NICHOLAS L. HANEGAN, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-022 / 05-1756
Filed April 25, 2007
NICHOLAS L. HANEGAN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Daniel P. Wilson,
Judge.
Nicholas Hanegan appeals following the denial of his application for
postconviction relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney
General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant
County Attorney, for appellee State.
Heard by Zimmer, P.J., and Miller and Baker, JJ.
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BAKER, J.
Nicholas Hanegan appeals following the denial of his application for
postconviction relief. We affirm his conviction.
I. Background Facts and Proceedings.
On December 7, 2000, Hanegan was adjudged guilty of first-degree
kidnapping, attempted murder, and willful injury. The court sentenced him to
imprisonment for life on the kidnapping charge, and indeterminate terms of
twenty-five and ten years for attempted murder and willful injury respectively.
These convictions were affirmed by this court on direct appeal.
State v.
Hanegan, No. 00-2049 (Iowa Ct. App. April 24, 2002). In that opinion we recited
the factual background as follows:
On May 5, 2000 defendant Nicholas Hanegan and the victim
in this case, Carrie Ann Fleenor, as well as several of their friends
and acquaintances, had spent the day injecting methamphetamine
and smoking marijuana. Apparently Fleenor, who had been
sexually involved with the defendant for two weeks, called him
repeatedly during the day. According to testimony the two were in
a disagreement, which may or may not have been related to
defendant's suspicion that Fleenor had reported him to be a drug
dealer. Testimony indicated that defendant also made statements
that he felt he needed to “take care of his problem” with Fleenor.
Fleenor testified that at some point in the evening of that day
defendant called her, requesting a ride to his mother's house.
Defendant then showed up at the parking lot of Fleenor's apartment
complex. Defendant, Fleenor, and another man, James Rainer, got
into Fleenor's car, with defendant in the driver's seat, Rainer in the
passenger's seat, and Fleenor in the back seat. Fleenor testified
she did not remember how she got into the car; defendant testified
she did so voluntarily.
Defendant drove the three of them out of Fleenor's
apartment complex and past the street which would have taken
them to defendant's mother's house, where Fleenor believed they
were headed. Fleenor testified that when she asked defendant why
he had not turned toward his mother's house, he had responded
that Fleenor was going to die. Fleenor further testified that
defendant then accused her of telling police he used drugs, and as
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a consequence he was going to kill her. After passing the street to
his mother's house, defendant stopped the car at the house of Tony
Morrow. Fleenor testified defendant told Rainer to keep her in the
car, and that defendant grabbed her purse and went into Morrow's
house. She further testified that she was held captive in the car at
Morrow's, that she yelled for help and tried to kick out one of the car
windows, and that when defendant returned to the car and
discovered she had tried to escape, he slapped her face.
Defendant's explanation for his stop at Morrow's was that he was
buying the three of them some methamphetamine, that Fleenor had
handed him twenty dollars for the purchase, that she was not
captive in the car, and that his contact with her after leaving
Morrow's consisted of handing her drugs, not slapping her.
Defendant then drove to the pet cemetery, where Fleenor
testified defendant pulled her out of the car, beat her in the head
with a bottle of alcohol, and after pushing her back into the car,
attempted, with Rainer's help, to light the car on fire. Due to the
effects of trauma and drugs, Fleenor was unable to remember what
transpired beyond this point.
Rescue workers called to the scene found a severely injured
Fleenor underneath the vehicle, her lower body to her upper torso
pinned between the car and the ground. Fleenor suffered, among
other injuries, lacerations to her head, a partially torn eyelid, six
broken ribs, spinal injury resulting in mild scoliosis, internal injuries,
third-degree burns on her arm, and additional burns on her leg and
foot.
Testimony at trial by acquaintances of defendant indicated
that defendant had made a phone call in the early morning hours of
May 6, urgently seeking someone to pick him up south of the Des
Moines airport, between Des Moines and the pet cemetery; that
there was screaming in the background when defendant made one
of these calls; that defendant had told Terry Wells, who had come
to pick him up, that he had “decapitated a female, . . . beaten her
half to death, left her at the pet cemetery on County Line Road, had
driven a car on top of her, and that he was sure she was dead”; that
defendant appeared the next day in a change of clothes which were
unusually large; that defendant had arranged for the disposal of a
bag of clothes; and that defendant had made statements that next
morning and day to the effect that he had “gotten rid” of his
problem.
Id. In affirming, we addressed claims of sufficiency of the evidence and a variety
of ineffective assistance of counsel claims. We preserved one of those claims for
postconviction relief.
