CHRISTOPHER K. MOYER, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-544 / 06-1454
Filed October 12, 2007
CHRISTOPHER K. MOYER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Fremont County, James
Heckerman, Judge.
Applicant appeals from the district court’s dismissal of his postconviction
relief claims. AFFIRMED.
Chad Primmer, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, Margaret Askew Gregory, County Attorney, and Vicki Danley, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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SACKETT, C.J.
Applicant Christopher K. Moyer appeals the district court’s dismissal of his
petition for postconviction relief.
Moyer asserts the district court erred in
dismissing his claims that he received ineffective assistance of counsel when his
trial counsel failed to: 1) object to the State’s amendment of trial information less
than two weeks before trial, 2) challenge the initial seizure of Moyer as an
unreasonable search and seizure, 3) move for a mistrial after a juror expressed
bias, 4) request a record be made during voir dire of potential jurors, 5) object to
certain witness testimony as unduly prejudicial, and 6) investigate potential
defense witnesses or depose State witnesses. We affirm.
BACKGROUND. During routine patrol of rural Fremont County, a police
officer noticed persons gathering in an open field owned by the Moyer family.
Later in the shift, at approximately 2:00 a.m., the officer saw a truck at the field
entrance and the defendant, Christopher Moyer, standing at a gate. The officer
stopped to inquire about the truck and inform Moyer of the persons he saw
earlier at the property. Upon approaching, the officer was overwhelmed by the
smell of anhydrous ammonia. The officer discovered the anhydrous ammonia
was leaking from a propane tank in the back of the truck. The officer secured
Moyer and the driver of the truck, and called for assistance. A search warrant for
Moyer’s home and shed was issued.
Items and precursors used for the
manufacture of methamphetamine were recovered from the search.
In September 2003, Moyer was convicted of conspiracy to manufacture a
controlled substance, possession with intent to deliver five grams or less of
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methamphetamine, and four counts of possession of methamphetamine
precursors. On direct appeal in December 2004, the convictions were affirmed
but we remanded for resentencing.
application for postconviction relief.
In March of 2006, Moyer filed a pro se
On August 15, 2006, court-appointed
counsel filed an amended application for postconviction relief on Moyer’s behalf.
At the postconviction relief hearing, Moyer’s trial attorney, Kenneth Whitacre,
testified and the original transcript was submitted as an exhibit. The district court
dismissed all claims, finding:
1) Moyer waived his right to challenge the
amendment of the trial information because Whitacre advised Moyer of the
option to seek a continuance at the time but Moyer rejected this option, 2) the
remaining claims were waived because they were not raised on direct appeal,
and 3) even if raised, the claims were without merit. Moyer appeals the dismissal
of each claim.
ERROR PRESERVATION AND SCOPE OF REVIEW.
The State
contends Moyer’s claims are waived because they were not raised on direct
appeal. The Iowa Code no longer requires ineffective assistance of counsel
claims to be raised on direct appeal. Iowa Code § 814.7(1) (2005). It states in
part, “[t]he claim need not be raised on direct appeal from the criminal
proceedings in order to preserve the claim for postconviction relief purposes.” Id.
This law went into effect on July 1, 2004. The State argues this Code section
does not apply to Moyer’s claims because his conviction was entered before the
statute was enacted and “statutes controlling appeals are those that were in
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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).
In Hannan v. State, 732 N.W.2d 45 (Iowa 2007), the court held the general
rule regarding statutes controlling appeals does not apply to ineffective
assistance of counsel claims under section 814.7. Hannan, 732 N.W.2d at 5051. Rather, since the law is designed to remedy a procedural wrong, the statute
evinces a legislative intent for the law to operate retroactively.
Id. at 51.
Therefore, section 814.7 applies retroactively to Moyer’s claims. His ineffective
assistance of counsel claims did not need to be preserved on direct appeal as a
prerequisite to postconviction relief and we may consider Moyer’s claims.
