TEDDIE FISHER, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-773 / 05-1408
Filed January 31, 2007
TEDDIE FISHER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Washington County, Michael
Mullins, Judge.
Applicant appeals from the dismissal of his application for postconviction
relief. AFFIRMED.
Rockne O. Cole, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, Barbara A. Edmondson, County Attorney, and Eric R. Goers, Assistant
County Attorney, for appellee State.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
2
ZIMMER, J.
Teddie Fisher appeals from the district court’s denial of his application for
postconviction relief. We affirm the district court.
I. Background Facts and Proceedings.
Fisher was charged with sexual abuse in the second degree, in violation of
Iowa Code section 709.3 (1999). The trial information alleged that on or about
April 9, 1999, Fisher had committed a sex act on A.E., who was then nine years
old, by having oral contact with her genital area. During trial A.E. testified as to
the abuse, which allegedly occurred while A.E. was spending the night at
Fisher’s home, during a sleepover with Fisher’s step-daughter, M.B. The jury
also heard evidence regarding Fisher’s interview with law enforcement, which
was not recorded. The officer who conducted the interview testified that Fisher
had confessed to oral-to-genital contact with A.E. Fisher testified and denied that
he had abused A.E., and asserted he had never confessed to law enforcement.
The jury returned a guilty verdict on January 20, 2000.
sentencing, Fisher filed a timely notice of appeal.
Following
On September 22, 2000,
Fisher’s appellate attorney, Dennis Hendrickson, filed a motion and brief
pursuant to what is now Iowa Rule of Appellate Procedure 6.104, 1 asserting that
Fisher’s appeal was frivolous and seeking leave to withdraw. That same day
Hendrickson notified Fisher in writing of his decision, with attached copies of his
motion and brief, as required by rule 6.104(2). Pursuant to rule 6.104(4), the
letter informed Fisher that if he disagreed with Hendrickson’s conclusions, he
1
At the time of the appeal this matter was governed by rule 104, which has since been
renumbered as rule 6.104. There have been no substantive changes to the rule since
the time of Fisher’s appeal from his criminal conviction.
3
was required to submit a letter to the clerk of the supreme court within thirty days
raising any points that he believed supported his appeal.
Although Fisher
received this letter at least nine days prior to the deadline, he did not file a
response. On December 19, 2000, the supreme court concluded Fisher’s appeal
was frivolous and ordered it dismissed.
Fisher filed a pro se postconviction relief application on January 24, 2002.
He filed an amended application, through counsel, on February 24, 2004. The
matter came on for hearing in May 2005. Fisher presented several claims for the
district court’s determination. He contended his trial counsel was ineffective for
failing to adequately investigate prior allegations of sexual abuse by the victim,
and to adequately investigate and present the testimony of the victim’s
stepfather. He also asserted due process violations stemming from prosecutorial
misconduct during unreported closing arguments, and the State’s failure to
disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Finally, he alleged ineffective assistance of
appellate counsel. 2
The State resisted the claims on the merits, but further
contended Fisher had failed to preserve error because he had not raised these
claims on direct appeal.
Following hearing, the district court dismissed Fisher’s postconviction
relief application.
The court did not expressly address the issue of error
preservation, but did determine that Fisher had failed to establish any of his
claims. It rejected the prosecutorial misconduct claim both as alleged in the
2
An additional “possible” claim, new evidence in the form of an as-yet-unlocated
videotape of Fisher’s interrogation by police, was not pursued during the postconviction
hearing and is not at issue on appeal.
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postconviction relief application and, alternatively, as a claim of ineffective
assistance of trial counsel. Fisher appeals, reasserting the above-noted claims.
II. Scope of Review.
We conduct a de novo review of alleged constitutional violations. See
Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999) (ineffective assistance of
counsel); State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996) (due process).
III. Necessity of Raising Claim in Direct Appeal.
Before we look to the merits of Fisher’s claims, we address the State’s
renewed contention that Fisher’s failure to raise his claims on direct appeal
precludes him from raising them in a postconviction relief application. Pursuant
to section 822.8,
Any ground finally adjudicated or not raised, or knowingly,
voluntarily, and intelligently waived in the proceeding that resulted
in the conviction or sentence . . . may not be the basis for a
subsequent application, unless the court finds a ground for relief
asserted which for sufficient reason was not asserted . . . .
This section has long been interpreted as providing that a “claim not
properly raised on direct appeal may not be litigated in a postconviction relief
action unless sufficient reason or cause is shown for not previously raising the
claim, and actual prejudice resulted from the claim of error.” Berryhill v. State,
603 N.W.2d 243, 245 (Iowa 1999). Sufficient reasons include the ineffective
assistance of appellate counsel, and factual and legal matters excusably
unknown at the time of trial and appeal.
