IN THE COURT OF APPEALS OF IOWA No. 3

- 960 / 12

- 1635 Filed March 12, 2014
CHAD ENDERLE, Applicant

- Appellant ,
vs. STATE OF IOWA, Respondent

- Appellee

.

________________________________________________________________ Appeal from the Iowa District Court for Scott County, Nancy S. Tabor , Judge.

Chad Enderle appeals the denial of his application for postconviction relief

. AFFIRMED.

Mark C. Smith , State Appellate Defender, and Dennis D. Hendickson , Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Thomas H. Miller , Assistant Attorney General, and Michael J. Walton , County Attorney, for appellee.

Considered by Danils on, C .J., and Vaitheswaran and Potterfield , JJ. Tabor, J., takes no part.2

VAITHESWARAN, J. Chad Enderle appeals the denial of his application for postconviction relief

. I. Background Facts and Proceedings Gregory Harris was found dead in Davenport, Iowa

. The State charged Enderle with first

- degree murder and willful injury , and the case proceeded to trial. On the murder count, t he jury was instructed that the State would have to prove Enderle either: “ (a) acted willfully, deliberately, premeditatedly a nd with a specific intent to kill Gregory L. Harris; or (b) was participating in the offense of Willful Injury resulting in serious injury to Gregory L. Harris. ” The second alternative has come to be known as the felony

- murder rule. See State v. Heemstra , 721 N.W.2d 549, 55 2 (Iowa 2006). A jury found Enderle guilty as charged , and Enderle appealed. While his appeal was pending, the Iowa Supreme Court overruled existing precedent relating to the felony

- murder rule. Id. at 558. The supreme court held “ i f the act causing willful injury is the same act that causes the victim ’ s death, the former is merged into the murder and therefore cannot serve as the predicate felony for felony

- murder purposes. ” Id. The court reversed and remanded for a new trial. Id. at 563. The court proceeded to address whether this holding would be applied retroactively

. T he court stated, “T he rule of law announced in this case regarding the use of willful injury as a predicate felony for felony

- murder purposes shall be3

applicable only to the present case and those cases not finally resolved on direct appeal in which the issue has been raised in the district court

. ” Id. at 558. After Heemstra was filed, Enderle sought to amend his appellate brief to include the successful merger argument

. The court denied his request . Later, the court af firmed his judgment and sentence. See State v. Enderle , 745 N.W.2d 438 , 443 (Iowa 2007). Enderle appli ed for postconviction relief. T he district court held a hearing and denied the application in its entirety. Enderle appealed , raising several issues and sub

- issues. II. Merger of Wilful Injury Count
— Retroactive Application of Heemstra Relying on Heemstra , Enderle contends his willful injury conviction should have merged with the murder conviction. He raises the issue in a number of ways, which we will now parse. First, Enderle contends we should independently revisit and expand the limited retroactivity rule announced in Heemstra

. In his view, Heemstra should apply to his case because his appeal was pending when Heemstra was decided

. Heemstra ’ s retroactivity rule was clear: the court ’ s substantive holding would apply retroactively to cases pending on appeal only if the merger issue

was “ raised in the district court

. ” Heemstra , 721 N.W.2d at 558. It is not our prerogative to overrule this directive. See State v. Eichler , 83 N.W.2d 576, 578 (Iowa 1957) ( “ If our previous holdings are to be overruled, we should ordinarily prefer to do it ourselves. ” ).4
Second, Enderle argues his trial attorney was ineffective in failing to foresee the substantive holding of Heemstra and object to the jury instruction on th at ground

. To prevail , Enderle must establish (1) counsel breached an essential duty and (2) prejudice resulted. Strickland v. Washington , 466 U.S. 668, 687 (1984). Enderle ’ s ineffective

- assistance claim fails on the breach prong because Heemstra announced a change in the law , and it is established that counsel has no obligation to anticipate changes in the law

