Brian Heath Davis v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 18-2073
Filed January 21, 2021

BRIAN HEATH DAVIS,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Fremont County, James S.

Heckerman, Judge.

Applicant appeals the district court’s denial of his petition for postconviction

relief. AFFIRMED.

R. Ben Stone of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann LLP, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.

Heard by Mullins, P.J., and May and Schumacher, JJ.
 2

SCHUMACHER, Judge.

I. Background Facts.

Brian Davis was convicted of the murder of his fiancé, Holly Durben, on

February 16, 2015, over five years after her body was recovered in an upstairs

bedroom of the home Durben shared with Davis. Davis informed law enforcement

that Durben had committed suicide. We previously detailed the facts of this case

in Davis’s direct appeal in which we affirmed Davis’s conviction. See State v.

Davis, No. 15-0666, 2017 WL 108278, at *1−3 (Iowa Ct. App. Jan. 11, 2017).

Facts relevant to the postconviction relief (PCR) proceeding follow.

II. Proceedings.

On November 7, 2014, Davis was charged by trial information with the first-

degree murder of Durben. Davis demanded a speedy trial and waived his right to

a jury trial. A bench trial commenced on February 3, 2015. The court returned a

guilty verdict on February 16. An amended verdict was filed on March 4. Judgment

was entered on April 9. Davis was sentenced to life imprisonment. Davis appealed

his conviction, and we affirmed. Davis, 2017 WL 108278, at *1.

On August 3, 2017, Davis filed a PCR application, claiming his counsel was

ineffective in several respects. In preparation for the PCR trial, Davis conducted

depositions of his three criminal defense lawyers1; retained and deposed crime

scene processing expert Kenneth Moses; deposed Corey Wasenius, an

1One of Davis’s defense counsel assisted in the case pro bono and has experience
working as both a prosecutor and a defense attorney. Another defense counsel
worked as a public defender for ten years and has been involved in approximately
twenty-five class “A” felony trials, both as a prosecutor and defense attorney. The
third defense counsel has been a public defender since 2010 and specializes in
class “A” felonies.
 3

investigator with the Iowa Public Defender’s Office; and submitted a letter from a

mental-health therapist, Cynthia Freemyer, describing the risk for lethality in a

client expressing suicidal ideation. Additional evidence not in the record at the

criminal trial was introduced in the PCR proceedings, including the medical

examiner’s autopsy report, transcripts of the pre-trial depositions of witnesses

Jamie Stockwell and Michael Halverson, and a 2009 call log from the medical

examiner’s office.

On October 5, 2018, the district court held an evidentiary hearing. At the

conclusion of the PCR hearing, the district court requested proposed orders from

the parties. The district court adopted the State’s order in its ruling.2 The district

court denied Davis’s PCR application. On October 17, Davis’s counsel filed a

motion to enlarge and reconsider. On October 23, Davis filed a pro se motion to

enlarge and reconsider. On November 26, the motions were overruled, and on

November 27, Davis filed a notice of appeal. Davis is represented by counsel on

this appeal and also submitted a pro se brief.3

2 We note Davis’s objection to the district court’s adoption of the State’s proposed
order. Davis asks this court to apply a less deferential standard of review in his
case. We have previously declined to adopt an alternative standard of review in
similar circumstances. See Richter v. State, No. 15-1800, 2017 WL 935064, (Iowa
Ct. App. March 8, 2017). However, we recognize the necessity to review the
record conscious of the fact that the State prepared the order and will “scrutinize
the record more carefully when conducting our appellate review.” See
NevadaCare, Inc. v. Dep’t of Human Servs., 783 N.W.2d 459, 465 (Iowa 2010). At
oral argument, the State invited careful scrutiny of the record.
3 The State argues that we should disregard Davis’s pro se filings. Recent
legislation, S.F. 589, effective July 1, 2019, prohibits applicants from filing pro se
briefs if they are already represented by counsel. Iowa Code § 822.3B(1) (2019)
(“An applicant seeking relief under section 822.2 who is currently represented by
counsel shall not file any pro se document, including a brief, reply brief, or motion,
in any Iowa court. The court shall not consider, and opposing counsel shall not
respond to, such pro se filings.”). Davis filed his notice of appeal on November 27,
 4

III. Discussion—Arguments Prepared by Counsel.

Through counsel’s brief,4 Davis points to several instances where he

believes counsel’s performance was deficient. At oral argument, Davis argued the

heart of his PCR appeal are issues of credibility and complacency—specifically the

failure of counsel to attack the credibility of witnesses, urging that because the

physical evidence is inconclusive credibility is key. Davis further argues

complacency on behalf of his counsel rose to the level of recklessness. Davis’s

arguments center around four broad issues: (1) the medical examiner’s testimony

and her reliance on certain information; (2) the testimony of witness Stockwell and

her impeachment; (3) the use of particular statements made by Davis and trial

counsel’s exclusion efforts as well as appellate counsel’s advocacy on this issue;

and (4) crime scene processing and lack of expert witnesses.

