Opinion
No. 2-731 / 01-2006.
Filed December 11, 2002
Appeal from the Iowa District Court for Polk County, ARTIS I. REIS, Judge.
Andre Bonner appeals the district court order denying his application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.
Considered by HABHAB, HARRIS and BROWN, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
In this postconviction relief action, the applicant, Andre Bonner, claims ineffective assistance of counsel in failing to object to improper opinion testimony and in failing to present the testimony of an alibi witness. We find no merit in either contention and consequently affirm the postconviction trial court.
I. Background and proceedings.
Andre Bonner was convicted of first-degree robbery following a jury trial based on evidence that he struck and robbed a pregnant hotel clerk at gunpoint on the night of July 6, 1997. He appealed that conviction, which was affirmed by our court. State v. Bonner, No. 98-0509 (Iowa Ct.App. Feb. 23, 2000). He raised two issues in the appeal: the admission of a letter Bonner wrote from jail to his girlfriend, Ashley Lord; and his trial counsel's failure to present an alibi defense through the testimony of Ashley Lord.
Bonner then filed this post conviction action, alleging several grounds of ineffective assistance of his appellate counsel. Following trial the district court denied each of his ineffective assistance claims.
Bonner now appeals to this court, alleging error in two respects. First, he claims improper admission of opinion testimony, and second, failure to present an additional alibi witness, Scott Edwards.
II. Error preservation.
Error has not been preserved on the opinion testimony claim. It was not urged previously nor addressed by the original or postconviction trial court. Iowa Code §. 822.8 (2001). However, "grounds which could have been raised in the direct appeal are precluded from postconviction relief only if the applicant fails to show sufficient reason why they were not raised on direct appeal." Bugley v. State, 596 N.W.2d 893, 897 (Iowa 1999). Ineffective assistance of appellate counsel may provide sufficient reason. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Also, ineffective postconviction counsel may excuse the ordinary error preservation requirements. Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa 1994).
However, since this claim has not been considered by a trial court and the adequacy of trial and appellate counsel's performance is the ultimate issue, we must determine if the record is adequate for our review at this point. Ordinarily, it is preferable to allow trial counsel and appellate counsel an opportunity to explain their conduct when there are possible strategic or tactical issues to be considered. State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). Only when the record is clear and there are no such issues involved should we dispense with providing counsel that opportunity before passing on their competency. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001). We conclude the record is adequate to address this issue on its merits.
The second claim — failure to present an alibi defense by calling Scott Edwards as a witness — was raised in the post conviction trial, but not on direct appeal. The postconviction trial court denied relief on the basis that Bonner did not make his trial counsel aware of the potential alibi testimony.
III. Standard of review.
Although postconviction proceedings are ordinarily reviewed for errors at law, we review ineffective assistance of counsel claims, including claims against postconviction counsel, de novo. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998).
IV. Ineffective assistance of counsel.
To establish a claim of ineffective assistance of counsel, a criminal defendant carries the burden of showing by a preponderance of the evidence that: (1) counsel failed to perform an essential duty; and (2) the defendant experienced prejudice as a result of the counsel's performance. To establish the first element of the test, the defendant must overcome the presumption that the counsel was competent and demonstrate that, when considering the totality of the circumstances, the counsel's performance was not within the normal range of competency. In order to demonstrate prejudice, the defendant must show counsel's failure worked to the defendant's actual and substantial disadvantage so that a reasonable probability exists that but for the counsel's error, the result of the proceeding would have been different.
Irving v. State, 533 N.W.2d 538, 540-41 (Iowa 1995) (internal citations omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). The prejudice demonstrated must be actual, not potential. State. v. Simpson, 349 N.W.2d 783, 785 (Iowa 1985). The prejudice standard is the same for trial and appellate counsel; both are measured in terms of the probable consequences at trial. Gering v State, 382 N.W.2d 151,156 (Iowa 1986). "In summary, `[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" State v. Losee, 354 N.W.2d 239, 243 (Iowa 1984) (quoting from Strickland, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93).
A. Opinion evidence.
Bonner's first claim here is that trial counsel failed to object to testimony elicited from Detective Jack Beardsley concerning the credibility of the hotel clerk's identification of defendant Bonner. He urges Beardlsey was not qualified to give an expert opinion regarding her credibility, and that, even if qualified, such opinions are inadmissible.
In the course of his investigation, detective Beardsley interviewed the hotel clerk approximately two hours after the crime. He also interviewed her the following day when she identified Bonner from a photo lineup. He was asked to rate her "as an eyewitness in terms of her ability to provide you detail as to what happened at the scene of the robbery." He responded "she was good." Beardsley also explained why he thought the hotel clerk may have underestimated Bonner's height. Defense counsel also questioned Beardsley regarding the hotel clerk's identification of Bonner, asking him if it was possible the hotel clerk was wrong about Bonner. He responded he didn't believe so. Beardsley was a ten-year veteran of the Des Moines police and had interviewed some 1000 eyewitnesses in cases ranging from simple assault to homicide.
