                     IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0004
                               Filed January 28, 2015

PAUL JAMES HILL,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Woodbury County, Steven J.

Andreasen, Judge.



       Defendant appeals the dismissal of his application for postconviction relief.

REVERSED AND REMANDED.



       Hannah M. Vellinga and Rodney D. Vellinga of Corbett, Anderson,

Corbett, Vellinga & Irvin, L.L.P., for appellant.

       Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, Patrick J. Jennings, County Attorney, and Jill Esteves, Assistant County

Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
                                          2



MCDONALD, J.

       Paul Hill appeals the dismissal of his application for postconviction relief.

In his application for postconviction relief, Hill challenged his conviction for child

endangerment resulting in death, in violation of Iowa Code section 726.6(1)

(2009). The conviction arose out of the death of Hill’s child, T.H. Hill contends

the postconviction court erred in concluding Hill was not prejudiced within the

meaning of Strickland v. Washington, 466 U.S. 668, 687 (1984), by trial counsel’s

failure to move to suppress statements Hill made to the police.

                                          I.

       T.H. was born to Hill and Kayla Hegge in October 2008, and deceased on

February 17, 2009. The record reflects the child was ill but recuperating prior to

death. During the morning of February 12, 2009, T.H. burped or vomited blood

and two blood clots while being fed by the parents’ childcare provider. T.H. was

taken to the doctor and found to have a slightly elevated temperature, fever,

chills, and a cough.      T.H. was diagnosed with bronchitis and placed on

antibiotics. T.H. slept more than usual that day and also had trouble feeding,

each feed lasting three times longer than normal and interspersed with gagging.

The following day, T.H.’s blood work had normalized, but her fever had slightly

increased. Hegge stayed home with T.H. On February 15, T.H. resumed more

normal feeding patterns. Hegge felt T.H. was well enough on the morning of

February 16 to return to daycare. T.H. went to daycare on the 16th without

incident.
                                        3



      On the 17th Hegge left for work early in the morning, and Hill prepared to

take T.H. to daycare, which was the parents’ usual practice. T.H. appeared fine

to Hegge at the time Hegge left for work.          The facts and circumstances

surrounding T.H.’s death were described in Hill’s direct appeal:

              On the morning of February 17, 2009, Hill was alone with his
      four-month-old daughter, T.H., at the Sioux City home he shared
      with T.H.’s mother, Kayla. Hill called Kayla twice at work around
      8:10 a.m. Kayla did not answer, but called him back at 8:14 a.m.
      Hill said T.H. was gasping for breath. Kayla told him to call 911.
      Hill called 911 at 8:21 a.m.:
                     HILL: My four-year-old daughter, she’s not—
              she has a pulse, but she’s taking like six seconds or
              something between breaths and she’s not really
              responding and she’s really limp.
                     OPERATOR: Okay.          Do you know what
              happened to her?
                     HILL: I don’t know. I was putting her in the car
              seat to go to work, and she was gasping like noise
              breathing out.
              Kayla and her mother arrived home as Hill was talking to the
      911 operator. T.H. was on the floor. Firefighters soon arrived and
      began treating T.H. Paramedics arrived and transported her to
      Mercy Medical Center, where she was admitted at 8:40 a.m. She
      was then life-flighted to the Children’s Hospital in Omaha,
      Nebraska. T.H. was pronounced dead at 3:18 p.m. Her death was
      the result of lacerations to the mesenteric artery. She also had rib
      fractures and subdural hemorrhaging.
              At approximately 6:00 p.m. that evening, Hill spoke with
      Sioux City police detectives Ryan Bertrand and Bruce Hokel, as
      well as Iowa Department of Human Services worker Chantel Rol, in
      the hospital break room. Detective Bertrand immediately read Hill
      his Miranda rights and asked if he understood those rights. Hill
      said he understood and agreed to speak to the group.
              After some preliminary questions, Hill described his morning
      with T.H. After he got himself ready for work, Hill picked T.H. up
      from her bassinet and changed her diaper. Her stool was liquidy,
      but she was not fussy. While changing her diaper, Hill noticed “a
      big bruise” on T.H.’s stomach. Hill stated, “[S]he’s making this like
      crying face, but she’s not crying. And it seemed like she was
      breathing okay.” Hill continued to explain:
              [S]he was—her head was going back and forth like
              this and—well, I picked her up. She kind of took a
                                    4



