JAMES D. LOSEY, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-795 / 08-1812
Filed November 12, 2009
JAMES D. LOSEY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Bradley J. Harris,
Judge.
James Losey appeals the district court decision denying his application for
postconviction relief. AFFIRMED.
Les M. Blair III of Blair & Fitzsimmons, P.C., Dubuque, and Natalia
Blaskovich of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
James Losey, Anamosa, pro se.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, and Ralph R. Potter, County Attorney, for appellee State.
Considered by Sackett, C.J., Danilson, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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DANILSON, J.
James Losey appeals the district court decision denying his application for
postconviction relief.
He alleges he received ineffective assistance of trial
counsel. Through a pro se brief, he further contends he received ineffective
assistance of postconviction counsel. We affirm.
I. Background Facts and Proceedings.
In 2005, James Losey was found guilty of robbery in the second degree.
He was sentenced to serve up to ten years in prison. Losey’s conviction was
affirmed in State v. Losey, No. 05-1745 (Iowa Ct. App. Dec. 28, 2006), and his
ineffective
assistance
of
counsel
claims
were
preserved
for
possible
postconviction review.1 Losey filed a pro se application seeking postconviction
relief, raising four claims of ineffective assistance of trial counsel.2
On
November 3, 2008, the court denied Losey’s application on all grounds.
Losey now appeals the district court’s ruling. Through his counsel’s brief,
Losey challenges the district court’s ruling with regard to his trial counsel’s
ineffective assistance in failing to (1) depose additional witnesses, (2) file a timely
motion to suppress evidence seized during the stop and search of his vehicle,
(3) object during closing argument and request a curative instruction, (4) request
a competency evaluation, and (5) raise a diminished capacity defense. Through
1
Losey raised the following issues on direct appeal: (1) whether there was insufficient
evidence to prove the intent to commit an assault element of robbery; (2) whether the
district court erred in denying substitute counsel; and (3) whether his trial counsel
rendered ineffective assistance in failing to object during closing argument. Through a
pro se brief, Losey argued his trial counsel was ineffective in failing to file a motion to
suppress, depose all witnesses, and raise a mental health defense.
2
State filed a brief in resistance. In an evidentiary hearing on October 2, 2008, the court
heard testimony from Losey and his public defender, Steven Hodge.
3
a pro se brief, Losey alleges he received ineffective assistance of postconviction
counsel.
II. Scope and Standard of Review.
We conduct a de novo review of postconviction relief proceedings
concerning alleged ineffective assistance of counsel claims. See Harrington v.
State, 659 N.W.2d 509, 520 (Iowa 2003); see also State v. Decker, 744 N.W.2d
346 (Iowa 2008). We give weight to the lower court’s determination of witness
credibility. Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008).
III. Ineffective Assistance of Counsel.
To establish a claim of ineffective assistance of counsel, a defendant must
prove (1) counsel failed to perform an essential duty and (2) prejudice resulted to
the extent it denied the defendant a fair trial. State v. Maxwell, 743 N.W.2d 185,
195 (Iowa 2008).
A defendant’s failure to prove either element by a
preponderance of the evidence is fatal to a claim of ineffective assistance. State
v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
The test for the first element is objective: whether counsel’s performance
was outside the range of normal competency. Millam, 745 N.W.2d at 721. We
start with a strong presumption that counsel’s conduct was within the wide range
of reasonable professional assistance. DeVoss v. State, 648 N.W.2d 56, 64
(Iowa 2002).
We presume the attorney performed competently, and the
defendant must present an affirmative factual basis establishing inadequate
representation. Millam, 745 N.W.2d at 721. The test for the second element is
whether the defendant can prove there is a reasonable probability that, without
counsel’s errors, the outcome of the proceedings would have been different. Id.
4
at 722; Ledezma, 626 N.W.2d at 143.
A reasonable probability is one that
undermines confidence in the outcome. Millam, 745 N.W.2d at 722.
We have reviewed the record, the briefs of the parties, and the district
court’s opinion. Under our de novo review, we find the district court sufficiently
addressed every issue Losey now raises through his counsel’s brief regarding
ineffective assistance of trial counsel.3 Any further discussion of these issues by
our court would add little to our jurisprudence and not change the disposition of
this case. Accordingly, we affirm on these issues.
Losey also filed a pro se brief that raises a claim with regard to his
postconviction counsel’s alleged ineffectiveness. He argues his postconviction
counsel was ineffective in failing to raise a claim that the in-court identifications of
Losey by several witnesses were derived from unnecessarily suggestive
procedures, and that the in-court identifications were not reliable.
Although counsel is not required to predict changes in the law, counsel
must exercise reasonable diligence in deciding whether an issue is worth raising.
State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009). Because counsel has no
duty to raise a meritless issue, the validity of Losey’s constitutional claim must be
determined.
