Maurice Montrail Hayes v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: September 1, 2021
• Docket: 19-1700
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1700 Filed September 1, 2021

MAURICE MONTRAIL HAYES, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

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

Gronewald, Judge.

Maurice Hayes appeals the denial of his application for postconviction relief.

AFFIRMED.

Jennifer Bennett Finn of Pelzer Law Firm, LLC, Estherville, for appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.

Considered by Bower, C.J., Greer, J., and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021). 2

CARR, Senior Judge.

Maurice Hayes appeals the denial of his application for postconviction relief

(PCR). He alleges he received ineffective assistance from his trial and PCR

counsel. We review his claims de novo. See Lamasters v. State, 821 N.W.2d 856,

862 (Iowa 2012).

A jury found Hayes guilty of attempted murder, first-degree robbery, and

assault causing bodily injury after shooting one person and striking another with a

pistol during a robbery. Although both victims identified Hayes as their assailant,

one could only see the assailant’s eyes and the other was not “a hundred percent

certain.” On direct appeal, this court found sufficient evidence of Hayes’s guilt

based on surveillance video and other supporting evidence that bolstered the

identifications. State v. Hayes, No. 17-0563, 2018 WL 2722782, at *2-3 (Iowa Ct.

App. June 6, 2018). We preserved some claims of ineffective assistance of

counsel for PCR proceedings. Id. at *4-5.

Hayes filed a PCR application alleging six claims of ineffective assistance

of trial counsel. After a trial, the PCR court denied the application, finding Hayes

failed to provide sufficient evidence to show his trial counsel was ineffective.

Hayes appeals the denial of three of those claims and alleges his PCR counsel

provided ineffective assistance by failing to claim a violation of his right to an

impartial jury.

To succeed on an ineffective-assistance claim, Hayes must show counsel

breached a duty and prejudice resulted. See Lamasters, 821 N.W.2d at 862. We

may affirm if either element is lacking. See id. A breach of duty occurs if counsel’s

performance falls below the standard of a reasonably competent attorney. See id. 3

Prejudice occurs if the outcome of the proceeding would have differed had counsel

performed effectively. See id.

Hayes first alleges his trial counsel provided ineffective assistance by failing

to adequately prepare a defense. He claims his trial counsel only met with him

four times and failed to call witnesses to support his statement that he was out of

state on the day the crimes occurred. But Hayes fails to show how he was

prejudiced by these omissions. Hayes makes only a conclusory claim that trial

counsel’s failure to meet with him more led to trial counsel failing to zealously

advocate on his behalf. And although there were witnesses who could testify about

Hayes’s presence in Minnesota on that day, they could not provide him an alibi

because the crimes occurred in the early morning and the witnesses could only

place Hayes in Minnesota later in the day. Hayes argues, however, that these

witnesses could have rebutted the implication that he lied when he told the police

he was out of town on that date. But he fails to show how rebutting that implication

would have changed the result of trial given the overall evidence of his guilt. And,

as the PCR court noted, decisions about defense witnesses are tactical decisions

that the court will not second-guess. See State v. Heuser, 661 N.W.2d 157, 166-

67 (Iowa 2003). Trial counsel testified that any witnesses who could place the

defendant away from the crime scene at the time of occurrence were investigated.

This places the election not to call them well within the definition of a tactical

decision.

Hayes next contends his trial counsel rendered ineffective assistance by

failing to challenge the credibility of the shooting victim by cross-examining him

about convictions for crimes involving dishonesty. But the record shows that trial 4

counsel cross-examined the shooting victim about a parole violation and a criminal

conviction that the victim admitted was either for second-degree theft or driving

without owner’s consent. Counsel also questioned the shooting victim about new

criminal charges he faced and the possibility of receiving a reduced sentence for

his cooperation with the State. The decision of trial counsel about the level of

aggression with which to cross-examine the shooting victim—whose testimony

was not critical or damning—was, we think, a tactical one that, as noted above, we

are reluctant to second-guess. And although Hayes’s alleges that counsel was

ineffective by failing to request a jury instruction on impeachment, he fails to

articulate how instructing the jury on the limited reason for which they could

consider the evidence of a witness’s crimes would have changed the result of trial.

Hayes also challenges his counsel’s failure to request a jury instruction on

implicit bias. “Iowa law permits—but does not require—cautionary instructions that

mitigate the danger of unfair prejudice.”1 State v. Plain, 898 N.W.2d 801, 816 (Iowa

2017), holding modified by State v. Lilly, 930 N.W.2d 293 (Iowa 2019). Hayes asks

us to overrule Plain and require the court to instruct the jury on implicit bias, but

we cannot overturn the rulings of our supreme court. See State v. Hastings, 466

N.W.2d 697, 700 (Iowa Ct. App. 1990). In any event, the court instructed the jury

“not [to] be influenced by any personal likes or dislikes, sympathy, bias, prejudices,

or emotions.” We cannot find Hayes was prejudiced by any failure of counsel to

request a different instruction.

1 The supreme court issued its ruling in Plain four months after Hayes went to trial. 5

Finally, Hayes alleges his PCR counsel was ineffective by failing to argue

that Hayes did not receive an impartial jury and present evidence that the jury was

not drawn from a fair cross-section of the community. Hayes relies on supreme

court decisions entered after he was tried and convicted. See Plain, 898 N.W.2d

at 821-29 (addressing a defendant’s right to an impartial jury drawn from a fair

cross-section of the community), as modified by Lilly, 930 N.W.2d at 298-308

(articulating the standard deviation required to make a threshold claim). Our

supreme court has held that the Plain holding does not apply retroactively to cases

on collateral review. Thongvanh v. State, 938 N.W.2d 2, 16 (Iowa 2020), reh’g

denied (Feb. 10, 2020); see also, e.g., Millam v. State, 745 N.W.2d 719, 722 (Iowa

2008) (“We do not expect counsel to anticipate changes in the law, and counsel

will not be found ineffective for a lack of ‘clairvoyance.’”). Turning then to Hayes’s

argument that his PCR counsel was ineffective for failing to present evidence of

the jury’s makeup to show the need for an instruction on implicit bias, his argument

presumes evidence that is not in the record. We cannot find PCR counsel

ineffective on this basis. See Whitsel v. State, 439 N.W.2d 871, 872 (Iowa Ct. App.

1989) (requiring a PCR applicant provide “[a]n affirmative factual basis

demonstrating the alleged inadequacy of representation” to “overcome a strong

presumption of counsel’s competency”).

Because Hayes has not shown he received ineffective assistance from trial

or PCR counsel, we affirm.