Opinion
No. 4-127 / 03-0946
Filed March 24, 2004
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers and Mark D. Cleve, Judges.
Anthony Powell appeals the district court's denial of his postconviction relief application. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, William Davis, County Attorney, and Joseph Grubisich, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Anthony Powell appeals the district court's denial of his postconviction relief (PCR) application. He contends all of his previous attorneys provided ineffective assistance, entitling him to reversal of his second-degree robbery conviction and a new trial. We affirm.
Background Facts and Proceedings
Anthony Powell and Leah Hanson asked Robert Ware to return approximately $150 worth of hardware to a home improvement store. Ware did so, and advised Powell and Hanson that the store would be sending him a refund check. Angered that Ware had not returned with cash, Powell punched Ware and threatened to have others beat him. Powell then searched Ware for money but found little. Hanson suggested Ware retrieve money from an ATM. This effort was unsuccessful. She then suggested he write a check. Ware informed her that his checkbook was at his house. The three drove there. Once at his house, Ware managed to get out of the car and the other two left.
A jury found Powell guilty of second-degree robbery and false imprisonment. Our court affirmed his conviction on direct appeal. Powell then filed a postconviction relief application which the district court denied. Powell appealed this denial, contending prior counsel were ineffective in seven respects.
Ineffective Assistance of Counsel
To establish ineffectiveness, Powell must show (1) counsel breached an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Our review of the record is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
I.
Powell contends the district court erred in admitting hearsay testimony from a Davenport police officer, and prior counsel rendered ineffective assistance in failing to raise the issue. The challenged testimony related to Ware's statement to the officer. Powell contends "[t]he statements were offered to prove the truth of the matters asserted, in hopes that, by repetition the story would become more credible." Assuming without deciding that the testimony was inadmissible hearsay, we conclude the cumulative nature of the testimony did not render it unfairly prejudicial. See Iowa R. Evid. 5.403; State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct.App. 1999) (stating when evidence is merely cumulative, it cannot be said to injuriously affect complaining party).
Specific portions of this testimony were challenged on direct appeal. Our court rejected the challenge. Here, we deal generally with the officer's account of Ware's statement to him.
Although trial counsel objected to portions of the testimony on hearsay grounds, he did not raise the precise objection raised here, that admission of the testimony was prejudicial because it enhanced Ware's credibility.
Ware had already provided the jury with a detailed rendition of what happened to him. Although the officer's testimony corroborated Ware's, Powell's contradictory testimony was also before the jury. Therefore, the jury had sufficient information to know who Ware was and to assess his credibility. See State v. Havemann, 516 N.W.2d 26, 28-29 (Iowa Ct.App. 1994). For this reason, we conclude the officer's testimony was not unfairly prejudicial under Iowa Rule of Evidence 5.403 and trial counsel, appellate counsel, and PCR counsel breached no essential duty in failing to raise this argument.
II.
Powell claims the trial court did not apply the correct standard in reviewing his motion for new trial. See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998) (adopting weight of evidence standard for review of certain new trial motions). He contends trial, appellate, and PCR counsel were ineffective in failing to raise this issue. The State asks us to reject this argument on the ground that the district court's ruling did not explicitly make reference to the obsolete standard. In the alternative, the State argues that "[s]uch a claim would not have been successful on appeal because it would have required a showing that had the district court used the correct standard, there was a reasonable probability the result of the proceedings would have been different." We agree with the State's alternate argument.
"[W]eight of the evidence" refers to "`a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.'" State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (quoting Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 658 (1982)).
The jury was instructed that the State would have to prove the following elements of second-degree robbery:
1. On or about the 3rd-4th day of March, the defendant, or one he aided and abetted, had the specific intent to commit a theft.
2. In carrying out his intention or to assist him in escaping from the scene, with or without the stolen property, the defendant, or one he aided and abetted:
a. Committed an assault on Robert Ware or
b. Threatened Robert Ware with or purposely put Robert Ware in fear of immediate serious injury.
Powell's argument that he would have been granted a new trial under the weight-of-the-evidence standard focuses on the second element. He contends:
[T]he proof of robbery was extremely weak and Robert Ware was, in many respects, an unsympathetic and not credible witness. He supposedly cowered in the back seat while being threatened, yet when he had succeeded in climbing out of the car he was unafraid to confront Applicant, who then did nothing. The district court could well have found, based upon this record, that the weight of the evidence surrounding this supposed falling out of thieves, did not support a conviction for robbery.
We cannot discern a reasonable probability that the district court would have found Powell's version of events regarding the second robbery element more credible than Ware's. Ware testified that, as Leah Hanson drove to his house, his level of fear was "high." He stated he jumped over the front seat, grabbed the car keys and threw them out of the window. Powell got out of the car to search for them. Ware also attempted to exit but Hanson grabbed his pony tail. He nevertheless "just" got out and saw Powell standing towards the back of the car. Ware yelled to his daughter to call the police. By this time, Hanson had discovered that the ignition key was still in the car and was yelling at Powell to get in.
