Damien Newsome, Applicant-Appellant v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: May 11, 2016
• Docket: 15-0253
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0253 Filed May 11, 2016

DAMIEN NEWSOME, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,

Judge.

A postconviction relief applicant appeals the district court’s denial of his

application. AFFIRMED.

Ryan Gravett of Oliver Gravett Law Firm, Windsor Heights, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ. 2

VOGEL, Judge.

Damien Newsome was convicted of possession with intent to deliver a

controlled substance. See State v. Newsome, No. 12-0686, 2013 WL 1749922,

at *1 (Iowa Ct. App. Apr. 24, 2013). After this court affirmed his conviction, he

filed an application for postconviction relief (PCR), asserting counsel was

ineffective in a number of respects. The district court denied Newsome’s PCR

application, and Newsome now appeals that denial claiming: (1) his trial counsel

provides ineffective assistance when counsel did not offer into evidence the

affidavit of another passenger in the vehicle, who claimed ownership of the drugs

at issue in an affidavit signed after Newsome’s arrest; (2) counsel was ineffective

when counsel advised him to waive a jury trial and proceed to a stipulated bench

trial; and (3) counsel was ineffective when counsel failed to object to the court’s

consideration of hearsay statements from a confidential informant at the bench

trial.

Upon our de novo review of the record, we agree with the district court’s

dismissal of Newsome’s PCR application. See Dempsey v. State, 860 N.W.2d

860, 868 (Iowa 2015) (noting the applicable standard of review). Even if the

affidavit had been offered and not excluded on hearsay grounds, the court found

the result of the trial would have been the same. The court further concluded,

with regard to the jury-trial waiver, the evidence against Newsome was strong

and there was a considerable sentencing concession offered to Newsome to

agree to a stipulated bench trial. We agree with the district court’s assessment of

both of these claims. 3

Newsome’s final claim regarding the alleged hearsay was already

presented to, and rejected by, this court on direct appeal. See Newsome, 2013

WL 1749922, at *7-8 (noting none of the statements made by the confidential

informant were hearsay because the statements were not used for the truth of

the matter asserted; instead the statements “were used to show why the officers

conducted the stop of the vehicle”). Because this issue has already been raised

and resolved, Newsome is precluded from asserting it again on appeal from the

dismissal of his PCR application. See Iowa Code § 822.8 (2013); see also

Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009). To the extent

Newsome claims his confrontation rights were violated by his inability to cross-

examine this confidential informant by following counsel’s recommendation to

agree to a stipulated bench trial, we agree with the district court’s assessment

that Newsome cannot prove prejudiced because Newsome failed to show “what

would have been gained by cross-examin[ation] . . ., []or that it would have

changed the outcome of the trial.”

We affirm the district court’s denial of Newsome’s PCR application

pursuant to Iowa Court Rule 21.26(1)(d) and (e).

AFFIRMED.