IN THE COURT OF APPEALS OF IOWA
No. 14-0970 Filed December 9, 2015
ARON MICHAEL MOSS, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Boone County, Timothy J. Finn,
Judge.
An applicant appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Kelli Huser,
Assistant Attorneys General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ. Danilson, C.J.,
takes no part. 2
MULLINS, Judge.
Aron Michael Moss was convicted of second-degree murder for the death
of Shane Hill. The facts of the crime and the underlying proceedings are
appropriately detailed in our opinion in Moss’s direct appeal and need not be
repeated here. See State v. Moss, No. 08-1224, 2009 WL 3381053, at *1, *5-6
(Iowa Ct. App. Oct. 21, 2009). Following our decision, Moss filed an application
for postconviction relief (PCR) asserting eighteen claims of error. The district
court denied his application, and Moss appeals claiming his appellate counsel
and postconviction counsel were ineffective (1) for not challenging the trial court’s
refusal to admit impeachment testimony against an accomplice and (2) for not
challenging the court’s failure to provide the jury more instruction in response to
the jury’s questions regarding the definition of aiding and abetting.
Daniel Blair was first convicted of first-degree murder for the killing of
Shane Hill—the husband of Blair’s lover, Jessica Hill. Blair then testified at
Moss’s trial that it was Moss who pulled the trigger killing Shane Hill. In this PCR
appeal, Moss claims the trial court should have admitted testimony from Lisa
Lewis as impeachment evidence against Blair. Lewis would have testified Blair
told her that he helped aim the gun for Moss, who pulled the trigger. Moss
claims the trial court should have permitted this testimony as it impeached Blair’s
testimony and both appellate counsel and PCR counsel should have raised the
issue. Because, in his opinion, the case hinged on whether the jury believed him
or Blair, Moss claims he was prejudiced by counsel’s errors. 3
The trial court did permit the testimony of two other witnesses for
impeachment purposes, each of whom testified Blair admitted he was the one
who shot Shane Hill. Unlike these other two witnesses, the district court
excluded Lewis’s testimony on the basis it was not materially different from
Blair’s testimony and was irrelevant. Lewis’s testimony was consistent with
Blair’s testimony with respect to who pulled the trigger—Moss—but varied from
Blair’s testimony in that Lewis would have testified Blair told her he helped aim
the gun for Moss. This was inconsistent with Blair’s testimony that he was in
another room when Moss fired the gun. The district court determined the issue
of what room Blair was in when the gun was fired was not material to the case
and Lewis’s testimony of who fired the gun was not inconsistent with Blair’s
testimony. Therefore, the court ruled Lewis’s testimony was not admissible for
impeachment purposes.
Moss claims his counsel in the direct appeal was ineffective for not raising
this issue and claims his PCR counsel should have made the claim at the PCR
proceeding that appellate counsel was ineffective. Both claims boil down to
whether the district court abused its discretion in excluding Lewis’s testimony. If
there was no abuse of discretion, appellate counsel cannot be found ineffective
for failing to raise the issue, and as a result, PCR counsel cannot be found
ineffective for not challenging appellate counsel’s effectiveness. See State v.
Halverson, 857 N.W.2d 632, 635 (Iowa 2015) (“Counsel, of course, does not
provide ineffective assistance if the underlying claim is meritless.”). 4
“[A] witness may be impeached by showing his testimony upon a material
matter is inconsistent with a prior statement made by him.” State v. Bishop, 387
N.W.2d 554, 559 (Iowa 1986). But, “[t]he subject of the inconsistent statement, if
it is to be admissible, must be material and not collateral to the facts of the case.”
State v. Fowler, 248 N.W.2d 511, 520 (Iowa 1976). We conclude the district
court did not abuse its discretion in excluding Lewis’s testimony by concluding
the inconsistent aspect of Blair’s statement to Lewis (where Blair was located
when Moss fired the gun) was not material to the case. Therefore, appellate
counsel was not ineffective in failing to raise this issue on direct appeal, and PCR
counsel was not ineffective in failing to challenge appellate counsel’s
effectiveness at the PCR hearing.
