Opinion
No. 3-426 / 01-0199
Filed March 24, 2004
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Montez Shortridge appeals from the district court's denial of his application for postconviction relief. AFFIRMED.
Frank Burnette of Burnette Kelley, Des Moines, for appellant.
Montez Shortridge, Fort Madison, pro se.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John Sarcone, County Attorney, and James Ward, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Miller and Hecht, JJ.
Montez Shortridge appeals from the district court's denial of his application for postconviction relief, following his conviction and sentence for murder in the first degree. He argues multiple errors were made by various counsel, as well as the district court. We affirm the ruling of the district court.
I. Background Facts and Proceedings.
Montez Shortridge was charged with murder in the first degree for the 1994 beating death of Greg Petersen. Testimony from alleged accomplice Orlando Proctor placed Shortridge at the murder scene and implicated him in Petersen's death. Proctor testified substantially as follows: Proctor, Shortridge, and Rick Benton, Jr. had engaged in burglaries that targeted individuals they believed possessed drugs or large amounts of money in their homes. One of these individuals was Greg Petersen, whom they believed kept $10,000 in his trailer. The three men entered Petersen's home through an unlocked door in the early morning hours of August 13. While Proctor was searching the living room area, he heard noises from the bedroom area. Proctor went to the bedroom, where he witnessed Petersen lying naked and bound on the floor. Shortridge was standing over Petersen, "breathing. . . . heavily," with his hands "balled" into fists. After leaving Petersen's home, the three men stopped at a nearby payphone and placed two calls to 911, reporting a disturbance at Petersen's home.
Proctor's version of events was supported by testimony from his girlfriend, Buffy Bieghler, who stated she not only overheard Proctor and Shortridge plan a burglary, but also that Proctor was upset after the incident, and told her, while crying, "Montez wouldn't quit beating on him." Although Shortridge presented evidence that he was elsewhere until approximately 1:30 a.m. on August 13, the medical examiner, Dr. Thomas Bennett, placed the time of death anywhere between midnight and 5:00 a.m. In addition, police dispatch logged two 911 calls, at 6:26 a.m. and 6:39 a.m., reporting a disturbance at Petersen's residence. Shortridge was further implicated by his own statements, which he made orally to his girlfriend, Jheri Hatten, and in writing to his friend, Michael Morris.
Shortridge's conviction was affirmed by this court on direct appeal. See State v. Shortridge, 589 N.W.2d 76 (Iowa Ct.App. 1998). We preserved for a possible postconviction proceeding two claims of ineffective assistance of counsel: the fact that trial counsel did not object to the testimony from Proctor regarding prior burglaries allegedly committed by Proctor, Shortridge and Benton, and that counsel did not request a limiting instruction as to prior acts evidence. Id. at 84. Shortridge filed an application for postconviction relief, raising issues through counsel and in a pro se brief. The district court found no merit to any of his contentions, and dismissed the application. Shortridge filed a pro se motion pursuant to Iowa Rule of Civil Procedure 1.904(2), which was denied by the court. Shortridge appeals.
II. Scope of Review.
Postconviction relief proceedings are typically reviewed on claimed error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts constitutional claims, such as ineffective assistance of counsel and fair-trial violations, our review is de novo. Id.; Conner v. State, 362 N.W.2d 449, 458 (Iowa 1985).
III. Waiver, Preservation, and Ability to Address Claims.
Counsel's brief and the pro se brief submitted by Shortridge allege numerous errors by trial counsel, appellate counsel, postconviction counsel, the trial court and the postconviction court. A significant number of these claims can and do fail for reasons unrelated to their underlying merits or lack thereof. Some attempt to raise issues disposed of on direct appeal. However, such claims are not subject to relitigation in postconviction proceedings. See LeGrand v. State, 540 N.W.2d 667, 669 (Iowa Ct.App. 1995).
A number of others, although ostensibly couched as claims of ineffective assistance of counsel, are in effect direct attacks on this court's holdings on direct appeal. See State v. Shortridge, 589 N.W.2d 76 (Iowa Ct.App. 1998). The proper method for challenging any alleged errors in that decision was to seek further review by our supreme court. Such review was sought and denied. As such, our decision on direct appeal is final as to all issues decided therein, and is binding upon both the trial court and this court in subsequent appeals. See State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987).
