RONALD D. HAY, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee
This opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed.
Appeal from the Iowa District Court for Buchanan County, Todd A. Geer, Judge. Ronald Hay appeals from the denial of his application for postconviction relief.
John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Shawn M. Harden, County Attorney, and Dustin S. Lies, Assistant County Attorney, for appellee State.
Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.
Ronald Hay appeals from the denial of his application for postconviction relief. He argues his trial counsel was ineffective for failing to call a witness and in failing to object to or request a jury instruction. He argues his postconviction counsel was ineffective in failing to obtain the testimony of a different witness. Finally, he argues the prosecutor committed misconduct in surprising him at trial with an aiding and abetting theory. We affirm.
I. Facts and Proceedings.
This is the second time we have heard Hay's case on appeal. We set forth the facts here as written in the direct appeal:
On September 30, 2005, a deputy sheriff came to Hay's home to talk to him about a motorcycle of his that was stolen. The deputy saw an overhead garage door was open and he walked inside looking for Hay. He noticed two LP tanks with altered fittings and valves and a bottle of Red Devil Lye drain opener. Eventually Hay came to the door of his home and told the deputy his brother was with him. At the deputy's request Hay stepped out and, when questioned, told the deputy the garage and the things in it were his. The two men went to the garage where the deputy inspected the tanks. There was a glass Frank's Sauerkraut jar containing liquid on a shelf, coffee filters, and white sediment. Hay denied the deputy's request to search his house and garage and a search warrant was obtained. Subsequently the officers additionally found Rooto drain opener, a garden hose, Red Devil Lye, an open lithium battery pack containing alkaline batteries, coffee filters, an empty starter fluid can, a light bulb smoking device, a Mason jar with Coleman fuel, a Mountain Dew bottle containing a white mixture with a rag in the bottle and a hose, four ketchup bottles containing salt, a box of glass tubes and beakers, a self-contained-breathing-apparatus mask, miscellaneous glassware, a notebook with Hay's name on it, three hypodermic needles, a spoon with white residue and a cotton ball, a finger scale, plastic baggies some marked with " 25" and " 100," a can of Coleman fuel, a scale with a small quantity of methamphetamine on it, a snort tube, and a shaving cream can with a false bottom that contained several small clear baggies.
Three items were taken to the DCI laboratory. A criminalist with the division explained at trial the process of manufacturing methamphetamine using the lithium-ammonia reduction method. She examined the three items seized from Hay. The items included a bilayer of liquid with coffee filters and solids. She took samples of the upper layer of the liquid and found it contained methamphetamine. She examined the lower level, which she found consistent with engine starting fluid and it contained ether in addition to methamphetamine, CMP [a by-product of manufacturing methamphetamine], and a precursor, pseudoephedrine. She examined a metal spoon containing a fiber wad and residue. She found the spoon had crystalline reside containing methamphetamine and dimethyl sulfone which is a veterinary product used as a cutting agent. There was a plastic bag containing a white crystalline substance and dimethyl sulfone.
State v. Hay, No. 06-1032, 2008 WL 2902172, at *2-3 (Iowa Ct. App. July 30, 2008).
Hay was arrested and a charged by trial information with manufacturing more than five grams of methamphetamine as a second offender. Trial before a jury commenced May 10, 2006. Hay testified and presented as his defense evidence the material in his garage belonged to another person. The jury found Hay guilty as charged on May 15, 2006. Hay appealed to this court. and we affirmed the trial court on July 30, 2008. See id . Hay filed an application for postconviction relief, alleging several claims of ineffective assistance of counsel and prosecutorial misconduct. Hay's original trial counsel died between the trial and postconviction proceedings. Hay and his mother testified at the postconviction proceeding, along with the trial ...