                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-2070
                              Filed January 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID LARRY UCHYTIL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Buchanan County, George L. Stigler,

Judge.



      A defendant appeals his conviction for domestic abuse assault causing

bodily injury. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
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TABOR, Presiding Judge.

       A jury convicted David Uchytil of domestic abuse assault causing bodily

injury based on evidence he shoved, struck, and strangled the mother of his

children.   Uchytil claims his conviction is invalid because he did not receive

effective representation. He alleges his attorney should have sought recusal by

the trial judge for “overintervention” in the parties’ presentation of the case. We

are unable to resolve this allegation on direct appeal.            We affirm Uchytil’s

conviction, but preserve his ineffective-assistance-of-counsel claim for possible

postconviction-relief (PCR) proceedings.

       I.     Facts and Prior Proceedings

       Uchytil and Tracy have two daughters in common: T.R. and A.R.                   In

September 2015, the older daughter, T.R., then eighteen, called 911 to report her

dad was being “violent” with her mom.1 When police officers arrived, Tracy told

them Uchytil had struck her face, pushed her down on the floor, and placed his

hand on her neck. The officers documented a red lump under Tracy’s eye and red

marks at her jaw line. Tracy recalled the injuries “hurt very badly.” By contrast,

Uchytil told the police “nothing physical” occurred during the argument.

       The State originally charged Uchytil with aggravated misdemeanor

domestic abuse assault, alleging he strangled Tracy.                  See Iowa Code

§§ 708.2A(1), 708.2A(2)(d) (2015). After Uchytil waived his right to a speedy trial,

the court approved numerous continuances. In September 2017, the State filed

an amended trial information, reducing the charge to domestic abuse causing


1
 T.R. testified that she took her then two-year-old daughter and thirteen-year-old sister,
A.R., upstairs when assaults began.
                                           3

bodily injury, a serious misdemeanor. See Iowa Code § 708.2A(2)(b). Later that

month, the case proceeded to a jury trial. The State presented testimony from

Tracy, T.R., and two police officers.

       At trial, an issue arose concerning a possible witness, B.J.—a friend of

Tracy’s younger daughter, A.R. Uchytil claimed B.J. was visiting Tracy’s home

during the incident. After selecting the jury, the defense moved for a mistrial so it

could investigate B.J.’s testimony. The defense expected B.J. to impeach the

version of events offered by Tracy and T.R. Specifically, the defense anticipated

B.J. would testify T.R. was upstairs with her boyfriend during her parents’ argument

and did not see Uchytil assault Tracy.

       The district court denied the mistrial motion, expressing concern the case

had already been pending for two years. The court assured the defense it was

free to call B.J. or T.R.’s boyfriend to testify for Uchytil. But even after the mistrial

ruling, the court seemed preoccupied with the state of the evidence on this issue.

For example, during the State’s case, the judge intervened in the direct

examination of Tracy, suggesting:

       Before you leave this witness to cross-examination, I think it would
       be helpful to the jury if you would have the witness give explicit
       testimony as to what people were in the home, the locations of those
       individuals at the time of the alleged assault, who actually saw the
       alleged assault and things of that nature, so that the jury will have an
       ironclad understanding as to what she is testifying to.

The prosecutor complied with the court’s suggestion, asking Tracy who was

present at the time of the alleged assault and where those individuals were located.
                                            4


       After the testimony of Tracy and T.R., the court questioned T.R. outside of

the presence of the jury about the identity of her boyfriend and where he could be

contacted. The court then explained:

       The reason I asked those questions of the witness out of the hearing
       of the jury is to deal with that motion for a mistrial earlier this date. It
       seems clear that one of two things is true: That the two witnesses
       who have just testified will have committed perjury, or that the
       witness yet to come, [B.J.], will commit perjury if she testifies that she
       was there and that the boyfriend of [T.R.] was there.

The court told defense counsel, “You now have, because I just gave it to you on

the record, the name of the boyfriend, where the boyfriend works, where the

boyfriend is at this precise moment.” From this premise, the court suggested

defense counsel could subpoena the boyfriend at his job and “we can hear from

the boyfriend as to whether he was or was not there.”

