IN THE COURT OF APPEALS OF IOWA
No. 17-1679 Filed May 1, 2019
DANIEL J. DAWSON, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Henry W. Latham II,
Judge.
The applicant appeals from the denial of his application for postconviction
relief challenging his convictions for murder in the second degree; assault with
intent to inflict serious injury; and domestic abuse assault, second offense.
AFFIRMED.
Thomas Hurd of Greenberg & Hurd, LLP, Des Moines, for appellant.
Daniel Dawson, Anamosa, pro se.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., and Mullins and Bower, JJ 2
POTTERFIELD, Presiding Judge.
Daniel Dawson appeals from the denial of his application for
postconviction relief (PCR) challenging his convictions for murder in the second
degree; assault with intent to inflict serious injury; and domestic abuse assault,
second offense. On appeal, Dawson argues for the first time that his trial
counsel provided ineffective assistance by failing to move for a mistrial during
closing arguments based on prosecutorial error; Dawson maintains all counsel
since his first have been ineffective in failing to raise the issue sooner. Dawson
raises an additional sixteen claims without the assistance of counsel; we address
each one below.
I. Background Facts and Proceedings.
In 2005, Dawson was charged with murder in the first degree; willful injury;
and domestic abuse assault, third offense. All three charges were based on
allegations Dawson beat and stabbed Debra Mead to death in their home in
Davenport in August 2005. Dawson pleaded not guilty and filed notices of a self-
defense and an intoxication defense.
At trial, Dawson did not deny that he assaulted and then stabbed Mead
nor that Mead died as a result of the stab wound. Dawson testified in his own
defense that he was angry at Mead for calling his parents while she was drinking,
so he hit her in the face and kicked her a few times. Mead then got up from the
ground, and Dawson followed her into the kitchen. While in the kitchen, Dawson
noticed Mead was reaching for a large knife, so he grabbed it first, and the two
struggled over the knife before he stabbed her in the chest. 3
Dawson called 911, and a recording of the phone call was played for the
jury. During the call, Dawson states, “Deb and I got into a [inaudible] fight for the
last time” and, “She’s pretty much dead,” before disconnecting the call.
Additionally, the dashboard cameras of some of the responding police officers
recorded the scene outside of Dawson’s and Mead’s home as officers arrived
and secured Dawson. In a video that was shown to the jury, Dawson can be
heard saying, unprompted: “Oh, she’s dead”; “I stabbed her”; “I got tired of
getting threatened by her for the last few years”; “No, she’d dead now”; “Fucking
bitch ain’t threatening me no more”; and “Her psychologist can’t save her from
this one.”
The police officers found Mead lying on the kitchen floor with a knife
protruding from her chest; Mead died en route to the hospital. The medical
examiner’s report indicates Mead suffered multiple blunt trauma injuries, multiple
stab wounds, and died as a result of a stab wound to the chest. Dawson was
only noted to have one injury—a chunk of skin missing from one knuckle.
After the State rested, Dawson moved for judgment of acquittal regarding
the charge of domestic abuse assault, third offense, as his first conviction for
domestic abuse assault was too old to qualify as a previous offense. The court
granted the State’s motion to proceed with the charge of domestic abuse assault,
second offense.
The jury returned verdicts finding Dawson guilty of the lesser-included
offenses of murder in the second degree and assault with intent to inflict serious
injury, which the district court determined merged. Dawson was sentenced to a
term of incarceration not to exceed fifty years for the murder conviction. The jury 4
also found Dawson guilty of domestic abuse assault, and Dawson stipulated to
his previous qualifying conviction; he was sentenced to an additional two-year
term and ordered to serve the sentences consecutively.
Dawson filed a direct appeal of his conviction, alleging he received
ineffective assistance from trial counsel in a number of ways. The supreme court
transferred the appeal to us, and a panel of our court affirmed Dawson’s
convictions, ruling, “Dawson’s ineffective assistance of counsel claims fail
because he cannot establish the requisite prejudice. The evidence against
Dawson is fairly characterized as overwhelming.” State v. Dawson, No. 06-0390,
2007 WL 1202384, at *3 (Iowa Ct. App. Apr. 25, 2007).
Dawson filed his first application for PCR in 2007 and amended his
application five times before it came on for hearing in August 2017. The PCR
court denied the application in its entirety.
Dawson appeals.
II. Standard of Review.
We generally review an appeal from a denial of a PCR application for
correction of errors at law. Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018).
