This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.
Appeal from the Iowa District Court for Franklin County, Colleen D. Weiland, Judge. Larry Dean White appeals the denial of his application for postconviction relief.
Dylan J. Thomas, Mason City, for appellant.
Larry Dean White, Mason City, Pro se.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Dan Wiechmann, County Attorney, for appellee State.
Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.
In 2002, Larry Dean White was convicted of first-degree kidnapping, in violation of Iowa Code sections 710.1 and .2 (2001). White appeals the denial of his second application for postconviction relief, which he filed in January 2012. Because several claims in the application were time-barred, see Iowa Code § 822.3 (2011), and because we reject his claim that his sentence constitutes cruel and unusual punishment, we affirm.
I. Background Facts and Proceedings.
On April 22, 2002, a jury found White guilty of first-degree kidnapping and first-degree burglary. White characterizes the events resulting in his conviction as follows: " On October 20, 2001, Larry White held . . . Nelson, his estranged spouse, at gun point and forced her to watch a video tape he made and engage in conversation with him." This so minimizes his conduct as to be misleading.
As stated by our supreme court, White subjected his estranged wife to a " bone-chilling ordeal of life-threatening intimidation." See State v. White, 668 N.W.2d 850, 852 (Iowa 2003). The court described the ordeal as follows:
There is substantial evidence showing White intentionally tortured Nelson. When she arrived home, Nelson took a shower. As she dried her hair, Nelson saw the bathroom door move and slowly open. She saw the barrel of a shotgun in the mirror. Nelson dropped the hairdryer and turned around. There stood her estranged husband standing at the threshold with a shotgun. White forced Nelson at gunpoint upstairs to her bedroom. She was so consumed with fear that White was going to shoot her, Nelson walked backwards up the stairs. All the while, White pointed the shotgun at Nelson's chest.
At the top of the stairs, Nelson saw the video recorder. She saw the red light was on and knew she was being taped. She saw shotgun shells lined up in a row on the stand near the television. Nelson believed she was going to die. White ordered Nelson to sit on the bed or he would shoot her knee. As he said this, White pointed the gun at Nelson's knee. White then placed a chair in front of the video recorder and ordered Nelson to sit there. Nelson moved to the chair. At all times, White kept the shotgun pointed at her. He interrogated her. He accused her of sexual infidelity. He demanded she tell the truth about having intimate relationships with other men. Nelson answered his questions. She was hysterical; she was trembling uncontrollably, crying and sobbing, wailing and screaming, and begging for her life. Nelson said, " I don't want you to kill me," and White responded, " Then answer my questions." Nelson pleaded to him not to kill her because their children needed her. White responded, " They'll be alright." When Nelson asked White why he was doing this to her he said, " I'll be in jail as soon as I leave if I don't shut you up. . . . You can't keep your mouth shut."
At some point, White turned off the video recorder and forced Nelson downstairs. This time, Nelson went down the stairs sideways, terrified White would shoot her in the back. White forced Nelson, at gunpoint, into the living room. White put a videotape in the VCR and turned on the television. He forced Nelson to watch the two and a half hours of videotape White recorded as he waited for Nelson to come home. The tape was replete with explicit statements of White's intent to kill Nelson, his accusations against her, and vulgar name-calling. White stayed with Nelson as she viewed the entire two and a half hour video. As Nelson watched the tapes and heard the homicidal ideations of her husband, White repeatedly cocked and uncocked the shotgun. She heard White say on the tape he was going to torture her. She heard White say he was going to shoot her when she returned home. Nelson believed White was going to hurt her. At one point, White allowed Nelson to go into the kitchen for a cigarette and pop. He pointed the gun at Nelson and followed her into the kitchen with it. Some time after Nelson returned to the living room, White acted like he was going to let Nelson go. He unloaded the shotgun. When the tape was finished, White said to Nelson, " You can go. You can go call the police if you want to." Nelson started walking for the door and reached for her cell phone. White jumped up from the recliner and came after Nelson. He grabbed the cell phone out of her hand and blocked the door so Nelson could not leave. He reloaded the shotgun and ordered Nelson back into the living room. Nelson told White everything was her fault and that she deserved what White had done to her. . . .
These facts support the jury's conclusion that Nelson was " torture[d]" within the meaning of Iowa Code section 710.2. This case is more than just a threat with a gun. The record shows repeated acts of terror against Nelson.
. . . .
These were not impulsive or out of control acts. Rather, everything White did and said bespeaks of purposeful behavior. White had used physical violence in the past. He used this fact as additional power to control Nelson in a nonphysical manner. Because of White's past use of physical force, there is an implied ...