Opinion
No. 3-498 / 02-0881
Filed August 27, 2003
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Nikkolas Kion Kemp appeals from his robbery conviction, claiming ineffective assistance of counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender and Theresa Wilson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Jaki Lyn Livingston, Assistant County Attorney, for appellee.
Considered by Harris, Snell, and Brown, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
Time was when a criminal defendant was absolutely required to challenge the prosecution's case at trial or forever hold his (or her) peace. There is no more venerable rule in the law of appeal and error than the one prohibiting the singing of a song on appeal that was not first sung in district court. The rule is said to be immutable, so fixed and so familiar that we require an appellant to introduce an issue by stating how it was preserved for review and where this is shown in the trial record. Iowa R.App.P. 6.14( e). This bedrock principle was not set up as a mere nuisance for appellants, or a refuge for lazy appellate judges. The rule was a result of the obvious truth that society can afford only a reasonable amount of review for any disappointed litigant. For generations appellate courts uniformly refused to involve themselves in contentions raised for the first time on appeal. To do so was long considered inappropriate allocation of scarce judicial resources.
Evolving constitutional law, under the Sixth Amendment, over the past several decades has played havoc with this view. Where error is not preserved the practice now is to merely recycle the contention as a claim of ineffective assistance of trial counsel. Some see the new practice as a de facto plain error rule because appellate courts cannot ignore unpreserved issues but are required to explore them in detail to review a claim of ineffective counsel. It is sometimes, is in fact often, easier to pass on the preservation of error problem and decide the appeal on its merit. A casual outside observer might well think this is good, but it is definitely not good for the tax payers who fund the judicial system.
Appellants in criminal cases still do not win many reversals on unpreserved contentions because they face an onerous standard of review. "A defendant receives ineffective assistance of counsel only when: (1) the defense attorney fails in an essential duty; and (2) prejudice results." State v. Martin, 587 N.W.2d 606, 609 (Iowa. Ct. App. 1989) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)); s ee also State v. Miller, 598 N.W.2d 724, 725 (Iowa 1999). On the performance prong courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694.
The test on the prejudice prong is whether counsel's errors or omissions work to the defendant's "actual and substantial disadvantage so that a reasonable probability exists that but for the trial attorney's unprofessional errors, the resulting conviction would have been different." Burgess v. State, 585 N.W.2d 846, 847 (Iowa Ct.App. 1998). "A reasonable probability is one sufficient to undermine confidence in the outcome." State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App. 1996).
The defendant here, Nikkolas Kemp, was convicted of a crude strong-arm robbery and has brought this appeal in which he has only two complaints. Because he raised neither of them at trial, they are posed as Sixth Amendment ineffective assistance of counsel claims. We would be astonished if either of the motions upon which these complaints are based would have been sustained if urged in trial court. We affirm and to explain why we must briefly describe the claims.
I. Kemp first claims his trial counsel was ineffective in failing to move for a new trial under Iowa Rule of Criminal Procedure 2.24(2)( b)(6). To prevail Kemp would need to show the verdict was contrary to the evidence, that "a miscarriage of justice may have resulted." State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Kemp's conviction turned on whether he was the third person observed by the robbery victim, a food delivery man. Kemp was identified by his two accomplices principally by Diez Moore who pled guilty and testified at trial. Moore's testimony was important in the prosecution's case. Kemp points out that it was to some extent conflicting. In view of all the evidence, however, we are convinced a motion for a new trial would not have been sustained because there was abundant evidence of Kemp's guilt. No miscarriage of justice appears. Hence, Kemp was not prejudiced by counsel's refusal to move for a new trial.
II. Kemp also complains because his trial counsel did not file a pretrial motion to suppress statements he made to the investigating officers. He argues these statements were induced by the officer's improper promise of advantage to be gained with respect to the charges he faced or the punishment. The record simply does not support such a claim. The officers merely urged Kemp to tell the truth. They in no way suggested he would receive more favorable treatment as a result. Kemp's statements were clearly voluntarily so he was in no way prejudiced by counsel's failure to move to suppress them.