Robert Lee Pate Jr. v. State of Iowa ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0875
Filed May 2, 2018
ROBERT LEE PATE JR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David N. May, Judge.
Robert Pate Jr. appeals the denial of his postconviction relief application.
AFFIRMED.
Nathan A. Olson and Christine E. Branstad of Branstad Law, P.L.L.C., Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee State.
Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.
Robert Pate Jr. appeals the denial of his postconviction relief application.
I. Background Proceedings
Des Moines police officers obtained a search warrant based on information
provided by a confidential informant. They executed the warrant on an apartment
and found Pate and a woman inside with eighty-one grams of crack cocaine, as
well as cocaine salt, marijuana, and a large amount of cash.
The State filed criminal complaints against Pate but dismissed them without
prejudice based on the United States government’s expected pursuit of charges.
The United States filed a federal indictment against Pate for possessing at least
fifty grams of cocaine with intent to deliver. The government later dismissed the
indictment after a federal magistrate judge ordered the government to produce to
the court materials relating to the confidential informant.
The State refiled the criminal complaints following the federal dismissal.
Pate moved to have the identity of the confidential informant disclosed. He also
filed a motion to suppress evidence, asserting a Des Moines police officer “made
false statements in the application for a search warrant.” Specifically, he alleged
the confidential informant identified in the application “either did not exist or did not
make purchases from the apartment” in which Pate was found.
The district court denied the motion to have the informant disclosed. Pate
withdrew his motion to suppress and agreed to a stipulated trial on the minutes of
evidence. The district court adjudged Pate guilty of possession of a controlled
substance with intent to deliver as a second or subsequent offender.
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The court of appeals affirmed Pate’s conviction. See State v. Pate, No. 11-
0971, 2012 WL 3860450, at *1 (Iowa Ct. App. Sept. 6, 2012). We rejected a
challenge to the lengthy delay between the dismissal of original charges against
Pate and the refiling of charges. Id. at *3-4. We also concluded the district court
did not err in denying Pate’s request to disclose the identity of the confidential
informant. Id. at *5-6.1
Pate filed a postconviction relief application raising several claims.
Following an evidentiary hearing, the district court denied the claims and dismissed
the application. On appeal, Pate argues the district court erred in (1) denying his
ineffective-assistance-of-counsel claims, (2) limiting discovery in the
postconviction relief proceedings, and (3) concluding he did not establish pre-
accusatorial delay.
II. Ineffective Assistance Claims
To prove ineffective assistance of counsel, Pate had to show (1) deficient
performance (2) and prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The first element requires a “showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. The second element requires a “showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. On the second prong, “[t]he defendant must show that there is a
1
See also State v. Pate, No. 13-0482, 2014 WL 3747698, at *1 (Iowa Ct. App. July 30,
2014) (addressing the denial of Pate’s request for credit for presentence time served on
his fifty-year sentence).
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reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694.
A. Dismissal
Iowa Rule of Criminal Procedure 2.33(1) authorizes the dismissal of
pending charges “in the furtherance of justice.” See Iowa R. Crim. P. 2.33(1). The
dismissal “is not a bar if the offense charged” is “a felony or an aggravated
misdemeanor.” Id. “[I]n order to obtain a valid dismissal in the interests of justice
(and the resulting benefit of a dismissal without prejudice), the State must provide
appropriate and sufficient reasons for the dismissal.” State v. Abrahamson, 746
N.W.2d 270, 273 (Iowa 2008).
Pate contends his trial and appellate attorneys were ineffective in failing to
“research or recognize that [he] deserved a hearing on the motion to dismiss” and
in failing to argue “that dismissal should have been with prejudice.”
As noted, we addressed the State’s dismissal of the charges in our prior
opinion and we specifically addressed the State’s proffered reason for dismissal
and whether it was “in the furtherance of justice.” See Pate, 2012 WL 3860450, at
*3-5. We concluded the “federal government’s intent to prosecute Pate for the
same conduct” was an adequate reason “in the furtherance of justice.” Id. at *4-5.
