IN THE COURT OF APPEALS OF IOWA
No. 15-0519
Filed August 16, 2017
LUIS GUZMAN-PEREZ,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,
Judge.
The applicant appeals the district court decision denying his request for
postconviction relief from his conviction for second-degree murder. AFFIRMED.
Mark C. Meyer, Cedar Rapids, for appellant.
Luis Guzman Perez, Anamosa, appellant pro se.
Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant
Attorney General, for appellee State.
Considered by Doyle, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.
Luis A. Guzman-Perez appeals from the denial of his request for
postconviction relief, claiming he received ineffective assistance of counsel
during the trial that led to his second-degree-murder conviction. We affirm.
I. Background Proceedings
We can hardly do better than to set out in full the trial courts well-written,
well-reasoned, and comprehensive findings of fact, conclusions of law and ruling,
but in the interest of brevity, we will attempt to set out the pertinent parts of it in
an abbreviated fashion. Guzman-Perez was arrested on October 14, 2006, and
charged with first-degree murder. The trial began on February 4, 2008, and the
jury returned a verdict of guilty of second-degree murder on February 14, 2008.
Guzman-Perez’s post-trial motions were denied, and Guzman-Perez appealed.
On appeal, counsel moved to withdraw and dismiss after concluding there
were no non-frivolous claims. The supreme court remanded the matter for the
trial court to apply the weight-of-the-evidence standard to Guzman-Perez’s
motion for a new trial. The district court reaffirmed its ruling after applying the
weight-of-the-evidence standard. The supreme court then dismissed the appeal
as frivolous but preserved any ineffective-assistance-of-counsel claims for a
postconviction (PCR) proceeding. Guzman-Perez filed this PCR proceeding,
claiming ineffective assistance of counsel and asking that the verdict be set aside
and the matter remanded for a new trial. The relief requested was denied by the
trial court.
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II. Background Facts
On October 14, 2006, Guzman-Perez and his girlfriend, Caitlin Woodruff,
proceeded to a party in Tama County at approximately midnight. In addition to
Woodruff, Guzman-Perez’s friends, Ignacio Cruz, Salvador Cruz, Alejandro
Lopez, Julio Rios, and Daniel Rodriquez-Alviz, accompanied him to the party.
Both Guzman-Perez and Salvador Cruz were carrying handguns.
Apparently, alcoholic beverages were flowing freely at the party. Woodruff
got in a fight with another woman; Guzman-Perez and Ignacio Cruz, along with
the victim, Josh Wohlman, were involved in separating the women. Guzman-
Perez and Woodruff proceeded to leave the party. As they were leaving, a fight
developed between the group that came with Guzman-Perez and others at the
party. It is unclear whether Guzman-Perez was initially involved in the fight or
whether he was trying to break it up. In any event, Guzman-Perez and Salvador
Cruz fired their pistols into the air. Woodruff tried to take the gun away from
Guzman-Perez but she was unsuccessful and both of them fell to the ground.
Guzman-Perez testified that soon thereafter, someone grabbed him around the
neck from behind and Wohlman tackled him from the front. Several witnesses
testified that Guzman-Perez was yelling at Wohlman.
Guzman-Perez testified that he hit the ground with Wohlman on top of him
and the gun accidently went off, striking Wohlman in the forehead and killing him.
Woodruff testified that Guzman-Perez was on his feet and Wohlman was getting
up when the gun went off. Other eyewitnesses testified variously that Guzman-
Perez was three to six feet away from Wohlman and Wohlman was trying to get
up or was standing. Chelsey Wagg, the only witness to claim she had not been
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drinking, testified that Guzman-Perez and Wohlman were facing each other when
Guzman-Perez yelled, “I will shoot you.” Other witnesses testified to Guzman-
Perez’s threat to shoot Wohlman. Rodriguez-Alviz originally told investigators
that Guzman-Perez told him he was being choked so he pointed the revolver at
Wohlman and “shot it.” Rodriguez-Alviz told a different story at the PCR hearing.
