IN THE COURT OF APPEALS OF IOWA
No. 17-0680
Filed October 10, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ELIAS WALTER WANATEE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane E.
Hoffmeyer, Judge.
A defendant appeals his conviction for murder in the second degree.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by Vogel, P.J., Tabor, J., and Blane, S.J.*
*Senior judge assigned by order under Iowa Code section 602.9206 (2018).
2
TABOR, Judge.
Elias Wanatee appeals his conviction for second-degree murder in the
stabbing death of Vernon Mace. Wanatee claims his trial counsel was ineffective
in two ways: (1) by not effectively objecting to hearsay testimony relaying Mace’s
identification of “Eli” as his attacker, and (2) by not seeking to exclude testimony
from “a jailhouse snitch.” Relatedly, Wanatee argues the cumulative effect of
counsel’s errors prejudiced his chances of acquittal. Wanatee also faults the
district court for allowing the state medical examiner to describe two of Mace’s nine
cuts as “defensive wounds” and for admitting into evidence a diagram from a
forensic pathology textbook illustrating the concept of “defensive wounds.”
To answer Wanatee’s first two claims, we find no shortfall in counsel’s
performance. Because the victim’s statements qualified as dying declarations,
counsel did not need to object. And because the informant’s testimony was
admissible, counsel did not breach a duty in choosing impeachment over
exclusion. Finally, Wanatee cannot show he was prejudiced by the references to
“defensive wounds.”
I. Facts and Prior Proceedings
“Tom, call an ambulance. I think Eli stabbed me in the lung.” Tom Abbe
and Anna Edwards recalled Mace uttering those words as he stood at Abbe’s front
door bleeding from a gaping head wound.1 Later in her trial testimony, Edwards
captured the severity of Mace’s condition: “He looked like someone dropped a
1
Both Wanatee and Mace had been inside Abbe’s Sioux City residence earlier that night.
Wanatee slipped out the back sliding doors while Mace left by the front door. Abbe and
Edwards later heard “screaming and hollering” and went to the back deck to investigate.
Edwards recognized the raised voices as those of Wannatee and Mace.
3
bucket of red paint on him. . . . It was like taking a pulse. I mean, it was like every
time his heart beat, you could see [blood] squirting out the side.”
As Edwards dialed 911, Kim Stahle pulled up outside Abbe’s house in a Kia
Optima. Stahle saw Mace standing in the yard, holding his stomach. Mace ducked
into the residence for less than a minute, then stumbled toward Stahle’s car,
pleading: “Please take me to the hospital.” Stahle drove as fast as she could to
the ambulance bay at Mercy Hospital—arriving just after two in the morning. En
route, Stahle asked Mace “Who did this to you?” He responded: “Eli.” When
Stahle arrived at Mercy, she ran to the bay doors and said, “I think there’s a dead
guy in my car.”
The emergency room nurse moved Mace from the Kia passenger seat into
a wheelchair. The nurse remembered Mace was breathing, but “lethargic,
meaning slightly unresponsive.” When medical personnel removed Mace’s blood-
soaked clothes, they saw several lacerations. Doctor Suman Tandra noted stab
wounds to Mace’s scalp, face, abdomen, chest, and forearm. Mace was moaning
but generally unresponsive. Dr. Tandra believed Mace was in hemorrhagic shock,
a condition that occurs “when the body loses significant amount of blood, typically
over 20 percent, and the heart unfortunately cannot function efficiently and [pump]
enough blood to your vital organs.”
Dr. Tandra called a trauma surgeon, but Mace went into cardiac respiratory
arrest and the trauma team’s efforts to resuscitate him were unsuccessful. Mace
died about an hour after arriving at the hospital.
Called to investigate the fatal stabbing, Sioux City police officers
interviewed Abbe, Edwards, and Stahle. Those interviews exposed Wanatee as
4
the prime suspect. Wanatee and Mace had a connection not just by their presence
at Abbe’s house the previous night, but through Wanatee’s marriage to Mace’s
niece, Nelitta Taylor.
