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Morales v. State

Court of Appeals of Iowa
Nov 15, 2002
No. 2-520 / 01-1328 (Iowa Ct. App. Nov. 15, 2002)

Opinion

No. 2-520 / 01-1328.

Filed November 15, 2002.

Appeal from the Iowa District Court for Polk County, JOEL NOVAK, Judge.

Bryon Morales appeals from the district court's denial of his postconviction relief application. AFFIRMED.

David J. Dutton, Cheryl L. Weber and Gerald Feuerhelm of Dutton, Braun, Staack Hellman, P.L.C., Waterloo, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.

Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ.


After his murder conviction was upheld on direct appeal, Bryon Morales filed an unsuccessful application for postconviction relief. He appeals from the denial of his application, claiming ineffective assistance of counsel and newly discovered evidence entitle him to a new trial. He also forwards a complaint about an evidentiary decision by the district court. We affirm.

I. Background Facts and Proceedings. On November 10, 1995, Bryon Morales placed a 911 call requesting help for his two and one-half year old son, Kevin. Upon Kevin's arrival at the hospital doctors observed a scalp hematoma that covered the entire right side of his head, and further testing revealed a skull fracture, as well as swelling and collecting blood and fluid in and around the brain. Kevin died while undergoing surgery. Morales initially presented differing versions as to how Kevin had sustained his injuries, including a claim that Kevin had fallen down the basement steps. After the formal autopsy Dr. Thomas Bennett, the medical examiner, opined that Kevin's brain injuries were not chronic, or occurring sometime prior to the date of Kevin's death, but rather acute and intentional. Morales was charged with Kevin's murder and, following a December 1996 jury trial, was convicted of murder in the first degree and sentenced to life in prison.

This court, en banc, upheld Morales's conviction upon direct appeal. See State v. Morales, No. 8-074/97-152 (Iowa Ct.App. April 24, 1998). We resolved all presented claims of ineffective assistance of counsel, finding the evidence of Morales's guilt to be "overwhelming." Morales then filed an application for postconviction relief, arguing newly discovered evidence, as well as forwarding a large number of ineffective assistance of counsel claims, some of which duplicated arguments on direct appeal. The newly discovered evidence claim centered on the post-trial destruction of microscopic slides of Kevin's brain. The slides, prepared by Dr. Bennett in conjunction with the formal autopsy, were destroyed by the Department of Criminal Investigation approximately three months before our decision in Morales's direct appeal. Dr. Bennett's analysis of these slides, and his conclusion that they did not reveal a chronic injury, served as a basis for the trial opinions of State medical witnesses, who also opined Kevin's injuries were acute. After a lengthy hearing, including a record reopening to allow for further testimony, the district court denied Morales's petition. Morales appeals.

II. Scope of Review. Postconviction relief proceedings are reviewed for errors at law. Whitsel v. State, 525 N.W.2d 860, 862 (Iowa 1994). However, when an applicant raises claims with constitutional implications, such as ineffective assistance of counsel, our review of such claims is de novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002).

III. Dr. Berkland's Testimony . Morales's first attorney, James Benzoni, retained pathologist Dr. Michael Berkland to perform a second autopsy on Kevin. The results of that 1995 autopsy supported those reached by Dr. Bennett, and consequently Morales's trial attorneys, John Spellman and Rodney Ryan, did not call Dr. Berkland to testify at trial. The State did not call Dr. Berkland to testify at either trial or the postconviction relief hearing, but Benzoni did testify at the postconviction hearing regarding Dr. Berkland's autopsy, and the fact Dr. Berkland had, concurrent with that autopsy, examined the microscopic slides of Kevin's brain.

After the close of evidence Morales sought to reopen the record to enter two exhibits, the first of which supported his claim the county attorney's office had acted to withhold pertinent medical information from Benzoni and Dr. Berkland until after Dr. Berkland completed his autopsy. In his application to reopen, Morales argued the exhibit was relevant "because the Prosecutor is attempting to argue the second autopsy in some way was meaningful and beneficial to Bryon Morales." The application was granted without resistance, as was the State's request to file rebuttal evidence. When Morales objected to a rebuttal affidavit from Dr. Berkland, noting, among other things, he had no opportunity for cross-examination, the court set a telephonic hearing so that Dr. Berkland might offer live testimony.

