Jose Morales v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 20-0782
Filed May 12, 2021

JOSE MORALES,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Marshall County, James C. Ellefson,

Judge.

Jose Morales appeals the district court’s denial of his postconviction-relief

application. AFFIRMED.

Jesse A. Macro, Jr. of Macro & Kozlowski, LLP, West Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.

Considered by Vaitheswaran, P.J., Schumacher, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021).
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VAITHESWARAN, Presiding Judge.

A jury found Jose Morales guilty of second-degree murder in connection

with the shooting of an acquaintance in Marshalltown, Iowa. See Iowa Code

§§ 707.1 and 707.3 (2013). The court of appeals affirmed his judgment and

sentence. See State v. Morales, No. 15-1053, 2016 WL 2746169, at *1 (Iowa Ct.

App. May 11, 2016).

Morales filed a postconviction-relief application. The district court denied

the application following an evidentiary hearing.

On appeal, Morales argues his trial attorney was ineffective in failing to

(1) object to a portion of the prosecutor’s opening statement; (2) object “to several

instances of hearsay”; (3) “investigate the statements of” a person who identified

someone else as the shooter; and (4) retain a jury instruction on voluntary

manslaughter. He also argues the postconviction court “erred in not considering

cumulative prejudice.”

With respect to the ineffective-assistance-of-counsel claims, Morales must

show (1) counsel breached an essential duty and (2) prejudice resulted. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). “We deny an ineffective-

assistance claim if the defendant fails to show either prong.” State v. Boothby, 951

N.W.2d 859, 863 (Iowa 2020) (citation omitted).

I. Prosecutor’s Opening Statement

Before trial, the defense filed a motion in limine, seeking the exclusion of

various pieces of evidence. Paragraph 7 of the motion sought to prevent the State

from referencing Morales’ prior bad acts, including “drug use/sales.” At a hearing

on the motion, the prosecutor informed the court the State would not be “getting
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into any . . . inadmissible evidence of . . . drug sales or use.” The district court

ruled that the “items discussed in paragraph 7 [would] not be mentioned in jury

selection and opening argument . . . until such time as the State or Defendant []

alerted the Court of its intention to do so and obtained an appropriate ruling from

the Court.” It is unclear from the record whether the parties had any further

discussions about the order in advance of opening statements.

During the State’s opening statement, the prosecutor told the jury Morales

“had a beef with” Dedrikk, the person who was shot. The prosecutor then said:

These two were involved in some shady dealings. These two ran
with a rough crowd. These two lived on the run with a bunch of other
kids about their age. They were around drugs. Sometimes they sold
drugs. They often used drugs, marijuana, methamphetamine; and
they tried to stay clear of the police at all times.

Morales contends his attorneys should have objected to these statements

as unsupported by the record and in violation of Iowa Rule of Evidence 5.404(b),

governing the admission of character evidence. We elect to resolve the issue on

the Strickland prejudice prong. To prove prejudice, “[t]he defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at

694. Strickland prejudice may not be shown where evidence of a defendant’s guilt

is “overwhelming.” State v. Lorenzo Baltazar, 935 N.W.2d 862, 872 (Iowa 2019);

see also State v. Kuhse, 937 N.W.2d 622, 628 (Iowa 2020).

The court of appeals characterized the evidence of Morales’ guilt as

overwhelming, albeit in a different context. See Morales, 2016 WL 2746169, at *1

(reviewing the denial of a new-trial motion on the ground that the verdict was
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contrary to the evidence). On our de novo review of the record, we agree with the

characterization.

A young woman testified she and her boyfriend picked up Morales and

dropped him off at an apartment. Morales went inside for about five to ten minutes

while they waited in the car. He came out with two other people. The young

woman then heard “a popping noise.” She looked back and saw Morales run.

The young woman’s boyfriend at the time similarly testified he heard “[l]ike

a pop” and “everybody just, like, split.” In his words, Morales “ran.” Surveillance

video near the apartment captured a person “with the same clothing” as Morales.

