ROBERT RIVAS, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-550 / 06-1883
Filed October 24, 2007
ROBERT RIVAS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
Robert Rivas appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Todd A. Miler, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney
General, John P. Sarcone, County Attorney, and Jim Ward, Assistant County
Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Vogel, JJ.
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HUITINK, J.
Robert Rivas appeals the district court’s denial of his application for
postconviction relief. We affirm.
I. Background Facts and Proceedings
The record includes evidence of the following: In the early morning hours
of July 22, 2002, Des Moines police officers were alerted to a potentially suicidal
individual at 704 Winegardner Street. Upon responding, officers observed Rivas
standing on the back deck. When Rivas saw that officers had spotted him, he
turned, ran into the house, and locked the door. When Officer Brian Mathis
approached the house and looked through the door, he witnessed Rivas reach
for a shotgun.
Officer Mathis yelled “Gun,” and the officers ran for cover.
Officers Mathis, Brent Harris, and Terry Mitchell then heard a shotgun blast and
glass breaking. The blast had broken the sliding glass door, behind which Officer
Mathis had just been standing.
Officer Mitchell attempted to reach Officer Harris, who was on the other
side of the house, but turned back after more shots were fired in his direction.
Officer Mitchell felt one shot was so close that he could feel it go by his hair.
Officer Mathis testified he heard more than twenty-five shots come from the
house in the first forty-five minutes of the ordeal. The shots destroyed much of
the interior of the home.
Some of the ammunition fired by Rivas struck
neighboring homes. One neighboring family, the Croushores, was evacuated
from their home by police. Another neighbor, Dallas Bagley, was awakened, but
only became aware of the true nature of the incident the following day. After an
eight-hour standoff, the matter was finally resolved when Rivas surrendered to
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police. Officers theorized Rivas was attempting “suicide by cop,” where he would
bait officers into shooting him, rather than shooting himself.
Based on this incident, the State charged Rivas with eight crimes. Rivas
pled not guilty. At trial, Rivas testified about his history of depression and prior
suicide attempts. After an argument with his father on July 22, Rivas wrote a
suicide note; ingested his father’s prescription allergy medication, cough syrup,
and alcohol; found a shotgun; attempted to shoot himself; and shot his father’s
possessions. He claimed he was not aware officers were outside the house until
he received a call from a negotiator, he did not shoot out the sliding glass door,
and he had no recollection of being on the deck. Following the jury trial, Rivas
was found guilty of assault with intent to inflict serious injury, in violation of Iowa
Code sections 708.1 and 708.2(1) (2001); attempted murder, in violation of
section 707.11; intimidation with intent, in violation of section 708.6(1); two
counts of intimidation without intent, in violation of section 708.6(2); and going
armed with intent, in violation of section 708.8. He was sentenced to a term of
imprisonment not to exceed thirty-seven years.
Rivas appealed, asserting various instances of ineffective assistance of
trial counsel. We reversed one of Rivas’s convictions for intimidation without
intent. State v. Rivas, No. 03-0511 (Iowa Ct. App. Jan. 14, 2004). The district
court accordingly modified Rivas’s sentence.
On January 17, 2006, Rivas filed his application for postconviction relief,
claiming his trial counsel was ineffective in (1) failing to plead the affirmative
defenses or request jury instructions on insanity, diminished responsibility, and
intoxication and (2) failing to object to the State’s improper closing argument. He
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also claimed his appellate counsel was ineffective in failing to raise these issues
on direct appeal.
Trial was held July 14, 2006.
The evidence consisted of Rivas’s trial
counsel’s deposition, Dr. James Gallagher’s psychological evaluation, and
Dr. Jennifer Ryan’s psychological evaluation.
On October 31, 2006, the district court denied Rivas’s application. As to
Rivas’s first claim, the district court found:
Trial counsel, John Wellman, pursued a defense at trial that
sought to rebut the prosecution’s claim that Rivas had the intent to
harm officers and neighbors. During deposition, Mr. Wellman
explained his reasons for failing to pursue a defense of insanity or
diminished capacity. First, Rivas told him that he was just shooting
the gun to get police to leave or not come in the house. . . .
Second, Wellman was told by examining physicians that “there was
no defense available” based on diminished capacity. . . . Third,
such defenses are typically not very successful and usually only
successful when an expert supports such a defense; two experts
told Wellman they could not support the defense. . . . Clearly it was
a strategy decision not to pursue the affirmative defenses. It was
not a case of lack of diligence. The Court concludes trial counsel
was not ineffective.
....