However, when the applicant claims ineffective assistance, because such are
constitutional in nature, our review is de novo. Ledezma v. State, 626 N.W.2d
134, 141 (Iowa 2001).
III. Discussion.
Dawson raises seventeen unique claims on appeal. He purports to raise
each claim under the ineffective-assistance framework. In order to succeed on a
claim of ineffective assistance, Dawson has the burden to prove “(1) counsel 5
failed to perform an essential duty, and (2) prejudice resulted.” State v. Clay, 824
N.W.2d 488, 495 (Iowa 2012); see also Strickland v. Washington, 466 U.S. 668,
687 (1984). Both elements must be proved by a preponderance of the evidence.
Ledezma, 626 N.W.2d at 142. However, we need not consider each element, as
Dawson’s inability to prove either element is fatal. See id.
1. Prosecutorial Misconduct. Dawson maintains his trial counsel was
ineffective for failing to object to instances of prosecutorial error during closing
arguments in his trial. He argues the error was so significant as to deprive him of
his right to a fair trial and asks that we remand for new trial. See State v. Graves,
668 N.W.2d 860, 869 (Iowa 2003) (providing a new trial is the proper remedy for
prosecutorial error that results in the denial of a fair trial).
Dawson lists several statements by the prosecutor that Dawson believes
constitute error. He generally sorts them into two categories: statements
questioning Dawson’s credibility and statements expressing personal opinion.
We must begin by determining which, if any, of the now-challenged
statements were improper. See id. (providing the first requirement for a due
process claim based on prosecutorial misconduct is proof of misconduct). As
each of the challenged statements were made during the prosecutor’s closing
arguments, we also note that a “prosecutor ‘is entitled to some latitude during
closing argument in analyzing the evidence admitted in the trial.’” Id. at 874.
Under the first category, Dawson maintains the prosecutor improperly
commented on his credibility when he stated: “I’m going to point out some
inconsistencies in what the defendant stated”; “Various officers and the squad
tape recounted the defendant stating as follows: She threatened me for the last 6
time, just like on there. I fucking stabbed her with my fucking knife. Her
psychologist can’t save her from this one. You know something? That’s one of
the first things he said that’s accurate”; and “It’s normal for people to minimize
their involvement in a situation, in particular in a situation that can result in big
trouble for him.”
The prosecutor cannot call the defendant a liar. See id. at 876. (“We
conclude from these cases that Iowa follows the rule that it is improper for a
prosecutor to call the defendant a liar, state the defendant is lying, or to make
similar disparaging comments.”). But it is well within the prosecutor’s role “to
craft an argument that includes reasonable inferences based on the evidence
and . . . when a case turns on which of two conflicting stories is true, [to argue
that] certain testimony is not believable.” Id. (alteration in original) (quotation
omitted). Dawson mischaracterizes the prosecutor’s statement that he will point
out inconsistencies as calling the defendant a liar. Rather, the prosecutor used
the facts as Dawson testified to them to raise questions regarding whether
Dawson used reasonable force or whether he had an alternative course—
necessary elements of the justification defense. The prosecutor pointed out to
the jury that Dawson did not sustain any obvious injuries during what Dawson
characterized as a struggle for the knife, while Mead suffered three stab wounds.
Additionally, Dawson admitted that he started the physical fight by hitting Mead in
the head, shoving her to the ground, and kicking her in the head a couple more
times before she was able to stand; after Mead got up and walked away, it was
Dawson who followed her into the kitchen. 7
Additionally, the jury was instructed to consider, when deciding what
testimony to believe, the witness’s “interest in the trial, their motive, candor, bias
and prejudice.” We understand the prosecutor’s statement that, “It’s normal for
people to minimize their involvement in a situation, in particular in a situation that
can result in big trouble for him,” as one meant to point out to the jury that
Dawson—who was the only living witness to the events that happened on the
night of the stabbing—was not an unbiased witness. We do not find either of
these statements by the prosecutor to be improper.
Next we consider the second category of statements Dawson
challenges—statements expressing the prosecutor’s personal opinion. Here,
Dawson challenges the following statements: “I guess I would classify death as a
serious injury”; “I didn’t see any injuries on him”; and “I’m going to give you the
State’s scenario of what happened.”
It is improper for a prosecutor to express his or her personal beliefs or
opinions. See id. at 874; see also Beaugureau v. State, 56 P.3d 626, 632 (Wyo.
