                    IN THE COURT OF APPEALS OF IOWA

                             No. 3-1208 / 13-0209
                            Filed February 19, 2014


RONALD D. HAY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Buchanan County, Todd A. Geer,

Judge.



      Ronald Hay appeals from the denial of his application for postconviction

relief. AFFIRMED.




      John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Shawn M. Harden, County Attorney, and Dustin S. Lies, Assistant

County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.
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POTTERFIELD, J.

       Ronald Hay appeals from the denial of his application for postconviction

relief. He argues his trial counsel was ineffective for failing to call a witness and

in failing to object to or request a jury instruction. He argues his postconviction

counsel was ineffective in failing to obtain the testimony of a different witness.

Finally, he argues the prosecutor committed misconduct in surprising him at trial

with an aiding and abetting theory. We affirm.

  I.   Facts and Proceedings.

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

forth the facts here as written in the direct appeal:

               On September 30, 2005, a deputy sheriff came to Hay’s
       home to talk to him about a motorcycle of his that was stolen. The
       deputy saw an overhead garage door was open and he walked
       inside looking for Hay. He noticed two LP tanks with altered fittings
       and valves and a bottle of Red Devil Lye drain opener. Eventually
       Hay came to the door of his home and told the deputy his brother
       was with him. At the deputy’s request Hay stepped out and, when
       questioned, told the deputy the garage and the things in it were his.
       The two men went to the garage where the deputy inspected the
       tanks. There was a glass Frank’s Sauerkraut jar containing liquid
       on a shelf, coffee filters, and white sediment. Hay denied the
       deputy’s request to search his house and garage and a search
       warrant was obtained. Subsequently the officers additionally found
       Rooto drain opener, a garden hose, Red Devil Lye, an open lithium
       battery pack containing alkaline batteries, coffee filters, an empty
       starter fluid can, a light bulb smoking device, a Mason jar with
       Coleman fuel, a Mountain Dew bottle containing a white mixture
       with a rag in the bottle and a hose, four ketchup bottles containing
       salt, a box of glass tubes and beakers, a self-contained-breathing-
       apparatus mask, miscellaneous glassware, a notebook with Hay’s
       name on it, three hypodermic needles, a spoon with white residue
       and a cotton ball, a finger scale, plastic baggies some marked with
       “25” and “100,” a can of Coleman fuel, a scale with a small quantity
       of methamphetamine on it, a snort tube, and a shaving cream can
       with a false bottom that contained several small clear baggies.
               Three items were taken to the DCI laboratory. A criminalist
       with the division explained at trial the process of manufacturing
                                           3


         methamphetamine using the lithium-ammonia reduction method.
         She examined the three items seized from Hay. The items
         included a bilayer of liquid with coffee filters and solids. She took
         samples of the upper layer of the liquid and found it contained
         methamphetamine. She examined the lower level, which she found
         consistent with engine starting fluid and it contained ether in
         addition to methamphetamine, CMP [a by-product of manufacturing
         methamphetamine], and a precursor, pseudoephedrine.               She
         examined a metal spoon containing a fiber wad and residue. She
         found     the   spoon       had    crystalline    reside    containing
         methamphetamine and dimethyl sulfone which is a veterinary
         product used as a cutting agent. There was a plastic bag
         containing a white crystalline substance and dimethyl sulfone.

State v. Hay, No. 06–1032, 2008 WL 2902172, at *2–3 (Iowa Ct. App. July 30,

2008).

         Hay was arrested and a charged by trial information with manufacturing

more than five grams of methamphetamine as a second offender. Trial before a

jury commenced May 10, 2006. Hay testified and presented as his defense

evidence the material in his garage belonged to another person. The jury found

Hay guilty as charged on May 15, 2006. Hay appealed to this court. and we

affirmed the trial court on July 30, 2008. See id. Hay filed an application for

postconviction relief, alleging several claims of ineffective assistance of counsel

and prosecutorial misconduct. Hay’s original trial counsel died between the trial

and postconviction proceedings.           Hay and his mother testified at the

postconviction proceeding, along with the trial court judge. The depositions of

two police witnesses were submitted to the court after the hearing. On January

30, 2013, the postconviction court dismissed Hay’s application. He appeals.

 II.     Analysis.

         We review claims of ineffective assistance of counsel de novo. Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001). To demonstrate he was provided
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with ineffective assistance, Hay must show both that his counsel performed

deficiently and that but for this deficiency, there is a reasonable probability that

the result of the proceeding would have been different. Id. at 142–43. We need

not look to whether counsel’s performance was deficient if Hay cannot

demonstrate prejudice.      See id. at 143.       “[T]he nature of the ineffective

assistance as well as the nature and strength of the evidence produced by the

State at trial are important factors” when determining whether a defendant was

prejudiced by his counsel’s alleged deficiencies. Id. at 148.

