                    IN THE COURT OF APPEALS OF IOWA

                            No. 3-1102 / 13-0409
                            Filed February 5, 2014


LAWRENCE W. HAMBY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Bremer County, Rustin T.

Davenport, Judge.



      Lawrence Hamby appeals from the denial of his application for

postconviction relief. AFFIRMED.




      Wallace L. Taylor, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, and Kasey E. Wadding, Bremer County Attorney, for appellee State.




      Heard by Potterfield, P.J., and Doyle and Bower, JJ.
                                          2


POTTERFIELD, P.J.

       Lawrence Hamby appeals from the denial of his application for

postconviction relief.   He argues he was provided ineffective assistance of

counsel when his trial lawyers failed to move to suppress statements he made to

police during four interviews and when his appellate counsel failed to appeal the

denial of his motion for new trial. We affirm.

  I.   Facts and Proceedings.

       This is the second time we have heard Hamby’s case on appeal. We set

forth the facts as written in the direct appeal here.

               On January 18, 2006, Michelle Otterbein received a call from
       her husband telling her that Nate McKinney, the son of his best
       friend Frank McKinney, had called him. Otterbein’s husband told
       her Nate said Frank was dead and lying on the floor in Nate and
       Frank’s home. Otterbein’s husband asked her to go to the
       McKinneys’ house right away. When she arrived, she found Nate
       walking around in the backyard talking on a cell phone that looked
       like Frank’s cell phone. Nate told her he had called 911. She went
       into the house and found Frank dead on the living room floor.
               At approximately 1:00 p.m., a paramedic arrived on the
       scene. The paramedic examined Frank’s body and found no pulse
       or signs of breathing. The paramedic found that the body was cold
       and starting to stiffen. The paramedic noted that there was some
       kind of coagulated blood in the corner of Frank’s mouth and some
       marks around Frank’s neck and facial area. Thereafter, law
       enforcement officers and the medical examiner arrived. The
       medical examiner evaluated the body and determined the death
       was suspicious.
               An autopsy was performed, and the medical examiner
       concluded Frank’s death was a homicide, caused by trauma to the
       head, neck, and chest. Nine ribs had been fractured, and his face
       was beaten. Frank had also been strangled, and there were
       ligature marks on his neck from the strangulation.
               Nate was interviewed by police, and his clothes were
       confiscated at the interview. Nate initially told police he discovered
       his father on the floor that morning. He told police that he had
       played video games with his friend and neighbor, Lawrence
       Hamby, the previous day. He also stated that he had taken
       Hamby’s live-in girlfriend, Jenifer Meana, to the hospital the
                                   3


previous night and that Hamby had been out of town fixing a
friend’s computer.
        After the interview, Nate went to stay with an uncle. He
discussed Frank’s death with his family members. The next day,
Nate told his family that he “couldn’t cover for that dude anymore.”
Nate called the detective working on the case and told them that he
had lied for Hamby.
        ....
        After receiving Nate’s new statement, police conducted two
searches of Hamby’s home. In the basement, the officer found a
syringe and needle, an empty syringe package, a pill bottle, and a
plastic bag full of needles and syringes. On the main floor, the
officer found a bottle of Everclear. The officers later found a belt
and a bat in a cupboard in Hamby’s kitchen. Another officer found
a black and orange extra-large t-shirt, a red rag or cloth, and a
small baseball bat underneath the stairway leading to the second
level of the home. Another belt was found on Hamby’s bedroom
floor.
        Hamby was interviewed by the police. Although he admitted
he was present at Frank’s house prior to and after Frank’s death,
he denied killing Frank. Hamby told the police that he leaned over
Frank’s body to determine if he was alive.
        On April 24, 2007, Lawrence Hamby was charged with
murder in the first degree, in violation of Iowa Code section
707.2(1) (2007). Prior to trial, Hamby filed a motion in limine to
exclude evidence of his probation-parole status, among other
things. A jury trial commenced on January 6, 2009.
        Nate testified that he had initially lied to the police, as Hamby
had asked. He testified he had then come clean and gave his
account of the events, as recounted above. Nate also testified that
he and his father had a rocky relationship. Nate admitted he had
previously stolen money and drugs from Frank. Nate testified he
was positive that he did not go home while Meana was at the
hospital, and that he was not at home between 9:45 and 10:30 p.m.
that evening.
        Meana testified she thought Nate had been wearing different
pants than the ones confiscated by the police. She testified that
Nate took her to the hospital for her migraine and that he had stolen
needles, syringes, and other supplies from the hospital. She
testified he had left her room to smoke and to make a few calls.
She testified she was awake off and on in her treatment room, and
that Nate had been asleep in her room too. She testified that after
she and Nate returned to her and Hamby’s house, she checked her
messages on her cell phone that she had left at home. She
testified she had one from Hamby asking where they were and to
pick up the phone. She did not recognize the phone number and
said the number aloud. Nate recognized it as his father’s number.
                                        4


