Opinion
No. 4-189 / 03-0429
May 26, 2004.
Appeal from the Iowa District Court for Scott County, John A. Nahra, Judge.
Jonathan Hillman appeals from the judgment entered on his conviction for first-degree murder and willful injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Jonathan Hillman, Fort Madison, for appellant pro se.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Jonathan Hillman appeals from the judgment entered on his conviction for first-degree murder and willful injury. We affirm.
I. Background Facts and Proceedings.
On the morning of May 27, 2002, Shannon Breeden, Hillman's girlfriend, used a false name to call 911 and report that a body had been found at a homeless camp near Credit Island in Davenport. After police arrived at the scene, Hillman led officers to the body of Paula Heiser and reported that he had seen two men, Karl Strong and Mike Bollinger, assaulting Heiser the previous evening. Police found it unlikely Strong or Bollinger had committed the murder and, instead came to focus on Hillman and Breeden.
Responding to questioning from police, Hillman admitted that he, Breeden, and Heiser had been involved in an argument the previous night over certain food that Hillman alleged Heiser had stolen. He further admitted that he struck Heiser in the face and knocked her down and that when she got up, he again struck Heiser and knocked her down an embankment toward the river. Hillman also told police that Breeden struck Heiser and that she may have stomped on Heiser's head as she lay in the mud.
When police first observed Hillman, his pants were muddy. In addition, multiple footprints were found in the mud near Heiser's body. Heiser's body exhibited multiple lacerations to her head and lip, there were bruises and scratches around her entire body, and she had six broken ribs. Both a medical examiner and a forensic pathologist determined the cause of death to be aspiration of mud and water blocking the air passage and causing suffocation.
Based on these events, the State charged Hillman with first-degree murder, in violation of Iowa Code sections 707.2(1) and (2) (2001), and willful injury, in violation of section 708.4(1). Originally, Hillman and Breeden were to be tried jointly, but the district court later severed their trials. Following a trial, the jury found Hillman guilty as charged and the court sentenced him to serve life imprisonment on the murder count and ten years on the willful injury count. Hillman appeals.
II. Claims on Appeal.
Hillman contends the evidence is insufficient to support the conviction of either crime, in particular, because the evidence of intent to cause serious injury and malice aforethought is lacking. He also maintains insufficient evidence exists to corroborate his statements to police and to establish aiding and abetting. In the alternative, he asserts counsel provided ineffective assistance in failing to raise these claims. Finally, he argues counsel was ineffective in failing to secure an independent forensic pathologist.
Further, in a pro se brief, Hillman argues the State failed to submit the "greater weight of the evidence" from which he could be "adjudged as participation (sic) in the act which directly lead to the death of Paula Heiser." He also contends sufficient evidence does not support the willful injury conviction, that the submission of the felony murder charge predicated on willful injury improperly reduced the State's burden, the court erred in refusing his motion for a change of venue, and counsel provided ineffective assistance in a number of respects.
III. Ineffective Assistance Principles.
We review the totality of relevant circumstances de novo when a defendant claims ineffective assistance of counsel. See State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987). To prevail on his ineffective-assistance-of-counsel claims, Hillman must prove the following two conditions by a preponderance of the evidence: "(1) his trial counsel failed in an essential duty, and (2) prejudice resulted from counsel's error." State v. Arne, 579 N.W.2d 326, 328-29 (Iowa 1998). Although such claims are ordinarily preserved for postconviction relief actions, we will consider them on direct appeal if the record is adequate. See State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998). We find the record here sufficient to address the majority of Hillman's ineffective assistance. Consequently, save one issue which we preserve, we will decide his ineffective-assistance-of-counsel claims in this direct appeal.
To prove his trial counsel failed in an essential duty, Hillman must show that "his attorney's performance fell outside the normal range of competency." State v. Henderson, 537 N.W.2d 763, 765 (Iowa 1995). Trial counsel is not incompetent in failing to pursue a meritless issue. See McPhillips, 580 N.W.2d at 754.
A. Sufficiency of the Evidence.
Hillman correctly notes that both first-degree murder and willful in jury are "specific intent" crimes, see State v. Walker, 538 N.W.2d 316, 320 (Iowa Ct. App. 1995); State v. Hilpipre, 395 N.W.2d 899, 903 (Iowa Ct. App. 1986), and that "malice aforethought" is an element of first degree murder. See State v. Ragland, 420 N.W.2d 791, 794 (Iowa 1988). Hillman's trial counsel did not raise issues regarding the sufficiency of the evidence of specific intent and malice aforethought, and Hillman now contends counsel was ineffective in failing to do so.