. See Heemstra , 721 N.W.2d at 558 (overruling State v. Beeman , 315 N.W.2d 770 (Iowa 1982) and its progeny); see also Goosman v. State , 764 N.W.2d 539, 545 (Iowa 2009) (noting that the ruling in Heemstra was clearly a change in the law and not merely a clarification) ; Snethen v. State , 308 N.W.2d 11, 16 (Iowa 1981) ( “ Counsel need not be a crystal gazer; it is not necessary to know what the law will become in the future to provide effective assistance of counsel. ” ). We acknowledge a n apparent disconnect between our conclusion that counsel was not obligated to preserve error and Heemstra ’ s retroactivity rule, which requires an attorney to have raised the Heemstra issue in the district court to benefit from Heemstra ’ s holding on appeal. But , in deciding a n ineffective

assistance claim, our focus is not on counsel ’ s ability to predict the outcome of a

case. See Morgan v. State , 469 N.W.2d 419, 427 (Iowa 1991). The focus is on whether a reasonably competent attorney would have raised the issue. Enderle ’ s trial attorney cogently testified that , at the time of Enderle ’ s trial,

“ [w]illful injury was still a valid predicate felony for the felony murder rule. ” He pointed out the rule had been extant since 1982 and there “ was nothing that [he]5

found from [his] endeavors both looking at the law and discussing the issues with some of the attorneys that ” would indicate the rule should be challenged. It is
true Enderle would have benefited from Heemstra had his trial attorney raised the issue. T he same was true i n Morgan , yet the Iowa Supreme Court did not hold the attorney “ to a duty of clairvoyance

. ” Id. at 427. We also decline to do

so. Our conclusion that counsel did not breach an essential duty in failing to raise the Heemstra issue makes it unnecessary t o address the State ’ s alternate argument that Heem stra does not apply to the facts of Enderle ’ s case. See State v. Tribble , 790 N.W.2d 121, 129 (Iowa 2010) (finding felony

- murder statute applicable “ when two independent acts both contribute to the death of the victim ” ). We also note the State did not raise this argument in the district court

. See Nguyen v. State , 829 N.W.2d 183, 187 (Iowa 2013) (declining to reach State ’ s arguments that were raised for the first time on appeal). Enderle ’ s third and fina l argument relating to Heemstra rests on several constitutional provisions. He asserts that retroactive application of Heemstra is mandated by the federal and state due process and equal protection clauses and the Iowa Constitution ’ s separation of powers clau se

. The State counters that only his claim under the federal D ue Process Clause was preserved for our review. See Meier v. Senecaut , 641 N.W.2d 532, 537 (Iowa 2002) ( “ It is a fundamental doctrine of appellate review that issues must ordinarily be bot h raised and decided by the district court before we will decide them on appeal. ” ). We disagree with the State

.6 Enderle raised a challenge based on his due process “ rights ” and the district court ruled on his state and federal due process claim s , stating, “ Mr. Enderle ’ s state and federal due process rights were not prejudiced by the limitations on the retroactivity of Heemstra

. ” As for Enderle ’ s equal protection claims, his postconviction brief asserted , “ under Iowa ’ s Equal Protection Clause, dis tinctions between classes of person must have some rational basis ” and he

was “ entitled to due process and equal protections afforded under the Iowa and U.S. Constitutions and invoked in Griffith

. ” See Griffith v. Kentucky , 479 U.S. 314, 323 (1987 ) ( “ [S] e lective application of new rules violates the principle of treating similarly situated defendants the same. ” ). The district court acknowledged Enderle ’ s a rgument that Iowa courts have “ unconstitutional ly made a distinction between defendants whose case wa s still on direct appeal whose counsel raised the felony

- murder issue and those whose case was s till on direct appeal and whose counsel did not raise such an issue in the court below. ” While the court did not cite the equal protection clauses in addressin g this argument, the court ’ s discussion implicates those clauses. Accordingly, we conclude Enderle ’ s challenge s under the state due process clause and the federal and state equal protection clauses w ere preserved. Remaining is Enderle ’ s assertion that Heemstra ’ s limited retroactiv i ty violates the separation of powers clause of a rticle III , s ection 1 of the Iowa Constitution. This issue was neither raised by Enderle ’ s postconviction attorney nor decided by the postconviction court. See Goosman , 764 N.W .2d at 545 (concluding a postconviction applicant did not raise equal protection or separation of powers arguments in his application for postconviction relief , the7

district court did not rule on these issues, and as a result, these issues could not

“ be ra ised for the first time on appeal ” ). Acknowledging the absence of a record on this sub

