In the Court of Appeals of Iowa s5

IN THE COURT OF APPEALS OF IOWA

No. 4-460 / 03-1089

Filed December 22, 2004

TRACY LYNN HARDIN,

Appellant,

vs.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Warren County, Martha L. Mertz, Judge.

Tracy Lynn Hardin appeals from the district court’s order denying her request for postconviction relief. AFFIRMED.

Linda Del Gallo, Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.

Tracy Lynn Hardin, Mitchellville, appellant pro se.

Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Gary Kendell, County Attorney, and Patricia Notch, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., Vogel, J., and Brown, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).

BROWN, S.J.

The applicant in this postconviction relief action is Tracy Lynn Hardin. She was convicted of first-degree murder and willful injury as a result of a shooting incident in 1995. Her appeal from that conviction and sentence was denied by this court. Her subsequent postconviction petition was tried by the district court and denied. She now appeals.

I. Background and proceedings.

Tracy Lynn Wignall and Robert Hardin met while both were serving in the United States Navy. They married in 1989, left the Navy and moved to North Carolina, and ultimately to Iowa. This proved to be a turbulent relationship, marked by frequent arguments, separations, and some physical violence by each against the other. They eventually divorced in 1995, but their relationship did not come to an end, nor did the stormy incidents which had characterized their marriage.

There was considerable evidence of jealousy on Tracy Hardin’s part, and threats made by her against Robert and his girlfriend, Amy Wilson, in the days leading up to the shooting. On July 14, 1995 Tracy Hardin received a gun permit from Polk County. Early in the morning of July 16, 1995, after buying a flashlight and borrowing a handgun and ammunition from a friend, she broke into Robert’s house through a window. She shot and wounded Robert, ran upstairs and fired four more shots, three of which struck Amy Wilson, killing her. Tracy Hardin was charged with murder and attempted murder. At trial, her counsel conceded the State’s version of the shooting was essentially correct and relied on insanity and diminished responsibility defenses. The jury rejected these, and convicted her of first degree murder and willful injury.

On direct appeal, Hardin raised issues concerning the physician-patient privilege, error in granting a trial continuance to the State, jury admonition and instruction concerns, and misconduct of counsel during closing arguments. These were all rejected by our court. State v. Hardin, 569 N.W.2d 517, 519 (Iowa Ct. App. 1997).

In 1998, Hardin commenced this postconviction relief (PCR) action. Following trial, the district court rejected each of her claims. Three claims of ineffective assistance of counsel were considered by the court: (1) failure to object to misconduct by the prosecutor in presenting false expert testimony regarding the sequence of the four shots fired upstairs; (2) failure to investigate and present forensic evidence regarding the order in which the shots were fired, and (3) failure to request the court stop the trial and order a hearing to determine Hardin’s competency to continue with the trial. The district court considered each of these contentions and ruled against Hardin on each of them.

In this appeal of the district court’s postconviction ruling, Hardin’s PCR appellate counsel raises three ineffective-assistance issues, none of which were considered by the postconviction trial court. They are (1) failure of PCR trial counsel to have Hardin testify at the PCR trial, (2) failure of trial and appellate counsel to object to Dr. Spodak’s testimony on the ultimate issues of insanity and diminished responsibility, and (3) failure of trial and appellate counsel to object to the jury instruction on insanity.

In addition, Hardin has filed a pro se brief in which she has attempted to raise multiple issues. Summarizing, she complains that (1) perjured testimony regarding the on-off condition of the bedroom light was presented by the prosecutor which should not have been permitted by counsel, (2) counsel was ineffective for not raising the issue of prosecutorial misconduct regarding a videotape recording, or in not securing and presenting that videotape, (3) counsel was ineffective for not objecting to prosecutor’s argument concerning where she parked her car at Robert’s home, (4) counsel should have presented additional evidence of her impaired mental condition, (5) counsel should have rebutted the State’s argument the fatal shooting was “execution style,” and (6) counsel should have objected to perjured testimony by Robert Hardin.

II. Standard of review.

Postconviction relief proceedings are ordinarily reviewed for errors of law. Schertz v. State, 380 N.W.2d 404, 408 (Iowa 1985). “However, when a postconviction petitioner asserts a violation of constitutional safeguards, the reviewing court makes its own evaluation based on the totality of the circumstances, which is the equivalent of a de novo review.” Id. We generally do not consider ineffective-assistance-of-counsel claims raised for the first time on appeal from the PCR trial court. Id. at 412. However, if the record is adequate, we may address them here despite the absence of error preservation. See id.

III. Ineffective assistance of counsel.

In claiming her counsel rendered ineffective assistance, Hardin must prove by a preponderance of the evidence that counsel’s “performance fell outside a normal range of competency and that the deficient performance so prejudiced [her] as to give rise to the reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). A reasonable probability is one sufficient to undermine confidence in the outcome. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct. App. 1996). Stated otherwise, she must establish her counsel failed to perform an essential duty and she consequently suffered prejudice. Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). To do so, she must overcome a strong presumption that counsel was effective. Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998). These standards apply to appellate and subsequent counsel as well as to trial counsel. Schertz, 380 N.W.2d at 412.

