Chad Enderle, Applicant-Appellant v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: March 12, 2014
• Docket: 3-960 / 12-1635
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 3-960 / 12-1635 Filed March 12, 2014

CHAD ENDERLE, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,

Judge.

Chad Enderle appeals the denial of his application for postconviction

relief. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Dennis D. Hendickson,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Thomas H. Miller, Assistant Attorney

General, and Michael J. Walton, County Attorney, for appellee.

Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.

Tabor, J., takes no part. 2

VAITHESWARAN, J.

Chad Enderle appeals the denial of his application for postconviction

relief.

I. Background Facts and Proceedings

Gregory Harris was found dead in Davenport, Iowa. The State charged

Enderle with first-degree murder and willful injury, and the case proceeded to

trial.

On the murder count, the jury was instructed that the State would have to

prove Enderle either: “(a) acted willfully, deliberately, premeditatedly and with a

specific intent to kill Gregory L. Harris; or (b) was participating in the offense of

Willful Injury resulting in serious injury to Gregory L. Harris.” The second

alternative has come to be known as the felony-murder rule. See State v.

Heemstra, 721 N.W.2d 549, 552 (Iowa 2006).

A jury found Enderle guilty as charged, and Enderle appealed. While his

appeal was pending, the Iowa Supreme Court overruled existing precedent

relating to the felony-murder rule. Id. at 558. The supreme court held “if the act

causing willful injury is the same act that causes the victim’s death, the former is

merged into the murder and therefore cannot serve as the predicate felony for

felony-murder purposes.” Id. The court reversed and remanded for a new trial.

Id. at 563.

The court proceeded to address whether this holding would be applied

retroactively. The court stated, “The rule of law announced in this case regarding

the use of willful injury as a predicate felony for felony-murder purposes shall be 3

applicable only to the present case and those cases not finally resolved on direct

appeal in which the issue has been raised in the district court.” Id. at 558.

After Heemstra was filed, Enderle sought to amend his appellate brief to

include the successful merger argument. The court denied his request. Later,

the court affirmed his judgment and sentence. See State v. Enderle, 745 N.W.2d

438, 443 (Iowa 2007).

Enderle applied for postconviction relief. The district court held a hearing

and denied the application in its entirety. Enderle appealed, raising several

issues and sub-issues.

II. Merger of Wilful Injury Count—Retroactive Application of Heemstra

Relying on Heemstra, Enderle contends his willful injury conviction should

have merged with the murder conviction. He raises the issue in a number of

ways, which we will now parse.

First, Enderle contends we should independently revisit and expand the

limited retroactivity rule announced in Heemstra. In his view, Heemstra should

apply to his case because his appeal was pending when Heemstra was decided.

Heemstra’s retroactivity rule was clear: the court’s substantive holding

would apply retroactively to cases pending on appeal only if the merger issue

was “raised in the district court.” Heemstra, 721 N.W.2d at 558. It is not our

prerogative to overrule this directive. See State v. Eichler, 83 N.W.2d 576, 578

(Iowa 1957) (“If our previous holdings are to be overruled, we should ordinarily

prefer to do it ourselves.”). 4

Second, Enderle argues his trial attorney was ineffective in failing to

foresee the substantive holding of Heemstra and object to the jury instruction on

that ground. To prevail, Enderle must establish (1) counsel breached an

essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S.

668, 687 (1984).

Enderle’s ineffective-assistance claim fails on the breach prong because

Heemstra announced a change in the law, and it is established that counsel has

no obligation to anticipate changes in the law. See Heemstra, 721 N.W.2d at

558 (overruling State v. Beeman, 315 N.W.2d 770 (Iowa 1982) and its progeny);

see also Goosman v. State, 764 N.W.2d 539, 545 (Iowa 2009) (noting that the

ruling in Heemstra was clearly a change in the law and not merely a clarification);

Snethen v. State, 308 N.W.2d 11, 16 (Iowa 1981) (“Counsel need not be a

crystal gazer; it is not necessary to know what the law will become in the future to

provide effective assistance of counsel.”).

