Michelle Lynn Kehoe v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 18-0222
Filed December 18, 2019
MICHELLE LYNN KEHOE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, Richard D.
Stochl, Judge.
The applicant appeals from the denial of her application for postconviction
relief. AFFIRMED.
Jonathan M. Causey of Causey & Ye Law, P.L.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins and Andrew J.
Prosser, Assistant Attorneys General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
2
POTTERFIELD, Judge.
Michelle Kehoe appeals from the denial of her application for
postconviction relief (PCR), following her 2009 convictions for murder in the first
degree, attempted murder, and child endangerment resulting in serious injury.
Kehoe argues she received ineffective assistance from trial counsel when
counsel failed to 1) move to suppress the incriminating statements she made to
police while in the hospital without first receiving Miranda warnings; 2) secure a
different, more remote change of venue; and 3) raise the issue of Kehoe’s
competency to stand trial. In her supplemental pro se brief,1 Kehoe joins some
of the arguments made by counsel and also lists a number of errors she believes
the PCR court made in its ruling.
I. Background Facts and Proceedings.
On Sunday, October 26, 2008, Kehoe drove her two sons, who were
seven and two years old, to Jesup, Iowa. At approximately 12:30 p.m., she
stopped at a convenience store and asked where a park was located so her
children could play. The store clerk named a couple of local parks. Kehoe took
the children to a different park, purposely dropped her cell phone, and left. Next,
she took the children to a secluded spot she had previously found near Littleton,
Iowa—a location just a few miles from the park. In the early afternoon, she
parked her vehicle near a pond and told the children she needed to get out of the
1
Kehoe filed a supplemental pro se brief. We consider it as part of her appeal because
this matter was already pending when Iowa Code section 814.6A took effect on July 1,
2019. See State v. Macke, 933 N.W.2d 226, 236 (Iowa 2019) (concluding the
amendments to Iowa Code section 814.6 and 814.7 apply only prospectively—to
appeals filed after the law took effect on July 1); State v. Purk, No. 18-0208, 2019 WL
5790875, at *7 n.8 (Iowa Ct. App. Nov. 6, 2019) (applying the reasoning of Macke and
concluding section 814.6A “does not apply to this appeal, which was filed prior to July 1,
2019”).
3
van. Kehoe opened the back hatch, used duct tape she had already ripped into
pieces to cover her children’s eyes, and then slit both of their necks using a
hunting knife. She then doctored the scene, making it look like someone had
attempted to perform first aid on the children and setting out a note detailing how
a strange male had attacked them. She then slit her own throat.
Kehoe lost consciousness for some time, but she came to the next day
and walked to a nearby home for help. There, she told the woman who came to
the door that she and her children had been attacked by a man. The woman in
the home called for help immediately, at approximately 7:30 a.m. on October 27.
Once local medical personnel and police responded, Kehoe was airlifted
to the University of Iowa Hospitals. When police located the van next to the
pond, the youngest child had died from the wounds to his neck. The older child
was alive and in the van. He told the first responders that his mother had taken
him out of the van into the woods and cut him with something; he said he began
kicking her and she left him alone. He relayed that his mother went to his brother
next and that he passed out after he heard his brother screaming. According to
the seven year old, he woke up later and then got back in the van and hid. He
also told the medics that his mother had covered his eyes with duct tape.
Agents from the Iowa Department of Criminal Investigations (DCI) first
made contact with Kehoe at approximately 10:00 a.m. on the morning of October
27, before she went into surgery. Kehoe was intubated and unable to speak.
The agents asked Kehoe if she could answer their questions and she indicated
with her hands that she would need to write. An agent gave her a notepad and
pen and asked her what happened. She wrote a note detailing that a man
4
attacked them, indicating2 a man hid in the back of the van in Jesup; she could
see him in her rear view mirror after they left the playground; he indicated she
should turn east; she decided to use pepper spray she had with her to get away
from him but he overpowered her, taped her up, and cut the boys; she regained
consciousness and tried to help the children with the first aid kit, but the man
came back and attacked her with a knife, and then she lost consciousness again.
She also told the police that she had tried to write a note explaining the attack
and that it was on a yellow paper in the van. According to the agent’s testimony,
the interaction with Kehoe took approximately three minutes and then she went
into surgery.
