IN THE COURT OF APPEALS OF IOWA
No. 13-1985
Filed August 5, 2015
CHARLES HENRY ARMSTRONG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
Applicant appeals from the denial of his application for postconviction
relief. AFFIRMED.
Frank E. Younes of Taylor, High & Younes, Omaha, Nebraska, for
appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney
General, Matthew D. Wilber, County Attorney, and Margaret Popp-Reyes,
Assistant County Attorney, for appellee State.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, C.J.
Charles Armstrong appeals from the denial of his application for
postconviction relief (PCR). Armstrong maintains he received ineffective
assistance from trial counsel and direct appeal counsel. He contends trial
counsel was ineffective for failing to impeach the credibility of a State witness
and for failing to request a mistrial when the State’s witness testified while
inebriated. He also contends direct appeal counsel was ineffective for failing to
raise a claim of newly discovered evidence. He maintains the cumulative errors
of counsel have prejudiced him.
Because Armstrong’s general assertions regarding trial counsel’s failures
do not establish that counsel failed to perform an essential duty, we find
Armstrong did not receive ineffective assistance from trial counsel. Because the
deposition of the State’s witness, Terry Vance, taken after the conclusion of trial
does not fall within the definition of newly discovered evidence and it does not
satisfy the “extraordinary exception,” appellate counsel did not fail to perform an
essential duty, and Armstrong did not receive ineffective assistance from direct
appeal counsel. We affirm.
I. Background Facts and Proceedings.
On August 4, 2008, Armstrong was charged by trial information with
murder in the first degree.
Following a trial by jury, Armstrong was convicted of murder in the second
degree. Armstrong filed several posttrial motions, including a motion to continue
sentencing so trial counsel could review the posttrial deposition of Terry Vance.
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All motions were denied. Armstrong was sentenced to a term of incarceration
not to exceed fifty years.
Armstrong filed a direct appeal in which he maintained he received
ineffective assistance of trial counsel. The supreme court transferred the case to
us, and we affirmed Armstrong’s conviction for second-degree murder. See
State v. Armstrong, No. 08-2065, 2009 WL 5125916, at *3 (Iowa Ct. App.
Dec. 30, 2009).
Armstrong filed an application for PCR on April 16, 2010. An evidentiary
hearing was held on May 2, 2013. The district court denied Armstrong’s
application on November 21, 2013. Armstrong appeals.
II. Standard of Review.
Generally an appeal from a denial of an application of PCR is reviewed for
corrections of errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa
2012). However, when an applicant asserts claims of a constitutional nature, our
review is de novo. Id. Thus, we review claims of ineffective assistance of
counsel de novo. Id.
III. Discussion.
A. Claim Preclusion.
As he did on direct appeal, Armstrong maintains trial counsel was
ineffective for failing to argue diminished responsibility and intoxication are
defenses to second-degree murder when the charge is based upon assault as a
specific-intent crime. See Armstrong, 2009 WL 5125916, at *2. Armstrong may
not reassert a claim that was decided adversely on direct appeal. See Jones v.
Scurr, 316 N.W.2d 905, 911 (Iowa 1982); see also Iowa Code § 822.8 (“Any
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ground finally adjudicated . . . in any other proceeding the applicant has taken to
secure relief, may not be the basis for a subsequent application . . . .”). As a
result, this claim is meritless.
B. Ineffective Assistance of Counsel: Trial Counsel.
To prevail on a claim of ineffective assistance of counsel, Armstrong must
prove by a preponderance of the evidence (1) the attorney failed to perform an
essential duty and (2) prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). To prove counsel failed to
perform an essential duty, he must show “counsel’s representation fell below an
objective standard of reasonableness . . . under prevailing professional norms.”
See Strickland v. Washington, 466 U.S. 668, 688 (1984). Amstrong must
overcome a strong presumption of counsel’s competence. See id. at 689. To
establish prejudice, he must show there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “The likelihood of a different result must be substantial, not
just conceivable.” State v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015). We “will
not reverse where counsel has made a reasonable decision concerning trial
tactics and strategy, even if such judgments ultimately fail.” Brewer v. State, 444
N.W.2d 77, 83 (Iowa 1989). “A defendant is not entitled to perfect
representation, rather representation which is within the normal range of
competency.” State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). The same
standards of effectiveness that apply to trial counsel also apply to appellate
counsel. Sims v. State, 295 N.W.2d 420, 424 (Iowa 1980). The claim fails if
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either element is lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa
2010).
1. Impeach Vance’s credibility as a witness. Armstrong maintains trial
counsel was ineffective for failing to impeach the credibility of the State’s witness
Terry Vance. He claims counsel should have more thoroughly cross-examined
Vance and should have called witnesses to show Vance was untruthful in his
testimony.
A review of the trial transcript shows that Armstrong’s trial counsel was
able to elicit responses from Vance during cross-examination that he drank
often—every day if he had the money to do so—that he had been arrested for
public intoxication approximately once a week or fifty times a year while he was
homeless, that he usually drank alcohol until he was intoxicated, that he had
been drinking the day Harriman was killed, and that he and Armstrong were
known to get into fights “quite a bit.” Additionally, through cross-examination of
Brandy Waller, trial counsel established that Vance had a tendency to tell “tall
stories” and Waller was used to having to “read between the lines when he was
intoxicated.” In response to a question from trial counsel, Waller also testified
that Vance appeared intoxicated that night and she was able to smell alcohol on
him.
In spite of Armstrong’s contention otherwise, trial counsel did impeach
Vance’s credibility through cross-examination of both Vance and Waller.
Although Armstrong makes the general assertion that counsel should have called
other witnesses to impeach Vance, he does not identify any specific witnesses
counsel failed to call. “When complaining about the adequacy of an attorney’s
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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). Armstrong has not
established that counsel breached an essential duty.