      She testified that Hamby came home frantic and told Nate that his
      dad was dead. He told Nate that his dad had worn a wire to a drug
      deal. She testified that Nate wanted to call the police, but Hamby
      told him that the police would think Nate killed his father. Hamby
      had Frank’s phone when he returned to the house. She testified
      that she saw Hamby and Nate bring stuff over from Nate’s house.
      She testified that Hamby told her to tell the police that Hamby was
      out of town that evening fixing a friend’s computer. She testified
      that she initially told the police what Hamby had told her to tell
      them, but that she eventually told them the truth.
              The medical examiner testified that the ligature marks on
      Frank’s neck were consistent with one of the belts seized from
      Hamby’s house. A criminalist with the Iowa Department of Criminal
      Investigation testified that Frank’s DNA was discovered on the belt,
      and a blood stain on Frank’s t-shirt matched the DNA of Hamby.
              Nurses testified that they had seen Nate at the hospital that
      evening. The officer who pulled Meana over testified that the stop
      occurred at approximately 11:30 p.m. on the 17th.
              ....
              Hamby did not take the stand, and in his defense, he
      attempted to indicate Nate had killed Frank. Otterbein testified that
      Frank was constantly afraid of Nate, and Frank’s brother-in-law
      testified that Nate did not cry or seem upset after Frank died.
      Another neighbor testified that she believed she saw Nate walking
      across her driveway on the night of Frank’s death at around 9:30
      p.m.
              On January 22, 2009, the jury found Hamby guilty as
      charged. Hamby later filed a motion for a new trial, arguing the
      evidence was insufficient to support the jury verdict. The court
      denied Hamby’s motion.

State v. Hamby, No. 09–0749, 2010 WL 1577367 at *1–3 (Iowa Ct. App. 2010).

Our court affirmed Hamby’s conviction, finding sufficient evidence supported the

conviction, the district court properly denied Hamby’s motion for a mistrial after

his parole status was disclosed to the jury in a witness’s answer, and no

prosecutorial misconduct occurred.

      Hamby filed an application for postconviction relief on March 9, 2012. He

argued his trial counsel was ineffective in not moving to suppress his statements

to investigators and in not allowing him to testify.    He argued his appellate
                                           5


counsel was ineffective in failing to raise the issue of the trial court’s denial of his

motion for new trial and in failing to appeal the admission of certain telephone

records. During the postconviction proceedings, he decided not to pursue the

arguments regarding the phone records and failure to testify. Trial was held on

the remaining two issues raised in the application on December 6, 2012. On

February 26, 2013, the district court entered an order denying Hamby’s

application. He appeals.

  II.    Analysis.

         On appeal, Hamby argues two points. First, he argues his trial counsel

was ineffective in failing to move to suppress statements he made to

investigators without being given Miranda warnings.            See United States v.

Miranda, 384 U.S. 436, 444 (1966). Second, he argues his appellate counsel

was ineffective in failing to appeal the trial court’s denial of his motion for new

trial.

         We review claims of ineffective assistance of counsel de novo. State v.

Ondayog, 722 N.W.2d 778, 783 (Iowa 2006). “To prove a claim of ineffective

assistance of counsel, [Hamby] must show by a preponderance of the evidence

that his trial counsel failed to perform an essential duty and prejudice resulted.”

