Opinion
No. 2-1027 / 00-1890
Filed April 4, 2003
Appeal from the Iowa District Court for Shelby County, Gordon C. Abel, Judge.
The appellant appeals the district court ruling overruling his application for postconviction relief. AFFIRMED.
David Moore, Audubon, for appellant, and Craig Blair, Mt. Pleasant, for appellant pro se.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Jeffrey Larson, County Attorney, and Douglas Hammerand, Assistant County Attorney, for appellee.
Considered by Habhab, Snell, and Brown, S.J.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
This appeal is from a postconviction relief action which arose from the conviction of the applicant-appellant (Blair) of one count of sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(c)(4). The trial court overruled Blair's application. He appeals. We affirm.
I. At the trial on the merits, fifteen-year-old Michelle B. testified that Blair, then twenty-seven years old, drove her home after a party. On the way, Blair stopped his car near a football field, removed all of his clothes and some of Michelle's clothes, and engaged in oral and vaginal sex.
Blair testified in his own defense and denied having sexual relations with Michelle. On cross-examination, however, the prosecutor confronted Blair with five sexually-explicit letters, all addressed to "Michelle" and all but one signed "Craig," which included references to the incident at the football field. Blair admitted writing the letters, though he claimed he wrote them to another girl and not to Michelle.
The jury found Blair guilty as charged. He appealed. In an unreported opinion, the Iowa Supreme Court affirmed Blair's conviction, but preserved his right to raise two claims for possible postconviction proceedings: (1) that Blair's trial counsel, Thomas Anderson (Anderson), might have been ineffective in failing to conduct adequate discovery, and (2) that Anderson had been ineffective in allowing Blair to testify. State v. Blair, No. 98-203, slip op. at 2 (Iowa May 10, 1999).
II. On appeal and through his present counsel, Blair complains that trial counsel Anderson (1) failed to file a motion for discovery or conduct discovery depositions, (2) failed to advise Blair "of the effect of testifying at trial," (3) failed to investigate potential alibi witnesses or file a notice of alibi defense, and (4) failed to make an opening statement. Pro se Blair frames his issues on appeal as follows:
A. Trial court failed in its constitutional duties and obligations once apprised of the serious potential conflict of interest regarding defense counsel, thus depriving the Appellant of a fundamental right guaranteed by the Sixth Amendment of the United States Constitution.
B. Trial counsel was ineffective for allowing Appellant to be incorrectly indicted on a Forcible Felony charge (and subsequent conviction). The correct indictment is a Non-Forcible Felony.
C. Appellant was prejudiced by the court in denying him the right to participate and testify in his Post-Conviction Relief hearing.
D. Appellant was denied effective assistance of counsel at the plea bargaining stage.III. To the extent Blair has preserved his claims, this court's review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). To prevail in his claim that he has been denied effective assistance of counsel, a postconviction applicant must show that his counsel failed to perform an essential duty and that the failure prejudiced the applicant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma, 626 N.W.2d at 142. The applicant must prove both elements by a preponderance of the evidence. Ledezma, 626 N.W.2d at 142. However, both elements do not always need to be addressed. If the claim lacks prejudice, it can be decided on that ground alone without deciding whether the attorney performed deficiently. Id.
To prove a failure of duty, the applicant must overcome the presumption that his counsel was competent and show that his counsel performed below the standard demanded of a reasonably competent attorney. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 692.
To show that he was prejudiced, the applicant must show there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687, 104 S.Ct. at 2064-68, 80 L.Ed.2d at 693-98. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. at 604, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We give weight to the district court findings concerning witness credibility. Ledezma, 626 N.W.2d at 141.
Where in his appeal Blair asserts a claim of a constitutional nature, our review is de novo. Thus, in those instances where he claims ineffective assistance of counsel, we review de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000).
IV. (a) Appellant's counsel claims defendant's trial counsel was ineffective "for failing to file motions for discovery, motion for discovery deposition . . . and failing to investigate evidence within his knowledge that could have been produced at trial and should have been considered to be introduced at trial as exculpatory evidence."
