                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0519
                             Filed August 16, 2017


LUIS GUZMAN-PEREZ,
      Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,

Judge.



      The applicant appeals the district court decision denying his request for

postconviction relief from his conviction for second-degree murder. AFFIRMED.



      Mark C. Meyer, Cedar Rapids, for appellant.

      Luis Guzman Perez, Anamosa, appellant pro se.

      Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant

Attorney General, for appellee State.




      Considered by Doyle, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                          2


GOODHUE, Senior Judge.

        Luis A. Guzman-Perez appeals from the denial of his request for

postconviction relief, claiming he received ineffective assistance of counsel

during the trial that led to his second-degree-murder conviction. We affirm.

        I.     Background Proceedings

        We can hardly do better than to set out in full the trial courts well-written,

well-reasoned, and comprehensive findings of fact, conclusions of law and ruling,

but in the interest of brevity, we will attempt to set out the pertinent parts of it in

an abbreviated fashion. Guzman-Perez was arrested on October 14, 2006, and

charged with first-degree murder. The trial began on February 4, 2008, and the

jury returned a verdict of guilty of second-degree murder on February 14, 2008.

Guzman-Perez’s post-trial motions were denied, and Guzman-Perez appealed.

        On appeal, counsel moved to withdraw and dismiss after concluding there

were no non-frivolous claims. The supreme court remanded the matter for the

trial court to apply the weight-of-the-evidence standard to Guzman-Perez’s

motion for a new trial. The district court reaffirmed its ruling after applying the

weight-of-the-evidence standard. The supreme court then dismissed the appeal

as frivolous but preserved any ineffective-assistance-of-counsel claims for a

postconviction (PCR) proceeding.       Guzman-Perez filed this PCR proceeding,

claiming ineffective assistance of counsel and asking that the verdict be set aside

and the matter remanded for a new trial. The relief requested was denied by the

trial court.
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      II.    Background Facts

      On October 14, 2006, Guzman-Perez and his girlfriend, Caitlin Woodruff,

proceeded to a party in Tama County at approximately midnight. In addition to

Woodruff, Guzman-Perez’s friends, Ignacio Cruz, Salvador Cruz, Alejandro

Lopez, Julio Rios, and Daniel Rodriquez-Alviz, accompanied him to the party.

Both Guzman-Perez and Salvador Cruz were carrying handguns.

      Apparently, alcoholic beverages were flowing freely at the party. Woodruff

got in a fight with another woman; Guzman-Perez and Ignacio Cruz, along with

the victim, Josh Wohlman, were involved in separating the women. Guzman-

Perez and Woodruff proceeded to leave the party. As they were leaving, a fight

developed between the group that came with Guzman-Perez and others at the

party. It is unclear whether Guzman-Perez was initially involved in the fight or

whether he was trying to break it up. In any event, Guzman-Perez and Salvador

Cruz fired their pistols into the air. Woodruff tried to take the gun away from

Guzman-Perez but she was unsuccessful and both of them fell to the ground.

Guzman-Perez testified that soon thereafter, someone grabbed him around the

neck from behind and Wohlman tackled him from the front. Several witnesses

testified that Guzman-Perez was yelling at Wohlman.

      Guzman-Perez testified that he hit the ground with Wohlman on top of him

and the gun accidently went off, striking Wohlman in the forehead and killing him.

Woodruff testified that Guzman-Perez was on his feet and Wohlman was getting

up when the gun went off. Other eyewitnesses testified variously that Guzman-

Perez was three to six feet away from Wohlman and Wohlman was trying to get

up or was standing. Chelsey Wagg, the only witness to claim she had not been
                                         4


drinking, testified that Guzman-Perez and Wohlman were facing each other when

Guzman-Perez yelled, “I will shoot you.” Other witnesses testified to Guzman-

Perez’s threat to shoot Wohlman. Rodriguez-Alviz originally told investigators

that Guzman-Perez told him he was being choked so he pointed the revolver at

Wohlman and “shot it.” Rodriguez-Alviz told a different story at the PCR hearing.

Witnesses testified that Guzman-Perez threatened to shoot Wohlman, pointed

the gun at Wohlman, and fired.

