IN THE COURT OF APPEALS OF IOWA
No. 15-1061
Filed May 3, 2017
ALLEN KILLINGS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson
(pretrial) and Lawrence P. McLellan (trial), Judges.
Applicant appeals from the denial of his claims for postconviction relief.
AFFIRMED.
Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Bower, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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MCDONALD, Judge.
Allen Killings was convicted of murder in the first degree. This court
affirmed his conviction on direct appeal. See State v. Killings, No. 09-0739, 2010
WL 3894161, at *1 (Iowa Ct. App. Oct. 6, 2010). Killings now appeals from the
denial of his application for postconviction relief, contending his postconviction
counsel was ineffective in two respects. First, Killings claims his postconviction
counsel constructively denied Killings the right to counsel by failing to present
any meaningful challenge to the conviction. Second, Killings argues his
postconviction counsel was ineffective for failing to challenge the felony-murder
instruction provided to the jury.
We begin by noting there is no constitutional right to postconviction relief,
postconviction counsel, or effective assistance of postconviction counsel. See
Williams v. Pennsylvania, 136 S.Ct. 1899, 1920 (2016) (Thomas, J., dissenting);
Montgomery v. Louisiana, 136 S.Ct. 718, 746 (2016) (Thomas, J., dissenting)
(“Because the Constitution does not require postconviction remedies, it certainly
does not require postconviction courts to revisit every potential type of error.”).
The legislature has created a postconviction relief procedure codified in chapter
822 of the Iowa Code. The Iowa Supreme Court has recognized a statutory right
to counsel in chapter 822 proceedings and a corresponding statutory right to the
effective assistance of postconviction counsel. See Dunbar v. State, 515 N.W.2d
12, 15 (Iowa 1994).
To prevail on a claim of ineffective assistance of postconviction counsel,
the applicant must “ultimately show that his attorney’s performance fell outside a
normal range of competency and that the deficient performance so prejudiced
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him as to give rise to the reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different.” Id. Our review of
ineffective-assistance claims—whether constitutional or statutory—is de novo.
See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).
By way of background, on July 9, 2007, a passing motorist observed what
appeared to be dead body on a porch. The motorist and her passenger stopped
to investigate. They discovered a dead body, later identified as Margaret
Gottschalk. They called the police. Evidence collected from the scene was sent
to the Iowa Department of Criminal Investigation for DNA testing. DNA from
blood on the victim’s clothing matched Allen Killings. DNA obtained from a
cigarette butt at the scene matched the victim and Killings. Killings denied
involvement in Gottschalk’s death, but admitted “he might have had sex with her.
Later, he denied that.” Killings, 2010 WL 3894161, at *1.
At trial, the jury was instructed on premeditated murder and felony murder
as follows:
The State must prove all of the following elements of murder
in the first degree:
1. On or about July 9, 2007, the defendant beat or strangled
[the victim].
2. [The victim] died as a result of being beaten or strangled.
3. The defendant acted with malice aforethought.
4. Either:
a. The defendant acted willfully, deliberately,
premeditatedly, and with specific intent to kill [the
victim]; or
b. [The d]efendant was participating in either the
forcible felony of robbery or assault with intent to
commit sexual abuse.
If the State has proved all of the elements, the defendant is guilty of
murder in the first degree. If the State has failed to prove any one of
the elements, you will then consider the charge of murder in the
second degree . . . .
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Id. at *2. Killings did not object to the instruction or the form of verdict. The jury
returned a general verdict, finding Killings guilty of murder in the first degree.
We first address Killings’ claim of structural error. Beyond mere ineffective
assistance, “[d]efense counsel . . . may also commit structural errors.” Lado v.
State, 804 N.W.2d 248, 252 (Iowa 2011). Structural errors “affect[] the
framework within which the trial proceeds.” Id. The supreme court has
recognized structural error occurs when:
(1) counsel is completely denied, actually or constructively, at a
crucial stage of the proceeding; (2) where counsel does not place
the prosecution’s case against meaningful adversarial testing; or (3)
where surrounding circumstances justify a presumption of
ineffectiveness, such as where counsel has an actual conflict of
interest in jointly representing multiple defendants.
Id. In cases of structural error, no showing of prejudice is necessary “as the
criminal adversary process itself is ‘presumptively unreliable.’” Id. (citation
omitted).
Killings contends his postconviction counsel was inattentive to his case
and failed to subject the conviction to meaningful adversarial testing. The record
reflects Killings filed his application for postconviction relief in April 2011. An
attorney was appointed to represent Killings. An amended application was filed
on or about July 15, 2011.1 Trial was set for January 17, 2012. Trial was
repeatedly delayed, leading to dismissal of the case pursuant to Iowa Rule of
Civil Procedure 1.944 in January 2013 and reinstatement in March 2013. In April
2013, Killings filed a motion requesting new counsel. That motion was denied.
Trial was reset for June 30, 2014.
1
In total, five amendments were filed, the last in August 2014.