The DCI agents next met with Kehoe at approximately 11:30 a.m. the next
day, October 28. According to the trial testimony of Agent Chris Callaway, he
and Agent Darrell Simmons spoke with Kehoe while she was in a hospital room,
“laying in a bed, somewhat upright with—she was hooked up to some machines
or various medical equipment.” The agents asked medical staff if she was able
to communicate with them or whether the medication she was taking or her injury
would prevent it. They “had no indication that there would be any problem.”
Kehoe was still unable to speak during the meeting, so the agents asked her
questions and then Kehoe wrote responses on paper. Additionally, the agents
recorded the interview.3 Agent Callaway began by telling Kehoe to let him know
2
The note Kehoe wrote was admitted in the underlying trial as an exhibit. However, the
PCR court was not asked to take judicial notice of the underlying felony file, so we do not
have those exhibits as part of our record. Our understanding of the contents of the note
Kehoe wrote before surgery is based on the agent’s testimony reading and explaining
the note during the trial (the transcript from the underlying trial is part of our record).
3
We have neither the recording from the interview nor Kehoe’s written responses; both
were entered into evidence at the felony trial.
5
if at any time she did not want to talk anymore or needed a rest. Kehoe asked
how her children were, and the agent did not respond. He then asked her what
happened, and Kehoe again described the same allegation about a man who
attacked them, including details about his weight, glasses, hair color, age, height,
clothing, smell, the tone of his voice, and scars. During the interview, a nurse
came in to check on and provide care for Kehoe; the agents left the hospital
room for ten to fifteen minutes during this time.
Agent Callaway testified that when they returned, Kehoe immediately
resumed writing answers without further prompting or questions from the agents.
As she continued to provide an account of what she claimed took place, Kehoe
wrote, “When Aunt Colleen was here yesterday [the oldest son] said I was trying
to hurt him—trying to stop the bleeding. Turning head, applying pressure over
[youngest son]—already purple lips. Cradled both of them.” Agent Callaway
understood this statement to be an explanation of why the oldest child had
reported his mother was the one who hurt him. Agent Callaway initiated a
second break, which he used to speak with the other agent and investigators
outside of Kehoe’s hospital room in order “to get a plan together to go back in
and confront her on some of these things that [they] knew not to be true.”
When the agents returned again, Agent Callaway told Kehoe that
comparing her responses to what the investigators found at the scene, he still
had more questions with which he thought she could help. Kehoe responded,
“How can I help?” Agent Callaway asked more specific questions about Kehoe’s
previous statements before telling her that her oldest son was alive and “doing all
right.” He then told her a story about a traffic accident he experienced when he
6
was a state trooper involving a father who had fallen asleep while driving and
whose son died as a result of the accident. After some more back and forth,
Agent Callaway told Kehoe her story did not make sense and did not match what
the oldest son was reporting. Kehoe then confessed to her actions. She told the
agents where she purchased the knife. A nurse came back into the room then,
and the agents left for another ten to fifteen minutes. While they were away,
Kehoe wrote a note to the nurse asking to have the agents come back.
When the agents came back, Kehoe provided details, including that she
slit the throat of her oldest son first because he is older and the youngest child
would remain contained in the vehicle until she returned for him. The agents
asked her about the duct tape she used, and Kehoe responded she had
purchased it “a couple months ago” and told them where she purchased it. They
asked her if she purchased the duct tape for this reason, and she responded, “It’s
sickening isn’t it.” She also told the agents the note she left in the van detailing
the attack by an unknown man was first written a month before and then she
rewrote it the morning of the incident.
Kehoe was charged with first-degree murder, attempted murder, and child
endangerment resulting in serious injury.
Kehoe moved to have the venue of the trial changed from Buchanan
County. To that end, on September 18, 2009, fifty-five potential jurors were
sworn in and provided with a jury questionnaire for a mock jury in Buchanan
County. The court excused fourteen potential jurors based on their answers to
the questionnaire. A number of other potential jurors were interviewed by the
attorneys. Based on the prospective juror’s responses, the court concluded
7
approximately fifty percent of the prospective jurors held such a fixed opinion of
the merits of the case that they could not impartially decide Kehoe’s guilt or
innocence. Additionally, the court noted the case had received extensive pretrial
publicity in the area. The court granted Kehoe’s motion for change of venue.