       deep breath. And when I laid her, I held her like this
       [on his shoulder with her head up] and . . . grabbed
       the car seat, put it on the table. And when I laid her
       down, she did a gasp like [imitating], like that. And,
       wow, that’s kind of—she’s never done that before. I
       was like—kind of messed around with her a little bit.
       She kind of was looking around, bobbing her head
       back and forth. And when I took her out, she was
       limp. Then she started kind of losing color in her lips.
       And that’s when I laid her on the couch. And from
       there I don’t know why I tried calling Kayla again. It
       wouldn’t pick up. And then she called.
       Detectives Bertrand and Hokel told Hill his version of the
events did not coincide with what the doctors were saying had
happened to T.H. At that time, doctors believed T.H.’s spleen had
been injured. The detectives pressed Hill to tell the truth and often
asked questions together. The manner of the questioning was
hostile, intimidating, and demanding. Hill maintained he did not do
anything, but also stated that no one else could have been
responsible for T.H.’s injuries. He repeatedly denied hurting the
child.
       After approximately four and a half hours, Hill admitted his
involvement in T.H.’s injuries and death. He stated that he had
gotten frustrated with T.H.’s snowsuit that “was too bulky” and the
carseat that “wouldn't buckle,” and admitted he might have hit or
pushed too hard on T.H. while he was trying to buckle her in the car
seat. He explained that as he was trying to buckle the car seat, he
“grabbed it, and it was—I don’t think I did it too hard, but I just did it
real quick.” He later admitted that “frustration” hit him for a “split
second” and he “definitely did it too hard . . . [t]here’s no maybes
about it.” He also said he “freaked out” afterwards and may have
shaken T.H. to try to revive her. Hill insisted he was not mad at
T.H. and had not purposely tried to hurt her. He asked detectives
what was going to happen to him and how long he was going to go
to prison. He apologized for not admitting what had happened
earlier and explained that he “never really thought till you
mentioned the car seat. It hit me. I was just scared. Did you go
tell my parents?”
       The next day, Dr. Thomas Carroll, the county medical
examiner, performed an autopsy on T.H. Dr. Carroll observed
three bruises on T.H.’s abdomen. When he opened T.H.’s
abdomen, he discovered a large volume of blood and two
lacerations to T.H.’s mysentery [sic]. Dr. Carroll opined the injuries
were the result of blunt force trauma by “some instrument or fist” to
T.H. An x-ray indicated several rib fractures, which Dr. Carroll
determined occurred several days prior to T.H.’s death. Finally, Dr.
                                            5



         Carroll observed a severe, closed-head injury to T.H.’s brain, which
         he opined occurred at the same time as the mesentery injuries. Dr.
         Carroll opined T.H.’s death was caused by the laceration to her
         abdomen, an inflicted injury. However, he further stated T.H. could
         have died from the closed-head injury alone. Dr. Carroll stated the
         manner of T.H.’s death was homicide, and “she died from inflicted
         injury.”

State v. Hill, No. 10-1328, 2011 WL 3688989, at *1-2 (Iowa Ct. App. Aug. 24,

2011).

         Hill was arrested and charged with child endangerment resulting in death,

in violation of Iowa Code section 726.6(1) and (4), and multiple acts of child

endangerment, in violation of Iowa Code section 726.6A. Hill waived his right to

jury trial, and the case was tried over eight days to the district court. At trial, Hill’s

counsel did not move to suppress any part of Hill’s statements made at the

hospital to the investigating detectives.       The statements were admitted into

evidence. The district court found Hill guilty of child endangerment resulting in

death and acquitted him of multiple acts of child endangerment.                 On direct

appeal,     Hill   contended   his   counsel     provided    constitutionally    deficient

representation by failing to move to suppress Hill’s statements to the detectives.

This court preserved Hill’s claim for postconviction relief proceedings. Hill, 2011

WL 3688989, at *4.

