                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2190
                            Filed December 21, 2016


KENYATTA SWIFT HARLSTON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Thomas A.

Bitter, Judge.



       Kenyatta Harlston appeals the denial of his application for postconviction

relief. AFFIRMED.




       Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee State.




       Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

       Kenyatta Harlston appeals the district court decision denying his

application for postconviction relief from his conviction for second-degree murder.

We find there was no prejudice to Harlston with regard to either the instructions

provided to the jury or the testimony Harlston refused the police entry into an

apartment. Additionally, we find counsel did not breach any duty concerning the

use of first-person witnesses or during jury selection. We affirm the decision of

the district court denying Harlston’s application for postconviction relief.

   I. Background Facts and Proceedings

       Harlston was charged with second-degree murder, in violation of Iowa

Code sections 707.1 and 707.3 (2007). Early on August 25, 2007, a racially

charged skirmish occurred in Dubuque, Iowa, involving Harlston, his friends, and

Nic Blackburn and his friends. The specifics of the fight are disputed, including

how many individuals were involved on both sides, who was the initial aggressor,

and what provoked the incident. During the fight, Blackburn was fatally stabbed

in the heart. Police officers responded to the scene, but many of the participants,

including Harlston and his friends, had fled.      Police arrived at the apartment

where Harlston and his friends were located, asked Harlston if they could enter,

and Harlston refused them entry.        Harlston and his friends then voluntarily

accompanied the officers to the police station, where he was charged with

murder.

       Trial began September 16, 2008, in Black Hawk County because of

pretrial publicity in Dubuque. Harlston was convicted of second-degree murder

on September 25. He appealed, and his conviction was affirmed. See State v.
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Harlston, No. 08-1908, 2010 WL 624843 (Iowa Ct. App. Feb. 24, 2010). Harlston

then filed numerous applications for postconviction relief. His fifth and final

amended application was filed October 15, 2015. The application was denied,

and Harlston now appeals, claiming trial counsel was ineffective for failing to

advance a jury instruction on lack of motive, to call a first-person witness, to

suppress evidence of Harlston’s refusal to allow officers into the apartment, and

to effectively challenge the striking of a potential juror.

   II. Standard of Review

       Claims of ineffective assistance of counsel are reviewed de novo.

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of

ineffective assistance of counsel, the [defendant] must demonstrate both

ineffective assistance and prejudice.” Id. at 142. “If the claim lacks prejudice, it

can be decided on that ground alone without deciding whether the attorney

performed deficiently.” Id. Both elements must be proved by a preponderance of

the evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991). Regarding

prejudice “the proper standard requires the defendant to show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”           Strickland v.

Washington, 466 U.S. 668, 669 (1984).

   III. Lack of Motive Jury Instruction

       Harlston first claims trial counsel was ineffective for failing to request a jury

instruction on lack of motive. A conviction for second-degree murder requires the

jury to find malice aforethought.       “The law allows a presumption of malice
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aforethought from the use of a deadly weapon in the absence of evidence to the

contrary.” State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003). However “the

presumption is only permissive.” Id. (citing State v. Elam, 328 N.W.2d 314, 318

(Iowa 1982)). Harlston claims the jury instructions did not clearly state this

presumption was permissive and, without an instruction indicating the

presumption could be overcome with a lack of motive, he was prejudiced.

       Jury instruction number thirty stated “[m]alice aforethought may be

inferred from the defendant’s use of a dangerous weapon.” Harlston essentially

claims the words “presume” and “infer” may be used interchangeably.               Our

supreme court has held the word “presume” to be distinct from “infer.” State v.

Rinehart, 283 N.W.2d 319, 322 (Iowa 1979). Additionally, our supreme court

found instead of “limiting the assessment of other evidence, [infer] invites such

an assessment.”     Id. Finally, the use of “may” in the jury instruction clearly

indicates the permissive nature of the inference. Because the jury instruction

makes it clear the inference is permissive, we find there is no prejudice.

