Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.
The opinion of the court was delivered by: Bower, J.
Dione Griggs appeals from the district court order denying his application for post-conviction relief. AFFIRMED.
Considered by Doyle, P.J., and Mullins and Bower, JJ. Tabor, J., takes no part.
Dione Griggs appeals from the district court order denying his application for post-conviction relief (PCR). He contends his trial counsel was ineffective in several respects.
Upon our de novo review of the record, we find Griggs has failed to establish any of his claims of ineffective assistance of counsel. Accordingly, we affirm the district court's denial of his PCR application.
I. Background Facts and Proceedings.
Griggs was convicted of first-degree robbery, assault while participating in a felony, and conspiracy for his involvement in a botched robbery of Murphy USA employee Colleen France, which occurred on October 17, 2004. Griggs's girlfriend, Trina Watkins, had been fired from her job at a Murphy USA gas station in Davenport one month earlier. Griggs, who was present at the time of the firing, had accused France of having Watkins fired and had threatened to get even with France.
On the morning of October 17, 2004, Griggs enlisted the help of DeShon Collins to get even with the gas station by robbing France as she made a large deposit of the business's money at a bank near the Hy-Vee grocery store. Collins and his girlfriend, Jeanne Sindt, were staying at a residence with Griggs and Watkins. Griggs told Collins that France would be making the deposit between 10:00 a.m. and noon that day, and he knew the type of vehicle France would be driving. The men ingested drugs and followed France's vehicle to the Hy-Vee store with Griggs driving Collins's car. Once at Hy-Vee, Griggs told Collins to "hurry up and rob" France, while handing Collins a gun. Collins exited the vehicle, leaving his cell phone behind.
The robbery was thwarted when citizens and Hy-Vee employees apprehended Collins and brought him to the ground. While restrained, Collins's vehicle sped toward the group and several witnesses identified the driver as a black male. Collins's vehicle was left at a Taco Bell across the river in Illinois. At approximately 1:00 p.m., Watkins called Sindt and asked for her help to retrieve the vehicle, which they drove to an apartment complex where Griggs was waiting.
Collins was arrested at the scene. He initially told the police that Corey Thomas was his accomplice but later named Griggs. He told the police that they committed the robbery because Griggs was upset that Watkins was fired and Griggs wanted to get even with the business.
Griggs, Collins, and Watkins were charged with robbery in the first degee, assault while participating in a felony, and conspiracy. Collins pleaded guilty to lesser charges. As part of a plea agreement, he testified at Griggs's trial. Watkins also pleaded guilty to lesser charges but did not testify.
This court affirmed Griggs's conviction on direct appeal. State v. Griggs, No. 05-1659, 2006 WL 3018234 (Iowa Ct. App. Oct. 25, 2006). We found sufficient corroboration of Collins's accomplice testimony warranting submission of the case to the jury. Id. at *4. Because the record was not developed with regard to Griggs's claim that his trial counsel was ineffective in failing to object to the admission of Watkins's cell phone records, we preserved the claim for a possible PCR hearing. Id. at *4-5.
Griggs filed a PCR application on February 7, 2008. A hearing was held on July 28, 2011. On November 14, 2011, the district court entered its order denying Griggs's PCR application. Griggs filed an application to enlarge and amend, which was denied. On January 11, 2012, Griggs filed a timely notice of appeal.
II. Scope and Standard of Review.
Normally, we review PCR proceedings for errors at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). However, PCR applications that allege ineffective assistance of counsel raise a constitutional claim. Id. Therefore, our review is de novo. Id.
III. Ineffective Assistance of Counsel.
All PCR applicants who seek relief as a consequence of ineffective assistance of counsel must establish counsel breached a duty and prejudice resulted. Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012). We may affirm the district court's rejection of an ineffective-assistance-of-counsel claim if either element is lacking. Id.
With regard to the duty prong, a PCR applicant must prove counsel performed below the standard demanded of a "reasonably competent attorney." Id. An attorney's performance is measured against "prevailing professional norms." Id. It is presumed an attorney performed competently. Id. We are more likely to find ineffective assistance when the alleged action or inaction of counsel is attributed to a lack of diligence rather than the exercise of judgment. Id. Improvident trial strategy, miscalculated tactics, or mistakes in judgment do not necessarily amount to ineffective counsel. Id. Where counsel makes a reasonable tactical decision, we will not engage in second-guessing. Id.
In order to satisfy the prejudice prong, a PCR applicant must show that counsel's errors were so serious that a fair trial was not had. Id. In other words, counsel's error must have an effect on the judgment. Id. It is not enough to show the error "conceivably could have influenced the outcome"; the effect must be affirmatively proved by a showing that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability is that which is sufficient to undermine confidence in the outcome. Id. The question we must answer is: "[W]hether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id.
Griggs first contends that counsel was ineffective in failing to object to the admission of Watkins's cell phone records. He argues counsel had a duty to object to the phone records because they were inadmissible hearsay, not covered by any exception. Specifically, he argues the phone records were not admissible under the business records exception to the hearsay rule.
In order to admit a record containing hearsay into evidence under the business records exception outlined in Iowa Rule of Evidence 5.803(6), the proponent of the evidence must establish the following:
1) That it is a business record;
2) That it was made at or near the time of an act;
3) That it was made by, or from information transmitted by, a person with knowledge;
4) That it was kept in the course of a regularly conducted business activity;
5) That it was the regular practice of that business activity to make such a business record.
State v. Reynolds, 746 N.W.2d 837, 841 (Iowa 2008). However, where business records are created through a fully automated and reliable process involving no human declarant, the "statements" contained are arguably not hearsay at all. Id. at 843. As our supreme court has stated, "foundational testimony for non-hearsay evidence need only be provided by a person with 'special knowledge about the operation of the computer system.'" Id. (citation omitted).
Davenport police officer Mike Martin testified that he subpoenaed Watkins's phone records from Iowa Wireless. He testified that "there is a listing of every call you make and receive" and that when Iowa Wireless's records are subpoenaed, they "will send us back for the time frame that we requested every phone call that was made or received, including even when you go into your voice mail, and it lists my time-the time, the date and literally how many seconds." Martin stated that the records introduced at trial were the ones that were received in response to the subpoena. The district court found the records "are routinely used in trials to establish the whereabouts and contacts of individuals at pertinent times through the numbers called by individuals."
Assuming that Martin's testimony failed to establish that he is a person with special knowledge about the operation of the computer system, we cannot find Griggs was prejudiced by any failure on counsel's part to object to the lack of foundation for the exhibit. A party objecting to the offer of evidence for lack of foundation must point out in what particular or particulars the foundation is deficient to allow the adversary an opportunity to remedy the alleged defect, if possible. State v. Entsminger, 160 N.W.2d 480, 483 (Iowa 1968). Had trial counsel objected as to the ...