The trial court found that trial counsel's performance was within the range of normal competency and that a different outcome would not have resulted if trial counsel had conducted pretrial discovery. We agree with the trial court.
When a postconviction applicant complains about the adequacy of an attorney's representation, it is not enough to simply complain that counsel should have done a better job. Nor is it sufficient to merely allege, as the appellant does here, that "Here the defendant has asserted that trial counsel failed in every conceivable duty that an attorney has to his client in a criminal case except for showing up on the day of trial and billing after the case was over." As our supreme court stated in Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citations omitted):
When complaining about the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job. The applicant must state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome.
Blair complains that his counsel did not file motions for discovery. From our review of the record, we conclude that Blair is contending that his attorney had a duty to discover whether Blair's letters addressed to Michelle existed and whether the State had them. Under the title of "Conclusions" in his brief, Blair argues in the event the incriminating letters would have been admitted, time for the defense to develop evidence that the letters were "in code and not to the victim could have been developed and an orderly presentation made to the jury."
It is beyond serious dispute that Blair's attorney knew before the trial of the existence of those letters. Blair had told him that he had written the letters. Blair's attorney testified he did not try to discover the existence of those letters for it might alert the State to their existence. This falls within the scope of trial strategy.
Anderson testified at the postconviction hearing-as it relates to discovery-I can keep them from digging further and finding more if they know I'm looking for something. Craig Blair was in custody-he was under investigation from arson cases in Crawford County simultaneously. He knew that his house was being searched and things taken, and his big worry was that in that search if they came back through and looked deeper for other letters or papers they may stumble across something.
As the appellant properly argues in his brief, "Representation by counsel is presumed competent, and a post-conviction applicant has the burden to prove by a preponderance of the evidence that counsel was ineffective." Jones v. State, 479 N.W.2d 265, 272 (Iowa 1992). Appellant further cites us to State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (citations omitted), where it is stated:
To establish trial counsel failed in the essential duty, the Defendant must show that his attorney's performance fell outside the normal range of competency. To demonstrate prejudice, the Defendant must prove there is a reasonable probability that but for counsel's unprofessional error the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (citing State v. Henderson, 537 N.W.2d 763, 765 (Iowa 1995); State v. Tracy, 482 N.W.2d 675, 680 (Iowa 1991).
We conclude that Blair suffered no prejudice from his attorney's failure to take discovery.
As it relates to his claim that if he knew that the State had the letters, he could have developed evidence that they were in code. It is clear from the record that Blair himself testified that the letters were in code. He testified further that although the letters were addressed to Michelle, they were really written to another girl named Deana Schwarte and that wherever the name "Michelle" appeared, according to his code he was really referring to Schwarte.
Schwarte was called as a defense witness, and she denied the assertion and testified that four of the letters were not written to her and she was not certain about the fifth. Blair does not say what other witnesses he would have called to support the claim or what this testimony would have been.
A number of Blair's claims are much too general to address. For those that are specific, we find them to be without merit. In those instances, we find Blair suffered no prejudice.
(b) We turn next to Blair's argument that trial counsel was ineffective because he was not advised of the effect of testifying at trial. The appellant, in his brief under the heading of Conclusions, frames this issue in the following manner:
In the trial, as played out, the Defendant should have been able to make an assisted decision whether to take the stand or not in light of the fact the case at that point was a he-said, she-said case.
We find the claim to be without merit. The defendant was well aware that he did not have to take the stand. He and his attorney knew that the State might produce Blair's letter at trial. Blair was informed by his attorney that he would be subject to cross-examination on a wide variety of subjects if he did take the stand. Blair and his attorney came to a mutual decision that Blair would testify. Blair was indeed well advised of the effect of testifying.
(b) Next Blair argues that his counsel was ineffective because of "failure to file a notice of alibi defense and failure to investigate." Blair does not say who the alleged alibi witnesses were or what their testimony would have been. Blair's claim again is too general to address or preserve. Nonetheless, upon our examination of the record we find it to be without merit.