Dr. Berkland's direct testimony was centered on the second autopsy. As part of the overall description of his actions, he indicated he had reviewed the microscopic slides. He also stated he received, either before or after the autopsy, all pertinent medical information relating to Kevin, and confirmed his opinion that Kevin's injuries were not chronic in nature. Morales's cross-examination was primarily an attack on Dr. Berkland's character and competence.

Morales challenges admission of Dr. Berkland's testimony as constituting an abuse of the district court's discretion. Although we question whether error has been preserved on this issue, see Iowa R.App.P. 6.14(1)( c), ( e), we will address the merits of Morales's contention.

[A] trial court in its discretion may allow reopening of the case at any stage of the trial, including after argument has commenced, if it appears "necessary to the due administration of justice." Such a decision will ordinarily not be interfered with by a reviewing court.

Bangs v. Maple Hills, Ltd., 585 N.W.2d 262, 267 (Iowa 1998) (citation omitted). An abuse of this discretion occurs only when the court has exercised its discretion based on clearly untenable grounds or to a clearly unreasonable extent. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001).

Morales first contends Dr. Berkland's testimony was beyond the scope of his own supplemental exhibits. He claims the exhibits were limited to previously raised issues of withheld evidence, while Dr. Berkland's testimony was a post-hearing attempt by the State to minimize any negative impact from the destruction of the microscopic slides. He also argues the State could have and should have presented any such self-bolstering testimony during the initial hearing. Finally, Morales seems to assert he was prejudiced by the timing of the testimony, as well as the fact he received no information about Dr. Berkland or his findings before the hearing. While Morales's arguments have some limited merit, he has not shown an abuse of discretion.

The thrust of Morales's application to reopen the record was impugning the reliability of Dr. Berkland's autopsy results. Accordingly, Dr. Berkland's testimony would seem to be relevant and admissible rebuttal testimony. See State v. Weaver, 608 N.W.2d 797, 806 (Iowa 2000) ("Rebuttal evidence is evidence that explains, repels, controverts, or disproves evidence produced by the opposing party.") The district court had considerable discretion in admitting such evidence, whether or not the State could have offered the evidence during the initial hearing. Id. Moreover, by setting a hearing on the matter, the court addressed one of Morales's chief complaints — the need to cross-examine Dr. Berkland.

Although Morales argues his cross-examination was impeded by the State's failure to provide documentation regarding Dr. Berkland and/or his medical findings, he fails to specify what information was withheld by the State. We presume his chief complaint was a failure to produce Dr. Berkland's autopsy report. Assuming the State failed to produced a report from Dr. Berkland, a fact not actually addressed by the record, it is unclear whether the State possessed a copy of any such report, or if a report was even generated. While Morales argues he should have been provided the documents Dr. Berkland referred to during his testimony, there is no showing any of those documents were items he requested, but which were not produced.

Prior to the postconviction hearing Morales made a broad request for medical records related to either autopsy. The State responded that "[m]ost, if not all" of the items had been produced, resisted what it characterized as a "dragnet-type" request, and stated any specific requests would be considered. Morales then supplemented with a specific request for Dr. Berkland's autopsy report. Although Morales filed a motion to compel production of the report approximately eleven months prior to the hearing, it appears his motion was never ruled on by the district court.

Berkland testified that he did produce a final autopsy report, but could not recall whether he had sent a copy to the prosecutor's office. Benzoni, who ceased his representation of Morales approximately a month after the second autopsy, did not believe Berkland had ever produced a written report. While Morales's trial attorneys, John Spellman and Rodney Ryan, were clearly aware of Berkland's opinion, it does not appear they received written findings. In fact, Morales's attacks on Berkland's credibility actually support a conclusion that no autopsy report was prepared.

Simply stated, the record does not demonstrate any pertinent information concerning Dr. Berkland or his findings was available and requested, yet withheld from Morales. To the extent Morales claims unfair surprise by the calling of Dr. Berkland after the close of testimony, he has not alleged, much less shown, why the approximate one month notice of Dr. Berkland's testimony was an inadequate amount of time to prepare for cross examination. Morales has not established how he was prejudiced by the timing or content of Dr. Berkland's testimony and, as the testimony was relevant and admissible, we cannot find the district court abused its discretion when it allowed Dr. Berkland to testify.

IV. Newly Discovered Evidence . One of the grounds for postconviction relief is "evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice." Iowa Code § 822.2(4) (1995). Morales's claims of newly discovered evidence revolve around the microscopic slides of Kevin's brain. In his brief Morales forwards two arguments regarding this evidence.

