IN THE COURT OF APPEALS OF IOWA
No. 13-0358
Filed October 15, 2014
DANIEL ALAN BLAIR,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Steven J. Oeth,
Judge.
Petitioner appeals the denial of his application for postconviction relief.
AFFIRMED.
Andrew J. Boettger of Hastings, Gartin & Boettger, L.L.P., Ames, for
appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, Dan Kolacia, County Attorney, and Daniel J. Gonnerman, Assistant
County Attorney, for appellee.
Heard by Vaitheswaran, P.J., and Doyle and McDonald, JJ. Danilson,
C.J., takes no part.
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MCDONALD, J.
Daniel Blair appeals the district court’s denial of his application for
postconviction relief. On appeal, Blair argues his trial counsel rendered
constitutionally deficient performance by failing to file a motion for change of
venue and by failing to adequately advise Blair of his right to testify.
I.
In 2008, Blair was convicted of murder in the first degree following a jury
trial in Boone County. The facts and circumstances of the murder are set forth in
State v. Blair, No. 08-0792, 2009 WL 1913691 (Iowa Ct. App. July 2, 2009),
which resolved Blair’s direct appeal following his conviction. In sum, the
evidence showed that Blair, his paramour, and his roommate murdered Blair’s
paramour’s husband, Shane Hill.
II.
We review ineffective assistance of counsel claims de novo. See State v.
Bearse, 748 N.W.2d 211, 214 (Iowa 2008). An applicant for postconviction relief
claiming ineffective assistance of trial counsel must establish that trial counsel
failed to perform an essential duty and that this failure resulted in prejudice. See
State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). It is the applicant’s burden
to establish an entitlement to relief by a preponderance of the evidence. See
Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).
To establish that counsel failed to perform an essential duty “the applicant
must demonstrate the attorney performed below the standard demanded of a
reasonably competent attorney.” Id. at 142. The attorney’s performance is
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measured against “prevailing professional norms,” and it is presumed the
attorney performed competently. See id.
To establish prejudice, Blair must show “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998) (citation
and quotation marks omitted). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the defendant’s trial.” Id. (citation and
quotation marks omitted). Our ultimate concern is with the fundamental fairness
of the proceeding being challenged. Id.
A.
We first address Blair’s claim regarding change of venue. Blair contends
his trial counsel was ineffective in failing to move for a change of venue due to
extensive pretrial publicity. A trial court must grant a motion for change of venue
if it determines “such degree of prejudice exists in the county in which the trial is
to be held that there is a substantial likelihood a fair and impartial trial cannot be
preserved with a jury selected from that county . . . .” Iowa R. Crim. P.
2.11(10)(b); see State v. Walters, 426 N.W.2d 136, 138 (Iowa 1988) (“A change
must be ordered when the defendant demonstrates a substantial likelihood that a
fair and impartial jury could not otherwise be selected.”). To establish a
substantial likelihood that a fair and impartial trial cannot be selected, a
defendant must establish either (1) “the publicity attending the case was so
pervasive and inflammatory that prejudice must be presumed,” or (2) “actual
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prejudice occurred” on the part of the jury. State v. Simmons, 454 N.W.2d 866,
867 (Iowa 1990).
“Mere exposure to news accounts does not amount to a substantial
likelihood of prejudice.” Walters, 426 N.W.2d at 138. “For the purpose of
determining juror prejudice, the relevant question is not what a juror has been
exposed to, but whether the juror holds such a fixed opinion of the merits of the
case that he or she cannot judge impartially the guilt or innocence of the
defendant.” Id. Relevant factors include: (1) whether the media accounts stated
the defendant is guilty; (2) whether the media accounts were factual in tone; (3)
the passage of time between the media accounts and the trial date that might
have diminished any prejudicial effect; (4) whether there were “editorial
denunciations” of the defendant; (5) whether the media accounts were
“inaccurate, misleading, or unfair;” (6) whether panel members who professed
knowledge about the case stated they could remain impartial; and (7) whether
those members who could not remain impartial were struck for cause. See id. at
139.
