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Harper v. State

Court of Appeals of Iowa

September 12, 2018

SESSIONS L. HARPER, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.

         Sessions Harper appeals the denial of his application for postconviction relief.

          Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, PC, Storm Lake, for appellant.

          Sessions L. Harper, Fort Madison, pro se.

          Thomas J. Miller, Attorney General, and Kevin R. Cmelik, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., and Mullins and McDonald, JJ.

          MULLINS, JUDGE.

         "Sessions Harper raped me, tied me up, and set my house on fire." This nontestimonial dying declaration[1] by Holly Michael was a small piece of the insurmountable evidence that led to Harper's convictions of sexual abuse, kidnapping, murder, and arson-all in the first degree. After the supreme court affirmed Harper's convictions on direct appeal, Harper filed an application for postconviction relief (PCR), which was ultimately denied by the district court. Harper appeals the denial of his PCR application. In addition to his various pro se claims of ineffective assistance of counsel, he contends the district court erred in concluding his trial counsel did not render ineffective assistance of counsel in failing to object to an allegedly improper jury instruction on the crime of first-degree kidnapping and abused its discretion in declining to admit certain evidence in the PCR trial.

         I. Background Facts and Proceedings

         On the evening of Saturday, January 7, 2006, Holly Michael, Becky Sittig, Ashleigh Attig, and Harper hung out at Michael's house in Fort Dodge beginning at around 7:00 or 8:00 p.m.[2] From then until the early morning hours of January 8, the group drank alcohol, smoked marijuana, and consumed cocaine. The group left the residence to go to a nearby bar at which they arrived around 1:00 a.m. Video surveillance footage at the bar depicted Harper to have a shaved head and wearing a black jacket with a hood. They drank at the bar until around 1:40 a.m. then returned to Michael's house, where they consumed more alcohol and drugs. At some point after the group returned from the bar, Attig and Harper engaged in sexual intercourse on the floor in Michael's bedroom.[3] Attig testified, as was normally the case when she and Harper engaged in intercourse, Harper did not wear a condom.

         Sittig, Attig, and Harper left Michael's house around 4:30 a.m. and returned to the home shared by Sittig and Attig. Sittig left the home to go to her mother's roughly ten minutes later. Harper left around the same time to retrieve something from his residence, which was just around the corner. He returned a short time later, dropped off the item he retrieved, and left again shortly thereafter. Harper made eight phone calls from his cell phone to the Michael residence after he departed from the party, at 4:28, 4:55, 4:58, 5:23, 5:32, 5:41, 5:42, and 6:35 a.m.

         James and Michelle Leith live in the vicinity of the Michael residence. When James arrived home from work at around 8:00 a.m. on January 8, he saw a car he did not recognize parked in the street near his home, "a sporty-looking, red, four-door" car with a rear spoiler. James took a second look at the vehicle after he got out of his car and observed it to be an Oldsmobile. At about 9:10 a.m., as Michelle was leaving home to take her children to Sunday school, she noticed the red car parked in the street at the end of her driveway. When she returned about twenty minutes later, the vehicle was still there. At this point, Michelle observed a multicolored lei hanging from the car's rearview mirror. The Leiths observed the car drive away at around 9:40 a.m., but did not see who was driving it.

         Joey McDowell, a neighbor of the Leiths, also lives in the vicinity of the Michael residence. At around 8:00 a.m., McDowell observed a red car with a "wing" on the back parked on the street near her home. At about 9:30 or 9:40 a.m., McDowell looked out her front window and observed an African American male with a shaved head wearing a jacket with a hoodie underneath get in the car and drive away.

         At or around 9:45 a.m., passers-by observed Michael's home to be on fire and called 911. Upon their arrival, firefighters entered the home to search for any occupants. After searching the main level, firefighters opened the basement door, which was initially blocked with a piece of furniture, and heard screaming. In the basement, firefighters found Michael lying face down on the floor, wrapped in a burning comforter, with her arms and legs bound with wire. Michael was transported from the basement to an ambulance on the scene. When placed in the ambulance, a paramedic poured saline on Michael to extinguish the smoldering materials attached to her body. The paramedic observed Michael was not wearing any clothing and had gray duct tape and brown telephone wire on her right wrist.

