review from the Iowa Court of Appeals.
from the Iowa District Court for Delaware County, Thomas A.
petitioner seeks further review of the court of appeals'
decision affirming the denial of his application for
postconviction relief based on the ineffective assistance of
his criminal trial counsel.
L. Campbell of Dickey & Campbell Law Firm, PLC, Des
Moines, for appellant.
J. Miller, Attorney General, Martha A. Trout and Robert H.
Sand, Assistant Attorneys General, and John Bernau, County
Attorney, for appellee.
case, we consider whether Robert Krogmann, a severely
mentally ill defendant charged with attempted murder and
willful injury causing serious injury in connection with an
attack on his former girlfriend, is entitled to a new trial
after the State limited his access to his personal funds by
freezing his assets prior to trial. Krogmann claims the order
freezing his assets was illegal and imposed for an improper
purpose. He also contends the asset freeze adversely impacted
his ability to defend himself by, among other things,
preventing him from posting bond, inhibiting his ability to
select his counsel of choice, limiting the number of phone
calls he could afford to make from jail, and preventing him
from hiring a jury consultant to assist his defense. The
State asserts Krogmann had sufficient access to resources to
pay for competent defense counsel through a court-approval
process. The State further contends Krogmann can make no
showing of prejudice.
filed an application for interlocutory appeal of the freeze
order, which we denied. A jury was subsequently convicted
Krogmann of attempted murder and willful injury causing
serious injury. We affirmed his conviction on appeal.
State v. Krogmann (Krogmann I), 804 N.W.2d
518, 520 (Iowa 2011). On direct appeal, we declined to
address Krogmann's claims regarding the legality of the
freeze order as they were not preserved. Id. at
523-25. His postconviction-relief (PCR) application and this
appeal therefrom followed. For the reasons expressed below,
we affirm in part and vacate in part the decision of the
court of appeals, reverse the district court's judgment,
and remand with instructions to vacate Krogmann's
convictions and order a new trial.
Background Facts and Proceedings.
March 13, 2009, Krogmann shot his former girlfriend, Jean
Smith, after Smith ended their relationship. The attack was
brutal. Krogmann, armed with a pistol, entered Smith's
home to talk to her about their relationship. After some
discussion, Krogmann shot Smith three times, pausing after
each shot. He refused to call 911 at the time of the shooting
despite pleas from Smith. Krogmann allowed Smith to speak to
her mother on the phone, which instigated a chain of events
leading to police and paramedics arriving at Smith's
was quickly apprehended and charged with attempted murder in
violation of Iowa Code section 707.11 (2009) and willful
injury causing serious injury in violation of Iowa Code
section 708.4(1). Bond was initially set at $750, 000 cash
only. Smith survived the attack but endured extensive
hospitalization, a long period of rehabilitation, and
Order Freezing Assets.
March 24, 2009, the Delaware County Attorney, John Bernau,
filed an application for an order freezing all of
Krogmann's assets on behalf of the State. At the time,
Krogmann had more than $3, 000, 000 in assets, most of which
was farmland. The one-page application stated in its
COMES NOW Delaware County Attorney, John W. Bernau, and in
support of the State's Application for Order states:
1. On March 23, 2009, the undersigned filed a Trial
Information in the above-captioned matter charging the
Defendant Robert Krogmann with the offenses of Attempted
Murder and Willful Injury.
2. The victim of the Defendant's offenses, Jean Smith,
has suffered severe life altering injuries that will require
approximately six to eight weeks initial hospitalization with
unknown amounts of after care and treatment.
3. The victim's expenses associated with her
hospitalization and after care are, and will be, sizeable.
4. The Defendant, if convicted, will be required to reimburse
the victim for all out of pocket expenses associated with her
hospitalization and after care as part of court-ordered
restitution. Additionally, it is likely that the Defendant
will be subject to civil litigation regardless [of] what
happens in his criminal matter.
5. It is believed that the Defendant has a number of assets
that he may attempt to sell or transfer to avoid his
financial obligations to the victim of his offenses. It is
therefore appropriate and necessary that the Court enter an
Order freezing all of Defendant's assets which he owns
personally or jointly with others unless application is made
to the Court and good cause shown why the subject asset
should be sold or transferred prior to criminal and/or civil
restitution being established.
