Opinion
No. 1-928 / 00-1259.
Filed March 27, 2002.
Appeal from the Iowa District Court for Linn County, PATRICK R. GRADY, Judge.
Maurice T. Moore appeals from the district court's denial of his postconviction relief application. AFFIRMED.
David Thinnes of Thinnes Liesveld, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Richard Bennett, Assistant Attorney General, Denver D. Dillard, County Attorney and Todd D. Tripp, Assistant County Attorney for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Maurice T. Moore appeals from the district court's denial of his postconviction relief application. He contends the court erred in finding his trial counsel was not constitutionally ineffective for failing to properly subpoena several witnesses to appear and testify at trial. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Maurice Moore traveled from Waterloo to Cedar Rapids with Dante Hoosman. Their girlfriends, Topaz Santora and Monique Taylor, also traveled to Cedar Rapids but in a separate car. In a written statement to the police Moore stated he and Hoosman were traveling to Cedar Rapids to purchase powder cocaine. Their friend Michael Crowley was allegedly going to introduce them to some people in Cedar Rapids from whom they could buy the cocaine. Through Crowley, Moore allegedly met Susan Zieser-Perkins and her boyfriend William Conley Johnson ("the victims") and provided them with $2000 to purchase cocaine at the Budget Inn in Cedar Rapids. Johnson was supposed to obtain the cocaine and return to the motel room. Moore alleged that when Johnson failed to return Hoosman and Moore went to the victims' home to get their money back. The victims denied any drug deal and contended Hoosman and Moore came into their home with a sawed off shotgun and robbed them of their own cash. Moore has always alleged there was no weapon involved and that he and Hoosman were merely trying to retrieve their money.
Hereinafter referred to collectively as "the victims" for purposes of brevity and convenience.
Moore was charged jointly with Hoosman with robbery in the first degree. Moore's case was tried to a jury and the jury found him guilty as charged. He was sentenced to a term of incarceration not to exceed twenty-five years, with a minimum sentence not to exceed five years. Moore filed a direct appeal of his conviction and the Iowa Court of Appeals affirmed the conviction. Moore made no allegations of ineffective assistance of trial counsel in his direct appeal. Moore filed a pro se postconviction relief application on September 16, 1998 and an amended application was filed by Moore's appointed counsel on October 13, 1999. In his application Moore argued he should receive a new trial due to several alleged grounds of ineffective assistance of trial counsel. Both his initial and amended applications made only vague and general assertions that appellate counsel had been ineffective. The majority of Moore's complaints had to do with trial counsel's failure to fully investigate Moore's complaints and failure to compel the appearance at trial of several witnesses.
Due to an administrative oversight Moore and Hoosman were tried separately.
Trial on the postconviction relief application was held and the trial court denied Moore's claims in an order dated July 24, 2000. The trial court ruled on the merits of Moore's ineffective assistance claims despite its finding Moore had made no showing as to why his claims of ineffective assistance of trial counsel had not been raised on direct appeal and had thus failed to preserve error on such claims. The court concluded that the evidence Moore believed should properly have been put in front of the jury had he received competent representation "failed to reach the standard of prejudice required" to grant him relief. Moore now appeals from the court's denial of his application for postconviction relief.
Additional testimony pursuant to limited remand was taken on the application on September 15, 2000 and the court confirmed its previous denial of postconviction relief on September 18, 2000.
II. STANDARD OF REVIEW
We typically review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicant asserts a claim of constitutional nature, such as ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Ledezma, 626 N.W.2d at 141; Osborn, 573 N.W.2d at 920.
III. PRESERVATION OF ERROR
The State correctly notes Moore did not raise any claim of ineffective assistance of trial counsel on direct appeal and therefore such claims were raised for the first time in the postconviction proceedings. Generally, a claim not raised on direct appeal cannot be raised in a postconviction relief proceeding unless the applicant can demonstrate a sufficient cause or reason for not properly raising the issue previously. Iowa Code § 822.8 (1997); Ledezma, 626 N.W.2d at 141; Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). The applicant must also prove he was actually prejudiced by the alleged error. Ledezma, 626 N.W.2d at 141; Berryhill, 603 N.W.2d at 245.
