IN THE COURT OF APPEALS OF IOWA
No. 16-1315
Filed June 21, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WILLIE CLAY WERNER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn,
Judge.
The defendant appeals from his convictions for sexual abuse in the
second degree. CONVICTIONS AFFIRMED, SENTENCES VACATED, AND
REMANDED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.
Between 2007 and 2014, Willie Werner molested three of his minor
granddaughters on several occasions. The three children testified at trial
generally consistent with one another and generally consistent with their previous
accounts of the sexual abuse. Following trial by jury, Werner was convicted of
five counts of sexual abuse in the second degree, in violation of Iowa Code
section 709.3 (2013), and two counts of sexual abuse in the third degree, in
violation of Iowa Code section 709.4(1)(b)(2). Werner raises a single challenge
to his convictions and a single challenge to his sentences.
I.
In his challenge to his convictions, Werner claims his trial counsel
provided constitutionally deficient representation in failing to object to a sheriff’s
deputy’s testimony that the defendant requested to speak to an attorney when
questioned about the allegations. Werner also claims his counsel was ineffective
in eliciting similar testimony from the deputy. The prosecutor elicited the
following testimony:
Q. Did you attempt to speak with the defendant about the
allegations concerning [N.V.]? A. Yes. . . . I went and talked to Mr.
Werner, advised him that there [were] new allegations, and I
explained to him that I needed to talk to him again, and at that point
his wife told me I needed to talk to his attorney.
Q. His wife told you that? A. Yes.
Defense counsel elicited the following testimony on cross-examination of the
deputy:
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Q. Now, you’ve said that after [N.V.] came forward, his wife
declined a statement; is that correct? A. She told—when I asked
him to come to the office to speak with him, she told me that I
would have to contact their attorney . . . first.
Q. And so this is after he had had a chance to get the
advice of an attorney; is that correct? A. Correct.
The prosecutor also asked the following:
Q. In your experience are defense attorneys also worried
about their clients talking to you because they might say something
incriminating?
[DEFENSE COUNSEL]: Objection. Speculation.
THE COURT: Overruled.
A. Yes.
....
Q. You were asked by [defense counsel] whether the
defendant confessed at any point, and you were asked when
defendants usually confess. Do you remember those questions?
A. Yes.
Q. I think you said they usually confess toward the end of
the interview, is that right? A. I believe that’s what I said, yes.
Q. Were you able to complete your interview with the
defendant? A. No.
This court reviews a claim of ineffective assistance of counsel de novo.
See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). It is the defendant’s
burden to show “(1) his trial counsel failed to perform an essential duty, and (2)
this failure resulted in prejudice.” Id. (citing Strickland v. Washington, 466 U.S.
688, 687–89 (1984)). “The [defendant] must prove both elements by a
preponderance of the evidence.” State v. Madsen, 813 N.W.2d 714, 724 (Iowa
2012). Failure to prove either element is fatal to the claim. See Strickland, 466
U.S. at 700 (“Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim.”); State v.
Graves, 668 N.W.2d 860, 869 (Iowa 2003) (“A defendant’s inability to prove
either element is fatal.”). “If we conclude a [defendant] has failed to establish
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either of these elements, we need not address the remaining element.”
Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).
To establish a breach of duty, the defendant is required to show “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“[C]ounsel’s performance is measured against the standard of a reasonably
competent practitioner.” State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003).
There is a strong presumption of counsel’s competence. See Strickland, 466
U.S. at 689 (“Judicial scrutiny of counsel’s performance must be highly
deferential.”).
It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too
easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.
Id. “Miscalculated trial strategies and mere mistakes in judgment normally do not
rise to the level of ineffective assistance of counsel.” Lado v. State, 804 N.W.2d
248, 251 (Iowa 2011).