2. Move for mistrial because State’s witness was intoxicated while
testifying. Armstrong maintains trial counsel was ineffective for failing to request
a mistrial because the State’s key witness, Vance, was inebriated while testifying.
At his deposition in his PCR proceeding, Armstrong testified that his sister
noticed a strong odor of alcohol coming from Vance at trial, and she immediately
notified trial counsel. However, this statement is the only evidence Vance was
intoxicated. Nothing in the trial transcript indicates Vance had consumed alcohol
before testifying. Armstrong’s sister did not testify at trial or at Armstrong’s PCR
hearing. Additionally, a deposition of trial counsel was taken in connection with
the PCR proceedings, but counsel was not asked whether he noticed any signs
of possible intoxication or if Armstrong’s sister had brought any concerns to his
attention. Armstrong’s self-serving statement is not sufficient to prove Vance
was intoxicated. Armstrong has not established by a preponderance of the
evidence that counsel failed to perform an essential duty by not requesting a
mistrial. See State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011) (“[T]rial counsel
has no duty to pursue a meritless issue . . . .”).
C. Ineffective Assistance of Counsel: Direct Appeal Counsel.
Armstrong also maintains he received ineffective assistance from direct
appeal counsel. He maintains direct appeal counsel should have raised a claim
of newly-discovered evidence that would have impeached the testimony of
Vance and resulted in the granting of a new trial. Specifically, Armstrong claims
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a deposition taken of Vance after the trial contained inconsistencies and detailed
descriptions of Vance’s issues with drugs and mental health issues.
During the posttrial deposition of Vance, he made the following statements
about Armstrong’s co-defendant, Mark Foster.
A: [Foster] kicked [Harriman] multiple times, stomped on his
face. Well, I can’t really be honest to say that he stomped his face,
but I know he kicked him multiple times.
I think he stomped on his face a couple times, but I didn’t
say that before, so I shouldn’t be saying it now. But he stomped on
his face a couple times. That’s probably what got his nose broke.
I’m not for sure.
Q: So he kicked him, and now you’re testifying today that he
stomped on him? A: Yeah. I’m going to drop out that stomping
part because I didn’t—this is the first time I brought that up, so I’m
just going to say he kicked him. I can’t say he stomped on his face.
I can’t say that.
Additionally, at the posttrial deposition, Vance testified for the first time that he
had been diagnosed with paranoid schizophrenia in approximately 1995 and had
not seen a psychiatrist since 1996. He further testified that he was not taking any
medications for the diagnosis and believed he could self-medicate with alcohol.
He testified he had not had problems with hallucinations “in a long time.”
In order to receive a new trial based on newly discovered evidence, the
claimant must establish:
(1) the evidence was discovered after the verdict; (2) the evidence
could not have been discovered earlier in the exercise of due
diligence; (3) the evidence is material to the case and not merely
cumulative or impeaching; and (4) the evidence probably would
have changed the result of the trial.
Grissom v. State, 572 N.W.2d 183, 184 (Iowa 1997). “Thus, by definition, newly
discovered evidence refers to evidence which existed at the time of the trial
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proceeding. Acts or events occurring subsequent to trial do not generally qualify
as newly discovered evidence.” Id. (internal citations omitted).
The second deposition of Vance, taken approximately two weeks after
Armstrong’s trial concluded, does not fall within the definition of newly discovered
evidence. The alleged inconsistent testimony given in the deposition did not
occur until after trial, thus it could not have been introduced at trial. Moreover,
this is not an “extraordinary case when an ‘utter failure of justice will
unequivocally result’ if the new evidence is not considered or where it is no
longer just or equitable to enforce the prior judgment.” Id. at 185 (citing Benson
v. Richardson, 537 N.W.2d 748, 763 (Iowa 1995)). Any inconsistencies about
Foster stomping or kicking Harriman were minor—both convey that Vance
witnessed Foster use his foot to inflict injury on Harriman. Additionally, Vance
testified about mental health issues but clarified that he had not suffered for a
long time. At trial, Vance testified he drank almost daily and had been drinking
on the day in question.
Because the deposition of Vance taken after the conclusion of trial does
not fall within the definition of newly discovered evidence and it does not meet
the “extraordinary exception,” appellate counsel had no duty to raise the claim of
newly discovered evidence. See Utter, 803 N.W.2d at 652.
D. Cumulative Effect.
Armstrong maintains we should determine whether he was prejudiced by
the cumulative effect of trial counsel and appellate counsel’s errors. See State v.
Clay, 824 N.W.2d 488, 500 (Iowa 2012) (“Under Iowa law, we should look to the
cumulative effect of counsel’s errors to determine whether the defendant satisfied
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the prejudice prong of the Strickland test.”). While we agree that consideration of
cumulative prejudice is the proper analysis, because we have already concluded
that none of Armstrong’s allegations amounted to failure to perform an essential
duty, we need not consider whether Armstrong was prejudiced. See Kirchner v.
State, 756 N.W.2d 202, 204 (Iowa 2008) (“The court need not address both
components if the [applicant] makes an insufficient showing on one of the
prongs.”).
IV. Conclusion.
Because Armstrong’s general assertions regarding trial counsel’s failures
do not establish that counsel failed to perform an essential duty, we find
Armstrong did not receive ineffective assistance from trial counsel. Because
Vance’s deposition taken after the conclusion of trial does not fall within the
definition of newly discovered evidence and it does not satisfy the “extraordinary
exception,” appellate counsel did not fail to perform an essential duty, and
Armstrong did not receive ineffective assistance from direct appeal counsel. We
affirm.
AFFIRMED.
Charles Henry Armstrong, Applicant-Appellant v. State of Iowa
Combined Opinion