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Howard v. State

Court of Appeals of Iowa

February 19, 2014

NAZARETH HOWARD, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee

Editorial Note:

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 Hamilton County, Michael J. Moon, Judge. Nazareth Howard appeals from the district court's denial of his application for postconviction relief.

Chad R. Frese of Kaplan, Frese & Nine, LLP, Marshalltown, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and Patrick B. Chambers, County Attorney, for appellee State.

Considered by Potterfield, P.J., and Doyle and Bower, JJ.

OPINION

DOYLE, J.

The following facts were set forth in our opinion on direct appeal:

Nazareth Howard and Mindy Boldon had lived together and are the parents of two children. On February 1, 2007, a no-contact order between Howard and Boldon was issued and was in effect at all relevant times. Fearing Howard might attempt to enter her home, Boldon changed the locks on the doors. On the evening of March 8, Boldon barricaded one door with a piece of wood and also arranged for a friend to stay awake listening for signs of a break-in on a baby monitor while Boldon slept. Early in the morning of March 9, 2007, Howard broke through two doors and entered Boldon's home. Boldon and her friend heard Howard breaking in and both immediately called the police while hiding from Howard. Both women heard Howard angrily yelling for Boldon in a hateful voice, asking where she was. Soon, police officers arrived and found Howard hiding in a closet. Howard was uncooperative and the police had to use a [T]azer to take him into custody. After Howard was removed Boldon discovered the money envelope in her purse had been disturbed and her cash was hanging out, but nothing was missing.

State v. Howard, No. 07-1400, 2008 WL 2906553, at *1 (Iowa Ct. App. July 30, 2008).

Howard was charged with second-degree burglary and convicted thereof following a jury trial. Id. He appealed his conviction, asserting his trial counsel was ineffective and challenging the sufficiency of the evidence to support his conviction. See id . We preserved his ineffective-assistance-of-counsel claims for possible postconviction relief (PCR) proceedings, concluding the record was inadequate to resolve those claims at that time. [WL] at *2-3. However, we concluded substantial evidence supported the jury's second-degree-burglary verdict because a rational trier of fact could have found Howard intended to commit an assault or theft at the time he violently entered Bolton's home. Id. We therefore affirmed his conviction. [WL] at *3.

In June 2009, Howard filed his pro se application for PCR asserting numerous claims, including that his trial counsel was ineffective. The case languished in the court system until a PCR hearing was held in January 2013.[1] However, by that time, Howard's trial counsel had passed away.

At the PCR hearing, Howard testified he believed a card he received while he was in jail awaiting trial on his burglary charge should have been introduced into evidence at his trial. Although the card bore the name of Boldon's friend, Howard testified the card was actually from Boldon; Boldon had just " put her friend's name on [the card] like her friend sent [him] one." He testified Boldon wrote on the card, " I am sure everything will turn out okay," and she included money in the card for his jail account.

Additionally, Howard testified he believed an audio recording of him speaking to Boldon on the phone while he was in jail should have been admitted into evidence at his trial. He testified he called Boldon's sister-in-law, and he was told Boldon wanted to speak to him, but he refused. He stated Boldon then got on the phone, and, knowing the call was being recorded, ...


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