Christopher Lee Perry v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-0377
Filed December 16, 2020

CHRISTOPHER LEE PERRY,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly,

Judge.

Applicant appeals the denial of his application for postconviction relief.

AFFIRMED.

Geneva L. Williams of Williams Law Office, PLLC (until withdrawal), Cedar

Rapids, and Peter Stiefel, Victor, for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.

Considered by Vaitheswaran, P.J., Tabor, J., and Blane, S.J.*

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

(2020).
2

BLANE, Senior Judge.

Christopher Lee Perry was convicted of first-degree arson and criminal

mischief in the first degree.1 In an application for postconviction relief (PCR), he

claimed his criminal trial attorney was ineffective. The district court denied the

application, finding trial counsel’s conduct was reasonably competent trial strategy

or Perry was not prejudiced. Upon our de novo review, we determine trial counsel

breached an essential duty in failing to raise the intoxication defense, but in other

respects was not incompetent and Perry was not prejudiced by counsel’s conduct.

We affirm.

I. Factual and procedural background.

On April 28, 2013, Perry was living with his girlfriend Tara McReynolds in

an apartment in Cedar Rapids. McReynolds testified Perry was drinking and using

synthetic marijuana known as K2 that day. They got into a heated argument

precipitated by her underage cousin telling McReynolds that Perry had kissed her.

Finding this objectionable, McReynolds was going to break up with Perry. At one

point during their argument, Perry had McReynolds in a chokehold with his hands

on her neck. As McReynolds was leaving, Perry told her, “I’m going to torch your

shit” before immediately slamming the door and dead-bolting it, locking

McReynolds out of their apartment. Ten minutes later, their apartment was on fire.

Residents of other apartments testified at trial that, during the day in

question, they heard Perry and McReynolds arguing loudly and Perry yell

something to the effect of “I’m going to torch all of your shit, you f-----g bitch” or

1Respectively, a violation of Iowa Code sections 712.1 and 712.2 (2013), a class
“B” felony, and Iowa Code section 716.3(1)(a), a class “C” felony.
3

“You stupid bitch, I’m going to torch [or burn] all your shit,” before slamming the

apartment door. Two other neighbors were outside grilling when they heard a

woman yell “Fire.” They ran to Perry’s apartment but found that his door was

locked. After helping McReynolds’s mother, who lived in a close-by apartment, to

safety, they returned to find Perry’s door unlocked. They observed Perry on the

floor in his apartment, crying and covered in soot. Perry told them that he had

discovered the apartment was on fire when he came out of the shower. The men

pulled him out of the apartment and took him outside.

A paramedic who responded to the scene treated Perry in the ambulance.

She described him as confused, upset, smelling of alcohol, and exhibiting first-

degree and second-degree burns. Perry told her he set his girlfriend’s clothes,

and then himself, on fire. When Perry was interviewed by the emergency room

nurse, he admitted drinking but denied using any drugs.

Captain Allen Brockhorn of the Cedar Rapids Fire Department investigated

the fire in Perry’s apartment and determined that the fire originated in the back

bedroom, in and around the bed and/or on the floor. He and his arson dog did not

detect the use of an accelerant, but he noted an aerosol can near the point of

origin, which was “highly suggestive” of its use. He concluded that the fire was

likely started with an open flame. He also ruled out a fallen lit cigarette, faulty

wiring, malfunctioning appliances, spontaneous combustion, or a “Molotov

cocktail” as sources of the fire. Brockhorn interviewed Perry the day after the fire,

and Perry claimed to have no memory of the fire, but he did not unequivocally deny

setting it.
4

Perry was charged with arson in the first degree and criminal mischief in the

first degree. His trial attorney did not file a notice of intoxication defense. The jury

found Perry guilty of both charges. Perry was sentenced to prison terms not to

exceed twenty-five years on the arson charge and not to exceed ten years on the

criminal mischief charge, to be served concurrently. We affirmed his convictions

on direct appeal. See generally State v. Perry, No. 15-1949, 2017 WL 936092

(Iowa Ct. App. Mar. 8, 2017). He then filed the application for PCR. He raised four

issues of ineffective assistance of trial counsel: (1) failure to raise intoxication as a

defense; (2) failure to secure testimony at trial of an expert witness to rebut the

State’s expert that the fire was set intentionally; (3) failure to object to evidence

that Perry put McReynolds in a “chokehold” and that he had allegedly kissed her

under-aged cousin; and (4) failure to offer photographs at trial that would

demonstrate to the jury a lack of intent on Perry’s part to set the fire.2

At the PCR trial, Perry testified, as did his criminal trial attorney. Perry also

submitted the deposition of his expert witness on intoxication, Dr. James J.