Id. at 784. “We will not find counsel incompetent for failing to pursue a meritless

issue. To demonstrate prejudice for ineffective-assistance purposes, [Hamby]

must show a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” State v. Brothern, 832

N.W.2d 187, 192 (Iowa 2013) (internal citations and quotation marks omitted).
                                           6


   A. Statements made to investigators.

      Hamby first argues his statements during the first four interviews to

investigators should have been suppressed because they were obtained in

violation of his Fifth Amendment rights.

      Hamby’s trial counsel testified in the postconviction proceedings that he

did not pursue a motion to suppress Hamby’s statements to investigators

because he believed Hamby was not in custody during the questioning at issue

and therefore strategically determined the statements supported his theory of the

case—that Nate committed the murder. We avoid second-guessing counsel’s

strategic decisions where the decision is reasonable.     Everett v. State, 789

N.W.2d 151, 158 (Iowa 2010).

              Generally, “ineffective assistance is more likely to be
      established when the alleged actions or inactions of counsel are
      attributed to a lack of diligence as opposed to the exercise of
      judgment.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
      “[M]ere mistakes in judgment normally do not rise to the level of
      ineffective assistance of counsel.” Id. at 143.
              [C]laims 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 guaranteed a defendant
              under the Sixth Amendment.
      Id. However, not all tactical or strategic decisions shelter an
      attorney from a claim of ineffectiveness. Id.

Anfinson v. State, 758 N.W.2d 496, 501 (Iowa 2008).          Counsel’s strategic

decision was made only after counsel concluded that Hamby was not in custody

during the four interviews, and that a motion to suppress would be unsuccessful

since Miranda did not apply.     See 384 U.S. at 444 (holding the procedural

safeguards for questioning apply only where a suspect is subject to custodial
                                         7


interrogation). We therefore look to whether Hamby was in custody during each

interview. We apply our four-factor custodial test:

      The Miranda opinion provides that a suspect is in custody upon
      formal arrest or under any other circumstances where the suspect
      is deprived of his or her freedom of action in any significant way.
      384 U.S. at 444 . . . . In determining whether a suspect is “in
      custody” at a particular time, we examine the extent of the
      restraints placed on the suspect during the interrogation in light of
      whether “a reasonable man in the suspect’s position would have
      understood his situation” to be one of custody. We apply this test
      objectively. In making our determination, we consider the following
      four factors:
             (1) the language used to summon the individual;
             (2) the purpose, place, and manner of interrogation;
             (3) the extent to which the defendant is confronted with
             evidence of [his] guilt; and
             (4) whether the defendant is free to leave the place of
             questioning.

State v. Ortiz, 766 N.W.2d 244, 251–52 (Iowa 2009) (internal citations omitted).

      1.     First interview. The first interview took place at the local police

station on January 18, 2006, at 5:25 p.m. Hamby was told by Meana that the

police wished to speak with him. The record is unclear whether Hamby initiated

contact with law enforcement or vice versa, but Hamby proceeded to the station

of his own volition. See State v. Miranda, 672 N.W.2d 753, 759 (Iowa 2003)

(noting confrontation initiated by officers is more likely to be custodial). Hamby

argues that the circumstances of his summons to the police station were

undermined by his probation status; that he feared his probation would be

revoked by refusing to go speak with police. Our supreme court has rejected this

argument.   State v. Smith, 546 N.W.2d 916, 923 n.3 (Iowa 1996); see also

Oregon v. Mathiason, 429 U.S. 492, 500 (1977) (holding a coercive environment,
                                           8


including parolee status, does not transform an otherwise noncustodial situation

into one in which Miranda applies).1

       The interview took place at the police station; the interview transcript

discloses Hamby and Agent Callaway (an investigator from the Department of

Criminal Investigation (DCI)) were present.2        At one point, another unknown

person is heard on the recording, speaking with the officer about an

administrative matter.     The noise of the station operations is evident in the

background of the recording. The tone of the interview was casual—the officer

admitted he was not entirely familiar with the area and was looking to Hamby to

provide background about the circumstances surrounding Frank’s death. The

interview was short, lasting approximately forty minutes. Hamby was asked at

one point why Nate might report something different than Hamby as to whether

Hamby went to Frank’s house with him. Hamby responded that Nate probably

just wanted to keep him out of the matter. The interview ended with the police

officer asking Hamby if it would be okay to call if he had any further questions to

ask. Hamby responded that would be fine and left the station.

