Opinion
No. 6-006 / 04-1331
Filed March 29, 2006
Appeal from the Iowa District Court for Polk County, Michael Huppert, Judge.
Alf Freddy Clark, who was convicted of attempted murder and terrorism with intent, appeals from the decision of the district court denying his petition for postconviction relief. AFFIRMED.
Frank Burnette, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee State.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
Alf Freddy Clark appeals from the district court's denial of his application for postconviction relief, which challenged his convictions for attempted murder and terrorism with intent. Clark raises numerous ineffective assistance of counsel claims. In addition, he contends the court erred in denying motions filed after his postconviction hearing was held. Because we find no merit in any of Clark's appellate claims, we affirm.
I. Background Facts Proceedings
Clark and a co-defendant, Shawn James, were both found guilty of attempted murder and terrorism with intent following a jury trial held in May of 2000. The convictions stemmed from a drive-by shooting incident which occurred on August 6, 1999. The evidence presented at trial showed James was a passenger in a white Ford Taurus owned and driven by Clark. The car stopped in front of a Des Moines home long enough for James to exit the car, repeatedly fire a handgun at Keon Phillips, who was standing in front of the house, and then leave the scene in the same car. Phillips was not injured, and police arrived at the scene within five minutes of the shooting. They received the description and license plate number of the getaway car and located it a short time later. James was in the passenger seat, Clark was driving, and the .38 caliber revolver used in the shooting was discovered in the glove compartment.
Clark appealed the judgment and sentence of the district court, and we affirmed his convictions on direct appeal. State v. Clark, No. 00-1317 (Iowa Ct.App. Feb. 20, 2002). After his direct appeal was denied, Clark filed an application for postconviction relief. Following an evidentiary hearing, the district court denied the application. Clark now appeals.
II. Scope Standards of Review
Ordinarily, we review postconviction relief proceedings for errors of law. Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005). However, because Clark asserts violations of constitutional safeguards, including ineffective assistance of counsel, we make our own evaluation based on the totality of the circumstances. Origer v. State, 495 N.W.2d 132, 135 (Iowa Ct.App. 1992). This is the equivalent of de novo review. Id.
We review the district court's rulings on Clark's post-hearing motions for abuse of discretion. Bailiff v. Adams County Conference Bd., 650 N.W.2d 621, 626 (Iowa 2002); In re Marriage of Bolick, 539 N.W.2d 357, 361 (Iowa 1995).
III. Discussion
Clark argues his trial counsel was ineffective for failing to object to a jury instruction, failing to seek a mistrial, and failing to consult him about defenses and investigate and present an alibi defense and a defense that someone else was driving his vehicle during the shooting. Clark contends his postconviction counsel was ineffective for failing to raise challenges to the admission of evidence at his criminal trial regarding gangs and another shooting. Clark maintains the postconviction court erred in denying his motion to amend the postconviction application to conform to proof of "actual innocence" allegedly presented at the postconviction hearing. In addition, he asserts the court erred in denying his motion to enlarge findings of fact and conclusions of law. Finally, Clark claims he is entitled to a new trial because of the "cumulation of errors in this case."
A. Ineffective Assistance of Trial and Postconviction Counsel
To establish ineffective assistance of counsel, Clark must prove: (1) his attorney's performance fell below "an objective standard of reasonableness" and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish breach of duty, Clark must overcome the presumption counsel was competent and prove counsel's performance was not within the range of normal competency. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). Clark may establish prejudice by showing a reasonable probability that, but for counsel's errors, the result of the proceeding would have differed. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). We may dispose of Clark's ineffective assistance claims if he fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
Clark first asserts trial counsel was ineffective for failing to object to the marshaling instruction for terrorism with intent because the instruction did not include aiding and abetting language. He maintains he was "convicted of a crime on a legal and factual theory different than that solely supported by the evidence." The State agrees that Clark's participation in this case was as an aider and abettor rather than a principal. However, the State contends the failure to include aiding and abetting language in the terrorism instruction does not establish prejudice in this case. Upon review of the record, we agree.
All jury instructions must be read and construed as a whole, not piecemeal or in artificial isolation. Sanders v. Ghrist, 421 N.W.2d 520, 522 (Iowa 1988). In this case, the jury was advised of the theory of aiding and abetting in the marshaling instruction for attempted murder and was advised generally regarding aiding and abetting as a theory of guilt in Jury Instruction No. 16. The record reveals that the State's theory of this case has always been that Clark was the getaway driver for Shawn James, who fired shots at another man. Reading the instructions as a whole, we believe the jury was able to consider Clark's guilt as an aider and abettor. Moreover, Clark has not established a reasonable probability that, but for trial counsel's failure to object to the jury instruction on terrorism, the result of the proceeding would have differed. Thus, we reject this assignment of error.
Jury Instruction No. 16 states:
All persons involved in the commission of a crime, whether they directly commit the crime or knowingly "aid and abet" its commission, shall be treated in the same way.
