Opinion
22-1170
03-27-2024
LESTER TALSHAWN RICHARDSON, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.
Jennifer Bennett Finn of Pelzer Law Firm, LLC, Estherville, for appellant. Brenna Bird, Attorney General, and Kyle Hanson (until withdrawal) and Thomas J. Ogden, Assistant Attorneys General, for appellee .
Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.
Lester Richardson appeals the denial of his application for postconviction relief.
Jennifer Bennett Finn of Pelzer Law Firm, LLC, Estherville, for appellant.
Brenna Bird, Attorney General, and Kyle Hanson (until withdrawal) and Thomas J. Ogden, Assistant Attorneys General, for appellee .
Considered by Schumacher, P.J., Chicchelly, J., and Danilson, S.J. [*] Blane, S.J., [*] takes no part.
DANILSON, SENIOR JUDGE.
Lester Richardson appeals from a ruling denying his application for postconviction relief (PCR) following his conviction for first-degree murder for the shooting death of Martin Turks. Upon our review, we affirm.
I. Background Facts and Prior Proceedings
In 2012, a jury found Richardson guilty of first-degree murder. This court previously summarized the underlying events giving rise to Richardson's conviction as follows:
On September 26, 2010, an incident occurred at the Hangover, also known as the Boom Boom Room, a bar in West Des Moines, where Lakita Portwood received a fairly large laceration to her forehead from a man with a beer bottle. Portwood's half-brother, Lester Richardson, stated he wanted to get back at the person who injured Portwood.
On October 14, 2010, Jamarcus Lee, Bobby Woods, and Martin Turks drove in a black Jeep Cherokee to a laundromat/liquor store on University Avenue in Des Moines. Lee was driving, Woods was in the front passenger seat, while Turks was in the backseat. Lee backed into a parking space. Turks went into the store to buy some alcohol and cigars. While Turks was in the store, Lee and Woods began talking to some women who had parked in an adjacent parking space.
Richardson came up and spoke to Woods, who he knew. When Turks returned to the car, Woods introduced him to Richardson. Turks told Richardson he liked to go to the Boom Boom Room, and he considered himself a ladies' man. Richardson then walked away and went over to a different vehicle. Turks remained standing between the two cars, talking to the women.
Casino McDonald, who was the long-time boyfriend of the mother of Portwood and Richardson, testified Richardson called him from the laundromat/liquor store and asked him to pick him up to give him a ride home. McDonald stated that when he arrived at the scene, Richardson told him that the men in the Jeep Cherokee were involved in the incident when Portwood got hit in the head with a bottle. McDonald stated he then went over to speak to the person in the driver's seat.
Lee testified that a man walked up to the driver's side window of the Jeep Cherokee, where Lee was sitting, and said, "What was that shit you and your cousin was talking about laughing at the club
when my daughter got hit in the face with a bottle?" While Lee and Woods were talking to McDonald, a shot was fired which struck Turks in the head and killed him.
When the shot was fired, Lee and Woods drove out of the parking lot. Additional shots were fired at the back of the Jeep Cherokee. Woods was struck by a bullet which did not penetrate the skin, but caused bruising. Lee testified that if he had been sitting up straight in the vehicle, he would have been shot in the back because a bullet went through the driver's seat. A bullet penetrated the gas tank of the Jeep Cherokee, causing gas leakage. Lee and Woods circled the block, and then parked at a gas station adjacent to the laundromat/liquor store.
McDonald gave Richardson a ride to McDonald's home. McDonald stated he took Keo Way down to 235 east-bound. He testified Richardson said, "fuck, fuck, fuck," as they were driving. Richardson asked his girlfriend, Tara Jones, to pick him up from McDonald's home. Richardson spent the night at Jones's home. He did not mention anything about the shooting to Jones. The next day he dropped out of school and left town.
Turks died as a result of a gunshot wound to the head. Police officers obtained a videotape from the laundromat/liquor store which showed a man with his arm extended pointing towards the back of the Jeep Cherokee, and they believed this was the gunman. Officers found Richardson's cell phone in the weeds near the Keo Way entrance to the freeway. By tracing telephone numbers on Jones's cell phone, officers were able to track Richardson to Minneapolis, Minnesota. When officers found Richardson he was hiding on some stairs in a home.
