review from the Iowa Court of Appeals.
from the Iowa District Court for Muscatine County, Nancy S.
Ann Linn seeks further review of a summary disposition in her
Darrell G. Meyer, Marshalltown, (until withdrawal), and then
Thomas A. Hurd of Glazebrook & Hurd, LLP, Des Moines, for
J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Alan R. Ostergren, County Attorney, and
Korie L. Shippee, Assistant County Attorney, for appellee.
case, an applicant for postconviction relief (PCR), Cathryn
Ann Linn, claimed in the proceeding below that her trial
counsel was ineffective for not adducing evidence of battered
woman syndrome (BWS).To prove the claim, she sought a
court-appointed BWS expert.
Linn waited more than a year to learn whether the district
court would appoint an expert, the State moved for summary
disposition. The district court then denied Linn's
request to appoint an expert and, in the same order, cited
her failure to provide an expert in granting summary judgment
for the State.
appealed, assigning error to those rulings and claiming
ineffective assistance of PCR counsel. The court of appeals
affirmed, and we granted further review.
the district court abused its discretion in denying the
expert. We also hold the summary disposition was erroneous.
The district court's errors include (1) viewing the facts
in the light most favorable to the moving party instead of
the nonmoving party as required by our law; (2) drawing
inferences in favor of the movant instead of the nonmovant as
required by our law; (3) relying on the lack of an expert in
the very order that the court first addressed, and denied,
Linn's request for appointment of an expert; and (4)
concluding the record did not show facts to support
Linn's claim that BWS should have been raised at her
trial in spite of a trial transcript with evidence of
physical, psychological, and verbal abuse of the type that
case does not call upon us to decide whether Linn suffered
BWS. This is especially true on review of a summary
disposition, when the question before us is merely whether
there is a genuine dispute that Linn's trial counsel was
ineffective. Answering that question requires us to consider
whether Linn might be a BWS victim.
vacate the court of appeals' decision, reverse the
district court's judgment, and remand to the district
court for further proceedings.
summary disposition record shows the following
facts. Linn was approximately forty-two years old
in 2006. She is from Muscatine County. Barry Blanchard was
also from the Muscatine County area but moved around after
high school. He returned to Muscatine County in the fall of
and Blanchard began dating in the fall of 2006. They had
dated for a short while a couple decades earlier. Their more
recent relationship began well, and they saw each other a
lot. Linn felt they were in love. Linn told Jeff Scott,
Blanchard's friend, that she and Blanchard got along
great and that she really liked him. Linn cared for
Blanchard, gave him money, and let him use her food stamp
card even though he would spend her money and not bring back
change. During this time, Blanchard had access to most of
Linn's financial resources.
same time, Blanchard threatened and struck her. He warned,
"[N]obody else [is] going to ever have you." And,
according to Linn's trial testimony,
He'd always - he had always told me that he would cut me
from my [stem to stern and rape me] while I was still
bleeding, and he had told me that [on] several occasions.
Clothesliningme, making me repeat it to him. Probably
more than 15, between 15 and 20 times I had to repeat it, or
he would say it to me.
would kiss her.
also told Linn of previous violence, including that he killed
someone in California, killed people in the military, and
beat his ex-partner, Vicki Espinoza, "within an inch of
her life." An officer who responded to a domestic
assault between Blanchard and Espinoza in 1999 described
Espinoza's face as bloody and bruised. One year earlier,
Blanchard was charged with simple assault for fighting with
Espinoza's ex-husband. In 1995, Blanchard dared a police
officer, "Go ahead and mace me," before being taken
into police custody on a disorderly conduct charge. Blanchard
warned Linn that knowing his history, she "better not
f***ing piss him off." Blanchard had a reputation for
being tough and intimidating people.