- issue , Enderle argues we should review it under an ineffective

assistance

- of

- postconviction

- counsel rubric. We agree with Enderle that this exception to the error

- pres ervation rule permits review of the issue. See State v. Brothern , 832 N.W.2d 187, 191 (Iowa 2013) ( “ Ineffective assistance of counsel is an exception to the traditional error preservation rules. ” ). We proceed to the merits of the constitutional claims. We begin with Enderle ’ s federal due process claim. That claim was resolved in Goosman

. There, the Iowa Supreme Court was asked to decide whether federal due process required retroactive application of Heemstra to postconviction relief proceedings

. Id. T he court read federal precedent to require that , “ where a court announces a ‘ change ’ in substantive law which does not clarify existing law but overrules prior authoritative precedent on the same substantive issue, federal due process does not require ret roactive application of the decision. ” The court concluded “ the limitation of retroactivity announced in Heemstra to cases on direct appeal where the issue has been preserved did not violate federal due process. ” Id. at 545. This holding is controlling. Based on Goosman , we conclude federal due process does not require retroactive application of Heemstra to Enderle ’ s case. We turn to Enderle ’ s state due process claim

. Enderle argues “ the Iowa Constitution ’ s due process protec tion requires more than the federal constitution. ” He asserts “ [f] undamental fairness strongly cries out for a new trial because Enderle is denied due process solely because he fell through the cracks8

of the timing belt of Heemstra , a fall beyond his cont rol despite efforts to correct in the appellate process of the criminal case. ” The Iowa Supreme Court “ has generally deemed the federal and state due process clauses to be ‘ identical in scope, import, and purpose. ’” State v. Nail , 743 N.W.2d 535, 539 (I owa 2007) (citations omitted). Enderle does not suggest a different approach under the state due process provision than the Goosman court used to analyze the federal due process claim. Accordingly, we will treat the state due process claim as identical. See i d. Applying the Goosman analysis to that claim, we conclude the s tate c onstitution ’ s due process clause does not mandate retroactive application of Heemstra ’ s substantive holding to Enderle ’ s

case. We next consider Heemstra ’ s federal and state equal protection claims. End erle contends “ the court ’ s decision to not apply the Heemstra case retroactively is an unreasonable classification which violates the equal protection provisions of the Fourteenth Amendment of the United Stat es Constitution and Article One Section Six of the Iowa Constitution. ” This court was not persuaded by similar arguments in Langdeaux v. State , No. 10

- 1625, 2012 WL 1439077, at

* 7 (Iowa Ct. App. Apr. 25, 2012), Dixon v. State , No. 10

- 1691, 2011 W L 5867929 , at *2

– 3 (Iowa Ct. App. Nov. 23, 2011 ) and Herrarte v. State , No. 08

- 1295, 2011 WL 768763, at * 2 (Iowa Ct. App. Mar. 7, 2011 )

. Enderle ’ s argument is equally unpersuasive. Enderle ’ s classification is premised on those who preserved error and those who did not. He cites no authority holding that denial of retroactive application to those who fail to preserve error violates the equal protection9

clause s of the federal and state constit utions

. Indeed, in Griffith , 479 U.S. at 317

– 18 , the primary opinion on which he relies, defense counsel raised the issue that became the subject of a subsequent Supreme Court opinion. S ee also United States v. Curbelo , 726 F.3d 1260, 1266

– 67 (11th Cir. 2013) ( “ Griffith does not allow Defendant to get around our usual rule that failing to file a suppression motion waives Fourth Amendment claims, even claims based on a new ruling from the Supreme Court. ” ). The sa me is true of the Iowa Supreme Court opinio n Enderle invokes, State v. Royer , 436 N.W.2d 637, 641 (Iowa 1989). There, defense counsel submitted a proposed jury instruction that, if given, would have comported with the Iowa Supreme Court ’ s holding in a subsequent opinion. Royer , 436 N.W.2d at 641; s ee also Everett v. Brewer , 215 N.W.2d 244,
24 8 (Iowa 1974) ( “ We believe there is a rational basis for classifying appellants in accordance with whether their claim previously has been fully considered and adjudicated. Defendant ’ s claim he was denied equal protection of the laws is without merit. ” ). We conclude Enderle ’ s attempted classification based on direct appeals that preserved the Heemstra issue and direct appeals that did not fails to trigger the protections of the e qual p rotection clauses. We are left with Enderle ’ s claim that the separation of powers clause of the Iowa Constitution demands retroactive application of Heemstra