Iowa is committed to a liberal approach in the admission of expert testimony, State v. Rodriquez, 636 N.W.2d 234, 245 (Iowa 2001), and the court has broad discretion in determining the competency of witnesses. State v. Andrews, 447 N.W.2d 118, 120 (Iowa 1989). If the court determines the testimony will help the jury understand the evidence in the case, and the witness has sufficient qualifications by virtue of knowledge, skill, experience, training or education, the testimony is admissible. Iowa R. Evid. 702; James A. Adams and Joseph P. Weeg, Iowa Practice Evidence § 702.1, at 505 (2002-03).
In view of our liberal approach, the trial court would have been well within its discretion to have determined Beardsley was qualified by training, experience and knowledge to give his view on the credibility of the hotel clerk.
However, in State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986), the court ruled that, regardless of the witnesses' qualifications, expert opinions as to the truthfulness of witnesses are not admissible. Id; Johnson v. State, 495 N.W.2d 528, 529 (Iowa Ct.App. 1992). We believe Beardsley's testimony marginally implicated this prohibition. Nevertheless, failure to object to this testimony (or eliciting it on cross examination) does not constitute ineffective assistance of counsel in this case.
As we have noted, Bonner must establish that this testimony resulted in prejudice to him. We believe, in light of all the evidence introduced by the State, the exclusion of this evidence would not likely have resulted in a different verdict. Our examination of the evidence leads us to the same conclusion as that of our court on direct appeal:
The evidence of Bonner's guilt was overwhelming. The hotel clerk who was punched and robbed identified Bonner with no hesitation, both at trial and in a photographic array after the robbery. Two people observed the vehicle owned by Bonner's co-defendant being driven near the hotel at the time of the robbery. Both testified that the car contained a black male passenger and a white male driver. Bonner is a black male and Bonner's co-defendant is a white male. When the police stopped and searched the co-defendant's car, they found both a gun and ammunition in it. When police officers attempted to apprehend Bonner he ran and hid.State v. Bonner, No. 98-0509 (Iowa Ct.App. Feb. 23, 2000).
This is not a case involving a tenuous identification of the defendant. There was ample identification evidence in addition to the eyewitness identification by the hotel clerk. In addition to the evidence cited by the court of appeals, Bonner's girlfriend testified she saw him with a "wad of money" that day, although she knew him to be unemployed and "mostly borrowed money from me." She also testified she saw Bonner that night with the co-defendant. The co-defendant's car was a distinctive Camaro, identified by two witnesses. There was evidence that the gun, clothing and sunglasses found later in the defendants' car matched those described by the hotel clerk. When apprehended, after fleeing, Bonner was wearing pants identified by the hotel clerk as matching those worn by the robber.
We are convinced no "reasonable probability exists that but for the counsel's error, the result of the proceeding would have been different." Irving, 533 N.W.2d at 540-41.
B. Alibi defense.
The second issue raised by Bonner in this proceeding is that trial counsel failed to perform an essential duty in not presenting (and appellate counsel in not raising) an alibi defense through one Scott Edwards.
Initially, we agree with the postconviction trial court in its implied conclusion that trial counsel was not made aware that Bonner wished to present Edward's testimony. Trial counsel's testimony indicated he was not, and appellate counsel testified he was not informed by Bonner that he sought to pursue this issue. Although Bonner now vigorously claims otherwise, given all the circumstances surrounding this alibi testimony, our de novo review persuades us counsel was not made aware that Edward's testimony was a viable issue which should have been pursued.
Trial counsel has a duty to adequately investigate the facts of a case, but this duty is not unlimited. Foster v. State, 378 N.W.2d 713, 721 (Iowa Ct.App. 1988). Counsel need not "pursue each possible witness and delve into every line of inquiry." Heaton v. State, 420 N.W.2d 429, 431 (Iowa 1988). We will not impose a duty on counsel to pursue evidence of which his client would have been particularly aware, where the client fails to inform counsel of it. We conclude Bonner has not carried his burden to overcome the presumption of counsel's competency and establish the breach of an essential duty.
However, assuming counsel was made aware of the proposed alibi testimony, its absence does not satisfy the prejudice requirement. Under the circumstances here, its value is highly speculative. At trial, Bonner sought to present an alibi defense through the testimony of his girlfriend, Ashley Lord. In a pretrial hearing, Bonner's trial counsel expressed great concern that Lord's proposed testimony was false because, among other things, she did not recall the telephone call claimed to have been made to her by Bonner from a grocery store at about the time the crime took place until shortly before trial. The trial court rejected the defense as untimely. However, Lord was allowed to testify about the telephone call for credibility purposes. The Lord alibi issue was raised on direct appeal and rejected. The appellate court determined the proposed alibi defense was "so apparently lacking in credibility that trial counsel had no duty to belatedly assert it." State v. Bonner, No. 98-0509 (Iowa Ct.App. Feb. 23, 2000).
This was the third trial for Bonner, the previous two having ended in mistrials. Lord did not testify concerning the telephone call at the previous trials. Bonner did not testify at the trial.
Counsel's healthy skepticism toward alibi testimony in this case is also applicable to the proposed testimony of Edwards. What Edwards might say if called as a witness was provided only by Bonner's testimony at the postconviction trial; Edwards has never testified In this case. This impacts our consideration of this proposed testimony. In view of the magnitude of the convincing evidence against Bonner, we are satisfied from our de novo review that Edward's alibi testimony, even if available, would not have produced a different result from the jury.
The denial of the application for postconviction relief is affirmed.