See id.
Constitutional claims are reviewed de novo.
State v.
Bumpus, 459 N.W.2d 619, 622 (Iowa 1990). “If his constitutional challenges are
3
Although the district court did not specifically analyze whether Losey’s counsel erred in
failing to request a competency evaluation, the court indirectly disposed of this issue in
its discussion as to the issue of Losey’s counsel’s alleged failure to raise a diminished
capacity defense. Losey did not agree to pursue a diminished capacity defense as
counsel suggested, and therefore, counsel’s trial strategy was focused elsewhere.
Furthermore, counsel testified that his “understanding of Mr. Losey and his ability to
cooperate and converse and communicate would not indicate that he was having any
trouble from a competency standpoint . . . .” The evidence in the record does not
support a finding that Losey was not competent to stand trial, and his counsel did not
breach a duty in failing to raise that issue.
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meritorious, we will then consider whether reasonably competent counsel would
have raised these issues and, if so, whether [Losey] was prejudiced by his
counsel’s failure to do so.” Id.
In State v. Folkerts, 703 N.W.2d 761, 766 (Iowa 2005), our supreme court
determined that a defendant is not required “to be present at the deposition of an
eyewitness when it is likely an impermissibly suggestive identification would take
place.” Under Folkerts, a defendant is permitted to be absent from the deposition
only during the questioning of the deponent relative to identification. Folkerts,
703 N.W.2d at 766. Prior to the court’s decision in Folkerts, however, Iowa’s
longstanding rule held that a defendant did not have a right to waive his or her
right to confrontation so as to be absent from a deposition. Iowa R. Crim. P.
2.27(1); see State v. Randle, 603 N.W.2d 91 (Iowa 1991), overruled by Folkerts,
703 N.W.2d at 766; State v. Davis, 259 N.W.2d 812, 813-14 (Iowa 1977),
overruled by Folkerts, 703 N.W.2d at 766.
As recited in Folkerts:
In Stovall v. Denno, the United States Supreme Court
condemned the practice of singly, and not as part of a lineup,
showing suspects to witnesses for identification purposes. 388
U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1206
(1967).
When unnecessarily suggestive pretrial out-of-court
identification procedures conducive to mistaken identification that
are incapable of repair are used, the Due Process Clause requires
exclusion of the testimony of the identification. Id. at 301-02, 87 S.
Ct. at 1972-73, 18 L. Ed. 2d at 1206. The Supreme Court stated,
however, that the totality of the circumstances must be examined
to determine if a defendant’s due process rights were violated as a
result of the identification procedure. Id. at 302, 87 S. Ct. at 1972,
18 L. Ed. 2d at 1206.
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Folkerts, 703 N.W.2d at 763. The court in Folkerts also reiterated its approval of
the two-part analysis to determine whether testimony is admissible concerning
the identification procedure:
The first part of the analysis requires the court to decide whether
the identification procedure was in fact impermissibly suggestive.
Second, if the court finds the procedure was impermissibly
suggestive, then the court must determine whether, under the
totality of the circumstances, an identification made by the witness
at the time of trial is irreparably tainted.
Id. at 763-64.
“The critical question under the second step is whether the
identification was reliable.” State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). The
defendant must show the identification procedure gave rise to “a very substantial
likelihood of irreparable misidentification.” State v. Webb, 516 N.W.2d 824, 829
(Iowa 1994). Relevant factors in determining the reliability of the identification
include: (1) the witness’s opportunity to view the perpetrator at the time of the
crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior
description of the perpetrator; (4) the level of certainty demonstrated by the
witness at confrontation; and (5) the length of time between the crime and
confrontation. Folkerts, 703 N.W.2d at 764.
Losey contends that the in-court identification by witness Valerie Vorwald
(the teller at the bank during the attempted robbery) was tainted by Vorwald’s
earlier identification of Losey during a pretrial deposition. Losey alleges the incourt identification was unreliable because Losey was handcuffed, shackled, and
wearing orange jail clothing during the deposition. He notes that the deposition
did not take place until more than three months after the robbery. Additionally,
Losey contends Vorwald’s identification was inconsistent, as she indicated in the
7
police report immediately following the robbery that the suspect had no facial
hair. As Losey points out, however, he did in fact have a “rather large mustache”
at the time of the robbery. Thus, Losey argues that the pretrial identification was
impermissibly suggestive.
We will assume, without deciding, that Vorwald’s viewing Losey
(handcuffed, shackled, and wearing orange jail clothing) during the identification
portion of the deposition was an impermissibly suggestive procedure.
See
Webb, 516 N.W.2d at 829; Taft, 506 N.W.2d at 762. However, Losey has not
shown that the evidence introduced created a substantial likelihood of irreparable
misidentification. Vorwald was working as a teller at the bank at the time Losey
entered the lobby.
