Applicant Ferman Jones, Jr., filed an application for postconviction relief wherein he alleged numerous errors concerning his 1981 conviction for second-degree murder. See Iowa Code §§ 663A.2, 663A.3 (1983). The district court denied the application and Jones has appealed. We affirm.
I. Background facts and proceedings. In early 1981, Jones and Daniel Elam were charged with first-degree murder for the shotgun slaying of Chris Stevens.. Jones’ case went to trial before Elam’s, and Jones was convicted of second-degree murder for aiding and abetting Elam in Stevens’ murder. See Iowa Code §§ 703.1, 707.1, 707.3 (1981). Elam subsequently was convicted of first-degree murder. See Iowa Code §§ 707.1, 707.2. Our court of appeals affirmed Jones’ conviction.
In September 1984, Jones filed his application for postconviction relief. 1 See Iowa Code §§ 663A.2, 663A.3 (1983). He claims: (1) that he was denied effective assistance of both trial and appellate counsel due to his counsels’ failures to have his trial continued until after Elam’s trial; (2) that he is entitled to a new trial due to newly discovered evidence; and (3) that he is entitled to a new trial due to prosecutorial misconduct.
After a hearing, the postconviction court denied Jones’ application. Jones has now appealed. See Iowa Code § 663A.9 (1989). On this appeal, he also contends that he is entitled to a second postconviction trial because he was allegedly incompetent at the time of his original postconviction hearing.
We, now, conclude that Jones is not entitled to a second postconviction hearing, and affirm the postconviction court’s denial of Jones’ application.
II. Claim for a second postconviction hearing. As an initial matter, Jones claims that the postconviction court erred in proceeding with his postconviction hearing. He argues that he was incompetent at the time of the hearing and thus unable to assist his attorney in his case. He therefore claims that he is entitled to a second postconviction hearing. We disagree.
A. Iowa Code chapter 812 outlines procedures for confinement of mentally ill or dangerous persons. More specifically, section 812.3 provides, in part, as follows:
If at any stage of a criminal proceeding it reasonably appears that the defendant is suffering from a mental disorder which prevents the defendant from appreciating the charge, understanding the proceedings, or assisting effectively in *269 the defense, further proceedings must be suspended and a hearing had upon that question.
(Emphasis supplied.) Additionally, section 812.4 provides, in part, as follows:
If, upon hearing conducted by the court, the accused is found to be incapacitated in the manner described in section 812.3, no further proceedings shall be taken under the complaint or indictment until the accused’s capacity is restored. ...
(Emphasis supplied.)
Jones argues that, because he was allegedly suffering from a mental illness at the time of his postconviction relief hearing, the hearing should have been suspended in accord with Iowa Code sections 812.3 and 812.4. We disagree with Jones’ contention because we do not believe that chapter 812 applies to postconviction relief proceedings under Iowa Code chapter 663A.
This conclusion is supported by the general rule that postconviction relief proceedings are not
criminal
proceedings, but rather are
civil
in nature and are triable at law to the court.
See Pennsylvania v. Finley,
Furthermore, our conclusion that chapter 812 does not apply to proceedings under chapter 663A is supported by the plain language of sections 812.3 and 812.4, which we believe evidences a legislative intent that postconviction proceedings not be subject to suspension due to a claimed lack of competence by the postconviction applicant. Section 812.3 specifically applies to criminal proceedings where a defendant does not appreciate the charges against him, or is prevented from assisting in his defense. As stated above, postconviction relief proceedings are not “criminal proceedings” involving “charges” and a “defense.” They are collateral actions initiated by an incarcerated individual challenging a prior conviction. Additionally, section 812.4 provides that, upon a court’s finding of an accused’s incapacitation, “no further proceedings shall be taken under the complaint or indictment." No “complaints” or “indictments” are involved in postconviction relief proceedings; such proceedings are initiated by an individual’s filing of an application with the district court. See Iowa Code § 663A.3 (1991). “Complaints” and “indictments” initiate the State’s criminal prosecution of an accused. See, e.g., Iowa Code §§ 802.8(1), 804.1.
B. Jones also claims that he is entitled to a second postconviction hearing because a guardian should have been appointed to assist him in his defense pursuant to Iowa Rule of Civil Procedure 12. Rule 12 provides that “[a]n action of ... any person judicially adjudged incompetent shall be brought by his guardian....” Jones may not avail himself of this provision, however, because at no time before his postconviction hearing was he ever “judicially adjudged incompetent.” Additionally, he did have an attorney to represent him during all postconviction proceedings.
