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Harris v. State

Court of Appeals of Iowa

June 5, 2019

DEANDREW HARRIS, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.

         DeAndrew Harris was granted interlocutory appeal of a district court ruling denying his motion for an expert witness at state expense in this postconviction-relief proceeding. AFFIRMED AND REMANDED.

          Alexander Smith of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee State.

          Considered by Potterfield, P.J., Tabor, J., and Gamble, S.J. [*]

          GAMBLE, SENIOR JUDGE.

         DeAndrew Harris filed an application for interlocutory appeal of a district court ruling denying his motion for an expert witness at state expense. Our supreme court granted interlocutory appeal and transferred the case to this court. Because the district court did not abuse its discretion in determining Harris failed to demonstrate it was reasonably necessary to appoint an expert and Harris requested no additional ruling on the statutory and constitutional claims he now urges on appeal, we affirm and remand for further proceedings.

         I. Background Facts and Proceedings.

         Harris was convicted by a jury of first-degree robbery, first-degree burglary, and being a felon in possession of a firearm as a habitual offender. On appeal, Harris asserted error in the denial of his motion to suppress, in which he contended there had been an impermissibly suggestive photo lineup; the court erred in allowing impermissible hearsay; and there was insufficient evidence of identification to support the convictions. State v. Harris, No. 15-0855, 2016 WL 4801444, at *2 (Iowa Ct. App. Sept. 14, 2016). This court addressed each contention and affirmed the convictions, finding the photo lineup was not impermissibly suggestive, id. at *2; exceptions to the hearsay rule allowed the deposition testimony of an unavailable witness to be admitted, id. at *3-4; prior statements of identification by a witness who has testified at trial and is available for cross-examination are not hearsay, id. at *5; and substantial evidence supported the convictions, id. Specifically, we noted:

Among other things, cell phones were taken by the intruders. All of the victims remembered one intruder had red-tipped locks and was holding a small silver gun. Four of the five victims identified Harris-even without bright red locks-in the photo lineup. A small silver gun was found with the victims' stolen phones, and Harris's DNA was found on that gun. Finally, Harris's alibi was questionable, and it was for the jury to determine whether or not Harris's alibi witness was credible.

Id.

         Harris filed an application for postconviction relief (PCR), and his appointed counsel filed a supplemental and amended petition on October 29, 2017. In the amended petition, Harris asserts trial counsel was ineffective in various ways, three of which are relevant for our purposes:

Counsel was ineffective, and unfair prejudice resulted, when counsel
(a) Did not call an eyewitness identification expert to instruct the jury on factors that affect eyewitness identifications, such as the presence of a weapon, presence of violence or stress, duration of the incident, confidence in the identification, cross-racial impairment, or various impermissibly-suggestive identification procedures.
(b)Did not call a similar eyewitness expert on the motion to ...

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