Opinion
No. 13–0492.
2014-12-24
Randy L. BLANCHARD, Applicant–Appellant, v. STATE of Iowa, Respondent–Appellee.
Appeal from the Iowa District Court for Chickasaw County, Margaret L. Lingreen, Judge.Blanchard appeals the denial of his application for postconviction relief. AFFIRMED.John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.Randy L. Blanchard, Anamosa, appellant pro se.
Appeal from the Iowa District Court for Chickasaw County, Margaret L. Lingreen, Judge.
Blanchard appeals the denial of his application for postconviction relief. AFFIRMED.
John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant. Randy L. Blanchard, Anamosa, appellant pro se.
Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant Attorney General, W. Patrick Wegman, County Attorney, and Denise Timmons, Assistant County Attorney, for appellee.
Considered by DANILSON, C.J., McDONALD, J., and SACKETT, S.J. SACKETT, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602 .9206 (2013).
Randy Lee Blanchard was convicted of first-degree murder, in violation of Iowa Code section 707.2(5) (2007), and child endangerment resulting in death, in violation of Iowa Code section 726.6(4), following the death of his infant daughter. He filed an application for postconviction relief contending his trial attorney was ineffective in a number of ways. He appeals, contending the district court erred in denying his application. We affirm.
The State further contends that Staudt could not be deemed ineffective for not later invoking Blanchard's right to a jury trial because the trial court had agreed not to take the prior conviction into consideration. The State further points out that nothing in the district court's ruling shows the court took that evidence into consideration.
The adequacy of a jury-trial waiver is a mixed question of law and fact, which we review de novo. Feregrino, 756 N.W.2d at 703. We review Blanchard's claim with regard to a jury trial in view of the great solicitude of courts for jury trials. Stallings, 658 N .W.2d at 106. We are mindful that the district court's ruling on a jury waiver is a matter vested in the courts sound discretion. Feregrino, 756 N.W.2d at 703
The State argues that the court made it clear it would not take the information into consideration. Blanchard argues that the facts of the 1997 conviction would work upon the court's mind. He further argues that the record shows that the court may have taken his prior conviction into consideration because it said in sentencing Blanchard said that it was biased against parents that harm their children in response to Blanchard's charge that the court was biased. He also contends that once the court ruled to prohibit the prior conviction, trial counsel was within its ability to reassert the jury trial right on Blanchard's behalf and should have reasserted it.
The court said it would not consider the conviction, and a careful reading of the decision convicting Blanchard makes it clear it based its determination on the facts elicited at trial and not on the prior conviction.
As to Blanchard's charge the court showed its prejudice when it made the statement regarding people who injure children, we find it may have been ill-advised, but it is not sufficient to show the court considered the earlier conviction in making a finding of guilt for the statement was not made until the sentencing hearing, and having been convicted for first-degree murder, Blanchard's sentence was set by statute. We affirm on this issue.
3. STATEMENTS TO LAW ENFORCEMENT. Blanchard was charged with the child's murder after he gave two statements regarding his action to the police. He did not to testify. No objections were made at trial to the admission of his two statements. Blanchard contends his trial counsel was ineffective in failing to file a motion to suppress these statements. The State contends the statements were voluntary. Blanchard contends neither waiver was voluntary, he was in custody at both times, and he was not informed of his Miranda rights.
The Miranda warnings protect a suspect's Fifth Amendment right against self-incrimination “ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time.” Colorado v. Spring, 479 U.S. 564, 574 (1987). Because the defendant's appeal of a motion to suppress implicates constitutional issues, our review is de novo. State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997). If Blanchard's trial attorney had challenged the admission of Blanchard's statements, the State would have been required to prove Blanchard was adequately informed of his Miranda rights, understood them, and knowingly and intelligently waived them. See Moran v. Burbine, 475 U.S. 412, 421 (1986) (“[T]he waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.”); Morgan, 559 N.W.2d at 606. The State would also be required to prove Blanchard gave his statement voluntarily. See Morgan, 559 N.W.2d at 606. The State would have had to prove by a preponderance of the evidence that Blanchard knowingly, intelligently, and voluntarily waived his Miranda rights. See State v. Ortiz, 766 N.W.2d 244, 249 (Iowa 2009)
Blanchard contends that at both times he was questioned he was in custody. He contends that he believed that if he did not talk to the officers they would arrest him. He argues that while he was free to leave, it is apparent their purpose was to obtain incriminating admissions from Blanchard as to his contact with his daughter and he had understood his situation to be one of custody.
In Ortiz, 766 N.W.2d at 251, the court noted Miranda provides that a suspect is in custody under formal arrest or under any other circumstances where he is deprived of his freedom of action in any significant way. Whether the facts surrounding the first interview would support a finding that Blanchard's freedom was impacted in a significant way, we need not decide. In the second interview, Blanchard was transported by the officers to the police station where the interview took place. He was confronted with his actions concerning the child's death and the facts would indicate he could well assume, as he testified, that he was not free to leave. He was not given Miranda warnings. Therefore the question is whether his trial counsel's failure to file a motion to suppress prejudiced him.