Blair told his attorney prior to trial that he was with a Deana Schwarte at the time of the crime. His counsel wanted to file a notice of alibi defense based on what Blair told him. However, Blair did not want him to do so for, as he explained, he did not want Schwarte's parents to find out about Blair's relationship with Schwarte. His attorney followed Blair's wishes and did not file a notice of defense. "In assessing claims of ineffective assistance of counsel, a defendant's conduct is examined as well as that of his attorney." State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996).
The evidence at the postconviction hearing is that Blair was having a very active sex life with Deana Schwarte and that her parents were extremely abusive. Blair did not want her involved. Additionally, as it relates to an alibi defense, Blair did not want his attorney to assert one for "he was sure he was not going to prison and he was sure he was going to continue the relationship with Deana Schwarte."
In addition, Blair did not give his attorney the name of any other witnesses who could corroborate Blair's claim that he had been with Schwarte at the relevant time. At the postconviction hearing, Blair presented testimony of several witnesses who said they would have been able to corroborate Blair's alibi, in part. However, Blair did not testify that he told his attorney about these witnesses, and his attorney testified that he never heard of any of them before Blair's sentencing, at the earliest.
When we consider Blair's own conduct, we conclude there is no reasonable probability the verdict would have been changed by anything his attorney might have done. Blair cannot reasonably argue that his attorney had to discover witnesses that he knew nothing about. The trial court detailed its findings as to why the claim lacked merit and rather than lengthen this opinion by setting forth those findings, we adopt them as our own by reference.
(c) Blair also claims his counsel was ineffective because he did not make an opening statement. The trial court made a passing reference to this fact. Assuming, without deciding, that the claim has been preserved for appeal, we find it to be without merit for Blair has not shown he suffered prejudice.
The evidence against Blair included Michelle's testimony and Blair's own letters. The court instructed the jurors they were to decide the case from the evidence and that the word "evidence" did not include arguments made by the lawyers. The jurors are presumed to have followed their instructions absent evidence to the contrary. State v. McMullin, 421 N.W.2d 517, 520 (Iowa 1988). There is no reasonable probability the verdict would have been different if Anderson had made an opening statement.
(d) The State did charge Blair in language which followed that of Iowa Code section 709.4(2)(c)(4) (1995), stating that Blair "did commit a sex act with a girl who was age fourteen or fifteen, said Defendant being more than five years older than said minor." Violation of that section is a non-forcible felony. Iowa Code§ 702.11(2)(c). Due to an apparent typographical error, however, the information alleged a violation of Iowa Code section 709.4(4), a forcible felony.
But the court instructed on the non-forcible alternative, and the jury found Blair guilty of that crime. On appeal, the supreme court remanded the case to the district court with instructions that the judgment should be corrected to show that Blair was convicted under Iowa Code section 709.4(2)(c)(4).
Blair now claims that his attorneys, as well as his attorney on direct appeal, were ineffective in failing to discover and correct the typographical error. We find this claim to be without merit.
Blair has not shown that he suffered any prejudice from this typographical error. If the error was timely detected and objected to, all that would have taken place is the State would have amended the information pursuant to Iowa Rule of Criminal Procedure 2.4(8)( a) to reflect the actual alternative of the offense which the State charged. The evidence and the instructions would have been the same. There is no reasonable probability the verdict would have been different.
(e) In his pro se brief, Blair claims the postconviction court erroneously "den[ied] him the right to participate and testify" in the postconviction hearing. On appeal, he claims he was prejudiced by this denial and that he should have a new hearing.
The record in this matter is at most sketchy. Blair, in his pro se brief, identified this issue as follows:
Appellant sought through his Post-Conviction Counsel, Timothy McCarthy (hereinafter referred to as McCarthy) to be present during his Post-Conviction Relief hearing and to testify to present the issues that Appellant is presenting in this brief. P.C.R. counsel submitted a Motion to Transport Petitioner on or about March 22, 2000 and on April 17, 2000, Judge Keith E. Burgett (Judge in Appellant criminal trial) denied the request.
It is undisputed that Blair was represented by counsel at this hearing. His attorney called witnesses who gave testimony.
