                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1985
                              Filed August 5, 2015


CHARLES HENRY ARMSTRONG,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.

Kilnoski, Judge.



      Applicant appeals from the denial of his application for postconviction

relief. AFFIRMED.




      Frank E. Younes of Taylor, High & Younes, Omaha, Nebraska, for

appellant.

      Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney

General, Matthew D. Wilber, County Attorney, and Margaret Popp-Reyes,

Assistant County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, C.J.

       Charles Armstrong appeals from the denial of his application for

postconviction relief (PCR).      Armstrong maintains he received ineffective

assistance from trial counsel and direct appeal counsel.        He contends trial

counsel was ineffective for failing to impeach the credibility of a State witness

and for failing to request a mistrial when the State’s witness testified while

inebriated. He also contends direct appeal counsel was ineffective for failing to

raise a claim of newly discovered evidence. He maintains the cumulative errors

of counsel have prejudiced him.

       Because Armstrong’s general assertions regarding trial counsel’s failures

do not establish that counsel failed to perform an essential duty, we find

Armstrong did not receive ineffective assistance from trial counsel. Because the

deposition of the State’s witness, Terry Vance, taken after the conclusion of trial

does not fall within the definition of newly discovered evidence and it does not

satisfy the “extraordinary exception,” appellate counsel did not fail to perform an

essential duty, and Armstrong did not receive ineffective assistance from direct

appeal counsel. We affirm.

I. Background Facts and Proceedings.

       On August 4, 2008, Armstrong was charged by trial information with

murder in the first degree.

       Following a trial by jury, Armstrong was convicted of murder in the second

degree. Armstrong filed several posttrial motions, including a motion to continue

sentencing so trial counsel could review the posttrial deposition of Terry Vance.
                                         3


All motions were denied. Armstrong was sentenced to a term of incarceration

not to exceed fifty years.

       Armstrong filed a direct appeal in which he maintained he received

ineffective assistance of trial counsel. The supreme court transferred the case to

us, and we affirmed Armstrong’s conviction for second-degree murder.          See

State v. Armstrong, No. 08-2065, 2009 WL 5125916, at *3 (Iowa Ct. App.

Dec. 30, 2009).

       Armstrong filed an application for PCR on April 16, 2010. An evidentiary

hearing was held on May 2, 2013.             The district court denied Armstrong’s

application on November 21, 2013. Armstrong appeals.

II. Standard of Review.

       Generally an appeal from a denial of an application of PCR is reviewed for

corrections of errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa

2012). However, when an applicant asserts claims of a constitutional nature, our

review is de novo.     Id.   Thus, we review claims of ineffective assistance of

counsel de novo. Id.

III. Discussion.

       A. Claim Preclusion.

       As he did on direct appeal, Armstrong maintains trial counsel was

ineffective for failing to argue diminished responsibility and intoxication are

defenses to second-degree murder when the charge is based upon assault as a

specific-intent crime. See Armstrong, 2009 WL 5125916, at *2. Armstrong may

not reassert a claim that was decided adversely on direct appeal. See Jones v.

Scurr, 316 N.W.2d 905, 911 (Iowa 1982); see also Iowa Code § 822.8 (“Any
                                          4


ground finally adjudicated . . . in any other proceeding the applicant has taken to

secure relief, may not be the basis for a subsequent application . . . .”). As a

result, this claim is meritless.

       B. Ineffective Assistance of Counsel: Trial Counsel.

       To prevail on a claim of ineffective assistance of counsel, Armstrong must

prove by a preponderance of the evidence (1) the attorney failed to perform an

essential duty and (2) prejudice resulted from the failure.            See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).            To prove counsel failed to

perform an essential duty, he must show “counsel’s representation fell below an

objective standard of reasonableness . . . under prevailing professional norms.”

