Wemark v. State, No. C00-2023-MWB (N.D. Iowa 3/6/2002), C00-2023-MWB.
| Decision Date | 06 March 2002 |
| Docket Number | No. C00-2023-MWB.,C00-2023-MWB. |
| Parties | ROBERT E. WEMARK, Petitioner, v. STATE OF IOWA, sub nominee JOHN MATHES, Warden, Newton Correctional Facility, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
Before the court is a petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Petitioner, Robert E. Wemark, is an inmate at the Newton Correctional Facility, Newton, Iowa. On August 18, 1993, following a jury trial, petitioner Wemark was convicted of first-degree murder. The parties do not dispute the following underlying facts surrounding Wemark's conviction as described by the Iowa district court in its ruling on Wemark's application for postconviction relief:
1. On January 19, 1993, the applicant Robert E. Wemark killed his wife Melissa Wemark at his home in Ridgeway, Winneshiek County, Iowa. Melissa Wemark was stabbed 15 times. Four of the wounds to her back were fatal wounds. However, anywhere from 10 to 30 minutes would have elapsed between the wounds and her death. With proper, prompt medical attention she could have survived.
2. Following the stabbing, Robert Wemark attempted to clean up the home. The murder weapon, a knife, was left in the home in a pile of junk located in the home's basement. Wemark then left the area with his two-year-old son. On January 20, 1993, Dickinson County Sheriff's Department followed a trail of bloody garments in the snow to the home of Merwyn Shorey located in rural Dickinson County. There they found Robert Wemark lying on the floor suffering from self-inflicted gunshot wounds.
Also on January 20, 1993, the body of Melissa Wemark was found in the Ridgeway residence. Wemark told medical personnel and law enforcement officers that on the previous morning he had fought with his wife and she had "fallen on a knife".
Wemark v. State, No. LACV022826, Doc. No. 19, Tab 3, at 1-2 (Iowa Dist. Ct. Mar. 14, 1998).
Petitioner Wemark filed a timely appeal of his conviction. The Iowa Court of Appeals affirmed his conviction in an unpublished decision on January 23, 1995. See State v. Wemark, No. 4-491/93-1276 (Iowa Ct. App. Jan. 23, 1995). Petitioner Wemark's application to the Iowa Supreme Court for further review was denied on April 7, 1995. After his direct appeal was denied, petitioner Wemark filed an application for postconviction relief in Iowa district court on August 2, 1996, in which he asserted claims of ineffective assistance of counsel. The Iowa District Court denied petitioner Wemark's application for postconviction relief on March 14, 1998. Petitioner Wemark appealed that decision.
The Iowa Supreme Court made the following factual findings with respect to the circumstances surrounding Wemark's claim of ineffective assistance of counsel in causing the disclosure of the location of a knife used by Wemark to stab his wife: Wemark was represented at his trial by two experienced criminal defense lawyers. Prior to trial, the two lawyers filed a notice of intent to rely upon the defense of diminished responsibility. They were confronted with an abundance of evidence gathered by law enforcement which pointed to Wemark as the perpetrator of the crime. His wife had been found dead in his home with stab wounds to her neck, chest, and back. The crime scene had been cleaned, and certain clothing had been washed. However, law enforcement authorities followed a trail of bloody clothing to an abandoned farm house where Wemark was found in a fetal position with two self-inflicted gunshot wounds. Wemark initially told authorities his wife had fallen on a knife, but he later admitted to stabbing her. There was also evidence Wemark was upset about the estrangement from his wife and had made a statement in the past inferring an intent to end the marriage with a murder-suicide. Wemark gave conflicting accounts to authorities about the location of the rifle he used to shoot himself. Investigators eventually discovered the rifle with Wemark's help, but were unable to find the knife during the months following the incident despite a prolonged search of the home.
Defense counsel employed a medical expert prior to trial to conduct a psychiatric examination of Wemark in an effort to obtain evidence to support the defense of diminished capacity. The expert examined Wemark and reported to defense counsel that he was unable to substantiate the defense.
