January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
THOMAS GUY HENDERSON, Defendant-Appellant.
from the Iowa District Court for Carroll County, Timothy J.
defendant appeals his two convictions for first-degree murder
claiming counsel provided ineffective assistance, the trial
court improperly admitted a hearsay statement, and the court
abused its discretion in denying his motion for mistrial.
C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
Guy Henderson appeals his conviction for two counts of
first-degree murder, in violation of Iowa Code sections 707.1
and 707.2 (2013). On appeal, Henderson claims he received
ineffective assistance from counsel, the trial court
improperly admitted a hearsay statement, and the court abused
its discretion in denying his motion for mistrial. After
careful review, we affirm.
Background Facts and Proceedings.
female decedent lived in a small community in Glidden. Her
neighbors testified they knew her daily routine of checking
her mail and taking her pets outside, and how she had a habit
of keeping her front gate closed. On May 18, 2014, the
neighbors noticed the female decedent's front gate
remained open all day, which was unusual. They walked from
their home across the way to the female decedent's home
and knocked on her front door.
knocking, the neighbors testified they yelled the female
decedent's name. The female decedent did not respond, but
they heard a dog barking, so one of the neighbors entered the
home and shouted for her again. When the neighbor entered,
she saw a body on the floor of the living room. The neighbor
testified she then backed out of the home. The other neighbor
then entered the home and, upon seeing a deceased body on the
floor, also left the home. The neighbors called 911, and
responding officers found two deceased persons in the
home-the male decedent in the living room and the female
decedent in a bedroom.
law enforcement and Iowa Division of Criminal Investigations
investigated the scene and found neither signs of forced
entry into the home nor that a struggle had ensued inside.
They concluded that at least one of the victims must have
known the killer.
scene, officers recovered two weapons. First, they recovered
a "Yoshiblade" from a corner of the couch in the
living room where they found the male decedent. They also
recovered an additional knife's blade near the male
decedent's body. The knives both had blood on them.
also noticed the female decedent had a half-finished tattoo
on her leg. They consulted with a local tattoo artist who
opined the tattoo appeared to be recently done. Items related
to tattooing were located throughout the home.
the investigation and after speaking with neighbors,
investigators determined the last time it could be confirmed
both decedents were alive was on Friday, May 16. The male
decedent visited a local convenient store and appeared on the
store's surveillance camera at 7:25 p.m., and the female
decedent spoke with a relative on the phone at 9:48 p.m. Both
neighbors who discovered the bodies testified they saw a
dark-colored Pontiac car going and coming from the female
decedent's home on May 16 and 17. One neighbor testified
she saw two men, possibly teenagers, with dark hair and
clothing in the Pontiac. Neither neighbor testified they saw
Henderson at the female decedent's home. The neighbors
also testified they did not know the male decedent well
because he was not a frequent visitor to the female
after the murders, a runner and a horseback-rider separately
found two pieces of a wallet, later determined to belong to
the male decedent. The items were found in Lake City, on the
side of the road. This led investigators to look more closely
at Henderson, as his name had been mentioned during various
interviews and the wallet was located near his apartment
3, 2014, Special Agent Chad Fielder interviewed Henderson,
who admitted to knowing the female decedent. He told Fielder
he had been to the female decedent's home between nine
and thirteen times in the past to purchase marijuana from
another individual, but that he had stopped because he had
been "shorted" a few times. Fielder testified at
trial that during this interview with Henderson, he quickly
looked over Henderson's hands and exposed portions of his
body for any visible injuries but did not see any. Fielder
also testified Henderson did not express any anger or
animosity towards the female decedent or the individual who
"shorted" his marijuana purchases. Fielder also
noted there was no evidence Henderson knew the male decedent.
then searched Henderson's apartment twice. Officers
located an amateur tattoo kit containing similar needles as
those observed in the female decedent's home.
medical examiner performed autopsies on both decedents. The
autopsy determined the male decedent had defensive wounds and
died as a result of blunt-force trauma and sharp-force trauma
to his body. A portion of the Yoshiblade blade tip was also
found broken off in his skull. The female decedent also had
defensive wounds and died as a result of blunt-force trauma
to her head and neck region. It also showed she suffered
skull, wrist, and rib fractures.
