IN THE COURT OF APPEALS OF IOWA
No. 20-0086
Filed January 12, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
HILLARY LEE HUNZIKER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, Andrea Dryer,
Judge.
Hillary Hunziker appeals her conviction for murder in the first degree.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by Bower, C.J., and Greer and Badding, JJ.
2
GREER, Judge.
Hillary Hunziker appeals her jury conviction of first-degree murder. She
asserts that (1) the district court erred in denying her request for a continuance
based on the unavailability of her expert witness, (2) the jury instructions about the
insanity defense did not correctly state the law, (3) her conviction is contrary to the
weight of the evidence, (4) the district court erred in denying two requests for
substitute counsel, and (5) she should be able to assert an ineffective-assistance-
of-counsel claim on this direct appeal to pursue an unpreserved sufficiency-of-the-
evidence claim, or in the alternative, we should evaluate her issue under plain-
error review.
I. Facts and Background Proceedings.
In November 2017, Hunziker; her mother, Brenda Milnes; and her young
son, J.H., traveled to Minnesota for a family gathering with Hunziker’s brother,
Brook Milnes.1 On the trip, she had periods of being emotional, tearful, and quiet.
Hunziker and her mother dropped J.H. off with Hunziker’s ex-husband, Jason,2
who had physical care of the child. Hunziker was unhappy with this arrangement
and had made several allegations about child abuse regarding both J.H. and
Jason’s adult son. None of the allegations were found to be credible or
substantiated, and all followed moments of turmoil in the relationship. The first
allegation came a few months after their divorce decree was finalized and Jason
was awarded physical care. The second occurred after Jason told Hunziker that
1 To avoid confusion, we will refer to Brenda Milnes by her last name and Brook
Milnes by his first name.
2 As Hillary and Jason shared a last name, we refer to Jason by his first name.
3
he was no longer interested in any relationship with her. And the third was voiced
after Hunziker entered and refused to leave Jason’s home, requiring law
enforcement to remove her.
On the ride home, Hunziker told Milnes that Jason had raped her in front of
both of his sons. Neither son had mentioned this to Milnes and, at trial, Jason’s
adult son denied seeing or experiencing any abuse. Given Hunziker’s history of
false allegations and her own impressions of Jason and his sons, Milnes did not
find Hunziker’s allegations credible. Still, by the time Milnes dropped Hunziker off
at home, she was worried about her daughter’s mental stability. She offered to
take Hunziker to the hospital or have her daughter come stay with her. Hunziker
instead asked Milnes to take J.H. up to Minnesota to live with Brook if anything
were to happen to both Hunziker and Jason. Still concerned, Milnes told her
daughter to go to bed and then went home.
Hunziker did not go to bed. Instead, she went to Walmart and bought two
flashlights, two knives, and razor blades. She released her dogs and cat so
someone else could find them and take care of them. She put a sleeping bag in
the backseat of her car as a makeshift bed. She filled her tank with gas. She put
on boots she believed would be quiet. Then, around 4:00 a.m., she entered
Jason’s home, avoided squeaky floorboards, and packed a bag with toys for J.H.
With a knife held in her right hand, she found Jason sitting in his bed. The two
exchanged words, and she stabbed him. Jason called out to J.H., and Hunziker
yelled for him to stay in his room. However, the child did not—instead, he called
4
9113 and told them his mom had stabbed his dad. Hunziker stabbed Jason twenty
times, pulling down his underwear to keep him from running. She then corralled
J.H., who was screaming and crying, into the car. Jason was also able to call 911
on his cell phone and reported that his ex-wife had stabbed him and taken his child
and that he was dying. By the time help arrived, he had lost too much blood from
major arteries that were severed. Jason died soon after.
After fleeing the scene, Hunziker called Milnes and threatened to drive
through the garage door if Milnes did not open it for her. She said something like
“artery, artery,” and Milnes replied, “Hillary, what have you done?” Milnes then
called the police.
Officer Patrick Kremer arrived at Milnes’s home just as Hunziker did.
Hunziker was covered in blood and had what her mother described as a “wild”
look. When Officer Kremer saw Hunziker coated in blood, he asked her what was
going on. She responded that she was dressed for Halloween. Officer Kremer
asked for Hunziker’s name. Instead, she told him that she was going to tell him
the truth: her son had been living with his father, who was a child molester, and so
she killed him. Officer Kremer saw J.H. standing next to her without a shirt, also
speckled with blood. Hunziker told the officer that J.H. did not like to talk about it;
J.H. whimpered and said he loved his father. Hunziker was calm and responsive,
confirming again that she had killed Jason. Officer Kremer handcuffed Hunziker
and asked Milnes to take J.H. inside.
3 The 911 call was entered into evidence. Phrases such as “I won’t hurt you,”
“move,” and “stop crying” can be heard.
5
Officer Kremer found a knife in Hunziker’s front right pocket and its sheath
hung around her neck. The flashlights, razor blades, and other knife were found
in her car. Officer Kremer also noticed that her hands were cut. Hunziker told him
that she wanted her son to go live with her brother in Minnesota. As Officer Kremer
took her to the squad car, she told him, “It’s a crazy world out there,” and then,
“You gotta do what you gotta do.” He placed her in the squad car, read her Miranda
rights, and called for an ambulance. When Officer Kremer asked if Hunziker
wanted to talk about the incident, she responded, “Not right now.”
