Opinion
No. 2-1028 / 01-1634.
Filed February 28, 2003.
Appeal from the Iowa District Court for Polk County, George Bergeson, Judge.
Defendant appeals from denial of his postconviction relief application. AFFIRMED.
Tiffany Koenig and Christopher A. Kragnes, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Miller and Eisenhauer, JJ.
Roger Sellers was convicted of murder in the first degree and his conviction was affirmed on appeal. State v Sellers, No. 97-1135 (Iowa Ct.App. Feb 24, 1999). Following a hearing, the district court dismissed his application for postconviction relief. It found no breach of trial counsel's duty and further found a partial recantation by Seller's brother, Kevin, was not credible. Sellers appeals. We review the dismissal of Sellers' application, based on the partial recantation, for an abuse of discretion. State v. Folck, 325 N.W.2d 368, 377 (Iowa 1982). Sellers' ineffective assistance of counsel claims prompt de novo review. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). Upon consideration of the record, we affirm.
Recantation. The district court did not find Kevin Sellers' partial recantation credible when compared to his trial testimony, and we see no basis on which to disturb this determination. See State v. Kostman, 585 N.W.2d 209, 211 (Iowa 1998) (deferring to credibility assessments unless testimony is so impossible or absurd as to be a nullity). Moreover, the recanted testimony was relatively insignificant when compared to the testimony Kevin reaffirmed at the postconviction hearing. Although Kevin altered his testimony regarding Sellers' interest in guns and interference with obtaining help for the victim, he twice reaffirmed that, just prior to the shooting, Sellers told the victim, "I dare you to say that again." We find no abuse of the district court's discretion. See Folck, 325 N.W.2d at 377 ("Recantation of trial testimony is viewed with suspicion, and the trial court has broad discretion in looking to the whole record to determine if defendant had a fair trial.").
Ineffective Assistance of Counsel . Although Sellers raises a number of issues of ineffective assistance of trial counsel, under the record made at the postconviction hearing, no prejudice is shown. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Sellers argues his inability to show prejudice is due to postconviction counsel's failure to make the necessary record, which he contends is a further level of ineffective assistance. We find this claim to be without merit.
We note Sellers' allegations regarding postconviction counsel's actions fail to "state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome." Dunbar v State, 515 N.W.2d 12, 15 (Iowa 1994). Typically, such claims are too general to address on appeal or to preserve for further postconviction proceedings. Id. Moreover, even assuming postconviction counsel could have made the record now urged, the allegedly omitted evidence pales in light of largely unassailable testimony from three witnesses.
As previously stated, Sellers' brother confirmed that just prior to the shooting, Sellers said to the victim, "I dare you to say that again." In a phone conversation shortly after the shooting, Sellers told Christina Bennett, "Well, she kept ragging and bitching and ragging and bitching. The bitch just wouldn't shut up, so I dropped the clip in the .22 and shot her." Finally, David Bishop, an identification technician, testified Sellers confessed to him, "I murdered my brother's girlfriend."
Sellers does argue his father, Harley, was with him at the time of the call, and could have impeached Bennett's testimony on this point. He does not, however, claim an ability to refute the content of Bennett's testimony. He contends only that Harley, who is deaf, would have confirmed Sellers' physical demeanor was consistent with his alleged emotional or mental condition at the time he made the statement to Bennett.
In light of the totality of evidence, there is not a reasonability probability the omitted testimony would have led to a different outcome in these proceedings. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). We therefore decline Sellers' request for either a new trial or yet another postconviction relief hearing.