. As noted, this issue was not preserved for review, requiring us to review it under an ineffective

- assistance

- of

- postc onviction

- counsel rubric. The constitutional doctrine of separation of powers is violated “ if one branch of government purports to use powers that are clearly forbidden, or attempts to use powers granted by the constitution to another branch. ” State v.10

Phillips , 610 N.W.2d 840, 842 (Iowa 2000). Enderle has not explained how the Iowa Supreme Court ’ s decision to limit retroactive application of Heemstra encroached upon the powers granted to another branch of government. That said, we acknowledge certain language in Heemstr a at least superficially lends support to Enderle’s argument. In particular, the court cited the State’s argument that policy considerations for abandoning the felony

- murder rule were rejected by the Io wa legislature and the court was not free to invoke those considerations, however valid they might be. Heemstra , 721 N.W.2d at 557. However, the court rejected the argument, stating “[t]he legislature has never considered the issue of whether, when the a ct causing willful injury is the same as that causing death, the two acts should be merged.” Id. The court went on to state, “ [W] e should not attribute to the legislature an intent to ‘create[ ] an

ever - expanding felony murder rule’ by characterizing eve ry willful injury as a forcible felony for felony

- murder purposes.” Id . at 558 (citing 4 Robert R. Rigg, Iowa Practice Criminal Law (I) § 3:16 (2006)). In sum, the court did not see its holding as an encroachment on legislative powers but as an effort to limit its broader interpretations of legislative intent. Because the Heemstra court effectively rejected Enderle’s separation of powers argument, we conclude postconviction counsel did not breach an essential duty in failing to raise a separation of powe rs claim. We also note that t his court rejected an identical argument in Langdeaux , 2012 WL 1439077, at *7. We are persuaded by the reasoning of that opinion.11
In sum, we conclude the federal and state constitutional provisions cited by Enderle do not man date retroactive application of the substantive holding of Heemstra

. We turn our attention to several arguments Enderle raised in a pro se filing which, contrary to the State ’ s assertion, were timely

. III. Jury I

nstruct ion on W

illful I njury Enderle contends the district court erroneously instructed the jury on willful injury

. His trial attorney did not object to the instruction at trial. Accordingly , he raised the issue at the postconviction hearing under an ineffective

- assistance

- of

counsel rubric

. On appeal, Enderle does not reiterate that the issue is being raised as an ineffective

- assistance

- of

- counsel claim. We will assume without deciding that he intended to do so. In State v. Schuler

, the court held that a uniform jury instruction on will ful injury requiring the State to prove a defendant “ sustained ” a serious injury was an incorrect statement of the law because the statute referred to an act “ which is intended to cause serious injury to another

. . . ” and a person who “ causes serious injury to another. ” 774 N.W.2d 294, 298

– 99 (Iowa 2009) ( q uoting Iowa Code § 708.4(1) (2005)). The willful injury instruction given in Enderle ’ s case was virtually identical to the instruction subsequently disapproved in Schuler . However, Schuler was

no t decided until long after Enderle ’ s appeal became final. Additionally, the Enderle instruction was based on a uniform jury instruction, which courts reluctantly disapprove. See State v. Weaver , 405 N.W.2d 852, 855 (Iowa 1987). Under these circumstances , we conclude Enderle ’ s attorney did not breach an12

essential duty in failing to predict this ground for objection. See State v. Hepperle , 530 N.W

. 2d 735, 740 (Iowa 1995). IV. “ Duplicitous ” Charges Enderle contends his trial attorney was ineffective in failing to object to what he characterizes as a “ duplicitous ” trial information in which he was charged with one count of first

- degree murder und er two alternatives. He argues: The trial information charged him with section 707.2(1) as well as 707.2(2). By charging two distinct acts, the State was allowed to propose to the jury two different findings upon which to rest its verdict, but did not require the finding of unanimity as required under Iowa law, Federal la w, and the U.S. Constitution. T he Iowa Supreme Court rejected this proposition in State v. Sharpe , 304 N.W.2d 220, 222

– 23 (Iowa 1981), reaffirm ing the propriety of amending a charge of first

- degree murder to allege a different means of committing the crime. See also State v. Fuhrmann , 257 N.W.2d 619, 624 (Iowa 1977) (noting that “ [f]irst

degree murder may be committed in several ways ” and holding under a prior version of the statute , that it was permissible to amend trial information charging first