At this point, Officer Mark Keeney arrived at the scene. It was decided that
he would ride in the ambulance with Hunziker. Officer Keeney wore a body camera
that recorded the trip, but he had been instructed by an Iowa Division of Criminal
Investigation (DCI) agent to not try and speak with her about the case. Hunziker,
however, spoke with someone else in the ambulance, and that conversation was
captured on the body camera. Officer Keeney testified at trial that Hunziker’s
demeanor in the ambulance and hospital swayed between crying, humming, and
smiling; she seemed polite and did not appear intoxicated. In the video, shown at
trial, Hunziker could be overheard conveying her version of events. She described
how she parked a ways down from her ex-husband’s house after years of
unheeded claims of abuse and molestation and had it “all planned out”; went in
with a knife in her hand; and started stabbing him, aiming for arteries. She reported
that she had taken her mental-health medication but also drank some UV Blue
liquor. She stated she had cut her hand when Jason tried to take the knife from
her. Hunziker also explained she had planned to commit suicide so that J.H. could
go live with her brother.
6
Officer Keeney stayed with Hunziker in the hospital until Officer Gary
Manhart relieved him. Though Officer Manhart also did not speak with Hunziker,
he heard her telling medical staff about hearing voices in her head and suicidal
ideations. At one point, before she left to shower, she began pressing on the
wounds on her hands and said the voices told her she needed to die. That said,
no police reports reflected her saying that the voices told her to kill Jason.
Eventually, she was taken to jail.
Hunziker waived her right to a speedy trial, and the proceedings were
continued until December 2019. Twice in that time, Hunziker asked for different
counsel. The first time, November 21, 2017, she cited a conflict of interest with
her current attorney. When she appeared at her arraignment on November 28
with her counsel, the court did not ask about the motion and Hunziker did not bring
it up. Without further hearing, the court denied the order the next day. Yet again,
on May 8, 2019, Hunziker requested new counsel, citing her belief that her attorney
was not working very hard on the case and was difficult to reach. The district court
held a hearing, and Hunziker testified that her trial had been continued twice 4 so
she would prefer different counsel. Asked about her reasons for a change, she
never mentioned a conflict of interest. Hunziker’s attorney stated that she and
Hunziker had discussed ways to communicate with phone appointments and what
times Hunziker could contact her to ensure she was available. The court
determined that Hunziker’s concern did not require new counsel to be appointed
4One of these continuances was because of a medical emergency suffered by her
attorney.
7
and once more denied the motion; the same attorney continued to handle the case
through trial.
Hunziker was found competent to stand trial.5 Leading up to trial, she filed
notice of her intent to rely on a defense of insanity or diminished responsibility.
Hunziker has a documented personal and family history of mental illness. Both
the State and Hunziker intended to present expert witnesses to testify to her mental
state at the time of the killing. Hunziker’s expert witness was a medical doctor, Dr.
Thomas Gratzer. However, based on a miscommunication between defense
counsel and Dr. Gratzer, the expert witness was unavailable for the set trial date
and had limited availability in the months following. Hunziker moved for a
continuance and presented oral argument on the issue at the pretrial hearing,
which the court denied. In the denial, the court noted that Hunziker had been given
ample time to prepare and that everyone else had fit their schedules around this
date—the witness, the court opined, would simply need to rework his schedule,
even if it required a subpoena. As a compromise, the court offered the options,
subject to the State’s agreement, of presenting the witness’s testimony out of order
or filming a video deposition that could be played at trial. Both Hunziker and the
State agreed to a video deposition.
The State’s expert was Dr. Veronica Lestina, a doctor of psychology. Dr.
Lestina testified that she reviewed text messages between Hunziker and Jason,
the forensic interviewer’s report, the video of J.H.’s interview with the a child
5 Hunziker reported, in the competency review, that she had been taking her
prescribed medications consistently since two months before the murder because
“hearing voices is not fun.”
8
protection center, audio interviews of Hunziker, the body camera footage, the
reports Hunziker had made to the Iowa Department of Human Services, the
investigative information of the case, the competency assessment, Dr. Gratzer’s
psychiatric evaluation, Hunziker’s mental-health records from various institutions,
and communications between the sheriff’s office and law enforcement staff. She
also spent five hours with Hunziker.
Through psychological testing, Dr. Lestina diagnosed Hunziker with
borderline personality disorder, major depressive disorder, mild generalized
anxiety disorder, and alcohol use disorder.6 Still, she did not believe that Hunziker
was insane at the time of the crime because her mental diagnoses were not severe
enough to inhibit her “capacity or . . . ability to form specific, premeditated and
deliberate intent, in this case to kill.” During Dr. Lestina’s interview with Hunziker,
Hunziker reported that, as she walked into Jason’s home, she had to stop and “get
the guts” to go through with her plan because taking a life was “a really big deal.”
