IN THE COURT OF APPEALS OF IOWA
No. 16-0825
Filed September 13, 2017
LUCAS A. MCALISTER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, John M.
Wright, Judge.
The applicant appeals the district court decision denying his request for
postconviction relief from his conviction for first-degree robbery. AFFIRMED.
Kent A. Simmons, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., Potterfield, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.
Lucas A. McAlister was convicted of first-degree robbery by a jury’s verdict
rendered in 2004. He appealed, and the conviction was affirmed. McAlister filed
an application for postconviction relief (PCR) in January 2008. His application
was denied, and McAlister appeals. We affirm.
I. Factual Background
The facts leading up to the charges and conviction are set out in this
court’s ruling affirming the conviction and are not repeated except where relevant
to this proceeding. See State v. McAlister, No. 05-2004, 2006 WL 1896216, at
*1-2 (Iowa Ct. App. July 12, 2006). McAlister claimed ineffective assistance of
counsel in the direct appeal and has based his PCR on other claims of ineffective
assistance. McAlister claims as follows: (1) trial counsel was ineffective for
failing to pursue a plea agreement in a timely fashion and for failing to advise him
of the pitfalls of going to trial and (2) in failing to effectively investigate medical
evidence and failing to pursue a motion for a new trial that would have
demonstrated McAlister was found guilty on the basis of an improper expert
medical opinion that had no foundation in medical science.
II. Preservation of Error
Both issues were raised before the trial court, and the State concedes the
issues were preserved.
III. Standard of Review
Appeals from denial of PCR are ordinarily reviewed for corrections of
errors at law, but when a constitutional issue, such as a claim of ineffective
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assistance of counsel, is involved, it is reviewed de novo. Lemasters v. State,
821 N.W.2d 856, 862 (Iowa 2012).
IV. Merits
A. Ineffective Assistance of Counsel Generally
To prevail on a claim of ineffective assistance of counsel, the claimant
must prove by a preponderance of the evidence that (1) counsel failed to perform
an essential duty and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134,
142 (Iowa 2001). A claim of ineffective assistance of counsel must overcome the
presumption that counsel is competent. Taylor v. State, 352 N.W.2d 683, 685
(Iowa 1984). An accused is not entitled to perfect representation but only that
level of representation that is within the normal range of competency. State v.
Artzer, 609 N.W.2d 526, 531 (Iowa 2000). Strategic choices after proper
investigation are virtually unassailable. Ledezma, 626 N.W.2d at 143. For relief
to be granted, there must a determination that but for the ineffective assistance
there is a reasonable probability the result would have been different. Id. at 145.
It is not enough to simply allege counsel’s performance was inadequate; the
specific instances of inadequacy and how competent representation would have
probably changed the outcome must be pointed out. Dunbar v. State, 515
N.W.2d 12, 15 (1994).
B. Trial Counsel’s Ineffectiveness for Failing to Pursue a Plea Agreement in a
Timely Fashion and Failing to Advise Him of the Pitfalls of Going to Trial.
The burden is on McAlister to prove his claim. Depositions of both
McAlister’s trial counsel and the prosecuting attorney were taken and made a
part of the PCR record. It is clear from the record that McAlister’s counsel made
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numerous requests to obtain a plea offer, and his requests were rejected until
only three or four days before the trial, when the prosecutor offered to allow
McAlister to plead guilty to two class “C” felonies and argue sentencing. The
offer was rejected by McAlister.
McAlister asserts his counsel advised him a verdict of guilty to second-
degree robbery would be the worst possible outcome. Trial counsel stated he
absolutely did not advise McAlister of a likely outcome of the trial and his policy
was to never advise a client of the outcome of a trial. McAlister’s counsel
discussed the plea offer with McAlister and his father. Counsel told McAlister’s
father he did not feel good about going to trial but could not predict the outcome.
McAlister’s father encouraged McAlister to think about the offer. McAlister
responded he felt good about his chances, and he asserted he did not want to
enter a plea of guilty to something he did not do.