With the exception of the two claims of ineffective assistance preserved in our decision on direct appeal, the remaining claims involve alleged errors by trial counsel or the trial court that were not raised on direct appeal. As a general matter, such claims may not be asserted in postconviction proceedings. Washington v. Scurr, 304 N.W.2d 231, 235 (Iowa 1981). In order to do so, Shortridge must show a "sufficient cause or reason" for not raising the claims earlier, as well as an actual and substantial disadvantage resulting from the alleged error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Here, the only "cause" relied on by Shortridge is ineffective assistance of counsel.
Ineffective assistance of appellate counsel may constitute a sufficient cause or reason for failing to raise an issue of ineffective assistance of trial counsel on direct appeal. See id.; Kane v. State, 436 N.W.2d 624, 627 (Iowa 1989). However, ineffectiveness will not be presumed from the mere fact appellate counsel did not raise an arguable error by trial counsel. See Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998). Shortridge bears the same burden in establishing the ineffective assistance of appellate counsel that he does in establishing the ineffective assistance of trial counsel. Id. In either event he 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).
Some of the underlying claims of error are not ones that appear on the face of the record, and there was no evidence Shortridge informed appellate counsel of the claim, or that appellate counsel otherwise knew or should have known of their existence. For those claims Shortridge has simply failed to provide sufficient cause or reason as to why the claims were not raised on direct appeal. Where the basis of the underlying claim does appear in the record, or where it appears counsel should have been aware of the error, we necessarily turn to the merits of the underlying claim to assess whether error has been preserved. See Ledezma, 626 N.W.2d at 141-42. In doing so, however, we identify another stumbling block to a number of Shortridge's claims.
In many cases Shortridge makes no more than bare assertions or unsupported allegations of counsel's ineffectiveness. However, any claim that counsel was ineffective must be stated with sufficient specificity:
[I]t is not enough to simply claim that counsel should have done a better job. The applicant must state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome.
Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citations omitted). Failure to do so renders the claim too general to either address on appeal or preserve for a possible additional postconviction proceeding. Id. Similarly, failure in the brief to provide argument in support of an issue may be deemed waiver of that issue. Iowa R. App. P. 6.14(1)( c).
Stated simply, the approach taken in this appeal could and should, without further analysis, prove fatal to many of Shortridge's claims. It overlooks or ignores a caution long given by appellate courts:
A heavy professional responsibility devolves upon an appellate lawyer when it comes to assessing possible assignments of error. Of course error is waived if it is not assigned. On the other hand most experienced appellate lawyers or judges will attest it is a tactical blunder, often devastating to an appellant, to assign every conceivable complaint. Highly competent appellate lawyers generally assign only the strongest points and rely on them for reversal. . . . [Even when h]indsight indicates that [counsel's] judgment call on the assignment of error was wrong . . . this is a far cry from qualifying as ineffective representation.
Cuevas v. State, 415 N.W.2d 630, 633 (Iowa 1987).
III. Merits .
While we could deny the majority of Shortridge's claims for the foregoing reasons, we conclude that, to the extent his individual claims can be assessed by this court, none are meritorious. Rather than detail the varied claims, we note that, in most instances, we approve of and concur in the reasoning of the district court in its postconviction ruling. For those claims not specifically addressed by the postconviction court, we have determined that many involve a reasonable tactical decision by trial counsel, see State v. Oetken, 613 N.W.2d 679, 683-84 (Iowa 2000), and that as to each such claim Shortridge has failed to establish the requisite prejudice. See State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999) (defining prejudice in context of ineffective assistance of counsel claim as a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different); State v. Traywick, 468 N.W.2d 452, 455 (Iowa 1991) ("An allegedly erroneous ruling . . . must go to the heart of the case in order to be considered of such magnitude as to implicate the due process clause."); State v. Voelkers, 547 N.W.2d 625, 631 (Iowa Ct.App. 1996) ("Basic due process requires a fair trial in a fair tribunal."). We will, however, discuss several of the most substantive claims.
