from the Iowa District Court for Pottawattamie County, Mark
J. Eveloff, Judge.
applicant appeals from the district court ruling dismissing
his application for postconviction relief.
D. Nerenstone, Council Bluffs, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee State.
by Vogel, P.J., and Potterfield and Mullins, JJ.
Butts was convicted of one count each of first-degree
burglary, second-degree kidnapping, going armed with intent,
assault while participating in a felony, assault with the
intent to commit sexual abuse, carrying weapons, and
possession of burglar's tools. He filed a
postconviction-relief action, asserting his trial counsel was
ineffective. The basis for the action was that counsel
disclosed a letter Butts had composed, failed to object to
statements made by the prosecution, failed to move for a
mistrial, and failed to object to asserted improper judicial
conduct. Additionally, Butts claims his appellate counsel was
ineffective in failing to seek further review and failing to
challenge trial counsel's disclosure of the letter.
Finally, Butts asserts his kidnapping conviction should be
reconsidered in light of our supreme court's ruling in
State v. Robinson, 859 N.W.2d 464 (Iowa 2015).
Agreeing with the postconviction court's ruling, we
Background Facts and Proceedings
charges Butts faced stemmed from allegations that on November
11, 2009, Butts broke into an apartment, shared by two
sisters, armed with a handgun and a knife. He locked the
front door behind him, dragged one sister to a back bedroom
at gunpoint and attempted to rape her before being
interrupted by police officers.
jury found Butts guilty, he appealed his convictions raising
sufficiency-of-the-evidence claims, evidentiary claims, a
search warrant complaint, and a jury instruction challenge.
This court affirmed Butts's convictions. See State v.
Butts, No. 11-0069, 2011 WL 5867065, at *8-20 (Iowa Ct.
App. Nov. 23, 2011). On December 19, 2014, Butts filed an
application for postconviction relief (PCR), raising various
ineffective-assistance-of-counsel claims. After a hearing,
the PCR court denied Butts's claims. Butts appeals.
Standard of Review
an appeal from a denial of an application for postconviction
relief is reviewed for correction of errors at law."
Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012)
(citation omitted). "However, when the applicant asserts
claims of a constitutional nature, our review is de novo.
Thus, we review claims of ineffective assistance of counsel
de novo." Ledezma v. State, 626 N.W.2d 134, 141
(Iowa 2001). "[W]e give weight to the lower court's
findings concerning witness credibility." Id.
claims his kidnapping conviction should be reconsidered
because the facts closely mirror those in Robinson,
859 N.W.2d at 465-67, in which our supreme court found there
was insufficient evidence to uphold the kidnapping charge.
Although the question of whether his acts constituted
kidnapping was resolved in Butts's direct appeal, he
claims it should be reconsidered because the
Robinson decision postdated his direct appeal. We
begin with a more detailed explanation of the undisputed
facts presented to the jury.
approximately 11:00p.m. on November 11, 2009, Butts picked
the deadbolt lock of the sisters' apartment. He entered
and locked the door behind him. He found one of the sisters
watching television, but he was unaware the second sister was
in her own room. Butts was wearing plastic gloves and a
hooded sweatshirt but he was not wearing shoes. He pointed a
gun at the first sister's head and asked whether anyone
else was in the apartment. She loudly told Butts no one else
was at home, hoping her sister would hear her and call the
police. Butts then grabbed the back of her arm and pulled her
from the couch at gunpoint, dragged her down the hallway, and
pushed her into a bedroom. He attempted to close the bedroom
door, but something prevented the door from fully closing. He
ordered the woman to undress, but she refused. He then
forcibly removed her sweater, tank top, and bra before
unbuttoning and unzipping her pants.
this time, the second sister crept into the bathroom and
called police. When the police arrived, the second sister
opened the front door, and the police entered the bedroom. As
Butts turned to face the bedroom door the first sister
grabbed him by the back of his sweatshirt and took the gun,
which he had placed in his back waistband. A combative and
uncooperative Butts was then taken into custody.
comparing the facts of this case to those in
Robinson, Butts argues he should not have been
convicted of second-degree kidnapping. He asserts
Robinson changed the framework for analyzing
kidnapping cases when it dismissed Robinson's kidnapping
charges for insufficient evidence, because the
"confinement or removal" of the victim was
incidental to the underlying sexual abuse charge and not an
independent crime. See 859 N.W.2d at 467-83. We
its holding in State v. Rich, 305 N.W.2d 739, 741-42
(Iowa 1981), our supreme court, in Robinson, held
sufficient evidence supports a kidnapping conviction when
"the defendant's confinement of the victim
substantially increased the risk of harm,
significantly lessened the risk of detection, or
significantly facilitated escape of the
perpetrator." 859 N.W.2d at 481 (emphasis in original).
The Robinson court noted many of the cases upholding
kidnapping convictions feature the use of a weapon such as a
gun or knife. Id. at 477-78 (citing State v.
Griffin, 564 N.W.2d 370, 372-73 (Iowa 1997) (beating and
sexually assaulting victim with a bottle); State v.
McGrew, 515 N.W.2d 36, 39-40 (Iowa 1994) (possessing a
knife and gun with him during attack); State v.
Hatter, 414 N.W.2d 333, 338 (Iowa 1987) (forcing victim
into defendant's car at knifepoint); State v.
Knupp, 310 N.W.2d 179, 181 (Iowa 1981) (cutting through
victim's clothing with a knife)). The Robinson
court concluded "this heinous concept underlies the
Rich tripartite test with its attendant
intensifiers." Id. at 482. Therefore,
Robinson merely clarified an existing rule by
relying on the three-factor test outlined in Rich.
