No. 03-0498.Court of Appeals of Iowa.
March 31, 2005.
Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.
Michael B. Weatherspoon appeals from the denial of his application for postconviction relief. AFFIRMED.
Richard N. Tompkins, Jr., Mason City, and Charles H. Levad, Mason City, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Paul L. Martin, County Attorney, and Carlyle D. Dalen, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
MAHAN, J.
Michael Weatherspoon appeals from the district court’s order denying his application for postconviction relief. Specifically, he contends he received ineffective assistance of appellate counsel because counsel failed to challenge the trial court’s exclusion of testimony from the victim’s psychiatrist and six other witnesses. We affirm.
I. Background Facts Proceedings.
On the evening of March 3, 1998, Delona Webster, an exotic dancer, met Jerry Dean at The Outer Edge, a dance club in Mason City, Iowa. Webster agreed to perform a private dance for Dean in exchange for money. She arranged to meet Dean in his hotel room later that night.
At approximately 1:30 a.m. the following morning, Michael Weatherspoon, Webster’s companion, drove Webster and her two children to Dean’s room. Webster went inside while Weatherspoon remained in the vehicle with the two children. Once inside, Dean and Webster engaged in a lengthy discussion regarding payment for the dance. Before an agreement could be reached, Weatherspoon came to the door. Webster informed him Dean would not agree to her payment terms. Weatherspoon then began to argue with Dean. The argument escalated, and eventually Dean picked up a sheathed knife and approached Weatherspoon. Weatherspoon punched Dean. While Dean was doubled over from the punch,[1] Weatherspoon obtained control of the knife. He stabbed Dean fourteen times. Prior to fleeing the scene, Weatherspoon took Dean’s billfold. Upon leaving the motel, Weatherspoon discovered the billfold did not contain any money. Weatherspoon then referred to Dean as a “dirty mother fucker” and threw the billfold out the window of his truck. Dean died at the scene of the crime due to loss of blood from his wounds.
Weatherspoon was charged with first-degree murder in violation of Iowa Code sections 707.1 and 707.2(1) or 707.2(2) (1997). During trial, he relied on the defense of self-defense. The jury found Weatherspoon guilty of first-degree murder, and his conviction was affirmed on appeal. Weatherspoon filed an application for postconviction relief on April 6, 2001.[2]
Following an extensive hearing, the district court issued a ruling denying the application for postconviction relief. Weatherspoon appeals.
II. Error Preservation.
On appeal, Weatherspoon avers he received ineffective assistance of counsel because appellate counsel failed to challenge the trial court’s exclusion of testimony from the following seven witnesses: 1) Dr. Jeffrey Jackson, the victim’s psychiatrist; 2) Charles Stitts; 3) Jewel Brinson; 4) Wayne Dotzler; 5) James Jones; 6) Robert Harris; and 7) Joseph Nissen. The postconviction relief court did not address or pass on the merits of Weatherspoon’s challenges with respect to any of the witnesses raised in this appeal. We do not address issues, even of a constitutional nature, first raised on appeal. State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982). “Issues must ordinarily be presented to and passed on by the trial court before they may be raised and adjudicated on appeal.” Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). It is well settled that a rule 1.904(2) motion to enlarge or amend the court’s findings of fact and conclusions of law is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory. State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984) (citations omitted). Weatherspoon makes no claim to have presented a rule 1.904(2) motion to the trial court. Therefore, we conclude Weatherspoon failed to preserve error with respect to any of the challenged witnesses. However, notwithstanding this conclusion, we will proceed to address the merits of Weatherspoon’s claims.
III. Ineffective Assistance of Appellate Counsel.
We typically review postconviction relief proceedings on error Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts a claim of constitutional nature, such as ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Id. To establish a claim of ineffective assistance of counsel, an applicant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). In proving the first prong, the applicant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second-guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614
(Iowa 1997). In our discretion, we address the prejudice prong first. State v. Nebinger, 412 N.W.2d 180, 192 (Iowa Ct.App. 1987).
In this case, even if Weatherspoon had adequately preserved error, he is unable to prove there is a reasonable probability that but for counsel’s error he would not have been convicted. The testimony the seven witnesses would have offered was largely cumulative of other testimony received into evidence at trial. Dr. Jackson would have offered testimony about Dean’s psychiatric condition and his impulsive, violent tendencies. However, during trial, Dr. Sang Lee was permitted to testify at length on precisely these issues. The remaining witnesses would have offered testimony tending to prove that Dean was the first aggressor based on prior bad acts. However, the fact that Dean initially came at Weatherspoon with the sheathed knife[3]
was undisputed by the State, and other evidence presented to the jury during trial reflected that Dean was the initial aggressor. Thus, all of the testimony Weatherspoon alleges should have been challenged by appellate counsel was cumulative in nature. Failure to call a witness who would have offered only cumulative evidence is not ordinarily sufficiently prejudicial to support a finding of ineffective assistance. Taylor v. State, 352 N.W.2d 683, 687
(Iowa 1984); Schrier v. State, 347 N.W.2d 657, 664 (Iowa 1984).
Further, even if we were to overlook the cumulative nature of the testimony challenged by Weatherspoon, the overwhelming evidence established that Weatherspoon used unreasonable force in defending himself. Under Iowa Code section 704.3, a person is only justified in the use of reasonable force. The evidence presented at trial established that Weatherspoon stabbed Dean, a fifty-five year old, disabled, intoxicated, and unarmed man, fourteen times with a knife. Weatherspoon himself sustained no injuries in the fight. Thus, the evidence overwhelmingly demonstrates that even though Dean was the first aggressor, Weatherspoon defended himself with an unreasonable amount of force, thereby negating any reliance on self-defense as justification for his actions. Consequently, even if appellate counsel erred, Weatherspoon is unable to demonstrate he would not have been convicted given the strength of the State’s case against him. Accordingly, we affirm his conviction.
AFFIRMED.