beginning of their relationship, Linn did not take
Blanchard's threats and potential for violence against
her seriously. She thought he was showing her dominance
because he knew that she liked to be dominated. Linn
consented to certain rough sex acts with Blanchard; if the
two were already engaged in sexual intercourse she allowed
Blanchard to put his hands around her throat to temporarily
decrease oxygen flow. Still, Linn made clear to Blanchard
that physical aggression when they were not having sexual
intercourse was unacceptable. "[G]rabbing [Linn] in a
physically aggressive manner" was not "part of a
mating ritual." Linn never had any type of physical
encounter with Blanchard that would have led him to believe
that coming into her room and strangling her was part of a
drank to the point of intoxication much of the time they were
together. At times, they also used methamphetamine.
owned a rifle that belonged to her ex-husband before he
committed suicide. She knew how to use the weapon and was not
afraid of it. She took weapons safety courses. Blanchard knew
of the rifle and would often take it out to show off to his
Linn and Blanchard began their relationship in the fall of
2006, Blanchard was arrested on Thanksgiving Day for an
outstanding warrant. He was imprisoned for forty-five days.
Blanchard was in prison, he was "adamant" that
"he would hurt [Linn] or any other individual if he
found [her] with another individual" or "if [he]
even [thought she was] with another individual." Also
during this time, Linn had gallbladder issues and
complications from surgery which continued until at least
Blanchard got out of jail, he and Linn continued their
relationship. Blanchard began residing at Linn's house
the day he got out of jail.
the end of January 2007, approximately two weeks before
February 6, Linn told Blanchard that the relationship was not
working and he had to move out. He acceded and continually
told her that he would move out. But during the two weeks
before February 6, he did not do so. She "kept thinking
okay, he said today's the day, today's the day,
today's the day. Two weeks . . . passed with today's
the day." Linn made some calls to nearby shelters or
gave Blanchard information to make the calls himself.
Blanchard skipped appointments in which he was to talk with
people at shelters. Linn asked him to stay with his friend
Scott or with his family, but "he told [her] no . . .
and he just did not leave." Linn also tried to help
Blanchard get a job, but he did not follow through.
she told him that their relationship was at its end, Linn
became scared and intimidated by Blanchard because of his
threats and stories of previous violence. Linn explained that
"during this last month period, and the last two-week
period, . . . [she] just wanted to get out safe. [She]
didn't want it to ever turn violent. [She] just wanted
[them] to part ways." She "had no reason not to
believe that he would kill [her]. . . . He was very adamant
about letting [her] know that if [she] messed up, [she] would
be dead." Yet Linn did not like involving the police.
And during the two weeks before February 6, they were not
fighting to the point that she needed to call the police to
have Blanchard removed from the home.
after she told Blanchard that their relationship was over,
Linn began noticing that Blanchard was taking some of her
possessions. These included her money, medicine, and
cigarettes. She began hiding these things.
February 6, Blanchard called his friend Scott. Blanchard told
Scott that he and Linn were splitting up, it was mutual, he
was moving out, and he would go to California if he did not
get a job within a week. Blanchard also called Kim Crees,
Scott's girlfriend and Linn's acquaintance, that
morning. He told her that he and Linn were splitting up and
they were not fighting; rather, it just was not working out
and he was excited that he got a job for the day shoveling
that day, in the afternoon, Linn called Blanchard en route to
her home after a visit to an Iowa City hospital. Blanchard
told Linn that he could not move to a shelter because of
something in his past.
Linn's return to her home, she found Blanchard on the
sidewalk near the house holding a shovel. Blanchard told Linn
he had nowhere to stay that night and asked if he could sleep
in her car or porch. Linn understood this request in the
context that "he knew [her] persona well enough that
[she] would not allow that to happen." Linn believed
"[Blanchard] knew [she] would say no" to him
spending the night in the car or on the porch. Linn allowed
him to spend the night on a couch in the living room of her
home because it was bitter cold outside. That allowance was
not an invitation for him to spend the night in her bed or to
have sex with her.
left in the afternoon to work a snow shoveling job and came
back to her house later that evening. Because of her medical
issues, Linn was experiencing "[n]ausea, pain. [She]
couldn't do a lot of walking around and lifting. [She]
laid down, [she] was in bed a lot, laying down. Throwing up
some. . . . Lots of pain." She spent much of the
afternoon while Blanchard was gone cuddling with her son on
the couch. Blanchard returned to the house sometime between
6:00 p.m. and 6:30 p.m. He offered her the money he earned.
