Sean Michael Hilliard v. State of Iowa ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1865
Filed July 13, 2023
SEAN MICHAEL HILLIARD,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
Sean Hilliard appeals the denial of his application for postconviction relief.
AFFIRMED.
Thomas Hurd of Law Office of Thomas Hurd PLC, Des Moines, for
appellant.
Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Tabor and Greer, JJ.
2
BOWER, Chief Judge.
Sean Hilliard appeals the denial of his application for postconviction relief.
Because he failed to establish prejudice by a preponderance of evidence, we
affirm.
I. Background Facts & Proceedings.
In 2017, Hilliard was charged with sexual abuse in the second degree for
committing a sex act on a minor child.
Before trial, Hilliard, claiming prejudice, filed a motion in limine requesting
the court block admission of his criminal history. At a hearing before trial, the court
noted Hilliard’s past offenses were not character-impugning or credibility offenses,
finding “these really have zero value other than to say, This guy is a bad man
because he’s committed two previous law violations.” The prosecutor asked to be
able to use the convictions for impeachment if Hilliard testified, and the court
deferred its ruling. Also, during the pretrial hearing, counsel stipulated to the
admission of the video of Hilliard’s police interview, which the jury watched on the
second day of trial.1
About half an hour into the police interview, Hilliard referred to his criminal
history and past character several times. He asserts several of his own statements
should have been redacted from the video as violating the court’s limine ruling:
• “I’m a retired gangbanger, something like that can get you really
beat up.”
• “[The minor child’s] mother was talking to one of her friends and
telling her how that the reason why my girlfriend left me was
because of some boys, some little boys, something like that.”
1Counsel also stipulated to the admission of the child’s forensic interview. The
child testified at trial.
3
• “I’m trying to get on with my life finally. Probation, I’m this far from
getting off, you know I’m just trying to get on with my life, you
know, drug cases, I left everything alone. I lost all my friends
because I left the drugs alone. I stopped smoking weed.
Shockingly, I lost all the friends that used to come by every day
because I don’t do this no more. I’m [thirty-eight] years old it’s
time to get on with my life, you know. How long am I supposed
to sell drugs? You know what I’m sayin’? I didn’t become a
millionaire. Yes, I had thousands of dollars you know so I left it
alone. The thing is the skill that I have is these hands and the
clippers. So I just left everything alone and just focused on, you
know, doing my haircutting thing.”
• “I’m this far away from over probation and every time I look up it’s
just something, something new.”
At the close of the State’s evidence, the parties revisited the motion in limine
ruling left open by the court. The court noted Hilliard “mentioned the fact that he
was on probation, he sold drugs,” and that “He wanted to move on with his life,”
and the court ruled the State could use the information as needed since it had been
brought out. Hilliard chose not to testify and did not present any witnesses in his
defense. In closing, the State did not mention Hilliard’s criminal history but did
mention his past relationship in its rebuttal closing argument, saying, “He broke up
with his girlfriend because of something related to boys. What boys, we don’t
know. He didn’t elaborate on.”
The jury convicted Hilliard. We affirmed his conviction on appeal, but we
found the record inadequate to address his claims of ineffective assistance of
counsel and preserved them for postconviction proceedings. State v. Hilliard, No.
17-1336, 2018 WL 4923000, at *1–2 (Iowa Ct. App. Oct. 10, 2018).
Hilliard timely filed his application for postconviction relief (PCR), raising his
ineffective-assistance-of-counsel claims, specifically “failure to redact recorded
interviews” and “failure to request limiting instructions.” Under facts supporting his
4
application, Hilliard explained counsel “failed to redact recorded interview of
criminal history” and “stipulated to inadmissible recorded interview.” He also
further alleged counsel failed to object to improper vouching testimony and
inadmissible hearsay testimony.
A postconviction trial was held October 16, 2020. Hilliard was the only
witness; his two trial counsel were not called as witnesses by either Hilliard or the
State. As exhibits, Hilliard submitted the transcripts from his trial. The court denied
his application for PCR, and Hilliard appeals.
On appeal, Hilliard asserts his trial counsel was ineffective for (1) not
objecting to the admission of an unredacted version of his police interview in which
his criminal history and past character were mentioned; and (2) failing to request
a limiting instruction. 2
II. Standard and Scope of Review.
We review postconviction proceedings raising constitutional claims,
including ineffective assistance of counsel, de novo. Castro v. State, 795 N.W.2d
789, 792 (Iowa 2011). “A successful ineffective-assistance-of-counsel claim
requires proof by a preponderance of the evidence that (1) counsel failed to
perform an essential duty, and (2) prejudice resulted.” State v. Bearse, 748
N.W.2d 211, 214–15 (Iowa 2008). If either ground is not proven, we need not
address the other. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
2 In his PCR application, Hilliard also listed “fail[ure] to object to improper vouching
testimony” and “fail[ure] to object to inadmissible hearsay testimony” as facts
supporting his claim of ineffective assistance of counsel. He does not appeal the
court’s ruling on those issues.
5
III. Analysis.
Hilliard identified four references in his police interview which he asserts
counsel should have objected to and requested redaction because they were not
relevant and were prejudicial. Hilliard also asserts counsel was ineffective for
failing to request a limiting instruction warning the jury the evidence would be
inflammatory.
Even if we found counsel failed an essential duty, Hilliard must prove he
was prejudiced by the admission of the unredacted video and lack of limiting
instruction. Hilliard asserts the evidence of his guilt “was not overwhelming,” and
since the child’s testimony “was highly conflicting and contradictory” the admission
of prejudicial evidence undermines confidence in the outcome. He attempts to
relitigate his sufficiency-of-the evidence claim from his direct appeal, with a brief
reference at the end to the prejudicial effect of “bad-acts evidence.” The
implication is the jury would have found Hilliard’s version of events—which was
only relayed through the police interview video—more credible than the child’s if
the video had been redacted to omit the statements about his past and the
mother’s vague comment about the end of his prior relationship.
To prove the requisite prejudice, the applicant must demonstrate “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Ledezma, 626 N.W.2d at 143 (citation
omitted). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Irving v. State, 533 N.W.2d 538, 540 (Iowa 1995)
(citation omitted). “General claims of prejudice are insufficient. Mere speculation
6
is similarly inadequate. The standard is stringent.” Lopez v. State, No. 03-0590,
2004 WL 360481, at *2 (Iowa Ct. App. Feb. 27, 2004) (internal citations omitted).
Hilliard has not proved prejudice by a preponderance of the evidence. Any
prejudice is speculative at best and does not undermine our confidence in the
outcome of the trial. See Ledezma, 626 N.W.2d at 143. We observed in Hilliard’s
direct appeal the jury accepted the child’s testimony as credible, which it was
entitled to do. See Hilliard, 2018 WL 4923000, at *3. Hilliard’s statements referring
to his criminal history were in the context of his rehabilitation, and they were
unrelated to the charges at trial and not inflammatory. The statements about what
the child’s mother said were made in the context of her coming to Hilliard’s
workplace and making claims about his actions to his boss—actions the child’s
mother partially testified to during trial. Nor do we find the lack of a general limiting
instruction to be prejudicial. 3
We affirm the district court’s ruling.
AFFIRMED.
3 It is difficult to evaluate the prejudice of the lack of an instruction when the
claimant does not suggest what an appropriate instruction would have been.