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Butts v. State

Court of Appeals of Iowa

April 18, 2018

ROBERT BUTTS, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, Judge.

         An applicant appeals from the district court ruling dismissing his application for postconviction relief. AFFIRMED.

          Marti D. Nerenstone, Council Bluffs, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee State.

          Heard by Vogel, P.J., and Potterfield and Mullins, JJ.

          VOGEL, Presiding Judge.

         Robert Butts was convicted of one count each of first-degree burglary, second-degree kidnapping, going armed with intent, assault while participating in a felony, assault with the intent to commit sexual abuse, carrying weapons, and possession of burglar's tools. He filed a postconviction-relief action, asserting his trial counsel was ineffective. The basis for the action was that counsel disclosed a letter Butts had composed, failed to object to statements made by the prosecution, failed to move for a mistrial, and failed to object to asserted improper judicial conduct. Additionally, Butts claims his appellate counsel was ineffective in failing to seek further review and failing to challenge trial counsel's disclosure of the letter. Finally, Butts asserts his kidnapping conviction should be reconsidered in light of our supreme court's ruling in State v. Robinson, 859 N.W.2d 464 (Iowa 2015). Agreeing with the postconviction court's ruling, we affirm.

         I. Background Facts and Proceedings

         The charges Butts faced stemmed from allegations that on November 11, 2009, Butts broke into an apartment, shared by two sisters, armed with a handgun and a knife. He locked the front door behind him, dragged one sister to a back bedroom at gunpoint and attempted to rape her before being interrupted by police officers.

         After a jury found Butts guilty, he appealed his convictions raising sufficiency-of-the-evidence claims, evidentiary claims, a search warrant complaint, and a jury instruction challenge. This court affirmed Butts's convictions. See State v. Butts, No. 11-0069, 2011 WL 5867065, at *8-20 (Iowa Ct. App. Nov. 23, 2011). On December 19, 2014, Butts filed an application for postconviction relief (PCR), raising various ineffective-assistance-of-counsel claims. After a hearing, the PCR court denied Butts's claims. Butts appeals.

         II. Standard of Review

         "Generally, an appeal from a denial of an application for postconviction relief is reviewed for correction of errors at law." Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012) (citation omitted). "However, when the applicant asserts claims of a constitutional nature, our review is de novo. Thus, we review claims of ineffective assistance of counsel de novo." Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). "[W]e give weight to the lower court's findings concerning witness credibility." Id.

         III. Kidnapping Reconsideration

         Butts claims his kidnapping conviction should be reconsidered because the facts closely mirror those in Robinson, 859 N.W.2d at 465-67, in which our supreme court found there was insufficient evidence to uphold the kidnapping charge. Although the question of whether his acts constituted kidnapping was resolved in Butts's direct appeal, he claims it should be reconsidered because the Robinson decision postdated his direct appeal. We begin with a more detailed explanation of the undisputed facts presented to the jury.

         At approximately 11:00p.m. on November 11, 2009, Butts picked the deadbolt lock of the sisters' apartment. He entered and locked the door behind him. He found one of the sisters watching television, but he was unaware the second sister was in her own room. Butts was wearing plastic gloves and a hooded sweatshirt but he was not wearing shoes. He pointed a gun at the first sister's head and asked whether anyone else was in the apartment. She loudly told Butts no one else was at home, hoping her sister would hear her and call the police. Butts then grabbed the back of her arm and pulled her from the couch at gunpoint, dragged her down the hallway, and pushed her into a bedroom. He attempted to close the bedroom door, but something prevented the door from fully closing. He ordered the woman to undress, but she refused. He then forcibly removed her sweater, tank top, and bra before unbuttoning and unzipping her pants.

         During this time, the second sister crept into the bathroom and called police. When the police arrived, the second sister opened the front door, and the police entered the bedroom. As Butts turned to face the bedroom door the first sister grabbed him by the back of his sweatshirt and took the gun, which he had placed in his back waistband. A combative and uncooperative Butts was then taken into custody.

         By comparing the facts of this case to those in Robinson, Butts argues he should not have been convicted of second-degree kidnapping. He asserts Robinson changed the framework for analyzing kidnapping cases when it dismissed Robinson's kidnapping charges for insufficient evidence, because the "confinement or removal" of the victim was incidental to the underlying sexual abuse charge and not an independent crime. See 859 N.W.2d at 467-83. We disagree.

         Referencing its holding in State v. Rich, 305 N.W.2d 739, 741-42 (Iowa 1981), our supreme court, in Robinson, held sufficient evidence supports a kidnapping conviction when "the defendant's confinement of the victim substantially increased the risk of harm, significantly lessened the risk of detection, or significantly facilitated escape of the perpetrator." 859 N.W.2d at 481 (emphasis in original). The Robinson court noted many of the cases upholding kidnapping convictions feature the use of a weapon such as a gun or knife. Id. at 477-78 (citing State v. Griffin, 564 N.W.2d 370, 372-73 (Iowa 1997) (beating and sexually assaulting victim with a bottle); State v. McGrew, 515 N.W.2d 36, 39-40 (Iowa 1994) (possessing a knife and gun with him during attack); State v. Hatter, 414 N.W.2d 333, 338 (Iowa 1987) (forcing victim into defendant's car at knifepoint); State v. Knupp, 310 N.W.2d 179, 181 (Iowa 1981) (cutting through victim's clothing with a knife)). The Robinson court concluded "this heinous concept underlies the Rich tripartite test with its attendant intensifiers." Id. at 482. Therefore, Robinson merely clarified an existing rule by relying on the three-factor test outlined in Rich.

