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Linn v. State

Supreme Court of Iowa

June 14, 2019

STATE OF IOWA, Appellee.

         On review from the Iowa Court of Appeals.

          Appeal from the Iowa District Court for Muscatine County, Nancy S. Tabor, Judge.

         Cathryn Ann Linn seeks further review of a summary disposition in her postconviction-relief proceeding.

          Darrell G. Meyer, Marshalltown, (until withdrawal), and then Thomas A. Hurd of Glazebrook & Hurd, LLP, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, Alan R. Ostergren, County Attorney, and Korie L. Shippee, Assistant County Attorney, for appellee.

          APPEL, JUSTICE.

         In this 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).[1]To prove the claim, she sought a court-appointed BWS expert.

         After 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.

         Linn appealed, assigning error to those rulings and claiming ineffective assistance of PCR counsel. The court of appeals affirmed, and we granted further review.

         We hold 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 causes BWS.

         This 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.

         We vacate the court of appeals' decision, reverse the district court's judgment, and remand to the district court for further proceedings.

         I. Factual Background.

         The summary disposition record shows the following facts.[2] 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 2006.

         Linn 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.

         At the 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. Clotheslining[3]me, 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.

         Then he would kiss her.

         Blanchard 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.

         In the 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 sexual act.

         They drank to the point of intoxication much of the time they were together. At times, they also used methamphetamine.

         Linn 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 friends.

         After 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.

         While 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 February 6.

         When 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.

         Towards 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.

         Once 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.

         Additionally, 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.

         On 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 snow.

         Later 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.

         Upon 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.

         Blanchard 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 living room.

         Blanchard 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.

         Sometime later, Blanchard came into Linn's room and offered her marijuana. She smoked some of the marijuana.

         Blanchard 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.

         Up 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."

         They 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.

         After 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 was found.

         At 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 call.

         Blanchard 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.

         Blanchard 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.

         Irritated 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."

         At that point, Blanchard hit Linn in the mouth. This was not long after the friend came for the drop cord. Linn receded to the bedroom.

         Linn 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.

         At some 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.

         While 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."

         Around 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.

         The two 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.

         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 kill him."

         Linn 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."

         About a 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 bed.

         While 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 car,

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.

         On the 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."

         At the police station, Detective Lawrence interviewed Linn for approximately four hours. He employed the Reid technique[4] 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.[5]

         Apparently 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.

         During 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 inconsistencies.

         The 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.

         After 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).

         II. Procedural Background.

         In 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.

         For six 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.

         In 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.

         She 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.

         On July 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.

         The 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 response.

         On 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.

         On 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" for $4000.

         On 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.

         The 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 evidence.

         One 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.

         The 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.

         In its 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 ...

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