2018. In State v. Macke, the Iowa Supreme Court held amendments to S.F. 589
dealing with guilty pleas and ineffective assistance of counsel did not apply
retroactively to appeals pending on July 1, 2019. 933 N.W.2d 226, 228 (Iowa
2019). Macke upheld long-standing precedent that “unless the legislature clearly
indicates otherwise, statutes controlling appeals are those that were in effect at the
time the judgment or order appealed from was rendered.” Id. at 231 (quotations
omitted). The State argues Macke is not controlling because the amendments at
issue in Macke affect a defendant’s right to appeal or limit the types of claims he
may bring, whereas section 822.3B “only changes the procedure for how he may
present his claims . . . .” This court recently rejected the same argument with
respect to pro se filings of a defendant on direct appeal. See State v. Krone,
No. 18-0130, 2020 WL 821935, at *3-4 (Iowa Ct. App. Feb. 19, 2020). Similarly,
we find no suggestion in Macke that the supreme court would treat amendments
in S.F. 589 not at issue in Macke differently. We conclude we may consider Davis’s
pro se filings.
4 There is significant overlap between the briefs submitted by counsel and Davis’s

pro se brief. We first address the issues raised by counsel and follow with the
issues remaining in Davis’s pro se brief. Where the issues raised in both briefs
are sufficiently related, we address them as part of the arguments prepared by
counsel.
 5

A. Standard of Review

A PCR applicant may raise the issue of ineffective assistance of counsel

without preserving the issue on direct appeal. Iowa Code § 814.7(1) (2017).

Appellate review of PCR proceedings is typically for correction of errors at law.

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, applications that

allege ineffective assistance of counsel implicate an applicant’s constitutional

rights and therefore require de novo review. Id.; State v. Lorenzo Baltazar, 935

N.W.2d 862, 868 (Iowa 2019). To establish an ineffective-assistance-of-counsel

claim requires the applicant to show by a preponderance of the evidence that: “(1)

trial counsel failed to perform an essential duty, and (2) [the] failure resulted in

prejudice.” Sauser v. State, 929 N.W.2d 816, 818 (Iowa 2019) (citation omitted);

accord Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to prove either

prong is fatal to an ineffective-assistance-of-counsel claim. State v. Tompkins, 859

N.W.2d 631, 637 (Iowa 2015).

Under the first prong, “we begin with the presumption that the attorney

performed competently.” Ledezma, 626 N.W.2d at 142. We “must indulge a

strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” State v. Haas, 930 N.W.2d 699, 703 (Iowa

2019) (citation omitted). An applicant must rebut the presumption by proving trial

counsel “perform[ed] below the standard demanded of a reasonably competent

attorney.” Id. (citation omitted). “This is more than a showing that a trial strategy

backfired or that another attorney would try the case differently.” Lorenzo Baltazar,

935 N.W.2d at 869. “We will not find counsel incompetent for failing to pursue a

meritless issue.” State v. Brubaker, 805 N.W.2d 165, 171 (Iowa 2011). Under the
 6

second prong, to establish prejudice, “a[n] [applicant] must show a reasonable

probability that the result of the trial would have been different.” State v. Ambrose,

861 N.W.2d 550, 557 (Iowa 2015). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

B. Medical Examiner’s Testimony

On direct appeal, Davis claimed his trial counsel was ineffective in their

performance regarding the testimony of Associate State Medical Examiner,

Dr. Jerri McLemore. We found the record insufficient on Davis’s direct appeal to

resolve the claim and left the issue open for PCR proceedings.5 Davis, 2017 WL

108278, at *11. On appeal from denial of his PCR application, Davis takes issue

with counsel’s performance related to Dr. McLemore in three respects: (1) Dr.

McLemore’s reliance on certain contested information, (2) portions of her

testimony, and (3) the decision not to hire an expert witness.

1. Medical Examiner’s Reliance on Contested Information

First, Davis argues that Dr. McLemore improperly relied on two pieces of

information: (a) evidence existed showing that Davis had “high-velocity blood

splatter” on his clothing and (b) Durben had no history of suicidal ideation. Davis

contends that his trial counsel was ineffective for not correcting this information

prior to trial, not competently cross-examining Dr. McLemore, and not informing

the fact-finder of the contested information.

5Our 2017 decision on Davis’s direct appeal noted that Dr. McLemore’s deposition
was not part of the record. Dr. McLemore’s deposition from the criminal trial was
also not included in the PCR record.
 7

a. 2009 Autopsy Report

In July 2009, Dr. McLemore conducted an autopsy of Durben and filed a

report of her findings on December 17. The report found both the cause and

manner of death to be undetermined. In the opinion section of the autopsy report

outlining the basis for her conclusion, Dr. McLemore stated, “There were, however,

subtle discrepancies regarding a possible high-velocity blood spatter on the

significant other’s clothing.” Additionally, the report states, “Further investigation

revealed that the decedent had no history of suicidal ideation or suicidal attempts.”

The report concludes, “Aspects of the scene investigation, autopsy findings, and

decedent’s history, namely, lack of any suicidal ideation raise the possibility of

homicide. Incapacitation of the decedent from choking cannot be excluded. Based

on the circumstance as they are currently known, the manner of death is

undetermined.”

b. 2015 Trial Testimony

At trial in 2015, Dr. McLemore’s 2009 autopsy report was not submitted into

evidence. Dr. McLemore testified that the basis of her undetermined conclusion

was:

Because of the location of the shotgun wound, which is highly
unusual for a self-inflicted shotgun wound, because of the partial
bruising of the neck, which I had no good answer as to why they were
there, I could not say one way or the other whether Ms. Durben
actually did die of a shotgun wound to the head.
I could not say whether or not she might have been
incapacitated beforehand. And so because of that, I could not
determine the cause or manner of death. They were both deemed
undetermined.
 8

c. Contested Information—“High-Velocity Blood Spatter”

On the morning of Durben’s death, Davis’s clothing was seized prior to the

issuance of a search warrant while Davis was in the hospital.6 Davis’s shirt and

shorts were sent to the Iowa Division of Criminal Investigation (DCI) Crime Lab for

analysis. Criminalist Michael Halverson was responsible for testing Davis’s

clothing. On January 8, 2015, in preparation for Davis’s criminal trial, Halverson

was deposed by Davis’s defense counsel.7 Halverson was asked whether he

conducted high-velocity blood splatter testing on Davis’s clothing. Halverson

explained that no testing was done because the splatter on the shorts was too

small to conduct high-velocity blood spatter testing.

