Undray Jermaine Reed v. State of Iowa ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1680
Filed December 19, 2018
UNDRAY JERMAINE REED,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
A petitioner appeals the dismissal of his application for postconviction relief.
AFFIRMED.
Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Clive, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.
Undray Jermaine Reed appeals the district court’s denial of his application
for postconviction relief (PCR). He claims his trial counsel was ineffective by not
objecting to the prosecutor’s questioning on cross-examination of Reed’s prior
criminal convictions of theft, burglary, and a “felony.”
We review ineffective-assistance-of-counsel claims de novo. State v.
Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “In order to succeed on a claim of
ineffective assistance of counsel, a defendant must prove: (1) counsel failed to
perform an essential duty; and (2) prejudice resulted.” Id. The defendant must
prove both prongs by a preponderance of the evidence. Id. at 196.
We summarized the facts behind Reed’s conviction on direct appeal:
Facing 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 f**k out.”
According 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 v. Reed, No. 16-0448, 2017 WL 104939, at *1 (Iowa Ct. App. Jan. 11, 2017).
A jury convicted Reed of domestic abuse assault causing bodily injury. See Iowa
Code § 708.2A(3)(b) (2015). We affirmed his conviction, but we preserved issues
related to the admission of his prior convictions for PCR proceedings. See Reed,
2017 WL 104939, at *4.
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Prior to Reed testifying in his criminal trial, the State sought clarification on
the admissibility of his prior convictions for impeachment. Reed had a conviction
for theft in 2007, three convictions for third-degree burglary in 2009, and a felony
conviction for possession of a controlled substance, third or subsequent offense,
in 2009. Reed’s trial counsel conceded the theft and burglary convictions were
admissible as crimes of dishonesty within the last ten years, and he permitted
admission of the felony conviction as long as the State did not specify the kind of
felony. Accordingly, on cross-examination and for purposes of impeachment, the
State asked Reed if he had been previously convicted of theft, three counts of
third-degree burglary, and a “felony.”
Regarding the “felony” conviction, Reed’s trial counsel acknowledged for
this proceeding that he should have required the trial court to weigh whether
attempting to impeach Reed’s testimony by mentioning his prior felony was more
prejudicial than probative.1 See Iowa R. Evid. 5.609 (2015). However, his trial
counsel also believed the district court would have admitted the conviction
regardless. With this reflection on the trial testimony, the PCR court found no
breach of duty. We agree.
1
Iowa Rule of Evidence 5.609 at the time provided in part:
a. General rule. For the purpose of attacking the credibility of a
witness:
(1) Evidence . . . that an accused has been convicted of such
a crime [punishable by death or imprisonment in excess of
one year] 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.
4
Furthermore, the PCR court found no prejudice resulted from the
introduction of the word “felony” alone. Additionally, Reed on direct examination
acknowledged he “was facing a possible prison sentence” before the altercation
and he wanted to leave his dog “in the best possible hands.” Because Reed
introduced the fact that he was facing prison time, the jury could have put two and
two together so that the prosecutor’s later mention of a felony did not work to
Reed’s prejudice. Therefore, we agree with the PCR court that the use of Reed’s
“felony” for impeachment did not cause prejudice.
Regarding the theft and burglary convictions, Reed asserts his trial counsel
breached an essential duty by failing to object to the admission of these
convictions. He posits that neither crime involved “dishonesty or a false statement”
under Rule 5.609(a)(2). He reasons, “although Iowa has traditionally treated theft
and burglary as crimes of dishonesty,” there is a split of authority in other
jurisdictions and the federal circuits and our supreme court left open the question
in State v Harrington, 800 N.W.2d 46, 52 n.4 (Iowa 2011). However, as the State
points out, the “open” question in Harrington was only our supreme court’s refusal
to sort out the disparity of interpretations between the various state and federal
courts. See Harrington, 800 N.W.2d at 52 n.4. Nothing in Harrington undermined
controlling Iowa case law, stemming from common law, that burglary and theft are
crimes reflecting adversely on a person’s “honesty and integrity.” See id. at 51–
52 (“It has been settled law in this state that convictions for theft and burglary with
intent to commit theft are crimes of dishonesty.”). Moreover, Harrington left no
question that the mention of such crimes to impeach an accused’s credibility did
not require the court to engage in a balancing test prior to introduction of the
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information. Id. at 51 (overruling State v. Axiotis, 569 N.W.2d 813 (Iowa 1997) and
finding, “Prior convictions that involve dishonesty or false statement are
automatically admissible for impeachment purposes”).
We therefore conclude the district court properly denied Reed’s application
for postconviction relief.
AFFIRMED.