       Given our four-factor test, we conclude a reasonable person in Hamby’s

position during this interview would not have thought himself in custody. See




1
  Justice Stevens’s pointed dissent in Mathianson shows the weakness in this position:
“[A] parolee is technically in legal custody continuously until his sentence has been
served. Therefore, if a formalistic analysis of the custody question is to determine when
the Miranda warning is necessary, a parolee should always be warned.” 429 U.S. at 500
(Stevens, J., dissenting).
2
  Hamby’s testimony during the postconviction proceeding was that during the first
encounter, he was interviewed by three or four officers, including a detective Cain. He
also testified he was threatened with probation revocation during this interview. The
interview recordings belie this testimony.
                                         9

Ortiz, 766 N.W.2d at 251. Hamby’s Fifth Amendment rights were not violated

during the first interview. See id.

       2.     Second interview. The second interview took place the evening

after the first interview at the police station.   Callaway and DCI Agent Alan

Scholle were present for the interview. Hamby was interviewed in the same

room as the night before, which Scholle noted on the recording was rather small.

The officers asked Hamby about inconsistencies between Nate’s report of the

events that night and Hamby’s account to Callaway the night before. Hamby

recounted his story, this time with additional questions from Callaway and

Scholle to clarify discrepancies between Nate and Hamby’s stories. During these

statements, Hamby revealed that Nate brought contraband to Hamby’s house

that night, and volunteered to give the items to the agents. The agents reminded

Hamby that they were not interested in drug issues; they were interested in the

circumstances surrounding the homicide.

       At several points the agents told Hamby his story did not match what Nate

told them. Almost forty-five minutes into the interview, Scholle told Hamby that

Nate “[must be] dropping the dime on [Hamby]” with his story that Hamby and

Nate went over to Frank’s together during the night and that Hamby could get in

trouble as a result. Hamby vehemently denied going over to the house and

accused the agents of trying to intimidate him. The agents responded that they

were not trying to intimidate Hamby or accuse him of anything; they wanted to

find the truth about what happened that night. They asked Hamby to sit back

down and continue to talk with them. At this point, Hamby began to tell the
                                       10


agents about Nate’s request to use his car to “ditch the body” and about Frank’s

connections with a methamphetamine dealer in town.

      About an hour and fifteen minutes into the interview, Hamby was again

asked why his story was different than at the first interview. In response, Hamby

volunteered to take the investigators to his house and retrieve the items he told

the agents Nate brought to his home. The agents again asked him to sit back

down and continue talking with them. About one hour and forty-five minutes into

the interview, Hamby told the agents he wanted to stop the interview and go to

bed, that if the agents wanted to come to his house, they should come, but

Hamby wanted to go home. Callaway told him to sit down. Shortly thereafter,

Hamby told the agents, “We’re done. We’re done.” Agent Callaway responded,

“I don’t think so. Sit down. We’re not done.” The questioning continued for

another fifteen minutes. Hamby told the agents that both he and Nate owned

baseball bats, his house contained a couple of “crank pipes” he made for Nate,

and Hamby agreed to sign a waiver for the search of his home. Hamby then

returned to his home.

      We return to the four-factor test. See id. at 251–52. Hamby voluntarily

returned to the station, the agents thanked him for coming to the station for a

second time. The questioning proceeded much like the first interview; in the

same office with one additional officer. The door to the room was shut. The

questions did focus on discrepancies in Hamby’s story, but when Hamby asked

whether the agents were “calling him a liar” they responded that was not true.

Though at one point Scholle stated Nate was implicating Hamby, no other

reference was made to Hamby as a suspect for the homicide. Hamby instead
                                        11


made statements indicating he believed he was there to implicate Nate.

Regarding the last factor, Hamby clearly thought he could leave until he was told

otherwise at about an hour and forty-five minutes into this interview. See id. at

252.    At this point, when Hamby was not permitted to leave, we agree with

Hamby that a reasonable person in his position would believe he was in custody.

