                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0540
                               Filed March 23, 2016


ROBERT CHARLES WADDELL,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark D. Cleve,

Judge.



      Robert Charles Waddell appeals from the denial of his application for

postconviction relief. AFFIRMED.



      Lauren M. Phelps, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Aaron Rogers, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., Vogel, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

       Robert Charles Waddell was convicted of first-degree robbery, assault

causing serious injury, going armed with intent, fifth-degree theft, and assault

while participating in a felony by a jury trial held in November of 2003. The latter

assault was merged with the robbery conviction, and he was sentenced

accordingly.   He appealed and the supreme court dismissed his appeal as

frivolous. Waddell then filed his first postconviction-relief action. His request was

denied.   He appealed, and again, the appeal was dismissed as frivolous.

Waddell has filed a second request for postconviction relief, and that was also

denied. Waddell again has appealed.

   I. Background Facts

       On January 14, 2003, Waddell was observed leaving a grocery store in

Davenport with a quantity of meat that he had not paid for. A store employee

followed him and attempted to apprehend him in the parking lot.              A fight

developed and eventually three other bystanders came to the store employee’s

assistance. The store employee observed Waddell pull a knife from his clothing.

Waddell threatened to kill those trying to apprehend him. The store employee

grabbed Waddell’s wrist that held the knife in an attempt to control its use.

Those apprehending Waddell demanded that he drop the knife, but he did not do

so until he had been thrown to the ground and one of the bystanders stepped on

his hand with enough force that Waddell lost his grip and the knife was kicked

away. There was no testimony that any other knife was involved.
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       Mark Angotti, one of the bystanders who entered the fray, suffered a cut to

his wrist that severed some of his tendons. Waddell also suffered minor cuts.

There was blood on the ground, on the knife, and on several items of clothing.

       The police were called and collected the knife and some of the bloody

clothing. The items were tested to determine whose blood was present on the

items seized. The results indicated that only Waddell’s DNA was on the knife

and both Waddell’s and Angotti’s DNA appeared on the bloodstained clothing.

The results of the DNA tests were admitted at trial. Waddell’s defense was that

he had paid for the meat, and he also raised a claim of diminished capacity.

       Waddell now contends that his first postconviction counsel was ineffective.

There were surveillance cameras in the grocery store where the theft took place,

but no product of the cameras was admitted into evidence at the trial. Murray

Bell was Waddell’s counsel during the trial resulting in his conviction.        Bell

testified at the first postconviction hearing that the prosecutor had advised him

she was unable to make the equipment work to display the surveillance video.

The video was not shown to the jury at the trial. At his request Bell was given

access to the video prior to trial and had been successful in getting the

equipment to play the surveillance video. Bell testified that it showed Waddell left

the store without paying for the meat and went to the parking lot, just as the

State’s evidence would show. Bell decided not to say anything more about the

surveillance video.    The first postconviction counsel did not examine the

surveillance film and Waddell contends that the failure to do so constituted

ineffective assistance of counsel. Waddell hoped the video would exonerate him

and impeach Bell.
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          The surveillance video was obtained, converted to a reviewable form as a

part of the second postconviction proceeding, and reviewed by the court before

ruling.      In addition, prior to the second postconviction proceeding, an

independent review of the examination of the DNA testing of the blood-stained

items was also obtained.         The trial court denied Waddell’s request for

postconviction relief.    Waddell now claims that his counsel in his second

postconviction-relief proceeding was ineffective for failing to object to the

admission of the video made by the surveillance cameras. Waddell also claims

that his first postconviction-relief counsel was ineffective for failing to get an

independent examination of the stained clothing. In addition, Waddell contends

that the trial court in this postconviction hearing erred in its analysis of the blood

testing made by the independent examiner. Finally, Waddell claims the second

postconviction counsel was ineffective for failing to file a request with the court to

amend or enlarge its misstatement of the expert’s testimony.

   II. Error Preservation

          The State concedes Waddell preserved error on the admission of the

video into evidence and the trial court’s misinterpretation of the independent

examiner’s review of the blood test. To the extent Waddell claims his counsel in

the second postconviction hearing was ineffective, the traditional rules of error

preservation are not applicable. See State v. Fountain, 786 N.W.2d 260, 263

(Iowa 2010).

   III. Scope of Review

          Ineffective-assistance-of-postconviction-counsel claims are based on a

statutory right rather than a constitutional right, but the standard of review
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remains de novo.      Collins v. State, 588 N.W.2d 399, 401-02 (Iowa 1998).

Evidentiary rulings are reviewed for abuse of discretion. State v. Jordan, 663

N.W.2d 877, 879 (Iowa 2003).

   IV. Discussion

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

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

essential duty and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134,

142 (Iowa 2001). A claim of ineffective assistance of counsel must overcome the

presumption that counsel is competent. Taylor v. State, 352 N.W.2d 683, 685

(Iowa 1984).     Choices of strategy after proper investigation are virtually

unchallengeable. Ledezma, 626 N.W.2d at 143. For relief to be granted there

must be a determination that but for effective assistance there is a probability the

result would have been different. Id. at 145. It logically follows that any error on

a technical issue not material to the prosecution’s case is not grounds to grant

relief since no prejudice results. Counsel is not ineffective for failing to file a

meritless claim. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).