Blanchard argues that the failure to file the motion to suppress prejudiced him and affected the outcome of the case because it was likely the State would not have had enough evidence to convict him without he statements. We disagree. In its fact-findings, the trial court noted Dr. Carey's impressions of Blanchard's behavior during Aliya's stay at Mayo Clinic. It noted Dr. Carey was “taken aback” by the fact Blanchard “showed little or no emotion and did not seem overwhelmed by the situation,” as well as the fact that he “appeared more concerned with the doctor's opinion as to how this may have happened rather than the likelihood of his daughter's survival.” Although Blanchard initially denied knowing how Aliya's injuries could have occurred, he later told Dr. Blanchard that “he may have struck her head on a microwave door while preparing her bottle.” Blanchard told Dr. Billings he admitted to law enforcement that he had become frustrated with Aliyah and shook her while on the couch. At that point, Blanchard appeared to be “very distraught” and stated he could not live with himself if Aliyah died. Another doctor who observed Blanchard at the hospital found it strange that Blanchard appeared to be laughing and joking and talking about video games with his mother rather than expressing concern for his child's welfare. Coupled with Eilderts's testimony about what she heard during Blanchard's 3 a.m. feeding of Aliyah and Blanchard's behavior on the morning of February 5, 2008, there is not a reasonable likelihood the outcome of trial would have been different had the statements been suppressed. Because Blanchard is unable to show prejudice, we affirm on this issue.
4. FAILURE TO CALL BLANCHARD'S MOTHER AS A WITNESS. Blanchard contends that his attorney should have called his mother, Sherry have done to Aliya. At the postconviction hearing, Hanson testified that Eilderts had called her one day seeking Blanchard's last paycheck and said,
“Aliya got—got hit,” or she swung Aliya against a board, is what she told me.
I go, “What the hell did you do that for?” “I don't know,” and then she said she did it twice on the couch. She hit—she swung the baby down and hit
Hanson testified she had this phone call with Eilderts before the trial and she told Staudt about Eilderts's statements by phone twice but Staudt was not interested in this information.
Hanson also testified she had an opportunity to discuss the facts of the case with Staudt. On cross-examination she admitted her aunt told her to tell Blanchard not to hurt the child and she told him prior to the child's birth that she would kick him if he hurt the child. She also indicated she was aware Blanchard had gone to prison for hurting an infant.
Staudt responded to this complaint, indicating that he realized Eilderts had sole care of the child between the time Blanchard left for work and returned home so he deposed her and she was calm, sweet, and did not appear to be someone you would believe would have harmed a young child.
Staudt further testified:
[T]here were some factors that went into that. Her behavior beforehand, her remorse, a number of other things that went into that. And so it just made more sense and I felt that Randy stood a better chance, that it would be more difficult for a district court judge to say beyond a reasonable doubt that the only person that had the capabilities or the opportunity or the ability to harm this child was Randy.
... I talked to Randy about this—and given the fact a judge would have to issue a written verdict and establish proof beyond a reasonable doubt in the judge's mind as to what—whatever reasoning he or she felt that proved Randy guilty beyond a reasonable doubt stood a much better chance on appeal, if he were to lose, than the simple jury verdict of guilty or not guilty.
... [T]here were things that we could poke at Annie to discredit some of her testimony and to discredit some of her believability.
Annie is a nickname for Eildert.
But I did not believe it would be enough to overcome what a jury—I just felt that a jury was going to look at his case and they were going to say this young child was perfectly healthy until point X. Between that point and the next time we know, there was a doctor involved and something horrible happened to this child; and at that point, there were only two people that were in charge, and Annie just did not—I—I didn't believe a jury would believe that she was the one who did it. So it made more sense to us from a strategy scenario to try it to a judge.
The postconviction court found there was no credible support in the record that Eilderts confessed to Hanson that Eilderts struck the child twice while on the couch, noting it appeared this account was given for the first time at the postconviction hearing.
A review of the record shows that either parent was in a position to inflict the injuries that led to the child's death. The doctors were unable to fix an exact time of injury. Both parents were drinking on Monday evening, and in addition, Eilderts was on pain medication. It is conceded that the child cried while Blanchard talked to Eilderts on the telephone. While Eilderts contends that the child was not taking a bottle after Blanchard left home in early morning, the seizure did not occur until after he returned, and she was in total control of the child for several hours.
Staudt acknowledged that Hanson had told him about Eilderts's statements. However, Staudt viewed the statements as Eilderts “blaming herself for her child's death because she felt guilty about leaving the child alone with [Blanchard],” not an admission of wrongdoing. Staudt was also concerned that if Hanson testified, damaging statements she made to the police about Blanchard might be introduced.
The postconviction court resolved this issue finding calling Hanson as a witness would not have changed the outcome. We agree and affirm on this basis.
5. WAIVER OF RIGHT TO TESTIFY. Blanchard contends the postconviction court erred when it concluded he knowingly and voluntarily waived his right to testify. He claims counsel was ineffective in advising him against testifying.
Counsel has a duty to advise a defendant on the consequences of testifying to allow the defendant to make an informed decision as to whether to testify. Ledezma, 626 N.W.2d at 146–47. “Generally, the advice provided by counsel is a matter of trial strategy and will not support a claim of ineffective assistance absent exceptional circumstances. However, when a defendant follows the misinformed advice of counsel concerning the consequences of testifying, ineffective assistance of counsel may occur.” Id. at 147.
Staudt testified he provided Blanchard with different options and explained what could happen if Blanchard decided to testify and what could happen if he decided not to testify. Those scenarios included being confronted with prior felony convictions, as well as a prior conviction for child endangerment. Blanchard argues that counsel's advice was hindered by his failure to adequately prepare. Specifically, Blanchard argues that most if not all of his prior felony convictions were more than ten years old and therefore counsel could have obtained a ruling on their admissibility before advising him.
We find Blanchard has failed to prove he was prejudiced by not testifying. He makes the blanket statement that by not testifying, he was unable to “provide more details regarding the facts of the matter and his defense to the charge.” He does not state what these facts would have been or how they would have likely changed the outcome of trial. Accordingly, we affirm on this issue.
AFFIRMED.