Opinion
No. 0-797 / 00-0015.
Filed February 7, 2001.
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.
Applicant appeals the district court order which dismissed his application for postconviction relief. AFFIRMED.
Christopher A. Kragnes, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan and Zimmer, JJ.
Douglas Beery appeals the district court order dismissing his application for postconviction relief. We find his trial counsel did not breach an essential duty, nor was Beery prejudiced by his counsel's performance.
Background facts . Beery's convictions of murder in the first degree and assault with intent to inflict serious injury stem from an incident which occurred on October 28, 1995. Beery, his brother and several others, after having been asked to leave a bar for causing a disturbance, began fighting. During the fracas, two passing vehicles were kicked by Beery or his brother. After having her car kicked, Dawn Ray returned with her husband, Jackie, and three other men. A brawl ensued and Beery pulled his knife. He stabbed one individual, Dennis Link, four times, including a fatal wound to the chest. He also stabbed Jackie Ray in the chest.
Beery was found guilty in a jury trial in April 1996. He was sentenced to life imprisonment for the murder conviction and a two-year term of incarceration for the assault conviction. His convictions were affirmed on appeal and the issue of ineffective assistance of counsel was reserved for postconviction proceedings. Beery filed an application for postconviction relief in April 1999. The district court denied this application on October 25, 1999 and he now appeals.
Scope of review . A claim of ineffective assistance of counsel requires a showing that: (1) counsel's performance fell outside the normal range of competency; and (2) the deficient performance so prejudiced the defendant as to give rise to a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). In order to meet the first prong, defendant must overcome the strong presumption that counsel's actions were reasonable under the circumstances and fell within the normal range of competency. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). To succeed on the second prong, the defendant must show that counsel's failure worked to the defendant's actual and substantial disadvantage so that, but for counsel's error, the result of the proceeding would have been different. Id.
Martin hearing . Beery alleges his attorney failed to provide effective assistance of counsel because he did not seek a Martin hearing. See State v. Martin, 217 N.W.2d 536 (Iowa 1974). He asserts such a hearing was an opportunity to determine, prior to trial, whether Beery's criminal history would have been admissible to impeach him if he chose to testify on his own behalf. Because of this, Beery claims he was denied an opportunity to decide whether he would testify in his own defense. The State claims Beery's attorney was not ineffective because his trial counsel had no duty to request a Martin hearing, his decision was part of reasonable trial strategy and it did not prejudice Beery.
In order to prevail on a claim of ineffective assistance of counsel, Beery must not only show that his trial attorney failed to perform a necessary duty but also that he suffered prejudice as a result. State v. Howell, 557 N.W.2d 908, 913 (Iowa App. 1996). Under the Strickland analysis, Beery must show there is a reasonable probability that but for counsel's unprofessional error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). In this case, Beery's challenge must survive a three-part analysis to prove he was prejudiced by his attorney's failure to seek a Martin hearing. First, he must show that if his attorney had sought this preliminary hearing, evidence of his criminal history would not have been allowed into evidence to impeach his testimony. Second, given a favorable outcome from the Martinhearing, Beery would need to show that he would have chosen to testify at trial. Last, he would have to show his testimony would have rendered a reasonable probability of a different outcome to the trial. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
Beery's attorney testified at the post-conviction relief hearing that he advised Beery not to testify on his own behalf for several reasons, including the felony convictions in his background, knowledge of Beery's involvement in another recent violent incident with a baseball bat, and Beery's behavior that night in stabbing his own brother prior to the fatal stabbing of Link. In addition to this information, Beery's attorney testified he knew of no reason Beery's criminal history would have been ruled inadmissible at trial. Iowa Rule of Evidence 609 allows prior felony convictions to be admitted to impeach a defendant if the felony involves the veracity of the defendant. Beery's criminal history included two prior burglary convictions and a theft conviction. The supreme court has previously found felonies involving theft or burglary reflect on veracity. McKettrick, 480 N.W.2d at 59; see also State v. Conner, 241 N.W.2d 447, 455 (Iowa 1976). Trial counsel did not breach an essential duty when the status of the law would clearly indicate Beery's criminal history would have been admitted into evidence, subjecting his testimony to impeachment. Trial counsel is not ineffective in failing to pursue a meritless issue. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998). Therefore, we find Beery cannot show his prior convictions would have been excluded from evidence if a Martin hearing had been sought.
Additionally, Beery has failed to contend in his brief that he would have chosen to testify at trial even if a successful Martin hearing had been held. He merely alleges that his attorney should have advised him of the availability of a Martin hearing. He claims he would then be able to make a more informed decision on whether to testify. Finally, Beery has failed to show a reasonable probability that his testimony at trial would have resulted in a different outcome. Trial counsel testified that he made a strategic decision in advising Beery against testifying, having considered many factors, including his temperament, his "flashes of anger," and the caliber of other witnesses available for his defense at trial. Where counsel's decisions are made pursuant to a reasonable trial strategy, we will not find ineffective assistance of counsel. State v. Johnson, 604 N.W.2d 669, 673 (Iowa App. 1999). Accordingly, we affirm.
AFFIRMED.