As the bases for her ineffective-assistance-of-counsel claims, Hardin must allege not only that trial counsel was ineffective, but that appellate counsel, and any subsequent counsel were also ineffective. Collins v. State , 477 N.W.2d 374, 376 (Iowa 1991) (“Collins has failed to prove "sufficient reason" or "cause" for not having raised the issue of ineffective assistance of trial counsel because he failed to present to the postconviction court the issue of ineffective assistance of appellate counsel.”); Schertz, 380 N.W.2d at 412 (“By a proper showing that all previous counsel were ineffective, a path may be forged to permit issues of error at trial to be raised before this court for the first time.”); Sims v. State, 295 N.W.2d 420, 422-23 (Iowa 1980) (holding applicant required to show appellate counsel and postconviction trial counsel ineffective to allow review of effectiveness of original trial counsel on postconviction relief appeal); LeGrand v. State , 540 N.W.2d 667, 669 (Iowa Ct. App. 1995) (holding error not preserved where applicant failed to allege the issue of ineffective assistance of appellate counsel in PCR appeal). This showing is necessary to avoid the preclusive effect of Iowa Code section 822.8.[1] Simms, 295 N.W.2d at 422-23.

Further, it is not sufficient to simply claim ineffectiveness; Hardin must point out in what particulars the various counsel breached their duty and how she was disadvantaged by that breach. Dunbar, 515 N.W.2d at 15 (holding applicant must set out specific ways in which counsel’s performance was inadequate and how competent representation would have changed the outcome).

IV. Ineffective assistance claims presented by counsel.

A. Failure of applicant to testify at PCR trial. Hardin claims her counsel at the PCR trial was ineffective for not presenting her testimony at the hearing. She did not testify at the original trial or at the postconviction trial. Postconviction relief is a civil action, not criminal, and there is no constitutional right for the applicant to be present at the trial. Webb v. State, 555 N.W.2d 824, 825 (Iowa 1996).

In this case, Hardin’s PCR trial counsel requested the court transport Hardin, who was incarcerated, to the hearing so that she might personally observe the proceeding and testify. The district court denied the application. This decision lies within the discretion of the district court. Id at 826; Sallis v. Rhoads, 325 N.W.2d 121, 123 (Iowa 1982); Hahn v. State, 306 N.W.2d 764, 767 (Iowa 1981). Thus, Hardin would have to show the district court abused its discretion in denying the request.

The application stated only that Hardin intended to testify and that “[i]n order to effectively and properly present the Applicant’s case, the Applicant’s presence and participation is necessary.” Without some specific showing why her personal attendance was required, the district court properly exercised its discretion in refusing the request. Sallis, 325 N.W.2d at 123-24.

In this appeal, Hardin seeks to take this issue a step further. Here, she now asserts counsel should have requested the court allow her to participate in the hearing telephonically, a method we recognize is sometimes used by trial courts in this type of situation.[2] This issue was not presented to the PCR trial court; thus, error has not been preserved on this claim. Consequently, we decline to consider this issue for the first time on this appeal. Grout v. State, 320 N.W.2d 619, 620 (Iowa 1982). In addition, the issue of allowing Hardin to testify by telephone was impermissibly first raised in her reply brief. Polk County v. Davis, 525 N.W.2d 434, 435 (Iowa Ct. App. 1994).

B. Testimony of Dr. Spodak. The State presented the expert testimony of Dr. Michael Spodak, a psychiatrist, at the original trial. During cross-examination by Hardin’s counsel he was asked the content of his pretrial communication to the prosecutor regarding the result of Spodak’s mental evaluation of Hardin. Spodak responded “I don’t recall the exact words, but I told him that based on my interview and everything else I saw, I thought she did not meet the legal test for diminished responsibility or sanity, and I would be able to testify the next day about it.” Hardin now claims her trial counsel was ineffective for failing to object to that testimony, or in soliciting that testimony by his question to Spodak, and that subsequent counsel was ineffective for failing to raise the issue as error. We feel the record is adequate to consider this primarily legal issue at this time.

Her complaint is that the phrase “legal test” expressed an opinion as to Hardin’s guilt, prohibited by such cases as State v. Smith, 522 N.W.2d 591, 593 (Iowa 1994), or expressed an opinion as to whether her conduct met a standard fixed by law, also held improper in Smith and State v. Breitbach, 488 N.W.2d 444, 447 (Iowa 1992). These cases interpret Iowa Rule of Evidence 5.704.[3]

Iowa is committed to a liberal policy in the reception of expert opinion testimony. State v. Moses, 320 N.W.2d 581, 587 (Iowa 1982). Opinion evidence is admissible, in the discretion of the court, if it will aid the jury and is based on the expert’s special training, education or experience. Id. But where an expert is asked to give an opinion that an accused measured up to a standard of conduct that proffered testimony is often excluded where it would establish an element of the offense. Id. at 588. However, that rule is relaxed when the accused’s mental condition is the issue. Id. at 587 (cases collected). Thus, a properly qualified expert may testify that a person is sane or insane, knew the difference between right and wrong, or whether the person could comprehend the nature and consequences of the person’s acts. Id. This is partly based on the fact that the mental condition of an accused is “peculiarly a matter of expert evaluation and analysis. It is a question upon which factfinders need more than ordinary assistance from witnesses trained by education and experience to recognize mental disorders.” Id. at 588.

In this case, the jury was told in the instructions what Hardin would have to prove to establish her defense of insanity: she did not have the mental capacity to know and understand the nature and quality of her acts, or, she could not tell the difference between right and wrong. Dr. Spodak, as well as the other experts testifying both for and against Hardin, freely gave their opinions as to her mental illness, whether she knew the difference between right and wrong, and whether she understood the nature and quality of her acts. Thus, the jury was instructed on the legal standard and the experts testified as to whether, in their respective opinions, she had or had not met that legal standard.

We believe the fact Dr. Spodak referred to the “legal test,” rather than spell out what he had already testified to, is consistent with the Moses rule regarding the admission of expert mental health testimony and was not erroneous. Absent error in admission of the evidence, failure to object does not represent ineffective assistance of trial counsel. State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003). Therefore, subsequent counsel likewise did not abrogate a duty to Hardin.