Appeal from the Iowa District Court for Polk County, Odell G. McGhee II, District Associate Judge.
Carlos Fuentes appeals from his convictions for driving while barred and operating while intoxicated third offense, claiming he was not driving the vehicle and his counsel was ineffective.
John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney General, John Sarcone, County Attorney, and David Porter, Assistant County Attorney, AND Kailyn Heston, Student Legal Intern, for appellee.
Considered by Potterfield, P.J., and Mullins and Bower, JJ.
Carlos Fuentes appeals from his convictions for driving while barred and operating while intoxicated third offense. He argues his counsel was ineffective in failing to object to the prosecutor's comments during closing arguments regarding Fuentes's failure to present evidence. We affirm and preserve the case for possible postconviction proceedings, finding the record is insufficient to determine whether his counsel was ineffective for failing to object.
I. Facts and proceedings.
Fuentes was found intoxicated with his friend Christopher Hamner at the scene of a one-car collision on November 26, 2011. Police concluded from evidence at the scene, including the statements of Fuentes and Hamner, that Fuentes was driving and Hamner was the passenger. Fuentes was charged on December 5, 2011, by trial information with operating a motor vehicle while intoxicated and driving while barred. Fuentes filed a motion for continuance of trial, and a hearing on the motion was held April 6, 2012. Fuentes's attorney stated he requested the continuance because he was going to serve a subpoena on Hamner, as they expected him to confess to being the driver of the vehicle.
Trial was held April 23, 2012. Hamner did not appear for trial. During his opening statement, Fuentes's counsel stated:
The only people who truly know what happened in that car that night who were there while the vehicle was in motion that we will know from the facts here today is Mr. Hamner and Mr. Fuentes. Mr. Hamner won't be here. Draw your own conclusion from that. And Mr. Fuentes is professing his innocence.
The State did not comment on Hamner's absence during its opening statement. During closing argument, Fuentes's counsel again mentioned Hamner's absence, stating:
[An officer testified] that the other guy was saying he was the driver, . . . meaning Mr. Hamner. So there was a dispute. . . . And we don't have Mr. Hamner here. He's not here. The State didn't bring him in. They could have hauled him in here. He was the other witness. He was the other person there when this happened.
The State, in its rebuttal argument, also commented on Hamner's absence and Fuentes's failure to ...