Any claim by Blair that he has a constitutional due process right to be present at the postconviction hearing is without merit. Postconviction proceedings are civil actions. Jones v. State, 545 N.W.2d 313, 314 (Iowa 1996). An inmate does not have a constitutional right to be present at a civil trial. Myers v. Emke, 476 N.W.2d 84, 85 (Iowa 1991).
If Blair is attempting to make an ineffective assistance of counsel claim, it is not convincing. As noted earlier, Blair must show his attorney's performance fell outside a normal range of competency resulting in prejudice, and in order to establish the requisite prejudice, Blair must show that, but for counsel's errors, the result would have been different. Blair has failed to show the requisite prejudice.
As our supreme court stated in Webb v. State, 555 N.W.2d 824, 825 (Iowa 1961):
The district court's discretion to exclude an inmate from personally attending a postconviction hearing has been recognized by this court in Sallis v. Rhoads, 325 N.W.2d 121, 123 (Iowa 1982), and Hahn v. State, 306 N.W.2d 764, 767 (Iowa 1981). In Sallis,the court stated that a postconviction hearing need not include the applicant's testimony, particularly in the absence of proof that applicant's attendance was necessary. Sallis, 325 N.W.2d at 123-24. There is no proof that Webb's attendance was necessary.
And so it is in the case at bar. There is no proof that Blair's attendance was necessary. The trial court found that there was no compelling reason to require his presence. We agree.
Blair states that his motion was denied. We do find at page 34 of the appendix that Judge Burgett did deny the motion explaining that there was no compelling legal reason which requires the presence of the defendant. We note this statement is on a court calendar entry that carries a different caption than the case at bar.
(f) Blair, in his pro se brief, asserts he was denied effective assistance of counsel at the plea bargain stage. The State correctly notes that Blair did not raise this issue on direct appeal or in his application for postconviction relief claim on direct appeal or in the postconviction hearing. Nonetheless, we will consider its merits as though it had been preserved.
On at least three, and possibly four, occasions prior to trial the prosecutor offered to allow Blair to plead guilty to indecent contact with a child. Blair rejected all offers made to him even though his attorney advised him to accept the offers. Blair took the position at the time the offers were made and throughout the trial that he did not have sexual contact with Michelle B. He was certain that he was not going to prison and he wanted to continue his relationship with Deana Schwarte.
There is at least one occasion when Blair rejected the plea offer on the record in open court. The court asked him whether he had a chance to discuss the offer with his attorney and he replied, "yes."
We presume that Blair's attorney performed competently, and Blair has the burden to overcome this presumption. Strickland, 466 U.S. at 688-90, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693-95. We find nothing in the record which would support a conclusion that his attorney did not act competently in advising Blair in connection with the prosecutor's plea offer. On the contrary, the record shows that his attorney advised him to accept the offer. When reviewing the entire record as it relates to this claim, it is clear that Blair well understood the penalties that would be imposed if he was found guilty of the charge against him. We find no merit to this claim.
(g) We turn now to the argument set forth in Blair's pro se brief that his trial counsel had a conflict of interest. This claim does not appear in his appellate counsel's brief nor is it listed as one of the grounds for postconviction relief. We have searched the postconviction court's decision and find no reference in that opinion to this claim.
We parenthetically note that this claim was not raised on direct appeal.
Appellant's postconviction counsel was Timothy McCarthy II. His appellate counsel is David B. Moore.
As Justice Ternus, speaking for the majority in State v. Gogg, 561 N.W.2d 360 (Iowa 1997), stated:
It is elementary that we do not determine questions of fact nor do we consider issues not presented to or decided by the district court in the first instance. State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995) (party cannot seek reversal on appeal based on contention not presented to the district court); State v. Ashburn, 534 N.W.2d 106, 109 (Iowa 1995) (defendant did not preserve issue for appeal where he did not raise the issue before the trial court).
Again, the State correctly notes that Blair did not preserve this issue. Nonetheless, we will consider its merits as though it had been preserved for we believe there is enough in the record for us to address this claim.
There is the letter written by Blair from Oakdale addressed to the Shelby County Attorney. The letter is not dated, but it is apparent that it was written after the trial and after Blair's incarceration. At the postconviction hearing, the county attorney did acknowledge receipt of this letter.