The trial took place over several days in October and November 2009 in
Grundy County. Kehoe did not contest that she was the actor who slit her
children’s throats; she relied on a defense of legal insanity. Kehoe did not testify
in her own defense, but two experts testified as to their opinion Kehoe was
legally insane at the time of the incident. Both opined that while Kehoe
understood the nature and quality of her actions—that she was, in fact, slitting
the throats of her children and that such an action would cause death—she could
not distinguish right from wrong at the time she did so. The experts noted
Kehoe’s stated belief that death would save the children from having their own
experiences with mental-health issues and the shame of having a mother who
died by suicide. Additionally, Kehoe believed that because of the children’s
ages, they would get to heaven and have eternal life there. The State’s expert
opined that Kehoe was not legally insane at the time of her actions, noting that
she had taken great steps to conceal her identity as the perpetrator and her
continued lie after the fact.
The jury convicted Kehoe of all three counts as charged.
Kehoe challenged her convictions on direct appeal, arguing trial counsel
provided ineffective assistance in three respects: failing to challenge the
constitutionality of Iowa Code section 701.4 (2007), which defined the legal
standard for the insanity defense in Iowa; failing to request a jury instruction on
8
the consequences of a verdict of not guilty by reason of insanity; and failing to
object to the marshalling instruction on attempted murder as not including malice
aforethought as an element. A panel of this court affirmed Kehoe’s convictions.
See State v. Kehoe, 804 N.W.2d 302, 313 (Iowa Ct. App. 2011). Procedendo
issued on September 23, 2011.
Kehoe filed her application for PCR on September 18, 2014, alleging trial
counsel provided ineffective assistance in ten respects.
By the time of the PCR trial, in September 2017, Kehoe had abandoned
some of her claims. She contended trial counsel provided ineffective assistance
by failing to 1) explain and advise Kehoe as to her right to testify; 2) call Kehoe
as a witness at trial; 3) discuss the pros and cons of Kehoe testifying with her,
which prevented Kehoe from participating in the decision of whether she should
testify; 4) adequately seek a change of venue or otherwise contest the change of
venue to Grundy County; 5) obtain proper medication treatment or medication for
Kehoe leading up to and during the trial, which rendered Kehoe unable to
participate in the proceedings; and 6) appreciate that Kehoe was unable to
participate in her own defense during trial due to her mental status. Neither the
State nor Kehoe asked the PCR court to take judicial notice of the record from
the underlying trial. Kehoe introduced into evidence twenty-nine exhibits, which
were generally notes from mental-health providers who treated Kehoe before and
after the trial. The State introduced seven exhibits: the transcript of the trial, a
transcript of the attorney’s deposition, a transcript of Kehoe’s deposition, the
reports of both experts Kehoe hired in the underlying trial, this court’s opinion in
9
Kehoe’s direct appeal, and the district court’s written ruling on the motion to
move the felony trial from Buchanan County.
Kehoe testified at the PCR trial; she shared her lengthy history of mental-
health issues. Kehoe maintained that trial counsel never advised her of the
disadvantages of her testifying at trial. She testified she told counsel that the jury
needed to hear her story from her, but counsel never undertook any trial
preparation with her as to what questions she would be asked or what counsel’s
approach would be. Kehoe said counsel’s only advice was that “cross-
examination by the prosecutor would be brutal” and “any time they ask a
question, pause first and allow us to object.” Kehoe maintained that on the third
day of trial, she told counsel, “I do not feel stable to testify.” Kehoe also testified
about the medications she was prescribed while she was in jail pending trial, her
mental status throughout the time she was in jail and through trial, and her desire
to have more medical treatment throughout. She noted that the last time she
received treatment from a psychiatrist before her trial was on September 9,
2009—about a month and a half before. After that psychiatrist went on
sabbatical, no other doctor took over her care until after she was convicted.
One of Kehoe’s two trial attorneys testified by way of deposition; the other
was not called to testify. When asked if she could testify as to how Kehoe
appeared to her throughout the time she represented her, the attorney testified:
She had times when she was in a better frame of mind than other
times when she was perhaps more emotionally upset, more
irritable. And irritability is a common symptom of depression, I will
say that.
So her emotional states had quite a bit of variability to it.
The one thing that was consistent over time was that Ms. Kehoe
was an intelligent person. She was obviously educated. Better
10
educated than many Public Defender Office clients. She had a
good vocabulary. Her thought processing was good at all times. I
mean, from an intellectual standpoint, she had very good
intellectual functioning. She was not someone who was
developmentally disabled or had that type of problem, very clearly.
