IN THE COURT OF APPEALS OF IOWA
No. 15-1800
Filed March 8, 2017
TRACEY ANNE RICHTER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Sac County, Michael J. Moon,
Judge.
Appeal from the denial of application for postconviction relief. AFFIRMED.
Julia A. Ofenbakh of Ofenbakh Law Firm, PLLC, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee State.
Heard by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.
In December 2001, Tracey Richter shot and killed Dustin Wehde in her
home. Richter stated she shot Wehde in self-defense during a home invasion.
Richter was not charged at that time. Ten years later, a different county attorney,
upon learning a new piece of information, charged Richter with murder in the first
degree. Richter claimed the homicide was justified, but she was convicted as
charged. This court affirmed her conviction on direct appeal. See State v.
Richter, No. 11-2124, 2013 WL 118357, at *3 (Iowa Ct. App. Jan. 9, 2013). The
facts and circumstances surrounding the murder are set forth in our prior opinion
and need not be repeated herein. See id. at *1–3. This appeal arises out of the
district court’s denial of Richter’s application for postconviction relief. We will set
forth additional facts as necessary to resolve the claims in this appeal.
I.
Richter contends her trial counsel provided constitutionally deficient
representation in several respects, all in violation of her Sixth Amendment right to
the effective assistance of defense counsel. To establish her claim, Richter must
prove (1) her trial counsel failed to perform an essential duty and (2) this failure
resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
The first element requires proof counsel’s representation fell below an objective
standard of reasonableness. See id. at 688. We indulge a strong presumption of
counsel’s competence. See id. at 689. To show prejudice, the movant “must
show 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.
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at 694. Failure to prove either element is fatal to the appellant’s claim. See King
v. State, 797 N.W.2d 565, 571 (Iowa 2011) (“The applicant must prove both
elements by a preponderance of the evidence.”). Thus, “[w]e can resolve
ineffective-assistance-of-counsel claims under either prong” without having to
resolve the other. State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015); see also
Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015) (“If we conclude a claimant
has failed to establish either of these elements, we need not address the
remaining element.”).
Generally, we review de novo claims of ineffective assistance of counsel.
See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Richter argues we should
apply a more stringent standard of review because the district court, in denying
Richter’s application for postconviction relief, adopted the State’s proposed
findings of fact and conclusions of law almost verbatim. Proposed findings of fact
and conclusions of law can be of great assistance to the district court. See
Kroblin v. RDR Motels, Inc., 347 N.W.2d 430, 435 (Iowa 1984). However,
verbatim adoption of the prevailing party’s proposed findings of fact and
conclusions of law is frowned upon because “the decision on review reflects the
findings of the prevailing litigant rather than the court’s own scrutiny of the
evidence and articulation of controlling legal principles.” Rubes v. Mega Life &
Health Ins. Co., 642 N.W.2d 263, 266 (Iowa 2002). In similar circumstances, we
have declined to adopt a different standard of review. See Quality Refrigerated
Servs., Inc. v. City of Spencer, 586 N.W.2d 202, 205 (Iowa 1998). We again
decline the invitation to adopt a different standard of review. “We have
recognized, however, where a district court adopts a prevailing counsel’s
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proposed findings of fact and conclusions of law verbatim, we must scrutinize the
record more carefully when conducting our appellate review.” NevadaCare, Inc.
v. Dep’t of Human Servs., 783 N.W.2d 459, 465 (Iowa 2010).
A.
Richter’s first claim of error relates to the testimony of Rodney Englert, the
State’s crime scene reconstruction expert. Richter shot Wehde nine times using
two separate firearms. Englert reconstructed the scene and opined on the
relative positions of Richter and Wehde at the time of the shooting based on the
location of the entry and exit wounds and on the bullet-trajectory evidence.