Witnesses testified that Guzman-Perez threatened to shoot Wohlman, pointed
the gun at Wohlman, and fired.
Based on the stippling caused by unburnt powder surrounding Wohlman’s
wound, the State’s forensic expert, Victor Murillo, testified that the muzzle of the
gun could have been no more than one or two inches from the victim. Wohlman
had sutures over the wound and Murillo, a forensic expert, testified that what he
thought were stipplings could have been from a needlepoint trying to stitch
Wohlman up. Murillo further testified that he had examined and tested the
revolver Guzman-Perez used and it took from seven-and-a-half to seven-and-
three-quarter pounds of pull on the trigger to make it fire. Witnesses on behalf of
the State, as well as witnesses called by Guzman-Perez, gave testimony
inconsistent with the statements that they had given to law enforcement taken
immediately after the shooting and also inconsistent with their prior depositions,
where depositions had been taken. There was no question that the bullet killing
Wohlman came from Guzman-Perez’s gun, but he always maintained the
shooting was an accident when the gun discharged after he and the victim fell.
When investigators interviewed the witnesses, none of them testified that the
shooting had taken place when both men were on the ground. Guzman-Perez
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immediately left the scene with some of his friends after the shooting incident,
and someone threw the gun out of the window of the car on their way home.
At the time of arrest and booking, Guzman-Perez was wearing a black pea
coat, a black/blue-and-white-striped sweatshirt/jersey, a white t-shirt, blue jeans,
and green/white tennis shoes. The pea coat, the white t-shirt, blue jeans, and
tennis shoes were all examined and taken by the Division of Criminal
Investigation (DCI) lab for blood examination, but both of the DCI agents involved
testified they never saw the striped sweatshirt.
The DCI agents also testified that they routinely do not take all clothing for
testing. If an item has no evidentiary value, it is not taken. The testing of
Guzman-Perez’s clothing did not reveal any of the victim’s blood. The blood
found on the clothing was either Guzman-Perez’s or belonged to a female. All
items were eventually returned to Guzman-Perez’s family. Luann Kitheart, the
Tama County jailer, testified that the booking sheet listed all items taken from
Guzman-Perez, including the sweatshirt, but that all items taken from Guzman-
Perez and not tested by the DCI were released to Guzman-Perez and his father,
including the striped sweatshirt. Guzman-Perez’s father claimed he did not get
the striped sweatshirt.
Guzman-Perez filed a PCR petition, asserting counsel was ineffective in
the following respects: (1) failure to obtain the striped sweatshirt and examine it
for the victim’s DNA or request a spoliation instruction because of its destruction;
(2) failure to object to the jury instructions relating to the inference of malice
aforethought from the use of a deadly weapon; (3) failure to use an expert
witness to testify as to the unreliability of eye witness testimony and as to various
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other factual issues; (4) failure to effectively cross-examine State’s witnesses on
the location of the witnesses, the existing light at the scene, and the timeline of
the events; (5) failure to investigate lay witnesses present at the scene
supporting his claim of accident; and (6) failure to employ a crime scene
reconstructionist. He then asserts that these deficiencies when added together
warrant a new trial.
III. Error Preservation
An exception to the traditional error preservation exists when the claim is
ineffective assistance of counsel. State v. Fountain, 786 N.W.2d 260, 262-63
(Iowa 2010).
IV. Standard of Review
Appeals from the district court decision denying a request for
postconviction relief are ordinarily reviewed for corrections of errors at law, but
when a constitutional issue such as a claim of ineffective assistance of counsel is
involved, it is reviewed de novo. Lemasters v. State, 821 N.W.2d 856, 862 (Iowa
2012).