*270
C. In any event, we do not believe that Jones’ mental condition entitles him to a second postconviction hearing. As a general rule, a competency hearing is required if the “record contains information from which a reasonable person would believe a substantial question of the defendant’s competency exists.”
State v. Kempf,
Based upon our review of the record as it existed at the time of the postconviction hearing, we conclude that the postconviction court did not err in failing to sua sponte order a competency hearing. Jones’ present claim of incompetency at the time of the hearing is belied by the rationality and coherence he displayed to the postconviction court. Jones spoke in full sentences, explained the events of the night of Stevens’ murder and Jones’ involvement with Elam, and indicated that he understood the questions being asked of him. We find no evidence of any irrational behavior in the record, and note that Jones had the ability to aid his attorney by directing, albeit unartfully, that certain questions be asked, by asking the State’s attorney whether Jones had received all of the exculpatory evidence which was available, and by directing that his counsel re-open the proceedings after Jones had rested.
We also find it significant that neither Jones, nor his attorney, nor the trial court requested a competency determination at the time of the hearing.
See State v. Lucas,
Finally, we do not believe that inmate Jones’ apparent dissatisfaction with the facilities and treatment available at the security medical facility otherwise entitles him to a special avenue of relief. An inmate’s well-established right to mental health care does not encompass the right to a type of care personally desirable to him, and an inmate has no right to a course of treatment that he requests.
Massey v.
*271
Hutto,
D. In sum, we conclude that Iowa Code chapter 812 is not applicable to postconviction relief proceedings under chapter 663A. The same is true under this record for Iowa Rule of Civil Procedure 12. We also conclude that, in any event, Jones is not entitled to a second postconviction hearing because he has failed to rebut the presumption that he was competent at the time of his postconviction hearing.
III. Ineffective assistance of trial counsel. Before Jones’ criminal trial, his trial attorney attempted to obtain deposition testimony from Jones’ codefendant Elam that Elam had acted in self-defense when he shot Chris Stevens. Elam, however, refused to provide any such testimony, based upon his privilege against self-incrimination under the fifth amendment to the United States Constitution, until after his own trial. In order to obtain Elam’s testimony, Jones’ trial attorney moved to continue Jones’ trial until after Elam’s trial. See Iowa R.Civ.P. 182. The motion was supported by an affidavit from Elam’s attorney stating in general that Elam could provide some exculpatory evidence but that the attorney would not allow Elam to testify at Jones’ trial until after Elam’s trial occurred. The motion was denied, however, because the affidavit in support of the motion did not show what particular facts Elam’s attorney believed Elam would be able to prove. See Iowa R.Civ.P. 183(b)(3).
In his application and on this appeal, Jones contends that his trial attorney rendered ineffective assistance of counsel by his unsuccessful attempt to continue Jones’ trial until after Elam’s trial. This contention is based upon Jones’ belief that an aider and abetter such as Jones should be tried after the trial of a principal such as Elam.
In order to assert a claim of ineffective assistance of trial counsel in a postconviction proceeding, an applicant such as Jones ordinarily must show that his claim was preserved for review by being made on direct appeal.
See Washington v. Scurr,
We conclude that Jones has not demonstrated “sufficient reason” for having not raised, on direct appeal from his criminal trial, the issue of ineffective assistance of trial counsel. We also conclude that Jones has not shown actual prejudice for having not raised the issue because (1) Jones was not rendered ineffective assistance of trial counsel, and (2) an aider and abetter such as Jones does not have a right to be tried after a principal such as Elam.
As noted above, postconviction relief proceedings under Iowa Code chapter 663A are civil actions at law and are ordinarily reviewed on error.
Kane v. State,
To establish a claim of ineffective assistance of trial or appellate counsel, we have indicated that the applicant must show: 1) that counsel’s performance fell outside a normal range of competency; and 2) that the deficient performance so prejudiced the defense as to deprive the criminal defendant of a fair trial.
