Thomas Guy Henderson v. State of Iowa ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1797
Filed February 8, 2023
THOMAS GUY HENDERSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Carroll County, Adria Kester, Judge.
An offender serving two life sentences appeals the denial of postconviction
relief. AFFIRMED.
Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant.
Brenna Bird, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
2
TABOR, Presiding Judge.
A jury convicted Thomas “Tommy” Henderson in the brutal killings of
Tammie Devore and her adult son Karl. On direct appeal, we affirmed his
convictions. See State v. Henderson, No. 15-1166, 2017 WL 108280, at *1 (Iowa
Ct. App. Jan. 11, 2017). Henderson then petitioned for postconviction relief (PCR),
contending he received ineffective assistance when his attorney did not call two
alibi witnesses. The district court denied relief, holding counsel breached no duty
because neither witness “was able to provide an alibi for the period in question.”
After reviewing the record anew, we likewise find Henderson cannot show his
attorney was constitutionally remiss in not calling those witnesses.1
I. Facts and Prior Proceedings
Neighbors discovered the bodies of Karl and Tammie DeVore in Tammie’s
home on Sunday, May 18, 2014. Neither had been seen alive since that Friday.
As police sorted through the crime scene, they saw that Tammie was midway
through getting a tattoo when she was beaten to death. That tattoo-in-progress
was one clue connecting Henderson to her murder. When police later searched
his bedroom closet, they found an amateur tattoo kit with ink and needles like those
left behind at the murder scene.
In a second significant connection, criminalists found Henderson’s DNA on
the knife handle and Yoshi Blade2 used to fatally stab Karl Devore. On top of that
1 As a default, we review PCR rulings for correction of errors at law. Brooks v.
State, 975 N.W.2d 444, 445 (Iowa Ct. App. 2022) (citation omitted). But because
Henderson raises the constitutional issue of ineffective assistance of counsel, our
review is de novo. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).
2 Yoshi Blade is the commercial name of a ceramic knife. Investigators found the
tip of that blade lodged in Karl’s skull after his murder.
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incriminating evidence, investigators recovered pieces of Karl’s wallet near
Henderson’s apartment complex. When interviewed by detectives, Henderson
admitted knowing Tammie and having gone to her home several times to buy
marijuana. Viewing that proof in a light favorable to the verdicts, on direct appeal
we found sufficient evidence to sustain the two first-degree murder convictions.
Henderson, 2017 WL 108280, at *5.
In the PCR proceedings, Henderson alleged that he received ineffective
assistance of counsel because his attorney failed to present “exculpatory
evidence” from two witnesses: his mother, Delores, and his sister-in-law, Sharon.
To bolster his allegation, he offered their depositions, taken before his 2015 murder
trial. Both women described Tommy and Delores living in a two-bedroom
apartment upstairs from Sharon and her husband in May 2014. Sharon recalled
that over the weekend of May 16 through 18, she had coffee with Tommy on Friday
morning and did not see him again until supper that evening. They kept the same
schedule on Saturday. On Sunday, Sharon did not see Tommy until closer to lunch
time. His mother, Delores, recalled spending time with Tommy that weekend, but
could not account for his whereabouts after she retired to her own bedroom around
8:00 or 9:00 p.m.
Henderson also called both women to testify at the PCR hearing. Delores
portrayed her son as “very quiet” and “shy,” essentially a “loner” who “stayed at
home most of the time,” but was “very caring” and non-violent. Sharon similarly
described Henderson as “very quiet,” a “homebody,” and a “really nice guy.”
At that same hearing, the State called defense counsel Jason Dunn to
address Henderson’s allegation of ineffective assistance. Dunn testified that he
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interviewed both Delores and Sharon as potential defense witnesses, but made a
strategic decision not to call them to the stand. He explained the difficulty in
establishing an alibi under the circumstances: “First off, we didn’t have a set span
of time with which we knew these murders happened, and neither Delores nor
Sharon . . . could provide us a complete alibi or complete knowledge of Tommy’s
whereabouts for that entire weekend, basically.” Dunn was also reluctant to call
them as witnesses because they “talked about Tommy’s temper and that was
something we didn’t want to open any door to or even have as part of the
discussion.”
The district court rejected Henderson’s claim that Dunn was constitutionally
remiss in not calling either family member as a witness. The court decided that
Dunn pursued a valid strategy:
There is nothing in the record to show that trial counsel’s actions
regarding the failure to call Sharon Henderson and Delores
Henderson as witnesses at trial amount to ineffective assistance.
Neither was able to provide an alibi for the period in question. Their
testimony could have opened the door to much more damaging
testimony, outweighing any benefit from their testimony. Likewise,
the record is clear that Dunn investigated the case and advanced
sound arguments at trial.
Henderson appeals the PCR denial.
II. Analysis
To prove ineffective assistance, Henderson must show his attorney failed
to perform an essential duty, and that failure caused prejudice. Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). On the performance prong, we ask
whether counsel acted within the normal range of competency, starting from the
presumption that they did. See State v. Cromer, 765 N.W.2d 1, 7–8 (Iowa 2009).
5
Henderson “must rebut the presumption of competence by showing a
preponderance of the evidence that trial counsel’s representation fell below an
objective standard of reasonableness.” State v. Lorenzo Baltazar, 935 N.W.2d
862, 868 (Iowa 2019) (cleaned up). Henderson must prove more than mere
“improvident trial strategy, miscalculated tactics, mistake, carelessness or
inexperience as viewed with the clarity of hindsight.” Cromer, 765 N.W.2d at 8(cleaned up). On the prejudice prong, Henderson must show his attorney’s errors
were so serious as to deprive him of a fair trial. Strickland, 466 U.S., at 687. There
must be a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” See id. at 694.
Henderson insists attorney Dunn had an essential duty to call Delores and
Sharon as defense witnesses. He recognizes neither could provide “an absolute
airtight alibi.” But he contends their recollections would have promoted the position
that he could not have committed the crimes “because he was at home.” That
extra oomph, in his view, would have swayed jurors to acquit.
In response, the State argues that trial counsel made “a reasonable
strategic choice to decline presenting an incomplete alibi that risked opening the
record to bad character evidence.” Henderson downplays the risk of inviting
character evidence, saying counsel could have directed the witnesses on the alibi
evidence only. But the State contends that defense counsel was right to be
concerned about a potential overlap between the partial alibi evidence and
character traits. The State points to Henderson’s mother characterization of her
son as a “loner,” for example, when describing how much time he spent at the
apartment they shared.
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After our de novo review, we reach the same conclusion as the district court.
Henderson fails to show Dunn’s strategic call constituted subpar performance.
Dunn investigated the potential alibi witnesses and decided that their testimony
could do more harm than good. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690. Dunn was experienced counsel
and his performance was well within the standard of a reasonably competent
criminal defense attorney. See State v. Coleman, 907 N.W.2d 124, 141 (Iowa
2018).
Because we need not reach the prejudice prong, we affirm this PCR denial
without further consideration. See State v. Russell, 897 N.W.2d 717, 730 (Iowa
2017) (“[I]f one prong is not met, the other need not be addressed.”).
AFFIRMED.