IN THE COURT OF APPEALS OF IOWA
No. 13-1945
Filed June 15, 2016
DAVID HERING,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Marlita A.
Greve (motion for summary judgment), and Gary D. McKenrick (postconviction
ruling), Judges.
Applicant appeals the district court order denying his application for
postconviction relief from his convictions for murder and two counts of attempted
murder. AFFIRMED.
William R. Monroe of the Law Office of William Monroe, Burlington, for
appellant.
David Hering, Anamosa, appellant pro se.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.
David Hering appeals the district court order denying his application for
postconviction relief from his convictions for murder and two counts of attempted
murder. We find no error in the district court’s rulings. Hering has not met his
burden to show he received ineffective assistance of counsel. We affirm the
decision of the district court denying Hering’s application for postconviction relief.
I. Background Facts & Proceedings
Hering was charged with murder and two counts of attempted murder.
The State alleged Hering shot his wife, Lisa, then shot at two officers who were
responding to a 911 call at his home. During his criminal trial, the defense did
not contest whether Hering committed the offenses but relied upon the defense
of insanity. Dr. Kirk Witherspoon testified Hering suffered from paranoid
schizophrenia and met the criteria for legal insanity at the time of the offenses.
The State’s expert, Dr. Michael Taylor, agreed Hering had paranoid
schizophrenia but testified Hering was capable of forming specific intent. The
jury found Hering guilty of murder and two counts of attempted murder. Hering’s
convictions were affirmed on appeal. See State v. Hering, No. 04-1222, 2006
WL 60678, at *1 (Iowa Jan. 11, 2006).
While Hering’s criminal case was pending, the Muscatine County Sheriff
filed a petition for the appointment of a conservator for Hering. The petition
asserted Hering was a person “whose decision-making capacity is so impaired
that the person is unable to make, communicate, or carry out important decisions
concerning the proposed ward’s financial affairs.” The district court entered an
order on October 6, 2003, finding “the proposed ward, David L. Hering, is
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presently incarcerated in the Muscatine County Jail and that it would be in his
best interests that a Conservator be appointed during the pendency of his
incarceration and that [a bank] is suitable and qualified to act as such
Conservator.”
On April 10, 2006, Hering filed an application for postconviction relief
raising eighty-seven claims of ineffective assistance of counsel. The State filed
an answer on April 11, 2006. The application was amended on November 17,
2009, November 20, 2009, and November 4, 2011.1 In responding to a motion,
on May 19, 2010, the district court noted, “The conservatorship proceeding may
have been prompted more by his incarceration and a desire to preserve his
assets for his children, than a truly impaired capacity to make, communicate, or
carry out important decisions concerning his financial affairs.” Depositions of
defense counsel, David Treimer and J.E. Tobey III, were taken in 2010.
On December 12, 2011, Hering filed a motion for summary judgment,
claiming his convictions should be overturned because the State had not filed a
response to his amended applications. The State resisted the motion. The
district court entered a ruling on February 9, 2012, denying the motion for
summary judgment.
A postconviction hearing was held on July 16, 2013. Hering testified via
the Iowa Communications Network (ICN), but there were technological problems,
and the court determined it was unable to make a proper record of his testimony.
The court ordered Hering’s deposition to be taken at Anamosa State
1
Hering also filed a new application for postconviction relief on September 16, 2013.
The district court considered the new application as a motion to amend the pending
application for postconviction relief and denied the motion as untimely.
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Penitentiary, where he was serving his sentence. The hearing continued, and
Treimer testified concerning his representation of Hering, stating Hering agreed
to pursue the defense of insanity. Treimer testified Dr. Witherspoon found Hering
competent to stand trial. Postconviction counsel cross-examined Treimer, and
then Hering engaged in a pro se cross-examination concerning many aspects of
the criminal case.
The prosecutor and postconviction counsel traveled to Anamosa to take
Hering’s deposition on October 2, 2013. Hering stated he would not testify until
after the court had the testimony of Treimer and Tobey, and then Hering would
testify in rebuttal. On October 29, 2013, the district court issued an order stating
the submission of evidence was not completed at the hearing on July 16, 2013,
and the remainder of the testimonial evidence by deposition must be submitted
by November 8, 2013. On November 6, 2013, the State submitted the
depositions of Treimer and Tobey taken in 2010 in an offer of proof. Hering
submitted two pro se briefs, exhibits, and an affidavit in support of his claims.