See id. at 251. We therefore conclude the statements made by Hamby during

the last fifteen minutes of this interview were obtained in violation of his Fifth

Amendment rights.      See id.   We also consider, then, if questioning in later

interviews was based on answers obtained during the last fifteen minutes of

questioning.

        3.     Third interview. The third interview took place the next day at city

hall.   Hamby was familiar with the space because he attended Alcoholics

Anonymous group meetings there.          Hamby began the interaction with his

account of the evening. Agent Scholle reminded Hamby that his story was not

matching up and not to cover for his friend. At no point was Hamby confronted

with evidence of his guilt. Scholle asked most of the questions, DCI agent Jeff

Jacobson asked a few questions towards the end of the interview.              The

questioning lasted less than two hours. Hamby came and left of his own accord,

and seemed overall to be comfortable and in control of the room. While again

Hamby was asked about differences in his story, he was not presented with

evidence of his own guilt. We conclude he was not in custody during the third

interview. See id.

        4.     Fourth interview. The next day, Hamby was again called to the city

hall for questioning. Agents Callaway and Jacobson conducted the interview.
                                         12


Hamby was very upset because a friend had been seriously injured in a fire.

Agent Jacobson said, “Okay, well if you wanna do this later, we can do that.

There’s no sense sitting here . . . sitting in here like this if you don’t feel like

talking to us.” Hamby declined the offer. Hamby again went over the events of

the night of the murder, and then discussed local drug dealers with Jacobson.

Hamby also felt free to take a cigarette break about forty-five minutes into the

interview (at about noon). After the break, the agents told him Nate was blaming

him for the murder. Jacobson asked what would happen if they could not place

Hamby at his friend’s house that afternoon.        The questioning became more

pointed, Jacobson told Hamby he was not being totally honest, and not telling the

truth was eating Hamby alive. Hamby persisted in his story, and Jacobson told

Hamby:

       Something happened there that you know more about this than
       meets the eye . . . . Because right now it looks like both of you are
       involved, both of you in that house and both of you did something.
       Now if you wanna keep dinkin’ around with it that’s fine, but we’re
       not gonna stop.

Hamby began crying, and Jacobson continued to press him for answers.

Jacobson stated, “There’s so many things there that don’t make sense . . . and

it’s convinced me more that you were there . . . . It’s lookin’ like you guys are the

type of person that’d just go in there and beat the hell out of an old man.” Shortly

thereafter, at 12:50 p.m., the interview ended with Jacobson reporting that

Hamby told him he was going to meet with his attorney.

       The record is clear that during the first hour or so of questioning, Hamby

was in a familiar and comfortable location, voluntarily agreed to stay, was not

presented with evidence of guilt, and felt comfortable taking a cigarette break.
                                        13


After the break, the questioning intensified and Hamby was presented with

evidence that his friend Nate blamed him for the homicide. The investigator,

however, did not go so far as to actually blame Hamby for the murder. Instead

Hamby believed he was being told to point the finger at Nate. To the extent the

agent stated the evidence appeared to support Hamby’s involvement, the

accusation was minimal in the context of the two-hour interview.       Ultimately,

Hamby felt free to call his attorney and end the interview. While the custodial

nature of this part of the interview is a closer call, we conclude under our four-

factor test that he was not in custody. See id.

      Hamby does not claim counsel should have moved to suppress his fifth

interview with police, as he was read his rights as required under Miranda and

was accompanied by his attorney. See 384 U.S. at 444. During this interview,

Hamby again told his account of the events, this time reporting that Nate

confessed to Hamby that he killed Frank.

      Because we did find some of Hamby’s statements were obtained in

violation of his Fifth Amendment rights, we must consider (regardless whether

failing to move to suppress was a breach of an essential duty) whether Hamby

was prejudiced by the admission of the statements into evidence. See Millam v.