Despite the inability to conduct high-velocity blood spatter testing,

Dr. McLemore’s autopsy report referenced “possible high-velocity blood spatter on

the significant other’s clothing.” Dr. McLemore testified that when making a report,

she considers the circumstances of death. In Durben’s case, she received a

preliminary report from the county medical examiner and the DCI file related to the

case. It appears that sometime during the initial stages of the investigation, the

possibility of high-velocity blood splatter testing was considered by investigators.

This information was given to Dr. McLemore, and she included it in her autopsy

report.

6 On the morning of the trial in 2015, the clothing was suppressed, as the seizure
was found to be in violation of the Fourth Amendment by the trial court.
7 The deposition revealed that Halverson examined Davis’s shorts and identified

twelve small stains, ten of which were identified as blood. DNA testing was
conducted on the stains, nine matched Davis, and one returned a mixed result with
the dominant source matching Durben.
 9

Davis argues his trial counsel was required to correct the autopsy report

prior to trial. However, the report was not admitted into evidence at the criminal

trial, and Dr. McLemore did not testify regarding the contested information. She

made no mention of “possible high-velocity blood spatter on the significant other’s

clothing” during the course of her testimony. Removing the information prior to

trial would have little, if any, effect on the evidence actually presented at trial. We

find a lack of prejudice concerning this claim.

d. Contested Information—“Suicidal Ideation”

The 2009 autopsy report indicates Durben lacked suicidal ideation.

Dr. McLemore testified that lack of suicidal ideation formed a basis for her

conclusion. Conflicting testimony and evidence of Durben’s suicidal ideation

leading up to the morning of her death was presented at trial. Dr. McLemore was

told by investigators that Durben lacked suicidal ideation.8 Davis asserts his

defense counsel’s treatment of Dr. McLemore’s reliance on this information was

constitutionally deficient. We disagree.

In his deposition, one of the defense counsel was questioned about defense

strategy with regard to the medical examiner’s reliance on the contested

information. He explained it was something he sought to point out for the court

“from the get-go” and that their strategy was to show “[Dr. McLemore] was skewed

and that she had been given this information prior to doing the autopsy.” In the

8 As a part of his application for postconviction relief, Davis submitted into the
record for the first time a 2009 call log from the medical examiner’s office. The log
indicates that on October 27, 2009, a member of the Area Prosecutions Division
of the Attorney General’s Office called the medical examiner, and Dr. McLemore
noted, “Holly—No known history of suicidal ideation—very against suicide.”
 10

opening statement, defense counsel made clear the potential weaknesses in Dr.

McLemore’s autopsy report. He argued,

But if you listen to Dr. McLemore’s testimony . . . listen to what
forensic—what her forensic autopsy takes into account. This is not
just a review of the body. This is her taking into account the
circumstances that are told to her by law enforcement. . . .
....
. . . She was told by law enforcement on further investigation
that there was not—no suicidal ideations regarding Holly. . . . [Y]ou
are going to hear three separate witnesses talk about the fact that
Holly Durben had threatened suicide.

On cross-examination, a member of the defense team elicited testimony

from Dr. McLemore that established she had received information that Durben

lacked suicidal ideation. He specifically pointed out the portion of the autopsy

report that states a lack of suicidal ideation raised the possibility of homicide.

Counsel went on to question Dr. McLemore about how this information influenced

her conclusion:

Q. If there was suicidal ideation either that day or over a period
of time of up to [five] months before, would that have affected your
opinion? A. Probably not.
....
Q. Again, I’m reading your report, and it says the thing that
bothered you was mainly lack of any suicidal ideation raised the
possibility of homicide. So removing that possibility— A. Yes.
Q .—doesn’t that affect you at least somewhat? A. Because
I still have aspects of, especially my autopsy findings in that
sentence. It’s not just one piece of evidence that is concerning me—
Q. Okay. A.—or has concerned me. Anyway, I couldn’t form
an opinion. That’s why it’s undetermined.

Counsel’s questioning adequately confronted Dr. McLemore about her

reliance on a lack of suicidal ideation. Trial counsel’s subsequent line of

questioning tested the report’s conclusion under an alternative where there was

suicidal ideation. The questioning by counsel of Dr. McLemore concerning her
 11

conclusion raised the issue and alerted the trial court to the issue. We find no

breach of duty.

2. “Highly Unusual Wound”

On direct appeal, Davis specifically argued that his counsel was ineffective

for not lodging a foundational objection to Dr. McLemore’s statement that the

shotgun wound was in a “highly unusual place.” Davis, 2017 WL 108278, at *11.

We stated that it was unclear whether Dr. McLemore “could have provided the

requisite foundation for her statement.” Id. Additionally, we noted the possibility

of prejudice because the State identified Dr. McLemore’s testimony as “the

strongest evidence of Davis’s guilt,” and “the district court relied upon her expert

testimony in its verdict.” Id. at *11 n.12. Finally, we acknowledged the State’s

argument that “defense counsel may have had reasonable strategic grounds for

failing to object to Dr. McLemore’s testimony.” Id. at *11. On this appeal, Davis

contends his counsel was ineffective in cross-examining the witness on her “highly

unusual” location claim and failing to seek a continuance in order to hire an expert

witness to contest it. We reject this argument.

