Devaris Marquis Perry v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-1233
Filed July 3, 2024

DEVARIS MARQUIS PERRY,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.

DeVaris Perry appeals the denial of his application for postconviction relief.

AFFIRMED.

Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for

appellant.

Brenna Bird, Attorney General, and Thomas J. Ogden (until withdrawal) and

Anagha Dixit, Assistant Attorneys General, for appellee State.

Considered by Ahlers, P.J., and Chicchelly and Buller, JJ.
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CHICCHELLY, Judge.

DeVaris Perry appeals the denial of his application for postconviction relief

(PCR) from his convictions for attempted murder, intimidation with a dangerous

weapon with intent, and reckless use of a firearm resulting in property damage.

He contends his trial attorneys were ineffective by failing to move to suppress

incriminating statements he made while in custody. He also contends they were

ineffective in cross-examining a witness. Because the record does not show that

counsels’ performance was constitutionally deficient, we affirm.

Perry’s convictions stem from a 2016 shooting in Des Moines. The State

alleged that Perry was a passenger in a vehicle driven by Kyara Stogner when he

opened fire on a vehicle driven by Tyrone Cameron. We affirmed his convictions

on direct appeal but preserved claims of ineffective assistance of trial counsel for

a future PCR proceeding. State v. Perry, No. 17-0753, 2019 WL 1300205, at *6

(Iowa Ct. App. Mar. 20, 2019). Perry applied for PCR in 2019, but the PCR court

denied his application after trial. On appeal,1 Perry reasserts two claims of

ineffective assistance of counsel.

We review PCR proceedings for correction of errors at law, Linn v. State,

929 N.W.2d 717, 729 (Iowa 2019), and claims of ineffective assistance of counsel

de novo, Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018). To succeed on a

claim of ineffective assistance of counsel, a PCR applicant must show (1) counsel

1 After transfer to our court, Perry filed several pro se documents. We do not
consider them. See Iowa Code § 822.3A ("Except as otherwise provided in
subsection 3, an applicant seeking relief under section 822.2 who is currently
represented by counsel shall not file any pro se document, including an application,
brief, reply brief, or motion, in any Iowa court. The court shall not consider, and
opposing counsel shall not respond to, such pro se filings.").
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breached an essential duty and (2) that breach prejudiced the applicant. See Lado

v. State, 804 N.W.2d 248, 251 (Iowa 2011). “To establish the first prong, the

applicant must demonstrate the attorney performed below the standard demanded

of a reasonably competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001). “Miscalculated trial strategies and mere mistakes in judgment

normally do not rise to the level of ineffective assistance of counsel.” Id. at 143.

Prejudice occurs if there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.

(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). We can affirm if an

applicant fails to prove either prong. See Lado, 804 N.W.2d at 251.

Perry contends his trial attorneys were ineffective by failing to move to

suppress statements he made to law enforcement during a custodial interrogation.

He argues the statements were coerced by a police detective during a phone call

one day earlier. During that call, the detective told Perry that if Perry did not agree

to an interview, he would put “all those young, rookie, police officers on third watch

out to look for [him]” and tell them that Perry was armed and dangerous. The

detective referred to an incident during which a Chicago police officer shot Perry

twice, stating that Perry “already [had] issues with Chicago PD, [so] let’s not have

issues with Des Moines PD.” Perry interpreted the detective’s statements to mean

that he would be harmed if he did not agree to an interview. The next day, Perry

went to the police station and spoke with the detective after receiving a Miranda

warning. During the interview, Perry admitted he shot at Cameron.

A defendant’s statements are admissible only if the State shows by a

preponderance of the evidence that they were voluntary. State v. Payton, 481
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N.W.2d 325, 328 (Iowa 1992). “Statements are voluntary if they were the product

of an essentially free and unconstrained choice, made by the defendant whose will

was not overborne or whose capacity for self-determination was not critically

impaired.” Id. In determining whether the defendant’s statements were voluntary,

we consider the totality of the circumstances. Id. When viewing the totality of the

circumstances, we consider factors related to the defendant, like age, experience

with the criminal justice system, intellectual capacity, state of intoxication, ability to

understand and answer questions, and physical and emotional reaction to

interrogation. Id. We also consider the circumstances of the interrogation,

including its length, the use of deception or inducement, and whether it involved

physical punishment like deprivation of food or sleep. Id. at 328–29.