knives seized from the home were tested for DNA. The handles
of both knives contained DNA that matched the known profile
24, 2014, Henderson was charged by trial information with two
counts of first-degree murder, to which Henderson pled not
guilty. Although he initially demanded a speedy trial, he
waived that right on July 11. The jury trial began on May 12,
2015, and the jury found Henderson guilty on both counts. The
court then sentenced Henderson to serve an indeterminate term
of imprisonment for the rest of his life for each charge and
ordered those sentences to run consecutively. Henderson was
also ordered to make restitution payments to the
decedents' estates, payments to the crime victim
compensation program and county, and reimbursement payments
for court costs and attorney fees.
filed his notice of appeal on July 6, 2015.
Standard of Review.
raises his challenge to the weight of the evidence as an
ineffective-assistance-of-counsel claim, which we review de
novo because the claim implicates the Sixth Amendment right
to counsel. See State v. McCoy, 692 N.W.2d 6, 14
(Iowa 2005). Henderson must prove his trial counsel failed to
perform an essential duty and this failure resulted in
prejudice to him. Id. While we do not normally
decide claims of ineffective assistance on direct appeal, we
will address the claim when the record is clear. Id.
also challenges the sufficiency of the evidence, which we
review for correction of legal error. See State v.
Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).
rulings are reviewed for an abuse of discretion. State v.
Huston, 825 N.W.2d 531, 536 (Iowa 2013). "[T]he
admission of claimed hearsay evidence is reviewed for
correction of errors at law." State v. Shipley,
757 N.W.2d 228, 231 (Iowa 2008).
generally review a district court's denial of a motion
for a mistrial for an abuse of discretion. See State v.
Gathercole, 877 N.W.2d 421, 427 (Iowa 2016).
Ineffective Assistance of Counsel.
Henderson contends the evidence was insufficient and contrary
to the weight of the evidence to prove he committed the
crimes. This claim was not preserved and so is presented as a
claim that trial counsel was ineffective for failing to
properly raise the sufficiency and weight-of-the-evidence
issues with the district court and for failing to file a
motion for new trial.
prove his claims of ineffective assistance of counsel,
Henderson must prove by a preponderance of the evidence that
counsel failed to perform an essential duty and he suffered
prejudice as a result. See State v. Morgan, 877
N.W.2d 133, 136 (Iowa Ct. App. 2016). The claim fails if
either prong is not proved. Id. When a defendant
chooses to raise an ineffective-assistance-of-counsel claim
on direct appeal, we may either determine the record is
adequate and decide the claim or find the record is
inadequate and preserve the claim for postconviction
proceedings. See State v. Neitzel, 801 N.W.2d 612,
624 (Iowa Ct. App. 2011).
prove the first prong of this claim, Henderson must show
counsel's performance fell outside the normal range of
competency. See State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). Starting "with the presumption that the
attorney performed his duties in a competent manner, "
"we measure counsel's performance against the
standard of a reasonably competent practitioner."
State v. Maxwell, 743 N.W.2d 185, 195-96 (Iowa
2008). Although counsel is not required to predict changes in
the law, counsel must "exercise reasonable diligence in
deciding whether an issue is 'worth raising.'"
State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999)
(quoting State v. Schoelerman, 315 N.W.2d 67, 72
(Iowa 1982)). In accord with these principles, we have held
that counsel has no duty to raise an issue that has no merit.
State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008).
The second prong of prejudice exists "when it is
'reasonably probable that the result of the proceeding
would have been different.'" Id. at 638
(quoting State v. Henderson, 537 N.W.2d 763, 765
first argues his trial counsel was ineffective for making
only a general motion for judgment of acquittal and not
specifying what elements were lacking, thereby failing to
preserve error on his sufficiency-of-the-evidence and
weight-of-the-evidence claims. A general motion for judgment
of acquittal that does not identify the specific elements of
the charge claimed to be insufficiently supported by the
evidence does not preserve error for appellate review.
