Carroll v. State

466 N.W.2d 269, 1990 Iowa App. LEXIS 488, 1990 WL 265751
CourtCourt of Appeals of Iowa
DecidedDecember 27, 1990
Docket89-1007
StatusPublished
Cited by4 cases

This text of 466 N.W.2d 269 (Carroll 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
Carroll v. State, 466 N.W.2d 269, 1990 Iowa App. LEXIS 488, 1990 WL 265751 (iowactapp 1990).

Opinion

PERKINS, Senior District Judge.

In 1986 Anthony Carroll was accused of threatening a police officer with a butcher knife. He was charged with the crime of going armed with intent. At his jury trial for that crime, witness Sandy LuGrain testified Carroll was intoxicated at the time of the crime but appeared to know what he was doing.

A jury found Carroll guilty of going armed with intent. After this verdict was rendered, but before the entry of judgment, witness LuGrain gave a statement recanting her opinion that Carroll had known what he was doing at the time of the crime. She now expressed the belief that Carroll had not known what he was doing. On the basis of this statement, Carroll moved for a new trial on the ground of newly discovered evidence. This motion was denied.

Carroll was then convicted and sentenced for the crime of going armed with intent. His conviction was affirmed by this court in January 1988. 423 N.W.2d 908. Carroll later filed the present application for post-conviction relief to challenge his conviction. The district court denied postconvietion relief, and Carroll has appealed.

Carroll contends witness LuGrain’s recantation statement constitutes newly discovered evidence entitling him to postcon-viction relief. He also contends his attorney in the earlier direct appeal rendered ineffective assistance by failing to raise an issue concerning the recantation in the direct appeal.

In addition, Carroll contends he is entitled to postconviction relief because the State was unable to produce the original records of his 1986 trial. The State responds that the reconstructed record was adequate to permit consideration of Carroll’s issues. We affirm.

Ordinarily, our review of postcon-viction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). 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. We will not disturb the trial court’s denial of postconviction relief if the trial court’s findings of fact in support of its judgment are supported by substantial evidence and are justified as a matter of law. Benton v. State, 199 N.W.2d 56, 57 (Iowa 1972).

We initially note in the present case Carroll failed to raise the issue of Lu-Grain’s recantation on direct appeal. Our courts have long held postconviction relief is not a means for relitigating claims that were or should have been properly presented on direct appeal. Washington v. Scurr, 304 N.W.2d 231, 234-35 (Iowa 1981). Any claim not properly raised at trial or on direct appeal may not therefore be litigated in postconviction unless there is sufficient reason for not properly raising it previously. Id.

Pursuant to the above authority, Carroll’s claim is waived unless he can prove by a preponderance of the evidence “sufficient reason” for not having raised the issue on direct appeal, and also actual prejudice resulting from the alleged error. Polly v. State, 355 N.W.2d 849, 856 (Iowa 1984). We have additionally determined the Polly standards apply even to those claims that are based on alleged newly discovered evidence, such as those in the present case. Frank v. State, 376 N.W.2d 637, 639 (Iowa App.1985).

Carroll makes reference to two occurrences which he contends constitute “sufficient reason” and actual prejudice. First, Carroll contends LuGrain’s recantation of her previous testimony was newly discovered evidence. In order for a post-conviction petitioner to prevail on a claim *272 of newly discovered evidence, the applicant must show:

(1) the evidence in question could not have been discovered before judgment in the exercise of due diligence; (2) the evidence is material to the issue and not merely cumulative or impeaching; and (3) its admission would likely change the result if a new trial were granted.

Brewer v. State, 444 N.W.2d 77, 80 (Iowa 1989), citing Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 32-33 (Iowa 1979).

We find Carroll has failed to satisfy the first prong of the test enunciated in Stanford. The record reveals Carroll was aware of LuGrain’s recantation testimony before the entry of judgment, and was known to him at the time of his direct appeal. The recantation was also a basis for Carroll’s new trial motion. Carroll may not now rely on this ground as a sufficient reason for failing to raise it on direct appeal.

Even assuming Carroll had timely raised the issue of LuGrain’s recantation, we find he would still fail under the theory of newly discovered evidence. At least four other witnesses testified at trial that Carroll was intoxicated on the night of the alleged crime. Robert Johnson testified he and Carroll drank over a case and a half of beer on the night in question. Johnson testified he believed Carroll knew what he was doing when he brandished the knife, since he had seen Carroll extremely intoxicated on more than one occasion and was familiar with Carroll’s character traits. LuGrain herself testified Carroll had consumed a great quantity of alcohol during the afternoon and evening in question, but she believed Carroll was cognizant of his actions. LuGrain testified concerning Carroll’s demeanor during the time period in question, and testified as to his statements made to her and Johnson. LuGrain’s recantation of her previous testimony is merely impeaching, and cumulative, considering Carroll had called witnesses on his behalf who testified he did not know what he was doing when he confronted the police and told them to shoot him.

Carroll, however, additionally claims his appellate counsel was ineffective in failing to raise the issue of newly discovered evidence on direct appeal. Ineffective assistance of counsel may satisfy the “sufficient reason” element of the test articulated in Polly. Lamphere v. State, 348 N.W.2d 212, 215 (Iowa 1984). In order to establish a claim of ineffective assistance of trial counsel, the applicant must show: (1) counsel’s performance was so deficient as not to be functioning as “counsel” guaranteed by the sixth amendment; and (2) the deficient performance so prejudiced the defense as to deprive the defendant of a fair trial. Kane v. State, 436 N.W.2d 624, 627 (Iowa 1989). A claim of ineffective assistance of appellate counsel follows an analogous standard. Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987).

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466 N.W.2d 269, 1990 Iowa App. LEXIS 488, 1990 WL 265751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-state-iowactapp-1990.