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DEVOSS v. STATE6/12/2002
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 affirm.
I. Background Facts and Proceedings.
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
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