Derrick Shafer v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 21-0808
Filed April 27, 2022
DERRICK SHAFER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Crystal S. Cronk,
Judge.
Derrick Shafer appeals the denial of his application for postconviction relief.
AFFIRMED.
Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Tabor, P.J., Ahlers, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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SCOTT, Senior Judge.
Derrick Shafer appeals the denial of his application for postconviction relief
(PCR), arguing the court erred in rejecting his claims of ineffective assistance of
criminal trial counsel.
I. Background
In 2016, sentence was imposed upon Shafer’s conviction of second-degree
sexual abuse. The conviction resulted from a jury verdict finding Shafer guilty of
engaging in a sex act with a person under the age of twelve in a hotel in 2010.
Shafer filed a pro se PCR application in 2019. In an amended application, Shafer
argued his criminal trial counsel was ineffective in failing to (1) call his two children
as witnesses and (2) object to police officers testifying about alleged hearsay
statements made by Shafer relating to his confession.
At the PCR trial, Shafer testified he notified counsel early on that his
daughter1 and son2 could testify at the criminal trial. However, he agreed he did
not notify counsel his son was present at the alleged scene of the crime until the
middle of trial. Shafer also testified that, when he was questioned by officers, he
1 At the PCR trial, the daughter testified she was sixteen or seventeen at the time
of the crime and she did “some baby-sitting” for the victim previously when she
lived in Kansas prior to the crime. She provided, when she previously babysat the
child in Kansas, she observed her and her siblings engage in sexualized behavior
and watch pornography. The daughter also testified she was molested by the
victim’s stepfather in Kansas.
2 At the PCR trial, the son testified he travelled to Kansas with his father in 2010
to pick up the victim to come visit in Iowa. Then, in Iowa, the three of them stayed
in a hotel for a period of time. The son essentially testified he was never outside
the presence of Shafer and the victim while they stayed at the hotel except for
small windows of time.
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did not confess to the crime, and he asked for an attorney but his request was
denied.3
When asked whether Shafer mentioned having either of his children testify
during the criminal trial, counsel testified Shafer brought up his daughter as a
potential witness when they “were fairly along in the case” but early enough that
she could still be called, and he mentioned his son as a potential witness during
trial, which was too late to call him. Counsel listed the daughter as a witness, and
the State deposed her before trial. Counsel’s assessment was that she would not
be a “great witness” due to her inability to “testify specifically that all the time that
[the victim] was there she was there,” her mental health, and her abuse of
methamphetamine resulting in “big gaps in her memory.” According to counsel,
he explained to Shafer that his daughter would be a poor witness and not helpful
to his case but advised it was Shafer’s decision, and Shafer agreed she should not
be called as a witness.
Counsel recalled Shafer advised that his son “was around” at the time the
alleged incident took place, although he was not always awake and “wasn’t around
100 percent of the time” the victim was in Shafer’s presence. Even though it was
already too late to list the son as a witness, counsel assessed that the son would
only be able to testify that he did not witness the crime, which would fit the State’s
theory of the case that the son was not present when Shafer committed the criminal
act. As to both children, counsel preferred that they appear as supporting family
3 Shafer’s interaction with officers was video recorded, but the recording did not
include audio.
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members in the courtroom in front of the jury rather than serving as un-useful
witnesses who would not be able to observe the trial.
As to Shafer’s claim that counsel was ineffective in failing to object to police
officers’ testimony concerning Shafer’s alleged confession to the crime as hearsay,
counsel stated, “Those statements regarding the confession itself aren’t hearsay,
so I wouldn’t have moved to try and keep them out as hearsay.” Counsel was
certain Shafer never informed him he asked for an attorney when he was
questioned by officers, noting he would have unquestionably moved to suppress
any confession if that were the case. A police officer who observed the interview
also testified Shafer never requested an attorney.
The PCR court ultimately rejected Shafer’s claims of ineffective assistance
of counsel and denied his PCR application. Shafer now appeals.
II. Standard of Review
We ordinarily review the denial of a PCR application for legal error, but our
review is de novo when claims of ineffective assistance of counsel come into play.
Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021). Because Shafer’s claims
concern the effectiveness of criminal trial counsel, he must prove by a
preponderance of the evidence that (1) his counsel failed to perform an essential
duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We “may consider
either the prejudice prong or breach of duty first, and failure to find either one will
preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State
v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).
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III. Analysis
First, Shafer argues the court erred in not finding his counsel was ineffective
for failing to call his children as defense witnesses. He highlights his son’s
testimony “that he was with his father at all times in question and that, essentially,
his father could not have committed the wrongdoing.” While he agrees his
daughter “had some issues as a witness as far as substance abuse and memory
issues,” he argues the issue of her credibility could have been assessed by the
jury and she possessed information concerning the victim’s “exposure to sexual
abuse” and another perpetrator.
As the State points out, the daughter was not around Shafer or the victim at
the time of the crime and had little relevant information to offer, if any. Also,
counsel’s tactical decision to not call the daughter based on substance abuse and
memory issues, and instead have her appear in the courtroom gallery as a
supportive daughter to Shafer, was certainly reasonable and does not amount to
ineffective assistance. See State v. Polly, 657 N.W.2d 462, 468 (Iowa 2003)
(“Generally, the decision not to call a particular witness . . . to testify implicates a
reasonable tactical decision” that “typically do[es] not constitute ineffective
assistance of counsel”). In any event, counsel left the decision to Shafer, and
Shafer decided the daughter should not be called.
Turning to the son, the record shows counsel was never informed by Shafer
that his son was supposedly present at all times the crime could have occurred
until it was too late to call the son as a witness. As a result, we are unable to
conclude counsel failed to perform an essential duty by failing to call him as a
defense witness. Even in hindsight, counsel would have preferred to not have the
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son testify, because his purported testimony would have supported the State’s
theory of the case. And the son’s testimony does not show that the son witnessed
every second of Shafer’s interaction with the victim during the one-and-a-half week
stay at the hotel, as Shafer seems to suggest. The son was out of their presence
on various occasions for smoke and bathroom breaks. Of course, he also had to
sleep, and the son’s testimony disclosed he slept on the floor while Shafer and the
child shared the bed. Based on the evidence presented at trial, we are unable to
conclude the son’s testimony gives rise to a reasonable probability of a different
outcome. Thus, Shafer was not prejudiced, and counsel was not ineffective as
alleged.
Next, Shafer asserts his counsel was ineffective in “fail[ing] to object to
police witness statements” as “potentially hearsay” or move to suppress his alleged
confession to the officers.4 Counsel pointedly testified a hearsay objection to the
challenged testimony would be meritless for various reasons. On appeal, Shafer
does not contest the propriety of counsel’s assessment on this point, so neither do
we. Instead, he only stresses counsel’s failure to move to suppress his alleged
confession on the basis that he was denied his request for counsel during his
exchange with officers.
But Shafer’s claim assumes the veracity of three things: (1) he was
subjected to a custodial interrogation, (2) he invoked the right to counsel, and (3)
his attorney was subsequently made aware but took no action. All of these
4 We choose to bypass the State’s error-preservation challenge to the portion of
the argument relating to suppression of the confession. See State v. Taylor, 596
N.W.2d 55, 56 (Iowa 1999).
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assumptions are based solely on Shafer’s self-serving testimony, which the district
court generally found lacking in credibility, and are unsupported by any
corroborating evidence. Cf. Dempsey v. State, 860 N.W.2d 860, 869 (Iowa 2015)
(noting, when proving the prejudice prong of an ineffective-assistance claim in the
guilty plea-context, the applicant’s burden requires “objective, corroborating
evidence,” and “subjective, self-serving testimony” is not enough). The
circumstances of the exchange with law enforcement strongly militate against a
finding of custody. Even if that was not the case, one of the officers involved
specifically testified at the PCR trial that Shafer never requested the assistance of
counsel. And criminal counsel specifically testified he could find no basis to pursue
suppression of the confession, and Shafer never informed him he requested
counsel. On this record, we find Shafer failed to meet his burden to show, by a
preponderance of evidence, that counsel failed to perform an essential duty or that
prejudice resulted. So we agree with the district court that counsel was not
ineffective as alleged on this point either.
IV. Conclusion
We affirm the denial of Shafer’s PCR application.
AFFIRMED.