Jerome Power v. State of Iowa ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0961
Filed September 13, 2023
JEROME POWER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Paul D. Miller, Judge.
Jerome Power appeals the denial of his application for postconviction relief.
AFFIRMED.
Kent A. Simmons, Bettendorf, for appellant.
Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee State.
Considered by Ahlers, P.J., Badding, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
2
DANILSON, Senior Judge.
Jerome Power appeals the denial of his application for postconviction relief
(PCR) following his conviction for first-degree murder. Power contends his trial
counsel was ineffective in failing to “investigate and present a defense based on
the medical condition of his right hand,” and PCR counsel was ineffective in failing
to advance his claim against trial counsel. Upon our review, we affirm.
I. Background Facts and Proceedings
In 2012, a jury found Power guilty of first-degree murder. This court
previously set forth the following facts surrounding the incident leading to Power’s
charge as follows:
On September 19, 2010, just after the ten o’clock news, sixty-
eight-year-old Doris Bevins called her friend, Phillip Bemer, to
discuss the next day’s weather. While on the phone Phillip heard
someone beating on Doris’s door. He advised her against answering
it. She told Phillip she “wasn’t scared of nobody” and wanted to know
“who in the hell was at her door at this time of night.” When Doris
answered the door, a man asked her if she had a gas or an electric
stove. Doris first responded: “[I]t’s a gas stove.” Then Phillip heard
her say: “What do you want?” and “Get the hell out of here.” Doris
next screamed: “Help. Oh, Lord help me.” After that, Phillip heard a
gurgling noise and a loud thud, which gave him “cold chills on the
other end of the phone.”
Phillip called 911, and the police arrived at Doris’s apartment
a few minutes later. When the officers arrived, they announced their
presence before they were forced to break down the apartment door.
When they entered, the officers found Doris on the floor with her
nightgown pulled over her head and a pair of pajama bottoms tied
tightly around her neck. Emergency responders tried to resuscitate
her but with no luck. They took Doris to the hospital where she died
two days later. The medical examiner determined the cause of death
to be ligature strangulation.
Soon after discovering Doris police saw Jerome Power
standing in the doorway of Doris’s kitchen. Power and his girlfriend,
Mary Meier, lived in the apartment upstairs from Doris. Officers
placed Power under arrest at gunpoint. When they searched Power,
police found a cigarette lighter, a stocking cap, a red LED light, a cell
phone, and a charger. Power told officers at least three times he
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wanted them to give his keys and the cell phone to Meier. The phone
was later identified as belonging to Doris.
As police were taking Power to their squad car, he started
yelling that he had seen a black male running out of Doris’s
apartment. During an interview at the station, Power told detectives
he saw Terry Wilson, a white man, exit the apartment. Power also
told them he called 911 from Doris’s apartment and gave her CPR
but later admitted those statements were not true.
Power later sent a letter to investigators, dated July 13, 2011,
casting aspersions on a black male whom Power allegedly saw on
the night in question. In his trial testimony, Power told the jury he
went to Doris’s apartment because she asked him to inflate an air
mattress for her. He said he locked Doris’s front door “just out of
force of habit.” He testified he walked to the back of the apartment
to look for the air pump and did not see Doris on the floor until after
he heard the police pounding on the door. He said he was going to
the door when the police knocked it down.
State v. Power, No. 13-0052, 2014 WL 2600214, at *1 (Iowa Ct. App. June 11,
2014).
The court affirmed Power’s conviction on direct appeal, rejecting his
challenges to the sufficiency of the evidence, the trial court’s instructing the jury
with an Allen charge,1 and the trial court’s denial of Power’s request for substitute
counsel. The court preserved Power’s ineffective-assistance-of-counsel claim
relating to counsel’s failure to “pursu[e] the theory that his hand injury left him
unable to strangle the victim” for possible PCR proceedings. See id. at *3.
Power filed a PCR application again raising that claim.2 Following trial, the
PCR court denied the application. Power appealed.
1 “The common name for verdict-urging or ‘dynamite’ instructions comes from Allen
v. United States, 164 U.S. 492, 501 (1896).” See Power, 2014 WL 2600214, at *1
n.1.