According to Richter, one exhibit Englert discussed used colored dots placed on
a model to identify Wehde’s entry and exit wounds. One of the dots was placed
on the wrong shoulder. The misplaced dot in the exhibit shows a bullet exited
Wehde’s right shoulder when, in fact, the bullet exited his left shoulder. Richter
argues this misplaced blue dot undermined Englert’s conclusion and caused him
to adopt an unfounded opinion, an opinion contrary to Richter’s self-defense
theory. Although Richter’s defense team recognized the exhibit contained an
error, they did not cross-examine Englert on this point and did not mention the
mistake until closing argument. Richter argues the failure to cross-examine
Englert on the exhibit constituted ineffective assistance of counsel.
Richter has not established a claim of ineffective assistance. First, while
Richter is correct the exhibit showed an exit wound on the wrong shoulder, the
exhibit was not introduced into evidence by the State. The reconstruction photo
with the misplaced exit wound was actually offered into evidence by Richter’s
counsel. See State v. Skaggs, No. 00-1904, 2002 WL 31015241, at *3 (Iowa Ct.
5
App. Sept. 11, 2002) (holding defendant could not show evidence prejudiced
defendant where defendant introduced said evidence). Second, the exhibit did
not alter Englert’s testimony. Englert’s testimony was based on his review of the
entry and exit wounds as shown on the autopsy photographs. Englert correctly
testified the bullet exited the left shoulder, which is contrary to the exhibit about
which Richter complains. Third, counsel could not have breached a duty in
failing to cross-examine Englert on an exhibit that was not yet in evidence and
upon which Englert’s testimony did not rely. Fourth, there is no showing the
alleged failure of counsel resulted in prejudice. Contrary to Richter’s assertion,
both Englert and Dr. Thomas Carroll, the medical examiner, testified the bullet
exited through the left shoulder. The medical examiner’s report introduced into
evidence by the State shows the correct exit wound. The jury saw photograph of
Wehde’s body with the exit wound on his left shoulder.
In a permutation of the same argument, Richter argues her counsel was
ineffective in failing to object to Englert’s testimony on the ground the testimony
was false and because the State’s use of false testimony constituted
prosecutorial misconduct. It is well established the State may not knowingly use
perjured or false evidence. See Swartz v. State, 506 N.W.2d 792, 795–99 (Iowa
Ct. App. 1993) (collecting cases). Such “knowing use of perjured testimony . . .
must be set aside if there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.” Id. at 797 (quoting United States v.
Agurs, 427 U.S. 97, 103 (1976)). Richter’s misconduct claim fails for similar
reasons as her pure ineffective-assistance claim. As noted above, the factual
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predicate of Richter’s argument is incorrect. Englert did not provide false
testimony.
B.
Richter contends her trial counsel was a necessary witness and should
have withdrawn from the representation. One of the critical pieces of evidence in
the prosecution’s case was Richter’s knowledge of the contents of a pink
notebook found in Wehde’s vehicle. As explained in our prior opinion:
Higgins [Richter’s friend] further testified that Richter told her
that the police found an older model computer and a pink notebook
in the car left in her driveway the night of the purported home
invasion. Richter described to Higgins details of the contents of
that pink notebook, which included contact information for her first
husband, Dr. John Pitman, with whom Richter was involved in a
custody dispute. Richter told Higgins the notebook would prove her
ex-husband was involved.
There was evidence that the contents of the notebook had
been kept from the public by law enforcement, and Richter should
not have known what was written in it. Higgins recounted an
incident in 2004 when Richter pointed at Higgins face and told her
“to forget about the pink notebook.” The State argued that the
contents of the notebook, referring to Richter's ex-husband and his
detailed plans to have Richter and Bert killed, came from Richter
herself in an attempt to win the custody dispute over Bert.
Richter, 2013 WL 118357, at *2. Richter’s lead defense counsel had represented
Richter in a wrongful death action brought by Wehde’s family after Wehde’s
death but long before the filing of criminal charges. During the course of the prior
representation, Richter’s counsel learned about the existence of the pink
notebook during civil discovery. According to Richter, her statements to Higgins
regarding the pink notebook were based on information she learned from her
counsel during the civil suit. Richter contends her criminal defense counsel was
thus a necessary witness to establish Richter could have learned of the contents
7
of the pink notebook in some way other than being involved in staging the home
invasion. She contends defense counsel was ineffective in failing to withdraw
and testify on her behalf.
