Opinion
No. 2-461 / 01-1529
Filed August 28, 2002
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.
Keith Adams appeals from the dismissal of his postconviction relief application.
AFFIRMED.
Todd Miler of the Miler Law Firm, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas Ferguson, County Attorney, and Jack Lammers, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Hecht, JJ.
Keith Adams appeals from the dismissal of his postconviction relief application. We affirm.
I. Background Facts and Proceedings.
Based on evidence discovered during the stop of a vehicle in which he was a passenger, Keith Adams was found guilty by a jury of possession of methamphetamine with intent to deliver and failure to affix a drug stamp, in violation of Iowa Code sections 124.401(1)(b) and 453B.12 (1997). The court sentenced him to an indeterminate term of twenty-five years on the possession charge and five years on the drug stamp charge. This court affirmed the convictions on direct appeal in an unreported decision, rejecting Adams' claims (1) the court erred in failing to suppress evidence obtained following the stop, and (2) counsel provided ineffective assistance in failing to obtain a photograph of the vehicle to determine whether there were sufficient grounds to stop it for a traffic violation.
Adams thereafter filed a postconviction relief application, contending (1) the search of the vehicle was in violation of the Fourth Amendment, and (2) the district court and court of appeals on direct appeal failed to adequately address the implication of false police testimony offered at the hearing on a motion to suppress. The district court subsequently granted the State's motion to dismiss the application. It concluded Adams' contentions had already been raised and addressed on his direct appeal. Adams appeals from this dismissal.
II. Scope of Review and General Principles.
Dismissal of an application for postconviction relief is reviewed to correct errors of law. Dible v. State, 557 N.W.2d 881, 883 (Iowa 1996). To establish an ineffective assistance of counsel claim, the applicant must show that "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984). The test of ineffective assistance of counsel focuses on whether the performance by counsel was reasonably effective. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
III. Ineffective Assistance Claims Not Previously Raised.
In this appeal, Adams asserts at least four claims of ineffective assistance of counsel that he has not been previously raised, either on direct appeal or in the postconviction relief application from which this appeal was taken. Any claim not properly raised on direct appeal may not be litigated in a postconviction relief action unless sufficient reason or cause is shown for not previously raising the claim, and actual prejudice resulted from the claim of error. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). The ineffectiveness of postconviction relief counsel constitutes "sufficient cause" to excuse an applicant's failure to adequately raise an issue in prior proceedings. Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994). Thus in order to address whether counsel was ineffective in failing to raise these new claims, we must necessarily address the merits of the contentions.
A. Sixth Amendment Right to Counsel. Adams asserts his Sixth Amendment right to counsel was breached when the district court invaded the attorney-client privilege in overruling a mistrial motion on the strength of Adams' colloquy with the court. After engaging in a colloquy with Adams regarding the effect and propriety of a mistrial, the court directly asked him whether the "application for a mistrial reflect[s] what you want to do." Adams responded, "[n]o it doesn't" and informed the court he would rather just "go ahead" with the trial. The court then stated on the record that, due to the conflict between Adams' wish to proceed and his counsel's request for a mistrial, it would defer to Adams' wishes and deny the mistrial. In this appeal, Adams claims a motion for mistrial is a decision for the attorney, not the criminal defendant.
The record does not support Adams' claim the court invaded his attorney-client privilege by relying solely on the wishes of Adams when it denied the motion for mistrial. Indeed, the court informed Adams he should discuss the matter with his attorney and exhorted him to "take as much time as you want." The court explained to Adams he was discussing the matter directly with him merely because Adams had previously expressed some dissatisfaction with his attorney. The court informed Adams it wanted defense counsel to inform the court whether or not Adams in fact wished for a mistrial and the court specifically told Adams it did not want to know what he and his attorney talked about. We conclude Adams' Sixth Amendment right to counsel was not violated, and counsel was therefore not ineffective in failing to raise the issue below. Accordingly, we reject his claim counsel was ineffective in failing to object to the judge's question on attorney-client privilege grounds.
B. Impartiality of the Judge. Adams next asserts the trial court judge did not act with impartiality and "took on the role of both judge of the case and attorney for the defendant." Adams asserts "the trial judge told the criminal defendant that he should not request a mistrial, despite his attorney's opinion to the contrary." This assertion simply is not supported by the record. As noted above, the judge gave Adams no legal advice and exhorted him to consult privately with his attorney regarding whether to demand a mistrial. The judge did not, as Adams claims, "inform him that he would get no benefit by starting the trial over." Having found no support in the record for Adams' contention the judge acted unfairly or usurped his lawyer's prerogatives, we conclude trial and appellate counsel had no duty to raise this issue.
C. Miranda Violation. Adams next claims his trial counsel was ineffective in failing to obtain a ruling on whether his Miranda rights were violated. Adams' basic complaint in this regard centers on trial testimony by an arresting officer that Adams disclosed he was unemployed after the officer found nearly $600 in Adams' pants pocket. The court sustained defense counsel's immediate objection, and instructed the jury to disregard the officer's testimony.
We conclude any prejudice from defense counsel's failure to secure a timely ruling on the Miranda issue was ameliorated by the judge's instruction directing the jury to ignore the officer's testimony. See State v. Keys, 535N.W.2d 783, 786 (Iowa Ct.App. 1995) ("Generally the striking of an improper response, and an instruction to the jury to disregard the response, will prevent prejudice."). Accordingly, we affirm on this issue.
D. Fourth Amendment Violation. Adams contends counsel was ineffective in failing to claim his Fourth Amendment rights were violated after the vehicle in which he a passenger was stopped on suspicion of drug activities. In particular, he believes the officers violated his constitutional rights in asking him, as a passenger, to exit the vehicle. After exiting the vehicle, Adams consented to a search of person and officers discovered drugs in his front pants pockets.
A review of the record reveals Adams' trial counsel urged in a motion to suppress that Adams was unlawfully ordered from the passenger side of the vehicle. In the ruling on that motion to suppress, the court found police officers had a reasonable suspicion prior to the stop that both the driver and Adams were in violation of certain drug laws. In support of that conclusion, it relied upon case law holding an intrusion on a vehicle's passenger is warranted if the officer had some articulable suspicion concerning a violation of the law by that person. See State v. Riley, 501 N.W.2d 487, 488-89 (Iowa 1994). Accordingly, we conclude the merits of this particular ineffective assistance claim were raised and rejected in the underlying criminal action, and Adams may not reassert it in this action. A postconviction proceeding is not a vehicle for relitigation of issues previously adjudicated. See State v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971).
IV. Ineffective Assistance Claim Raised Below.
A. Police Deception. When police officers stopped the car in which Adams was a passenger, they informed the driver the stop was based on a license plate violation. At trial, an officer admitted he only told the driver there was a possible plate violation based on safety reasons and to avoid the destruction of any evidence. In his postconviction relief application, Adams asked the court to address the implications of deceptive police behavior. The court dismissed the application, finding Adams had received a ruling on this contention in the direct appeal. On appeal, Adams now contends the postconviction court erroneously concluded this court ruled in the direct appeal on the issue of police deception.
We conclude the district court properly dismissed this claim as well. In its ruling on the motion to suppress in the underlying criminal case, the district court determined the State established there was reasonable suspicion prior to the stop that the driver and Adams were in violation of certain Iowa drug laws. This court affirmed on direct appeal, concluding the officers had reasonable suspicion for the stop apart from the legality of Adams' license plate. Thus any failure by defense counsel to secure a ruling on the issue of police deception did not result in prejudice to Adams. Accordingly, we affirm on this issue.
AFFIRMED.