We acknowledge an apparent disconnect between our conclusion that

counsel was not obligated to preserve error and Heemstra’s retroactivity rule,

which requires an attorney to have raised the Heemstra issue in the district court

to benefit from Heemstra’s holding on appeal. But, in deciding an ineffective-

assistance claim, our focus is not on counsel’s ability to predict the outcome of a

case. See Morgan v. State, 469 N.W.2d 419, 427 (Iowa 1991). The focus is on

whether a reasonably competent attorney would have raised the issue.

Enderle’s trial attorney cogently testified that, at the time of Enderle’s trial,

“[w]illful injury was still a valid predicate felony for the felony murder rule.” He

pointed out the rule had been extant since 1982 and there “was nothing that [he] 5

found from [his] endeavors both looking at the law and discussing the issues with

some of the attorneys that” would indicate the rule should be challenged. It is

true Enderle would have benefited from Heemstra had his trial attorney raised

the issue. The same was true in Morgan, yet the Iowa Supreme Court did not

hold the attorney “to a duty of clairvoyance.” Id. at 427. We also decline to do

so.

Our conclusion that counsel did not breach an essential duty in failing to

raise the Heemstra issue makes it unnecessary to address the State’s alternate

argument that Heemstra does not apply to the facts of Enderle’s case. See State

v. Tribble, 790 N.W.2d 121, 129 (Iowa 2010) (finding felony-murder statute

applicable “when two independent acts both contribute to the death of the

victim”). We also note the State did not raise this argument in the district court.

See Nguyen v. State, 829 N.W.2d 183, 187 (Iowa 2013) (declining to reach

State’s arguments that were raised for the first time on appeal).

Enderle’s third and final argument relating to Heemstra rests on several

constitutional provisions. He asserts that retroactive application of Heemstra is

mandated by the federal and state due process and equal protection clauses and

the Iowa Constitution’s separation of powers clause. The State counters that

only his claim under the federal Due Process Clause was preserved for our

review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a

fundamental doctrine of appellate review that issues must ordinarily be both

raised and decided by the district court before we will decide them on appeal.”).

We disagree with the State. 6

Enderle raised a challenge based on his due process “rights” and the

district court ruled on his state and federal due process claims, stating, “Mr.

Enderle’s state and federal due process rights were not prejudiced by the

limitations on the retroactivity of Heemstra.” As for Enderle’s equal protection

claims, his postconviction brief asserted, “under Iowa’s Equal Protection Clause,

distinctions between classes of person must have some rational basis” and he

was “entitled to due process and equal protections afforded under the Iowa and

U.S. Constitutions and invoked in Griffith.” See Griffith v. Kentucky, 479 U.S.

314, 323 (1987) (“[S]elective application of new rules violates the principle of

treating similarly situated defendants the same.”). The district court

acknowledged Enderle’s argument that Iowa courts have “unconstitutionally

made a distinction between defendants whose case was still on direct appeal

whose counsel raised the felony-murder issue and those whose case was still on

direct appeal and whose counsel did not raise such an issue in the court below.”

While the court did not cite the equal protection clauses in addressing this

argument, the court’s discussion implicates those clauses. Accordingly, we

conclude Enderle’s challenges under the state due process clause and the

federal and state equal protection clauses were preserved.

Remaining is Enderle’s assertion that Heemstra’s limited retroactivity

violates the separation of powers clause of article III, section 1 of the Iowa

Constitution. This issue was neither raised by Enderle’s postconviction attorney

nor decided by the postconviction court. See Goosman, 764 N.W.2d at 545

(concluding a postconviction applicant did not raise equal protection or

separation of powers arguments in his application for postconviction relief, the 7

district court did not rule on these issues, and as a result, these issues could not

“be raised for the first time on appeal”). Acknowledging the absence of a record

on this sub-issue, Enderle argues we should review it under an ineffective-

assistance-of-postconviction-counsel rubric. We agree with Enderle that this

exception to the error-preservation rule permits review of the issue. See State v.

Brothern, 832 N.W.2d 187, 191 (Iowa 2013) (“Ineffective assistance of counsel is

an exception to the traditional error preservation rules.”). We proceed to the

merits of the constitutional claims.