         Here, Butts locked the front door and forcibly led the first sister away from the front living area and into a bedroom at gunpoint. On two occasions, Butts threatened to hurt the first sister if she screamed. Once taken into custody, police also located a knife on Butts. Although the act of locking the door and leading the young woman to another room is similar to Robinson, this case diverges from Robinson due to the presence of two weapons-the knife, and the gun drawn and pointed at the victim while forcing her to a back bedroom-whereas Robinson did not feature a weapon. Consistent with the conclusion that the weapons substantially increased the risk of harm, the evidence, under a totality of the circumstances test, therefore supported kidnapping, and Butts is not entitled to reconsideration of that conviction. See id. at 479.

         IV. Ineffective Assistance of Counsel

         Butts next asserts his trial counsel was ineffective by disclosing a letter Butts had composed, first to his own expert and then to the State. "In order to succeed on a claim of ineffective assistance of counsel, a defendant must prove: (1) counsel failed to perform an essential duty; and (2) prejudice resulted." State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Both elements must be proven by a preponderance of the evidence. However, both elements do not always need to be addressed. If the claim lacks prejudice, it can be decided on that ground alone without deciding whether the attorney performed deficiently." Ledezma, 626 N.W.2d at 142 (citations omitted).

         A. Attorney-Client Privilege

         Butts claims his trial counsel violated the attorney-client privilege by disclosing a letter to his medical expert and to the State without Butts's consent.[1]The lengthy letter, written by Butts, detailed events and personal struggles in his life leading up to the events of November 11, 2009. Butts's trial counsel turned the letter over to an expert in forensic psychiatry prior to an evaluation in preparation for his diminished capacity defense. Eventually, the letter was disclosed to the State.[2] The State asserts Butts's trial counsel breached no duty because Butts consented to the disclosure to his expert. Further, Butts can show no prejudice because the prosecution would have learned of the evidence after the expert witness evaluated Butts's mental health and testified to the reasons for his diminished capacity, and the State gained similar information on a search of Butts's computer hard drive.

         Butts asserts no rule requires disclosure of this letter and, even if disclosure is allowed, his trial counsel did not have his consent; however, the record contradicts Butts's assertion. On the first page of the letter Butts wrote, "I don't know if this long (I suspect it will be long) 'essay' will be a good thing to give a psychiatrist or not. Maybe it would be best to let him or her make these discoveries independently. I will let you decide that." (emphasis in original). During Butts's redirect examination at his criminal trial, his trial counsel asked him about his understanding of the purpose and procedure regarding the letter:

Q. Now reviewing the letter that you wrote to me, 30 pages, I think we've established that it was written December the 12, 2009?

A. Which—the one to you?

Q. The 30—the long one.

A. Yes.

Q. Do you remember when I was first hired in November that there was a concern by your family about your mental health?

A. Yeah, I would think so.

Q. And do you remember that I assured them that I would—I would get you evaluated?

A. I don't know what you assured them but you told me that you had told them you were going to explore that, yes.

Q. All right. And you remember me telling you in December to start writing this now while you remember it—

A. Yes.

Q. —so we could use it and present it to whoever did the evaluation?

A. Yes.

Q. And I've reminded you that this is part of the material that I sent to Dr. Wilson so he could do his evaluation?

A. I had forgotten that, but yes.

Q. All right. Just to clarify that.

A. Yes.

Q. And that as part of the discovery process—

A. Absolutely.

Q. —I provided a copy to the county attorney so he knew all the materials that [the expert] reviewed to come up with his diagnosis?

A. I fully understand, yes.

         We conclude Butts's trial counsel did not breach an essential duty when he disclosed the letter because Butts gave his attorney the authority to do so.

         However, even if we assume that trial counsel breached an essential duty by disclosing the letter, Butts cannot demonstrate he was prejudiced by counsel's action. The State was already aware of highly sensitive, if not much more damaging, information contained on Butts's computer. In an effort to shore up his diminished capacity defense, Butts's expert testified as to very personal details in Butts's life leading up to these charges. He also testified he knew Butts had accessed various disturbing websites, as noted in the minutes of evidence. Therefore, Butts cannot demonstrate any prejudice resulted from counsel's disclosure of the letter when essentially the same, if not more damaging, information was contained elsewhere in the record. See State v. Trudo, 253 N.W.2d 101, 108 (Iowa 1977) (stating "ordinarily, a defendant may not claim prejudice where the same evidence is otherwise supplied by the defendant or is made overwhelmingly clear in the record.").

         In addition, given the strength of the evidence against him, Butts cannot show prejudice. Butts pursued intoxication and diminished capacity defenses by claiming he had absolutely no memory of the acts he was accused of committing. On cross-examination, the State questioned Butts as to his intent on the night in question, leading up to and immediately following the criminal activity:

Q. You also understand that there's a big difference between legally impaired to drive and intoxicated as a legal defense to crimes?
A. I do understand the difference, yes.
Q. Okay. And you would agree that when you left the Razzle Dazzle-actually, let's back that up. When you arrived at the Razzle Dazzle, you intended to have a conversation with someone?
A. Correct.
Q. And you actually had a conversation?
A. And I don't remember the details of it, but yes. As far as I know, yeah.
Q. And you intended to buy a drink?
A. Yeah.
Q. And you did buy a drink?
A. Correct.
Q. And then you intended to leave?
A. Sure, yeah.
Q. And you did leave?
A. And I left, yes.
Q. And then you intended to drive to your ...

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