O’Donnell, who opined that Perry was intoxicated to the extent he was incapable

of forming the specific intent to set the fire. In its detailed ruling following the PCR

trial, the court found: (1) trial counsel’s decision to not raise an intoxication defense

was trial strategy and within the wide range of professional competence; (2) trial

counsel made a reasonable effort within professional competency to procure a fire

expert; (3) trial counsel’s decision to not object to “character evidence,” as it was

intrinsic evidence of the events, was reasonable trial strategy; and (4) Perry failed

2The first three issues were raised by PCR counsel; the fourth issue was raised
pro se by Perry at trial.
5

to show prejudice and that there would have been a different outcome due to trial

counsel not offering photographs of the fire. Perry appeals.

II. Standard of review.

Ineffective-assistance-of-counsel claims involve constitutional issues and

are therefore reviewed de novo. State v. Booth-Harris, 942 N.W.2d 562, 569–70

(Iowa 2020). In order to prevail on an ineffective-assistance-of-counsel claim, a

defendant must demonstrate both that “(1) . . . trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.” Sauser v. State, 928

N.W.2d 816, 818 (Iowa 2019) (citation omitted); accord Strickland v. Washington,

466 U.S. 668, 687–88 (1984). Failure to prove either prong is fatal to an

ineffective-assistance-of-counsel claim. State v. Lorenzo Baltazar, 935 N.W.2d

862, 868 (Iowa 2019). Ultimately, the test of ineffective assistance of counsel rests

on whether counsel’s performance was reasonably effective; the defendant must

show that the performance fell below an objective standard of reasonableness

such that his lawyer was not functioning as “counsel” as guaranteed by the Sixth

Amendment. See Strickland, 466 U.S. at 688. The court measures the attorney’s

performance against “prevailing professional norms.” Id. Additionally, the court

begins “with the presumption that the attorney performed competently.” Ledezma

v. State, 626 N.W.2d 134, 143 (Iowa 2001). Each claim is to be analyzed “in light

of the totality of the circumstances.” Id. at 142. And “ineffective assistance is more

likely to be established when the alleged actions or inactions of counsel are

attributed to a lack of diligence as opposed to the exercise of judgment.” Id. When

trial counsel’s strategy is not reasonable, the court will find counsel failed in an

essential duty. State v. Tracy, 482 N.W. 2d 675, 679 (Iowa 1992). Improvident
6

trial strategy, miscalculated tactics, or mistakes in judgment do not necessarily

amount to ineffective assistance of counsel. Osborn v. State, 573 N.W.2d 917,

922 (Iowa 2008). Discussion.

A. Intoxication defense.

i. Breach of an essential duty.

Iowa Code section 701.5 provides for the defense of intoxication. Evidence

of intoxication may negate specific intent, if such intent was an element of the crime

charged. State v. Caldwell, 385 N.W.2d 553, 557 (Iowa 1986). Arson is a specific-

intent crime; the State must prove that the defendant caused a fire or explosion

“with the intent to destroy or damage property, or with the knowledge that property

will probably be destroyed or damaged.” Iowa Code § 712.1(1). A defendant must

file a timely pre-trial notice in order to assert the intoxication defense at trial. See

Iowa R. Crim. P. 2.11(11)(c).

Perry’s criminal trial attorney acknowledges he did not file a notice of

intoxication defense or attempt to raise the defense at trial. The attorney also

testified that he believed the arson charge was not a specific-intent crime and that

the intoxication defense did not apply. Perry contends that his trial counsel was

ineffective in failing to pursue the intoxication defense. Perry also argues that

failing to raise this defense was not a reasonable strategy decision.