Officers located and arrested Wanatee at a nearby apartment building
around 11 a.m. After the arrest, a detective interviewed Wanatee, who denied
confronting Mace earlier that morning. Wanatee said witnesses might be blaming
him because he recently split up with Taylor. Wanatee acknowledged stopping by
Abbe’s house that night but said he left alone and saw “nobody else in the street.
Nobody else chased me down, nobody else said anything to me, and I just kept
going.”
These statements to the detective differed from the story he told a fellow
inmate at the Woodbury County jail. According to Michael Bergin, Wanatee said
“he got in an altercation and stabbed somebody” five times. Bergin claimed
Wanatee told him the victim “died because he bled out because he didn’t seek
medical attention.”
An autopsy by Dr. Thomas Carroll chronicled nine stab wounds. The doctor
believed two fatal wounds likely pierced the victim’s liver and chest cavity.
Dr. Carroll also described a “slashing laceration” and a “shallow stab laceration” to
Mace’s left forearm. Dr. Carroll opined the victim was facing his attacker when he
received those stab wounds.
The State charged Wanatee with murder in the first degree. Wanatee filed
a notice of self defense. His first trial ended in a hung jury. The district court
granted a change of venue to Pottawattamie County for the second trial, which
began in February 2017. Defense counsel’s closing argument in the second trial
5
emphasized the animosity between Mace and Wanatee stemming from their tense
encounter witnessed by Taylor. She testified to seeing her uncle pull a gun on
Wanatee during a contentious car ride about a month before the stabbing.
Counsel argued: “Mace pulls out a gun, puts it to the back of Eli’s head, and then
grabs the back of his neck while he’s driving the car with three other people in it.
You have to ask yourself: Where did that come from?”
The jury found Wanatee guilty of murder in the second degree. For that
conviction, he received an indeterminate sentence of fifty years. Wanatee now
appeals.
II. Scope and Standards of Review
Because Wanatee’s complaints about counsel’s performance spring from
the Sixth Amendment of the U.S. Constitution and article I, section 10 of the Iowa
Constitution, we review them de novo. See State v. Canal, 773 N.W.2d 528, 530
(Iowa 2009). We review evidentiary rulings, including decisions about the
admissibility of expert testimony, for an abuse of discretion. State v. Tyler, 867
N.W.2d 136, 152 (Iowa 2015).
III. Legal Analysis
A. Ineffective Assistance of Counsel
In two key challenges to his second-degree murder conviction, Wanatee
alleges deficiencies in the performance of his trial attorney. First, Wanatee claims
counsel should have objected to the admission of hearsay evidence as failing to
satisfy the exception for statements made under the belief of imminent death. See
Iowa R. Evid. 5.804(b)(2). Second, he assails counsel for not seeking to exclude
testimony from a jailhouse informant as inherently unreliable, or alternatively, for
6
not requesting an instruction to warn the jury about the unscrupulous motivation of
informant witnesses. On both claims, Wanatee bears the burden of showing his
attorney failed to perform an essential duty and prejudice resulting from counsel’s
failure. See State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). If he cannot show
both prongs by a preponderance of the evidence, we will affirm. See id. We
preserve ineffective-assistance claims for postconviction-relief proceedings if the
record is inadequate to evaluate counsel’s performance, but we will address them
on direct appeal when the record allows. See State v. Neitzel, 801 N.W.2d 612,
624 (Iowa Ct. App. 2011).
1. Hearsay Exception for Dying Declarations
At issue are two statements by Mace identifying Wanatee as his attacker.
The State offered the first statement through the testimony of Abbe and Edwards.
Both witnesses recalled a bleeding Mace came to the door of Abbe’s house and
volunteered: “I think Eli stabbed me in the lung.” Stahle shared the second
statement. While she raced Mace to the hospital, Stahle asked, “who did this to
you?” and he replied, “Eli.”
During Abbe’s testimony, the prosecutor asked: “Did Vernon Mace say
anything when he came through the front door covered in blood?” Defense
counsel objected on hearsay grounds. The prosecutor agreed the answer would
be hearsay, but asserted it was admissible under several exceptions: “Present
sense impression, excited utterance, then-existing physical condition, and also I
believe it would qualify as a statement impending death.” The court overruled the
objection and allowed Abbe to answer.
