Opinion
No. 2-517 / 01-0406
Filed September 25, 2002
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Applicant appeals from the district court's ruling denying his petition for postconviction relief. AFFIRMED.
Tiffany Koenig and Christopher Kragnes, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Jeffrey Noble, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
John Lee Harris appeals from the district court's ruling denying his petition for postconviction relief. He contends the district court (1) applied the wrong legal standard in considering his ineffective-assistance-of-counsel claims and erred in rejecting his claims, (2) erred in rejecting his renewed challenge to the admission of testimony at his original trial, and (3) erred in denying postconviction relief on his claims of newly-discovered evidence. Because we find no merit in any of his contentions, we affirm the district court.
I. BACKGROUND FACTS AND PROCEEDINGS.
In 1996, Harris was found guilty of first-degree murder by jury for the shooting death of Monte Williams and sentenced to life imprisonment. His conviction was affirmed by this court on direct appeal. Our supreme court affirmed on further review. State v. Harris, 589 N.W.2d 239 (Iowa 1999).
The facts of this case are found at State v. Harris, 589 N.W.2d 239 (Iowa 1999) and will not be repeated here except as necessary.
Harris filed a petition for postconviction relief, and subsequently amended it twice. He argued that his trial counsel was ineffective in various particulars, his appellate counsel was ineffective, and there existed evidence of material facts not previously presented and heard that required vacation of his conviction and sentence. Following an evidentiary hearing,the district court denied Harris's petition for postconviction relief on all grounds. Harris appeals.
II. POSTCONVICTION RELIEF CLAIMS.
Harris first claims that the trial court erred in dismissing his postconviction relief claims and in using an incorrect standard to review those claims. He contends the court evaluated whether he established his ineffective-assistance-of-trial-counsel claims by a preponderance of the evidence standard. He argues the proper test is "whether there was a reasonable probability that . . . the result of the proceeding would have been different if counsel would have been effective." He maintains that, taking all his allegations of ineffective assistance individually or as a whole, his trial counsel was ineffective.
A. Scope of review. We review the claims on postconviction relief for the correction of errors at law. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicant asserts claims of a constitutional nature, our review is de novo. Id. Thus, we review claims of ineffective assistance of counsel de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). In reviewing such claims de novo, we give weight to the lower court's findings concerning witness credibility. Iowa R. App. P. 6.14(6)( g); Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984).
B. Merits. Harris had to demonstrate both ineffective assistance and prejudice to prevail on his claims that trial counsel was ineffective. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). Both elements must be proven by a preponderance of the evidence. Id. To establish the first prong, Harris had to prove that his trial attorney performed below the standard demanded of a reasonably competent attorney. Id. Once ineffective assistance is proven, Harris had to establish that the error caused prejudice. Id. at 143. To sustain this burden, Harris was required to demonstrate "`that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).
In reviewing the trial court's ruling, we conclude that the court used the proper burden of proof (preponderance of the evidence) and the proper prejudice analysis (whether there is a reasonable probability the result would have been different if his trial counsel had performed competently). We find no merit in Harris's argument that the court somehow confused these standards.
On appeal, Harris does not challenge the postconviction court's rejection of claims against his appellate counsel. His appellate brief lists nine particular allegations of his trial counsel's ineffectiveness, but fails to argue or cite authority in support of each substantive allegation of ineffectiveness. As a result, we determine Harris has waived his substantive claims of ineffective assistance of trial counsel. Iowa R. App. P. 6.14(1)( c); State v. Cooley, 608 N.W.2d 9, 13 (Iowa 2000).
III. PHOTOGRAPH.
Harris contends the trial court erred by admitting into evidence expert testimony regarding a photograph of him holding a gun. The actual photograph was admitted into evidence but was not published to the jury. He asserts the evidence should not have been admitted pursuant to Iowa Rules of Evidence 5.401 and 5.403.
We conclude this claim is not properly before us. Harris raised this claim on direct appeal. Our supreme court disposed of this issue, concluding that the evidence was properly admitted. Harris, 589 N.W.2d at 243. Harris may not reassert a claim which was decided adversely on direct appeal. Iowa Code § 822.8 (1999); Jones v. Scurr, 316 N.W.2d 905, 910-11 (Iowa 1982).
