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On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Black Hawk County, Joseph Moothart, Judge. Defendant appeals his conviction for domestic abuse assault causing bodily injury pursuant to Iowa Code section 708.2A(2)(b), claiming ineffective assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jeremy Westendorf, Assistant County Attorney, for appellee.
Demetrice Tompkins was convicted after a jury trial of domestic abuse assault causing bodily injury pursuant to Iowa Code section 708.2A(2)(b) (2011). He appeals his conviction, maintaining he received ineffective assistance of trial counsel on two grounds. First, he maintains counsel was ineffective in failing to object to an officer's testimony regarding the complaining witness's out-of-court statements under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Second, he maintains counsel was ineffective in failing to object to and move to strike as hearsay the officer's unsolicited testimony regarding another witness's out-of-court statement. Finally, he maintains the cumulative effect of counsel's alleged deficiencies caused him prejudice.
Upon our de novo review, we conclude trial counsel was not ineffective in failing to object on Confrontation Clause grounds to the officer's testimony regarding the complaining witness's out-of-court statements. Further, we conclude the record before us is insufficient to determine whether trial counsel should have objected to and moved to strike as hearsay the officer's unsolicited testimony regarding the other witness's out-of-court statement. We vacate the decision of the court of appeals and affirm the judgment of the district court.
I. Background Facts and Proceedings.
In June 2012, Tompkins and A.H. were in a relationship and living together in an apartment in Waterloo, Iowa. At approximately 12:26 a.m. on June 18, Officer Kyle Jurgensen of the Waterloo Police Department was dispatched to the couple's apartment complex for a domestic dispute. This was in response to a 911 call made by a neighbor who reported that A.H. told her Tompkins assaulted her and requested that the neighbor call 911. Upon arrival, Officer Jurgensen found the couple in front of the apartment complex. Approximately four to five other people were also present. Tompkins was demonstrably upset and yelling " [homophobic] derogatory slang [and] curse words" at A.H.
Officer Jurgensen separated the parties and attempted to calm Tompkins down and determine what was going on. During this conversation, Tompkins informed Officer Jurgensen that earlier that night " he had caught [A.H.] cheating with another female." He further informed Officer Jurgensen he was " done with the relationship" and had come to the apartment that night to " grab his stuff." During their conversation, Officer Jurgensen observed that Tompkins smelled like alcohol and was slurring his speech. Additionally, Tompkins continued to intermittently yell disparaging remarks at A.H. from a distance. After approximately twenty to twenty-five minutes, Officer Jurgensen placed Tompkins in the back of his police car. From that location, Tompkins continued to yell disparaging remarks at A.H.
Officer Jurgensen then turned his attention to A.H. and asked her what had happened that night. A.H. told Officer Jurgensen she and Tompkins were " arguing in front of the [apartment] complex and he had pushed her down on the concrete during the argument." Officer Jurgensen also spoke with one other witness who stated that " [Tompkins] had pushed [A.H.]." According to Officer Jurgensen, this other witness was noticeably intoxicated and uncooperative. Officer Jurgensen also observed injuries on A.H., which included fresh scrapes on her left elbow and left
knee. A.H.'s glasses were also broken. Officer Jurgensen noted that A.H.'s injuries were consistent with a fall on concrete, as described by A.H.
Officer Jurgensen then left the scene with Tompkins. En route to the county jail, Tompkins was upset and verbally abusive towards Officer Jurgensen. Tompkins denied pushing A.H., claiming A.H. " did those injuries to herself by hitting a window." After arriving at the jail, Tompkins attempted to negotiate with Officer Jurgensen, saying he would " [take] . . . a breath test if [Officer Jurgensen] didn't charge him with domestic assault." Officer Jurgensen declined this offer, and Tompkins refused to take a breath test.
As a result of the above incident, the district court entered a no-contact order against Tompkins barring him from having any contact with A.H. Later that day, A.H. submitted a letter to the district court requesting it lift the no-contact order. In the letter, A.H. claimed Tompkins " never put his hands on [her] and . . . helps [her] with bills, food, [and] gas expense[s]." The letter further stated that on the night of the incident the couple had been " drinking and got into an argument outside of [their] apartment and one of the neighbors had called the cops." A.H. also claimed that when she was attempting to enter the apartment she " tripped and fell on the stairs."
On July 9, the district court lifted the no-contact order. Also on July 9, the State formally charged Tompkins with domestic abuse assault causing bodily injury in violation of Iowa Code section 708.2A(2)( b ). Counsel was appointed to represent Tompkins on the charge, and Tompkins entered a plea of not guilty.
Based on the letter A.H. had presented to the district court, A.H. appeared to recant the version of events she relayed to Officer Jurgensen the night of the incident. In light of this recantation, Tompkins filed a motion in limine requesting that the court preclude the State from calling A.H. as a witness. Specifically, the motion contended that the State intended to violate the principles established in State v. Turecek, 456 N.W.2d 219, 225 (Iowa 1990). That is, Tompkins believed the State would call A.H. in an effort to present inadmissible hearsay, her prior statements, to the jury under the guise of impeachment.
On the morning of trial, by way of an oral ruling, the district court partially granted Tompkins's motion in limine regarding the Turecek issue. The State confirmed that it did not intend to call A.H. for the sole purpose of impeaching her, but rather only to establish a domestic relationship between her and Tompkins. Accordingly, the district court barred the State from eliciting additional information from A.H. about the incident without first alerting the court and defense counsel so it could hold a hearing outside of the presence of the jury.
At trial, the State called A.H. as its first witness to establish a domestic relationship between her and Tompkins. Consistent with the district court's ruling, the State did not elicit any additional evidence from A.H. Following this questioning, Tompkins did not cross-examine A.H. However, A.H. remained subject to the State's subpoena, and the State admonished her to remain within five minutes of the courthouse at all times until the close of evidence " for the possibility that she would be called by either the State or the defense."
The State next called Officer Jurgensen to testify. Officer Jurgensen testified in detail to his investigation of the incident and his own observations as discussed above. After this preliminary testimony, in reference to his conversation with A.H., the State then asked Officer Jurgensen, " And what did she say?" This question drew an objection from defense counsel on hearsay grounds. The district court initially sustained the objection. However, after the State set forth additional foundational evidence, the district court overruled the hearsay objection and allowed the State to proceed under the excited utterance exception. Officer Jurgensen then testified that A.H. told him " that her and her boyfriend were arguing in front of the complex and he had pushed her down on the ...