First, defense counsel made a reasonable and strategic objection to the

contested testimony. When confronted with the unexpected testimony, defense

counsel objected, arguing the testimony was “beyond the scope of the trial

information and beyond the scope of the deposition.” Counsel engaged in voir dire

of the witness where counsel established that Dr. McLemore’s opinions were given

to a reasonable degree of medical certainty and that when asked in her deposition,

she was able to give no opinion as to the cause and manner of death. Defense

counsel argued that any opinions offered beyond that would not be to a reasonable
 12

degree of medical certainty. The trial judge overruled the objection. The trial

court’s ruling on the objection was challenged on direct appeal, and we affirmed.

Id. at *7.

Defense counsel, as well as the State at trial, acknowledged that a

foundational objection also could have been made. However, in his deposition,

defense counsel explained his strategy in avoiding a foundation objection and in

not pursuing a line of questioning related to the witness’s expertise and knowledge.

In the view of counsel, Dr. McLemore’s testimony left clear reasonable doubt and

the testimony as favorable to the defense. Defense counsel did not want to

“bolster” the witness for the State. He explained, “True expert witnesses will

bolster their testimony whether they have any real basis to bolster it or not. . . . It’s

not our job to bolster that. And so I felt any foundational questions about that would

only assist the State . . . .” Defense counsel also noted the potential risk of lodging

a foundational objection, “Well, you take a risk on that. Any time you’re going to

ask—if I ask to voir dire a witness, I’m going to say what’s your experience in this

area, and she then throws out that she’s got [eighty-two] papers in it, I have helped

the State.” A member of the defense counsel team testified in his deposition taken

in advance of the PCR trial that he did not anticipate that Dr. McLemore would be

testifying that the location of the wound was “highly unusual.” Thus, when

presented with the unanticipated testimony, counsel made a strategic decision to

object to the offered testimony being outside the scope of the trial information and

her prior deposition. This effectively brought the issue to the attention of the court

and presented the issue. Trial counsel’s actions and strategy were reasonable

given the circumstances. We find no breach of duty in this regard.
 13

Second, Davis asserts that his defense counsel was required to seek a

continuance when confronted with Dr. McLemore’s testimony. Davis points to the

fact that in his deposition, defense counsel was asked what he would have done

differently had he known prior to trial that Dr. McLemore would testify as she did.

Defense counsel responded that, “[W]e also mostly would have gone and hired

our own expert to then refute that statement because we don’t believe that doctor’s

statement would have been based on recent research.” Additionally, Davis points

to another of defense counsel’s statements that “in hindsight,” trial counsel may

have been ineffective for not seeking a continuance to hire an expert to contest Dr.

McLemore’s testimony.

However, defense counsel’s statements that Davis now points to are

responses to a hypothetical question. What strategy might have been more

successful upon reflection does not establish that trial counsel was ineffective.

Counsel’s performance is judged under the circumstances known to them at the

time. “[T]o some extent counsel’s trial performance must be judged by his primary

theory of defense. Selection of the primary theory or theories of defense is a

tactical matter.” Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984).

Defense counsel believed the case against Davis was weak and

strategically chose to give the State as little time to prepare for trial as possible,

demanding speedy trial. Defense counsel stated in his deposition,

[W]e felt that we were going to try to hold the State to their burden
sooner than later because we didn’t think that they could be prepared
as well as they could if they were given more time.
And I think a lot of that was shown in the scrambling that the
State had at the last minute.
 14

It was reasonable and consistent with trial strategy not to seek a continuance,

thereby forcing the State to prove their case under the expedited timeframe. When

confronted with Dr. McLemore’s testimony, counsel fulfilled their duty by making a

reasonable objection, strategically choosing not to pursue a foundation objection

so as to not potentially bolster the witness or alternatively undermine a witness

whose overall conclusion they found in line with a finding of not guilty. Given the

circumstances and what was known to counsel at the time, this was a reasonable

strategy within the range of competent representation.

Critically, Davis has not offered how the hiring of an expert would have

changed the outcome. An expert was not presented at the PCR trial to counter

Dr. McLemore’s testimony concerning the location of the gunshot wound. The trial

court was presented with evidence by way of Davis’s statements that he was not

in the room when Durben was shot. During one of his interviews, he informed law

enforcement that when he discovered Durben’s body, he jumped on the bed,

moved the gun out of the way, and shook Durben. In another interview, he said

he moved the gun slightly and shook her before calling law enforcement. When

law enforcement discovered Durben, the gun was lying across her body, the finger

from her non-dominant thumb in the trigger jam, supporting the State’s theory that

the suicide scene was staged. Davis told investigators that he had unloaded the

gun early that morning and placed it under the bed on which Durben’s body was

discovered. The only identifiable fingerprint located on the weapon belonged to

Davis. Davis has failed to prove that the hiring of an expert concerning the location

of the gunshot wound would have changed the outcome of the trial. We find a lack

of prejudice concerning this claim.
 15

3. Necessity of Obtaining Additional Forensic Expert

Finally, Davis argues his counsel was required to hire an expert to review

the medical information provided to Dr. McLemore without the contested

information. We disagree. In his deposition, defense counsel noted, “We looked

at hiring a blood-splatter person. We looked at talking about the psycholog[ical]

aspects of suicide. We looked at the experts as to whether women commit suicide

by shotgun.” However, he went on to explain that once the decision to demand a

speedy trial was made other strategies concerning expert witnesses changed.