See Strickland v. Washington, 466 U.S. 668, 688 (1984).              Amstrong must

overcome a strong presumption of counsel’s competence. See id. at 689. To

establish prejudice, he must show there is “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “The likelihood of a different result must be substantial, not

just conceivable.” State v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015). We “will

not reverse where counsel has made a reasonable decision concerning trial

tactics and strategy, even if such judgments ultimately fail.” Brewer v. State, 444

N.W.2d 77, 83 (Iowa 1989).            “A defendant is not entitled to perfect

representation, rather representation which is within the normal range of

competency.” State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). The same

standards of effectiveness that apply to trial counsel also apply to appellate

counsel. Sims v. State, 295 N.W.2d 420, 424 (Iowa 1980). The claim fails if
                                         5

either element is lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa

2010).

         1. Impeach Vance’s credibility as a witness. Armstrong maintains trial

counsel was ineffective for failing to impeach the credibility of the State’s witness

Terry Vance. He claims counsel should have more thoroughly cross-examined

Vance and should have called witnesses to show Vance was untruthful in his

testimony.

         A review of the trial transcript shows that Armstrong’s trial counsel was

able to elicit responses from Vance during cross-examination that he drank

often—every day if he had the money to do so—that he had been arrested for

public intoxication approximately once a week or fifty times a year while he was

homeless, that he usually drank alcohol until he was intoxicated, that he had

been drinking the day Harriman was killed, and that he and Armstrong were

known to get into fights “quite a bit.” Additionally, through cross-examination of

Brandy Waller, trial counsel established that Vance had a tendency to tell “tall

stories” and Waller was used to having to “read between the lines when he was

intoxicated.” In response to a question from trial counsel, Waller also testified

that Vance appeared intoxicated that night and she was able to smell alcohol on

him.

         In spite of Armstrong’s contention otherwise, trial counsel did impeach

Vance’s credibility through cross-examination of both Vance and Waller.

Although Armstrong makes the general assertion that counsel should have called

other witnesses to impeach Vance, he does not identify any specific witnesses

counsel failed to call. “When complaining about the adequacy of an attorney’s
                                           6


representation, it is not enough to simply claim that counsel should have done a

better job.” Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Armstrong has not

established that counsel breached an essential duty.

       2. Move for mistrial because State’s witness was intoxicated while

testifying. Armstrong maintains trial counsel was ineffective for failing to request

a mistrial because the State’s key witness, Vance, was inebriated while testifying.

       At his deposition in his PCR proceeding, Armstrong testified that his sister

noticed a strong odor of alcohol coming from Vance at trial, and she immediately

notified trial counsel. However, this statement is the only evidence Vance was

intoxicated. Nothing in the trial transcript indicates Vance had consumed alcohol

before testifying. Armstrong’s sister did not testify at trial or at Armstrong’s PCR

hearing. Additionally, a deposition of trial counsel was taken in connection with

the PCR proceedings, but counsel was not asked whether he noticed any signs

of possible intoxication or if Armstrong’s sister had brought any concerns to his

attention. Armstrong’s self-serving statement is not sufficient to prove Vance

was intoxicated.    Armstrong has not established by a preponderance of the

evidence that counsel failed to perform an essential duty by not requesting a

mistrial. See State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011) (“[T]rial counsel

has no duty to pursue a meritless issue . . . .”).

       C. Ineffective Assistance of Counsel: Direct Appeal Counsel.

       Armstrong also maintains he received ineffective assistance from direct

appeal counsel. He maintains direct appeal counsel should have raised a claim

of newly-discovered evidence that would have impeached the testimony of

Vance and resulted in the granting of a new trial. Specifically, Armstrong claims
                                         7


a deposition taken of Vance after the trial contained inconsistencies and detailed

descriptions of Vance’s issues with drugs and mental health issues.

       During the posttrial deposition of Vance, he made the following statements

about Armstrong’s co-defendant, Mark Foster.

