from the Iowa District Court for Scott County, Mark J. Smith,
applicant appeals the district court's denial of his
application for postconviction relief. AFFIRMED.
C. Smith, State Appellant Defender, and Stephan J. Japuntich,
Assistant Appellant Defendant, for appellant.
Gabriel Vasquez, Newton, pro se.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., Vaitheswaran, J., and Scott,
Vasquez was convicted, following a jury trial, of two counts
of sexual abuse in the second degree and one count of sexual
abuse in the third degree related to his abuse of his
daughter. He was sentenced to two twenty-five-year terms, to
be served consecutively, and one ten-year term, to be served
concurrently with the first two counts. He appealed his
conviction, which this court affirmed. See State v.
Vasquez, No. 10-0085, 2011 WL 2089778, at *5 (Iowa Ct.
App. May 25, 2011). The facts of the case are adequately
outlined in our prior appellate decision and need not be
repeated here. See id. at *1-2. Following his
appeal, Vasquez filed an application for postconviction
relief (PCR), which the district court denied after holding
an evidentiary hearing. Vasquez now appeals the district
court's denial of his PCR application.
counsel, Vasquez challenges the district court's
determination he failed to prove trial counsel was
ineffective in failing to move to suppress the video of his
confession based on promissory leniency and trial counsel was
ineffective in not requesting a limiting instruction on the
use of the video. Counsel also claims the PCR court erred in
not addressing all of Vasquez's pro se claims. Vasquez
also filed a pro se appellate brief in this matter, asserting
the PCR court should have granted him relief because his
trial counsel was ineffective in not moving to suppress the
video of his confession based on promissory leniency and a
lack of voluntariness, the PCR court erred in denying his
claim that his trial counsel was ineffective in not securing
the complaining witness's mental health records, the PCR
court erred in not considering his claim of prosecutorial
misconduct, and his PCR trial counsel was ineffective in the
preparation and presentation of his PCR action resulting in
structural error. We will address each claim in turn.
Police Interview Video.
trial, the State played for the jurors a portion of the
police interview video wherein Vasquez admits to the conduct
alleged by the complaining witness. The parties disputed the
admissibility of this video during the criminal proceedings
and in the prior appeal, and this court determined the
district court correctly denied Vasquez's motion to
suppress the video, which was based on the police
officer's failure to give Vasquez Miranda
warnings. Id. at *2-3. We held:
[W]e concur in the district court's conclusion that a
reasonable person in Vasquez's position would not believe
he was in custody. Vasquez was informed he was not under
arrest, that he was free to leave, and that he would be able
to return to work. He drove himself to the police station and
drove back to work after the interview. Because he was not in
custody, there was no requirement that Miranda
warnings be given.
at *3. Vasquez also claimed in the prior appeal that the
statements he made in the video should have been suppressed
because they were not voluntary but were made "in
exchange for a promise of custodial leniency."
Id. Because this claim was not made in the motion to
suppress and was not addressed by the district court, we
determined the claim was not preserved for our review.
appeal from the court's denial of his PCR application,
Vasquez claims the court erred in concluding he failed to
prove his claim that his trial counsel was ineffective in not
seeking to suppress his statements in the video based on
promissory leniency. He also claims his trial counsel should
have requested a jury instruction directing the jury that
they could only consider Vasquez's statements on the
video, not the questions or statements by the interviewing
officer. Finally, in ...