Heard by Huitink, P.J., and Streit and Miller, JJ.
The opinion of the court was delivered by: Streit, J.
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
On appeal from the denial of his post-conviction relief application, appellant contends his trial counsel was ineffective in failing to object to prejudicial remarks made by the prosecutor during closing arguments. AFFIRMED.
Hindsight does not alter the facts of an event but only our perception of that event. Joseph White alleges in hindsight that both his trial and appellate counsel were ineffective on various grounds. The facts surrounding those specific allegations of misconduct demonstrate White did not suffer any identifiable prejudice as a result of his counsels' alleged ineffectiveness. His convictions, therefore, are affirmed.
I. Background Facts & Proceedings.
Shortly before 7 p.m. on November 29, 1992, a young black man entered the crowded Drake Diner in Des Moines. He approached the manager, Cara McGrane, and abruptly shot her in the head with a large caliber handgun. He ordered another Drake Diner employee standing nearby to open the cash register. Tim Burnett, another manager, ran from the back of the restaurant toward the front counter. The gunman turned, shot Burnett, and fled the diner with over $1400. McGrane and Burnett died instantly.
Descriptions of the killer varied from witness to witness. Three witnesses saw the gunman closely and worked with police in developing a composite picture of the gunman. In the following weeks, tips regarding possible suspects began to flood the Des Moines Police Department. An unidentified party claimed Joseph White and his cousin were involved in the shooting. Police also determined the weapon used in the Drake Diner shootings was a rather rare Grizzly .44 magnum, semi-automatic pistol. The police linked a Grizzly .44 magnum to White both prior to and following the November 29 shootings. Witnesses saw White with a similar gun a few days before the Drake Diner incident. Police recovered and matched shell casings ejected from the murder weapon with an earlier crime scene weapon where White was present. Witnesses also saw White with a similar gun approximately twenty-four hours after the Drake Diner shootings when he accidentally discharged the gun at a house party. This shell casing was recovered and linked to the shell casings left behind at the diner. The three witnesses from the diner all identified White as the gunman after viewing a photo array. White was arrested and charged with robbery and two counts of murder.
There was strong evidence linking the murder weapon to White. The .44 Grizzly was stolen from a residence in Fall City, Washington, in October of 1992. During that same time period, White lived in Kent, Washington, approximately thirty miles from Fall City, and had visited the residence from which the gun was stolen. The weapon had been fired in White's Washington apartment in the weeks following the weapon's theft. A Kent police officer seized a .44 magnum shell casing in a rain gutter on the roof of White's apartment, a .44 caliber ammunition clip, another spent shell casing, and a harness for a shoulder holster during a search of White's apartment. These shell casings were also shown to have been ejected from the murder weapon.
White filed a motion to suppress the evidence seized from his Kent apartment and a motion to change venue. The trial court denied both motions. At trial, five witnesses identified White as the man who shot McGrane and Burnett. The jury found White guilty of robbery and two counts of murder. White filed a motion for a new trial on the basis of newly-discovered evidence claiming the State had withheld exculpatory evidence regarding a witness, Jodi Guill. Guill had reported to police she was driving near the Drake Diner around the time of the shooting. She stated a young black man wearing a dark jacket and a hooded sweatshirt with a stocking cap or ski mask ran into the street in front of her car. Guill was shown the photo array and identified someone other than White as the man she saw. White received a police report recounting Guill's statement but no information regarding her failure to identify White. The trial court overruled White's motion for new trial, finding although the State had withheld exculpatory evidence the evidence was immaterial because Guill was not credible. White was sentenced to a term of life imprisonment.
White appealed his conviction asserting seven independent claims of error. This court in State v. White, 530 N.W.2d 77 (Iowa App. 1994) affirmed the conviction, but preserved his claim of ineffective assistance of counsel for post-conviction relief. White filed a petition for post-conviction relief in Polk County District Court alleging his trial counsel was ineffective for failing to object to the closing remarks of the State and that his appellate counsel was ineffective in failing to properly posit the issue of (1) the exculpatory evidence withheld from defense counsel, (2) trial counsel's handling of White's motion for change of venue, and (3) trial counsel's failure to timely file White's motion to suppress. The district court denied White post-conviction relief finding he failed to show any identifiable prejudice from the alleged errors. White now appeals the district court's finding.
Normally, a trial court's denial of an application for post-conviction relief is reviewed for correction of errors at law. Fenske v. State, 592 N.W.2d 333, 338 (Iowa 1999). If, however, the applicant asserts violations of constitutional safeguards, our review is de novo. Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994).
III. Ineffective Assistance of Counsel.
Our ultimate concern in claims of ineffective assistance is with the "'fundamental fairness of the proceeding whose result is being challenged.'" State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987) (quoting Strickland v. Washington, 466 U.S. 668, 696, 104 S. Ct. 2052, 2069, 80 L. Ed. 2d 674, 699 (1984)). The burden is on the defendant to prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. Risdal, 404 N.W.2d at 131-32. With regard to the first prong, White must prove the performance of both trial and appellate counsel was not within the normal range of competence. State v. Grant, ___ N.W.2d ___ (Iowa 1999). In evaluating counsel's performance, we presume counsel acted competently. See Risdal, 404 N.W.2d. at 131. The test for prejudice is whether a reasonable probability existed that the outcome of the trial would have been different but for counsel's alleged omissions. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). 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). ...