       As it turned out, the only defense witness was Uchytil.2 Contradicting his

statement to police at the scene, Uchytil admitted the fight was physical. But he

claimed Tracy was the aggressor, hitting him from behind like he was “a football

dummy.” He acknowledged pushing her “one time” as he defended himself. At

the close of Uchytil’s direct testimony, the court asked: “Would you cover who was

there at the time of this event, [defense counsel], please?” Counsel responded:

“I’m not intending to ask Mr. Uchytil who was there.” And the court responded, “All

right. Cross-examination.”




2
  Defense counsel spoke with both T.R.’s boyfriend and B.J., but opted not to call either
to testify. The defense did make an offer of proof with then fifteen-year-old B.J., who
recanted her earlier claim to have been at Tracy’s house. B.J. told the court Uchytil urged
her to “lie for him” and she did so because she was “scared of him.”
                                         5


       The jury returned a guilty verdict. The court sentenced Uchytil to a 365-day

jail term, with 185 days suspended. He now appeals his conviction, raising a single

claim of ineffective assistance of counsel.

       II.     Standard of Review and Foundational Principles

       We review ineffective-assistance claims de novo because the right

originates in the Sixth Amendment and article I, section 9 of the Iowa Constitution.

State v. Soboroff, 798 N.W.2d 1, 8 (Iowa 2011).

       To prevail on appeal, Uchytil must show counsel breached an essential duty

and prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

On the first prong, Uchytil must prove his attorney’s performance fell “below the

standard demanded of a reasonably competent attorney.” See State v. Virgil, 895

N.W.2d 873, 879 (Iowa 2017) (quoting Millam v. State, 745 N.W.2d 719, 721 (Iowa

2008)). On the second prong, Uchytil must prove but for counsel’s substandard

performance, a different trial outcome was reasonably probable. See id. at 882.

As our default mode, we preserve ineffective-assistance claims for PCR actions.

State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). Preservation to develop the

record is preferred when the challenged action or inaction by counsel may

implicate trial tactics. Id.

       On the underlying recusal issue, the district court “may take reasonable

measures to insure that the evidence is intelligibly presented to the jury.” State v.

Cuevas, 288 N.W.2d 525, 533 (Iowa 1980). But the court must do so without

assuming “the role of an advocate.” Id. Even a “fleeting remark” by the trial judge

“may carry great—even controlling—weight with the jury.” State v. Reed, 482

N.W.2d 672, 675 (Iowa 1992). Our supreme court has cautioned trial judges
                                         6


“overintervention   in a    trial may pose greater risk of          prejudice   than

underintervention.” Id.

       III.   Analysis

       Uchytil argues by suggesting lines of inquiry to counsel in front of the jury,

the trial court “overstepped its bounds as a neutral and detached arbiter and

became an advocate on behalf of the State.” He contends, “[A] reasonable person

would certainly have questioned the judge’s impartiality in this case.” See State v.

Mann, 512 N.W.2d 528, 532 (Iowa 1994). Because defense counsel did not ask

the trial judge to recuse himself after his interventions, Uchytil argues he received

ineffective assistance.

       The State counters Uchytil cannot show he was prejudiced by the trial

court’s actions or counsel’s performance. In its estimation, the district court’s

interventions were “not overzealous.” The State argues the jury would not have

been able to infer any possible bias by the court’s prompting of the attorneys to

ask certain questions about the individuals present for the alleged assault.

       The situation is not as black and white as argued by either party. We see

more grey.     Without witnessing the trial court’s mannerisms or tone when

intervening in the presentation of the parties’ evidence, we cannot assume what

the jurors would have inferred. See Cuevas, 288 N.W.2d at 533 (noting “facial

expressions, gestures and voice modulation can be construed to evince an attitude

or feeling toward a witness or party”). By the same token, we cannot presume

defense counsel overlooked a meritorious objection without weighing it against the

overall trial strategy.   State v. Harrison, 914 N.W.2d 178, 206 (Iowa 2018)
                                          7


(requiring defendant to overcome strong presumption that challenged action by

trial counsel might be “sound trial strategy”).

       We conclude additional record is necessary to address Uchytil’s allegation

against counsel. A PCR hearing would provide his trial attorney the chance to

explain her decision not to seek recusal. The record is also undeveloped “as to

any prejudice which may or may not have resulted from trial counsel’s actions.”

See State v. Shanahan, 712 N.W.2d 121, 143 (Iowa 2006). Because the trial

record lacks the details needed to address Uchytil’s claim, we preserve it for a

potential PCR action. See id.

       AFFIRMED.
