              IN THE SUPREME COURT OF IOWA
                           No. 79 / 03–2085

                        Filed November 16, 2007


STATE OF IOWA,

      Appellee,

vs.

CHAD LAVERN ENDERLE,

      Appellant.



      Appeal from the Iowa District Court for Scott County, David E.

Schoenthaler and Mark J. Smith, Judges.



      Defendant appeals from conviction for first-degree murder and

willful injury in violation of Iowa Code sections 707.2(1), 707.2(2), and

708.4(1) (2001). AFFIRMED.



      Kent A. Simmons, Davenport, for appellant.



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

Attorney General, William E. Davis, County Attorney, and Michael J.

Walton, Assistant County Attorney, for appellee.
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LARSON, Justice.

      Chad Enderle was convicted of first-degree murder and willful

injury in violation of Iowa Code sections 707.2(1), 707.2(2), and 708.4(1)

(2001).    He appealed, claiming numerous errors, including the court’s

denial of his motion to suppress evidence obtained pursuant to a

material-witness warrant and denial of his motion for judgment of

acquittal based on the sufficiency of the evidence. We affirm.

      I. Facts and Prior Proceedings.

      The defendant’s convictions arose out of the death of Gregory

Harris, whose body was found in Davenport, Iowa, on March 10, 2003.

Enderle became a person of interest to the police when they found his

cell phone number stored in the victim’s cell phone memory. When the

police contacted that number, the person answering denied he was

Enderle.     Within minutes after the police called, Enderle had his

cell phone number changed. Believing Enderle would be uncooperative

and might become unavailable for questioning, the police obtained a

material-witness warrant pursuant to Iowa Code section 804.11.

Pursuant to that warrant, Enderle was arrested and questioned at the

police station.

      II. The Ineffective-Assistance Claims.

      Enderle’s counsel did not object to the admission of most of the
evidence about which Enderle now complains, so he relies on ineffective-

assistance-of-counsel principles to raise the issue on appeal.           A

defendant claiming ineffective assistance must prove (1) that counsel

failed to perform an essential duty, and (2) he was prejudiced by his

counsel’s errors. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

To prove prejudice, a defendant must show a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding
                                      3

would have been different.” Strickland v. Washington, 466 U.S. 668, 694,

104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).          “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id.

      The defendant bears the burden of proving both elements by a

preponderance of the evidence, Ledezma, 626 N.W.2d at 141–42, but it is

not necessary that the court address both elements. If a defendant does

not show prejudice, the case can be decided on that issue alone without

the additional inquiry into whether counsel’s performance was deficient.

Id. at 142.

      III. The Material-Witness Warrant.

      Iowa Code section 804.11 provides, in pertinent part:

            When a law enforcement officer has probable cause to
      believe that a person is a necessary and material witness to
      a felony and that such person might be unavailable for
      service of a subpoena, the officer may arrest such person as
      a material witness with or without an arrest warrant.

We upheld the constitutionality of section 804.11 in State v. Hernandez-

Lopez, 639 N.W.2d 226, 231 (Iowa 2002). In doing so, we acknowledged

that material-witness warrants “serve a vital and useful public purpose

in the prosecution of felony offenses,” and “are in widespread existence

throughout this country.” 639 N.W.2d at 236.

      Section 804.11 requires that there be probable cause to believe (1)

a person is a necessary and material witness to a felony, and (2) such

person might be unavailable for service of a subpoena. In this case, the

application for the warrant stated:

            On 3/10/03 the Davenport Police Dept. started a
      homicide investigation after finding the victim dead in his
      home at 326 W. 10th St.             During the subsequent
      investigation detectives learned that Chad Enderle was
      involved with the victim, and visited him on a regular basis.
                                         4
          One witness saw an M/W subject matching Enderle’s
          description leaving the victim’s residence around the time
          the victim would have been killed.
                 The Davenport Police Dept. has made several attempts
          at locating Enderle and talking with him about this case.
          Detectives reached Enderle on a cell phone he used, but that
          he put in his girlfriend’s name. Enderle lied about his name
          and told the Detective he didn’t know the victim and refused
          to talk to him. Since this conversation the cell phone has
          been shut off. Detectives obtained cell phone records and
          discovered Enderle called the victim’s residence 20 times
          over a very short period around the time the victim was
          killed. Again, on 03/18/03 Detectives tried to locate Enderle
          and were unable to. Detectives again went to Enderle’s
          residence and knocked on the door, and no one answered.
          Upon looking in a front window Detectives saw a female we
          believe is Enderle’s mother sitting in the living room only feet
          away from the front door. The female refused to come to the
          door.