A. Dr. Bennett's Testimony.
At trial Dr. Bennett testified that, based on his observation of the scene and consideration of the forensic evidence, Petersen's time of death could have occurred anytime between 12:00 midnight and 5:00 a.m. Shortridge attacks Dr. Bennett's testimony on several grounds, but his primary complaint is that the time frame provided by Dr. Bennett was based, not on facts in evidence, but upon speculation or conjecture. See State v. Dvorsky, 322 N.W.2d 62, 64 (Iowa 1982) ("the facts upon which the witness is relying must be stated in the record"); Iowa Power Light Co. v. Stortenbecker, 334 N.W.2d 326, 330-31 (Iowa Ct. App. 1983) (noting facts must be sufficient for witness to reach a conclusion which is more than mere conjecture or speculation). Thus he argues trial counsel was ineffective for not moving to strike Dr. Bennett's testimony or, alternatively, not seeking a jury instruction that specifically stated an expert's testimony must be based on facts present in the record. We cannot agree.
Prior to trial Dr. Bennett placed the time of Petersen's death between 12:00 midnight and 12:30 a.m., with a one- to two-hour margin of error. He based the time of death on blood, urine, and vitreous fluid test results that indicated Petersen had died within two to three hours of last consuming alcohol, and the fact that Petersen was last witnessed consuming alcohol at approximately 10:00 p.m. At trial Dr. Bennett broadened this time frame, based on new information that Petersen was known to be alive as late as 12:30 a.m.
Dr. Bennett explained that forensics was not an exact science, and the time the victim was last reported alive was a significant factor in determining the time of death. Dr. Bennett explained that the disproportionately high alcohol content in Petersen's urine as compared to the alcohol content in his blood, and the fullness of Petersen's bladder, indicated that Petersen died two to three hours after (1) his blood alcohol content reached a certain point and/or he stopped drinking and (2) he last emptied his bladder. Given the fact that Petersen called a friend at 12:30 a.m. to say he was going to bed, Dr. Bennett assumed 12:30 a.m. as the time when both those events occurred, and based on that assumption fixed a probable time of death between 2:30 a.m. and 3:00 a.m. Dr. Bennett went on to explain that there was actually a range of time during which it was possible that death occurred. He analogized the range to a bell curve. He stated that although it was possible death had occurred anytime within the curve, death most probably occurred during the times at the height of the curve, with probability diminishing as one approached the outer edges. Dr. Bennett then set the range for time of death at 12:00 midnight to 5:00 a.m.
Shortridge attacks the 5:00 a.m. time as a product of the State's false assertion, without factual support, that Petersen was actually seen alive at 5:00 a.m. This is not an accurate representation of the record. After Dr. Bennett set the probable time of death at 2:30 a.m. to 3:00 a.m. he was asked the following question and gave the following answer:
Q. Can you state with absolute certainty that Greg Petersen was killed at that time or could it be different depending on clinical history? In other words, if he was reported having been last seen alive approximately 5:00, would that be consistent with the time of death and testimony you have previously provided? A. I believe so. You base a ruling on the time of death upon the facts you have. But if the facts change, that could change the time of death ruling because it's just an estimate at the point of the autopsy.
When viewed in context, it seems clear this is no more than an explanatory hypothetical, and trial counsel in fact established on cross examination that Dr. Bennett had no knowledge that Petersen was alive at 5:00 a.m. When reviewing the entirety of Dr. Bennett's testimony, it appears 5:00 a.m. is simply the outer end of the "bell curve," when it is possible for Petersen's death to have occurred, although not as probable a time of death as 2:30 a.m to 3:00 a.m.
Trial counsel was able to firmly establish during cross examination that Dr. Bennett's estimated time of death was based on an assumption that Petersen emptied his bladder at approximately 12:30 a.m., rather than any fact indicating Petersen had actually emptied his bladder at that time. Shortridge argues that this demonstrates Dr. Bennett's opinion was based upon supposition or conjecture, rendering his testimony inadmissible.
For Shortridge to succeed in this claim he must show a reasonable probability that counsel could have succeeded in having the testimony stricken, the suggested jury instruction given, or both, as there is not otherwise a reasonable probability different action by counsel on this issue would have changed the result of the proceeding. See Atwood, 602 N.W.2d at 784. The trial court would have had broad discretion in determining whether to admit Dr. Bennett's testimony. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). It would have abused that discretion only if admission of the testimony would have been based on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996).
