from the Iowa District Court for Linn County, Mitchell E.
applicant appeals the district court decision denying his
request for postconviction relief from his conviction for
second-degree murder. AFFIRMED.
C. Meyer, Cedar Rapids, for appellant. Luis Guzman Perez,
Anamosa, appellant pro se.
J. Miller, Attorney General, and Darrel L. Mullins, Assistant
Attorney General, for appellee State.
Considered by Doyle, P.J., McDonald, J., and Goodhue, S.J.
GOODHUE, Senior Judge.
Guzman-Perez appeals from the denial of his request for
postconviction relief, claiming he received ineffective
assistance of counsel during the trial that led to his
second-degree-murder conviction. We affirm.
hardly do better than to set out in full the trial courts
well-written, well-reasoned, and comprehensive findings of
fact, conclusions of law and ruling, but in the interest of
brevity, we will attempt to set out the pertinent parts of it
in an abbreviated fashion. Guzman-Perez was arrested on
October 14, 2006, and charged with first-degree murder. The
trial began on February 4, 2008, and the jury returned a
verdict of guilty of second-degree murder on February 14,
2008. Guzman-Perez's post-trial motions were denied, and
appeal, counsel moved to withdraw and dismiss after
concluding there were no non-frivolous claims. The supreme
court remanded the matter for the trial court to apply the
weight-of-the-evidence standard to Guzman-Perez's motion
for a new trial. The district court reaffirmed its ruling
after applying the weight-of-the-evidence standard. The
supreme court then dismissed the appeal as frivolous but
preserved any ineffective-assistance-of-counsel claims for a
postconviction (PCR) proceeding. Guzman-Perez filed this PCR
proceeding, claiming ineffective assistance of counsel and
asking that the verdict be set aside and the matter remanded
for a new trial. The relief requested was denied by the trial
October 14, 2006, Guzman-Perez and his girlfriend, Caitlin
Woodruff, proceeded to a party in Tama County at
approximately midnight. In addition to Woodruff,
Guzman-Perez's friends, Ignacio Cruz, Salvador Cruz,
Alejandro Lopez, Julio Rios, and Daniel Rodriquez-Alviz,
accompanied him to the party. Both Guzman-Perez and Salvador
Cruz were carrying handguns.
alcoholic beverages were flowing freely at the party.
Woodruff got in a fight with another woman; Guzman-Perez and
Ignacio Cruz, along with the victim, Josh Wohlman, were
involved in separating the women. Guzman-Perez and Woodruff
proceeded to leave the party. As they were leaving, a fight
developed between the group that came with Guzman-Perez and
others at the party. It is unclear whether Guzman-Perez was
initially involved in the fight or whether he was trying to
break it up. In any event, Guzman-Perez and Salvador Cruz
fired their pistols into the air. Woodruff tried to take the
gun away from Guzman-Perez but she was unsuccessful and both
of them fell to the ground. Guzman-Perez testified that soon
thereafter, someone grabbed him around the neck from behind
and Wohlman tackled him from the front. Several witnesses
testified that Guzman-Perez was yelling at Wohlman.
testified that he hit the ground with Wohlman on top of him
and the gun accidently went off, striking Wohlman in the
forehead and killing him. Woodruff testified that
Guzman-Perez was on his feet and Wohlman was getting up when
the gun went off. Other eyewitnesses testified variously that
Guzman-Perez was three to six feet away from Wohlman and
Wohlman was trying to get up or was standing. Chelsey Wagg,
the only witness to claim she had not been drinking,
testified that Guzman-Perez and Wohlman were facing each
other when Guzman-Perez yelled, "I will shoot you."
Other witnesses testified to Guzman-Perez's threat to
shoot Wohlman. Rodriguez-Alviz originally told investigators
that Guzman-Perez told him he was being choked so he pointed
the revolver at Wohlman and "shot it."
Rodriguez-Alviz told a different story at the PCR hearing.
Witnesses testified that Guzman-Perez threatened to shoot
Wohlman, pointed the gun at Wohlman, and fired.
on the stippling caused by unburnt powder surrounding
Wohlman's wound, the State's forensic expert, Victor
Murillo, testified that the muzzle of the gun could have been
no more than one or two inches from the victim. Wohlman had
sutures over the wound and Murillo, a forensic expert,
testified that what he thought were stipplings could have
been from a needlepoint trying to stitch Wohlman up. Murillo
further testified that he had examined and tested the
revolver Guzman-Perez used and it took from seven-and-a-half
to seven-and-three-quarter pounds of pull on the trigger to
make it fire. Witnesses on behalf of the State, as well as
witnesses called by Guzman-Perez, gave testimony inconsistent
with the statements that they had given to law enforcement
taken immediately after the shooting and also inconsistent
with their prior depositions, where depositions had been
taken. There was no question that the bullet killing Wohlman
came from Guzman-Perez's gun, but he always maintained
the shooting was an accident when the gun discharged after he
and the victim fell. When investigators interviewed the
witnesses, none of them testified that the shooting had taken
place when both men were on the ground. Guzman-Perez
immediately left the scene with some of his friends after the
shooting incident, and someone threw the gun out of the
window of the car on their way home.
time of arrest and booking, Guzman-Perez was wearing a black
pea coat, a black/blue-and-white-striped sweatshirt/jersey, a
white t-shirt, blue jeans, and green/white tennis shoes. The
pea coat, the white t-shirt, blue jeans, and tennis shoes
were all examined and taken by the Division of Criminal
Investigation (DCI) lab for blood examination, but both of
the DCI agents involved testified they never saw the striped
agents also testified that they routinely do not take all
clothing for testing. If an item has no evidentiary value, it
is not taken. The testing of Guzman-Perez's clothing did
not reveal any of the victim's blood. The blood found on
the clothing was either Guzman-Perez's or belonged to a
female. All items were eventually returned to
Guzman-Perez's family. Luann Kitheart, the Tama County
jailer, testified that the booking sheet listed all items
taken from Guzman-Perez, including the sweatshirt, but that
all items taken from Guzman-Perez and not tested by the DCI
were released to Guzman-Perez and his father, including the
striped sweatshirt. Guzman-Perez's father claimed he did
not get the striped sweatshirt.
filed a PCR petition, asserting counsel was ineffective in
the following respects: (1) failure to obtain the striped
sweatshirt and examine it for the victim's DNA or request
a spoliation instruction because of its destruction; (2)
failure to object to the jury instructions relating to the
inference of malice aforethought from the use of a deadly
weapon; (3) failure to use an expert witness to testify as to
the unreliability of eye witness testimony and as to various
other factual issues; (4) failure to effectively
cross-examine State's witnesses on the location of the
witnesses, the existing light at the scene, and the timeline
of the events; (5) failure to investigate lay witnesses
present at the scene supporting his claim of accident; and
(6) failure to employ a crime scene reconstructionist. He
then asserts that these deficiencies when added together
warrant a new trial.