Erik Guadalupe Davila v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-0689
Filed June 5, 2024

ERIK GUADALUPE DAVILA,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Wapello County, Crystal S. Cronk,

Judge.

The applicant appeals the denial of his application for postconviction relief.

AFFIRMED.

Alexander D. Smith of Parrish Kruidenier Gentry Brown & Messamer L.L.P.,

Des Moines, for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.

Considered by Tabor, P.J., and Greer and Schumacher, JJ.
2

GREER, Judge.

Erik Davila appeals the denial of his application for postconviction relief

(PCR) following his 2017 conviction for second-degree murder in the killing of

Hugo Hernandez. Davila argues he was deprived of effective assistance because

trial counsel failed to move to reopen the record to introduce evidence to rebut the

State’s contention during closing argument that Hernandez was asleep at the time

Davila shot him. Davila contends the court would have reopened the record to

rebut the State’s inference that Hernandez was asleep when shot as it then

became an issue that he should have been able to contest. We affirm the denial

of the PCR application.

I. Background Facts and Proceedings.

The record from Davila’s underlying criminal trial established the following:

Davila and Hernandez shared an apartment. Due to a variety of
circumstances, Davila began having issues with Hernandez. On the
day at issue, Davila and Hernandez were “hanging out” at Davila’s
brother’s house while Davila was doing laundry. Hernandez had his
handgun with him. At some point during the day, Davila and
Hernandez loaded a clip of ammunition into the handgun.
Later, Davila called his friends Terry Baker and Kinda Short
to see if he and Hernandez could come out to their residence, and
they agreed. Baker and Short picked up Davila and Hernandez late
in the evening, and they went to Baker and Short’s house. The group
sat in the living room; they talked and smoked methamphetamine
and marijuana into the early morning hours. Then the group moved
to the basement. Davila and Hernandez sat quietly in some chairs
while Baker and Short were tending to other things. At some point,
Davila got up, walked to the other side of the room, picked up
Hernandez’s handgun, walked over to Hernandez, held the gun
approximately one foot from Hernandez’s head, pulled the trigger,
and shot and killed him.
Baker and Short did not witness the shooting, but they
responded to the gunshot. Baker went to Hernandez and saw the
gunshot wound in his head. Baker asked Davila for the weapon, and
Davila complied. Davila said he would take care of the mess and
dispose of the body. Davila asked for a tarp. Short became
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hysterical. She left the residence and drove to her brother’s house.
Short’s brother, Gary Short, was the owner of the house where Kinda
Short and Baker resided. Gary went to the house. When he arrived,
Baker told him Davila shot a guy and Davila wanted a tarp. Baker
told him they needed to leave the house. They did. Gary and Baker
went back to Gary’s residence, and Gary called 911.
The sheriff’s department responded to the emergency call.
When the sheriff’s department arrived at Baker and Short’s
residence, they found Davila kneeling outside. Hernandez was
dead. He was rolled up in a rug in the basement. Davila was
arrested at the scene and interviewed at the Wapello County Law
Enforcement Center. During the interview, Davila admitted to
shooting Hernandez and explained why he did it. Later in the
interview, Davila stated he knew the gun was loaded but did not know
there was a round in the chamber when he pulled the trigger. Two
days later, Davila provided the authorities with a [handwritten] letter
explaining why he shot Hernandez.
Davila was charged with first-degree murder. While in jail, he
told others in the jail his reasons for killing Hernandez. One of the
reasons was Hernandez was behind in his rent.

State v. Davila, No. 17-1062, 2018 WL 3913418, at *1–2 (Iowa Ct. App. Aug. 15,

2018).

Before the start of the criminal trial, the State moved in limine to exclude

“[a]ny reference to any toxicology report[s] of [Hernandez] or testimony regarding

[his] level of intoxication or drug impairment” and evidence regarding the amount

of methamphetamine “as located during the autopsy in or upon [Hernandez’s]

clothing and/or person.” The court granted the motion over Davila’s objection.

While the parties were prevented from introducing evidence regarding

Hernandez’s exact level of impairment, the jury heard evidence that Hernandez,

Davila, and the others smoked methamphetamine together on the night in

question. Davila testified in his own defense at trial; he testified that he stood about

a foot from Hernandez, who was seated and looking at him, and pulled the trigger

of the gun to scare Hernandez. According to Davila, he thought “nothing” would
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happen when he pulled the trigger because “the clip was loaded” but the gun “was

never pumped into action.” The State questioned whether Hernandez was awake

or conscious at the time of the shooting; Davila testified he was awake.

During closing argument, the State raised doubts about Davila’s testimony

that Hernandez was looking at him when Davila pulled the trigger, stating:

[The medical examiner] also gave the opinion that he was
within 6 to 36 inches away from him, and that’s consistent with
[Davila] saying he pointed the gun, and he was 12 inches from
[Hernandez’s] face. What isn’t consistent is [Davila] telling you
yesterday that he pointed it at his head and [Hernandez] was looking
right at him. That just can’t be, because the science doesn’t lie.
[Hernandez] wasn’t looking at him. He didn’t have time to turn his
head from a foot or less away. Didn’t happen that way. Was
[Hernandez] passed out? Was he asleep? He wasn’t engaging with
[Davila]. . . . What's the real story about that? Because [Hernandez]
wasn’t looking at him. He never saw it coming. It was point blank,
and it was cold-blooded, and [Davila] knew that gun was loaded,
because when somebody’s passed out or asleep, you don’t dry fire
a gun to scare that person.