Blair has not established presumed prejudice that would have supported a
meritorious motion to change venue and thus given rise to a duty to move for the
same. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (stating “counsel
has no duty to raise an issue that has no merit”). In support of his claim that
prejudice should be presumed, Blair argues his trial counsel could not recall the
nature and extent of pretrial publicity relating to the trial when she was deposed
for this postconviction proceeding. Blair misapprehends the burden. It is his
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burden to prove his claim. He has not done so. The postconviction record is
devoid of evidence relating to the extent of any pretrial publicity, the timing of any
such publicity, and the nature of any such publicity.
Blair also has not established actual prejudice that would have supported
a meritorious motion and thus given rise to a duty to move for change of venue.
See id. “Voir dire of prospective jurors should be trusted to expose any
substantial prejudices among them.” Walters, 426 N.W.2d at 138. Here, voir
dire was extensive. Twenty-five members of the panel expressed some
familiarity with the case, but only seven of them were selected for the jury. Of the
seven, only three had anything more than a vague recollection of the case from
pretrial accounts. All jurors stated they could set aside what they had heard
about the case and decide the case only upon the evidence presented during
trial. Blair does not identify any juror that was not fair or impartial. Blair has thus
not established actual prejudice. See Irvin v. Dowd, 366 U.S. 717, 723 (1961)
(“To hold that the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut the presumption of a
prospective juror's impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court.”).
Blair’s claim fails for an additional reason: Blair’s trial counsel and co-
counsel made a strategic decision to try the case in Boone County. “The
question of when to seek a change of venue is . . . a matter of professional
judgment about which experienced trial lawyers frequently disagree.” Fryer v.
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State, 325 N.W.2d 400, 413 (Iowa 1982). The postconviction record shows trial
counsel and co-counsel discussed the benefits of keeping the trial in Boone
County in the hope jurors would know that Blair and the victim fought over the
woman and that the victim had previously made threats against Blair. In sum,
trial counsel and co-counsel believed the jurors’ potential knowledge of the love-
triangle might benefit their client. Their strategic decision to try the case in
Boone County did not constitute a breach of an essential duty. See id. (holding
counsel was not ineffective in exercising strategic decision to not file a motion for
change of venue); Sims v. State, 295 N.W.2d 420, 423 (Iowa 1980) (“Improvident
trial strategy, miscalculated tactics, or mistakes in judgment do not necessarily
amount to ineffective assistance.”).
Finally, Blair cannot establish prejudice under Strickland v. Washington,
466 U.S. 668 (1984), resulting from the claimed error. There was overwhelming
evidence of Blair’s guilt, including his confession. There is no showing in the
postconviction record that a jury in a different county would have reached a
different result. See State v. Hanegan, No. 00-2049, 2002 WL 663636, at *3
(Iowa Ct. App. Apr. 24, 2002) (holding claim of ineffective assistance of counsel
failed despite alleged pretrial publicity where there was overwhelming evidence
supporting the verdict and no indication the verdict would have been different in
another county); see also Strickland, 466 U.S. at 695 (stating that the
“assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially applying the
standards that govern the decision”). Indeed, in Blair’s appeal brief, other than a
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cursory assertion that prejudice existed, Blair does not even identify the prejudice
allegedly suffered. Conclusory claims of prejudice are not enough to satisfy the
requirement that the defendant (applicant) must prove prejudice. See State v.
Tate, 710 N.W.2d 237 (Iowa 2006).
B.
We also conclude the district court correctly denied Blair’s claim that his
trial counsel provided constitutionally deficient advice related to Blair’s right to
testify. “The decision whether or not to testify belongs to the defendant, and the
role of counsel is to provide advice to enable a defendant to make the decision.”
Ledezma, 626 N.W.2d at 146. “Counsel has a duty to advise the defendant
about the consequences of testifying so that an informed decision can be made.”
Id. at 146-47.
