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Hameed v. State

Court of Appeals of Iowa

February 6, 2019

MUHAMMAD Y. HAMEED, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge. Muhammad Hameed appeals from the denial of his application for postconviction relief. AFFIRMED.

          Nathan Legue of Legue Law, P.C., Davenport, for appellant.

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

          Considered by Doyle, P.J., Mullins, J., and Gamble, S.J. [*]

          GAMBLE, Senior Judge.

         Muhammad Hameed appeals from the denial of his application for postconviction relief (PCR), contending his criminal trial counsel was ineffective in a number of respects. The PCR court considered the record, heard testimony from a number of witnesses and received additional evidence, and carefully considered each of Hameed's claims, finding them be without merit or non-prejudicial. On our de novo review, we conclude Hameed's counsel was not ineffective in his representation, and we affirm.

         We have previously set out the underlying facts resulting in Hameed's conviction for third-degree sexual abuse, and we need not repeat them here. See State v. Hameed, No. 12-1630, 2013 WL 3458095, at *1-2 (Iowa Ct. App. July 10, 2013). This court noted Hameed admitted having sexual intercourse with the complaining witness, and we found substantial evidence existed to support the jury's finding the sex act was committed by force or against the will of the complainant. Id. at *4-6. Our supreme court denied further review.

         Hameed filed a PCR application. The facts of the PCR proceeding revealed Hameed was the manager of an adult club in Davenport, Iowa, known as the Chorus Line. The complaining witness and a friend came to the club in March 2011 to attend a Mardi Gras party. An employee refused to serve alcohol to the complaining witness because she was under the legal drinking age. As an employee was escorting her out of the club, Hameed invited the complaining witness and her friend to the back room. At the criminal trial, the complaining witness and her friend testified that Hameed gave them each a shot of an unknown substance and they blacked out shortly thereafter. The State alleged the complaining witness became incapacitated and Hameed had sex with her in the back room by force and against her will.

         During the investigation, the police seized the club's computer tower containing surveillance video. The police copied four hours of the surveillance video from several camera angles onto a thumb drive and returned the computer to Hameed. The copied video captured the complaining witness entering the club apparently unimpaired and stumbling out of the club with the assistance of a man an hour and seventeen minutes later.

         The police produced an edited version of the surveillance video on a DVD for use at trial. The edited version included clips of the complaining witness entering and leaving the club. The State produced a copy of the DVD for Hameed's first attorney. Hameed dismissed his first attorney, and new counsel appeared.[1]Hameed's new trial counsel reviewed the DVD. Trial counsel was satisfied and did not seek production of the entire surveillance video. The PCR court found that counsel breached a duty in not attempting to view the entire surveillance video. However, the court concluded Hameed had not established prejudice.

         Hameed claimed the complaining witness was not intoxicated and came on to him in the back room. He claimed the sex was consensual. His trial counsel believed the clips of the surveillance video on the DVD supported Hameed's version of events. Hameed's trial counsel was an experienced criminal defense attorney. He settled on a trial strategy based on the theory that the complaining witness was not intoxicated when she entered the club and the back room, she was capable of consent, she consented to sex with Hameed, and she became intoxicated after the sex act and before she left the club. Trial counsel chose not to pursue other avenues and did not call witnesses that did not support this theory of the case.

         Hameed claims that upon the return of the computer tower all the surveillance video was deleted. He asserts the police destroyed the full surveillance video. However, Hameed did not have a forensic expert examine the hard drive. He put it back into service and recorded over it. Hameed does not know what was on the surveillance video and cannot say how it would have helped his defense. The police deny destroying the surveillance video. The evidence presented on this issue at the PCR trial would not support a spoliation instruction.[2]

         With respect to Hameed's claims that counsel did not call defense witnesses, one of the potential witnesses, Jillian Caves, testified at the PCR trial. Trial counsel testified he chose not to call her at the criminal trial because he did not believe her testimony would assist the defense.

         Hameed wanted expert testimony about possible alcohol blackouts and the effects of the prescription drug Adderall. There was nothing presented that ...


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