Opinion
No. 2-351 / 01-0759.
Filed June 19, 2002.
Appeal from the Iowa District Court for Scott County, MARK J. SMITH, Judge.
Michael Davis appeals from the denial of his application for postconviction relief. AFFIRMED.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, William E. Davis, County Attorney, and Joseph A. Grubisich, Assistant County Attorney, for appellee.
Considered by Hayden, Peterson, and Harris, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Michael Davis was found guilty by a jury of first-degree kidnapping, second-degree sexual abuse, and assault with intent to inflict serious injury. On direct appeal the court of appeals affirmed the conviction and preserved certain issues of the general claim of ineffective assistance of counsel for further proceedings. Davis's application for postconviction relief alleges that his trial counsel's failure to properly investigate the case so he could effectively impeach certain State's witnesses deprived Davis of due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. The trial court denied the relief requested by Davis, and he appeals from that decision. On our review, we affirm the decision of the trial court.
Scope of Review. The typical review of postconviction relief proceedings is on error. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, this applicant asserts a claim a deprivation of a constitutional right. When an applicant asserts a claim of constitutional nature such as an assertion of ineffective assistance of counsel depriving him of due process of law, the review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000).
Background Information. The victim, Barbara Smith, had been living with Davis in an apartment house for about four and one-half months at the time of the occurrence. On the night of the occurrence Smith and Davis had been to a party. When they returned to the apartment, Smith declined Davis's request to have sex with him stating she would rather take a bath. A violent verbal and physical argument ensued. Smith testified Davis attempted to smother her with a pillow, stripped off her clothing, hit her with hands and fists, bit her drawing blood, struck her with various objects, tore her hair out, held her head under water, thrust his fist in her vagina, pinned her between the commode and the wall and jumped on her, gouged her hand with a ballpoint pen, and attempted to stab her with scissors. She testified that she ran from the apartment screaming for help dressed only in a bra. Further assaults took place outside the apartment. She testified that Davis drug her back into the apartment against her wishes. When police arrived she was distraught and still undressed.
The physical evidence in the apartment, statements of witnesses, and the doctor's medical report corroborated a substantial part of Smith's testimony. The medical report reflected internal as well as external injuries to the vaginal area.
Davis acknowledges the physical assault, although denying the extent of the activity described by the victim, contending the victim had declined his sexual advances. Davis denies touching Smith's vagina in any way, and he testified that he had assumed that during a fifteen-minute period she had been gone from the apartment she had engaged in a sexual activity with a former boyfriend (Mickey) who may have been in another apartment in the building.
Discovery depositions were taken by defense counsel prior to trial. The neighbor, Hawkins, was subpoenaed for deposition but did not appear. Her deposition was not taken. She testified at trial that Mickey was not at her apartment at the time of the altercation. The police report of an interview with Hawkins the night of the incident included this statement:
[O]n the date of the incident, she was at home in her apartment. She said earlier in the night her godson, Mickey, age 21, was there and heard an argument going on in Apt. #5. She said she discussed the argument with Mickey and Mickey left. She said that after Mickey left, things got louder when she was trying to sleep. She heard a lot of thumping noises, she heard a woman's screams and heard the words, "Don't hit me, don't do this."
A videotape of her statement was in the possession of the police but was not examined by counsel prior to trial. Hawkins's oral testimony at trial concerning the location of certain other witnesses during the altercation was not entirely consistent with the testimony of the victim and the other witnesses. Davis contends his counsel's failure to properly investigate this witness prior to trial was devastating to counsel's ability to discredit her testimony and give credence to a theory that the victim had sexual activity with Mickey on that evening rather than Davis.
To establish the necessary elements for proof of ineffective assistance of counsel depriving Davis of his Sixth Amendment right to counsel, he must show that: (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693; Ledezma v. State, 626 N.W.2d at 142; Taylor v. State, 352 N.W.2d 683, 685 Iowa 1984); State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Each of the elements must be established by a preponderance of the evidence. State v. Ramirez, 616 N.W.2d 587, 593 (Iowa 2000). However, if the claim lacks prejudice, the claim can be decided on that ground alone without deciding whether the attorney performed deficiently. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).
Davis contends that defense counsel failed to investigate sufficiently to be able to impeach two of the State's witnesses. He contends that the failure of the counsel to demand a deposition of witness Hawkins and to discover and review a police report, 911 tape, and a videotape of her statement prevented counsel from establishing that she made inconsistent statements concerning the presence of Mickey in her apartment at some time during the argument.
He also contends that a more vigorous investigation and cross-examination of the victim would have established substantial prior inconsistent statements concerning the events of the evening and nature of the wounds inflicted.
Analysis. Counsel for Davis was faced with difficult choices in the presentation of the case for Davis. With the acknowledgment of the assault by defendant, the physical evidence of a brutal assault, testimony from neighbors and persons present in Davis's apartment, and a damaging doctor's report, his theory of the case was to exploit the extent of the assault to the victim to attempt to establish that the injuries to the vaginal area were caused by the assault and not with the intent to cause sexual abuse. He determined the jury would not "buy" the idea that in fifteen minutes' time the victim had left Davis's apartment, walked down two flights of stairs and outside the apartment building, climbed up two flights of stairs to Hawkins's apartment, engaged in sexual activity causing injuries to her by Mickey, and returned to the Davis apartment. Persons staying in the Davis apartment that night would not corroborate Davis's testimony that Smith had left the apartment. There was no person to testify that Smith was in the Hawkins's apartment when Mickey was present that evening.
