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Krogmann v. State

Supreme Court of Iowa

June 22, 2018

STATE OF IOWA, Appellee.

         On review from the Iowa Court of Appeals.

          Appeal from the Iowa District Court for Delaware County, Thomas A. Bitter, Judge.

         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.

          Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, Martha A. Trout and Robert H. Sand, Assistant Attorneys General, and John Bernau, County Attorney, for appellee.

          APPEL, JUSTICE.

         In this 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.

         Krogmann 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.

         I. Background Facts and Proceedings.

         A. Introduction.

         On 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 residence.

         Krogmann 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 permanent injuries.

         B. Order Freezing Assets.

         On 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 entirety,

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.

         Notably, 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."

         The 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 on 3-30-09."

         On 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 application.

         Like the asset-freeze application, the order granting the freeze did not cite any authority or legal basis for the asset freeze.

         Nadler 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.

         While 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.

         Due to 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."

         C. Applications Submitted to the Probate Court Pursuant to Freeze Order.

         Pursuant 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.

         On June 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.

         On 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.

         On 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, [1] the probate court approved use of Krogmann's assets to pay for his criminal defense attorneys and some defense expenses.[2]

         On October 16, Krogmann's conservator, pursuant to Krogmann's criminal defense attorney's[3] 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.[4] 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 consultant.

         D. Trial Proceedings.

         The case came to jury trial on November 2, 2009.

         1. Opening statements.

         In opening statements, the State[5]emphasized 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 subsequent arrest.

         The 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.

         The 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.

         2. Evidence presented at trial.

         The 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.

         The 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.

         After 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.

         Krogmann 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.

         On 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.

         The 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.

         According 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 13.

         On 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.

         The 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.

         3. Jury instructions.

         After 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.

         The specific intent and diminished responsibility jury instructions submitted by the court were Instructions No. 24 and No. 25. Instruction No. 24, the specific intent instruction, provided,

"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.

         Instruction 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 "diminished responsibility."
Evidence of "diminished responsibility" is permitted only as it bears on his capacity to form specific intent.
"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 intent required.

         4. Closing arguments.

         The 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.

         The 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.

         5. Jury verdict, sentence, and award of restitution.

         After 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.

         E. Direct Appeal.

         Krogmann 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.

         With 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.

         With 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.

         F. PCR Proceedings.

         1. Overview of proceedings.

         After 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.

         The PCR 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.

         2. PCR testimony of jury consultant Marygrace Schaeffer.

         Schaeffer 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.

         On the 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."

         Schaeffer 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. Schaeffer opined,

[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 client.

         According 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.

         Additionally, 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.

         Schaeffer 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.

         Finally, 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 ...

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