Opinion
No. 5-418 / 04-1486
Filed July 13, 2005
Appeal from the Iowa District Court for Black HawkCounty, Jon Fister, Judge.
Cletus Johnson appeals the dismissal of his application for postconviction relief. AFFIRMED.
Kathryn Mahoney, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, Thomas J. Ferguson, County Attorney for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Cletus Johnson comes before us for a third time. Johnson now appeals the district court's dismissal of his application for postconviction relief. We conclude the issues raised and disposed of in Johnson's second direct appeal are so similar to the claim he now asserts in his application that he is not entitled to postconviction relief and no purpose would be served by adjudicating his application. Therefore, we affirm the dismissal of his application.
In his original appeal from his convictions for first-degree robbery, first-degree burglary, and delivery of a controlled substance Johnson successfully argued he was denied a fair trial by the State's use of prior, unrelated other crimes evidence at trial. Due to the district court's erroneous admission of this other crimes evidence we reversed Johnson's convictions and remanded for a new trial. State v. Johnson, No. 99-0557 (Iowa Ct.App. Nov. 20, 2000).
I. Background Facts and Proceedings
In this appeal we are not concerned with the details of the incident that led to the charges against Johnson. However, we are concerned with the course of proceedings leading up to this appeal.
At Johnson's second trial his trial counsel filed a motion in limine seeking to exclude any mention of sexual activity between Johnson and his alleged victim on the night Johnson was charged with having committed the crimes. This motion was denied by the district court. Following a jury trial, Johnson was convicted of first-degree burglary and first-degree robbery.
On Johnson's second direct appeal he raised six issues including (1) whether the district court abused its discretion by allowing evidence to be presented regarding sexual conduct between Johnson and the victim, and (2) that his trial counsel was ineffective for failing to move for a mistrial based on prosecutorial misconduct. We affirmed Johnson's convictions. Johnson then filed an application for postconviction relief. The State resisted the application and filed a motion to dismiss.
Although the State's motion does not so specify, we treat it as a motion under Iowa Code section 822.6 (2003) for dismissal of an application for postconviction relief where "the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings. . . ."
The district court held a hearing on the motion and began this hearing by noting that on Johnson's appeal following his second trial this court
[s]et out, because sufficiency of the evidence was raised, all of the evidence that supports the conviction on the robbery and the conviction of the burglary and concluded that that evidence was so overwhelming that there wouldn't be any prejudice from any errors by the prosecutor or by the admission of the sexual abuse evidence.
The district court then went on to state,
And I — I can't believe they want this business about the alleged sexual abuse raised again, because they addressed it. I think it's being recast and reargued to make it look like it's a different argument, but the argument is still the same, that the evidence about the alleged rape prejudiced the outcome of the case.
The district court then ruled,
[T]here's been already one bite at the apple on this on the admission and use of the — whether the sexual abuse was — happened or whether it was consensual or whatever, that's been in there and the Court of Appeals said the evidence was overwhelming independent of that and that's still the bottom line. And so I am going to — I'm going to grant the motion to dismiss. I think this has been done, it's been repackaged to present in a different way, but we've been down this road already and the evidence on the sexual activity has been held not to be a sufficient enough reason to overturn the verdict and have a third trial in this case. I — I — I think it's creative to repackage it this way but it's the same argument, that the — that the — the claimed evidence about the rape prejudiced the jury and inflamed them so much that they couldn't concentrate on the elements of the case. It's the same argument packaged a different way and pointing out specific instances of things that happened relative to that.
Johnson then filed a motion to reconsider, arguing that the application for postconviction relief involved separate issues than the prior direct appeal because it raised for the first time the issue of whether the appellate defender was ineffective for not raising a constitutional issue on appeal. Specifically, Johnson argued that even though the underlying issue is the same as the evidentiary issue reviewed and decided adversely to Johnson on direct appeal, his appellate defender was ineffective in not raising the issue as a constitutional violation. Johnson argued that because constitutional issues are reviewed de novo and evidentiary issues are reviewed only for an abuse of discretion there is a probability the outcome of the direct appeal would have been different had the issue been cloaked as a constitutional violation. The district court denied Johnson's motion to reconsider. Johnson appeals.