V. Merits
To prevail on a claim of ineffective assistance of counsel, the claimant
must prove by a preponderance of the evidence that: (1) counsel failed to
perform an essential duty and (2) prejudice resulted. Ledezma v. State, 626
N.W.2d 134, 142 (Iowa 2001). A claim of ineffective assistance must overcome
the presumption that counsel is competent. Taylor v. State, 352 N.W.2d 683,
685 (Iowa 1984). An accused is not entitled to perfect representation but only
that level of representation that is within the normal range of competency. State
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v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). Strategic choices made after proper
investigation are virtually unassailable. Ledezma, 626 N.W.2d at 143. In
reviewing counsel’s effectiveness, we do not take on the role of a Monday
morning quarterback and view the decisions with 20/20 hindsight. Fryer v. State,
325 N.W.2d 400, 414 (Iowa 1982). For relief to be granted, there must be a
determination that, but for ineffective assistance, there is a reasonable probability
that the result would have been different. Ledezma, 626 N.W.2d at 145.
Counsel is not ineffective for failing to make a meritless claim. State v. Brubaker,
805 N.W.2d 164, 171 (Iowa 2011). We will consider the claims of ineffective
assistance of counsel issue by issue.
A. The Striped Shirt
Guzman-Perez places importance on the striped sweatshirt because it
could have had blood on it that might indicate the victim was shot at very close
range, consistent with Guzman-Perez’s “accident” testimony. The testimony of
Kitheart, the Tama County jailer, was that everything seized was turned over to
the DCI and those items not seized were turned over to Guzman-Perez’s father.
She further testified that if the sweatshirt had blood stains on it, she would have
retained it and turned it over to the DCI. She testified that a murder is unusual in
Tama County, she specifically remembers the striped sweatshirt, and it did not
have any blood stains on it. There was, in fact, no testimony from Guzman-
Perez or any witnesses that the sweatshirt had blood on it. Guzman-Perez was
wearing his pea coat over his shirt, and the coat was turned over to the DCI.
Wohlman’s blood was not found on any of the Guzman-Perez clothing turned
over to the DCI. Guzman-Perez did not advise his trial counsel that the
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sweatshirt had blood on it, and there was no proof that it did. Counsel testified
that if he had been told there was blood on the sweatshirt, he would have made
every effort to find it.
Guzman-Perez asserts that because of the absence of the sweatshirt, the
jury should have been given an instruction allowing it to conclude that if the
sweatshirt had been produced, it would have been favorable to him and
unfavorable to the State. See State v. Langlet, 283 N.W.2d 330, 333 (Iowa
1979). In order to give such an instruction, there must be substantial evidence
that: (1) the item (sweatshirt) was in evidence; (2) the evidence was in the
possession of or under the control of the State; (3) the evidence would have
been admissible; and (4) the party responsible for its destruction did so
intentionally. See State v. Hartsfield, 681 N.W.2d 626, 631 (Iowa 2004).
The trial court considered the credibility of the witnesses and determined
the sweatshirt had been turned over to Guzman-Perez’s father on December 18,
2007. There was no evidence the State intentionally destroyed it or that it
contained any relevant evidence. Counsel did not have a duty to request a
spoliation instruction because the facts fell far short from permitting one. The
sweatshirt appears to be a Guzman-Perez afterthought, and trial counsel had no
reason to think it had any evidentiary value. Counsel did not have a duty to
investigate its location.
B. Malice Aforethought Instruction
It was necessary for the jury to find that Guzman-Perez acted with malice
aforethought in order to find he was guilty of second-degree murder. See Iowa
Code § 707.1—.3 (2005). The jury was instructed that:
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“Malice” is a state of mind which leads one to intentionally do
a wrongful act to the injury of another out of actual hatred or with an
evil or unlawful purpose. Malice may be established by evidence of
actual hatred or by proof of a deliberate intent to do injury. Malice
may be found from the acts and conduct of the defendant and the
means used in doing the wrongful and injurious act.
“Malice aforethought” is a fixed purpose or design to do
some physical harm to another which exists before the act is
committed. It does not have to exist for any particular length of
time.
Malice aforethought may be inferred from the defendant’s
use of a dangerous weapon.
Guzman-Perez’s trial counsel did not object to the instruction, which is a
verbatim rendition of the uniform instruction. Guzman-Perez contended that
counsel should have requested an additional instruction stating as follows:
Malice aforethought may be but does not have to be inferred
from the use of a dangerous weapon in the absence of evidence to
the contrary. This inference may be rebutted by evidence showing
the killing was accidental, under provocation, or because of mental
incapacity.