The scope of review of postconviction relief proceedings is typically for
errors at law. Rhiner v. State, 703 N.W.2d 174, 175 (Iowa 2005). However,
alleged constitutional violations, including ineffective assistance of counsel
claims, are reviewed de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa
1998). Under this review, we independently evaluate the issues considering the
totality of the circumstances. Id.
INEFFECTIVE ASSISTANCE OF COUNSEL.
Effective assistance of
counsel is guaranteed by the Sixth Amendment of the United States Constitution
and Article I, section 10 of the Iowa Constitution. State v. Hepperle, 530 N.W.2d
735, 739 (Iowa 1995). To prevail on an ineffective assistance of counsel claim,
Moyer must prove both: (1) the attorney’s “representation fell below an objective
standard of reasonableness” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687-688, 104 S. Ct. 2052,
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2064, 80 L. Ed. 2d 674, 693 (1984). Moyer must prove both elements by a
preponderance of the evidence. Ledezma v. State, 639 N.W.2d 134, 142 (Iowa
2001). “To prove the first prong, the defendant must overcome the presumption
that counsel was competent and show that counsel’s performance was not within
the range of normal competency.” State v. Buck, 510 N.W.2d 850, 853 (Iowa
1994) (citing Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989)). Prejudice is
proven when “counsel’s failure worked to the defendant’s actual and substantial
disadvantage so that a reasonable possibility exists that but for counsel’s error
the trial result would have been different.”
Buck, 510 N.W.2d at 853.
We
dispose of the claim if it fails either prong. State v. Cook, 565 N.W.2d 611, 614
(Iowa 1997). Within these guidelines, we consider each of Moyer’s claims.
FAILURE TO OBJECT TO TRIAL INFORMATION AMENDMENT. Moyer
first claims he was denied effective assistance of counsel when his trial attorney
did not resist the amendment or seek a continuance after the State amended the
trial information. The State gave notice to defense counsel of the amendment
thirteen days before trial and filed the amendment nine days before trial. The
amendment changed Count I from a manufacturing charge to a conspiracy to
manufacture charge, and added witnesses.
We find trial counsel’s response to the amendment was not deficient
under these facts and the law. The Iowa Rules of Criminal Procedure permit
amendment of information any time before or during the trial:
The court may, on motion of the state, either before or during
trial, order [amendment] so as to correct errors or omissions
in matters of form or substance. Amendment is not allowed
if substantial rights of the defendant are prejudiced by the
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amendment, or if a wholly new and different offense is
charged.
Iowa R. Crim. P. 2.4(8)(a). The Iowa Supreme Court has held that in a drug
trafficking case, an amendment to a trial information that adds a conspiracy
charge does not add a wholly new and different offense. State v. Williams, 305
N.W.2d 428, 430-31 (Iowa 1981).
Instead, a conspiracy charge effectively
“add[s] a new means of committing the same offense,” and is permissible. Id. at
431. Moyer’s substantial rights were not prejudiced by this amendment either.
Moyer’s trial attorney testified that the conspiracy charge was not a significant
change in the State’s theory, given the information in the original minutes of
testimony.
He also testified he did not plan to do additional discovery or
investigation due to the amendment.
Counsel also did not perform deficiently by failing to challenge the addition
of witnesses in the amendment. “Additional witnesses . . . may be presented by
the prosecuting attorney if the prosecuting attorney has given the defendant’s
attorney . . . a minute of such witness’s evidence . . . at least ten days before the
commencement of the trial.”
Iowa R. Crim. P. 2.19(2).
Defense counsel
received notice of the amendment eleven days before trial. Ample time remained
for counsel to adequately prepare a defense in response to the amendment.
Counsel testified the amendment did not require additional discovery for the
defense.
