Jerel Lamar Wright, Applicant-Appellant v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 16-0518
Filed September 13, 2017

JEREL LAMAR WRIGHT,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.

Appeal from the denial of an application for postconviction relief filed

pursuant to Iowa Code chapter 822 (2013). AFFIRMED.

Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,

Mason City, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.

Considered by Mullins, P.J., and Bower and McDonald, JJ.
2

MCDONALD, Judge.

Jerel Wright was convicted of attempted murder and voluntary

manslaughter for the stabbing of Derrick Tye and the stabbing and death of

Jermaris Lorez West. In State v. Wright (Wright), No. 10-1330, 2011 WL

2041578, at *1 (Iowa Ct. App. May 25, 2011), this court affirmed Wright’s

convictions on direct appeal and preserved for postconviction-relief proceedings

certain claims of ineffective assistance of counsel. In Wright v. State (Wright II),

No. 12-2101, 2014 WL 636150, at *1 (Iowa Ct. App. Feb. 19, 2014), this court

affirmed the denial of Wright’s application for postconviction relief. In this case,

Wright appeals the denial of his second application for postconviction relief.

Wright claims his trial counsel provided constitutionally deficient representation in

four respects. Our review is de novo. See State v. Schlitter, 881 N.W.2d 380,

388 (Iowa 2016).

I.

Some of the relevant facts and circumstances surrounding the offense are

set forth in our prior opinions. See Wright II, 2014 WL 636150, at *1; Wright,

2011 WL 2041578, at *1.

On or about September 7, 2009, Wright was involved in a street
fight. Two of the participants were stabbed. De[r]rick Tye was
hospitalized as a result of his injuries. Jermaris Lorez West died as
a result of the injuries he sustained. Wright was immediately
arrested and taken into custody. Wright initially exercised his right
to remain silent in response to law enforcement efforts to
interrogate him. He was permitted to call his mother, and she told
him to tell the officers what he had done. He responded
accordingly and admitted stabbing Tye and indicated he had tried
to kill him but did not admit to stabbing West. Wright was charged
with the attempted murder of Tye and the second-degree murder of
West. His statements were admitted into evidence at trial.
3

While Wright was incarcerated in the Dubuque County Jail
he was visited by Sister Rosanna Gleason, acting as a chaplain or
chaplain’s assistant to the residents of the jail. Wright wrote a letter
in which he admitted stabbing Tye and put it in an envelope which
he gave to a jailer for delivery to Sister Gleason. The letter did not
admit that he stabbed West. The letter was opened by the jail staff
and admitted into evidence at trial.

Neither Wright’s admissions to the interrogators nor his letter
to his assistant chaplain were challenged by a motion to suppress,
and both were admitted at trial without objection. Wright and his
counsel had determined that he would testify. The evidence was
overwhelming that he had stabbed Tye and substantial that he had
stabbed West. The blade of the knife recovered at the scene had
blood with DNA matching both Tye and West. Wright was found
guilty of attempted murder as charged and voluntary manslaughter
instead of murder in the second degree.

Wright II, 2014 WL 636150, at *1.

The event precipitating the street fight occurred the evening before the

street fight. That evening, Wright had sexual intercourse with a woman who was

pregnant with Tye’s child and who was the mother of Tye’s children. At some

point after Wright had intercourse with the mother of Tye’s children, Tye arrived

at the home where Wright was. Tye was accompanied by Shelby Redmond,

De’Andre Murphy, Deonte Howard, and Jermaris West. Tye confronted Wright,

and a fight ensued. Tye and two of the other men beat up Wright, striking him

with their fists, a six-pack of soda cans, a flower pot, and a fire extinguisher.

West intervened and broke up the fight. Wright left the home and went to a

nearby park. Wright testified his lip had a hole in it, his nose was bleeding, and

he had lumps and knots in his face from the fight.

The following day, Wright and Tye, personally and through intermediaries,

communicated with each other by telephone. Depending on whose testimony is

credited, Tye made threats against Wright or Wright made threats against Tye.
4

Other persons attempted to resolve the situation before things got out of hand.