Id.
When, as here, an appeal is
dismissed pursuant to an uncontested rule 6.104 motion, the applicant must
show sufficient reasons why he did not raise such grounds in response to the
motion. Bugley v. State, 596 N.W.2d 893, 897 (Iowa 1999) (“An unresisted rule
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[6.]104 motion transforms counsel’s decision not to raise any grounds on direct
appeal into the decision of the applicant.”).
Fisher contends the foregoing requirements no longer apply, at least as to
his ineffective assistance of counsel claims, because section 814.7(1), effective
July 1, 2004, provides:
An ineffective assistance of counsel claim in a criminal case shall
be determined by filing an application for postconviction relief
pursuant to chapter 822, except as otherwise provided in this
section. The claim need not be raised on direct appeal from the
criminal proceedings in order to preserve the claim for
postconviction relief purposes.
Noting the postconviction ruling in this case was rendered after the
statute’s effective date, Fisher asserts he must receive the benefit of the new
provision because “‘statutes controlling appeals are those that were in effect at
the time the judgment or order appealed from was rendered.’” Wal-Mart Stores,
Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003) (citations omitted). The
State contends Fisher’s ability to raise claims in a postconviction relief action is
governed by the statutes in effect at the time of conviction and judgment in the
underlying criminal proceeding. No published supreme court opinion speaks to
this issue. Upon our review, we conclude that Fisher may avail himself of section
814.7, although for a slightly different reason than the one advanced.
Section 814.7, which governs the methods by which a criminal defendant
may assert an ineffective assistance of counsel claim, is procedural in nature.
See Dolezal v. Bockes, 602 N.W.2d 348, 351 (Iowa 1999) (noting procedural
legislation is that which “prescribe[s] a method of enforcing rights or obtaining
redress for their invasion”); Board of Trs. of Mun. Fire & Police Ret. Sys. of Iowa
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v. City of West Des Moines, 587 N.W.2d 227, 231 (Iowa 1998) (noting such
legislation is that which “governs the practice, method, procedure, or legal
machinery by which the substantive law is enforced or made effective”).
Procedural legislation will be applied to all actions, including those currently
pending, Dolezal, 602 N.W.2d at 351, unless “it is not feasible to do so or will
work an injustice in the particular case,” Brewer v. Iowa Dist. Ct., 395 N.W.2d
841, 842 (Iowa 1986). However, the question of retroactive versus prospective
application is ultimately governed by legislative intent. Board of Trs., 587 N.W.2d
at 230-31. Employing these principles leads us to conclude that section 814.7 is
to be applied retroactively as well as prospectively.
We recognize that retroactive application of section 814.7 allows Fisher to
benefit from its provisions solely because he was fortunate enough to experience
a lengthy delay between the filing of his application and the court’s ruling on the
same, a benefit not shared by numerous other applicants who had their actions
resolved in a more timely fashion. Moreover, the State’s contention that Fisher
should be bound by the law in existence at the time of his conviction makes
practical sense, and is not without appeal. Nevertheless, there is no indication
that retroactive application of section 814.7 is not feasible or would work an
injustice in this particular case.
Notably, we see nothing in the language of section 814.7 which would
indicate an intent by the legislature that it be applied prospectively only. Rather,
the apparent goal of section 814.7 was to promote judicial economy and ensure
that ineffective assistance of counsel claims are heard in the arena most
conducive to their resolution. See State v. DeCamp, 622 N.W.2d 290, 296 (Iowa
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2001) (noting that, unless record on appeal is adequate to assess counsel’s
performance, ineffective assistance of counsel claim is preserved for possible
postconviction review to allow a full development of the record regarding
counsel’s actions). Such a goal favors retroactive application.
In light of the foregoing, we conclude that section 814.7 is applicable in the
present matter. Accordingly, Fisher need not provide a sufficient reason for his
failure to raise his ineffective assistance of counsel claims on direct appeal. We
note, however, that this exemption does not extend to Fisher’s direct claims of
due process violations based on the State’s alleged failure to disclose
exculpatory evidence and its alleged engagement in prosecutorial misconduct
during closing arguments. Fisher must accordingly show a “sufficient reason”
why these claims were not raised on direct appeal.
The only sufficient reason alleged by Fisher for his failure to raise a direct
prosecutorial misconduct claim is the ineffective assistance of appellate counsel.
