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State v. Hillman5/26/2004
ime." State v. Liggins, 524 N.W.2d 181, 187 (Iowa 1994).
The question is whether Hillman was prejudiced by counsel's failure. Prejudice is shown when"there is a reasonable probability that, but for the counsel's unprofessional error, the result of the proceeding would have been different." State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998). A reasonable probability is one sufficient to undermine confidence in the outcome. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct. App. 1996).
Given the weight of the evidence recited above, there is no reasonable probability the result would have been different even had the trial counsel argued the corroborating evidence was insufficient. Adequate corroboration demonstrates that Hillman or Shannon Breeden, whom he aided and abetted, killed Paula Heiser. Because Hillman has not shown prejudice resulting from trial counsel's failure to challenge by motion for directed verdict the sufficiency of the corroborating evidence, this claim of ineffective assistance of counsel must fail.
C. Independent Forensic Pathologist
Hillman notes that the State's forensic pathologist testified regarding (1) the contemporaneous nature of Heiser's injuries and her death, and (2) that Heiser's blood alcohol level was not a contributing cause of her death. On appeal he maintains his trial counsel should have employed an expert to challenge these opinions. We find the record inadequate to address this contention, and therefore preserve it for a possible post-conviction relief application. See State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (stating we generally preserve such claims for post-conviction relief proceedings where an adequate record can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims).
D. Change of Venue
In his pro se brief, Hillman alleges he was denied his right to a fair trial due to the district court's denial of his motion to change venue. We reject this contention. Iowa Rule of Criminal Procedure 2.11(10)(b) provides that venue should be changed when "such a degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial jury cannot be preserved with a jury selected from that county." Although the record shows certain potential jurors had received from press accounts some information about the events for which Hillman was prosecuted, the record falls far short of demonstrating the jury pool held fixed opinions as to Hillman's guilt such that a change of venue would be necessary. See State v. Harris, 436 N.W.2d 364, 367 (Iowa 1989) (stating an individual seeking to overturn a conviction based on the basis of a denied motion for change of venue must establish either actual prejudice on the part of the jury or that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed). Accordingly, we affirm on this issue.
IV. Conclusion
We conclude trial counsel did not provide ineffective assistance in failing to make a more specific motion for judgment of acquittal, claim the evidence was insufficient to corroborate his confession, or move for a change of venue. We preserve for potential post-conviction relief proceedings the claim counsel was ineffective in failing to hire an independent forensic expert. Finally, whether or not specifically addressed in this opinion, we find other claims made in Hillman's pro se brief to be without merit.
AFFIRMED.
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