Later the same day, Wright and his brother Joseph, along with several other

individuals, were driving in a friend’s car and they came across Tye and several

other persons outside a residence. Joseph stopped the car, and everyone in the

car exited the vehicle. After some talking and posturing between the two groups,

Wright got into a fight with Shelby Redmond. The fight ended when an older

gentleman, known in the neighborhood as “Unc,” intervened and attempted to

break up the fight. West hit the man and knocked him out. Wright and his

associates left the scene in their vehicle.

The fight at issue in this case occurred not much later the same day.

Wright gave one account of the fight. After regrouping at Wright’s house, Wright

testified he and his friends decided to walk back to the scene of the previous fight

to check on Unc. When they arrived at the scene, Unc was being placed into an

ambulance. Police were at the scene. Wright did not speak with the police.

Instead, he, his brother, and their friends decided to go to Romaine Wheeler’s

house. They set out on foot and began jogging. Wright testified six or seven

men started following them. When Wright and his associates turned a corner,

they saw a car with West and other individuals in it. Wright testified he believed

a fight was going to occur. Wright and his brother Joseph ran toward the men

exiting the car and started fighting with them. Wright testified “twenty people”

were involved in the fight. Wright testified he did not have a knife at the time the

fight started. He denied stabbing West. Wright testified he saw Derrick Wheeler

stab West. At some point during the fight, Wright testified, he saw the knife on

the ground, picked it up, and stabbed Derrick Tye. Wright testified he “snapped
5

back,” realized what he had done, and backed away. At that point, Romaine

Wheeler kicked him in the back, which caused Wright to drop the knife on the

ground. Wright testified he then ran. He was arrested a few blocks away.

The State’s witnesses gave a very different version of events. The fight at

issue occurred in front of the home of Erica Palmer. She testified she saw a

commotion outside and called the police. She saw LaShaun Runnels and Wright

arguing. She saw Joseph and Derrick Wheeler “swinging on top of” Tye. Later,

Palmer saw her sister retrieve a broken knife outside the home and set it on the

porch.

LaShaun Runnels, the owner of the vehicle from which the men were

exiting, testified Wright’s group ran at the car and started fighting with her car’s

occupants as soon as they exited the car. She testified she saw several men

fighting with West and she unsuccessfully tried to pull several men off him.

According to Runnels, Wright threatened to stab her with a knife he was wielding.

He swung the knife at her, but she backed away. She testified both Wrights had

knives—Jerel’s like a steak knife and Joseph’s a little larger. Runnels testified

she witnessed Wright stab Tye in the back. Then the Wrights and at least one

other individual, Fred Moore, jumped on top of Tye. Runnels believed Moore

may have had a knife. Wheeler and another individual pulled the Wrights off of

Tye. The Wrights and Wheeler then ran off.

Shelby Redmond was one of the occupants of the vehicle. He testified

when he exited the car in front of Palmer’s house, Wheeler grabbed his neck.

Wright ran up to Redmond and “tried to poke” him with a knife. Redmond

testified Wright did not injure him with the knife but only managed to rip his shirt.
6

Redmond testified he saw the Wrights approach West with knives but did not see

them stab West. He testified he only saw the Wrights “exchanging blows” with

West. Redmond went into Palmer’s house to retrieve a liquor bottle to use as a

weapon. When Redmond emerged from the home with a bottle, the fight was

over. He briefly chased the Wrights but dropped the bottle and ran when he saw

the police arriving at the scene.

Derrick Tye testified he saw Jerel Wright running toward Runnels’ car with

a knife. Tye exited the vehicle on the opposite side to avoid Wright. Tye fell

down after exiting the vehicle. At that point, he was aware of Joseph Wright, if

not others, hitting him. He did not see Jerel Wright. He testified he heard

Wheeler ask Jerel Wright what he was doing with the knife. Tye testified he did

not know he was stabbed, but he “probably figured [he] was when they [said] he

had a knife.” He was able to make it to safety in Palmer’s house after the fight

broke up. He then realized he was bleeding.