WHEREFORE, the State of Iowa prays that the Court will enter
an Order freezing all of Defendant's assets unless and
until such time as Defendant makes application to the Court
for the sale or transfer of an asset and is able to establish
good cause why the asset should be transferred or sold prior
to the establishment of criminal and/or civil restitution.
the application did not cite any authority for the total
asset freeze or include any factual basis to support the
assertion that Krogmann "may attempt to sell or transfer
[his assets] to avoid his financial obligations."
application contained a certificate of service stating it had
been served on David Nadler, Krogmann's attorney of
record at the time, by first-class mail on March 24, 2009,
but the address listed on the application for Nadler is
crossed out with an "X." Underneath the crossed out
certificate of service is a notation stating, "Re-mailed
March 30, the date the application was remailed to Nadler,
the district court, without a hearing, entered an order
granting the asset freeze and requiring Krogmann to make an
application to the court prior to sale or transfer of any
asset. The order provided,
The State's Application for Order filed March 24, 2009,
is granted. All of the Defendant's assets shall be
frozen. The Defendant shall make application to the Court for
the sale or transfer of an asset at which time the Court will
determine whether good cause has been shown to grant the
the asset-freeze application, the order granting the freeze
did not cite any authority or legal basis for the asset
received the order granting the asset freeze before he saw
the application requesting it. Although the court had already
entered the order, Nadler filed a resistance to the
asset-freeze application on April 2, arguing "the State
has cited no authority for [the asset freeze] nor does any
exist." On April 28, Nadler filed an application for
interlocutory relief, which we denied on May 26.
Krogmann's application for interlocutory appeal was
pending, he filed a motion to reduce the $750, 000 bond
amount. Following our denial of interlocutory relief and
after holding a hearing, the district court raised the bond
amount to $1, 000, 000 cash only on June 1.
being incarcerated and the asset freeze, Krogmann voluntarily
applied for the appointment of a conservator to manage his
assets. On April 13, the probate court approved the
application, declaring Krogmann "is incapacitated and
will be unable to carry on his business and make decisions
and transactions for the foreseeable future." The
probate court directed the appointed conservator to adhere to
the asset-freeze order entered in Krogmann's criminal
case "and make application to the Court for authority to
sell or transfer any assets other than in the normal course
of the farming operation where the transfer is made for good
and valuable consideration."
Applications Submitted to the Probate Court Pursuant to
to the freeze order, Krogmann, through his conservator,
applied to the probate court to expend his assets. The county
attorney and the victim were able to review each application
and allowed to, and did, object to Krogmann's requests to
use his own assets.
15, Krogmann's conservator applied to the probate court
to mortgage farmland to raise the funds necessary to post
bond. The victim, citing her high past and future medical
expenses, resisted the application, which the probate court
denied on June 20.
September 3, Krogmann's conservator applied to the
probate court to obtain funds of $500 per month for jail
amenities, toiletries, and phone cards to make phone calls
from jail. The State, asserting the request was
"unreasonable and excessive," resisted the
application, which the probate court denied on September 21.
several occasions, Krogmann's conservator applied to the
probate court for payment of attorney fees in connection with
the criminal proceeding. Although payment was sometimes
delayed,  the probate court approved use of
Krogmann's assets to pay for his criminal defense
attorneys and some defense expenses.
October 16, Krogmann's conservator, pursuant to
Krogmann's criminal defense attorney's request for an
additional $12, 000-$4000 to $8000 of which was earmarked for
a jury consultant-asked the probate court whether it was
necessary to file another application for additional funds or
if the court could authorize the additional $12, 000 without
another application. In an order entered on October 20, the
probate court found "the request [for additional funds]
is appropriate in light of the delineated necessities."
