Alvin Workman, Applicant-Appellant v. State of Iowa ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-0201
Filed July 16, 2014
ALVIN WORKMAN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,
Judge.
Alvin Workman appeals the denial of his application for postconviction
relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Steven J. Japuntich,
Assistant Appellate Defender, for appellant.
Alvin Workman, Rockwell City, pro se appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney
General, John P. Sarcone, County Attorney, and Stephan Bayens, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., Bower, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MILLER, S.J.
Alvin Workman appeals the denial of his application for postconviction
relief (PCR). He contends his trial and appellate counsel rendered ineffective
assistance. In a pro se brief, Workman raises the same issues but argues
additional facts. We review these claims de novo. See Everett v. State, 789
N.W.2d 151, 155 (Iowa 2010) (noting that although the denial of PCR is reviewed
for errors at law, we review an alleged denial of a constitutional right de novo).
Workman was charged with and convicted of possession of a controlled
substance with the intent to deliver, failure to possess a tax stamp, and
possession of a controlled substance, following a March 8, 2004 search of his
residence. The first issue on appeal concerns the issuance of the warrant that
authorized that search. Workman alleges his attorneys were ineffective in failing
to contest what he characterizes as “misstatements of fact (implicating
prosecutorial misconduct) and stale, unverifiable information included in the
warrant application.”
The 2004 application for a search warrant included the typewritten affidavit
of Urbandale Police Department Detective Don Simpson. It states that on March
8, 2004, the detective “received information from an anonymous concerned
citizen, who also wished to remain confidential.” The word “anonymous” was
lined out. A later reference to “the anonymous concerned citizen” similarly had
the word “anonymous” lined out.
Workman’s trial counsel, Richard Bartolomei, filed a motion to suppress
the evidence seized from Workman’s residence, alleging the search warrant
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application contained “material falsehoods and omissions.” The motion alleged
that contrary to Detective Simpson’s representations, “the information was NOT
received from a concerned citizen who had identified themselves [sic] to law
enforcement or were known to law enforcement, but who wished to remain
confidential. The caller never identified themselves and was in fact, anonymous.”
The district court granted the motion to suppress. However, on discretionary
review, this court held the district court applied an incorrect legal standard,
reversed the grant of the motion to suppress, and remanded the case to the
district court. See State v. Workman (Workman I), No. 05-0052, 2006 WL
228950, at *3 (Iowa Ct. App. Feb. 1, 2006). On remand, the district court denied
the motion to suppress after determining the caller should be categorized as an
informant, not a concerned citizen, but that the information provided by the
informant was credible.
On May 12, 2006, it was learned that although Detective Simpson advised
the court issuing the warrant that the statements contained in the application
were his own, an assistant county attorney had reviewed the application and
crossed out the word “anonymous.” Workman’s new trial counsel, Jason Shaw,
moved to reopen the record on the motion to suppress based upon this newly
discovered evidence. The motion was denied.
Paul Rosenberg represented Workman on direct appeal and argued the
district court erred in denying the motion to reopen the record. This court noted
that the district court had “found the information provided by the informant was
credible, based on the information provided by other sources and set forth in the
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application.”1 State v. Workman (Workman II), No. 06-1982, 2008 WL 4531409,
at *3 (Iowa Ct. App. Oct. 1, 2008). This court noted that the district court had
“determined there was probable cause for the search warrant based on the
information provided by the caller [who spoke to Detective Simpson], not based
on an aura of credibility given to the caller due to a designation as a concerned
citizen.” Id.
Workman filed a PCR application on February 11, 2009, alleging in part
that his trial counsel were ineffective in failing to raise the issues of “false
information that was included in the warrant application” and “possible
prosecutorial misconduct” by the assistant county attorney, who lined out the
word “anonymous” in Detective Simpson’s affidavit. The PCR court determined
that the question of false information on the warrant application was raised and
fully litigated before the trial court. With regard to the question of prosecutorial
misconduct, the court found Workman’s attorneys “exercised reasonable
professional judgment and determined that raising a claim of prosecutorial
misconduct based on the facts alleged was completely baseless.” The court
1
An attachment incorporated into the application recited that Workman had been
arrested for drug offenses in 1989, 1998, 2001, 2003, and December 2003. The
attachment also included information that in July 2003, two arrestees had told police of
recent drug possession and dealing by Workman; in November 2003, a confidential
informant had told police that Workman was then involved in the manufacture and sale
of methamphetamine, the informant had seen Workman manufacture methamphetamine
in the bathroom of his apartment, and the informant had seen a large quantity of
methamphetamine at Workman’s apartment; and in December 2003 and January 2004,
a police officer had monitored two telephone calls between another confidential
informant and Workman, in the first of which they discussed the confidential informant
purchasing a large quantity of methamphetamine from Workman, and in the second of
which Workman arranged to sell one pound of methamphetamine to the confidential
informant.
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determined “there is no reasonable probability that had the issue of prosecutorial
misconduct been raised, the outcome of the trial would have been different.”
