Opinion
22-1373
10-25-2023
Gary Dickey of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines, for appellant. Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee State.
Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.
James Shorter appeals the denial of his application for postconviction relief. AFFIRMED.
Gary Dickey of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee State.
Heard by Greer, P.J., and Schumacher and Ahlers, JJ.
GREER, PRESIDING JUDGE.
James Shorter appeals the denial of his application for postconviction relief (PCR). Pointing to his trial counsels' failure to object or move for mistrial when an eye-witness made an in-court identification of Shorter which was not previously disclosed in the minutes of testimony, he argues that the PCR court wrongly concluded trial counsel did not fail to perform an essential duty and that Shorter was not prejudiced by admission of the improper testimony. With those alleged errors before us, Shorter maintains these are grounds for setting aside his conviction for second-degree murder and granting him a new trial on ineffective-assistance-of-counsel grounds. On our review, because we find that Shorter failed to demonstrate prejudice, we affirm the PCR court's denial of his application for PCR.
I. Background Facts and Prior Proceedings.
This case is the latest in a series of cases arising from an August 2013 group assault implicating Yarvon Russell, Kent Tyler III, and Shorter in the death of Richard Daughenbaugh. We draw on the factual summary found in Shorter's direct appeal:
See generally State v. Russell, No. 14-1242, 2016 WL 3271895 (Iowa Ct. App. June 15, 2016) (Russell I), vacated by State v. Russell, 893 N.W.2d 307 (Iowa 2017) (Russell II) (affirming Russell's conviction on direct appeal); see Russell v. State, No. 21-0974, 2022 WL 17481880 (Iowa Ct. App. Dec. 7, 2022) (Russell III) (denying relief through PCR proceedings).
See generally State v. Tyler, No. 14-0256, 2015 WL 1849399 (Iowa Ct. App. Apr. 22, 2015), vacated by State v. Tyler, 873 N.W.2d 741 (Iowa 2016) (remanding Tyler's case for a new trial on direct appeal).
See generally State v. Shorter, No. 14-1239, 2016 WL 3272291 (Iowa Ct. App. June 15, 2016) (Shorter I), vacated by State v. Shorter, 893 N.W.2d 65 (Iowa 2017) (Shorter II) (affirming Shorter's conviction on direct appeal).
A fourth member of the group, Leprese Williams, was charged with first-degree murder and acquitted at trial. See Russell II, 893 N.W.2d at 309. Williams was tried jointly with Shorter and Russell. Id.
The State offered evidence at Shorter's trial which showed that on the evening of August 24, 2013, a group of teenagers and young adults began drinking and partying in a parking lot at the intersection of Second and Center Street near the Wells Fargo Arena and the Des Moines River. Witnesses estimated the size of the group was between thirty to fifty people.
Daughenbaugh arrived at the location and parked in the parking lot. He appeared drunk when he arrived. He approached the group and began participating in drinking and dancing.
A short time after Daughenbaugh arrived, Raymond Shorter, a cousin of the defendant here, testified that Tyler struck Daughenbaugh, declaring, "Don't touch me" or "Don't fucking touch me." Daughenbaugh fell to the ground. At the time of the assault, Monica Perkins was in a parked car in the vicinity. Perkins testified that after Daughenbaugh fell to the ground, a group assembled around Daughenbaugh and jumped and stomped on his face. Perkins exited her vehicle and attempted to protect Daughenbaugh by lying across his body.
When the group appeared to be about to attack Perkins, her boyfriend, Isaiah Berry, attempted to intervene. He was assaulted by the group and suffered minor injuries. While the group was assaulting Berry, Perkins was able to get off Daughenbaugh's body and call 911. Two young women wrestled the phone from Perkins and threw it toward the river. About two or three minutes after Perkins's 911 phone call, Des Moines police arrived at the scene.
Perkins promptly took the police to Daughenbaugh. He moved slightly but did not answer questions. Paramedics soon arrived and Daughenbaugh was taken to a Des Moines hospital. Daughenbaugh died on the morning of August 25. At trial, the medical examiner testified that Daughenbaugh had multiple blunt force injuries to his head and torso. The medical examiner testified the cause of death was tears to the mesenteric artery-the artery that supplies blood to the large and small intestines-which caused internal bleeding resulting in death.