Richard, a friend of Morales and Dedrikk, testified the two did not like each

other. After Morales arrived at the house, Richard tried to prevent an altercation

by steering the two to the porch. Momentarily, Richard overheard Dedrikk asking

Morales, “What are you going to do about it?” Morales “[p]ulled out a gun and shot

him.” Richard identified the gun Morales used as a “.22 snub revolver.”1

Another longtime friend of Morales testified Morales told him he “dropped”

a gun behind a store in Marshalltown. The friend went there, found the gun

“between two different air conditioners,” and picked it up. He took the gun to his

father’s apartment in Nevada, Iowa, covered it, and “put it in a pan” under the sink.

The gun was recovered from the apartment. It was a 22-caliber revolver.2

1 The State and the defense elicited testimony that Richard used drugs—
specifically methamphetamine—an hour before Morales showed up. Richard said
nothing about whether Morales used or sold drugs that evening.
2 This witness admitted he used marijuana and methamphetamine and admitted

he was “[c]oming off a lot of drugs” when police interviewed him. He did not testify
that Morales used or sold drugs.
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A Marshalltown patrol officer arrived at the apartment where the shooting

occurred and administered CPR to Dedrikk until an ambulance arrived. Dedrikk

died at the hospital. An associate medical examiner who performed the autopsy

on Dedrikk testified there was one gunshot entry wound into his chest, which “went

through the right ventricle of the heart” and “then exited the heart and entered the

left lung.” She opined “[t]he cause of death was gunshot wound to the chest.” A

State criminalist testified the muzzle of the pistol “was somewhere between 18

inches and 30 inches from the jacket at the time it was fired.”

One of the lead detectives was allowed to testify about the contents of a

Facebook message from Morales to his mother. Although a printout of the text

was excluded from evidence for lack of foundation, the detective testified the

message said, “‘Game over. I wish I would have been a better son’ or something

like that.”

Given the overwhelming evidence of guilt, we conclude there is no

reasonable probability of a different outcome had defense counsel objected to the

portion of the prosecutor’s opening statement concerning drug use and sales. We

affirm the postconviction court’s denial of this ineffective-assistance-of-counsel

claim.

II. Hearsay

Morales takes issue with a police captain’s narrative about the Facebook

post summarized above. He notes the captain “was allowed to testify about the

contents of the message even through three levels of hearsay, and his testimony

was not objected to by trial counsel.” The State counters that “the Facebook

message was introduced by a second witness”—the detective quoted above—and
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because “the message was properly admitted through [that] [d]etective . . . there

is no resulting prejudice.”

To be clear, the actual Facebook post was not admitted. And, as the district

court stated, the captain’s “testimony was certainly hearsay.” But Morales cannot

establish Strickland prejudice. See Boothby, 951 N.W.2d at 865. First, the

captain’s testimony was essentially duplicative of the detective’s testimony. See

State v. McNeal, 897 N.W.2d 697, 708–09 (Iowa 2017). Second, as discussed

above, the evidence of guilt was overwhelming. See State v. Walker, 935 N.W.2d

874, 881 (Iowa 2019).

We conclude there was no reasonable probability of a different outcome

had counsel objected to the captain’s testimony. We affirm the postconviction

court’s denial of this ineffective-assistance-of-counsel claim.

III. Failure to Investigate

Morales argues his trial attorneys were ineffective in failing to “investigate

the statements of” a third party potentially implicating someone else as the shooter.

Those statements appeared in a pretrial deposition of a detective taken by one of

the defense attorneys.

Both of Morales’ trial attorneys testified at the postconviction-relief hearing.

Both highlighted the damage the third party could have inflicted if called as a

witness. One recalled the third party “made statements . . . giving motivation for

Mr. Morales to so something violent.” The attorney said, “[I]n my position, I don’t

want to bring in testimony of a person who gives a motive for my client’s actions.”

