Rivas v. State, No. 7-550/06-1883 (Iowa App. 10/24/2007)

Decision Date24 October 2007
Docket NumberNo. 7-550/06-1883,7-550/06-1883
PartiesROBERT RIVAS, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.
CourtIowa Court of Appeals

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.

Robert Rivas appeals the district court's denial of his application for postconviction relief.

AFFIRMED.

Todd A. Miler, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Jim Ward, Assistant County Attorney, for appellee.

Heard by Sackett, C.J., and Huitink and Vogel, JJ.

HUITINK, J.

Robert Rivas appeals the district court's denial of his application for postconviction relief. We affirm.

I. Background Facts and Proceedings

The record includes evidence of the following: In the early morning hours of July 22, 2002, Des Moines police officers were alerted to a potentially suicidal individual at 704 Winegardner Street. Upon responding, officers observed Rivas standing on the back deck. When Rivas saw that officers had spotted him, he turned, ran into the house, and locked the door. When Officer Brian Mathis approached the house and looked through the door, he witnessed Rivas reach for a shotgun. Officer Mathis yelled "Gun," and the officers ran for cover. Officers Mathis, Brent Harris, and Terry Mitchell then heard a shotgun blast and glass breaking. The blast had broken the sliding glass door, behind which Officer Mathis had just been standing.

Officer Mitchell attempted to reach Officer Harris, who was on the other side of the house, but turned back after more shots were fired in his direction. Officer Mitchell felt one shot was so close that he could feel it go by his hair. Officer Mathis testified he heard more than twenty-five shots come from the house in the first forty-five minutes of the ordeal. The shots destroyed much of the interior of the home. Some of the ammunition fired by Rivas struck neighboring homes. One neighboring family, the Croushores, was evacuated from their home by police. Another neighbor, Dallas Bagley, was awakened, but only became aware of the true nature of the incident the following day. After an eight-hour standoff, the matter was finally resolved when Rivas surrendered to police. Officers theorized Rivas was attempting "suicide by cop," where he would bait officers into shooting him, rather than shooting himself.

Based on this incident, the State charged Rivas with eight crimes. Rivas pled not guilty. At trial, Rivas testified about his history of depression and prior suicide attempts. After an argument with his father on July 22, Rivas wrote a suicide note; ingested his father's prescription allergy medication, cough syrup, and alcohol; found a shotgun; attempted to shoot himself; and shot his father's possessions. He claimed he was not aware officers were outside the house until he received a call from a negotiator, he did not shoot out the sliding glass door, and he had no recollection of being on the deck. Following the jury trial, Rivas was found guilty of assault with intent to inflict serious injury, in violation of Iowa Code sections 708.1 and 708.2(1) (2001); attempted murder, in violation of section 707.11; intimidation with intent, in violation of section 708.6(1); two counts of intimidation without intent, in violation of section 708.6(2); and going armed with intent, in violation of section 708.8. He was sentenced to a term of imprisonment not to exceed thirty-seven years.

Rivas appealed, asserting various instances of ineffective assistance of trial counsel. We reversed one of Rivas's convictions for intimidation without intent. State v. Rivas, No. 03-0511 (Iowa Ct. App. Jan. 14, 2004). The district court accordingly modified Rivas's sentence.

On January 17, 2006, Rivas filed his application for postconviction relief, claiming his trial counsel was ineffective in (1) failing to plead the affirmative defenses or request jury instructions on insanity, diminished responsibility, and intoxication and (2) failing to object to the State's improper closing argument. He also claimed his appellate counsel was ineffective in failing to raise these issues on direct appeal.

Trial was held July 14, 2006. The evidence consisted of Rivas's trial counsel's deposition, Dr. James Gallagher's psychological evaluation, and Dr. Jennifer Ryan's psychological evaluation.

