                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0069
                             Filed January 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CLARENCE CASTILE JR.
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Story County, Steven P. Van

Marel, District Associate Judge.



      A defendant appeals following his conviction for domestic abuse assault

asserting his counsel was ineffective in various ways. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Stephen P. Holmes, County Attorney, and Crystal Rink, Assistant

County Attorney, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
                                           2



MULLINS, P.J.

       Clarence Castile appeals following his conviction for domestic abuse

assault, in violation of Iowa Code sections 708.2A(1) and 708.2A(2)(b) (2013). In

his appeal, Castile claims his attorney provided ineffective assistance in a

number of ways, including: (1) failing to object to the general intent jury

instruction and not requesting the specific intent instruction, (2) failing to object to

the testimony of the police officer who Castile claims vouched for the credibility of

the victim and one witness, and (3) failing to object to evidence of other bad acts.

Castile also claims the cumulative effect of all these errors has resulted in

denying him a fair trial.

I. Background Facts and Proceedings.

       After a night of drinking, Clarence Castile arrived at Danielle Hart’s

apartment, where he had been occasionally staying, to retrieve his children. Not

wanting Castile to drive with the children in the car in his intoxicated state, Hart

demanded he leave the children with her and get out of her apartment. When

Castile’s daughter was unable to locate her belongings in response to Castile’s

demands to leave, Castile struck the girl with an open hand.             Attempting to

defend the girl, Hart tackled Castile to the ground. When Castile continued to

argue with Hart and insist on taking his children with him, Hart called police

seeking assistance to prevent Castile from taking his children from her home

while he was intoxicated. While Hart was on the phone with the 911 dispatcher,

Castile punched Hart in the left eye causing the phone to fly out of her hand.

Hart’s friend, Cassaundra Mingus, picked up the phone and relayed information
                                            3



to the dispatcher as Hart and Castile continued to fight. Hart reported she was

struck in the head multiple times during the altercation. Castile eventually picked

up one of his children and left the apartment. Police arrived shortly thereafter

and prevented Castile from driving away with the child in the car.

       After speaking with Hart, Mingus, and Castile,1 the officers arrested

Castile and charged him with domestic abuse assault.2 The case proceeded to a

jury trial on December 10, 2013, and the jury returned a guilty verdict the next

day. Castile was sentenced to one year in jail with all but thirty days suspended.

He was placed on probation for a year and assessed the applicable surcharges

and fines. The court also entered a five-year no-contact order between Hart and

Castile.

       Castile now appeals claiming his counsel was ineffective in several

aspects.

II. Scope and Standard of Review.

       Our review of an ineffective-assistance-of-counsel claim is de novo as the

claim implicates the defendant’s Sixth Amendment right to counsel.               State v.

Lyman, 776 N.W.2d 865, 877 (Iowa 2010). To succeed on his claim counsel

provided ineffective-assistance, Castile must prove (1) counsel failed to perform

an essential duty and (2) he suffered prejudice as a result. See id. Counsel’s



1
  Castile was accompanied by other friends, but those friends did not report to police that
they had seen the altercation.
2
  The parties share a child, and Castile would frequently stay with Hart at her apartment.
See Iowa Code § 236.2 (defining domestic abuse as an assault “between family or
household members who reside together at the time of the assault” and as an assault
“between persons who are parents of the same minor child, regardless of whether they
have been married or have lived together at any time”).
                                         4



performance is measured objectively against the prevailing professional norms

considering all the circumstances. Id. at 878. To prove prejudice, Castile has to

show a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.        See id.    We normally

preserve ineffective-assistance claims for postconviction-relief proceedings

where the record can be fully developed and counsel is given an opportunity to

respond to the allegations.    State v. Shanahan, 712 N.W.2d 121, 136 (Iowa

2006). However where the record is complete, we may decide the claim on

direct appeal. Id.

