                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1592
                               Filed April 27, 2016


LHA SOUTHIDETH-WHITEN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      Lha Southideth-Whiten appeals the district court’s denial of his application

for postconviction relief. AFFIRMED.




      John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

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

General, for appellee State.




      Considered by Doyle, P.J., Mullins, J., and Eisenhauer, S.J.*

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

      Lha Southideth-Whiten (Whiten) appeals the district court’s denial of his

application for postconviction relief from his convictions on first-degree robbery,

on two counts of delivery of a controlled substance, and of being a felon in

possession of a firearm.      Whiten contends there exists newly discovered

evidence in this matter. His pro se brief also asserts he received ineffective

assistance of counsel related to the failure to procure the newly discovered

evidence. We affirm the judgment of the district court.

   I. Background Facts and Proceedings

      In    July   2011,   Whiten   participated   in   two   controlled   buys   of

methamphetamine with a confidential informant, Benji Boutchee. On July 27,

2011, the two were scheduled to meet for a third buy; however, during the

meeting at Whiten’s apartment, Boutchee was robbed of the $505 he was

supposed to use for the drug purchase. The police obtained a search warrant for

the apartment. The search yielded numerous items of evidence, including the

aforementioned $505 and a pistol. In addition to Whiten, Lucas Huff, Randy

Ellers, Jackie Reavis, and Danielle Sparks were present in the apartment when

the search warrant was executed.

      Boutchee testified at trial that when he arrived at the apartment on July 27,

several people were there, but not Whiten.         When Whiten arrived, he told

Boutchee he had no drugs to sell him and demanded Boutchee give him his

money.     When Boutchee refused, the assembled group began beating him.

Boutchee testified Whiten took a gun belonging to another person in the room

and put it in Boutchee’s mouth. Boutchee then threw the money at Whiten and
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the others.     Whiten left the apartment.     The officers monitoring Boutchee,

concerned they had lost contact with him, came to check the apartment under

the guise of a noise complaint. The others in the apartment left, and Boutchee

was able to leave soon thereafter.

       An officer involved in executing the search warrant the next morning,

James Ogle, testified he saw an arm come out of a window in Whiten’s

apartment and place a handgun on the roof next to an air conditioning unit.

       Sparks testified she grabbed Boutchee by the throat during the incident at

the apartment and “sat him on a couch.” She said Boutchee was “smacked” a

number of times by those in the apartment. She said either Reavis or Huff held a

gun to Boutchee’s head.         She took the gun from that person, and Whiten

eventually took it from her. She disputed Boutchee’s statement that Whiten had

placed a gun in Boutchee’s mouth. She observed Whiten, when the search

warrant was being executed, throw a gun “outside the bedroom window like by

the air conditioner.”

       Whiten testified at the trial as well. He denied putting a gun in Boutchee’s

mouth, placing a gun outside the window of the apartment, or even living in the

apartment. He confirmed Sparks took a gun from another person during the

incident and that he took the gun from her and threw it on a couch. He testified

he knew no one else in the apartment besides Sparks.

       At the time of Whiten’s trial, Huff was in jail awaiting his own trial on drug

charges unrelated to the incidents described above. Whiten’s attorney, Pamela

Summers, contacted Huff’s attorney, who informed her Huff would not be

testifying at Whiten’s trial.
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       Whiten was convicted of first-degree robbery, two counts of delivery of a

controlled substance, and being a felon in possession of a firearm.          Those

convictions were affirmed on appeal.

       Whiten filed an application for postconviction relief. Summers and Huff

were deposed, and their depositions were offered in lieu of live testimony at the

hearing on postconviction relief. In Huff’s deposition, he testified he was at the

apartment that day.       He was in the bathroom when he heard “a bunch of

commotion.” He exited the bathroom to see “a big old huddle” of people in the

apartment, apparently fighting. He pulled out a pistol he was carrying, pointed it

in the general direction of the “huddle,” and began screaming for everyone to get

down. He eventually calmed down and gave Sparks the gun; she returned it to

him shortly thereafter.     When officers came to the apartment to check on

Boutchee, Huff left the apartment. Huff claimed he returned to the apartment

later, but before doing so, he left the gun in an alley. The gun he used to point at

the crowd was not in the apartment when the police executed the search warrant.

       Huff offered the following testimony in his deposition: His lawyer, Wendy

Samuelson, contacted him to discuss Summers’s request for Huff to testify at

trial. He told Samuelson he would testify. A detective approached him after that

conversation about testifying against Whiten in exchange for a reduction in his

charges and assistance with a request for probation. He told the detective he

would not testify against Whiten. Huff later learned from Samuelson she had

declined Summers’s request because, according to Huff, she did not want him to

be implicated in a robbery. Huff testified that was contrary to his wishes. Huff

testified he understood that based on his prior felony convictions, his version of
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events would potentially subject him to being charged as a felon in possession of

a firearm and have that sentence enhanced to up to fifteen years as a habitual

offender.