7
The defense did not renew the objection when the prosecutor elicited the
same hearsay statement from Edwards. The defense also lodged a hearsay
objection when the prosecutor asked Stahle what she said to Mace while driving
to the hospital. Although the court sustained the objection to the prosecutor’s
question, the defense did not object again when the prosecutor asked about
Mace’s response identifying “Eli.” Because Wanatee is critical of these anemic
efforts by his trial attorney to block the hearsay statements, Wanatee raises the
issue as ineffective assistance of counsel on appeal. He contends counsel should
have objected to statements by Mace identifying Wanatee as his assailant.
Wanatee insists the statements were not “true dying declarations and were
inadmissible hearsay.”
Hearsay—defined as an out-of-court statement “offered in evidence to
prove the truth of the matter asserted”—is inadmissible unless it falls under an
exception allowed by the constitution, state law, or another rule of evidence. Iowa
R. Evid. 5.801(c), 5.802. One exception to the rule against hearsay is a dying
declaration, defined as “[a] statement that the declarant, while believing the
declarant’s death to be imminent, made about its cause or circumstances.” Id. r.
5.804(b)(2).
For a declaration to be admissible under this exception, “it must be clear
from the circumstances that the declarant’s ‘sense of impending death was so
certain that he was without hope or expectation of recovery.’” State v. Harper, 770
N.W.2d 316, 320 (Iowa 2009) (quoting Bratton v. Bond, 408 N.W.2d 39, 45 (Iowa
1987)). A declarant’s realization he is in danger of death is insufficient—rather,
“[t]he words must be spoken under solemn conviction of impending dissolution.”
8
State v. Brooks, 186 N.W. 46, 50 (Iowa 1922). But it is not “necessary to prove,
by expressions of the deceased, that he was apprehensive of immediate death,
nor that he was inarticulo mortis.”2 State v. Nash, 7 Iowa 347, 349 (1858).
Wanatee contends his counsel should have argued Mace’s solicitation of a
ride to the hospital from Stahle demonstrated Mace was not without hope or
expectation of recovery. Wanatee argues Mace signaled his belief “treatment was
still an option.” The State counters that Mace’s request for a ride to the emergency
room did not mean he expected to survive—and “the sheer amount of blood, the
locations of his stab wounds, and his difficulty breathing all supported a clear
inference from his condition: Mace knew he would die without medical attention,
and knew that he could not expect to live until he received it.”
We agree with the State’s position. Wanatee’s desire for emergency
assistance did not defeat his conscious awareness of impending death from his
many stab wounds—one of which he believed to have pierced his lung. A similar
fact pattern emerged in State v. Drosos. 114 N.W.2d 526 (Iowa 1962), superseded
by statute on other grounds as recognized in State v. Lyman, 776 N.W.2d 865
(Iowa 2010). There, the victim identified Drosos as the person who stabbed him
in the stomach and then pleaded, “For God’s sake, hurry up and get a doctor’” as
he received assurance an ambulance was on the way. Id. at 532. Our supreme
court affirmed the trial court’s denial of the defense objection, contending the State
failed to lay proper foundation to show statement was dying declaration. Id.
2
The Latin phrase “in articulo mortis” translates to “the article of death” or “at the point of
death.” In Articulo Mortis, Black’s Law Dictionary (7th ed. 1999).
9
Similarly, courts from other jurisdictions have held victim statements
qualified as dying declarations even when the victims called for an ambulance.
See, e.g., People v. Siler, 429 N.W.2d 865, 868 (Mich. Ct. App. 1988) (holding 911
recording reflected a dying declaration when victim called emergency),
superseded by rule on other grounds as stated in People v. Orr, 739 N.W.2d 385
(Mich. Ct. App. 2007); State v. Hamric, 151 S.E.2d 252, 265 (W. Va. 1966)
(upholding admission of decedent’s description of being shot in his own yard to the
driver of the ambulance he called); State v. Beauchamp, 781 N.W.2d 254, 258
(Wis. Ct. App. 2010) (finding no abuse of discretion in admitting victim’s assertions
about who shot him made during ambulance ride where victim expressed concern
when ambulance passed one hospital on its way to another).