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On April 14, 2014, Killings filed a motion to proceed pro se but also
requesting a new attorney. On May 2, the parties were scheduled to perpetuate
the testimony of Killings’ trial attorneys. Killings was scheduled to participate by
phone, but he hung up before the depositions started. Killings’ counsel stated,
“At this time [Killings has] instructed me not to participate as his attorney, so I’ll
just sit here and represent him in a passive participation, I guess.”2 Hearing on
Killings’ motion was held May 14, after which the court allowed Killings to
proceed pro se while ordering the same lawyer to continue to serve as standby
counsel. On June 30, the parties appeared for trial, and Killings asked the court
to reconsider its ruling and continue the trial. The court continued the trial and
reappointed counsel to represent Killings.
Trial occurred on October 20, 2014. The trial began with the following
exchange between Killings and his postconviction counsel:
Q. Mr. Killings, you’ve instructed me that you wanted to
proceed in this case by yourself; is that correct? Is that a correct
summary of how this is going? A. Say that again, please.
Q. Well, when I spoke with you, Mr. Killings, you had
instructed me that you didn’t want to help me prepare for today’s
hearing, but what you wanted to do was to have your chance to
speak to the judge; correct? A. That is absolutely not true.
The district court, the lawyers, and Killings then had an extensive discussion on
the record regarding postconviction counsel’s preparation of the case and the
issues to be tried:
THE COURT: Let me ask this question: Besides the
depositions of the two attorneys, [counsel], what other—without
getting into obvious attorney-client privilege, what other things have
you done to prepare the case?
2
Counsel did briefly cross-examine both trial attorneys.
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[DEFENSE COUNSEL]: Well, Your Honor, I researched the
fact—well, first of all, went through all of the transcripts from the
trial, the depositions of all of the witnesses that the State had
called, and attempted to identify all the possible witnesses that
were available for depositions.
Then I have met with Mr. Killings several times in person
down there, and we’ve gone over some of this information. But he
hasn’t been forthcoming with which individuals—he’s never sent me
a specific list of who he wanted to depose on any of these various
witnesses.
I believe, without looking at my notes, that there were thirty-
five potential people that we identified. And on its face it seemed—
most of whom had already been deposed at one point prior to trial
or some of whom had testified at the trial.
So we’d already had their statements at two other points,
and I was trying to work with him to get that list down to discovering
new evidence and not just simply rehashing the original issues.
Again, that never came to fruition past me assembling that.
Regarding that, I’ve done—I’ve got copies of legal research,
most of which I believe I’ve sent to him or provided to him,
regarding his issues. And he’s had opportunities to speak with me
on the phone, when he’s chosen to take those. It hasn’t been
recently.
Also, correspondence. I’ve attempted to correspond with
him on a regular basis about mostly, again, the lack of
communication on his side in the preparation of the case. So I
guess I feel that I’ve done a sufficient and reasonable amount of
preparation, as far as I could.
In terms of actually trying the case, it’s difficult when, again,
he hasn’t been forthcoming with how he wants me to handle the
issues except to say he wants me to handle the issues.
THE COURT: Are you prepared to ask Mr. Killings whatever
questions you need to ask today?
[DEFENSE COUNSEL]: The—again, the representation that
was made to me was that he—it’s the same one that he’s made to
the Court—was that he did not want me to talk to him, that he was
unhappy with this, and that we would speak in court.
So that’s why I was attempting to set that at the beginning,
Your Honor.
The matter proceeded to a trial, of sorts. Killings asserted his lawyer was
failing to represent him adequately and was, in fact, colluding with the State. He
asked the district court to rule on his application without offering any witnesses or
evidence. The State entered ten exhibits—eight from the underlying trial and the
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transcripts of the depositions of Killings’ two trial attorneys. The entire
proceeding appears to have taken forty minutes. Counsel did not file a trial brief,
witness list, or exhibit list. Counsel did not call any witnesses or present
evidence at trial. The district court issued a thorough ruling addressing each of
the claims raised in Killings’ application for postconviction relief.
We conclude Killings’ claim of structural error is not founded. It is clear
from the record that postconviction counsel advocated for Killings zealously
under the circumstances. It was Killings, and not his postconviction counsel, who
obstructed any progress on the case by refusing to cooperate in the
postconviction proceeding and the postconviction trial. Despite Killings’
obstructionist and uncooperative behavior, he was present and afforded the
opportunity to participate in the postconviction trial. Cf. Dockery v. State, No. 13-
2067, 2016 WL 351251, at *4 (Iowa Ct. App. Jan. 27, 2016). The hearing was
reported. The claims were largely legal claims for which little, if any, evidentiary
support was needed. The testimony of Killings’ trial attorneys was submitted by
deposition. See id. Structural error is rare. See Washington v. Recuenco, 548
U.S. 212, 218 (2006). Attorney-client disagreement and conflict is common.
Killings’ claim fails.