III. Ineffective Assistance of Counsel.

       Castile alleges his counsel failed to provide effective assistance in a

number of ways including: (1) failing to object to the court instructing the jury on

general intent and not requesting a specific intent jury instruction, (2) failing to

object to the testimony of the police officer who Castile claims improperly

vouched for the credibility of Hart and Mingus, and (3) failing to object to

evidence introduced by the State showing his prior bad acts.

       A. Criminal Intent Jury Instructions. Our supreme court had made it

clear that assault is a specific intent crime. See State v. Fountain, 786 N.W.2d

260, 265 (Iowa 2010) (“Because the elements of these assault alternatives

include an act that is done to achieve the additional consequence of causing the

victim pain, injury, or offensive physical contact, the crime includes a specific

intent component.”). Therefore, courts should instruct the jury on specific intent.

Id. No such specific intent instruction was given or requested in this case, but
                                           5



that does not end our inquiry.       We must decide whether Castile proved he

suffered prejudice as a result of the lack of a specific intent instruction.

       The thrust of Castile’s defense at trial was not to deny a physical

altercation occurred,3 rather the defense was that Hart, rather than Castile, was

the aggressor. Castile asserted the affirmative defense of justification—Castile

claimed any injury Hart sustained was the result of Castile defending himself

against Hart’s assault. In his opening statement to the jury, which occurred after

the State rested its case, defense counsel stated:

               The evidence has shown and will continue to show that Ms.
       Hart invited this incident. The text message that’s been admitted
       into evidence, which Ms. Hart admits to have interchanged with Mr.
       Castile, tells him you come home again, “we’re going to box.” . . .
               We have evidence—you’ve heard evidence of Ms. Hart
       indicating that she admitted to initiating the physical contact that’s
       been between herself and Mr. Castile. . . .
               The evidence that’s been presented and that will be
       presented now in the defendant’s case is that this action was
       initiated by Ms. Hart, that it continued on. She was the initial
       aggressor. She invited it, and that it took someone to come in and
       extricate Mr. Castile from the situation to get this brought down to
       the level where it should be.

       Again in the defense’s closing statement, counsel asserted:

       Don’t come back here or we’re going to box. That’s where this
       whole thing started. Initiated by Danielle Hart. A half hour prior to
       Officer Kruger and Officer Clewell coming on the scene, Mr. Castile
       receives this text message from Danielle Hart. Don’t come back
       here or we’re going to box. Not an unequivocal statement.
              ....
              The State has indicated that punching is not reasonable
       force, a type of force that was utilized by Danielle Hart admittedly
       on the stand today. She admitted, yes, I punched Clarence Castile;
       so at the same time that we’re alleging on behalf of the State that’s


3
   We note that on the police video taken at the scene, which was shown to the jury,
Castile denied ever physically touching Hart. However, this defense was not used at
trial.
                                         6



      not reasonable force, apparently Ms. Hart gets to utilize that level of
      force. She initiated this incident with the text. She invited the
      incident with the follow-up call.
              Mr. Honore testified that he walked in and he witnessed Ms.
      Hart punch Clarence Castile. . . .
              ....
              She admitted—Ms. Hart admitted to taking him down. She
      admitted to wrestling him down on the ground. We go back to
      commensurate force.          You’ve got a justification instruction.
      Reasonable force is commensurate force. Okay? So she’s
      admitted on the stand that she punched. She’s admitted on the
      stand that she wrestled him down to the ground. Anyone has
      opportunity to respond to that with commensurate force.
      Commensurate force. In addition, the State through its own
      witnesses has established that Mr. Castile spent overnights with
      Ms. Hart in the residence there, and that was effectively his
      residence for purposes of the legal standard of not having a duty to
      retreat from your own house. He doesn’t have a duty to retreat.
      When we talk about the level of the separate options or obligations
      that someone has when faced with this type of situation, he doesn’t
      have a duty to retreat from that place because he’s lived there. He
      lives there on the weekends, as she’s admitted, so he can respond
      with commensurate force when it’s thrust upon him. She admitted
      she initiated the physical altercation. We’ve seen the text which
      invites a physical altercation.
              . . . But the testimony across the board is that this was
      initiated by Ms. Hart. It was invited by Ms. Hart. It rose to the level
      of something that was a physical confrontation because of Ms. Hart
      taking him down to the ground.