               A: [Foster] kicked [Harriman] multiple times, stomped on his
       face. Well, I can’t really be honest to say that he stomped his face,
       but I know he kicked him multiple times.
               I think he stomped on his face a couple times, but I didn’t
       say that before, so I shouldn’t be saying it now. But he stomped on
       his face a couple times. That’s probably what got his nose broke.
       I’m not for sure.
               Q: So he kicked him, and now you’re testifying today that he
       stomped on him? A: Yeah. I’m going to drop out that stomping
       part because I didn’t—this is the first time I brought that up, so I’m
       just going to say he kicked him. I can’t say he stomped on his face.
       I can’t say that.

Additionally, at the posttrial deposition, Vance testified for the first time that he

had been diagnosed with paranoid schizophrenia in approximately 1995 and had

not seen a psychiatrist since 1996. He further testified that he was not taking any

medications for the diagnosis and believed he could self-medicate with alcohol.

He testified he had not had problems with hallucinations “in a long time.”

       In order to receive a new trial based on newly discovered evidence, the

claimant must establish:

       (1) the evidence was discovered after the verdict; (2) the evidence
       could not have been discovered earlier in the exercise of due
       diligence; (3) the evidence is material to the case and not merely
       cumulative or impeaching; and (4) the evidence probably would
       have changed the result of the trial.

Grissom v. State, 572 N.W.2d 183, 184 (Iowa 1997). “Thus, by definition, newly

discovered evidence refers to evidence which existed at the time of the trial
                                         8


proceeding. Acts or events occurring subsequent to trial do not generally qualify

as newly discovered evidence.” Id. (internal citations omitted).

       The second deposition of Vance, taken approximately two weeks after

Armstrong’s trial concluded, does not fall within the definition of newly discovered

evidence. The alleged inconsistent testimony given in the deposition did not

occur until after trial, thus it could not have been introduced at trial. Moreover,

this is not an “extraordinary case when an ‘utter failure of justice will

unequivocally result’ if the new evidence is not considered or where it is no

longer just or equitable to enforce the prior judgment.” Id. at 185 (citing Benson

v. Richardson, 537 N.W.2d 748, 763 (Iowa 1995)). Any inconsistencies about

Foster stomping or kicking Harriman were minor—both convey that Vance

witnessed Foster use his foot to inflict injury on Harriman. Additionally, Vance

testified about mental health issues but clarified that he had not suffered for a

long time. At trial, Vance testified he drank almost daily and had been drinking

on the day in question.

       Because the deposition of Vance taken after the conclusion of trial does

not fall within the definition of newly discovered evidence and it does not meet

the “extraordinary exception,” appellate counsel had no duty to raise the claim of

newly discovered evidence. See Utter, 803 N.W.2d at 652.

       D. Cumulative Effect.

       Armstrong maintains we should determine whether he was prejudiced by

the cumulative effect of trial counsel and appellate counsel’s errors. See State v.

Clay, 824 N.W.2d 488, 500 (Iowa 2012) (“Under Iowa law, we should look to the

cumulative effect of counsel’s errors to determine whether the defendant satisfied
                                          9

the prejudice prong of the Strickland test.”). While we agree that consideration of

cumulative prejudice is the proper analysis, because we have already concluded

that none of Armstrong’s allegations amounted to failure to perform an essential

duty, we need not consider whether Armstrong was prejudiced. See Kirchner v.

State, 756 N.W.2d 202, 204 (Iowa 2008) (“The court need not address both

components if the [applicant] makes an insufficient showing on one of the

prongs.”).

IV. Conclusion.

          Because Armstrong’s general assertions regarding trial counsel’s failures

do not establish that counsel failed to perform an essential duty, we find

Armstrong did not receive ineffective assistance from trial counsel.      Because

Vance’s deposition taken after the conclusion of trial does not fall within the

definition of newly discovered evidence and it does not satisfy the “extraordinary

exception,” appellate counsel did not fail to perform an essential duty, and

Armstrong did not receive ineffective assistance from direct appeal counsel. We

affirm.

          AFFIRMED.