- degree m urder to add a dif ferent alternative). If it is permissible to amend a trial information to add an alternat e means of committing first

- degree murder , it is permissible to include more than one alternative in the original trial information. Enderle also co ntends reversal is mandated because “ the jury rendered a general verdict of guilt , ” and the general verdict “ does not reveal the basis [f]or a guilty verdict. ” See Heemstra , 721 N.W.2d at 558 (“When a general verdict does not reveal the basis for a guilty verdict, reversal is required.”); s ee also State v. Martens , 569 N.W.2d 482, 485 (Iowa 1997) ( “ [T] he validity of a verdict based on facts legally supporting one theory for conviction of a defendant does not negate13

the possibility of a wrongful conviction of a defendant under a theory containing legal error. ” ). Although Enderle received a general verdict, both alternatives found support in the law and the evidence a t the ti me of the jury’s finding of guilt

. See Enderle , 745 N.W.2d at 443. For th is reason, we find Enderle ’ s argument unpersuasive. We affirm the district court ’ s denial of Enderle ’ s “ duplicitous ” trial information argument. V. Defective T

rial I nformation

— Willful Injury Enderle next argues, “ The trial information in Defendant ’ s case does not allege any facts or elements as to Willful Injury in Count II. It simply parrots the language of the statute without charging the elements of Willful Injury. ” He raises
t he issue under an ineffective

- assistance

- of

- counsel rubric

. A defendant o nly need s to be “ alert[ed] . . . generally to the source and nature of the evidence against him

. ” See State v. Dalton, 674 N.W.2d 111, 120 (Iowa 2004) ( quotation marks and citation omitted) ; State v. Grice, 515 N.W.2d 20, 22 (Iowa 1994) ( “ Generally an information need not detail the manner in which the offense was committed. ” ). The trial information comported with this rule. Accordingly, we conclude Enderle ’ s trial attorney did not breach an essential duty in failing to object to the trial information on this basis. VI. Suppression of Exculpatory Evidence Enderle next contends the State suppressed exculpatory evidence, in violation of Brady v. Maryland , 373 U.S . 83 (1963). In his view, the State was aware that a partial palm print found on a walking stick alleged to have been one of the murder weapons did not match his print . He asserts this information14

should have been disclosed prior to trial. Because Ender le ’ s trial and direct appeal attorneys did not raise the issue, Enderle raised the issue at postconviction under an ineffective

- assistance

- of

- counsel rubric. We will review the issue i n that context

. T o establish a Brady violation, the defendant must pr ove by a
prepo nderance of the evidence that: “ (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the issue of guilt. ” Harrington v. State , 659 N.W.2d 509, 516 (Iowa 2003) (quotation marks and citation omitted)

. Enderle did not establish the first element. He conceded a d epartment of

c riminal i nvestigation criminalist disclosed the existence of the palm print during trial. His attorney cross

- examined the criminalist abo ut the palm print and elicited an admission that the palm print was compared to Enderle ’ s print and the result

was “ [n]egative. ” His attorney also cross

- examined a police lieutenant about the palm print and again established that the palm print was not ma de by Enderle but by a person unknown to the lieutenant. Because Enderle was able to make use of the evidence before the jury found guilt, we conclude the evidence was not suppressed. See State v. Bishop , 387 N.W.2d 554, 5 59 (Iowa 1986) (stating t he

excu lpatory evidence “ was before the jury when they made their decision ” and

“ [w] here, as here, the evidence was disclosed during trial and at a meaningful time, due process has not been denied ” ); s ee also State v. Veal , 564 N.W.2d 797, 810 (Iowa 1997) ( “ Evidence is not considered ‘ suppressed ’ if the defense is able to take advantage of it at trial. ” ) , overruled on other grounds by State v. Hallum , 585 N.W.2d 249 (Iowa 1998)

. Accordingly, trial and appellate counsel15

did not breach an essential duty in fai ling to argue that the evidence was suppressed. VII. Failure to Call Witnesses Enderle asserts his trial attorney was ineffective in failing to call two witnesses

— T ammy McNeal and Don Lawless

— who, in his view, would have testified that another individual expr essed an intent to kill Harris

.

