Opinion
No. 5-709 / 05-0051
Filed November 23, 2005
Appeal from the Iowa District Court for Plymouth County, James D. Scott, Judge.
The State appeals after Dionicio Hernandez, Jr.'s application for postconviction relief was granted by the district court and a new trial was ordered. AFFIRMED.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, and Darin J. Raymond, County Attorney, for appellant.
Scott L. Bixenman of Murphy, Collins Bixenman, P.L.C., LeMars, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Dionicio Hernandez, Jr. was convicted of homicide by motor vehicle. His petition for postconviction relief was granted by the district court. The district court determined Hernandez's trial counsel failed to perform an essential duty by not conducting a reasonable investigation. Specifically, trial counsel failed to retain an expert toxicologist to examine the blood alcohol testing procedures followed by the State in testing Hernandez's blood sample after money was set aside for that purpose. The district court also found prejudice due to the failure. Thus, the district court ordered a new trial. The State appeals arguing (1) trial counsel did not fail to perform an essential duty; (2) Hernandez was not prejudiced because there was ample other evidence to conclude that Hernandez was under the influence of alcohol at the time of the accident; and (3) the expert testimony presented at the PCR hearing was not enough to show a reasonable probability that the result of the proceedings would have been different if Hernandez's expert had testified at trial. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
On November 23, 1998, a pickup truck driven by Hernandez crashed into a fire station in Le Mars, Iowa. The passenger in the pickup truck, Lisa Dalton, was killed as a result. Hernandez was charged and convicted after a jury trial of homicide by motor vehicle in violation of Iowa Code section 707.6A(1) (1997), and he was sentenced to a prison term not to exceed twenty-five years.
Hernandez admitted that he drank five cans of beer from an eighteen-pack of beer between the hours of 10 p.m. and 3 a.m. on the night the accident. He claimed that his father drank two beers from the package earlier in the night and that Lisa Dalton drank three beers with him during the night. Eight cans of unopened beer were found at the scene of the accident. Hernandez also admitted that he was speeding when he hit a pine tree and then lost control of his truck and crashed into the fire station. The officer who responded to the scene found Hernandez outside of the truck and testified that he detected a strong odor of alcohol emanating from Hernandez and that Hernandez was unresponsive to questioning.
Hernandez was taken to a hospital for treatment. Hernandez suffered from multiple lacerations, a contusion or splitting of one of his kidneys, a contusion to his spleen, and at least one broken rib. Additionally, there was concern as to a build up of fluid in his gastrointestinal tract. While he was in the hospital a search warrant was obtained to a get a blood specimen from Hernandez due to the belief that he was intoxicated. The sample was sent to the Division of Criminal Investigation (DCI), where it was tested. The sample was in transit for eight days before arriving at DCI. The results of the test indicated that Hernandez had a blood alcohol concentration (BAC) of 0.177.
On direct appeal, the conviction was affirmed and two claims of ineffective assistance of counsel were preserved for possible postconviction proceedings. State v. Hernandez, No. 99-1338 (Iowa Ct.App. Sept. 27, 2000). Hernandez filed an application for postconviction relief, which was summarily dismissed by the district court. We reversed the district court's dismissal and remanded for further proceedings. State v. Hernandez, No. 02-1916 (Iowa Ct.App. Mar. 24, 2004).
At the subsequent postconviction relief proceedings, Hernandez argued his trial counsel provided ineffective assistance and he was prejudiced. The basis for Hernandez's claim was that after the trial court granted Hernandez's request to return $5,000 of his cash bond and explicitly directed that the funds were to be used to retain expert witnesses and conduct depositions, his attorney took the $5,000 and applied it directly to attorney's fees. Thus, trial counsel did not retain an expert witness nor did he conduct any depositions.
Hernandez's attorney was held to have committed ethical violations and his license to practice law was suspended due to his actions. Iowa Supreme Ct. Bd. of Prof'l Ethics Conduct v. Wickey, 679 N.W.2d 1 (Iowa 2004).
At the postconviction hearing, Hernandez produced a toxicology expert, Dr. Michael D. Corbett, who found fault with the State's testing of Hernandez's blood sample. Corbett indicated that the fact that the samples were allowed to remain at room temperature (if not higher) for a period of eight days before testing was the most egregious error. Corbett cited literature that showed that blood contaminated with yeast can ferment and increase in alcohol concentration if the blood is not refrigerated. Corbett testified that where there is an injury to the gastrointestinal tract it is particularly possible that yeast could enter into the bloodstream. Corbett concluded that blood allowed to remain at room temperature for more than two days is of questionable value for BAC testing and that blood allowed to remain at room temperature for more than four days is "devoid of any probative value" for BAC testing. Corbett concluded that Hernandez's "blood sample lacks probative value, and is worthless as evidence of intoxication in this case."
Corbett also indicated that there was no evidence in the records provided to him by DCI that the gas chromatograph used to test the blood sample was properly calibrated before testing, further raising doubt as to the accuracy of the test.
The district court held Hernandez did receive ineffective assistance of counsel. The court found Hernandez's trial counsel failed to perform an essential duty by failing to retain an expert and failing to at least interview witnesses before trial. Additionally, the district court found Hernandez was prejudiced by trial counsel's failures. Therefore, the district court reversed defendant's conviction and ordered a new trial. The State appeals.
