IN THE COURT OF APPEALS OF IOWA

No. 16

- 0240 Filed November 23, 2016

JOSHUA KENYADA WEATHERSPOON , Applicant

- Appellant,

vs.
STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Story County, James A. McGlynn

, Judge.

Joshua Weatherspoon appeals the district court’s denial of his

postconviction

- relief application. AFFIRMED.

Andrew J. Boettger of Hastings, Gartin & Boettger, L

. L

. P

. , Ames , for

appellant.
Thomas J. Miller, Attorney General, and Kevin R. Cmelik , Assistant
Attorney General, for appellee State.

Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.2

VAITHESWARAN, Judge.

A jury found Joshua Weatherspoon guilty of second

- degree robbery, first

degree theft, two counts of forgery, and two counts of unauthorized use of a
credit card. This court affirmed his judgment and sentence. See State v.

Weatherspo on , No. 13

- 1528, 2015 WL 161943 , at *5 (Iowa Ct. App. Jan. 14,

2015).

Weatherspoon filed a postconviction

- relief application raising several
claims. The district court denied the application following a hearing. On appeal,

Weatherspoon challenges his attorney’s performance on cross

- examination of a

witness who knew Weatherspoon and identified him on surveillance video. He

argues his attorney was ineffective in failing to impeach the witness with

jailhouse audio recordings of conversations the witness had with Weatherspoon.

Weatherspoon must establish the breach of an essential duty and

prejudice. See Strickland v. Washington , 466 U.S. 668, 687 (1984). The district

court concluded Weatherspoon could establish neither:

The applicant complains that trial counsel failed to vigorously pursue impeachment evidence using a recorded phone conversation simply because there were some technical difficulties. This was [a] matter of trial strategy. As the Court understands it, the recorded phone conversation s were calls made by the defendant from the Story County Jail, mostly to [the witness]

. The phone conversations were problematic for several reasons. Trial counsel objected to the State’s use of the phone calls because of prejudicial inferences the jury might draw if the jury learned the defendant was in jail and that he was unable to secure his release from jail. There were also concerns that some of the phone conversations could be interpreted as efforts made by the defendant to influence the testimony of [the witness]

. Any statements made by the applicant would at best be self

- serving and at worst could be incriminating. Under the circumstances the Court FINDS it was a fair exercise of trial strategy to decide that the recorded conversations were not helpful to the applicant. The3

applicant has failed to show how he was prejudiced. The Court FINDS the applicant has failed to meet his burden of proof on this point and that this point must . . . be denied.

Our review is de novo. State v. Thorndike , 8 60 N.W.2d 316, 319 (Iowa 2015).

Weathers po on testified the recordings would have painted a different

picture of him than the witness painted at trial

. In his view, the witness’

friendliness towards him as reflected in the recordings would have rendere d her

hostile trial testimony less believable.

Weatherspoon’s attorney disagreed. She acknowledged an initial attempt
to play some of the recordings . When technical difficulties stymied her efforts,

she decided not to use them. S he testified the impea chment value of the

nineteen hours of recordings w as not “spot on ” and use of the recordings would

have proven to be impractical and ineffect ual.

W e conclude Weatherspoon ’s trial attorney exercised reasonable trial

strategy in deciding not to impeach the witness with the recordings. Accordingly,

we affirm the denial of Weatherspoon’s postconviction

- relief application.

AFFIRMED.