Defense counsel did not have a duty to hire an expert witness when

Dr. McLemore’s conclusion was not necessarily adverse to their position and doing

so would conflict with their trial strategy. See Schrier, 347 N.W.2d at 663 (finding

counsel did not breach an essential duty for not hiring an expert witness to counter

State’s medical expert witness where there “were more appealing theories of

defense than a possible battle of expert witnesses”). Counsel considered these

issues and made a strategic decision not to delay trial. “[S]trategic choices made

after a thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable; and strategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Strickland, 466 U.S. at 690–

91.

Additionally, Davis has not proven to a reasonable probability that such an

expert existed and would have offered a favorable opinion. See Stewart v. Nix, 31

F.3d 741, 744 (8th Cir. 1994) (“To prove prejudice from a trial attorney’s failure to

investigate potential witnesses, a petitioner must show that the uncalled witnesses
 16

would have testified at trial and that their testimony would have probably changed

the outcome of the trial.”). In supporting this claim, Davis points to the fact that

defense counsel was aware of research that conflicted with Dr. McLemore’s

testimony and submitted a letter from mental-health therapist Cynthia Freemyer.

However, Freemyer’s letter states nothing specific to Durben and is merely a

description of the standard treatment for a client expressing suicidal ideation.

Davis has not presented a witness who could have testified to conflicting research

or shown that it would have changed the result of his trial. We find Davis has failed

to prove prejudice on this claim.

4. Conclusion—Medical Examiner

In conclusion, we find that Davis has not proven his defense counsel’s

performance was constitutionally ineffective in regards to medical examiner

Dr. McLemore. No prejudice at trial resulted from the 2009 autopsy report’s

reference to the possibility of high-velocity blood splatter. Counsel fulfilled their

duty by effectively cross-examining Dr. McLemore about Durben’s suicidal

ideation, and the contested information was made clear to the court. When

confronted with testimony describing the location of the shotgun wound as “highly

unusual,” defense counsel acted competently by making a reasonable objection

and were not required to seek a continuance in counter-variance of their trial

strategy. Even if a breach were to be found for failing to move for a continuance,

Davis has failed to prove prejudice on this claim. Finally, counsel did not have an

essential duty to hire an expert witness to review partially redacted medical reports,

and Davis has not shown doing so would have resulted in a result favorable to him

at trial.
 17

C. Witness Stockwell

Davis claims his counsel’s performance with regard to witness Jamie

Stockwell was ineffective. In the early hours of the morning of her death, Durben

texted Stockwell asking if she could stay with her. After receiving the message,

Stockwell called Durben, but she did not pick up. Around 4:00 a.m., Stockwell left

voicemail messages on both Stockwell’s cell phone and Davis’s home phone line

inquiring whether Durben was safe. Stockwell kept calling and eventually spoke

with Durben and Davis. Stockwell testified at trial concerning her relationship with

Durben and her conversation with Durben on the morning of her death. Davis

asserts his trial counsel was deficient: (1) in failing to object to her reference to a

text message9 and (2) in challenging her credibility on cross-examination.

1. Text Message

In his pro se brief, Davis claims his counsel was ineffective for failing to

object on hearsay grounds to a portion of Stockwell’s testimony that referenced

the text message she received from Durben on the morning of her death. The

States argues the statements were admissible under the excited-utterance and

then-existing state-of-mind hearsay exceptions. See Iowa Rs. Evid. 5.803(3)(2),

(3). Defense counsel made a hearsay objection in response to Stockwell’s

testimony concerning her telephone conversation with Davis and Durben. The

State responded by arguing the statements qualify for the then-existing state-of-

9This basis was asserted in Davis’s pro se brief and not included in counsel’s brief.
Because both claims of ineffective assistance of counsel involve the same witness,
we consider them together here. Davis raised the issue in his application. The
district court considered the claim and denied his application. The claimed error is
preserved.
 18

mind hearsay exception. The objection was overruled. Assuming trial counsel

was able to exclude evidence of the text message successfully, Davis has not met

the prejudice prong. The evidence of consequence was Stockwell’s conversation

with Durben on the morning of her death not the text message. We find no

prejudice in this regard.

2. Counsel’s Challenge to Stockwell’s Credibility

Stockwell made statements relevant to this case on three separate

occasions. They are presented in chronological order and then discussed as a

part of Davis’s claim.

a. 2014 Interview with Investigators

On October 31, 2014, Stockwell was interviewed by Special Agent Chad

Fiedler. As the interview was concluding, Agent Fiedler asked, “Are you scared of

Brian?” Stockwell responded,

Am I scared of him? I’m not scared of nobody. [laugh] I’ve, I’ve just
reached that point. I don’t care what you are—male or female. I’m
not scared of nobody, and I’m not gonna back down. But I’m not
gonna say I’m gonna win or anything, but I’ll try. [laugh] [pause]
Nope, I’m not scared of him, actually I had actually told him a few
times if he got stupid I was gonna get stupid on him.

Davis’s defense counsel had an audio recording of the interview as well as a report

generated by investigators describing the interview prior to trial.

b. 2015 Deposition

On Jan 27, 2015, one week before trial, Stockwell was deposed. Davis was

present during the deposition. In her deposition, Stockwell stated that Durben had

spoken to her about committing suicide “multiple times.” Stockwell stated that

while on the phone with Durben on the morning of her death, Durben told her “that
 19

if she didn’t get out of there or didn’t have anywhere to go, then she was going to

end up committing suicide,” and “that she wanted help; she wanted to get out of

there, and she wanted me to come help her.”

c. Trial Testimony

At trial, Stockwell testified about the morning of Durben’s death. She was

cross-examined by defense counsel, and the following line of questioning

occurred:

Q. Holly made suicidal statements to you when Brian and her
were having arguments, didn’t she? A. She told me she wanted out
of there and wanted me to help her get away. She was done. She
couldn’t handle the hurt and pain and suffering anymore.
Q. And if she couldn’t get away, she was going to kill herself?
A. She told me that five months prior to this happening.