During the defense’s closing, Davila’s attorney responded, arguing:

[The prosecutor] will have you believe that Mr. Hernandez was
probably asleep. Really? We know that he smoked meth. Was he
the only one immune to the [effects] of methamphetamine? Does
methamphetamine make him go to sleep instead of staying up for
hours and hours and hours on end? That makes no sense that he
was asleep. We know all of them smoked methamphetamine.

During its rebuttal, the State repeatedly argued that Hernandez was asleep at the

time Davila shot him. Davila objected and moved for mistrial, arguing the State’s

theory during closing—that he shot Hernandez while Hernandez was asleep or

unconscious—“squarely put [the excluded] toxicology evidence into a position of

being very relevant.” Because of the State’s argument, Davila claimed he should

have been “allowed to let this jury know that [Hernandez] had, at the time of his

death, 360 nanograms per milliliter of methamphetamine in his blood and 26
5

nanograms per milliliter of amphetamine in his blood, which we would have argued

meant that no, he would not likely have been asleep.” The State responded that

while Davila had not been allowed to introduce evidence of Hernandez’s specific

level of intoxication, he was allowed to and did make the argument that Hernandez

was not sleeping at the time of the shooting because of his use of

methamphetamine in the hours preceding his death. The district court denied the

motion for mistrial, concluding the jury would still be able to render an impartial

verdict: “[T]he jury is going to be able to determine, without the exact amount of

methamphetamine that was found in [Hernandez’s] system, that the individuals

were using methamphetamine and that everybody there was having a hard time

going to sleep and that usually methamphetamine keeps you up.”

The jury found Davila guilty of the lesser-included offense of second-degree

murder; he was later sentenced to a term of incarceration not to exceed fifty years.

Davila challenged his conviction and sentence on direct appeal, and we affirmed.1

See generally Davila, 2018 WL 3913418.

Davila filed his PCR application in 2019. He argued he received ineffective

assistance from trial counsel because counsel should have moved to reopen the

record—rather than moving for mistrial—after the State introduced the idea during

its closing that Hernandez was asleep at the time of the shooting. At the PCR

hearing, Davila specified: “There was the opportunity to reopen the record, present

the toxicology reports, present the defense expert indicating what that level of

intoxication would have done to [Hernandez], because he wouldn’t have been

1 Procedendo issued on October 8, 2018.
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asleep as was suggested.” Davila did not call any witnesses at the PCR hearing;

trial counsel was not questioned regarding why counsel chose to move for mistrial

rather than reopen the record.

The district court denied Davila’s application, deciding his ineffective-

assistance-of-counsel claim on the prejudice prong. The court concluded that

because Davila testified Hernandez was awake at the time of the shooting, any

expert would have—at best—been able to opine it was unlikely Hernandez was

asleep due to the amount of methamphetamine used, and because the jury was

instructed to decide the case upon only the record evidence—which the State’s

closing argument was not—Davila failed to establish there was a reasonable

probability that the result would have been different if trial counsel moved to reopen

the record and introduced new evidence. Davila appeals.

II. Standard of Review.

We review PCR claims that trial counsel provided ineffective assistance de

novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).

III. Discussion.

“[A]ll postconviction relief applicants who seek relief as a consequence of

ineffective assistance of counsel must establish counsel breached a duty and

prejudice resulted.” Id. at 866 (alteration in original) (citation omitted). “Both

elements must be prove[d] by a preponderance of the evidence.” Ledezma v.

State, 626 N.W.2d 134, 142 (Iowa 2001). “We may affirm the district court’s

rejection of an ineffective-assistance-of-counsel claim if either element is lacking.”

Lamasters, 821 N.W.2d at 866 (citation omitted). “[W]e scrutinize each claim in

light of the totality of the circumstances. In the end, the inquiry is transformed into
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an individualized fact-based analysis.” Ledezma, 626 N.W.2d at 142 (internal

citations omitted).

“To establish the first prong, the applicant must demonstrate the attorney

performed below the standard demanded of a reasonably competent attorney.” Id.

“Thus, we measure the attorney’s performance against ‘prevailing professional

norms.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)); see

also State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (“A defendant is not entitled

to perfect representation . . . .”). “As such, we begin with the presumption that the

attorney performed competently. Moreover, we avoid second-guessing and

hindsight.” Ledezma, 626 N.W.2d at 142 (internal citations omitted).

“To meet the prejudice prong, [the applicant] must show his counsel’s

‘errors were so serious as to deprive [him] of a fair trial.’” Lamasters, 821 N.W.2d

at 866 (second alteration in original) (quoting Strickland, 466 U.S. at 687).