The instruction used by the trial court was requested by both parties. It is
a correct statement of law, see State v. Ambrose, 861 N.W.2d 550, 559 (Iowa
2015), and Guzman-Perez still does not contend otherwise. The instruction used
only permits the jury to infer malice aforethought from the use of a dangerous
weapon. The language used does not instruct the jury that they are required to
make such an inference. Guzman-Perez’s counsel emphasized the permissive
nature of the inference in argument. The jury was also instructed that Guzman-
Perez must have been aware of doing the act and acted voluntarily, and that
means his actions were not by mistake or accident.
Inference instructions, such as the one used in Ambrose, should be used
with care. Id at 560. Ambrose sets out a hypothetical where one of two parties is
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in a fight and picks up a rock and kills another and questions the applicability of
the inference instruction in such a case. Id. We are a far cry from the
hypothetical set out in Ambrose. Guzman-Perez made threats to kill, brought the
gun with him to the party, and had the gun in his possession. The gun was
loaded, and he successfully resisted an attempt to have the gun taken from him.
The use of the inference instruction here presents less of a question than of its
use in a recently decided case. See State v. Green, 896 N.W.2d 770, 781 (Iowa
2017). In the Green case, there was no evidence of threats, the dangerous
weapon was a baseball bat, and there was no evidence the perpetrator had
brought the bat to the altercation. Id. A uniform instruction was used, and
normally, we are slow to disapprove of uniform instructions. Ambrose, 861
N.W.2d at 560.
Our objective when reviewing a trial court’s instruction is not to determine
if some other instruction would have been preferable but whether the instruction
actually given accurately portrayed the applicable law to the jury. State v.
Bousman, 276 N.W.2d 421, 422 (Iowa 1979). Counsel had no duty to object to
the inference instruction used.
C. Failure to Retain Expert Witnesses
1. Effect of Alcohol on Perception
It appears that all but one of the witnesses to the incident had been
drinking alcoholic beverages. This includes Guzman-Perez, those witnesses that
testified on his behalf, and those witnesses he says counsel should have called.
Wagg was the only witness that said she had not been drinking, and her
testimony was prejudicial to Guzman-Perez. Counsel believed that the effects of
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alcohol on one’s perception would be well known to the jury, in any event and an
expert’s testimony would have not been helpful to the jury or to Guzman-Perez.
2. Crime Scene Reconstructionist
In the PCR proceeding, Guzman-Perez called a forensic reconstructionist,
Wayne Hill Sr. Hill basically concurred with the State’s witness, Murillo, and the
testimony of the associate State medical examiner. Neither Dr. Hill nor Murillo
were able to determine whether Wohlman was standing, crouching, or on the
ground when he was shot. The testimony of Murillo was effectively used by
Guzman-Perez’s counsel to buttress his claim of an accident. Dr. Hill
emphasized the stippling that showed a close shot but was unable to say that the
stitching or the attempted stitching could not be confused with stippling.
3. Lighting Expert
There is no reason to think that a lighting study would have been of any
assistance to Guzman-Perez. The State had done a lighting study of the area in
the belief it would have assisted the prosecution by buttressing the testimony of
the State’s eye witnesses. Guzman-Perez’s counsel also determined it would
have been helpful to the State and successfully objected to the testimony, and it
was not permitted to come into evidence.
4. An Expert on Eye Witness Testimony and Memory Lapses
Guzman-Perez and witnesses he called to testify are subject to the same
eye witness impairments and memory lapses as are the State’s witnesses. The
testimony would have been of little or no value to Guzman-Perez.