She refused and said he should keep it because he was going
to be starting out on his own. Linn took her son to his
father's house at 7:00 p.m. Linn retired to her bedroom
to read while Blanchard listened to heavy metal music in the
left to buy alcohol. When he returned, she heard him open a
can, she asked if it was beer, and when he said yes, she went
to the refrigerator and retrieved one. Then she went back
into her bedroom to read. At trial, Linn estimated it was
between 8:15 p.m. and 8:30 p.m. at this point.
later, Blanchard came into Linn's room and offered her
marijuana. She smoked some of the marijuana.
asked Linn to get drugs for them-"[p]robably coke or
meth"-and became agitated when she refused. Linn did not
want to jeopardize her situation with her children and could
not afford to spend any money on the drugs. Blanchard's
disposition changed and tension built. He kept asking her
throughout the night to call someone for drugs, and she
continued to refuse.
until that point, according to Linn, they had not had
"any cross words" all day. Yet they "were
still real kind of cold with each other, him knowing that
tomorrow he would be leaving." Eventually, Linn went to
the living room to talk to Blanchard. She said, "I'm
not feeling good about us not even talking tonight," and
"[W]e've been in a short relationship." Linn
suggested, "Why don't we just get some beer and get
along tonight . . . instead of putting the last night that
we're going to be together into this feeling." Linn
explained at trial that "it was an ugly feeling for
[her] inside" because she "did care for
[Blanchard]," but she "played the tape a little bit
farther down the road and was certain [there were] other
issues relating to [their] relationship [that she] could not
take . . . on."
decided to try to end their relationship on friendly terms
and drink alcohol together. So Blanchard left at about 9:40
p.m. to buy vodka, beer, and cigarettes. While he was out,
Linn hid her billfold, food stamp card, and a cigarette.
Blanchard arrived with alcohol and cigarettes but forgot some
of the alcohol so he had to go back to the store.
his return at 10 p.m., Blanchard left to walk the dog for
about twenty minutes. Linn stayed in the house drinking and
preparing Blanchard's first drink. Upon his return, the
two began drinking heavily. Linn made him several more
drinks. By the end of the night, each had a blood alcohol
level above 0.18. No indication that either had used drugs
11:06 p.m., Blanchard called his friend Scott to say that he
shot Linn, it was a big mess, and he needed Scott's
truck. This was a practical joke. Scott heard Linn laugh in
the background. Scott also heard Linn remark that she could
not believe Scott would not come help his best friend
Blanchard dispose of her body. Scott admonished Blanchard,
telling Blanchard that it was wrong to call him like that.
Scott recognized that Blanchard was drunk during the phone
and Linn were talking in the living room. A good friend of
Linn's called to borrow a drop cord. About seven to ten
minutes later, the friend arrived to borrow the cord. Linn
teased the friend by first offering a six-inch telephone
cord, then gave him the drop cord. The friend left. Linn sat
at her end of the couch holding the telephone cord.
told Linn to stop swinging the telephone cord because it was
bothering him. She responded by telling Blanchard that she
did not like the heavy metal music that he was playing. She
started asking him what he saw in the music and was
subconsciously swinging the cord. "That's when the
pleasantries seemed to dissipate." The fact that
Blanchard may have been homeless the next day could have also
aggravated the situation.
with her swinging the cord, Blanchard told her to "knock
it the f*** off" and asked, "How many marks do you
want in the morning, bitch?" He continued, "I'm
going to leave you with marks, bitch. You better stop
swinging that, bitch." "[She] was upset for the
tone of voice, for the -- for the threat, because at this
point past the first part of [their] relationship [she] knew
that he meant he was going to put marks on [her] body."
