Cedric Bertron Theus, Applicant-Appellant v. State of Iowa ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 4-050 / 13-0773
Filed March 26, 2014
CEDRIC BERTRON THEUS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Steven J.
Andreasen, Judge.
An applicant appeals from the district court ruling denying his request for
postconviction relief. AFFIRMED.
Hannah M. Vellinga of Corbett, Anderson, Corbett, Vellinga & Irvin, L.L.P.,
Sioux City, for appellant.
Cedric B. Theus, Fort Madison, appellant pro se.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, Patrick Jennings, County Attorney, and Mark Campbell, Assistant
County Attorney, for appellee State.
Considered by Doyle, P.J., and Bower, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.
Cedric Bertron Theus has appealed from the district court ruling denying
his request for postconviction relief.
I. Procedural and Factual Background
Theus was convicted of a number of offenses, including first-degree
murder, in 1996. He was sentenced to life in prison without parole. He appealed
and the conviction was affirmed. Procedendo was issued June 29, 1998. He
filed his fifth request for postconviction relief on April 24, 2012. The State filed a
motion for summary judgment. On September 25, 2012, Theus filed a request to
amend his postconviction-relief application. The amendment contained a totally
new claim. The district court granted the motion for summary judgment as to the
initial application and gave each party an opportunity to respond to the issue
raised in the amendment. The order granting the motion for summary judgment
was supplemented by a subsequent order addressing the issue raised in the
amendment.
Theus was convicted by jury trial. At trial he admitted shooting the victim,
Terrance Gibson, four times but claimed self-defense. Gibson died as a result of
the shooting. Under the instructions given, the felony-murder rule was one of the
alternative theories upon which Theus could have been found guilty of first-
degree murder. The predicate felony was willful injury. The jury was instructed
that Theus committed willful injury causing serious injury if it found the following:
1. On or about the 15th day of March 1996, the defendant
used a pistol to wound Terrance Gibson.
2. The defendant specifically intended to cause a serious
injury to Terrance Gibson.
3. Terrance Gibson sustained a serious injury.
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4. The defendant was not acting with justification.
Theus claims the word “sustained” in element three was erroneous and
the instruction should have used the word “caused” instead. Theus also
contends in his amended petition that he discovered after trial that one of the
State’s witnesses had a juvenile record, and under the Brady rule the State had
the duty to disclose the juvenile record to him but did not do so. See Brady v.
Maryland, 373 U.S. 83, 87 (1963). Theus finally contends there were material
disputes of fact, which foreclosed granting the motion for summary judgment.
The State contends Theus should be denied any relief because of the bar
provided by the three-year statute of limitations contained in Iowa Code section
822.3 (2011).
II. Standard of Review
Postconviction relief proceedings, including motions for summary
judgment, are generally reviewed for errors of law. Castro v. State, 795 N.W.2d
789, 792 (Iowa 2011). When constitutional issues are involved, the review
becomes de novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).
III. Error Preservation
Error preservation is generally considered present when the issues to be
reviewed have been raised and ruled on by the district court. Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002). The district court ruled on the issues raised in
the initial application and allowed the issues raised by Theus’s amendment to be
argued by both parties. The issue raised in the amendment was decided in the
court’s supplemental order. Error has been preserved.
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IV. Discussion
Summary judgment is appropriate when there are no material factual
issues in dispute and the conflict concerns only the legal consequences flowing
from the undisputed facts. Thompson v. City of Des Moines, 564 N.W.2d 839,
841 (Iowa 1997). In this case there is no disputed material fact, only a dispute as
to the legal consequences of the undisputed facts. The resolution by a summary
judgment was appropriate.
The application for postconviction relief was filed more than three years
after the procedendo had issued following the appeal. Under the relevant
statute, the petition is superficially time-barred. Iowa Code § 822.3. Theus
contends the new “ground of fact or law” exception included in the cited section is
applicable.
Theus’s argument begins and, for all practical purposes ends, with State
v. Schuler, 774 N.W.2d 294 (Iowa 2009). Theus contends his request for
postconviction relief is timely because the Iowa Supreme Court’s decision in
Schuler expressed a “ground in law or fact” that could not have been raised until
Schuler had been decided. He claims therefore, under the provisions of section
822.3, the three-year statute did not begin running until September 4, 2009,
when Schuler was handed down.