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5. Firearms Expert
Guzman-Perez’s expert in the post-trial hearing assumed, if the incident
had happened as related by the State’s witnesses, then Wohlman would have
had time to assume a defensive position, which in his opinion is inconsistent with
the almost-level trajectory of the bullet after entering Wohlman’s forehead. The
expert testified, in essence, that Guzman-Perez may have involuntarily pulled the
trigger as a reflex to the tackling by Wohlman. Guzman-Perez had a relatively
small revolver, and there is no evidence that a probably drunk Wohlman knew
Guzman-Perez had a real gun or was in fact intending to use it and could
process what was happening. There was consistency among all the witnesses of
both the prosecution and the defense that the events all happened very quickly.
6. Guzman-Perez’s Uncalled Witnesses
Some of the witnesses that Guzman-Perez contends should have been
called were friends of Guzman-Perez, and at least one was a cousin. Their
rendition of the events at the PCR hearing was effectively and repeatedly
impeached by prior inconsistent statements they had made to the investigator
immediately after the incident and some statements that had been made later in
depositions. Their testimony at the PCR hearing was primarily to the effect that
Guzman-Perez had not been involved in the fight before the shooting. This PCR
testimony would have been more helpful to defeat the issue of premeditation
required if a first-degree-murder verdict had been returned. There was
substantial agreement among the witnesses that Wohlman had tackled Guzman-
Perez from the front prior to the shooting and that someone had attacked
Guzman-Perez from behind. That in itself would qualify as adversarial physical
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conduct or fighting. Each witness to the shooting called by Guzman-Perez in the
PCR hearing testified that Guzman-Perez had been tackled by Wohlman.
In each case where Guzman-Perez now claims that an expert would have
been helpful, trial court counsel testified they had considered the use of an expert
but decided against it for one reason or another. Trial counsel also considered
calling more of Guzman-Perez’s friends as witnesses but in each case decided
they would be consistently impeached, as they were in the PCR hearing.
Counsel testified that in each case, determinations were made as a matter of
strategy and Guzman-Perez agreed with the decision of counsel regarding the
use of an expert or the defendant’s witnesses at the time of each trial. We
determine Guzman-Perez has not shown he received ineffective assistance due
to counsel’s failure to call expert witnesses.
D. Ineffective Cross-Examination
Guzman-Perez asserts that counsel did not effectively cross-examine the
State’s witnesses. Specifically, he asserts there were inconsistent statements
made either in previous statements or depositions of the State’s witnesses that
were not brought out by counsel. Counsel was able to discredit each of the State
witnesses to the crime by use of prior contradictory statements either when they
were deposed or when the investigation took place. Not every inconsistent
statement was pointed out, but counsel testified that in their experience, there is
a point after which such an approach becomes counterproductive. The trial court
concluded “that the quality of preparation and the cross-examination conducted
by trial counsel far exceeded any minimum threshold of competency.” We agree.
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E. Cumulative Errors
In order to rely on the concept of cumulative error in an ineffective-
assistance claim, the petitioner must establish that at least one of the claims
presented created an instance where counsel failed to exercise an essential
duty. In that event, the cumulative error can be considered to establish
prejudice. State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012). We have failed to
find any instance where counsel failed to perform an essential duty. Therefore
the concept of cumulative effect is not applicable. See id. Finally, if counsel
failed any duties so that the cumulative effect of prejudice could be considered,
we find no probability the result would have been different. The evidence against
Guzman-Perez was overwhelming.
VI. Ineffective Assistance of Appellate Counsel
Appellate counsel on the direct appeal asked to withdraw and requested
the appeal be dismissed as a frivolous appeal. The supreme court sent the
matter back to the trial court to have a new trial determination based on the
weight-of-the-evidence standard. Guzman-Perez asserts the appeal should have
been pursued more vigorously but fails to be more specific. It is not enough to
simply complain counsel should have done a better job. Dunbar v. State, 515
N.W.2d 12, 15 (1994).
To the extent that Guzman-Perez attacks the credibility of the witnesses,
credibility is a matter for the jury to decide. Gail v. Clark, 410 N.W.2d 662, 671
(Iowa 1987). We believe that to the extent Guzman-Perez has raised legal
issues, they are encompassed within our ruling on this appeal.
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The denial of postconviction relief is affirmed.
AFFIRMED.