IN THE COURT OF APPEALS OF IOWA
No. 16-0235
Filed April 5, 2017
GABRIEL VASQUEZ,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Judge.
An applicant appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Mark C. Smith, State Appellant Defender, and Stephan J. Japuntich,
Assistant Appellant Defendant, for appellant.
Gabriel Vasquez, Newton, pro se.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., Vaitheswaran, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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SCOTT, Senior Judge.
Gabriel Vasquez was convicted, following a jury trial, of two counts of
sexual abuse in the second degree and one count of sexual abuse in the third
degree related to his abuse of his daughter. He was sentenced to two twenty-
five-year terms, to be served consecutively, and one ten-year term, to be served
concurrently with the first two counts. He appealed his conviction, which this
court affirmed. See State v. Vasquez, No. 10-0085, 2011 WL 2089778, at *5
(Iowa Ct. App. May 25, 2011). The facts of the case are adequately outlined in
our prior appellate decision and need not be repeated here. See id. at *1–2.
Following his appeal, Vasquez filed an application for postconviction relief (PCR),
which the district court denied after holding an evidentiary hearing. Vasquez now
appeals the district court’s denial of his PCR application.
Through counsel, Vasquez challenges the district court’s determination he
failed to prove trial counsel was ineffective in failing to move to suppress the
video of his confession based on promissory leniency and trial counsel was
ineffective in not requesting a limiting instruction on the use of the video.
Counsel also claims the PCR court erred in not addressing all of Vasquez’s pro
se claims. Vasquez also filed a pro se appellate brief in this matter, asserting the
PCR court should have granted him relief because his trial counsel was
ineffective in not moving to suppress the video of his confession based on
promissory leniency and a lack of voluntariness, the PCR court erred in denying
his claim that his trial counsel was ineffective in not securing the complaining
witness’s mental health records, the PCR court erred in not considering his claim
of prosecutorial misconduct, and his PCR trial counsel was ineffective in the
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preparation and presentation of his PCR action resulting in structural error. We
will address each claim in turn.
I. Police Interview Video.
During trial, the State played for the jurors a portion of the police interview
video wherein Vasquez admits to the conduct alleged by the complaining
witness. The parties disputed the admissibility of this video during the criminal
proceedings and in the prior appeal, and this court determined the district court
correctly denied Vasquez’s motion to suppress the video, which was based on
the police officer’s failure to give Vasquez Miranda warnings. Id. at *2–3. We
held:
[W]e concur in the district court’s conclusion that a reasonable
person in Vasquez’s position would not believe he was in custody.
Vasquez was informed he was not under arrest, that he was free to
leave, and that he would be able to return to work. He drove
himself to the police station and drove back to work after the
interview. Because he was not in custody, there was no
requirement that Miranda warnings be given.
Id. at *3. Vasquez also claimed in the prior appeal that the statements he made
in the video should have been suppressed because they were not voluntary but
were made “in exchange for a promise of custodial leniency.” Id. Because this
claim was not made in the motion to suppress and was not addressed by the
district court, we determined the claim was not preserved for our review. Id.
In this appeal from the court’s denial of his PCR application, Vasquez
claims the court erred in concluding he failed to prove his claim that his trial
counsel was ineffective in not seeking to suppress his statements in the video
based on promissory leniency. He also claims his trial counsel should have
requested a jury instruction directing the jury that they could only consider
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Vasquez’s statements on the video, not the questions or statements by the
interviewing officer. Finally, in his pro se brief, Vasquez claims the video should
have been suppressed because he was in custody and he was not given the
Miranda warnings.
A. Limiting Instruction. Vasquez first contends his attorney was
ineffective in not requesting a limiting instruction during trial that would have
advised the jury that the interviewing officer’s statements and questions should
not be considered for their truth. This claim was not presented to the PCR court,
and therefore, it is not preserved for our review. See Lamasters v. State, 821
N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review
that issues must ordinarily be both raised and decided by the district court before
we will decide them on appeal.” (citation omitted)). Vasquez does not contend
PCR counsel was ineffective in failing to raise this claim during the PCR trial.
See State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006) (noting ineffective-
assistance claims “are an exception to normal error-preservation rules”).
However, even if we were to find this claim preserved for our review, we
conclude trial counsel’s failure to request such a limiting instruction would not
have resulted in this case being remanded for a new trial. To be successful on
this ineffective-assistance claim, Vasquez must prove both that counsel failed to
perform an essential duty and that this failure resulted in prejudice. See id. The
prejudice element requires a finding of “a reasonable probability” that “but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. (citations omitted). Having reviewed the evidence in this case,
including the testimony of the complaining witness and the police interview video,
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we are not convinced that the result of the proceeding would have been different
if a limiting instruction had been given with regard to the interviewing officer’s
statements. Thus, even if PCR counsel had made a claim that trial counsel was
ineffective in failing to request a limited instruction, that claim would have been
unsuccessful.