Our supreme court has previously found ineffective assistance of appellate counsel to constitute a sufficient reason for failing to raise the issue of ineffective assistance of trial counsel on direct appeal. Ledezma, 626 N.W.2d at 141. We utilize the same two-part test to determine ineffective assistance of appellate counsel that we do to judge ineffective assistance of trial counsel. Id. "To prove appellate counsel's deficient performance resulted in prejudice, the applicant must show his ineffective assistance of trial counsel claim would have prevailed if it had been raised on direct appeal." Id. Therefore, before we can determine whether error has been preserved, we must first analyze the merits of Moore's claims of ineffective assistance of trial counsel. Id. at 141-42. If we determine Moore has not established a sufficient ineffective assistance claim against his trial counsel, we need not address the ineffective assistance of appellate counsel claim. Id. at 145.
The State also argues Moore failed to sufficiently raise a claim of ineffective assistance of appellate counsel in his postconviction relief application thereby precluding him from making a claim of ineffective assistance of trial counsel for the first time on appeal. However, Moore's amended application appears to make at least a general claim of ineffective assistance of appellate counsel. Assuming without deciding that his general allegation was sufficient to preserve error, and for purposes of judicial economy, we will address Moore's allegations of ineffectiveness of trial counsel on their merits.
IV. MERITS
A defendant is entitled to the assistance of counsel under the Sixth Amendment of the United States Constitution and Article 1, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). To establish an ineffective assistance of counsel claim, the defendant must show "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma, 626 N.W.2d at 145; State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). We may affirm on appeal if either element is lacking. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996).
We need not decide whether counsel's performance is deficient before examining the prejudice component. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In order to prove prejudice the defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
"Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972)). A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987). To warrant a finding of ineffective assistance of counsel, the circumstances must include an affirmative factual basis demonstrating counsel's inadequacy of representation. Aldape, 307 N.W.2d at 42.
Moore alleges his trial counsel was ineffective for failing to subpoena several potential defense witnesses and/or compel their presence at trial. Specifically, Moore argues he received ineffective assistance of trial counsel because his attorney failed to: (1) properly subpoena Michael Crowley as an exculpatory witness; (2) make constitutionally adequate efforts to obtain Monique Taylor's presence and testimony at trial; (3) subpoena Topaz Santora; (4) call parole officer Sam Black as a witness at trial; and (5) take testimony at trial from Troy Perkins. We address the issues with respect to each witness separately.
A. Michael Crowley
Moore contends his trial counsel breached an essential duty by failing to subpoena Crowley and compel him to testify at trial as an exculpatory witness. Moore alleges Crowley would have testified that he introduced Moore and his co-defendant Hoosman to the victims, was the go-between in a drug deal between Moore and the victims, and that this was the only incident which took place on the day in question. Furthermore, he asserts Crowley would have testified as to the victims' involvement in drug trafficking and their dishonest characters.
Crowley's partial deposition was offered at the criminal trial but was not accepted by the court.
The trial court stated it was "hard-pressed to conclude that trial counsel made constitutionally adequate efforts to compel Crowley['s] . . . presence at trial." However, the trial court also found that it could only speculate as to what Crowley would have testified to, whether he would have asserted his privilege against self-incrimination, or if his testimony would have been at all helpful to Moore if subjected to cross-examination.
Crowley was scheduled to testify at the postconviction relief trial but he died unexpectedly a few days before the hearing.
Assuming without deciding that trial counsel did breach an essential duty in failing to compel Crowley's presence at trial, we cannot find that but for counsel's error the outcome of the proceeding would have been different. Moore was thus not prejudiced by this assumed breach. Any testimony Crowley would have offered regarding the victims' criminal backgrounds, and thus impliedly their dishonest character, would have only been cumulative to the testimony given by the victims themselves regarding their criminal backgrounds. Failure to call a witness who would have offered only cumulative evidence is not ordinarily sufficiently prejudicial to support a finding of ineffective assistance. Taylor, 352 N.W.2d at 687; Schrier v. State, 347 N.W.2d 657, 664 (Iowa 1984). Furthermore, any evidence that Crowley set up the drug deal between Moore and the alleged victims would not rule out a later robbery at gunpoint by Moore which Crowley did not witness. Finally, as the trial court pointed out, because Crowley died before the postconviction proceeding, any testimony he may or may not have given when subject to cross-examination is purely speculative and thus any prejudice from the failure to call him as a witness is equally speculative. Just as we will not predicate error on speculation, see State v. Belt, 505 N.W.2d 182, 185 (Iowa 1993), we will not predicate a finding of ineffective assistance on speculation.
