Opinion
No. 4-826 / 04-0030
Filed February 9, 2005
Appeal from the Iowa District Court for Polk County, Maynard J.V. Hayden, Judge.
Applicant appeals from district court's denial of his application for postconviction relief. AFFIRMED.
Susan R. Stockdale of Terrill, Martens, Hulting Stockdale, Ames, for appellant.
Daniel W. Ockenfels, pro se.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Daniel Ockenfels appeals following the district court's denial of his application for postconviction relief. We affirm.
I. Background Facts and Proceedings.
Daniel Ockenfels was charged with two counts of robbery in the second degree in violation of Iowa Code sections 711.1 and 711.3 (1999). The charges stemmed from two robberies occurring at a Mercantile Bank in Des Moines, the first on December 7, 1999, and the second on December 10, 1999. Although no physical evidence tied Ockenfels to the crime, several eyewitness identified Ockenfels as the robber.
Tammy Olson, a teller supervisor, was present during both robberies. When presented with photographic arrays she identified Ockenfels as the man who committed both the December 7 and December 10 robberies. Her identifications remained consistent up to and including her testimony at trial. During trial she testified in detail as to both robberies, and identified Ockenfels as the perpetrator on both occasions. Rachel Miller, a bank teller, was also present for both robberies. She too consistently identified Ockenfels, both prior to and during trial, as the man who robbed the bank on December 7 and December 10. In addition, three other tellers working on December 10 positively identified Ockenfels as the man who robbed the bank on that date.
Two customers who were in the bank's drive-through lane during the December 10 robbery, Linda Thurmond and her eighteen-year-old granddaughter Brandi Thurmond, also identified Ockenfels. Linda stated she was "pretty sure" Ockenfels was the man who robbed the bank and then ran in front of the Thurmonds' car. Brandi specifically identified Ockenfels as the man who ran from the bank and in front of the car. Linda and Brandi also described an older white pickup truck, with rust and a blue stripe, that the robber used to escape the scene. They stated the truck was similar to one appearing in a photographic exhibit.
The truck in the exhibit, an older-model white pickup truck with rust and a blue stripe, belonged to Fort Dodge resident Holly Brown. Brown identified the truck as hers, and testified that in November and December 1999 the truck was being used by Bill Lockray, the father of her youngest child. Brown further testified that Lockray and Ockenfels were friends and that, on December 10, 1999, Lockray and Ockenfels were together in Des Moines.
The jury found Ockenfels guilty on both counts. The convictions were upheld by this court on direct appeal. See State v. Ockenfels, No. 00-1016 (Iowa Ct.App. May 15, 2002). We concluded the convictions were supported by substantial evidence, and that one of Ockenfels's claims of ineffective assistance of counsel was without merit. The remaining ineffective assistance claims were preserved for possible postconviction proceedings.
On June 27, 2002, Ockenfels filed a pro se "Litigation Notice" with the district court. The filing was treated as an application for postconviction relief and counsel was appointed. Counsel's supplemental application raised one of the preserved ineffective assistance of trial counsel claims — that counsel was ineffective for failing to object to hearsay testimony from Holly Brown. In addition, the supplemental application raised two new ineffective assistance claims: the failure of trial counsel to adequately cross-examine Linda and Brandi Thurmond, and trial counsel's failure to object to the cross-examination of a defense expert regarding the amount he was being paid to testify at trial. As to these two new claims, the application further asserted that appellate counsel was ineffective for not raising the claims in the direct appeal.
After an evidentiary hearing, the district court denied Ockenfels's application for postconviction relief, concluding that both trial and appellate counsel had performed within the range of normal competency, and Ockenfels had failed to establish the requisite prejudice. Ockenfels appeals. In the appeal brief filed by his counsel, Ockenfels reiterates the claims made before the postconviction court. Ockenfels has also filed a pro se appeal brief, which both mirrors claims made by counsel, and raises additional issues.
II. Scope of Review.
Postconviction relief proceedings are reviewed for the correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, claims that raise constitutional issues, such as the alleged ineffective assistance of counsel, are reviewed de novo. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
III. Discussion.
To establish ineffective assistance of either trial or appellate counsel, Ockenfels must prove his attorney's performance fell below "an objective standard of reasonableness," and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). Ockenfels's ineffective assistance claims may be disposed of if he fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
A. Previously-Preserved Claim.
Ockenfels's first claim centers on certain testimony by Holly Brown. During trial Brown was asked whether, when she saw Lockray after December 10, 1999, he had "anything unusual with him." Brown responded in the negative, but went on to state, "A friend of mine that works at the credit union that we banked at told me that he had deposited $5,600 into our account. . . ." Trial counsel did not object to this testimony, but did establish on cross-examination that Lockray was a construction contractor, and had told Brown the $5,600 deposit was in the form of a cashier's check.