In Schuler, the jury was instructed that the three necessary elements of
willful injury causing serious injury were as follows:
1. On or about August 31, 2006, the Defendant punched,
kicked, and/or grabbed Lucas Spinelli.
2. The Defendant specifically intended to cause a serious
injury to Lucas Spinelli.
3. Lucas Spinelli sustained a serious injury.
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Schuler, 774 N.W.2d at 298. The case was reversed by our supreme court
because there was no requirement of causation in the instruction as given. Id. at
299. The deficiency in the instruction was narrowed to the use of the word
“sustained” as opposed to the word “caused” in the third element. Id. at 298.
Theus then contends because the instruction in his trial used the word
“sustained” instead of “caused,” he has been convicted of a nonexistent crime in
violation of the Fourteenth Amendment due process clause. See Fiore v. White,
531 U.S. 225, 228-29 (2001). He further contends based on Goosman v. State,
764 N.W.2d 539, 545 (Iowa 2009), and Nguyen v. State, 829 N.W.2d 183, 188
(Iowa 2013), his claim is based on a law that could not have been raised at the
time of his trial.
Criminal charges are generally, and in this case, specifically based on
statutory law. The court’s instructions are the method of advising a jury of the
applicable law. Schuler did not create any law of the state of Iowa. A rendition of
the Uniform Instructions disseminated by the Iowa Bar Association was used in
Schuler and in Theus’s jury trial, but uniform instructions are used as an aide by
the courts and counsel and are not the law of the state. Schuler stands for the
general proposition that the uniform instruction for willful injury should be used
with care, and perhaps should be modified or clarified. See Schuler, 774 N.W.2d
at 298-99. Schuler stands for the specific proposition that an inadequate
instruction was given by the court in that particular case. Id. at 299. Reversal
was required because the instruction used did not require a finding of causation.
Id.6
Causation was, and still is, an element of the crime of willful injury. The
statutory language defining willful injury begins with the words, “Any person who
does an act,” and ends with the words, “causes severe injury to another,” or
“causes bodily injury to another.” Iowa Code § 708.4. The option of serious
injury or bodily injury determines the level of the offense. Id. The law, both
before and after Schuler, remains exactly the same without change or even
clarification. There is no ground of law expressed in Schuler that avoids the
application of the three-year statute of limitation.
Finally, the instruction used by the trial court in Theus’s underlying trial did
not suffer from the same deficiency present in Schuler. Under the first element in
Theus’s case, the jury had to find “the defendant used a pistol to wound Terrance
Gibson.” A finding as to that element necessarily included a finding of causation.
Causation, as a requirement for conviction, was not omitted in the Theus
instruction. The only purpose of the third element was to determine whether the
wound Theus inflicted with the pistol constituted a “serious injury” or a “bodily
injury,” which is determinative of the level of the crime. The first element of the
Schuler instruction did not require a finding that the defendant had injured or
wounded the victim. See Schuler, 774 N.W.2d at 298. Therefore, the causation
requirement was missing in Schuler.
Theus also claims he was unaware of the juvenile record that found the
commission of a delinquent act by one of the State’s witnesses. He contends the
State should have disclosed its existence as exculpatory evidence under the
Brady rule, but did not do so. He then contends his late discovery of the juvenile
record constitutes a “ground or fact or law” that could not have been raised within
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the three-year time limit. The existence of a juvenile record is a matter of public
record and could have been easily discovered by Theus or his counsel. See
Iowa Code § 232.147 (1995). There is no failure to disclose exculpatory
evidence within the meaning of the Brady rule if the defendant either knew or
should have known of its existence. Cornell v. State, 430 N.W.2d 384, 385 (Iowa
1988). Even if the witness’s juvenile record were to be considered a fact that
could “not have been raised,” there still must be a nexus between the fact and
the challenged conviction. Harrington v. State, 659 N.W.2d 509, 521 (Iowa
2003). The fact must be one that would have had the potential to qualify as
material evidence that would probably have changed the outcome of the trial. Id.The order finding the witness guilty of an aggravated misdemeanor could have
been used only for impeachment purposes, if at all. See Iowa R. Evid. 5.404(b),
5.609(a)(1). It is evident from the record and, as the postconviction trial court
noted in its well-written order,s that evidence of Theus’s guilt was overwhelming.
We affirm the decision of the trial court denying Theus’s application for
postconviction relief.
AFFIRMED.