“ C laims of ineffective assistance involving tactical or strategic decisions of counsel must be examined in light of all the circumstances to ascertain whether the actions were a product of tactics or inattention to the res ponsibilities of an attorney. ” State v. Brubaker , 805 N.W.2d 164, 171 (Iowa 2011) (quotation marks and citation omitted)

. Enderle ’ s trial attorney expressed concern about calling McNeal as a witness because of “ just how she came across. ” In his view, “ S he didn ’ t come across well. ” As for Lawson, the attorney was not sure if they could find the witness . Additionally, he explained that Lawson might open the door to testimony about drugs being exchanged for sex, which the defense hoped to avoid. We conclu de the attorney made a strategic decisio n not to call these witnesses. Therefore, Enderle’s ineffective

- assistance

- of

- counsel claim fails. VIII. Bloody Fingerprints Enderle next argues his trial attorney was ineffective in failing to challenge what he describes as “ inflammatory references ” to bloody finger prints on a cigarette box found at the crime scene. He specifically refers to the testimony of a police officer who was asked if a fingerprint was “ cle ar enough just in the blood that it wasn ’ t necessary to enhance it further ” and who responded, “ Yes, sir. ”16

The officer was then asked, “ So, in fact, the blood actually was like the agent that brought out the print? ” The officer responded, “ In essence, wh en you fingerprint somebody, you use ink as a medium, a nd you roll that print on paper. In this case, instead of ink, the print was left with the blood on the finger on the item. ” No objections were made to this line of questioning. Counsel did object w hen the officer was asked what material the finge rprint was made with. After additional foundation was laid, the officer was allowed to testify that, in his opinion, “ it appears that the medium that the fingerprint was made with would be blood. ” Another officer also testified that there was blood spatter across the cigarette package. The State did not test the substance that captured the fingerprint. At the postconviction relief hearing , Enderle ’ s trial attorney said he used the State ’ s failure to tes t the substance to advance his theory that the State conducted an incomplete investigation. While he acknowledged he could have objected “ earlier and more often ” to the officers ’ opinions that the substance was blood, he testified he believed he accomplished his goal of disparaging the investigation with the objections he did make and with his closing argument. We conclude Enderle ’ s trial attorney did not breach an essential duty in failing to object more vigorously to the tes timony of blood on the cigarette package. IX. Fingerprint Identification Enderle next asserts counsel was ineffective in failing to challenge the State ’ s fingerprint identification evidence. He suggests his attorney should have done more to discredit the State ’ s fingerprint expert.17

Enderle ’ s attorney retained a finger print expert but did not call h im as a witness at trial. In lieu of retaining a trial expert, he vigorously cross

- examined the police lieutenant and o thers about the fingerprint evidence . While Enderle hired a fingerprint expert at the postconviction relief hearing who opined to flaws in the State ’ s analysis, the State severely impeached t his testimony . We conclude Enderle ’ s trial attorney did not bre ach an essential duty by declining to

c all a finger print expert at trial. X. N ewly - D iscovered E vidence Finally, Enderle contends he is entitled to a new trial based on articles and reports that question the validity of fingerprint evidence. His main focus is on a 2009 report released by the National Research Council , identif ying several areas of forensic science in need of improvement, including fingerprint analysis. Committee on Identifying the Needs of the Forensic Science Community et al., National Rese arch Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009). Enderle contends this report constitutes “ newly

- discovered evidence. ” Iowa Code section 822.2(d) (2009) permits a new trial if “ [t]here exi sts evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice. ” In order to pursue a successful claim based on newly

- discovered evidence, the applicant must show: (1) th at the evidence was discovered after the verdict; (2) that it could not have been discovered earlier in the exercise of due diligence; (3) that the evidence is material to the issues in the case and not merely cumulative or impeaching; and (4) that the evi dence probably would have changed the result of the trial.18

Harrington , 659 N.W.2d at 516 ( quotation marks and citation omitted ). We question whether the article is “ evidence ” within the meaning of the rule. Assuming it is , Enderle admits similar articles appeared well bef ore his trial. His concessi on is dispositive of the issue. We conclude the report Enderle cites is not newly

- discovered evidence entitling him to a new trial. We affirm the denial of Enderle ’ s postconviction relief application. AFFIRME D.