The district court entered a ruling on November 25, 2013, finding:
Although the Court has considered and reviewed each of the
applicant’s claims, the Court finds it unnecessary to discuss the
multiple particulars which the applicant asserts to be instances of
ineffective assistance of counsel. Most, if not all, are factually
without merit and are the products of the applicant’s fantasy. The
overwhelming credible evidence before this Court shows that
criminal defense counsel made a well-reasoned and informed
strategic decision to pursue an insanity defense on the applicant’s
behalf and that the applicant approved of that strategy at the time.
The evidence of the applicant being the person who killed his wife
and fired shots at law enforcement officers who responded to his
child’s 911 call is virtually irrefutable.
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The court determined Hering had failed to show he received ineffective
assistance of counsel and denied his application for postconviction relief. Hering
appeals.2
II. District Court Rulings
A. Hering claims the district court should have made specific findings
of fact and conclusions of law as to each issue he presented in his application for
postconviction relief. Iowa Code section 822.7 (2005) provides, “The court shall
make specific findings of fact, and state expressly its conclusions of law, relating
to each issue presented.” Substantial compliance with this rule is sufficient.
Gamble v. State, 723 N.W.2d 443, 446 (Iowa 2006). “Even if the court does not
respond to all of the applicant’s allegations, the ruling is sufficient if it responds to
all the issues raised.” Id.; see also Jones v. State, 731 N.W.2d 388, 392 (Iowa
2007) (noting the “court need not address every allegation made by an applicant,
but must respond to every issue raised”). We determine the district court
substantially complied with section 822.7 by responding to all of the issues raised
in Hering’s application for postconviction relief.
B. Hering claims the district court should have held a competency
hearing prior to his criminal trial. The court, on its own motion, may schedule a
hearing if there are specific facts showing a hearing should be held on the issue
of competency. Iowa Code § 812.3. In the postconviction proceeding, Hering
2
After Hering appealed on November 25, 2013, he filed a motion pursuant to Iowa Rule
of Civil Procedure 1.904(2) on December 9, 2013. The district court ruled on the motion,
and Hering filed a second notice of appeal on December 11, 2013. “[T]he district court
loses jurisdiction over the merits of the controversy and may not consider any posttrial
motions filed after the notice of appeal.” IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 628
(Iowa 2000). Therefore, we do not consider Hering’s posttrial motion or the court’s ruling
on the motion.
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did not present specific facts showing he was suffering from a mental disorder
that prevented him from appreciating the charge, understanding the proceedings,
or assisting effectively in the defense. See id. We find no error in the district
court’s failure to raise the issue of competency sua sponte.
C. In his pro se brief, Hering claims the district court should have
granted his motion for summary judgment. He asserted the State’s failure to file
an answer to his amended petitions for postconviction relief meant the State
conceded those issues. Our review on this issue is for the correction of errors at
law. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). An applicant is
not entitled to a default judgment when the State has failed to file a timely
response to an application for postconviction relief. Furgison v. State, 217
N.W.2d 613, 618 (Iowa 1974). We determine the district court did not err in
denying Hering’s motion for summary judgment.
III. Ineffective Assistance
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, an applicant must show (1) the attorney failed to perform
an essential duty, and (2) prejudice resulted to the extent it denied the applicant
a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has
the burden to show by a preponderance of the evidence counsel was ineffective.
See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
A. Hering claims he received ineffective assistance because defense
counsel presented an insanity defense, rather than presenting a general denial
he committed the offenses. During the trial, the defense did not deny Hering shot
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his wife and then shot at two officers but asserted he was legally insane at the
time. Hering states defense counsel did not adequately investigate exculpatory
evidence, which he believes could have shown he did not murder his wife or
shoot at the officers.
“Miscalculated trial strategies and mere mistakes in judgment normally do
not rise to the level of ineffective assistance of counsel.” Ledezma, 626 N.W.2d
at 143. “Thus, claims of ineffective assistance involving tactical or strategic
decisions of counsel must be examined in light of all the circumstances to
ascertain whether the actions were a product of tactics or inattention to the
responsibilities of an attorney guaranteed a defendant under the Sixth
Amendment.” Id. “While strategic decisions made after ‘thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable,’
strategic decisions made after a ‘less than complete investigation’ must be based
on reasonable professional judgments which support the particular level of
investigation conducted.” Id. (citation omitted).