       Based on the stippling caused by unburnt powder surrounding Wohlman’s

wound, the State’s forensic expert, Victor Murillo, testified that the muzzle of the

gun could have been no more than one or two inches from the victim. Wohlman

had sutures over the wound and Murillo, a forensic expert, testified that what he

thought were stipplings could have been from a needlepoint trying to stitch

Wohlman up.     Murillo further testified that he had examined and tested the

revolver Guzman-Perez used and it took from seven-and-a-half to seven-and-

three-quarter pounds of pull on the trigger to make it fire. Witnesses on behalf of

the State, as well as witnesses called by Guzman-Perez, gave testimony

inconsistent with the statements that they had given to law enforcement taken

immediately after the shooting and also inconsistent with their prior depositions,

where depositions had been taken. There was no question that the bullet killing

Wohlman came from Guzman-Perez’s gun, but he always maintained the

shooting was an accident when the gun discharged after he and the victim fell.

When investigators interviewed the witnesses, none of them testified that the

shooting had taken place when both men were on the ground. Guzman-Perez
                                         5


immediately left the scene with some of his friends after the shooting incident,

and someone threw the gun out of the window of the car on their way home.

       At the time of arrest and booking, Guzman-Perez was wearing a black pea

coat, a black/blue-and-white-striped sweatshirt/jersey, a white t-shirt, blue jeans,

and green/white tennis shoes. The pea coat, the white t-shirt, blue jeans, and

tennis shoes were all examined and taken by the Division of Criminal

Investigation (DCI) lab for blood examination, but both of the DCI agents involved

testified they never saw the striped sweatshirt.

       The DCI agents also testified that they routinely do not take all clothing for

testing.   If an item has no evidentiary value, it is not taken.     The testing of

Guzman-Perez’s clothing did not reveal any of the victim’s blood. The blood

found on the clothing was either Guzman-Perez’s or belonged to a female. All

items were eventually returned to Guzman-Perez’s family. Luann Kitheart, the

Tama County jailer, testified that the booking sheet listed all items taken from

Guzman-Perez, including the sweatshirt, but that all items taken from Guzman-

Perez and not tested by the DCI were released to Guzman-Perez and his father,

including the striped sweatshirt. Guzman-Perez’s father claimed he did not get

the striped sweatshirt.

       Guzman-Perez filed a PCR petition, asserting counsel was ineffective in

the following respects: (1) failure to obtain the striped sweatshirt and examine it

for the victim’s DNA or request a spoliation instruction because of its destruction;

(2) failure to object to the jury instructions relating to the inference of malice

aforethought from the use of a deadly weapon; (3) failure to use an expert

witness to testify as to the unreliability of eye witness testimony and as to various
                                          6


other factual issues; (4) failure to effectively cross-examine State’s witnesses on

the location of the witnesses, the existing light at the scene, and the timeline of

the events; (5) failure to investigate lay witnesses present at the scene

supporting his claim of accident; and (6) failure to employ a crime scene

reconstructionist. He then asserts that these deficiencies when added together

warrant a new trial.

         III.   Error Preservation

         An exception to the traditional error preservation exists when the claim is

ineffective assistance of counsel. State v. Fountain, 786 N.W.2d 260, 262-63

(Iowa 2010).

         IV.    Standard of Review

         Appeals from the district court decision denying a request for

postconviction relief are ordinarily reviewed for corrections of errors at law, but

when a constitutional issue such as a claim of ineffective assistance of counsel is

involved, it is reviewed de novo. Lemasters v. State, 821 N.W.2d 856, 862 (Iowa

2012).

