Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
The opinion of the court was delivered by: Danilson, J.
Oscar Ibarra appeals from his first-degree murder conviction. AFFIRMED.
Heard by Potterfield, P.J., and Danilson and Tabor, JJ.
Oscar Ibarra appeals from his first-degree murder conviction, contending his trial counsel had an impermissible conflict-of-interest, his conviction is not supported by sufficient evidence, and trial counsel was ineffective in several respects. Because neither of Ibarra's trial counsel personally represented either Cody Brown or Patrick Wilson, had not seen the files of either case, and because Ibarra expressly waived any conflict of interest on the record, we find no violation of Ibarra's right to counsel. There is substantial evidence from which a rational fact-finder could conclude Ibarra did not act with justification in stabbing Patrick Wilson; and that he did stab Wilson with malice aforethought and in a willful, deliberate, and premeditated manner; and with the specific intent to kill Wilson. We reject Ibarra's ineffectiveness claims, and we therefore affirm his conviction.
I. Background Facts and Proceedings.
At about 3:30 a.m. on April 9, 2011, Riley Wilson, age thirteen, looked out his window and saw someone crouching by his father's truck. Riley went outside and again saw the man crouched beside the truck. Riley's father, Patrick Wilson (Wilson), came outside, and Riley told him he had seen someone. Wilson went around the house once but did not see anyone. Riley told him the person was beside the truck, and Wilson walked over to the truck telling Riley to stay where he was. Riley saw that "right when he gets to the side of the truck, the man pops out at him." Wilson yelled and then told Riley to call the police. Riley saw the man "come out at him [Wilson], like, in a hitting-like he was getting ready to hit him, in that kind of position." Riley ran inside the house and told his mother that "my dad is getting beat up." When Wilson's wife, Christy Wilson, ran outside, she saw someone standing over her husband.
John Brooks, who lived nearby, was awakened by the sound of Wilson's yelling. He went outside and heard Wilson telling Riley to call the police. As he ran toward Wilson's yard, Brooks heard Wilson say, "Stop. I've got kids. I've got children. Stop. I've got children. Ow. Help." Brooks yelled, "Oscar, stop," and he saw Oscar Ibarra strike Wilson two more times. Ibarra then ran away.
Brooks started to pursue Ibarra but turned back when he heard someone scream, "No, Pat, no." He ran to where Wilson was lying and noted that Wilson had lost a lot of blood. Brooks lifted up Wilson's shirt and saw "gash upon gash and deep-seated purple wounds, and . . . I knew it wasn't good."
Police were alerted to the Wilson's house at 3:53 a.m. When emergency personnel arrived at the scene, they found that Wilson had no pulse and was not breathing. Despite their efforts to revive him, Wilson's heart had no electrical activity when he reached the hospital.
Ibarra was charged with first-degree murder. At the subsequent jury trial he presented justification and intoxication defenses.
The testimony at trial showed that Ibarra spent the day of April 8, 2011, "hanging out" and shopping at a mall with friends. At one point during the day, Ibarra showed Cody Brown a Smith and Wesson knife that he had. Cody put the knife in his pocket and forgot about it. Later in the day, Ibarra, Brown, Alyssa Ameneiro, Amanda Mills, and Arin Wilson (Patrick Wilson's daughter), all underage, decided to go to a bar-the Komodo Klub-and try to get in using false identification cards. They went to Ameneiro's house to get ready for the evening and started drinking vodka. Then they drove to the Komodo Klub in Arin's car, drinking vodka on the way. When they arrived at the Komodo Klub after 10 p.m., Arin gained entry, Ameneiro was turned away, and the others decided not to try.
After taking Mills home around 12:30 a.m., Ibarra, Brown, and Ameneiro went in Arin's car, with Ameneiro driving, to Nick Vasey's dorm room. There, they drank tequila. Ibarra and Ameneiro were arguing, and Vasey asked them to leave. Ibarra, Ameneiro, and Brown left in Arin's car. Ameneiro was driving, though she testified she was "really drunk" and did not remember much of the drive only that she and Ibarra later were parked in a Hy-Vee parking lot with the windshield broken, and Ameneiro stated, "Look what you did to the windshield."