         In his application for postconviction relief, Hill claimed the incriminating

statements he made to the detectives were obtained in violation of his rights

under the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and article I, section 9 of the Iowa Constitution. He further claimed

his trial counsel was constitutionally ineffective for failing to move to suppress
                                              6



these statements. The postconviction court found Hill’s trial counsel should have

moved to suppress part of Hill’s statements.          Specifically, the postconviction

court found that Hill asked to terminate the interview and leave on at least eleven

occasions.    In response to one of the earlier requests to leave, one of the

detectives told Hill, “I’ll decide when it’s time for us to go” and then continued with

questioning. The postconviction court concluded the interview, after this point,

constituted a custodial interrogation within the meaning of Miranda v. Arizona,

384 U.S. 436 (1966), and that Hill’s incriminating statements were obtained in

violation of Hill’s right to remain silent.

       While the postconviction court concluded some of Hill’s statements would

have been suppressed had Hill’s trial counsel filed a motion to suppress, the

postconviction court ultimately concluded Hill was not prejudiced by this failure

and held:

       The Court is not convinced a reasonable probability exists that,
       without Hill’s incriminating statements, the outcome of his trial
       would have been different. While the trial court may have
       mentioned Hill’s admissions in its decision, the trial court also
       reached the conclusion that the medical testimony presented by the
       State at trial was more credible than the opposing medical
       testimony presented by Hill. The Court does not think [the trial
       court judge] rested his verdict on Hill’s statements; rather, the Court
       concludes [the trial court judge] simply referenced the incriminating
       statements as another brick in the wall of circumstantial evidence.
       The Court’s confidence in the outcome of the case is not
       undermined without Hill’s admissions.

The postconviction court then granted the State’s motion for summary judgment,

denied Hill’s cross-motion for summary judgment, and dismissed Hill’s

application for postconviction relief. Hill timely filed this appeal.
                                         7



                                         II.

       “Though rulings on postconviction relief are usually reviewed for a

correction of errors at law, when an applicant asserts a constitutional claim as the

basis for postconviction relief, we review that claim de novo.” Ennenga v. State,

812 N.W.2d 696, 701 (Iowa 2012). To establish a claim for ineffective assistance

of counsel, Hill has the burden of establishing “(1) his trial counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice.” State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). Failure to prove either element is fatal

to the claim. See State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). To prove

counsel failed to perform an essential duty, Hill must establish his counsel’s

representation dropped below an objective standard of reasonableness. See

Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014). Regarding prejudice, the

ultimate inquiry is whether trial counsel’s allegedly deficient performance caused

a complete “breakdown in the adversary process” such that the conviction is

unreliable. See Strickland, 466 U.S. at 687. This requires the defendant to

establish “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Lamasters v.

State, 821 N.W.2d 856, 866 (Iowa 2012).

                                        A.

       We first address the issue of whether trial counsel breached an essential

duty. Hill argues the postconviction court properly determined counsel breached

an essential duty by failing to move to suppress statements obtained in violation

of Hill’s right to remain silent. The State does not present any argument on the
                                         8



issue, explaining it “accepts for the sake [of] argument the postconviction court’s

conclusion that Hill was in custody and unambiguously invoked his right to

remain silent.”   The State then cites authority for the proposition that the

successful party on summary judgment need not cross-appeal to preserve error

with respect to an issue urged but ignored or rejected in the district court. We

agree with that general proposition, as far as it goes. However, the fact that the

issue is preserved for appellate review does not obviate the need to actually

present argument on the issue.           To address this issue under these

circumstances, we would be obliged “to assume a partisan role and undertake

the appell[ee]’s research and advocacy.” Inghram v. Dairyland Mut. Ins. Co., 215

N.W.2d 239, 240 (Iowa 1974) (dismissing an appeal based on the failure to cite

any authority).   We decline to do so.       We conclude the State has waived

argument on this point.     See Iowa R. App. P. 6.903(g)(3) (“Failure to cite

authority in support of an issue may be deemed waiver of that issue.”); Baker v.

City of Iowa City, 750 N.W.2d 93, 102-03 (Iowa 2008); State v. Miranda, 672

N.W.2d 753, 761 (Iowa 2003) (holding State waived issue relating to custodial

interrogation by failing to address issue); Inghram, 215 N.W.2d at 240. We thus

conclude the district court did not err in finding counsel breached an essential

duty owed Hill by failing to move to suppress Hill’s statements.

                                        B.

