State v Tomlinson
| Decision Date | 24 January 2001 |
| Docket Number | 99-1818 |
| Parties | NOTICE! No decision has been made on publication of this opinion. The opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed. An unpublished opinion of the court of appeals MAY NOT BE CITED by a court or by a party in any other action. The official published opinions of the Iowa Court of Appeals are those published in the North Western Reporter published by West Group. STATE OF IOWA, Plaintiff-Appellee, vs. DAVID LEE TOMLINSON, JR., Defendant-Appellant./ 99-1818 IN THE COURT OF APPEALS OF IOWA Filed |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Tama County, Lynne E. Brady, Judge.
The defendant appeals his convictions, following a jury trial, for first- and second-degree murder and fleeing to avoid prosecution. Defendant argues the district court erred in: (1) denying his motion for mistrial made after a State's witness commented on his guilt or innocence in violation of his Fifth Amendment rights; (2) failing to suspend the trial in order to hold a competency hearing; and (3) concluding there was sufficient evidence to permit the charge of flight to avoid prosecution. Defendant also raises an issue of ineffective assistance of counsel, claiming trial counsel was ineffective in failing to argue in a motion for new trial that the verdicts were contrary to the weight of the evidence. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David A. Adams, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Brent D. Heeren, County Attorney, and Doug Hammerand, Assistant Attorney General, for appellee.
Heard by Miller, P.J., and Hecht and Vaitheswaran, JJ.
David Lee Tomlinson, Jr. appeals his convictions, following jury trial, for first-degree and second-degree murder and fleeing to avoid prosecution. Tomlinson argues the district court erred in: (1) denying his motion for mistrial made after a State's witness allegedly improperly commented on his guilt or innocence and his exercise of his Fifth Amendment right to remain silent; (2) failing to suspend the trial in order to hold a competency hearing; and (3) concluding there was sufficient evidence to permit the charge of flight to avoid prosecution to be submitted to the jury. Tomlinson also raises a claim of ineffective assistance of counsel, asserting trial counsel was ineffective in failing to allege and argue in the motion for new trial that the verdicts were contrary to the weight of the evidence. We affirm on all grounds and find there was no ineffective assistance of counsel.
On the morning of May 22, 1998 Scott Rosenberger went to work at Dave's Auto Repair in Tama, Iowa. The business was owned and operated by David Tomlinson, Sr., the father of the defendant David Lee Tomlinson, Jr. (hereafter "Tomlinson"). Tomlinson lived with his father and sister, Angela Miell, in his father's house, across a driveway from the business. The previous evening Tomlinson had borrowed the key to the repair shop from Rosenberger and returned it promptly. The morning of May 22 when Rosenberger arrived at work he noticed the door to the shop was unlocked and a black truck which had been there for repairs was gone. As time passed on May 22 and David Tomlinson, Sr. did not show up for work at the shop, Rosenberger assumed he was out running errands. Around noon Rosenberger made several phone calls around town attempting to locate David, Sr. but could not find him. The phone at David, Sr.'s house was repeatedly busy.
Some time later Rosenberger received several emotional phone calls from Tomlinson's mother Jackie, David, Sr.'s former wife, who eventually told him Tomlinson had told her not to go to the house because "it wasn't pretty." She asked Rosenberger to go check it out because she believed Tomlinson may have done something to the others. Rosenberger informed Jackie she needed to call the police, however she stated she could not call the police on her own son. Rosenberger called the police to check whether anything had happened at David, Sr.'s house.
Police arrived at the house and discovered both Tomlinson's sister, Angela, and his father had been shot to death in their bedrooms. Forensic experts concluded they had both been shot with deer slugs from the father's missing twelve-gauge shotgun. An empty shotgun shell box, which had contained shells identical to the ones that killed the victims, was found in the kitchen trash can. A box of shells similar to those found at the crime scene was later found in the glove compartment of Tomlinson's truck in a bag with a receipt indicating two boxes of shells had been purchased the day before. Fingerprint analysis revealed Tomlinson's prints on the battery of a smoke alarm which had been removed from the smoke alarm and left at the scene, the empty shell box, and the bag holding the box of shells in Tomlinson's truck.
