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State v. Kirwan

Court of Appeals of Iowa

August 16, 2017

STATE OF IOWA, Plaintiff-Appellee,
PATRICK WILLIAM KIRWAN, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

         A defendant appeals his conviction for murder in the second degree. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

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

          TABOR, Judge.

         "I did something bad, " Patrick Kirwan repeatedly told his estranged girlfriend after he fatally shot their neighbor, Mark Hruska. Kirwan stood trial for first-degree murder-advancing justification, diminished responsibility, and insanity as defenses. The jury returned a verdict of second-degree murder. On appeal, Kirwan raises four issues: (1) the verdict was not supported by the evidence, (2) the district court wrongfully excluded his expert's written report, (3) the jury should have been instructed on the consequences of a not-guilty-by-reason-of-insanity verdict, and (4) defense counsel was ineffective for not objecting to assertions about the crime scene in the State's closing argument.

         First, reviewing the evidence in the light most favorable to the State, we find substantial evidence to support the jury's verdict. We also find counsel performed competently despite not moving for a new trial based on the weight of the evidence. Second, we find the exclusion of the defense expert's report did not amount to reversible error. Third, as the court of appeals, we cannot revisit our supreme court's decision in State v. Becker, 818 N.W.2d 135, 137 (Iowa 2012), [1] which found no error in the denial of a jury instruction explaining the consequences of an insanity verdict. Fourth and finally, after reviewing the entirety of the trial transcript and the exhibits, we conclude Kirwan cannot show he was prejudiced by trial counsel's failure to object during the State's closing argument. Rejecting all four grounds for relief, we affirm Kirwan's conviction for murder in the second degree.

         I. Facts and Prior Proceedings

         At age nineteen, Kirwan joined the Army and served a fourteen-month tour of duty in Iraq between 2004 and 2006. After returning home, he was diagnosed with post-traumatic stress disorder (PTSD). Kirwan sought treatment for his PTSD through the VA Health Care System and was hospitalized at least twice, once in Iowa City and more recently in Des Moines.

         For four-and-one-half years before March 1, 2015, Kirwan had a romantic relationship with Jennifer Kizer. They lived together with their daughter on the east side of Des Moines. Kirwan and Kizer socialized with their next-door neighbor, Mark Hruska. On occasion, all three would have cookouts or smoke marijuana together. But Kirwan harbored a darker view of Hruska. According to Kizer: "[Kirwan] thought that Mark was an FBI agent. He thought that Mark was watching our house or throwing rocks at our house. He also accused me of having a relationship with Mark."

         Kizer testified Kirwan's paranoid thoughts escalated after his stay at the Central Iowa VA Health Center in late December 2014. "Within the months of January and February, it was really bad." The night of February 28, 2015, was especially fitful for Kizer. Kirwan kept waking her up, haranguing her about his suspicions. The next morning, March 1, she was "mentally drained" and decided to leave. She called her mother to help move her belongings. Kizer left with their daughter around 11:00 a.m. She recalled Kirwan was "apologetic to my mom and manipulating me nicely." Kizer called Kirwan after lunch to see how he was and he seemed "fine."

         Then at about 5:00 p.m., Kizer received a phone call from Kirwan. "He was screaming at me telling me, 'I did something bad. I did something bad. You need to come here.'" Kizer, who was holding their daughter, handed the cell phone to her mother. Her mother asked Kirwan what he did, and he replied: "[T]he neighbor . . . Mark's not okay." Kizer's mother called 911 to report the situation.

         Responding police officers noticed blood in the driveway and found Hruska's dead body inside his entry way. The officers noticed activity next door and asked the dispatcher to call Kirwan. The dispatcher asked Kirwan to come out of his house without a weapon and with his hands in the air. Kirwan asked: "Am I going to jail?" He also said he was "feeling pretty suicidal." Kirwan then volunteered that he never had "anything against him" but just wanted to "go buy some marijuana." Kirwan admitted shooting his neighbor after they got into a fight and said: "[H]e is no longer with us." Kirwan also told the dispatcher: "It's just he's really an asshole."

         Kirwan peacefully surrendered to police, leaving his Glock .40 caliber pistol on his kitchen floor. Eight casings from the crime scene next door matched that weapon. An autopsy revealed Hruska's cause of death was multiple gunshot wounds.

         Kirwan agreed to an interview with Des Moines Police Detective Brad Youngblut. Kirwan admitted shooting Hruska, explaining, "[W]e haven't really gotten along, at least as neighbors." Kirwan said he "went over there to ask for some weed" and Hruska "kind of snapped" on him. Kirwan told the detective: "l've never wanted to kill somebody, but it happened." Kirwan said after the shooting he "panicked" and went back home. He "lit a cigarette" and "took a shower." Kirwan said when he had smoked his last cigarette he went to the grocery store to buy more, before calling Kizer.

         The State charged Kirwan with murder in the first degree, in violation of Iowa Code sections 707.1 and 707.2 (2015). He gave notice he intended to rely on three defenses: insanity, diminished responsibility, and justification. His jury trial started in early April 2016. After several days of testimony, the jury found Kirwan not guilty of murder in the first degree but guilty of murder in the second degree. He now appeals.

         II. Scope and Standards of Review

         We review Kirwan's substantial-evidence claim, preserved by his motions for judgment of acquittal, for errors at law. See State v. Hawkins, 620 N.W.2d 256, 258 (Iowa 2000). We view the record in the light most favorable to the State, and we allow all legitimate inferences and presumptions that may be reasonably deduced from the evidence. See State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). "Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence." State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006) (quoting State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994)).

         We apply a de novo review to Kirwan's claims that his trial attorney was constitutionally deficient in not moving for a new trial based on the weight of the evidence and not objecting during the State's closing argument. See State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017). Kirwan bears the burden of proving (1) counsel failed to perform essential duties and (2) that failure resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

         We engage in a hybrid review when considering the district court's exclusion of the report authored by psychologist Steven Bruce. Generally, we review hearsay challenges for errors at law, but when the question involves the expert-opinion rule, we review for an abuse of discretion. See State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). Abuse of discretion is also the standard applied to the exclusion of evidence deemed cumulative. See Iowa R. Evid. 5.403 (allowing judges to exclude relevant but cumulative evidence).

         III. Analysis of Kirwan's Claims

         A. Proof of Criminal Responsibility

         Kirwan disputes both the sufficiency of the State's evidence and its weight. The first challenge was preserved;[2] the second was not. Accordingly, Kirwan argues the second point as a claim of ineffective assistance of counsel.

         1. Sufficiency of the Evidence

         The jury acquitted Kirwan of murder in the first degree but found the State offered proof beyond a reasonable doubt of murder ...

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