2 Power also raised additional claims of ineffective assistance of counsel, which
were rejected by the PCR court. But he does not challenge those findings on
appeal.
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II. Standard of Review
“We generally review a district court’s denial of an application for
postconviction relief for errors at law.” Doss v. State, 961 N.W.2d 701, 709 (Iowa
2021). However, our 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. (alteration in original) (quoting Moon v. State, 911 N.W.2d 137, 142
(Iowa 2018)); see Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021).
III. Discussion
To prevail on a claim of ineffective assistance of counsel, Power must show
(1) counsel breached an essential duty and (2) prejudice resulted. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). “We may affirm the district court’s
rejection of an ineffective-assistance-of-counsel claim if either element is lacking.”
Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).
On appeal, Power challenges the PCR court’s denial of his claim that trial
counsel was ineffective in failing to present evidence showing it was physically
impossible for him to have committed the crime and PCR counsel was ineffective
in failing to advance his claim of trial counsel’s ineffectiveness. Specifically, he
contends: “[P]ostconviction trial counsel failed to effectively prepare, litigate, and
argue the claim that [he] could not have tied the knot used to inflict ligature
strangulation and failed to call an expert witness who could have provided material
testimony to demonstrate the ineffective assistance of counsel in the criminal trial.”
The following facts are relevant to this claim.
At Power’s criminal trial, his girlfriend testified that “in the last five or six
years,” Power was hospitalized for “an infection in his knuckle and it went up his
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arm.” As a result of the infection, “[h]e couldn’t make a fist.” Power also testified
about his infection, stating it “fused bones together, the joints together” resulting in
“permanent damage” to his hand. He demonstrated the function of his hand for
the jury, stating, “I can’t bend this finger. I can’t bend this finger. Sometimes my
thumb, it locks up. See, I have to unlock it.”
At the scene of the crime, police discovered Doris lying on the floor with “a
pair of pajama pants which were tied tightly around her neck.” Officer Sarah Lacina
testified, “I reached out to untie them” and “[i]t was tied tightly enough that I had to
kind of get a good grip and dig my fingers in to release the tie of the pajama pants
and then check for a pulse.”
On appeal, Power contends, “It was highly unlikely [he] could have so tightly
tied that knot in the way Officer Lacina found it” due to his lack of hand function.
Power claims his trial and PCR counsel were ineffective in failing to investigate
and present a defense based on the medical condition of his right hand. 3 He
acknowledges counsel “did get his medical records” but states “they did not obtain
an expert for him.” According to Power, “So basically what it came down to, [trial
counsel] Steve Addington and Jason Dunn only obtained the medical records, but
3 Power acknowledged his girlfriend testified that he could not make a fist. He also
testified as follows:
Q. And did you mention your injury and not being able to make
a fist to the jury? A. To my recollection, I believe I did. I even showed
the jury my whole hand, my hand, the injuries.
Q. When you testified do you remember saying anything to
the effect of there’s no way I could have done this, anything like that?
A. That’s correct.
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they would not call the doctors that I requested that treated me.” Power believed
“a medical opinion would have actually weighed a lot.”
Dunn testified he and Power discussed Power’s hand condition “at length,”
but “it wasn’t anything that we could hang our hat on.” Dunn explained:
So Jerome had brought this to our attention early on and
indicated, you know, it was physically impossible for him to strangle
this victim. We did do a deposition of the state medical examiner,
Dr. Thompson. And I believe during that deposition I posed the
question to him, you know, how much pressure or strength—I forget
exactly how I put it—would it take, you know, to—you know, to
basically cut someone’s air off in a manner such as Doris was
believed to have been killed. And that was, I think, pajama bottoms
around her neck and being strangled to death. And the medical
examiner, I believe his testimony was it was like ten pounds or less,
so not very much.
And, again, it wasn’t ever a serious—to me it was never a
serious point of contention or really something that we would want to
pursue because of just the—again, it wouldn’t take very much
pressure, and you could do it with your off hand. And Jerome had
told the police at some point that he had tried to provide CPR to
Ms. Bevins as part of his testimony I think either when he was
arrested or at trial, trying to help her.