We begin with Enderle’s federal due process claim. That claim was

resolved in Goosman. There, the Iowa Supreme Court was asked to decide

whether federal due process required retroactive application of Heemstra to

postconviction relief proceedings. Id. The court read federal precedent to

require that, “where a court announces a ‘change’ in substantive law which does

not clarify existing law but overrules prior authoritative precedent on the same

substantive issue, federal due process does not require retroactive application of

the decision.” The court concluded “the limitation of retroactivity announced in

Heemstra to cases on direct appeal where the issue has been preserved did not

violate federal due process.” Id. at 545. This holding is controlling. Based on

Goosman, we conclude federal due process does not require retroactive

application of Heemstra to Enderle’s case.

We turn to Enderle’s state due process claim. Enderle argues “the Iowa

Constitution’s due process protection requires more than the federal

constitution.” He asserts “[f]undamental fairness strongly cries out for a new trial

because Enderle is denied due process solely because he fell through the cracks 8

of the timing belt of Heemstra, a fall beyond his control despite efforts to correct

in the appellate process of the criminal case.”

The Iowa Supreme Court “has generally deemed the federal and state due

process clauses to be ‘identical in scope, import, and purpose.’” State v. Nail,

743 N.W.2d 535, 539 (Iowa 2007) (citations omitted). Enderle does not suggest

a different approach under the state due process provision than the Goosman

court used to analyze the federal due process claim. Accordingly, we will treat

the state due process claim as identical. See id. Applying the Goosman analysis

to that claim, we conclude the state constitution’s due process clause does not

mandate retroactive application of Heemstra’s substantive holding to Enderle’s

case.

We next consider Heemstra’s federal and state equal protection claims.

Enderle contends “the court’s decision to not apply the Heemstra case

retroactively is an unreasonable classification which violates the equal protection

provisions of the Fourteenth Amendment of the United States Constitution and

Article One Section Six of the Iowa Constitution.” This court was not persuaded

by similar arguments in Langdeaux v. State, No. 10-1625, 2012 WL 1439077, at

*7 (Iowa Ct. App. Apr. 25, 2012), Dixon v. State, No. 10-1691, 2011 WL

5867929, at *2–3 (Iowa Ct. App. Nov. 23, 2011) and Herrarte v. State, No. 08-

1295, 2011 WL 768763, at *2 (Iowa Ct. App. Mar. 7, 2011). Enderle’s argument

is equally unpersuasive.

Enderle’s classification is premised on those who preserved error and

those who did not. He cites no authority holding that denial of retroactive

application to those who fail to preserve error violates the equal protection 9

clauses of the federal and state constitutions. Indeed, in Griffith, 479 U.S. at

317–18, the primary opinion on which he relies, defense counsel raised the issue

that became the subject of a subsequent Supreme Court opinion. See also

United States v. Curbelo, 726 F.3d 1260, 1266–67 (11th Cir. 2013) (“Griffith does

not allow Defendant to get around our usual rule that failing to file a suppression

motion waives Fourth Amendment claims, even claims based on a new ruling

from the Supreme Court.”). The same is true of the Iowa Supreme Court opinion

Enderle invokes, State v. Royer, 436 N.W.2d 637, 641 (Iowa 1989). There,

defense counsel submitted a proposed jury instruction that, if given, would have

comported with the Iowa Supreme Court’s holding in a subsequent opinion.

Royer, 436 N.W.2d at 641; see also Everett v. Brewer, 215 N.W.2d 244,

248 (Iowa 1974) (“We believe there is a rational basis for classifying appellants in

accordance with whether their claim previously has been fully considered and

adjudicated. Defendant’s claim he was denied equal protection of the laws is

without merit.”). We conclude Enderle’s attempted classification based on direct

appeals that preserved the Heemstra issue and direct appeals that did not fails to

trigger the protections of the equal protection clauses.

We are left with Enderle’s claim that the separation of powers clause of

the Iowa Constitution demands retroactive application of Heemstra. As noted,

this issue was not preserved for review, requiring us to review it under an

ineffective-assistance-of-postconviction-counsel rubric.