Furthermore, counsel testified that he discussed the option of seeking a
continuance with Moyer and Moyer rejected the option, preferring no delay of the
trial. A defendant cannot assert the right to a speedy trial and later complain in
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order to attack a conviction. See State v. Cennon, 201 N.W.2d 715, 718 (Iowa
1972) (finding rules intended to prevent trial delays are designed “to provide a
shield for the defendant, not a sword”). A defendant cannot instruct his attorney
to prevent delay of trial and later fault him for following those instructions.
Counsel’s performance was not deficient when he followed Moyer’s decision to
proceed to trial without delay after advising Moyer of the option to seek a
continuance.
FAILURE TO CHALLENGE INITIAL SEIZURE OF DEFENDANT AS
ILLEGAL.
Moyer contends his trial counsel was ineffective for failing to
challenge his initial seizure as an unreasonable search and seizure under the
Fourth Amendment of the United States Constitution. As the officer approached,
he recognized Moyer at the gate of the Moyer family property. Moyer asserts
that the officer’s observation of a person on private property with the lawful right
to be there provided no reasonable cause to believe a crime occurred.
According to Moyer, this made the officer’s initial stop and seizure of Moyer
illegal.
Moyer argues that evidence would have been suppressed if his trial
counsel would have challenged his initial seizure.
“Trial counsel is not incompetent in failing to pursue a meritless issue.”
State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). Counsel had no reason to
challenge the officer’s initial stop and seizure of the defendant. An officer may
stop “an individual or vehicle for investigatory purposes based on a reasonable
suspicion, supported by specific and articulable facts, that a criminal act has
occurred or is occurring.” State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997)
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(citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889,
906 (1968)). A hunch alone does not establish reasonable suspicion. Kinkead,
570 N.W.2d at 100. The test is “whether the facts available to the officer at the
time of the stop would lead a reasonable person to believe that the action taken
by the officer was appropriate.” Id. (citing Terry, 392 U.S. at 21-22, 88 S. Ct. at
1880, 20 L. Ed. 2d at 906; State v. Mitchell, 498 N.W.2d 691, 693 (Iowa 1993)).
The officer was on routine patrol and noticed a vehicle at the field
entrance at two o’clock in the morning. The officer testified that the purpose of
the stop was to ensure the driver was not having vehicle problems and to inform
Moyer that a group of individuals were gathered in the field earlier in the evening.
Moyer’s testimony confirmed that the officer’s motive was to inform him of
potential trespassers. The officer’s action was appropriate. Viewing a stopped
car in the country at two o’clock in the morning gave the officer reasonable cause
to believe a driver may need assistance.
Seeing a group of persons using
Moyer’s property also supports a reasonable suspicion of trespass. The officer
had reasonable cause to make an investigatory stop.
A warrant was not required for the officer’s seizure of Moyer. “[S]earches
and seizures conducted without a warrant are per se unreasonable” unless an
exception applies.” State v. Nitcher, 720 N.W.2d 547, 554 (Iowa 2006).
In this
instance, a warrant was not required under the probable cause coupled with
exigent circumstances exception. “There is probable cause to conduct a search
if, under the totality of the circumstances, ‘a person of reasonable prudence
would believe that evidence of a crime might be located on the premises to be
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searched.’” Id. (quoting State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004)).
Exigent circumstances exist if there is “‘danger of violence and injury to the
officers or others; risk of the subject’s escape; or the probability that, unless
taken on the spot, evidence will be concealed or destroyed.’” Nitcher, 720
N.W.2d at 555 (quoting State v. Holtz, 300 N.W.2d 888, 893 (Iowa 1981)).
The officer had probable cause to conduct a warrantless search and seize
Moyer. Detecting odors of methamphetamine precursors gives officers reason to
believe that evidence of a crime may be located at the odor’s source and justifies
investigation of the smell. See Nitcher, 720 N.W.2d at 554 (finding probable
cause for warrantless search of a home where smells of ether and anhydrous
ammonia were emanating from the home and garage, persons denied odors and
were anxious, and shuffling footsteps were heard inside the home); State v.