Iowa Rule of Professional Conduct 32:3.7 provides guidance on whether
and when an attorney should withdraw from continued representation of a client
where the attorney is likely to be a necessary witness:
(a) A lawyer shall not act as advocate at a trial in which the lawyer
is likely to be a necessary witness unless:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal
services rendered in the case; or
(3) Disqualification of the lawyer would work substantial
hardship on the client.
The guidelines provided by this rule are “relevant, but not alone dispositive” in
determining if a conflict exists. State v. McKinley, 860 N.W.2d 874, 881 (Iowa
2015).
Richter’s trial counsel had no duty to withdraw under the circumstances.
An attorney is a necessary witness “only if ‘there are things to which he will be
the only one available to testify.’” United States v. Melton, 948 F. Supp. 2d 998,
1006 (N.D. Iowa 2013) (citation omitted). In this case, trial counsel was not the
only person available to testify regarding Richter’s knowledge of the notebook
allegedly gained through civil discovery. Richter’s mother testified Richter
learned of the notebook during the wrongful death action. Trial counsel also was
not a necessary witness because his testimony was immaterial to the relevant
issue. The pink notebook was relevant to the prosecution’s case because
Richter expressed knowledge of the contents of the pink notebook, which were
never disclosed to the public. Richter’s trial counsel testified he learned of the
8
existence of the notebook during discovery but the contents of the notebook were
never revealed to him. Richter’s defense counsel’s proposed testimony would
not have contradicted the prosecution’s case or bolstered Richter’s factual claim.
We also conclude trial counsel had no duty to withdraw because
withdrawal would have worked a substantial hardship on Richter. The defense
team pursued a strategy of getting to trial as quickly as possible because they
believed the prosecutor seemed unprepared for trial. The lead defense counsel
had extensive knowledge of the case because of his work representing Richter
during the wrongful death suit. See State v. Vanover, 559 N.W.2d 618, 634
(Iowa 1997) (stating “a long-standing professional relationship could conceivably
create a situation where an attorney has an extraordinary and irreplaceable
familiarity with the affairs of his client”). The hardship issue was indirectly
addressed during Richter’s criminal trial when the potential conflict was
disclosed. The issue was resolved at that time to Richter’s satisfaction.
There is also no reasonable probability counsel’s testimony would have
changed the result at trial. His testimony would have been cumulative to
Richter’s mother’s testimony. See Taylor v. State, 352 N.W.2d 683, 687 (Iowa
1984) (holding “the withholding of cumulative testimony will not ordinarily satisfy
the prejudice component of a claim of ineffectiveness of counsel”). Further, as
noted above, trial counsel’s testimony would not have contradicted Higgins’
testimony or the State’s theory of the case. Trial counsel was unequivocal in
stating he never learned the contents of the pink notebook during the civil
proceeding. He thus could not have served as the source of Richter’s
9
knowledge. Finally, there was overwhelming evidence of Richter’s guilt. See
Richter, 2013 WL 118357, at *3–4 (discussing evidence against Richter).
C.
Richter contends her trial counsel was ineffective because the district
court was aware of trial counsel’s purported conflict of interest. Richter does not
meaningfully develop this claim. She cites two cases with no additional
argument. See Iowa R. App. P. 6.903(2)(g)(3). One case is factually
distinguishable as it concerns the court’s duties when one attorney represents
multiple defendants. See Cuyler v. Sullivan, 446 U.S. 335, 346–47 (1980). The
other case requires a court to inquire further to satisfy due process if it suspects
a conflict of interest. See Wood v. Georgia, 450 U.S. 261, 272–74 (1981). Here,
we have a single defendant and a court that knew (not suspected) of the alleged
conflict and satisfied itself of any due process concern after holding a hearing on
the record. Regardless, this claim was not resolved by the district court and thus
has not been preserved for appellate review. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002).