      Summers testified in her deposition she did not remember her efforts to

contact Huff.   She did say, however, that if someone were present in the

apartment during the execution of the warrant, and that person were charged,

she would have needed to go through that person’s attorney, who may or may

not have granted Summers access to the potential witness.

      Whiten advanced two theories in seeking postconviction relief: 1)

Summers was ineffective in not procuring Huff’s potentially exculpatory testimony

for use at trial, and 2) Huff’s testimony constitutes newly discovered evidence.

The district court rejected both claims. Whiten now appeals.

   II. Scope of Review

      Postconviction proceedings are law actions reviewed for errors of law.

Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999).        We review ineffective-

assistance claims de novo. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).

In addressing questions of ineffective assistance of counsel, we make our own

independent evaluation of the totality of the circumstances. Nims v. State, 401

N.W.2d 231, 233 (Iowa 1986).

   III. Newly Discovered Evidence

      Whiten seeks relief pursuant to Iowa Code section 822.2(1)(d) (2013)

claiming “[t]here exists evidence of material facts, not previously presented and

heard, that requires vacation of the conviction or sentence in the interest of
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justice.” He claims Huff’s testimony is newly discovered evidence. In order to

prevail, he must show:

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

Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991). The Iowa Supreme Court has

also recognized that “motions for new trial on the basis of newly discovered

evidence should be looked upon with disfavor and granted sparingly.” Whitsel v.

State, 525 N.W.2d 860, 863 (Iowa 1994) (citation omitted).

      In his pro se brief, Whiten mentions, in addition to Huff’s testimony, the

potential testimony of Ellers and Reavis. The district court did not address the

testimony of Ellers and Reavis. Error has not been preserved on that issue. We,

therefore, address only the issue of Huff’s testimony.

      Whiten failed to meet his burden on this argument. On the third and fourth

prongs of the test, especially, we are skeptical of his claim. The third prong

provides the evidence must be material and not merely cumulative or

impeaching. Huff would have testified he was in the apartment on the day in

question. Another witness so testified. Huff would have testified he had a gun.

Several witnesses testified to another man in the apartment having a gun; one of

those narrowed the identity of the man down to either Reavis or Huff. A witness

testified she did not see Whiten put a gun in Boutchee’s mouth (to which Huff’s

testimony would be merely cumulative); Boutchee testified it was Whiten (to

which Huff’s testimony would be impeaching). From these and other examples,

we conclude Huff’s potential testimony was merely cumulative and impeaching.
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       We also doubt Huff’s testimony would have changed the result of the trial.

We note the district court’s finding Huff’s deposition testimony lacked credibility.

See Harrington v. State, 659 N.W.2d 509, 517 (Iowa 2003) (finding witness

recantations were not credible and did not constitute newly discovered evidence).

We give deference to those findings. See, e.g., State v. Leaton, 836 N.W.2d

673, 676 (Iowa Ct. App. 2013). We are therefore unconvinced Huff’s incredible

testimony would have changed the trial’s outcome.

   IV. Ineffective Assistance of Counsel

       Huff’s appellate counsel withdrew the ineffective assistance of counsel in

his appellate brief; however, Whitten, in his pro se brief, alleges counsel was

ineffective.   An applicant for postconviction relief who claims ineffective

assistance of counsel must prove two elements: (1) counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice. State v. Adams, 810

N.W.2d 365, 372 (Iowa 2012). The ultimate test is whether under the entire

record and totality of the circumstances counsel’s performance was within the

normal range of competency.       Osborn v. State, 573 N.W.2d 917, 922 (Iowa

1998). Improvident trial strategy, miscalculated tactics, or mistakes in judgment

do not necessarily amount to ineffective assistance of counsel.        Jones, 479

N.W.2d at 272. There is a strong presumption of counsel’s competence. Id.

       Here we cannot conclude Summers was ineffective for failing to procure

Huff’s testimony.   Summers did not fail to perform an essential duty.        Even

accepting Whiten’s version of events, Summers contacted Samuelson to discuss

Huff’s testimony and was informed by Samuelson Huff would not be testifying.

Summers, as an experienced criminal defense attorney, would have known the
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basis for Samuelson’s denial of access, even if that reason was not explicitly

stated. Even if Huff later chose to waive his Fifth Amendment rights it would be

an unusual decision that Summers could not have reasonably anticipated. What

with the benefit of hindsight may appear to be improvident trial strategy on her

part was, at the time, adequate diligence.      Her performance was within the

normal range of competency.

   V. Conclusion

      Huff’s potential testimony is not newly discovered evidence.           Whiten’s

counsel was not ineffective. We affirm the judgment of the district court.

      AFFIRMED.