Moss also claims trial counsel and PCR counsel were ineffective in not
challenging the trial court’s failure to further instruct the jury when the jury asked
for insight or further definition on the aiding and abetting instruction. The jury
was instructed on aiding and abetting but asked the judge,
We are struggling [with] 1 thing. [1] It states that “mere knowledge of the crime is not enough to prove [‘]aiding and abetting[’].” Does this refer to knowledge of the crime before it happened? Does it need to be joined with proof that he encouraged or gave consent? Could you offer insight or further define aiding and abetting?
The judge responded, “You have inquired regarding the language in the
instruction relating to ‘aiding and abetting.’ The jury instructions embody the law
necessary for your deliberations. You are advised to review the instructions
previously given to you and continue your deliberations.” Moss’s trial counsel
and the State agreed the judge’s response was appropriate. On appeal in this 5
PCR action, Moss claims trial counsel was ineffective in not requesting the judge
further instruct the jury on aiding and abetting. He also claims his PCR counsel
was ineffective in not presenting this claim at the PCR trial. Again, the issue
boils down to whether the court properly responded to the jury’s question. If the
response was correct, trial counsel cannot be found ineffective at the criminal
trial, and thereby, PCR counsel cannot be found ineffective at the PCR hearing
for failing to challenge trial counsel’s effectiveness.
The jury’s question indicates it was confused as to the implication of the
timing of Moss’s knowledge of the commission of the crime. The original jury
instruction for aiding and abetting provided:
“Aid and abet” means to knowingly approve and agree to the commission of a crime, either by active participation in it or by knowingly advising or encouraging the act in some way before or when it is committed. Conduct following the crime may he considered only as it may tend to prove the Defendant’s earlier participation. Mere nearness to, or presence at, the scene of the crime, without more evidence, is not “aiding and abetting.” Likewise, mere knowledge of the crime is not enough to prove “aiding and abetting.”
(Emphasis added.) The jury instruction given clearly says mere knowledge of the
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IN THE COURT OF APPEALS OF IOWA
No. 14-0970 Filed December 9, 2015
ARON MICHAEL MOSS, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Boone County, Timothy J. Finn,
Judge.
An applicant appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Kelli Huser,
Assistant Attorneys General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ. Danilson, C.J.,
takes no part. 2
MULLINS, Judge.
Aron Michael Moss was convicted of second-degree murder for the death
of Shane Hill. The facts of the crime and the underlying proceedings are
appropriately detailed in our opinion in Moss’s direct appeal and need not be
repeated here. See State v. Moss, No. 08-1224, 2009 WL 3381053, at *1, *5-6
(Iowa Ct. App. Oct. 21, 2009). Following our decision, Moss filed an application
for postconviction relief (PCR) asserting eighteen claims of error. The district
court denied his application, and Moss appeals claiming his appellate counsel
and postconviction counsel were ineffective (1) for not challenging the trial court’s
refusal to admit impeachment testimony against an accomplice and (2) for not
challenging the court’s failure to provide the jury more instruction in response to
the jury’s questions regarding the definition of aiding and abetting.
Daniel Blair was first convicted of first-degree murder for the killing of
Shane Hill—the husband of Blair’s lover, Jessica Hill. Blair then testified at
Moss’s trial that it was Moss who pulled the trigger killing Shane Hill. In this PCR
appeal, Moss claims the trial court should have admitted testimony from Lisa
Lewis as impeachment evidence against Blair. Lewis would have testified Blair
told her that he helped aim the gun for Moss, who pulled the trigger. Moss
claims the trial court should have permitted this testimony as it impeached Blair’s
testimony and both appellate counsel and PCR counsel should have raised the
issue. Because, in his opinion, the case hinged on whether the jury believed him
or Blair, Moss claims he was prejudiced by counsel’s errors. 3
The trial court did permit the testimony of two other witnesses for
impeachment purposes, each of whom testified Blair admitted he was the one
who shot Shane Hill. Unlike these other two witnesses, the district court
excluded Lewis’s testimony on the basis it was not materially different from
Blair’s testimony and was irrelevant. Lewis’s testimony was consistent with
Blair’s testimony with respect to who pulled the trigger—Moss—but varied from
Blair’s testimony in that Lewis would have testified Blair told her he helped aim
the gun for Moss. This was inconsistent with Blair’s testimony that he was in
another room when Moss fired the gun. The district court determined the issue
of what room Blair was in when the gun was fired was not material to the case
and Lewis’s testimony of who fired the gun was not inconsistent with Blair’s
testimony. Therefore, the court ruled Lewis’s testimony was not admissible for
impeachment purposes.