Ockenfels asserts counsel's failure to object to this statement by Brown was tantamount to ineffective assistance of counsel. The State admits Brown's statement constitutes hearsay, does not fall within any exceptions to the hearsay rule, and thus would have been excluded if counsel had objected. See Iowa Rs. Evid. 5.801-.804. Moreover, during the postconviction hearing trial counsel could not testify with any certainty that her lack of objection on this point was a strategic or tactical decision. Cf. State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999) ("Where counsel's decisions are made pursuant to a reasonable trial strategy, we will not find ineffective assistance of counsel."). Accordingly, Ockenfels has met his burden to establish that counsel's performance fell below an objective standard of reasonableness. However we, like the district court, conclude Ockenfels has not established the necessary prejudice.
In assessing whether Ockenfels has demonstrated a reasonable probability that exclusion of the evidence would have resulted in a different outcome, we must consider the general rule "that error in the admission of hearsay is presumed prejudicial unless the contrary is affirmatively established." See State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992) (addressing ineffective assistance of counsel claim based on failure by counsel to object to hearsay evidence). Upon a review of the totality of the evidence, we conclude this statement would not have negatively impacted the jury's decision.
As previously noted, while no direct evidence tied Ockenfels to the robbery, he was identified by a number of eyewitnesses. Two bank employees positively and consistently identified Ockenfels as the robber on both December 7 and 10, and three other bank employees positively identified him as the robber on December 10. Holly Brown placed Lockray and Ockenfels together in Des Moines the day of the December 10 robbery, and the Thurmonds placed the December 10 robber in a vehicle strikingly similar to that used by Lockray. In light of this evidence, and the implication raised on cross-examination that the bank deposit by Lockray may have been related to his construction work, we cannot conclude Ockenfels was prejudiced by the hearsay statement.
B. Newly-Forwarded Claims.
In the postconviction relief proceedings Ockenfels raised, for the first time, two additional ineffective assistance claims. Ockenfels asserts trial counsel was ineffective because she did not elicit testimony from Linda and Brandi Thurmond, on cross-examination, which would have shown that neither woman had consistently identified Ockenfels as the December 10 robber. He further asserts trial counsel was ineffective for failing to object when, during cross-examination of defense expert Dr. Thomas Sannito, the State asked Dr. Sannito how much he was being paid to testify at Ockenfels's trial, and Dr. Sannito responded that he "get[s] paid $2,000 a day plus expenses."
Ockenfels does not challenge the accuracy or reliability of the Thurmonds' statements that the man who robbed the bank on December 10 fled the scene in an older-model, white pickup truck with rust and a blue stripe, or that the getaway vehicle was similar to the vehicle shown in the photographic exhibit.
As these claims were not raised on direct appeal, Ockenfels must establish both a "sufficient reason" or "cause" for the failure to raise them on direct appeal, and actual prejudice. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). Generally, a sufficient reason or cause is provided by the ineffective assistance of appellate counsel. Id. However, we need not address whether, in this instance, a sufficient reason or cause is provided by the ineffectiveness of appellate counsel, as we conclude there is not resulting prejudice.
Cf. 2004 Iowa Acts ch. 1017, § 2 (codified at Iowa Code § 814.7 (2005)) (providing, effective July 1, 2004, and thereafter, that ineffective assistance of counsel claims can be determined in the first instance in a postconviction proceeding, even if not raised in a direct appeal).
Given the totality of the evidence, including the specific and certain identifications of Ockenfels by multiple bank employees, any weaknesses in the Thurmonds' identifications do not create a reasonably probability of a different outcome. We reach the same conclusion regarding counsel's failure to object to the question asked of Dr. Sannito, and his response.
When shown a pre-trial photographic array, Linda Thurmond identified another individual as the robber, although she stated the individual in photograph #1 (Ockenfels) looked similar to the robber. During her deposition, Linda stated that Ockenfels looked "very similar" to the robber, but she could not be sure. While Brandi Thurmond positively identified Ockenfels in a pre-trial photographic array, during her deposition she could not positively identify Ockenfels as the man who ran from the bank, stating it had been "a long time" since the robbery.
Ockenfels admits the question was relevant to an assessment of Dr. Sannito's credibility, but asserts it was more prejudicial than probative. See Iowa R. Evid. 5.403 (providing for exclusion of evidence "if its probative value is substantially outweighed by the danger of unfair prejudice"). Ockenfels contends the testimony was unduly prejudicial because the jury would conclude he could afford to pay Dr. Sannito $2,000 per day only if he had access to robbery proceeds. We cannot agree. Simply put, we do not believe Dr. Sannito's answer to the question concerning his fee for testifying at a trial supports the inference that Ockenfels robbed a bank.
Moreover, to be considered unfairly prejudicial, evidence must create an undue tendency in the jury to make a decision on an improper, and often emotional, basis. State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997). Dr. Sannito's testimony does not rise to this level. Furthermore, in light of the other evidence tying Ockenfels to the robbery, we are confident that omission of this detail would not have changed the outcome of the proceedings.
IV. Conclusion.
We have fully considered all claims raised in both counsel's brief, and Ockenfels's pro se brief, whether or not specifically addressed. Having done so, we conclude Ockenfels has not established that he was prejudiced by any of counsel's alleged failures, or that any other complained of errors warrant reversal of his convictions. Accordingly, we affirm the district court's denial of Ockenfels's application for postconviction relief.