The attorney also testified as to how Kehoe participated in her defense, noting
Kehoe
made lists of things that she discussed with me. She made lists of
points that she was concerned about or details that she was
concerned about and brought them to my attention either, like I say,
directly or through the investigators. She is a very organized
person, and—I mean, she would make notes on things that were
incorrect or she wanted explored.
The attorney remembered that there were problems getting Kehoe ongoing
mental-health treatment while she was in jail pending trial; the attorney
remembered discussing the issue with her investigator four or five times. But,
the attorney testified she never had any concerns as to Kehoe’s competence to
stand trial. Additionally, she noted that neither of the experts hired by Kehoe—a
psychiatrist and a psychologist—who each met with and reviewed the medical
history of Kehoe indicated any concern regarding Kehoe’s competency. She
noted, “I communicated with her, she communicated back. We could discuss
things the same way that you and I can discuss things across this table.”
Trial counsel was also asked about the change of venue for the trial—from
Buchanan County to Grundy County. The following exchange occurred between
Kehoe’s PCR counsel and trial counsel:
Q. Okay. A concern that is raised by my client, as we have
discussed this, is why the change of venue would have been proper
from Buchanan County to Grundy County when you take into
account they’re in roughly the same media market. Did that ever
come up in your discussion of a proper venue? A. Yes.
11
Q. And how did you try to address that? A. I was not happy
about it being in Grundy County. My recollection is that the trial
judge had decided on Grundy County and that was how it was
going to be, and if we hadn’t—if we hadn’t gotten jurors in Grundy
County who said they hadn’t formed an impression based on
anything they knew about the case—I think jury selection was
reported. That would have been my practice. And I would have
renewed it during jury selection process if I thought we had a
situation where we could renew our motion and I could move the
judge away from the decision that he had made.
But my recollection is, we didn’t end up in circumstances
where it would have been realistic for me, first of all, to renew the
motion, and, second of all, for the trial judge to actually grant it. I
would have preferred being further away with the trial myself, but,
like I said, the decision had been made and it would have taken
more than I remember we had to get that decision changed or
reconsidered.
Additionally, the psychiatrist who initially treated Kehoe while she was in
jail—before the psychiatrist left on a sabbatical in September 2009—testified by
way of deposition. He opined that Kehoe was able to understand the charges
against her during the period leading up to trial but stated she had “severe
treatment-resistant mental illness” and indicated that “such profound illness
would make meaningful participation with her legal team tenuous.” When asked
what he meant by tenuous, the doctor stated “It means she would have difficulty.”
He agreed that while he was treating her, he never communicated to the
attorneys, the court, or anyone else that he felt Kehoe was incapable of
participating in her defense.
The PCR court denied Kehoe’s PCR application. In its written ruling, the
court incorrectly stated Kehoe had abandoned her claim about the change of
venue; the court did not address the claim. In considering her claim that she
received ineffective assistance from counsel for their failure to raise issues
regarding her competency to stand, the court ruled:
12
This court does not find her attorneys, considering she was under
regular medical care, had any duty to obtain further medical
opinions as to her ability to assist in her own defense and stand up
for herself in confrontations with them. The court therefore finds
that counsel was not ineffective in failing to participate more fully in
[Kehoe’s] medical care and in failing to recognize any perceived
medical issues.
The court also found Kehoe’s claim counsel provided ineffective
assistance by not calling her to testify in her own defense to be meritless; the
court noted that it was “clearly trial strategy” on the part of counsel to advise
Kehoe against testifying, as counsel determined Kehoe would not hold up well
under cross examination and believed the experts could better tell Kehoe’s
backstory of trauma and mental-health issues.
Kehoe appeals.
II. Standard of Review.
We generally review PCR proceedings for correction of errors at law, but
when the applicant alleges ineffective assistance, we review de novo. See
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
III. Discussion.
Kehoe raises three claims of ineffective assistance. As she did before the
PCR court, she maintains trial counsel was ineffective for failing to raise the issue
of her competency to stand trial. She also argues PCR counsel was ineffective
for failing to file a motion to reconsider after the PCR court incorrectly stated she
abandoned her claim trial counsel was ineffective for not requesting a different,
more remote change of venue. And, for the first time, she argues all counsel
provided ineffective assistance by failing to raise the issue of suppression
regarding the statements she made to the DCI agents while in the hospital.