Defense counsel confronted Stockwell about the statements she made in her

earlier deposition. Defense counsel clarified that Stockwell had previously stated

Durben made suicidal statements multiple times, including the night of her death.

Stockwell continued to respond by saying that “it had been five months before that

she had made the last final suicidal statement.” Defense counsel sought to confirm

that Stockwell had made inconsistent statements a few days earlier in her

deposition, and the following line of questioning occurred:

Stockwell: Yep. I said this. I was scared. But it wasn’t—
Q. What were you scared of, ma’am? A. I didn’t—I have two
children. And I’m not going to live my life at risk because—I am doing
what I am doing, which is right.
Q. Ma’am, did you also say those very same statements to
investigators in 2014? A. I said quite a bit of statements to
investigators.

Defense counsel offered a transcript of Stockwell’s deposition and read into the

record portions of her deposition that were inconsistent with her testimony. On
 20

redirect by the State, Stockwell was asked, “Why were you scared at your

deposition?” Stockwell responded, “I’m still scared. I have every reason. I have

two children, and I know what Davis is capable of.”

Stockwell’s deposition testimony that Durben made suicidal statements to

Stockwell on the morning of her death was helpful for Davis’s defense. Therefore,

it was imperative for counsel to impeach Stockwell when her trial testimony differed

so significantly from what she said in her deposition. Counsel fulfilled this duty by

impeaching Stockwell with her inconsistent statement and reading portions of her

deposition into the record. Davis acknowledges that counsel impeached the

witness with her prior inconsistent statements concerning Durben’s statements

about suicide. However, Davis argues counsel was required to also use

Stockwell’s statements to investigators that she was not afraid of Davis to further

impeach her. We disagree.

There are clear strategic advantages in using Stockwell’s depositional

statements rather than her statements made to investigators for impeachment

purposes. “We generally entrust cross-examination techniques, like other matters

of trial strategy, to the professional discretion of counsel.” United States v.

Villalpando, 259 F.3d 934, 939 (8th Cir. 2001). The statements most relevant to

Davis’s defense were that Durben made suicidal statements on the morning of her

death. Statements made in a deposition are under oath, allowing them to be

considered as substantive evidence when brought in through impeachment. By

using the sworn statements to impeach the witness, defense counsel enabled the

judge to consider her favorable depositional testimony concerning Durben’s

suicidal statements as substantive evidence despite her in-court testimony. Use
 21

of Stockwell’s statements to investigators not under oath could have only been

offered as extrinsic evidence to prove she made the inconsistent statement rather

than to prove she was not afraid of Davis. See Iowa R. Evid. 5.613.

Stockwell’s credibility had been attacked on cross-examination; additional

impeachment with her statements to investigators would be derivative and would

do little to undermine her in-court assertion she was scared during her deposition,

which occurred after she made the statements to investigators. Further, this line

of questioning risked opening the door to more testimony concerning Stockwell’s

fear of Davis. Specifically, this line of questioning may have opened the door to

previously excluded prior bad acts that were within the knowledge of Stockwell—

that Davis had previously shot a man and stabbed another and that he was abusive

to a previous girlfriend and had threatened to kill her.

3. Conclusion—Witness Stockwell

We do not find Davis’s counsel was ineffective in the treatment of witness

Stockwell. Davis is unable to show prejudice regarding the lack of hearsay

objection concerning the text given the cumulative evidence of Stockwell’s

testimony concerning her conversation with Durben the morning of her death.

Counsel competently and strategically impeached Stockwell with her sworn prior

inconsistent statements. Counsel did not have an essential duty to pursue further

impeachment on statements less relevant to Davis’s defense and which posed the

risk of introducing adverse testimony.

D. Court’s Reliance on Davis’s Statements

1. Ineffective Appellate Counsel
 22

Davis claims his appellate counsel was ineffective for failing to raise on

appeal the trial court’s reliance on allegedly suppressed statements. “We judge

ineffective assistance of appellate counsel claims against the same two-pronged

test utilized for ineffective assistance of trial counsel claims.” Ledezma, 626

N.W.2d at 141 (citations omitted).

At his PCR trial, Davis argued, “There can be no reasonable strategy for

failing to raise a winning issue on appeal.” However, no other evidence concerning

appellate counsel’s strategy or decision was presented. An assertion that if the

issue been raised on appeal, it would have been successful is not sufficient to

establish ineffective assistance of appellate counsel. See Cuevas v. State, 415

N.W.2d 630, 631 (Iowa 1987) (reversing this court’s finding of ineffective appellate

counsel where on direct appeal from defendant’s murder conviction appellate

counsel failed to raise issue of jury instructions permitting consideration of lesser

included offenses and argument of the issue in companion appeal led to reversal

of accomplice’s conviction).

Further, it is not clear that had Davis raised the issue on direct appeal it

would have been successful. Many issues were raised in Davis’s motion for a new

trial and in arrest of judgment. Appellate counsel was required to choose the most

prudent among them to argue on appeal. “[M]ost experienced appellate lawyers

or judges will attest it is a tactical blunder, often devastating to an appellant, to

assign every conceivable complaint. Highly competent appellate lawyers

generally assign only the strongest points and rely on them for reversal.” Id. at

633. In PCR proceedings, counsel is presumed competent, and it is Davis’s

burden to prove counsel’s performance fell below what is constitutionally
 23

mandated. See Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991). Davis has not

met his burden to prove that appellate counsel was ineffective.