Mace told Abbe to call an ambulance because Mace believed he received
a stab wound to a vital organ. But rather than wait for the ambulance to arrive,
Mace asked Stahle, the nearest driver, for a ride to the hospital. When Stahle
brought Mace to the ambulance bay, she frantically told hospital staff: “I think I
have a dead guy in my car.” See Harper, 770 N.W.2d at 320 (noting witnesses
thought victim was dead upon her arrival at the hospital).
Considering all these circumstances, we conclude Mace believed his death
was impending when he identified Wanatee as his attacker. Because Mace’s
hearsay statements were admissible under the exception at rule 5.804(b)(2), trial
counsel did not breach an essential duty in not urging more objections. See State
v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (holding counsel has no duty to raise
meritless objections).
10
2. Jailhouse Informant Testimony
Wanatee next criticizes his trial attorney for not advocating to exclude
Bergin’s testimony. Bergin claimed Wanatee confessed to the stabbing while they
were both incarcerated in the Woodbury County jail. Wanatee characterizes
Bergin as a “jailhouse snitch” and contends, at minimum, counsel should have
sought a cautionary instruction to alert jurors to the “less-than-altruistic” motives of
such witnesses.
Bergin did not testify at the first trial ending in a hung jury. But the
prosecutor called Bergin for the retrial and provided the defense with a copy of his
plea agreement with the State. Defense counsel objected to a portion of Bergin’s
expected testimony about Wanatee’s alleged admissions but did not seek to
exclude his testimony in full. After an offer of proof, the district court overruled the
defense objection to Bergin’s testimony.
Bergin told the jury Wanatee mentioned he had an “altercation” and “ended
up stabbing a guy.” On cross-examination, Bergin acknowledged his two prior
felony convictions. Defense counsel also highlighted Bergin’s persistence—he
sent two letters in attempt to notify jail staff about the incriminating statements
allegedly made by Wanatee. Bergin also admitted he had access to television and
newspapers at the jail. On redirect, Bergin said he received no benefit from the
State for supplying information about Wanatee.
On appeal, Wanatee urges: “Trial counsel provided ineffective assistance
when he failed to challenge the admission of testimony by Bergin—a jailhouse
informant—or request other remedial measures.” Citing several law review articles
and academic studies, Wanatee claims “[t]he testimony of jailhouse informants has
11
been labeled ‘inherently unreliable’ and a contributing factor in wrongful
convictions.”
Wanatee asked our supreme court to retain this case to address his
contention Iowa “should adopt measures to address the inherent unreliability of
jailhouse informant testimony, including exclusion, disclosure, reliability hearings,
or the use of cautionary instructions.” Because the supreme court transferred the
case to us, we must apply existing law to counsel’s performance. Any expansion
of the duties placed on defense counsel when faced with the testimony of jailhouse
informants rests with our supreme court. See generally Rosauer Corp. v. Sapp
Dev., L.L.C., 856 N.W.2d 906, 907 (Iowa 2014) (finding it appropriate for court of
appeals to defer to supreme court on potential expansion of judicially created
doctrine).
Our supreme court recently addressed the “problematic” use of jailhouse
informants “to obtain information from defendants represented by counsel.” State
v. Marshall, 882 N.W.2d 68, 81 (Iowa 2016). But even the Marshall majority
acknowledged “the State is not deprived of evidence because the defendant,
acting on his own, has exercised poor judgment.” Id. at 83. Counsel “need not be
a ‘crystal gazer’ who can predict future changes in established rules of law in order
to provide effective assistance to a criminal defendant.” State v. Effler, 769 N.W.2d
880, 889 (Iowa 2009) (quoting State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa
1982)). Under existing case law, we find no breach of duty in trial counsel’s
handling of Bergin’s testimony.