However, because the request was not submitted as a motion
"and other individuals have previously objected to
disbursements from this conservatorship," the court
postponed authorizing the funds until the conservator
provided notice of the intended disbursement "to all
interested parties" and the court received any timely
objections. The State objected to funds for a jury
consultant, arguing a jury consultant "is considered a
luxury rather than a necessity." On October 30, the
probate court denied the request for funds for a jury
case came to jury trial on November 2, 2009.
opening statements, the Stateemphasized the simple facts of the
case: Krogmann went to Smith's residence, gained entry,
and shot her three times, once in the stomach, once in the
arm, and once in the spine. The prosecution described phone
calls made by Smith to her mother and by Krogmann to his son
after the shooting. The prosecution described in detail the
crime scene, the arrival by police, and Krogmann's
defense in its opening did not dispute that Krogmann shot
Smith three times. The defense urged the jury to consider
that Krogmann had a documented fifteen- or twenty-year
history of "bipolar [disorder] with depression" and
had been "hospitalized for suicide thoughts, depression,
sleep disorders, [and] a host of other issues." The
defense noted Krogmann had no criminal history to speak of
yet ended up shooting his former girlfriend.
defense urged the jury to consider closely the testimony of
defense expert, psychiatrist Dr. James Gallagher. The defense
asserted Dr. Gallagher would opine there was a possibility
that on March 13, Krogmann's medical condition came into
play and "could skew what we call intent." The
defense told the jury that testimony from the Krogmann family
members would establish a history of mental illness and odd
behavior regarding Smith-such as texting her fifty or sixty
times a day, making unwelcome appearances at her home,
sending her flowers at her employer's place of business
after she refused to see him-shortly before the tragic events
of March 13. The defense told the jury it would receive
evidence that after March 13, Krogmann had attempted suicide
by wrapping a phone cord around his neck and by cutting his
wrist with a plastic fork, which required a trip to the
hospital for stitches.
Evidence presented at trial.
State established its case through testimony from Smith, her
brother, Krogmann's son (who arrived at the scene shortly
after the shooting), Smith's mother (who received a phone
call from her daughter after the shooting while Krogmann was
still at the residence), and various law enforcement and
emergency medical personnel. These witnesses testified
regarding the facts of the shooting and the crime scene. For
the most part, cross-examination by the defense focused on
witness knowledge of Krogmann's mental health.
defense called Krogmann's mother, a brother, a daughter,
and a sister-in-law as witnesses. These witnesses had no
direct knowledge of the events of March 13, but they did
present evidence on Krogmann's mental health.
Krogmann's sister-in-law testified that after the breakup
with Smith, Krogmann seemed fixated on Smith, would stare at
the wall blankly, and repeat the same thing over and over
again. She further testified that the family threatened
Krogmann with commitment but did not follow through. Other
family members recounted Krogmann being hospitalized for
mental health issues in the past. The family members
testified Krogmann was very distraught over the breakup with
Smith and they had told him the relationship with Smith was
over but that was something Krogmann could not accept.
his family members testified, Krogmann took the stand in his
own defense. Krogmann testified he had had mental health
issues since his twenties or thirties. He described a history
of being seen by local psychiatrists, receiving prescriptions
for antidepressants, hospitalizations for mental health
issues, and occasional suicide ideation.
admitted going to Smith's house on March 13 with a
pistol. He could not explain the purpose of carrying the
pistol other than he was depressed and suicidal. He denied
both intending to harm Smith and remembering the sound of the
gun. He testified he merely remembered seeing Smith laying on
the floor and bleeding.
cross-examination, the prosecutor began by briefly asking
Krogmann if he was suffering from bipolar disorder on March
13 and if he was currently suffering from that disorder.
Krogmann responded affirmatively. The prosecutor then asked,
"Shot anybody today?"; the immediate objection to
which was sustained.
defense's final witness and only expert was Dr.
Gallagher. Dr. Gallagher testified,
[O]ne of the characteristics of being in the severe depressed
phase or a manic phase of bipolar disorder is that you lack
insight into the fate of your illness so you don't know
what you're doing and you don't know what you're
doing is incorrect or not functional.
to Dr. Gallagher, bipolar disorder can influence a
person's intent. Dr. Gallagher testified "it's
possible" that either Krogmann's bipolar condition
or his depression could have influenced his intent on March
cross-examination, Dr. Gallagher conceded he could not say
with medical certainty that Krogmann's intent was
affected by his bipolar condition. Dr. Gallagher further
agreed he had no reason to believe Krogmann did not know the
difference between right and wrong. Dr. Gallagher averred he
did not have an opinion regarding whether Krogmann had the
mental capacity to form specific intent on March 13.