Our commitment to a liberal rule of admissibility of expert testimony indicates that the trial court would not have abused its considerable discretion by admitting the testimony in question over the suggested objection. See Iowa R. Evid. 5.702 ("If scientific . . . or other specialized knowledge will assist the trier of fact to . . . determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise."). Here, Dr. Bennett explained for the jury why the forensic evidence demonstrated that death occurred two to three hours after Petersen last consumed alcohol and emptied his bladder. Even if this testimony had been challenged by defense counsel, it would have been admissible to assist the jury in determining a fact in issue. See State v. Mayberry, 411 N.W.2d 677, 681 n. 1 (Iowa 1987) (concluding that imprecise evidence on time of death, challenged as inadmissible opinion evidence due to lack of foundation, was admissible under rule 5.702 as "other specialized knowledge" which would assist the trier of fact to determine a fact in issue).
Although Dr. Bennett had no affirmative proof that Petersen emptied his bladder at 12:30 a.m., the jury was made well aware of that fact during cross examination. Dr. Bennett made a rational, common-sense assumption that a man who had been drinking throughout the evening, up to at least approximately 10:00 p.m., and who informs a friend at 12:30 p.m. that he is going to bed, would empty his bladder before doing so. We do not ask the jury to abandon their common knowledge and experience. See State v. Manning, 224 N.W.2d 232, 236 (Iowa 1974). Based on the facts in evidence the jury could easily reach the same conclusion as that reached by Dr. Bennett. Shortridge cannot establish prejudice from the admission of this testimony.
Shortridge further argues that counsel should have sought a more precise jury instruction as to the treatment of expert testimony. However, the instruction given informed the jury that they were free to accept or reject expert testimony, and give it as much as weight they thought it deserved, considering the witness's education and experiences, the reasons for the opinion, and the remaining evidence. Given the record, this instruction adequately informed the jury as to the treatment of Dr. Bennett's testimony. Again, Shortridge has failed to establish any prejudice on this issue.
B. Massiah Challenge.
During trial letters were admitted into evidence that were written by Shortridge and sent to Shortridge's friend Michael Morris. The letters appeared to be an attempt by Shortridge to create and/or solidify an alibi through Morris, who had been with Shortridge prior to Petersen's murder. They also contained an incriminating statement to the effect that only Shortridge and Benton knew the actual time of Petersen's death. Shortridge contends that trial counsel should have challenged the admission of at least some of the letters, because they were deliberately elicited by Morris, after Shortridge's right to counsel had attached, and while Morris was acting as an agent for the State. See Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246, 250 (1964).
The record on appeal is silent on the issue of whether Morris was acting as a agent for the State. Although attachments to Shortridge's failed motion for a limited remand indicate that at some point Morris did serve in such a capacity, we question whether these documents can be considered in the context of this appeal. See Iowa R. App. P. 6.10(1) (stating that record on appeal is limited to original papers and exhibits filed in the district court, the transcript of proceedings, and the docket and court calendar entries). Even if we could properly consider these attachments, the record remains bereft of any indication that Morris deliberately elicited letters from Shortridge. Shortridge blames this lack of proof on a failure of postconviction counsel to question Morris regarding what in fact occurred, and seemingly urges us to preserve this issue for a further postconviction proceeding. We determine that this is unnecessary, in light of the record made at the postconviction hearing. See State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App. 2000) (providing that an ineffective assistance claim can be addressed on direct appeal if the record is sufficient to reach the merits of the defendant's contentions).
The heart of this claim is the alleged ineffective assistance of trial counsel. While prejudice is one consideration, Shortridge must also must overcome a strong presumption of his counsel's competence. See State v. Nucaro, 614 N.W.2d 856, 859 (Iowa Ct.App. 2000). Shortridge claims counsel was less than reasonably competent because he did not adequately investigate the issue. However, trial counsel testified during the postconviction hearing that he had considered seeking suppression of the letters, and had spoken with both Shortridge and Morris. He decided not to seek suppression, as
there was no constitutional basis for suppression. First of all, they were voluntary acts on [Shortridge's] part in writing the letters to [Morris]; and, second, there was no indication that Mr. Morris was acting as anything other than a citizen. He was the one that was delivering the letters to the authorities. There was never any indication from the authorities or from him that he was acting at the[ir] request or their direction. It was a voluntary act by a private citizen, essentially. . . . I had no factual basis for assuming there was an alternative motive.
The record indicates that counsel investigated the potential claim, and found no basis to pursue it. While it is possible that counsel may have uncovered additional information if he had investigated the claim further, the duty to investigate is not limitless. See Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001) ("Counsel is required to conduct a reasonable investigation or make reasonable decisions that make a particular investigation unnecessary."). Under the record, Shortridge cannot establish that trial counsel's actions fell below an objective standard of reasonableness.