State v. Losee,
As stated above, we do not believe that Jones has shown “sufficient reason” for having failed to raise, on the direct appeal from his criminal trial, his claim of ineffective assistance of trial counsel, because he has failed to show that his appellate counsel was ineffective for not having raised the issue on direct appeal. One of Jones’ appellate attorneys testified at the postconviction hearing that he considered raising the issue of ineffective assistance of trial counsel, but decided against this course of action based upon his review of the record before the trial court. He decided instead to appeal on the ground that the trial court abused its discretion in denying the motion for continuance. We have stated that tactical decisions such as this are usually immune from subsequent attack by an aggrieved defendant claiming ineffective assistance of counsel.
Kane,
Furthermore, we do not believe that Jones has shown prejudice due to his appellate counsels’ conduct because we do not believe that the conduct of Jones’ trial counsel in failing to obtain a continuance of Jones’ trial fell outside a normal range of competency. Jones’ trial counsel testified at the postconviction hearing that the only information he had regarding the subject matter of Elam’s possible testimony was what Elam’s attorney told him, and that all of this information was included in the motion to continue and supporting affidavit. See Iowa R.Civ.P. 182, 183. We agree with the State that Jones’ trial counsel could not supply the court with information that he did not have, nor could he force Elam to provide him with more information, for the simple reason that Elam had invoked his fifth amendment privilege against self-incrimination.
Finally, we conclude that Jones has failed to demonstrate prejudice in appellate counsel’s decision not to raise the issue of ineffective assistance of trial counsel because an aider and abetter such as Jones does not have a right to be tried after a principal such as Elam. We discuss this issue in the subsequent division of this opinion.
IV. Ineffective assistance of appellate counsel. Jones next contends that he is entitled to a new trial due to ineffective assistance of appellate counsel. He argues that his appellate attorneys failed in an essential duty because they did not consider raising, on Jones’ direct appeal from his criminal trial, the issue of whether an aider and abetter such as Jones has the right to be tried after a principal such as Elam. Jones also contends that his constitutional right to compel witnesses on his behalf, guaranteed to him by the sixth amendment to the United States Constitution, entitled him to compel Elam’s testimony despite Elam’s invocation of his fifth amendment right against self-incrimination.
A. Because Jones did not advance these contentions at his original criminal trial, nor on his direct appeal therefrom, he ordinarily would be deemed to have waived them, thus precluding our consideration of them in the present postconviction relief proceeding.
Washington,
B. Jones argues that, because he was convicted of aiding and abetting Elam in the slaying of Chris Stevens, whereas Elam was convicted of first-degree murder, Jones was entitled to be tried after Elam. Jones therefore believes that an aider and abetter must be tried only after the principal has been tried.
Our statutory law, however, provides that an aider or abetter be treated as a principal for all purposes:
All persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aid and abet its commission, shall be charged, tried and punished as principals. The guilt of a person who aids and abets the commission of a crime must be determined upon the facts which show the part he or she had in it, and does not depend upon the degree of another person’s guilt.
Iowa Code § 703.1 (1981).
It was the rule under the common law that an aider and abetter could not, unless he consented, be tried before the principal, and the conviction of the principal was necessary before the conviction of an aider or abetter could be sustained.
State v. Wilson,
Other authorities have recognized the general rule that, under a statute, such as section 703.1, providing that an aider and abetter may be prosecuted and punished as if he were the principal, an aider or abetter may be tried before the principal, and a conviction may be sustained without showing the conviction of the principal.
See
21 Am.Jur.2d
Criminal Law,
§ 175, at 332 (1981). This rule applies under federal statutory law, which also classifies all participants in conduct violating a federal criminal statute as principals.
Standefer v. United States,
Based upon the foregoing authority, we hold that Jones has not shown actual prejudice concerning the failure of his appellate counsel to raise the issue of whether he was entitled to be tried after Elam. This is because we conclude that an aider or abetter has no right to be tried subsequent to the trial of a named principal.
C. Jones also contends that his constitutional right to compel witnesses on his behalf, guaranteed to him by the sixth amendment, entitled him to compel Elam’s testimony despite Elam’s invocation of his fifth amendment privilege against self-incrimination. We disagree.
We have recognized the well-established principle that “when a witness’ privilege against self-incrimination under the Fifth Amendment collides with an accused’s right to compulsory process under the Sixth Amendment, the latter must give way.”
State v. McDowell,
*274 Because Jones did not have the right to compel Elam’s testimony, we hold that Jones has failed to show actual prejudice from the failure of his appellate counsel to raise this issue on direct appeal.