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On May 13, 2003, Hanegan filed a postconviction relief application in
which he raised a claim of prosecutorial misconduct based on the prosecutor’s
knowing use of false evidence and claims of ineffective assistance of trial
counsel based on (1) the failure to prepare and pursue cross-examination, and
(2) failure to object to improper character evidence. Finally, he claimed on direct
appeal counsel was ineffective. Prior to trial, he added another claim of newly
discovered evidence. Following a hearing on this application, the court denied
the application.
Now on appeal from that ruling, Hanegan alleges for the first time that trial
counsel was ineffective in failing to object when the prosecutor questioned
Hanegan about other witnesses’ credibility and failed to request that closing
arguments be reported. Because these claims have not been raised previously,
Hanegan alleges that postconviction counsel was ineffective in failing to claim
that direct appeal counsel was ineffective in failing to raise these claims. In
addition, he claims that a variety of additional failures by counsel combined to
deprive him of a fundamentally fair trial. Finally, he argues that newly discovered
evidence shows that Fleenor gave false testimony regarding her injuries.
II. Ineffective Assistance of Counsel.
A claim of ineffective assistance of counsel requires a de novo review
because the claim is derived from the Sixth Amendment of the United States
Constitution. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). In order to succeed
on a claim of ineffective assistance of counsel, a defendant must prove (1)
counsel failed to perform an essential duty and (2) prejudice resulted. State v.
Artzer, 609 N.W.2d 526, 531 (Iowa 2000).
When “‘there is a reasonable
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probability that, but for the counsel's unprofessional errors, the result of the
proceeding would have been different,’” prejudice results. State v. Hopkins, 576
N.W.2d 374, 378 (Iowa 1998) (quoting Strickland v. Washington, 466 U.S. 668,
694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).
III. Analysis.
A. Prosecutorial Misconduct.
On appeal, Hanegan alleges for the first time in these proceedings that
trial counsel was ineffective in failing to object when the prosecutor questioned
Hanegan about other witnesses’ credibility.
The State alleges that Hanegan
failed to preserve error because this issue was not raised in either the initial
appeal or at trial for postconviction relief. Although the general rule is this court
will not decide a case based on a ground not raised in the district court, there are
exceptions:
Notwithstanding our error preservation requirement, we have
consistently applied an exception to it. That exception applies to
evidentiary rulings, whether the error claimed involved rulings
admitting evidence or not admitting evidence. Perhaps, one reason
for the exception is the realization that on retrial the error could
easily be corrected. So for judicial economy purposes and to
advance finality, we ignore the error preservation requirement.
DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002) (citations omitted). This is such
a case.
The issue is one involving an evidentiary ruling (or lack thereof).
Further, to refuse to review this would simply invite yet another round of litigation
and appeal.
In his examination of the defendant, the prosecutor, without objection,
asked a series of questions on whether other witnesses were telling the truth. As
our supreme court has stated:
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It is well-settled law in Iowa that a bright-line rule prohibits the
questioning of a witness on whether another witness is telling the
truth. State v. Carey, 709 N.W.2d 547, 557 (Iowa 2006); Nguyen v.
State, 707 N.W.2d 317, 323-24 (Iowa 2005); State v. Graves, 668
N.W.2d 860, 873 (Iowa 2003). There are no exceptions to this rule.
See Graves, 668 N.W.2d at 873 (stating “prosecutors and trial
judges will have more guidance in assuring proper examination of
witnesses with a bright-line rule that bars such inquiries without
exception”).
Bowman v. State, 710 N.W.2d 200, 204 (Iowa 2006).
The first prong of
Strickland—breach of duty—is therefore met. The finding that counsel failed to
perform an essential duty in failing to object to this line of questioning does not,
however, necessarily entitle Hanegan to relief.
The bright-line rule of Graves is not a bright-line rule for prejudice.
Accordingly, we turn to consider whether the effect of the
misconduct in this case was pervasive enough to undermine
confidence in the verdict. See Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068, 80 L. Ed. 2d at 698 (“A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”).
Nguyen v. State, 707 N.W.2d 317, 325 (Iowa 2005).
In making this
determination, the court has set out the following considerations:
[W]e must determine whether there is a reasonable probability the
prosecutor's misconduct prejudiced, inflamed or misled the jurors
so as to prompt them to convict the defendant for reasons other
than the evidence introduced at trial and the law as contained in the
court's instructions. In making this determination we consider the
factors noted previously: (1) the severity and pervasiveness of the
misconduct; (2) the significance of the misconduct to the central
issues in the case; (3) the strength of the State's evidence; (4) the
use of cautionary instructions or other curative measures; and (5)
the extent to which the defense invited the misconduct.
