                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0175
                                Filed June 5, 2019


DEANDREW HARRIS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       DeAndrew Harris was granted interlocutory appeal of a district court ruling

denying his motion for an expert witness at state expense in this postconviction-

relief proceeding. AFFIRMED AND REMANDED.




       Alexander Smith of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann L.L.P., Des Moines, for appellant.

       Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.



       Considered by Potterfield, P.J., Tabor, J., and Gamble, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                         2


GAMBLE, Senior Judge.

       DeAndrew Harris filed an application for interlocutory appeal of a district

court ruling denying his motion for an expert witness at state expense.          Our

supreme court granted interlocutory appeal and transferred the case to this court.

Because the district court did not abuse its discretion in determining Harris failed

to demonstrate it was reasonably necessary to appoint an expert and Harris

requested no additional ruling on the statutory and constitutional claims he now

urges on appeal, we affirm and remand for further proceedings.

I. Background Facts and Proceedings.

       Harris was convicted by a jury of first-degree robbery, first-degree burglary,

and being a felon in possession of a firearm as a habitual offender. On appeal,

Harris asserted error in the denial of his motion to suppress, in which he contended

there had been an impermissibly suggestive photo lineup; the court erred in

allowing impermissible hearsay; and there was insufficient evidence of

identification to support the convictions. State v. Harris, No. 15-0855, 2016 WL

4801444, at *2 (Iowa Ct. App. Sept. 14, 2016).           This court addressed each

contention and affirmed the convictions, finding the photo lineup was not

impermissibly suggestive, id. at *2; exceptions to the hearsay rule allowed the

deposition testimony of an unavailable witness to be admitted, id. at *3-4; prior

statements of identification by a witness who has testified at trial and is available

for cross-examination are not hearsay, id. at *5; and substantial evidence

supported the convictions, id. Specifically, we noted:

       Among other things, cell phones were taken by the intruders. All of
       the victims remembered one intruder had red-tipped locks and was
       holding a small silver gun. Four of the five victims identified Harris—
                                          3


       even without bright red locks—in the photo lineup. A small silver gun
       was found with the victims’ stolen phones, and Harris’s DNA was
       found on that gun. Finally, Harris’s alibi was questionable, and it was
       for the jury to determine whether or not Harris’s alibi witness was
       credible.

Id.

       Harris filed an application for postconviction relief (PCR), and his appointed

counsel filed a supplemental and amended petition on October 29, 2017. In the

amended petition, Harris asserts trial counsel was ineffective in various ways,

three of which are relevant for our purposes:

               Counsel was ineffective, and unfair prejudice resulted, when
       counsel
               (a) Did not call an eyewitness identification expert to instruct
       the jury on factors that affect eyewitness identifications, such as the
       presence of a weapon, presence of violence or stress, duration of
       the incident, confidence in the identification, cross-racial impairment,
       or various impermissibly-suggestive identification procedures.
               (b) Did not call a similar eyewitness expert on the motion to
       suppress the lineups.
               (c) Did not request a jury instruction on eyewitness
       identifications.

       Harris filed an application for an expert witness at state expense, alleging

he needed to consult with an expert regarding prior trial counsel’s failure to call an

eyewitness-identification expert and to request a jury instruction regarding the

reliability of eyewitness identification. Specifically, Harris sought an expert opinion

regarding factors affecting eyewitness identification, including the presence of a

weapon, violence, or stress; the duration of the incident; confidence in the

identification; cross-racial identification impairment; and impermissibly suggestive

identification procedures. He asserted the right to investigate and to retain expert

services is encompassed within the right of effective assistance of counsel.
                                         4


      The PCR court denied Harris’s application for an expert witness at state

expense. The court found the facts of the case negated the need for an expert

witness on eyewitness identification. The court noted four out of five victims

identified Harris. Harris’s DNA was found on a weapon used in the robbery, placing

him at the scene. Harris’s explanation for the presence of his DNA on the weapon

was speculative.

      Harris filed an application for interlocutory appeal on the denial of his

request for an expert at state expense. The supreme court granted the application

and transferred the case to our court.

II. Preservation of Issues.

      Harris argues he has a statutory and constitutional right to state funds for

experts in PCR proceedings.       He also asserts the district court abused its

discretion in denying funds for his proposed expert. The State, however, asserts

the PCR court did not decide whether an applicant has a right to state funds for an

expert witness and did not decide whether the effective assistance of PCR counsel

required an expert witness; consequently, the State argues, those claims of right

are not properly before this court. See Lamasters v. State, 821 N.W.2d 856, 862

(Iowa 2012) (“It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide

them on appeal.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002))).

