Opinion
No. 2-618 / 01-1596
Filed January 29, 2003
Appeal from the Iowa District Court for Woodbury County, Michael S. Walsh, Judge.
On appeal from summary dismissal of an application for postconviction relief, Edwards contends his trial counsel's statements to an expert witness constituted ineffective assistance of counsel. AFFIRMED.
Patrick Parry of Forker and Parry, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Thomas Mullin, County Attorney, for appellee.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ. Huitink, J. takes no part.
William Edwards appeals the summary dismissal of his postconviction relief application. He contends he did not waive error by failing to raise an ineffective assistance of trial counsel claim on direct appeal. We affirm.
I. Background Proceedings
Edwards was tried, convicted, and sentenced for first-degree murder and third-degree sexual abuse. Our court affirmed his convictions on direct appeal. Edwards then filed a postconviction relief application asserting trial counsel provided ineffective assistance when he discussed strategy with a defense expert in the presence of an FBI agent. The district court summarily dismissed the application. On appeal, we found a genuine issue of material fact precluding summary disposition and we reversed and remanded for amplification of the record. On remand, the district court accepted additional evidence, then again summarily dismissed the postconviction relief application. This appeal followed.
Edwards also raised other claims which he did not attempt to prove.
II. Scope of Review
Our review of Edwards's constitutional ineffective assistance of counsel claim is de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. Waiver
A postconviction relief applicant who asserting a claim for the first time must show sufficient reason for failing to raise the claim on direct appeal. Bugley v. State, 596 N.W.2d 893, 896-97 (Iowa 1999). Otherwise, the claim is waived. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991). Ineffective assistance of counsel on direct appeal may constitute sufficient reason for failing to raise a claim on direct appeal. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
The question we must address is whether appellate counsel was ineffective in failing to raise the ineffective assistance of trial counsel claim Edwards is now pursuing. After considering deposition testimony of appellate counsel, the district court determined that "[a]ppellate counsel did consider the issue but did not raise it on appeal." The court further determined that, based on appellate counsel's general method of evaluating cases, he must have "concluded at that time that the subject issue was not one that he believed would give defendant a chance to succeed on appeal."
We do not read appellate counsel's testimony so broadly. Counsel testified he "could not tell" how much consideration he gave the issue and he was not sure why the issue was not raised on direct appeal. Therefore, we cannot conclude from appellate counsel's testimony alone that his decision not to raise trial counsel's ineffectiveness was a tactical decision. See Jones 479 N.W.2d at 272.
Accordingly, we proceed to the merits of Edwards's ineffective assistance of trial counsel claim. If we determine trial counsel was not ineffective, appellate counsel breached no duty by failing to raise trial counsel's ineffectiveness as an issue on appeal. See Cox v. State, 554 N.W.2d 712, 715 (Iowa Ct.App. 1996).
To establish ineffective assistance, a postconviction relief applicant must generally prove: 1) breach of an essential duty and 2) prejudice. Strickland v. Washington, 466 U.S. 668, 691-96, 104 S.Ct. 2052, 2066-69, 80 L.Ed.2d 674, 698 (1984). Where the breach turns on a conflict of interest and the applicant proves an actual conflict, prejudice is presumed. Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333, 346-48 (1980); cf. State v. Vanover, 559 N.W.2d 618, 631 (Iowa 1997) (affirming district court's disqualification of attorney based on potential conflict which "imperiled Vanover's right to adequate representation").
We begin with defense counsel's statement to the defense expert before trial. According to the FBI agent, he said, "Dr. Libby, at some point in your testimony you must use the term `exclusion.'" The fact that trial counsel made this statement does not, alone, amount to a breach of an essential duty. See DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002) (distinguishing between coaching and asking a witness to lie and stating "[a]ttorneys certainly have the right to prepare their witnesses. It would be foolhardy not to."). Defense counsel did not ask the expert to lie. Defense counsel also did not divulge any privileged information in the course of the discussion with the expert. See Exotica Botanicals, Inc. v. Terra Int'l, Inc., 612 N.W.2d 801, 809 (Iowa 2000); Squealer Feeds v. Pickering, 530 N.W.2d 678, 685 (Iowa 1995); cf. People v. Bolden, 58 P.3d 931, 945 (2002) (holding ineffective assistance of counsel claim fails without evidence defense counsel disclosed privileged information to defense expert). His discussion was, at worst, a mistake in judgment. See Cuevas v. State, 415 N.W.2d 630, 633 (Iowa 1987).