2002) (observing that when a prosecutor asserts his or her personal opinions,
“the jury might be persuaded not by the evidence, but rather by a perception that
counsel’s opinions are correct because of” his or her position as prosecutor). But
the use of the personal pronoun alone does not constitute reversible error. See
State v. Williams, 334 N.W.2d 742, 745 (Iowa 1983) (finding prosecutor’s use of
“I” during closing arguments was not misconduct because, “[v]iewed in context,
all of the proecutor’s challenged remarks were obviously based on his view of the
evidence.”); State v. Dunn, No. 15-0428, 2016 WL 3003374, at *5 (Iowa Ct. App.
May, 25, 2016) (recognizing the prosecutor’s use of “I” “brought to the jury’s 8
attention the individual point of view” but ruling it was not prosecutorial error
when the statements were “related to the summation of the evidence” rather than
“personal assessments” of the prosecutor).
While the first two statements Dawson challenges may have been made in
a sarcastic or familiar tone, the basis of the prosecutor’s statements was the
evidence admitted at trial. See State v. Carey, 709 N.W.2d 547, 555 (Iowa 2006)
(“These three comments, while sarcastic and snide, were based on a legitimate
assessment of the evidence and . . . did not constitute misconduct, given the
considerable latitude accorded to lawyers in final arguments.”). We look less
favorably on the prosecutor’s remark that he was “going to give you the State’s
scenario of what happened,” as we believe it encouraged the jury to consider the
scenario he then described—one in which Dawson stabbed Mead out of anger
rather than self-defense—as one given “the imprimatur of the Government.”
State v. Martens, 521 N.W.2d 768, 772 (Iowa Ct. App. 1994).
Of the statements specifically challenged by Dawson, we find the
prosecutor’s statements, “That’s one of the first things he said that’s accurate,”
and “I’m going to give you the State’s scenario of what happened,” are improper.
To show a denial of due process, Dawson must establish that these two
comments deprived him of a fair trial. See Graves, 668 N.W.2d at 876. In other
words, “we must determine whether there is a reasonable probability the
prosecutor’s misconduct prejudiced, inflamed or misled the jurors so as to prompt
them to convict the defendant for reasons other than the evidence introduced at
trial and the law as contained in the court’s instructions.” Id. at 877. In doing so,
we consider “(1) the severity and pervasiveness of the misconduct, (2) the 9
significance of the misconduct to the central issues in the case, (3) the strength
of the State’s evidence, (4) the use of cautionary instructions or other curative
measures, and (5) the extent to which the defense invited the misconduct.” Id. at
869 (citations omitted).
Two improper statements are not “pervasive” statements. But one
statement called into question Dawson’s credibility while the other suggested the
prosecutor had the “official” version of the facts in dispute—central issues in the
case. However, even if we concluded that Dawson’s right to due process was
violated, we cannot conclude Dawson suffered Strickland prejudice. See id. at
881 (providing that after concluding a due process violation occurred, the next
step is to turn to an analysis of the ineffective-assistance-of-counsel claims).
“The most important factor under the test for prejudice is the strength of the
State’s case.” Carey, 709 N.W.2d at 559. And here, the evidence against
Dawson was strong. Dawson admitted he was the person who stabbed Mead;
the only question was if he was justified in doing so. Dawson claimed he
struggled with Mead over the knife before ultimately stabbing her to save himself.
But pictures taken from the night of the incident show Dawson, who was taller
and heavier than Mead, was uninjured other than on one of his knuckles, while
Mead was badly bruised and stabbed three times. In his testimony, Dawson
admitted he was angry at Mead and started a physical fight with her that night.
He also admitted that when she fled to the kitchen after he kicked her repeatedly
in the head, he followed her into the room. Audio and video captured the night of
the incident show Dawson making comments that Mead is dead, that she will not 10
be able to threaten him anymore, and “Her psychologist can’t save her from this
one.”
Even if we assume a due process violation, Dawson cannot establish
Strickland prejudice, so this claim fails.
2. Merger. Dawson argues his convictions for domestic abuse assault
and murder in the second degree should merge because “[t]he evidence at trial
was presented as one continuous course of conduct, without evidence as two
distinct crimes.” He claims trial counsel was ineffective for failing to challenge
the two convictions on double jeopardy grounds. While Dawson is correct that
the Fifth Amendment protects against multiple punishments for the same offense,
multiple legislatively-created punishments are constitutionally permissible “if a
requisite element of one offense is not necessarily essential to conviction of
another offense.” See State v. McKettrick, 480 N.W.2d 52, 56, 57 (Iowa 1992).