The court’s ruling assumes an applicant has a right to an expert if an expert would

be necessary to the applicant’s claim. This implicit ruling adequately preserves
                                              5


Harris’s contention that the district court abused its discretion in denying his

request for funds for an expert witness.1

III. Scope and Standard of Review.

          Refusal to appoint an expert witness at state expense is reviewed for an

abuse of discretion. Cf. State v. Leutfaimany, 585 N.W.2d 200, 207 (Iowa 1998).

We have applied this same standard where a PCR court denies an applicant’s

request for the appointment of an expert witness. See Penwell v. State, No. 09-

1820, 2011 WL 238196, at *5 (Iowa Ct. App. Jan. 20, 2011); Pegram v. State, No.

99-1093, 2001 WL 913817, at *5 (Iowa Ct. App. Aug. 15, 2001). An abuse of

discretion occurs when the trial court exercises its discretion “on grounds or for

reasons clearly untenable or to an extent clearly unreasonable.” State v. Maghee,

573 N.W.2d 1, 5 (Iowa 1997). “A ground or reason is untenable when it is not

supported by substantial evidence or when it is based on an erroneous application

of the law.” Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

IV. Discussion.

          Harris sought state funds in the amount of $5000 to obtain the assistance

of Dr. Shari Berkowitz, an expert on eyewitness identification and assistant

professor at California State University. Counsel asserted,

                  These expert services are necessary to show that knowledge
          of these eyewitness identification issues are widely known in the
          criminal defense community and the type of prejudice that Mr. Harris
          suffered because counsel did not have an expert witness or request
          a jury instruction that could explain these issues to the jury.




1
    We need not address whether the presumed right is statutory or constitutional in nature.
                                         6


         Harris argues the PCR court applied the wrong legal standard in

determining the necessity of an expert witness. Harris claims the court decided he

will be unable to show prejudice and, therefore, an expert is not necessary. Harris

asserts the court granted a summary disposition on the issue of prejudice,

essentially putting the cart before the horse. However, we are not persuaded the

PCR court applied an incorrect legal standard in rejecting Harris’s request. The

court did not grant summary judgment. It denied Harris request for state funds to

hire an expert witness, which the court ruled was unnecessary. The court applied

the correct legal standard. See Leutfaimany, 585 N.W.2d at 208.

         “An indigent criminal defendant is not entitled to appointment of expert

services at state expense unless there is a finding that the services are necessary

in the interest of justice.” Id. The movant “bears the burden to demonstrate a

reasonable need for the appointment of an expert.” Id. This same standard applies

when an indigent applicant seeks appointment an expert witness at state expense

in a PCR action. See Penwell, 2011 WL 238196, at *6; Pegram, 2001 WL 913817,

at *6.

         This need for an expert must be considered in the context of the PCR

proceeding where the ultimate issue is whether Harris’s trial counsel was

ineffective. To prove an ineffectiveness claim, Harris must prove must prove by a

preponderance of the evidence that (1) counsel failed to perform an essential duty

and (2) he suffered prejudice as a result. See State v. Morgan, 877 N.W.2d 133,

136 (Iowa Ct. App. 2016).
                                          7


       A. Is an eyewitness-identification expert witness necessary to

establish counsel was ineffective in failing to call an eyewitness-

identification expert?

       Harris’s own request notes “that knowledge of these eyewitness

identification issues are widely known in the criminal defense community.”

(Emphasis added.) See United States v. Wade, 388 U.S. 218, 228 (1967) (“The

vagaries of eyewitness identification are well-known; the annals of criminal law are

rife with instances of mistaken identification.”). An eyewitness-identification expert

thus is not necessary with respect to whether counsel’s performance fell outside

the normal range of competency. For example in State v. Shorter, 893 N.W.2d 65,

81–82 (Iowa 2017), the court observed:

               Preparing for eyewitness identification is an essential
       responsibility of defense counsel. Eyewitness testimony may have
       a dramatic influence on overall defense strategy or theory of the
       case. Defense counsel must consider a pretrial motion to suppress.
       Voir dire may be used to educate the jury about honestly mistaken
       witnesses. Defense counsel must be prepared to explore the
       potential for error in the identification process through effective
       cross-examination. Cross-examination, however, is not likely to be
       effective when a person is genuinely mistaken about past events.
       Consideration should be given to obtaining expert witness testimony
       of the problems with eyewitness identification. See State v. Schutz,
       579 N.W.2d 317, 319 (Iowa 1998) (holding admission of expert
       witness on eyewitness identification within sound discretion of the
       court); see also People v. McDonald, 690 P.2d 709, 725–26 (Cal.
       1984) (en banc) (holding exclusion of expert on reliability of
       eyewitness testimony was an abuse of discretion), overruled on
       other grounds by People v. Mendoza, 4 P.3d 265, 286 (2000).
       Special instructions for the jury may need to be considered.
       Summations must be designed to deal with the eyewitness
       identification.