State, 745 N.W.2d 719, 722 (Iowa 2008). In order to establish prejudice, Hamby

must show that but for the deficiency, there is a reasonable probability the

outcome of the case would have been different.        See id.    This reasonable

probability must be sufficient to undermine our confidence in the outcome of the

case. Id.
                                         14


       Hamby claims generally that he was prejudiced by the failure to move to

suppress his statements because “[e]ven though Mr. Hamby never admitted guilt,

his statements were used against him in the County Attorney’s final argument [to

show] . . . the statements are inconsistent, so the defendant is lying, and he is

therefore guilty.” He points to testimony by his trial counsel that his “statements

being admitted into evidence was very significant to the outcome of the case.”

During every interview, Hamby was asked about the events surrounding Frank’s

death. During each subsequent interview, his story changed. Looking to the first

interview, the first portion of the second interview, the third interview, the fourth

interview, and the fifth interview, the prosecutors were given more than enough

fodder to support their theory of Hamby’s unreliable account of the day. The

short period of the second interview following the officers’ refusal to allow Hamby

to leave was not emphasized by the prosecutors and any inconsistencies in

those minutes were cumulative to the rest of the inconsistent statements. We

find no prejudice in counsel’s failure to move to suppress the statements. See id.

   B. Motion for new trial.

       Hamby next argues his appellate counsel was ineffective for failing to

raise the denial of his motion for new trial on direct appeal. We utilize the same

two-pronged test to evaluate the effectiveness of appellate counsel as we do for

trial counsel. Ledezma, 626 N.W.2d at 142.

       On direct appeal, Hamby’s trial counsel argued his conviction was not

supported by sufficient evidence.     Hamby argues the better issue for appeal

would have been a challenge to the denial of his motion for a new trial.
                                          15


       When deciding [a motion for new trial], the district court is entitled to
       weigh the evidence and consider the credibility of the witnesses. If
       the court determines the verdict is contrary to the weight of the
       evidence and a miscarriage of justice may have occurred, it is
       within the court's discretion to grant a new trial. The weight-of-the-
       evidence analysis is much broader than a sufficiency-of-the-
       evidence analysis in that it involves questions of credibility and
       refers to a determination that more credible evidence supports one
       side than the other. Only in the extraordinary case, where the
       evidence preponderates heavily against the verdict, should a
       district court lessen the jury’s role as the primary trier of fact and
       invoke its power to grant a new trial.

State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008) (internal citations and

quotation marks omitted). When reviewing a trial court’s denial of a motion for

new trial, we review the trial court’s ruling for abuse of discretion.

       Hamby argues the district court’s order denying his motion for new trial

made “observations about the court’s perception of the evidence . . . [that were]

not supported by the actual evidence at trial.” Hamby cites as examples: that

Hamby was in Frank’s house at the time of his death (though the timeline

introduced by the State’s forensic examiner covered a potential 36 hour period

for time of death, that there were some inconsistencies in testimony and in phone

records that were inconsistent with Hamby’s guilt), that the belt that may have

been the murder weapon was found in Hamby’s house (though Nate was

involved in its transport), that Hamby’s DNA was found on the body (though

Hamby testified he touched Frank’s body and other DNA that did not belong to

Hamby was found under Frank’s fingernails), that Hamby’s inconsistent

statements to the agents could reasonably be interpreted as efforts to conceal

his involvement (understandable given the manner of interrogation), and that

Nate was at the hospital with Meana, which was an alibi for Hamby’s
                                             16


noninvolvement in the murder (one witness said he saw Frank after the two

would have left the hospital and the timeline was not specific enough to conclude

the murder occurred while the two were at the hospital). In his supplemental

motion for new trial, Hamby also submitted e-mails of jurors he characterized as

indicating that the jurors put the burden of proof on Hamby (submitted not to

impeach the verdict, but to show a miscarriage of justice). While some evidence

may be more or less credible than other evidence, we do not find this to be such

an extraordinary case “where the evidence preponderates heavily against the

verdict.” Id. The district court did not abuse its discretion in denying Hamby’s

motion for new trial. Hamby’s ineffective-assistance-of-appellate-counsel claim is

therefore without merit. See Ledezma, 626 N.W.2d at 141.

       The    district   court   correctly   denied   of   Hamby’s   application   for

postconviction relief.

       AFFIRMED.