“In such a case, the offenses are not the ‘same’ because ‘each provision requires
proof of an additional fact which the other does not.’” Id. at 57 (quoting
Blockburger v. United States, 284 U.S. 299, 304 (1932)).
Moreover, the Fifth Amendment is not implicated here, as the two
convictions were not based on the same act by Dawson. See State v. Smith,
573 N.W.2d 14, 19 (Iowa 1997); State v. Delap, 466 N.W.2d 264, 264 (Iowa Ct.
App. 1990) (defendant could be convicted under both sections 708.2(1) and
708.2(2) where defendant had committed a series of assaults); see also State v.
Heemstra, 721 N.W.2d 549, 557 (Iowa 2006) (noting in discussing merger of
willful injury and felony-murder convictions that “if defendant assaulted the victim
twice, first without killing him and second with fatal results, the former could be 11
considered as a predicate felony, but the second could not because it would be
merged with the murder”). Under either a “break-in-the-action test” or a
“completed-acts test,” see State v. Velez, 829 N.W.2d 572, 582–84 (Iowa 2013),
Dawson committed two separate actions as the basis for the two crimes.
According to his own testimony, he hit Mead across the face and then kicked her
several times while she was on the ground. She then stood up and made her
way into another room of the home, where Dawson followed her, before grabbing
the knife and ultimately stabbing her with it.
Because his convictions for domestic abuse assault and second-degree
murder were based on separate acts, there is no merit to Dawson’s merger
claim, and counsel had no duty to pursue it. See State v. Carroll, 767 N.W.2d
638, 645 (Iowa 2009) (“[C]ounsel has no duty to pursue a meritless issue.”).
3. Felony Murder. Dawson maintains his trial counsel provided
ineffective assistance when she failed to challenge the use of domestic abuse
assault—once it got changed from a third offense to second offense—as the
predicate offense to support a conviction for felony murder. But the jury was not
instructed it could use domestic abuse assault as the predicate felony for felony
murder; it was instructed:
Under count 1 the State must prove all of the following of elements of murder in the first degree: 1. On or about the 18th day of August, 2005, the defendant stabbed Debra S. Mead. 2. Debra S. Mead died as a result of being stabbed. 3. The defendant acted with malice aforethought. 4. The defendant (a) acted willfully, deliberately, premeditatedly and with a specific intent to kill Debra S. Mead or (b) was participating in the offense of willful injury. 12
Moreover, Dawson cannot establish prejudice, as he was not convicted of felony
murder; he was convicted of second-degree murder. Cf. Iowa Code § 707.2(2)
(2005) (providing that a person “commits murder in the first degree when the
person” “kills another person while participating in a forcible felony”). This claim
fails.
4. Expert in Support of Defense. Dawson claims his trial counsel
provided ineffective assistance by failing to retain an expert pathologist to dispute
the State’s expert. He maintains the expert “could have disputed the State
pathologist’s finding of which and how aggressive the fight between [him] and
[Mead] had actually been.”
During her deposition, which was taken for the purpose of Dawson’s PCR
trial, the trial attorney was asked if she had considered hiring an expert. She
stated:
[Dawson’s] defense was not that [Mead] was—how she died was— maybe the circumstances surrounding how she died, but she died of a stab wound. He was going to argue that they fought over a knife, perhaps. And if you went into that, then my own expert is going to kill me because he doesn’t have any injuries on him. I think the less I brought that up to the court—to the jury, the better off we were going to be. So the mechanism of her death, that she was stabbed in the place that she was stabbed, causing her pretty quick death, wasn’t an issue for us to argue about, it was how did she get stabbed that we cared about.
There is no bright-line duty for an attorney to retain an expert. See, e.g., Heaton
v. State, 420 N.W.2d 429, 432 (Iowa 1988) (“We believe that the question of
whether or not to call an expert witness is a matter of trial strategy.”). And here,
counsel considered whether an expert would benefit her client and made a
reasonable tactical decision not to hire one. “In determining whether an attorney 13
failed in performance of an essential duty, we avoid second-guessing reasonable
trial strategy.” Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). Additionally,
even if we believed a competent attorney would hire an expert in this
circumstance, Dawson cannot establish that he was prejudiced by counsel’s
failure to do so, as he called an expert at his PCR trial, and the expert testified
both that Mead’s wounds were neither “inconsistent with an accidental stabbing”
nor “inconsistent with intentional stabbing.” This claim fails.