IV. NEWLY-DISCOVERED EVIDENCE.
Harris generally contends he is entitled to a new trial because there is new evidence that another person, Eric McCuller, shot and killed Monte Williams in 1996. He called witnesses at the postconviction hearing who testified McCuller bragged about shooting the victim. Harris contends the district court erred in rejecting this evidence. He also asserts the court erred in finding Samuel Palmer's recantation was not credible and unlikely to change the verdict.
A. Scope of review. We apply an abuse of discretion standard when reviewing the postconviction court's ruling on newly-discovered evidence. See State v. Smith, 573 N.W.2d 14, 17 (Iowa 1997). An abuse of discretion occurs when a trial court exercises its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
B. Merits. Section 822.2(4) provides for a convicted defendant to apply for postconviction relief on the basis of "evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice. . . ." The proponent of the newly-discovered evidence must show: (1) that the evidence was discovered after the verdict; (2) that it could not have been discovered earlier in the exercise of due diligence; (3) that the evidence is material to the issues in the case and not merely cumulative or impeaching; and (4) that the evidence probably would have changed the result of the trial. Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998).
At the postconviction hearing, a number of Harris's long-time friends and associates claimed to have heard Eric McCuller admit he was the real shooter. These witnesses all waited four years to come forward and testify about what they knew. Harris argues these witnesses kept their silence for fear of reprisal. The State contends the testimony offered does not support vacation of Harris's conviction for several reasons. First, it is not newly-discovered evidence. Second, some of it is merely impeaching. Third, it is wholly unreliable and would not change the verdict if a new trial were granted. Upon careful review of the record, we agree with the State.
There was extensive testimony at the postconviction hearing that, at the time McCuller bragged about shooting the victim, Harris himself was present. Harris did not testify at trial because he lied to police and asserted an alibi for the evening at issue; however, at the postconviction hearing, he testified he heard McCuller say he needed to dispose of the murder weapon. This occurred prior to Harris's arrest for first-degree murder. Harris also testified he knew McCuller was the real shooter before his trial, but he did not tell his trial attorney. We agree with the trial court's conclusion that the evidence that McCuller was the real shooter was not discovered after the verdict, and it is not newly-discovered evidence.
The record before us on appeal reveals an experienced trial judge gave careful and thoughtful attention to all of the evidence Harris offered at the postconviction hearing. After doing so, he concluded the claims of McCuller's confessions were so unreliable that they would not likely change the result if a new trial were granted. In reaching this conclusion the trial court mentioned "the impeachable offenses of those claiming to have heard these confessions, the inexplicable delays in their reporting the statements, the inconsistencies in the witnesses' statements, the cavalier demeanor of the witnesses, and the witnesses' jailhouse contacts with the Petitioner." The postconviction court supported its conclusions with detailed findings on the credibility of the witnesses called by Harris. It concluded that it is far more likely that the witnesses' claims to have heard exculpatory evidence stemmed from "collusion with a goal of deception [rather] than the truth." We find substantial evidence in the record to support this conclusion.
Harris also relies on a recantation by Samuel Palmer in support of his request for a new trial. At the postconviction relief hearing, Palmer testified that, if granted immunity, he would say today that someone else was the shooter. Palmer told police officers within twenty-four hours after the murder that Harris fired the shots at the victim. Palmer gave a sworn statement that Harris was the shooter. Palmer said in a deposition that Harris was the shooter. Palmer testified at trial that Harris was the shooter.
The postconviction court is not required to believe a recantation and has wide discretion to view the matter in its entirety to determine if a defendant had a fair criminal trial and if a new trial would likely produce a different result. Adcock v. State, 528 N.W.2d 645, 647 (Iowa Ct. App. 1994). The reviewing court will not interfere unless there is a clear abuse of discretion. Id. In addition, a witness's recantation of testimony is looked upon with the utmost suspicion and does not necessarily entitle the defendant to a new trial. State v. Frank, 298 N.W.2d 324, 328-29 (Iowa 1980). In the present case, the postconviction court determined that Palmer's recantation was not credible and would not have changed the result if a new trial was granted. We find there is substantial evidence in the record to support the district court's conclusion on this issue. See Carroll v. State, 466 N.W.2d 269, 271 (Iowa Ct. App. 1990).
Even without the recanted testimony, the other evidence presented at Harris's trial was sufficient to support his first-degree murder conviction. Eyewitnesses observed Harris shooting the victim. He had possession of a gun prior to the murder of Monte Williams similar to that used in this shooting. Without the probability of a different result, a new trial is not warranted.
V. CONCLUSION.
We affirm the district court's ruling denying Harris's postconviction relief.