The first is that the slides themselves must be considered newly discovered evidence, as they were never made available to the defense. See Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998) (requiring proof of material evidence, discovered after judgment, that could not have been discovered earlier in the exercise of due diligence, and that would probably change the result of a new trial). The record does indicate the slides were never produced to Morales's trial counsel, Spellman and Ryan. The slides were made available, however, to Dr. Berkland, and both Dr. Berkland and Benzoni testified Berkland reviewed the microscopic slides in conjunction with his autopsy on Kevin. While Spellman and Ryan may not have received a written report, they were both aware Dr. Berkland had conducted the autopsy and had reached results unfavorable to Morales's theory of defense. Clearly, this is not newly discovered evidence.

Morales contends Dr. Berkland is so dishonest and incompetent that his testimony must be ignored. Were we to do so, we would be disregarding a clear and specific credibility finding made by the district court, something we rarely do. See State v. Mitchell, 568 N.W.2d 493, 503 (Iowa 1997) (noting that credibility determinations are generally left to the fact finder). It is generally only where testimony was "so impossible, absurd, and self-contradictory that the court should deem it a nullity." Id.

Morales's second claim is that a "change" in the testimony of one of the State's witnesses, Dr. Thomas Carlstrom, constitutes newly discovered evidence. Morales alternatively focuses on Dr. Carlstrom's pretrial and post-appeal change in opinion. Neither change meets the criteria of newly discovered evidence.

The pretrial change occurred following a meeting between Dr. Carlstrom, Dr. Bennett, another State witness, Dr. Donald Moorman, representatives of the county attorney's office, and the police. After that meeting Dr. Carlstrom, who initially believed Kevin's injuries were chronic, decided to defer to Dr. Bennett's analysis of the slides, and opined during trial that Kevin's injuries were acute. However, since Dr. Carlstrom's decision to defer to Dr. Bennett was revealed during a pretrial deposition, and as the existence of the meeting was a fact readily available to trial counsel, neither the change in opinion nor the underlying factors constitute evidence that trial counsel did not know or could not have discovered, in the exercise of due diligence. Summage, 579 N.W.2d at 822.

The post-appeal change, Dr. Carlstrom's reversion to his pretrial, chronic diagnosis, was precipitated by the destruction of the slides, and Dr. Carlstrom's unwillingness to continue to defer to Dr. Bennett's analysis of the slides, absent an independent review. Both the destruction of the slides, and Dr. Carlstrom's reversion to his initial diagnoses, occurred well after Morales's conviction and sentence. Accordingly, they cannot constitute newly discovered evidence as, "by definition, newly discovered evidence refers to evidence which existed at the time of the trial proceeding." Grissom v. State, 572 N.W.2d 183, 184 (Iowa Ct.App. 1997). See also U.S. v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir. 1993) (citing United States v. Bolden, 355 F.2d 453, 461 (7th Cir. 1966), cert. denied, 384 U.S. 1012, 86 S.Ct. 1919, 16 L.Ed.2d 1018 (1966)); State v. Perron, 686 So.2d 994, 996-97 (La.Ct.App. 1996); People v. Powell, 535 N.E.2d 1008, 1018 (Ill App. Ct. 1989). While an exception to the general rule is made for "extraordinary cases when an `utter failure of justice will unequivocally result' if the new evidence is not considered," Grissom, 572 N.W.2d at 184, this is not such a instance.

This is not a case where a defendant requests a new trial because potentially exonerating evidence did not become known until after trial. Dr. Carlstrom's post-appeal opinion was simply, in the absence of further corroboration, a reversion to his known pretrial opinion. This is not even a case where evidence once thought to be inculpatory now appears to be exculpatory. There is no direct evidence that the microscopic slides were anything other than inculpatory. Rather, a new trial is being sought because the defendant has been deprived of a post-trial opportunity to challenge the evidence's inculpatory nature. The fact remains, however, that the slides were available for further review during the entirety of Morales's trial. See U.S. v. Ryan, 153 F.3d 708, 713 -714 (8th Cir. 1998) (rejecting newly discovered evidence claim where testing methods were available at time of trial, finding motion was "premised, not on the existence of newly discovered evidence, but on the possibility that such evidence would have been revealed had [defendant] undertaken similar testing prior to his trial").