This allegation, however, is limited to a contention that Hendrickson’s rule 6.104
motion and accompanying brief failed to comply with Anders v. California, 386
U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967), which
requires an appellate counsel to act “in the role of an active advocate in behalf of
his client.”
Fisher asserts Hendrickson’s motion and brief were inadequate
because they “only describe[ ] why the issues are not any good.” We have
reviewed the law in this area, and conclude his contention is without merit.
First, we note rule 6.104, which was complied with in this case, mirrors the
specific requirements set forth in Anders. See Anders, 386 U.S. at 744, 87 S. Ct.
at 1400, 18 L. Ed. 2d at 498. Moreover, Anders “merely aims to ‘assure the court
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that the . . . defendant's constitutional rights have not been violated.’” Smith v.
Robbins, 528 U.S. 259, 272, 120 S. Ct. 746, 757, 145 L. Ed. 2d 756, 771 (2000)
(citation omitted).
A brief in support of a frivolous appeal motion is not
inadequate merely because it discusses only why each issue lacks merit. Id. at
272-73, 120 S. Ct. at 757, 145 L. Ed. 2d at 771-72.
Rule 6.104 affords
defendants the necessary “‘adequate and effective appellate review’” so long as
it “reasonably ensures that an . . . appeal will be resolved in a way that is related
to the merit of that appeal.” Id. at 276-77, 120 S. Ct. at 759, 145 L. Ed. 2d at 774
(citations omitted).
The foregoing standard has been met in this case.
Accordingly, Fisher has not shown a sufficient reason for his failure to raise his
due process prosecutorial misconduct claim on direct appeal. 3
Regarding the alleged Brady violation, Fisher asserts he was unable to
raise the claim on direct appeal because he was unaware of the allegedly
exculpatory evidence—reports regarding prior allegations of sexual abuse made
by A.E.—until after his direct appeal had been dismissed by the supreme court.
Although the record indicates trial counsel was aware that there had been a prior
allegation of sexual abuse, we will assume for the sake of argument that the
reports themselves were excusably unknown to Fisher at the time of direct
appeal, and thus that he has shown sufficient reason for failure to raise this claim
in resistance to Hendrickson’s rule 6.104 motion. We accordingly turn to the
merits of the claims properly before us in this appeal.
3
We further note that, even if the claim had been raised on direct appeal, it is doubtful
error would have been preserved. See State v. Romeo, 542 N.W.2d 543, 552 (Iowa
1996) (providing a defendant cannot obtain relief on a claim of prosecutorial misconduct
during closing arguments when the arguments were not reported and no objection to the
alleged misconduct appears of record).
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IV. Alleged Brady Violation.
Fisher asserts the State suppressed reports relating to two prior
allegations of sexual abuse made by A.E.—one in 1996 regarding a Lawrence
Manning and one in 1998 regarding a Damon Nichols—in violation of his right to
due process. A defendant’s due process rights are violated when the State fails
to produce upon request evidence that is favorable to the defendant “‘where the
evidence is material either to guilt or punishment.’” State v. Romeo, 542 N.W.2d
543, 551 (Iowa 1996) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.
1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963)). Thus, to show a due process
violation, the defendant must prove the evidence was (1) suppressed by the
prosecution, (2) favorable to the defendant, and (3) material to the issue of guilt.
Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. Our review of
the record indicates that Fisher has not made this showing.
First, we question whether Fisher has demonstrated that the reports were
in fact suppressed by the prosecution. As previously noted, the record indicates
trial counsel was or should have been aware of at least one of the prior
allegations of sexual abuse.
See Harrington v. State, 659 N.W.2d 509, 522
(Iowa 2003) (providing evidence is not considered suppressed “‘if the defendant
either knew or should have known of the essential facts permitting him to take
advantage of the evidence’” (citation omitted)). Moreover, there is no affirmative
evidence that the State failed to produce the reports in response to a defense
request. At best, the record is simply bereft of evidence that any reports were
provided defense counsel.
More importantly, however, Fisher has failed to
demonstrate the reports were material to the issue of guilt.
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“Evidence is material when there is a ‘reasonable probability’ that
disclosure would have changed the result of the proceeding.” State v. Veal, 564
N.W.2d 797, 810 (Iowa 1997) (citation omitted). Here, both reports related to
prior allegations of sexual abuse. Such evidence falls within the ambit of Iowa’s
rape shield law, and thus may not be admitted into evidence unless it involves a
false claim of prior sexual conduct. See Iowa R. Evid. 5.412; State v. Baker, 679
N.W.2d 7, 9-10 (Iowa 2004).