While Hunziker stated she heard her son’s voice in her head, she recognized it
was not really him speaking to her because she had checked that he was sleeping.
Her ability to distinguish what was real from what was not indicated to Dr. Lestina
that Hunziker was not experiencing a severe psychotic episode at the time of the
killing. Further, her overall ability to plan and execute the killing did not support a
finding of being in a psychotic episode. After a full analysis of Hunziker’s past
6 Over the course of several hospitalizations, Hunziker’s diagnoses have varied,
including psychosis, bipolar disorder, alcohol use disorder, marijuana use disorder,
and schizophrenia. At the time of the killing, she was taking a sleeping medication,
an anti-psychotic, and an anti-depressant. Bottles of the antipsychotic and
antidepressant were both found in her residence.
9
medical history, Dr. Lestina maintained that Hunziker’s capacity was not
diminished at the time she killed Jason.7
At the close of the State’s evidence, Hunziker moved for judgment of
acquittal, claiming that when the facts were viewed in the light most favorable to
the State, the elements of the offense had not been proven. The State resisted,
and the court ultimately dismissed the motion.
Dr. Gratzer’s testimony, as Hunziker’s only witness, told a different story.
He reviewed Hunziker’s medical records (both outpatient and inpatient) and Dr.
Lestina’s report, reviewed criminal complaints about the offense and police reports,
and interviewed Hunziker twice—once in person and once over the phone. In the
video deposition played for the jury, Dr. Gratzer diagnosed Hunziker with
psychosis and “schizophrenia or schizo-affective disorder, which causes her to
become psychotic and lose touch with reality.” This, he opined, was why she
suffered from delusions of her son being sexually abused. He believed this also
aligned with her past treating providers’ diagnoses8—diagnoses caused by a
chemical imbalance best treated by a psychiatrist like himself, not a psychologist
like Dr. Lestina. He did not believe Hunziker had borderline personality disorder
because of the consistency and length of her psychosis.
In the opinion of the expert, psychotic episodes with Hunziker’s mental
illness could be triggered by a lack of sleep, and Dr. Gratzer testified that Hunziker
7 There was also disagreement between the doctors about whether Hunziker was
taking her sleeping medication at the time of the murder. Dr. Lestina testified that
Hunziker had disclosed a habit of taking medication from her mother when she ran
out of her own. Dr. Gratzer pointed to pharmacy records that showed her
prescriptions had not been renewed.
8 These medical records were not admitted into evidence.
10
had not refilled her sleep medication prescription in the week leading up to the
murder. He also opined that the antipsychotic medication Hunziker was taking at
the time of the killing was not the strongest option. Dr. Gratzer believed that
Hunziker was experiencing psychosis both when she was interviewed by police
and when he interviewed her in the summer of 2018. In his interview of Hunziker,
she told him that, before the killing, she had been doing fairly well, but in the days
just before the offense, she was struggling to sleep without her medication and
began suffering from hallucinations and paranoid delusions. With these thoughts
in her head and increasing psychosis, she became convinced that she had to kill
Jason.
Dr. Gratzer ultimately concluded that this psychosis at the time of the
murder would deem her “insane” according to Iowa statute. Specifically, the
psychosis prevented her from understanding the wrongfulness of her actions
because she believed she had to kill Jason to save her son. Dr. Gratzer repeatedly
pointed out that, while Hunziker admittedly understood her actions to be legally
wrong, she believed she had no alternative and was morally correct. He did not
believe that her ability to form and carry out a plan negated the possibility that she
was experiencing psychosis. But he confirmed that Hunziker never claimed the
voices she heard told her to kill Jason.
At the close of defense’s evidence, Hunziker renewed her motion for
judgment of acquittal, asserting that not only had the State failed to meet its
burden, but that Hunziker had proven her insanity defense beyond a
preponderance of the evidence. The court again disagreed and sent the case to
the jury.
11
On the insanity defense, the jury was instructed:
Instruction No. 21: The defendant claims she is not criminally
accountable for her conduct by reason of insanity. A person is
presumed to be sane and responsible for her acts.
Not every kind or degree of mental disease or mental disorder
will excuse a criminal act. “Insane” or “insanity” means that, at the
time the crime was committed, the defendant suffered from such a
diseased or deranged condition of the mind that it made her either
incapable of knowing or understanding the nature and quality of her
acts or incapable of distinguishing between what was legally right
and legally wrong in relation to the acts.
A person is “sane” if, at the time she committed the criminal
act, she had sufficient mental capacity to know and understand the
nature and quality of her acts and had sufficient mental capacity and
reason to distinguish legal right from wrong as to the particular acts.
To know and understand the nature and quality of one’s acts
means a person is mentally aware of the particular acts being done
and the ordinary and probable consequences of them.
Concerning the mental capacity of the defendant to
distinguish between right and wrong, you are not interested in her
knowledge of moral judgments, as such, or the rightness or
wrongness of things in general. Rather, you must determine the
defendant’s knowledge of wrongness as to what society has fixed
and established as law so far as the acts charged are concerned.
This means mental capacity to know the acts were legally wrong
when she committed them.