At trial, the fighting issue was whether Shorter was involved in the assault. The State sought to prove Shorter was one of the participants in the assault that led to Daughenbaugh's death, while the defense, in addition to attacking the State's proof, sought to establish Shorter was in the vicinity but not among the people who gathered around Daughenbaugh.
The State called Perkins to support its case. Perkins was questioned at length about whether she could identify who was involved in the assault on Daughenbaugh. Perkins testified that she remembered identifying one person from an array of photos on the morning of August 25, but could not provide a description of the person she identified. When asked by the prosecutor if she could now identify the person she picked in the earlier photo lineup, she stated that she did not remember. When pressed by the prosecutor, however, Perkins testified that Shorter was one of the persons she saw stomp on Daughenbaugh. On cross-examination, Perkins admitted that in an earlier deposition, she was unable to identify any of the defendants as having been involved in the assault on Daughenbaugh.
B.B., who was seventeen in 2013, testified she saw Shorter in the crowd that formed around Daughenbaugh. B.B. testified that she left when the crowd formed. B.B. further testified Shorter contacted her shortly after the night of the murder and asked B.B. to tell the police that Shorter had been with B.B. at a pedestrian bridge some distance away from the site of the assault on Daughenbaugh. On cross-examination, B.B. admitted that she had given inconsistent answers in an earlier deposition and that she had been drinking vodka continuously for about three or four hours prior to the murder.
L.S., who was fifteen at the time of the murder, testified she saw Shorter kick Daughenbaugh. She testified that after the assault on Daughenbaugh began, she left the scene. Like B.B., L.S. too had been drinking on the evening of the assault and was impeached by the defense regarding inconsistent statements she made to the police and in a prior deposition.
T.T., another minor witness, claimed at trial to not remember many of the events on the night of the murder. She did, however, testify Shorter was not involved in the assault on Daughenbaugh.
Detective Timothy Peak testified as a rebuttal witness for the State. Peak testified that after police arrived at the scene, Shorter
told him that he had gone up to Daughenbaugh and kicked him while he was on the ground to check to see if Daughenbaugh was okay.
The defense offered evidence that Shorter was not a participant in the assault. Berry testified that he knew Shorter and that Shorter was not in the crowd surrounding Daughenbaugh. Berry further testified that he was positive that Shorter was not one of the people who assaulted Berry after his girlfriend had tried to intervene on Daughenbaugh's behalf.
Raymond Shorter also testified at trial. He stated Shorter was near the pedestrian bridge at the time the assault began and was not involved in it. Similarly, Jontay Williams testified that Shorter was not involved and that when the assault broke out, he was talking to a girl down the hill near the water. Williams testified that when the fight broke out, he called for Shorter and Russell and they immediately left in his car. Finally, Nakeba Blair-a friend of Shorter and Russell- testified they were not involved in the fight.Shorter II, 893 N.W.2d at 68-70.
With that background, we turn to the relevant proceedings. After an investigation, the State charged Shorter via trial information with first-degree murder, see Iowa Code §§ 707.1, .2 (2013), a class "A" felony, in October 2013. In the trial information, the State listed Perkins as a witness along with others present at the scene and several investigating officers. In the minutes of testimony, the State disclosed that Perkins would testify that she "observed a young black male, who had been arguing with another person, turn towards [Daughenbaugh], hit him and knock him to the ground. . . . [O]nce [Daughenbaugh] was knocked down several individuals began assaulting him." Other than referencing a name of the person first striking Daughenbaugh, no other assailants were listed in Perkins's proposed testimony.
Two attorneys appeared for Shorter and in March 2014 discovery depositions were held. At her deposition, Perkins stated that she saw the people jumping on Daughenbaugh's head and that she would recognize and be able to positively "identify every last one of them." When pushed on this point, she said that "[t]here was so many of them .... I really can't tell you, you know.... No, I can't tell you which boys they were." At the same time, Perkins also confirmed that she participated in a photo identification with police detectives within a day after the incident and that she circled a picture of someone that she identified as being "involved in the fight and/or jumping on the deceased." When asked, "If you were able to identify somebody, that would be evidence in the report from the police; is that correct?" Perkins responded "yes."
