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Richter v. State

Court of Appeals of Iowa

March 8, 2017

TRACEY ANNE RICHTER, Applicant-Appellant,
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.

          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.


         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. 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 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).


         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. 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 predicate of Richter's argument is incorrect. Englert did not provide false testimony.


         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 ...

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