The defendant must prove by a “preponderance of the
evidence” that she was insane at the time of the commission of the
crime.
Insanity need not exist for any specific length of time before
or after the commission of the act.
Instruction No. 22: If the State has proved all of the elements
of a crime or a lesser-included crime, you should then determine if
the defendant has proved she was insane.
In order for the defendant to establish she was insane, she
must prove by a preponderance of the evidence either of the
following:
1. At the time of the crime or a lesser-included crime was
committed, the defendant suffered from such a diseased or
deranged condition of the mind as to render her incapable of knowing
the nature and quality of the acts she is accused of committing;
or
2. At the time the crime or a lesser-included crime was
committed, the defendant suffered from such a diseased or
deranged condition of the mind as to render her incapable of
12
distinguishing between what was legally right and legally wrong in
relation to the act.
If the defendant has proved either of these elements by a
preponderance of the evidence, as explained in Instruction No. 9,
then the defendant is not guilty by reason of insanity. If the defendant
has failed to prove either of the elements by a preponderance of the
evidence, then the defendant is guilty of a crime if the State has
proved all of the elements of the crime.[9]
These jury instructions repeatedly delineated between what one might consider
morally right and wrong and what one knew to be legally right and wrong, a
distinction not overtly drawn in the Iowa uniform jury instructions. Hunziker
objected to these instructions at trial and filed a post-trial motion for a new trial and
in arrest of judgment. She believed the instructions were confusing to the jury and,
instead, the uniform instructions should have been used. The oral arguments on
the motion made clear that Hunziker’s argument was, while she was not actually
justified in murdering her ex-husband, her delusion led her to believe the murder
was morally right. Hunziker claimed that these jury instructions focused too heavily
on her legal understanding and made it “more difficult to emphasize her
position . . . that she believed it was the right thing to do because of perceived
abuse.”10 Both at trial and after, the court concluded that the jury instructions
accurately reflected the case law. Both motions were denied.
The jury found Hunziker guilty of first-degree murder.
In her motion for new trial and in arrest of judgment, Hunziker challenged
the denial of her request for a continuance. In a post-trial motion, she argued that
9 The italicized words are those the district court added to the Iowa uniform jury
instructions.
10 What should not be left unsaid is that if the jury had acquitted Hunziker on this
theory, it would have been on a basis not supported by the law.
13
she was prejudiced by the method of Dr. Gratzler’s testimony because it had to be
recorded before the State’s presentation of evidence and also impacted the
credibility determination of the jury. This motion was also denied.
Finally, in her request for a new trial and arrest of judgment, Hunziker
asserted that the jury’s verdict was contrary to the weight of the evidence
presented and insufficient evidence supported her conviction. As to these issues,
the motions were also denied.
Hunziker was sentenced to life in prison without the chance for parole and
ordered to pay restitution of $150,000 to Jason’s estate or heirs. The court also
entered a no-contact order preventing Hunziker from contacting J.H. for five years.
Hunziker appeals.
II. Discussion.
Hunziker argues the court erred in denying her request for a continuance
based on the unavailability of her expert witness and in deviating from the uniform
jury instructions on the insanity defense. She also claims that the jury verdict was
contrary to the weight of the evidence. She asserts that the court erred in denying
her motions seeking substitute counsel. Finally, she asks us to abandon Iowa
Code section 814.7 (2020) and allow her to raise an ineffective-assistance-of-
counsel claim on this direct appeal or, in the alternative, evaluate her claims under
plain error.
A. Denial of request for continuance based on unavailability of
Hunziker’s expert witness.
We review a district court’s decision to deny a continuance for an abuse of
discretion and only disturb the ruling if an injustice has resulted. State v. Artzer,
14
609 N.W.2d 526, 529–30 (Iowa 2000). “Motions for continuance are discouraged.
A motion for continuance shall not be granted except upon a showing of good and
compelling cause.” Iowa R. Crim. P. 2.9(2). “The standard recognizes the interest
of both the state and the defendant in a speedy and fair trial.” Artzer, 609 N.W.2d
at 530. Thus, the trial court had some latitude to make this call.
On appeal, Hunziker argues that the denial of her request for continuance
was unreasonable and resulted in injustice. First, she states there was no
evidence that the continuance was intended to delay trial; it was simply her
counsel’s mistake that required the delay. But because the district court has broad
discretion to deny a motion to continue, there are times where witnesses are
prevented from being at trial, even at no fault of the party, and continuances are
denied. See State v. Hodges, No. 10-0031, 2011 WL 944378, at *3 (Iowa Ct. App.
Mar. 21, 2011) (upholding the denial of a continuance even when factors
preventing an expert witness from appearing were unexpected and out of the
defendant’s control). Here, Hunziker was not denied the expert’s presentation to
the jury as in Hodges, but only limited to the manner and timing of the presentation.
Id. And even with diligent preparation or communication with a witness, an
unanticipated event does not always rise to the “good cause” expected for a
continuance.11
Hunziker next argues that, because Dr. Gratzer was her only witness and
she had the burden of proof on the insanity issue, she was prejudiced because the
11Compounding the issue, based on the other party’s schedule, a continuance
would have likely moved the trial out another six months.