Romaine Wheeler testified he was with the Wrights when they started

running at the car parked in front of Palmer’s house. Wheeler ran after Joseph to

stop him, but he was unable to do so. Wheeler testified he observed Runnels

and Joseph fighting. Wheeler observed Wright with “a silver object in his hand.”

Wheeler later saw Wright stab Tye. Wheeler testified he pulled Wright off Tye

and then the Wrights ran away. At that point, Redmond came running out of

Palmer’s house with a bottle. Wheeler was aware Redmond was coming for him,

so Wheeler ran away.

Deonte Howard testified he saw the Wrights run up to West and swing at

him. He saw West run off but did not see him again. Howard saw Wright with a
7

knife in his hand run toward Runnels. Howard testified he then saw Tye crossing

the street with Wright chasing him. Tye fell, and Wright jumped on top of Tye.

Howard testified Joseph then came over to help Wright, but Wheeler had

grabbed Wright and taken the knife from him. Howard saw Romaine ask Wright

what he was doing, and Howard saw Tye with a large gash in his head. Howard

saw no one else with a knife besides Wright. Howard testified there were

“people everywhere” during this incident but the two he recognized were the

Wrights.

Police officers and medical personnel arrived at the scene. They found

West alive at the scene. He was transported to the hospital for treatment but

died at the hospital. Tye was still present at the scene and received medical

treatment. He had been stabbed in the head. Officers obtained a search warrant

to search the vehicle Wright had been using that day. Officers found a long

piece of wood in the back seat and a knife in the glove compartment of the

vehicle.

II.

To establish his claims of ineffective assistance of counsel, Wright was

required to prove by a preponderance of the evidence that his trial counsel’s

performance was so deficient that it constituted a breach of an essential duty and

the breach of duty resulted in prejudice to him. See State v. Straw, 709 N.W.2d

128, 133 (Iowa 2006) (citing Strickland v. Washington, 466 U.S. 668, 687–88

(1984)). “Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at
8

700; see also State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (“A defendant’s

inability to prove either element is fatal.”).

With respect to the first element, Wright was required to prove counsel’s

performance fell below the standard of a reasonably competent attorney. See

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). In assessing counsel’s

performance, we presume counsel acted competently. See State v. Horness,

600 N.W.2d 294, 298 (Iowa 1999). The presumption of competency can be

overcome if trial counsel’s performance “fell below the normal range” of

competent performance. Id.

To establish prejudice, the applicant must prove “that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Strickland, 466 U.S. at 687. It is not enough to show the breach had

only some effect on the outcome, as nearly any act or omission by counsel

results in some change to the outcome one way or another, but not necessarily in

a way that would undermine its reliability. See id. at 693. Rather, “[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. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

A.

Wright first contends his trial counsel was ineffective in failing to file a

motion to suppress the statements Wright made to police officers. Specifically,

after speaking with his mother, who encouraged Wright to speak with the police,
9

Wright told police officers that he “tried to kill that motherfucker,” referring to Tye,

and that he “could give two fucks about” anyone else at the crime scene.

We conclude Wright has waived this claim. Wright argues only that his

trial counsel should have moved to suppress the statements. Wright makes no

argument regarding the substantive basis for the motion to suppress. He makes

no argument the trial court would have granted the motion to suppress had it

been made. He cites no authority in support of his argument. “[W]e will not

speculate on the arguments [the appellant] might have made and then search for

legal authority and comb the record for facts to support such arguments.” Hyler

v. Garner, 548 N.W.2d 864, 876 (Iowa 1996). The argument is thus waived. See

Iowa R. App. P. 6.903(2)(g)(3) (providing the failure to cite authority in support of

an issue may be deemed waiver of the issue).