On October 31, 2006, the district court denied Rivas's application. As to Rivas's first claim, the district court found:

Trial counsel, John Wellman, pursued a defense at trial that sought to rebut the prosecution's claim that Rivas had the intent to harm officers and neighbors. During deposition, Mr. Wellman explained his reasons for failing to pursue a defense of insanity or diminished capacity. First, Rivas told him that he was just shooting the gun to get police to leave or not come in the house. . . . Second, Wellman was told by examining physicians that "there was no defense available" based on diminished capacity. . . . Third, such defenses are typically not very successful and usually only successful when an expert supports such a defense; two experts told Wellman they could not support the defense. . . . Clearly it was a strategy decision not to pursue the affirmative defenses. It was not a case of lack of diligence. The Court concludes trial counsel was not ineffective.

. . . .

Additionally, based on the evidence presented by the State of Iowa at trial, the Court finds it unlikely that the inclusion of insanity, intoxication, or diminished responsibility instructions would have produced a different jury verdict. See State v. Propps, 376 N.W.2d 619 (Iowa 1985). For example, the evidence of Rivas running inside from the police and firing a shotgun through the door where they had been standing was strong evidence of specific intent.

As to Rivas's second claim, the district court determined the statements the prosecutor made in closing argument were not improper when read in context. According to the district court,

much of the argument offered by counsel sought to discredit the version of events offered by the defense through comparison to the physical evidence in the case and contrary testimony offered by officers at the scene. This approach, as previously stated, is proper under Graves and its progeny. Even if this Court were to find some of the above statements to be misconduct that should have been objected to, the Petitioner would still be burdened with the duty of showing a resulting prejudice.

. . . The Court does not view the errors analyzed above as having a "pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture." Strickland, 466 U.S. at 695-96. For this reason, the Court concludes the Petitioner has not established a reasonable probability of a different outcome had trial counsel objected to the prosecutor's alleged misconduct.

On appeal, Rivas argues that his trial and appellate counsel were ineffective for the reasons set forth in his application for postconviction relief.

II. Standard of Review

In general, we review postconviction relief proceedings for errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, when an applicant claims ineffective assistance of counsel under the Sixth Amendment, our review is de novo. State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001).

III. Ineffective Assistance of Counsel

To prevail on ineffective assistance of counsel claims, the applicant has the burden of proving by a preponderance of the evidence that "(1) counsel failed to perform an essential duty, and (2) prejudice resulted." Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983). With regard to the first prong, "the [applicant] must overcome the presumption that counsel was competent and show that counsel's performance was not within the range of normal competency." State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). With regard to the second prong, the applicant must show that "a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Wemark v. State, 602 N.W.2d 810, 815 (Iowa 1999). We may dispose of ineffective assistance of counsel claims if an applicant fails to meet either of these prongs. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).

A. Preservation of Error

Initially, we address the State's argument that Rivas's ineffective assistance of counsel claims have not been preserved because Rivas failed to raise these claims on direct appeal. We disagree. Recently, our supreme court held Iowa Code section 814.7(1) (2007), which was enacted in 2004 and provides that ineffective assistance of counsel claims "need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes," is retroactive. Hannan v. State, 732 N.W.2d 45, 51 (Iowa 2007). Therefore, we find Rivas was not required to raise these claims on direct appeal to preserve them for postconviction relief.

B. Failure to Plead Defenses and Request Instructions

Rivas argues that his trial counsel was ineffective in failing to plead the cited defenses and in failing to request jury instructions on insanity, diminished responsibility, and intoxication. Generally, ineffective assistance of counsel claims do not lie for counsel's exercise of judgment and are more likely to lie for counsel's lack of diligence. State v. Polly, 657 N.W.2d 462, 468 (Iowa 2003). Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not amount to ineffective assistance of counsel. State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). When counsel makes a reasonable tactical or strategic decision, we will not engage in second-guessing, nor will we interfere simply because it was unsuccessful. Fryer v. State, 325 N.W.2d 400, 413 (Iowa 1982); State v. Johnson, 534 N.W.2d 118, 127 (Iowa Ct. App. 1995).

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