5. Lack of Objections. Dawson argues trial counsel provided ineffective
assistance because she “only made one objection for the defendant” and “failed
to object to jury instructions.” He does not identify any specific objections he
believes counsel could have successfully made nor explain how the failure to do
so prejudiced him. “When complaining about the adequacy of an attorney’s
representation, it is not enough to simply claim that counsel should have done a
better job. The applicant must state the specific ways in which counsel’s
performance was inadequate and identify how competent representation
probably would have changed the outcome.” Dunbar v. State, 515 N.W.2d 12,
15 (Iowa 1994) (citation omitted). This claim fails.
6. Failure to File Pre-Trial Motions. Dawson maintains counsel had a
duty to file a number of pre-trial motions. We consider each in turn.
First, Dawson argues trial counsel had a duty to file a motion for bill of
particulars “because the trial information is insufficient and did not set forth the
elements of the offense(s) charged.” By rule, a trial information is required to
include the name of accused; “the name and if provided by law the degree of the
offense, identifying by number the statutory provision or provisions alleged to 14
have been violated”; a brief statement of the time or place of the offense (when
the time or place is a material ingredient of the offense); and a brief statement of
the acts or omissions by which the offense is alleged to have been committed
(when the means are necessary to the charge). See Iowa R. Crim. P. 2.4(7).
Dawson does not specify how the trial information was deficient or what
information counsel should have sought in a motion for a bill of particulars. And
he does not explain how his preparation for his defense was impeded by any lack
of information. See State v. Griffin, 386 N.W.2d 529, 531 (Iowa Ct. App. 1986)
(“If the defendant is apprised of the particulars of the offense sufficiently from
whatever source to fairly enable him to prepare a defense, failure to include
particulars in the trial information is not fatal.” Any claim regarding a bill of
particulars has been waived. See Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa
1996) (“[W]e will not speculate on the arguments [the parties] might have made
and then search for legal authority and comb the record for facts to support such
arguments.”).
Second, Dawson argues trial counsel should have filed a motion in limine
asking the court to exclude from trial the evidence of Dawson’s prior bad acts of
perpetrating domestic violence against Mead. But such evidence was admissible
to show his intent within the murder charge. See State v. Taylor, 689 N.W.2d
116, 125–26 (“The most obvious example of the legitimate use of prior-bad-acts
evidence is the admission of evidence of a defendant’s prior assaults of a victim
in a prosecution of the defendant for the subsequent murder of the victim. Courts
have admitted such evidence to show the defendant’s motive and intent with
respect to the actions giving rise to the charged crime when intent is disputed.”). 15
Counsel had no duty to pursue this meritless issue. See Carroll, 767 N.W.2d at
645.
Third, Dawson claims trial counsel should have filed a motion to suppress
the evidence of Dawson’s 911 call, during which Dawson made incriminating
statements. Insofar as Dawson claims the admission of the call violated his Fifth
Amendment right against self-incrimination, “[t]he fifth amendment’s guarantees
do not ‘protect a defendant from his [or her] own compulsions or internally-
applied pressure which are not the product of police action.’” State v.
Countryman, 572 N.W.2d 553, 558–59 (Iowa 1997) (alteration in original)
(citation omitted). Dawson was home alone when he chose to call 911 and make
statements about what had just occurred between him and Mead—there was no
external pressure causing him to make the statements. Additionally, Dawson
maintains his Miranda rights warnings were violated, so the evidence of the call
must be suppressed. But “Miranda warnings are only required if, at the time of
police questioning, the suspect is both: 1) in custody, and 2) subject to
interrogation.” State v. Tyler, 867 N.W.2d 136, 171 (Iowa 2015). And again,
Dawson was home, without a police presence when he called 911.
Dawson has not proved that any of the pre-trial motions he contends
counsel should have made would have been successful, so his claim fails.
7. Pretrial Discovery: Police Records. Dawson maintains trial counsel
should have acquired Mead’s criminal records in order to assist in building
Dawson’s defense of justifiable homicide. He maintains the records would make
it clear Mead “has violent rage against different men in her past, and that it is not
far-fetched that she could become violent against” Dawson. This claim is barred 16
by res judicata, as our court rejected this claim on the merits in Dawson’s direct
appeal. See Dawson, 2007 WL 1202384, at *2, 3 (ruling that Dawson cannot
establish prejudice for any of his claims of ineffective assistance, including his
claim that “[t]rial counsel’s failure to obtain victim’s medical/criminal record . . .
denied him his right to present a defense,” because the evidence of Dawson’s
guilt “is fairly characterized as overwhelming”); see also State v. Wetzel, 192
N.W.2d 762, 764 (Iowa 1971) (“A postconviction proceeding is not intended as a
vehicle for relitigation, on the same factual basis, of issues previously
adjudicated, and the principle of Res Judicata bars additional litigation on this
point.” (citation omitted)).