To survive a sufficiency challenge, the verdict must be supported by substantial evidence which is "such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). Evidence is viewed in the light most favorable to the State. Id. at 339. The findings of the fact finder are to be broadly and liberally construed to uphold the verdict. State v. Price, 365 N.W.2d 632, 633 (Iowa Ct. App. 1985).
Upon our de novo review of the record in this ineffective assistance challenge, we conclude that had counsel made a more specific motion for judgment of acquittal, as Hillman now urges, the district court would not have granted the motion on either issue. We believe circumstantial evidence of all elements of the crimes sustain the convictions here. Significantly, Paula Heiser was found with her face driven into the mud, having died by asphyxiation. A reasonable jury could find it unlikely the victim's face would have been driven into the mud to such an extent simply by falling down the embankment. Hillman, who was discovered with mud covering his lower pants, admitted to police that in an argument with Heiser over food she allegedly stole from him, he had struck her in the face and knocked her down on the night of her death. He further admitted to knocking her down again after she attempted to get up. There were numerous footprints in the mud around Heiser's body which evidenced multiple lacerations, bruises, and broken bones. We conclude a jury reasonably could have found from this evidence that Hillman acted with specific intent and malice aforethought.
Hillman argues plausibly that the presence of mud on the pants of a homeless person camped near the river was certainly not unusual. While this may be true, we conclude a rational person could nonetheless find the presence of the mud consistent with the State's theory of the case and Hillman's guilt.
Hillman vigorously argues that some or all of Heiser's injuries were, or at least could have been, sustained a couple of days before her death when, while severely intoxicated, she was beaten by another assailant with whom she maintained a violent relationship. Hospital records documented that assault and resulting medical treatment. Nonetheless, the State offered and a reasonable juror could credit expert testimony tending to prove that the cause of Heiser's death was the incident for which Hillman was charged, rather than the earlier incident.
B. Corroboration.
Hillman maintains counsel was ineffective in failing to argue insufficient evidence existed to corroborate his admission or to establish aiding and abetting. The general rule is that a confession standing alone will not warrant a criminal conviction unless other proof shows the defendant committed the crime. Iowa R.Crim. P. 2.21(4). "Corroboration need not be strong nor need it go to the whole case so long as it confirms some material fact connecting the defendant with the crime." State v. Liggins, 524 N.W.2d 181, 187 (Iowa 1994).
The question is whether Hillman was prejudiced by counsel's failure. Prejudice is shown when "there is a reasonable probability that, but for the counsel's unprofessional error, the result of the proceeding would have been different." State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998). A reasonable probability is one sufficient to undermine confidence in the outcome. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct. App. 1996).
Given the weight of the evidence recited above, there is no reasonable probability the result would have been different even had the trial counsel argued the corroborating evidence was insufficient. Adequate corroboration demonstrates that Hillman or Shannon Breeden, whom he aided and abetted, killed Paula Heiser. Because Hillman has not shown prejudice resulting from trial counsel's failure to challenge by motion for directed verdict the sufficiency of the corroborating evidence, this claim of ineffective assistance of counsel must fail.
C. Independent Forensic Pathologist.
Hillman notes that the State's forensic pathologist testified regarding (1) the contemporaneous nature of Heiser's injuries and her death, and (2) that Heiser's blood alcohol level was not a contributing cause of her death. On appeal he maintains his trial counsel should have employed an expert to challenge these opinions. We find the record inadequate to address this contention, and therefore preserve it for a possible postconviction relief application. See State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (stating we generally preserve such claims for postconviction relief proceedings where an adequate record can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims).
D. Change of Venue.
In his pro se brief, Hillman alleges he was denied his right to a fair trial due to the district court's denial of his motion to change venue. We reject this contention. Iowa Rule of Criminal Procedure 2.11(10)( b) provides that venue should be changed when "such a degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial jury cannot be preserved with a jury selected from that county." Although the record shows certain potential jurors had received from press accounts some information about the events for which Hillman was prosecuted, the record falls far short of demonstrating the jury pool held fixed opinions as to Hillman's guilt such that a change of venue would be necessary. See State v. Harris, 436 N.W.2d 364, 367 (Iowa 1989) (stating an individual seeking to overturn a conviction based on the basis of a denied motion for change of venue must establish either actual prejudice on the part of the jury or that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed). Accordingly, we affirm on this issue.
IV. Conclusion.
We conclude trial counsel did not provide ineffective assistance in failing to make a more specific motion for judgment of acquittal, claim the evidence was insufficient to corroborate his confession, or move for a change of venue. We preserve for potential postconviction relief proceedings the claim counsel was ineffective in failing to hire an independent forensic expert. Finally, whether or not specifically addressed in this opinion, we find other claims made in Hillman's pro se brief to be without merit.