Opinion
No. 4-878 / 04-0982
Filed January 13, 2005
Appeal from the Iowa District Court for Linn County, Marsha M. Beckelman, Judge.
Kyle Anthony Doolin appeals the district court's denial of his application for postconviction relief. AFFIRMED.
Wallace Taylor, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Harold Denton, County Attorney, and Todd D. Tripp, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Kyle Anthony Doolin appeals the district court's denial of his application for postconviction relief following his 1998 conviction for possession of cocaine with intent to deliver as an habitual offender. He contends his appellate counsel was ineffective for failing to raise the district court's denial of his motion for new trial as an issue in his direct appeal. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
On direct appeal, in affirming Doolin's conviction this court set forth the following underlying facts:
On February 20, 1998, Cedar Rapids Police Officer Stephen Spicher was dispatched to the Red Roof Inn where employees had found a trash bag on a second floor balcony area, fifteen to twenty feet from room 204. He took the bag to the police station and examined the contents. Inside were two single-edged razor blades with white powder on them, two syringes, a pop can converted to a pipe, and discarded mail addressed to the defendant, Kyle Doolin, and his wife Vanessa. The white residue field-tested positive for cocaine. A search warrant for room 204 was obtained and executed that same day. Doolin and a woman, Rebecca Griffith, were present. During the search, police found more syringes, loose powder on the night stand, a vial of clear liquid, a baggy of powder in a purse, a bag of small baggies, a small plastic spoon, and a bag of powder in the toilet. These items were first photographed before being removed and taken into evidence.
Doolin was arrested and charged with possession of a controlled substance (cocaine) with intent to deliver in violation of Iowa Code section 124.401(1)(c)(3) (1997) and as an habitual offender, in violation of Iowa Code section 902.8. Defense counsel moved to suppress the evidence seized pursuant to the search warrant, but the district court denied the motion. The jury trial commenced on August 17, 1998. Two days later the jury returned a guilty verdict. Doolin conceded his four prior felony convictions. On December 10, 1998, judgment was entered and Doolin was sentenced to a term not to exceed fifteen years.
See State v. Doolin, No. 0-082/98-2263 (Iowa Ct.App. Mar. 29, 2000).
At trial Rebecca Griffith had testified for the State that she struggled with alcohol and drug abuse from the age of thirteen and had developed a cocaine habit at the age of seventeen. Griffith stated she met Doolin in December of 1997 and he became her sole supplier of cocaine. She testified that she usually purchased between one-half and three grams of cocaine from Doolin one to three times each week either at her apartment, his apartment, or at motels.
Griffith testified that she went to the Red Roof Inn motel at approximately 2:30 a.m. on February 20, 1998, to purchase cocaine from Doolin. She stated that a woman named Chris was present in the motel room when she arrived and when Doolin provided Griffith with cocaine. Griffith testified she thought Chris's last name may have been Saylor but she was not sure. She stated that she injected cocaine and she saw Chris and Doolin inject cocaine. Griffith then left the motel with Keith Beam but returned at least twice to get more cocaine from Doolin. Griffith said that when she returned the second time at approximately 9:00 a.m. Chris was still there but left around 10:00 a.m.
Griffith went on to testify that she and Doolin got locked out of the motel room that morning and she spent the rest of the day with Doolin trying to get more cocaine and get back into the room. They got back into the motel room at approximately 6:00 p.m. that evening. At that time Doolin gave Griffith a second gram of cocaine she had purchased and paid for earlier. He gave her the cocaine in a plastic baggy. Griffith testified Doolin then mixed up some of his own cocaine and some of her cocaine for them to inject. Griffith tied-up her baggy and put the remainder of her cocaine in her purse. She and Doolin then injected the cocaine and Griffith began to get ready to take a shower.
At approximately 7:00 p.m. the police knocked on the door and entered the room. The officers searched the room and arrested Doolin and Griffith. Griffith testified that at the police station she decided to tell her version of the events to a detective because she wanted to be honest and "salvage" something of her life. She also thought it might help her legally, although no one had specifically told her it would help her. Griffith thought she was maybe facing up to twenty-five years in prison but testified that no one had either told her so or told her that she had to talk to the police to avoid going to prison.
On October 9, 1998, after he was convicted but before sentencing, Doolin filed a motion for new trial based on newly discovered evidence. He asserted he had recently located the "Chris" whom Griffith had testified had been in the motel room when he allegedly gave Griffith the cocaine. Doolin argued she had not testified at trial because he did not know her last name or where to locate her, but he had just recently found out her full name was Christine Saylor and where she was living, and thus she could now testify.