We believe the material-witness warrant, based on this application, was

supported by probable cause to believe both that Enderle was “a

necessary and material witness to a felony” and “might be unavailable for

service of a subpoena,” as required by Iowa Code section 804.11.

          Even if Enderle’s counsel breached a duty to challenge the

warrant, Enderle has failed to show he was prejudiced.              Statements

made by Enderle during the questioning did not amount to a confession,

nor did they lead to other evidence of guilt. Enderle stated that the last

time he had seen Harris was on March 5, 2003, and possibly the

morning of March 6, 2003, the date the State claims the victim was

killed.     This evidence was merely cumulative of other evidence that

placed Enderle at the victim’s home at about the time of death. See State

v. Lane, 726 N.W.2d 371, 383 n.2 (Iowa 2007) (“The independent source

doctrine removes the taint of a prior illegality if the police obtained the

same information or evidence through means independent of the illegal

conduct.”).
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      The strongest evidence of Enderle’s connection to the crime was

his fingerprints. Fingerprint samples were obtained from Enderle during

this questioning under the material-witness warrant.        However, his

fingerprints could have been obtained, and ultimately were obtained,

under a nontestimonial identification application under Iowa Code

section 810.6.   We conclude that Enderle was not prejudiced by his

furnishing of fingerprint examplars or statements about his being at the

victim’s residence because this evidence was merely cumulative.

      Other issues are raised concerning Enderle’s interrogation under

the material-witness warrant:    (1) he was intimidated and promised

leniency; (2) the videotaped interview contained a prejudicial statement

by Enderle that he was a drug user; (3) Enderle was denied his statutory

right to see a family member; and (4) the videotape, played to the jury at

trial, included statements by the police to Enderle that they believed he

had killed the victim.

      Enderle’s claim of intimidation is belied by the record—primarily

the videotape of the questioning. The district court, David Schoenthaler,

J., made detailed findings of fact regarding the interrogation, including

the following:

             The Defendant’s entire time at the Davenport police
      station during the evening of March 18, 2003, was captured
      on the interview tape (Exhibit 1) except for the first few
      minutes when he was read the warrant, fingerprinted, and
      photographed outside of the interview room. The Defendant
      is a 30 year old high school graduate who appears to be of at
      least average intelligence. The officers’ testimony as to what
      happened that evening is credible and is confirmed by the
      tape. The Defendant was fairly calm throughout most of the
      interview. He made numerous references to wanting to see
      his woman. He was never threatened, deceived or promised
      favors or leniency; he was alert; he never complained of
      being tired or hungry and never asked for food, water, or to
      use the bathroom. The officers gave the Defendant a Pepsi
      following their denial of his request for a cigarette break.
      The Defendant was able to walk around the interview room
                                     6
      in his stocking feet without any apparent difficulty after his
      shoes and orthotic device for one of his shoes were taken for
      testing. There is no evidence that during the Defendant’s
      brief contact with Detective Martin and Detective Thomas
      outside the interview room that he was mistreated, given any
      improper promises, deceived or in any way subjected to
      anything that would affect the voluntariness of his
      statements.
            The main question is the interaction between Detective
      Thomas and the Defendant as shown on the tape. Some of
      Detective Thomas’s questions irritated the Defendant which
      resulted in each of them shouting at the other one. Their
      voices could be heard outside the interview room. When the
      Defendant stood up and started to head for the door,
      Detective Thomas also stood up because he did not want the
      Defendant either standing over him or to go out the door.
      Tempers flared and it appears they bumped chests. They
      both calmed down and the interview continued.

The court did not err in denying Enderle’s intimidation argument.

      The “promise of leniency” relied on by Enderle was simply a

statement by one of the officers that he would “see what he could do” to

get the material-witness warrant “lifted” and get Enderle released after

the conclusion of the interview. This does not amount to a promise of

leniency that would present problems regarding receipt of other evidence,

such as a confession.