State v. Graves, 668 N.W.2d 860, 877 (Iowa 2003). This case is more similar to
the conduct in Nguyen than the conduct in Graves. In Graves, the prosecutor not
only aggressively cross-examined the defendant with “liar” questions, but told the
jury in closing argument that the defendant's testimony called the State's witness,
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a police officer, a liar and the prosecutor repeatedly and explicitly called the
defendant a liar. Id. at 868. In contrast, the prosecutor in Hanegan’s trial did not
make any reference to lying in closing argument.
Further, the prosecutor in
Nguyen never called Nguyen a liar or implied that Nguyen called any eyewitness
a liar. Nguyen, 707 N.W.2d at 326. In this case there is no evidence that any
reference was made to lying in closing argument.
Like Nguyen, the State’s evidence here was strong. Finally, we must also
consider the relative strength or weakness of the totality of the evidence. “[A]
verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.” Strickland,
466 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; Nguyen, 707 N.W.2d at
326. In this case, evidence of Hanegan’s guilt was overwhelming. We have also
considered Bowman v. State, 710 N.W.2d 200 (Iowa 2006), but find its facts to
be more similar to those in Graves than those in Nguyen and the facts herein.
Instead of presenting the evidence for the jury to consider under the
instructions of the court, the prosecutor chose to engage in an allout, name-calling attack. The pervasiveness of the prosecutor's
conduct coupled with the relative weakness of the State's case
shows there is a reasonable probability that the result of this case
would have been different if Bowman's trial counsel had objected to
the prosecutor's questions. Therefore, our confidence in the
outcome of this case is undermined. Compare Graves, 668
N.W.2d at 883 (finding prejudice where the county attorney's
misconduct “related to a critical issue in the case and was the
centerpiece of the prosecution's trial strategy” and the evidence of
the defendant's guilt was not strong), with Carey, 709 N.W.2d at
558 (finding no prejudice in asking a witness to comment on the
credibility of another witness on a collateral issue when the State's
case was strong), and Nguyen, 707 N.W.2d at 326-27 (finding no
prejudice in asking a witness to comment on the credibility of
another witness, which did not become a theme in the case and did
not amount to name-calling when the State's case was strong).
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Bowman, 710 N.W.2d at 207-08
Considering all of the factors, we conclude Hanegan failed to meet his
burden of showing a reasonable probability that the result of the trial would have
been different had his attorney objected to the prosecutor's improper questions.
See Strickland. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698 (“The defendant
must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.”).
Hanegan has failed to establish a claim of ineffective assistance of counsel. See
id. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699 (stating that if the defendant
makes an insufficient showing on one element, the court need not discuss the
other element).
B. Failure to Report Final Arguments.
Closing arguments were not reported. Now, Hanegan alleges trial counsel
was ineffective in his failure to request the reporting, and that his subsequent
counsel were likewise ineffective in failing to raise the issue. At its root, he
maintains that something improper must have been spoken in closing because of
the alleged volume of improper questioning at trial. We must reject this claim.
Although possibly a breach of counsel’s duty, there is no record from which we
could determine that any prejudice resulted. Other than bare speculation, there
is no way to divine what was stated in closing. Even if not in the original record,
there was no testimony in this proceeding by Hanegan or anyone else that the
credibility issue or other improper matters were raised in final argument. It is
Hanegan’s burden to establish prejudice, id. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693, and he also has the duty to “provide a record on appeal affirmatively
9
disclosing the alleged error relied upon.” In re F.W.S., 698 N.W.2d 134, 135
(Iowa 2005).
“When complaining about the adequacy of an attorney’s
representation, it is not enough to simply claim that counsel should have done a
better job.” State v. White, 337 N.W.2d 517, 519 (Iowa 1983). The applicant
must state the specific ways in which counsel’s performance was inadequate and
identify how competent representation probably would have changed the
outcome. See Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985); State v.
Kendall, 167 N.W.2d 909, 911 (Iowa 1969). On this record we have nothing to
review, and we neither address nor preserve this issue.
C. Knowing Use of False Evidence.
Hanegan further alleges ineffectiveness in trial counsel’s “fail[ure] to object
to the prosecutor’s misconduct of using evidence he knew to be false.”
In
particular, he claims misconduct when the prosecutor “allowed and did not
correct false testimony” by the victim and a doctor regarding the extent of
Fleenor’s injuries.
