MCKINLEY LUE, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-421 / 08-1057
Filed July 2, 2009
MCKINLEY LUE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve,
Judge.
Applicant appeals from the district court ruling dismissing his application
for postconviction relief. AFFIRMED.
Steven W. Stickle of Stickle Law Firm, P.L.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, Michael J. Walton, County Attorney, and Kelly G. Cunningham,
Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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SACKETT, C.J.
Applicant, McKinley Lue, appeals from the district court‟s ruling denying
his petition for postconviction relief. Lue claims the district court erred in finding
Lue‟s trial counsel did not provide ineffective assistance of counsel by (1) failing
to object to inadmissible character evidence, (2) failing to object to prior bad acts
evidence, and (3) failing to object to overly prejudicial evidence.
He also
contends the court erred in not finding the cumulative effect the attorney‟s errors
at trial caused prejudice. Lastly, Lue argues the district court should have found
Lue‟s appellate counsel ineffective for failing to challenge the sufficiency of the
evidence.
I.
BACKGROUND.
Lue was charged with delivery of crack cocaine in
violation of Iowa Code section 124.401(1)(c) (2003).
The evidence at trial
showed that officers witnessed what they believed to be an open air drug
transaction when they saw a man approach a car in the street, appear to
exchange something with the driver, place something in his pocket, and then
walk away. One set of officers followed the car as it drove away and another set
confronted the man who was on foot, later determined to be Dwayne Bennett.
Bennett admitted he had just bought crack cocaine from the man in the car. He
told officers he made the purchase from someone named “Tank” and gave them
Tank‟s phone number.
The officers tracking the car followed it as it pulled up to a building. The
driver left the car running, went into the building, and appeared to come back out
and resume driving five to ten minutes later. The officers who arrested Bennett
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contacted those following the car and confirmed a drug transaction occurred.
The police stopped the car for a traffic violation, and the driver was identified as
the applicant, McKinley Lue. Officers located a cell phone in the car. Officers
with Bennett called the phone number for “Tank,” and the phone recovered from
the car rung.
A jury found the applicant guilty of delivery of crack cocaine. We affirmed
his conviction in State v. Lue, No. 04-0542 (Iowa Ct. App. February 24, 2005).
The applicant filed a petition for postconviction relief on June 12, 2006, asserting
various ineffective-assistance-of-counsel claims. After a trial on the claims, the
district court dismissed the petition finding on each claim the applicant either did
not prove counsel failed to perform an essential duty, or that any failure caused
prejudice.
II.
STANDARD OF REVIEW. A denial of postconviction relief is generally
reviewed for errors at law. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999);
McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995). However, when an
applicant claims the denial of constitutional rights, we review de novo in light of
the totality of the circumstances and the record before the postconviction court.
Goosman v. State, 764 N.W.2d 539, 541 (Iowa 2009); Taylor v. State, 752
N.W.2d 24, 27 (Iowa Ct. App. 2008).
To prevail on a claim of ineffective assistance of counsel, an applicant
must prove by a preponderance of evidence that the attorney failed to perform an
essential duty and the failure caused prejudice. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Anfinson v.
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State, 758 N.W.2d 496, 499 (Iowa 2008); Millam v. State, 745 N.W.2d 719, 721
(Iowa 2008). If an applicant fails to prove prejudice, we can dispose of the claim
on that ground alone without deciding whether the applicant‟s counsel performed
deficiently. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
III.
ANALYSIS.
Lue first contends his trial attorney rendered ineffective
assistance by failing to object to testimony indicating Lue was a drug dealer. In
questioning an officer, the State inquired about the officer‟s experience with
respect to the use of nicknames by drug dealers. The officer testified that drug
dealers tend to use fake names when conducting drug transactions and the
police keep track of the nicknames discovered in the course of drug
investigations. The officer testified that in the department‟s database, Lue was
linked to the nickname “Tank.” Lue contends this testimony was inadmissible
character evidence.
Lue also contends Bennett‟s testimony about making
previous purchases of crack cocaine from “Tank” was inadmissible because it
implied Lue had committed prior bad acts. He asserts the admission of the
testimony regarding the use of nicknames and previous drug transactions was in
violation of Iowa Rule of Evidence 5.404(b). This section provides:
b. Other crimes, wrongs, or acts. Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order
to show that the person acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.
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Iowa R. Evid. 5.404(b). Lue argues even if the testimony was admissible, it was
overly prejudicial and should have been excluded under rule 5.403.1
The State argues the testimony linking Lue to the nick name “Tank,” and
describing previous drug transactions was admissible under rule 5.404(b) to
establish identity and the relationship between Bennett and Lue. It also asserts
even if this evidence was inadmissible, Lue suffered no prejudice.
Upon our de novo review of the record, we agree that this evidence was
admissible under rule 5.404(b) and was not overly prejudicial under rule 5.403.
Identifying “Tank” was vital to the case. The officer‟s testimony was admissible
for this purpose.
Bennett‟s testimony of arranging prior drug purchases with
“Tank” was also admissible for this reason. It showed the relationship between
Bennett and Lue and helped prove that Lue knew he was delivering drugs. See
State v. McDaniel, 265 N.W.2d 917, 921 (Iowa 1978). This case is not like State
v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994), where the court deemed prior drug
dealing activity was irrelevant in a trial for murder, sexual abuse, and kidnapping,
and under such circumstances, was unfairly prejudicial.
In this case, the
testimony about the previous drug purchases is related to the charge disputed at
trial. “[T]he state may show a continuous series of occurrences „to complete the
story of the crime‟ although other offenses come to light in the process.” State v.
Walters, 426 N.W.2d 136, 141 (Iowa 1988) (quoting State v. Fryer, 243 N.W.2d
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Iowa Rule of Evidence 5.403 states,
Although relevant, evidence 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.
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1, 6 (Iowa 1976)). The probative value of the testimony is also not substantially
outweighed by the danger of unfair prejudice under rule 5.403. Lue‟s attorney
had no duty to object to admissible evidence. See State v. Griffin, 691 N.W.2d
734, 737 (Iowa 2005) (“[T]rial counsel has no duty to raise an issue that has no
merit”).
We have considered Lue‟s remaining claims and conclude that he has
failed to prove he suffered prejudice due to any alleged errors committed by his
trial or appellate counsel.
To prove prejudice, Lue must show that absent
counsel‟s errors, there is a reasonable possibility that the trial result would have
been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at
698; Ledezma, 626 N.W.2d at 143.
The State presented strong and direct
evidence implicating Lue. Multiple officers witnessed the transaction and the
buyer, Bennett, immediately admitted that he made a purchase of crack cocaine
from the driver of the car. Lue was identified as the driver of the car and the
phone number that Bennett called to arrange the purchase linked to a cell phone
in Lue‟s possession at the time of arrest. Lue has failed to establish he suffered
prejudice due any potential error and his claims of ineffective assistance of
counsel fail. His application for postconviction relief was correctly dismissed.
AFFIRMED.
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