III.
Richter contends the prosecutor engaged in misconduct in violation of
Richter’s right to due process. “A prosecutor ‘is not an advocate in the ordinary
meaning of the term.’” State v. Graves, 668 N.W.2d 860, 870 (Iowa 2003)
(quoting 63C Am. Jur. 2d Prosecuting Attorneys § 1 (1997)). The prosecutor
owes a duty to do justice for the accusers and the accused. See id. “The
prosecutor’s duty to the accused is to ‘assure the defendant a fair trial’ by
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complying with ‘the requirements of due process throughout the trial.’” Id.
(quoting DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002)).
To establish a due process violation, the defendant must establish
prosecutorial misconduct or prosecutorial error. See id. at 869. “Prosecutorial
misconduct includes those statements where a prosecutor intentionally violates a
clear and unambiguous obligation or standard imposed by law, applicable rule or
professional conduct, as well as those situations where a prosecutor recklessly
disregards a duty to comply with an obligation or standard.” State v. Schlitter,
881 N.W.2d 380, 394 (Iowa 2016) (quotations omitted). Prosecutorial error, in
contrast, occurs “where the prosecutor exercises poor judgment and where the
attorney has made a mistake based on excusable human error, despite the
attorney’s use of reasonable care.” Id. (quotations omitted). “A prosecutor who
has committed error should not be described as committing misconduct.” Id.
“Evidence of the prosecutor’s bad faith is not necessary, as a trial can be unfair
to the defendant even when the prosecutor has acted in good faith.” Graves, 668
N.W.2d at 869.
Whether the claim is one for prosecutorial misconduct or prosecutorial
error, the defendant must establish the misconduct or error “resulted in prejudice
to such an extent that the defendant was denied a fair trial.” Id.; see also
Schlitter, 881 N.W.2d at 394 (concluding the Graves standard applies whether
the claim is prosecutorial misconduct or prosecutorial error). The prosecutor can
deny the accused a fair trial in a variety of ways. See Schlitter, 881 N.W.2d at
393 (identifying a “range of trial conduct” constituting prosecutorial misconduct).
Whatever the conduct, “it is the prejudice resulting from misconduct, not the
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misconduct itself, that entitles a defendant to a new trial.” State v. Piper, 663
N.W.2d 894, 913 (Iowa 2003), overruled on other grounds by State v. Hanes,
790 N.W.2d 545 (Iowa 2010). Because Richter alleges a violation of her due
process rights, our review is de novo. See In re Det. of McCurry, No. 11-0297,
2012 WL 664506, at *2 (Iowa Ct. App. Feb. 29, 2012).
A.
Richter first claims her right to a fair trial was infringed when the
prosecutor failed to correct Englert’s testimony as to the misplaced blue dot. We
disagree. We reiterate Englert’s testimony was correct as to the placement of
the exit wound, and we reiterate the error appeared only in an exhibit offered into
evidence by the defense. See Graves, 668 N.W.2d at 869; see also Martin v.
State, No. 12-2240, 2014 WL 69542, at *9 (Iowa Ct. App. Jan. 9, 2014)
(examining defendant’s role in eliciting prosecutor’s allegedly improper
argument). To the extent any error could be attributed to the prosecutor, there
was substantial evidence in the record to contradict any error such that the jury
was not misled. See Graves, 668 N.W.2d at 869; Fisher v. State, 337 N.W.2d
212, 215 (Iowa 1983). Englert testified to the correct placement of the dot, and
the mistake was eventually pointed out during closing argument. See State v.
Krogmann, 804 N.W.2d 518, 526 (Iowa 2011) (“Prejudice can, but usually does
not, result from isolated prosecutorial misconduct.”).
B.
Richter claims the prosecutor failed to produce evidence that could have
been used to impeach Englert. To establish this claim, Richter must prove by a
preponderance of the evidence (1) the prosecution suppressed evidence; (2) the
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evidence was favorable to the defendant; and (3) the evidence was material to
the issue of guilt. See DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011).