"Aid and abet" means to knowingly approve and agree to the commission of a crime, either by active participation in it or by knowingly advising or encouraging the act in some way before or when it is committed. Conduct following the crime may be considered only as it may tend to prove the Defendant's earlier participation. Mere nearness to, or presence at, the scene of the crime, without more evidence, is not "aiding and abetting." Likewise, mere knowledge of the crime is not enough to prove "aiding and abetting."
The guilt of a person who knowingly aids and abets the commission of a crime must be determined only on the facts which show the part he or she has in it, and does not depend upon the degree of another person's guilt.
If you find the State has proved the Defendant directly committed the crime, or knowingly "aided and abetted" other persons in the commission of the crime, then the Defendant is guilty of the crime charged.
The crimes charged require specific intent. Therefore, before you can find the Defendant "aided and abetted" the commission of the crime, the State must prove the Defendant either had such specific intent or "aided and abetted" with knowledge the others who directly committed the crime had such specific intent. If the Defendant did not have the specific intent, or knowledge the others had such specific intent, he is not guilty.
Clark next argues his trial counsel was ineffective for failing to move for a mistrial when Clark's co-defendant was asked on cross-examination to identify the driver of the vehicle. Before James answered the question posed, Clark's trial counsel objected. The court sustained the objection, and James never identified the driver. Ordinarily, the simple asking of questions is not prejudicial and will not justify a mistrial unless the defendant can establish bad faith on the part of the prosecutor and show he was so prejudiced by the misconduct that he was denied a fair trial. State v. Bishop, 387 N.W.2d 554, 561 (Iowa 1986). In this case, the question was isolated, James never provided an answer, and the district court instructed the jury that it could not consider evidence presented during James's testimony as evidence of Clark's guilt. Clark failed to show the question posed to James was so prejudicial that the trial court would have granted a motion for mistrial if one had been made. We conclude Clark has shown neither a breach of duty nor prejudice.
Clark also contends his trial counsel was ineffective for failing to adequately investigate his case and discuss the case with him. As a result, he argues his attorney failed to present a viable alibi defense and other evidence that suggested another individual drove his car during the attempted murder.
Clark's theory of defense at trial was that the State lacked sufficient evidence to identify Clark as the driver at the scene of the shooting and failed to prove he aided and abetted in the attempted murder.
At the postconviction proceeding, Clark testified his trial counsel failed to adequately consult with him prior to trial. Clark suggested Lance Dixon drove James in Clark's car at the time of the shooting, and he claimed he was with a former girlfriend, Rachel Blake, when James shot at Phillips. To support his alibi defense, Clark offered testimony from Blake that Clark was with her at the time of the shooting, and James borrowed Clark's car prior to shooting and returned it immediately before Clark was stopped by the police. Clark testified he informed his trial counsel he had an alibi. Clark's trial counsel testified he had "extensive discussions" with Clark and denied receiving any information about a possible alibi defense from his client. The district court found trial counsel's testimony more credible than Clark's.
A defendant possesses the responsibility to inform his or her trial counsel of all pertinent facts that are sometimes uniquely within the defendant's knowledge. State v. Ball, 600 N.W.2d 602, 605 (Iowa 1999). Typically, defense counsel has a duty to conduct reasonable investigations or make reasonable decisions that make particular investigations unnecessary. Origer, 495 N.W.2d at 136.
Upon careful review of the record, we find no reason to disagree with the trial court's rejection of Clark's claim that he told his trial counsel about his purported alibi defense prior to his trial. Neither Clark nor Blake offered up the existence of Clark's purported alibi until these postconviction proceedings. Blake offered no explanation for not coming forward sooner with her information regarding Clark's alibi. At the postconviction hearing, Clark testified he was unsure whether he gave Blake's name to his trial counsel as an alibi witness. He also admitted he never asked Blake to contact his counsel and never told the police he had an alibi. Clark expressed no dissatisfaction with his trial counsel until after he was convicted, and he did not share the existence of Blake as an alibi witness with the attorney who handled his direct appeal. Like the district court, we find Clark's argument regarding the ineffectiveness of trial counsel for failure to develop an alibi defense without merit. Trial counsel could not be ineffective for failing to investigate and develop a defense when his client failed to apprise him of vital alibi information. Clark has shown neither a breach of duty nor prejudice with regard to this claim.
Clark next claims his trial attorney was ineffective for failing to expand his defense to include the theory that Lance Dixon was the driver of the getaway car. Clark apparently posits that Dixon had to be the getaway driver because the shooting was in retaliation for a prior drive-by shooting where Dixon witnessed his mother being shot. The district court found Clark's speculation regarding Dixon's involvement in the August 6 shooting "to be conjectural at best." We agree with the district court's assessment of Clark's claim, and we note that ineffective assistance of counsel claims cannot be premised on speculative grounds. State v. Aldape, 307 N.W.2d 32, 43 (Iowa 1981).