In April 2014, the State filed a notice of additional/substituted witnesses which included Detective Lorna Garcia. The notice stated that Detective Garcia would testify "in detail to all matters contained in or referred to in the accompanying reports and/or records". The State provided copies of Detective Garcia's reports to Shorter, in which the detective describes Perkins circling a picture of Shorter in a photo identification as being one of the assailants. Detective Garcia also wrote that Perkins "confirmed seeing [Shorter] in the group that was surrounding Daughenbaugh and assaulting him." The reports included as an attachment the photo lineup with Perkins's handwriting next to and circling of Shorter's photo.
The consolidated criminal cases of co-defendants Shorter, Russell, and Williams came to trial in May 2014. In his opening statement, Shorter's counsel alerted the jury that "Perkins is asked by the police to show up at a lineup, kind of a street interview to see, are these the people you're talking about [in reference to the people who wrestled away her phone]? [Perkins] says, Yes." But not stopping there, Shorter's counsel credited Perkins's identification of a person (Preston Beasley-nickname "Budha") involved in the attack. Shorter suggested in the opening that any reference to a "Booter" (Shorter's nickname) starting the assault of Daughenbaugh must be confused with "Budha."
Then, in the presentation of the State's case, Perkins testified. During direct examination, Perkins stated, "I just seen people taking turns jumping up in the air. I was like, Oh, my God. They were stomping on his face over and over and over." When the prosecutor asked Perkins about identifying Shorter in a photo lineup as one of the people she saw in August, she agreed that she could positively identify Shorter and had done so in August as well. After some prodding, Perkins also agreed that she remembered Shorter as involved in stomping on Daughenbaugh and then made an in-court identification of him. Perkins also identified Russell and insisted, "I know these people did it, and I don't care what nobody says." On crossexamination, Shorter's counsel impeached Perkins with her deposition testimony. Shorter's trial counsel did not object to Perkins's testimony at trial nor move for a mistrial upon admission of her eyewitness identification testimony. Following that testimony, Detective Garcia testified that Perkins was able to identify Shorter from a photo lineup. Another eye witness, L.S., also testified that Shorter assaulted Daughenbaugh. While counsel for Russell impeached L.S. regarding her change in testimony about Russell, the State established that L.S. did not waiver in her testimony about Shorter.
Shorter moved for a judgment of acquittal, arguing that the State failed to prove that Shorter actively participated in the fight; the district court overruled the motion. In his defense, Shorter offered testimony by three witnesses, J.W., N.B., and A.W., that he was down by the river and away from Daughenbaugh at the time of the assault. On rebuttal, the State called Detective Peak to testify, and he relayed Shorter's admission to him that Shorter had gone up to Daughenbaugh and kicked him to see if he was okay.
During closing arguments, Russell's counsel highlighted that Perkins had previously testified in court and was deposed but had not identified any of the defendants prior to trial as being involved in the assault. Shorter's counsel specifically argued, "[A]t least during the deposition, she sat in close proximity to all three of the defendants. She was asked specifically, Do you recognize them? And she said, No, I don't. So you might ask yourself why does she come into court and change her story?" Shorter's counsel also specifically pointed to jury instruction 11, which provided guidance for the jury on determining what testimony to believe, including considering "whether a witness has made inconsistent statements."
The jury found Shorter guilty of the lesser-included charge of second-degree murder, a class "B" felony. See Iowa Code §§ 707.1, .3. During the hearing on Shorter's post-trial motions for a new trial and/or motion in arrest of judgment, the State presented testimony by Detective Brad Youngblut, who testified that Shorter admitted to him that he had kicked Daughenbaugh at least once. The trial court overruled the post-trial motions. In June 2014, the district court sentenced Shorter to an indeterminate term of incarceration not to exceed fifty years.
While Shorter was tried jointly with Russell, Tyler was tried separately. See Russell I, 2016 WL 3271895, at *1. Although Tyler admitted to throwing the first punch in the altercation with Daughenbaugh, he also asserted the affirmative defense of self-defense. After our supreme court remanded Tyler's case for a new trial, he pled guilty to willful injury. See Russell III, 2022 WL 17481880, at *1 n.1.