Additionally, based on the evidence presented by the State
of Iowa at trial, the Court finds it unlikely that the inclusion of
insanity, intoxication, or diminished responsibility instructions would
have produced a different jury verdict. See State v. Propps, 376
N.W.2d 619 (Iowa 1985). For example, the evidence of Rivas
running inside from the police and firing a shotgun through the door
where they had been standing was strong evidence of specific
intent.
As to Rivas’s second claim, the district court determined the statements the
prosecutor made in closing argument were not improper when read in context.
According to the district court,
much of the argument offered by counsel sought to discredit the
version of events offered by the defense through comparison to the
physical evidence in the case and contrary testimony offered by
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officers at the scene. This approach, as previously stated, is proper
under Graves and its progeny. Even if this Court were to find some
of the above statements to be misconduct that should have been
objected to, the Petitioner would still be burdened with the duty of
showing a resulting prejudice.
. . . The Court does not view the errors analyzed above as
having a “pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture.” Strickland, 466
U.S. at 695-96. For this reason, the Court concludes the Petitioner
has not established a reasonable probability of a different outcome
had trial counsel objected to the prosecutor’s alleged misconduct.
On appeal, Rivas argues that his trial and appellate counsel were
ineffective for the reasons set forth in his application for postconviction relief.
II. Standard of Review
In general, we review postconviction relief proceedings for errors at law.
DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, when an applicant
claims ineffective assistance of counsel under the Sixth Amendment, our review
is de novo. State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001).
III. Ineffective Assistance of Counsel
To prevail on ineffective assistance of counsel claims, the applicant has
the burden of proving by a preponderance of the evidence that “(1) counsel failed
to perform an essential duty, and (2) prejudice resulted.” Meier v. State, 337
N.W.2d 204, 207 (Iowa 1983). With regard to the first prong, “the [applicant]
must overcome the presumption that counsel was competent and show that
counsel’s performance was not within the range of normal competency.” State v.
Buck, 510 N.W.2d 850, 853 (Iowa 1994). With regard to the second prong, the
applicant must show that “a reasonable probability exists that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Wemark v. State, 602 N.W.2d 810, 815 (Iowa 1999).
We may dispose of
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ineffective assistance of counsel claims if an applicant fails to meet either of
these prongs. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
A. Preservation of Error
Initially, we address the State’s argument that Rivas’s ineffective
assistance of counsel claims have not been preserved because Rivas failed to
raise these claims on direct appeal. We disagree. Recently, our supreme court
held Iowa Code section 814.7(1) (2007), which was enacted in 2004 and
provides that ineffective assistance of counsel claims “need not be raised on
direct appeal from the criminal proceedings in order to preserve the claim for
postconviction relief purposes,” is retroactive. Hannan v. State, 732 N.W.2d 45,
51 (Iowa 2007). Therefore, we find Rivas was not required to raise these claims
on direct appeal to preserve them for postconviction relief.
B. Failure to Plead Defenses and Request Instructions
Rivas argues that his trial counsel was ineffective in failing to plead the
cited defenses and in failing to request jury instructions on insanity, diminished
responsibility, and intoxication.
Generally, ineffective assistance of counsel
claims do not lie for counsel’s exercise of judgment and are more likely to lie for
counsel’s lack of diligence. State v. Polly, 657 N.W.2d 462, 468 (Iowa 2003).
Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not
amount to ineffective assistance of counsel. State v. McKettrick, 480 N.W.2d 52,
55 (Iowa 1992). When counsel makes a reasonable tactical or strategic decision,
we will not engage in second-guessing, nor will we interfere simply because it
was unsuccessful. Fryer v. State, 325 N.W.2d 400, 413 (Iowa 1982); State v.
Johnson, 534 N.W.2d 118, 127 (Iowa Ct. App. 1995).
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“The selection of the primary theory or theories of defense is a tactical
matter.” Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984); see also Pettes v.
State, 418 N.W.2d 53, 56-57 (Iowa 1988) (holding that trial counsel made a
reasonable tactical decision in not pursuing a diminished responsibility defense);
State v. Sinclair, 662 N.W.2d 772, 782 (Iowa Ct. App. 2000) (same). Similarly,
the question of whether trial counsel was ineffective for failing to request
particular instructions must be determined with regard to the theory of the
defense in the case. State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990).
As noted earlier, trial counsel cited specific reasons for electing to pursue
a factual defense rather than the defenses now advanced by postconviction relief
counsel. Trial counsel’s reasons included his experienced opinion concerning
the limited prospects for an acquittal based on the cited defenses, as well as the
negative opinion of the physicians who examined Rivas prior to trial.
Under
these circumstances, we are unable to find counsel’s tactical decisions were
unreasonable. Because Rivas has failed to prove trial counsel breached any
essential duty concerning counsel’s choice of a defense or related jury
instructions, we affirm on this issue.