8. Use of Peremptory Strikes. Dawson claims trial counsel should have
challenged the State’s use of peremptory strikes to remove male jurors as a
violation of the Equal Protection Clause. See Kiray v. Hy-Vee, Inc., 716 N.W.2d
193, 205 (Iowa 2006) (recognizing the Supreme Court extended its ruling that
discrimination against jurors based on their race violates the Equal Protection
Clause to apply to discrimination against jurors based on their gender (citing
J.E.B. v. Alabama, 511 U.S. 127, 145 (1994))).
At a deposition for Dawson’s PCR action, trial counsel was asked about
Dawson being tried by a jury that was comprised of eleven women and one man.
Counsel explained her strategy, stating:
In cases where it is a domestic violence with a defendant being the male in the relationship I find that older white men often when you ask them say never under any circumstances do you ever hit a woman. . . . Those tend to be very dangerous jurors for a male facing the murder of a female in a domestic relationship. Those are engrained in those gentlemen, they apply it, and they would definitely have applied to [Dawson’s] detriment in this case, 17
particularly because there was a knife involved and he’s a strong young man, he should be able to push this woman, who is smaller than him, off of him without any trouble or leave her without having to kill her or protect himself from her, because that was going to be his defense. . . . [T]he other thing I factor into a domestic is, if you have females, they don’t have that guys-should-not-ever-hit-a- woman, they also tend to judge other females quite harshly . . . . And so—I’m excluding women that have experienced domestic violence, have knowledge about domestic violence, have workplace, maybe, education about domestic violence from this kind of generalization, but women who have not had those experiences or education often are more amenable to the defense in a domestic violence case where we have mutual combat going on. They’re going to see her as more of an equal in that fight, more as a menace to him, equal to his menace to her if they’re fighting. So I would have wanted that category of women or been more favorable—favorably leaning toward women in that category. . . .
Counsel made a choice to try to get more women on the jury, as she believed—
based on her experience trying cases that involved domestic violence—that
women were more likely to be sympathetic jurors for Dawson. Given the
strategic nature of the decision not to challenge the State’s use of strikes against
men, we will not second guess trial counsel. See Hinkle v. State, 290 N.W.2d
28, 30 (Iowa 1980) (“The required examination [in claims of ineffective
assistance] should proceed while resisting, in the light of hindsight, the
temptation to Monday morning quarterback the lawyer in the arena.”). Because
we presume counsel is competent, improvident trial strategy or miscalculated
tactics is not enough to show ineffective assistance. State v. Aldape, 307
N.W.2d 32, 42 (Iowa 1981). This claim fails.
9. Motion to Suppress: Squad Car Video. Dawson maintains trial
counsel should have filed a motion to suppress the evidence of his statements
that were captured by the squad car video. He maintains his Miranda rights were
violated, so the evidence of the call must be suppressed. But “Miranda warnings 18
are only required if, at the time of police questioning, the suspect is both: 1) in
custody, and 2) subject to interrogation.” State v. Tyler, 867 N.W.2d 136, 171
(Iowa 2015). At the time Dawson made the statements, he was in police
custody. However, his statements were spontaneous and unsolicited rather than
the product of interrogation. See State v. Turner, 630 N.W.2d 601, 608 (Iowa
2001) (“Statements made after a person is taken into custody are not
automatically considered the product of interrogation. Thus, statements that are
volunteered, spontaneous and freely made by an arrested person do not come
within the scope of Miranda.” (citation omitted)).
In the same vein, Dawson maintains trial counsel should have hired an
expert to establish that his statements were involuntary because they were the
product of confusion and made under the influence of alcohol. First, we note that
“[b]eing ‘under the influence’ does not, standing alone, render inculpatory
statements involuntary.” State v. Edman, 452 N.W.2d 169, 170 (Iowa 1990).