State called psychiatrist Dr. Michael Taylor as a rebuttal
witness. Dr. Taylor agreed with Dr. Gallagher that Krogmann
suffered from bipolar disorder. Like Dr. Gallagher, Dr.
Taylor testified that on March 13, Krogmann was capable of
distinguishing right from wrong. Further, Dr. Taylor attested
Krogmann, by his own admission, was fully capable of forming
specific intent. Dr. Taylor noted that on the morning of the
shooting, Krogmann conducted business, returned to his house
to gather his gun, and intended to shoot himself. Dr. Taylor
also cited Krogmann's post-shooting action of getting
Smith a rosary as demonstrating specific intent. Dr. Taylor
conceded, however, it is theoretically possible for bipolar
disorder or depression to influence a person's intent.
the close of testimony, the court considered the State's
objection to submitting a jury instruction on diminished
responsibility. The district court overruled the objection,
noting Dr. Gallagher's testimony that it was possible
Krogmann's depression or bipolar disorder could have
influenced his intent and other testimony for the defense
supported the theory.
specific intent and diminished responsibility jury
instructions submitted by the court were Instructions No. 24
and No. 25. Instruction No. 24, the specific intent
"Specific intent" means not only being aware of
doing an act and doing it voluntarily, but in addition, doing
it with a specific purpose in mind.
Because determining the defendant's specific intent
requires you to decide what he was thinking when an act was
done, it is seldom capable of direct proof. Therefore, you
should consider the facts and circumstances surrounding the
act to determine the defendant's specific intent. You
may, but are not required to, conclude a person intends the
natural results of his acts.
No. 25, the diminished responsibility instruction, stated,
One of the elements the State must prove is that the
defendant acted with specific intent. The lack of mental
capacity to form a specific intent is known as
Evidence of "diminished responsibility" is
permitted only as it bears on his capacity to form specific
"Diminished responsibility" does not mean the
defendant was insane. A person may be sane and still not have
the mental capacity to form an intent because of a mental
disease or disorder.
The defendant does not have to prove "diminished
responsibility"; rather, the burden is on the State to
prove the defendant was able to, and did, form the specific
State's closing argument began with a brief summary of
the events of March 13 and the elements of attempted murder.
The State then focused, however, on the related questions of
specific intent and diminished responsibility. The State
closed by reviewing the elements of willful injury.
defense's closing argument concentrated on Krogmann's
mental health. The defense noted Krogmann came to the case
with fifteen or twenty years of mental health issues. The
defense recounted the testimony of family members about
Krogmann's mental health.
Jury verdict, sentence, and award of restitution.
deliberating for a couple of hours, on November 6, the jury
found Krogmann guilty of attempted murder and willful injury
causing serious injury. For the attempted murder conviction,
the district court sentenced him to an indeterminate term of
twenty-five years in prison with a mandatory minimum of 17.5
years before being parole or work release eligible. For the
willful injury conviction, the court sentenced him to an
indeterminate term of ten years and applied Iowa Code section
902.7's dangerous-weapon enhancement to impose a
mandatory minimum of five years. The court ordered the
sentences to run consecutively. The court ordered Krogmann to
pay $35, 570.14 in victim restitution to Smith and $18,
219.54 in restitution to the Delaware County Sheriff's
Department and the State.
appealed his convictions. Krogmann I, 804 N.W.2d at
520. On appeal, he challenged the constitutionality and
legality of the asset-freeze order. Id. at 522. He
further claimed the prosecutor engaged in misconduct when he
asked Krogmann, "Shot anybody today?" Id.
respect to his challenges to the asset freeze, we stated,
We are troubled by the State's effort to tie up a
criminal defendant's personal assets without citing any
rule or statute, without making a verified filing, and
without citing the district court to relevant authority
([State ex rel. Pillers v.] Maniccia[, 343
N.W.2d 834 (Iowa 1984)]). We are also troubled by the
State's attempts to use the asset freeze, once it was in
place, to object to defense expenditures not on the ground
they would jeopardize restitution or other victim
compensation (the alleged reasons for the asset freeze), but
simply because the State deemed them unnecessary.
Id. at 525. Yet we declined to reach the issue's
merits because Krogmann's trial counsel did not preserve
the issue for appeal. Id. at 523-25. Trial counsel
did not raise any constitutional challenges to the asset
freeze before the district court. Id. at 523.