In light of our conclusion, we agree with the postconviction court that there was no
probability of a different outcome even if a hearing had been fixed on the dismissal
motion and counsel had argued for dismissal with prejudice.
B. Confidential Informant
Pate asserts his trial attorney was ineffective in failing to advocate more
forcefully for disclosure of the confidential informant. He contends (1) his attorney
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should have made “an offer of proof to the court to support the request to disclose
the confidential informant or to support the request to excise false information from
the search warrant application” and (2) his attorney should have cited the correct
“legal standard on” his “burden of proof to force disclosure of the confidential
informant.”
The background for the contention that an offer of proof should have been
made is as follows. At a hearing on the motion for disclosure of the confidential
informant, Pate’s attorney advised the court Pate did not believe there was a
confidential informant. The attorney did not put Pate on the stand to elaborate on
this belief. The question is whether she should have done so.
The burden is on a defendant “to demonstrate the necessity of disclosure
of the identity of an informant.” State v. Hoskins, 711 N.W.2d 720, 730 (Iowa
2006).
[I]n the context of a motion to suppress evidence found in a search
conducted pursuant to a warrant, there is a much greater burden on
the defendant to compel disclosure after the magistrate has passed
on the veracity of the informant than a suppression hearing based on
a warrantless search and seizure.
Id. “When the question of an informant’s credibility arises in a motion to suppress
evidence obtained from a search pursuant to a warrant, and a judicial officer has
passed on veracity and probable cause, the defendant’s interests in disclosure are
less compelling.” State v. Robertson, 494 N.W.2d 718, 723 (Iowa 1993).
At the postconviction relief hearing, Pate testified police fabricated the
existence of a confidential informant to cover up the fact they barged into the wrong
apartment. On realizing their error, Pate asserted, police doctored the search-
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warrant application to specify that a confidential informant made drug buys at the
apartment they raided rather than the one originally identified in the application.
An offer of proof along the lines of Pate’s postconviction relief testimony
may have been helpful at the hearing on the motion to disclose the identity of the
confidential informant. An offer would have supplemented counsel’s
representation that there was no confidential informant. But even if Pate’s attorney
had put Pate on the stand, there is no reasonable probability his testimony would
have resulted in disclosure of the confidential informant.
First, the district court judge who issued the search warrant found the
confidential informant reliable. See id. at 724. Second, the information given by
the confidential informant was corroborated by police officers and “was consistent
with the evidence actually seized pursuant to the warrant.” See id. Finally, Pate’s
assertion that the apartment number in the search warrant application was
intentionally altered lacked direct evidentiary support. See id. at 725; see also
Pate, 2012 WL 3860450, at *6 n.7 (“Pate notes that after the magistrate signed the
warrant, officers realized they listed the subject apartment as apartment 4 rather
than apartment 3, and made the change to the warrant. The inaccuracy appears
to have been an insubstantial oversight or typographical error. Claims of innocent
or negligent mistakes are insufficient to mandate an evidentiary hearing.”); cf. State
v. Partington, No. 01-0164, 2002 WL 1331864, at *5 (Iowa Ct. App. June 19, 2002)
(noting the defendant presented the sworn testimony of two individuals and
deposition testimony of law enforcement officers together with counsel’s
professional statement to support the defendant’s assertion that there was no
confidential informant). We conclude counsel was not ineffective in failing to make
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an offer of proof of Pate’s testimony on the claimed falsity of the search warrant
application.
Pate also suggests his attorney should have offered the federal public
defender’s testimony, to explain how he succeeded in obtaining dismissal of the
federal proceeding. We do not necessarily agree she needed to call a federal
witness to testify about the federal proceeding. But she may have helped her case
by introducing the materials from the federal investigation that were offered at the
postconviction relief hearing, including emails between Pate’s federal public
defender and his investigator detailing possible weaknesses in the warrant
application and materials documenting the federal defense theory, which was
premised on Pate’s belief that a person identified as O.C. was the confidential
informant. However, even if she had done so, there is no reasonable probability
of a different outcome because the State prosecutor advised the court that O.C.
was not the confidential informant.
