State v. Breitbach, 91-322

• Decision Date: 17 June 1992
• Docket Number: No. 91-322,91-322
• Citation: 488 N.W.2d 444
• Parties: STATE of Iowa, Appellee, v. Thomas J. BREITBACH, Appellant.
• Court: Iowa Supreme Court

Page 444

488 N.W.2d 444

STATE of Iowa, Appellee, v. Thomas J. BREITBACH, Appellant.

No. 91-322.

Supreme Court of Iowa.

June 17, 1992.

Linda Del Gallo, State Appellate Defender, and Andi S. Lipman, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Thomas G. Fisher, Jr., Asst. Atty. Gen., Fred H. McCaw, County Atty., and Timothy J. Gallagher, Asst. County Atty., for appellee.

Considered by SCHULTZ, P.J., and LAVORATO, NEUMAN, SNELL and ANDREASEN, JJ.

SNELL, Justice.

Appellant, Thomas J. Breitbach, appeals his conviction of escape in violation of Iowa Code section 719.4(1) (1989). Breitbach challenges his conviction on the basis of three asserted errors. First, he contends that defense counsel's failure to move for a judgment of acquittal at the close of the State's evidence denied him effective assistance of counsel. Second, he maintains that he was denied effective assistance of counsel in that his attorney failed to move for a mistrial in response to two items of State's evidence that were ultimately determined to be inadmissible. Finally, Breitbach argues that the jury instructions were deficient in two respects. Because we find no merit in any of Breitbach's three claims, we now affirm his conviction.

I. Background Facts.

On September 12, 1990, officers went to the residence of Breitbach's girlfriend, Melissa Kramer, and left a message for Breitbach, which requested him to contact them. After receiving the message, Breitbach contacted officer Michael Chapman, who indicated that he wished to speak with Breitbach and requested that he stop at the police station. Breitbach responded that he was "busy" but invited the officers to come to Kramer's residence for the requested discussion.

That same evening, officer Chapman and two other plainclothed officers went to Kramer's residence with a warrant for Breitbach's arrest. The warrant charged Breitbach with delivery of cocaine. Upon arriving, the officers knocked on the door, identified themselves, and requested to speak with Breitbach. Breitbach came to the door, apparently just having taken a shower since he was clothed only in a pair of shorts and his hair was wet. The officers testified that they told Breitbach that they had a warrant for his arrest for delivery of cocaine and that he would have to come with them. The officers also indicated that at this time they showed Breitbach their identification.

As they stood on Kramer's front porch, Breitbach asked officer Chapman for permission to go inside and speak with his girlfriend. In response, officer Chapman said "go in and talk to her." As officer Chapman turned to reenter Kramer's apartment, Breitbach jumped off the porch and bolted past the two other officers.

The officers searched the neighborhood unsuccessfully. Breitbach was later apprehended. He was tried, convicted, and sentenced to a term of imprisonment not to exceed five years for violating Iowa Code section 719.4(1), which reads in pertinent part as follows:

A person ... arrested for the commission of a felony, who intentionally escapes from ... the custody of any public officer or employee to whom the person has been entrusted, commits a class "D" felony.

II. Failure to Move for a Judgment of Acquittal.

Breitbach first contends that he was denied effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments, when his trial counsel failed to move for a judgment of acquittal at the close of the State's evidence. Our standard of review for ineffective-assistance-of- counsel claims is de novo. Polly v. State, 355 N.W.2d 849, 854 (Iowa 1984).

To sustain a claim of ineffective assistance of counsel, Breitbach must show that "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). Breitbach has the burden of proving both of these elements by a preponderance of the evidence. Id. In determining whether defense counsel failed to perform an essential duty, "[t]he ultimate test is whether under the entire record and totality of the circumstances, counsel's performance was within the range of normal competency." Id. In evaluating the second prong of a claim of ineffective assistance of counsel, prejudice, we have required a showing that but for counsel's unprofessional errors, a reasonable probability of acquittal existed. Id. Finally, to the extent we conclude that Breitbach has suffered no prejudice, we need not pass on the question of counsel's competency. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984) ("If it is easier to dispose of ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").

