Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
A plaintiff appeals from the denial of his application for postconviction relief.
Jacob Van Cleaf of Van Cleaf & McCormack Law Firm, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee State.
Considered by Doyle, P.J., and Mullins, J., and Goodhue, S.J. [*]
An applicant, Larry Crutcher, appeals from a ruling entered October 20, 2011, denying his request for postconviction relief. The applicant's only issue presented on appeal is his claim of ineffective assistance of counsel in the postconviction relief proceeding.
I. Background Facts and Proceedings
The applicant was convicted by a jury trial on June 8, 2007, of possession of a controlled substance (crack cocaine) with intent to deliver, enhanced as a second or subsequent offender; possession of a controlled substance (marijuana); and possession of a controlled substance (more than ten grams of crack cocaine) with intent to deliver, enhanced as a second or subsequent offender; and failure to possess a tax stamp. The applicant appealed the conviction claiming, among other things, ineffective assistance of counsel. On appeal the conviction was affirmed; there was no finding of ineffective assistance of counsel. State v. Crutcher, No. 07-1307, 2009 WL 2424646, at *4 (Iowa Ct. App. Aug. 6, 2009).
The applicant filed a pro se petition requesting postconviction relief. Counsel was appointed and an amended petition was filed. Ineffective assistance of counsel was claimed again, and was again denied. The applicant's brief on appeal raises the sole issue of ineffective assistance of postconviction relief counsel.
On February 23, 2007, law enforcement observed a traffic violation. Officers stopped the vehicle. The applicant was the driver and the only occupant of the vehicle, but the passenger side window was open. The vehicle had been observed swerving to the curb immediately prior to the stop. Drugs were found along the curb side of the street where the vehicle had swerved. In questioning the plaintiff, his residence was determined. A search warrant was obtained and a search of the residence conducted. Drugs were recovered as well as other miscellaneous items including a digital scale, a revolver, and a glass bottle and vial. Law enforcement made an unsuccessful test for fingerprints on the drugs and baggies containing the drugs. The other items seized were not fingerprinted.
The State prosecuted the case without fingerprint evidence. The items seized from the residence were located in a room which that evidence indicated was the applicant's room. The applicant testified he requested trial counsel to have other items fingerprinted, but it was not done. The applicant's postconviction relief counsel filed a motion to have certain of the other seized items fingerprinted. The applicant contends that if the prints of others and not his own prints were found on the seized items, it would tend to establish he was not occupying the room in which they were found. The State's witnesses testified that the other items seized and admitted at trial were items often possessed by drug dealers. The applicant also contends it would tend to prove that the other items said to be ordinarily possessed by drug dealers were not his.
Two hearings on the motion were held. The record submitted on appeal contains a lengthy discussion between the court and the applicant's counsel as to the foundation necessary before granting the motion and submitting the items for tests. The court was justifiably concerned that after the seizure, the handling of the exhibits, and the lapse of three-and-one-half years, the fingerprints would have been compromised from their original condition. The court made it clear that it expected counsel to set out a chain of custody for the handling of the items over the three-and-one-half years that would limit the possibility of any contamination of the prints. The applicant's counsel argued that the court's concern should go to the weight of the evidence once the tests had been performed and not considered as a necessary foundation to perform the test.
The hearing was continued for a second hearing, and postconviction counsel advised the court she would let it know if she wanted to go forward or withdraw the motion. At the second hearing, counsel told the court she had placed a call to Division of Criminal Investigation (DCI) personnel to obtain testimony regarding the chain of custody, but had received no call back. She had subpoenaed Exhibit 7 from the trial proceeding, which was a sealed bag containing the glass ...