Opinion
No. 3-812 / 03-0706.
Filed January 14, 2004.
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Orlando Hickman appeals from the district court's denial of his application for post conviction relief. AFFIRMED.
Scott Bandstra, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Orlando Hickman appeals from the district court's denial of his application for post conviction relief. We affirm.
I. Background Facts and Proceedings
On December 3, 1999, police were attempting to clear parking lots along the loop in downtown Des Moines, when they encountered Hickman and his companions in a car parked in a lot at 16th and Grand According to the police, everyone scrambled out of the car unprompted, but Hickman remained in the passenger seat, making furtive "digging" motions behind his back until he was ordered from the car by the police. Hickman contends he made no unusual movements and that he exited the car at the same time everyone else did, when ordered by the police. Ultimately, the officers searched the car and discovered thirteen rocks of crack cocaine in a baggie stuffed between the cushions of the passenger seat in which Hickman had been sitting. Hickman was arrested and charged with possession with intent to deliver and failure to affix a drug tax stamp. Tiffany Koenig was appointed to represent Hickman.
Hickman waived his right to a jury trial. He did not testify on his own behalf, and, in fact, the defense called no witnesses. Hickman was found guilty of both charges. Hickman appealed, alleging the evidence was insufficient to support his convictions. This court affirmed his convictions. State v. Hickman, No. 00-0949 (Iowa Ct. App., Apr. 27, 2001).
Hickman then filed an application for postconviction relief. A hearing was held on the application on February 7, 2003. The district court denied Hickman's application, and Hickman appeals. He alleges he was denied effective assistance of counsel in four respects and the district court erred when it determined that certain evidence was not newly discovered.
II. Error Preservation
Hickman raises four claims of ineffective assistance of trial counsel in this appeal: (1) trial counsel failed to investigate and research the law; (2) trial counsel failed to investigate factual witnesses; (3) trial counsel should have allowed Hickman to testify; and (4) trial counsel should not have allowed Hickman to waive his right to a jury trial. The State contends Hickman has failed to preserve error on issues (2) and (4) because he did not raise them in his direct appeal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Hickman presents no argument that his appellate counsel was ineffective or that the claims he raises involve factual or legal matters which "were excusably unknown at the time of trial and appeal," LeGrand v. State, 540 N.W.2d 667, 669 (Iowa Ct. App. 1995), either of which might provide an exception to the error preservation rule. However, the State failed to raise this challenge to the post conviction court, and we conclude the State has waived any argument of error preservation on issues (2) and (4). See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
The State also contends Hickman has failed to preserve error on issue (3) not only because he failed to raise it in his direct appeal, but because he failed to raise it in his application for post conviction relief. We agree, and will not consider Hickman's claim that his trial counsel was ineffective for allowing him to waive his right to testify.
The State's final error preservation challenge is that Hickman's claim that his trial counsel failed to research the law is an attempt to relitigate his claim on direct appeal that the evidence was insufficient to support his convictions. Because we understand Hickman's argument to be that if his counsel had elaborated on the elements of constructive possession the court might have found him not guilty, rather than an argument that his motion for judgment of acquittal would have been granted, we conclude our consideration of this issue is not barred by res judicata.
Hickman also raises a claim that the district court erred in its ruling that Hickman had not presented newly discovered evidence. The State does not challenge error preservation on this issue.
III. Ineffective Assistance of Counsel
A. Standard of Review.
We typically review postconviction relief proceedings on error. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicant asserts claims of a constitutional nature, our review is de novo. Id. Thus, we review claims of ineffective assistance of counsel de novo. Id.
To prevail on a claim of ineffective assistance of counsel, the applicant must demonstrate both ineffective assistance and prejudice. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).
To establish the first prong, the applicant must demonstrate the attorney performed below the standard demanded of a reasonably competent attorney. Artzer, 609 N.W.2d at 531. We begin with the presumption that the attorney performed competently, State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999), and we avoid second-guessing and hindsight. Burgess v. State, 585 N.W.2d 846, 847 (Iowa Ct. App. 1998). Claims of ineffective assistance involving tactical or strategic decisions of counsel must be examined in light of all the circumstances to ascertain whether the actions were a product of tactics or inattention to the responsibilities of an attorney guaranteed a defendant under the Sixth Amendment. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001).
To establish the prejudice prong the applicant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Artzer, 609 N.W.2d at 531.
