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Powell v. State

Court of Appeals of Iowa

June 19, 2019

JOSHUA ANDREW POWELL, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Boone County, William C. Ostlund, Judge.

         Joshua Andrew Powell appeals the denial of his application for postconviction relief. AFFIRMED.

          Nathan A. Mundy of Mundy Law Office, Des Moines, for appellant.

          Thomas 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.

         A jury 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).

         Powell filed a postconviction-relief application, raising several ineffective-assistance-of-counsel claims and two additional arguments that the court treated as ineffective-assistance claims.[1] Following an evidentiary hearing, the postconviction court denied the application in its entirety. Powell appealed.

         Like 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 2018).

         I. Failure to Seek a Change of Venue

         Powell 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."

         Iowa 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. See id.

         Powell's 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 that."

         With 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.

         As for 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."

         We 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 ineffective-assistance-of-counsel claim.

         II. Failure to Investigate and Present Evidence of Diminished Capacity and Intoxication

         Powell 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 omitted).

         We 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.

         Because 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 diminished-capacity defense").

         We turn 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.

         Powell's 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").

         We affirm the postconviction court's denial of this ineffective-assistance-of-counsel claim.

         III. Failure to Investigate and Cross-Examine the Medical Examiner

         Powell 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 ...

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