State v. Clay

• Decision Date: 14 December 2012
• Docket Number: No. 11–0927.,11–0927.
• Parties: STATE of Iowa, Appellee, v. Allen Bradley CLAY, Appellant.
• Court: Iowa Supreme Court

824 N.W.2d 488

STATE of Iowa, Appellee,

v.Allen Bradley CLAY, Appellant.

No. 11–0927.

Supreme Court of Iowa.

Dec. 14, 2012.

Mark C. Smith, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, and Darin J. Raymond, County Attorney, for appellee.

WIGGINS, Justice.

A jury found the defendant guilty of second-degree burglary, operating a motor vehicle without the owner's consent, and operating a motor vehicle while intoxicated, second offense. The defendant only appealed his burglary conviction. We transferred the case to the court of appeals. It affirmed the conviction. The defendant now seeks further review from the court of appeals decision. On appeal, the defendant contends there was insufficient evidence to support his conviction for second-degree burglary. The defendant also argues his trial counsel was ineffective for not objecting to (1) the prosecutor's misstatements in his rebuttal closing argument regarding the intent-to-deprive element of theft, (2) four colloquies of hearsay testimony elicited by the prosecutor, and (3) the prosecutor's statements in his rebuttal closing argument concerning nontestifying witnesses.

Upon our review, we affirm the court of appeals decision regarding the sufficiency of the evidence to support the second-degree burglary conviction and let it stand as our final decision. However, we vacate the court of appeals decision with respect to the effectiveness of counsel claims. We leave all three ineffective-assistance-of-counsel claims for postconviction relief proceedings. Finally, we affirm the defendant's convictions for operating a motor vehicle without the owner's consent and operating a motor vehicle while intoxicated, second offense.

I. Background Facts and Proceedings.

Allen Bradley Clay spent the afternoon of July 24, 2010, helping his friend, Lucky Overman, change the tires on one of his vehicles. While Overman was taking Clay home, Clay asked Overman to buy him alcohol. Overman refused to do so. Clay did not react.

After taking Clay home, Overman made his regular run as a truck driver for Blue Bunny. He got home around three o'clock in the morning on July 25. He parked his Blazer SUV alongside his mobile home in Le Mars. He entered the home from the front porch and put his paperwork and keys on the kitchen counter. Overman checked on his sleeping family and then went to bed.

At approximately 4:30 a.m., Overman heard noises coming from the kitchen. He assumed the source of the noise was his large cat lurking around at night. The noises continued for a few minutes.

Then Overman saw his Blazer's headlights come on. Overman jumped out of bed and saw someone backing his Blazer out of the drive pretty fast, as if in a hurry. He could see one person in the vehicle. However, he was unable to distinguish the gender, height, or age of the individual.

Overman called 911, because he believed someone had stolen his Blazer. He had no clue which direction the Blazer went.

Shortly thereafter, Overman received a text message from Kayla VanEs, Clay's girlfriend. She allegedly texted that Clay was “three sheets to the wind and he's pretty much got your Blazer and he's heading more than likely out to his mother's house....” Overman called 911 a second time to report this information.

Overman then began to investigate his property and noticed several objects were out of place. He saw a trash can had been moved by the window just outside the mobile home. He also observed that someone had removed a window screen from the home.

Lieutenant Treloar from the Le Mars Police Department arrived at Overman's home around 5:15 a.m. Overman showed Treloar the misplaced window screen and trash can. While walking outside with Treloar, Overman saw a bicycle lying in the yard, just a few feet from the trailer. Upon looking closer at the bicycle, Overman realized it was Clay's.

Clay always rides a bicycle for transportation because he does not have a driver's license. Overman had seen Clay ride that particular bicycle many times. Overman stated the bicycle was not there when he came home from work.

After this discovery, Treloar called VanEs by phone to ask her where Clay might be. He testified, “She indicated to me at that time that [Clay] had been drinking all day and that possibly he was en route to his mother's residence in Hudson, South Dakota.” Treloar then had a state broadcast sent out with a description of the vehicle, Clay as a possible suspect, and Hudson, South Dakota, as Clay's possible destination.

