                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0797
                              Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTIN C. DALTON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Angeline M. Wilson,

District Associate Judge.



      Justin Dalton appeals from judgment and sentence entered upon his

conviction for theft in the fourth degree. AFFIRMED.




      Thomas J. Viner of Viner Law Firm, PC, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.




      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
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DANILSON, Chief Judge.

         Justin Dalton appeals from judgment and sentence entered upon his

conviction for theft in the fourth degree. Dalton contends he was denied a fair trial

by the prosecutor’s failure to provide copies of proposed exhibits and an exhibit

list, and that trial counsel was ineffective in not obtaining copies of the State’s

intended exhibits.

         Our review of constitutional claims, including claims of ineffective

assistance of counsel, is de novo. State v. Clark, 814 N.W.2d 551, 560 (Iowa

2012).

         Dalton asserts, “Discovery is an essential right, one provided for by Iowa

Rule of Criminal Procedure 2.14 and generally protected by the [United States]

and Iowa Constitutions as the right of a defendant to protection from ‘trial by

surprise.’” Dalton argues the State is required to designate the order of its exhibits

prior to trial, the State is not allowed to charge a fee for discovery, and the State

here did not adequately respond to discovery requested.

         We acknowledge, “The right to present a defense is so fundamental and

essential to a fair trial that it is accorded the status of an incorporated right through

the Fourteenth Amendment's Due Process Clause.”1 Clark, 814 N.W.2d at 561.


1
 The right to present a defense includes:
       The right to offer the testimony of witnesses, and to compel their
       attendance, if necessary, is in plain terms the right to present a defense,
       the right to present the defendant’s version of the facts as well as the
       prosecution’s to the jury so it may decide where the truth lies. Just as an
       accused has the right to confront the prosecution’s witnesses for the
       purpose of challenging their testimony, he has the right to present his own
       witnesses to establish a defense. This right is a fundamental element of
       due process of law.
Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998) (quoting Washington v. Texas, 388
U.S. 14, 19 (1967)).
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       However, “A criminal defendant has no due process right to pretrial

discovery.” Id.; accord United States v. Adcock, 558 F.2d 397, 406 (8th Cir. 1977)

(rejecting claim for broad discovery rights under the Sixth Amendment and holding

that the purpose of Federal Rule of Criminal Procedure 15 is preservation of

evidence not pretrial discovery).

       Moreover, Iowa Rule of Criminal Procedure 2.14, upon which Dalton relies,

provides for “disclosure required upon request,” which mandates the State to

permit the defendant “to inspect and copy or photograph” relevant information.

See Iowa R. Crim. P. 2.14(2)(a). Nothing in the rule requires the State to provide

witness lists or furnish copies of exhibits.2

       While Dalton contends the State may not charge a fee for discovery, he

provides no authority for that proposition. See Iowa R. App. P. 6.903(2)(g)(3)

(“Failure to cite authority in support of an issue may be deemed waiver of that

issue.”). Moreover, we are given no information as to the amount of the copying

charge in dispute nor whether the defendant contends the charge is unreasonable

in amount, rather than in principle alone.3




2
  We also note the rules pertaining to electronic filing allow for the submission of proposed
exhibits, but do not require them. See Iowa Rs. Elec. P. 16.412(2)(a) (stating “[a] party
may submit proposed exhibits to the court” (emphasis added)), .701(2) (providing that the
rules of electronic procedure are applicable to criminal cases).
3
  We agree with the trial court that as a matter of good practice and common courtesy
counsel should be provided proposed exhibits. Proposed exhibits allow the trial court to
be better prepared for potential evidentiary matters. Digital copies must be uploaded due
to electronic filing requirements and, therefore, there would seem to be little if any effort
or cost required to also forward a digital copy to opposing counsel. However, we are
provided no authority that such a practice is required. And we note that in State v. Land,
No. 11-1417, 2013 WL 104836, at *4 (Iowa Ct. App. Jan. 9, 2013), we referenced several
cases relative to copying costs. See, e.g., United States v. Freedman, 688 F.2d 1364,
1366–67 (11th Cir.1982) (finding the government must allow defendants access to inspect
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       We also reject Dalton’s claim that his trial counsel provided ineffective

assistance in failing to obtain exhibits and exhibit lists, which led to the failure to

prepare a full defense. In order to prevail on a claim of ineffective assistance of

counsel, Dalton must establish by a preponderance of the evidence that counsel

failed in an essential duty, which resulted in prejudice. See State v. Ondayog, 722

N.W.2d 778, 783 (Iowa 2006). Dalton’s trial counsel had access to the evidence

the State intended to offer. Moreover, the district court offered defense counsel

additional time to view materials, which she declined. Dalton has failed to prove

any prejudice in counsel failing to obtain a discovery order. We affirm.

       AFFIRMED.




and copy requested discovery material, but is not required to furnish, at its own expense,
copies of discretionary discovery material to defendants).