During oral argument, Morales's attorney emphasized post-trial evidence concerning Dr. Bennett's reputation, competency and beliefs, and appeared to renew his postconviction argument that such evidence effectively impeached Dr. Bennett's analysis of the microscopic slides in this case. However, in briefing his newly discovered evidence claim, Morales did not address the validity of Dr. Bennett's slide analysis. Accordingly, we will not consider such argument now. See Aluminum Co. of America v. Musal, 622 N.W.2d 476, 479 (Iowa 2001) ("It is a well-established rule of appellate procedure that `[t]he scope of appellate review is defined by the issues raised by the parties' briefs.' . . . Issues not raised in the appellate briefs cannot be considered by the reviewing court.").

V. Ineffective Assistance of Counsel .

A. Failure to Raise Claims on Direct Appeal. Morales must show a sufficient reason for his failure to raise on direct appeal the newly forwarded ineffective assistance of counsel claims. Jones v. State, 479 N.W.2d 265, 271 (Iowa 1991). Morales alleged in his postconviction relief petition that the failure was due to the ineffective assistance of appellate counsel, which can constitute sufficient reason. Id. The district court expressly declined to decide the issue, instead addressing the merits of all the trial-level, ineffectiveness claims. In his brief Morales does not even reallege that appellate counsel was ineffective, much less present argument in support of such a claim. See Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998) ("Appellate counsel's failure to raise issues of claimed ineffectiveness of trial counsel are tested the same as ineffective-assistance-of-trial-counsel claims.").

Ineffective assistance of appellate counsel is not presumed from the mere fact he or she failed to raise what was arguably an error by trial counsel. See id. ("Selecting assignments to assert as grounds for reversal is a professional judgment call we are reluctant to second-guess."). The failure to raise the claims now made by Morales could have been a tactical decision to present only those claims appellate counsel believed had the best chance of success. Id. While in hindsight counsel may have been wrong, "this is a far cry from qualifying as ineffective representation." Cuevas v. State, 415 N.W.2d 630, 633 (Iowa 1987). Morales's failure to even address this point creates a serious obstacle to the resolution of his claims. Perhaps even more significantly, we do not see, based on the record presumably available after trial, how a reasonably competent appellate counsel would have been alerted to many of the ineffective assistance of counsel claims Morales now makes.

Our review of this issue is hampered by the fact the trial transcript has not been made a part of the record on appeal.

At oral argument counsel seemed to argue sufficient reason for failure to raise these claims on direct appeal was provided by evidence discovered after his trial. However, that argument was not forwarded in his postconviction petition, addressed by the district court, or argued in his brief. We decline to address it now. Aluminum Co. of America v. Musal, 622 N.W.2d 476, 479 (Iowa 2001); State v. Houts, 622 N.W.2d 309, 312 (Iowa 2001).

B. Acts and Omissions of Trial Counsel. Even if we address the merits of Morales's claims, he has failed to establish trial counsel were ineffective. Trial counsel are ineffective when their performance falls below the normal range of competency, and the inadequate performance prejudices the defendant's case. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 674, 693 (1984). Prejudice is shown by demonstrating 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). For all those claims that had been adequately preserved for, and are properly subject to our review, Morales has failed to establish one or both prongs of the Strickland test.

1. Failure to conduct an adequate inquiry and trial preparation.

a. Microscopic slides. Morales's argument seems to be that, if his trial counsel had discovered the existence of the microscopic slides, they could have had them reviewed by another pathologist, then presented the presumably favorable or exculpatory results to the jury. Based on the record before us, we see no evidence that, at the time of the direct appeal, appellate counsel should have or could have known Spellman and Ryan were unaware of the microscopic slides. Nor do we see any obvious basis for questioning by appellate counsel of the opinion and underlying analysis of Dr. Jan Leestma, the neuropathologist Spellman and Ryan ultimately retained for trial. Even if appellate counsel was aware of this potential claim, it was clearly a reasonable decision to decline to forward it on direct appeal. See Osborn, 573 N.W.2d at 922.

Because the trial transcript was not provided, this analysis must necessarily rest on the limited amount of Dr. Leestma's testimony that appears in the appendix.