B. Promissory Leniency. Next, Vasquez contends counsel was
ineffective in failing to move to suppress the police interview video on the basis
that the interviewing officer used promissory leniency to elicit his confession.
“[C]ourts and commentators have long recognized promises of
leniency can induce false confessions leading to wrongful
convictions of the innocent.” We reiterated that a “confession can
never be received in evidence where the prisoner has been
influenced by any threat or promise.” In State v. Mullin, we asked:
“Were the statements made to the accused strong enough so that it
could in reason be determined that the prisoner would lie and say
he was guilty when he was not, so as to gain some special favor?”
State v. Howard, 825 N.W.2d 32, 40 (Iowa 2012) (internal citations omitted).
Vasquez asserts the interviewing officer induced his confession by telling him the
officer did not believe Vasquez was a child predator. Vasquez also claims the
interviewing officer induced his confession by implying the complaining witness
will not get the help she needs and may harm herself if he did not admit to what
happened.
In addressing this claim in its PCR ruling, the district court stated “there is
no indication in the video of his interview that [the interviewing officer] in any way
offered leniency in exchange for Vasquez’s admissions.” Upon our review, we
conclude the statements Vasquez complains of in the video in no way
communicated that Vasquez would be given special or preferential treatment if
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he confessed to abusing the complaining witness. See id. (noting there must be
“some fairly specific assurance or promise of leniency” that “explain[s] just how it
will be better or wiser for the accused to speak” (citation omitted)). Nor did the
interviewing officer give any indication that the complaining witness would not
receive the help and counseling she required if Vasquez did not confess. See id.
at 41 (noting the detective’s “repeated references to getting help combined with
his overt suggestions that after such treatment [the defendant] could rejoin [his
girlfriend and the abused child] conveyed the false impression that if [the
defendant] admitted to sexually abusing [the child] he merely would be sent to a
treatment facility . . . in lieu of further punishment”). The interviewing officer
informed Vasquez that he had no power but to simply record what Vasquez said
in his report. We agree with the district court’s assessment that no promises of
leniency were made in exchange for Vasquez’s confession.
C. Voluntariness. In his pro se brief, Vasquez also claims the police
interview video should have been suppressed because his confession was not
voluntary in light of the fact he was in custody and was not given the Miranda
warnings. He asks us to adopt and apply a “ten-factor test” for determining
custody and voluntariness. See State v. Kittredge, 97 A.3d 106, 111 (Me. 2014)
(articulating ten factors the court considers in determining whether a person is in
custody for the purposes of the Miranda warnings). As indicated above, this
court on direct appeal determined Vasquez was not in custody at the time of the
police interview video confession. Vasquez, 2011 WL 2089778, at *2–3, *2 n.2
(concluding, after analyzing four factors as required under the controlling case
law, that “a reasonable person in Vasquez’s position would not believe he was in
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custody” and rejecting Vasquez’s request to consider a fifth factor in the
analysis). Because the issue of Vasquez’s custodial status at the time of police
interview has already been litigated and resolved in the direct appeal, we will not
consider it again as part Vasquez’s appeal from the denial of his PCR action.
See Iowa Code § 822.8 (2011) (“Any ground finally adjudicated . . . in the
proceeding that resulted in the conviction or sentence . . . may not be the basis
for a subsequent application . . . .”).
II. Mental Health Records.
Also in Vasquez’s pro se brief, he asserts the district court should have
granted him a new trial based on trial counsel’s failure to assert the complaining
witness’s submission to a medical examination by the State’s expert waived any
privilege the complaining witness had to her mental health records. After losing
the battle to obtain the mental health records of the complaining witness at the
trial court, Vasquez asserts counsel should have “relitigated the motion in limine,”
claiming those records would have assisted him in proving the complaining
witness recently fabricated her allegations against him.
Again the admissibility of the complaining witness’s mental health records
was litigated and resolved on direct appeal. Vasquez asserted there “he should
have been able to present evidence of statements [the complaining witness]
made to medical care providers that [were] inconsistent with later statements she
made to law enforcement officers.” Vasquez, 2011 WL 2089778, at *4. We
concluded the court did not abuse its discretion in ruling the records were not
admissible. Id. We also concluded that because the evidence was not relevant
to the charge, Vasquez was not deprived of his constitutional right to present a
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defense. Id. We will not revisit this issue again on PCR. See Iowa Code
§ 822.8.
III. PCR Court.
Counsel for Vasquez on appeal claims the PCR court erred in not
addressing the pro se claims Vasquez made. However, counsel fails to inform
this court what pro se claims were not addressed by the PCR court. In addition,
we note if the district court failed to rule on an issue, the proper way to address
the court’s oversight is through a motion under Iowa Rule of Civil Procedure
1.904(2). No such motion was filed in this case; therefore, counsel’s assertion
that the PCR court failed to address all of the pro se claims is not preserved for
our review. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“When a
district court fails to rule on an issue properly raised by a party, the party who
raised the issue must file a motion requesting a ruling in order to preserve error
for appeal.”).