Shorter appealed, and after a panel of our court reversed Shorter's conviction, Shorter I, 2016 WL 3272291, at *4, our supreme court vacated that decision and affirmed Shorter's conviction on further review. Shorter II, 893 N.W.2d at 86. At the same time, it reserved for PCR review Shorter's claim that trial counsel were ineffective for failing to challenge testimony by Perkins identifying Shorter as one of Daughenbaugh's attackers. Id. at 83. "Because of the factual uncertainties surrounding the claimed ineffective assistance of counsel arising out of the deficient minutes, we conclude that this claim cannot be resolved on direct appeal and should be addressed in an action for postconviction relief." Id.
Our supreme court also stated regarding the record on direct appeal:
This case has its peculiarities. While there is nothing in the minutes to indicate that Perkins would identify Shorter as one of the persons kicking Daughenbaugh during the assault, the defense was on notice that Perkins was at the scene and would testify about the events leading to Daughenbaugh's death. As a result, the defendants took the deposition of Perkins and defense counsel asked Perkins pointblank if she could identify Shorter. She did not make the identification at her deposition.
Ordinarily, we think it incumbent upon the State to disclose in the minutes of testimony if a witness will identify a defendant as engaging in criminal conduct. The record here, however, does not establish that the State knew, in advance of trial, that Perkins would identify Shorter when she took the stand. While at trial the prosecution pressed Perkins and successfully got her to identify Shorter, Shorter has not established that the prosecution had prior knowledge that such testimony would be forthcoming.Shorter II, 893 N.W.2d at 82.
Shorter brought this timely PCR action doing just that. In the PCR proceedings, Shorter claimed that his trial counsel should have objected to Perkins's trial testimony identifying him as one of the people stomping on Daughenbaugh as the minutes of testimony did not state that she would make that specific identification. Additionally, he claimed that his trial counsel should have moved for a mistrial once the trial court admitted Perkins's identification of him as one of the attackers. In sum, he asserted he was provided ineffective assistance of counsel and was prejudiced by their failures.
Procedendo issued in Shorter's direct appeal on May 15, 2017. Shorter filed a pro se PCR application in August 2017. After Shorter was appointed PCR counsel, his counsel filed an amended application in June 2018.
Depositions were taken of Shorter's trial counsel and offered as evidence in the PCR trial. Shorter's counsel both stated that they did not know whether Perkins would or would not be able to identify Shorter based on the minutes of testimony but they had prepared to impeach her if she did. They also said "that was the problem with [Perkins] all along, is that you're not one hundred percent sure what she was going to say at trial" and agreed that Perkins "might be unpredictable at trial." Furthermore, they "were prepared for either way, whether she identified him or didn't identify him" and understood that all of the reports and documents that the State produced would be incorporated as part of the minutes of testimony. Shorter's trial counsel also said that "it would be a great victory if we could get to where we got, frankly, to get the . . . murder first charge off the table and get to a second, given specifically [Shorter's] talk with the detective about being there and having his boot in contact with [Daughenbaugh's] clothing or body." Shorter's trial counsel concluded that a major issue with Shorter's case was that "[h]e had made some admissions. He talked.... [H]e had talked to the police . . .so he puts himself there.... [H]e said that he had gone up and kicked the decedent."
In addition, Shorter's trial counsel concluded that even if they had objected to Perkins's testimony, the court "would probably hit pause on the trial, allow you to maybe do more depositions, more time. But the case doesn't go away. At best, maybe you start over. But my thought would be they would say we're going to give you a day to re-depose" Perkins, which counsel did not believe would benefit Shorter. Even worse, "more time in this case could potentially give the State more time to find more witnesses who were at the party who would be able to identify those who were there, including [Shorter]." Shorter's counsel also admitted that they imagined that the result of the trial "probably would have been the same" because Shorter said "that he actually had physical contact . . . with the victim" and for that reason "we would have ended up at the same spot."
For the May 2022 PCR trial, the parties presented the PCR court with a stipulated record. In its ruling, the PCR court found that Shorter's trial counsel were prepared for the possibility that Perkins might identify Shorter as an assailant at trial and that the risks related to Perkins's prior identification were well-known to Shorter's trial counsel. After addressing the strategic decisions involved in not objecting or moving for mistrial, the district court determined counsels' conduct did not rise to the level of breach of an essential duty. In addition, the district court found no evidence that the prosecutor knew Perkins would provide a firm identification different or stronger than what was in her prior statements. Finally, "faced [with] other evidence of guilt," the district court ruled that Shorter failed to prove that, but for counsels' alleged unprofessional errors, the trial result would have been different, so the failure to object and to move for a mistrial was nonprejudicial. For those reasons, the PCR court denied Shorter's PCR application. Shorter timely appealed.