13
To succeed on a claim of ineffective assistance, Kehoe has the burden to
prove (1) her trial counsel failed to perform an essential duty and (2) she was
prejudiced by this failure. See Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011).
To prove counsel failed to perform an essential duty, Kehoe “must show that
counsel “was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). We
measure effective performance by determining “whether counsel’s assistance
was reasonable considering all the circumstances.” See id. at 688. To prove
prejudice, Kehoe must prove “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. To show a reasonable probability the result would have been
different, she must demonstrate the probability of a different result is enough to
undermine our confidence in the outcome. See Bowman v. State, 710 N.W.2d
200, 206 (Iowa 2006) (quoting State v. Graves, 668 N.W.2d 860, 882–83 (Iowa
2003)). “There is a strong presumption counsel’s representation fell within the
wide range of reasonable professional assistance, and Kehoe is not denied
effective assistance by counsel’s failure to raise a meritless issue.” Kehoe, 804
N.W.2d at 305.
A. Failure to Move to Suppress Statements.
Kehoe maintains trial counsel provided ineffective assistance by failing to
file a motion to suppress the statements she made to DCI agents while in the
hospital. She contends her statements were the product of custodial
interrogation without the benefit of Miranda warnings and that they were
involuntarily made. If Kehoe cannot prove a motion to suppress would have
14
been meritorious, her claims fails. See State v. Carroll, 767 N.W.2d 638, 645
(Iowa 2009) (considering the defendant’s claim of ineffective assistance for
failure to file a motion to suppress and starting with the question of whether such
a motion would have had merit).
First we consider whether Kehoe has proved trial counsel could have
successfully pursued a motion to suppress because the DCI agents did not
advise her of the Miranda warnings. See State v. Countryman, 572 N.W.2d 553,
557 (Iowa 1997) (“We utilize a dual test in determining the admissibility of a
defendant’s inculpatory statements over a Fifth Amendment challenge. We first
determine whether Miranda warnings were required and, if so, whether they were
properly given. Second, we ascertain whether the statement is voluntary and
satisfies due process.” (citations omitted)). “Miranda warnings are not required
unless there is both custody and interrogation.” Id. Therefore, we must
determine whether Kehoe was in custody at the times she made the incriminating
statements. “A court must examine all of the circumstances surrounding the
interrogation, but the ultimate inquiry is simply whether there was a formal arrest
or restraint on freedom of movement of the degree association with formal
arrest.” State v. Tyler, 867 N.W.2d 136, 171–72 (Iowa 2015) (altered for
readability) (citations omitted). “To determine whether the suspect’s freedom of
movement was restricted to such a degree, we apply an objective analysis and
ask whether a reasonable person in the defendant’s position would have
understood [her] situation to be one of custody.” State v. Bogan, 774 N.W.2d
676, 680 (Iowa 2009). “The custody determination depends on the objective
15
circumstances of the interrogation, not on subjective views harbored either by the
officer or the person being questioned.” Countryman, 572 N.W.2d at 557.
To make the determination whether Kehoe was in custody at the time she
spoke with the DCI agents—both before she went into surgery and the next
day—we use a four-factor test: 1) the language used to summon the individual;
2) the purpose, place, and manner of interrogation; 3) the extent to which the
defendant is confronted with evidence of her guilt; and 4) whether the defendant
is free to leave the place of questioning. Id. at 558.
Kehoe compares the facts of her case to that of State v. Chiavetta and
State v. Ellenbecker. In Ellenbecker, a “DCI agent chased [the defendant],
caught him, struggled with him, and prevented him from returning to his
apartment by physical force.” No. 12-2229, 2014 WL 1999291, at *7 (Iowa Ct.
App. May 14, 2014). The defendant was then “shot by a different agent and
physically restrained until an ambulance arrived—including a period of restraint
with handcuffs. A trooper rode in the ambulance to the hospital.” Id. Our court
determined the defendant was in custody throughout this time. Id. Additionally,
despite the State’s argument the defendant was not in custody once he reached
the hospital “because the only restraint imposed on his freedom of movement
was his need for medical treatment,” our court found the custody continued, in
part, since the defendant “was transferred to the hospital ‘after being previously
within police custody.’” Id. at *8. The mere fact a suspect cannot leave the
hospital as a result of injury or illness does not place that person in the custody of
law enforcement, but the other circumstances surrounding the restraints on the
defendant’s liberty may render it custody. See id. (citing State v. Grant, 939 A.2d
16
93, 101–02 (Me. 2008)). Because of the surrounding facts and circumstances,
our court concluded a reasonable person in the defendant’s position would have
understood themselves to be in police custody, making Miranda warnings
necessary. Id. at *9. We reversed and remanded for further proceedings with
any statements made by the defendant while in custody suppressed. Id.
