DeVoss v. State
| Decision Date | 12 June 2002 |
| Docket Number | No. 00-0633.,00-0633. |
| Citation | 648 N.W.2d 56 |
| Parties | Jodi A. DEVOSS, Appellant, v. STATE of Iowa, Appellee. |
| Court | Iowa Supreme Court |
Thomas H. Preacher, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, William E. Davis, Scott County Attorney, and Kelly G. Cunningham, Assistant County Attorney, for appellee.
Jodi A. DeVoss appealed from a district court ruling denying her application for postconviction relief based on a claim of prosecutorial misconduct and a claim of ineffective assistance of counsel for failing to cross-examine the victim about the claimed misconduct. DeVoss also complained because the district court did not allow her to call the victim as a witness to establish the prosecutorial misconduct. We transferred the case to the court of appeals and that court affirmed. It did so on the grounds that DeVoss waived such claims because she did not raise them in her direct appeal of her robbery conviction.
We granted further review and now hold that the State waived any error preservation claim it had by failing to raise that claim in the district court. Upon reaching the merits, however, we agree with the district court that DeVoss failed to prove her claims of prosecutorial misconduct and ineffective assistance of counsel. Additionally, we find no prejudice in the district court's refusal to allow DeVoss to call the victim as a witness. Accordingly, we vacate the decision of the court of appeals and affirm the judgment of the district court.
On July 16, 1996, a jury convicted DeVoss of first-degree robbery in violation of Iowa Code section 711.2 (1995). The district court sentenced her to an indeterminate twenty-five year term of imprisonment. The State charged two codefendants with first-degree robbery, second-degree sexual abuse, and going armed with intent. One codefendant pled to a lesser charge before trial. The jury convicted the remaining codefendant of first-degree robbery and second-degree sexual abuse but acquitted him of going armed with intent.
DeVoss appealed, challenging the sufficiency of the evidence and the trial court's refusal to grant her requested continuance three days before trial. The court of appeals affirmed the conviction in an unreported opinion filed November 25, 1997. The opinion did not preserve any issues for postconviction relief proceedings.
In March 1998, DeVoss filed a pro se application for postconviction relief. She alleged (1) ineffective assistance of counsel, (2) misrepresentation of counsel, and (3) lawyer incompetence. She claimed a "conflict of interest," "the prosecution knowingly used false evidence," and that "the court record did not support a finding of guilt beyond a reasonable doubt." The State filed an answer but did not raise the issue that DeVoss had not preserved these issues for postconviction relief proceedings by raising them in her direct appeal of her robbery conviction.
The district court heard the postconviction relief proceeding on January 19-20, 2000. At the hearing, DeVoss' postconviction relief counsel explained DeVoss' claims: (1) her trial counsel was ineffective for failing to file a motion to sever the defendants' trials in the case; (2) her trial counsel was ineffective for failing to call her as a witness during the criminal trial; (3) the prosecutor engaged in prosecutorial misconduct by coaching the victim and main witness at trial, Kim Maggio; and (4) DeVoss' trial counsel was ineffective for failing to ask questions about the coaching during his cross-examination of Maggio.
DeVoss subpoenaed Maggio to testify at the postconviction relief hearing. During the hearing, the State reported to the court that Maggio had appeared at the county attorney's office on January 18, "very upset, very emotional about" receiving the subpoena. The State objected to calling Maggio as a witness in the postconviction relief proceeding. The district court initially reserved ruling on the issue but later during the hearing agreed to allow Maggio to testify as long as counsel limited the scope of questioning to whether the prosecutor improperly coached Maggio.
Maggio appeared at the courthouse on the first day of the postconviction relief hearing but could not be found when the time came for her to testify. The following morning, the State reported to the court that the day before, Maggio had become emotionally distraught over the proceedings and had left the courthouse. Further, Maggio had overdosed on a variety of substances and was subsequently hospitalized.
The State again urged the court not to allow Maggio to testify. The prosecutor in the postconviction relief proceeding (who was also the prosecutor in the underlying criminal trial) asked the court to allow another assistant county attorney to handle the remainder of the hearing so she could take the stand to testify about the coaching issue. DeVoss' attorney refused the offer, after which the court ordered a report from Maggio's psychiatrist about whether testifying would be harmful to Maggio. Following testimony from the State's only witness, the court continued the hearing pending receipt of the psychiatrist's report. There is no record evidence that the report was ever received.
About a month later, the State filed a motion to quash the subpoena and an application for protective order. Following a hearing on the motion, the court denied DeVoss' application for postconviction relief, finding no ineffective assistance of counsel and no prosecutorial misconduct. The court found that DeVoss had failed to prove prosecutorial misconduct or resulting prejudice relating to the coaching issue. The court did not rule on the State's motion to quash the subpoena and issue a protective order. However, a close reading of the court's ruling indicates that is exactly what the court did.
DeVoss appealed, raising a number of issues. We transferred the case to the court of appeals.
The State, in its appeal brief, argued for the first time that DeVoss failed to preserve any of her postconviction relief claims because she failed to raise the claims on direct appeal of her conviction. The State admitted that it did not argue in the postconviction relief proceeding DeVoss' failure to preserve her postconviction relief claims, and the district court did not raise the error preservation issue in its ruling. However, the State urged the court of appeals to affirm based on State v. Howard, in which we said, "[w]e can uphold the trial court's ruling on any ground apparent in the record, whether urged at trial or ruled on by the trial court." 509 N.W.2d 764, 768 (Iowa 1993).
The court of appeals agreed with the State, concluding that DeVoss had not preserved her postconviction relief claims because she did not raise them on direct appeal. The court therefore did not address the merits of the claims. We granted DeVoss' application for further review.
On further review, we first address error preservation in postconviction relief proceedings. Specifically, we must determine whether the State must raise in the district court the issue of a petitioner's failure to preserve postconviction relief claims because such claims were not raised on direct appeal. DeVoss contends the State, by failing to raise the issue in the district court, waived its claim that DeVoss failed to preserve her postconviction relief claims.
If we decide the State waived any error preservation claim it had by failing to raise it in the district court, we must turn our attention to several other issues. The first issue we must decide is whether the district court erred in finding DeVoss' trial counsel was not ineffective for failing to cross-examine Maggio about the coaching issue. In deciding this issue, we must necessarily determine whether DeVoss established prosecutorial misconduct. A closely related issue is whether the district court abused its discretion in not allowing DeVoss to call Maggio as a witness.
We review postconviction relief proceedings for errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
DeVoss contends that implicit in the State's argument is that error preservation is a burden that falls on postconviction relief applicants and not upon the State. DeVoss argues that the burden of error preservation should fall on both parties. For reasons that follow, we agree with DeVoss.
1. Background. Because there are some inconsistencies in our cases, we think a review of error preservation as developed over the years by this court would aid our analysis. The underlying reasons for the error preservation requirement have been well-summarized:
Trial courts must be afforded the opportunity to avoid or correct error in judicial proceedings. Similarly, appellate courts must be provided with an adequate record in reviewing errors purportedly committed during trial. This perforce requires that counsel make timely and sufficient motions or objections upon which trial judges may rule. Absent such actions, an appellate court has nothing to review. Simply stated, counsel must take necessary measures to construct a record in order to preserve error for appellate review.
Error preservation is based on principles of fairness:
[I]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Furthermore, it is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable.
5 Am.Jur.2d Appellate Review § 690, at 360-61 (1995).
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