In his pro se appellate brief, Vasquez claims the PCR court failed to
consider his claim of prosecutorial misconduct. He asserts the prosecutor
“misrepresented her evidence to gain a favorable ruling, then played a DVD for
the jury on issues she moved to exclude” and “failed to turn over her report from
Dr. Harre until after she won the limine motion and when [counsel for the medical
provider] conceded the third-party waiver, [the prosecutor] stayed silent.” Again,
no posttrial motion under rule 1.904(2) was filed in this case. Therefore,
Vasquez’s claim that the PCR court did not rule on his claim of prosecutorial
misconduct is not preserved for our review. See id. at 539 (“We recognize that
we have repeatedly said that a rule [1.904(2)] motion is necessary to preserve
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error ‘when the district court fails to resolve an issue, claim, or other legal theory
properly submitted for adjudication.’” (citation omitted)).
Even if such a claim had been preserved for our review, we conclude
Vasquez failed to prove the result of the PCR proceeding would have been
different had counsel filed a posttrial motion seeking a ruling on the prosecutorial
misconduct claim. Vasquez has failed to prove that any of the alleged actions of
the prosecutor resulted in him receiving an unfair trial. See State v. Graves, 668
N.W.2d 860, 869 (Iowa 2003) (noting to prove prosecutorial misconduct a
defendant must show misconduct and that “the misconduct resulted in prejudice
to such an extent that the defendant was denied a fair trial”). Therefore, even if
PCR counsel had filed a posttrial motion to preserve the claim of prosecutorial
misconduct, it would not have been successful on appeal.
IV. PCR Counsel.
Finally, Vasquez, in his pro se brief, asserts his PCR counsel provided
ineffective assistance when counsel did not retain experts on interrogation and
medical records, as he requested, and when PCR counsel did not file a posttrial
motion. Vasquez asserts counsel’s failures were “corrosive to the administration
of justice that it constituted structural error warranting reversal.” We disagree.
Retaining experts to address issues of Vasquez’s custodial status at the time of
the police interview and of the admissibility and relevance of the complaining
witness’s mental health records would not have resulted in a favorable PCR
ruling in light of the fact that both of these issues were barred by res judicata.
Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009) (“A postconviction
proceeding is not intended as a vehicle for relitigation, on the same factual basis,
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of issues previously adjudicated, and the principle of Res judicata bars additional
litigation on this point.” (citations omitted)).
In addition, with respect to Vasquez’s claim of structural error:
[S]tructural error occurs when: (1) counsel is completely denied,
actually or constructively, at a crucial stage of the proceeding; (2)
where counsel does not place the prosecution’s case against
meaningful adversarial testing; or (3) where surrounding
circumstances justify a presumption of ineffectiveness, such as
where counsel has an actual conflict of interest in jointly
representing multiple defendants.
Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011). A defendant does not have to
prove prejudice in these circumstances because “the criminal adversary process
itself is ‘presumptively unreliable.’” Id. (citation omitted).
Our review of the record indicates PCR counsel’s representation was not
so grossly lacking as to result in Vasquez being “constructively without counsel
during his postconviction relief proceeding.” See id. at 253. Three different
attorneys represented Vasquez through his postconviction-relief proceeding.
The final attorney to represent Vasquez during PCR proceeding conducted
depositions of trial counsel and submitted those depositions as evidence at the
PCR trial. Vasquez made, and then withdrew, a request to represent himself at
the PCR hearing. Counsel was present for trial and actively engaged in the
presentation of evidence and argument to the court. Counsel examined
witnesses and made sure to inquire of Vasquez whether any additional claims or
evidence needed to be presented to the court. In addition, counsel ensured the
court granted Vasquez additional time to present a posttrial brief regarding his
PCR claims. While Vasquez was continually unhappy with all the attorneys who
represented him during PCR, actively filing many pro se documents throughout
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the proceeding and failing to notify his own counsel of the filings, we cannot
conclude Vasquez was constructively without counsel during his PCR
proceeding. Thus, his structural-error claim is denied. In addition, we conclude
Vasquez has failed to establish he was otherwise prejudiced by PCR counsel’s
failures to preserve error as detailed herein. See Dunbar v. State, 515 N.W.2d
12, 14–15 (Iowa 1994) (recognizing a PCR applicant’s ability to assert a claim of
PCR counsel’s ineffectiveness but requiring the PCR applicant to prove both
counsel’s failure and the resulting prejudice).
Because we agree with the district court’s assessment of the claims
Vasquez made in his application for postconviction relief and determine Vasquez
has failed to prove PCR counsel’s alleged failures resulted in his prejudice, we
affirm the district court’s decision.
AFFIRMED.