January 29, 2003
Rodney L. BORUSHASKI, Applicant-Appellant,
STATE of Iowa, Respondent-Appellee.
This decision has been designated as "Decisions Without Published Opinions" table in the North Western Reporter. See FI IA R 6.14(5) for rules regarding the use and citation of unpublished opinions.
Appeal from the Iowa District Court for Polk County, Larry J. Eisenhauer, Judge.
Borushaski appeals from the district court's denial of his application for postconviction relief. AFFIRMED.
Alfredo Parrish and Ivy Rivello of Parrish, Kruidenier, Moss, Dunn, Boles & Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John Sarcone, County Attorney, and Frank Severino, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ. EISENHAUER, J., takes no part.
Borushaski appeals from the district court's denial of his application for postconviction relief. We affirm.
I. Background Facts and Proceedings. Bob and Marilyn Blewer were murdered in their trailer at the Iowa State Fair in 1996. The Blewers' daughter, Jamie; her husband, Rodney Borushaski, and Jeremy Sneed were charged with the murders. Following a jury trial, Rodney Borushaski was convicted of two counts of murder in the first degree and sentenced to life imprisonment. Borushaski appealed his convictions, alleging insufficient evidence to support a felony murder instruction and improper exclusion of testimony. His convictions were affirmed. Borushaski petitioned for postconviction relief, and the district court denied his application. Borushaski appeals, alleging ineffective assistance of appellate counsel, ineffective assistance of trial counsel and newly discovered evidence mandating a new trial.
II. Standard of Review. We ordinarily review postconviction relief proceedings for errors of law. Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). We will not disturb the trial court's denial of postconviction relief if the trial court's findings of fact in support of its judgment are supported by substantial evidence. Carroll v. State, 466 N.W.2d 269, 271 (Iowa Ct.App.1990). However when there is an alleged violation of constitutional rights, our review is de novo. Bugley, 596 N.W.2d at 895.
III. Ineffective Assistance of Counsel. Before we address Borushaski's claims in this appeal, we must address the issue of error preservation. Borushaski failed to raise on direct appeal his claim of ineffective assistance of trial counsel. Ordinarily, postconviction relief proceedings are not an alternative means of litigating issues that should have been raised on direct appeal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Borushaski must show sufficient reason for not previously raising the claims and actual prejudice resulting from the claim of error. Id. Ineffective assistance of appellate counsel may provide sufficient reason to permit the claim of ineffective assistance of trial counsel to be raised initially in postconviction relief proceedings. Jones v. State, 479 N.W.2d 265, 271 (Iowa 1991). In this case, Borushaski does allege his appellate counsel was ineffective for failing to raise meritorious claims of ineffective assistance of trial counsel in his direct appeal.
According to his own testimony, Borushaski's appellate counsel mistakenly relied upon the notion that claims of ineffectiveness could be raised in postconviction relief proceedings even if they were not raised on direct appeal. Thus, Borushaski claims, his appellate counsel breached an essential duty by failing to preserve the ineffective assistance of trial counsel issue for postconviction relief proceedings. To determine whether appellate counsel breached an essential duty, we must first determine whether Borushaski's claim of ineffective assistance of trial counsel has merit.
Borushaski alleges his trial counsel was ineffective for (1) failing to move for a change of venue and (2) failing to move for a mistrial in response to prosecutorial misconduct. To succeed on a claim of ineffective assistance of counsel, Borushaski must prove both that his trial counsel breached an essential duty and that prejudice resulted. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). In order to satisfy the first prong, Borushaski must overcome the presumption that his trial counsel's actions were reasonable and within the normal range of competency. Id. To satisfy the prejudice prong, he must prove a reasonable probability that but for his counsel's deficient performance, the result of the proceeding would have been different. Id.
Change of Venue. A motion to change venue would have been meritorious if Borushaski proved either (1) the publicity attending his case was so pervasive and inflammatory that prejudice must be presumed, or (2) actual prejudice existed on the part of the jury. State v. Siemer, 454 N.W.2d 857, 860 (Iowa 1990). Borushaski claims that presumptive and actual prejudice could have been established in his case. He argues prejudice can be presumed because there was extensive media coverage after the murders, and because Borushaski's trial counsel even admitted hearing about the case in the media before the trial began. He alleges actual prejudice can be deduced from the extensive record made during voir dire.
When determining if prejudice should be presumed, we consider whether the media accounts are factual in nature, whether they indicate the defendant is guilty, whether they are inflammatory and highly emotional, and whether they are inaccurate, misleading or unfair. State v. Walters, 426 N.W.2d 136, 139 (Iowa 1988). While Borushaski claims that the publicity surrounding the murders he was charged with was extensive, he offers no evidence that the media coverage meets any of the Walters criteria.
After a careful review of the 500-page voir dire transcript, we conclude Borushaski has failed to prove actual prejudice on the part of the jury. Jurors who recalled exposure to media coverage were interrogated individually. Although many had heard radio or television coverage or read newspaper articles about the murders, no jurors passed for cause indicated they would be unable to evaluate the evidence fairly or render a verdict based solely on the evidence presented at trial. We conclude the record does not support Borushaski's claim of actual prejudice resulting from the media coverage of the case. Therefore, Borushaski's trial counsel breached no duty and was not ineffective for failing to move for a change of venue.
Prosecutorial Misconduct. Borushaski next contends his counsel was ineffective for failing to respond appropriately to prosecutorial misconduct during the trial. Borushaski alleges the prosecutor engaged in misconduct by violating a gag order from the judge and discussing testimony with a witness during a break. Borushaski's trial counsel was aware of the prosecutor's conduct and, in fact, discussed it with Borushaski during the trial. Borushaski argues his counsel should have moved for a mistrial. He contends it was a breach of an essential duty to instead agree to a court instruction directing the jury to avoid reading any newspapers during the trial. We disagree. Borushaski has not shown how the prosecutor's actions amounted to prosecutorial misconduct. He has made no allegations as to the content of the alleged conversation or its effect on his trial. Regarding the claimed violation of the gag order, Borushaski has not shown how his attorney's response was ineffective or that he was prejudiced by the failure to move for mistrial. We conclude his trial counsel breached no duty and therefore reject these claims of ineffectiveness.
Ineffective Assistance of Appellate Counsel. Because we have determined Borushaski's claims of ineffective assistance of trial counsel were non-meritorious, we find his appellate counsel breached no duty by failing to raise them on direct appeal.
IV. Newly Discovered Evidence. Borushaski claims that evidence consisting of letters between his wife, Jamie, and Jeremy Sneed, and statements made by Jamie after Borushaski's trial, constitute newly discovered evidence, and he should be granted a new trial. Newly discovered evidence is evidence that (1) was discovered after judgment; (2) could not have been discovered earlier; (3) is material to the issue, not merely cumulative or impeaching; and (4) would probably change the result if a new trial were granted. State v. Smith, 573 N.W.2d 14, 21 (Iowa 1997). After reviewing the letters and Jamie's statements, the district court determined Borushaski failed to prove that the outcome of his trial would have been different had the evidence been available. The court found the letters actually supported the State's theory that Borushaski had hired Sneed to kill the Blewers. The district court also found Borushaski had produced no evidence of exculpatory statements made by Jamie. The district court's findings of fact are supported by substantial evidence, and we affirm its denial of relief on this issue.