January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
UNDRAY J. REED, Defendant-Appellant.
from the Iowa District Court for Black Hawk County, James D.
Coil, District Associate Judge.
defendant challenges his conviction for enhanced
domestic-abuse assault, alleging his trial counsel was
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., Mullins, J., and Goodhue, S.J.
hearing testimony that Undray Reed threw an electric fan at
his mother, then punched and head-butted her, a jury
convicted him of domestic-abuse assault causing bodily
injury. The district court enhanced the assault to an
aggravated misdemeanor after Reed admitted to a previous
domestic-abuse conviction. On appeal, Reed complains his
trial counsel was ineffective in handling his prior
convictions for impeachment purposes under Iowa Rule of
Evidence 5.609(a). Because the record is inadequate to decide
the question of counsel's effectiveness, we affirm
Reed's conviction and preserve the impeachment issue for
Facts and Prior Proceedings
a possible prison sentence in June 2015, Reed and his pit
bull, Bossie, moved in with his mother and her fiancé.
Reed's mother also owned a dog, a Boston Terrier mix
named Chloe. Seeing how his mother disciplined Chloe, Reed
was worried about Bossie's care: "I've raised
the dog since she was a puppy, and I wanted to leave her in
the best possible hands." When Reed confronted his
mother about her treatment of Chloe, she told him:
"Well, you and your dog can get the fuck out."
to Reed's mother, he then threw an electric fan at her
and punched her in the face. As her fiancé struggled
to intervene, Reed head-butted his mother. Reed claimed he
was acting in self-defense after his mother grabbed the front
of his shirt. Reed also claimed his mother threw a lamp at
him. Police responded to the scene and arrested Reed.
Reed's mother suffered swelling to her head.
State charged Reed with domestic-abuse assault causing bodily
injury, in violation of Iowa Code section 708.2A(3)(b)
(2015), alleging he had been previously convicted of domestic
abuse in 2005. He stood trial before a jury in September
2015. The State presented testimony from Reed's mother,
her fiancé, and two police officers. Reed testified in
his own defense. After one hour of deliberation, the jury
returned a verdict of guilty. Reed admitted to a prior
domestic-abuse conviction and received a prison sentence not
to exceed two years. Reed now appeals, challenging the
performance of his trial counsel.
Standard and Appropriateness for Review
review claims concerning the effective assistance of counsel
de novo. See State v. Utter, 803 N.W.2d 647, 651
(Iowa 2011). Generally, we preserve such claims to be heard
at postconviction-relief proceedings. See id. We
will do so regardless of our estimation of the claim's
"potential viability." See State v.
Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We only
address a claim challenging counsel's performance on
direct appeal if development of the factual record would not
be useful to our resolution. See State v. Carroll,
767 N.W.2d 638, 641 (Iowa 2009).
argues his trial counsel was constitutionally remiss in not
objecting to the State's use of prior convictions under
rule 5.609(a) to impeach his testimony. The convictions
included a felony drug offense as well as burglary and theft
offenses. To succeed on his ineffective-assistance claim,
Reed must show both: (1) his counsel failed to perform an
essential duty and (2) this failure resulted in prejudice.
See Strickland v. Washington, 466 U.S. 668, 687
prosecutor took up the issue with the court before Reed's
There's impeachment evidence that the State would at this
point like to move the court to either make a ruling on
whether this will be admissible impeachment evidence in this
Defendant's criminal history indicates that he has a
conviction of a theft back in 2007. That he does have three
convictions of burglary third degree in 2009, and that he
also has- and the burglary is breaking into a vehicle to
commit a theft. And he also has felony conviction for a
possession of controlled substance third or subsequent
offense in 2009.
The State believes that if the defendant were to take the
stand that this testimony of [these] convictions or
impeachment evidence will be probative in this particular
case and that they should be admitted-or the State should be
allowed to impeach the defendant by this evidence and that
this is allowable under rule 5.609 of the Iowa criminal rules
of evidence in this particular case.
counsel did not argue the prior offenses were inadmissible,
instead providing this response:
[T]he rule, as I understand it, is that [the State] can talk
about a prior felony conviction if it's within the last
ten years and also crimes of dishonesty whether or not they
are a felony. I do believe that the theft and the burglary
could be talked about as impeachment because it was a theft
into a motor vehicle.
Felony possession. It is a felony, so he can bring it up. I
just question whether or not he can get into the issue of
what kind of felony it is. I would ask that it be limited to
just simply that he has a conviction for a felony, and then
on the other two cases obviously would ask that he not get
into any details about those crimes either.
court allowed the impeachment, ruling as follows:
Well, understanding that the defense does not object to use
of those offenses for impeachment purposes, I will allow the
State to ask the defendant whether or not he has been
convicted of a felony offense without mentioning the fact
that the felony was a drug offense or possession of drug
third offense and that the State may also, then, inquire of
the defendant with regard to the theft and the burglary
Reed's cross examination, the State briefly asked him
about a theft conviction in 2007, three car burglaries in
2009, and a felony conviction in 2009. Defense counsel played
down Reed's impeachment in his closing argument, telling
Everybody involved in this case . . . has a criminal history
. . . so if you want to consider that in determining whether
someone is telling the truth, go right ahead, but I will tell
you that what you need to look at in this case are the
pictures and decide whether or not these pictures are
consistent with what people are telling you and the story of
all this and how it came about.