The context was defense counsel's discussion of DNA evidence with the expert and, specifically, whether the evidence might exclude Edwards as the perpetrator.
Trial counsel asked the agent on cross examination, "[d]id I say, "no, no, Dr. Libby, you must say this"? The FBI agent responded, "No, sir."
The more troublesome question is whether trial counsel's statement created a conflict of interest. See Cuyler 446 U.S. at 348, 100 S.Ct. at 1719, 64 L.Ed.2d at 350 (holding defendant was required to show "that an actual conflict of interest adversely affected lawyer's performance"); cf. Vanover, 559 N.W.2d at 631 (noting potential conflict might imperil defendant's right to adequate representation). Edwards contends the statement, made in the presence of a potentially adverse witness, created an impeachment opportunity for the State to exploit at trial, forcing trial counsel to choose between withdrawing or continuing his representation. He claims this conflict mandates a new trial.
We agree with Edwards that trial counsel's statement created a potential conflict. See Vanover, 559 N.W.2d at 629-30. Edwards's attorney elected to cross-examine the FBI agent with a view to eliciting a concession that his own statement to the expert was made in jest. The alternate course would have been to withdraw and testify himself. In either situation, he placed his credibility at issue. Id. However, his efforts to mitigate his own conduct also served the best interests of his client. For example, unlike the attorney in Vanover who personally interviewed and took a recorded statement from a codefendant and who thereby became a potential witness for the State, trial counsel here did not actively represent an interest adverse to Edward's. See Cuyler, 446 U.S. at 349, 100 S.Ct. at 1719, 64 L.Ed.2d at 350. In other words, defense counsel did not "serve two masters." State v. Thompson, 597 N.W.2d 779, 785 (Iowa 1999) (quoting Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680, 702 (1942)); State v. See, 387 N.W.2d 583, 585 (Iowa 1986) (noting attorney "represented neither multiple defendants nor prosecution witnesses, circumstances commonly creating conflicts" and "was not forced to choose one client over another" or "to weigh personal, pecuniary concerns against the client's best interests").
We are left with a mistake in judgment that generated a potential conflict of interest. As a general rule, mistakes in judgment are not enough to establish ineffective assistance of counsel. Cuevas, 415 N.W.2d at 633. The fact that this mistake created a potential conflict of interest does not require us to deviate from the general rule, as there was no adverse effect on counsel's performance at trial. Having created fodder for impeachment, counsel attempted to minimize its impact. While in hindsight, we can say his effort was unsuccessful, the fundamental fairness of the proceeding was not called into question. See Osborn, 573 N.W.2d at 921; cf. Mickens v. Taylor, 535 U.S. 162, ___, 122 S.Ct. 1237, 1244, 152 L.Ed.2d 291, 305, (2002) (noting prejudice presumed "only if the conflict has significantly affected counsel's performance — thereby rendering the verdict unreliable. . . ."). Accordingly, we conclude trial counsel's mistake did not rise to ineffective assistance of counsel. Because it did not, appellate counsel was not ineffective in failing to raise this issue on direct appeal and Edwards's claim is waived.
We need not address the question of whether the district court breached a duty by failing to, sua sponte, make an inquiry about the conflict in Edwards's presence, as this issue was not raised. See State v. Watson, 620 N.W.2d 233, 238 (Iowa 2000) (addressing only the question of the trial court's (and not trial counsel's) duty on appeal to determine whether an actual conflict existed and whether the defendant validly waived the right to independent counsel).