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Keyes v. State

Court of Appeals of Iowa

March 22, 2017

STEPHEN SHAWN KEYES, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Linn County, Marsha M. Beckelman (first motion to amend), Mary E. Chicchelly (second motion to amend), and Lars G. Anderson (trial), Judges.

         Stephen Keyes appeals the denial of his application for postconviction relief (PCR), asserting that his trial counsel provided ineffective assistance and that the PCR court erred in denying his motions to amend his application.


          Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.

          Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., and Doyle and McDonald, JJ.

          DOYLE, Judge.

         A jury found Stephen Keyes guilty of two counts of first-degree murder, and he was sentenced to life in prison. We affirmed Keyes's convictions on direct appeal, but we preserved his ineffective-assistance-of-counsel claims for possible postconviction-relief (PCR) proceedings. See State v. Keyes, No. 97-1997, slip op. at 1-5 (Iowa Ct. App. May 26, 1999). Keyes timely filed a PCR application in 1999, but trial did not take place until 2014. The PCR court denied the application in early 2015. Keyes appeals, raising two claims: (1) trial counsel was ineffective regarding the cross-examination of Keyes's eight-year-old son, and (2) the PCR court abused its discretion in denying his motions to amend the PCR application. We conclude that Keyes did not meet his burden to prove his trial counsel was ineffective and that the PCR court did not abuse its discretion in denying his motions to amend his PCR application. We therefore affirm.

         I. Background Facts and Proceedings.

         In the early morning hours of December 26, 1996, Keyes's wife, Sandra, and two-year-old son, Joshua, died in a house fire. The State accused Keyes of setting the fire to collect insurance proceeds and charged him with two counts of murder. Keyes was tried to a jury in September 1997.

         Special Agent Michael Hiles was the State's chief fire investigator on the case. He testified concerning accelerant detection at the fire scene by a dog trained for this purpose. See id. at 2. Hiles was also allowed to demonstrate the dog's ability to detect a drop of gasoline concealed in the courtroom. See id. "Other inculpatory evidence included Keyes's failing marriage to Sandra, threat to kill her, and recent purchase of substantial life and renter's insurance." Id. Keyes was found guilty of two counts of first-degree murder and sentenced to life in prison. See id.

         On direct appeal, this court concluded the State's foundation for admission of Hiles's expert testimony concerning the reaction of a dog trained in accelerant detection was sufficient. See id. at 3-4. We also found no error in the dog's in-court demonstration. See id. at 5. We affirmed Keyes's convictions and sentence and preserved for postconviction proceedings Keyes's ineffective-assistance-of-counsel claims that "his trial counsel was ineffective in (1) failing to object to evidence of [Keyes's] 'check kiting' offenses; and (2) failing to cross-examine [Keyes's] son Michael about his recall of the events surrounding the morning of the fire." Id.

         Keyes timely filed his pro se PCR application on November 1, 1999, setting forth three claims of ineffective assistance of counsel. He contended his trial counsel was ineffective in (1) failing to object to evidence of other crimes, i.e., Keyes's check kiting offenses, (2) failing to cross-examine his eight-year-old son Michael concerning the boy's recall of events at the time of the fire, and (3) failing to object to the warrantless search and seizure of Keyes's clothing. Keyes was appointed PCR counsel. As the PCR court so aptly noted: "From there, this case . . . had a sad history of progression." Keyes's eighth PCR counsel was appointed in April 2007.

         In September 2008, PCR counsel moved for a continuance. Counsel advised the court that "in spite of the multiple attorneys that [had] been appointed, very little was done" in the case and that he had to "essentially begin from scratch." Due to the size and complexity of the case, counsel requested an extension of one year to develop the PCR record. Counsel also requested depositions and preparation of transcripts at the State's expense, stating Keyes's expert had "now completed his preliminary analysis, " and the case was "finally ready for depositions." The court granted Keyes's requests.

         In an April 2009 motion, PCR counsel advised that Keyes had "obtained the services of a Dr. Gerald Hurst in Austin, Texas, " who had worked for Keyes pro bono and "prepared a 57 page report finding significant infirmities in the arson investigation, " and counsel requested funds for the expert to travel to give testimony, as well as funds for other experts. Dr. Hurst's September 3, 2008 report was attached to the motion. The report was very critical of Hiles, stating: "The origin and cause investigation in the Keyes case was an exercise based on concepts which had been long relegated to the category of old wives tales." The State resisted, but the PCR court granted funding for two of three requested experts.

         At the end of 2010, PCR counsel requested another continuance and a trial-scheduling conference. Following the conference, the court entered a scheduling order setting deadlines of February 15, 2011, for amendments to pleadings and March 15, 2011, for Keyes's designation of experts. Trial was set for January 9, 2012.

         On March 15, along with a designation of experts, PCR counsel filed a motion to amend the PCR application. The motion stated counsel "inadvertently tickled this deadline for March 15" and learned of the error when talking to the State's counsel. PCR counsel took full responsibility for missing the deadline by twenty-eight days and requested the fault not be placed on Keyes. PCR counsel also stated he "had no tactical advantage for missing the deadline, and the contents of his Amended Application merely restate many of the core conclusions" of Dr. Hurst's report, which the State had had since April 2009. With the trial some ten months away, counsel believed the State had adequate time to prepare, but Keyes did not object to a continuance, including the resetting of deadlines, if the State needed additional time. The proposed amended application asserted fourteen grounds, including the original three claims of ineffective assistance of counsel. The State resisted, and the PCR court denied the motion, concluding it substantially changed the issues, prejudiced the State, and would likely require a continuance.

         A status hearing was held in December 2011, and Keyes and his counsel requested the trial date be reset. The State did not resist a continuance, but it "reserved the right to object in the future to any further request by [Keyes] to amend the [application]." The court granted the motion to reset the trial date.

         Another status hearing was held in June 2013, and trial was again reset- for September 2014. In July 2014, PCR counsel filed a second motion seeking to amend the PCR application. The proposed amended application raised ten grounds, including two of the original ineffective-assistance-of-counsel claims. Among other things, the motion advised that since the first motion to amend, the Iowa Fire Marshal had officially adopted National Fire Protection Association (NFPA) 921, a Guide for Fire and Explosion Investigations.[1] The State again resisted, and the PCR court denied the motion in August 2014 for the same reasons it stated in its prior order.

         Trial commenced in September 2014 on the three ineffective-assistance-of-counsel claims asserted by Keyes in his original 1999 PCR application. The PCR court declined to reconsider the rulings previously made on the earlier motions to amend. Though the court did not consider Keyes's experts' testimony at trial, the court did permit Keyes to elicit their testimony by way of an offer of proof for appellate review. On January 30, 2015, the PCR court entered its ruling denying Keyes's ineffective-assistance-of-counsel claims.

         Keyes appealed. In June 2015, the Iowa Supreme Court entered an order for limited remand to allow the PCR court to rule on Keyes's motions for a new trial and to amend or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2).[2]The PCR court denied the motions on August 24, 2015. The matter then bounced back to the supreme court and was transferred to this court in December 2016.

         On appeal, Keyes argues a single ground of ineffective-assistance-of-counsel: that his trial counsel was ineffective for failing to impeach or more effectively cross-examine his then eight-year-old son about the inconsistencies in his trial testimony compared to the child's statements given to a detective the day of the fire. Keyes also argues the PCR court erred or abused its discretion when it denied his motions to amend the PCR application. We begin with Keyes's ineffective-assistance-of-counsel claim.

         II. Ineffective Assistance of Counsel.

         A. Standard of Review ...

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