Opinion
No. 3-884 / 02-1736.
Filed January 14, 2004.
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
Walls seeks postconviction relief, alleging he received ineffective assistance of trial and appellate counsel. AFFIRMED.
Stuart Hoover of Blair Fitzsimmons, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Thomas Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Lee Edward Walls was adjudged guilty of the crimes of 1) possession of more than fifty grams of a substance containing cocaine base with the intent to deliver while in possession of a firearm, 2) a drug tax stamp violation, and 3) possession of marijuana. See Iowa Code §§ 124.401(1)(a), (e), 124.401(5), 453B.12 (1997). The district court sentenced Walls to concurrent prison terms of one-hundred years on Count I, five years on Count II, and six months on Count III. On direct appeal, our court affirmed his judgment and sentence.
Walls then filed a postconviction relief application, alleging that both trial and appellate counsel provided ineffective assistance in a number of respects. Following a hearing, the district court denied the application and this appeal followed.
I. Procedural Bar
As a preliminary matter, the State asserts that Walls did not establish "sufficient reason" for failing to raise trial counsel's ineffectiveness on direct appeal. See Collins v. State, 477 N.W.2d 374, 376-77 (Iowa 1991). The State concedes ineffectiveness of appellate counsel may constitute "sufficient reason" but contends Walls did not specifically allege that appellate counsel was ineffective in failing to raise trial counsel's errors. We are not convinced this issue was preserved for review. See DeVoss v. State, 648 N.W.2d 58, 63 (Iowa 2002). Although the State filed two motions to dismiss, neither raised this particular procedural defense. Therefore, we will proceed to the merits.
II. Ineffectiveness Claims
Walls must establish that counsel breached an essential duty and prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). On our de novo review, we agree with the district court that Walls did not satisfy this standard.
A. Appellate Counsel
Walls alleges that counsel on direct appeal was ineffective in failing to raise challenges to 1) a stop and search of his vehicle and person, 2) the makeup of the jury pool, and 3) the jury's finding that he was in immediate possession of a firearm.
1. Stop and Search. Walls maintains that appellate counsel should have challenged the stop and search of his vehicle and person. However, he does not specify what aspects his appellate attorney should have challenged. We conclude this ground is too general to address. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994).
2. Jury Pool Make-Up. Walls contends appellate counsel should have challenged the make-up of the jury pool on appeal. The record reflects that trial counsel raised this issue, stating:
defendant is concerned with having representation of minority persons upon the jury and so that may be an issue if minority persons are struck. We've checked the panel, there seems to be 10 percent minority on the panel which is . . . enough." Close enough, yeah, to what the population is so we don't object as to that. But we will be objecting if all the minorities who might be selected are routinely dismissed.
As trial counsel explicitly stated he was monitoring the composition of the jury and there is no indication that minority members in the jury pool were routinely dismissed, we can discern no basis for an appellate challenge to the "makeup of the jury pool." Accordingly, we reject this ineffective assistance of counsel claim.
3. Immediate Possession of a Firearm. Walls claims appellate counsel should have challenged the sufficiency of the evidence supporting the finding that he was in immediate possession of a firearm, a finding that resulted in an enhancement of his sentence. Based on a review of the record, appellate counsel could have concluded that such a challenge would have been fruitless. A Waterloo police officer testified that he searched Walls's home pursuant to a search warrant and discovered a pistol in a bedroom that contained Walls's personal items. The pistol was in the headboard of the bed. There was also a gun in the closet and guns in a safe hidden inside a folded mattress. Based on this evidence, we conclude appellate counsel breached no essential duty in failing to challenge the sufficiency of the evidence supporting the firearm enhancement.
B. Trial Counsel
Walls alleges trial counsel was ineffective in failing to do the following: 1) insist that opening and closing statements be recorded, 2) object to prosecution statements during closing argument, 3) challenge the testimony of an officer, 4) challenge the validity of the stop and search of his vehicle and the search of his home and person, 5) attack allegedly suggestive identification procedures, 6) adequately review police reports, 7) move for a continuance, 8) object to the admission of letters written by the defendant, 9) challenge the jury selection on equal protection grounds, and 10) sufficiently investigate whether he "was entitled to vacation of conviction and sentence. . . ."
The first and second issues are related. Walls states, "[t]rial counsel admitted to not objecting during closing argument where opposing counsel may have made some incriminating statements about the appellant, causing prejudice." The district court rejected this claim, noting that defense counsel's testimony concerning prosecution statements during closing argument was more credible than Walls's. We fully concur in the court's resolution of this issue. Cf. State v. Oetken, 613 N.W.2d 679, 689 (Iowa 2000) (finding contention that counsel should have insisted on having opening and closing statements recorded not sufficiently specific to decide on direct appeal).
Walls next contends his trial attorney "never investigated Officer Dill [sic] testimony with the high profile jobs he's supposed to have, things of that nature." While trial counsel did not object to the officer's qualifications, he did vigorously cross-examine the officer at the suppression hearing and at trial. Therefore, we reject this contention.
With respect to issue four concerning the stop and search of Walls's vehicle and the search of Walls's residence and person, we note that trial counsel filed a motion to suppress the evidence obtained from the car and home. The motion stated, "no reasonable and articulable cause to stop the defendant and no search warrant was obtained prior to the illegal stop" and "the search of the Defendant's residence was illegal and without a proper search warrant." As for the search of Walls's person, we agree with the State that Walls waived error by failing to cite authority or argument for why the search was unlawful.
We find issues five through ten enumerated above too general to decide. Dunbar, 515 N.W.2d at 15.
We affirm the district court's denial of Walls's application for postconviction relief.