      Defense counsel also made his justification strategy clear in his motion for

judgment of acquittal. Counsel stated:

      Mr. Castile had raised the defense of self-defense of—justification
      in the physical interaction which, as the evidence has shown, was
      invited by Ms. Hart, was initiated by Ms. Hart. The State’s evidence
      asserts that they lived together. As such, the defendant had no
      duty to retreat when the force was thrust upon him. There’s been
      no credible evidence presented Ms. Hart was defending another.
      In reality, she punched him and vice versa. The evidence taken as
      a whole fails to establish the elements of the offense as alleged in
      the Trial Information. Thank you, Your Honor.
                                          7



       Clearly Castile was not contesting whether he had the requisite specific

intent to cause Hart pain, injury, or make offense contact with Hart but was

asserting his actions were justified to defend himself from Hart’s attack. There

was clear documentation of the injuries Hart sustained in the altercation. Castile

did not challenge the specific intent element of assault (i.e., “I did not intend to

harm the victim” or “I did not know what I was doing”) but claimed he was justified

in striking Hart (i.e., “I harmed Hart in order to fend off Hart’s attack”). Thus,

even if the jury were given the specific intent instruction, we conclude Castile has

not proven the result of the proceeding would have been different. See State v.

Broughton, 450 N.W.2d 874, 876 (Iowa 1990) (“‘[T]he facial appeal of such an

argument [failure to object to an erroneous jury instruction] is diminished in most

situations where practical considerations make it unlikely that the inclusion of a

particular element in the marshaling instruction would have produced any

difference in the verdict of the jury.’” (alteration in original) (quoting State v.

Propps, 376 N.W.2d 619, 623 (Iowa 1985))).

       B. Vouching for Witness Credibility. Next, Castile asserts counsel was

ineffective in failing to object when the police officer vouched for the credibility of

Hart and Mingus. Castile claims counsel should have objected to the following

exchange between Officer Kruger and the prosecutor:

              Q. When Officer Clewell returned from speaking with Ms.
       Hart, was a decision made on how to proceed? A. Yes.
              Q. What was that decision? A. The decision—based on the
       evidence, stories we were able to collect, Mr. Castile had punched
       Danielle in the face, so we charged him with serious assault.
              Q. Why was the decision made to arrest Mr. Castile? A.
       Based off the evidence and the testimonies that Danielle and
                                         8



        Mingus stated had happened. They were consistent with what the
        injury Danielle had sustained.

Castile claims this testimony was improper because it opined and vouched for

the truthfulness of Hart’s and Mingus’s version of the events of that night. Castile

asserts implicit in this testimony is that Officer Kruger spoke with all parties

involved that night and concluded that Hart’s version of the events was more

credible. Castile concedes that Officer Kruger was able to testify that Castile was

arrested but claims it was improper for the officer to go into his underlying

credibility determinations and opinions. Castile likens Officer Kruger’s testimony

to the testimony of an expert witness citing the Myers line of cases, which

prohibit expert witnesses from offering opinions on the credibility or truthfulness

of a witness. See State v. Myers, 382 N.W.2d 91, 95 (Iowa 1986) (“[E]xpert

opinions on the truthfulness of a witness should generally be excluded because

weighing the truthfulness of a witness is a matter reserved exclusively to the fact

finder.”).