There is no question that evidence supported Perry was intoxicated during

the events surrounding the fire. However, as Perry’s counsel pointed out in his

PCR testimony, Perry maintained throughout his criminal case that he did not set

the fire. When asserting the intoxication defense, the defendant must admit to

committing the act. State v. Rodriguez, No.10-0039, 2011 WL 1814707, at *7
7

(Iowa Ct. App. May 11, 2011) (“An intoxication defense admits to the act, but

negates whether the person acted with specific intent.”) For this reason, trial

counsel testified he made a strategic decision:

Chris said he didn’t start the fire, so intoxication would not be a
defense if you’re denying that you committed the act.
....
. . . . But my theory of defense was that it was probably an
accident and that Chris had fallen asleep while smoking or something
like that, because even though he allegedly told Miss McReynolds
that he was going to burn her stuff, it didn’t make any sense that he
would start a fire in his own apartment destroying his own stuff when
he was inside with the door locked. It just didn’t make any sense that
he would have started the fire.

A review of Perry’s attorney’s closing argument discloses that he argued

the fire was an accident:

[I]f, in fact, there was an argument—which we aren’t even conceding
there was—if there was an argument in the afternoon and Chris went
back to his apartment and was smoking—remember, he was a
smoker; in fact, Tara said a chain smoker—if he was smoking a
cigarette, fell asleep or whatever, and the cigarette set the bedding
on fire, if the proper conditions were there and it took an hour, hour
and a half, that would have put us to maybe 7 or 7:30, so that’s a
possibility.

The district court addressed Perry’s claim:

While [counsel] was clearly wrong in his belief that Arson in the First
Degree was not a specific intent crime, and therefore an intoxication
defense could have been raised, it remains that an intoxication
defense would have been inconsistent with the theory that Taylor
was presenting to the jury because an intoxication defense “admits
to the act . . .” Rodriguez, [2011 WL 1814707, at *7 (noting “an
intoxication defense would have been at odds with his main defense
of identity”)]. The court views [counsel’s] approach as a decision of
strategy, and therefore will not disturb it.

The court was correct in one regard—that the intoxication defense would

have been inconsistent with Perry’s denial that he started the fire. But this does

not prevent trial counsel from presenting inconsistent theories of defense. In State
8

v. Broughton, our supreme court found it was error for the trial court to fail to

instruct on an intoxication defense when requested by defendant’s trial counsel,

even though it was inconsistent with the alibi defense (that he did not commit the

crime), which the defendant was also asserting. 425 N.W.2d 48, 51 (Iowa 1988).

The supreme court held, after analyzing federal and state authority, that a

defendant has the right to raise inconsistent theories of defense and the court must

instruct on those if requested. Id. Perry’s counsel could have raised and argued

an intoxication defense even if inconsistent with Perry’s denial that he started the

fire.

But the intoxication defense was not necessarily inconsistent with trial

counsel’s alternative argument that Perry might have accidentally started the fire.

That Perry had a right to raise an intoxication defense, whether inconsistent or not,

does not mean that his counsel failing to raise the intoxication defense is

automatically a breach of an essential duty. We must look at the totality of

circumstances and determine if defense counsel’s strategy choices were

reasonable.

Perry’s trial counsel explained, based on his forty-five plus years of trial

experience, he found the intoxication defense was not well received by juries. It

makes sense that a trial counsel would not want to argue inconsistent theories. To

do so can create an enormous credibility problem between counsel and the jury,

which counsel may well want to avoid. But the intoxication defense was not

inconsistent with the accident theory counsel argued to the jury. When this is

coupled with trial counsel’s belief that the arson charge was not a specific-intent

crime and therefore not subject to an intoxication defense, we find that counsel’s
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failure to pursue the intoxication defense was not a reasonable trial strategy and

amounted to a breach of duty. See Anfinson v. State, 758 N.W.2d 496, 505–06

(Iowa 2008) (finding breach of duty where trial counsel’s strategic decision was not

based on reasonable professional judgment).

ii. Prejudice.

We turn to the prejudice prong of the ineffective-assistance claim. Would it

have made any difference if Perry’s trial counsel had properly raised and argued

an intoxication defense? There was evidence of Perry’s drinking and using K-2,

synthetic marijuana, during that day leading up to the fire adequate to support his

being intoxicated. At the PCR trial, Perry’s counsel submitted the deposition of his

expert, Dr. O’Donnell, to support Perry’s intoxication was to such a degree that

Perry could not form the specific intent to start the fire.

In addressing Perry’s sufficiency-of-the-evidence claim on direct appeal,

our court discussed Perry’s intoxication.

