Opinion
No. 4-802 / 04-0205
Filed January 13, 2005
Appeal from the Iowa District Court for Johnson County, David M. Remley, Judge.
An applicant appeals from the denial of his request for postconviction relief. AFFIRMED.
Cory Goldensoph, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, J. Patrick White, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Wesley Moore appeals following the district court's denial of his application for postconviction relief. Upon review we affirm the district court.
I. Background Facts and Proceedings.
In March 2000 Wesley Moore and Shane Weese were charged with attempt to commit murder. The charges stemmed from a May 1999 incident in the apartment of the alleged victim, Michael Krohn. Krohn asserted that he was physically attacked and choked by Moore, and then strangled with one of his own towels. At Moore's trial Krohn testified in detail to the events of the 1999 incident. Moore did not testify. The jury found Moore guilty of attempt to commit murder, in violation of Iowa Code sections 703.1 and 707.11 (1999).
On appeal to this court, Moore's conviction was upheld, and several ineffective assistance of counsel claims were preserved for possible postconviction proceedings. See State v. Moore, No. 00-1729 (Iowa Ct.App. 2002). Moore then filed an application for postconviction relief, raising ineffective assistance of counsel claims, and a claim of newly-discovered evidence. The district court rejected all of Moore's claims, and denied the application. Moore appeals.
II. Scope of Review.
We review Moore's newly-discovered evidence claim for the correction of errors at law. Whitsel v. State, 525 N.W.2d 860, 862 (Iowa 1994). Moore's ineffective assistance of counsel claims, which raise constitutional issues, are subject to a de novo review. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
III. Newly-Discovered Evidence.
The crux of Moore's newly-discovered evidence claim is that Weese can now offer testimony which not only contradicts the testimony of and thus impacts on Krohn's credibility, but tends to show that Moore did not have the specific intent to kill Krohn. See State v. Sinclair, 622 N.W.2d 772, 779 (Iowa Ct.App. 2000) (noting specific intent to cause death of victim is an element of attempt to commit murder). In order to succeed on this claim Moore was required to establish that the evidence (1) was discovered after the verdict, (2) could not have been earlier discovered in the exercise of due diligence, (3) was material to the issues in the case and not merely cumulative or impeaching, and (4) probably would have changed the results of the trial. Harrington v. State, 659 N.W.2d 509, 516 (Iowa 2003).
Moore asserts Weese would testify that he and Moore had never discussed attacking Krohn, that Moore had ingested a large quantity of drugs and alcohol prior to the attack, and that after the attack Krohn was conscious and mobile. However, Weese did not himself testify at the postconviction proceeding. The content of any possible testimony was elicited from Weese's attorney.
In rejecting Moore's claim of newly-discovered evidence, the district court concluded that, even if Weese had testified at Moore's trial, it probably would not have changed the outcome of the proceedings. While we agree with much of the district court's analysis and result on this point, there is another even more compelling reason to deny Moore's claim.
It is well settled that evidence known to a defendant during trial, but unavailable to the defendant because the witness has invoked his Fifth Amendment privilege against self incrimination, "may not be considered newly discovered evidence so as to warrant the grant of a new trial." Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991); see also U.S. Const. amend. V. The record demonstrates at least the "general nature" of Weese's testimony was known to Moore at the time of trial, see Jones, 479 N.W.2d at 274, but that Weese's attorney would not allow him to testify, as Weese had not yet been sentenced and did not have a binding plea agreement with the State. This refusal to testify was the functional equivalent of Weese invoking his Fifth Amendment privilege against self incrimination. The district court did not err in denying Moore's claim of newly-discovered evidence. See DeVoss v. State, 648 N.W.2d 56, 61-62 (Iowa 2002) (stating that appellate courts may affirm the district court on any ground appearing in the record, provided the ground was raised before the district court). IV. Ineffective Assistance of Counsel.
Moore himself correctly notes that "trial counsel had no duty to call Weese as a witness, knowing that he would assert his Fifth Amendment privilege against self incrimination."
The State notes it did not expressly raise the Fifth Amendment argument before the district court, and questions whether, under DeVoss, it has preserved error. DeVoss holds that appellate courts will not consider a non-evidentiary issue on appeal unless that issue has been raised before the district court, as the court and the opposing party must have an opportunity to address the issue. See DeVoss, 648 N.W.2d at 63. Here, the question of whether Weese's testimony was in fact newly-discovered evidence was by necessity before the district court, as it was Moore's burden to prove the evidence was neither discovered nor discoverable in the exercise of due diligence prior to the verdict. Harrington, 659 N.W.2d at 516.