In Chiavetta, a woman suspected of killing her husband attempted suicide
and was taken to a local hospital. No. 05-1911, 2007 WL 1828323, at *1 (Iowa
Ct. App. June 27, 2007). Two days after she was admitted to the hospital, police
officers sought and received permission of medical personnel to interview the
defendant. Id. Although the officers went to the defendant’s hospital room in the
intensive care unit while she was hooked up to a number of medical devices and
were alone with her at the time, the defendant’s room was enclosed by glass and
could be seen from the nurse’s station. Id. at *2. The interview lasted less than
forty minutes. Id. At one point, the defendant expressed she wanted to talk to an
attorney, but before the officers left, she “reached out and touched” one of the
officer’s arms. Id. When the officer asked the defendant if she wanted to talk,
she nodded yes and then confessed to killing her husband. Id. The “only
circumstances limiting [the defendant’s] ability to leave were medical
circumstances, such as the intravenous lines in her arms and the fact she had
not been medically discharged.” Id. at *3. Considering all of the surrounding
facts and circumstances, our court concluded the defendant was not in police
custody at the time she confessed and, therefore, the statements she made
without the benefit of Miranda did not need to be suppressed. Id.
17
The facts and circumstances in Kehoe’s case—insofar as we have a
record that discloses them—are more like those in Chiavetta. Kehoe was not in
police custody immediately preceding or at the time she was airlifted to the
hospital. While she was still a patient in the hospital and hooked up to a number
of machines at the time the agents interviewed her the day after her surgery, the
agents first asked medical personnel if they could speak with Kehoe. The agents
and Kehoe were the only people in the room most of the time, but it does not
seem the agents restricted access to the room, as nurses came and went during
the time they spoke. Additionally, at the beginning of the interview, Agent
Callaway informed Kehoe she could stop at any time if she felt tired or wanted to
end the interview. Agent Callaway testified he was not aggressive with Kehoe;
he tried to build a rapport with her. The agents confronted Kehoe with her guilt
insofar as they told her the story she first told did not match up with what her son
was saying. Kehoe made some inculpatory statements before a nurse came in
and interrupted the interview. The agents left the room while the nurse assisted
Kehoe; Kehoe asked the nurse to send the agents back in. When they returned,
Kehoe resumed writing her confession without prompting. With these facts, we
cannot say Kehoe was in custody at the time she confessed to the agents.4
Next we consider whether Kehoe’s statements were involuntarily made. If
Kehoe had filed a motion to suppress, the State would have the burden to prove,
by a preponderance of the evidence that Kehoe’s inculpatory statements were
4
We recognize the record is devoid of any indication how long the interview took or
whether nurses and others could see into the room during the interview. Kehoe bears
the burden to prove a motion to suppress would have been successful because she was
in custody at the time she made inculpatory statements.
18
voluntary given. See State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997). But,
as Kehoe has raised this as an issue of ineffective assistance, she bears the
burden to prove a motion to suppress would have been successful in order to
show trial counsel breached an essential duty in failing to file one. See State v.
McCoy, 692 N.W.2d 6, 20 (Iowa 2005) (“At this point, the critical question is
whether the motion to suppress would have been successful.”). We employ the
totality-of-circumstances test in determining voluntariness: it must appear the
statements 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.” Countryman, 572 N.W.2d at 558
(citation omitted). In determining whether her statements were involuntarily
obtained, we consider:
The defendant’s knowledge and waiver of [her] Miranda rights, the
defendant’s age, experience, prior record, level of education and
intelligence, the length of time the defendant is detained and
interrogated, whether physical punishment is used, including the
deprivation of food or sleep, the defendant’s ability to understand
the questions, the defendant’s physical and emotional condition
and his reactions to the interrogation, whether any deceit or
improper promises were used in gaining the admissions, and any
mental weakness the defendant may possess.