Richardson was charged with murder in the first degree, in violation of Iowa Code section 707.2 (2009).
State v. Richardson, No. 12-0868, 2013 WL 5760718, at *1-2 (Iowa Ct. App. Oct. 23, 2013).
Richardson's family sought out private defense counsel for him and contacted an attorney, Channon Murphy, who agreed to take the case as a favor. However, Attorney Murphy had never tried a murder case and had only tried one criminal case, which was to the bench-she had never tried a criminal case to a jury. At a pre-trial hearing, Richardson assured the court that he selected Attorney Murphy as his counsel, understood she had limited experience with criminal trials and proceedings, and still wanted her to continue to represent him. Attorney Andrew Stangl, who had been admitted to practice the year prior, served as second chair to Attorney Murphy. The jury ultimately found Richardson guilty as charged.
Attorney Murphy had experience with civil jury trials.
This was Attorney Stangl's first jury trial.
This court affirmed his conviction on direct appeal. Id. at *5. Richardson then filed a PCR application alleging he received ineffective assistance of counsel, citing both Attorney Murphy's general criminal trial inexperience and a purported medical condition Attorney Murphy suffered from during the trial, among other claims. The district court rejected all of Richardson's claims and denied his request for PCR. Richardson now appeals.
II. Standard of Review
"We generally review a district court's denial of an application for [PCR] for errors at law." Doss v. State, 961 N.W.2d 701, 709 (Iowa 2021). However, "[o]ur review is de novo '[w]hen the basis for relief implicates a violation of a constitutional dimension,'" including claims of ineffective assistance of counsel. Id. (second alteration in original) (quoting Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018)); accord Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021).
III. Discussion
To prevail on a claim of ineffective assistance of counsel, Richardson must establish two elements by a preponderance of the evidence: (1) counsel breached an essential duty and (2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984). As to the first element, we presume counsel performed competently. Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). Counsel's performance is measured against "the standard of a reasonably competent practitioner." Id. "We assess counsel's performance 'objectively by determining whether [it] was reasonable, under prevailing professional norms, considering all the circumstances.'" Id. (alteration in original) (citation omitted). With respect to the second element, Richardson must show that prejudice resulted from counsel's failure to perform an essential duty. See id. To do so, Richardson "need only show that the probability of a different result is sufficient to undermine confidence in the outcome." State v. Clay, 824 N.W.2d 488, 496 (Iowa 2012) (citation omitted). However, if Richardson fails to establish either element, then we may affirm the district court without considering the other element. See Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).
As to Richardson's complaints regarding Attorney Murphy's general lack of criminal experience, we recognize that Richardson privately retained Attorney Murphy to serve as his counsel. While it might have been more prudent for Richardson to seek out more experienced counsel, it was his right to select his own counsel. See State v. Mulatillo, 907 N.W.2d 511, 518 (Iowa 2018) ("The right to counsel includes the right to choose counsel when that counsel is not court appointed. The defendant is deprived of his or her right to counsel when the court erroneously prevents the defendant from being represented by his or her counsel of choice ...." (internal citations omitted)). The record makes clear that Richardson knew of Attorney Murphy's limited criminal-defense experience, understood that an attorney's representation often improves with experience, and reaffirmed his selection of Attorney Murphy as his counsel when the district court and prosecutor attempted to caution him of the potential pitfalls of his selection. As the State puts it, "In the end, Richardson cannot receive relief for a risk he willingly accepted." Moreover, inexperience itself does not render counsel ineffective. See United States v. Chronic, 466 U.S. 648, 665 (1984) ("The character of a particular lawyer's experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such evaluation."). Instead, Richardson must identify specific instances of ineffective assistance rendered by Attorney Murphy. See Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985).
With that in mind, Richardson points us towards two specific purported instances where he believes Attorney Murphy provided ineffective assistance.First, Richardson claims Attorney Murphy should have called his girlfriend, who was present in another vehicle at the shooting, to testify in his defense. However, Attorney Stangl explained that Richardson was "kind of protective of [his girlfriend] and wanted to keep her out of it, if he could," which contributed to the decision to not call the girlfriend as a witness. Regardless, we cannot grant relief on this claim because Richardson has not provided any evidence of how his girlfriend would have testified had she been called as a witness and how it would have aided in his defense. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994); Nichol v. State, 309 N.W.2d. 468, 470 (Iowa 1981) (recognizing "complaints about failure to call witnesses should be accompanied by a showing their testimony would have been beneficial").