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3. No Cumulative Error
On top of his two defined claims of ineffective assistance, Wanatee alleges
a cumulative impact from counsel’s errors. See State v. Clay, 824 N.W.2d 488,
500 (Iowa 2012). Because we detect no breach of duty by trial counsel, Wanatee’s
cumulative error argument fails. See Schrier v. State, 347 N.W.2d 657, 668 (Iowa
1984) (reviewing effect of various claims “both individually and cumulatively” and
finding the appellant did not establish he was denied a fair trial).
B. Admissibility “Defensive Wound” Testimony and Diagram
Wanatee next argues the district court abused its discretion in allowing an
expert witness to use the term “defensive wound” and in admitting a diagram from
the Handbook of Forensic Pathology showing “various ways in which ‘defensive
wounds’ may be received.” Dr. Carroll, who performed the autopsy, testified for
the State. The State also called State Medical Examiner Dennis Klein as an expert
witness. Dr. Klein did not examine Mace’s body, but reviewed the autopsy report
and photographs. Dr. Klein agreed the cause of death was multiple stab wounds.
But unlike Dr. Carroll, Dr. Klein characterized the lacerations to Mace’s left forearm
as “defensive wounds.”
Before the first trial, Wanatee moved in limine to prevent Dr. Klein from
referring to any of Mace’s injuries as “defensive wounds.” After reviewing Tyler,
867 N.W.2d at 166, the district court found Dr. Klein was qualified to give an expert
opinion under Iowa Rule of Evidence 5.702 and “defensive wound” was a “term of
art” in forensic pathology that did not go to the ultimate issue the jury had to decide.
See Iowa R. Evid. 5.704. The district court reaffirmed its original limine ruling
before the second trial.
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When Dr. Carroll testified at the retrial, defense counsel broached the
concept of “defensive wounds” on cross-examination. Dr. Carroll defined the term
as “wounds sustained on the hands or upper arms presumably in the defense of
someone attacking them with a sharp instrument such as a knife.” Dr. Carroll
explained he had not characterized any of Mace’s nine injuries as “defensive
wounds” because he believed use of the terminology would be “speculative”
without video documentation of the altercation.
On redirect, the prosecutor introduced the following page from a forensic
pathology textbook depicting “defensive wounds.”
14
Defense counsel objected on relevance and foundation grounds.3 The
court overruled the objection but did not allow the prosecutor to impeach Dr. Carroll
with the depiction.
The State later called Dr. Klein as an expert witness. He explained
“defensive wound” was “a term used by forensic pathologists when a wound is
found usually on the upper extremities, so on the forearm or the hand.” When
asked how victims usually sustained defensive wounds, Dr. Klein responded:
Usually defensive wounds are when a victim of a sharp force injury,
when they are trying to protect usually their head or their body from
the attack in a gesture. This is usually an instinctive type of behavior
that people would have. And as a result, the person is going to
receive an injury to that part of the body with the intent that they’re
going to protect the more vital areas such as their face and chest.
Dr. Klein then characterized the two punctures to Mace’s forearm as defensive-
type wounds. On cross, Dr. Klein clarified he was not offering an opinion on who
was the aggressor in the attack.
On appeal, Wanatee argues the court should have excluded Dr. Klein’s
testimony Mace received two “defensive wounds” to his forearm as irrelevant,
unfairly prejudicial, and not helpful as an expert opinion under Iowa Rules of
Evidence 5.401,4 5.403,5 and 5.702.6 Wanatee contends the terminology “has no
3
On appeal, Wanatee contends counsel was ineffective in not also objecting under Iowa
Rule of Evidence 5.703. As with the other claims of ineffective assistance of counsel, we
find no breach of duty because the State did not offer the diagram to form a basis for
Dr. Carroll’s testimony.
4
“Evidence is relevant if: a. It has any tendency to make a fact more or less probable than
it would be without the evidence; and b. The fact is of consequence in determining the
action.” Iowa R. Evid. 5.401.
5
“The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Iowa R. Evid. 5.403.
