No. 4-265 / 03-0651.Court of Appeals of Iowa.
June 23, 2004.
Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.
Roger Becker appeals the denial of postconviction relief on his convictions for terrorism with intent to injure or provoke fear or anger; assault while using or displaying a dangerous weapon; and assault causing bodily injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas Ferguson, County Attorney, and D. Raymond Walton, Douglas Eichholz, and Kimberly Griffith, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Miller, J., and Hendrickson, S.J.[*]
HENDRICKSON, S.J.
Roger Becker appeals the denial of postconviction relief on his convictions for terrorism with intent to injure or provoke fear or anger; assault while using or displaying a dangerous weapon; and assault causing bodily injury. He claims his postconviction counsel was ineffective for failing to claim trial counsel and appellate counsel did not urge the correct standard to be applied on Becker’s motion for new trial. We affirm.
Background Facts and Proceedings.
On February 9, 1998, Roger Becker was charged in a four-count trial information with the crimes of: terrorism, in violation of Iowa Code section 708.6 (1997); going armed with intent, in violation of Iowa Code section 708.8; assault while using or displaying a dangerous weapon, in violation of Iowa Code section 708.2(3); and assault without the intent to commit serious injury but causing bodily injury, in violation of Iowa Code section 708.2(2).
The evidence developed at trial revealed that Roger Becker owned an apartment building in Evansdale, Iowa, and lived in apartment “B” of the building. The three Beaumont brothers (Gary, James, and Curt) lived in apartment “C” of the building, along with their uncle, Joe Zimmer. In January of 1998, Jason Roeding was also staying with the family on and off.
On the night of January 31 to February 1, 1998, Zimmer, the Beaumont brothers, Jason Roeding, Jason Jacobsen, and Brandon Hermann were all at the Beaumont apartment socializing. At about 9:30 p.m., Becker stopped at the apartment, bringing with him a bottle of whiskey. Becker stayed at the apartment and drank and talked with several of the occupants until about midnight when Becker and some of the others went to the store and bought two more bottles of whiskey. The men were gone about an hour and then returned to the apartment, where all but the two youngest Beaumont brothers continued to drink heavily and finished off the new bottles of liquor. By the time they had emptied the bottles, Becker had fallen asleep in a chair. The others decided it was time for him to go, so Jacobsen woke him up and asked him to go home. Becker agreed, and Jacobsen helped him out of the chair. Hermann testified that Becker became belligerent and pulled a can of mace or pepper spray out of his pocket. Becker threatened to use the mace, but did not do so. Jacobsen then began to walk Becker across the yard to his front door. Hermann, Gary Beaumont, and Roeding went with them as they were planning to take Becker home and then go to the park for a while.
Although Becker denied the following, the evidence reveals when Jacobsen and Becker reached Becker’s front door, Becker sprayed Jacobsen in the eyes with mace and then reached inside the door of his apartment, pulled out a metal bar, and beat Jacobsen about the head and body. Roeding saw what was happening and ran to help his friend. He hit Becker in the head with a bottle and punched him once. Becker fell into his apartment and lay on the floor. Roeding then left and went back to the apartment.
About five minutes later, Hermann was sitting in the living room of the apartment, Roeding was standing in the kitchen, and Gary Beaumont was also in the kitchen. Hermann heard Becker yell, “you mother fuckers” and then he heard a shot. He heard the window break and saw Roeding fall to the ground — shot.
Officers arrested Becker later that morning and searched his apartment. Officers found a shotgun which appeared to have been fired recently, Becker’s wet and muddy pants with a can of mace in the pocket, and a metal bar. They also found Becker’s billfold in the back pocket of the pants with $17 in cash inside.
Becker testified at trial and denied beating Jacobsen or shooting into the Beaumont apartment on the night in question. He claimed that it was he who was attacked and robbed that night. He testified that he had been at the Beaumonts’ apartment drinking with the group of people there. He claimed that the others at the apartment knew he was carrying a large amount of cash.