Even assuming Wright had not waived this claim, the claim would fail. In

the prior appeal, we concluded counsel did not breach an essential duty in failing

to move to suppress the statements at issue. There was little reason to believe

Wright had a valid motion to suppress. In addition, counsel made a strategic

reason not to move to suppress the statements because Wright was going to

testify at trial and the statements would have been admitted regardless. As

stated in our prior opinion:

There was scant evidence that Wright’s statement to law
enforcement was the result of coercion. Counsel for Wright was
well aware that if he testified he would be subject to cross-
examination and his statements to the interrogators would most
likely be a basis for impeachment if he denied their content. See
State v. Davis, 328 N.W.2d 301, 303 (Iowa 1982). Statements
made in violation of Miranda rights are admissible for impeachment
if the trustworthiness of the statements satisfies legal standards.
Mincey v. Arizona, 437 U.S. 385, 397–98 (1978).
10

In summary, trial counsel in concert with Wright made a
conscious decision for him to testify, understanding the
interrogation would be admitted, in the hope that the conviction for
second-degree murder would be avoided. To the extent that Wright
was only convicted of voluntary manslaughter, counsel’s strategy
was not improvident, but instead was successful.

Wright II, 2014 WL 636150, at *2.

B.

In his next claim of error, Wright contends his trial counsel failed to

adequately prepare him to testify. Wright’s vague allegation that trial counsel did

not adequately prepare him for trial is not sufficient to overcome the presumption

his counsel acted competently in preparing him for trial. See Horness, 600

N.W.2d at 297. “Claiming counsel should have done a better job is not enough;

specific ways in which counsel was inadequate are required.” Runyan v. State,

No. 03-1775, 2005 WL 1629956, at *3 (Iowa Ct. App. July 13, 2005).

In any event, there is no evidence counsel failed to prepare Wright to

testify. The record reflects trial counsel met with Wright on at least six separate

occasions when depositions of witnesses were taken. In addition, trial counsel

and Wright met on other occasions to prepare for trial. Trial counsel testified her

trial preparation practice was not to practice responses to specific questions but

instead to prepare the witness generally for trial. She testified she went over the

framework of Wright’s testimony with him, informing him of the general topics

they were going to cover and the sequence in which the topics would be covered.

We also conclude Wright failed to establish he suffered any prejudice. He

does not contend he was unprepared to answer any specific question or

questions. He does not contend his testimony would have been substantively
11

different. Instead, he contends he would have seemed more confident and

trustworthy to the jury. This is mere speculation and insufficient to establish

constitutional prejudice. See Thomas v. State, No. 14-0818, 2015 WL 4481692,

at *2 (Iowa Ct. App. July 22, 2015) (holding the defendant failed to prove

ineffective assistance of counsel claim where the defendant made only a

generalized claim his counsel should have done more to prepare the defendant

to testify); Runyan, 2005 WL 1629956, at *3 (holding the defendant failed to

establish prejudice “resulting from lack of preparation for his testimony”).

C.

Wright contends his counsel did not do enough to impeach witness

Romaine Wheeler. A police report documenting an interview with Wheeler

states, “Wheeler stated that he seen a knife during the fight but claimed not to

know who had it.” The report also stated Wheeler told police “another subject”

“accidentally cut” him but Wheeler claimed not to know who the subject was. At

trial, Wheeler identified Wright as the person with the knife. Trial counsel did not

impeach Wheeler using the police report.

We conclude the district court did not err in denying this claim for relief.

Wright takes the statements out of context. When viewed as a whole, the police

report had limited impeachment value. According to the police report, Wheeler

stated he pulled Wright off Tye while they were fighting. Wheeler also stated Tye

stated “he stabbed me” at the same time Wheeler observed Wright to be

punching Tye. In short, the statements made to the police largely corroborated

testimony that Wright had a knife and stabbed Tye. In addition, in light of the

strength of the other evidence, including multiple eyewitnesses that testified to
12

substantially the same version of events as Wheeler, Wright has not established

prejudice. See, e.g., Brewer v. State, No. 15-0144, 2016 WL 5930329, at *2 n.2

(Iowa Ct. App. Oct. 12, 2016) (holding the defendant failed to establish prejudice

from failure to impeach State’s witness where there was strong evidence of guilt);

Reynolds v. State, No. 08-1764, 2010 WL 1050172, at *2 (Iowa Ct. App. Mar. 24,

2010) (holding the defendant suffered no prejudice where trial counsel failed to

impeach a witness on a collateral matter); Weaver v. State, No. 04-0870, 2005

WL 600228, at *5 (Iowa Ct. App. Mar. 16, 2005) (holding no prejudice for failure

to impeach witness).