Simmons, 714 N.W.2d 264, 272-73 (Iowa 2006) (finding probable cause to
search apartment when officer smelled anhydrous ammonia outside apartment,
had lab expert confirm the smell, and there were no household uses for
anhydrous ammonia).
Here, the officer testified “the smell was so strong it
caught my breath.” Although anhydrous ammonia is used in farming, there was
no legitimate reason for the smell to be overwhelming at two o’clock in the
morning, and to be emanating from the back of a truck rather than a sprayer.
The officer knew an offense had been committed when he discovered the source
of the leak was a propane tank, an illegal container for transporting anhydrous
ammonia. This gave the officer probable cause to believe Moyer committed the
offense and justified Moyer’s seizure.
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Exigent circumstances were also present to permit the warrantless search
of Moyer. “When an exigency poses a threat of danger to others, officers can
perform a limited search to remove the immediate risk.” Simmons, 714 N.W.2d at
273 (citing United States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002)). Leaking
anhydrous ammonia poses risks of fire and explosion and is a serious health
threat to everyone nearby. Simmons, 714 N.W.2d at 273. Seizure of those at
the scene is necessary so those exposed can be decontaminated and so any
additional evidence of methamphetamine manufacture is not destroyed. See
Nitcher, 720 N.W.2d at 555 (finding exigent circumstances present in meth lab
setting to eliminate potential hazards and protect those exposed). Since the
officer’s initial stop and Moyer’s seizure were valid, Moyer’s counsel was not
ineffective by failing to move to suppress evidence on these grounds.
FAILURE TO MOVE FOR MISTRIAL.
Moyer next asserts his trial
counsel was ineffective by failing to move for mistrial after a juror made an
inappropriate comment. The actual comment was not on record, but the trial
court made record of the event immediately after the occurrence:
THE COURT: Let the record show these proceedings take
place in chambers outside the presence of the jury and that
the state appears by Ms. Danley. Defendant is present with
his counsel, Mr. Whitacre. That upon completion of the jury
selection process when the 12 remaining jurors – the 12
jurors had been selected to sit on this case, the Court was
giving proposed jurors some instructions at which time Juror
Mr. Richardson volunteered information that he felt that he
was unfit to sit on this jury, that in conversation with the
Court outside the hearing of the other members of the jury
that Mr. Richardson indicated that he was familiar with the
defendant’s father, knew of some of the financial affairs of
the family and stated his belief that he believed that the
defendant was involved in the – in drugs is what his
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statement was. That Mr. Richardson did not disclose this
during the jury selection process, that there are prospective
jurors still present in the courtroom and Mr. Whitacre has
moved to strike Mr. Richardson from the jury.
The juror was replaced and trial progressed.
At the postconviction hearing,
Whitacre testified that when the juror “volunteered information” court was
adjourned. He first stated that the other jurors were not present at the time, but
then stated, “Well, there could have been some, yes.” Whitacre testified that he
originally moved for a mistrial but then withdrew the motion when the court
suggested replacing the unfit juror.
Moyer has not proved counsel failed an essential duty by withdrawing his
motion for mistrial.
Opting for an alternate juror rather than causing delay
through mistrial is within the normal range of competent performance.
“Improvident trial strategy, miscalculated tactics, mistake, carelessness or
inexperience do not necessarily amount to ineffective counsel.”
Brewer, 202 N.W.2d 49, 54 (Iowa 1972).
Parsons v.
Moreover, the trial court asked if
replacing the juror was agreeable with Moyer and Moyer replied, “Yes.”
A
defendant, “‘as a general rule, will not be permitted to allege an error . . . in which
he himself acquiesced, or which was committed or invited by him, or was the
natural consequence of his own actions.’” State v. Sage, 162 N.W.2d 502, 504
(Iowa 1968) (quoting State v. Rasmus, 249 Iowa 1084, 1086, 90 N.W.2d 42, 43
(1958)).
Counsel’s performance was not deficient when Moyer approved of
replacing the juror as an alternative to seeking a mistrial.
