Opinion
No. 4-863 / 03-2054
Filed April 13, 2005
Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.
Frederick Babino appeals following the summary dismissal of his postconviction relief application. AFFIRMED.
Paul Rosenberg of Paul Rosenberg Associates, Des Moines, for appellant.
Frederick Babino, Fort Madison, appellant pro se.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Jim Ward, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Frederick Babino appeals following the summary dismissal of his postconviction relief application. We affirm.
I. Background Facts and Proceedings.
Babino was convicted of first-degree murder and first-degree burglary following a jury trial. These convictions were affirmed on direct appeal by this court in State v. Babino, No. 00-1980 (Iowa Ct.App., Feb. 20, 2002). In that decision we set out the following recitation of facts and procedural background:
Babino and his friend Shannon Young went to the apartment of Duriel Brown. Present in the apartment were Brown, his sister, Nyeisha Brown-Banks, and Brown's girlfriend, as well as three young children. Babino and Young told Brown they wished to buy an ounce of cocaine. Then they shot Brown twice, once in the arm and once in the head. Brown died.
Babino was arrested several days later in Ohio. He made inculpatory statements to Ohio police and later to Des Moines police.
The State charged Babino with first-degree murder and first-degree robbery. See Iowa Code §§ 707.1, 707.2, 711.1, 711.2 (1999). Babino moved to suppress the statements he made after his arrest. The district court declined to suppress the statement to Ohio police but suppressed the statement to the Des Moines police for the purposes of the State's case-in-chief.
At trial, an acquaintance of Babino's, Asia Powell, testified she drove the getaway car. She also testified that Babino attempted to rob another person of drugs earlier that day. A jury convicted Babino of both charges and the court sentenced him to life in prison and a twenty-five year concurrent prison term. Babino moved for a new trial based on newly discovered evidence that purportedly showed Powell had lied about the earlier robbery. The district court denied the motion and this appeal followed.
In his direct appeal, Babino raised the following issues:
(1) statements he made to police should have been suppressed; (2) the evidence was insufficient to support the conviction; (3) trial counsel was ineffective in failing to request a self-defense instruction; and (4) newly discovered evidence warranted a new trial. As noted, a panel of this court rejected these contentions and affirmed Babino's convictions.
On June 19, 2003, Babino filed a pro se application for postconviction relief in which he raised at least five issues, including: (1) jury instructions four and eighteen diluted the State's burden to prove he possessed the specific intent to kill; (2) instructions twenty-three and twenty-four improperly allowed the jury to find alternative theories of guilt; (3) the State knowingly presented the false testimony of Asia Powell; (4) the court should have voir dired juror #9 after that juror indicated some uncertainty when polled following the reading of the verdict; and (5) the State unconstitutionally used a jailhouse informant to deliberately elicit a confession from him.
Upon Babino's request, the district court appointed counsel who was ordered to file a report to the court regarding the status of Babino's pro se claims. Counsel responded by filing an application to withdraw and an amended application for postconviction relief. In the amended application, counsel asserted that after a "full review of the matter," he had determined the application was meritless. He further claimed the issues raised in the postconviction application had already been raised and addressed on direct appeal, and that Babino was thus precluded from raising them again.
On October 27, 2003, the district court entered an order noting its determination that an evidentiary hearing was unwarranted and disclosing the court's intent, subject to Babino's response, to dismiss the case under Iowa Code section 822.6 (2003) on a specific date. Babino did file a response resisting dismissal, in which he reiterated his previous claims and contended genuine issues of material fact remained for trial. The court later entered an order dismissing Babino's postconviction relief application, noting simply "Applicant is not entitled to postconviction relief, and no purpose would be served by further proceedings." Babino has appealed from this ruling.
II. Scope and Standards of Review.
We review the dismissal of an application for postconviction relief for errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998). Iowa Code section 822.6 is the provision on which the district court relied in dismissing Babino's application for postconviction relief. It states in pertinent part that a district court may indicate its intention to dismiss the application "[w]hen a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings." Iowa Code § 822.6. Summary disposition of an application for postconviction relief is analogous to the summary judgment procedure provided by our rules of civil procedure. Ridinger v. State, 341 N.W.2d 734, 736 (Iowa 1983). "[T]he statutory grant of a postconviction applicant's right to court-appointed counsel necessarily implies that that counsel be effective." Patchette v. State, 374 N.W.2d 397, 398 (Iowa 1985).
III. Arguments on Appeal.
Babino was granted new court-appointed counsel for this appeal. In his brief, counsel first maintains the district court erred in summarily dismissing the postconviction relief (PCR) application without conducting further proceedings to allow him "to show cause and prejudice for failure to raise his PCR claims on direct appeal." He also contends PCR counsel rendered ineffective assistance by filing a pleading which incorrectly stated his PCR claims had been considered and rejected on direct appeal. Babino also has filed a pro se brief, which again reiterates the five contentions made in his original pro se PCR application.
As noted previously, Babino's PCR counsel filed an amended application in which he alleged the PCR action merely raised issues already addressed and rejected by both this court and the Iowa Supreme Court. Our review of this court's 2002 opinion reveals that the counsel's statement to the PCR court was erroneous. Our 2002 opinion did not address the contentions raised by Babino in his pro se PCR application. Furthermore, it cannot be said that the supreme court addressed and rejected Babino's PCR contentions when it merely rejected Babino's further review application, and did not address those contentions.