The other attorney similarly stated, “[T]he harm that could have been brought forth”

by calling the witness “would have outweighed any sort of benefit.”
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On our de novo review of the record, including the deposition transcript, we

conclude Morales’ attorneys exercised reasonable trial strategy in declining to

further investigate the third party or call the third-party as a witness. See State v.

Heuser, 661 N.W.2d 157, 166 (Iowa 2003) (“Generally the decision not to call a

particular witness . . . to testify implicates a reasonable tactical decision.” (quoting

State v. Polly, 657 N.W.2d 462, 468 (Iowa 2003))). Accordingly, we affirm the

postconviction court’s denial of this ineffective-assistance-of-counsel claim.

IV. Voluntary Manslaughter Jury Instruction

Morales contends his trial attorneys should have involved him “in the

discussion of keeping a manslaughter jury instruction.” He concedes “it may be a

strategic decision to have that instruction removed because it did not fit a theory

of the case” but asserts counsel still had “a duty to keep the client informed at each

stage of the proceeding.”3

“Iowa Rule of Criminal Procedure 2.6(3) requires the trial court to instruct

on lesser-included offenses, ‘even though such instructions have not been

requested.’” State v. Spates, 779 N.W.2d 770, 773 (Iowa 2010) (citation omitted).

“[A] defendant may expressly waive a lesser-included offense instruction.” Id. at

774.

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One of Morales’ attorneys testified that by including the instruction, “you’re almost
telling the jury that you’re willing to concede that he did shoot him. And that was
not one of our theor[ies] and [we] did not want that to go in front of the jury.” He
also did not recall that there was evidence of voluntary manslaughter, which
requires a finding of serious provocation. See Iowa Code § 707.4(1). Morales
does not argue that counsel’s rationale for excluding the voluntary manslaughter
instruction was unreasonable.
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The State included voluntary and involuntary manslaughter instructions in

its proposed jury instructions. During the brief jury instruction conference, defense

counsel noted that “a couple” of the instructions “were removed.” The voluntary

manslaughter instruction was one of them. Morales was present during this

discussion.

At the postconviction-relief hearing, one of Morales’ trial attorneys was

asked whether a decision to include or exclude an instruction would be explained

to a defendant. Counsel responded, “Yes. Because it’s . . . pretty cerebral stuff

that you need to kind of explain.” Morales testified he “was not” informed of the

reason the voluntary manslaughter instruction “was taken out.”

Even if Morales’ testimony is accepted, he cannot establish Strickland

prejudice because, as discussed, the evidence of guilt was overwhelming. See

State v. Pendleton, No. 15-1115, 2016 WL 4384653, at *3–4 (Iowa Ct. App.

Aug. 17, 2016) (stating “the evidence of [the defendant’s] guilt [was] overwhelming”

and stating the defendant could not “show that counsel’s failure to request

instructions of lesser-included offenses probably changed the outcome of the

proceedings”). Because there is no reasonable probability of a different outcome

had Morales been informed of the removal of the voluntary manslaughter

instruction and insisted on having it reinstated, we affirm the district court’s denial

of this ineffective-assistance-of-counsel claim.

V. Cumulative Error

Morales maintains “[t]he district court erred in failing to consider the

cumulative prejudice that resulted from counsel’s breach of duties” or, in the
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alternative, that postconviction trial counsel was ineffective in failing to raise the

issue.

“Iowa recognizes the cumulative effect of ineffective assistance of counsel

claims when analyzing prejudice under Strickland.” State v. Clay, 824 N.W.2d 488,

501 (Iowa 2012). “[I]f a claimant raises multiple claims of ineffective assistance of

counsel, the cumulative prejudice from those individual claims should be properly

assessed under the prejudice prong of Strickland.” Id.

Because the record contains overwhelming evidence of guilt, we conclude

the claimed omissions of counsel did not result in cumulative prejudice. We affirm

the denial of the postconviction-relief application.

AFFIRMED.