Linn responded, "You're not going to sit there and
tell me what to do in my own house . . . . I can swing it if
I want to . . . ." He called her a bitch a couple more
times, she replied by calling him a bitch, and he retorted,
"You don't call me that." Linn was upset and
felt that Blanchard was going to beat her. At trial, Linn
testified, "[I]t was just . . . two drunks saying the
same thing back and forth."
point, Blanchard hit Linn in the mouth. This was not long
after the friend came for the drop cord. Linn receded to the
was sitting on her bed crying and scared. She did not want to
call the police but wanted Blanchard out of the house.
Blanchard was screaming at her from another part of the
house. Among other things, he said, "You made me do it,
you know what I'm capable of." He also repeated his
refrain that he would rape her dead or alive.
point during the evening, Linn placed two calls to Scott. The
trial transcript suggests the calls occurred at 11:48 p.m.
One of the calls went to Scott's voicemail. Crees
answered the other call. Crees testified she was uncertain
about the time of the calls. In the call Crees answered, Linn
stated in a "demanding" voice that Blanchard's
friend Scott had to come get Blanchard. Crees asked Linn to
put Blanchard on the phone. Linn responded that he would not
get on the phone. Crees did not hear Blanchard say he would
not get on the phone. Crees also testified, "[Linn] said
that 'you know me, I won't call the' -- I
don't know if she said 'cops' or 'call
anybody, I'll take -- deal with it myself.' Something
to that effect." Crees did not remember if there was
anything more to the phone call or how it ended. Linn
testified that those two phone calls occurred before the
shooting. Linn "was getting scared. [She] was
scared." Linn said that the self-help she referred to in
the call was from gang members or other people who had
previously helped her remove men from her home. She preferred
this to involving the police, she noted, because no one would
be arrested for drugs or drug paraphernalia.
Linn was seated on the bed, Blanchard abruptly entered the
bedroom. He sat on the bed, they talked, then he got up and
began removing his clothing "to [rape her] dead or
alive." The situation was "spinning out of
control" and both were screaming. Blanchard began
strangling her and told Linn that he was going to have sex
with her. She said, "No, you're not."
this time, one of the two of them removed a rifle from the
closet. Someone took the gun out of its case and placed it on
the bed where both were now seated. Both began touching and
handling the rifle.
continued to scream and struggle with each other. Blanchard
had one hand on Linn's throat choking her. This was not a
consensual sexual act, and Linn had told him on prior
occasions that this behavior was unacceptable. She explained,
"He was hurting me. It wasn't the type of
strangulation that we shared during intercourse. It was a
more -- a different position of hands on my throat, a
different feeling. I could not breathe." Linn was
frightened and tried to remove his hands so she could
breathe. She "felt that [she] was being choked to die,
or to submit." She believed that Blanchard was going to
kill or rape her, or both.
still had their hands on the rifle. Blanchard dared Linn to
shoot him. He said, "Do it, do it, do it, do it."
When asked on cross-examination whether the gun was pointed
at Blanchard's chest, Linn acknowledged the photos would
support that conclusion. The gun went off and one shot was
fired. Linn did not know who, if anyone, had been struck.