Yet, “[a]n error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” Strickland, 466 U.S. at 691. Under the second element,
the defendant is required to show “that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. It
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is not enough that the applicant show the error had only some effect on the
outcome, as nearly any act or omission by counsel results in some change to the
outcome one way or another, but not necessarily in a way that would undermine
its reliability. See id. at 693. Rather, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
The defendant has not established a breach of duty. As a general rule, a
prosecutor may not comment on a defendant’s failure to testify. See State v.
Bishop, 387 N.W.2d 554, 562 (Iowa 1986). Prosecutors are not allowed to
comment directly or indirectly on a defendant’s exercise of his right to remain
silent. See id.; see also State v. Veal, 564 N.W.2d 797, 809 (Iowa 1997); State
v. Kyseth, 240 N.W.2d 671, 674 (Iowa 1976). Counsel had no duty to object to
the question regarding Werner’s wife’s statement because the right to silence is
personal and cannot be invoked by a third party, such as a spouse. See Moran
v. Burbine, 475 U.S. 412, 433 n.4 (1986) (“[T]he privilege against compulsory
self-incrimination is, by hypothesis, a personal one that can only be invoked by
the individual whose testimony is being compelled.”). Second, the right to silence
does not attach to conversations where the suspect has not been given a
Miranda warning, and Werner does not assert these discussions took place after
any Miranda warning. See Jenkins v. Anderson, 447 U.S. 231, 240–41 (1980)
(“We hold that impeachment by use of prearrest silence does not violate the
Fourteenth Amendment.”); see also Miranda v. Arizona, 384 U.S. 436, 468
(1966). Third, both the prosecutor’s and defense counsel’s questions were not
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improper when viewed in the context of the defense’s trial strategy. The primary
strategy was to impeach the quality of the police’s investigation. A detailed
account of each step of the investigation was a central part of the State’s case
and the defendant’s case.
Independently, the defendant has not established constitutional prejudice.
The evidence against Werner was very strong. See State v. Carey, 709 N.W.2d
547, 559 (Iowa 2006) (“The most important factor under the test for prejudice is
the strength of the State’s case.”). The children were reluctant to come forward
with the accusations against their grandfather. Indeed, the matter only came to
the attention of law enforcement when one of the victims disclosed the abuse to
one of her friends, the friend told her parents, and the parents contacted law
enforcement. Only in investigating this report did law enforcement learn of the
additional victims. This suggests the children had no ulterior motive and no
motive to fabricate the allegations. The three children generally testified
consistent with one another. The three children were generally consistent in their
recollection of events from the initiation of the case to the end of the case. They
were persuasive witnesses.
Moreover, the exchanges Werner points to have little bearing on the
outcome. These are relatively isolated exchanges during the course of a week-
long trial. The challenged testimony does not undermine our confidence in the
outcome of the trial. Furthermore, the jury was instructed that no inference could
be drawn from the defendant’s failure to testify. Because we assume the jury
follows instructions, we assume the jury assigned no value to Werner’s silence.
See State v. Davisson, No. 15-1893, 2016 WL 7393890, at *9 (Iowa Ct. App.
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Dec. 21, 2016). This is true whether the silence was invoked prior to or during
trial. We thus affirm the defendant’s convictions.
II.
Werner challenges his sentences. The district court ordered three of the
sentences to be served consecutive to each other and the remainder to be
served concurrently for a total term of incarceration not to exceed sixty years. At
sentencing, the district court stated it ordered the sentences to be served
consecutively due to the defendant’s lack of remorse, the ongoing nature of the
offenses, and the following:
You have been convicted of at least offending, committing
these sex acts against three of your grandchildren. I believe that it
is appropriate in this case to pick out one of those charges and on
each of the grandchildren so that they each know that there’s a
penalty involved for your actions against them.
So it will be the sentence of the Court that on Count I in
regard to S.W. that I sentence you to twenty-five years in prison.
On Count III in regard to C.W. that you be sentenced to ten
years in prison.
And on Count V in regard to N.V. that you be sentenced to
twenty-five years in prison.