Butts locked the front door and forcibly led the first sister
away from the front living area and into a bedroom at
gunpoint. On two occasions, Butts threatened to hurt the
first sister if she screamed. Once taken into custody, police
also located a knife on Butts. Although the act of locking
the door and leading the young woman to another room is
similar to Robinson, this case diverges from
Robinson due to the presence of two weapons-the
knife, and the gun drawn and pointed at the victim while
forcing her to a back bedroom-whereas Robinson did
not feature a weapon. Consistent with the conclusion that the
weapons substantially increased the risk of harm, the
evidence, under a totality of the circumstances test,
therefore supported kidnapping, and Butts is not entitled to
reconsideration of that conviction. See id. at 479.
Ineffective Assistance of Counsel
next asserts his trial counsel was ineffective by disclosing
a letter Butts had composed, first to his own expert and then
to the State. "In order to succeed on a claim of
ineffective assistance of counsel, a defendant must prove:
(1) counsel failed to perform an essential duty; and (2)
prejudice resulted." State v. Maxwell, 743
N.W.2d 185, 195 (Iowa 2008) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). "Both
elements must be proven by a preponderance of the evidence.
However, both elements do not always need to be addressed. If
the claim lacks prejudice, it can be decided on that ground
alone without deciding whether the attorney performed
deficiently." Ledezma, 626 N.W.2d at 142
claims his trial counsel violated the attorney-client
privilege by disclosing a letter to his medical expert and to
the State without Butts's consent.The lengthy
letter, written by Butts, detailed events and personal
struggles in his life leading up to the events of November
11, 2009. Butts's trial counsel turned the letter over to
an expert in forensic psychiatry prior to an evaluation in
preparation for his diminished capacity defense. Eventually,
the letter was disclosed to the State. The State asserts
Butts's trial counsel breached no duty because Butts
consented to the disclosure to his expert. Further, Butts can
show no prejudice because the prosecution would have learned
of the evidence after the expert witness evaluated
Butts's mental health and testified to the reasons for
his diminished capacity, and the State gained similar
information on a search of Butts's computer hard drive.
asserts no rule requires disclosure of this letter and, even
if disclosure is allowed, his trial counsel did not have his
consent; however, the record contradicts Butts's
assertion. On the first page of the letter Butts wrote,
"I don't know if this long (I suspect it will be
long) 'essay' will be a good thing to give a
psychiatrist or not. Maybe it would be best to let him or her
make these discoveries independently. I will let you
decide that." (emphasis in original). During Butts's
redirect examination at his criminal trial, his trial counsel
asked him about his understanding of the purpose and
procedure regarding the letter:
Q. Now reviewing the letter that you wrote to me, 30 pages, I
think we've established that it was written December the
A. Whichâthe one to you?
Q. The 30âthe long one.
Q. Do you remember when I was first hired in November that
there was a concern by your family about your mental health?
A. Yeah, I would think so.
Q. And do you remember that I assured them that I wouldâI
would get you evaluated?
A. I don't know what you assured them but you told me
that you had told them you were going to explore that, yes.
Q. All right. And you remember me telling you in December to
start writing this now while you remember itâ
Q. âso we could use it and present it to whoever did the
Q. And I've reminded you that this is part of the
material that I sent to Dr. Wilson so he could do his
A. I had forgotten that, but yes.
Q. All right. Just to clarify that.
Q. And that as part of the discovery processâ
Q. âI provided a copy to the county attorney so he knew all
the materials that [the expert] reviewed to come up with his
A. I fully understand, yes.
conclude Butts's trial counsel did not breach an
essential duty when he disclosed the letter because Butts
gave his attorney the authority to do so.
even if we assume that trial counsel breached an essential
duty by disclosing the letter, Butts cannot demonstrate he
was prejudiced by counsel's action. The State was already
aware of highly sensitive, if not much more damaging,
information contained on Butts's computer. In an effort
to shore up his diminished capacity defense, Butts's
expert testified as to very personal details in Butts's
life leading up to these charges. He also testified he knew
Butts had accessed various disturbing websites, as noted in
the minutes of evidence. Therefore, Butts cannot demonstrate
any prejudice resulted from counsel's disclosure of the
letter when essentially the same, if not more damaging,
information was contained elsewhere in the record. See
State v. Trudo, 253 N.W.2d 101, 108 (Iowa 1977) (stating
"ordinarily, a defendant may not claim prejudice where
the same evidence is otherwise supplied by the defendant or
is made overwhelmingly clear in the record.").
addition, given the strength of the evidence against him,
Butts cannot show prejudice. Butts pursued intoxication and
diminished capacity defenses by claiming he had absolutely no
memory of the acts he was accused of committing. On
cross-examination, the State questioned Butts as to his
intent on the night in question, leading up to and
immediately following the criminal activity:
Q. You also understand that there's a big difference
between legally impaired to drive and intoxicated as a legal
defense to crimes?
A. I do understand the difference, yes.
Q. Okay. And you would agree that when you left the Razzle
Dazzle-actually, let's back that up. When you arrived at
the Razzle Dazzle, you intended to have a conversation with
Q. And you actually had a conversation?
A. And I don't remember the details of it, but yes. As
far as I know, yeah.
Q. And you intended to buy a drink?
Q. And you did buy a drink?
Q. And then you intended to leave?
A. Sure, yeah.
Q. And you did leave?
A. And I left, yes.
Q. And then you intended to drive to your ...