6
Rule 5.702 provides:
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relevance” where justification is the noticed defense. He worries the words were
likely to confuse the jurors. And he argues the admission of the textbook diagram
would compound that confusion. He asserts the diagram was prejudicial because
it suggested how Mace may have sustained the injuries to his forearm “without any
basis in fact.”
In the State’s view, Wanatee “opened the door” to evidence about
“defensive wounds” by asking Dr. Carroll about his classification of the injuries.
The State contends it had a right to respond to Dr. Carroll’s cross-examination
testimony that he declined to label Mace’s arm wounds as defensive.
“A party opens the door by offering admissible evidence that in turn triggers
admissibility of responsive evidence by an opposing party.” State v. Huser, 894
N.W.2d 472, 507 (Iowa 2017). But here, the State did not intend to wait for the
defense to open the door before introducing Dr. Klein’s testimony. By the time of
Wanatee’s retrial, the district court had denied the defense motion to limit
Dr. Klein’s discussion of “defensive wounds.” Defense counsel tried to take the
sting out of the expected testimony by eliciting evidence from Dr. Carroll that he
did not use that classification in his autopsy report. We do not find the cross-
examination of Dr. Carroll waived the defense objection to this evidence.
That point settled, we turn to Wanatee’s opposition to Dr. Klein’s description
of “defensive wounds” without direct knowledge of how the fight unfolded. This
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if
the expert's scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue.
16
same issue arose in a Tennessee postconviction case. The Shelby County
medical examiner testified the victim suffered “some defensive wounds” and
explained “defensive wound” was “a term of art that was developed in forensics to
indicate the injuries occurred when a person was trying to protect themselves.”
Jones v. State, No. W2007-1086-CCA-R3-PC, 2008 WL 4489668, at *6 (Tenn.
Crim. App. Oct. 6, 2008). The medical examiner told the court he was reluctant to
use the term in front of a jury because, as a pathologist, “he was not present when
the wound was inflicted and could not definitively say how the wound occurred.”
Id.; accord People v. Paschall, 456 N.Y.S.2d 828, 830 (App. Div. 1982) (holding
question whether incision on victim’s arm occurred while “warding off a blow or by
some other means” was not a fact uniquely within knowledge of doctor performing
autopsy and by stating wound was defensive, expert usurped jury’s function); but
see Vergara-Martinez v. State, No. 65853, 2016 WL 1375648, at *2 (Nev. Apr. 5,
2016) (allowing expert testimony describing cuts to the victim’s wrist as
“defensive wounds” despite doctor’s absence from scene of attack because
opinion was based on his observations as treating physician in emergency room).
Without reaching the underlying evidentiary question of whether a
pathologist may properly express an opinion on the “defensive” nature of a wound
without witnessing the altercation, we conclude Wanatee cannot show he was
prejudiced by the disputed testimony from Dr. Klein or the textbook diagram of
“defensive wounds.” See Jones, 2008 WL 4489668, at *10 (finding Jones failed
to prove how medical examiner’s use of the contested term prejudiced him).
When presented with nonconstitutional error, as we are here, we ask:
“[D]oes it sufficiently appear the rights of the complaining party have been
17
injuriously affected by the error [so] that he has suffered a miscarriage of justice?”
State v. Trudo, 253 N.W.2d 101, 107 (Iowa 1977). Error may only be predicated
on a ruling admitting or excluding evidence when a substantial right of the party is
affected. Iowa R. Evid. 5.103(a).
Wanatee secured Dr. Carroll’s testimony that it would be “speculative” to
classify any of Mace’s nine wounds as “defensive.” Even Dr. Klein acknowledged
he had no opinion regarding the identity of the aggressor in the attack. And
Wanatee did not tell investigators Mace was the aggressor. Rather, Wanatee
denied fighting with Mace. Given the State’s evidence that (1) Mace received nine
stab wounds, several of which caused major damage to his head and torso, and
(2) Wanatee suffered no wounds at all, Dr. Klein’s use of the term “defensive
wounds” for two injuries to Mace’s arm did not substantially affect Wanatee’s
rights. Even if the court improperly allowed the references to “defensive wounds,”
the admission was harmless error.
AFFIRMED.