from the Iowa District Court for Sac County, Michael J. Moon,
from the denial of application for postconviction relief.
A. Ofenbakh of Ofenbakh Law Firm, PLLC, Des Moines, for
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee State.
by Mullins, P.J., and Bower and McDonald, JJ.
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.
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
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).
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.
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
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.
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 ...