15
video deposition inhibited the jury’s evaluation of credibility.12 Specifically, it
prevented the jury from seeing the “witness’s facial expressions, vocal intonation,
eye movement, gestures, posture, body language, and courtroom conduct, both
on and off the stand, that would not come across in a transcript.” One can assert,
as Hunziker does here, that in-person testimony allows the finder-of-fact an “up-
close” opportunity to judge credibility. In this age of technology, use of video
presentation likely would not be unusual to an average juror. And Hunziker’s
concerns about what would be lost in reading testimony from a transcript do not fit
the facts of these proceedings as she presented far more than a transcript. All of
the nonverbal cues she lists could be seen in the video presented to the jury.13 We
will not “reverse[] on appeal unless an injustice has resulted.” State v.
Leutfaimany, 585 N.W.2d 200, 209 (Iowa 1998). We find no injustice here.
Ultimately, the court did not abuse its discretion in denying the motion to
continue.
B. Jury instructions regarding the insanity defense.
The district court deviated from the uniform jury instructions by inserting
phrases that clarified the insanity defense involved Hunziker’s understanding of
the legal right and wrong of her actions, not the moral right and wrong. Hunziker
objected to these insertions at trial, preserving error. See State v. Taggart, 430
N.W.2d 423, 425 (Iowa 1988). “We review challenges to jury instructions for
12 Hunziker also objects to the video having to be redacted, arguing it came across
disjointed, but on our review, it is not difficult to follow and the delivery and opinions
were clear.
13 With this exact concern in mind, the trial court disallowed phone testimony when
the State presented the option.
16
correction of errors at law,” ensuring they are accurate statements of the law. State
v. Shorter, 945 N.W.2d 1, 6 (Iowa 2020) (citation omitted).
Hunziker believes this deviation misstated, and was contrary to, Iowa law.
Iowa has long followed some iteration of the M’Naghten test for the insanity
defense. M’Naghten’s Case, 10 Cl. & F. 200, 210, 8 Eng. Rep. 718, 722 (H.L.
1843); see State v. Harkness, 160 N.W.2d 324, 330 (Iowa 1968) (citing State v.
Buck, 219 N.W. 17, 21 (Iowa 1928)). M’Naghten itself does not distinguish
between legal and moral understanding. State v. Hamann, 285 N.W.2d 180, 183
(Iowa 1979) (noting the words “right” and “wrong” in section 701.4 refer to legal
right and wrong, not moral right and wrong). But our courts have repeatedly
focused the test on whether the defendant understood the legal right and wrong of
their actions. State v. Jacobs, 607 N.W.2d 679, 684 (Iowa 2000); State v. Collins,
305 N.W.2d 434, 436 (Iowa 1981); Hamann, 285 N.W.2d at 183; State v. Abdinur,
No. 17-0247, 2018 WL 2731624, at *3 (Iowa Ct. App. June 6, 2018). It is true that
courts should generally utilize the uniform jury instructions. State v. Davis, 951
N.W.2d 8, 17 (Iowa 2020). But deviations are allowed, especially when “[t]he
deviations from the uniform instruction do not significantly change the definition of
[the crime] and do not deprive defendant of any defense.” State v. Hatter, 414
N.W.2d 333, 336 (Iowa 1987). Although the addition of “legally” into the
instructions would have made it more difficult for Hunziker to argue her belief that
she was morally justified in murdering her ex-husband, it is not the instructions that
deny her that defense—it is the case law. And, encouraging the jury to replace
our settled case law and rely on Hunziker’s moral beliefs would lead to jury
nullification, or “the jury’s ‘right to acquit a defendant even if its verdict is contrary
17
to the law and evidence,’” State v. Leedom, 938 N.W.2d 177, 193 (Iowa 2020)
(citation omitted), which our supreme court has prohibited, Kinseth v. Weil-McLain,
913 N.W.2d 55, 72 (Iowa 2018); State v. Willis, 218 N.W.2d 921, 924–25 (Iowa
1974) (“Jury nullification exalts the goal of particularized justice above the ideal of
the rule of law. We are persuaded the rule of law should not be subverted.”). The
jury instructions as modified were not a misstatement of the law and do not warrant
disturbing her conviction.
C. Weight of the evidence.
In her motion for a new trial, Hunziker challenged the jury’s verdict, arguing
it was contrary to the weight of the evidence. The district court denied the motion
as to the weight of the evidence, stating that the verdict was “well supported by the
evidence in the record.” “We review a denial of new trial on the ground the verdict
is contrary to the weight of the evidence for abuse of discretion,” State v. Veal, 930
N.W.2d 319, 328 (Iowa 2019), but we do not review the ultimate question of the
balance of credible evidence, State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003).
“A verdict is contrary to the weight of the evidence ‘where a greater amount of
credible evidence supports one side of an issue or cause than the other.’” State
v. O’Shea, 634 N.W.2d 150, 154 (Iowa Ct. App. 2001) (citation omitted). This is
an uncommon occurrence—“a district court may invoke its power to grant a new
trial on the ground the verdict was contrary to the weight of the evidence only in
the extraordinary case in which the evidence preponderates heavily against the
verdict rendered.” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016).