The record in this case demonstrates that
(1) Manning admitted to touching “a little girl” while at A.E.’s home and a
complaint was filed against Manning for indecent contact with a child in violation
of Iowa Code section 709.12(2) (1997) and (2) the State declined to pursue
prosecution against Nichols, not because it believed the allegation was false, but
because it “just felt [it] didn’t have the kind of evidence [it] would like to take the
case to trial.” This is a far cry from evidence that A.E.’s allegation against either
man was false. 4 Because Fisher has not shown the prior allegations are false,
he failed to demonstrate the report would have been admissible in the criminal
trial.
The district court did not err in dismissing Fisher’s Brady violation claim.
We accordingly turn to the ineffective assistance of trial counsel claims.
4
Our supreme court has recently held that
a criminal defendant wishing to admit such evidence must first make a
threshold showing to the trial judge outside the presence of the jury that
(1) the complaining witness made the statements and (2) the statements
are false, based on a preponderance of the evidence.
State v. Alberts, 722 N.W.2d 402, 409-10 (Iowa 2006).
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V. Ineffective Assistance of Trial Counsel.
Fisher asserts his trial counsel was ineffective for failing to (1) adequately
investigate prior allegations of sexual abuse by the victim; (2) adequately
investigate and present the testimony of the victim’s stepfather, Matt Simone;
and (3) object to prosecutorial misconduct during closing arguments.
To
establish these claims, Fisher must overcome a strong presumption of his
counsel’s competence. State v. Nucaro, 614 N.W.2d 856, 858 (Iowa Ct. App.
2000). He has the burden of proving his attorney’s performance fell below “an
objective standard of reasonableness” and that “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Prejudice is shown by a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the proceedings. State v. Carillo, 597 N.W.2d 497, 500 (Iowa 1999).
The first claim, regarding counsel’s alleged failure to investigate the prior
allegations of sexual abuse, fails for the reasons stated in the previous section of
this opinion. Fisher has not shown that evidence regarding the prior allegations
would have been admissible at his criminal trial, and thus has not demonstrated
prejudice stemming from any failure by counsel to uncover the reports and
related evidence.
Nor do we find merit in Fisher’s second contention, that trial counsel was
ineffective for failing to present testimony from A.E.’s stepfather, Matt Simone,
indicating that when Simone picked A.E. up at Fisher’s home the morning
12
following the sleepover he noticed nothing unusual, that A.E. did not tell him
about the sexual abuse, and that he doubted the truth of A.E.’s accusation since
A.E. expressed a desire to return to Fisher’s home the following day. We agree
with the State that the foregoing information is largely cumulative of A.E.’s own
testimony.
A.E. explained that she did not tell Simone about the incident
because she “didn’t think he would really listen,” and indicated that she was
concerned about making him angry. A.E. also testified that she had asked to
spend the following night at Fisher’s home because M.B. “had asked [her] to.”
Moreover, the mere observation that A.E. was “acting normally” the following
morning is not sufficient to undermine confidence in the outcome of the
proceedings.
As with his first claim, Fisher has failed to demonstrate any
prejudice stemming from the failure to introduce this evidence.
Finally, we turn to Fisher’s claim that trial counsel was ineffective for failing
to object to prosecutorial misconduct during closing arguments. Fisher contends
that, during closing arguments, the prosecutor made the following statement:
“A.E. couldn’t have made up this accusation because nothing like this has ever
happened before.” Because arguments were not reported, Fisher relied on his
own testimony and the testimony of two relatives to establish that the statement
was made.
The prosecutor, however, denied making the statement, and
although trial counsel could not recall the content of the prosecutor’s closing
argument, he asserted that such a statement would have “raised a red flag” and
“been something [he] would have objected to had it occurred.”
In concluding Fisher had failed to carry his burden on this claim, the
district court determined that Fisher’s recollections were “suspect” and that the
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credibility of his witnesses, who had difficulty recalling many basic details of the
trial, was “weak.”
Like the district court, we place more weight upon the
testimony of the prosecutor and defense counsel than we do upon Fisher’s selfserving assertions or the testimony of his witnesses.
When we do so, we
conclude that Fisher has failed to establish the disputed statement was made.
Accordingly, his ineffective assistance claim must fail.
VI. Conclusion.
We have considered all of Fisher’s contentions, whether or not specifically
discussed. For those claims properly before us on appeal, Fisher had failed to
carry his burden of proof. We according affirm the district court’s dismissal of
Fisher’s application for postconviction relief.
AFFIRMED.
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