We next address the grounds for the district court's summary dismissal of the PCR action. The ruling itself does not disclose whether summary dismissal was entered due to Babino's procedural default, i.e., raising issues that had already been addressed, or whether it was entered due to the lack of genuine issues of material fact on the merits of Babino's substantive arguments. If the summary dismissal was entered based on a finding, as urged by PCR counsel, that the issues raised in Babino's pro se brief had already been rejected on direct appeal, then the court erred. However, as will be developed below, we conclude no genuine issue of material fact remains that would preclude the postconviction court from granting summary dismissal on the merits.
A. Instructions Four and Eighteen.
Jury instruction four instructed jurors that the State must prove each element beyond a reasonable doubt, while instruction eighteen defined the phrase "specific intent." Babino maintains counsel was ineffective in failing to object to these instructions in that they improperly diminished the State's burden of proof. Because these instructions were accurate statements of the law, see State v. Rinehart, 283 N.W.2d 319, 322 (Iowa 1979), no genuine issue of material fact remains as to whether counsel had a duty to object to them. Counsel, thus, was not ineffective. See Schertz v. State, 380 N.W.2d 404, 409 (Iowa 1985) (noting that ineffectiveness of counsel may not be predicated on the failure to file a meritless motion).
B. Instructions Twenty-Three and Twenty-four.
Instruction twenty-three marshaled the first-degree murder charge, and presented alternative theories of premeditated murder and felony murder. Instruction twenty-four advised the jury that when alternative theories are presented, the law does not require that each juror agree on what theory has been established. Babino claims counsel should have objected to the instructions because they undermined the unanimity requirement. Because these instructions accurately and correctly stated the law, see State v. Bratthauer, 354 N.W.2d 774, 777 (Iowa 1984), counsel had no duty to object to them. Summary disposition of this claim was appropriate as well.
C. Deliberate Elicitation by Informant.
At trial, the State presented the testimony of a cellmate of Babino who related a confession allegedly given by Babino. Babino argues that by virtue of this process, the State committed a "Massiah violation." In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), the Supreme Court held Massiah's sixth amendment rights were violated by admission of incriminating statements he made in the absence of counsel to a confederate who was acting as a government informant. Here, no similar violation occurred. At the time Babino made the incriminating statements to his cellmate, the cellmate had not yet made contact with the State in any fashion, and cannot be said to have been a "state agent." Accordingly, the statements were not improperly elicited, and the court did not err in admitting them. See State v. Nelson, 325 N.W.2d 118, 120 (Iowa 1982).
D. Alleged Presentation of Perjured Testimony.
Babino maintains the State knowingly allowed Asia Powell to give false testimony. Although not specifically couched as a due process violation, Babino made this same claim on direct appeal where we concluded the district court did not abuse its discretion in denying Babino's motion for new trial on this ground. Because this ground for relief was essentially raised and rejected in our previous opinion, it may not be relitigated in this postconviction proceeding.
E. Corroboration Instruction.
Babino argues counsel should have requested a jury instruction regarding accomplice corroboration regarding Asia Powell's testimony. It is the law in Iowa that a defendant may not be convicted on the testimony of an accomplice alone; rather, there must be some corroboration evidence. State v. Douglas, 675 N.W. 2d 567, 568 (Iowa 2004). We conclude there is no genuine issue of material fact as to whether Babino was prejudiced by the district court's failure to give this instruction. We find substantial corroborative evidence, not the least of which is Babino's own statements, in this record.
F. Failure to Poll Juror.
After the verdict was read, the court polled the jurors asking each of them those whether the verdicts returned were their verdicts. Juror #9 apparently hesitated before responding: "Yes, they are my verdicts." Upon questioning from the court regarding her hesitation, the juror stated "This is my verdict in accordance with the way the law is written. And we did do this word by word, went through every word and what every word means." Babino now argues counsel provided ineffective assistance by failing to further voir dire the juror out of the presence of the rest of the jury. We conclude summary dismissal of this claim was proper in that the subject juror's unequivocal affirmation of the verdicts provoked no duty on the part of trial counsel to inquire further as to the validity of the jury's verdict.
IV. Limited Remand.
Babino has filed a pro se motion for limited remand, which our supreme court has directed us to consider along with this appeal. In his motion, Babino seeks a hearing on his claim of newly discovered evidence, and presents a statement by Shannon Young, who accompanied Babino on the night of the crime. Evidence presented at trial shows that Young assisted Babino in the robbery and murder.
A postconviction relief applicant must establish four elements before a new trial will be granted based on a claim of newly discovered evidence. See Jones v. Scurr, 316 N.W.2d 905, 907 (Iowa 1982). The applicant must show (1) the evidence was discovered after judgment; (2) the evidence could not have been discovered earlier in the exercise of due diligence; (3) it is material to the issue, not merely cumulative or impeaching; and (4) it would probably change the result if a new trial is granted. Id.
The signed statement of Shannon Young characterized by Babino as new evidence claims Young and Babino had no prior agreement to rob the victim and that the victim, in fact, drew his gun first before Babino shot him. We first note Babino does not explain why the substance of this evidence could not have been discovered earlier in the exercise of due diligence. For this reason alone, Young's affidavit does not constitute new evidence that would justify a new trial. Furthermore, the substance of Young's affidavit is clearly cumulative of Babino's own testimony, and for this additional reason is insufficient to justify a new trial.
We note that Young's affidavit asserts Asia Powell's testimony linking Young and Babino to an earlier botched robbery in West Des Moines is false. This assertion that Asia Powell testified falsely is clearly calculated to impeach her testimony. Thus, we reject Babino's request for a new trial based on his claim of newly discovered evidence.
V. Conclusion.
We have considered all claims for postconviction relief raised by Babino and his counsel. We conclude all of them, including those not specifically discussed in this opinion, are without merit.