Vorwald greeted Losey as he approached her window.
Vorwald was face to face with Losey as he showed her a note, typed in capital
letters, ordering her to put money in a cardboard envelope he was holding.
Throughout this time, Vorwald was within several feet of Losey and she had a
clear view of Losey’s face.
The event was traumatic and had an extreme
emotional impact on Vorwald. It is the kind of event a victim may relive for years
to come. Although three months passed between the time of the robbery and
Vorwald’s deposition, this fact is less of a concern where the crime occurred in
the immediate and direct presence of the witness.
Losey further argues that the in-court identification by witness John
Eigenberger (a next door neighbor to bank) was tainted by Eigenberger’s earlier
identification of Losey during his pretrial deposition.
Losey points out that
Eigenberger’s deposition did not take place until more than a year after the
robbery, and just several days before Eigenberger’s in-court identification. He
8
contends Eigenberger’s in-court identification was suggestive because Losey
was handcuffed, shackled, and wearing orange jail clothing during the deposition.
Losey further contends Eigenberger’s identification was not reliable, because
although his statements to police immediately following the robbery contained
information about Losey’s vehicle and clothing, the statements contained no
information about Losey’s physical features. For these reasons, Losey argues
that Eigenberger’s pretrial identification was impermissibly suggestive.
Again, we will assume, without deciding, that Eigenberger’s viewing Losey
(handcuffed, shackled, and wearing orange jail clothing) during the identification
portion of the deposition was an impermissibly suggestive procedure.
See
Webb, 516 N.W.2d 824, 829; Taft, 506 N.W.2d at 762. Losey has not shown,
however, that the evidence introduced created a substantial likelihood of
irreparable misidentification. Eigenberger lives next door to the bank. On the
afternoon of the robbery, Eigenberger was in his living room when he noticed
Losey’s vehicle pull up and park on the opposite side of the street directly in front
of his house. When Losey exited the driver’s side door, he looked around and
Eigenberger saw his face. Eigenberger then watched as Losey walked up the
street toward the hospital. Eigenberger was able to see Losey’s face again when
Losey returned to the vehicle several minutes later. Eigenberger watched as
Losey opened the door, rolled up the window, and then walked diagonally across
the road toward the bank. Within a few minutes, Eigenberger saw Losey return
in a hurry to the vehicle, throw something in the backseat, and drive away.
Eigenberger soon noticed police arrive at the bank, and he went outside to
tell them about the man he had just seen. Eigenberger’s first interview with
9
police was very brief. He indicated that the suspect was a white male in his
fifties, approximately six-foot tall, with a thin build.
Eigenberger also gave a
description of Losey’s car and clothing. Although Eigenberger’s interview was
short, it was conducted immediately following the robbery, and Eigenberger’s
description of Losey and his vehicle helped lead to Losey’s arrest. Eigenberger
paid close attention to Losey because Losey was oddly dressed for a hot
summer day and was in a hurry when he returned to his car. Losey was directly
in front of Eigenberger’s house, and Eigenberger had several unobstructed views
of Losey’s face.
The record indicates Eigenberger paid special attention to
Losey the several times he saw him before and after the robbery, likely due to
Losey’s unusual behavior.
Eigenberger expressed his certainty when he
identified Losey. Although his pretrial identification of Losey occurred more than
one year after the robbery, we find it to be reliable under the circumstances.4
Upon our review, we find the evidence of Vorwald’s and Eigenberger’s
identifications were admissible. It was for the jury to determine the weight the
evidence should be given.
The trustworthiness of the eyewitnesses’
identifications was properly submitted to the jury for consideration. See Webb,
516 N.W.2d at 829; State v. Rawlings, 402 N.W.2d 406, 407-08 (Iowa 1987).
Because the evidence was admissible, Losey’s trial counsel did not breach an
essential duty by failing to move to suppress the identification testimony. See
Webb, 516 N.W.2d at 830. Any objection by Losey’s trial counsel as to the
admissibility of the evidence would have been meritless, and therefore, Losey
4
Additionally, Losey’s insistence that his trial attorney depose Eigenberger while Losey
wore the same jail attire, handcuffs, and shackles that he did during Vorwald’s
deposition may constitute waiver or consent to the pretrial identification procedures.
10
cannot show that his trial counsel was ineffective. See Dudley, 766 N.W.2d at
620. Upon our finding that Losey’s trial counsel had no duty to object to the
evidence, it follows that Losey’s postconviction counsel had no duty to raise a
claim based on trial counsel’s failure. See id. Accordingly, we affirm.
IV. Conclusion.
We conclude Losey has not proved by a reasonable probability that,
without counsels’ alleged errors, the outcome of the proceedings would have
been different.
We therefore affirm the district court’s denial of Losey’s
postconviction relief application.
AFFIRMED.
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