B. Failure to Investigate and Research the Law.
Hickman contends Koenig, his trial counsel, failed to research and argue the law of constructive possession. Specifically, he asserts Koenig failed to argue, in her closing statements, that the State failed to prove Hickman had dominion or control over the drugs. At the postconviction hearing, when questioned about her closing statements, Koenig said, "Well, if it's not in the transcript I probably didn't bring it up. . . . I'm pretty sure that the judge would know what the facts of constructive possession were and what he would need to find."
However, our de novo review of the record indicates that Koenig made the following argument to the court:
We can find no indication that closing arguments were recorded or even made. However, Hickman's post conviction counsel, when questioning Koenig, claims to have read the transcript of closing arguments. Because Hickman has not produced any transcript of closing arguments to this court, we will assume the transcript he is referring to is the transcript of Koenig's motion for judgment of acquittal.
Your honor, at the close of the State's evidence, we would ask that the Court enter a judgment of acquittal at this time for the defendant. The State has not proven that the drugs that were found in the vehicle were Mr. Hickman's. They were not found on his body. No one else in that vehicle was arrested. At least the driver of the vehicle should have been arrested.
They have not shown that he had — and I'll specifically quote out of case law. He did not have actual knowledge that they were there or that he had control of the vehicle or the right to control that vehicle. At the minimum — as I've stated, at a minimum, the driver of the vehicle and Mr. Hickman should have been arrested at that time and that was not done.
Although Koenig does not mention the term "constructive possession," she is clearly arguing the State has failed to prove the elements of constructive possession — that Hickman had knowledge of, or dominion or control over, the crack cocaine. Thus, we find no merit to this claim of ineffective assistance of counsel.
C. Failure to Investigate Facts.
Hickman contends Koenig's failure to learn the identity of the driver by obtaining the police report or to interview two witnesses suggested to her by Hickman constitute an unreasonable failure to investigate or a failure to make a reasonable decision that a particular investigation is unnecessary. Ledezma, 626 N.W.2d at 145. Counsel does not have a duty to investigate a matter or interview a witness if she has reason to believe the investigation would be fruitless or unwarranted. Id.
Koenig's testimony at the PCR hearing indicates that because she deposed both officers involved in Hickman's arrest, she felt it was unnecessary to obtain the police report. She also testified that she decided not to interview the witnesses named by Hickman because she had been informed of their significant criminal histories by the county attorney. She made a tactical decision that the identity of the driver would not assist Hickman's defense, but that she could effectively rely on the uncontested fact that Hickman was not the driver. She also determined that because of the witnesses' criminal backgrounds, they would not make credible witnesses, and decided not to interview them.
Hickman does not allege what these extra investigative steps would have uncovered had Koenig pursued them. He makes no claim that Koenig was misled about the criminal histories of the two witnesses. Without any assertion of what these witnesses might have provided Hickman's defense, we are unable to conclude either that Koenig violated a duty or that Hickman suffered prejudice.
D. Waiver of Jury Trial.
Hickman states that one of the issues for this court to review in this appeal is whether Koenig was ineffective for allowing Hickman to waive his right to a jury trial. However, Hickman makes no argument in the text of his brief supporting this claim. The failure in a brief to state, to argue or to cite authority in support of an issue may be deemed a waiver of that issue. Iowa R. App. P. 6.14(1)( c). We conclude Hickman has waived this issue.
IV. Newly Discovered Evidence.
Hickman claims that the district court erred by not granting him a new trial because of newly discovered evidence. Specifically he contends that the testimony of Carlos Franks, who was in the car with Hickman on the night in question, constitutes newly discovered evidence. Hickman claims that Franks would testify there was no drug usage in the car that night, that the police handcuffed Hickman and placed him in the paddy wagon before they searched the car, and that Officer Kirkman told Hickman something to the effect of "we've got you now" as he put him in the wagon.
The test for newly discovered evidence is: (1) the evidence was discovered after the verdict; (2) the evidence could not have been discovered earlier in the exercise of due diligence; (3) the evidence is material to the issues in the case and not merely cumulative or impeaching; and (4) the evidence probably would have changed the result of the trial. State v. Adamson, 542 N.W.2d 12, 13 (Iowa Ct. App. 1995).
This evidence is clearly not newly discovered evidence. Hickman knew of Franks' ability to testify since the night of the arrest. In fact, Hickman told Koenig to interview him, but Koenig determined his testimony, no matter how helpful to Hickman's case, would be incredible because of his criminal history. Hickman does not dispute Franks' liabilities as a witness. Accordingly he has failed to satisfy three of the four elements of the test for newly discovered evidence, and we affirm the district court's decision.