See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999)
(citing State v. Crone, 545 N.W.2d 267, 270 (Iowa
1996)). However, we will address each claim under the
ineffective-assistance-of-counsel framework. See State v.
Ondayog, 722 N.W.2d 778, 784 (Iowa 2006) (providing that
an ineffective-assistance claim need not comport with
standard error-preservation rules).
argues his trial counsel provided ineffective assistance by
failing to properly raise a sufficiency-of-the-evidence claim
at trial. Henderson's counsel moved for judgment of
acquittal at the close of the State's case and renewed
the motion at the close of his case. In both motions, counsel
generally argued the State failed to meet the elements of the
review for correction of legal error, we will uphold the
jury's verdict if it is supported by substantial
evidence. See State v. Bash, 670 N.W.2d 135, 137
(Iowa 2003). "Evidence is substantial if it would
convince a rational factfinder that the defendant is guilty
beyond a reasonable doubt." Id. (citation
omitted). "Substantial evidence to support a verdict can
be present, even if there is substantial evidence to the
contrary." State v. Helm, 504 N.W.2d 142, 146
(Iowa Ct. App. 1993). However, we review all of the evidence,
"including legitimate inferences and presumptions that
may fairly be deduced from the evidence, in the light most
favorable to the State." State v. Sudbeck, No.
15-0596, 2016 WL 3003407, at *2 (Iowa Ct. App. May 25, 2016)
(citing Bash, 670 N.W.2d at 137).
State bears the "burden to prove every fact necessary to
constitute the claims with which the defendant is charged,
" and the State's evidence "must raise a fair
inference of guilty and do more than create speculation,
suspicion, or conjecture" to be substantial.
Id. Where, as here, the marshalling instruction is
given without objection, the instruction is the law of the
case for purposes of reviewing the sufficiency of the
evidence. See State v. Canal, 771 N.W.2d 528, 530
the marshalling instructions provided as follows:
1. On or about May 16, 17, or 18, 2014, the defendant struck
the female decedent.
2. The female decedent died as a result of being struck.
3. The defendant struck the female decedent with malice
4. The defendant struck the female decedent willfully,
deliberately, premeditatedly and with a specific intent to
5. The defendant was not justified.
jury was also instructed Henderson was guilty of first degree
murder of the male decedent if it found the following:
1. On or about May 16, 17, or 18, 2014, the defendant struck
and stabbed the male decedent.
2. The male decedent died as a result of being struck and
3. The defendant struck and stabbed the male decedent with
4. The defendant struck and stabbed the male decedent
willfully, deliberately, premeditatedly and with a specific
intent to kill him.
5. The defendant was not justified.
marshalling instructions were correct statements of the
elements of the offenses. See Iowa Code §§
appeal, Henderson generally maintains the record does not
support his identity as the person who committed first-degree
murder of both decedents. He cites to circumstantial evidence
used in the prosecution against him and to the absence of
evidence. Specifically, he contends the tattoo kit seized
from his apartment does not link him to the murders, no
evidence exists to place him at the crime scene, he never
admitted guilt of the crimes, and the DNA evidence used
against him does not support a finding of guilt because the
DNA evidence was never corroborated.
up each contention separately. First, it is plausible the
jury could have inferred the tattoo kit seized from
Henderson's home was a circumstantial link to the crime
scene, given the jury received expert testimony from a
professional tattoo artist the female decedent had a
"freshly-done" and half- completed tattoo and that
some of the items seized from the crime scene appeared to
match items from Henderson's kit. Henderson questions the
expert's testimony regarding the operability of the
tattoo kit seized from his home. Although the expert
testified the machine was brought to him in nonworking
condition, he stated the machine could easily be repaired by
someone who knew how to solder. The expert also testified the
gloves could have been tested for DNA and the needles could
have been matched up to the kit found in Henderson's home
had they been collected. Ultimately, the jury was given
several pieces of evidence to consider, and it is reasonable
it could infer the kit from Henderson's home and the
items collected from the crime scene shared some connection.