Wright also makes a similar claim regarding the failure to impeach Tye’s

testimony. The challenged testimony related to a discrepancy in Tye’s testimony

on a collateral matter. On de novo review, we conclude the claim is wholly

without merit.

D.

In his last claim of error, Wright contends his counsel provided ineffective

assistance in failing to request a justification instruction. Specifically, his counsel

should have requested an instruction that Wright’s action was justified in defense

of his brother. It should be noted that Wright’s claim relates only to the conviction

for attempted murder of Tye. Wright wholly denied he stabbed West.

“Justification as a defense is two-pronged: an admission that a proscribed

act was done, and the establishment of an exculpatory excuse that takes the act

out of the criminal law.” State v. Jeffries, 313 N.W.2d 508, 509 (Iowa 1981). The

defense is codified at Iowa Code section 704.3: “A person is justified in the use

of reasonable force when the person reasonably believes that such force is
13

necessary to defend oneself or another from any imminent use of unlawful force.”

“[T]he test of justification is both subjective and objective. The actor must

actually believe that [another] is in danger and that belief must be a reasonable

one.” State v. Frei, 831 N.W.2d 70, 74 (Iowa 2013) (quoting State v. Elam, 328

N.W.2d 314, 317 (Iowa 1982)).

Justification is an affirmative defense. See State v. Delay, 320 N.W.2d

831, 834 (Iowa 1982). The defendant bears the burden of demonstrating that the

record contains sufficient evidence to support an instruction on this issue. See

State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997). The district court is obligated

to instruct the jury on that defense if substantial evidence exists to support it.

See State v. Rains, 574 N.W.2d 904, 915 (Iowa 1998); State v. Dunson, 433

N.W.2d 676, 677 (Iowa 1988) (“Substantial evidence in the record from any

source justifies submission of a self-defense instruction. If there is such

substantial evidence, the district court has a duty to give a requested instruction

on the defense.” (citation omitted)). Once the instruction is given, the burden

shifts to the State to disprove the justification defense beyond a reasonable

doubt. See Delay, 320 N.W.2d at 834. Where the record “does not contain

substantial evidence of self-defense the trial court is not obligated to instruct the

jury on justification.” Id.

To prevail on his constitutional claim, Wright must prove his trial counsel

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

Ledezma, 626 N.W.2d at 142. We scrutinize the “claim in light of the totality of

the circumstances.” Id. “[I]neffective assistance is more likely to be established

when the alleged actions or inactions of counsel are attributed to a lack of
14

diligence as opposed to the exercise of judgment.” Id. “Miscalculated trial

strategies and mere mistakes in judgment normally do not rise to the level of

ineffective assistance of counsel.” Id. at 143.

Under the totality of the circumstances, we conclude Wright failed to

establish his trial counsel’s conduct fell below the standard demanded of a

reasonably competent attorney. Wright’s trial counsel was an experienced

practitioner in criminal law. She served as an assistant county attorney from

1992 through 2004. In 2004, she obtained a position as a public defender,

handling felonies, including murder, willful injury, and felonies involving guns.

This case was tried in 2010. Wright’s trial counsel testified she would not have

requested an instruction where she believed there was not evidence at trial

supporting the instruction or where requesting the instruction would weaken her

client’s case. She testified “the entire record would not be sufficient to support an

instruction” in this case. In addition, counsel testified she had made a decision to

argue Wright had no intent to kill Tye. She wanted “to let the jury see a young

man who . . . was in a situation of where there were a lot of things that people

could have done on impulse without thinking about them at all.” Counsel’s

judgment was based on her trial preparation, which included numerous

depositions, the use of an investigator, and meetings with Wright. “[S]trategic

decisions made after ‘thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.’” Ledezma, 626 N.W.2d at 143 (citation

omitted). Such is the case here.