FAILURE TO REQUEST RECORD MADE OF VOIR DIRE.
Moyer
contends since the juror’s comment was not on the record, appellate courts
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cannot adequately review whether a new trial is required because of the juror
misconduct. Moyer claims that if a formal record was made of voir dire, any
potential prejudicial comments would be on the record for appeal. He claims his
trial attorney was ineffective for not requesting voir dire to be put on record.
This claim must fail because Moyer has not proved that trial counsel
breached an essential duty or caused prejudice through deficient performance in
this regard. First, Moyer agrees the juror’s comment was not made during voir
dire. It was made after all jurors were selected and the judge was instructing
them. Thus, a formal record of voir dire would not have aided an appellate court
to determine whether the panel was tainted by the juror’s comment. See State v.
Oetken, 613 N.W.2d 679, 689 (Iowa 2000) (rejecting ineffective assistance of
counsel claim based on failure to report voir dire to the record when defendant
pointed to no authority requiring attorney to memorialize voir dire and defendant
could not point to where specific error occurred during voir dire). Similarly, even
if counsel had a duty to have record made of voir dire, Moyer cannot prove this
failure caused prejudice.
Since everyone acknowledges that the alleged
comment was made after voir dire, there is no reasonable probability the
outcome would be different if a record was made of voir dire.
FAILURE TO OBJECT TO DRUG INVESTIGATOR TESTIMONY. Moyer
next claims trial counsel was ineffective in failing to object to certain witness
testimony as unduly prejudicial. He argues testimony by a special agent with the
division of narcotics enforcement and a criminalist from the division of criminal
investigation regarding “the methamphetamine problem and all of its dangers”
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was prejudicial. Both witnesses gathered or examined evidence in this case and
testified about their findings and analysis.
We find counsel performed within the range of normal competence during
the testimony of these witnesses. First, Whitacre did try to limit some of the
testimony by objecting to the exhibits offered through the special agent as
irrelevant and without foundation. Whitacre also objected to some questions as
leading or calling for speculation. Second, the probative value of the testimony
was not outweighed by any prejudice.
“[E]vidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Iowa R.
Evid. 5.403. Moyer did not point to any specific statements as prejudicial. In our
de novo review of the record and the testimony of each witness, we found no
unfairly prejudicial statements.
Each witness’s testimony related to their
qualifications or their work on the case.
When describing the evidence, the
witnesses explained how the specific item can be used for the manufacture of
methamphetamine.
This was the extent of any general testimony about
methamphetamine. The testimony was probative on whether Moyer used the
items illegally for the manufacture of methamphetamine or whether the items
were used for a lawful purpose.
Moyer’s counsel had no duty to object to
testimony that was relevant and not unfairly prejudicial.
FAILURE TO INVESTIGATE POTENTIAL DEFENSE WITNESSES OR
DEPOSE STATE WITNESSES.
Moyer last contends he received ineffective
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assistance of counsel because his trial counsel did not fulfill his duty to
investigate to prepare a defense.
Moyer argues counsel was ineffective by
failing to consult with Moyer about the case, failing to depose State witnesses
before trial, and failing to investigate potential witnesses for the defense. One
witness listed by the State, Charles Douglas, was not called at trial by the
prosecution or the defense. Douglas lived with Moyer and worked on the farm at
the time of the offense. Evidence in the record suggests that Douglas may have
some mental disability and may have a history of drug use and stealing
anhydrous ammonia.
Moyer argues that Douglas may have been a useful
witness to the defense had trial counsel investigated and interviewed Douglas.
Effective counsel “denotes conscientious, meaningful legal representation
wherein the accused is advised of his rights and honest, learned and able
counsel is accorded reasonable opportunity to perform his assigned task.”
Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972). Counsel must “conduct a
reasonable investigation or make reasonable decisions that make a particular
investigation unnecessary.”
Ledezma, 626 N.W.2d at 145.