II. Standard of Review.
We ordinarily review PCR proceedings for correction of errors at law. Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021); see also Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018) ("Generally, an appeal from a denial of an application for [PCR] is reviewed for correction of errors at law." (citation omitted)). But when the PCR applicant claims trial counsel provided ineffective assistance, which raises a constitutional issue, our review is de novo. Sothman, 967 N.W.2d at 522. With de novo review, "'we give weight to the lower court's findings concerning witness credibility[,]' [b]ut we are not bound by the lower court's determination." Id. (internal citation omitted).
III. Discussion.
Shorter's appellate issues focus on Perkins's in-court identification during his criminal trial and are framed as: (1) trial counsel should have objected to or moved for mistrial based on Perkins's in-court identification because it was not disclosed in the minutes of testimony; (2) the prosecutor was not surprised by Perkins's identification and, in fact, solicited it; (3) trial counsel were not prepared for the possibility that Perkins's would change her deposition testimony; and (4) if trial counsel had raised the objection there would have been a reasonable probability of an acquittal so that now the confidence in the verdict is undermined.
But the core issue is gleaned from Shorter's direct appeal. In Shorter II, the supreme court directed that it was "incumbent upon the State to disclose in the minutes of testimony if a witness will identify a defendant as engaging in criminal conduct." 893 N.W.2d at 82. Yet, the supreme court noted the "general rule [on disclosure] does not necessarily entitle Shorter to relief" as the "case has its peculiarities." Id. Pertinent to our PCR review, the supreme court identified deficiencies in the trial record that would need development for PCR purposes. See id. at 82-83. As noted by the supreme court, the trial record did not "establish that the State knew, in advance of trial, that Perkins would identify Shorter when she took the stand. While at trial the prosecution pressed Perkins and successfully got her to identify Shorter, Shorter has not established that the prosecution had prior knowledge that such testimony would be forthcoming." Id. at 82. Likewise, the supreme court noted it was "not entirely clear what Shorter's trial counsel knew" and "counsel may have made the strategic decision that the trial was going well enough to take a pass on a motion for a mistrial." Id. at 82-83. Finally, as it pertained to Shorter's claim about the prejudice associated with his trial counsels' failure to object or move for mistrial, the supreme court said "we do not have a clear picture regarding prejudice to [Shorter]. Id. at 83. After reviewing the PCR record to answer these factual uncertainties, we now tackle whether the district court erred by denying Shorter's PCR application.
The constitutions of the United States and Iowa guarantee a criminal defendant the right to effective assistance of counsel. U.S. Const. amend. VI; Iowa Const. art. I, § 10. To establish an ineffective-assistance-of-counsel claim, the applicant must establish both (1) counsel failed to perform an essential duty; and (2) that failure resulted in prejudice. Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015); see Strickland v. Washington, 466 U.S. 668, 687 (1984). "Both elements must be prove[d] by a preponderance of the evidence." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). If an applicant fails to establish either element the claim fails, and we need not address the other element. Dempsey, 860 N.W.2d at 868; see also Sothman, 967 N.W.2d at 522 ("If the claim lacks prejudice, it can be decided on that ground alone without deciding whether the attorney performed deficiently." (citation omitted)).
The first element is satisfied when the applicant demonstrates counsel breached an essential duty by making "errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." State v. Warren, 955 N.W.2d 848, 859 (Iowa 2021) (citation omitted). "We presume counsel acted competently but that presumption is overcome 'if we find [an applicant] has proved [trial] counsel's performance fell below the normal range of competency.'" Sothman, 967 N.W.2d at 522 (citation omitted). "More is required than a showing that counsel's trial strategy backfired or the case would have been tried differently by another attorney." State v. Majors, 940 N.W.2d 372, 391 (Iowa 2020). "Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not necessary amount to ineffective assistance of counsel." State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992); see also Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989) (stating the court "will not reverse where counsel has made a reasonable decision concerning trial tactics and strategy, even if such judgments ultimately fail").
