Opinion
No. 4-228 / 03-0437.
June 9, 2004.
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.
Sean Castine appeals from the district court's denial of his postconviction relief application. AFFIRMED.
Lars Anderson of Holland Anderson, L.L.P., Iowa City, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Thomas Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Sean Castine appeals from the district court's denial of his postconviction relief application. He contends his trial counsel in the underlying criminal action was ineffective for failing to properly identify, investigate, and call certain witnesses whose testimony would have supported his defense, and his appellate counsel on direct appeal was ineffective for not raising and preserving the claim. He further claims his postconviction counsel was ineffective. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
In February of 1998 Castine was convicted of murder in the first degree for the stabbing death of Larry Casto. At trial Castine alleged that he and a man named David Fitzpatrick went to meet Casto on the night in question at the adult theater where Casto worked in order to buy marijuana from Casto and that Fitzpatrick must have been the one who killed Casto. Castine was sentenced to life in prison. He appealed from his conviction and this court affirmed the conviction. State v. Castine, No. 98-0443 (Iowa Ct.App. Jan. 1, 1999). On direct appeal Castine raised several claims of ineffective assistance of trial counsel different than the claim he pursues in this appeal. We found Castine could not show the required prejudice to succeed on any of those claims.
Castine filed a pro se application for postconviction relief. Counsel was appointed and filed an amendment to the application. In his application Castine claimed, among other things, that his trial counsel was ineffective for failing to call certain witnesses who would allegedly have corroborated his testimony. He also alleged his appellate counsel was ineffective for failing to raise this issue of ineffective assistance of trial counsel on direct appeal. The district court held a hearing on Castine's postconviction application. Castine was the only witness who testified at the hearing.
In the relevant portion of the district court's postconviction ruling, the court found that two of the witnesses Castine alleged should have been called to offer corroborating testimony, Harry Beatty and Londa Lewis, did testify at Castine's trial and thus were available for cross-examination by Castine. The court also held that Castine did not sufficiently specify what the testimony of Steve Niedert, Caleb Thomas, and Danny Friese would have been or how it would have affected the outcome of his trial, and that the evidence of Casinte's guilt was so overwhelming the testimony would not have changed the outcome of the trial. Accordingly, the court concluded trial counsel was not ineffective for failing to call the specified witnesses. Because the district court determined that Castine's trial counsel was effective, it concluded that his appellate counsel could not have been ineffective for failing to raise similar claims on direct appeal.
Castine appeals from the district court's denial of his postconviction application. He claims his trial counsel was ineffective for failing to properly identify, investigate, and call witnesses whose testimony would have supported his defense, appellate counsel on direct appeal was ineffective for not raising and preserving the claim, and postconviction counsel was ineffective for failing to properly investigate and call certain witnesses.
II. SCOPE AND STANDARDS OF REVIEW.
We typically review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts a claim of constitutional nature, such as ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Id. III. MERITS.
To prove ineffective assistance of counsel the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma, 626 N.W.2d at 142. In order to prove prejudice, Castine must show there is a reasonable probability that but for his counsel's unprofessional errors the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698; Ledezma, 626 N.W.2d at 143-44.
Castine's claims of ineffective assistance of trial counsel were not raised in his direct appeal. Generally claims not properly raised on direct appeal cannot be raised in a postconviction action unless the applicant can show "sufficient reason" or "cause" for not properly raising the claims on direct appeal. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). Ineffective assistance of appellate counsel may provide "sufficient reason" or "cause" to permit the issue of ineffective assistance of trial counsel to be raised for the first time in a proceeding for postconviction relief. Id. Castine contends his appellate counsel was ineffective for failing to raise these issues on direct appeal.
Castine's claims of ineffective assistance of appellate counsel were raised and decided adversely to Castine by the postconviction court and thus are preserved for our review. Postconviction counsel is not expected to raise claims of ineffective assistance against himself and thus the ordinary rules of error preservation do not apply to these claims. See Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993).
A. Ineffective Assistance of Trial Counsel.
Castine claims his trial counsel, Robert Newberry, was ineffective for failing to call two witnesses, Caleb Thomas and Danny Freese. Specifically, he contends they would have testified that Castine knew Fitzpatrick, they saw Fitzpatrick after the murder, and that Fitzpatrick was looking for Castine at that time and asked them where he was. Castine argues this testimony would have corroborated his version of the events on the night in question, including that Fitzpatrick was the real murderer, and bolstered his credibility which was impeached numerous times by the State. As set forth above, the postconviction court found with regard to these two individuals that Castine did not testify as to exactly what their testimony would have been at the time of the trial or how it would have affected the outcome of his trial. Therefore, Castine has not shown that he was afforded ineffective assistance of counsel by his failure to call these additional witnesses.
By Castine's own admission at the postconviction hearing neither Thomas nor Freese were present at the time of the events surrounding the murder. Thus, even presuming that these two people exist, that Castine told trial counsel about them, and that they would have testified as Castine claims, neither of them could have given any information whatsoever about the crime charged because they were not present when it occurred. Thus, they could not have testified regarding, or lent any credibility to, Castine's claim that Fitzpatrick was the one who killed Casto. Accordingly, assuming without deciding trial counsel had some duty to call either of these witnesses at trial, we find Castine was not prejudiced by this alleged failure because there is no reasonable probability that the supposed testimony of either one of these witnesses would have changed the outcome of the trial. See Ledezma, 626 N.W.2d at 143.