Even if the prosecutor introduced false evidence, the issue at hand was
whether the victim suffered serious injury. Upon our de novo review we find
overwhelming evidence that Fleenor suffered a “serious injury.” The victim was
run over by a car. Even Hanegan does not contest the existence of at least three
rib fractures, some sort of deep wound to Fleenor’s arm, and a possible puncture
to the lungs. A jury could have found any of these injuries to have constituted a
“serious injury” under both the willful injury and kidnapping charges. As such,
Hanegan could not have suffered any prejudice even if we assume the
prosecutor wittingly allowed questionable evidence to be introduced at trial.
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D. Newly Discovered Evidence.
Hanegan claims that he should be granted a new trial because of “newly
discovered evidence.”
In order to prevail on a claim of newly discovered
evidence, a postconviction applicant must show: (1) the evidence in question
could not have been discovered before judgment in the exercise of due diligence;
(2) the evidence is material to the issue and not merely cumulative or
impeaching; and (3) its admission would likely change the result if a new trial
were granted. Adcock v. State, 528 N.W.2d 645, 647 (Iowa Ct. App. 1994).
We reject this contention. Specifically, Hanegan asserts newly discovered
evidence shows the unreliability of Fleenor’s injury claims.
This evidence
consists of evidence that in the course of obtaining treatment for her injuries and
attendant pain, Fleenor provided somewhat bizarre medical histories to her
treating physicians. This evidence (a) could have been discovered earlier, (b)
was merely impeaching, and (c) would not have changed the result or resulted in
a new trial.
E. Psychosis.
Finally, Hanegan claims counsel failed to adequately investigate and
argue that he suffered from psychosis by virtue of his methamphetamine
addiction. While Hanegan may have introduced evidence at the postconviction
hearing that methamphetamine can lead to psychosis, he presented absolutely
no evidence that he, in fact, suffered from such an affliction. In addition, counsel
did retain a psychiatrist to evaluate Hanegan. Finding that this expert’s opinion
would not aid Hanegan, counsel made a strategic decision to forego a psychiatric
defense. Counsel was thus not ineffective in this respect.
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IV. Conclusion.
We reject Hanegan’s claims of ineffective assistance of counsel in their
entirety. Accordingly, we also reject his claim of cumulative error, and affirm his
convictions for first-degree kidnapping, attempted murder, and willful injury.
AFFIRMED.
Zimmer, P.J., and Baker, J. concur. Miller, J., concurs specially.
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MILLER, J. (concurs specially)
Hanegan v. State (7-022)(BAK)
I concur in the result, and with one exception concur in the reasoning of
the majority opinion.
As noted by the majority, on appeal from denial of postconviction relief
Hanegan for the first time alleges trial counsel was ineffective in failing to object
to the prosecutor questioning Hanegan about other witnesses’ credibility. He
further alleges direct appeal counsel and postconviction counsel were ineffective
in failing to raise this claim. In choosing to address the merits of this ineffective
assistance of counsel issue the majority relies in whole or in large part on a
conclusion that the “evidentiary ruling” exception to our error preservation
requirements applies. I do not agree. The trial court was not asked to, and did
not, make any ruling concerning the evidence in question.
The “evidentiary
ruling” exception therefore does not apply.
An applicant for postconviction relief must not only demonstrate sufficient
cause or reason for not previously raising the issue presented, but must also
prove resulting actual prejudice. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa
2001); Polly v. State, 355 N.W.2d 849, 856 (Iowa 1984). Ineffective assistance
of appellate counsel may constitute a sufficient reason for failing to raise on
direct appeal a claim of ineffective assistance of trial counsel, and to prove such
defective performance of appellate counsel resulted in prejudice an applicant
must prove that his ineffective assistance of trial counsel claim would have
13
prevailed if raised on direct appeal. Ledezma, 626 N.W.2d at 141. As a matter
of logic, the same analysis should extend to claims that postconviction counsel
rendered ineffective assistance by not claiming trial and direct appeal counsel
both rendered ineffective assistance. “Thus, before we can decide whether error
has been preserved, we must analyze the merits of [Hanegan’s] ineffective
assistance of counsel claim[ ].” Id. at 141-42.
The majority concludes, and I agree, that Hanegan has not shown a
reasonable probability that the result of the trial would have been different had
trial counsel objected to the prosecutor’s improper questions. He thus has not
proved the prejudice prong of this particular ineffective assistance claim and has
therefore not only not proved this ineffective assistance claim but also, under the
language of Ledezma quoted above, has not preserved error on this claim.
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