Wemark v. State

• Decision Date: 17 November 1999
• Docket Number: No. 98-586.,98-586.
• Citation: 602 N.W.2d 810
• Parties: Robert WEMARK, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

602 N.W.2d 810

Robert WEMARK, Appellant, v. STATE of Iowa, Appellee.

No. 98-586.

Supreme Court of Iowa.

November 17, 1999.

Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn & Montgomery, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, and Andrew Van Der Maaten, County Attorney, for appellee.

Considered by McGiverin, C.J., and Larson, Carter, Cady, and Andreasen,¹ JJ.

CADY, Justice.

Robert Wemark appeals from a ruling by the district court denying his application for postconviction relief based upon ineffective assistance of counsel. We affirm.

I. Background Facts and Proceedings.

Robert Wemark was found guilty of first-degree murder on August 18, 1993 following a jury trial. The victim was his wife, Melissa Wemark. She was stabbed fifteen times with a knife. Wemark was sentenced by the district court to life imprisonment. The judgment and sentence were affirmed on appeal.

On August 8, 1996, Wemark filed an application for postconviction relief. He claimed his trial attorneys were ineffective for instructing him to meet prior to trial with a medical expert retained by the State and encouraging him to disclose to the expert the location of the knife used to kill his wife. He also claimed his trial counsel were ineffective for failing to investigate potential outside influences on the jury he believed occurred during the course of the trial, and failing to properly challenge certain testimony presented by the State medical examiner.

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 claims the location of the knife should not have been disclosed, and the ability of the State to introduce it into evidence at trial prejudiced his defense.

The second claim of ineffective assistance of counsel raised by Wemark focused on his belief that the jury verdict was influenced by outside forces which he asserts his counsel failed to adequately investigate. The trial was closely followed by the media and various members of the community, including persons associated with the local domestic abuse shelter. There was extensive news coverage of the trial, and on one occasion several people appeared at trial wearing purple ribbons. There was also a claim that a juror indicated there "would be a riot" if Wemark was not convicted.

The third claim by Wemark was his defense counsel was ineffective in failing to adequately challenge the testimony of the State medical examiner concerning the nature of the stab wounds. Dr. Thomas Bennett testified some of the stab wounds were six inches deep. The blade of the knife, however, was three and one-half inches in length. Dr. Bennett explained fatty tissue can compress making the depth of the wound longer than the blade of the knife. Defense counsel did not refute this testimony, or challenge it by obtaining an independent medical expert.

The district court denied the application for postconviction relief. It found defense counsel exercised reasonable trial strategy by allowing Wemark to meet with Dr. Taylor and by encouraging him to disclose the location of the knife. It also found the admission of the knife into evidence at trial did not result in prejudice to Wemark. The district court further found there was no credible evidence of jury misconduct, and the outcome of the trial was not altered by the testimony of Dr. Bennett.

Wemark appeals. He asserts each claim of ineffective assistance of counsel was established by the evidence. Additionally, he claims, if insufficient individually, the cumulative effect of the errors was so prejudicial that it denied him a fair and impartial trial, as well as effective assistance of counsel.

II. Scope of Review.

Generally, an appeal from the denial of an application for postconviction relief is reviewed for errors of law. Fenske v. State, 592 N.W.2d 333, 338 (Iowa 1999). However, if the applicant raises constitutional issues, we review "in light of the totality of the circumstances and the record upon which the postconviction court's ruling was made." Harpster v. State, 569 N.W.2d 594, 596 (Iowa 1997) (quoting Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994)). This "totality of the circumstances" scope of review is equivalent to a de novo review. Key v. State, 577 N.W.2d 637, 639 (Iowa 1998). Wemark alleges the denial of his right to effective assistance of counsel violated his Sixth and Fourteenth Amendment rights, as well as resulted in a denial of his right to a fair trial. As these are constitutional matters, our review is de novo.

III. Ineffective Assistance of Counsel Claims.

To establish an ineffective assistance of counsel claim, the applicant must show that "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984). The test of ineffective assistance of counsel focuses on whether the performance by counsel was reasonably effective. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The applicant must show the performance fell below an objective standard of reasonableness so that counsel failed to function as guaranteed by the Sixth Amendment. Id.

There is a strong presumption that the performance of counsel falls within the wide range of reasonable professional assistance. See State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995) (citing Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 693-94). Improvident trial strategy or miscalculated tactics do not necessarily constitute ineffective assistance...