Appeal from the Iowa District Court for Polk County, Odell McGhee, District Associate Judge.
The opinion of the court was delivered by: Doyle, J.
Ben Scott appeals from his conviction for operating a vehicle while intoxicated, second offense. AFFIRMED.
Heard by Eisenhauer, C.J., and Vaitheswaran and Doyle, JJ.
Ben Scott appeals from his conviction for operating a vehicle while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (2009). He alleges misconduct by the prosecutor and abuse of discretion in several respects by the district court. We affirm.
I. Background Facts and Proceedings.
From the evidence presented at trial, the jury could have reasonably found the following facts. In the early hours of August 1, 2010, Ben Scott was involved in an automobile collision in downtown Des Moines. Officers working foot patrol happened to be nearby the scene and heard the collision. They saw Scott's car continue to drive on, and they believed Scott was attempting to leave the scene of the accident. Scott's car proceeded about two hundred feet before it stopped for traffic that was backed up waiting for a train to clear a railroad crossing.
The officers ran up to Scott's vehicle. Scott was ordered to turn off the car and put his hands on the steering wheel. Instead, Scott reached over and put the car in drive. One officer then grabbed Scott by the head. The other officer reached through the passenger window, put the car in park, and took the key out of the ignition. The car door was opened, and Scott was ordered multiple times to get out of the car. When he refused and reached towards the center of the car, an officer pulled Scott from the car and pushed him to the ground. Scott was ordered to give the officer his hands. He refused and kept his hands trapped under his body. Unable to get Scott's hands freed, the officer kneed Scott in the rib area. Scott then complied, and the officer was able to obtain control of Scott's hands and handcuff him. Thereafter, the officer smelled alcohol on Scott's breath and observed Scott's speech was slurred and his eyes bloodshot and watery. Scott was transported to the Des Moines Police Department.
At the police department, Scott was placed in its Datamaster Room. He was interviewed by an officer, and the interview was recorded by the camera in the room. The officer observed Scott's eyes to be bloodshot and watery and that Scott had the strong odor of an alcoholic beverage. During the interview, Scott was very upset, his voice cracking at times. His speech at times was slurred. Scott continually talked about the accident, vehemently telling the interviewing officer the other vehicle had struck his. The officer stated to Scott several times that Scott was there because the officers believed he had been driving under the influence, not because of the accident, and Scott acknowledged such. The officer told Scott the accident would be sorted out later. At one point, Scott volunteered, "I'm not that fucking drunk." He later stated he had not had anything to drink for a few hours. The officer asked Scott if he would consent to a field sobriety test and a preliminary breath test; Scott refused both.
Scott was ultimately charged with OWI second offense, leaving the scene of an accident, interference with official acts, and failure to have insurance. A trial date was set for all four charges, and Scott agreed to have the OWI charge tried by jury and the remaining charges tried to the bench.
A jury trial on the OWI charge was held in December 2010, and the jury returned a guilty verdict. The district court found Scott was not guilty on the remaining charges. The court thereafter granted Scott's motion for a new trial on the OWI charge, and it set aside the jury's guilty verdict because it found the evidence contained in one of the officer's depositions taken before trial materially misled Scott's trial counsel.
At a hearing before the second trial, the State, on its own motion and without any complaint by Scott, asserted to the district court that Scott's trial counsel had been ineffective in the case. It requested the court conduct a colloquy with Scott as to his satisfaction with his trial counsel, which Scott's trial counsel resisted. The court, "in an abundance of caution," agreed to make an inquiry of Scott, and Scott stated he wanted his trial counsel to continue representing him.
Thereafter, Scott, by pretrial motion, requested he be allowed to present evidence of his acquittals in the other three charges. He explained the officers were only involved as a result of the accident, and his innocence of the leaving the scene of an accident charge*fn1 was necessary to explain his state of agitation at the police station, particularly since excitement and agitation were indicia of intoxication of alcohol.*fn2 The State resisted, asserting the acquittal evidence was irrelevant because Scott was not standing in judgment on the hit and run or interference with official acts charges, though it noted it was "relevant that the police believed he was involved in an accident." The court declined to rule at that time, but it stated it did not think the acquittals were relevant.
The matter proceeded to trial before a second jury. The State's opening argument stated to the jury:
On August 12, 2010, [Scott] was involved in an accident just down the street from the Court center. What happened was, according to the facts, a cab driver pulls out. [Scott] sideswipes the car. He doesn't stop. The facts will show he continues to drive down ...