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Kehoe v. State

Court of Appeals of Iowa

December 18, 2019

MICHELLE LYNN KEHOE, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Buchanan County, Richard D. Stochl, Judge.

         The applicant appeals from the denial of her application for postconviction relief. AFFIRMED.

          Jonathan M. Causey of Causey & Ye Law, P.L.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Darrel Mullins and Andrew J. Prosser, Assistant Attorneys General, for appellee State.

          Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

          POTTERFIELD, JUDGE

         Michelle Kehoe appeals from the denial of her application for postconviction relief (PCR), following her 2009 convictions for murder in the first degree, attempted murder, and child endangerment resulting in serious injury. Kehoe argues she received ineffective assistance from trial counsel when counsel failed to 1) move to suppress the incriminating statements she made to police while in the hospital without first receiving Miranda warnings; 2) secure a different, more remote change of venue; and 3) raise the issue of Kehoe's competency to stand trial. In her supplemental pro se brief, [1] Kehoe joins some of the arguments made by counsel and also lists a number of errors she believes the PCR court made in its ruling.

         I. Background Facts and Proceedings.

         On Sunday, October 26, 2008, Kehoe drove her two sons, who were seven and two years old, to Jesup, Iowa. At approximately 12:30 p.m., she stopped at a convenience store and asked where a park was located so her children could play. The store clerk named a couple of local parks. Kehoe took the children to a different park, purposely dropped her cell phone, and left. Next, she took the children to a secluded spot she had previously found near Littleton, Iowa-a location just a few miles from the park. In the early afternoon, she parked her vehicle near a pond and told the children she needed to get out of the van. Kehoe opened the back hatch, used duct tape she had already ripped into pieces to cover her children's eyes, and then slit both of their necks using a hunting knife. She then doctored the scene, making it look like someone had attempted to perform first aid on the children and setting out a note detailing how a strange male had attacked them. She then slit her own throat.

         Kehoe lost consciousness for some time, but she came to the next day and walked to a nearby home for help. There, she told the woman who came to the door that she and her children had been attacked by a man. The woman in the home called for help immediately, at approximately 7:30 a.m. on October 27.

         Once local medical personnel and police responded, Kehoe was airlifted to the University of Iowa Hospitals. When police located the van next to the pond, the youngest child had died from the wounds to his neck. The older child was alive and in the van. He told the first responders that his mother had taken him out of the van into the woods and cut him with something; he said he began kicking her and she left him alone. He relayed that his mother went to his brother next and that he passed out after he heard his brother screaming. According to the seven year old, he woke up later and then got back in the van and hid. He also told the medics that his mother had covered his eyes with duct tape.

         Agents from the Iowa Department of Criminal Investigations (DCI) first made contact with Kehoe at approximately 10:00 a.m. on the morning of October 27, before she went into surgery. Kehoe was intubated and unable to speak. The agents asked Kehoe if she could answer their questions and she indicated with her hands that she would need to write. An agent gave her a notepad and pen and asked her what happened. She wrote a note detailing that a man attacked them, indicating[2] a man hid in the back of the van in Jesup; she could see him in her rear view mirror after they left the playground; he indicated she should turn east; she decided to use pepper spray she had with her to get away from him but he overpowered her, taped her up, and cut the boys; she regained consciousness and tried to help the children with the first aid kit, but the man came back and attacked her with a knife, and then she lost consciousness again. She also told the police that she had tried to write a note explaining the attack and that it was on a yellow paper in the van. According to the agent's testimony, the interaction with Kehoe took approximately three minutes and then she went into surgery.

         The DCI agents next met with Kehoe at approximately 11:30 a.m. the next day, October 28. According to the trial testimony of Agent Chris Callaway, he and Agent Darrell Simmons spoke with Kehoe while she was in a hospital room, "laying in a bed, somewhat upright with-she was hooked up to some machines or various medical equipment." The agents asked medical staff if she was able to communicate with them or whether the medication she was taking or her injury would prevent it. They "had no indication that there would be any problem." Kehoe was still unable to speak during the meeting, so the agents asked her questions and then Kehoe wrote responses on paper. Additionally, the agents recorded the interview.[3] Agent Callaway began by telling Kehoe to let him know if at any time she did not want to talk anymore or needed a rest. Kehoe asked how her children were, and the agent did not respond. He then asked her what happened, and Kehoe again described the same allegation about a man who attacked them, including details about his weight, glasses, hair color, age, height, clothing, smell, the tone of his voice, and scars. During the interview, a nurse came in to check on and provide care for Kehoe; the agents left the hospital room for ten to fifteen minutes during this time.