Brown testified that after leaving Vasey's room, Ameneiro stopped the car in the middle of the street arguing with Ibarra. Ibarra got out saying he was going to walk. Brown told Ameneiro he would drive because she was intoxicated. Ibarra returned to the car saying he was sorry. Ameneiro was crying. Brown got out of the car to go around to the driver's seat, and Ibarra yelled, "Go, go, go." Ameneiro and Ibarra drove off, leaving Brown in the street. Brown called Ibarra to ask why they had left him, and Ibarra told him Ameneiro left Ibarra as well. According to Brown, Ibarra said he had punched out the windshield of the car because Ameneiro refused to go back and pick up Brown. On cross-examination, however, Brown was asked if Ameneiro left because Brown was angry that she was not moving the car, and Brown punched the windshield. Brown responded, "That I don't remember."
Brown walked to Wilson's house, which was about four blocks away. When Brown arrived at Wilson's house, he heard music and Wilson singing in the garage. Brown knocked on the door to the garage. Wilson let him in, and the two smoked marijuana. Brown told Wilson that Arin was at the club, Ameneiro was drunk and driving Arin's car, Ibarra had hit Ameneiro, and Ibarra broke Arin's car's windshield. Brown acknowledged he told Wilson Ibarra had hit Ameneiro because he "knew that would be something that would get Pat stirred up."
Wilson called Arin and told her to call Ameneiro and have her get the car to Wilson's house. He also called his twenty-year-old son, Andrew, and told him that Brown needed a ride. Ibarra and Ameneiro arrived at Wilson's house, where Ibarra asked to talk with Brown.
Brown told Ibarra he was angry about being left to walk, he did not want to talk to Ibarra "because [Ibarra] was real drunk," and told Ibarra to leave. Wilson then told Ibarra to leave. Ibarra did leave. Both Wilson and Brown called his son Andrew again; Wilson told him he needed to get his friends out of there.
Andrew arrived at the house after 3:00 a.m. and arranged for Brown to ride with him in his Jeep and for Ameneiro to take Arin's car to pick up Arin. As Andrew and Brown started to get into the Jeep, Ibarra came out from behind a fence and got into Arin's car with Ameneiro. Andrew approached the car, opened the door, and told Ibarra he had five seconds to leave or Andrew was "going to beat his ass." Ibarra got out of the car and stood in front of Andrew and Brown. Andrew started counting down from five and Ibarra left. Ameneiro then left in Arin's car, and Andrew and Brown left in Andrew's Jeep.
Later, Brown and Andrew were driving around downtown when Andrew got a call that his father had been stabbed. When they arrived at Wilson's house and learned of Wilson's stabbing, Brown dropped the knife Ibarra had given him because there was a warrant out for Brown's arrest.
Riley testified about seeing the man crouching by his father's truck, his father approaching the truck, and the man jumping out like he was going to hit Wilson. He stated he went to get his mother, and when they came back outside, he saw the man run off through the neighbors' yards. Riley went to his father, who was lying on his stomach on the ground. Riley testified he panicked and ran to the neighbor's house (Robby Wilson) and there called 911.
Christy Wilson testified Wilson struggled with drug addiction. She stated his addiction started with self-medicating because he had transverse myelitis, which "causes a lot of pain" and numbness in his legs, and left Wilson unable to feel his bowels or his feet. She stated, "He started finding prescription pain medications on the street, meth, cocaine, whatever made him feel better and kept him going." The transverse myelitis was properly diagnosed after seven or eight years, however; and Wilson was given prescription medication, but by then "he had already started abusing and was also abusing those." She stated he used marijuana daily and "meth" "made him feel younger." Christy testified she and Wilson had attempted to have Wilson admitted on April 8, 2011, for "in-house detox and treatment," but were told he could "do outpatient, that they wouldn't accept him for in-house." She stated that after that, "there was a lot lighter mood because he had that off his shoulders that everyone knew what his problem was and that he was going to get help." Wilson "seemed in better spirits than he had been in quite awhile" and set about working on the house, "fixing up the house before he had to go" to treatment.