The State argues that (1) trial counsel's actions did not amount to a failure to perform an essential duty, and (2) Hernandez did not establish that he was prejudiced by any failure.
II. STANDARD OF REVIEW.
Postconviction proceedings are reviewed for errors of law. Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005) (citing Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001)). However, issues of constitutional dimension are reviewed de novo. Id. III. ANALYSIS.
To establish an ineffective assistance of counsel claim, the applicant must show that "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999) (quoting State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984)). To establish the first prong of the test the applicant must show that counsel's performance "fell below an objective standard of reasonableness so that counsel failed to function as guaranteed by the Sixth Amendment." Id. (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). To establish the second prong of the test the applicant must show that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 815 (citing State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987)).
Essential Duty. Hernandez alleges his trial counsel failed in his duty to investigate and prepare an adequate defense. In particular, Hernandez testified he was assured by his attorney that the attorney would retain an expert in order to examine the validity of the State's BAC test, and challenge the test in court if it appeared suspect.
Counsel is required to conduct a reasonable investigation or make reasonable decisions that make a particular investigation unnecessary. Ledezma, 626 N.W.2d at 145 (citing Strickland, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). "In each instance, the decision to investigate a particular matter must be judged in relationship to the particular underlying circumstances." Id.
The facts underlying the present case are as follows: (1) Hernandez was granted a reduction in his cash bond and the money was released to his counsel to pay for depositions and expert witnesses; (2) trial counsel testified he contacted a toxicologist in Omaha and discussed Hernandez's case in general terms; (3) the toxicologist indicated he would need to see the all the records available in the case and a fee, after which time counsel had no further contact with the toxicologist; (4) at trial the State produced an expert who indicated that the State followed all proper procedures in conducting Hernandez's BAC test, which revealed that the BAC was 0.177, and the expert further testified a person of Hernandez's approximate weight would need to consume between nine and twenty-four cans of beer to attain that concentration; and (5) at the PCR hearing Hernandez produced an expert who found numerous faults with the State's testing procedures and concluded the State's test was "worthless as evidence of intoxication" due to the problems.
At the PCR hearing, trial counsel indicated that he chose not to retain a toxicologist because he feared that the expert's opinion would support the State's expert. This was only speculation on the part of the trial counsel. Trial counsel did not exercise sound professional judgment and failed to perform an essential duty and was ineffective.
Prejudice. After proving ineffective assistance, the applicant must also show that the error caused prejudice. Ledezma, 626 N.W.2d at 145 (citing Strickland, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697). "To sustain this burden, the applicant must demonstrate `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
The State first argues there was no prejudice because Hernandez was charged with the crime of homicide by motor vehicle in two alternative ways: (1) "operating a motor vehicle while under the influence of alcohol," and (2) operating a motor vehicle "while having an alcohol concentration . . . of .10 or more." Iowa Code § 707.6A(1). The State argues that while Hernandez's expert may have called into question the conviction on the basis that Hernandez's BAC was too high, there is ample evidence to sustain a conviction for operating while under the influence. The evidence to which the State points is (1) Hernandez admitted to drinking that evening; (2) the responding officer reported a strong odor of alcohol emanating from Hernandez; (3) the responding officer indicated that Hernandez's speech was incoherent and he was unsteady on his feet; and (4) the manner in which Hernandez was driving. However, Hernandez did present evidence that bolstered his account that he drank only five cans of beer that night. The evidence shows Hernandez bought an eighteen-pack of beer, he shared two cans with his father, he and Lisa Dalton drank three beers each while together that night, and eight unopened cans of beer were found at the scene of the accident. Also, Hernandez claimed his incoherent speech and unsteadiness were attributable to having just been involved in a collision rather than intoxication.
It seems clear that the best evidence presented by the State was the numerical evidence as to the result of the BAC test that showed Hernandez's BAC was in excess of the legal limit. The jury's verdict did not indicate which of the alternative means of committing the offense it found defendant guilty of; therefore, it is impossible to know how much credence the jury placed in the other evidence of intoxication pointed to by the State or the evidence presented by Hernandez.
The State also argues the testimony of Hernandez's expert at the PCR hearing is not enough to establish prejudice, as it is counterbalanced by the testimony of the State's expert. The State's expert testified that the DCI lab followed appropriate procedures in testing the samples. The State's expert testified he was not concerned with the delay in testing the samples. He testified that the longer a sample sits around the lower the alcohol concentration will be. The State's expert also testified he was unconcerned that the calibration of the gas chromatograph was not documented because he claimed such calibration procedures would have been done to ensure the equipment was operating properly. We are not persuaded by this argument
We conclude Hernandez was prejudiced. Had trial counsel used the funds explicitly earmarked to conduct an investigation there is a strong probability he would have retained an expert who would have testified in a manner similar to that of Corbett at the PCR hearing and called into doubt the validity of the State's BAC test. The other evidence of intoxication was not so strong; therefore, we conclude there is a reasonable probability the jury would have returned a verdict of not guilty if trial counsel had not breached an essential duty.