         When Michael arrived in the emergency room, an x-ray technician heard Michael say, "Harper did it, Harper did it." A respiratory therapist heard Michael say, "Don't let him hurt me." Dr. Daniel Cole asked Michael what happened to her. Michael responded Sessions Harper raped her, tied her up, and set her house on fire. Dr. Cole asked Michael to repeat what she said, and Michael again stated Sessions Harper raped her, tied her up, and set her house on fire. Dr. Elizabeth Day questioned Michael if she knew who had done this to her. Michael responded, "Sessions Harper" and specified, "He tied me up, raped me, and left me in the basement." Dr. Dan Warlick heard Michael state Sessions Harper raped her, tied her up, and set her house on fire. Due to the severity of her injuries, Michael was airlifted to Iowa City. When Michael's mother visited her in the hospital, Michael mouthed the word "Sessions" over and over again from her hospital bed. Michael suffered third- and fourth-degree burns to sixty percent of her body, some to the bone, and her arms had to be amputated. Michael ultimately died as a result of her injuries.

         The day after the fire, McDowell read the newspaper, which included a written description and picture of Harper in connection with the fire at the Michael residence. McDowell thought the person she saw with the red car parked on the street near her home might have been Harper. McDowell approached James Leith, and the two spoke about their observations the previous morning. As a result of that discussion, James called the police.

         Upon investigation of the scene, it was discovered that all of the smoke detectors in the home had been disabled. In the basement of the home, law enforcement found charred terry cloth on the floor, a gasoline can containing a small amount of gasoline with a charred paper towel wick sticking out of the top, and a container that would normally contain paint thinner. Subsequent forensic analysis of the gasoline can confirmed it contained gasoline. Testing of the other container revealed it contained a small amount of medium petroleum product, such as paint thinner. Michael's mother, Anita, who owned the residence and lived in it with Michael, testified the paint thinner was from her garage and she would never bring it into the home when she used it. Anita also testified the gasoline can did not belong to her and she had never seen it before.

         The charred comforter Michael was wrapped in when she was found was located in the middle of the basement floor. Upon examination, a special agent with the State Fire Marshal's Office detected a relatively strong odor of gasoline and paint thinner on the comforter. A forensic analysis of the comforter revealed the presence of a mixture of gasoline and a medium petroleum product, such as paint thinner, both of which are fire accelerants or "ignitable liquids." Near the comforter, law enforcement found a roll of duct tape and telephone wire. The telephone cords initially attached to the rafters of the basement ceiling had been torn out and were dangling from the ceiling. A pair of sunglasses found in the basement near where Michael was found were submitted to the State crime lab for fingerprint and DNA analysis. Harper's fingerprints and DNA were found on the sunglasses. The gas-powered water heater in the basement had been moved to an extent that the gas flue that would normally exhaust gas vapors from the home was disconnected from the water heater.

         Michael's bedroom and its contents suffered extensive fire damage. The mattress and box spring comprising Michael's bed were placed in front of the two windows in Michael's room, presumably to block any view of the fire from outside the residence. A fire also occurred in the master bedroom on the other side of the home. The special agent testified the fires were unrelated and had completely separate origins, thus leading him to believe that each of the separate fires was intentionally set. Furthermore, the gas stove in the kitchen had been tipped over, the control knobs on the stove were in the on position, and a candle was placed underneath the stove. All in all, the fire investigator testified there were five separate origins of the fire-the master bedroom, Michael's bedroom, the gasoline can in the basement, the comforter Michael was wrapped in, and the area of the gas stove-all of which were intentionally set.

         Law enforcement found a used condom in Michael's bedroom containing Harper's DNA on the inside and Michael's DNA on the outside. Black zip-ties were also found in Michael's bedroom. Matching zip-ties were found in Harper's home pursuant to a search warrant. The plant manager of Harper's employer testified the same zip-ties were used at the business and Harper had access to them.

         Law enforcement also seized a red Oldsmobile Alero belonging to Harper's wife and known to be driven frequently by Harper. The seized Alero had a rear spoiler and a Hawaiian lei hanging from the rearview mirror. Several witnesses testified Harper was known to drive a red Alero with these characteristics. When shown pictures of the seized car at trial, McDowell and the Leiths generally testified it appeared to be the car that was in their neighborhood the morning of the fire. Upon a search of the vehicle, law enforcement found documents bearing Harper's name.

         A number of individuals close to Harper at the time of these events testified they were unable to reach Harper on his cell phone the morning of the fire and thereafter. Harper did not show up for work the day after the fire and did not provide his employer with a reason for his absence. Harper was ultimately apprehended by law enforcement in Des Moines in the early morning hours of January 11. Photographs taken by law enforcement of Harper's person ...

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