Powell did not dispute key aspects of Ware's testimony. While he stated it was Ware's idea to retrieve a checkbook from his house, he admitted Ware yelled "[c]all the police," an admission that casts doubt on his claim that Ware's attempts to retrieve money were voluntary. Powell also admitted Hanson grabbed Ware's hair and he stated he hit Ware in the face after Ware was out of the car.
As there is not a reasonable probability that the district court would have granted Powell's motion for new trial under the Ellis standard, prior counsel were not ineffective in failing to raise this issue.
III.
Powell contends trial counsel was ineffective in failing to object to evidence of his connection to a drug dealer on the ground that it was unfairly prejudicial. Iowa R. Evid. 5.403. The testimony first came in during the prosecutor's questioning of Ware. Ware was asked,
Q. Okay. Did he make any other threats to you? He made the threat of taking you down to the east end and have his boys beat you. Was there anything else that sticks out in your mind? A. Yeah, he threatened to take me to his drug dealer because he said the money was actually his."
On direct appeal, our court expressly addressed this issue, holding that the evidence was not unduly prejudicial because it was "part of the crime." We distinguished State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994), a case now cited by Powell, stating that in Liggins, the reference to drug dealing "was not an inseparable part of the murder." This part of our earlier opinion is dispositive. Iowa Code § 822.8 (2001), Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998) (stating postconviction relief proceedings not means for litigating issues already properly presented and decided by court).
IV.
Powell claims trial counsel was ineffective in failing to object to Leah Hanson's testimony that the merchandise to be returned to Lowe's was stolen. He maintains admission of this prior bad act was unfairly prejudicial. See Iowa R. Evid. 5.403.
The testimony now being challenged was as follows:
Q. Were these items that had been purchased or stolen? A. Stolen. . . .
Q. So, essentially, at this point the statement that you are standing on is that Bob Ware was approached and asked to return stolen merchandise to Lowe's and you asked him because you had no ID. Is that correct? A. Yep.
We conclude neither appellate nor PCR counsel breached an essential duty in failing to raise this issue. First, our court held on direct appeal that evidence was "directly relevant to issues of intent to commit a theft." Second, while Hanson was the only individual who confirmed that the goods were stolen, by the time she testified, the possibly stolen nature of the articles was "made overwhelmingly clear in the record," diminishing its prejudicial effect. State v. Trudo, 253 N.W.2d 101, 108 (Iowa 1977). For example, Ware was asked whether he "had any information about whether or not these items had been legitimately purchased or stolen?" He answered, "no." Powell was repeatedly asked whether the recruitment of Ware involved a scheme to return stolen goods. He also answered no. For these reasons, trial counsel, appellate counsel, and PCR counsel were not ineffective in failing to raise this issue.
V.
Powell next contends that trial counsel should have cross-examined Hanson in light of her statement that she did not "want to answer any more questions." Powell claims that if she had declined to answer questions on cross-examination, he could have established a violation of his constitutional right to confront witnesses. See U.S. Const. amend. VI. We are not persuaded.
Confrontation is primarily guaranteed for the purpose of cross-examination. State v. Yaw, 398 N.W.2d 803, 806 (Iowa 1987). The only portion of Hanson's testimony Powell challenges is her statement that the merchandise was stolen. Hanson did not state that Powell knew the goods were stolen, nor did she comment on whether Powell was involved in the theft of these goods. Indeed, when the prosecutor asked Hanson who was involved in the theft of those items, the district court ordered both counsel to approach and held an off-the-record discussion. Following the discussion, the prosecutor did not pursue this question. Under these circumstances, defense counsel would have been foolhardy to risk eliciting this information on cross-examination or to open the door to redirect testimony on this question. We conclude trial counsel breached no essential duty in failing to cross-examine Hanson, and remaining counsel were not ineffective in failing to raise this issue.
VI.
Powell contends trial counsel should have requested an instruction "informing the jury of the deep seated suspicions surrounding accomplice testimony." He claims Leah Hanson was not only his accomplice in the robbery of Ware but was Ware's accomplice in "any scheme to defraud Lowe's by the return of the merchandise." We will focus only on Powell's acts against Ware.
Assuming without deciding that Hanson was an accomplice to Powell's acts, we agree her testimony needed to be corroborated. State v. Peterson, 663 N.W.2d 417, 434 (Iowa 2003). "The requirement of corroborative evidence is met `if it can fairly be said the accomplice is corroborated in some material fact tending to connect the defendant with the commission of the crime.'" Id. citing State v. Ware, 338 N.W.2d 707, 710 (Iowa 1983). While no witness corroborated Hanson's testimony that the items returned to Lowe's were stolen, Ware confirmed other portions of her testimony concerning her request of Ware to return the goods. This corroboration was sufficient. See State v. Taylor, 557 N.W.2d 523, 528 (Iowa 1996) (stating corroborative evidence need not confirm "every detail" of accomplice's testimony). Accordingly, Powell cannot establish a reasonable probability that the outcome would have been different had the court given a corroboration instruction.
VII.
Finally, Powell asserts trial counsel should have objected to the trial court's failure to use the correct standard in ruling on his new trial motion. We resolved this issue against him in Part II.
We affirm the district court's denial of Powell's application for postconviction relief.