C. Failure to Investigate Witness .
Evidence at the scene of the murder indicated that a toilet tank lid may have been smashed over Petersen's head. One of Petersen's neighbors told police that at approximately 2:00 a.m. on August 13 she heard a loud "thump" that sounded liked a heavy object falling onto concrete, and echoed through the trailer park where she and Petersen lived. Shortridge argues that this was the sound of the toilet lid being smashed over Petersen's head. He contends counsel was ineffective for failing to investigate this fact and admit it into evidence, because he had an alibi until nearly 2:30 a.m.
However, Shortridge only presented evidence of an alibi until approximately 1:30 a.m. on August 13, and nothing in the record on appeal demonstrates an alibi beyond this time. Even if this court could properly consider attachments to Shortridge's motion for limited remand, they indicate only that a calling card number given to Shortridge was used to make calls between 2:00 a.m. and 2:15 a.m., and that those calls may have originated from a truck stop some distance from the crime scene. There is only very weak, circumstantial evidence that Shortridge himself placed those calls. There is only very uncertain, hearsay evidence concerning where the calls may have originated.
Moreover, both trial counsel and the defense investigator testified at the postconviction hearing about their attempts to investigate and question the trailer park residents, and the fact that they did not uncover any information helpful to the defense. The description of the noise, that of a loud, echoing thump onto concrete, is not necessarily indicative of porcelain being shattered over soft tissue. Under the record Shortridge has not shown counsel's efforts were less than reasonably competent. See Ledezma, 626 N.W.2d at 145 (assessing the reasonableness of an investigation by the underlying circumstances).
D. Preserved Ineffective Assistance Claims.
On direct appeal we specifically preserved the claims that counsel was ineffective for not objecting to testimony from Proctor regarding prior burglaries allegedly committed by Proctor, Shortridge and Benton, and in not requesting a limiting instruction on prior acts evidence. Although these claims were presented to and ruled on by the postconviction court, on appeal they appear as no more than bare allegations and, arguably, need not be addressed. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). We find it worthwhile to specifically note, however, that we concur in the district court's analysis on these issues.
Any objection to Proctor's testimony would likely have failed as the evidence was relevant to show both motive and identity, and this probative value was not outweighed by any prejudicial effect of the evidence. See Iowa R. Evid. 5.404( b); State v. Wade, 467 N.W.2d 283, 284-85 (Iowa 1991). Moreover, even if counsel could have succeeded in having the evidence excluded, that exclusion would not have created a reasonable probability of a different outcome given the remainder of the evidence, and in particular the remainder of Proctor's testimony. See State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
We reach a similar result in analyzing the fact that counsel did not request a limiting instruction for the prior acts evidence. As noted by the postconviction court, the key question is how the absence of a limiting instruction impacted the jury's ultimate conclusion of guilt:
In this case, [Shortridge's] defense was based on an alibi theory. The relationship between the lack of a limiting instruction and the jury's determination that [Shortridge's] alibi was incredible is tenuous at best.
. . .
The jury used evidence of [Shortridge's] prior bad acts for the intended reason, to determine [Shortridge's] intent, motive, identity.
. . .
Notwithstanding [Shortridge's] opinion of the evidence against him, overwhelming evidence was presented at trial establishing his participation in the murder. The evidence of prior bad acts . . . was merely a small part of [the] testimony.
We agree with the postconviction court that Shortridge did not prove there is a reasonable probability a limiting instruction would have affected the outcome of this case.
IV. Conclusion and Disposition.
We have carefully considered all issues and claims raised by Shortridge, and find no merit to those specifically discussed in this opinion. We find that those not specifically discussed herein fall within one or more of the following categories: (1) an issue disposed of on direct appeal, (2) an issue or claim on which error is not preserved, (3) a claim of ineffective assistance too general in nature to address or preserve for a possible additional postconviction proceeding, (4) an issue or claim waived because it was not supported by any argument, (5) an issue or claim correctly decided by the postconviction trial court, or (6) a claim of ineffective assistance for which Shortridge has not proved by a preponderance of the evidence one or both of the two requisite elements. We therefore affirm the judgment of the postconviction trial court.