State of Iowa v. Gary Mark Cornelious ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0414
Filed April 27, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GARY MARK CORNELIOUS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Lawrence E. Jahn,
District Associate Judge.
Cornelious appeals his conviction of domestic abuse causing bodily injury,
second offense. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds and
Rachel C. Regenold (until her withdrawal), Assistant Appellate Defenders, for
appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Katherine M.
Krickbaum (until her withdrawal), Assistant Attorneys General, for appellee.
Considered by Bower, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.
Gary Mark Cornelious was convicted of domestic abuse causing bodily
injury, second offense, on January 14, 2015, and was sentenced accordingly.
Cornelious has appealed.
I. Factual Background
Cornelious and Carol Sill began living together in September 2014. They
had an intimate relationship and shared expenses. After shopping for groceries,
Sill came home to the shared apartment on October 13, 2014. It appeared to Sill
that Cornelious had been drinking. The parties were sitting on the couch when
Sill mentioned she had been talking to a man in the parking lot. Cornelious
grabbed her wrists and began squeezing them. Cornelious told her to get out,
but when she tried to leave, he slammed the door and pushed her back onto the
couch. When she got up a second time, he again pushed her down on the
couch, locked the door, and sat on her. She tried to scream but Cornelious put
his hand over her mouth to muffle her screams. His other arm was around her
neck. Sill thought she was going to die and continued to cry and scream.
Two neighbors, Brenda Gillespie, who lived across the hall, and Carey
Lindsey, the landlord, who lived below, heard the screams and came to the
apartment shared by Cornelious and Sill. Gillespie arrived at the apartment first
but found it locked. She asked Sill through the door if she was okay, and Sill
replied, “No.” Lindsey arrived shortly after obtaining a key, opened the door, and
found Cornelious straddling Sill on the couch. Lindsey ordered Cornelious off of
Sill, and he eventually complied. Lindsey held Cornelious and told Sill to get out
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and go to Gillespie’s apartment. The police were called. Cornelious insisted he
was going after Sill, and he and Lindsey got into a shoving match.
Two Ames police officers arrived and found the apartment in disarray. Sill
was taken to the hospital where she was found to have suffered bruises on her
arms and neck, and a cut lip. She suffered neck and back pain for a week.
The officers interviewed Sill and Cornelious and determined that probable
cause existed for charging Cornelious with domestic abuse assault causing
bodily injury. A trial information was filed, enhancing the charge by a prior
offense.
Cornelious filed a motion to suppress, alleging statements he made to the
officer were in violation of his Fifth Amendment rights. The motion was granted
as to statements made after the arrest. The statements made before the arrest
were held to have been made in the investigatory stage of the event. He also
filed a motion in limine attacking statements made by the officers that indicated
they had previous contact with Cornelious and comments about his demeanor at
the time of his arrest as being prejudicial and not relevant to the charges made.
The motion in limine was not ruled on but deferred until the time of trial in order
for the court to determine the context of the allegedly inadmissible statements.
Cornelious’s counsel was advised to renew the objection when the objectionable
testimony was offered. Cornelious has appealed, alleging it was error to overrule
his motion to suppress and to permit the testimony objected to in his motion in
limine. In addition, Cornelious has filed a pro se supplement to his counsel’s
brief.
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II. Motion to Suppress
A. Error Preservation
Cornelious raised the issue of the admissibility of his statements to law
enforcement before his arrest in the motion to suppress. It is not necessary to
renew an objection at trial when a motion to suppress has been overruled as to
the same evidence. See State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001).
Error has been preserved.
B. Standard of Review
Refusal of a trial court to suppress a statement alleged to have been
made in violation of a constitutional right is reviewed de novo. State v. Palmer,
791 N.W.2d 840, 844 (Iowa 2010). Deference is given to the trial court’s findings
but we are not bound by them. Id. An independent evaluation of the totality of
the circumstances, including both the suppression hearing and the testimony at
trial, is considered. Id. Statements made by a suspect in the custodial
interrogation are inadmissible unless there is an adequate recitation of a Miranda
warning and a valid waiver of those rights. Id. at 844-45.
C. Discussion
The record does not disclose that a Miranda warning was given to
Cornelious. The issue in this case is whether Cornelious was in custody when
the challenged statements were made. Four factors that are to be considered in
determining whether a suspect is in custody are: (1) language used to summon
the individual; (2) the purpose, place, and manner of the interrogation; (3) the
extent in which the individual is confronted with evidence of guilt; and (4) whether
he or she is free to leave. State v. Countryman, 572 N.W.2d 553, 558 (Iowa
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1997). In-home interrogations are generally considered noncustodial for
purposes of requiring a Miranda warning. State v. Evans, 495 N.W.2d 760, 762
(Iowa 1993).
Officer Clewell and Officer Thorpe responded to the 911 call. Officer
Clewell arrived first and immediately knocked on Cornelious’s apartment door.
Cornelious opened the door, Officer Thayer arrived soon after, and a search of
Cornelious and the immediate vicinity was made for weapons. Cornelious would
not stand up to complete the weapons search, so Officer Thayer pulled him up in
order to complete the search. Cornelious sat back on the couch but wanted to
move around. For purposes of safety, Officer Thayer told him to stop trying to
move around or he would restrain him.