Becker testified that he eventually passed out in a chair at the apartment. The next thing he remembered was Jacobsen shaking his leg to wake him up and asking him if he wanted to go home. Jacobsen helped Becker out of the chair and held him up as he walked home. Becker testified that when he got to the door of his apartment, he fumbled with the key in the lock and Jacobsen took the key and opened the door. Jacobsen was still on the front stoop and he asked for $450. Becker told Jacobsen that he did not have the money. Jacobsen said that he knew Becker had the money and started pushing up his sleeves. Becker believed that Jacobsen was going to attack him, so he took out the mace and sprayed Jacobsen once. Becker recalled that Jacobsen screamed, fell to the ground, and hit his head.
Becker testified the next thing he remembers was being down on the concrete and the sheriff waking him by kicking in his door. No fingerprints were found on the shotgun, nor did the gunshot residue test performed on Becker yield conclusive results. The jury found Becker guilty on all of the counts except Count II, going armed with intent.
Subsequently, trial counsel filed a motion in arrest of judgment and for new trial setting forth a variety of reasons why the verdicts were not supported by the evidence, as well as other claims in support of a new trial. A hearing on the motions was held on the date Becker was sentenced. The trial court overruled the motions. Becker appealed and the Iowa Court of Appeals affirmed the conviction.
Becker filed applications for postconviction relief raising a number of issues. At the hearing held on April 16, 2003, postconviction counsel addressed three issues. They were:
1) Whether an expert witness should have been called regarding the defense of intoxication.
2) Whether a juror by the name of Shirley Butters failed to reveal that she previously had an alleged altercation with Becker at their place of employment.
3) Whether appellate counsel was ineffective for arguing a “sufficiency of evidence” standard rather than the “weight of the evidence” standard on Becker’s direct appeal from his convictions.
The trial court, at the hearing, rejected the third issue, saying:
Well, I presume the Court of Appeals . . . would know what standard to apply and whether he argued weight or argued sufficiency I would certainly trust that the Court of Appeals knew the Correct standard and applied the correct standard. . . .
The trial court ruled against Becker on the other two issues in a written opinion filed April 17, 2003. On this appeal from the denial of postconviction relief, counsel frames the issue as follows:
Whether postconviction counsel was ineffective for failing to claim appellate and trial counsel ineffective for failing to raise and preserve error on Defendant’s motion for new trial.
In other words, Becker is now asserting that postconviction trial counsel was ineffective because he did not claim that trial counsel and appellate counsel were ineffective for failing to claim that the verdict was contrary to the weight of the evidence in the motion for new trial and the appeal affirming the denial of a new trial. See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). See also Dunbar v. State, 515 N.W.2d 12, 15
(Iowa 1994).
The State initially claims Becker waived this issue because he did not litigate nor obtain a ruling on the issue at trial. We conclude the record is adequate to address the issue on the merits.
Scope of Review.
Generally, reviews of postconviction relief proceedings are on claimed error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). When an applicant asserts claims of a constitutional nature, including ineffective assistance of counsel, the review is de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000) State v. Carrillo, 597 N.W.2d 497, 499 (Iowa 1999).
To prevail on a claim of ineffective assistance of counsel, the applicant must demonstrate by the preponderance of evidence both ineffective assistance and prejudice. Ledezma, 626 N.W.2d at 142. However both elements do not always have to be demonstrated. If, for example, a claim lacks prejudice, this finding alone precludes a ruling in favor of the applicant without deciding whether the attorney’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 689 (1984); State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995); Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984).
In State v. Ellis, the court adopted the “weight of the evidence” standard as opposed to the previous “sufficiency of the evidence” standard when addressing whether the defendant’s motion for new trial should be granted. Ellis, 578 N.W.2d at 659. The court noted the difference as set forth in Tibbs v. Florida:
[A] conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. A reversal based on the weight of the evidence, on the other hand, draws the appellate court into questions of credibility. The “weight of the evidence” refers to “a determination [by] the trier of fact that a greater amount of credible
evidence supports one side of an issue or cause than the other.
