Opinion
No. 3-051 / 02-0986
Filed March 26, 2003
Appeal from the Iowa District Court for Polk County, D. J. Stovall, Judge.
Defendant appeals from the denial of his postconviction relief application. AFFIRMED.
Scott L. Bandstra, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey Noble and William Schultz, Assistant County Attorneys, for appellee.
Heard by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
After Dennis Durham appealed his conviction and sentence for burglary in the third degree in violation of Iowa Code section 713.6A (1999), appellate counsel moved to withdraw pursuant to Iowa Rule of Appellate Procedure 6.104. Durham filed a response seeking substitute counsel, but specifically declined to raise points in support of his appeal until new counsel was appointed. See Iowa R.App.P. 6.104(4). The supreme court acknowledged Durham's response, but dismissed the appeal as frivolous. Durham then sought postconviction relief, forwarding wholly new claims of ineffective assistance of trial counsel. His request was denied by the district court, and Durham appeals. Upon our de novo review, Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999), we affirm.
If a defendant's direct appeal is dismissed following a contested rule 6.104 motion, he may raise new claims in a postconviction relief application without justifying his failure to raise those claims on appeal. Bugley v. State, 596 N.W.2d 893, 896 (Iowa 1999). We question whether Durham's limited response to the rule 6.104 motion in this case was sufficient to contest the proposed dismissal of his appeal. However, even if his response was adequate, and he was free to raise the new claims, denial of postconviction relief was still appropriate. To establish ineffective assistance of trial counsel, Durham must prove his attorney's performance fell below "an objective standard of reasonableness," and "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). On the record before us, he has failed to make this showing.
Durham's first complaint centers on a pretrial stipulation that excluded expert footprint analysis from evidence, and trial testimony from a responding officer that footprints he observed in the victims' residence matched the shoes Durham was wearing. Durham argues the officer's testimony violated the stipulation, and thus counsel was ineffective for failing to object. We cannot agree.
The district court set forth the stipulation as follows:
the expert testimony with regard to comparison of the photographs [of the kitchen floor footprints] with the shoes will not be allowed into evidence. However, should the defendant offer some evidence or argument that experts should have been used, then the State would be allowed to introduce that in rebuttal.
The testimony Durham complains of is a lay opinion based on firsthand observations, and does not appear to be within the scope of the stipulation. See State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998) (noting counsel not ineffective for failing to make meritless challenge).
Moreover, Durham cannot establish prejudice from admission of the officer's testimony. Although the testimony could have left the jury with a false impression of the officer's expertise, counsel elicited an admission that the officer was not a footprint identification expert. Nor can Durham demonstrate prejudice from counsel's failure to lodge a chain-of-custody objection to the admission of sports pins that belonged to the victims, and which were allegedly found on Durham at the time of his arrest. In each instance, the impact of the evidence now objected to pales in comparison to the remainder of the State's case.
Durham lived near the victims' home. His clothing and vehicle matched an eyewitness description of the burglary suspect. Soon after police responded to the victims' residence, dispatch alerted them to a "suspicious person" reportedly running through a yard a few houses away. Once police arrived at the new location they observed footprints in the snow, and followed them to a nearby garage. They found Durham inside, curled up in a ball against the garage wall. In his pocket police found a video game adapter belonging to the victims. Finally, Durham's vehicle was found parked near the victims' home, and contained a number of the victims' possessions, including a television, computer, silverware, jewelry boxes, and a leather coat.
Considering the entirety of the evidence in this case, Durham has not shown that objecting to the officer's testimony and the admission of the sports pins would have created a reasonable probability of a different result. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). His conviction and sentence must be affirmed.