Christy went to bed about 9 p.m. on April 8, and was awakened by Riley. She went outside and saw someone, whom she described as "Caucasian, small, skinny," standing over Wilson. Wilson was on the ground across the street in a neighbor's yard. She testified she screamed and the person ran off. When she ran to her husband, she stated he told her to "[t]ell them that he hit me in my heart." She asked him, "Who did this to you?" and he responded, "Oscar," which was "the last word he ever said to me."
Ameneiro testified that she and Ibarra were "unofficially dating," beginning on St. Patrick's Day 2011. At trial, she recounted the events on April 8, 2011, including going to the mall and then her house, picking up Mills and going to the Komodo Klub, drinking tequila at Vasey's dorm room, and seeing the broken windshield. She recounted going to Wilson's and then driving to pick up Arin. While in the car with Arin, Arin received a phone call from Megan Belcher to go to Wilson's. The two drove to Wilson's, where there were "a lot of police." She stated that while at Wilson's she received a call from Ibarra, who was "crying and said he was sorry."
Megan Belcher and Andrew also spoke with Ibarra on the phone. Ibarra told Belcher, "You're next, Bitch." Andrew asked Ibarra whether he realized when he left Wilson's house that Wilson was lying in the yard dead. Ibarra replied that he "didn't do it."
Sometime during the early morning hours of April 9, Vasey got text messages from the Ibarra saying, "I need a ride ASAP" and "I messed up, man." Also during those early morning hours, Ibarra's sister, Marlyn, spoke with Ibarra on the phone and asked him to come home. Ibarra said he could not come home, that he had "murdered someone." He asked Marlyn if the police were there, and Marlyn said they had just been there.
At about 10:00 a.m., Cody Peacock was awakened by knocking on his back door and found Ibarra wearing bloody clothes and rubbing his hands back and forth. Ibarra told him he had been in a fight the night before and asked if he could come inside and get cleaned up. He also told Peacock he had stayed in the Peacocks' garage. Later in the day, Ibarra arranged to meet his sister and parents at Gray's Lake. Ibarra was crying, shaking, and hyperventilating, and he had a black eye and scratches on his arm. His family persuaded him to turn himself in. He returned home with them, his parents called the police, and Ibarra was arrested. Police photographed Ibarra's injuries on April 11, noting fifteen different injuries to Ibarra's head, shoulder, right and left hands, arms, and legs. At trial these injuries were described as "minor," not requiring medical attention.
An autopsy showed that Wilson had suffered fifteen stab wounds, including a fatal wound to his heart and a wound that went completely through his forearm and could be considered a defensive wound. Although the knife Ibarra had earlier shown to Brown was found near the scene, it showed no traces of blood.
Ibarra was convicted of first-degree murder and he now appeals. He contends his right to counsel was violated because of an impermissible conflict of interest. He also argues there is insufficient evidence to sustain his conviction. Finally, Ibarra asserts he was denied the effective assistance of counsel because his attorney failed to object to alleged prosecutorial misconduct during closing arguments, failed to request pertinent jury instructions, and failed to move for a mistrial based on juror misconduct.
II. Scope and Standards of Review.
We review de novo a district court decision implicating a defendant's constitutional rights. State v. Becker, 818 N.W.2d 136, 141 (Iowa 2012).
We review sufficiency-of-evidence claims for errors at law. State v. Leckington, 713 N.W.2d 218, 221 (Iowa 2006). "The jury's findings of guilt are binding on appeal if supported by substantial evidence." State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). "Substantial evidence is evidence that could convince a rational trier of fact that a defendant is guilty beyond a reasonable doubt." Id. In determining whether there is substantial evidence, we view the record in a light most favorable to the State, including all legitimate inferences that may fairly and reasonably be deduced from the evidence. State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005).