The second element is satisfied when the applicant demonstrates "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." State v. Walker, 935 N.W.2d 874, 881 (Iowa 2019) (quoting Strickland, 466 U.S. at 687). "It is not enough for the defendant to show that the errors had [only] some . . . effect on the outcome of the proceeding." Id. (alterations in original) (citation omitted). The defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Kuhse, 937 N.W.2d 622, 628 (Iowa 2020) (citing Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (citing Strickland, 466 U.S. at 694). "Counsel's unprofessional errors resulting in the mere impairment of presenting the defense is not sufficiently prejudicial." State v. Clay, 824 N.W.2d 488, 496 (Iowa 2012). Instead, an applicant must demonstrate that "absent the errors, the fact finder would have had a reasonable doubt respecting guilt." State v. Harrison, 914 N.W.2d 178, 206 (Iowa 2018) (citing Strickland, 466 U.S. at 695).
Here, Shorter's ineffective-assistance-of-counsel claim arises from an alleged violation of Iowa Rule of Criminal Procedure 2.5(3) by the State. Under rule 2.5(3), the minutes of testimony shall state "the name and occupation of each witness upon whose expected testimony the information is based, and a full and fair statement of the witness' expected testimony." At the same time, "[n]otwithstanding the more stringent requirements of Iowa Rule of Criminal Procedure 2.5(3), there is no requirement that the minutes of testimony provide a complete catalogue of witness testimony at trial, but only that the defense be placed on fair notice and not subject to surprise testimony." Shorter II, 893 N.W.2d at 81. Fair notice includes that "the minutes of testimony must disclose eyewitness testimony." Id. at 82. Even if an applicant demonstrates a failure of fair notice and disclosure of eyewitness testimony, an applicant "is not entitled to relief due to defective minutes under rule 2.5(3) when the defense [was] not surprised by the subsequent testimony." Id. at 83.
Because we can decide the case based on a failure to prove the second prong-whether Shorter proved prejudice by a preponderance of the evidence- we start there. See Sothman, 967 N.W.2d at 522. Outside of Perkins's in-court identification, there was a plethora of evidence establishing Shorter's guilt. First, Shorter admitted to kicking Daughenbaugh in his interview with the detectives, although he downplayed it as a non-aggressive act. Next, Detective Garcia described how Perkins specifically identified Shorter in the photo lineup: "Perkins pointed out James Shorter and said she thought he had been wearing a white shirt. She confirmed seeing him in the group that was surrounding Daughenbaugh and assaulting him." On top of that, the State offered testimony by other witnesses who were present at the scene. One witness, L.S., observed Shorter stomp on Daughenbaugh. Another, B.B., testified that Shorter asked her to fabricate an alibi for him that he was at the pedestrian bridge and away from Daughenbaugh at the time of the attack. See State v. Bloom, 983 N.W.2d 44, 50 (Iowa 2022) (finding conduct subsequent to the crime, such as attempting to fabricate an alibi, indicates a "consciousness of guilt."). The jury could have interpreted this evidence, independent of Perkins's eyewitness identification, as sufficient proof of Shorter's guilt. Thus, the evidence was strong and, even if Perkins's eyewitness identification was excluded from evidence, the outcome for Shorter most likely would not have been different nor would the jury have had reasonable doubt respecting Shorter's guilt. For these reasons, even without the alleged errors of Shorter's trial counsel, the fact finder would not have had a reasonable doubt about Shorter's guilt, and Shorter has failed to meet his burden to demonstrate that but-for the alleged errors, the result of the trial would have been different.
Because we find that Shorter's claim fails on the prejudice prong, we do not address whether his trial counsel's representation was deficient. See Harrison, 914 N.W.2d at 206 (stating that "since the defendant must show both prongs of the test have been met," the court only needed to address the prong the defendant failed to prove).
IV. Conclusion.
Without addressing whether Shorter's trial counsel's representation fell below the normal range of competency, we find that Shorter has failed to meet his burden to establish ineffective assistance of counsel. Shorter failed to demonstrate the prejudice required for a successful claim of ineffective assistance of counsel because even with an objection to Perkins's in-court eyewitness identification of Shorter or a motion for a mistrial, there was strong evidence of Shorter's involvement in the death of Daughenbaugh. We affirm the decision of the PCR court denying Shorter's PCR application.
AFFIRMED.