Linn looked and saw she had not been shot. The next thing she
knew, Blanchard was on the floor, and she realized he was the
victim of the weapon's discharge. The bullet struck
Blanchard in the chest. Blanchard's body had powder burns
suggesting he was shot from close range. Linn testified,
"I just wanted him out, but I didn't intentionally
called 911 at 12:02 a.m. on February 7. She testified that
she called 911 immediately after the shooting. She was in
shock. She wanted someone to come save Blanchard. She told
the 911 operator that she shot Blanchard. She testified that
she told this to the operator "because [she] was not the
one laying on the ground."
minute after her 911 call, police began arriving at her
house. Linn was still in shock and left the house screaming,
"Help him, help him." One police officer described
Linn as "hysterical," while another stated that
"[s]he was very upset, crying, and appeared to be
extremely confused." She was outside wearing a
nightgown, and officers retrieved some boots and a coat for
her. Police entered the residence and found Blanchard's
body in the bedroom. The rifle and a gun case were on the
the officers investigated, Linn was outside on the porch. An
officer inside yelled out, "Is she saying she shot
him?" The question was posed to Linn, who answered,
"Yes." Linn further stated, "I only had one
gun and one bullet, and I shot him because he was not being
nice to me." As one officer walked Linn to the squad
she was ranting about the subject not hurting her again,
making statements that he'd hurt her in the past and was
going to hurt her tonight, and it was all over, and she'd
asked . . . if he was dead and [the police officer] said that
[he] believed he was.
drive to the police station, Linn asked the police officer
driving her if Blanchard had died. The officer replied that
he did not know. Linn also stated, "My life has ended up
as [a] murder."
police station, Detective Lawrence interviewed Linn for
approximately four hours. He employed the Reid
technique as modified by his prior experience and
his observations of Linn. According to the opinion of the
court of appeals, Linn asked during the interview, "Did
I kill him?" and "Did he die?" The detective
untruthfully told her that he did not know. The court of
appeals also stated that during the interview, Linn admitted
to threatening Blanchard with the rifle.
Linn stated during the interview that she got the gun out of
the closet and that she and Blanchard were playing around
with the gun on the bed. At times, according to Detective
Lawrence, Linn noted that she was not afraid of anyone and
was not afraid of Blanchard. Also, according to the court of
appeals, Linn stated that she told Blanchard no one was going
to tell her what to do in her house. But she also averred
that he was strangling her. Additionally, according to
Detective Lawrence, "She also made mention during that
interview that the reason why she knew she could have balls
that big is because she knew that there was a gun back there
that she [could] go get." There were some things Linn
stated she did not know to which Detective Lawrence thought
she had to know the answer, such as who loaded the weapon.
Throughout her testimony at trial, Linn repeatedly stated
that she was drunk during the interview, did not remember the
interview, and could not explain what was going through her
mind when she made statements during the interview.
the interview, Detective Lawrence sought to determine whether
there was a history of domestic abuse. To do so, he asked
Linn what she wears to bed at night and her sexual history
with Blanchard. He did not determine anything from his
questions because, in his view, there were a lot of
State charged Linn with first-degree murder. During her
trial, Linn asserted the shooting was justified as
self-defense. She also asserted the shooting was an accident.
No BWS expert witness was called, and BWS was not raised as
part of her defense.
the trial, the jurors deliberated for about three-and-a-half
hours. The jury found Linn guilty of first-degree murder. She
was sentenced to life imprisonment. Her conviction was
affirmed on appeal. Linn v. State, No. 07-1984, 2009
WL 605968, at *1 (Iowa Ct. App. Mar. 11, 2009).
2009, Linn applied pro se for postconviction relief. She
asserted, among other claims, that her trial counsel was
ineffective for not raising BWS in her trial or seeking to
admit BWS evidence. She noted that she had asked the trial
counsel to put BWS evidence into the trial. She also stated
that an evaluation regarding BWS and her mental health was
not attached to the postconviction application.
years after Linn's initial PCR application, no action was
taken. The State never filed an answer. Meanwhile, a number
of court-appointed attorneys were replaced.
