IN THE COURT OF APPEALS OF IOWA
No. 13-0022 Filed March 26, 2014
JAMES DAVID SOURWINE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Thomas G.
Reidel, Judge.
James David Sourwine appeals the denial of his application for
postconviction relief. AFFIRMED.
Curtis Dial of the Law Office of Curtis Dial, Keokuk, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and Amy Beavers, Assistant
County Attorney, for appellee State.
Considered by Doyle, P.J., Bower, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
EISENHAUER, S.J.
James David Sourwine appeals the denial of his application for
postconviction relief (PCR). He contends his trial counsel was ineffective in
several regards. He also contends the prosecutor engaged in misconduct. We
conclude Sourwine has failed to establish his claims. Accordingly, we affirm.
I. Backgrounds Facts and Proceedings.
On April 28, 2006, two men entered the Style By Design salon in
Burlington and demanded money. One of the men, who wore a mask and latex
gloves, brandished a gun. The salon owner retrieved $153 from the cash
register and handed it to the men at gunpoint. They fled the salon and left the
scene in a red or maroon car.
Travis Neff was driving home at the time of the robbery when two men ran
in front of his vehicle before getting into a maroon Buick. Neff recognized them
as Sourwine and Steven Lovell, two men he had known for several years. He
reported what he had seen to Crime Stoppers. Lovell admitted to police that he
was involved in the robbery and identified Sourwine as his accomplice.
During their investigation, police found a mask and a pair of rubber gloves
two blocks from the salon. Testing revealed DNA on both the mask and gloves
matched Sourwine’s profile. The probability of an unrelated person having the
same DNA profile was less than one in one billion.
Sourwine was tried before a jury and convicted of first-degree burglary.
His conviction was affirmed on direct appeal. State v. Sourwin, No. 06-2019,
2007 WL 4197301, at *3 (Iowa Ct. App. 2007). This court preserved Sourwine’s
claims of ineffective assistance of counsel for possible PCR proceedings. Id. 3
On July 23, 2009, Sourwine filed a pro se application for PCR. An
amended application was filed June 3, 2012. A second amended application
was filed July 18, 2012. On December 28, 2012, following a trial, the district
court entered its order denying the application. Sourwine appeals.
II. Scope of Review.
We review the denial of an application for PCR for correction of errors at
law. Lowery v. State, 822 N.W.2d 739, 741 (Iowa 2012). But where an applicant
asserts a constitutional claim as the basis for PCR, our review is de novo.
Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).
III. Ineffective Assistance of Counsel.
To succeed on a claim of ineffective assistance of counsel, a defendant
must establish by a preponderance of the evidence counsel breached a duty and
prejudice resulted. State v. Brothern, 823 N.W.2d 187, 192 (Iowa 2013). A
breach of duty occurs where an attorney’s performance falls below the standard
of a “reasonably competent attorney.” Id. Prejudice is shown if there is a
reasonably probability that the result of the proceeding would have been different
if counsel had performed competently. Id. To demonstrate prejudice for
ineffective-assistance purposes, Sourwine must show “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). We
note the overwhelming evidence of Sourwine’s involvement in the crime as we
start our analysis.
Sourwine first asserts his trial counsel was ineffective in failing to impeach
Neff with his simple misdemeanor conviction of making a false report. 4
Sourwine’s trial counsel erroneously believed this conviction was inadmissible,
establishing the first prong of the ineffective-assistance test. However, Sourwine
is unable to show he was prejudiced by counsel’s breach given the
circumstances under which the false report was made (arising from a dispute
with a girlfriend), the relative severity of the crime (a simple misdemeanor with a
small fine), and the evidence to corroborate Neff’s testimony with respect to the
present case. Therefore, his claim fails.
Sourwine next argues trial counsel was ineffective in failing to file a motion
in limine or object to Neff’s testimony regarding his criminal background. His
argument centers on a conversation Neff had with his cousin after seeing
Sourwine and Lovell run past. Specifically, Neff testified: “We were wondering if
they robbed somebody or what was going on, because we know that— . . . We
know that they’d been at some things like that before, or I don’t know exactly?”