    IV. Use of First-Person Witnesses

`      Harlston next claims trial counsel was ineffective for not calling Harlston or

another first-person witness to testify at the criminal trial, concerning his claim of

self-defense. Under Iowa law, “[a] person is justified in the use of reasonable

force when the person reasonably believes that such force is necessary to

defend oneself . . . from any imminent use of unlawful force.”           Iowa Code

§ 704.3. Therefore, testimony regarding the fight, and any factors which may

have given rise to a reasonable belief force was necessary to defend himself,

would have been useful in Harlston’s defense.
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        However, Harlston previously told counsel he could not remember his

thought process leading up to the stabbing nor the actual stabbing.              An

eyewitness called by the State testified Harlston had run up to the victim, stabbed

him, and ran away. Harlston would have been unable to counter this testimony

effectively as he had no memory of the events leading up to the stabbing.

Therefore, Harlston is unable to show prejudice with regard to not testifying.

        Additionally, during the trial for the underlying offense, with Harlston

present in the courtroom, counsel stated he and Harlston had discussed

testifying.   Counsel informed Harlston of his right to do so, but after being

advised, Harlston had decided not to testify “by way of trial strategy.” Harlston

did not object to this statement from counsel.      The district court also noted

“based upon [Harlston’s] testimony during the postconviction trial, perhaps

[counsel’s] recommendation was wise. Harlston said various things during the

postconviction trial that likely wouldn’t have been received well by a jury.”

Therefore, counsel did not breach his duty to inform and advise Harlston on his

right to testify.

        Antonio Dixon, Harlston, and Gregory Buchanan all ran from the fight and

hid in Dixon’s apartment.     Buchanan was called by the State and testified

Harlston said “I f***ing stabbed him, because don’t no white mother***er

disrespect me or call me on my name like that.” The only other first-person

witness was Dixon. In his brief, Harlston claims Dixon should have been called

in order to show the fight created a reasonable situation in which to use force.

However, during the postconviction hearing, counsel testified he made a list of

pros and cons for calling Dixon as a witness and, after consultation with another
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lawyer, decided it would be best not to call Dixon as a witness. This careful

consideration of the benefits indicates the decision “was a strategical decision

which we will not second-guess.” See State v. Kone, 557 N.W.2d 97, 102 (Iowa

Ct. App. 1996). We find no duty was breached.

   V. Failure to Exclude Evidence

         Harlston also claims counsel was ineffective for failing to exclude

Harlston’s statements in refusing the police entry into the apartment. At trial, the

State entered statements Harlston made to police, refusing them entry into

Dixon’s apartment. Harlston’s counsel objected, but the objection was overruled.

Courts should not penalize defendants for exercising a constitutional right, such

as the right to be free from unreasonable searches. See State v. Nelson, 234

N.W.2d 368, 370 (Iowa 1975). However, the evidence may be admitted if it is

“for some purpose other than to simply penalize the defendant for exercising a

constitutional right.” State v. Thomas, 766 N.W.2d 263, 270–71 (Iowa Ct. App.

2009).

         In the current case, however, Harlston cannot show the entry of this

testimony was prejudicial. Harlston claims the State used his refusal unfairly to

demonstrate a guilty state of mind, which undermined the theory of self-defense.

Even if the testimony were unfairly prejudicial, the evidence does not “undermine

confidence in the outcome.”      See Strickland, 466 U.S. at 669.        The State

presented other, more compelling evidence, which it relied on to a greater extent

to show Harlston’s feelings of guilt, including testimony from Buchanan about

Harlston’s motivation for the stabbing and Buchanan’s testimony that Harlston

attempted to hide and destroy evidence. Testimony regarding Harlston’s refusal
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to allow the officers to enter and search the apartment, even if unfairly prejudicial,

cannot create Strickland type prejudice in this case.

   VI. Batson Challenge

       Finally, Harlston claims counsel was ineffective for failing to “follow

through” on a Batson challenge during jury selection. During jury selection a

juror, appearing to be Puerto Rican, was struck by the State. Striking a juror

based solely on race is unconstitutional. Batson v. Kentucky, 476 U.S. 79, 89

(1986). Harlston’s counsel properly objected pursuant to Batson, which requires

the State to articulate a race-neutral basis for the strike. The State based the

strike on the potential juror’s educational background, inability to “articulate much

about her school,” the fact she got all her news through MTV, and a general lack

of interest in the process.     Harlston urges us to find ineffective assistance

because counsel did not continue to press the challenge after the objection.

Batson does not require this, and counsel fulfilled their duty. We find there was

no ineffective assistance of counsel.

       We affirm the decision of the district court denying Harlston’s application

for postconviction relief.

       AFFIRMED.