As indicated, the plea offer was communicated to McAlister only a few
days before trial. McAlister also contended there was a 5:00 p.m. deadline on
the offer and the last deposition was not finished until one hour before the
deadline. No one else, including McAlister’s father, remembered that there was
a 5:00 p.m. deadline. The prosecutor testified there could have been a deadline
but his notes did not indicate a 5:00 p.m. deadline nor did he remember that
there was one.
McAlister is relying on nothing more than his self-serving statement that
he would have accepted the plea offer if it had been offered earlier. McAlister
has not objectively established the required reasonable probability he would have
accepted the offer if made earlier. See Dempsey v. State, 860 N.W.2d 860, 871
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(Iowa 2015). McAlister contends the plea offer was not advanced by the
prosecutor until his counsel had advised the prosecutor of McAlister’s
relationship with a local drug task force. McAlister asserts if the prosecutor had
known of his work with the task force earlier, he would have received an earlier
offer. The prosecutor testified he knew McAlister had approached the drug task
force about being a confidential informant but had not done any work for them.
The prosecutor further testified the plea offer was not made because of
McAlister’s offer to work for the task force; instead, it was made because Darren
Taeger, the victim, was a confirmed drug dealer and he feared jury nullification
because of the victim’s criminal activities. McAlister’s counsel testified the thrust
of the defense was the hope that McAlister was more credible and convincing
than the victim and McAlister’s co-defendant, Clayton McCormick, who, after a
plea offer, became a witness for the State.
McAlister was jailed with his co-defendant the first seventy-one days of his
incarceration. When first interviewed, McAlister admitted stabbing the victim but
claimed self-defense. An officer became aware of the co-occupancy, was aware
that such co-occupancy of co-defendants was against the jail’s policy, and took
immediate steps to separate the two co-defendants. Apparently, both co-
defendants met with law enforcement soon after their separation, and each
asserted the other one was the actual perpetrator of the stabbing. The victim
had always asserted McAlister was the one who did the stabbing. The
prosecutor made the plea offer to McCormick as opposed to McAlister because
his revised version of the events matched the victim’s.
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McAlister was later moved to a cell where he shared a recreational area
with William Lucas, who was charged with murder. Thinking McAlister could help
with his defense, Lucas wrote out the details of the murder and gave it to
McAlister. McAlister gave it to his counsel, who gave it to law enforcement. The
handwriting was verified, and the letter was used by the prosecution in its case
against Lucas. Neither McAlister nor his counsel requested anything in return for
the letter. McAlister does not assert exactly how counsel breached a duty in
handling the letter but insinuates, without stating as much, that the information
should have been used for a bargaining chip. There was no evidence the
prosecutor would have considered it as an effective bargaining chip.
McAlister contends that if counsel did not advise him of the probable
outcome of his trial, that failure would be per se ineffective assistance. However,
McAlister has cited no authority for such an assertion. We do not believe that
failing to advise a client of the probable outcome of trial is ineffective assistance
of counsel. Trial counsel who predict the outcome of trial do so at their own peril.
See State v. Franke, No. 02-0761, 2003 WL 22336096, at *5 (Iowa Ct. App.
Oct. 15, 2003) (preserving for PCR proceedings a claim counsel improperly
predicted unlikelihood of a guilty verdict).
Counsel did not fail in his duty to attempt to negotiate and obtain a plea
offer or to properly advise McAlister to accept or reject the offer made.
C. Counsel’s Failure to Investigate and Present Evidence that Would Have
Shown Applicant Was Found Guilty on the Basis of Improper Opinion
Testimony that Had No Basis in Medical Science.
The incident happened in a Bronco or Blazer with bucket seats. McAlister
was driving the vehicle, the victim was seated on the passenger side, and
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McCormick was in the back seat of the vehicle. McAlister stopped the vehicle at
a stop sign when, according to McAlister’s testimony, McCormick came up from
the back seat and stabbed the victim. McCormick and the victim claim McAlister
swung over from the driver’s side and stabbed the victim.
