Opinion
No. 1-905 / 01-0179.
Filed March 27, 2002.
Appeal from the Iowa District Court for Dubuque County, ROBERT J. CURNAN, Judge.
Magnus Havenstein appeals the denial of his postconviction relief application. AFFIRMED.
Eric K. Parrish of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, and Fred H. McCaw, County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Magnus Havenstein appeals the denial of his postconviction relief application. We affirm.
Background facts and proceedings . On October 31, 1996, the State charged Havenstein with first-degree murder, in violation of Iowa Code sections 707.2(5) and 707.2(2) (1995), based on the death of his son Miles. Following a trial, the jury found him guilty and the court sentenced him to life in prison. This court affirmed his conviction on direct appeal in State v. Havenstein, No. 8-149/97-623 (Iowa Ct.App. May 29, 1998). Havenstein subsequently filed an application for postconviction relief in which he asserted, among other things, trial counsel was ineffective in failing to pursue a legitimate trial strategy and in failing to conduct adequate investigation. After a hearing, the district court denied the application. Havenstein appeals from this ruling.
Standard of review . We review an appeal from the denial of postconviction relief for correction of errors at law. McLaughlin v State, 533 N.W.2d 546, 547 (Iowa 1995). To the extent the application raises constitutional issues, our review is de novo. Id.
Failure to hire an expert . Havenstein contends his trial counsel was ineffective in failing to secure a rebuttal witness to the State's experts who testified the injuries suffered by Miles could not have been sustained during a fall from a loveseat, as Havenstein explained. We conclude the district court properly rejected this contention. Havenstein failed to introduce at his postconviction relief hearing evidence that any expert was willing to testify to such a conclusion. Without such evidence, this contention is pure speculation. Further, the record shows trial counsel did attempt to secure experts but determined that their testimony would be unfavorable. His decision not to call these experts was a reasonable trial decision. When counsel makes a reasonable tactical decision, we will not engage in second-guessing. Fryer v. State, 325 N.W.2d 400, 413 (Iowa 1982).
Failure to investigate the defense of intoxication . Havenstein asserts the court erred in failing to find trial counsel ineffective by not investigating the possibility of raising the defense of intoxication. We find the postconviction record reflects that trial counsel did consider such a defense, but decided against such a course for various reasons. Further, the record indicates the decision not to present an intoxication defense was a reasonable strategic decision, and we will not second-guess it at this stage. Fryer, 325 N.W.2d at 413. The postconviction court did not err in this regard.
Failure to object to Rhomberg's testimony . Havenstein argues trial counsel should have objected to the testimony of his fourteen-year-old neighbor, Susie Rhomberg, who testified that approximately a week before Miles' death she saw Havenstein hit or push Miles and swear at him. This claim was resolved on direct appeal with this court finding no prejudice to Havenstein and he is therefore precluded from relitigating the issue at the postconviction proceedings. See State v. Jackson, 199 N.W.2d 102, 102-03 (Iowa 1972) (stating postconviction proceedings are not available to relitigate issues previously adjudicated).
Failure to set forth an adequate defense . Havenstein contends counsel "failed to provide an adequate defense at trial." We conclude this assertion is too general to address. When complaining about the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). The applicant must state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome. Id.; State v. Kendall, 167 N.W.2d 909, 911 (Iowa 1969). Havenstein's argument fails to meet this test.
Cumulative error . Havenstein contends "the cumulative effect of all the errors was so prejudicial that defendant was denied a fair and impartial trial and deprived of ineffective assistance of counsel." Again, we conclude this issue was not preserved for our review. Havenstein did not raise this ground for relief either on direct appeal or in his postconviction relief application. Furthermore, because we find no merit in the individual claims of ineffective assistance of counsel, we therefore find no merit to Havenstein's claim of cumulative error. See Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996) ("Errors that are not unconstitutional individually cannot be added together to create a constitutional violation."); State v. Veal, 564 N.W.2d 797, 812-13 (Iowa 1997) (rejecting cumulative error claim).
Conclusion . We conclude the district court correctly rejected Havenstein's claims his trial counsel provided ineffective assistance. We therefore affirm.
AFFIRMED.