from the Iowa District Court for Buchanan County, Richard D.
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.
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,
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,  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.
Background Facts and Proceedings.
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.
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.
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.
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 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
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. 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.
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."
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
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.
was charged with first-degree murder, attempted murder, and
child endangerment resulting in serious injury.
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.
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.
jury convicted Kehoe of all three counts as charged.
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.
filed her application for PCR on September 18, 2014, alleging
trial counsel provided ineffective assistance in ten
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 ...