2015, Linn filed an "application for authority to retain
[an] expert on battered woman syndrome." She cited our
opinion in State v. Frei, 831 N.W.2d 70, 74 (Iowa
2013), overruled on other grounds by Alcala v. Marriott
Int'l, Inc., 880 N.W.2d 699, 708 & n.3 (Iowa
2016), contending that the decision supports her position
that expert BWS testimony is relevant to a justification
defense. Linn asserted,
[I]n order to determine whether trial counsel was ineffective
in failing to call an expert witness to testify regarding
[BWS] and its relevancy to [her] justification defense, it is
necessary for PCR counsel to retain an expert to review the
reports and transcripts relevant to this issue, and to
discuss said issue with PCR counsel and, if requested, to
provide a report setting out the same.
also stated that Lauri Schipper, a sociology professor at the
University of Iowa, was willing to serve as her BWS expert
and noted that we previously found Schipper to be a BWS
expert in State v. Griffin, 564 N.W.2d 370, 374
(Iowa 1997). Finally, Linn contended that it was necessary
and in the interests of justice to grant her request to
retain the BWS expert at public expense because Linn was
incarcerated, indigent, and could not reasonably afford to
retain the expert. Thus, she requested approval to retain the
professor and incur costs up to $2500.
21, 2016, a few months after appointment of a new attorney,
Linn amended her PCR application. She asserted that her trial
counsel failed to perform an essential duty by not
investigating BWS and not advising her on the wisdom of
presenting BWS evidence, especially since Linn asked trial
counsel to investigate BWS. Linn asserted that trial
counsel's failure prejudiced her because important
factors surrounding the circumstances of Blanchard's
death were not presented to the jury. Consequently, she said,
she was deprived of effective counsel guaranteed by the Sixth
Amendment. See U.S. Const. amend. VI.
next day, the State served interrogatories on Linn. The State
asked Linn to identify the facts that would have supported
the use of BWS as a defense strategy. The State also asked
Linn to identify any BWS expert who would testify in the PCR
proceeding. Linn responded on September 8 that her
investigation was ongoing and she would supplement the
September 19, the State filed a motion for summary
disposition. The State argued there were no material facts in
dispute, pointing to Linn's discovery responses. The
State also contended that Linn would be unable to show that
her attorney was ineffective because BWS would have been
inconsistent with her theory at trial that the shooting was
an accident and, therefore, the failure to present BWS was a
strategic decision. Attached to the State's motion were
the transcript of Linn's trial, the court of appeals 2009
decision affirming her conviction on direct appeal, and
Linn's interrogatory responses.
November 10, Linn again moved for a court-appointed expert.
Noting that her claim involved technical medical expertise
regarding BWS, she explained that neither she nor her
attorney had the expertise required to evaluate the claim.
She stated that she had found another BWS expert willing to
provide the court "an objective written assessment"
December 1, Linn filed a resistance to the State's
motion. She argued that a genuine issue of material fact
still existed. She also contended that granting the
State's motion would not afford her the opportunity to be
heard on her claims. Linn attached her amended PCR
application, but nothing else, to her resistance.
State replied one day later, observing that Linn failed to
present materials in support of her claim. The State also
contended that because she ultimately bears the burden of
proof, she could not wait until the hearing to share her
week later, the trial court granted the State's motion
for summary disposition. The court said,
Viewing the record in the light most favorable to the moving
party the Court finds that the general statements in the
Applicant's original and amended Application for Relief
do not set forth specific facts showing any genuine issue of
material facts. . . . She ha[s] not provided the Court with
any affidavits or other materials which would tend to show
the existence of a factual dispute.
court then turned to specifically address Linn's claim
regarding BWS, stating that
Linn's claim that trial counsel was ineffective for
failing to raise [BWS] fails. She provides no information as
to what facts were available to her trial counsel to support
such a claim. She provides no expert witness testimony by
affidavit to explain how a jury might have been told that the
syndrome was relevant. And, more importantly, the State of
Iowa correctly notes that such syndrome evidence would have
been inconsistent with her trial testimony about the nature
of the shooting. Linn cannot demonstrate that her trial
counsel's performance was deficient and there is no
evidence of resulting prejudice.
decision, the court also denied Linn's motion to retain
an expert at state expense. Thus, the district court must
have been aware of the ...