        In this case, Officer Kruger was not testifying as an expert. He was not

asked whether another witness was telling the truth. He was asked, as a fact

witness, to relay what occurred the night of the incident.         Officer Kruger’s

description of what occurred that night included the arrest of Castile. Officer

Kruger was asked why the decision to arrest Castile was made. His offered

explanation of the reason for the arrest was that the injuries observed on Hart

were consistent with Hart’s and Mingus’s version of the events. The officer was

not asked whether he believed Hart and Mingus were truthful or whether he

believed Castile was lying. See State v. Graves, 668 N.W.2d 860, 873 (Iowa
                                          9



2003) (finding it improper for the prosecutor to ask a defendant if another witness

was lying). The prosecutor’s questions to Officer Kruger did not solicit vouching

responses, and the officer’s answers did not cross the line to vouching. Thus,

counsel did not have an obligation to object to the testimony of Officer Kruger.

       C. Other Bad Acts. Castile also claims counsel was ineffective when he

failed to object to evidence admitted by the State that pointed out other bad acts

he committed.      Specifically, the prosecutor asked Officer Kruger whether

Castile’s child was securely restrained in the car when the officer arrived. Officer

Kruger responded, “No.” Castile also claims it was improper to admit a portion of

the police squad car video where one of Castile’s companions tells the officers

that he and Castile are known to dispatchers because they beat up fake gang

members. Also on the squad car video, Officer Kruger is seen drawing his taser

on Castile when it initially appeared to the officer that Castile would resist arrest.

Finally, Castile made a comment to Officer Kruger on the way to the police

station for the officer to “google” Castile’s name so he would know what

happened the last time a cop arrested him. Castile, on appeal, claims counsel

should have sought to redact these portions of the video or objected to the

video’s admission.    He claims this evidence was not relevant to any fact in

consequence and the probative value was substantially outweighed by the

danger of unfair prejudice.

       The State contends these snippets from the squad car video and the

statement regarding the unrestrained child were isolated incidents that have no

reasonable probability of affecting the outcome of the trial. Therefore, the State
                                        10



asserts Castile cannot prove there is a reasonable probability of a different

outcome had counsel objected and had those objections been sustained.

       Iowa Rule of Evidence 5.402 provides all evidence that is relevant is

admissible, unless otherwise prohibited, and all evidence that is irrelevant is not

admissible. In addition rule 5.403 provides that even relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice. There is little question Officer Kruger’s testimony about Castile’s child

being unrestrained in the vehicle was not relevant to the facts at issue—whether

Castile was guilty of domestic abuse assault. Similarly, the statements on the

video from Castile’s friend and Castile regarding their history with dispatch and

other law enforcement officers are not relevant to the facts in issue. Neither is

the fact that Officer Kruger drew his taser on Castile when the officer thought

Castile would resist arrest. But concluding this evidence was irrelevant, and thus

inadmissible, does not end our inquiry here. We must determine whether Castile

suffered prejudice as a result of his counsel’s failure to object to this evidence.

See Lyman, 776 N.W.2d at 878 (“To establish prejudice, a defendant must prove

‘a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’”).

       The portion of the video shown to the jury lasted over thirty minutes. Each

of the statements Castile now complains of lasts a few seconds each and most

were generally muffled. An objection would have just drawn attention to these

statements. The same can be said about the isolated statement made by Officer

Kruger regarding Castile’s child being unrestrained in the vehicle.       It was a
                                       11



single, isolated reference, and any objection would have just drawn attention to

the comment. In light of the substantial evidence of domestic abuse assault, we

conclude there is no reasonable probability of a different outcome had objections

been made to this evidence.

      D. Cumulative Effect. Finally, Castile claims the cumulative effect of all

of his counsel’s errors undermines confidence in the outcome of the case and

establishes a reasonable probability the outcome would have been different if

counsel had objected. See State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012)

(asserting the court should look at the cumulative effect of counsel’s errors when

multiple claims of ineffective-assistance are alleged to see whether the defendant

satisfied the prejudice prong of the Strickland test).   Even aggregating all of

Castile’s claims of ineffective assistance together does not undermine our

confidence in the outcome of this case. We therefore deny Castile’s claims of

ineffective assistance of counsel and affirm his conviction and sentence.

      AFFIRMED.