This is not one of the rare cases in which counsel’s strategic decision can

be said to be so poor that it fell “outside the broad scope of a reasonably
15

competent attorney.” Id. This is not a strong case for the justification defense.

First, it is largely undisputed Wright and his brother initiated the attack on

the men exiting the vehicle. The defense of justification is only available, with

some exceptions not relevant here, where the defendant did not initiate the

violence. See Dunson, 433 N.W.2d at 679 (discussing the withdrawal

exception); State v. Badgett, 167 N.W.2d 680, 683 (Iowa 1969) (stating the

aggressor is not entitled to the defense).

Second, there is also evidence an alternative course of action was

available to Wright. See State v. O’Shea, 634 N.W.2d 150, 157 (Iowa 2001)

(stating the State may disprove the defense of justification where the defendant

had an alternate course of action). For example, Wright and his associates could

have continued to run. Wright testified he had his cellular phone on his person.

He could have called the police for help. According to Wright’s testimony, only a

few moments before this fight started, the police were several blocks away

investigating the fight resulting in injury to Unc.

Third, and most important, Wright did not testify he stabbed Tye for the

purpose of coming to the defense of Joseph from attacks by Tye. He testified:

Q. What did you do with the knife? A. I stabbed Derrick
[Tye].

Q. Why? A. I mean, when I made it across the street, I saw
my brother on the bottom of the crowd. So at first, I came over
swinging with my fists. Nothing in hand. And then I was hit,
knocked to the ground, and I spotted the knife. I picked it up. He
wasn’t—it wasn’t no intentional target, you know? I just swing it
and he got hit.

In reviewing Wright’s testimony, it is not even clear Tye was in the group of

people allegedly attacking Joseph. Wright testified he saw his brother on the
16

bottom of a crowd. Even if one were to infer from this statement that Joseph was

being attacked by “the crowd,” Wright never identified Tye as one of the persons

in the crowd attacking Joseph. Wright merely testified Tye was in a group of

people fighting near some wood chips near his brother. He testified, “It was, like,

twenty people fighting over there. It was just chaos.”

At best, Wright’s testimony established he was moving toward his brother,

he was knocked to the ground, he found a knife, he indiscriminately swung the

knife, and, in so doing, he unintentionally stabbed Tye, who was among a group

of twenty people fighting in an area near where his brother was also fighting.

“[W]hen an individual testifies that they did not intend to cause harm, such

testimony prevents the individual from claiming self-defense.” State v. Hubbard,

No. 11AP-945, 2013 WL 3341171, at *14 (Ohio Ct. App. June 27, 2013); see

also People v. Parsons, No. 328430, 2016 WL 6780706, at *3 (Mich. Ct. App.

Nov. 15, 2016) (holding defendant’s statement she accidentally stabbed the

victim negated her claim of self-defense).

We cannot conclude counsel’s strategic decision to not request a

justification instruction under the circumstances was so outside the bounds of

competency that it can be deemed constitutionally deficient representation. The

claim of justification was weak based on the record evidence. See State v.

Ridenour, No. 00-0709, 2001 WL 803674, at *2 (Iowa Ct. App. July 18, 2001)

(“The record in the present case does not contain substantial evidence to

generate a jury issue on self-defense. Ridenour’s own testimony was devoid of

suggestion that he believed force was necessary to protect himself. Instead, he

stated that upon hearing Porter behind him he swung at him ‘without thinking.’”).
17

Counsel made a decision to forego the defense and present an alternate

argument. We must not “assume the role of Monday morning quarterback in

condemning counsel’s judgment in choosing between what are frequently equally

hazardous options available to [her].” Anfinson v. State, 758 N.W.2d 496, 501

(Iowa 2008). “The real issue is not whether defense counsel’s actions were

successful, but whether they were ‘justifiable.’” Id. (citation omitted). Here, they

were.

III.

For the foregoing reasons, we conclude the district court did not err in

denying each of Wright’s claims for postconviction relief. We also conclude

Wright is not entitled to relief under a cumulative-error analysis. See State v.

Clay, 824 N.W.2d 488, 501–02 (Iowa 2012). We affirm the judgment of the

district court.

AFFIRMED.