As it relates to that letter, the county attorney testified:
A. I believe the trial was scheduled for a Tuesday, and I was up here for court service on Monday morning. I believe that's the timing of it. It was literally I believe the day before trial. I walked up the stairway and out the door, and Mr. Blair was sitting on the bench outside the attorneys' room there.
And he stopped me and said who he was and said he wanted to get a different attorney and wanted to know if I could help him, and I said, no, but I would inform the judge if he wanted to see the judge. And it was Judge Burgett I believe, the same judge who was the trial judge, and Judge Burgett had — I relayed the message to Judge Burgett, and Judge Burgett — I don't remember if he spoke with the defendant himself or not, but then he called Mr. Anderson over and told Mr. Anderson that his client was asking for new counsel.
And Mr. Anderson then visited with Mr. Blair here on the third floor of the courthouse, and a short time later came back to chambers and informed the judge and I that Mr. Blair wanted to proceed with Mr. Anderson as his attorney.
Q. And some of the concerns that Mr. Blair had about Mr. Anderson was the allegations that had come to light that he had been accepting controlled substances, I think cocaine, and sexual services and sexual favors for his services; is that accurate? A. That's in the content of the letter. I never had any discussion with Mr. Blair about the specifics of why he wanted a new attorney. All I did was relay that request to the judge.
There is further testimony in the postconviction hearing that although Blair had requested new counsel, he at no time gave specifics why he wanted new counsel. In addition, the record is clear that those unspecified objections he had concerning his attorney were resolved for he consented to Anderson proceeding as his attorney and voiced no additional objection.
The letter Blair wrote to the county attorney after his incarceration also makes reference to his trial counsel accepting drugs and sex for legal services. As noted earlier, the county attorney acknowledged that the statement is in the letter, but again points out that he had no discussion with Blair about this nor were there specifics of why he wanted a new attorney.
As it relates to the charge that was brought against Anderson, it appears from the record that those charges did not occur until approximately three months after Blair's trial. Anderson testified that the charges that were subsequently brought had no impact on his defense of Blair's case for that case was over.
The Sixth Amendment to the Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." The purpose of the Sixth Amendment provision is to ensure the criminal defendants receive a fair trial. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1696-97, 100 L.Ed.2d 140, 148 (1988). Once a constitutional issue is raised, our review is de novo. State v. Spencer, 519 N.W.2d 357, 359 (Iowa 1994).
From our review of the record, we are unable to find that the trial court at any time was given notice of an alleged conflict of interest. It is true, as Blair argues, that where the trial court knew or should have known of a particular conflict, reversal is required without a showing that the conflict adversely affected counsel's performance, even though no objection is made. State v. Watson, 620 N.W.2d 233, 237 (Iowa 2000). However, in State v. Atley, 564 N.W.2d 817, 825 (Iowa 1997), our supreme court cited the following taken from United States v. Horton, 845 F.2d 1414, 1418 (7th Cir. 1988):
If, however, the trial court has not been given notice of the alleged conflict, the defendant must show that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348-49, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980).
We conclude that the trial court had no reason to know of a potential conflict of interest and therefore had no reason to inquire into any potential conflict. Blair has failed to show that an actual conflict of interest affected his counsel's performance. "The possibility of conflict is insufficient to impugn a criminal conviction." Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348.
Blair cites cases for the proposition that a conflict of interest may arise when a defendant's counsel is himself being prosecuted by the same authority which is prosecuting the defendant. However, in the two cases cited ( United States v. Levy, 25 F.3d 146, 160 (2d Cir. 1994), and Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir. 1992)), defense counsel was actually being prosecuted and at the time knew it.
Although Anderson was the target of an investigation at the time of Blair's trial, he did not know that a prosecution might follow. In addition, there is no competent evidence whatsoever that the trial judge knew or reasonably should have known of the alleged conflict. The only competent evidence is the prosecutor told the judge that Blair wanted a different attorney. The judge was later told Blair wanted to proceed with Anderson as his attorney.
We find this claim to be without merit.