II. Scope of Review
Appellate review of postconviction relief proceedings is for correction of errors at law. Manning v. State, 654 N.W.2d 555, 558-59 (Iowa 2002).
III. Discussion
Iowa Code section 822.6 (2003) provides in pertinent part,
When a court is satisfied, on the basis of the application, the answer or motion, and the record that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reason for dismissal. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed. . . .
In this case the State moved to dismiss Johnson's application and Johnson responded to this motion. Following his response the district court dismissed Johnson's application.
Johnson, in his application for postconviction relief, raised the following issue:
Both trial counsel and appellate counsel were ineffective for not raising the issue of due process an[d] fundamental fairness under the US Constitution and the Iowa Constitution. In particular, the manner in which the prosecutor . . . conducted the trial so infected and prejudiced the jury that they were incapable of deliberating on the charges.
In order to succeed on his denial of due process claim Johnson must establish the prosecutor's conduct deprived him of a fair trial. State v. Graves, 668 N.W.2d 860, 876 (Iowa 2003). The aspect of a fair trial implicated by Johnson's current challenge is his right to have his guilt or innocence determined solely on the basis of the evidence introduced at trial. Id. This right is threatened by any incident or conduct likely to prejudice the jury. Id. at 876-77.
On appeal following his second trial, Johnson argued that (1) the trial court erred in allowing into evidence allegations about prejudicial sexual conduct and (2) that his trial counsel was ineffective for failing to move for a mistrial based upon the prosecutor's use of this prejudicial evidence. We reviewed the trial court's evidentiary ruling for an abuse of discretion. However, in so doing we stated that, "An erroneous evidentiary ruling will not result in reversal unless it is prejudicial." State v. Johnson, No. 01-0889 (Iowa Ct.App. Jan. 15, 2003). Thus, we reviewed the trial court's admission of this evidence to see whether "but for the error the outcome of trial would have been different." Id. We ultimately concluded,
Even if we assume the trial court's evidentiary rulings challenged on appeal were erroneous, Johnson is still not entitled to relief. Where, as here, other evidence overwhelmingly establishes guilt of the offenses charged, any error in admitting evidence of Johnson's prior sexual behavior or prosecutorial misconduct . . . was harmless as a matter of law.
Id.
Moreover, in deciding Johnson's ineffective assistance of counsel claim we also examined the prejudicial effect of his counsel's alleged failure. We stated,
Johnson's ineffective assistance of counsel arguments fail for the same reason as his challenges to the trial court's evidentiary rulings. Based on the strength of the State's case, we find no reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. . . . Because Johnson cannot prove he was prejudiced by trial counsel's conduct, we also affirm on this issue.
Id.
Our review for prejudice was tantamount to a review to establish whether Johnson was denied a fair trial. See Graves, 668 N.W.2d at 869 (stating consideration of whether prosecutorial conduct prejudiced a defendant is the same as determining whether the defendant was denied a fair trial). The phrase "denial of a fair trial" is generally considered to invoke the same basic concepts that inhere in due process of law. See Stringer v. State, 522 N.W.2d 797, 799 (Iowa 1994). Johnson provides no authority as to why "conduct not viewed as sufficiently unfair to warrant relief under general principles of a fair trial would have established a right to relief under a constitutional standard of due process." Id. at 800. Absent such authority it will not be presumed that conduct found harmless as a matter of law and otherwise non-prejudicial could warrant relief when challenged as a violation of due process. See id. Consequently, we conclude the district court was correct in dismissing Johnson's application for postconviction relief as he is "not entitled to postconviction relief and no purpose would be served by any further proceedings." See Iowa Code § 822.6.