At the motion hearing Saylor testified she had meet Doolin through a girlfriend, had known him for about a month and a half, and had arrived at his motel room after midnight on February 20, 1998, to talk to Doolin's wife, see Griffith whom she had met through Doolin and his wife, and use drugs. She stated that Griffith arrived at the motel room after the bars closed around 2:00 a.m. Saylor testified she did not see Doolin give Griffith, or anyone else, any cocaine during the period she was present in the room. She stated she observed Griffith with cocaine but did not know where or when she had acquired it. She stated she used cocaine with Griffith and Doolin several times between 2:30 a.m. and 8:30 a.m. and then left the motel room around 8:30 a.m. and did not return.
The district court denied Doolin's motion for new trial, finding that since Saylor had left many hours before the search of the motel room and arrest of Doolin "it is difficult to imagine how this testimony could have affected the outcome of the trial." Doolin appealed his conviction and the State Appellate Defender's Office was appointed to represent Doolin on appeal. Doolin's appellate attorney challenged the chain of custody and the search warrant for Doolin's motel room on direct appeal, but did not raise the denial of the motion for new trial as an issue in the appeal. This court affirmed Doolin's conviction. State v. Doolin, No. 0-082/98-2263 (Iowa Ct.App. Mar. 29, 2000).
Doolin filed the present application for postconviction relief, contending his appellate counsel was ineffective for failing to raise on direct appeal the issue of the denial of his motion for new trial which was based on a claim of newly discovered evidence. An evidentiary hearing was held and the postconviction court denied Doolin's application in a ruling filed June 14, 2004. In denying the motion, the court found that Doolin's appellate attorney's decision not to include the issue of the motion for new trial on direct appeal was a strategic decision and did "not demonstrate that her handling of the matter was below the level of competence expected of a reasonably competent attorney" or a "product of inattention to the case." The postconviction court further found that Doolin failed to prove he was prejudiced by his appellate attorney not raising the issue because even if Saylor's testimony had been admitted at trial it would not have changed the outcome of the trial given the number of hours Doolin and Griffith were together after Saylor left.
Doolin appeals, contending the postconviction court erred in denying his application for postconviction relief. He asserts his appellate counsel breached a duty by failing to raise the denial of his motion for new trial on direct appeal and he was prejudiced by this failure because had that issue been raised the outcome of the appeal would have been different.
II. SCOPE AND STANDARD OF REVIEW.
We typically review postconviction relief proceedings on claimed error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. MERITS.
To prove ineffective assistance of counsel the applicant must show that counsel failed to perform an essential duty and that prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). We judge claims of ineffective assistance of appellate counsel against the same two-prong test we utilize to judge claims of ineffective assistance of trial counsel. Ledezma, 626 N.W.2d at 141. A reviewing court may look to either prong to dispose of an ineffective assistance claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). We need not decide whether counsel's performance was deficient before examining the prejudice prong. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In order to prove prejudice the defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
"Improvident strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981). A defendant is not entitled to perfect representation, but rather only that which is within the normal range of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987).
Doolin contends his appellate counsel was ineffective for failing to claim on direct appeal that the district court abused its discretion in denying his motion for new trial which was based on newly discovered evidence. See State v. Weaver, 554 N.W.2d 240, 244 (Iowa 1996), overruled on other grounds by State v. Hallum, 585 N.W.2d 249 (Iowa 1998) ("We review a district court's denial or grant of a motion for new trial on the basis of newly-discovered evidence for abuse of discretion.") He argues this failure was prejudicial to him because had his appellate attorney raised this issue on direct appeal the outcome of the appeal would have been different. Accordingly, we must determine whether Doolin's argument that the district court abused its discretion in denying the motion for new trial has any merit in order to determine if Doolin was prejudiced by appellate counsel not raising the issue on direct appeal.