2. Counsel’s Lack of Challenge to Un-Redacted Interview

Additionally, Davis claims his trial counsel was ineffective for failing to

redact certain portions of offered evidence related to an interview between Davis

and investigators. On October 27, 2014, Davis was interviewed at his mother’s

home by Special Agent Fielder. During the last twelve minutes of the interview,

Davis was told by Agent Fielder that his shorts from the morning of Durben’s death

had blood from Durden on them and that “this type of blood . . . is basically

indicative of high velocity spatter. . . . And basically, the only way for her blood in

that manner to get on your shorts is for you to be in the room when it happened.”

Davis was asked multiple times if he was in the room when the gun went off. Davis

maintained that he was not. Towards the conclusion of the interview, Davis

responded to a question of whether he may have blocked the memory out, and he

responded that “I mean I . . . I don’t . . . I don’t believe I was in the room. Like I

said before, I told you guys . . . .”

The trial court, in part, relied on this statement by Davis in its verdict. Davis

argues that his statements were prompted by illegally seized evidence making

them “fruits of the poisonous tree” and should have been excluded as a part of the

suppression ruling on his clothing. At trial, much of the audio and visual evidence

submitted was not published in court. It appears inadmissible evidence contained

in the exhibits was not physically redacted before submission. Davis alleges that

trial counsel’s failure to redact the statements in the exhibits constituted ineffective

assistance of counsel. We disagree.
 24

At trial, the parties agreed, in an effort towards expediency, that redaction

of the evidence was unnecessary, as the judge would not consider inadmissible

evidence. In his PCR brief, Davis acknowledges, “It is commonplace for attorneys

on both sides of a criminal matter to be collegial. An attorney cannot be faulted for

working cooperatively with opposing counsel to make a favorable deal or even to

keep the door open for future discussions.” When the audio recording and

transcript of the interview was submitted into evidence, defense counsel objected,

asking the court not to consider “officers’ statements, any prior bad acts, and so

forth that we already laid out for the court.” The court received the evidence

“subject to [the] objection regarding any inappropriate hearsay or bad acts or prior

acts not admissible or not proper impeachment.”

Defense counsel made clear its objection to any inadmissible evidence

contained in the exhibits. The court, as fact finder, reassured counsel it would only

consider admissible evidence. While the trial record is unclear as to whether the

specific statements at issue here were subject to the broader suppression ruling

on Davis’s clothing, we are confident that the court understood the boundaries of

its ruling and considered the evidence accordingly.10 It is reasonable for defense

counsel to presume the court is competent to fulfill its duties in accordance with

the law and only consider admissible evidence. We find, in this bench trial, counsel

did not have an essential duty to physically redact certain portions of exhibits after

seeking multiple assurances from the court concerning the scope of the

admissibility of the evidence, particularly in the absence of a jury.

10The trial court’s ruling on the motion to suppress was orally pronounced into the
record on the morning of trial; a written ruling was not filed.
 25

E. Counsel’s Lack of Alternative Crime Scene Expert Witness

Davis contends that investigators mishandled the scene of Durben’s death.

He points to several alleged processing errors, including failure to record core body

temperature, the absence of scaled blood-splatter photos, and lack of gunshot

residue testing. In preparation for his PCR proceedings, Davis retained and

deposed his own crime-scene expert, Kenneth Moses. In his deposition, Moses

explained how the alleged deficiencies of the crime-scene processing limited what

could be derived from subsequent reconstruction efforts at the time of trial and

concluded that he believed Durben might have accidentally shot herself. Davis

argues that trial counsel’s failure to investigate and secure a crime-scene expert

who could generate a record of testimony regarding the alleged deficiencies

constitutes a breach of an essential duty. We disagree.

Counsel has a duty to investigate. However, this duty is not limitless and

“does not require that counsel pursue every path until it bears fruit or until all

conceivable hope withers.” Schrier, 347 N.W.2d at 662 (quotations omitted)

(citation omitted). “The extent of the investigation required in each case turns on

the peculiar facts and circumstances of that case.” Id. Counsel believed that the

circumstances of the trial and experience of the judge made hiring their own expert

unnecessary. Defense counsel explained,

Once the decision was made to do a bench trial, some of those things
[hiring an expert] were not going to be done, especially in light of it
being Timothy O’Grady. He was an experienced criminal attorney
himself and had tried many cases over the years, both in bench and
jury trials.

He explained the judge “had a wealth of knowledge in [crime-scene processing]

and would understand that the police officers did many things wrong and would
 26

take those into consideration.” Another defense counsel explained they did not

hire an independent expert because they “did not believe [the State] would be able

to present [their case] as well as they could if they were given more time,” and

because the evidence left room for reasonable doubt, “we felt we could move

forward with what we had.”

In Davis’s case, the initial crime-scene processing occurred almost five

years before trial. Defense counsel’s strategy was to demand a speedy bench

trial. Based on the crime-scene evidence, the State was unable to rule out the

possibility of suicide. Defense counsel effectively cross-examined the State’s

firearms expert Victor Murillo. On cross-examination of Dr. McLemore, defense

counsel effectively pointed out the lack of gunshot residue and fingernail testing.

Additionally, he elicited testimony explaining how the failure to record body

temperature and room temperature made it difficult to determine the time of death.

Davis has not shown his counsel was ineffective for not hiring an

independent expert witness. See id. at 661–63 (finding counsel not ineffective for

failing to commission independent scientific testing or draw favorable inference

from State’s failure to conduct such tests). Counsel competently demonstrated the

alleged deficiencies in processing and acted consistent with their trial strategy.

