Blair v. State

492 N.W.2d 220, 1992 Iowa App. LEXIS 249, 1992 WL 322265
CourtCourt of Appeals of Iowa
DecidedAugust 27, 1992
DocketNo. 90-1877
StatusPublished
Cited by3 cases

This text of 492 N.W.2d 220 (Blair v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blair v. State, 492 N.W.2d 220, 1992 Iowa App. LEXIS 249, 1992 WL 322265 (iowactapp 1992).

Opinion

HABHAB, Judge.

FACTS

The defendant, James Blair, is currently serving a life sentence after his conviction for first-degree murder and theft. His conviction was affirmed by the Iowa Supreme Court in State v. Blair, 347 N.W.2d 416 (Iowa 1984). On September 25, 1984, Blair filed an application for postconviction relief alleging his trial counsel had been ineffective in failing to challenge the jury panel and to adequately investigate and locate witnesses who could have aided in his defense. Blair also raised additional issues: (1) absence of opportunity to confer with his codefendant or to coordinate defense efforts; (2) failure of the evidence to establish his presence at the scene of the homicide; (3) erroneous jury instructions; (4) erroneous admission of hearsay; (5) the cumulative effect of all error; and (6) the failure of the State to allege a specific time or date of the homicide.

The district court held trial counsel was not ineffective for failing to challenge the jury selection process. The district court also determined trial counsel made an adequate search for witnesses who could have helped the defense. The district court, however, refused to rule on the other issues raised after finding Blair had presented no good reason why these issues had not been previously raised on appeal. Blair has appealed. We affirm.

We note at the inception the defendant did not object to the composition of the jury at any time prior to the finding of his guilt of first-degree murder for the February 13, 1982, killing of Aaron Gools-by i It is clear under present case law that a defendant’s failure to object to the jury panel in accord with rule 17(3) (statutory challenges to the jury panel must be made before being sworn) waives consideration on appeal of the issue whether the method of selecting jurors violated the requirements of Iowa Code section 607A.22. State v. Johnson, 476 N.W.2d 330 (Iowa 1991). Likewise, a defendant’s failure to object to the composition of the jury panel until a motion in arrest of judgment or for new trial also waives consideration of a constitutional challenge. Id. at 333.

The case of State v. Johnson explains our supreme court’s reasoning in this area:

Here, defendant [Johnson] did not object to the composition of the jury panel until his post-verdict motion in arrest of judgment or for new trial. The timing of this objection cannot be said to have been raised “at the earliest opportunity” after the grounds therefore became apparent, [citation omitted] Defendant had ample opportunity to view the jury panel during the jury selection process, but failed to object to it during this time or even during trial. Defendant cannot now urge a ground for reversal in his post-verdict motion not urged during trial, [citations omitted]
For us to hold otherwise would ignore one of the purposes of the preservation [222]*222requirement, which is to give notice to the court and opposing counsel. State v. Tobin, 333 N.W.2d 842, 844 (Iowa 1983). Making objections at the earliest possible opportunity gives a trial court the opportunity to take any necessary corrective action at a time when correction is still possible. [State v.] Gibb, 303 N.W.2d [673] at 680 [Iowa 1981],
A post-verdict motion challenging the jury panel simply comes too late to comply with the policies behind the preservation requirement. At the time of defendant’s motion, the only corrective action the trial court could have taken would have been to sustain the motion for new trial and conduct a second trial in front of a second jury. To avoid such a waste of judicial resources at that stage, it was incumbent upon defendant to lodge his objection at the earliest possible opportunity. Indeed, we will not allow defendant to “gamble on the verdict and then complain.” State v. Thompson, 326 N.W.2d 335, 338 (Iowa 1982).

Id. at 334.

However, although postconviction proceedings are inappropriate for the presentation of issues which have not been properly preserved, Washington v. Scurr, 304 N.W.2d 231, 234-35 (Iowa 1981), ineffectiveness of counsel is sufficient reason for not having raised the issues earlier. Lamphere v. State, 348 N.W.2d 212, 215 (Iowa 1984). We turn, then, to the ineffectiveness claims.

SCOPE OF REVIEW

Ordinarily, our review of postconviction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980) (citation omitted). However, when a postconviction petitioner asserts violation of constitutional safeguards — such as ineffective assistance of counsel — we make our own evaluation based on the totality of the circumstances. This is the equivalent of de novo review. Id. (citations omitted).

In order to prevail on such a claim, appellant must show by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted. See Edman v. State, 444 N.W.2d 99, 101 (Iowa App.1989); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987). In evaluating counsel’s performance, we presume that counsel acted competently. See Risdal, 404 N.W.2d at 131.

Established principles govern our review of defendant’s sixth amendment claim that trial counsel was ineffective. Our ultimate concern is with “the fundamental fairness of the proceeding whose result is being challenged.” Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984). Ineffective assistance is measured by whether “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93; see Schertz v. State, 380 N.W.2d 404, 408 (Iowa 1985). “Reasonableness under prevailing professional norms” is the standard by which we measure counsel’s performance. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

I. Jury Selection Process.

Blair first argues trial counsel was ineffective in failing to challenge the jury selection process. Blair is black. He maintains blacks had been systematically excluded from the jury process and that this procedure was violative of the sixth amendment. At Blair’s trial, only one black person was drawn for possible service on the jury. This potential jurywoman was excused at her own request because she told the court jury service would “work a hardship” on her.

As noted, this matter comes to us by way of Blair’s petition for postconviction relief. Following an evidentiary hearing, the trial court denied Blair’s petition.

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492 N.W.2d 220, 1992 Iowa App. LEXIS 249, 1992 WL 322265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blair-v-state-iowactapp-1992.