We next address Killings’ claim his postconviction counsel was ineffective
in failing to challenge the felony-murder instruction. Specifically, Killings
contends assault with intent to commit sexual abuse—the predicate felony
here—cannot serve as the predicate felony pursuant to State v. Heemstra, 721
N.W.2d 549, 558 (Iowa 2006). Heemstra held “if the act causing willful injury is
the same act that causes the victim’s death, the former is merged into the murder
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and therefore cannot serve as the predicate felony for felony-murder purposes.”
Heemstra, 721 N.W.2d at 558. Killings also cites State v. Tribble, 790 N.W.2d
121, 126 (Iowa 2010), for the proposition that the act causing death must be a
separate act from the underlying felony.
Killings’ reliance on Tribble and Heemstra is misplaced.
In [Tribble], substantial evidence supported a finding that an
act of strangulation, choking, or drowning was a factual cause of
[the victim] Tracy’s death by asphyxia. Substantial evidence also
supported a finding of the commission of the forcible felony of willful
injury causing serious injury based on a separate earlier act of
blunt-force trauma to Tracy’s head. The facts further supported a
finding that the head trauma and asphyxia were inflicted by
separate acts, with the head trauma occurring first followed by a
separate act resulting in the asphyxia. Thus, separate,
independent acts were identified by the evidence. Moreover, the
evidence showed the act causing asphyxia was a factual cause of
death. In fact, Tribble [did] not contest this evidence.
Consequently, it is not important under the felony-murder analysis
whether or not the separate earlier acts of blunt-force trauma were
also a factual cause of death. If the acts of blunt-force trauma were
also a factual cause of death, felony murder applie[d] in [that] case
because a separate act of asphyxia was also a factual cause. If the
acts of blunt-force trauma were not a factual cause of death, felony
murder likewise applies because the blunt-force trauma would
satisfy the willful-injury elements of acts intended to cause serious
injury and causing serious injury, followed by a separate act
causing death by asphyxia.
Tribble, 790 N.W.2d at 129. This ruling allows the State to submit a felony-
murder theory where there were two independent assaults, even if each assault
was a factual cause of death. This, for Killings, is the trouble with Tribble.
In this case, there was substantial evidence of two independent assaults.
Dr. Schmunk testified Gottschalk died from “swelling of the brain” caused by a
“combination of the blows and injury directly to the brain and probably some neck
compression.” The evidence suggested to him thirty-eight separate impacts. In
9
his opinion, “blunt impact to the head” was the cause of death but another
“significant condition,” meaning “a condition contributing to death but not directly
related to the blunt impact,” was “manual strangulation.” Either would have been
sufficient to cause Gottschalk’s death. Evidence also suggested Gottschalk was
moved from the site of the first assault, which was likely the backyard of the
house, to the site of the second assault. In closing argument, the State
highlighted several facts supporting movement: a distinctive bedspring behind
the house aligned with lines on Gottschalk’s forehead; Gottschalk had sticks and
leaves in her hair; and there was a “dirt disturbance” behind the house along with
dirt stains on Gottschalk’s clothing. Based on this evidence, the State was
justified in submitting its theory of the case. Postconviction counsel did not
breach a duty in failing to raise a claim without merit. See Nguyen v. State, 878
N.W.2d 744, 754 (Iowa 2016).
Killings’ Heemstra challenge fails for an additional reason—namely,
Heemstra’s merger rule is inapplicable. As described in the direct appeal, there
was sufficient evidence of assault with intent to commit sexual abuse, the
predicate felony, to submit the felony-murder instruction to the jury:
In the case before us, the victim was savagely beaten. Her
shorts, underwear, and shirt were removed. Her body was placed
in an unnatural position with her legs spread apart. The
defendant’s blood was found upon the victim’s shorts and
underwear. We agree with the district court that these facts raise a
reasonable inference that the defendant assaulted the victim with
the intent to commit sexual abuse sufficient to submit the question
to the jury.
Killings, 2010 WL 3894161, at *4. This felony does not merge with the murder.
Like arson, it is “a different crime altogether, one that requires the showing of a
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different intent.” State v. Tucker, 810 N.W.2d 519, 522 (Iowa Ct. App. 2012).
The same is true of “robbery or larceny or burglary or rape.” People v. Moran,
158 N.E. 35, 36 (N.Y. 1927); see also State v. Pollard, No. 13-1255, 2015 WL
405835, at *4 (Iowa Ct. App. Jan. 28, 2015). Postconviction counsel did not
breach a duty in failing to raise a claim without merit. See Nguyen, 878 N.W.2d
at 754.
Finally, even assuming a breach occurred, Killings failed to establish
prejudice. The key issue in the trial was not the assailant’s intent. See, e.g.,
State v. Harrington, No. 03-0824, 2004 WL 360508, at *5 (Iowa Ct. App. Feb. 27,
2004) (“Given the brutality of the nature of the killing, we conclude the district
court could reasonably conclude Harrington possessed malice aforethought and
acted willfully, deliberately, and with premeditation.”). Rather, the issue at trial
was identity. The jury concluded the unknown assailant was Killings. A different
jury instruction would not have changed that nor would it have changed the
outcome of the case. See Dunbar, 515 N.W.2d at 15.
AFFIRMED.