Muhammad Y. Hameed v. State of Iowa , 927 N.W.2d 687 ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0696
Filed February 6, 2019
MUHAMMAD Y. HAMEED,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,
Judge.
Muhammad Hameed appeals from the denial of his application for
postconviction relief. AFFIRMED.
Nathan Legue of Legue Law, P.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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GAMBLE, Senior Judge.
Muhammad Hameed appeals from the denial of his application for
postconviction relief (PCR), contending his criminal trial counsel was ineffective in
a number of respects. The PCR court considered the record, heard testimony from
a number of witnesses and received additional evidence, and carefully considered
each of Hameed’s claims, finding them be without merit or non-prejudicial. On our
de novo review, we conclude Hameed’s counsel was not ineffective in his
representation, and we affirm.
We have previously set out the underlying facts resulting in Hameed’s
conviction for third-degree sexual abuse, and we need not repeat them here. See
State v. Hameed, No. 12-1630, 2013 WL 3458095, at *1-2 (Iowa Ct. App. July 10,
2013). This court noted Hameed admitted having sexual intercourse with the
complaining witness, and we found substantial evidence existed to support the
jury’s finding the sex act was committed by force or against the will of the
complainant. Id. at *4-6. Our supreme court denied further review.
Hameed filed a PCR application. The facts of the PCR proceeding revealed
Hameed was the manager of an adult club in Davenport, Iowa, known as the
Chorus Line. The complaining witness and a friend came to the club in March
2011 to attend a Mardi Gras party. An employee refused to serve alcohol to the
complaining witness because she was under the legal drinking age. As an
employee was escorting her out of the club, Hameed invited the complaining
witness and her friend to the back room. At the criminal trial, the complaining
witness and her friend testified that Hameed gave them each a shot of an unknown
substance and they blacked out shortly thereafter. The State alleged the
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complaining witness became incapacitated and Hameed had sex with her in the
back room by force and against her will.
During the investigation, the police seized the club’s computer tower
containing surveillance video. The police copied four hours of the surveillance
video from several camera angles onto a thumb drive and returned the computer
to Hameed. The copied video captured the complaining witness entering the club
apparently unimpaired and stumbling out of the club with the assistance of a man
an hour and seventeen minutes later.
The police produced an edited version of the surveillance video on a DVD
for use at trial. The edited version included clips of the complaining witness
entering and leaving the club. The State produced a copy of the DVD for Hameed’s
first attorney. Hameed dismissed his first attorney, and new counsel appeared.1
Hameed’s new trial counsel reviewed the DVD. Trial counsel was satisfied and
did not seek production of the entire surveillance video. The PCR court found that
counsel breached a duty in not attempting to view the entire surveillance video.
However, the court concluded Hameed had not established prejudice.
Hameed claimed the complaining witness was not intoxicated and came on
to him in the back room. He claimed the sex was consensual. His trial counsel
believed the clips of the surveillance video on the DVD supported Hameed’s
version of events. Hameed’s trial counsel was an experienced criminal defense
1
Trial was originally set for November 7, 2011, but was rescheduled for December 19.
On December 12, the State sought a continuance. Trial was rescheduled for February 6,
2012. On February 6, 2012, Hameed asked that his first attorney withdraw, and trial was
continued. New counsel appeared for Hameed on February 17, and trial was rescheduled
and eventually held on July 9, 2012.
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attorney. He settled on a trial strategy based on the theory that the complaining
witness was not intoxicated when she entered the club and the back room, she
was capable of consent, she consented to sex with Hameed, and she became
intoxicated after the sex act and before she left the club. Trial counsel chose not
to pursue other avenues and did not call witnesses that did not support this theory
of the case.
Hameed claims that upon the return of the computer tower all the
surveillance video was deleted. He asserts the police destroyed the full
surveillance video. However, Hameed did not have a forensic expert examine the
hard drive. He put it back into service and recorded over it. Hameed does not
know what was on the surveillance video and cannot say how it would have helped
his defense. The police deny destroying the surveillance video. The evidence
presented on this issue at the PCR trial would not support a spoliation instruction.2
With respect to Hameed’s claims that counsel did not call defense
witnesses, one of the potential witnesses, Jillian Caves, testified at the PCR trial.
Trial counsel testified he chose not to call her at the criminal trial because he did
not believe her testimony would assist the defense.
Hameed wanted expert testimony about possible alcohol blackouts and the
effects of the prescription drug Adderall. There was nothing presented that would
show the complainant had taken Adderall.
2
“A spoliation instruction is ‘a direction to the jury that it [may] infer from the State’s failure
to preserve [evidence] that the evidence would have been adverse to the State.’” State v.
Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004) (quoting State v. Vincik, 398 N.W.2d 788,
795 (Iowa 1987)).
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Hameed was a manager of the Chorus Line. He was not the owner. The
Chorus Line was involved with litigation against the city over its permit to have an
adult business at its location. Hameed argues the police pursued his criminal
conviction in retaliation for the ongoing civil litigation. Hameed called two attorney
witnesses about that litigation, but the PCR court found there was no credible
evidence the criminal action was related.