The day of the killings Tomlinson drove to Kansas City in the black truck taken from the repair shop. After calling his mother he checked himself into the Western Missouri Mental Heath Center on her advice. Following examination by hospital staff, Tomlinson was admitted. He made several statements to staff there indicating he had gotten into trouble in Iowa, and stated he had to run.
Following arrest, the State charged Tomlinson with two counts of first-degree murder, for the deaths of Angela Miell and David Tomlinson, Sr., in violation of Iowa Code sections 707.1 and 707.2, and flight from the state to avoid prosecution, in violation of Iowa Code section 719.4(4). Tomlinson filed a notice of his intent to rely upon the legal defenses of insanity and diminished responsibility. Both parties filed applications for psychiatric evaluations of Tomlinson by their respective experts. Tomlinson's request was that he be evaluated as to competency, insanity, and diminished responsibility. The court sustained the applications and scheduled a competency hearing pursuant to Iowa Code section 812.3. Tomlinson was evaluated at the Iowa Medical and Classification Center at Oakdale. A report was submitted to the district court based on this evaluation. The evaluators found that Tomlinson suffered from no mental condition which would interfere with his ability to appreciate the charges against him, understand the proceedings, or assist in his defense. Based on this report, and prior to the competency hearing, Tomlinson subsequently withdrew any challenge to his competency.
On the third day of trial Tomlinson moved for a continuance of the trial proceedings until evidence could be presented concerning his competency to proceed. He asserted that medical evidence he had just acquired questioned his competency to proceed with trial. The court initially declined to hold a hearing, stating a finding that it did not reasonably appear that Tomlinson was not competent to proceed with trial. It did, however, by way of offer of proof hear the evidence Tomlinson wished to present on the question of his competency. As part of the offer of proof hearing the court also received, without objection, a written report concerning the competency evaluation that had been done at the Iowa Medical and Classification Center at Oakdale. Following the offer of proof hearing the court continued with trial. Tomlinson later moved for a mistrial after the State's witness, Dr. Michael Taylor, gave an answer that Tomlinson perceived as violating his Fifth Amendment right to remain silent. The motion for mistrial was denied.
The jury found Tomlinson guilty of first-degree murder for the death of Angela Miell, second-degree murder for the death of David Tomlinson, Sr., and flight from the state to avoid prosecution. Tomlinson was sentenced to life in prison for first-degree murder, a term of no more than fifty years for second-degree murder, and a term of no more than five years on the flight charge, the sentences to run consecutively. Notice of appeal was timely filed.
Tomlinson argues on appeal the district court erred in denying his motion for mistrial. He contends Dr. Taylor's answer violated his Fifth Amendment rights and crossed the line from medical opinion testimony to commentary on the ultimate issue of his guilt or innocence. Secondly, Tomlinson asserts the district court erred in denying his motion to hold a competency hearing based on the newly discovered evidence questioning his competency to proceed with trial. Tomlinson also contends the court erred in concluding there was sufficient evidence he fled the state to avoid prosecution. He maintains his actions were not solely to avoid prosecution. Finally, Tomlinson argues his trial counsel was ineffective in failing to allege as a ground in the motion for new trial that the verdicts were contrary to the weight of the evidence. As there are a variety of issues in this case which require us to employ several different standards of review, we address each of these issues and standards separately.
II.MERITS
Tomlinson argues the answer of the State's expert witness, Dr. Taylor, violated his Fifth Amendment right to remain silent and not have that silence used against him by implying he had a duty to communicate with the doctor as to the events underlying the charges against him. Tomlinson further contends the answer was an unfair comment upon his guilt or innocence. Specifically, Dr. Taylor was asked why it is important to talk to Tomlinson about what happened during the day of and day before the murders. This inquiry was in part a response to the earlier testimony of Tomlinson's expert, Dr. Olson, who had testified Tomlinson did not go into the events of those two days with him either. Dr. Taylor answered:
Well, there were only three people there and two of them are dead, so the only person...
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