V. Claim of newly discovered evidence. Jones argues that he is entitled to a new trial due to newly discovered evidence. See Iowa Code § 663A.2(4). The “newly discovered evidence” which Jones identifies is the testimony of Elam given at Jones’ postconviction hearing. Jones contends that, because Elam has been tried and has exhausted his appeals and other remedies, and because he no longer asserts his fifth amendment privilege against self-incrimination, Elam’s testimony is “newly discovered.” We disagree.
In order for a defendant to prevail on a motion for new trial based on a claim of newly discovered evidence, he must show: (1) that 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 evidence probably would have changed the result of the trial.
State v. Allen,
[I]t is not unusual for one of two convicted accomplices to assume the entire fault and thus exculpate his co-defendant by the filing of a recanting affidavit. In a case such as the present one, the already convicted codefendants have nothing to lose by making statements that exculpate defendant. We find that such statements should not automatically be allowed to interfere with the finality of the underlying trial. Otherwise, the underlying trial would always be tentative unless all codefendants and alleged accomplices testified fully at that trial.
Jones presents precisely the same situation as that addressed in Scurr. Based upon our review of the record, we do not believe that it can be said that Jones did not know of the general nature of the testimony Elam would later provide; as stated above, Jones attempted to depose Elam, and also attempted to have his own trial continued until after Elam’s trial, all in an effort to obtain Elam’s testimony. Under Scurr, the mere fact that Elam earlier claimed his fifth amendment privilege against self-incrimination does not mean that his later surrender of that privilege rises to the level of newly discovered evidence.
Additionally, we do not believe that Elam’s testimony at Jones’ postconviction hearing in support of Jones’ theory of self-defense otherwise constitutes newly discovered evidence because we believe that this testimony was merely cumulative and hence would not probably change the result of Jones’ trial. At his original criminal trial, Jones presented the testimony of two other witnesses that supported the theory of both Jones and Elam that Elam had acted in self-defense when he shot Chris Stevens. We do not believe that Elam’s testimony would add anything to the testimony of these two other witnesses at a new criminal trial for Jones.
VI. Claim of prosecutorial misconduct. Jones’ final contention is that he is entitled to a new trial due to prosecutorial misconduct. His position is that the prosecution in his original criminal trial committed misconduct by utilizing the allegedly perjured testimony of Tanya Coleman when the prosecution either knew or should have known that the testimony was perjured. Jones bases this claim upon the fact that Coleman testified at Jones’ criminal trial that she was an eyewitness to the shooting of Chris Stevens, but then later recanted that testimony during Elam’s postconviction relief proceedings, stating *275 that the reason she testified as she did at Jones’ trial was due to police authorities pressuring her. 2
We have held that it is a violation of due process for the prosecution to suppress evidence favorable to an accused if that evidence is material to guilt or punishment.
State v. Todden,
We agree with the State that Jones' entire claim is based upon an assumption that Coleman’s trial testimony was in fact false. However, this mere assumption falls far short of the affirmative proof required to merit a new trial. We have repeatedly held that a witness’ recantation testimony, such as that advanced by Coleman at Elam's postconviction hearing, is looked upon with the utmost suspicion.
State v. Folck,
Jones points to nothing in the record, aside from Coleman’s own equivocal testimony from Elam’s postconviction case, to support his claim that Coleman’s trial testimony was perjured. As the postconviction court noted, Coleman stated that she had witnessed the shooting, consistently maintaining this position during multiple pretrial statements to police, during her sworn deposition, and during her testimony at two criminal jury trials. Based upon this record, we cannot say that the postconviction court abused its wide discretion in finding Coleman’s subsequent recantation “incredible, unreliable and unacceptable.”
Because we conclude that Jones has not carried his burden to show that Coleman’s testimony at his criminal trial was in fact perjured, we hold that Jones’ claim that the prosecution “knew or should have known" of Coleman’s alleged perjury likewise must fail. Accordingly, we affirm the postcon-viction court’s denial of Jones’ application as to this assignment.
VII. Disposition. In sum, we hold that Jones is not entitled to a second postconviction hearing due to his claimed incompetency at the time of his original hearing. We also affirm the postconviction court’s denial of Jones’ application for postconviction relief as to all issues raised.
AFFIRMED.