Officer Clewell went to interview Sill, and Officer Thayer remained in
Cornelious’s apartment to interview him. The officer asked Cornelious what had
happened, and Cornelious’s answer was evasive and rambling. He eventually
denied there was an altercation, but when asked why there was an injured party
across the hall, Cornelious explained he had been straddling Sill on the couch,
kissing her, but she was not hurt. Cornelious offered no further explanation of
Sills’s injuries or the condition of the apartment. When Officer Clewell came back
after his interview with Sill, the officers determined probable cause existed for an
arrest, the arrest was made, and Cornelious was handcuffed.
After the suppression hearing, the trial court determined Cornelious was
not in custody until the formal arrest was made. We concur. The officers did not
summon Cornelious to interrogate him about a crime. Instead, the officers had
been called to the site of the disturbance to end it and to investigate its cause.
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The purpose of the questions was to determine what had happened. There was
no evidence that Cornelious was confronted with evidence of his guilt as a part of
the questioning process. The questions were not coercive or confrontational but
were directed at determining what had happened. The questioning was done
quickly and in Cornelious’s home. If Cornelious had tried to leave, he probably
would have been restrained. He did not ask to leave, and he was not told he
could not leave. Not every minor restraint from the freedom of movement by
authorities requires a Miranda warning before questioning. See Berkemer v.
McCarty, 468 U.S. 420, 435-36 (1984). A reasonable person in Cornelious’s
position would not have thought he was in custody or under arrest. Further, he
made no prejudicial admissions or statements, only denials. Even if the
admission of his statements was in error, it was harmless error.
III. Testimony Claimed to be Prejudicial and Not Relevant
A. Error Preservation
Cornelious challenged the admission of law-enforcement testimony as to
his demeanor and the officers’ prior contact with him by a motion in limine,
claiming it was not relevant and was prejudicial. In ruling on the motion, the court
indicated that the evidence may or may not be relevant, depending on the
circumstances in which it came in and advised Cornelious’s counsel , “[I]f you
think it is objectionable as it comes in, raise the issue by objection at trial and
then I will made the determination.” No objection was entered to the testimony
regarding Cornelious’s demeanor at the time of arrest. When a motion in limine
is filed requesting certain testimony be declared inadmissible and it is overruled,
the movant is generally required to renew the objection when the testimony is
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introduced at the trial in order to preserve error. State v. Tangie, 616 N.W.2d
564, 568 (Iowa 2000). An exception exists when the ruling is clear that the
testimony will not be permitted. Id. at 568-69. In this case, the court made it
clear further objection was required, but none was made. Error was not
preserved as to the demeanor evidence.
After each officer testified regarding past contact with Cornelious, a motion
for mistrial was lodged. An immediate motion for mistrial after objectionable
evidence comes into the record preserves any error made. Carter v. Wiese
Corp., 360 N.W.2d 122, 129 (Iowa Ct. App. 1982). Error has been preserved as
to testimony concerning law enforcement’s previous contact with Cornelious.
B. Scope of Review
A trial court’s denial of a motion for mistrial is reviewed for an abuse of
discretion. State v. Frei, 831 N.W.2d 70, 73-74 (Iowa 2013). Evidence of an
accused’s prior criminal activity is generally not relevant and therefore not
admissible. Iowa R. Evid. 5.404(b). Generally, an adequate safeguard is
created when the objectionable evidence is stricken from the record and the jury
admonished to disregard it. State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998).
An exception exists when the matter forbidden by the ruling is so prejudicial that
it could not be erased by the court’s admonition. Id.
C. Discussion
Officer Clewell testified that he recognized Cornelious as soon as he
opened the door. He also testified he had seen Cornelious intoxicated at a prior
time. A motion for mistrial was immediately lodged. Officer Thayer testified that
Cornelious had expressed dissatisfaction with law enforcement’s prior
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investigation, which was conducted as the result of a report he had made. Again,
counsel moved for a mistrial. Counsel maintained that the officers’ statements
raised an insinuation of past criminal activity on his part.
After denying the first motion for mistrial the court admonished the jury to
disregard Officer Clewell’s testimony as to any prior contact with Cornelious. He
summed up the admonishment by stating, “[S]o if you heard that testimony you
are to disregard it and treat it as if it were not given and is not in evidence.”
Immediately after Thayer’s comments, the second motion for mistrial was
lodged, and it was also overruled by the court. In overruling the second motion
for mistrial, the court stated it did not consider the statement prejudicial. It
appeared to refer to an investigation that Cornelious had requested.
Neither officer directly referred to any prior criminal activity or accusation
against Cornelious. In the first instance, the context of seeing Cornelious
intoxicated was not included in the officer’s statement, and there was no
suggestion made of why Officer Clewell knew him. The prior contact could well
have been purely social. It was not so prejudicial as to require anything more
than the admonishment made. As the trial court noted, the second reference to
prior contact appears to relate to circumstances in which Cornelious sought the
assistance of law enforcement. No prejudice was created by the comment.
Furthermore, when the evidence of guilt is strong, as it is in this case, that factor
may be taken into consideration when considering the prejudicial effect of an
isolated incident. See State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976).
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IV. Cornelious’s Pro Se Brief
Cornelious filed a pro se brief that includes the words, “ineffective
assistance of counsel” and “sufficient evidence” and “not given fair chance to
give testimony.” No authorities are cited, and it is not possible to determine with
any certainty what issue or issues he is attempting to raise. To the extent he is
attempting to raise an ineffective-assistance-of-counsel claim, the record is not
adequate to resolve the matter, and accordingly, it is preserved for a possible
postconviction-relief proceeding. See State v. Straw, 709 N.W.2d 128, 133 (Iowa
2006).
AFFIRMED.