 (Minn. 2002) (stating that Minnesota Supreme Court acknowledged the current trend towardjuror questioning, but found such questions may prevent jurors from keeping an open mind and upset the burden of proof, and therefore did not allow juror questioning). The State is critical of this case, as in the eight years since the opinion was issued, other states have not followed Minnesota's lead by adopting this minority position. In jurisdictions where the issue has arisen, courts have generally recognized the discretion of the trial court to allow such questions. Rudolph, 293 N.W.2d at 555, citing See, e.g., United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.), cert....