Additionally, while Krogmann's trial counsel did contest
the lack of authority for the freeze order after the court
entered it, counsel never sought a hearing or dissolution of
the order after it was entered. Id. at 523-24. In a
footnote, we expressly noted the asset-freeze issue could be
raised as an ineffective-assistance-of-counsel claim in a PCR
proceeding. Id. at 525 n.8.
respect to the claim of prosecutorial misconduct, we also
concluded that claim was not properly preserved. Id.
at 526. While we observed the "Shot anybody today?"
question was "inflammatory and improper," we did
not believe the "isolated incident of misconduct was so
severe or pervasive that it affected Krogmann's right to
a fair trial." Id. at 526-27.
Overview of proceedings.
obtaining no relief on direct appeal, Krogmann filed a PCR
action on October 5, 2012. Krogmann claimed his defense
counsel provided constitutionally ineffective assistance
under the Sixth Amendment of the United States Constitution
and article I, section 10 of the Iowa Constitution by failing
to challenge and preserve an objection to the freeze order;
by failing to challenge as prosecutorial misconduct the
prosecutor's asset-freeze application, "continued
involvement in the handling of [Krogmann's] assets and
presentation of his defense," and question of "Shot
anybody today?"; in pursuing Krogmann's defense,
specifically the defense of diminished responsibility; and by
failing to object as a violation of double jeopardy and the
merger doctrine the consecutive sentences for attempted
murder and willful injury.
court held a hearing on the application on January 22, 2015.
Krogmann offered his own testimony and the testimony of
Marygrace Schaeffer, a jury and trial consultant. In
addition, he offered as exhibits a report on jury consultant
assistance (prepared by Schaeffer and a colleague from her
consulting firm), the deposition testimony of County Attorney
Bernau and Krogmann's two criminal trial lawyers, Nadler
and Brown, and the psychiatric report and evaluation of Dr.
Jerome Greenfield, among other things.
PCR testimony of jury consultant Marygrace
testified she is an expert jury consultant hired in a variety
of matters. She asserted that if she had been present for
jury selection, she would have made a number of suggestions
or recommendations regarding the structure of jury selection.
Further, Schaeffer was highly critical of the voir dire
conducted by Krogmann's trial counsel in this case
involving mental health and guns.
topic of the structure of jury selection, Schaeffer noted the
trial court selected fifteen jurors without identifying which
jurors were alternates. She testified she would have urged
Krogmann's counsel to object to this procedure. According
to Schaeffer, because of the lack of identification of which
juror were alternates, jury selection was harder for Krogmann
and put the defense at a "great disadvantage."
was also highly critical of the approach of Krogmann's
counsel to voir dire of the jury panel. She noted that during
voir dire, Krogmann's counsel asked many closed-ended
questions and did not give the potential jurors an
opportunity to talk enough for effective jury selection.
[I]f you don't allow them to talk based on the fact that
you're doing all the talking, then you're not
learning what their potential preexisting beliefs, attitudes,
biases are, and you can't make an informed decision on
whether they are a dangerous juror or not for you and your
to Schaeffer, without exception, you want the potential
jurors to talk more than the lawyer during voir dire and this
approach is supported by scientific research.
Schaeffer noted, based on her review of the jury selection
transcript, a lack of effective follow-up with potential
jurors who were able to speak. She criticized Krogmann's
counsel for asking jurors whether "you can be fair and
put [misconceptions of the law] aside"-a technique
Schaeffer would not recommend.
cited the fact that no potential juror was disqualified for
cause as support for her conclusion about the ineffectiveness
of the voir dire. She told the court it was "very
unusual" or "very rare" for the defense not to
have any for-cause strikes in a case of this magnitude.
Schaeffer testified scientific research on criminal cases, as
well as her work on Iowa cases, reveals jurors have
"attitudes about mental health" and "gun
use," which could support for-cause challenges.
Schaeffer attested the lack of for-cause strikes during voir
dire disadvantaged Krogmann.
Schaeffer testified "with reasonable certainty"
that if a jury consultant had been involved in the jury
selection, there would have been a different jury. Moreover,
according to Schaeffer, if she had been involved in the jury
selection, it would have been ...