So this whole idea that he wasn’t physically capable of doing
this was—I mean, did not comport with the facts that—or just what it
would take to actually get that done. And despite his—you know, it
was something he repeated. I don’t want to minimize that at all. But
it was just never a—it was never a strategy that I thought was wise
or something that would ever gain any—there’s more pitfalls to that
idea than there was any benefit that we might get, again, because it
doesn’t take hardly any pressure at all to strangle someone,
apparently . . . .
Dunn then reiterated, “[I]t was certainly something that I would want to stay
away from because, again, ten pounds isn’t very much. It wasn’t a fact that I was
interested in highlighting at all,” where “the proper response would be, well, you
could use your other hand.” In short, Dunn stated “it was never a serious theory
for us to pursue” because “I don’t think we could have even, had we tried, gotten
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any medical expert to come in and say what Mr. Power wanted him to say just from
the mere fact, I guess, less than ten pounds is all it takes to strangle someone out.”
In ruling on Power’s claim, the PCR court found:
At his jury trial, both Power and his girlfriend testified that Power’s
hand injury (difficulty bending two fingers on his right hand) would
prevent him from strangling someone. The jury obviously found this
testimony unconvincing. Power argues that trial counsel should
have offered medical testimony to support this contention. At this
hearing, the Court admitted Power’s medical records (Petitioner’s
Exhibit 1) and x-ray scans of his hand (Petitioner’s Exhibit 3). The
medical records show limited motion in his PIP joint, mild coronal
plane abnormality, passive flexion limited to sixty-five degrees and
flexion to fifty degrees. Power contends that a doctor could have
given opinion testimony confirming his claim. However, at the post-
conviction trial, Power did not present expert testimony confirming
that his hand injury would have prevented or impeded his ability to
strangle someone.
....
It is undisputed that Power had finger injuries. He testified to
them in detail at trial and this hearing. At this PCR hearing, he
presented no expert medical testimony to support his assertion that
his injury physically precluded him from strangling another. I also
note that at the underlying criminal trial, the state medical examiner,
Dr. John Thompson, testified that the cause of death was ligature
strangulation and that “it doesn’t actually take that much force to
occlude the blood vessels in the neck” (to strangle someone)
(Respondent’s Exhibit B, pgs. 13-14). At this hearing, trial counsel
testified that he discussed with Power his finger injury at length and
didn’t feel the injuries were severe enough to preclude use of his
hand. Based on the medical examiner’s testimony that it did not take
much force to occlude the blood vessels in the neck and strangle
someone, trial counsel made a strategic decision to not present
medical testimony. Trial counsel also felt this potential medical
evidence was inconsistent with Power’s claim (and trial testimony)
that he was trying to help the victim by administering CPR. Finally,
trial counsel testified that “We vetted that concern of Mr. Power (the
use of medical testimony) pretty thoroughly and made sufficient
record, I believe, regarding our decision not to go that route. And I
believe that decision is sound today.”
....
Under the record before me and considering the medical
examiner’s testimony, the fact that Power did not present medical
testimony at this hearing and trial counsel’s strategic decision, I FIND
that Power has failed to meet his burden of proof and establish that
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he was prejudiced by trial counsel’s alleged breach. In the
alternative, I FIND that Power has failed to meet his burden of proof
and establish that trial counsel violated an essential duty.
We concur in the court’s assessment. Under these facts and
circumstances, even with a medical expert the result of the trial would not have
changed. Nor would a different result have been reached if the expert was
presented at the PCR hearing. In sum, there is no probability of a different result
had trial or PCR counsel attempted to further Power’s hand-function claim with
expert testimony. As this court previously observed, “The State’s evidence did not
leave much room for the jury to wonder ‘whodunit.’” Power was in Doris’s
apartment when police arrived, the door was locked, and he did not respond to the
police at the door nor was he observed lending any aid to Doris. Power also had
Doris’s cell phone in his pocket and asked police to give the phone to his girlfriend,
Doris’s friend overheard much of the attack on the phone, Power lied to police
about calling 911, and Power’s claim that a person by the name of Terry Wilson
was to blame proved false. Power’s claimed inability to tie a knot does not
overcome the overwhelming evidence of his guilt. We affirm the court’s denial of
Power’s PCR application and conclude Power has failed to prove he was
prejudiced by PCR counsel’s failure to present testimony of a medical expert.
AFFIRMED.