Further, Davis has not proven that had an expert witness been called, it would

have sufficiently altered the outcome of his trial.

IV. Discussion—Pro Se Arguments.

We now turn to the arguments raised in Davis’s pro se brief not previously

addressed. Through his pro se brief, Davis contends that (1) prosecutorial

misconduct resulted from investigators improperly supplying allegedly false
 27

information to Dr. McLemore; (2) that Dr. McLemore’s testimony violated State v.

Tylor, 867 N.W.2d 136, 162 (Iowa 2015); (3) his trial counsel was ineffective for

not seeking a suppression hearing in regards to his polygraph interview; and

(4) inadmissible evidence of his prior bad acts was introduced at trial.

A. Prosecutorial Misconduct

Davis alleges trial counsel was ineffective for failing to assert a prosecutorial

misconduct claim. Davis claims his right to due process was violated when the

prosecutor supplied Dr. McLemore with the contested information previously

discussed. “In analyzing the defendant’s ineffective-assistance-of-counsel claim,

our first step is to assess whether the record demonstrates . . . a meritorious due

process violation. Thus, we must consider whether the prosecutor was guilty of

misconduct . . . and whether the record shows [the defendant] was prejudiced, i.e.,

denied a fair trial.” State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). As noted

earlier, the autopsy report containing the contested information was not admitted

as evidence in the criminal trial, and the medical examiner did not testify to blood-

splatter evidence. Defense counsel cross-examined the medical examiner about

the lack of suicide information supplied. We find no breach or prejudice. “[I]t is the

prejudice resulting from misconduct, not the misconduct itself, that entitles a

defendant to a new trial.” Id. (quotations omitted). In the absence of a meritorious

claim, counsel cannot be ineffective for failing to raise it. Id. at 870.

B. State v. Tyler

Next, Davis claims Dr. McLemore’s testimony violates the ruling in Tyler.

876 N.W.2d at 162 (stating “when a medical examiner bases his or her opinion of

cause or manner of death on . . . on information obtained through police
 28

investigation, such opinions would ordinarily be inadmissible . . . because would

not does not assist the trier of fact”). This argument is being made for the first time

on appeal, and we find it unpreserved. We have already addressed his ineffective-

assistance-of-counsel claim related to the medical examiner’s reliance on

contested information. Davis has not established sufficient reason for failing to

raise the issue, and this argument does not change our conclusion that his counsel

was effective. Tyler was decided in June 2015 and Davis’s trial occurred in

February 2015. Trial counsel cannot be faulted for failing to raise a holding which

had not yet occurred. See State v. Liddell, 672 N.W.2d 805, 814 (2003). Any other

alleged procedural defect in regard to the autopsy report was not properly

preserved.

C. Polygraph

Davis argues his trial counsel was ineffective for not seeking a suppression

hearing on evidence related to his polygraph interview. Davis preserved this issue

by raising it in his application and motion to enlarge or reconsider. The district

court considered the claim and denied his application. Davis argues that

statements obtained through his polygraph interview violated his Miranda11 rights;

therefore, defense counsel had an obligation to seek a suppression hearing prior

to trial to exclude the evidence.

On July 22, 2009, Davis agreed to submit to a polygraph examination.

Before the interview began, Davis was given a form that described his rights. He

was asked a series of questions to confirm that he understood his rights. Davis

11 Miranda v. Arizona, 384 U.S. 436 (1966).
 29

read aloud the last paragraph of the form titled “Certification,” which included the

statement “I wish to continue without an attorney. I am here of my own free will. I

can now leave this room by merely telling [the polygraph administer] that I wish to

leave.” Davis signed and dated the form. Davis understood his rights as

demonstrated during the examination—during a particularly accusatorial line of

questioning, Davis stated that he wanted a lawyer, and the interview stopped. The

evidence indicates that the examiner apprised Davis of his Miranda and Sixth

Amendment rights; Davis understood these rights and voluntarily continued with

the interview. No obvious Miranda violation occurred; therefore, it was not an

essential duty for counsel to seek a suppression hearing prior to trial to exclude

the evidence.

Further, defense counsel competently objected to introduction of the

evidence. At trial, the polygraph examiner, Steven Peterson was called as a

witness, and the State sought to introduce a video recording of the interview.

Defense counsel objected, arguing, “polygraphs cannot be introduced in court.”

The State responded that they were not admitting any polygraph results, just the

video recording of the interview. Defense counsel’s objection was overruled.

Defense counsel requested voir dire of the witness and elicited testimony from

Peterson that made clear to the court that prior to the interview, Davis had received

a pamphlet that stated that the results of the polygraph were not admissible in

court. Defense counsel argued the evidence should not be admitted because

Davis had agreed to the interview believing it would not be used against him,

affecting the voluntariness of his statements for the purposes of trial. The court

overruled defense counsel’s objection and admitted the evidence. We find that
 30

counsel fulfilled his constitutional duty by objecting to introduction of the evidence

and making a competent argument to the court.

D. Prior Bad Acts

Lastly, Davis argues, “testimony regarding an arrest of a dismissed charge

was improperly admitted as clear proof of a prior bad act at trial.” This issue was

raised on direct appeal as both an evidentiary challenge and alternatively, as a

claim of ineffective assistance of counsel. Because we found the evidentiary issue

preserved, we addressed it on direct appeal and found no abuse of discretion. See

Davis, 2017 WL 108278, at *8 & n.11. Therefore, Davis cannot prove the

necessary breach or prejudice to succeed in his ineffective assistance of counsel

claim on this basis.

V. Conclusion.

For the above reasons, we affirm the denial of postconviction relief.

AFFIRMED.