Ineffective
assistance of counsel is more likely to be found when counsel’s conduct shows a
lack of diligence rather than the exercise of judgment. Id. at 142. Courts have
found the failure to interview key potential witnesses to be ineffective assistance
of counsel. See, e.g., Thomas v. Lockhart, 738 F.2d 304, 308 (8th Cir. 1984);
Ledezma, 626 N.W.2d at 146.
Obtaining depositions is not required for
competent counsel performance, particularly if an informal interview is conducted
so the risk of surprise testimony is eliminated. See Kellogg v. State, 288 N.W.2d
15
561, 563-64 (Iowa 1980) (finding no ineffective assistance rendered for failing to
take depositions when they can be a “two-edged sword” and defense counsel
had interviewed the State witnesses). The attorney’s performance is judged by
his primary theory of defense. Schrier v. State, 347 N.W.2d 657, 663 (Iowa
1984).
We find Moyer has overcome the strong presumption of his counsel’s
competence under the totality of the circumstances. The record shows Moyer
made repeated complaints concerning Whitacre’s conduct including that the
attorney was inattentive to the case, failed to respond to Moyer’s requests for
information, and perhaps spent as little as twenty minutes with Moyer prior to
trial. Whitacre testified at the postconviction hearing. Whitacre admitted he did
not depose any State witnesses or informally interview any of them. Whitacre did
not explain any trial strategy or defense that would eliminate the need to
communicate with his client or eliminate the need to interview potential
witnesses. We find this conduct shows a lack of diligence and falls below the
normal range of competent performance for attorneys.
Although we find trial counsel’s performance deficient, Moyer’s claim must
fail because he has failed to prove that Whitacre’s conduct caused prejudice.
The prejudice element is established by showing that absent counsel’s errors,
there is a reasonable probability that the outcome of the trial would be different.
State v. Tracy, 482 N.W.2d 675, 680 (Iowa 1992). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Id. (quoting
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After carefully reviewing the record, we find the outcome was not likely to
be different had counsel interviewed defense witnesses, communicated better
with the defendant, and subpoenaed Charles Douglas to testify.
The critical
parts of the prosecution’s case were contained in the minutes of testimony which
counsel had received. Any information gleaned from interviews was unlikely to
change the substance of their testimony pertaining to the elements of the crime.
Furthermore, the State had substantial physical evidence that implicated Moyer.
Moyer has not identified how more discussion about the case with Whitacre
would create reasonable doubt as to the result.
Moyer suggests that more
investigation would have allowed the defense to present the theory that Douglas
or another State witness, Ross Bell, conspired against Moyer and set him up.
However, Moyer testified on his own behalf and suggested that Bell committed
the crime. Even if Douglas testified and admitted to using methamphetamine or
stealing anhydrous ammonia, this testimony would not exculpate Moyer. Nearly
all of the evidence of manufacturing methamphetamine came from the shed.
Since Moyer had possession and control over the shed, Moyer would still be in
possession of the precursors even if Douglas admitted to being involved in the
manufacture of methamphetamine.
Since Moyer cannot prove his counsel’s
ineffective assistance caused prejudice, Moyer’s claim fails.
CONCLUSION.
We affirm the district court’s dismissal of Moyer’s
application for postconviction relief.
Under the circumstances, competent
performance did not require counsel to 1) object to the State’s amendment of trial
information 2) challenge Moyer’s initial seizure as unconstitutional, 3) move for a
17
mistrial after a juror expressed bias, 4) request a record be made during voir dire,
or 5) object to certain witness testimony as unduly prejudicial. Counsel’s lack of
diligence in consulting with his client and in investigating potential defense
witnesses was ineffective but this deficient conduct was not prejudicial in light of
the evidence presented by the State.
AFFIRMED.
Eisenhauer, J. concurs. Zimmer, J., concurs specially.
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ZIMMER, J. (concurs specially)
I concur in the majority opinion with one exception. I do not believe that
Moyer established that his trial counsel’s representation fell below an object
standard of reasonableness in any respect.
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