C. Prosecutorial Misconduct
Rivas claims trial counsel breached an essential duty by failing to object to
the following statements made by the prosecutor during closing argument:
(1) “Well, we know [Officer Mitchell is] telling the truth . . . .”
(2) “[I]f you find he meant to kill him on any one of those
three shots, he’s guilty of attempted murder with regard to Officer
Mitchell.”
(3) “[Rivas’s] rendition of the events regarding the shotgun,
the firing of the shotgun is absolutely absurd when you compare it
to the facts that you will agree happened.”
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(4) “[Rivas] said he didn’t know they were there and it’s all
an accident. That is absurd.”
(5) “You can believe the baloney about his personal history
if you want to. . . .”
(6) “[Officers] said, hey, buddy, and he ran inside. Does
[Rivas] say I didn’t run inside? Does he not want to say that they’re
liars?”
(7) “[Y]our duty to find a verdict that ultimately will decide
that the defendant got on the witness stand and lied about what
happened. . . .”
(8) “Remember, [Rivas’s] entire defense is dependent upon
you believing the defendant when he said I wasn’t trying to shoot
outside. His whole – because otherwise it’s all a lie, right?”
(9) “Recognize what Mr. Wellman’s argument was. His
argument was, generally speaking, that his client was not lying and
the police officers are lying.”
(10) “Mr. Wellman is very good at his arguments, probably
better than me because I do tend to get loud. He’s also very good
at picking out little things and then twisting them. . . .”
(11) “Focus on the instructions, talk about the instructions
and then focus on the defendant’s testimony as it relates to the
officers’ testimony that we know has to be true.”
(12) “Sure, [Rivas] had problems. I don’t doubt that, but I
belittle them to the extent that they are not an excuse to let you
shoot at police officers.”
To prevail on a due process claim of prosecutorial misconduct, the
defendant must prove (1) misconduct that (2) resulted in prejudice to the extent
that the defendant was denied a fair trial. State v. Piper, 663 N.W.2d 894, 913
(Iowa 2003). A prosecutor “is entitled to some latitude during closing argument in
analyzing evidence admitted in the trial.” State v. Phillips, 226 N.W.2d 16, 19
(Iowa 1975). It is “clearly improper,” however, for a prosecutor to (1) “call the
defendant a liar,” “state the defendant is lying,” or “make similar disparaging
comments,” State v. Graves, 668 N.W.2d 860, 876 (Iowa 2003), (2) refer to
defense counsel’s argument as a “smoke screen,” id. at 879, (3) misstate the
law, id. at 880, (4) vouch “for the credibility of a witness against the credibility of
the defendant,” id. at 879, (5) inflame or appeal to the fears, passion, and
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prejudice of the jury against the defendant, State v. Werts, 677 N.W.2d 734, 73940 (Iowa 2004), and State v. Vickroy, 205 N.W.2d 748, 749-50 (Iowa 1973), (6)
assert a personal opinion or create evidence, State v. Shanahan, 712 N.W.2d
121, 139-40 (Iowa 2006), or (7) make other comments that are outside the
record, State v. Carey, 709 N.W.2d 547, 556 (Iowa 2006). The concern is the
possibility that a jury might convict the defendant for reasons other than those
found in the evidence.
State v. Musser, 721 N.W.2d 734, 755 (Iowa 2006).
Nonetheless, the prosecutor is still free “‘to craft an argument that includes
reasonable inferences based on the evidence and . . . when a case turns on
which of two conflicting stories is true, [to argue that] certain testimony is not
believable.’” Graves, 668 N.W.2d at 876 (quoting State v. Davis, 61 P.3d 701,
710-11 (Kan. 2003)); see also Carey, 709 N.W.2d at 555 (stating that this is so
even if the comments are sarcastic or snide).
Like the district court, we find the prosecutor’s statements, when read in
their proper context, sought to discredit the version of events offered by the
defense through comparison to the physical evidence in the case and contrary
testimony offered by officers at the scene.
Trial counsel did not breach an
essential duty by failing to object to these statements. We also affirm on this
issue.
D. Ineffective Assistance of Appellate Counsel
We analyze ineffective assistance of appellate counsel claims under the
same two-pronged test used for ineffective assistance of trial counsel claims.
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Because Rivas cannot
establish the first prong of his ineffective assistance of trial counsel claims, we
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find appellate counsel was not ineffective in failing to raise these issues on direct
appeal.
IV. Conclusion
Based on the foregoing, we conclude Rivas has failed to establish either
prong of his ineffective assistance of counsel claims. The district court’s ruling
on Rivas’s application for postconviction relief is affirmed.
AFFIRMED.
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