      The portion of the videotape in which Enderle admitted to using

drugs was merely cumulative of a large amount of evidence from other

sources to the same effect. Also, the district court engaged in a detailed
weighing of the probative value of this evidence against the possible

prejudice in it, as required by Iowa Rule of Evidence 5.404(b) and our

case law. See State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988). The

district court did not abuse its discretion in admitting the evidence.

      Enderle also contends the evidence obtained under the material-

witness warrant must be excluded because the police, at the time of the

interview, violated Iowa Code section 804.20. Under that section,
                                     7
             [a]ny peace officer or other person having custody of
      any person arrested or restrained of the person’s liberty for
      any reason whatever, shall permit that person, without
      unnecessary delay after arrival at the place of detention, to
      call, consult, and see a member of the person’s family or an
      attorney of the person’s choice, or both.

      Enderle requested to see his girlfriend, but a girlfriend is obviously

not a member of his family. He now complains that he was also denied

the right to see his son, who was under two years of age at the time.

Even if we assume the police were required to allow Enderle to contact

his son, Enderle’s requested remedy—exclusion of evidence obtained at

questioning—is not required. As we have previously noted, any evidence

obtained as a result of the interview was merely cumulative.

      During Enderle’s interview, the police said they thought he was

being untruthful, and the videotape of the interview, including those

statements, was played to the jury. Enderle contends his trial counsel

was ineffective because he failed to move for redaction of the comments,

which he claims amounted to an impermissible comment on Enderle’s

credibility.   See State v. Myers, 382 N.W.2d 91, 94 (Iowa 1986) (“No

witness should be permitted to give his opinion directly that a person is

guilty or innocent, or is criminally responsible . . . .”).   Similar claims

have been made and rejected in other cases, primarily on the basis that

statements by police officers during interrogations are not “testimony”
given by witnesses at trial and were not offered at trial to impeach the

defendant, but to provide context for his responses. See, e.g., Dubria v.

Smith, 224 F.3d 995, 1001–02 (9th Cir. 2000), cert. denied 531 U.S. 1148

(2001); State v. Demery, 30 P.3d 1278, 1282 (Wash. 2001).               The

effectiveness of Enderle’s argument on this point is further diminished by

the fact he raised it in the context of ineffective assistance of counsel,

and he must therefore establish prejudice. He is hard-pressed to do so
                                     8

because he chose to rely on those statements to show that he had been

intimidated during the interview. We reject his argument that the police

comments amounted to an impermissible comment on his credibility.

      IV. Sufficiency of the Evidence.

             The standard of review for insufficient-evidence claims
      is for correction of errors of law. The jury’s findings of guilt
      are binding on appeal if the findings are supported by
      substantial evidence. Substantial evidence is evidence that
      could convince a rational trier of fact that a defendant is
      guilty beyond a reasonable doubt.          When reviewing a
      challenge to the sufficiency of the evidence, we view the
      evidence in the light most favorable to the State, including
      legitimate inferences and presumptions which may fairly and
      reasonably be deduced from the evidence in the record.

State v. Leckington, 713 N.W.2d 208, 212–13 (Iowa 2006) (citations

omitted).

      The State provided the following evidence linking Enderle to

Harris’s death. Enderle was present at Harris’s house on the evening of

March 5, 2003, the day before the State claims Harris died. In addition,

Enderle admitted that he may have been present at Harris’s house on the

morning of March 6, 2003, and made a phone call from there to a drug

dealer named “Bill.”   The most significant evidence was that Enderle’s

fingerprints were found at the scene of the crime. His fingerprints were

found at the murder scene on a walking stick found at the victim’s home

and spotted with the victim’s blood.     Enderle’s fingerprints were also

found on a cigarette box that had been spattered with the victim’s blood.

Enderle bought new boots just days after the murder, he was nervous

when he was speaking with the police on the telephone, he lied about his

identity in the telephone conversation, lied about his acquaintance with

the victim, and lied about the last time he was in Davenport. Enderle

changed his cell phone number just forty-five minutes after he spoke

with the police. According to telephone records, Enderle did not attempt
                                    9

to call the victim after March 5, 2003, strongly suggesting Enderle did

not expect the victim to be able to answer the telephone. The district

court properly refused Enderle’s motion for judgment of acquittal.

      AFFIRMED.