Moss claims his counsel in the direct appeal was ineffective for not raising
this issue and claims his PCR counsel should have made the claim at the PCR
proceeding that appellate counsel was ineffective. Both claims boil down to
whether the district court abused its discretion in excluding Lewis’s testimony. If
there was no abuse of discretion, appellate counsel cannot be found ineffective
for failing to raise the issue, and as a result, PCR counsel cannot be found
ineffective for not challenging appellate counsel’s effectiveness. See State v.
Halverson, 857 N.W.2d 632, 635 (Iowa 2015) (“Counsel, of course, does not
provide ineffective assistance if the underlying claim is meritless.”). 4
“[A] witness may be impeached by showing his testimony upon a material
matter is inconsistent with a prior statement made by him.” State v. Bishop, 387
N.W.2d 554, 559 (Iowa 1986). But, “[t]he subject of the inconsistent statement, if
it is to be admissible, must be material and not collateral to the facts of the case.”
State v. Fowler, 248 N.W.2d 511, 520 (Iowa 1976). We conclude the district
court did not abuse its discretion in excluding Lewis’s testimony by concluding
the inconsistent aspect of Blair’s statement to Lewis (where Blair was located
when Moss fired the gun) was not material to the case. Therefore, appellate
counsel was not ineffective in failing to raise this issue on direct appeal, and PCR
counsel was not ineffective in failing to challenge appellate counsel’s
effectiveness at the PCR hearing.
Moss also claims trial counsel and PCR counsel were ineffective in not
challenging the trial court’s failure to further instruct the jury when the jury asked
for insight or further definition on the aiding and abetting instruction. The jury
was instructed on aiding and abetting but asked the judge,
We are struggling [with] 1 thing. [1] It states that “mere knowledge of the crime is not enough to prove [‘]aiding and abetting[’].” Does this refer to knowledge of the crime before it happened? Does it need to be joined with proof that he encouraged or gave consent? Could you offer insight or further define aiding and abetting?
The judge responded, “You have inquired regarding the language in the
instruction relating to ‘aiding and abetting.’ The jury instructions embody the law
necessary for your deliberations. You are advised to review the instructions
previously given to you and continue your deliberations.” Moss’s trial counsel
and the State agreed the judge’s response was appropriate. On appeal in this 5
PCR action, Moss claims trial counsel was ineffective in not requesting the judge
further instruct the jury on aiding and abetting. He also claims his PCR counsel
was ineffective in not presenting this claim at the PCR trial. Again, the issue
boils down to whether the court properly responded to the jury’s question. If the
response was correct, trial counsel cannot be found ineffective at the criminal
trial, and thereby, PCR counsel cannot be found ineffective at the PCR hearing
for failing to challenge trial counsel’s effectiveness.
The jury’s question indicates it was confused as to the implication of the
timing of Moss’s knowledge of the commission of the crime. The original jury
instruction for aiding and abetting provided:
“Aid and abet” means to knowingly approve and agree to the commission of a crime, either by active participation in it or by knowingly advising or encouraging the act in some way before or when it is committed. Conduct following the crime may he considered only as it may tend to prove the Defendant’s earlier participation. Mere nearness to, or presence at, the scene of the crime, without more evidence, is not “aiding and abetting.” Likewise, mere knowledge of the crime is not enough to prove “aiding and abetting.”
(Emphasis added.) The jury instruction given clearly says mere knowledge of the
crime is not enough to prove aiding and abetting. In addition, the instruction
provides the approval, agreement, participation, advice, or encouragement must
come before or at the time the act is committed. We conclude the court did not
abuse its discretion in telling the jury to reread the instructions already given as
the instructions contained the answers to the jury’s questions. See Iowa R. Civ.
P. 1.925 (“While the jury is deliberating, the court may in its discretion further
instruct the jury, in the presence of or after notice to counsel.” (emphasis 6
added)). Because any objections by trial counsel would have been meritless,
any claim PCR counsel would have made against trial counsel’s actions would
likewise have been meritless. See State v. Brothern, 832 N.W.2d 187, 192 (Iowa
2013) (“We will not find counsel incompetent for failing to pursue a meritless
issue.”).
We affirm the district court’s denial of Moss’s PCR application.
AFFIRMED.