Moore asserts that his trial counsel was ineffective in three particulars, all of which, according to Moore, would have demonstrated to the jury that he did not have the specific intent to kill Krohn. To establish ineffective assistance of trial counsel, Moore must prove that his attorney's performance fell below "an objective standard of reasonableness" and that "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). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
We turn first to the claim that trial counsel was ineffective because he did not call Moore's treating psychiatrist, Dr. Richard Michaelson, to help establish a diminished capacity defense. See Veverka v. Cash, 318 N.W.2d 447, 449 (Iowa 1982) ("In Iowa, proof of diminished mental capacity . . . is admissible on the issue of the defendant's ability to form a specific intent. . . ."). At the postconviction hearing Dr. Michaelson testified that, based on Moore's description of the amount of alcohol and prescription sedative he had consumed prior to the altercation with Krohn, Moore "could certainly be disinhibited [in his impulse control]," and that if Moore had experienced such a disinhibited "aggressive outburst" that he was not acting with the specific intent to commit murder. However, Dr. Michealson also testified that it was not possible for anyone to "say for sure" that Moore had in fact experienced such an outburst.
The district court concluded that the evidence at trial revealed, not one spontaneous act, but "a series of separate and distinct acts" that included "orally direct[ing] Weese to commit certain acts," and that this evidence supported a conclusion Moore was capable of forming the specific intent to kill Krohn. The court further concluded that, in light of the evidence, Dr. Michealson's testimony did not create a reasonable probability of a different outcome.
The court noted the following testimony of the victim. Before the attack Moore informed Krohn, "You've done it now. Now you're going to die." When Krohn tried to run toward the telephone, Moore hit Krohn in the head and, when Krohn tried to get up, Moore hit Krohn again. Moore then began strangling Krohn with both hands, telling Weese to rip the phone out of the wall, and take a knife and hide it or put it where Krohn could not access it. Krohn lost consciousness, and when he regained consciousness heard Moore say, "Tighten that towel around his neck." Krohn was then strangled with a towel, and lost consciousness again. When he regained consciousness a second time, Moore and Weese were no longer in the apartment, and Krohn went to a neighbor's seeking help. Krohn later discovered a number of items that could potentially implicate Moore and Weese were missing from his apartment, including towels, a bottle of whiskey, a brush, a red plastic glass, the telephone and telephone cord, a knife, and a lighter and ashtray.
Once again, while we agree with the district court on this point, we conclude there is an additional basis for rejecting Moore's claim. Based upon the record, Moore has not established that counsel's performance fell below an objective standard of reasonableness. While trial counsel did not solicit an opinion from Dr. Michealson, he did hire an expert with substantial experience testifying in trials, Dr. Dan Rogers, to assess the possibility of raising a diminished capacity defense. After reviewing various documents, records, and reports and interviewing Moore, Dr. Rogers opined that while Moore had experienced poor impulse control, the lack of control did not rise to the level diminished capacity. Trial counsel did not pursue the defense any further because, based on Dr. Rogers's report, he didn't think it would "be of much value," and because Moore indicated "he wasn't terribly excited about presenting that kind of defense in the first place." This decision was a reasonable professional judgment made after an adequate investigation, and will not be second-guessed by this court. See Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001); State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct.App. 1998).
Moore's other ineffective assistance of counsel claims must also fail. Moore complains that counsel did not move to exclude his past criminal history, or conduct a practice testimony session with him. He contends, that as a result, he did not feel prepared to, and thus did not, testify in his own defense. Moore contends that if he had testified, he could have informed the jury of how much alcohol he had consumed, and that he had been an EMT and thus knew Krohn was not dead when he and Weese left the scene of the attack. Moore also asserts trial counsel was ineffective for failing to call a paramedic to testify to Krohn's condition following the altercation with Moore and Weese, as evidence that Krohn was conscious, alert, and mobile following the attack would similarly indicate that Krohn was not dead when Moore and Weese left Krohn's apartment. Moore contends that all this evidence demonstrates the lack of specific intent to cause Krohn's death.
While we are not convinced that Moore has demonstrated counsel's performance fell below an objective standard of reasonableness, we agree with the district court that Moore did not establish the requisite prejudice as to either claim. In light of the numerous indicators that Moore was capable of forming the specific intent to kill Krohn, Moore's self-serving assertion about his own level of intoxication would not have created a reasonable probability that the jury would have found in Moore's favor on the specific intent element. We reach the same conclusion regarding evidence that would tend to show Moore knew Krohn was alive when Moore and Weese left the apartment.
Even if we assume that Moore did not have the specific intent to kill Krohn when he left the apartment, the record is replete with evidence from which the jury could have concluded that, at the time of the attack, Moore did possess the specific intent to cause Krohn's death. This is all that is required to support a finding of the specific intent to kill. See Sinclair, 622 N.W.2d at 779. The district court did not err in rejecting Moore's ineffective assistance of counsel claims.