A. Conflict of interest. Two public defenders were appointed to represent Ibarra on the murder charge. The same public defender's office also provided representation for Brown and had previously provided representation for Wilson. Ibarra argues that the public defender's office had an impermissible conflict of interest, which violated his Sixth Amendment rights and his corresponding rights under article 1, section 10 of the Iowa Constitution.*fn1 He contends reversal and remand are required under the presumed prejudice standard enunciated in State v. Watson, 620 N.W.2d 233, 237 (Iowa 2000) (holding that "where the trial court knew or should have known of a particular conflict, reversal is required without a showing that the conflict adversely affected counsel's performance, even though no objection was made at trial").
The State responds that where the district court has inquired into possible conflict-as was the case here-the defendant must show an adverse effect on his counsel's performance. See State v. Smitherman, 733 N.W.2d 341, 346 (Iowa 2007).
"The foundation for [a conflict of interest] claim is an alleged denial of an accused's constitutional right to effective assistance of counsel." State v. Williams, 652 N.W.2d 844, 847 (Iowa Ct. App. 2002). As explained by the United States Supreme Court, The Sixth Amendment provides that a criminal defendant shall have the right to "the Assistance of Counsel for his defence." This right has been accorded, we have said, "not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." It follows from this that assistance which is ineffective in preserving fairness does not meet the constitutional mandate, and it also follows that defects in assistance that have no probable effect upon the trial's outcome do not establish a constitutional violation. As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
There is an exception to this general rule. We have spared the defendant the need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. But only in "circumstances of that magnitude" do we forgo individual inquiry into whether counsel's inadequate performance undermined the reliability of the verdict.
We have held in several cases that "circumstances of that magnitude" may also arise when the defendant's attorney actively represented conflicting interests.
Mickens v. Taylor, 535 U.S. 162, 166-67 (2002) (citations omitted).
Whether raised as an ineffective-assistance-of-counsel claim or otherwise, "[t]he analysis is basically one question: whether the defendant has made a showing whereby we can presume prejudice." Smitherman, 733 N.W.2d at 346. If so, the defendant's constitutional rights have been violated, and a new trial is warranted. Id.
Prejudice can be presumed when there is an actual conflict of interest the trial court knew or should have known about, but failed to make meaningful or reasonable inquiry into. State v. Smith, 761 N.W.2d 63, 71 (Iowa 2009); see Mickens, 535 U.S. at 172 n.5 ("[W]e have used 'conflict of interest' to mean a division of loyalties that affected counsel's performance.. . . An 'actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance."). However, when-as is the case here-the district court has conducted a inquiry into the claimed conflict prior to the conviction, the defendant must show the conflict of interest actually affected the adequacy of counsel's performance. Smith, 761 N.W.2d at 71; Smitherman, 733 N.W.2d at 347; see also Cuyler v. Sullivan, 466 U.S. 335, 349--50 (1980) ("[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance."). In Smitherman, the court concluded automatic reversal was not required because "all the parties were manifestly aware of the conflict and took several precautions to assure [Smitherman's] rights were not violated," and Smitherman requested his defense counsel be permitted to continue the representation notwithstanding the conflict. 733 N.W.2d at 348.
Here, prior to trial, the State requested a hearing to determine whether there was a conflict of interest on the part of the Polk County Adult Public Defender's Office, which was representing Ibarra and Brown, and had represented the decedent, Wilson. A hearing was held, and on October 7, 2011, the district court entered an order stating in part:
Throughout his criminal proceedings, including the probation revocation proceeding, Brown was represented by Darren Page, Annette Hitchcock and Kathleen Masterpole, all members of the Des Moines Adult Public Defender's Unit.
Defendant's attorneys Valorie Wilson and Jennifer Russell took a deposition of Cody Brown on August 18, 2011, in the above- captioned matter. During that deposition, Brown was questioned extensively concerning his adult and juvenile criminal history, as well as his use of ...