Second, the evidence at trial did not establish that Dawson was under the
influence to the extent that his statements would be rendered involuntary. One
or two of the officers who spoke with Dawson on the night of the stabbing
indicated they could smell the odor of alcohol when they were near him, and
Dawson testified he consumed approximately fourteen beers in the
approximately six hours before the stabbing. But all of the officers who were
asked testified that Dawson did not have trouble communicating and did not
appear to be intoxicated. Additionally, the 911 call and the squad car video show
Dawson was able to speak clearly and completely. Finally, it is not enough for 19
Dawson to make a bald assertion that an expert would have helped to get his
statements suppressed as involuntary. This claims fails.
10. Testimony of Detective Richard Voy. Dawson argues trial counsel
should have objected to Detective Richard Voy’s testimony as improper prior-
bad-acts evidence, hearsay, irrelevant, and high prejudicial. Dawson does not
specify to which questions counsel should have interposed an objection, instead
providing a span of nearly twenty pages of trial transcript Dawson finds
objectionable. We will not comb through Detective Voy’s testimony and search
for statements that may fall within the evidentiary objections Dawson has now
outlined; this claim lacks sufficient specificity for our consideration. See State v.
Philpott, 702 N.W.2d 500, 504 (Iowa 2005) (“We will decline to consider
arguments that do not pinpoint specific questions and objections the overruling of
which is alleged to be error. Defendant’s arguments on the evidentiary issues
are too vague and indefinite to support the granting of relief based on the
admission of improper evidence.”).
11. Second Attorney. Dawson claims his trial counsel was ineffective for
failing to seek an additional attorney to assist at trial, pursuant to Iowa Code
section 815.10(1), which provides: “Only one attorney shall be appointed in all
cases, except that in class “A” felony cases the court may appoint two attorneys.”
While the court may have appointed a second attorney if one was
requested, Dawson does not explain how the lack of a second lawyer affected
the outcome of his case. “‘[C]onclusory claims of prejudice’ are not sufficient to
satisfy the prejudice element.” State v. Tate, 710 N.W.2d 237, 241 (Iowa 2006)
(citation omitted)). This claim fails. 20
12. Motion for New Trial. Dawson maintains trial counsel was ineffective
by failing to file a motion for new trial and motion in arrest of judgment. In
support of this claim, Dawson argues: “It is evidence this trial counsel in essence
was advocating on the State’s behalf to insure a conviction, counsel wholly failed
applicant’s legal needs at trial, sentencing, and in the development of an effective
appeal.”
Dawson has provided no cite to the record. See Iowa R. App. P.
6.903(2)(g)(3) (requiring the appellant’s brief to include “an argument containing
the appellant’s contentions and the reasons for them with citations to the
authorities relied on and references to the pertinent parts of the record”). And as
stated before, as the applicant claiming ineffective assistance, he has the burden
to pinpoint specific deficiencies in counsel’s performance; complaints that are too
general and unwieldy in nature evade our review. See Dunbar, 515 N.W.2d at
15.
13. Raising Claims of Ineffective Assistance on Direct Appeal.
Dawson argues his direct appeal counsel provided ineffective assistance by
failing “to move the Iowa Court of Appeal to preserve all” of Dawson’s “pro se
ineffective trial counsel issues” for PCR proceedings. First, Dawson may not use
the PCR proceedings as a vehicle to collaterally attack our rulings on direct
appeal. See, e.g., Miller v. State, No. 13-1240, 2015 WL 1815903, at *3 (Iowa
Ct. App. Apr. 22, 2015) (“The issues identified above are, in effect, direct attacks
on this court’s holding on direct appeal. Under our rules of appellate procedure,
[the applicant’s] remedy was to seek further review of our decision from our
supreme court. . . . Our decision on direct appeal is thus final as to all issues 21
decided therein and is binding upon both the PCR court and this court in
subsequent appeals.” (citations omitted)). Second, Dawson cannot now
complain that this court did as he asked of it—decide his claims of ineffective
assistance. See State v. Beckwith, 53 N.W.2d 867, 869 (Iowa 1952) (“Defendant
cannot now predicate error upon the court’s doing the very thing they requested
the court do so.”). And third, even if we were to consider Dawson’s current
complaint under the ineffective-assistance framework, Dawson cannot establish
prejudice. While Dawson now implies that his direct appeal PCR claims would
have been decided differently if they had been preserved for further development
of the record, our court already ruled the record was adequate to decide the
claims. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (recognizing it
is the court’s role to determine if the record is adequate to decide the claim on
direct appeal); Dawson, 2007 WL 1202384, at *2.