To establish the first prong of the test, the applicant must demonstrate that the attorney performed below the standard demanded of a reasonably competent attorney. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693-94; Ledezma, 626 N.W.2d at 142. The attorney's performance is measured against "prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Each claim is examined in light of the totality of the circumstances. Id. There is the presumption that the attorney performed competently. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694; Oetken, 613 N.W.2d at 683.
Ineffective assistance of counsel is more likely to be established when the alleged actions or inactions of counsel are attributed to a lack of diligence as opposed to the exercise of judgment. 3 Wayne R. LaFave et al., Criminal Procedure § 6.02, 8.01 (1998); Ledezma, 626 N.W.2d at 142. Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel. Wissing, 528 N.W.2d at 564. However, a decision by counsel based upon tactical judgment does not completely immunize the decision from an ineffective assistance challenge. LaFave § 11.10(c) at 717. Counsel is required to conduct a reasonable investigation or make reasonable decisions that make a particular investigation unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. An investigation of a defense may be curtailed or eliminated if the facts are already known to counsel through another source. Ledezma, 626 N.W.2d at 145; see Mulligan v. Kemp, 771 F.2d 1436, 1442-43 (11th Cir. 1985). Strategic decisions made after a "less than complete investigation" must be based on reasonable professional judgments which support the particular level of investigation conducted. Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. "There can be a point when the tactical or strategic decisions made by counsel from a host of competing options fall outside the broad scope of a reasonably competent attorney." Ledezma, 626 N.W.2d at 143. "The extent of the investigation required in each case turns on the peculiar facts and circumstances." Schrier v. State, 347 N.W.2d 657, 662 (Iowa 1984).
This court is concerned about the extent of the investigation of a key witness in this case where one of the crimes charged, if established, includes a life sentence for the defendant. The counsel apparently felt the witness Hawkins was important enough to subpoena her for deposition, but took no action to enforce her attendance when she did not appear. From the record in these proceedings it is apparent that counsel did not see the police statements or the videotape of her statements before the trial. While the seriousness of the crime charged does not dictate the extent of the investigation and discovery process prior to trial, it certainly demands that it not be cursory. This person was an eyewitness and heard a portion of the activities of the evening. Counsel did not explain why he did not pursue an investigation of a potentially key witness in these proceedings.
However, even if the applicant has proven ineffective assistance on that issue, the inquiry does not end at that point. It must also be shown that the error caused prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697; State v. Westeen, 591 N.W.2d 203, 211 (Iowa 1999). The applicant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 693; State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). A "different result" has been interpreted to require a showing of reasonable probability of a different verdict, or that the fact finder would have possessed a reasonable doubt. Ledezma, 626 N.W.2d at 144; Westeen, 591 N.W.2d at 211. The standard of proof is by a preponderance of the evidence. Oetken, 613 N.W.2d at 683.
The applicant attempts to make a case for the likelihood that a reasonable doubt would have been created in the minds of the jury if his defense counsel had used additional information that was available to him to impeach Hawkins's testimony. This court declines to accept that supposition. Each claim is scrutinized in light of the totality of the circumstances. Strickland, 466 U.S. at 488, 104 S.Ct. at 2064-65; 80 L.Ed.2d at 693-94; Artzer, 609 N.W.2d at 531. The motivation for the assault by Davis had sexual implications. The evidence of the brutal assault by Davis is overwhelming. The victim testified to a physical abuse to her vagina by Davis. Davis's suggestion that Hawkins's inconsistent statements concerning the presence of Mickey in her apartment early in the argument gave cause to believe that Mickey had sexual activity causing injury to Smith is without credibility. There is no testimony other than Davis's statements to support such a theory. In fact, the likelihood of such an occurrence given the evidence presented is highly improbable. The nature of any ineffective assistance as well as the nature and strength of the evidence produced by the State at trial are important factors in weighing the determination whether a reasonable probability exists that the result of the trial would have been different. State v. Bayles, 551 N.W.2d 600, 610 (Iowa 1996).
Defense counsel chose not to pursue such an unlikely defense without evidence to support it. He chose rather to focus on the issue of the extent of the injuries to Smith to explain the physical injuries to her vagina. It is not infrequent that in criminal defense cases counsel must make some difficult choices among equally hazardous options. This court will not assume a role of a Monday morning quarterback in reviewing counsel's choices. "When trial counsel acts reasonably in selecting and following through in a chosen strategy, the claim of ineffectiveness is without merit." State v. Wilkins, 346 N.W.2d 16, 19 (Iowa 1984). The choice made by counsel in this case is reasonable and well within the range of professional competence considering the options available.
Conclusions. Thus, even if the court were to conclude that the failure to pursue depositions of Hawkins and examination of the video by defense counsel were not within the range of professional standards under the circumstances, such inaction did not prejudice the outcome of the case before the jury. The applicant has failed to establish by a prerequisite standard of proof that there is a reasonable probability of a different verdict or that the fact finder would have possessed a reasonable doubt if the inconsistency of Hawkins's statements concerning the presence of Mickey in her apartment at some time during the evening had been presented.
The court considers any inconsistencies in the testimony of the victim concerning the events of the evening that may have been established with a more vigorous cross-examination would not have been significant enough to produce a different result. This is particularly true in light of the theory of the case for Davis adopted by counsel. This court will not examine in minutiae each question of counsel and second-guess its effectiveness or adequacy. The inquiry of this court should not degenerate into a postmortem, microscopic dissection of each desperate effort of counsel to save a terminal case. Schertz v. State, 380 N.W.2d 404, 411 (Iowa 1985) (citing Hinking v. State, 290 N.W.2d 28, 30 (Iowa 1980)).
The trial court is affirmed. The application for postconviction relief is denied.
AFFIRMED.