IN THE COURT OF APPEALS OF IOWA
No. 1-194 / 10-0777
Filed May 25, 2011
CINDY C. HEBRON,
STATE OF IOWA,
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,
Cindy Hebron appeals from the district court order denying her application
for postconviction relief. AFFIRMED.
Alyssa A. Kenville, Fort Dodge, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant
Attorney General, John P. Sarcone, County Attorney, and Jessica Tucker,
Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Eisenhauer and Danilson, JJ.
Tabor, J., takes no part.
Cindy Hebron appeals from the district court order denying her application
for postconviction relief. She contends her trial counsel was ineffective in failing
to adequately investigate her case and in failing to inform her of her right to waive
a jury trial. We review her claims de novo. See Ledezma v. State, 626 N.W.2d
134, 141 (Iowa 2001).
On the night of March 4, 2007, Hebron drove her vehicle into the rear end
of another vehicle, causing damage. The officer who responded to the collision
noticed Herbron’s eyes were watery and red or pink in color, her speech was
slurred, her breath smelled of the odor of an alcoholic beverage, and she had
difficulty with walking and balance. Hebron admitted she had been drinking. The
officer requested assistance to investigate whether Hebron was intoxicated.
Officer Boone arrived on the scene to conduct the investigation of Hebron.
He noticed her eyes were bloodshot and watery, she mumbled and her speech
was slurred, she smelled of the odor of an alcoholic beverage, and she had
difficulty with walking and balance. Hebron admitted to Officer Boone she had
been drinking. The officer performed field sobriety tests, which Hebron failed.
He then administered a preliminary breath test, which registered a reading of
.119, above the legal limit of .080.
Officer Boone arrested Hebron and
transported her to the police station where a breath test was administered. A first
test was inconclusive and a second test showed a reading of .120.
At some point, an altercation took place between Hebron and Officer
Boone, in which Hebron was injured. The facts are in dispute, although Hebron
claims the officer was hostile to her and assaulted her when she requested to
see the test results. Officer Boone testified Hebron became hostile and began to
fight the officers when she was informed she failed the test. Officer Boone also
testified he properly invoked implied consent and administered the tests
according to procedure.
After the testing at the Des Moines police station,
Hebron was taken to the Polk County Jail where her booking was videotaped.
Hebron’s counsel filed a motion to suppress the results of the breath test,
arguing the test results were invalid because the mouthpiece was not changed,
the results were unreliable, and Officer Boone coerced Hebron into taking the
test. The court found the officer did not change the mouthpiece on the machine
between the two tests. The court also expressed concerns about Officer Boone’s
behavior but was unable to find he coerced Hebron.
The court denied the
Hebron was tried to a jury and was convicted of operating while
Hebron filed an application for postconviction relief. Among other things,
she claimed her trial counsel was ineffective in failing to discover a videotape of
her booking at the jail—which contradicts Officer Boone’s testimony he was not
present when she was booked—and pictures of her injuries. She also claimed
trial counsel was ineffective in failing to inform her she could waive a jury trial and
proceed with a trial to the bench. Following a hearing, the district court denied
her application. Hebron appeals.
To establish an ineffective assistance of counsel claim a defendant must
show (1) counsel failed to perform an essential duty, and (2) prejudice resulted
therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of
ineffective assistance of counsel focuses on whether counsel’s performance was
reasonably effective. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The defendant must show counsel’s
performance fell below an objective standard of reasonableness so that counsel
failed to fulfill the adversarial role that the Sixth Amendment envisions. Id. A
strong presumption exists that counsel’s performance fell within the wide range
of reasonable professional assistance.
Wemark, 602 N.W.2d at 814.
defendant has the burden of proving both elements of his ineffective assistance
claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134,
145 (Iowa 2001).
Additionally, our courts have ruled that trial strategy, miscalculated tactics,
mistake or inexperience do not constitute ineffective assistance. Id. at 143. We
may dispose of the defendant’s ineffective assistance claims under either prong.
Id. In order to prove the prejudice prong, the defendant must show a reasonable
probability that but for counsel’s alleged errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 695, 104 S. Ct. at 2068, 80 L.
Ed. 2d at 698.
Hebron first claims his counsel was ineffective in failing to adequately
investigate her case and secure exculpatory evidence. In particular, she argues
her counsel was ineffective in failing to obtain (1) a videotape of her booking that
shows Officer Boone was present and (2) photographs of her injuries taken after
her release from jail. With regard to this evidence, Hebron’s trial counsel testified
he requested any videotapes or photographs from both the police department
and the jail, and was informed there was no videotape of Hebron being booked.
In a follow-up email, counsel asked about any photographs and was told they
would not be released because they were confidential and part of an arrest
incident report and personnel complaint.
Counsel sought to compel any
photographs or video prior to the suppression hearing and then renewed the
motion at the suppression hearing.
The motion was again raised at the
commencement of trial. In lieu of the photographs, the parties stipulated the
supplemental police report detailing Hebron’s injuries would be entered. The
district court found counsel’s testimony in regard to these matters credible.
We find Hebron has failed to show counsel breached an essential duty
with regard to investigating her case. Although Hebron states counsel “could
have done more” to discover the evidence in question, she does not state what
steps counsel could have taken.
The steps counsel took to discover the
evidence were reasonable. Although the actual photographs of Hebron’s injuries
were not entered at trial, they were accurately described in the police report.
Hebron next contends counsel was ineffective in failing to inform her of
her right to waive a jury trial and proceed with a trial to the bench. She claims if
the case had been presented to a judge instead of a jury, it would have been
possible for counsel to ask the court to take judicial notice of the suppression
court’s finding the mouthpiece used in the breath test was not changed between
the two tests administered rather than re-litigating the issue at trial.
Like the district court, we find counsel should have discussed with Hebron
her ability to waive her right to a jury trial. However, even if we assume this
failure amounted to breach of an essential duty, Hebron cannot show she was
prejudiced. A finding the mouthpiece was not changed on the breath test may
have undermined the credibility of the results, but there was ample evidence
Hebron was intoxicated even without the breath test results. Both officers who
responded to the accident scene made the following observations of Hebron: her
eyes were bloodshot and watery, her speech was slurred, she smelled of the
odor of alcoholic beverage, and her balance and ability to walk were impaired. In
addition, Herbon admitted she had been drinking and she failed the field sobriety
Because Hebron cannot prove both prongs of the ineffective assistance of
counsel test, we affirm the denial of her application for postconviction relief.