Although counsel was unable to recall specifically why he failed to object to this
testimony, he indicated he believes that objecting can accentuate certain
testimony. Because counsel’s choice was reasonable trial strategy, see Everett
v. State, 789 N.W.2d 151, 158 (Iowa 2010), trial counsel did not breach an
essential duty. Counsel’s failure to file a motion in limine did not rise to the level
of a breach of duty because the record does not disclose Neff made any mention
of knowing about Sourwine’s criminal history before testifying at trial. We further
conclude any breach was not prejudicial given the vague, hedged nature of
Neff’s statement and the overall evidence of Sourwine’s guilt. Sourwine has not
proved counsel was ineffective. 5
We then turn to Sourwine’s claim counsel was ineffective for failing to
investigate a State witness’s criminal history and use the information to impeach
her testimony. Amanda Carruthers testified Sourwine asked her to lie regarding
his whereabouts at the time of the robbery. Carruthers appeared in court in
prison garb and admitted she was serving a prison sentence on a second-degree
theft conviction. Carruthers, who also has four simple misdemeanor theft
convictions, was then asked whether she has been convicted of “any other felony
or theft crime” and answered, “No.” We concur with the district court that
although this answer was inaccurate, Carruthers was asked a confusing,
compound question and likely would have clarified her answer with further
examination, rather than being impeached. Regardless, Sourwine is unable to
show prejudice when Carruthers admitted she was serving a prison sentence on
her conviction for felony theft, and his claim fails.
Finally, Sourwine claims trial and appellate counsel were ineffective in
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IN THE COURT OF APPEALS OF IOWA
No. 13-0022 Filed March 26, 2014
JAMES DAVID SOURWINE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Thomas G.
Reidel, Judge.
James David Sourwine appeals the denial of his application for
postconviction relief. AFFIRMED.
Curtis Dial of the Law Office of Curtis Dial, Keokuk, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and Amy Beavers, Assistant
County Attorney, for appellee State.
Considered by Doyle, P.J., Bower, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
EISENHAUER, S.J.
James David Sourwine appeals the denial of his application for
postconviction relief (PCR). He contends his trial counsel was ineffective in
several regards. He also contends the prosecutor engaged in misconduct. We
conclude Sourwine has failed to establish his claims. Accordingly, we affirm.
I. Backgrounds Facts and Proceedings.
On April 28, 2006, two men entered the Style By Design salon in
Burlington and demanded money. One of the men, who wore a mask and latex
gloves, brandished a gun. The salon owner retrieved $153 from the cash
register and handed it to the men at gunpoint. They fled the salon and left the
scene in a red or maroon car.
Travis Neff was driving home at the time of the robbery when two men ran
in front of his vehicle before getting into a maroon Buick. Neff recognized them
as Sourwine and Steven Lovell, two men he had known for several years. He
reported what he had seen to Crime Stoppers. Lovell admitted to police that he
was involved in the robbery and identified Sourwine as his accomplice.
During their investigation, police found a mask and a pair of rubber gloves
two blocks from the salon. Testing revealed DNA on both the mask and gloves
matched Sourwine’s profile. The probability of an unrelated person having the
same DNA profile was less than one in one billion.
Sourwine was tried before a jury and convicted of first-degree burglary.
His conviction was affirmed on direct appeal. State v. Sourwin, No. 06-2019,
2007 WL 4197301, at *3 (Iowa Ct. App. 2007). This court preserved Sourwine’s
claims of ineffective assistance of counsel for possible PCR proceedings. Id. 3
On July 23, 2009, Sourwine filed a pro se application for PCR. An
amended application was filed June 3, 2012. A second amended application
was filed July 18, 2012. On December 28, 2012, following a trial, the district
court entered its order denying the application. Sourwine appeals.
II. Scope of Review.
We review the denial of an application for PCR for correction of errors at
law. Lowery v. State, 822 N.W.2d 739, 741 (Iowa 2012). But where an applicant
asserts a constitutional claim as the basis for PCR, our review is de novo.
Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).
III. Ineffective Assistance of Counsel.
To succeed on a claim of ineffective assistance of counsel, a defendant
must establish by a preponderance of the evidence counsel breached a duty and
prejudice resulted. State v. Brothern, 823 N.W.2d 187, 192 (Iowa 2013). A
breach of duty occurs where an attorney’s performance falls below the standard
of a “reasonably competent attorney.” Id. Prejudice is shown if there is a
reasonably probability that the result of the proceeding would have been different
if counsel had performed competently. Id. To demonstrate prejudice for
ineffective-assistance purposes, Sourwine must show “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). We
note the overwhelming evidence of Sourwine’s involvement in the crime as we
start our analysis.