Henderson claims there is no evidence putting him at the
crime scene. However, the jury heard evidence Henderson's
DNA was on the handles of two knives found near one of the
bodies at the female decedent's home. Albeit
circumstantial evidence, "direct and circumstantial are
equally probative." See Iowa R. App. P.
6.904(3)(p). And our "use of such circumstantial
evidence is limited only by the rule that, like direct
evidence, it must 'raise a fair inference of guilt; it
must do more than create speculation, suspicion, or
conjecture.'" State v. Clarke, 475 N.W.2d
193, 197 (Iowa 1991) (citing State v. Blair, 347
N.W.2d 416, 421 (Iowa 1984)). Henderson's DNA on the
knives leads to a fair inference of Henderson's presence
at the crime scene and his use of two of the murder weapons,
an inference that is not based upon speculation, suspicion,
Henderson argues he has never admitted to committing the
crimes and the State never proved a motive for the crimes.
Nothing requires a defendant admit to a crime to be
convicted; the State must prove each element of the charged
offense beyond a reasonable doubt to sustain the conviction.
See Iowa R. Crim. P. 2.22. Moreover, the State need
not have proved a motive for the crime to convict Henderson.
See State v. Knox, 18 N.W.2d 716, 724 (Iowa 1945)
(stating "motive is not an element of a crime and proof
thereof is not essential to sustain a conviction").
Henderson argues the DNA evidence by itself is not sufficient
to support his convictions. Henderson urges us to consider
the DNA as evidence of identity and not of guilt. When
coupled with the location of Henderson's DNA- the handles
of two knives located near the male decedent's body,
which had sustained multiple stab wounds-the DNA is probative
on identity and guilt. Additionally, Henderson posits no
other circumstantial evidence connects him to the crime.
However, other pieces of circumstantial evidence do connect
him: he admitted to knowing the female decedent, having been
to her home on multiple occasions to purchase marijuana; the
female decedent's freshly-done tattoo and the tattoo kit
located in Henderson's home; and the male decedent's
wallet being recovered near Henderson's home. Ultimately,
there was more than just DNA evidence to consider in this
we find there was sufficient evidence to sustain
Henderson's two first-degree murder convictions. Any
element-specific motion made by trial counsel regarding the
sufficiency of the evidence would have been fruitless, and
counsel is not required to advance meritless arguments.
See State v. Dudley, 766 N.W.2d 606, 620 (Iowa
2009). Thus, Henderson cannot maintain his
ineffective-assistance claim as it pertains to this issue
because he cannot show he was prejudiced. See Strickland
v. Washington, 466 U.S. 668, 687 (1984) (holding
"the defendant must show that counsel's deficient
performance prejudiced the defense"). We affirm on this
next contends his counsel rendered ineffective assistance by
failing to file a motion for new trial on the ground the
verdict was contrary to the evidence. See Iowa R.
Crim. P. 2.24(2)(b)(6) (allowing a defendant to seek a new
trial when the verdict is contrary to the law or evidence).
Contrary to the evidence means contrary to the weight of the
evidence. See State v. Reeves, 670 N.W.2d 199, 201
(Iowa 2003). "Unlike the sufficiency-of-the-evidence
analysis, the weight-of-the-evidence analysis is much broader
in that it involves questions of credibility and refers to a
determination that more credible evidence supports one side
than the other." State v. Nitcher, 720 N.W.2d
547, 559 (Iowa 2006). "The granting of a new trial based
on the conclusion that the verdict is against the weight of
the evidence is reserved for those situations in which there
is reason to believe that critical evidence has been ignored
in the fact-finding process." State v. Grant,
722 N.W.2d 645, 648-49 (Iowa 2006). While the district court
has wide discretion in deciding motions for a new trial, it
must exercise such discretion "carefully and
sparingly" as not to "lessen the role of the jury
as the principal trier of the facts." State v.