After reviewing the record, we agree Workman is unable to show he was
prejudiced by any failure of counsel. Following remand, the trial court treated the
anonymous caller as an informant; discussed at length not only the information
provided by the caller and the bases for the caller’s knowledge, but also the
corroborating information set forth in the application; and found the information
the informant provided was credible. On direct appeal, this court agreed that
Detective Simpson’s testimony regarding the assistant county attorney striking
the word “anonymous” from the warrant application “would not change the court’s
conclusions in this case because the court’s decision was not based on the
designation of the caller as a concerned citizen.” Workman II, 2008 WL
4531409, at *3. Therefore, even if we were to find prosecutorial misconduct
occurred, Workman is unable to show the outcome would have been different. 2
Workman also contends his counsel were ineffective in failing to challenge
the district court’s determination regarding the need for a restraint and for failing
to order him to wear his restraint beneath his clothing. This issue arose when
Workman threatened to assault his counsel during a deposition that occurred
shortly before trial. Noting that Workman would become very agitated and
aggressive when something upset him, a judge ordered Workman to attend trial
2
While we need not consider Workman’s argument regarding staleness of the other
information contained in the warrant application, we note that the information provided in
the warrant suggests an ongoing or continuous criminal act and therefore “the passage
of time is less problematic because it is more likely that these activities will continue for
some time into the future.” See State v. Gogg, 561 N.W.2d 360, 367 (Iowa 1997).
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in a restraint. A different judge presided over the trial. When that judge inquired
about the use of a restraint, attorney Shaw described what had led the judge to
order the use of a restraint, but informed the trial judge that he did not fear for his
safety. Shaw stated his concern that a chain around Workman’s waist was
visible, but noted that Workman had been asked to place the chain under his
shirt and had refused. The court responded, that the decision to leave the chain
visible was “[h]is choice.”
Our supreme court has outlined the law regarding the imposition of
physical restraints on a defendant during trial:
The decision to impose physical restraints upon a defendant
during trial lies within the informed discretion of the district court
and will not be disturbed on appeal absent a clear showing of
abuse of discretion. Shackling a defendant may be justified despite
the fact that some prejudice will occur. As a procedural matter, the
district court, preferably before the trial begins, should place in the
record in the presence of the defendant and counsel the reasons
for shackling and give them an opportunity to make their objections
known. The burden is on the State to show the necessity for
physical restraints.
State v. Bartnick, 436 N.W.2d 647, 648-49 (Iowa 1988).
Workman first alleged the district court failed to make an independent
determination regarding the necessity of the restraints, and trial, appellate, and
PCR counsel were ineffective in failing to raise the issue. Workman raised this
issue on direct appeal, arguing the court denied him a fair trial because he was
required to appear in shackles. This court found the record insufficient to
address the issue because there is “no record of what, if any, restraints were
used at trial. Furthermore, we are unable to discern a specific ruling on this
issue.” Workman II, 2008 WL 4531409, at *4. In his amended PCR application,
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counsel raised the issue, arguing, “Shaw failed to make record on the physical
restraints Mr. Workman endured in the presence of the jury. By failing to do so,
Shaw failed an essential duty, and Mr. Workman was prejudiced as a result of
said failure.”
In Workman II, this court preserved for a possible postconviction action a
pro se claim by Workman that counsel rendered ineffective assistance by not
raising the issue of the need for a restraint and the trial court not ordering him to
wear it beneath his clothing. Id. Workman’s application for postconviction relief
raised claims of ineffective assistance of trial and appellate counsel, including the
issue regarding a restraint. The PCR court granted the State’s motion for
summary judgment on Workman’s claim regarding the use of a restraint. It
denied summary judgment as to the other claims, and they proceeded to trial and
a final judgment denying the remaining claims.
The PCR trial court’s grant of partial summary judgment disposed of only
one of Workman’s ineffective assistance claims, and was thus an interlocutory
ruling, not a final judgment for purposes of appeal. Suss v. Schammel, 375
N.W.2d 252, 254 (Iowa 1985); River Excursions, Inc. v. City of Davenport, 359
N.W.2d 475, 477 (Iowa 1984). As such, that ruling inheres in the PCR court’s
final judgment and is a proper subject for review on appeal from that judgment.
See Mason City Prod. Credit Ass’n v. VanDuzer, 376 N.W.2d 882, 887 (Iowa
1985) (“Appeal from the final decree will present for review all rulings inhering in
that decision.”); see also Iowa R. App. P. 6.103(3) (“Error in an interlocutory
order is not waived by . . . proceeding to trial.”). Workman does not assert that
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the district court in the PCR action erred in granting summary judgment on his
claim of ineffective assistance regarding the use of a restraint. Otherwise stated,
he makes no claim that the PCR trial court erred in finding there was no genuine
issue as to any material fact on that claim, or that the court erred in concluding
the State was entitled to judgment as a matter of law on it. See Iowa R. Civ. P.
1.981(3) (setting forth the standard for granting a motion for summary judgment).
Thus, no ineffective-assistance issue regarding the use of a restraint is properly
before us in this appeal. Furthermore, even if we were to consider the merits of
such a claim, given the overwhelming evidence of his guilt, Workman is unable to
demonstrate any prejudice by the use of a restraint or counsel not pursuing such
an issue.
AFFIRMED.