       Thus, problems with eyewitness identification is not a new concept in Iowa

jurisprudence. To address the issue, our supreme court overruled a prior per se
                                          8


rule of exclusion and recognized the admissibility of expert testimony on

eyewitness identification in Schutz, 579 N.W.2d at 320 (“We found no state

appellate court other than Iowa with a per se rule of exclusion of expert testimony

regarding eye witness identification. . . . The exclusion of expert testimony is a

matter committed to the sound discretion of the trial court and we will reverse only

for an abuse of that discretion.” (citations omitted)). An eyewitness expert witness

offers no support in Harris’s burden to show a breach of the standard of

competency for trial counsel.

         Harris’s claim of need for an eyewitness-identification expert thus concerns

his burden to prove prejudice in failing to call an eyewitness expert. With respect

to the prejudice prong of an ineffectiveness claim, Harris must show that but for

counsel’s unprofessional errors there is a reasonable likelihood the result of the

trial would have been different. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa

2001).

         We do not find the court abused its discretion in examining the facts to

determine whether an eyewitness-identification expert was necessary to prove that

Harris suffered prejudice due to counsel’s alleged failures. Appointment of an

expert is not necessary if the facts demonstrate there is no reasonable likelihood

the result of the trial would have been different had counsel called an expert

witness on eyewitness identification. Cf. State v. Archer, No. 16-0590, 2017 WL

1735643, at *6 (Iowa Ct. App. 2017) (“The location of the knife was in the path

Archer took from the courtyard. [The victim’s] DNA was found on the knife. . . .

Even had Archer’s trial counsel challenged the eyewitness identifications by calling

an expert witness, by requesting the stock eyewitness-identification instruction, or
                                               9


by doing both, there is no reasonable possibility of a different outcome at trial.

Archer has not proven the prejudice prong of his ineffective-assistance-of-counsel

claim.     His claim of ineffective assistance on the eyewitness-testimony issue

therefore fails.”). Even if PCR counsel was allowed to present expert testimony

challenging the four eyewitness identifications, the eyewitness-identification expert

would be unable to address the presence of Harris’s DNA on the gun. Therefore,

considering the DNA evidence, the PCR court did not abuse its discretion in

determining the appointment of an expert at state expense was not necessary in

the PCR proceeding to assist the court is deciding this ineffective-assistance-of-

counsel claim.

          B. Is an eyewitness-identification expert witness necessary to

establish counsel was ineffective in failing to request an instruction on

eyewitness identification?

          Iowa Criminal Jury Instruction 200.45 is a stock instruction on eyewitness

identification based on United States v. Telfaire, 469 F.2d 552, 558 (D.C. Cir.

1972).2 See State v. Tobin, 338 N.W.2d 879, 881 (Iowa 1983) (noting use of the


2   Iowa Criminal Jury Instruction 200.45 provides:
                  The reliability of eyewitness identification has been raised as an
         issue. Identification testimony is an expression of belief or impression by
         the witness. Its value depends on the opportunity the witness had to see
         the person at the time of the crime and to make a reliable identification
         later.
                  In evaluating the identification testimony of a witness, you should
         consider the following:
                  (1) If the witness had an adequate opportunity to see the person at
         the time of the crime. You may consider such matters as the length of time
         the witness had to observe the person, the conditions at that time in terms
         of visibility and distance, and whether the witness had known or seen the
         person in the past.
                  (2) If an identification was made after the crime, you shall consider
         whether it was the result of the witness’s own recollection. You may
                                            10


instruction is not “discourage[d]” but refusal to give it in the case was not reversible

error). Trial counsel could also have requested an instruction concerning cross-

racial impairment. See Williams v. Ault, No. C07-3072-MWB, 2010 WL 299155,

at *16 (N.D. Iowa Jan. 19, 2010) (“The court agrees with those courts who have

recognized the shortcomings in standard instructions on eyewitness identification,

particularly in those involving cross-racial identifications.” (citing Brodes v. State,

614 S.E.2d 766, 771 (Ga. 2005) (finding jury instruction that jurors may consider

the “level of certainty” of witness identification was erroneous in light of scientific

evidence suggesting such a correlation is weak); Arizona v. Youngblood, 488 U.S.