Impeachment evidence is considered favorable to the defendant. Id. at 105.
Richter points to two specific pieces of evidence: a civil lawsuit in which
Englert sued several colleagues for defamation and the testimony in a criminal
trial in which Englert testified as an expert. The criminal trial resulted in a
conviction, but was subsequently vacated when a third party confessed;
however, the third party then recanted, and the initial defendant was retried. A
cursory search by the prosecutor’s office discovered the civil lawsuit; Richter
contends that discovery should have prompted additional investigation, which
could have uncovered the criminal case in which, Richter contends, Englert
provided false testimony leading to a wrongful conviction.
A prosecutor “has a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case, including the police.” Kyles
v. Whitley, 514 U.S. 419, 437 (1995). This is because “the prosecution, which
alone can know what is undisclosed, must be assigned the consequent
responsibility to gauge the likely net effect of all such evidence and make
disclosure when the point of ‘reasonable probability’ is reached.” Id. Here, the
information was publicly available. Richter seems to contend the prosecutor has
the affirmative obligation to access publicly available information that might be
related to any persons the State intends to call as witnesses and then provide the
information to the defendant. We reject her attempt to impose this duty upon the
prosecutor. Publicly available information, by definition, is not suppressed. See
United States v. Pendleton, No. 15-2865, 2016 WL 4254946, at *2 (8th Cir.
13
2016); Johnson v. United States, 860 F. Supp. 2d 663, 852–54 (N.D. Iowa 2012);
State v. Clark, 814 N.W.2d 551, 563 (Iowa 2012); Parker v. State, No. 12-1972,
2014 WL 1746563, at *5 (Iowa Ct. App. Apr. 30, 2014). Richter’s claim fails.
Nor is the evidence material to the issue of guilt. “[E]vidence is material
when ‘there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.’” DeSimone,
803 N.W.2d at 105 (citation omitted). Inconsistencies “used to impeach a
witness must involve ‘substantive evidence’ of the defendant’s guilt or
innocence.” Aguilera v. State, 807 N.W.2d 249, 255 (Iowa 2011). Englert filed a
defamation lawsuit he ultimately dismissed. The defamation suit has no
relevance to Englert’s credibility. Englert’s expert testimony at another trial
resulted in a conviction that has now been called into question. It is not at all
likely the evidence of Englert’s testimony in another criminal case whose result—
although in doubt—is not in Englert’s purview would have been admitted to show
his alleged dishonesty. See Iowa R. Evid. 5.608; State v. Wolfe, 316 N.W.2d
420, 422 (Iowa Ct. App. 1981) (“[M]atters upon which impeachment is attempted
must be relevant to some issue in the case.”). Even if it could be shown,
somehow, Englert offered untruthful testimony at the prior trial, one specific
incident of misconduct is insufficient to prove “character” for truthfulness or
untruthfulness. See State v. Greene, 592 N.W.2d 24, 28 (Iowa 1999); see also
Iowa R. Evid. 5.608. There is no reasonable probability this evidence would
have changed the result of the proceeding.
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IV.
Richter contends her appellate counsel also provided ineffective
assistance. Claims of ineffective assistance of counsel are reviewed de novo.
Straw, 709 N.W.2d at 133. Where such claims involve appellate counsel, they
are judged using the same legal standard involving ineffective-assistance claims
involving trial counsel. Ledezma, 626 N.W.2d at 141. The defendant must show
counsel “failed to raise an issue that reasonably competent counsel would have
raised.” Miller v. State, No. 12-0826, 2014 WL 1746572, at *1 (Iowa Ct. App.
Apr. 30, 2014). To establish prejudice, Richter must show she would have
prevailed on direct appeal but for appellate counsel’s deficient performance. See
Ledezma, 626 N.W.2d at 141.
A.