As Overman and Treloar continued to investigate, Overman realized his keys to the Blazer and storage shed were missing from the kitchen counter. Treloar also noticed there was a putty knife stuck in the wall beside the mobile home's door handle. Treloar took the putty knife, slid it between the door and the door jam, and depressed the door plunger. By doing so, Treloar was able to open the home's door. Treloar concluded that was how the perpetrator entered the residence. Overman reported that he normally kept the putty knife in his storage shed. The latch on the shed's screen door had been broken, and the door had been pried open.

After conducting this initial investigation, Treloar left. Ten to thirty minutes later, Overman received a phone call from Ashley Clay (aka Ashley Arens), Clay's sister. Overman testified, “She stated that she was going to be driving [Clay] back with my Blazer.” Overman called 911 again to inform them of this phone call.

Within an hour of her phone call, Ashley arrived at Overman's mobile home with her brother in the Blazer. Ashley was driving. Clay said nothing. Ashley allegedlytold Overman that “she had observed Allen going down the lane at her place, ... got him stopped, and was bringing [Overman's] Blazer back.” Overman never gave Clay permission to drive his Blazer.

Police arrested Clay after he attempted to escape through the back door of the mobile home. When handcuffing Clay, Treloar observed the strong odor of alcohol on his breath and person. Clay's eyes were dilated and bloodshot, his speech was slurred, and his balance was unsteady.

Treloar spoke with Clay's sister after placing him in the patrol car. Shortly after this conversation, police escorted Clay to the Plymouth County jail.

Clay pled not guilty to the charges. The jury found Clay guilty of all three charges. Clay appealed. He raised a sufficiency-of-the-evidence argument regarding his burglary conviction and three ineffective-assistance-of-counsel claims. He did not appeal his convictions for operating a motor vehicle without the owner's consent and operating a motor vehicle while intoxicated, second offense. We transferred the appeal to the court of appeals. The court of appeals affirmed his burglary conviction and resolved one of his ineffective-assistance-of-counsel claims. The court of appeals left the other two claims of ineffective assistance of counsel for a postconviction relief action. Clay filed his application for further review, which we granted.

II. Issues.

In this appeal, Clay raises numerous issues regarding his burglary conviction. First, he makes a sufficiency-of-the-evidence argument. He also raises three ineffective-assistance-of-counsel claims. In his first claim, he argues his counsel was ineffective for failing to object to the prosecutor's rebuttal closing argument, when the prosecutor improperly instructed the jury on the law. Next, he alleges his trial counsel was ineffective for failing to object to four out-of-court statements admitted into evidence. Finally, he claims his counsel was ineffective for failing to object to the prosecutor's rebuttal closing argument, when the prosecutor commented on nontestifying witnesses.

On further review, we have the discretion to review all or some of the issues raised on appeal or in the application for further review. In re Marriage of Schenkelberg, 824 N.W.2d 481, 483 (Iowa 2012). In exercising our discretion, we choose only to review the ineffective-assistance-of-counsel claims. Therefore, we let the court of appeals' affirmance on the sufficiency of the evidence regarding the burglary conviction stand as the final decision of this court. See Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 770 (Iowa 2009).

III. Standard of Review.

We review claims of ineffective assistance of counsel de novo. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). This is our standard because such claims have their “basis in the Sixth Amendment to the United States Constitution.” State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009). We ordinarily preserve such claims for postconviction relief proceedings. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). “That is particularly true where the challenged actions of counsel implicate trial tactics or strategy which might be explained in a record fully developed to address those issues.” State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999). We will resolve the claims on direct appeal only when the record is adequate. Id.

IV. Ineffective Assistance of Counsel.

Ineffective assistance of counsel constitutes “ ‘deficient performance by counsel resulting in prejudice, with performance being measured against an “objective standard of reasonableness,” “under prevailing professional norms.” ’ ” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (quoting Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360, 371 (2005) (citations omitted)). “[N]ot every claim of ineffective assistance, even a meritorious one, requires reversal of a criminal conviction.” Simmons v. State Pub. Defender, 791 N.W.2d 69, 75 (Iowa 2010) (emphasis omitted). To prevail on a claim of ineffective assistance of counsel, a claimant must satisfy the Strickland test by showing “(1) counsel failed to perform an essential duty; and (2) prejudice resulted.” Maxwell, 743 N.W.2d at 195 (ci...