The constitutional doctrine of separation of powers is violated “if one

branch of government purports to use powers that are clearly forbidden, or

attempts to use powers granted by the constitution to another branch.” State v. 10

Phillips, 610 N.W.2d 840, 842 (Iowa 2000). Enderle has not explained how the

Iowa Supreme Court’s decision to limit retroactive application of Heemstra

encroached upon the powers granted to another branch of government.

That said, we acknowledge certain language in Heemstra at least

superficially lends support to Enderle’s argument. In particular, the court cited

the State’s argument that policy considerations for abandoning the felony-murder

rule were rejected by the Iowa legislature and the court was not free to invoke

those considerations, however valid they might be. Heemstra, 721 N.W.2d at

557. However, the court rejected the argument, stating “[t]he legislature has

never considered the issue of whether, when the act causing willful injury is the

same as that causing death, the two acts should be merged.” Id. The court went

on to state, “[W]e should not attribute to the legislature an intent to ‘create[ ] an

ever-expanding felony murder rule’ by characterizing every willful injury as a

forcible felony for felony-murder purposes.” Id. at 558 (citing 4 Robert R. Rigg,

Iowa Practice Criminal Law (I) § 3:16 (2006)). In sum, the court did not see its

holding as an encroachment on legislative powers but as an effort to limit its

broader interpretations of legislative intent. Because the Heemstra court

effectively rejected Enderle’s separation of powers argument, we conclude

postconviction counsel did not breach an essential duty in failing to raise a

separation of powers claim. We also note that this court rejected an identical

argument in Langdeaux, 2012 WL 1439077, at *7. We are persuaded by the

reasoning of that opinion. 11

In sum, we conclude the federal and state constitutional provisions cited

by Enderle do not mandate retroactive application of the substantive holding of

Heemstra.

We turn our attention to several arguments Enderle raised in a pro se filing

which, contrary to the State’s assertion, were timely.

III. Jury Instruction on Willful Injury

Enderle contends the district court erroneously instructed the jury on willful

injury. His trial attorney did not object to the instruction at trial. Accordingly, he

raised the issue at the postconviction hearing under an ineffective-assistance-of-

counsel rubric. On appeal, Enderle does not reiterate that the issue is being

raised as an ineffective-assistance-of-counsel claim. We will assume without

deciding that he intended to do so.

In State v. Schuler, the court held that a uniform jury instruction on willful

injury requiring the State to prove a defendant “sustained” a serious injury was an

incorrect statement of the law because the statute referred to an act “which is

intended to cause serious injury to another . . .” and a person who “causes

serious injury to another.” 774 N.W.2d 294, 298–99 (Iowa 2009) (quoting Iowa

Code § 708.4(1) (2005)).

The willful injury instruction given in Enderle’s case was virtually identical

to the instruction subsequently disapproved in Schuler. However, Schuler was

not decided until long after Enderle’s appeal became final. Additionally, the

Enderle instruction was based on a uniform jury instruction, which courts

reluctantly disapprove. See State v. Weaver, 405 N.W.2d 852, 855 (Iowa 1987).

Under these circumstances, we conclude Enderle’s attorney did not breach an 12

essential duty in failing to predict this ground for objection. See State v.

Hepperle, 530 N.W.2d 735, 740 (Iowa 1995).

IV. “Duplicitous” Charges

Enderle contends his trial attorney was ineffective in failing to object to

what he characterizes as a “duplicitous” trial information in which he was charged

with one count of first-degree murder under two alternatives. He argues:

The trial information charged him with section 707.2(1) as well as 707.2(2). By charging two distinct acts, the State was allowed to propose to the jury two different findings upon which to rest its verdict, but did not require the finding of unanimity as required under Iowa law, Federal law, and the U.S. Constitution.

The Iowa Supreme Court rejected this proposition in State v. Sharpe, 304

N.W.2d 220, 222–23 (Iowa 1981), reaffirming the propriety of amending a charge

of first-degree murder to allege a different means of committing the crime. See

also State v. Fuhrmann, 257 N.W.2d 619, 624 (Iowa 1977) (noting that “[f]irst-

degree murder may be committed in several ways” and holding under a prior

version of the statute, that it was permissible to amend trial information charging

first-degree murder to add a different alternative). If it is permissible to amend a

trial information to add an alternate means of committing first-degree murder, it is

permissible to include more than one alternative in the original trial information.