Richter alleges her appellate counsel was ineffective for failing to raise a
hearsay objection to the pink notebook. This is not an issue reasonably
competent appellate counsel would have raised. The pink notebook contained
biographical information about Richter’s first husband and assertions he had
hired the notebook’s author, Wehde, to kill Richter. The State offered the
notebook into evidence to prove Richter had knowledge of the contents of the
notebook—without regard to whether the contents were true or false—to show
she had worked with Wehde to stage the home invasion. The notebook was not
admitted to prove the truth of those statements and thus was not hearsay. See
Iowa R. Evid. 5.801(c); see also State v. Hartman, No. 14-0727, 2015 WL
4642276, at *7 n.2 (Iowa Ct. App. Aug. 5, 2015); Schwebke v. State, No. 07-
1027, 2009 WL 605823, at *13 (Iowa Ct. App. Mar. 11, 2009). In fact, it was the
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State’s theory that the murder-for-hire assertions were false; if anything, the
State hoped to show the falsity of the statements contained in the notebook.
B.
Richter alleges her appellate counsel was ineffective for failing to raise the
issue of a crime scene report being redacted improperly. Inadmissible hearsay in
the report was redacted. Iowa Code section 691.2 provides for admission of
hearsay within government reports: “Any report . . . of the criminalistics
laboratory shall be received in evidence . . . in the same manner and with the
same force and effect as if the employee or technician of the criminalistics
laboratory who accomplished the requested analysis, comparison, or
identification had testified in person.” Iowa Code § 691.2; see also State v.
Casady, 597 N.W.2d 801, 807 (Iowa 1999). But the statute does not provide for
double hearsay, triple hearsay, or just rank old hearsay—such as the statements
at issue here—to be admitted. See Iowa R. Evid. 5.805; State v. Puffinbarger,
540 N.W.2d 452, 455 (Iowa Ct. App. 1995) (“Where a hearsay statement
includes a further hearsay statement, both statements must conform to a hearsay
exception for the statement to be admissible.”). This claim is not one reasonably
competent counsel would have brought.
C.
Richter alleges her appellate counsel was ineffective for failing to argue
the trial court erred in excluding evidence regarding the wrongful death suit. That
suit was dismissed with prejudice, which Richter claims is persuasive insofar as
Wehde’s estate failed to establish wrongful death under a lower burden of proof.
The result of the civil proceeding has no relevance here. Res judicata does not
16
apply where the cases do not involve the same parties or parties in privity, the
same cause of action, and the same issues. See Bennett v. MC No. 619, Inc.,
586 N.W.2d 512, 516 (Iowa 1998). The State had no control over the
prosecution of the civil suit. See Harris v. Jones, 471 N.W.2d 818, 820 (Iowa
1991). That a different party in a different case failed to meet a different
evidentiary burden in establishing different elements has no bearing on this
criminal case. Richter also raises several administrative reasons why the district
court should have allowed evidence regarding the civil suit. We find the
arguments unpersuasive. Appellate counsel was not ineffective in failing to
assert a claim without merit. See State v. Halverson, 857 N.W.2d 632, 635 (Iowa
2015) (“Counsel, of course, does not provide ineffective assistance if the
underlying claim is meritless.”).
D.
Richter claims her appellate counsel was ineffective for failing to argue
trial counsel was ineffective in failing to object successfully to the admission of a
statement by Richter’s son, Bert Pitman. This argument is also without merit.
Trial counsel did object to the testimony on hearsay grounds, but the district court
overruled the objection. Appellate counsel would not have succeeded in arguing
trial counsel was constitutionally ineffective for not objecting more strongly to the
challenged statement.
“The right to effective assistance also applies to counsel on appeal. As
with trial counsel, an attorney is allowed to determine the strategy to use and is
not required to raise every colorable issue at the risk of burying good arguments.”
Foster v. State, 378 N.W.2d 713, 717 (Iowa Ct. App. 1985). We will not second-
17
guess appellate counsel’s choice to forego a losing argument at the expense of
the arguments actually presented on direct appeal.
V.
Richter claims the cumulative effect of her assigned errors was prejudicial.
Because we find no merit to her allegations, there is no cumulative error. See
State v. Burkett, 357 N.W.2d 632, 638 (Iowa 1984).
VI.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.