from the Iowa District Court for Black Hawk County, George L.
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
Alexander Smith of Parrish Kruidenier Dunn Boles Gribble
Gentry Brown & Bergmann L.L.P., Des Moines, for
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.
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
Background Facts and Proceedings.
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.
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
(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