Enderle also contends reversal is mandated because “the jury rendered a

general verdict of guilt,” and the general verdict “does not reveal the basis [f]or a

guilty verdict.” See Heemstra, 721 N.W.2d at 558 (“When a general verdict does

not reveal the basis for a guilty verdict, reversal is required.”); see also State v.

Martens, 569 N.W.2d 482, 485 (Iowa 1997) (“[T]he validity of a verdict based on

facts legally supporting one theory for conviction of a defendant does not negate 13

the possibility of a wrongful conviction of a defendant under a theory containing

legal error.”).

Although Enderle received a general verdict, both alternatives found

support in the law and the evidence at the time of the jury’s finding of guilt. See

Enderle, 745 N.W.2d at 443. For this reason, we find Enderle’s argument

unpersuasive. We affirm the district court’s denial of Enderle’s “duplicitous” trial

information argument.

V. Defective Trial Information—Willful Injury

Enderle next argues, “The trial information in Defendant’s case does not

allege any facts or elements as to Willful Injury in Count II. It simply parrots the

language of the statute without charging the elements of Willful Injury.” He raises

the issue under an ineffective-assistance-of-counsel rubric.

A defendant only needs to be “alert[ed] . . . generally to the source and

nature of the evidence against him.” See State v. Dalton, 674 N.W.2d 111, 120

(Iowa 2004) (quotation marks and citation omitted); State v. Grice, 515 N.W.2d

20, 22 (Iowa 1994) (“Generally an information need not detail the manner in

which the offense was committed.”). The trial information comported with this

rule. Accordingly, we conclude Enderle’s trial attorney did not breach an

essential duty in failing to object to the trial information on this basis.

VI. Suppression of Exculpatory Evidence

Enderle next contends the State suppressed exculpatory evidence, in

violation of Brady v. Maryland, 373 U.S. 83 (1963). In his view, the State was

aware that a partial palm print found on a walking stick alleged to have been one

of the murder weapons did not match his print. He asserts this information 14

should have been disclosed prior to trial. Because Enderle’s trial and direct

appeal attorneys did not raise the issue, Enderle raised the issue at

postconviction under an ineffective-assistance-of-counsel rubric. We will review

the issue in that context.

To establish a Brady violation, the defendant must prove by a

preponderance of the evidence that: “(1) the prosecution suppressed evidence;

(2) the evidence was favorable to the defendant; and (3) the evidence was

material to the issue of guilt.” Harrington v. State, 659 N.W.2d 509, 516 (Iowa

2003) (quotation marks and citation omitted).

Enderle did not establish the first element. He conceded a department of

criminal investigation criminalist disclosed the existence of the palm print during

trial. His attorney cross-examined the criminalist about the palm print and elicited

an admission that the palm print was compared to Enderle’s print and the result

was “[n]egative.” His attorney also cross-examined a police lieutenant about the

palm print and again established that the palm print was not made by Enderle but

by a person unknown to the lieutenant. Because Enderle was able to make use

of the evidence before the jury found guilt, we conclude the evidence was not

suppressed. See State v. Bishop, 387 N.W.2d 554, 559 (Iowa 1986) (stating the

exculpatory evidence “was before the jury when they made their decision” and

“[w]here, as here, the evidence was disclosed during trial and at a meaningful

time, due process has not been denied”); see also State v. Veal, 564 N.W.2d

797, 810 (Iowa 1997) (“Evidence is not considered ‘suppressed’ if the defense is

able to take advantage of it at trial.”), overruled on other grounds by State v.

Hallum, 585 N.W.2d 249 (Iowa 1998). Accordingly, trial and appellate counsel 15

did not breach an essential duty in failing to argue that the evidence was

suppressed.

VII. Failure to Call Witnesses

Enderle asserts his trial attorney was ineffective in failing to call two

witnesses—Tammy McNeal and Don Lawless—who, in his view, would have

testified that another individual expressed an intent to kill Harris.

