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Gailey v. State

Court of Appeals of Iowa

July 19, 2017

DENIS GAILEY, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Webster County, William C. Ostlund, Judge.

         Denis Gailey appeals the district court's denial of his application for postconviction relief. AFFIRMED.

          Rockne O. Cole of Cole Law Firm, P.C., Iowa City, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., Potterfield, J., and Mahan, S.J. [*]

          MAHAN, Senior Judge.

         Denis Gailey appeals the district court's denial of his application for postconviction relief following his 2008 convictions for two counts of kidnapping in the first degree, one count of arson in the second degree, and one count of burglary in the first degree. Upon our review, we affirm the court's order denying Gailey's application for postconviction relief.

         I. Background Facts and Proceedings

         In its ruling affirming Gailey's convictions on direct appeal, this court set forth the following facts surrounding the incident leading to Gailey's charges:

The charges at issue in this case arose from a series of events that occurred on April 25, 2007. At the time, Gailey was under a protective order prohibiting contact with his wife, Dawn, and step-daughter, Jane Doe II. Dawn, accompanied by the police, went to the family home to retrieve some belongings. Inside they discovered diesel fuel poured throughout the home and several suicide notes apparently written by Gailey. Dawn went to the elementary school to pick up the couple's six-year-old daughter, Jane Doe I. After driving away from the school, Gailey appeared in a car and blocked Dawn's path with it. He approached the driver's side window of Dawn's van, pointed a gun at her, and told her to open up the door and that he was going to blow her head off. He showed her the bullet in the gun and told her he was not playing around. He then ordered Dawn to get out and pull his car over to the side of the road. Dawn complied, Gailey climbed into the back of the van with their daughter, and Dawn returned to the driver's seat. He then told Dawn to drive out to a farm. When Dawn asked him what he was doing he said that he was going to kill her, their daughter, and himself. He was yelling, swearing, and saying nonsensical things.
During the drive, both Gailey and Dawn received calls on their cell phones. During one call, Gailey told his father that everything was his father's fault and had he not found Dawn and Jane Doe I, he would have killed his father and brothers. At the farm, he ordered Dawn to park the van behind a shed so they could not be seen and to shut off the headlights. He then stated that they "were going to relive some childhood memories, " took the headrest off the driver's seat, pointed the gun at Dawn's head and asked "do you want it in the head or in the heart." When Dawn asked him not to do it and urged that it was not the right thing to do and that there were other ways to handle the situation, Gailey got angry and told her to quit begging. Dawn kept talking to Gailey and was able to convince him not to kill them and that they could all leave town together. Gailey then made a call to retrieve some money he had asked a friend to hold for safekeeping.
They left the farm, exchanged the money in a parking lot, and began driving again, with Dawn driving and Gailey and Jane Doe I in the back seat. An officer began following them and a high speed chase ensued. Dawn suggested they stop but Gailey demanded otherwise. He then told her to stop but ordered her to back up toward the officer. She did this but stopped before hitting the officer. Gailey then climbed into the front seat and the chase continued at even higher speeds. Dawn convinced Gailey to throw the handgun out the window and shortly thereafter, the officers rammed the van into a ditch. Dawn picked up Jane Doe I and fled to an officer's vehicle.
Gailey was charged with multiple crimes, including two counts of first-degree kidnapping, and one count of first-degree burglary, and second-degree arson. At trial, the State introduced into evidence a tape recording Dawn made of a phone conversation she had with Gailey on April 21, 2007, several days before the alleged kidnapping. During the phone conversation Gailey made incriminating statements when Dawn confronted him about whether he sexually abused Dawn's daughter from a previous relationship and his step-daughter, Jane Doe II. The court admitted the taped conversation and a transcript of the recording over the defense's objection. Following a jury trial, Gailey was convicted on all counts[.[1]

State v. Gailey, No. 08-0628, 2009 WL 778772, at *1-2 (Iowa Ct. App. Mar. 26, 2009).

         This court affirmed Gailey's convictions, rejecting his challenges to the sufficiency of the evidence to support his kidnapping conviction and the district court's consideration of improper sentencing factors. Id. at *2-3, *5-6. The court preserved Gailey's claim of ineffective assistance of counsel on two evidentiary issues regarding his taped phone conversations with Dawn discussing his prior sexual abuse of his step-daughter. Id. at *4.

         Gailey filed an application for postconviction relief (PCR), contending his trial counsel was ineffective in failing to preserve error on his evidentiary claims. Gailey later filed an amended PCR application through counsel, claiming trial counsel was ineffective in failing to object to various jury instructions. Following a hearing, the PCR court entered an order denying Gailey's claims.

         Gailey appeals. Facts specific to his claims on appeal will be set forth below.

         II. Standard of Review

         We typically review the district court's ruling on an application for postconviction relief for correction of errors. Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016). However, we conduct a de novo review of PCR claims of ineffective ...


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