Finally, Pate contends his attorney misstated the burden of proof. In his
view, he simply needed to present “some quantum of evidence” to support his
claim of falsity in the search warrant application, whereas his attorney stated she
would have to present proof by “a preponderance of the evidence.”
Counsel correctly articulated the established standard for voiding a search
warrant application, which requires proof by “a preponderance of the evidence.”
Robertson, 494 N.W.2d at 724 (quoting Franks. v. Delaware, 438 U.S. 154, 155-
56 (1978)). True, Robertson also states “some quantum of evidence of possible
police perjury must be shown before disclosure can be required.” Id. But the
federal standard to obtain a hearing on the falsity of a search-warrant application
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is “a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit” and “the allegedly false statement is necessary to the finding
of probable cause.” Id. (quoting Franks, 438 U.S. at 155-56). Whether
characterized as “some quantum” of evidence or otherwise, this is a high bar. We
conclude Pate’s attorney was not remiss in failing to advise the court she only
needed to present some quantum of evidence to obtain a hearing.
We affirm the district court’s denial of Pate’s ineffective-assistance-of-
counsel claim premised on disclosure of the confidential informant.
C. Favorable Information in Officer’s Personnel File
Pate contends his trial attorney was ineffective in failing to obtain favorable
information from an officer’s personnel file. See Brady v. Maryland, 373 U.S. 83,
87 (1963) (“[S]uppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”);
Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the reliability of a given
witness may well be determinative of guilt or innocence, nondisclosure of evidence
affecting credibility falls within [the Brady] rule.” (internal quotation omitted)). This
claim fails because counsel obtained the identical information from another source
and cited it in support of the motion to suppress. We conclude counsel breached
no essential duty in her conduct with respect to information in the personnel file.
D. Ineffective Assistance – Postconviction Counsel
Pate contends his postconviction attorney was ineffective in (1) “failing to
assert or investigate [postconviction relief] claims regarding prosecutorial
9
misconduct for failure to disclose Brady and Giglio information,” (2) “failing to use
the civil discovery rules to pursue information from [the Des Moines police officer’s]
file,” and (3) “failing to ensure that the district court provided a ruling on all post-
conviction claims asserted by Pate.” He argues these instances of ineffective
assistance “warrant[] a limited remand pursuant to Iowa Rule of Appellate
Procedure 6.1004.”
Having found trial counsel performed effectively with respect to the first two
issues, we conclude postconviction counsel could not have been ineffective in
failing to raise those claims. As for the third issue, Pate argues his postconviction
attorney failed to ensure the postconviction court ruled on a sentencing claim he
raised during the hearing. Specifically, he asserted his trial attorney was
ineffective in representing he could not receive a sentence of less than fifty years.
He faults her “failure to know the minimum sentence” and her “error in incorrectly
instructing the court on the minimum sentence” and seeks a limited remand to
allow the court to rule on this issue.
“[I]neffective-assistance-of-counsel claims based on failure to preserve
error are not to be reviewed on the basis of whether the claimed error would have
required reversal if it had been preserved at trial. Rather, a defendant must
demonstrate a breach of an essential duty and prejudice.” State v. Maxwell, 743
N.W.2d 185, 196 (Iowa 2008) (internal citation omitted).
The sentencing transcript contains the following statements bearing on the
issue. The prosecutor stated, “The minimum sentence for this level of offense
would be the 50-year sentence and the possibility of a suspended sentence and
probation or a deferred judgment if he were eligible.” In light of Pate’s stipulation
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to being a second or subsequent offender, the prosecutor informed the court the
sentence could be tripled “to 150 years.” See Iowa Code § 124.411 (2011)
(permitting a term of imprisonment for “a second or subsequent offense” of up to
three times the term otherwise authorized). Pate’s attorney did not disagree with
the prosecutor’s summary of the minimum sentence. She requested “a 50-year
suspended sentence with probation” on behalf of Pate. The district court imposed
a prison term “for a period not to exceed 50 years” for a “Class ‘B’ Felony subject
to enhancement as a second or subsequent offender.”
