from the Iowa District Court for Boone County, William C.
Andrew Powell appeals the denial of his application for
postconviction relief. AFFIRMED.
A. Mundy of Mundy Law Office, Des Moines, for appellant.
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
VAITHESWARAN, Presiding Judge.
found Joshua Andrew Powell guilty of first-degree murder in
connection with the strangulation of his wife. This court
affirmed his conviction. State v. Powell, No.
13-1147, 2014 WL 4930480, at *1 (Iowa Ct. App. Oct. 1, 2014).
filed a postconviction-relief application, raising several
ineffective-assistance-of-counsel claims and two additional
arguments that the court treated as ineffective-assistance
claims. Following an evidentiary hearing, the
postconviction court denied the application in its entirety.
the postconvicton court, we believe all the issues Powell
raises must be reviewed under an
ineffective-assistance-of-counsel rubric. The claims require
proof that (1) counsel's performance was deficient and
(2) prejudice resulted. Strickland v. Washington,
466 U.S. 668, 687 (1984). Our review of the record is de
novo. Goode v. State, 920 N.W.2d 520, 523 (Iowa
Failure to Seek a Change of Venue
contends his trial attorneys should have requested a change
of venue and his attorney on direct appeal was ineffective in
failing to raise the issue. In his view, the postconviction
court rejected the claim based on counsels'
"investigation and conversations with potential jurors
in the community" but failed to consider the biases of
the "actual jurors in the pool that was impaneled."
Rule of Criminal Procedure 2.11(10)(b) provides a mechanism
for a venue change upon motion when "the evidence
introduced in support of the motion [shows] that such degree
of prejudice exists in the county in which the trial is to be
held that there is a substantial likelihood a fair and
impartial trial cannot be preserved with a jury selected from
that county." "The question of when to seek a
change of venue is, however, a matter of professional
judgment about which experienced trial lawyers frequently
disagree." Fryer v. State, 325 N.W.2d 400, 413
(Iowa 1982). "[D]efense counsel's failure to seek a
change of venue does not reflect on competency, nor is it
indicative of ineffectiveness." Id. (quoting
Karasek v. State, 310 N.W.2d 190, 191 (Iowa 1981)).
The defense attorneys' decision not to seek a change of
venue was a calculated strategic choice made after
consideration of Powell's standing in the community, the
level of publicity, and knowledge of local jury outcomes.
primary trial attorney testified she "couldn't find
anybody to say anything bad about [Powell]." She said,
"Everybody liked him." Her co-counsel seconded the
opinion. She stated, "[J]ust with how positive his
reputation was in the community, we actually had a leg up on
respect to publicity, one of the attorneys stated,
"There wasn't a lot of publicity" outside one
town in the county. Counsel said that, although four or five
jurors were stricken for cause based on their familiarity
with the case, they did not have a chance to speak to the
other potential jurors about the case and she did not see the
number of strikes as overly significant.
outcomes, counsel testified, "[H]istorically we had more
confidence in Boone County juries than we would have"
had in juries from other counties. When asked whether in
hindsight she would have reconsidered her decision not to
seek a change of venue, she said, "Not really."
conclude Powell's trial attorneys did not breach an
essential duty in failing to move for a change of venue. It
follows that Powell's appellate attorney was not
ineffective in failing to raise the issue. We affirm the
district court's denial of the
Failure to Investigate and Present Evidence of Diminished
Capacity and Intoxication
next contends his trial attorneys were ineffective in failing
to present evidence in support of a diminished capacity or
intoxication defense. "[Ineffective assistance is more
likely to be established when the alleged actions or
inactions of counsel are attributed to a lack of diligence as
opposed to the exercise of judgment." Lamasters v.