“Claims of ineffective assistance involving tactical or strategic decisions of

counsel must be examined in light of all the circumstances to ascertain whether

the actions were a product of tactics or inattention to the responsibilities of an

attorney.” State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (quotation marks

and citation omitted). Enderle’s trial attorney expressed concern about calling

McNeal as a witness because of “just how she came across.” In his view, “She

didn’t come across well.” As for Lawson, the attorney was not sure if they could

find the witness. Additionally, he explained that Lawson might open the door to

testimony about drugs being exchanged for sex, which the defense hoped to

avoid.

We conclude the attorney made a strategic decision not to call these

witnesses. Therefore, Enderle’s ineffective-assistance-of-counsel claim fails.

VIII. Bloody Fingerprints

Enderle next argues his trial attorney was ineffective in failing to challenge

what he describes as “inflammatory references” to bloody finger prints on a

cigarette box found at the crime scene. He specifically refers to the testimony of

a police officer who was asked if a fingerprint was “clear enough just in the blood

that it wasn’t necessary to enhance it further” and who responded, “Yes, sir.” 16

The officer was then asked, “So, in fact, the blood actually was like the agent that

brought out the print?” The officer responded, “In essence, when you fingerprint

somebody, you use ink as a medium, and you roll that print on paper. In this

case, instead of ink, the print was left with the blood on the finger on the item.”

No objections were made to this line of questioning. Counsel did object when the

officer was asked what material the fingerprint was made with. After additional

foundation was laid, the officer was allowed to testify that, in his opinion, “it

appears that the medium that the fingerprint was made with would be blood.”

Another officer also testified that there was blood spatter across the cigarette

package. The State did not test the substance that captured the fingerprint.

At the postconviction relief hearing, Enderle’s trial attorney said he used

the State’s failure to test the substance to advance his theory that the State

conducted an incomplete investigation. While he acknowledged he could have

objected “earlier and more often” to the officers’ opinions that the substance was

blood, he testified he believed he accomplished his goal of disparaging the

investigation with the objections he did make and with his closing argument.

We conclude Enderle’s trial attorney did not breach an essential duty in

failing to object more vigorously to the testimony of blood on the cigarette

package.

IX. Fingerprint Identification

Enderle next asserts counsel was ineffective in failing to challenge the

State’s fingerprint identification evidence. He suggests his attorney should have

done more to discredit the State’s fingerprint expert. 17

Enderle’s attorney retained a fingerprint expert but did not call him as a

witness at trial. In lieu of retaining a trial expert, he vigorously cross-examined

the police lieutenant and others about the fingerprint evidence. While Enderle

hired a fingerprint expert at the postconviction relief hearing who opined to flaws

in the State’s analysis, the State severely impeached this testimony. We

conclude Enderle’s trial attorney did not breach an essential duty by declining to

call a fingerprint expert at trial.

X. Newly-Discovered Evidence

Finally, Enderle contends he is entitled to a new trial based on articles and

reports that question the validity of fingerprint evidence. His main focus is on a

2009 report released by the National Research Council, identifying several areas

of forensic science in need of improvement, including fingerprint analysis.

Committee on Identifying the Needs of the Forensic Science Community et al.,

National Research Council of the National Academies, Strengthening Forensic

Science in the United States: A Path Forward (2009). Enderle contends this

report constitutes “newly-discovered evidence.”

Iowa Code section 822.2(d) (2009) permits a new trial if “[t]here exists

evidence of material facts, not previously presented and heard, that requires

vacation of the conviction or sentence in the interest of justice.” In order to

pursue a successful claim based on newly-discovered evidence, the applicant

must show:

(1) that the evidence was discovered after the verdict; (2) that it could not have been discovered earlier in the exercise of due diligence; (3) that the evidence is material to the issues in the case and not merely cumulative or impeaching; and (4) that the evidence probably would have changed the result of the trial. 18

Harrington, 659 N.W.2d at 516 (quotation marks and citation omitted). We

question whether the article is “evidence” within the meaning of the rule.

Assuming it is, Enderle admits similar articles appeared well before his trial. His

concession is dispositive of the issue. We conclude the report Enderle cites is

not newly-discovered evidence entitling him to a new trial.

We affirm the denial of Enderle’s postconviction relief application.

AFFIRMED.