Appeal from the Iowa District Court for Sac County, Kurt L. Wilke, Judge.
The opinion of the court was delivered by: Potterfield, P.J.
Tracey Ann Richter appeals from her conviction of first-degree murder. AFFIRMED.
Heard by Potterfield, P.J., and Danilson and Tabor, JJ.
Tracey Ann Richter appeals from her conviction of first-degree murder, contending the evidence was insufficient to rebut her defense of justification, the trial court abused its discretion in excluding the psychological testimony of her expert, and she was denied the effective assistance of counsel when her attorney failed to challenge the weight of the evidence. Because we find there was substantial evidence that the killing was not justified, the trial court did not abuse its discretion in limiting the expert's testimony, and counsel was not ineffective, we affirm the conviction.
On December 13, 2001, Richter shot and killed Dustin Wehde in her home in Early, Iowa. A trial information was filed against her in Sac County almost ten years later on August 5, 2011, charging her with murder in the first degree. Richter pleaded not guilty and filed a notice of an affirmative defense of justification. Trial was moved to Webster County.
There was no question Richter shot and killed Wehde. Richter used two different guns, and the autopsy showed Wehde had been shot nine times. Three shots were to the back of his head and neck; the trajectory of some of those wounds indicated the shots came from above Wehde. At least one shot occurred after blood had started to congeal. The crucial question at trial was whether Richter was justified in shooting Wehde.
The jury heard two very different stories. Each party has laboriously set out in their briefs the evidence supporting their version of events. The State emphasizes evidence showing Richter intentionally, deliberately, and premeditatedly killed Dustin Wehde to frame her ex-husband. For example, the State's crime scene reconstructionist, Rodney Englert, testified that the trajectories of the bullets and the wounds to Wehde indicated the initial shots could have been fired from an area in the southeast corner of the master bedroom near the gun safe and that the shots could have been fired as Tracey was crouched or kneeling. Englert stated later shots to Wehde's head would have been fired from above Wehde and that there was congealed blood on Wehde's face indicating a shot was fired into his head after he was dead.
Mary Higgins had been a good friend of Richter's in Early. She told the jury that shortly after the shooting, Richter and her family went on a several-week trip to Australia. When Richter returned in February, Richter told Higgins about the shooting "[l]ike she was telling me her grocery list. She basically had no emotion to it." Richter told Higgins that she "unloaded" the gun as she was being pulled at by the two intruders; she then got up and stepped over what she thought was dirty clothes to check on her children. Richter told Higgins,
She took the two-well, the three children down the hall. And as they were going down the hall, there was a body there and she told me that the body was moving and she stood over him and said, "Stop moving" or either it was, "I'll blow your fucking brains out" or "I'll blow your head off."
And she told me he continued to move and she stood over him and she fired the gun until he quit moving. Then they proceeded down the stairs.
Higgins further testified that Richter's son, Bert, came into the room while Richter was relaying the story and became "extremely agitated," began banging his head against the table, and stated "Why did you go up there? Why did you go back up there? You didn't have to shoot him. You didn't have to kill him."
Higgins further testified that Richter told her that the police found an older model computer and a pink notebook in the car left in her driveway the night of the purported home invasion. Richter described to Higgins details of the contents of that pink notebook, which included contact information for her first husband, Dr. John Pitman, with whom Richter was involved in a custody dispute. Richter told Higgins the notebook would prove her ex-husband was involved.
There was evidence that the contents of the notebook had been kept from the public by law enforcement, and Richter should not have known what was written in it. Higgins recounted an incident in 2004 when Richter pointed at Higgins face and told her "to forget about the pink notebook." The State argued that the contents of the notebook, referring to Richter's ex-husband and his detailed plans to have Richter and Bert killed, came from Richter herself in an attempt to win the custody dispute over Bert.
As for the defense, Richter points out testimony supporting her claim
that she acted in self-defense during a home invasion.*fn1
Richter claimed she acted in self-defense, giving several
statements to police that two (or three) men broke into her home and
accosted her, choking her with a pair of panty hose until she was
unconscious. She was able to get to a gun safe in the master ...