      We next address the issue of whether the district court erred in finding Hill

did not establish prejudice.   The State’s theory of the case was that on the

morning of February 17 Hill became frustrated while buckling T.H. into her car
                                          9



seat and intentionally struck T.H. in the abdomen or applied excessive force to

her abdomen causing acute abdominal injury resulting in death. Aside from Hill’s

incriminating statements, the most important evidence in support of the State’s

case was medical evidence suggesting T.H. would have been immediately

symptomatic following injury.     Thus, the State argues, the medical evidence

“conclusively established that the trauma to the abdomen occurred during the

morning of February 17 when Hill was the only person who had care and control

of the child.” The theory of Hill’s case was that the injury causing T.H.’s death

could not have occurred on the day she died, but rather must have occurred

earlier when T.H. was not in Hill’s exclusive control and care. We conclude that

without Hill’s incriminating statements a reasonable probability exists that the

result of his trial would have been different.

       First, contrary to the State’s assertion, the medical evidence regarding the

timing and cause of the injury (and thus who potentially could have caused it)

was disputed at trial. By way of example, the defendant’s witness, Dr. Ophoven,

testified that the injury resulting in T.H.’s death could not have occurred on the

morning of T.H.’s death:

              Q: Doctor, how did [T.H.] die?              A: She died with
       complications from blunt force trauma to the abdomen.
              ....
              Q: Okay. Do you have an opinion within a reasonable
       degree of medical certainty as to the approximate sequence and
       timing of events that led to the rupture of the artery?
              ....
              A: It’s my opinion that there is evidence to absolute medical
       certainty that there was trauma to the mesenteric tissues of her
       abdomen that preceded her fatal collapse by days. In my opinion,
       that makes the determination of the exact cause of the final rupture
                                         10



       of the vessels an unanswerable question at this point, but it is
       entirely consistent with complications from the initial trauma.
               Q: And do you have an opinion . . . that the rupture of the
       mesenteric artery then was . . . a number of days after the blunt
       force trauma to the abdomen? A: It’s entirely consistent with that
       sequence of events, yes, sir.

       She also testified:

       A: Is [the blunt force trauma] fresh? No. Is there evidence of
       healing? Absolutely. Does that take this case out of a fresh blunt
       force trauma occurring on the day the child comes to the hospital
       as the primary cause of her death? Absolutely.

The State argues this testimony does not actually conflict with the finding that Hill

may have struck T.H. on the morning of the 17th. That is true. This testimony,

however, does directly conflict with the finding that Hill stuck a blow resulting in

death on the morning of the 17th while T.H. was in Hill’s exclusive care and

control.

       Second, a defendant’s incriminating statements are incredibly powerful in

a criminal trial. See State v. Polk, 812 N.W.2d 670, 674 (Iowa 2012) (“‘It is

obvious that confession evidence is of great importance in a criminal trial.’”

(citation omitted)).   “‘A confession is like no other evidence.        Indeed, the

defendant’s own confession is probably the most probative and damaging

evidence that can be admitted against him.’” State v. Madsen, 813 N.W.2d 714,

724 (Iowa 2012) (quoting Arizona v. Fulminante, 499 U.S. 279, 296 (1991)). Not

only do the defendant’s statements have evidentiary value commensurate with

the content of the statement, to the extent the incriminating statement is

tantamount to a confession of guilt, the statement casts a long shadow on the

remainder of the evidence—laying foundation for operation of cognitive bias in
                                           11



which the credibility of the defendant’s evidence is diminished, while the

credibility of the State’s evidence is enhanced. See Keith A. Findley & Michael

S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis.

L. Rev. 291, 308-317 (2006) (discussing cognitive bias created by perception of

guilt). This is not to say the trial court here was biased against the defendant, as

that term is normally understood. Instead, it is merely an acknowledgement that

the tendency to give greater weight to information that supports existing beliefs

than to information that runs counter to them is innate. See id.