Those sentences shall run consecutive to each other and
you will have to complete those sentences.
Werner argues the district court’s decision to impose a sentence “so that they
each know that there’s a penalty” is an impermissible sentencing consideration.
Specifically, the consideration of the victim’s perception of the sentence is not a
relevant sentencing consideration.
A sentence within the statutory limits “is cloaked with a strong presumption
in its favor, and will only be overturned for an abuse of discretion or the
consideration of inappropriate matters.” State v. Formaro, 638 N.W.2d 720, 724
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(Iowa 2002). The court in applying its discretion should consider all pertinent
matters, including “the nature of the offense, the attending circumstances,
defendant’s age, character and propensities and chances of his reform.” State v.
Laffey, 600 N.W.2d 57, 62 (Iowa 1999). Additional considerations are set forth in
Iowa Code section 907.5.
In this case, the district court, when imposing sentence, took into
consideration the victims’ perception of the sentence. In Laffey, the supreme
court held the victims’ perception of the sentence was an impermissible
sentencing consideration. See 600 N.W.2d at 62 (vacating sentences where the
district court took into consideration “the difficulty that might be experienced in
explaining the rationale of concurrent versus consecutive sentencing to young
victims”). The State offers several reasons why Laffey should not control the
disposition of the issue.
The State first argues Laffey leads to confusing results and should be
overturned. We are not at liberty to overturn supreme court precedent. See
State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014).
The State argues Laffey is limited by State v. Millsap, 704 N.W.2d 426,
435 (Iowa 2005). We disagree. In Millsap, the supreme court held it was
permissible to consider the number of victims when exercising sentencing
discretion because “the existence of two victims is clearly a circumstance of the
crime.” 704 N.W.2d at 435. That is a permissible sentencing consideration. See
Iowa Code § 907.5(1)(f) (providing the sentencing court shall consider the
“nature of the offense committed”). Millsap does not hold the sentencing court
should consider the separate victims’ perception of the sentences. Decisions
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subsequent to Millsap affirmed Laffey is still controlling authority on this point.
See State v. Howell, No. 14-1411, 2015 WL 4468951, at *3 n.5 (Iowa Ct. App.
July 22, 2015) (citing Laffey and stating it was improper to consider that the
victim would perceive “she is being protected to the extent possible”); State v.
Pickering, No. 14-0701, 2014 WL 5862147, at *1 (Iowa Ct. App. Nov. 13, 2014)
(noting “Laffey tells us it is impermissible to . . . consider what a child will think of
a sentence”).
The State argues the distinction is mere semantics and the sentences
should not be vacated merely because the district court chose to use a “rhetorical
flourish” while pronouncing sentence. We disagree this is a question of
semantics. The victim’s perception of the sentence is not relevant to sentencing:
This difficulty [of explaining sentencing rationale to young victims]
does not go to the nature or severity of the offense; it is unrelated to
the circumstances of the crime; it does not reflect on the
defendant’s character or propensities, or on his chances for reform
or rehabilitation; and it has no bearing on the court’s duty to protect
the community from further offenses by the defendant or others.
The fact that the court also considered other, permissible factors in
sentencing the defendant does not make the court’s reliance on this
impermissible consideration of no consequence. See State v.
Remmers, 259 N.W.2d 779, 784–85 (Iowa 1977); State v. Thomas,
520 N.W.2d 311, 313 (Iowa Ct. App. 1994). The court’s reliance on
an improper factor in imposing consecutive sentences constitutes
an abuse of discretion and requires that we vacate the defendant’s
sentences and remand to the district court for resentencing.
Laffey, 600 N.W.2d at 62.
III.
For the foregoing reasons, we affirm the defendant’s convictions. We
vacate the defendant’s sentences and remand this matter for resentencing.
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CONVICTIONS AFFIRMED, SENTENCES VACATED, AND
REMANDED.