Hunziker lays out the evidence that points to her mental condition at the
time of the killing and her perceived moral justification for the murder. Still, both
18
expert witnesses made clear that Hunziker knew that her actions were legally
wrong—a lynchpin of Iowa’s insanity determination as discussed above. No
evidence was presented to contradict Hunziker’s understanding what she did was
legally wrong. See Reeves, 670 N.W.2d at 207 (“Moreover, there was no contrary
evidence in the record. This is not one of those cases where the jury had to believe
one of two people in arriving at a verdict.”). Hunziker’s evidence alone would have
disallowed the insanity defense. The court did not abuse its discretion in finding
that the weight of the evidence supported the verdict and denying the motion for
new trial.
D. Request for substitute counsel.
After filing two motions relating to her court-appointed counsel, Hunziker
believes the court erred in denying her motions for new counsel and failed to make
a sufficient inquiry into her claims. Our court has summarized the expectations for
appointed counsel:
A defendant has a right to counsel at all critical stages of the
criminal process. No defendant, however, has an absolute right to
be represented by a particular counsel. The grounds to justify the
appointment of substitute counsel include a conflict of interest,
irreconcilable conflict, or a complete breakdown in communication
between the defendant and counsel. The court must balance the
defendant’s right to counsel of his [or her] choice and the public’s
interest in the prompt and efficient administration of justice.
State v. Mott, 759 N.W.2d 140, 148–49 (Iowa Ct. App. 2008) (citations omitted).
We review the court’s decision not to appoint substitute counsel for an
abuse of discretion. State v. Tejeda, 677 N.W.2d 744, 749 (Iowa 2004). A failure
to address a request for substitute counsel, however, is reviewed de novo. Id.
Hunziker’s motions to the district court preserved her complaints of a conflict of
19
interest and a breakdown in communication with her counsel, as well as whether
the court provided sufficient inquiry into these complaints. See id. The State
argues that error was not preserved as to the inquiry issue, distinguishing
Hunziker’s claim from Tejeda, where no inquiry was made. In doing this, the State
conflates Hunziker’s two motions—two distinct claims with distinct rulings that must
be evaluated separately. As to the first motion, no inquiry was had, just as in
Tejeda. And, as to the second, the Iowa Supreme Court has not required any
motions beyond the request for substitute counsel to preserve a claimed error in
the court’s inquiry following a claim of breakdown in communication. See State v.
Lopez, 633 N.W.2d 774, 778, 780 (Iowa 2001) (analyzing the insufficient-inquiry
issue after some inquiry, ultimately deemed adequate, was made into a
defendant’s claim of a breakdown in communication). We will not now limit Tejeda
to only those cases that involve no inquiry. Error as to both claims has been
preserved.
Hunziker first argues that the district court should not have dismissed her
request for substitute counsel without sufficient inquiry. She asserted, in a pro se
motion before her arraignment, that she and her attorney had a conflict of interest.
“The test [for the presence of a conflict of interest] is whether ‘an attorney is placed
in a situation conducive to divided loyalties.’” Pippins v. State, 661 N.W.2d 544,
548 (Iowa 2003) (citation omitted). But the district court did not respond to the
motion until after the arraignment proceedings occurred. As the arraignment
concluded, the district court asked, “Anything further for the record?” Although
Hunziker attended, she made no request for new counsel and did not raise the
conflict concerns. Then, addressing the pro se motion about the conflict of interest,
20
the district court determined, “The application filed by the defendant, pro se, on
November 21, 2017, is denied. The defendant and court-appointed counsel
appeared at and completed arraignment proceedings on November 28, 2017,
without any renewal of the application.”
Courts have “the duty sua sponte to inquire into the propriety of defense
counsel’s representation when it ‘knows or reasonably should know that a
particular conflict exists.’” State v. Watson, 620 N.W.2d 233, 238 (Iowa 2000)
(quoting Cuyler v. Sullivan, 446 U.S. 335, 347 (1980)). Depending on what exactly
the court knew, different remedies are appropriate:
If an actual conflict existed and the trial court knew or should have
known of the conflict, yet failed to make inquiry, reversal is required.
If the record on appeal shows only the possibility of a conflict, then
the case must be remanded for a determination as to whether an
actual conflict existed and/or whether the defendant made a valid
waiver of his right to independent counsel.
Id. (internal citation and footnote omitted).
Focused on Hunziker’s pro se motion asserting a conflict, she urges the
district court’s failure to inquire about the specifics of that conflict requires a
remand to the district court so it can “inquire into whether an actual conflict existed.”
See State v. Powell, 684 N.W.2d 235, 239–41 (Iowa 2004) (holding defendant’s
complaints about counsel’s conflict of interest warranted a full inquiry by the court
such that the court abused it discretion by failing to do so and requiring a remand);
see also Connor v. State, 630 N.W.2d 846, 848–49 (Iowa 2001) (finding court’s
failure to discharge the duty to inquire into the alleged conflict mandated a remand
to make the required inquiry and to rule accordingly). Powell dealt with complaints
of a conflict where Powell’s attorney also represented a defendant in “another
21
criminal case directly related to [Powell’s]” and who “might be called as a witness.”