Putting aside the fact the slides were made available to Morales's original counsel and defense expert, we note Spellman and Ryan did make a blanket discovery request that would seem to have encompassed the slides. Although Morales claims counsel should have done more, he does not specifically state what more a "competent" attorney would have done to become aware of and then obtain the slides. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (finding a defendant must state the specific way in which counsel's performance was deficient and identify how competent representation probably would have changed the outcome). To the extent Morales is arguing that counsel should have reviewed the received medical information, learned of the existence of the slides and presumed they had independent significance, we agree with the district court's determination that counsel should not be deemed ineffective for failing to independently analyze or question the medical evidence. See Heaton v. State, 420 N.W.2d 429, 431 (Iowa 1988) ("Counsel's duty to investigate and prepare a defense is not limitless and does not require counsel to pursue each possible witness and delve into every line of inquiry.").

Not only has Morales failed to establish a lack of competence, he has not established prejudice. There is no showing a subsequent, independent analysis of the slides by another pathologist would have yielded exculpatory information. Even Dr. Berkland, specifically retained as a defense expert and therefore with every incentive to make findings in Morales's favor, did not find the slides to be exculpatory. Nor is Morales entitled to an inference that the slides would have been exculpatory, based upon their post-trial destruction by an agent of the State. See State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) ("the fact finder may draw the inference that the evidence destroyed was unfavorable to the party responsible for its spoliation").

Such spoliations inferences "should be utilized prudently and sparingly." Phillips v. Covenant Clinic, 625 N.W.2d 714, 720 (Iowa 2001) (quoting Crosser v. Iowa Dep't of Pub. Safety, 240 N.W.2d 682, 685 (Iowa 1976)). More importantly, where the destroyed evidence is "only potentially exculpatory, where by its nature the lost evidence cannot be evaluated by a fact finder," a discretionary spoliation inference requires a showing of bad faith. State v. Craig, 490 N.W.2d 795, 796-97 (Iowa 1992). While the record does include testimony that implies an ulterior motive for the slides' destruction, Morales has failed to demonstrate actual bad faith.

b. Failure to speak with Drs. Frecentese, Moorman and Carlstrom before trial. Dr. Dominic Frecentese and the previously noted Dr. Carlstrom and Dr. Moorman, all testified as expert medical witnesses on behalf of the State. Although prior counsel had interviewed and/or deposed the doctors, Spellman and Ryan did not meet or speak with them before Morales's trial. The crux of Morales's argument is that if Spellman and Ryan had met with the doctors, they would have discovered all three men changed their opinions from chronic to acute injury only after consulting with Dr. Bennett. Morales claims "[t]he fact these witnesses changed their opinions due to pressure from the State, should have been brought to the attention of the jury." The basis of this claim is the meeting between Dr. Carlstrom, Dr. Moorman, Dr. Bennett and representatives of the police and the county attorney's office, and Dr. Carlstrom's resulting pre-trial change in opinion.

Again, we note there is no evidence that, at the time of direct appeal, Morales's appellate counsel should have or could have been aware of the fact Spellman and Ryan had not personally interviewed the three doctors. Nor is there any indication appellate counsel had reason to suspect the doctors' trial opinions might have resulted from improper influence or pressure tactics. Even if appellate counsel had known of the meeting, and had associated it with the doctors' change in opinions, we cannot find he was less than reasonably competent in declining to make the argument now forwarded.

The documentary exhibits introduced at the postconviction hearing that indicated the existence of the meeting between Carlstrom, Moorman, Bennett and others were not introduced at trial. Nor is there any independent evidence in the record that appellate counsel knew the meeting had occurred.

The only evidence of an occasion for influence was the meeting between Dr. Carlstrom, Dr. Bennett and the others. It does not appear Dr. Frecentese was involved in the meeting. At the time of direct appeal there was no evidence Dr. Bennett somehow pressured or unduly influenced the doctors' opinions, and despite extensive postconviction testimony from Dr. Carlstrom, the evidence on that point remains the same. Any claims an investigation would have uncovered a conspiracy or improper influence are pure conjecture. Even engaging in reasoned speculation based on the developed record, it appears the most counsel could have hoped to establish regarding the three doctors was that which they knew prior to trial in regard to Dr. Carlstrom — deferring to Dr. Bennett's claim there were no microscopic indications of a chronic injury, they determined Kevin's injury was consistent with those "uncommon" acute injuries that manifested, at the gross level, like an chronic injury. This is simply insufficient to establish prejudice. Introduction to the jury of the meeting, and the doctors' deferral to Dr. Bennett's analysis of the slides, would not have created a reasonable probability of acquittal.

c. Failure to investigate Dr. Bennett . Morales claims his trial counsel should have investigated Dr. Bennett's involvement with other shaken/slammed child cases, and ascertained it was Bennett's belief that "[i]n Iowa, if a child is accidentally killed, we call it a homicide." Presumably, we are to infer Dr. Bennett is unable or unwilling to classify child deaths from physical injuries as anything other than intentional killings. Once again, we are forced to note there is no evidence appellate counsel should have or could have been alerted to concerns regarding Dr. Bennett's findings. Moreover, requiring such an investigation by trial counsel is beyond the realm of inquiry required of a reasonably competent counsel. See Heaton, 420 N.W.2d at 431.

