State v. Hanes, No. 9-583/08-1231 (Iowa App. 8/19/2009), 9-583/08-1231
| Decision Date | 19 August 2009 |
| Docket Number | No. 9-583/08-1231,9-583/08-1231 |
| Court | Iowa Court of Appeals |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. 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.*
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, 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 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.
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).
Hanes contends he received ineffective assistance because his trial attorney did not object to the instruction defining "serious injury." The jury was instructed:
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.
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) (); see also State v. Phams, 342 N.W.2d 792, 796 (Iowa 1983) (). We determine Hanes has not shown he received ineffective assistance of counsel on this ground.
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, 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."
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 long-term 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.
During opening statements the prosecutor outlined anticipated testimony from Paul McGonigle. McGonigle gave a voluntary written statement 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...
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