684 N.W.2d at 239. Connor addressed a conflict where the defendant filed an
ethics complaint against his trial counsel but was not allowed to alert the court to
the facts of the complaint. 630 N.W.2d at 849. The State distinguishes the Powell
and Connor cases from the facts here and asks us to address the issue under
State v. Smitherman, 733 N.W.2d 341, 347–49 (Iowa 2007) (noting inquiry in some
form, without objection and with acquiescence in the representation, “ameliorates
the suspicion of harm and lessens the need for a rigid rule of automatic reversal”).
Hunziker’s allegation alone is not sufficient to raise her claim to an actual
conflict. See State v. McKinley, 860 N.W.2d 874, 880 (Iowa 2015) (“A conflict does
not exist just because one party asserts it does.”). The law rarely requires magic
words, and the unsubstantiated use of “conflict of interest”14 cannot here cast a
reversal charm. State v. Price, No. 13-0857, 2014 WL 1494952, at *4 (Apr. 16,
2014) (“We have no knowledge of what it was [the appellant] termed a ‘conflict of
interest.’ We are unwilling to hinge the appropriate remedy based on a layman's
use of the term ‘conflict of interest’ without any amplification.”). The record offers
no support for Hunziker’s claim of conflict.15 On our de novo review, however, the
14 Our supreme court discussed conflict in Powell, saying:
A conflict of interest places a defense attorney in a situation
inherently conducive to divided loyalties. The phrase “conflict of
interest” denotes a situation in which regard for one duty tends to
lead to disregard of another; where the lawyer's representation of
one client is rendered less effective by reason of his representation
of another client; or where it becomes a lawyer's duty on behalf of
one client to contend for that which his duty to another client would
require him to oppose.
684 N.W.2d at 238 (quoting Pippins, 661 N.W.2d at 238).
15 The only explanation for her complaint in the record comes from her competency
evaluation. In that report, the physician noted that Hunziker did not originally trust
22
allegation alone should have prompted the court to inquire—if Hunziker’s first
allegation been her only, our outcome might be different. Still, remand is
unnecessary because Hunziker had a second opportunity to discuss any conflict
she perceived where the district court did directly ask about her complaints with
counsel.
Like a conflict of interest, courts also have a duty to inquire when a party
asserts a breakdown in communication between them and their counsel. Tejeda,
677 N.W.2d at 750. A breakdown in communication that would create
unconstitutional representation does not occur with only “general frustration and
dissatisfaction with defense counsel expressed by a defendant . . . . The focus of
the inquiry is not on the defendant’s relationship with his or her attorney, but ‘the
adequacy of counsel in the adversarial process.’” State v. Bogg, 741 N.W.2d 492,
506 (Iowa 2007) (citation omitted). A court need not conduct a full hearing upon
an allegation of a breakdown in communication—it must only inquire into the
concern. Tejeda, 677 N.W.2d at 751. Adequate inquiry is made when “the
presiding judge, when apprised of a potential breakdown in communication,
personally asked the defendant at a hearing to explain the nature of the
communication problem.” Id. When the defendant provides no reason to believe
that such a breakdown has occurred, a court does not abuse their discretion in
denying the request for substitute counsel. Lopez, 633 N.W.2d at 781.
In Hunziker’s second motion for new counsel, she said, “I would like to
switch attorneys. I have been here for about a year & a half—I don’t see [counsel]
her attorney, potentially because she was hearing voices through the jail’s
intercom system that said her appointed counsel was not good.
23
working on my case. She is very hard to get ahold of and I rarely talk to her or see
her. Please give me a different attorney.” Upon receiving the motion, the court
conducted a hearing and allowed Hunziker to explain her concerns, asking her
directly to explain the issue. Hunziker did so, stating that her counsel was difficult
to get a hold of and had been sick. The district court asked Hunziker if there was
“anything else.” Hunziker replied, “No, that’s it.” Notably, Hunziker made no
comment about any conflict of interest she had with her trial counsel or the public
defender’s office specifically.
Then, the district court also asked Hunziker’s counsel’s input—counsel
explained that she and Hunziker had discussed some solutions to ensure they
could be in contact. The district court determined that the concern was “well short
of the standard that would need to be met before [the court] would remove the
counsel from [Hunziker’s] case and appoint different counsel to represent [her].”
With that background, the district court did make the appropriate inquiry
and, in its discretion, found that a complete breakdown between counsel and
Hunziker had not occurred. After drawing out all of Hunziker’s issues with her
counsel, the court was assured that Hunziker’s concerns were addressed. The
district court’s follow up order confirmed “[trial counsel] shall address [Hunziker’s]
concerns regarding preparation for the upcoming trial.” Likewise, we find no
evidence in the record supporting a conflict of interest claim, even in laymen terms.
Hunziker failed to show sufficient cause to remove her trial counsel. See Lopez,
633 N.W2d at 778–79. We find the district court did not abuse its discretion and
affirm both denials of the motions for substitute counsel.