To the extent Morales was attempting to argue counsel should have further investigated the role played by Dr. Bennett's wife, Melodee Hanes, that issue was not preserved. See Iowa R.App.P. 6.14(1)( c); Dunbar v. State, 515 N.W.2d at 15.

In addition, we cannot find Morales was prejudiced by a failure to impeach Dr. Bennett with evidence of such an attitude or belief. The same is true regarding Morales's contention the jury should have been presented with evidence Dr. Bennett received payment for his trial testimony over and above his salary as a medical examiner. Whatever effect these items might have had pales when compared to the evidence of Morales's guilt.

The State presented medical testimony from not only those experts Morales now questions, such as Dr. Bennett, but also witnesses such as Dr. Christopher Ellerbroeck and Dr. Charles Jennissen, about whose testimony there are no allegations of influence or impropriety. In addition, as we noted in our prior decision,

testimony from two of Byron's doctors confirmed much of what the State's doctors found. Byron's doctors indicated the injuries suffered by Kevin could have come from a fall down stairs, but admitted they were not usually caused in that way.
State v. Morales, No. 8-074/97-152 (Iowa Ct.App. April 24, 1998). The initial inconsistencies in Morales's account of Kevin's injuries were also significant. While certain factors that came to light after Morales's trial have negatively impacted the force of the State's case, the evidence of Morales's guilt is still such that the previously-discussed impeachment of Dr. Bennett would not have created a reasonable probability of acquittal.

2 . Failure to address Dr. Bennett's testimony .

a. Failure to object to allegedly prejudicial and inappropriate testimony. Morales claims his trial counsel should have objected when Dr. Bennett analogized the force necessary to cause Kevin's injuries to "a blow from a baseball bat from like a home-run swing, perhaps," or "a 40 foot fall onto a flat surface." Morales claims the analogies were so inflammatory that their prejudicial impact outweighed their probative value, requiring exclusion under Iowa Rule of Evidence 5.403. However, viewed in the context of Dr. Bennett's entire testimony, these analogies were clearly relevant and beneficial to the jury in assisting with their understanding of the extent of damage to Kevin's brain. See Iowa R. Evid. 5.702.

As evidenced by the testimony of Dr. Ellerbroeck, a pediatric radiologist who also used some graphic analogies, and about whom Morales forwards no complaints, such analogies seem to be a common tool used by medical personnel to explain force and impact. The analogies used by Dr. Bennett, while colorful, are not so graphic as to warrant their exclusion. Cf. State v. Jones, 511 N.W.2d 400, 406 (Iowa Ct.App. 1993) (holding graphic autopsy photographs and picture of victim while still alive were not unfairly prejudicial). Moreover, in light of the remainder of the evidence as to his guilt, Morales has failed to show a reasonable probability that exclusion of these statements would have produced an acquittal on the first-degree murder charge.

Dr. Bennett further testified Kevin's injuries could not have been accidental and that he believed "beyond a reasonable degree of medical certainty" Kevin had died from shaken/slammed child syndrome. Morales claims this testimony invaded the province of the jury, by commenting on Morales's guilt. However, Dr. Bennett's opinions went to the nature and cause of Kevin's injuries and his manner of death. He did not directly opine as to whether Morales was the individual who inflicted those injures or caused Kevin's death. See State v. Dinkins, 553 N.W.2d 339, 341 (Iowa Ct.App. 1996) (finding permissible even those opinions that "embrace `an ultimate issue to be decided by the trier of fact,'" so long as the witness does not express "a direct opinion on the guilt or innocence of the defendant.").

We dispose of Morales's claim that there is no such standard as "beyond a degree of medical certainty," on error preservation grounds. See Iowa R.App.P. 6.14(1)(c) ("Failure of a brief to . . . cite authority in support of the issue may be deemed waiver of that issue.").

