                   IN THE COURT OF APPEALS OF IOWA

                                  No. 12-1513
                              Filed May 14, 2014


TYLER RAY OBERHART,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Brad McCall,

Judge.



      A postconviction-relief applicant contends his trial attorneys were

ineffective in failing to seek suppression of his videotaped statement to police.

AFFIRMED.




      John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney

General, and Michael K. Jacobsen, County Attorney, for appellee State.




      Considered by Danilson, P.J., and Vaitheswaran and Mullins, JJ.
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VAITHESWARAN, J.

       Tyler Oberhart appeals the denial of his postconviction-relief application.

He contends his trial attorneys were ineffective in failing to seek suppression of

his videotaped statement to police.

I.     Background Proceedings

       Police investigated seventeen-year-old Oberhart in connection with the

death of a young man, Jerry Pittman. During the investigation, Oberhart was

read Miranda1 warnings that applied to juveniles. The warnings included the

following statement: “Anything you say can be used against you in a court of law.

(This includes the adult criminal court if the Juvenile Court waives jurisdiction).”

The warning was inaccurate because teens who are sixteen or older and are

charged with a forcible felony “are excluded from the jurisdiction of the juvenile

court and shall be prosecuted as otherwise provided by law unless the court

transfers jurisdiction of the child to the juvenile court upon motion and for good

cause.” Iowa Code § 232.8(1)(c) (2007). After the warning was given, police

obtained a videotaped confession from Oberhart.

       Oberhart was subsequently found guilty of first-degree murder. On direct

appeal, he claimed, in part, that his trial attorneys were ineffective in failing to

seek suppression of his statement. He specifically asserted that the juvenile

Miranda warnings implied a false promise of leniency that rendered his statement

involuntary. See State v. Oberhart, 789 N.W.2d 161, 162 (Iowa 2010). This

court addressed and rejected the claim. See State v. Oberhart, No. 08-1756,

1
  “In Miranda the Supreme Court mandated that during custodial interrogation, an
accused be advised of certain constitutional rights.” State v. Davis, 446 N.W.2d 785,
788 (Iowa 1989) (citing Miranda v. Arizona, 384 U.S. 436 (1966)).
                                         3


2010 WL 2079698, at *5 (Iowa Ct. App. May 26, 2010). On further review, the

Iowa Supreme Court vacated our opinion, finding the record inadequate to

decide the issue. See Oberhart, 789 N.W.2d at 163. The court preserved the

issue for postconviction relief. Id.

       Oberhart filed an application for postconviction relief, which the district

court denied following a hearing at which a deposition of one of his trial attorneys

was admitted. Oberhart appealed.

II.    Analysis

       Oberhart reiterates that his trial attorneys should have moved to suppress

his videotaped confession on the ground that the confession was involuntary.

Although he does not directly address the question of whether the juvenile

Miranda warnings contained a promise of leniency—a promise that he would be

tried in juvenile rather than adult court—that is the underlying premise of his

argument. The State responds that (1) the officers “never promised” Oberhart

“would be charged in juvenile court,” (2) the juvenile Miranda warning “did not

induce Oberhart to speak with police because he decided to talk before

receiving” that warning, and (3) “suppression of Oberhart’s videotaped

statements [did] not fit with a reasonable trial strategy chosen by his experienced

trial attorneys.” On our de novo review, we find the State’s third contention

dispositive. See Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012) (setting

forth the standard of review).

       “To establish an ineffective-assistance-of-counsel claim, a claimant must

prove by a preponderance of the evidence ‘(1) his trial counsel failed to perform

an essential duty, and (2) this failure resulted in prejudice.’”          State v.
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Madsen, 813 N.W.2d 714, 724 (Iowa 2012) (quoting Strickland v. Washington,

466 U.S. 668, 687–88 (1984)).           “[R]easonable strategic considerations may

justify the rejection of one theory of defense in favor of another theory reasonably

perceived by counsel to be in the accused’s best interest.” Anfinson v. State,

758 N.W.2d 496, 501 (Iowa 2008).2

       One of Oberhart’s attorneys testified by deposition that the defense theory

was not to deny Oberhart’s involvement but to convince the jury Oberhart acted

in the heat of passion, which would result in conviction for “voluntary

manslaughter as opposed to murder I or murder II.” He agreed that, to support

this defense, Oberhart either would have to testify or would have to present his

version of events to the jury in some other way. The defense team and Oberhart

jointly decided not to have him testify because taking the stand would subject him

to cross-examination. Instead, the team relied on his videotaped statement.

       During closing argument, counsel told the jury that Oberhart was provoked

into stabbing Pittman after Pittman struck him “in the face,” and Oberhart reacted

“without thinking.” He went on to advise the jury that Oberhart “did not have to

take the stand” and the jury could not “draw any inference” from his failure to do

so, but, even without his live testimony, the jury “heard from” Oberhart through


2
  In State v. Madsen, 813 N.W.2d 714, 724 (Iowa 2012) the court stated on direct appeal
that there is “no strategic or tactical reason for not filing” a suppression motion based on
the evidentiary test of promissory leniency. The court cited State v. McCoy, 692 N.W.2d
6, 27 (Iowa 2005) for this proposition. In McCoy, the Iowa Supreme Court had
remanded an ineffective-assistance-of-counsel claim based on promissory leniency to
allow counsel the opportunity to explain his omission. McCoy, 692 N.W.2d at 27. Based
on counsel’s testimony at the remand hearing that “he could think of no grounds for filing
a motion to suppress the statements,” the court stated, “There was therefore no strategic
or tactical reason for not filing the motion.” Id. Reading the two opinions together, we
conclude the supreme court did not foreclose an examination of possible strategic
reasons for failing to file a motion to suppress based on promissory leniency.
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his statement to the officer. The attorney acknowledged changes in Oberhart’s

story through the course of the interview, but likened the changes to the evolving

stories of the other young people involved in the altercation. He pointed out that

Oberhart did not have to tell the officer anything, but chose to “c[o]me clean” and

admit to stabbing Pittman twice. Counsel continued,

       I’m not going to fool you, I know [Oberhart] admitted [that] he in fact
       stabbed Jerry Pittman in the leg. I believe he beat Jerry Pittman on
       the face. He was mad. He had been hit. He was reacting like
       many other people would have reacted. I am not going to tell you
       he didn’t do those things. But has the State proved beyond a
       reasonable doubt that there was premeditation, that there was
       willfulness, that there was malice, there was consideration,
       deliberation, reflection, thought given into his actions, or were they
       a result of a provocation, a serious impulse or emotional outburst
       on his part that he could not control after being hit . . . ?

We conclude counsel made a reasonable strategic decision to rely on the

videotaped statement. See Fryer v. State, 325 N.W.2d 400, 413 (Iowa 1982)

(finding an attorney acted strategically, because “by allowing [the defendant’s]

statement . . . to be admitted in evidence, defense counsel had [the defendant’s]

largely exculpatory version of the affair before the jury without [the defendant]

being required to take the stand and be subjected to cross-examination”).

Accordingly, counsel did not breach an essential duty in failing to move for

suppression of the statement, and Oberhart’s ineffective-assistance-of-counsel

claim fails.

       We affirm the denial of Oberhart’s postconviction-relief application.

       AFFIRMED.