The PCR court concluded that the detective’s statements the day before the

interview did not render Perry’s statements inadmissible because “[t]he relevant

factors weigh in favor of the confession being voluntary.” The court noted:

Perry is an adult, who is familiar with the criminal justice system,
received Miranda warnings, no deception nor physical punishment
was employed during the interrogation, Perry was able to follow the
questioning, and Perry was questioned for under two hours. Perry
was provided his Miranda rights after he turned himself in. Perry
could have turned himself in to avoid the concern about how he
would be treated by police officers and then still have chosen to
invoke his right to remain silent or demanded an attorney prior to
questioning. Even if the threats made by [the detective] over the
phone coerced Perry to come to the police station, there is no
evidence of coercion to speak to police in violation of Miranda rights
once he came to the station.

Although the court found that the detective’s statements during the call with Perry

were “inappropriate and unprofessional,” it determined that the totality of the

circumstances did not require suppressing the statements.
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On de novo review, we reach the same conclusion as the PCR court.

During their phone call, the detective insinuated that Perry could be harmed if he

did not agree to meet with the detective, which influenced Perry’s decision to come

to the police station the next day. But once Perry was at the police station, there

was no longer any risk of inexperienced officers taking Perry into custody. Perry’s

lead trial attorney has nearly thirty years of experience in private practice and has

handled well over 2000 criminal cases. He testified that based on his familiarity

with the law on coerced confessions, he believed there was insufficient legal basis

for suppressing Perry’s statements based on the break in time between the call

and the interview.

The circumstances show Perry’s statements were voluntary. Before the

interview, Perry was informed of his right to remain silent. He disregarded that

right without coercion from physical punishment, threats, or promises of leniency.

Because Perry’s statements were voluntary, there is no reasonable likelihood that

the trial court would have granted a motion to suppress. Thus, counsel had no

duty to move to suppress them. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa

2009) (“[C]ounsel has no duty to raise an issue that has no merit.”). Regardless,

Perry cannot show prejudice considering the overwhelming evidence of his guilt.

Perry also contends his trial attorneys were ineffective in cross-examining

Stogner at trial. He claims they failed to question her about inconsistencies in her

statements and conflicting evidence presented at trial. He also claims his trial

counsel failed to question Stogner adequately about being untruthful with law

enforcement and any agreement she made with the State in exchange for her

testimony. In denying relief on this ground, the PCR court noted that counsel
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challenged Stogner’s credibility at trial and found Perry “is simply suggesting other

ways [counsel] could have challenged [Stogner]’s credibility.”

How counsel examines witnesses during trial is usually a matter of trial

strategy. See, e.g., State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (“Counsel did

not breach any essential duty to the defendant by failing to pose specific cross-

examination questions defendant would prefer him to ask.”); State v. Risdal, 404

N.W.2d 130, 133 (Iowa 1987) (holding that “defendant’s attorney made a judgment

call concerning how best to use cross-examination to discredit the prosecution

witness”); State v. Palmer, 569 N.W.2d 614, 618 (Iowa Ct. App. 1997) (rejecting a

claim that counsel was ineffective for failing to recall a witness as a tactical

judgment). “When counsel makes a reasonable decision concerning strategy, we

will not interfere simply because the chosen strategy is unsuccessful.” State v.

Losee, 354 N.W.2d 239, 243 (Iowa 1984). The question is “whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Id. (quoting Strickland,

466 U.S. at 687).

Perry has not shown his trial counsels’ performance fell below that of

competent attorney. As the PCR court noted, his attorneys raised the issues Perry

complains about in his PCR application. Counsel was not required to point out

“every possible discrepancy or inconsistency in [Stogner]’s various statements”

and “impeach [her] on every possible point or in every possible way.” Luke v.

State, 465 N.W.2d 898, 902–03 (Iowa Ct. App. 1990). His counsel questioned

Stogner about her inconsistent statements, memory issues, and dishonesty with

police. The record before us shows that counsel performed competently. See id.
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at 903 (finding counsel’s performance “quite competent” where counsel “presented

substantial impeaching evidence, clearly brought out that [the witness] had lied on

numerous occasions when under oath, presented evidence concerning numerous

inconsistencies and discrepancies in [the witnesses] testimony, and presented

evidence from which the jury could find [the witness] had a motivation to lie”).

Because Perry has not proved he received ineffective assistance from his

trial counsel, we affirm the denial of his PCR application.

AFFIRMED.