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Braggs v. State

Court of Appeals of Iowa

March 8, 2017

BRUCE MARCEL BRAGGS, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.

         Bruce Braggs appeals the denial of his application for postconviction relief. AFFIRMED.

          Wallace L. Taylor of the Law Offices of Wallace L. Taylor, Cedar Rapids, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.

          DANILSON, Chief Judge.

         Bruce Braggs was convicted following a jury trial of first-degree burglary and second-degree sexual abuse. In State v. Braggs, No. 09-1932, 2011 WL 2697740 (Iowa Ct. App. July 13, 2011), this court addressed his several allegations of error[1] and affirmed his convictions. We will not restate the background facts because they are set out at length in that prior opinion. Braggs, 2011 WL 2697740, at *1-3.

         Braggs then filed an application for postconviction relief (PCR), alleging multiple counts of ineffective assistance of trial and appellate counsel, requesting relief based upon newly discovered evidence, and contending there is insufficient evidence to support his convictions. The district court carefully and thoroughly addressed each of his contentions and denied relief. On appeal, Braggs asserts the district court erred in rejecting his claims that trial counsel was ineffective in failing to obtain an expert witness to testify about the reliability of eyewitness identification, and his appellate attorney was ineffective in failing to challenge the trial court's admission of rebuttal testimony by the DCI chemist and failing to present a claim of prosecutorial misconduct in closing arguments.

         Our review of PCR proceedings is generally for correction of errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). However, we review constitutional claims such as ineffective assistance of counsel de novo. Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016).

         In order to succeed on a claim of ineffective assistance of counsel, an applicant must show counsel (1) breached an essential duty and (2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984). "If we conclude a claimant has failed to establish either of these elements, we need not address the remaining element." Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). "[W]e begin with the presumption that the attorney performed competently. Moreover, we avoid second-guessing and hindsight." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). An accused is not entitled to perfect representation but only that level of representation that is within the normal range of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).

         I. Trial counsel.

         We note, first, Braggs' trial attorney thoroughly prepared for the criminal proceedings. We agree with the PCR court's characterization of his representation: "Mr. Braggs' trial counsel, Raphael Scheetz, obviously prepared his case meticulously and extensively. From the transcript of the trial, it appears that Mr. Scheetz raised timely objections, engaged in effective and focused cross-examination, and raised approximately [nineteen] pretrial motions."

         At trial three witnesses-the victim and her two roommates-were asked to make eyewitness identifications of Braggs. The sexual abuse victim informed police at the time that her assailant had his face wrapped throughout the incident and all she ever saw was his eyes, and consequently, she was never shown a photo lineup. She did, however, identify Braggs at the time of trial about two years later. Attorney Scheetz testified he did not consider an expert witness for this purpose because he felt "it was of common understanding" an identification made based on just someone's eyes "would be unreliable." We conclude trial counsel's strategic decision was reasonable. See Ledezma, 626 N.W.2d at 143 (noting "strategic decisions made after 'thorough investigation of law and facts relevant to plausible options are virtually unchallengeable'" (citation omitted)); see also Osborn v. State, 573 N.W.2d 917, 924 (Iowa 1998) (noting reasonable "[t]actical decisions . . . are immune from subsequent attack by an aggrieved defendant claiming ineffective assistance of counsel").

         The victim's roommates were presented with photo lineups. One was unable to identify anyone in the photo lineup, and her testimony remained consistent through the trial. The other did identify a photo of Braggs as being the person she saw outside of the apartment complex that morning but qualified her identification both at the time of the photo lineup and in her testimony at trial that she was only seventy-five percent certain of her selection. Braggs asserts trial counsel should have engaged an expert witness to testify as to the reliability of photo lineups and eyewitness identifications. At the PCR trial, Braggs called Professor Jason Chen, an associate professor of psychology at Iowa State University, to testify about research investigating the reliability of photo lineups and eyewitness identification. Our review of Professor Chen's testimony does not convince us such testimony at ...

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