appeal, Reed bifurcates his ineffective-assistance claim,
alleging (1) trial counsel failed to object to the admission
of Reed's felony drug conviction without any regard for
its probative value or prejudicial effect under rule
5.609(a)(1) and (2) trial counsel failed to make any argument
that burglary and theft are not crimes of dishonesty
permitting automatic admission under rule 5.609(a)(2). We
will address each of those claims in turn.
start with the language of rule 5.609(a), which states:
purpose of attacking the credibility of a witness:
(1) Evidence that a witness other than the accused has been
convicted of a crime shall be admitted, subject to rule
5.403, if the crime was punishable by death or imprisonment
in excess of one year pursuant to the law under which the
witness was convicted, and evidence that an accused has been
convicted of such a crime shall be admitted if the court
determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused; and
(2) Evidence that any witness has been convicted of a crime
shall be admitted if it involved dishonesty or false
statement, regardless of the punishment.
impeachment rule also includes a time limitation:
Evidence of a conviction under this rule is not admissible if
a period of more than ten years has elapsed since the date of
the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the
later date, unless the court determines, in the interests of
justice, that the probative value of the conviction supported
by specific facts and circumstances substantially outweighs
its prejudicial effect.
Iowa R. Evid. 5.609(b).
first argues his felony drug conviction was six years old and
had little bearing on his veracity. See State v.
Parker, 747 N.W.2d 196, 208 (Iowa 2008) (distinguishing
drug offenses from crimes found to be probative of
credibility). He acknowledges the court shielded the jurors
from learning his felony conviction involved drugs but
contends he was prejudiced by the jurors hearing he was a
felon. See Iowa R. Evid. 5.609(a)(1). Reed argues
given inconsistencies in the testimony about the fight, it is
likely the jurors considered his felony conviction in
assessing credibility and reaching a guilty verdict.
State acknowledges trial counsel "could have objected to
the admission of the felony drug conviction as
impeachment" but contends counsel's failure to do so
did not amount to a breach of duty resulting in prejudice
because the jury learned from Reed's direct examination
he was facing a prison sentence. The State contends counsel
acted reasonably in conceding the admissibility of the felony
drug conviction because counsel "likely determined"
if asked to do the balancing under rule 5.609(a), the court
would have found the probative value of the evidence
outweighed its prejudicial effect.
conclude additional factual record, providing trial counsel
an opportunity to address the impeachment issue, is necessary
before deciding whether counsel's concession regarding
the admissibility of Reed's felony conviction amounted to
a breach of duty resulting in prejudice. See State v.
Barnes, 791 N.W.2d 817, 826 (Iowa 2010). Accordingly, we
preserve this claim of ineffective assistance of counsel for
and Burglary Convictions.
next claims trial counsel should have objected to the
admission of Reed's burglary and theft convictions as not
involving "crimes of dishonesty." In State v.
Harrington, our supreme court held rule 5.609(a)(2)
"gives the district court no discretion to exclude a
witness's prior conviction if it involves dishonesty or
false statement. Prior convictions that involve dishonesty or
false statement are automatically admissible for impeachment
purposes." 800 N.W.2d 46, 51 (Iowa 2011). The court
further stated: "It has been settled law in this state
that convictions for theft and burglary with intent to commit
theft are crimes of dishonesty." Id.
is the footnote that the Harrington court attached
to its "settled law" statement that motivates
Reed's ineffective-assistance claim. The court noted its
awareness "that our longstanding construction of the
term 'dishonesty' is derived from common law cases
predating our adoption of the Iowa Rules of Evidence in
1983." Id. at 52 n.4. The court discussed the
corresponding federal rule of evidence, and observed:
"Many federal and state courts have wrestled with and
reached different results as to whether theft and burglary
convictions are crimes that per se 'involve dishonesty or
false statement' under the framework of Federal Rule of
Evidence 609 and corresponding state rules."
Id. The court reserved "this potential issue
for a case where it is properly argued."
that "open invitation, " Reed asked our supreme
court to retain this case to consider "changing legal
principles" concerning what constitutes a "crime of
dishonesty" for purposes of rule 5.609(a)(2) and
extensively briefed the federal and state case law supporting
a narrower interpretation of what prior convictions are
admissible as involving dishonesty or false statements. But
the supreme court transferred Reed's case to our court.
question before us is whether Reed's trial counsel
breached a material duty by not raising the issue footnoted
in Harrington. We don't require counsel to be a
"crystal gazer"-able to predict future changes in
established law-to provide effective assistance. See
State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999).
Instead, we require counsel to use due diligence in deciding
whether an issue is "worth raising." See Millam
v. State, 745 N.W.2d 719, 723 (Iowa 2008). In
determining whether counsel's failure to raise an issue
constituted a breach of duty, we consider: (1) whether Iowa
case law foreclosed the argument and (2) whether case law
from other jurisdictions supported the defendant's
position. See State v. Schoelerman, 315 N.W.2d 67,
72 (Iowa 1982).
State v. Cobbins, No. 12-0857, 2013 WL 64015461, at
*8 (Iowa Ct. App. Dec. 5, 2013), we decided reasonable
criminal defense attorneys would have considered
admissibility to be "worth raising" for certain
prior theft convictions given the split in authority from
other jurisdictions and the Harrington footnote
indicating our supreme court may be receptive to revisiting
the issue. We follow that same path here. Our record does not
show the nature of the theft or burglaries previously
committed by Reed. Accordingly, we affirm Reed's
conviction but preserve this issue for postconviction
proceedings to determine if counsel breached a material duty
in handling the impeachment issue and whether that breach
resulted in prejudice to Reed's case.
[*]Senior judge assigned by order
pursuant to Iowa Code section 602.9206 (2017).