Furthermore, we conclude that the evidence in this case is so overwhelming there is no reasonable probability that calling these two purported witnesses would have changed the outcome of the trial. Some of the overwhelming evidence against Castine includes the following: several witnesses saw Castine at the theater where Casto worked on the night in question; the blood found on Castine's clothes matched the DNA profile of the victim; the VCR's and videos stolen from the theater were found in the car with Castine on the night of the murder; included in those items was the security tape from the theater, which showed Castine alone with the victim in the lobby of the theater in which the body was found the next day; Castine was throwing several items out of the window of the car after the police arrived, and the next day officers found the security video tape by the side of the road, broken apart and with part of the tape pulled out; and finally Castine's left sandal was similar in tread design to a footwear impression found near Casto's body.
In addition, Castine lied repeatedly about the events of the evening and gave several different versions of what had occurred, including initially saying he had never been to the theater in question before and variously stating that the blood stains on his clothes were from barbeque sauce, from blood from a cut on his hand, and then from a bloody nose some one else had suffered at a party he had attended. Because the evidence against Castine was so overwhelming that there is no reasonable probability the testimony which Thomas and Freese would have allegedly given would have changed the outcome of the trial, Castine was not prejudiced by the fact they were not called to testify by his trial counsel.
B. Ineffective Assistance of Appellate Counsel.
Castine next claims that his counsel on direct appeal was ineffective for failing to raise the present claim of ineffective assistance of trial counsel discussed above. "To prove appellate counsel's deficient performance resulted in prejudice, the applicant must show his ineffective assistance of trial counsel claim would have prevailed if it had been raised on direct appeal." Ledezma, 626 N.W.2d at 141. Because we have determined Castine has failed to show his ineffective assistance of trial counsel claim would have prevailed had it been raised, we also conclude his appellate counsel could not have been ineffective for failing to raise the same issue on directappeal. Appellate counsel had no duty to raise this meritless issue, and thus cannot be ineffective for failing to do so. See, e.g., State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (stating trial counsel is not incompetent in failing to pursue a meritless issue).
C. Ineffective Assistance of Postconviction Counsel.
Castine next contends his postconviction counsel was ineffective for failing to call Thomas and Freese to testify at the postconviction hearing that Fitzgerald was a real person. He further contends that postconviction counsel was ineffective for failing to call his trial counsel, Newberry, to testify about what Castine had told him regarding Thomas and Freese and what follow-up investigation he pursued on that information.
We have already determined that Thomas and Freese could not have offered any information regarding the crime charged here because they were not present when the incident took place. As set forth above, even if they would have been called and testified as Castine claims, there is no reasonable probability their testimony would have changed the outcome of any of the proceedings, including the postconviction proceeding. Therefore, Castine has not shown he was in any way prejudiced by postconviction counsel's not calling Thomas and Freese to testify, and thus postconviction counsel was not ineffective for not doing so. Furthermore, because we have determined that any testimony which would have allegedly been given by Thomas and Freese could not have changed the outcome of the proceedings at any stage, postconviction counsel was not ineffective for not calling Newberry to testify regarding these individuals.
Castine also contends his postconviction counsel was ineffective for failing to call Harry Beatty to testify to corroborate portions of his testimony regarding Fitzpatrick. In his amendment to his postconviction petition, Castine claims that Beatty would have "testified that there was another person at the theater, and that someone other than [Castine] took [Casto's] car."
Initially, we note that Beatty did testify at Castine's criminal trial and thus Castine did have the opportunity to cross-examine him. Beatty stated that he was at the theater on the night in question between approximately 9:30 and 10:30 p.m. and that while at the theater he saw Casto, an unidentified white male he did not know, and a black male who was not Castine. He also testified that Casto's car was still parked in the parking lot when he left. Thus, his testimony did show there were people other than Castine at the theater. However, there is no evidence that Beatty could have testified he saw someone other than Castine take Casto's car because Casto's car was still there when he left the theater. Nor is there any evidence he could corroborate anything regarding Fitzpatrick.
Accordingly, we find Castine has not proven he suffered any prejudice by postconviction counsel's failure to call Beatty to testify again at the postconviction trial. Castine presented no evidence that Beatty would have given any additional or different testimony than he gave at the criminal trial, and clearly that testimony would not have changed the outcome of the postconviction proceeding because it did not help Castine avoid conviction at the criminal trial.
Furthermore, even assuming Beatty would have testified as claimed by Castine, due to the overwhelming evidence against Castine we cannot find any reasonable probability that his testimony would have changed the outcome of the postconviction proceeding.
IV. CONCLUSION.
For all of the reasons set forth above, we conclude that Castine has failed to show the outcome of any of the proceedings would have been different had the specified additional witness testified as he claims. Accordingly, he has not met his burden to prove he was denied the effective assistance of counsel at trial, on appeal, or in this postconviction proceeding.