         V.     Merits

         To prevail on a claim of ineffective assistance of counsel, the claimant

must prove by a preponderance of the evidence that: (1) counsel failed to

perform an essential duty and (2) prejudice resulted. Ledezma v. State, 626

N.W.2d 134, 142 (Iowa 2001). A claim of ineffective assistance must overcome

the presumption that counsel is competent. Taylor v. State, 352 N.W.2d 683,

685 (Iowa 1984). An accused is not entitled to perfect representation but only

that level of representation that is within the normal range of competency. State
                                         7

v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). Strategic choices made after proper

investigation are virtually unassailable.    Ledezma, 626 N.W.2d at 143.           In

reviewing counsel’s effectiveness, we do not take on the role of a Monday

morning quarterback and view the decisions with 20/20 hindsight. Fryer v. State,

325 N.W.2d 400, 414 (Iowa 1982). For relief to be granted, there must be a

determination that, but for ineffective assistance, there is a reasonable probability

that the result would have been different.        Ledezma, 626 N.W.2d at 145.

Counsel is not ineffective for failing to make a meritless claim. State v. Brubaker,

805 N.W.2d 164, 171 (Iowa 2011). We will consider the claims of ineffective

assistance of counsel issue by issue.

       A.     The Striped Shirt

       Guzman-Perez places importance on the striped sweatshirt because it

could have had blood on it that might indicate the victim was shot at very close

range, consistent with Guzman-Perez’s “accident” testimony. The testimony of

Kitheart, the Tama County jailer, was that everything seized was turned over to

the DCI and those items not seized were turned over to Guzman-Perez’s father.

She further testified that if the sweatshirt had blood stains on it, she would have

retained it and turned it over to the DCI. She testified that a murder is unusual in

Tama County, she specifically remembers the striped sweatshirt, and it did not

have any blood stains on it. There was, in fact, no testimony from Guzman-

Perez or any witnesses that the sweatshirt had blood on it. Guzman-Perez was

wearing his pea coat over his shirt, and the coat was turned over to the DCI.

Wohlman’s blood was not found on any of the Guzman-Perez clothing turned

over to the DCI.     Guzman-Perez did not advise his trial counsel that the
                                         8


sweatshirt had blood on it, and there was no proof that it did. Counsel testified

that if he had been told there was blood on the sweatshirt, he would have made

every effort to find it.

        Guzman-Perez asserts that because of the absence of the sweatshirt, the

jury should have been given an instruction allowing it to conclude that if the

sweatshirt had been produced, it would have been favorable to him and

unfavorable to the State. See State v. Langlet, 283 N.W.2d 330, 333 (Iowa

1979). In order to give such an instruction, there must be substantial evidence

that: (1) the item (sweatshirt) was in evidence; (2) the evidence was in the

possession of or under the control of the State; (3) the evidence would have

been admissible; and (4) the party responsible for its destruction did so

intentionally. See State v. Hartsfield, 681 N.W.2d 626, 631 (Iowa 2004).

        The trial court considered the credibility of the witnesses and determined

the sweatshirt had been turned over to Guzman-Perez’s father on December 18,

2007.    There was no evidence the State intentionally destroyed it or that it

contained any relevant evidence. Counsel did not have a duty to request a

spoliation instruction because the facts fell far short from permitting one. The

sweatshirt appears to be a Guzman-Perez afterthought, and trial counsel had no

reason to think it had any evidentiary value. Counsel did not have a duty to

investigate its location.

        B.     Malice Aforethought Instruction

        It was necessary for the jury to find that Guzman-Perez acted with malice

aforethought in order to find he was guilty of second-degree murder. See Iowa

Code § 707.1—.3 (2005). The jury was instructed that:
                                        9


              “Malice” is a state of mind which leads one to intentionally do
      a wrongful act to the injury of another out of actual hatred or with an
      evil or unlawful purpose. Malice may be established by evidence of
      actual hatred or by proof of a deliberate intent to do injury. Malice
      may be found from the acts and conduct of the defendant and the
      means used in doing the wrongful and injurious act.
              “Malice aforethought” is a fixed purpose or design to do
      some physical harm to another which exists before the act is
      committed. It does not have to exist for any particular length of
      time.
              Malice aforethought may be inferred from the defendant’s
      use of a dangerous weapon.

      Guzman-Perez’s trial counsel did not object to the instruction, which is a

verbatim rendition of the uniform instruction.    Guzman-Perez contended that

counsel should have requested an additional instruction stating as follows:

              Malice aforethought may be but does not have to be inferred
      from the use of a dangerous weapon in the absence of evidence to
      the contrary. This inference may be rebutted by evidence showing
      the killing was accidental, under provocation, or because of mental
      incapacity.