51, 72 n. 8 (1988) (Blackmun, J., dissenting) (cross-racial identifications are much

less likely to be accurate than same-race identifications)).

       Harris argues expert testimony concerning a jury instruction on eyewitness

testimony is necessary to remind jurors that eyewitness identifications are not

always reliable. At the hearing, the PCR court asked: “But do you really need an

expert to say that the instruction should or should not have been given on this?

What is she going to add to the case you can’t take care of yourself?” Counsel

responded: “Just to point out the jury instructions were not had and then the hope

that that—we need someone that can show that these jury instructions on this

sociological level that they do remind jurors that eyewitness identifications are not



       consider the way in which the defendant was presented to the witness for
       identification, and the length of time that passed between the crime and the
       witness’s next opportunity to see the defendant.
                (3) An identification made by picking the defendant out of a group
       of similar individuals is generally more reliable than one which results from
       the presentation of the defendant alone to the witness.
                (4) Any occasion in which the witness failed to identify the
       defendant or made an inconsistent identification.
                                         11


always reliable and they need to be had.” We find counsel is able to make that

point without an expert witness on eyewitness identification. See Shorter, 893

N.W.2d at 82 (recognizing duty to prepare for eyewitness identification and stating

“[s]pecial instructions for the jury may need to be considered” (emphasis added));

see also State v. Collins, No 16-1094, 2017 WL 6027763, at *8 (Iowa Ct. App. Nov.

22, 2017) (citing Shorter, 893 N.W.2d at 85; State v. Blackford, 335 N.W.2d 173,

178 (Iowa 1983) (“[W]e are convinced that not every right to insist that a particular

instruction be given need be availed of by counsel in order to satisfy the standard

of normal competency.”)).

       It is for the PCR court to decide whether Harris’s trial counsel breached an

essential duty in failing to request an eyewitness-identification instruction and

whether Harris was prejudiced by such a failure. It was reasonable for the PCR

court to determine that an eyewitness-identification expert was not necessary to

assist it in making this decision because expert testimony would not assist the

court on the jury-instruction issue. The PCR court has sufficient expertise to

determine whether trial counsel breached an essential duty in failing to request an

eyewitness-identification jury instruction and whether the applicant proved

prejudice. The court did not abuse its discretion in deciding expert testimony was

not necessary to prove ineffective assistance of counsel concerning the jury

instruction issue.

       At this stage of the PCR proceeding, Harris has not yet completed

discovery. He has not taken the deposition of trial counsel. Harris can present

evidence at the PCR trial concerning the failure of his trial attorney to present an

eyewitness-identification expert or to request a jury instruction on eyewitness
                                         12


identification. He can argue the law concerning eyewitness identification. We are

confident in the ability of the district court to discern the prevailing norms of a

criminal defense attorney and to determine whether trial counsel breached an

essential duty to the applicant to his prejudice without the assistance of expert

testimony. See Ledezma v. State, 626 N.W.2d 134 (Iowa 2001).

       The PCR court found that “the facts of this case negate the need for an

expert witness.” We agree. Harris retains the ability to call his trial counsel to

account for his decision making and strategy at trial. PCR counsel is able to inquire

whether trial counsel was familiar with the “widely known” eyewitness-identification

issues or with academic studies related to eyewitness-identification issues. See

State v. Fountain, 786 N.W.2d 260, 266 (Iowa 2010) (noting it is counsel’s

responsibility to stay abreast of legal developments). Trial counsel’s knowledge,

or lack thereof, regarding cross-racial identification issues and the effect of stress

on identifications can be explored. PCR counsel can also explore the decision of

trial counsel not to request a jury instruction on eyewitness identification. The

district court properly analyzed the need for expert evidence and did not abuse its

discretion in finding that Harris failed to establish the expert’s testimony was

reasonably necessary. See Pegram, 2001 WL 913817, at *6 (finding the court did

not abuse its discretion in ruling the requested expert was unnecessary).

       Finding no abuse of discretion, we affirm. The matter is remanded for

further proceedings.

       AFFIRMED AND REMANDED.