Clark notes Dixon was later tried with James's brother for a murder three months after the Williams shooting that was also in retaliation for the shooting of Dixon's mother.
Moreover, considerable circumstantial evidence points to Clark as the driver at the time of the shooting. James was identified at the scene of the shooting being driven in a white Ford Taurus owned by Clark. Ten minutes later, police stopped the vehicle. Clark was driving with James in the passenger seat. The gun used in the shooting was discovered in the glove compartment. As the postconviction court noted, Dixon was nowhere to be found when the police stopped Clark's car, and no explanation was offered regarding what happened to Dixon between the shooting and the stop. The district court found that even if trial counsel had presented this theory at trial, the jury likely would not have been persuaded to adopt the theory in light of the evidence pointing to Clark as the driver of the vehicle. We find Clark did not establish his trial counsel was ineffective for failing to present evidence suggesting Lance Dixon was the driver of the car at the scene of the shooting. Once again, we find Clark failed to show either a breach of duty or prejudice with regard to this claim.
Clark's next claims of ineffective assistance concern his postconviction counsel. Clark asserts his postconviction counsel was ineffective for failing to raise challenges to the admission of evidence at his criminal trial regarding gangs and another shooting incident.
The record reveals the State only elicited evidence that the victim of the shooting was a gang member. Although the prosecutor attempted to present evidence of Clark's gang membership, the trial court excluded this evidence because of the risk of unfair prejudice. We conclude evidence of the victim's gang affiliation did not prejudice Clark's defense because "the jury's instinct to punish gang members" arises when a defendant is identified as a gang member, not the defendant's victim. State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995).
We also find Clark's defense was not prejudiced by the admission of evidence regarding another shooting incident. The State presented only limited evidence of another drive-by shooting, and at trial, no connection was shown between Clark and that shooting.
B. Motion to Amend Postconviction Application
Clark contends the district court erred in denying his post-hearing motion to amend his postconviction relief application to conform to proof of "actual innocence" allegedly presented at the postconviction hearing. Clark argues this claim relates to the alibi evidence presented at the postconviction hearing.
The district court has the discretion to grant or deny a motion to amend pleadings. Doerring v. Kramer, 556 N.W.2d 816, 819 (Iowa Ct.App. 1996). We will reverse only on a clear abuse of that discretion. Bailiff, 650 N.W.2d at 626. We find no abuse of discretion here, and we agree with the district court that evidence of alleged "actual innocence" was "admitted on the already pled claim of ineffective assistance of counsel[,]" not on the unpled claim of "actual innocence."
When one party introduces evidence with no objection on an issue not raised by the pleadings, we consider the matter tried by consent and properly in the case. Gibson Elevator, Inc. v. Molyneux, 668 N.W.2d 565, 567-68 (Iowa 2003). However, we will not find consent if the evidence was also admissible on a different issue that was raised by the pleadings. Id. We find no consent in this case because the State could not be expected to object to evidence of actual innocence on the basis that it goes to an issue not raised in the pleadings when the evidence was otherwise admissible to support Clark's ineffective assistance claims. Id. Furthermore, Clark's claim of "actual innocence" should have been made well in advance of the postconviction hearing, not after the hearing, to allow the State an opportunity to prepare an adequate response. Scott v. Grinnell Mut. Reins. Co., 653 N.W.2d 556, 561 (Iowa 2002). We find the district court did not err in denying Clark's motion to amend the postconviction application.
C. Motion to Enlarge Findings of Fact and Conclusions of Law
Clark asserts the district court erred in denying his motion to enlarge its findings of fact and conclusions of law. We review the district court's denial of Clark's motion for abuse of discretion. Bolick, 539 N.W.2d at 361. The district court found that although it did not make all the specific factual findings outlined in Clark's motion, the findings were unnecessary for a complete ruling on the merits of Clark's petition, and all of the proposed findings "relate to petitioner's theory that trial counsel was ineffective in failing to develop and present" the alibi defense and the defense that another individual drove Clark's vehicle during the shooting. We agree with the district court that specific factual findings on the issues raised in Clark's motion would not change the court's ruling, and we find the district court did not err in denying the motion.
D. Cumulative Error
Clark's final contention is that the cumulative effect of errors in this case "constituted a violation of the Sixth and Fourteenth Amendments" and "was likewise an unreasonable application of, and was contrary to applicable federal constitutional law." To the extent these alleged errors implicate Clark's due process rights, our review is de novo. State v. Bumpus, 459 N.W.2d 619, 622 (Iowa 1990). We find no individual errors in this case, so there may be no finding of cumulative error. State v. Burkett, 357 N.W.2d 632, 638 (Iowa 1984).
IV. Conclusion
Because we find no merit in any of Clark's postconviction claims, we affirm the district court's denial of postconviction relief.