          A. Failure to call witnesses.

       Hay’s defense at trial consisted of alleging the methamphetamine

production paraphernalia found by police in his house belonged to various other

people. In the case of the sauerkraut jar, he argued the jar belonged to Todd

Manley, who was arrested for manufacturing methamphetamine. He argues now

that his trial counsel was ineffective for failing to call Mike Derbyshire, who was to

testify that he helped unload Manley’s belongings into Hay’s garage. In its ruling

on Hay’s application for postconviction relief, the district court noted the evidence

presented by this witness would have been cumulative to testimony offered at

trial by another defense witness. We agree and therefore conclude Hay cannot

demonstrate the requisite prejudice to establish his ineffective-assistance claim

regarding this witness. See id. at 143.

       Hay next argues his postconviction counsel was ineffective in failing to find

and   depose    or   otherwise   secure    Manley’s    testimony.      He   reasons,

“Postconviction counsel knew that Hay’s defense was that the jar and its

contents belonged to Manley. Had postconviction trial counsel secured Manley’s
                                         5


testimony, said testimony would be available for consideration by the

postconviction court.” Hay does not argue now, and did not argue before the

postconviction court, that his trial counsel was ineffective for failing to call

Manley.   It is unclear what issue Manley’s testimony could have aided the

postconviction court in deciding.    Hay’s postconviction arguments were: trial

counsel was ineffective in failing to call Derbyshire, failing to object to jury

instructions, and failing to request a spoliation instruction.    He also raised

prosecutorial misconduct, claiming he was excluded from conferences on jury

instructions, and that his conviction was supported by insufficient evidence. Out

of all of these claims, Manley’s testimony could only pertain to the sufficiency of

the evidence, and the district court correctly found we already determined that

issue on Hay’s direct appeal. We therefore find Hay’s postconviction counsel did

not breach an essential duty by failing to call Manley as a witness. See id. at

142.

          B. Failure to object to aiding and abetting instruction and request

             accessory after the fact instruction.

       Hay next argues his counsel was ineffective in failing to object to an

instruction on aiding and abetting the manufacture of methamphetamine.

Instead, Hay argues his counsel should have requested an instruction on acting

as an accessory after the fact. The district court dismissed this argument, stating

the aiding and abetting instruction was appropriate in light of Hay’s defense—that

the items seized belonged to someone else. Hay relies on our rule that “[a]n

accused may not be convicted as a principal on the theory of aiding and abetting

for conduct that only supports an accessory after the fact.” State v. Hustead, 538
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N.W.2d 867, 870 (Iowa Ct. App. 1995). Hay argues he “simply testified that the

jar containing evidence of methamphetamine was not his.” However, he told

police everything in the garage was his, testified he personally moved the jar into

the garage, and he blamed others for the remaining manufacturing paraphernalia

found inside his home. He stated he, along with two other people, wrote in a

notebook containing instructions for the purchase of items to manufacture

methamphetamine. This is not a situation where the evidence only supported a

theory of Hay acting as an accessory after the fact. An objection to the aiding

and abetting instruction would not have been effective; counsel therefore had no

duty to request an accessory after the fact instruction. See State v. Maxwell, 743

N.W.2d 185, 197 (Iowa 2008) (“When the submission of a superfluous jury

instruction does not give rise to a reasonable probability the outcome of the

proceeding would have been different had counsel not erred, in the context of an

ineffective-assistance-of-counsel claim, no prejudice results.”).

           C. Prosecutorial misconduct.

       Hay’s final argument is that the prosecutors committed misconduct when

they failed to notify him before trial they would request an aiding and abetting

instruction.1 He argues “The State never charged Hay under a theory of aiding

and abetting and the State’s evidence did not support an aiding and abetting

theory. Hay suffered prejudice because he was unable to adequately prepare a



1
  The State argues the prosecutorial-misconduct claim can only be raised in the context
of an ineffective-assistance-of-counsel claim because it was not raised at trial. However,
the State did not argue Hay’s prosecutorial-misconduct claim was waived before the
postconviction court.      The postconviction court addressed Hay’s prosecutorial
misconduct claim on the merits. We therefore consider the issue as submitted by Hay.
DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
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defense that would rebut this theory.” Hay cites no authority for his claim an

aiding and abetting theory could not be raised at trial. In fact, our supreme court

has explicitly held such notice is not necessary. Wilker v. Wilker, 630 N.W.2d

590, 595 (Iowa 2001) (“We do not require the theory of aiding and abetting to be

pled even in a criminal case where the loss of many fundamental interests are at

stake.”); see also State v. Black, 282 N.W.2d 733, 734 (Iowa 1979).            We

therefore affirm.

       AFFIRMED.