At the criminal trial, the complaining witness testified she never returned to
the club because she had been sexually assaulted there by Hameed. Hameed’s
counsel called photographer Robert Griffin as a witness. Griffin took photographs
of the complaining witness’s fresh tattoo at the Mardi Gras party in March 2011.
He also took a picture showing she attended a Halloween party at the club in
October 2011—the same tattoo can be seen on the complainant’s shoulder. Trial
counsel introduced the photos into evidence but did not pursue further
impeachment or argument on this point. The court found trial counsel could have
been more aggressive in impeaching the testimony of the complaining witness
concerning her appearance at the club in October. However, the court concluded
trial counsel was otherwise effective and any shortcomings did not prejudice
Hameed. The court denied Hameed’s PCR application.
On appeal, Hameed asserts the court erred in concluding his trial counsel
was not ineffective in (1) failing to pursue missing surveillance video from the club,
(2) failing to call several defense witnesses who were available, (3) failing to
develop expert testimony regarding the complaining witness’s intoxication, (4)
failing to explore Hameed’s claims of wrongful and retaliatory prosecution, and (5)
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failing to properly emphasize evidence controverting the complaining witness’s
testimony that she did not return to the club after the sex act in March 2011.
We conduct a de novo review of claims of ineffective assistance of counsel.
Goode v. State, 920 N.W.2d 520, 525 (Iowa 2018). We give weight to the trial
court’s findings, especially as they pertain to the credibility of witnesses, but are
not bound by them. Iowa R. App. P. 6.904(3)(g).
To prevail on a claim of ineffective assistance of counsel, the applicant must
demonstrate both (1) counsel’s deficient performance and (2) prejudice. Strickland
v. Washington, 466 U.S. 668, 687 (1984); Ledezma v. State, 626 N.W.2d 134, 142
(Iowa 2001). On the first prong, “the applicant must demonstrate the attorney
performed below the standard demanded of a reasonably competent attorney.”
Ledezma, 626 N.W.2d at 142. We “begin with the presumption that the attorney
performed competently” and “avoid second-guessing and hindsight.” Id. Strategic
decisions made after a reasonable investigation are rarely assailable. Id. at 142-
43. If a breach of duty is established, the applicant must also “demonstrate ‘that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Id. at 143 (quoting Strickland,
466 U.S. at 693).
Upon our de novo review, we agree with the PCR court’s findings, which
are supported by the record, and its reasonable conclusions. The court found
Hameed and his trial counsel had arrived at a trial strategy that the complainant
was able to consent to sex but then became intoxicated after the sex act. The
court specifically found the testimony of trial counsel—with respect to the
information shared with Hameed and the strategic decisions made—was more
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credible than Hameed’s. We agree that counsel’s strategic decisions were
reasonable. Hameed has failed to establish his claim of ineffective assistance of
counsel.
The PCR court found that trial counsel breached an essential duty in failing
to watch the entire surveillance video covering the entire time the complaining
witness was in the club. However, we agree with the PCR court’s conclusion that
Hameed’s assertion that the entire video would have aided his defense was
speculative. The edited video introduced into evidence by the State supported
defense counsel’s theory that the complaining witness was sober when she
entered the club and was capable of consent when the sex act occurred. The
video also supported the contention that the complaining witness required
assistance when she left the club indicating she became intoxicated after the sex
act. Hameed failed to prove prejudice.
Hameed failed to prove his trial counsel breached an essential duty in other
ways alleged by Hameed. The witnesses Hameed claims his trial counsel should
have called would have undermined the defense theory that the complaining
witness was not intoxicated when the sex act occurred. Further, trial counsel
exercised reasonable judgment in making the strategic decision that an expert on
intoxication was not necessary as the issue of whether the complaining witness
was intoxicated at the time of the sex act was within the common knowledge of
jurors, and there was no evidence that she used Adderall.
Hameed’s trial counsel introduced photographic evidence showing the
complaining witness returned to the club in October 2011. This contradicted her
testimony that she did not return to the club after the assault. The jury could
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reasonably have considered this evidence in evaluating the credibility of the
complaining witness. It was not necessary for trial counsel to hammer further on
this point.
The evidence did not support the theory that the State’s prosecution of
Hameed for sexual abuse was in retaliation for the City of Davenport’s zoning
dispute with the owner of the club Hameed managed. Trial counsel made a
reasonable strategic decision that pursuing an unsupported claim of retaliatory
prosecution would have distracted the jury from the central defense theory—that
the complaining witness was not intoxicated and consented to the sex act.
Finally, after our de novo review, we cannot conclude there is a reasonable
probability that, but for the alleged unprofessional errors of trial counsel, the
outcome of the trial would have been different. We have confidence in the
outcome. Hameed failed to prove prejudice. See Ledezma, 626 N.W.2d at 142.
AFFIRMED.