Perry notes he was intoxicated at the time the fire started. In
order to negate the specific-intent element of a crime, it is not enough
that an offender is intoxicated; the offender must be so intoxicated
as to be unable to reason and incapable of forming a felonious intent.
The evidence does not support such a finding here. Despite being
intoxicated at the time the fire began, Perry made his intentions clear
and was able to follow through on his threat. Viewing the record
evidence in the light most favorable to the State, there is substantial
evidence by which a reasonable fact finder could determine that
Perry intentionally set the fire.

Perry, 2017 WL 936092, at *2 (citation omitted). Perry made a clear statement of

intent. He then retreated into the apartment where McReynolds’s property was

located, bolted the door and, within minutes, residents saw smoke coming from

the apartment.
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“If the claim lacks prejudice, it can be decided on that ground alone without

deciding whether the attorney performed deficiently.” Ledezma, 626 N.W.2d at

142. For the prejudice prong in a claim of ineffective assistance of counsel, “the

applicant must demonstrate ‘that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Id. at 143 (quoting Strickland, 466 U.S. at 694). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. An applicant must establish the prejudice prong by a

preponderance of the evidence. Ledezma, 626 N.W.2d at 142.

As we noted in our earlier opinion, “[t]he evidence does not support” that

Perry was “so intoxicated as to be unable to reason and incapable of forming a

felonious intent such a finding here.” Perry stated his intention. He admitted to

the paramedic who treated him after the fire that he started it. Perry was not

prejudiced by his trial counsel’s representation.

B. Failure to secure a trial expert.

Perry contends that had his trial counsel hired an expert he would have

discovered that Perry suffered a severe level of intoxication so as to be incapable

of forming the necessary intent to set the fire and should have presented this

evidence at the criminal trial. Perry’s trial counsel testified he obtained court

approval for expenses to retain a fire-investigation expert to testify that the fire was

not intentionally set and about his efforts to hire such an expert. Trial counsel did

not pursue retaining an expert on intoxication. The district court found Perry’s trial

counsel was neither incompetent nor provided a lack of effort regarding securing

an expert witness.
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Although we do not agree with the district court regarding the retention of

an expert, as Perry contends the expertise should have involved an intoxication

expert not a fire-investigation expert, we are able to resolve this issue based on

the prejudice prong. In the preceding section we determined that an intoxication

defense would not have resulted in a different verdict. Perry suffered no prejudice

in this regard.

C. Failure to object to evidence.

Perry contends his trial counsel was ineffective for failing to object to

evidence that Perry placed McReynolds in a “chokehold” and that he had kissed

her underage cousin. He claims such evidence was objectionable as irrelevant

and evidence of bad acts. See Iowa Rs. Evid. 5.403, .404(b). However, evidence

portraying the defendant in a bad light may be admissible because it is inextricably

intertwined with the crimes for which a defendant is being tried. State v. Nelson,

791 N.W.2d 414, 420–24 (Iowa 2010) (evidence of other crimes or acts may be

admitted when a court “cannot sever this evidence from the narrative of the

charged crime without leaving the narrative unintelligible, incomprehensible,

confusing, or misleading”).

We find that Perry’s trial counsel was not ineffective for not objecting to this

evidence. A review of the record shows that McReynolds’s underage cousin’s

statement to McReynolds that Perry had kissed her was the basis for the argument

between Perry and McReynolds, which then led to Perry’s physical chokehold of

McReynolds and Perry setting the fire. Even if Perry’s trial counsel had lodged

appropriate objections, the trial court would have properly overruled the objections

and no prejudice occurred.
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D. Failure to offer photographs.

Finally, Perry argues his trial counsel was ineffective for failing to offer four

photographs of the fire damage, which he claims would have demonstrated a lack

of intent to set the fire. Upon our de novo review, we agree with the district court

that “such photographs could equally serve to prejudice Perry before the jury as

they were graphic photographs of the crime scene.” Perry was not prejudiced by

trial counsel not offering the photographs.

III. Conclusion.

On our de novo review, we find even though Perry’s criminal trial counsel

breached a duty in failing to raise the intoxication defense, Perry was not

prejudiced. As to the other claims, Perry’s counsel either did not breach a duty or

Perry suffered no prejudice. We therefore affirm the denial of postconviction relief.

AFFIRMED.