Wemark was also scheduled to be examined by Dr. Michael Taylor, a medical expert employed by the State after Wemark filed his diminished responsibility defense. Before the scheduled interview, Wemark disclosed the location of the knife he used to stab his wife to his counsel. He had placed the knife in a pile of automotive parts under the basement steps of the house, which law enforcement authorities failed to detect during their extensive search of the home.
Defense counsel were immediately concerned they had an ethical obligation to disclose the location of the knife to the prosecution. They considered nondisclosure to be the same as concealment and an interference with police investigation. They solicited general opinions based upon hypothetical facts from a judge and three experienced lawyers, who all confirmed the presence of an ethical dilemma. However, some of the opinions may have been premised on the assumption that the knife was in the possession of defense counsel. Nevertheless, defense counsel concluded they had three options to pursue once Wemark informed them of the location of the knife. The first option was to wait for the State to search the house again and find the knife. Yet, defense counsel believed it was unlikely law enforcement would search the home a second time. The second option was to have Wemark inform Dr. Taylor of the location of the knife during the scheduled interview. Defense counsel knew Dr. Taylor would then notify the prosecutor. The third option was to engage the services of an attorney to relay the location of the knife to the prosecutor without disclosing the source of the information.
Defense counsel believed the second option could be used to Wemark's benefit. They felt voluntary disclosure could be used at trial to bolster Wemark's credibility and show the ineptitude of the police investigation. Additionally, defense counsel felt it was beneficial to Wemark to keep his scheduled appointment with Dr. Taylor despite the findings of their own expert witness. They hoped Dr. Taylor might bolster the defense of diminished responsibility.
Defense counsel informed Wemark of the ethical dilemma and the three options. They urged him to keep the appointment with Dr. Taylor and to disclose the location of the knife during the course of the examination.
Wemark was subsequently interviewed by Dr. Taylor. He informed Dr. Taylor of the location of the knife. Dr. Taylor then relayed the information to the prosecutor and the knife was removed in a second search of the home. The knife was introduced into evidence at trial and displayed by the prosecutor in closing argument. The State also conducted forensic tests on the knife prior to trial and was unable to find any fingerprints but did find traces of blood consistent with characteristics of Melissa's blood. This evidence was introduced at trial, as well as the location of the knife.
Wemark v. State, 602 N.W.2d 810, 812-13 (Iowa 1999). The Iowa Supreme Court affirmed the denial of petitioner Wemark's postconviction relief action on November 17, 1999. Id. at 818. The Iowa Supreme Court concluded that Wemark's counsel had failed to perform an essential duty when they advised him to disclose the location of the murder weapon:
In this case, the decision by defense counsel to disclose the location of the knife to the prosecutor was premised upon ethical concerns which did not require disclosure. Although tactical reasons were also considered, these tactics were a response to the faulty premise, not underlying reasons to disclose privileged information. Wemark was informed by his defense counsel that the location of the knife must be disclosed, and tactics were developed as a means to deal with the disclosure. Tactics or strategy cannot support disclosure in this case.
Id. at 817. The Iowa Supreme Court, however, found that Wemark had not been prejudiced by his counsel's breach of an essential duty:
There was overwhelming evidence that Wemark repeatedly stabbed his wife with the knife. Wemark did not deny the stabbing but claimed self-defense, lack of premeditation, and provocation. Although the location of the knife and the forensic evidence discovered from the knife ultimately may have been more helpful to the State than the defense, there was an abundance of other evidence to support premeditation and the lack of provocation independent of the knife. The knife was only a small portion of the host of evidence used by the prosecution to support its claim of first-degree murder. Aside from the evidence that Wemark hid the knife in the basement following the stabbing, there was evidence Wemark changed his clothing following the stabbing and washed Melissa's blood from the clothing he was wearing at the time of the stabbing. There was also evidence Wemark wiped blood from the floor and moved Melissa's body into a bedroom. Wemark never summoned help from neighbors or police, but fled the house. There was further evidence that the knife wounds on his body were largely superficial and self-inflicted, and done only as an after thought to enable him to claim self-defense. There was also evidence Wemark had expressed an intent to kill Melissa on more than one occasion, and was very upset and angry over the estrangement of their marriage. Some of the fifteen stab wounds in Melissa's body were in her back. Considering all the evidence, the disclosure of the knife...
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