State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997).
Kehoe largely bases her argument on the fact that she suffered from
mental-health issues and was on a number of medications at the hospital during
the time the agents interviewed her. The record before us contains a progress
note completed by hospital personnel on October 29, 2009—the day after Kehoe
confessed to the agents—and lists a number of medications that were prescribed
to her in the preceding forty-eight hours. But we do not know when she took
19
those medications (before or after speaking to the agents) and also do not know
the effects those medicines may have had. In her appellate brief, Kehoe cites to
various websites for information of possible side effects of some of the
medications, but none of that information is in the record before us, and, even
more importantly, no information regarding the side effects Kehoe actually
suffered is before us. “The mere fact that one is under the influence of a drug
while making an inculpatory statement does not rend the statement involuntary.”
State v. Vincik, 698 N.W.2d 788, 793 (Iowa 1987). Moreover, the agents spoke
to medical staff about whether Kehoe was able to speak to them before they
initiated the interview.
Kehoe did not have a criminal record before this incident and had little
involvement with police; her knowledge of her rights and her lack of experience
with the system weigh in favor of finding her statements were involuntary.
Additionally, her mental-health issues are well-documented, and she was still a
patient in the hospital following surgery. But Kehoe was also a grown woman
who had a college degree and an exceptionally high IQ. We do not know how
long the interview lasted, but there is no indication the agents used physical
punishment, deprived Kehoe of food or water, or made any untruthful or improper
statements to Kehoe. Additionally, based on the back and forth between Agent
Callaway’s questions and Kehoe’s written answers, it is clear she understood the
questions being asked of her and could answer—in writing—in an appropriate
manner. “Coercive police activity is a necessary predicate to finding that a
confession is not voluntary.” State v. Conger, 434 N.W.2d 406, 408 (Iowa 1988).
Kehoe has not proved her statements were involuntarily given.
20
Because Kehoe has not proved a motion to suppress would have been
successful, counsel did not breach an essential duty by not moving for
suppression. This claim fails.
B. Change of Venue.
Kehoe maintains trial counsel breached an essential duty by not securing
a different, more remote change of venue than Grundy County. Although she
initially raised this issue in her PCR application, the PCR court incorrectly stated
she had abandoned the issue and did not rule on it. Kehoe argues PCR counsel
provided ineffective assistance by failing to file a post-trial motion to obtain a
ruling on her claim. Kehoe must prove a motion for a second change of venue
would have been successful in order to establish that PCR counsel and trial
counsel each breached an essential duty.
In asking for a change of venue, the moving party has “the burden to
either establish prejudice in fact, or to show the publication of material which is
so potentially prejudicial that prejudice must be presumed.” State v. Cuevas, 288
N.W.2d 525, 527 (Iowa 1980). The court shall change the venue for a trial when
“such degree of prejudice exists in the county in which the trial is to be held that
there is a substantial likelihood a fair and impartial trial cannot be preserved with
a jury selected from that county.” Iowa R. Crim P. 2.11(10)(b).
Here, Kehoe must establish prejudice in fact in order to be successful, as
the record before us is devoid of any information regarding the nature, tone,
timing, or volume of pretrial publicity. See State v. Evans, 671 N.W.2d 720, 726
(Iowa 2003) (requiring the defendant to show the publicity attending the trial was
so pervasive that prejudice could be presumed and considering “the nature, tone,
21
and accuracy of the articles; their timing in relation to the trial; and the impact of
the publicity on the jurors as revealed through voir dire”); see also State v.
Spargo, 364 N.W.2d 203, 208 (Iowa 1985) (“The media accounts are factual and
informative in tone and as such do not support defendant’s claim that they must
be presumed to have created prejudice against him.”).
Kehoe argues she could not get an impartial trial in Grundy County
because all of the potential jurors had heard about the case beforehand and had
discussed it with their friends and family before getting the summons for jury
duty. But that is not the standard for finding prejudice. “A juror need not be
completely ignorant of the issues and events involved in a trial.” State v.