To the extent that Richardson also claims Attorney Murphy should have followed the advice of a private investigator and conceded that Richardson fired a gun at the SUV as it left the scene of the shooting, we conclude her decision to reject that suggestion was a reasonable trial strategy. The prosecutor explained that concession would have significantly benefitted the prosecution and made it even easier to secure a conviction.
Second, Richardson contends Attorney Murphy was ineffective because she "should have advised him to turn himself in to avoid giving the issue of flight as an additional 'indicator of guilt[].'" While Attorney Murphy conceded in her deposition that she did not know Richardson could turn himself in to a police department in another state, she was not his attorney at the time he dropped out of school and left town. Richardson's actions before securing Attorney Murphy's services already introduced flight into the case, giving rise to a permissible inference of guilt before Attorney Murphy was even his attorney. So any failure by Attorney Murphy to advise Richardson to turn himself in did not result in prejudice.
Richardson also points to Attorney Murphy's physical health at the time of trial and claims her health impeded her performance during voir dire, closing, and cross-examination of a key witness. Richardson points to Attorney Murphy's self-critical statements in her deposition taken for the PCR proceedings wherein she claimed she "blanked" or that her "mind went blank" during voir dire, closing arguments, and while cross-examining the witness. But a review of the trial transcript shows that Attorney Murphy actively and meaningfully participated in all aspects of the trial. No portion of the trial transcript supports Attorney Murphy's claims that her mind went blank in a matter that prevented her from carrying out her duties during the trial. Nor did Attorney Murphy alert the court that she was experiencing any type of medical episode, despite the fact she previously freely discussed her various medical conditions with the court, calling into question whether the "blanking" episodes actually occurred. We also note Richardson does not identify any specific deficiencies in Attorney Murphy's representation when her mind purportedly went blank. He does not explain how Attorney Murphy should have carried out voir dire differently than she did, what questions she failed to ask during cross-examination, or what she should have added to her closing argument.
Even assuming, without deciding, that Attorney Murphy's health somehow impeded her performance, Richardson cannot establish prejudice because the evidence against him was overwhelming. The murder was captured on security camera footage, partially obstructed by an SUV. The video established the shooter had to be one of two people standing on the obstructed side of the SUV with the victim. Richardson was one of those two people. He had motive to shoot the victim-he believed the victim had previously injured his sister. See State v. Richards, 809 N.W.2d 80, 94 (Iowa 2012) (recognizing a person's motive to commit an offense is probative to identity). As the SUV pulled away from the scene of the shooting, Richardson is seen in the video following the SUV with his arm stretched out as though he is shooting at the SUV. Separate security camera footage shows the SUV shortly thereafter with bullet holes in it and gasoline leaking from a bullet hole in the gas tank, leaving no question that Richardson shot at the SUV. Bullet casings recovered at the scene of the shooting all had consistent striation markings, indicating that the same gun was used to shoot at the victim and the SUV. Multiple eyewitnesses identified Richardson as the shooter. Richardson took efforts to cover up his involvement, including ditching his cell phone as he left the scene, dropping out of school, and fleeing the state the next day.
Given this strong evidence establishing Richardson's guilt, our confidence in the jury's verdict is not undermined. Still, Richarson urges us to consider whether the cumulative impact of all of Attorney Murphy's purported shortcomings amounts to prejudice. See Clay, 824 N.W.2d at 501-02 (recognizing if more than one ineffective-assistance claim is resolved based on a lack of prejudice, then the court should also consider any potential cumulative prejudice). Even considering all potential cumulative prejudice from Attorney Murphy's alleged ineffective assistance, our confidence in the outcome of the proceedings is not undermined. As previously discussed, the evidence clearly established Richardson was the assailant who shot the victim. Had Attorney Murphy performed exactly as Richarson desired, we do not believe the result would have been any different. Richardson cannot establish cumulative prejudice.
We affirm the district court's denial of the PCR application.
AFFIRMED.
[*] Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2024).