State, 821 N.W.2d 856, 866 (Iowa 2012) (citation
begin with the claimed failure to raise a diminished-capacity
defense. "The common law defense of diminished
responsibility 'permits proof of defendant's mental
condition on the issue of defendant's capacity to form a
specific intent in those instances in which the State must
prove defendant's specific intent as an element of the
crime charged.'" Id. at 869 (citation
omitted). Powell's trial attorneys thoroughly analyzed
the costs and benefits of raising this defense. They required
Powell to undergo a psychiatric evaluation, and they
considered the evaluator's diagnosis of
intermittent-explosive disorder and its potential effect on
the jury. They elected not to present the evaluation and
diagnosis because the evaluation contained certain negative
information about Powell, presentation of the defense would
have allowed the State to obtain its own psychiatric
evaluation of Powell, and the diminished-capacity defense may
have steered the jury to second- degree murder rather than
the lesser offense of voluntary manslaughter. Powell's
primary attorney summarized the key weakness of presenting
the evaluation as follows:
I think the state would have really used that against us
quite a bit, and the picture that I wanted to paint of
[Powell] at trial was that he was this calm, mild mannered
person, which he always appeared to me to be. None of the
witnesses ever saw him angry, throwing punches, anything like
that. So that's who he was, and I wanted to have the jury
understand that that was his-that what happened with his wife
was just a complete lost it kind of manslaughter situation.
If they had known about previous anger problems, I think it
would have been made it even harder for us to get there.
Powell's attorneys thoughtfully considered the issue, we
conclude they did not breach an essential duty in declining
to present a diminished responsibility defense. See Heard
v. State, No. 16-0723, 2018 WL 1631378, at *2 (Iowa Ct.
App. Apr. 4, 2018) (finding no ineffective assistance in
failing to present a diminished-responsibility defense where
counsel "testified he reviewed a psychological
evaluation of [the defendant] in preparation for a
to the claimed failure to present an intoxication defense.
Iowa Code section 701.5 (2015) states:
The fact that a person is under the influence of intoxicants
or drugs neither excuses the person's act nor aggravates
the person's guilt, but may be shown where it is relevant
in proving the person's specific intent or recklessness
at the time of the person's alleged criminal act or in
proving any element of the public offense with which the
person is charged.
strangulation of his wife was essentially undisputed. As
noted, the defense strategy was to gain a
voluntary-manslaughter conviction rather than a first or
second-degree murder conviction. As defense counsel stated,
they wished to "acced[e] to the cause of death" and
"shift the focus away." According to defense
counsel, an intoxication defense would not have advanced that
strategy. In her view, intoxication would simply "take
[the offense] down to  second-degree murder, which carried
a thirty-five year mandatory-minimum sentence." In
addition, counsel lacked evidence to support an intoxication
defense because they did not have "anybody who was going
to testify that [Powell] was blacked out, stumbling
drunk." See State v. Guerrero Cordero, 861
N.W.2d 253, 259-60 (Iowa 2015) ("Partial drunkenness
does not make impossible the formation of said criminal
object. Therefore, the intoxication or drunkenness must be to
the extent that the designing or framing of such purpose is
impossible."), overruled on other grounds by Alcala
v. Marriott Int'l, Inc., 880 N.W.2d 699 (Iowa 2016).
Under these circumstances, we conclude counsel did not breach
an essential duty in declining to present an intoxication
defense. See Troupe v. State, No. 15-0678, 2016 WL
1661728, at *1-2 (Iowa Ct. App. Apr. 27, 2016) (finding no
ineffective assistance where "trial counsel consulted
with a psychiatrist in advance of trial in order to discern
whether an intoxication defense was viable").
affirm the postconviction court's denial of this
Failure to Investigate and Cross-Examine the Medical
argues his trial attorneys were ineffective in failing to
challenge and effectively cross-examine the medical examiner.
In particular, he contends counsel should have attempted to
impugn the medical examiner's testimony that it could
take two to five minutes to strangle a person to death. He
also argues the attorneys should have questioned the medical
examiner about a skin condition his wife had that may have