Showing an error occurred is not enough—“the judgment shall not be set aside

unless it can be shown the error had an effect on the judgment.” Id. Davila has

the burden to show “that there is a reasonable probability that, but for counsel's

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

(quoting Strickland, 466 U.S. at 694). “In a challenge to a criminal conviction, the

appropriate question to ask is ‘whether there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable doubt respecting

guilt.’” Id. (quoting Strickland, 466 U.S. at 695).

Like the district court did, we jump to the prejudice prong of Davila’s

ineffective-assistance claim. See Ledezma, 626 N.W.2d at 142 (“If the claim lacks

prejudice, it can be decided on that ground alone without deciding whether the
8

attorney performed deficiently.”). And we also conclude that Davila has not

established by a preponderance of the evidence that there is a reasonable

probability he would not have been convicted of second-degree murder if trial

counsel moved to reopen the record and the defense expert was allowed to testify

that, due to the specific amount of methamphetamine in Hernandez’s body at the

time of his death, it was unlikely he was asleep or unconscious at the time Davila

shot and killed him.2

2 In its appellate brief, the State argues:

Davila’s argument is entirely speculative; he has not produced an
expert to testify how he or she would have testified at trial. Without
that evidence, Davila could not meet his burden to show that the
outcome of his trial would have been different if his attorney had
successfully moved to re-open the record.
We do not find this argument persuasive. At his underlying criminal trial, Davila
called a forensic toxicologist—Mr. Michael Rehberg—as an expert for the defense.
Based on evidence Davila likely had 300-400 nanograms of methamphetamine in
his blood at the time he shot Hernandez (based on testing completed several hours
after police took him into custody), Mr. Rehberg was asked, “If an individual had
three to four hundred nanograms of methamphetamine in his blood and two and a
half nanograms per milliliter of delta THC—delta-9 THC in his blood, what would
you expect the effects on the human being to be?” He responded:
That human being would be affected greatly by that
combination of drugs, and the one having the greatest effect is the
stimulant, the methamphetamine, and its metabolite. Its metabolite
would be there, and it is also a strong stimulant. That means this
person would be probably hyperactive, could be paranoid, could be
aggressive, could be fearful, could be in a state of hyperawareness,
could speak rapidly, all the kinds of things you think about with
stimulation. Probably would not have an appetite. It's a drug that
suppresses your appetite. It also keeps you awake. You don't sleep
well when you utilize this drug.
And based on the toxicology report from the autopsy of Hernandez, we know that
he had 360 ng/ml of methamphetamine in his femoral blood at the time of his
death—a number within the same range already posed to Mr. Rehberg. It does
take not an inferential leap to conclude that the Mr. Rehberg would offer the same
opinion as to the likely effect of that amount of methamphetamine in Hernandez as
he opined regarding Davila.
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While the jury was not informed of the exact amount of methamphetamine

determined to be in Hernandez’s blood at the time of his death, it was well aware

that Hernandez—like Davila and the others—used methamphetamine in the hours

before his death. The jury heard the defense expert’s testimony that

methamphetamine is “a strong stimulant” and “keeps you awake.” Defense

counsel alluded to this testimony during closing, when counsel explicitly

challenged the State’s assertion that Hernandez was asleep at the time he was

killed. On top of that, the jury also saw photographs of the bullet hole in

Hernandez’s right front temple and heard from the medical examiner that

Hernandez was shot from a range between six and thirty-six inches, making the

claim that he was awake and looking straight at Davila seem less credible.

Plus, while Hernandez’s state of consciousness was important insofar as it

possibly contradicted Davila’s claim that he fired the gun with the goal of scaring

Hernandez, whether Hernandez was awake was not actually an element in

dispute—Davila’s mens rea was the issue. And whether the jury believed

Hernandez was awake or not, it could conclude Davila acted with malice

aforethought when he pulled the trigger; the jury was not obligated to believe

Davila’s explanation for his actions. See State v. Reeves, 636 N.W.2d 22, 25 (Iowa

2001) (“Second-degree murder . . . does not require deliberation and

premeditation; it requires only proof of malice aforethought.”); see also State v.

Buenaventura, 660 N.W.2d 38, 49 (Iowa 2003) (“Malice aforethought is a fixed

purpose or design to do some physical harm to another that exists before the act

is committed. Like premeditation, it does not have to exist for any particular length

of time.” (cleaned up)). While “[t]he jury is [always] free to believe or disbelieve
10

any testimony as it chooses and to give weight to the evidence as in its judgment

such evidence should receive,” State v. Thornton, 498 N.W.2d 670, 673 (Iowa

1993), we think the jury here was unlikely to credit Davila’s testimony about only

intending to scare Hernandez, regardless of the State’s assertion about

Hernandez’s consciousness. The jury heard evidence of Davila’s earlier, less self-

serving statements about killing Hernandez: he told other inmates he killed

Hernandez because Hernandez was behind on rent, and he wrote in his

confession to the police that he “was the one to kill [Hernandez] over a bitch.”

For all of these reasons, Davila failed to prove the prejudice element of his

ineffective-assistance claim. We affirm the district court’s denial of his PCR

application.

AFFIRMED.