Opinion
No. 6-111 / 05-1259
Filed April 12, 2006
Appeal from the Iowa District Court for Pottawattamie County, Charles L. Smith, III, Judge.
Jesse Turner appeals from the summary dismissal of his postconviction relief application. AFFIRMED.
Chad Douglas Primmer of Chad Douglas Primmer, P.C., Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Margaret Popp Reyes, Assistant County Attorney, for appellee-State.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Jesse Turner appeals from the summary dismissal of his postconviction relief application. We affirm.
Background Facts and Proceedings.
Turner was convicted of third-degree sexual abuse against his former girlfriend, Jill, and was sentenced to an indeterminate ten-year term of imprisonment. On direct appeal, Turner raised four claims of ineffective assistance of counsel, including that counsel failed to (1) object to prior bad acts evidence, (2) object to a jury instruction, (3) seek admission of letters from Jill to Turner, and (4) call Turner as a witness. A panel of this court affirmed the conviction, concluding that counsel was not ineffective for failing to object to the bad acts evidence and that there was no duty to object to the jury instruction. State v. Turner, No. 03-0992 (Iowa Ct.App. June 23, 2004). We preserved the remaining two claims for a possible postconviction relief application.
On February 16, 2005, Turner filed an application for postconviction relief, contending trial counsel was ineffective in failing to (1) object to Jill's testimony about Turner's bad acts involving her, (2) object to Jill's testimony involving Turner's bad acts against others, (3) seek admission of the letters, and (4) call Turner as a witness. The court later granted the State's motion for summary dismissal, generally concluding that "[t]o the extent [Turner] raises the same issues concerning the admission of evidence concerning prior bad acts, those issues were adjudicated in his direct appeal; [he] is now barred from raising them again in postconviction proceedings." The district court's ruling did not, however, expressly address the claim that trial counsel was ineffective in failing to object to Jill's testimony about Turner's prior bad acts against others. The ruling specifically rejected Turner's other claims of ineffectiveness, finding counsel's actions were the product of reasonable strategic decisions. Turner appeals.
Scope and Standards of Review.
We review the dismissal of an application for postconviction relief to correct errors of law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998). Our review is de novo when there is an alleged denial of constitutional rights. McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995). Iowa Code section 822.6 (2005) authorizes the court in appropriate cases to summarily dismiss an applicant's request for postconviction relief:
The court may grant a motion by either party for summary disposition of the application, when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreement of facts, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
Discussion.
On appeal, Turner first contends trial counsel was ineffective in failing to object to Jill's testimony about Turner's bad acts against other women. We conclude Turner has not preserved this issue for our review. On direct appeal, a panel of this court rejected the claim that defense counsel was ineffective in failing to object to evidence of Turner's prior bad acts committed against Jill. This court's direct appeal decision did not address a claim that defense counsel provided ineffective assistance in failing to object to evidence of Turner's prior bad acts against other women. In its summary disposition order, the postconviction court observed:
[The State] argues that [Turner's] claims are barred to the extent that he raised the same or nearly identical issues in his direct appeal. In his postconviction application the Applicant alleges various grounds of ineffective assistance of counsel. To the extent that he raises the same issues concerning the admission of evidence concerning prior bad acts, those issues were adjudicated in his direct appeal; [Turner] is now barred from raising them again in postconviction proceedings.
Thus, the ruling from which Turner now appeals does not specifically address the issue of whether defense counsel was ineffective in failing to object to evidence of Turner's prior bad acts committed against women other than Jill.
Turner did not file a motion to amend or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2). "It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal." Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). "When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal." Id. Accordingly, we conclude Turner has not preserved error on his claim that defense counsel was ineffective for failing to object to evidence of Turner's prior bad acts against women other than Jill.
Turner next maintains the postconviction court wrongly concluded defense counsel was not ineffective when he failed to offer in evidence letters written by Jill to Turner which made reference to specific aspects of their relationship, including prior sexual encounters." In his deposition, which was included in the summary dismissal record, defense counsel explained that while the letters did contain potentially exculpatory evidence, they were a "mixed bag," by which he meant that portions of the writings described Turner in a very unflattering light. As a matter of strategy, defense counsel chose to introduce the substance of any favorable aspects of the letters through the direct testimony of a third-party, rather than through introduction of the letters themselves. We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). No reasonable person could conclude defense counsel's strategy to avoid offering the letters in evidence was unreasonable. Moreover, Turner offers no plausible explanation of what additional evidence or argument he could have presented, had this case not been summarily dismissed, to prove that the letters were so helpful to his defense that effective counsel would have offered them.
Turner also nominally argues that his trial counsel should have sought to review the computer of the victim in search of any evidence "which could potentially assist in exonerating his client." This bare assertion, with no explanation of what helpful information could have been found, results in the waiver of this claim. See Iowa R. App. P. 6.14(1)( c).
One of the letters referred to Turner as a "lying, cheating, drug dealing father." The writings also repeatedly characterized Turner as a person who refused to take responsibility as the father of the author's child.