24
E. Ineffective assistance of counsel and the failure to properly
preserve sufficiency-of-the-evidence challenge.
In her first motion for judgment of acquittal, Hunziker argued that the facts
presented by the State “failed to generate a jury question with respect to the
elements of the offense.” In her renewal of the motion at the close of her evidence
presentation, Hunziker repeated this concern without addressing a specific
element of the crime and asserted she had met her burden for the insanity defense.
She admits this did not preserve a sufficiency-of-the-evidence claim for appeal.
See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004). Because of this,
Hunziker claims her trial counsel was ineffective. However, because disposition
was entered in January 2020, she recognizes that Iowa Code section 814.7
prevents her from raising an ineffective-assistance-of-counsel claim on direct
appeal. See State v. Damme, 944 N.W.2d 98, 103 n.1 (Iowa 2020) (providing that
the amended section 814.7 applies to cases where the judgment was entered on
July 1, 2019 or later). She challenges the statute based on separation of powers,
due process, and equal protection.
The State argues that Hunziker’s constitutional challenges to Iowa Code
section 814.7 were not raised in the district court and so cannot be raised on
appeal. While it is true that these claims were not made before, Hunziker did not
have to raise an ineffective-assistance-of-counsel claim in the district court, so she
had no opportunity to challenge the constitutionality of section 814.7 until on
appeal. The underlying principles of error preservation are to “afford[] the district
court an opportunity to avoid or correct error” and “provid[e] the appellate court
with an adequate record in reviewing errors purportedly committed.” State v.
25
Ambrose, 861 N.W.2d 550, 555 (Iowa 2015) (altered for readability). As neither of
these principles would have been furthered by Hunziker attempting to raise this
issue to the district court, we take on Hunziker’s constitutional challenges to
section 814.7. See State v. Treptow, 960 N.W.2d 98, 104, 107 (Iowa 2021); see
also State v. Trane, 934 N.W.2d 447, 464 (Iowa 2019) (holding post-trial motions
to the district court are not the appropriate time to raise claims of ineffective
assistance); cf. State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997) (addressing the
merits of the claim where “[u]nder the circumstances of the case” the defendant
“raised the constitutional issues at the earliest available opportunity”). Still, though
we address her concerns here, they are all well settled in Iowa case law.
The Iowa Supreme Court has already determined “section 814.7 does not
violate the separation-of-powers doctrine.” State v. Tucker, 959 N.W.2d 140, 151
(Iowa 2021). Nor does it inhibit due process and the right to effective counsel on
appeal—under Iowa law, “[t]he right to the effective assistance of appellate counsel
where direct appeal is available does not create an entitlement to direct appeal as
a matter of right and a further entitlement to present any and all claims on direct
appeal as a matter of right.” Treptow, 960 N.W.2d at 107. Hunziker’s separation-
of-powers and due process arguments fail.
What remains is Hunziker’s equal protection claim. When we review equal
protection, we begin with “determin[ing] whether the challenged law makes a
distinction between similarly situated individuals with respect to the purposes of
the law.” Id. at 104. Hunziker argues that, among all those criminal defendants
who have been wrongly convicted based on insufficiency of the evidence, those
who had effective counsel are treated differently than those who did not. Those
26
who had effective counsel can address their complaint on direct appeal, while
those whose counsel was ineffective are left to wait for postconviction relief. We
recently considered a similar case in State v. Crawford, No. 19-1506, 2021 WL
3392798, at *1 (Iowa Ct. App. Aug. 4, 2021). There, the appellant argued that “the
law distinguishes between those defendants who have been convicted based upon
insufficient evidence who were properly represented and those who were
improperly represented.” Crawford, 2021 WL 3392798, at *1. As we pointed out
in that case, the Iowa Supreme Court has already decided that these groups are
not similarly situated, and so an equal protection argument based on these
distinctions must fail. Treptow, 960 N.W.2d at 105–06 (“[T]hose asserting claims
other than a claim of ineffective assistance of counsel are not similarly situated to
those asserting claims of ineffective assistance of counsel. A claim of ineffective
assistance of counsel is more than an error preservation device; it is a substantive
legal claim with its own elements.”); State v. Dudley, 766 N.W.2d 606, 616 (Iowa
2009) (“If a plaintiff cannot show preliminarily that persons in the two classes are
similarly situated, we have concluded the court need not determine whether there
is a constitutionally adequate basis for the persons’ different treatment.”). As a
result, Hunziker’s equal protection argument cannot succeed.
In this same vein, if we do not allow her to claim ineffective assistance of
counsel on direct appeal, Hunziker asks us to adopt plain-error review. The Iowa
Supreme Court has repeatedly declined to adopt the plain-error rule. See, e.g.,
State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016). We cannot do so now.
27
Ultimately, as to Hunziker’s claim her counsel was ineffective for failing to
preserve a sufficiency-of-the-evidence claim for appeal, we can only preserve that
issue for postconviction relief.
III. Conclusion.
After addressing each of Hunziker’s challenges, we affirm Hunziker’s
conviction.
AFFIRMED.