B. Monique Taylor and Topaz Santora
Moore argues trial counsel failed to perform an essential duty by not compelling the testimony of Taylor and Santora, the girlfriends of Hoosman and Moore respectively, who had also traveled from Waterloo to Cedar Rapids, met them, and had given them a ride back to Waterloo. Moore asserts both Taylor and Santora would have testified at trial, as they did at the postconviction relief hearing, that Moore and Hoosman rode back to Waterloo with them and they did not recall either Moore or Hoosman having any packages or bags the might hold a weapon. As with Crowley, the trial court found it was difficult to believe trial counsel had made constitutionally adequate efforts to compel Taylor and Santora's presence at trial. However, the court went on to find their testimony was merely impeaching of the victims' testimony and did not rule out the possibility of a robbery at gunpoint as Moore and Hoosman could have left the gun somewhere else after the robbery unbeknownst to Taylor or Santora. The court concluded testimony that Taylor and Santora did not see a weapon and did not recall any packages or bags that might hold a weapon was not of such weight or nature as to overcome the victims' testimony and it did not undermine the court's confidence in the outcome of the proceedings. We agree with the district court's conclusions regarding this evidence.
Assuming without deciding that trial counsel breached a duty in failing to compel the presence of Taylor and Santora at trial, we conclude there is not a reasonable probability their testimony would have changed the outcome of the proceeding. Even if their testimony was believed by the jury, it did not directly contradict the two victims' strong and clear testimony that Moore and Hoosman had robbed them with a gun. We conclude, as did the trial court, that any breach by trial counsel in failing to compel the testimony of Taylor and Santora does not undermine confidence in the outcome of the trial and thus was not prejudicial to Moore.
C. Sam Black
Moore next alleges his trial counsel was ineffective for failing to call Sam Black as a witness at trial. Sam Black is the parole officer of William Conley Johnson, one of the victims. Moore asserts Black could have testified as to Johnson's reputation for truthfulness and honesty, his extensive criminal record, and that in his opinion what transpired was a drug deal gone bad. As set forth above, evidence of the victims' criminal backgrounds and records was put before the jury through the testimony of the victims themselves. Similar or identical testimony by Black would have been merely cumulative and thus trial counsel's failure to elicit this testimony from Black was not prejudicial to Moore. Schrier, 347 N.W.2d at 664.
In addition, Black testified at the postconviction proceeding that he didn't know whether a robbery had actually taken place, his opinion that what had occurred on the day in question was a drug deal gone bad was based entirely upon information he had received from the individuals involved in the incident, and his opinion was nothing more than speculation. We agree with the trial court that it is highly questionable whether Black's opinion would have been admissible, and even if it was admitted it was clearly mere speculation on Black's part. Furthermore, even if the jury believed that the incident involved a drug deal gone bad, the incident might well have also involved a robbery as a means of getting money back. We conclude trial counsel's failure to call Black to testify did not prejudice Moore in any way as his testimony would have been merely cumulative and speculative, and there is not a reasonable probability it would have changed the outcome of the proceeding. See Schrier, 347 N.W.2d at 664; Belt, 505 N.W.2d at 185.
D. Troy Perkins
Finally, Moore alleges his trial counsel was ineffective for failing to have Troy Perkins testify at trial. In complaining of the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job, for example, should have called a witness. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citing State v. White, 337 N.W.2d 517, 519 (Iowa 1983)). An applicant must state specific ways in which counsel's performance was inadequate and how competent representation probably would have changed the outcome. Id. Moore does not allege what Perkins's testimony would have been or how it would have detracted from the State's case or supported his defense. This claim is thus too general in nature to allow us to address it or preserve it for a possible second postconviction proceeding. Id.
V. CONCLUSION
For all of the reasons set forth above, we conclude Moore was not prejudiced by his trial counsel's failure to compel any of the above referenced witnesses to testify at trial. Assuming without deciding that trial counsel breached an essential duty in failing to compel the presence of one or more of these witnesses at trial, we cannot find that but for this breach there is a reasonable probability the outcome of the proceeding would have been different. We find Moore was not denied his constitutional right to effective assistance of counsel. We have considered all of the grounds of ineffective assistance of trial counsel alleged on appeal by Moore, whether or not specifically discussed herein, and find them to be without merit. Because we have determined Moore has failed to prove he received ineffective assistance from his trial counsel, we need not address his ineffective assistance of appellate counsel claims. Ledezma, 626 N.W.2d at 145. Accordingly, we affirm the district court's dismissal of Moore's postconviction relief application.
AFFIRMED.