   A. Failure to obtain an independent test of the stained clothing

       The DNA of the blood stains was of little or no importance in Waddell’s

conviction. The record established that there was only one knife involved and

Waddell had possession of it during the entire altercation until he was finally

subdued. A review of the testing was obtained prior to the second postconviction

hearing. The independent reviewer testified he agreed that both Waddell’s and

Angotti’s DNA were present on the clothing submitted and that only Waddell’s

DNA was on the knife.
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       Waddell contends it is important that the independent examiner testified

no test had been made as to whether the stains were blood stains. The lab

report submitted at the underlying trial referred to the stains as “apparent blood”

and no test was made to ascertain the material creating the stain. The stained

materials were submitted for testing by the investigating officers to determine

whose blood was present in the sample and not whether or not it was blood. At

the time they gathered the items in question they did not need a test to determine

if the substance was blood. It was obvious. The only question was whose blood

had created the stains. The first postconviction counsel had no duty to obtain a

review of the lab report since whose blood was on the items was immaterial to

Waddell’s conviction. Furthermore, the failure to do so was not prejudicial as all

the independent testing did was to confirm the results. Finally, the district court

in this proceeding did not incorrectly characterize the results of the independent

expert’s testimony. The court correctly noted the independent test confirmed the

original results. The fact there was no test to determine what had caused the

stains did not impact the test results.

   B. The surveillance video

Initially, Waddell contended that his first postconviction counsel had a duty to

review the surveillance video. At the conclusion of his second postconviction

hearing, the court ordered that the hearing be left open for the video to be viewed

with the specific direction to make it available to Waddell. Because of the age of

the equipment and tape and fear of damage to the tape, a forensic computer

examiner from the Davenport Police Department found it necessary to transfer

the video contents to a compact disc. The court in its ruling noted that Waddell
                                        7


had reviewed the video. Waddell’s appellate brief makes much of the lack of any

other statement in the record that Waddell or his counsel at the second

postconviction hearing had had an opportunity to review the video. Waddell’s

appellate counsel is not the same counsel as the counsel he had at the district

court hearing on the second postconviction-relief action.

       It is apparent that either Waddell or his current postconviction counsel, if

not both, had reviewed the video. The first part of the second postconviction

hearing was held on February 28, 2013. At that time Waddell objected that he

had not had an opportunity to view the video. The court stated, “If it’s possible I

will make arrangements that you get to view the thing as well,” referring to the

video. On April 18, 2013, Waddell’s counsel stated a video had been produced

for the court and contended that it was not the original, but a transcription and

objected to its admission.    It is obvious that at least Waddell’s counsel, by

April 18, had viewed the transcribed video and the only objection was that it was

not the original.    The court ordered a hearing to consider if an adequate

foundation for the admission of the transcription of the video could be made.

       At the hearing the forensic computer examiner testified as to the

procedure used and the fact that he had prepared both a complete transfer of the

video and transfer of only the relevant portions.     Waddell contends that his

second postconviction counsel was ineffective for not objecting to the

admissibility of the video. The record establishes that he did, in fact, lodge an

objection that was overruled after the evidence at the hearing established a

foundation for its admissibility. The court reviewed the video and found it to be

just as Bell had testified.
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        To the extent Waddell contends the court committed an error in admitting

the video, the ruling can only be reversed for an abuse of discretion. See State

v. Nelson, 791 N.W.2d 414, 419 (Iowa 2010). An abuse of discretion exists only

when the grounds for admission are clearly untenable and unreasonable. Id.

The courrt’s admission of the video based on the foundation laid is not

unreasonable. In any event, the State did not need the video to defend against a

claim of ineffective assistance of counsel. Bell’s testimony as to the content of

the video had not been challenged. Waddell desired and needed the video to

impeach Bell and exonerate himself, and it did not fill that need. Its admission

became meaningless; even if it were inadmissible, its admission would be

harmless error. To the extent Waddell claims that counsel should have filed a

motion to amend or enlarge, lack of error preservation was not raised by the

State and is not an issue.

   C. Various other claims

        Waddell’s appellate brief made mention of various other claims that were

raised at the trial level. Waddell complains of the waiver of his attorney-client

privilege in the first postconviction hearing. In that hearing a letter from Waddell

to Bell was admitted into evidence in which he confessed he did not pay for the

meat.    An attorney-client privilege existed in the original criminal trial but it

disappeared when the postconviction-relief petition was filed. State v. Tate, 710

N.W.2d 237, 241 n.2 (Iowa 2006); Johnson v. State, 860 N.W.2d 913, 921 (Iowa

Ct. App. 2014).

        Waddell also objects to the first postconviction counsel’s apparent failure

to keep out of the record his claim of diminished capacity in the initial criminal
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trial. The original trial is the focus of a postconviction-relief proceeding, and it is

hard to visualize when the record made at the original trial would not be available

to either party to the proceeding as well as to the court. If such an exception

exists, it has not been pointed out to this court, and there is no reason to think it

would be applicable to this case.

       Waddell’s appellate brief provided no legal authority for the miscellaneous

other claims made. When no supporting authority is given for a claim in an

appellate brief, the claim is waived for purposes of appeal. Iowa R. App. P.

6.903(2)(g)(3).

       AFFIRMED.