      The instruction used by the trial court was requested by both parties. It is

a correct statement of law, see State v. Ambrose, 861 N.W.2d 550, 559 (Iowa

2015), and Guzman-Perez still does not contend otherwise. The instruction used

only permits the jury to infer malice aforethought from the use of a dangerous

weapon. The language used does not instruct the jury that they are required to

make such an inference. Guzman-Perez’s counsel emphasized the permissive

nature of the inference in argument. The jury was also instructed that Guzman-

Perez must have been aware of doing the act and acted voluntarily, and that

means his actions were not by mistake or accident.

      Inference instructions, such as the one used in Ambrose, should be used

with care. Id at 560. Ambrose sets out a hypothetical where one of two parties is
                                        10


in a fight and picks up a rock and kills another and questions the applicability of

the inference instruction in such a case.       Id.   We are a far cry from the

hypothetical set out in Ambrose. Guzman-Perez made threats to kill, brought the

gun with him to the party, and had the gun in his possession. The gun was

loaded, and he successfully resisted an attempt to have the gun taken from him.

The use of the inference instruction here presents less of a question than of its

use in a recently decided case. See State v. Green, 896 N.W.2d 770, 781 (Iowa

2017). In the Green case, there was no evidence of threats, the dangerous

weapon was a baseball bat, and there was no evidence the perpetrator had

brought the bat to the altercation.   Id.    A uniform instruction was used, and

normally, we are slow to disapprove of uniform instructions.        Ambrose, 861

N.W.2d at 560.

      Our objective when reviewing a trial court’s instruction is not to determine

if some other instruction would have been preferable but whether the instruction

actually given accurately portrayed the applicable law to the jury.       State v.

Bousman, 276 N.W.2d 421, 422 (Iowa 1979). Counsel had no duty to object to

the inference instruction used.

      C.     Failure to Retain Expert Witnesses

      1.     Effect of Alcohol on Perception

      It appears that all but one of the witnesses to the incident had been

drinking alcoholic beverages. This includes Guzman-Perez, those witnesses that

testified on his behalf, and those witnesses he says counsel should have called.

Wagg was the only witness that said she had not been drinking, and her

testimony was prejudicial to Guzman-Perez. Counsel believed that the effects of
                                        11


alcohol on one’s perception would be well known to the jury, in any event and an

expert’s testimony would have not been helpful to the jury or to Guzman-Perez.

       2.     Crime Scene Reconstructionist

       In the PCR proceeding, Guzman-Perez called a forensic reconstructionist,

Wayne Hill Sr. Hill basically concurred with the State’s witness, Murillo, and the

testimony of the associate State medical examiner. Neither Dr. Hill nor Murillo

were able to determine whether Wohlman was standing, crouching, or on the

ground when he was shot. The testimony of Murillo was effectively used by

Guzman-Perez’s counsel to buttress his claim of an accident.                 Dr. Hill

emphasized the stippling that showed a close shot but was unable to say that the

stitching or the attempted stitching could not be confused with stippling.

       3.     Lighting Expert

       There is no reason to think that a lighting study would have been of any

assistance to Guzman-Perez. The State had done a lighting study of the area in

the belief it would have assisted the prosecution by buttressing the testimony of

the State’s eye witnesses. Guzman-Perez’s counsel also determined it would

have been helpful to the State and successfully objected to the testimony, and it

was not permitted to come into evidence.

       4.     An Expert on Eye Witness Testimony and Memory Lapses

       Guzman-Perez and witnesses he called to testify are subject to the same

eye witness impairments and memory lapses as are the State’s witnesses. The

testimony would have been of little or no value to Guzman-Perez.
                                       12


      5.     Firearms Expert

      Guzman-Perez’s expert in the post-trial hearing assumed, if the incident

had happened as related by the State’s witnesses, then Wohlman would have

had time to assume a defensive position, which in his opinion is inconsistent with

the almost-level trajectory of the bullet after entering Wohlman’s forehead. The

expert testified, in essence, that Guzman-Perez may have involuntarily pulled the

trigger as a reflex to the tackling by Wohlman. Guzman-Perez had a relatively

small revolver, and there is no evidence that a probably drunk Wohlman knew

Guzman-Perez had a real gun or was in fact intending to use it and could

process what was happening. There was consistency among all the witnesses of

both the prosecution and the defense that the events all happened very quickly.