14. Court of Appeals Decision. Dawson argues the court of appeals
“abused its discretion when it failed to preserve all pro se ineffective assistance
of trial counsel claims for” PCR proceedings. As stated before, Dawson may not
use his PCR proceedings as a vehicle to attack a prior appellate ruling. See
State v. Ragland, 812 N.W.2d 654, 658 (Iowa 2012) (applying the law-of-the-
case doctrine to a defendant’s PCR challenge); Bahl v. City of Asbury, 725
N.W.2d 317, 321 (Iowa 2006) (“Under the law of the case doctrine, ‘an appellate
decision becomes the law of the case and is controlling on both the trial court
and on any further appeals in the same case.’” (citation omitted)). We “refuse to
reconsider what has once been decided.” State v. Grosvenor, 402 N.W.2d 402,
405 (Iowa 1987). 22
15. Pretrial Discovery: Medical Records. Dawson maintains trial
counsel should have acquired Mead’s medical records in order to bolster
Dawson’s defense of justifiable homicide. He claims the records would show
Mead “was on psychiatric drugs to treat her character traits of unmanageable
violent behavior.” This claim is barred by res judicata, as our court rejected this
claim on the merits in Dawson’s direct appeal. See Dawson, 2007 WL 1202384,
at *2, 3 (ruling that Dawson cannot establish prejudice for any of his claims of
ineffective assistance, including his claim that “[t]rial counsel’s failure to obtain
victim’s medical/criminal record . . . denied him his right to present a defense,”
because the evidence of Dawson’s guilt “is fairly characterized as
overwhelming”).
16. Second-Degree Murder. Dawson maintains his trial counsel and
direct appeal counsel provided ineffective assistance in failing to challenge
whether second-degree murder is a specific intent crime. Dawson reasons that
because the supreme court has ruled assault is a specific intent crime, see State
v. Heard, 636 N.W.2d 227, 231 (Iowa 2001), second-degree murder may be as
well. But murder in the second degree has long been, and remains today, a
general intent crime. See State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003)
(“Malice aforethought is . . . an essential element of second-degree murder and
is an element that separates second-degree murder from other lesser included
offenses.”); see also State v. Tyler, 873 N.W.2d 741, 751 (Iowa 2016) (“We
recently elaborated on the distinction between malice aforethought and specific
intent to kill . . . emphasizing that the former concept is broader than the latter.”);
State v. Gibbons, 120 N.W. 474, 475 (Iowa 1909) (“The crime of murder in the 23
second degree necessarily involves an act done with malice aforethought. But
that term used in defining the crime is technical rather than descriptive. It does
not necessarily require an intent to murder.” (citation omitted)). This claim fails.
17. Domestic Abuse Assault, Third Offense. Dawson complains that
the jury was informed that he was charged with domestic abuse assault, third
offense, when the court later recognized—on Dawson’s counsel’s motion—that
one of the underlying offenses was too far removed in time to be considered for
enhancement purposes. Dawson maintains trial counsel had a duty to move for
mistrial and request a new jury that had not been misinformed of the offense or,
in the alterative, to request a curative instruction to inform the jury of the change
to the charge.1
We agree with Dawson that the jury was wrongly informed about the
charge; during the reading of the trial information, the prosecutor indicated
Dawson had been charged with domestic abuse assault, third offense. But we
cannot find Strickland prejudice. Dawson’s trial strategy included admitting to the
domestic abuse assault charge. In his testimony, Dawson testified that he struck
Mead’s face with his hand, shoved her to the ground, and kicked her in the head
a couple of times while she remained on the ground. Additionally, during closing
argument, Dawson’s attorney stated, “He assaulted Deb. There’s no question
about that. The State has certainly proven that through the pictures, the injuries
and the defendant’s testimony about hitting and kicking her. No. 3, guilty. We’re
1 In his heading for this argument section, Dawson urges that trial counsel was ineffective for “failing to challenge the use of domestic abuse third offense in the jury instructions submitted to the jury.” We have reviewed the jury instructions given to the jury, and count 3 of the charges is not referred to as domestic abuse assault, third offense. 24
not even going there.” Moreover, the jury would have been aware of Dawson’s
history of domestic violence even if it was not informed he was charged with a
third offense because Dawson admitted during his testimony that he and Mead
“had physical fights” “five or six times total” during their three-year relationship.
Because Dawson cannot establish prejudice, this claim fails.
IV. Conclusion.
Having considered each of Dawson’s seventeen claims of ineffective
assistance and finding no reversible error, we affirm the denial of Dawson’s
application for PCR.