We find Hering agreed to the presentation of an insanity defense, rather
than a general denial he committed the offenses. Both Treimer and Tobey
testified the matter was discussed with Hering and he agreed to the insanity
defense. They also both testified as to why they believed the insanity defense
was the best defense to present in this case. In addition to the testimony of Dr.
Witherspoon, they presented the testimony of several witnesses concerning
Hering’s bizarre conduct shortly before the incident, such as driving his tractor in
fields late at night and shooting a neighbor’s satellite dish because he believed it
was receiving alien signals or spying on him. Furthermore, the evidence does
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not show defense counsel decided to present an insanity defense due to
inadequate investigation of the case, but as Treimer testified, “the evidence was
substantial that he had actually shot his wife, and a general denial wasn’t going
to fly.”
Hering also states defense counsel could have presented inconsistent
defenses by arguing he did not commit the offenses, but if he did commit the
offenses, he was legally insane at the time. Tobey testified he believed
inconsistent defenses should be avoided whenever possible. He stated, “First, it
is what citizens who aren’t lawyers hate about lawyers, and when you do it, it
inevitably will spray that hatred on your client. And if there’s any way to avoid it,
you’ll avoid it.” He also stated, “[I]t would have been tactically irresponsible to
abandon the evidence that we had and to argue that in the alternative.”
We conclude Hering has not shown he received ineffective assistance of
counsel based on the presentation of an insanity defense at his criminal trial,
rather than a general denial he committed the offenses.
B. Hering, in his pro se brief, claims he received ineffective assistance
because defense counsel did not file a motion in limine seeking to prevent the
State’s expert witness from giving opinion testimony on legal standards or object
to such testimony during the criminal trial. He states Dr. Taylor was improperly
permitted to testify Hering “was fully capable of forming intent, the specific intent
to kill.”
Iowa Rule of Evidence 5.704 provides, “Testimony in the form of an
opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.” “However, an
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expert may not opine as to whether a particular legal standard has been satisfied
or to ‘the defendant’s guilt or innocence.’” State v. Tyler, 867 N.W.2d 136, 153–
54 (Iowa 2015) (citation omitted). Here, Dr. Taylor did not give an opinion about
Hering’s guilt or innocence but instead gave a more general opinion he was
capable of forming the requisite specific intent. We conclude Hering has not
shown he received ineffective assistance due to defense counsel’s decision not
to object to the testimony of Dr. Taylor on this ground.
C. Hering claims he received ineffective assistance because defense
counsel did not file a motion to suppress evidence obtained under a search
warrant. He states the search warrant application and the warrant were defective
so everything seized during the search should be suppressed. Hering does not
state what particular items were discovered during the search or how the
evidence was detrimental to his criminal case. At the postconviction hearing,
Treimer testified a motion to suppress was not filed because “we wanted
evidence that was seized from your property for us to use against the State’s
evidence in trial.” Hering has not shown he was prejudiced by the failure to file a
motion to suppress and, thus, has not shown he received ineffective assistance
of counsel. 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 attorney
performed deficiently.”).
D. To the extent Hering may be claiming he received ineffective
assistance due to defense counsel’s failure to request a competency hearing
prior to his criminal trial, we conclude he has not met his burden to show he
received ineffective assistance. The conservatorship was a separate civil
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proceeding under chapter 663 based upon a different standard than a
competency determination under chapter 812. Defense counsel raised the issue
with Dr. Witherspoon, who gave the opinion Hering was competent to stand trial.
Defense counsel stated Hering appreciated the charge, understood the
proceedings, and was able to effectively assist in his defense. See Iowa Code
§ 812.3.
E. Hering’s pro se appellate brief refers to several additional claims of
ineffective assistance of counsel without specifically setting out those issues,
making an argument in support of them, or citing authority. We conclude these
claims have not been sufficiently presented under Iowa Rule of Appellate
Procedure 6.903(2)(g) and we do not address them. Additionally, the State’s
appellate brief refers to numerous issues not raised on appeal by postconviction
counsel or Hering. Postconviction counsel and Hering then raised those issues
in their reply briefs. “We have long held that an issue cannot properly be
asserted for the first time in a reply brief.” State v. Walker, 574 N.W.2d 280, 288
(Iowa 1998).
We affirm the decision of the district court denying Hering’s application for
postconviction relief.
AFFIRMED.
David Hering, Applicant-Appellant v. State of Iowa
Combined Opinion