      6.     Guzman-Perez’s Uncalled Witnesses

      Some of the witnesses that Guzman-Perez contends should have been

called were friends of Guzman-Perez, and at least one was a cousin. Their

rendition of the events at the PCR hearing was effectively and repeatedly

impeached by prior inconsistent statements they had made to the investigator

immediately after the incident and some statements that had been made later in

depositions. Their testimony at the PCR hearing was primarily to the effect that

Guzman-Perez had not been involved in the fight before the shooting. This PCR

testimony would have been more helpful to defeat the issue of premeditation

required if a first-degree-murder verdict had been returned.          There was

substantial agreement among the witnesses that Wohlman had tackled Guzman-

Perez from the front prior to the shooting and that someone had attacked

Guzman-Perez from behind. That in itself would qualify as adversarial physical
                                         13


conduct or fighting. Each witness to the shooting called by Guzman-Perez in the

PCR hearing testified that Guzman-Perez had been tackled by Wohlman.

       In each case where Guzman-Perez now claims that an expert would have

been helpful, trial court counsel testified they had considered the use of an expert

but decided against it for one reason or another. Trial counsel also considered

calling more of Guzman-Perez’s friends as witnesses but in each case decided

they would be consistently impeached, as they were in the PCR hearing.

Counsel testified that in each case, determinations were made as a matter of

strategy and Guzman-Perez agreed with the decision of counsel regarding the

use of an expert or the defendant’s witnesses at the time of each trial. We

determine Guzman-Perez has not shown he received ineffective assistance due

to counsel’s failure to call expert witnesses.

       D.     Ineffective Cross-Examination

       Guzman-Perez asserts that counsel did not effectively cross-examine the

State’s witnesses. Specifically, he asserts there were inconsistent statements

made either in previous statements or depositions of the State’s witnesses that

were not brought out by counsel. Counsel was able to discredit each of the State

witnesses to the crime by use of prior contradictory statements either when they

were deposed or when the investigation took place.         Not every inconsistent

statement was pointed out, but counsel testified that in their experience, there is

a point after which such an approach becomes counterproductive. The trial court

concluded “that the quality of preparation and the cross-examination conducted

by trial counsel far exceeded any minimum threshold of competency.” We agree.
                                       14

        E.     Cumulative Errors

        In order to rely on the concept of cumulative error in an ineffective-

assistance claim, the petitioner must establish that at least one of the claims

presented created an instance where counsel failed to exercise an essential

duty.    In that event, the cumulative error can be considered to establish

prejudice. State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012). We have failed to

find any instance where counsel failed to perform an essential duty. Therefore

the concept of cumulative effect is not applicable. See id. Finally, if counsel

failed any duties so that the cumulative effect of prejudice could be considered,

we find no probability the result would have been different. The evidence against

Guzman-Perez was overwhelming.

        VI.    Ineffective Assistance of Appellate Counsel

        Appellate counsel on the direct appeal asked to withdraw and requested

the appeal be dismissed as a frivolous appeal. The supreme court sent the

matter back to the trial court to have a new trial determination based on the

weight-of-the-evidence standard. Guzman-Perez asserts the appeal should have

been pursued more vigorously but fails to be more specific. It is not enough to

simply complain counsel should have done a better job. Dunbar v. State, 515

N.W.2d 12, 15 (1994).

        To the extent that Guzman-Perez attacks the credibility of the witnesses,

credibility is a matter for the jury to decide. Gail v. Clark, 410 N.W.2d 662, 671

(Iowa 1987).    We believe that to the extent Guzman-Perez has raised legal

issues, they are encompassed within our ruling on this appeal.
                                  15


The denial of postconviction relief is affirmed.

AFFIRMED.