Voelkers, 547 N.W.2d 625, 629 (Iowa Ct. App. 1996). The question is “whether
the juror holds such a fixed opinion of the merits of the case he or she cannot
impartially judge the guilt or innocence of the defendant.” Id. at 629–630. Here,
a few individuals stated during voir dire that their minds were made up and they
would be unable to determine the case solely on what they heard at trial; none of
those potential jurors served on the jury. Kehoe has not established prejudice in
fact such that her counsel breached an essential duty by failing to move for a
second change of venue. See State v. Simmons, 454 N.W.2d 866, 868 (Iowa
1990) (concluding vigorous voir dire conducted in the case, where only two of the
sixty prospective jurors were completely unfamiliar with the case, “was clearly
effective in routing out any juror prejudice”). This claims fails.
C. Issue of Competency.
Kehoe argues trial counsel breached an essential duty by not raising the
issue of her competency to stand trial. See State v. Lyman, 776 N.W.2d 865,
22
871 (Iowa 2010) (“The trial of an incompetent defendant in a criminal matter
violates the defendant’s due process rights as guaranteed by the Fourteenth
Amendment to the United States Constitution.”), overruled on other grounds by
Alcala v. Marriott Intern’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016). We
recognize the difficulty in determining post hoc whether someone was previously
competent—especially this number of years later. See, e.g., State v. Harris, No.
12-2139, 2014 WL 2432588, at *6 n.5 (considering a post-trial competency
hearing). We also recognize that Kehoe did not receive perfect care while
pending trial; after her psychiatrist went on sabbatical in early September 2009,
Kehoe did not see another psychiatrist in the approximately six weeks leading up
to trial. But Kehoe continued to see a social worker, and she continued to
receive her prescribed medications. The social worker never expressed concern
Kehoe was incompetent. Kehoe also met with a number of mental health
experts—both those hired by her and the one hired by the State—between the
time of her arrest and the trial, and none expressed a concern about her
competency. At the PCR trial, Kehoe’s trial attorney testified that Kehoe, though
experiencing issues with mental health, understood the charges against her and
participated in her defense. Even the psychiatrist who was treating Kehoe during
most of her time in jail (before going on sabbatical), when testifying at the PCR
trial, did not opine that Kehoe had been incompetent to stand trial.
“A history of mental illness, standing alone, does not mean the defendant
is incompetent.” State v. Rieflin, 558 N.W.2d 149, 153 (Iowa 1996), overruled on
other grounds by Lyman, 776 N.W.2d at 873. The question is whether defendant
can “(1) appreciate the charge[s], (2) understand the proceedings, and (3) assist
23
effectively in the defense.” Id. at 152–53. Based on the record before us, we
cannot say counsel breached an essential duty by not raising the issue of
Kehoe’s competency before or during trial. See id. at 152 (noting we start with
the presumption that a defendant is competent to stand trial and the defendant
has the burden to prove otherwise).
D. Pro Se Issues.
While we have considered Kehoe’s supplemental brief as part of her
appeal, we cannot address any of her claims. She lists seventeen errors she
maintains the PCR court made in its ruling, but she does not challenge the
alleged errors under any legal theory and does not explain how these alleged
issues are preserved for our review. Additionally, she makes no cite to the
record and includes just one cite to one authority apropos of nothing. In
characterizing some of the statements made by the PCR court as errors, she
appears to rely on outside-the-record explanations, such as conversations she
had with her trial counsel leading up to the underlying trial. See Iowa R. App. P.
6.801 (“Only the original documents and exhibits filed in the district court case
from which the appeal is taken, the transcript of proceedings, if any, and a
certified copy of the related docket and court calendar entries prepared by the
clerk of the district court constitute the record on appeal.”).
Because she makes no cognizable legal claims and her supplemental pro
se brief fails to comport with the appellate rules of procedure, we do not consider
any of the issues further. See In re Estate of DeTar, 572 N.W.2d 178, 181 (Iowa
Ct. App. 1997) (“We are not bound to consider a party’s position when the brief
fails to comply with the Iowa Rules of Appellate Procedure.”); see also Metro.
24
Jacobson Dev. Venture v. Bd. of Review of Des Moines, 476 N.W.2d 726, 729
(Iowa Ct. App. 1991) (“We do not utilize a deferential standard when persons
choose to represent themselves. . . . Rather, all are expected to act with equal
competence.”).
IV. Conclusion.
Because Kehoe has not proved any of her claims of ineffective assistance
have merit, we affirm the denial of her application for PCR. As for her pro se
claims, she makes no cognizable legal claims and her supplemental pro se brief
fails to comport with the appellate rules of procedure; we do not consider any of
those issues.
AFFIRMED.