       Third, unlike most claims of ineffective assistance of counsel, we have

fairly direct evidence regarding the impact Hill’s incriminating statements had in

this case. Here, the district court, in finding Hill guilty of child endangerment

resulting in death, explicitly stated it relied on Hill’s admissions:

       [T.H.’s] history, the nature of her injuries and Defendant’s
       admissions convince the Court that Defendant struck [T.H.] in the
       abdomen the morning of February 17, 2009 . . . . The medical
       evidence produced by the state, Defendant’s statements to the
       police, and Defendant’s conduct, such as the delay in calling 911,
       convince the Court of Defendant’s guilt beyond a reasonable doubt.

In contrast, the district court acquitted Hill of multiple acts of child endangerment.

The trial court explained that acquittal was appropriate, in part, because the

defendant made no incriminating statements related to the injuries underlying the

charge of multiple acts of child endangerment. In discussing an injury related to

T.H.’s ribs, for example, the court found:

       Defendant has made no admission concerning these injuries.
       Medical evidence does not identify causation. Even though
       circumstantial evidence points to Defendant (rough handling and
       frustration), the Court cannot find beyond a reasonable doubt that
       Defendant’s conduct resulted in [T.H.’s] fractured ribs.
                                         12




It thus seems apparent that Hill’s incriminating statements in fact made a

difference to the trial court.

       Although the burden of proof and legal framework is somewhat different,

some guidance can be taken from decisions applying a harmless error analysis.

In State v. Harris, 741 N.W.2d 1, 10 (Iowa 2007), our supreme court held the

admission of the defendant’s wrongfully-obtained confession into evidence at a

bench trial was not harmless error where the district court’s findings of fact

acknowledged reliance on the confession. Other courts have reached a similar

conclusion. See, e.g., State v. Crews, 406 S.W.3d 91, 94-95 (Mo. Ct. App. 2013)

(holding that admission of hearsay evidence was not harmless error where “‘it is

clear from the record that the trial judge considered and relied upon the

inadmissible evidence’” (citation omitted)); State v. Potts, 255 P.3d 614, 615 (Or.

Ct. App. 2011) (per curiam) (holding admission of evidence was not harmless

error where there was an “affirmative indication by the court that it actually relied

on the evidence in question”); Buck v. State, 956 A.2d 884, 909 n.11 (Md. Ct.

Spec. App. 2008) (holding error of trial court in not suppressing defendant’s pre-

Miranda confession was not harmless in bench trial of defendant for first-degree

murder where the trial judge relied at least in some part on defendant’s

statements); cf. State v. Crites, 400 S.W.3d 828, 835 (Mo. Ct. App. 2013)

(holding admission of defendant’s confession was harmless error in bench trial

where “there is no indication the trial court relied on [the defendant’s] statements

in reaching a verdict”); Hammond v. State, 479 N.E.2d 629, 631 (Ind. Ct. App.

1985) (holding admission of inculpatory statement was harmless error in bench
                                          13



trial where trial court specifically stated that defendant’s statement did not enter

into its determination of guilt).

       Given the foregoing, we conclude the district court erred in concluding Hill

failed to establish prejudice. We hold that but for the admission into evidence of

defendant’s incriminating statements, there is a reasonable probability the result

of the proceeding would have been different. See Kimmelman v. Morrison, 477

U.S. 365, 388-90 (1986) (finding that removal of important evidence from a trial,

albeit not the most important evidence, may have tipped the balance in favor of

the defendant); Strickland, 466 U.S. at 694; State v. Fisher, No. 99-1098, 2000

WL 1724552, at *5 (Iowa Ct. App. Nov. 20, 2000) (finding defendant was

prejudiced by counsel’s failure to file a motion to suppress evidence and

admissions and holding, “without . . . [defendant’s] later statement to the police,

the prosecution’s case would have been substantially weakened and the

outcome would likely have been affected”); see also People v. Coleman, 704

N.E.2d 690, 698 (Ill. Ct. App. 1998) (holding Strickland prejudice standard

satisfied in bench trial where trial court stated it relied on evidence at issue).

                                          III.

       For the foregoing reasons, we conclude the district court erred in granting

the State’s motion for summary judgment, in denying the defendant’s motion for

summary judgment, and in dismissing the defendant’s application for

postconviction relief.    Given the State’s concession here that the challenged

statements were obtained in violation of defendant’s right to remain silent, we
                                         14



conclude the defendant established prejudice as a matter of law. We remand

this matter for further proceedings not inconsistent with this opinion.

       REVERSED AND REMANDED.