Ellis, 578 N.W.2d 655, 659 (Iowa 1998). A new trial
should only be granted in the "exceptional case"
where the evidence "preponderates heavily against the
verdict." Reeves, 670 N.W.2d at 202.
review, there is no reason to believe the jury ignored
critical evidence or that its verdict is against the weight
of the evidence. Henderson's counsel had no duty to file
a meritless motion. See Dudley, 766 N.W.2d at 620.
Further, there has been no showing of prejudice. To prove the
requisite prejudice, Henderson must show that had his
attorney moved for a new trial under Ellis, a
reasonable probability existed the district court would have
found his to be the exceptional case meriting relief. See
Neitzel, 801 N.W.2d at 626. Having found no reasonable
probability the district court would have done so, we affirm
on this issue.
next contends the trial court erred when it admitted a
statement Henderson contends is hearsay not falling within
any exception to the general rule. Henderson claims the
admission of this statement prejudiced him and entitled him
to a mistral, which he requested and the court denied.
the State's case, Special Agent Fielder testified. The
following exchanged occurred:
THE STATE: You were asked also about the statement that he
gave you. Did he ever tell you that he had [the female
decedent's] phone number so he could call her about
giving her a tattoo? FIELDER: No.
THE STATE: Did you get that information from someone else?
FIELDER: I did.
THE STATE: Who?
DEFENSE COUNSEL: Objection, Your Honor. This is hearsay.
THE COURT: Overruled.
THE STATE: Who? FIELDER: The defendant's brother . . . .
is a statement, other than one by the declarant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." Iowa R. Evid.
5.801(c). Such a statement "is not admissible unless it
is exempt from the rule or falls within one of the
exceptions." See Iowa R. Evid. 5.802.
Henderson objected to the "who" question, which is
not hearsay and does not call for a hearsay answer. In this
context, identifying the person who shared information with
Fielder is not an out-of-court statement. See id.
Therefore, the trial court did not err in overruling
argues his objection was to the
"did-he-ever-tell-you" question; however, the
lodged objection came too late for our review. Objections
made after the court has admitted the statement are too late
to preserve error on those grounds. See State v.
Lawton, No. 13-0605, 2014 WL 1715064, at *5 (Iowa Ct.
App. Apr. 30, 2014); see also Roberts v. Newville,
554 N.W.2d 298, 300 (Iowa Ct. App. 1996) (stating
"[e]rror may not be predicated upon a ruling admitting
evidence unless a timely and specific objection is made at
trial"). Because we find the question did not call for
hearsay and the court did not err in so ruling, we likewise
do not find the trial court abused its discretion in denying
Henderson's motion for mistrial.
urges our review of this issue within an
ineffective-assistance-of-counsel framework as well.
Henderson claims the "did-he-ever-tell-you"
question was hearsay and not within any exception so as to
allow its admissibility; thus, he contends counsel was
ineffective for failing to lodge a timely objection.
of a hearsay statement is prejudicial to the non-offering
party unless the contrary is shown. See State v.
Ross, 573 N.W.2d 906, 910 (Iowa 1998). "In
considering whether the admission of hearsay is reversible
error, we have held that notwithstanding the presumption of
prejudice from the admission of such evidence, the
erroneously admitted hearsay will not be considered
prejudicial if substantially the same evidence is properly in
the record." State v. Newell, 710 N.W.2d 6, 19
(Iowa 2006). The admission of hearsay statements can be
harmless if other sources duplicate the testimony. State
v. Johnson, 272 N.W .2d 480, 482-83 (Iowa 1978).
Henderson contends Fielder's statement provided a crucial
nexus connecting him to the two decedents. However, Henderson
admitted he knew the female decedent because he used to
purchase marijuana at her home and had done so multiple
times; Henderson had already connected himself to the female
decedent prior to the admission of this statement and such
information was already before the court. Therefore, the
statement was cumulative.
claim of ineffective assistance of counsel then must fail
given that he cannot show he was prejudiced by the admission
of the statement. Given that he cannot do so, we need not
consider whether counsel was ineffective in failing to
object. See Dempsey v. State, 860 N.W.2d 860, 868
(Iowa 2015) (holding that if the defendant fails to establish
either element of his ineffective-assistance claim, we need
not address the remaining element).