The basis for arriving at the prison sentence was clear in the record.
Accordingly, trial counsel breached no essential duty in articulating the sentence
and postconviction counsel breached no essential duty in failing to address the
matter.
III. Limitation of Discovery
After Pate filed his postconviction relief application, the State moved to limit
discovery. The State alleged Pate wished to depose police officers “who were
involved with the underlying criminal charges” and “these individuals possess[ed]
no information related to the performance of underlying criminal counsel.” The
State also pointed out that certain claims were resolved on direct appeal and
discovery as to those claims would be unnecessary.
Pate responded by filing a notice of depositions, which listed six Des Moines
police officers. He also asked to depose an assistant county attorney and the State
public defender. The district court granted the State’s motion to limit discovery,
reasoning “the proposed depositions of the police officers and Assistant Polk
County [Attorney] are not calculated to lead to admissible evidence.”
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On appeal, Pate argues (1) his “PCR claims included claims of ineffective
assistance of trial counsel,” (2) “[s]howing that trial counsel failed to effectively
address any of the underlying issues may be part of that claim,” and, (3)
accordingly, “previously decided issues are open to additional discovery.”
As discussed, we are unpersuaded by Pate’s ineffective assistance claims
that Pate now claims were the reason for seeking additional discovery. But, giving
Pate the benefit of the doubt, we have asked ourselves whether additional
discovery would have advanced any of his claims. The only conceivable benefit
we can glean from allowing depositions to go forward is the possible extraction of
an admission from the officers that they altered the search-warrant application. If
this was Pate’s goal, we have no trouble concluding his wide-ranging deposition
notice would have amounted to a “fishing expedition.” See Robertson, 494 N.W.2d
at 724. We conclude the district court did not abuse its discretion in limiting
discovery.
IV. Preaccusatorial Delay
The State waited 501 days after the dismissal of Pate’s federal charges to
refile the State criminal complaints. Pate argues his “due process rights under the
Iowa and U.S. Constitutions were violated by [the] delay in prosecuting” him.
Although “[t]here is no constitutional right to be arrested and charged
at the precise moment probable cause comes into existence,” the
government cannot delay “filing charges to intentionally ‘gain [a]
tactical advantage over the accused’” without implicating the Due
Process Clause. To prevail on a claim that such a delay violated due
process, a defendant has a heavy burden of proving both (1) the
defendant’s defense suffered actual prejudice due to a delay in
prosecution and (2) the delay causing such prejudice was
unreasonable. “To establish actual prejudice a defendant must show
loss of evidence or testimony has meaningfully impaired his ability to
present a defense.” Generalized claims of prejudice, such as “loss
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of memory, loss of witnesses, or loss of evidence” do not constitute
actual prejudice.
State v. Brown, 656 N.W.2d 355, 363 (Iowa 2003) (internal citations omitted).
As a preliminary matter, the State argues we addressed the delay on direct
appeal and Pate is foreclosed from re-litigating the issue. See Pate, 2012 WL
3860450, at *3-5. Because Pate formulated the issue slightly differently in his
postconviction relief application, we will address the claim.
Pate asserts he suffered prejudice by virtue of the delay in prosecution
because the “actual search warrant” presented to him at the time of the search
was lost and, without the search warrant, he “was unable to show that the entry
into his apartment was illegal.” But, if there was another search warrant and if it
was lost, the loss had nothing to do with the State’s delay in refiling the criminal
complaints.
Pate raised the identical claim in 2008, long before the State refiled its
charges. The federal public defender investigated the assertion and obtained
clarification from the State clerk of court of the procedure with respect to search
warrants, including the warrants in this case. In short, the existence or non-
existence of another warrant was thoroughly vetted in the federal proceeding and
could not form the basis for a finding of actual prejudice from the State’s delay of
the State criminal prosecution.
We affirm the district court’s denial of Pate’s postconviction relief
application.
AFFIRMED.