Iowa Rule of Criminal Procedure 2.24(2)( b)(8) provides, in relevant part, that a new trial may be granted "[w]hen the defendant has discovered important and material evidence in the defendant's favor since the verdict, which the defendant could not with reasonable diligence have discovered and produced at the trial." In order to be granted a new trial under this rule Doolin had to show, among other things, that the newly discovered evidence probably would have changed the result of the trial in which he was convicted. Weaver, 554 N.W.2d at 246; State v. Romeo, 542 N.W.2d 543, 550 (Iowa 1996). "The court's discretion in granting or denying a motion for new trial is `unusually broad' when the new trial motion is grounded on newly-discovered evidence." Weaver, 554 N.W.2d at 244. For the following reasons, we agree with the district court that there is not a reasonable probability Saylor's testimony would have changed the result of the trial, and conclude the court did not abuse its broad discretion in denying Doolin's motion for new trial.
The district court did not find it necessary to address or decide whether Doolin met his burden to show two of the other requirements for grant of a new trial based on newly discovered evidence: (1) that the evidence was discovered after the verdict and (2) he could not have discovered it earlier in the exercise of reasonable diligence. See Weaver, 554 N.W.2d at 246; Romeo, 542 N.W.2d at 550. We do not address these requirements on appeal either. However, we note that although Doolin asserts he did not know Saylor's identity until after the verdict the evidence presented at Doolin's criminal trial (1) shows that Doolin had known Saylor for some time before the events of February 20, 1998, (2) indicates that Doolin's wife had also known Saylor before that date, (3) shows that Griffith had met Saylor through Doolin and Doolin's wife, and (4) shows that Griffith's testimony accurately identified Saylor by her full name during Doolin's trial. We thus question, but just as the postconviction trial court need not decide, whether Doolin met his burden to satisfy these two other prongs of the test.
First, despite Doolin's arguments to the contrary, we do not believe that Griffith's testimony was the only evidence on the challenged element, Doolin's intent to deliver cocaine. The police found several razor blades and syringes, both used and unused, in the motel room where Doolin and Griffith were arrested. This would indicate, at the least, usage by more than one person. In addition, and perhaps more importantly, a grocery bag containing a box of unused sandwich baggies, and a small plastic spoon, were found in the room. There was expert testimony at trial that these items are respectively commonly used for packaging controlled substances and for dealing with powder narcotics. Thus, there was also physical evidence that the cocaine possessed by Doolin was intended for delivery or distribution, and not merely his personal use.
Second, although Saylor testified she saw Griffith in possession of cocaine, when asked if Griffith had the cocaine when she arrived Saylor responded, "I don't know." Saylor only testified that she did not "see" Doolin give Grffith any cocaine, and did not "see" Doolin in possession of cocaine at the time she left the motel. Saylor did not testify that there was never a time she was out of the presence of Griffith and Doolin during her time in the motel room or that there was no reasonable possibility Doolin could have given Griffith cocaine while she was in the motel room. Saylor only stated that while she was in the room, between about midnight and approximately 8:30 a.m., she did not witness Doolin giving Griffith cocaine. She did not testify it did not happen. Thus, despite Doolin's argument to the contrary, Saylor's testimony does not "directly contradict" Griffith's testimony that Doolin provided Griffith cocaine while Saylor was in the motel room. Instead, it only shows Saylor did not observe Doolin provide Griffith with cocaine.
Finally, even assuming Saylor's testimony did directly contradict Griffith's testimony that Doolin provided Griffith with cocaine in the motel room while Saylor was present, we agree with the district and postconviction courts that such testimony would not have probably changed the result of the trial. Given the number of hours Doolin and Griffith were alone together between the time of Saylor's departure at approximately 8:30 a.m. and the time of the search and arrest at approximately 7:00 p.m., Doolin had ample time to distribute drugs to Griffith without Saylor being aware of it. Furthermore, Griffith in fact testified Doolin did distribute more drugs to her during that time period.
Based on all of the physical and circumstantial evidence which is in the record in addition to Griffith's allegedly contradicted testimony, we conclude the district court did not abuse its discretion in denying Doolin's motion for new trial because there is not a reasonable probability Saylor's testimony would have changed the result of the trial at which Doolin was convicted. Accordingly, we conclude Doolin was not prejudiced by appellate counsel not raising the new trial issue in Doolin's direct appeal because there is not a reasonable probability the outcome of the appeal would have been different had this issue been raised on appeal.
IV. CONCLUSION.
For all of the reasons set forth above, we conclude the postconviction court did not err in finding that Doolin failed to prove his appellate counsel was ineffective for not raising the issue of the denial of his motion for new trial on direct appeal. This omission was not prejudicial to Doolin because there is not a reasonable probability it would have changed the outcome of the appeal. Doolin was not denied his right to effective assistance of appellate counsel.