         Agent Callaway testified that when they returned, Kehoe immediately resumed writing answers without further prompting or questions from the agents. As she continued to provide an account of what she claimed took place, Kehoe wrote, "When Aunt Colleen was here yesterday [the oldest son] said I was trying to hurt him-trying to stop the bleeding. Turning head, applying pressure over [youngest son]-already purple lips. Cradled both of them." Agent Callaway understood this statement to be an explanation of why the oldest child had reported his mother was the one who hurt him. Agent Callaway initiated a second break, which he used to speak with the other agent and investigators outside of Kehoe's hospital room in order "to get a plan together to go back in and confront her on some of these things that [they] knew not to be true."

         When the agents returned again, Agent Callaway told Kehoe that comparing her responses to what the investigators found at the scene, he still had more questions with which he thought she could help. Kehoe responded, "How can I help?" Agent Callaway asked more specific questions about Kehoe's previous statements before telling her that her oldest son was alive and "doing all right." He then told her a story about a traffic accident he experienced when he was a state trooper involving a father who had fallen asleep while driving and whose son died as a result of the accident. After some more back and forth, Agent Callaway told Kehoe her story did not make sense and did not match what the oldest son was reporting. Kehoe then confessed to her actions. She told the agents where she purchased the knife. A nurse came back into the room then, and the agents left for another ten to fifteen minutes. While they were away, Kehoe wrote a note to the nurse asking to have the agents come back.

         When the agents came back, Kehoe provided details, including that she slit the throat of her oldest son first because he is older and the youngest child would remain contained in the vehicle until she returned for him. The agents asked her about the duct tape she used, and Kehoe responded she had purchased it "a couple months ago" and told them where she purchased it. They asked her if she purchased the duct tape for this reason, and she responded, "It's sickening isn't it." She also told the agents the note she left in the van detailing the attack by an unknown man was first written a month before and then she rewrote it the morning of the incident.

         Kehoe was charged with first-degree murder, attempted murder, and child endangerment resulting in serious injury.

         Kehoe moved to have the venue of the trial changed from Buchanan County. To that end, on September 18, 2009, fifty-five potential jurors were sworn in and provided with a jury questionnaire for a mock jury in Buchanan County. The court excused fourteen potential jurors based on their answers to the questionnaire. A number of other potential jurors were interviewed by the attorneys. Based on the prospective juror's responses, the court concluded approximately fifty percent of the prospective jurors held such a fixed opinion of the merits of the case that they could not impartially decide Kehoe's guilt or innocence. Additionally, the court noted the case had received extensive pretrial publicity in the area. The court granted Kehoe's motion for change of venue.

         The trial took place over several days in October and November 2009 in Grundy County. Kehoe did not contest that she was the actor who slit her children's throats; she relied on a defense of legal insanity. Kehoe did not testify in her own defense, but two experts testified as to their opinion Kehoe was legally insane at the time of the incident. Both opined that while Kehoe understood the nature and quality of her actions-that she was, in fact, slitting the throats of her children and that such an action would cause death-she could not distinguish right from wrong at the time she did so. The experts noted Kehoe's stated belief that death would save the children from having their own experiences with mental-health issues and the shame of having a mother who died by suicide. Additionally, Kehoe believed that because of the children's ages, they would get to heaven and have eternal life there. The State's expert opined that Kehoe was not legally insane at the time of her actions, noting that she had taken great steps to conceal her identity as the perpetrator and her continued lie after the fact.

         The jury convicted Kehoe of all three counts as charged.

         Kehoe challenged her convictions on direct appeal, arguing trial counsel provided ineffective assistance in three respects: failing to challenge the constitutionality of Iowa Code section 701.4 (2007), which defined the legal standard for the insanity defense in Iowa; failing to request a jury instruction on the consequences of a verdict of not guilty by reason of insanity; and failing to object to the marshalling instruction on attempted murder as not including malice aforethought as an element. A panel of this court affirmed Kehoe's convictions. See State v. Kehoe, 804 N.W.2d 302, 313 (Iowa Ct. App. 2011). Procedendo issued on September 23, 2011.

         Kehoe filed her application for PCR on September 18, 2014, alleging trial counsel provided ineffective assistance in ten respects.

         By the time of the PCR trial, in September 2017, Kehoe had abandoned some of her claims. She contended trial counsel provided ineffective assistance by failing to 1) explain and advise Kehoe as to her right to testify; 2) call Kehoe as a witness at trial; 3) discuss the pros and cons of Kehoe testifying with her, which prevented Kehoe from participating in the decision of whether she should testify; 4) adequately seek a change of venue or otherwise contest the change of venue to Grundy County; 5) obtain proper medication treatment or medication for Kehoe leading up to and during the trial, which rendered Kehoe unable to participate in the proceedings; and 6) appreciate that Kehoe was unable to participate in her own defense during trial due to her mental status. Neither the State nor Kehoe asked the PCR court to take judicial notice of the record from the underlying trial. Kehoe introduced into evidence twenty-nine exhibits, which were generally notes from mental-health providers who treated Kehoe before and after the trial. The State introduced seven exhibits: the transcript of the trial, a transcript of ...


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