Sourwine first asserts his trial counsel was ineffective in failing to impeach
Neff with his simple misdemeanor conviction of making a false report. 4
Sourwine’s trial counsel erroneously believed this conviction was inadmissible,
establishing the first prong of the ineffective-assistance test. However, Sourwine
is unable to show he was prejudiced by counsel’s breach given the
circumstances under which the false report was made (arising from a dispute
with a girlfriend), the relative severity of the crime (a simple misdemeanor with a
small fine), and the evidence to corroborate Neff’s testimony with respect to the
present case. Therefore, his claim fails.
Sourwine next argues trial counsel was ineffective in failing to file a motion
in limine or object to Neff’s testimony regarding his criminal background. His
argument centers on a conversation Neff had with his cousin after seeing
Sourwine and Lovell run past. Specifically, Neff testified: “We were wondering if
they robbed somebody or what was going on, because we know that— . . . We
know that they’d been at some things like that before, or I don’t know exactly?”
Although counsel was unable to recall specifically why he failed to object to this
testimony, he indicated he believes that objecting can accentuate certain
testimony. Because counsel’s choice was reasonable trial strategy, see Everett
v. State, 789 N.W.2d 151, 158 (Iowa 2010), trial counsel did not breach an
essential duty. Counsel’s failure to file a motion in limine did not rise to the level
of a breach of duty because the record does not disclose Neff made any mention
of knowing about Sourwine’s criminal history before testifying at trial. We further
conclude any breach was not prejudicial given the vague, hedged nature of
Neff’s statement and the overall evidence of Sourwine’s guilt. Sourwine has not
proved counsel was ineffective. 5
We then turn to Sourwine’s claim counsel was ineffective for failing to
investigate a State witness’s criminal history and use the information to impeach
her testimony. Amanda Carruthers testified Sourwine asked her to lie regarding
his whereabouts at the time of the robbery. Carruthers appeared in court in
prison garb and admitted she was serving a prison sentence on a second-degree
theft conviction. Carruthers, who also has four simple misdemeanor theft
convictions, was then asked whether she has been convicted of “any other felony
or theft crime” and answered, “No.” We concur with the district court that
although this answer was inaccurate, Carruthers was asked a confusing,
compound question and likely would have clarified her answer with further
examination, rather than being impeached. Regardless, Sourwine is unable to
show prejudice when Carruthers admitted she was serving a prison sentence on
her conviction for felony theft, and his claim fails.
Finally, Sourwine claims trial and appellate counsel were ineffective in
failing to argue the jury improperly considered information not presented during
trial. In support of his argument, he provided a letter purportedly written by the
jury foreperson. The letter opines the other jurors may have misunderstood the
evidence. It is not a sworn statement and was not notarized. Nor was the juror
called as a witness during the PCR trial. The trial court found the letter to be
hearsay and inadmissible. We agree.
IV. Prosecutorial Misconduct.
Sourwine also contends the prosecutor committed misconduct by allowing
Carruthers to testify she had no other felony or theft convictions. Although
Sourwine did not raise this claim in his PCR application, the court allowed him to 6
amend his application to include the claim during the PCR hearing. While the
State argues error was not preserved, we will address the claim on its merits.
The PCR court determined Sourwine failed to present evidence the
prosecutors had any information regarding Carruthers’s prior charges. On
appeal, Sourwine does not point to any evidence the prosecutor knew Carruthers
had four simple misdemeanor theft convictions. Sourwine only states the
prosecutor had the ability to review her criminal record. Because there is no
proof of misconduct, Sourwine’s claim fails. See State v. Graves, 668 N.W.2d
860, 869 (Iowa 2003) (“The initial requirement for a due process claim based on
prosecutorial misconduct is proof of misconduct.”).
V. Conclusion.
Because Sourwine has failed to show his trial or appellate counsel was
ineffective or that the prosecutor engaged in misconduct during his trial, we affirm
the denial of his application for PCR.
AFFIRMED.