At trial, McAlister’s counsel asked Officer Michael Swore, the investigating
officer, if he was aware of any reason the perpetrator could not have “come from
any particular angle or couldn’t have come from the back seat. Are you aware of
any such evidence?” The officer responded, “I don’t know of anything that said it
couldn’t have come from the back seat.” Officer Swore then expanded, based on
his experience as a law enforcement officer, stating he found it almost impossible
to believe someone the size of McCormick could have inflicted the wound the
victim received from the back seat of the vehicle. This was not the way Officer
Swore had testified at his deposition in an answer to approximately the same
question, and it was not the answer counsel anticipated.
Officer Swore continued testifying about body position and how to obtain
the necessary torque to do the stabbing. He then testified about the wound the
victim suffered, its depth, and location. He admitted that he knew of no medical
records of the angle or depth of the wound and admitted he was relying only on
his experience as a crime and accident investigator and statements other officers
had told him the treating doctors had made.
Counsel requested the officer’s testimony about what another officer had
said about the doctor’s statement be struck from the record, but the request was
denied. Soon thereafter and out of the presence of the jury, counsel moved for a
mistrial or to have the investigator’s statement stricken from the record. Counsel
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pointed out that before trial, the State and McAlister had stipulated the victim had
suffered a serious injury and no medical professional would be called by either
side. McAlister’s trial counsel stated, in essence, that he had been ambushed. If
he had known evidence regarding the depth of the stab wound and presumably
the torque that could be generated from different positions would be given, he
would have had a professional available to testify on the issue. Further, he
objected the detective was not an expert and his opinion was based on hearsay.
The officer’s theory the perpetrator could not have been in the back seat
was completely new to defense counsel. The court refused to declare a mistrial
or strike any of the officer’s testimony. The court’s ruling was based in part on
the determination the officer’s testimony was not an expert opinion but based on
the common knowledge that more torque could be achieved by a swinging action
than a pulling action and, in part, on the fact the evidence was elicited by a
question posed on cross-examination. The court noted both counsel were
making “a mountain out of a mole hill.”
We also do not understand why who stabbed the victim was such a critical
issue given the availability of the aiding and abetting statute and the admitted
planning of the robbery by both McAlister and McCormick. See Iowa Code
§ 703.1 (2003). What the prosecutor thought about who did the stabbing might
have had a bearing on the issue as to who he made a plea offer to, but neither
the court nor defendant’s counsel control a prosecutor’s decision as to whom to
make a plea offer or what kind of a plea offer to make.
McAlister did not claim ineffective assistance of appellate counsel but
instead contends that appellate counsel determined the issue should be left to
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build a complete record in a PCR hearing. In pursuit of that objective, McAlister
obtained an opinion from Dr. Shaku Teas, a board certified forensic pathologist.
Dr. Teas provided an affidavit for the PCR hearing, noting there was no scientific
basis for Officer Swore’s opinion. The depth of the wound was primarily
determined by the sharpness of the knife. The knife was never found because
either McCormick or McAlister had thrown it in the river. The affidavit also stated,
It is my opinion that [a] person seated in the back seat of the
Explorer could inflict the stab wound [the victim] incurred with either
his right or left hand. A person seated in the driver’s seat could
have inflicted the wound too but more likely with his left hand/arm.
McAlister’s final contention is counsel was ineffective for not pursuing an
expert testifying like Dr. Teas as a basis for requesting a new trial under Iowa
Rule of Criminal Procedure 2.24(2)(b)(6), (7), or (9). The subparagraphs cited
require (1) the verdict to be contrary to the evidence, (2) the court to have
refused properly to instruct the jury, or (3) the defendant to have not received a
fair trial. McAlister does not point out how his case would fit under any of the
stated conditions that would justify a new trial. An attorney is not required to
pursue a meritless claim. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).
The evidence is overwhelming a robbery took place and a serious injury
resulted. In addition, the victim, the other participant, and McAlister in his original
statement all agree McAlister was the one inflicting the injury. Even if McAlister’s
counsel somehow failed in any duty, no prejudice has been shown. See
Ledezma, 626 N.W.2d at 142. Generally, the courts do not control or direct to
whom or what type of a plea offer a prosecutor should make to a particular
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defendant or co-defendant. We conclude McAlister has not established his
counsel was ineffective.
AFFIRMED.