Id. at 658 (citing Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 658 (1982) (emphasis added)). The court in Ellis went on to say:
Trial courts have wide discretion in deciding motions for new trial. Nevertheless, we caution trial courts to exercise this discretion carefully and sparingly when deciding motions for new trial based on the ground that the verdict of conviction is contrary to the weight of the evidence. We have confidence in our trial courts that they will heed this admonition; a failure to follow it would lessen the role of the jury as the principal trier of the facts and would enable the trial court to disregard at will the jury’s verdict.
Id. at 659 (citation omitted).
In the motion for new trial, counsel asserted that the State failed to offer any credible evidence on certain enumerated facts, including what he claimed was undisputed evidence regarding Becker’s intoxication. This is consistent with the “weight of the evidence” standard wherein the “trier of fact determines that a greater amount of credible evidence supports one side of an issue or cause than the other.” Ellis, 578 N.W.2d at 658.
Notwithstanding the fact that trial counsel did not use the words “weight of the evidence” in the motion for new trial, we conclude he did, in fact, urge the correct standard by claiming a lack of credible evidence to support the verdict.
The trial court, in its ruling, stated in part:
I think it is — would not have been difficult for them to conclude that whoever did the shooting knew what they were doing — because of the way it was done, because a statement — a statement allegedly made outside the window. That whoever did it, whether they were drunk or not, were sober enough to know what they were doing and that that person was your client.
We are satisfied that the trial court was weighing the evidence and determined that the greater weight of the evidence supported a finding that intoxication was not a credible defense and the verdict was supported by the credible evidence.
Ineffective Appellate Counsel.
Becker asserts that appellate counsel was ineffective because the wrong standard was used in making his appellate argument. Postconviction counsel raised the issue and argued “that appellate counsel used the sufficiency of evidence standard rather than the weight of the evidence standard.”
The court of appeals, in fact, stated in its decision:
On appeal Becker challenges the sufficiency of the evidence supporting his terrorism conviction.
* * *
There is sufficient evidence supporting Becker’s terrorism conviction, and we therefore affirm.
State v. Becker, No. 99-825 (Iowa Ct.App. May 31, 2000).
It appears that Becker’s direct appeal was based on the lack of sufficient evidence to support his terrorism conviction and not that the verdict was contrary to the weight of the evidence. Nevertheless, it is incumbent to determine whether applying the wrong standard resulted in prejudice to the defendant. We conclude it did not.
Prejudice is shown where “it is reasonably probable that the result of the proceeding would have been different.” State v. Westeen, 591 N.W.2d 203, 211 (Iowa 1999); State v. Henderson, 537 N.W.2d 763, 765 (Iowa 1985).
A de novo review of the record reveals the following salient facts: Brandon Hermann heard Becker’s voice outside the apartment window yelling an epithet and moments later a shotgun blast went through the window hitting Jason Roeding. A shotgun that had been recently fired was found in Becker’s apartment as well as a metal pipe. Mace was found in Becker’s pants corroborating the testimony of the witnesses.
While Becker testified that he had not shot at the window and that he, himself, was a victim of a robbery, the postconviction court found that Becker was not a truthful person.
We conclude from a de novo review of the record that notwithstanding the fact that appellate counsel urged the wrong standard, the conviction would have been affirmed on the basis of the correct standard, i.e., the weight of the evidence. Therefore, Becker has not demonstrated by the preponderance of the evidence that he was prejudiced by any mistakes of appellate counsel. Clearly, it has not been demonstrated that the verdict in this case was contrary to the weight of the evidence and that a miscarriage of justice may have resulted.
We accordingly affirm the denial of postconviction relief.
AFFIRMED.
Miller, J., concurs; Sackett, C.J., specially concurs.
SACKETT, C.J. (specially concurring)
I concur because Becker has failed to show the required prejudice on an ineffective assistance of counsel claim.
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