Dr. Bennett also referred to Morales as being Kevin's primary caretaker at the time of his injuries, and Morales objects to this identification as being false and misleading testimony. However, other evidence indicated Morales was with Kevin at the time of or immediately after his injuries, fatal and otherwise. Dr. Bennett did not, as Morales implies, interject a new factual allegation into the record.

b. Issues disposed of on other grounds. Morales forwards a number of other claims of ineffective assistance of counsel. His claim that counsel should have objected when Dr. Bennett testified regarding Kevin's prior injuries was resolved adversely to Morales in his direct appeal. See State v. Morales, No. 8-074/97-152 (Iowa Ct.App. April 24, 1998). Although we did not specifically resolve on direct appeal Morales's claim that trial counsel should have made an offer of proof when he was denied an opportunity to cross-examine Dr. Bennett on his relationship with Assistant County Attorney Melodee Hanes, our prior decision does dispose of the issue. If we found the record before us on direct appeal sufficient to resolve the underlying claim, it is unclear how the record was insufficient to allow appellate counsel to argue the claim to us. We find the remainder of Morales's ineffective assistance of counsel claims — that counsel should have objected to improper engineering testimony, speculative testimony and narrative responses — all suffer from error preservation problems, and we decline to address them. See Iowa R.App.P. 6.14(1)( c) (("Failure of a brief to . . . cite authority in support of the issue may be deemed waiver of that issue."); Dunbar, 515 N.W.2d at 15 (finding appellate courts will decline to resolve a claim of ineffective assistance of counsel where a defendant fails to state the specific way in which counsel's performance was deficient and identify how competent representation probably would have changed the outcome).

3. Failure to introduce evidence . Morales argues trial counsel should have presented the testimony of Malcolm Pope, a biomechanical engineer who was prepared to offer testimony indicating Kevin's injures were accidental, and could have been caused by a fall down the stairs, as Morales alleged. Morales failed to cite any case law in support of this argument beyond general references presumably meant to address our scope of review. He has therefore failed to preserve error on this issue. See Iowa R.App.P. 6.14(1)( c). Even if we address his claim, however, we find he has failed to show prejudice.

Trial counsel did present expert medical testimony, through Dr. Leestma, that was supportive of Morales's theory of the case. While Dr. Pope's testimony may have bolstered Dr. Leestma's opinion, as previously noted, the majority of evidence in this matter is highly indicative of Morales guilt. We cannot find the addition of Dr. Pope's testimony would have created a reasonable probability of acquittal.

The district court rejected this argument based upon its reading of Dr. Leestma's trial testimony, and Dr. Pope's deposition testimony, as forwarding two different targets of impact. Given the fact the portion of Dr. Pope's testimony relied on by the district court was a "conservative assumption" based upon Kevin's fall commencing at the top of the stairs, and given our inability to review the entirety of Dr. Leestma's testimony, we decline to make a similar supposition.

Morales also claims counsel should have introduced into evidence the orthopedic shoes worn by Kevin. He argues the shoes would have provided the jury "a basis to understand the falls." This claim also suffers from error preservation issues. See Iowa R.App.P. 6.14(1)( c); Dunbar, 515 N.W.2d at 15. In addition, as with the testimony of Dr. Pope, we cannot find Morales was prejudiced by failure to introduce the shoes. Testimony regarding the shoes and Kevin's feet problems was introduced into evidence, and there is no claim any of that evidence was inaccurate or incorrect. The shoes would have been, in effect, no more than cumulative evidence.

We agree with Morales that certain questionable activities and practices, which became known after his trial, cast a level of doubt on some of the evidence used to convict Morales in the death of his son. However, Morales has failed to establish the existence of newly discovered evidence that would entitle him to a new trial. He has similarly failed to establish, or preserve for our review, his claims that trial counsel were ineffective. We must therefore affirm his conviction and sentence.

AFFIRMED.


Summaries of

Morales v. State

Court of Appeals of Iowa
Nov 15, 2002
No. 2-520 / 01-1328 (Iowa Ct. App. Nov. 15, 2002)
Case details for

Morales v. State

Case Details

Full title:BYRON MORALES, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee

Court:Court of Appeals of Iowa

Date published: Nov 15, 2002

Citations

No. 2-520 / 01-1328 (Iowa Ct. App. Nov. 15, 2002)

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