There is no evidence that Blair’s trial counsel or co-counsel breached any
duty. Blair’s claim rests on his trial counsel’s postconviction testimony that she
could not recall with specificity her discussions with Blair regarding his right to
testify. This is not surprising given the length of time between Blair’s trial and this
postconviction relief proceeding. Counsel was able to testify, however, to her
regular practice of advising clients regarding their right to testify. Her recollection
that she and co-counsel would have had such discussions with Blair and the fact
that she and co-counsel did have such discussions with Blair is confirmed by the
colloquy made during trial:
COUNSEL: Well, then, Danny the next question is whether or not
you choose to testify. You know that in this country, you don’t have
to testify?
BLAIR: Yes, sir.
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COUNSEL: And that is a Constitutional right, which is of the highest
order. Do you understand that?
BLAIR: Yes, sir.
COUNSEL: That means that you can sit here and, as Ms. Boehlje
has indicated during voir dire, you can sit here throughout the trial
and never say a word in your own defense. Do you understand?
BLAIR: Yes, sir.
COUNSEL: That’s because the government has the burden of
proof. They have to prove you guilty. We don’t have to prove a
thing; correct?
BLAIR: Correct.
COUNSEL: Moreover, they have to prove it beyond a reasonable
doubt, which is a very substantial burden. Do you understand that?
BLAIR: Yes, sir.
COUNSEL: Danny, if you choose to testify, then you – that is
absolutely your right and Ms. Boehlje and I will do our very best that
we can in order to have your testimony be as helpful to you as it
can be. The other option is to not testify. Do you understand?
BLAIR: Yes, sir.
....
COUNSEL: Do you have any questions, Danny, as to what we
have said here so far?
BLAIR: No, sir, I don’t
COUNSEL: Would you like a couple of minutes to compose your
thoughts and make a decision, an informed decision, after
consultation with Ms. Boehlje and me as to your decision to testify
or not?
BLAIR: I would appreciate that, yes.
COUNSEL: Okay. Five minutes enough?
BLAIR: Yeah.
COUNSEL: May we be indulged, Judge?
THE COURT: Certainly. I don’t want this record to suggest that he’s
only being given five minutes. I assume there’s been some time
that you, folks, have talked to him prior to this. We’re certainly
giving him the extra time he needs. But just so your record is clear,
counsel, you’ve had a chance to talk to him even well before this
trial?
COUNSEL: Yes, sir, multiple times and numerous times during the
course of this trial. We don’t wish to delay the proceedings, but we
understand the Court will give Mr. Blair as much time as he needs.
THE COURT: That’s correct, Mr. Blair, we will. Is counsel’s
statement correct, Mr. Blair?
BLAIR: Yes, sir.
THE COURT: All right.
....
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COUNSEL: Danny, the judge gave us time to discuss this one last
time; is that correct?
BLAIR: Yes, sir.
COUNSEL: And not only that, but we’ve discussed it for an
extended period of time this morning; is that right?
BLAIR: Yes, sir.
COUNSEL: And we’ve discussed it multiple times during the course
of the trial last week also; is that right?
BLAIR: Yes, sir.
COUNSEL: Have you had enough time to make up your mind as to
whether or not you wish to testify?
BLAIR: I believe I have.
COUNSEL: Do you have any questions of either Ms. Boehlje or me
or, indeed even the Court, if the Judge wanted to grant you that?
Do you have any questions of any of us about your decision?
BLAIR: No, sir, I don’t.
COUNSEL: Very good. Tell us what your decision is.
BLAIR: I choose not to testify.
Blair’s current claim is flatly contradicted by the trial record. His claim thus fails.
See Stouffer v. State, No. 12-0932, 2013 WL 5498060, at *5-6 (Iowa Ct. App.
Oct. 2, 2013).
In addition to not establishing a breach of duty, Blair has not established
prejudice. In his postconviction testimony, Blair admitted that he did not know
what his testimony at trial would have been had he decided to testify and that he
would have had to admit he conspired to and had the specific intent to kill Shane
Hill. There is nothing in this record indicating Blair’s testimony would have been
exculpatory or otherwise resulted in a different outcome. Indeed, it appears that
Blair’s trial testimony would have been inculpatory and duplicative of his
confession.
III.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
Daniel Alan Blair, Applicant-Appellant v. State of Iowa
Combined Opinion