In determining whether a motion for judgment of acquittal would be successful, the relevant inquiry is whether the evidence presented is sufficient to sustain a conviction of the offense in question. Iowa R.Crim.P. 18(8)(a). That is, there must be presented "such evidence as could convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt." State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988). In making this determination, "[w]e must examine the evidence in the light most favorable to the verdict." State v. Clarke, 475 N.W.2d 193, 197 (Iowa 1991). In addition, we consider the entire record and accept all legitimate inferences therefrom to support the verdict. State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990).

The jury was instructed that to find Breitbach guilty of escape, the State must prove the following three elements beyond a reasonable doubt:

1. The defendant had previously been arrested for a felony.

2. By reason of the arrest, the defendant had been placed in the custody of Michael Chapman and others, who were public officers.

3. That on or about the twelfth day of September, 1990, the defendant intentionally escaped from the custody of Michael Chapman and others, without consent or authority.

Breitbach contends that the State failed to establish that he was in custody at the time he made his departure from the officers. Breitbach maintains that the circumstances surrounding his "encounter" with the police led him to believe that he was not in custody and was thus free to leave. In support of his position, Breitbach notes that he was not physically restrained in any manner by the officers, the officers did not display any weapons, and the officers did not read him his Miranda rights. Breitbach argues that these circumstances, in conjunction with the fact that the officers had expressly allowed him to return to the apartment to speak with his girlfriend, engendered in him a reasonable belief that he was not then in "custody." Consequently, Breitbach contends, the State failed to adduce such evidence as would convince a rational trier of fact that he was guilty of escape, and, therefore, his trial counsel's failure to move for a judgment of acquittal was the cause of his failure to secure an acquittal.

The Iowa Criminal Code, chapter 804, defines an arrest as "the taking of a person into custody when and in the manner authorized by law, including restraint of the person or the person's submission to custody." Iowa Code § 804.5. Custody is thus predicated upon effecting an arrest in the manner authorized by law. See State v. Eads, 234 N.W.2d 108, 111 (Iowa 1975) ("custody begins when an arrest is made and continues until the defendant is lawfully discharged"); State v. Schmitt, 290 N.W.2d 24, 28 (Iowa 1980); 4 J. Yeager & R. Carlson, Iowa Practice: Criminal Law and Procedure § 426, at 109 (1992 Supp.). Iowa Code section 804.14 elaborates upon the proper manner for making an arrest:

The person making the arrest must inform the person to be arrested of the intention to arrest the person, the reason for arrest, and that the person making the arrest is a peace officer, if such be the case, and require the person being arrested to submit to the person's custody....

In the instant case, the officer's testimony indicated that they scrupulously abided by the protocol for making an arrest that is outlined in Iowa Code section 804.14. As such, the trier of fact had ample evidence on which to conclude that Breitbach was in police custody notwithstanding his impression to the contrary. The issue of custody turns on the officer's adherence to the protocol outlined in section 804.14, not the arrestee's subjective interpretation of the event. Cf. State v. Johnson-Hugi, 484 N.W.2d 599, 600 (Iowa 1992) (arrest for purposes of Iowa Rule of Criminal Procedure 27(2)(a) turns exclusively on compliance with section 804.14). A motion for a judgment of acquittal, had it been made, would, therefore, have properly been denied. Since Breitbach has failed to establish that but for his trial counsel's failure to move for a judgment of acquittal he would have had a reasonable possibility of acquittal, his claim of ineffective assistance of counsel on this ground must fail.

III. Failure to Request a Mistrial.

Breitbach next contends that his trial counsel neglected to perform an essential duty, in derogation of his Sixth Amendment right to assistance of counsel, when he failed to request a mistrial after two of the arresting officers testified concerning their belief that Breitbach was "in custody" prior to his departure.

At trial, the following colloquy ensued between counsel for the State and officer Chapman, one of the arresting officers:

Question: And after you told the defendant that he was under arrest and told him what he was under arrest for, you asked him to step outside?

Answer: Yes.

Question: And did he submit to that authority?

Answer: Yes. He came with us.

Question: Okay. So he was in your custody at that point?

Answer: Yes, he was.

Similarly, another of the arresting officers, Thomas Fessler, was asked the following:

Question: After the defendant...