Opinion
23-0294
03-06-2024
PATRICK WILLIAM KIRWAN, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.
Francis Hurley, Des Moines, for appellant. Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee State.
Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.
Patrick Kirwan appeals the denial of his application for postconviction relief. AFFIRMED.
Francis Hurley, Des Moines, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee State.
Considered by Tabor, P.J., and Badding and Chicchelly, JJ.
CHICCHELLY, Judge.
Patrick Kirwan appeals the denial of his application for postconviction relief (PCR) from his conviction for second-degree murder. He contends he is entitled to relief because he was denied his right to effective counsel. Because Kirwan fails to show ineffective assistance of trial counsel, we affirm.
I. Backgrounds Facts and Proceedings.
A jury found Kirwan guilty of second-degree murder for killing his neighbor in 2015. We discussed the facts in detail in State v. Kirwan, No 16-1088, 2017 WL 3524772, at *1 (Iowa Ct. App. Aug. 17, 2017). Ultimately, we found the jury's verdict was supported by the evidence and rejected Kirwan's other claims, affirming his conviction on direct appeal. Id.
Kirwan applied for PCR in 2019, alleging fifteen ways in which his trial counsel provided ineffective assistance. After a trial, the PCR court found Kirwan failed to prove his trial counsel was ineffective and denied his application. On appeal, Kirwan challenges the denial based on four grounds.
II. Ineffective Assistance of Counsel.
We review the denial of Kirwan's PCR application for correction of errors at law. See Linn v. State, 929 N.W.2d 717, 729 (Iowa 2019). We review his claims of ineffective assistance of counsel de novo. See Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018). To succeed on a claim of ineffective assistance of counsel, Kirwan must show (1) his trial counsel breached an essential duty and (2) it prejudiced him. See Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011). "To establish the first prong, the applicant must demonstrate the attorney performed below the standard demanded of a reasonably competent attorney." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). "Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel." Id. at 143. To establish prejudice, the applicant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). We can affirm if Kirwan fails to prove either breach of an essential duty or prejudice. See Lado, 804 N.W.2d at 251.
A. Right to testify.
Kirwan's first claim of ineffective assistance concerns waiving his right to testify in his own defense. In his PCR application, Kirwan alleged that his trial counsel "[f]ailed to allow [him] to testify in his own defense, even though he wanted and intended to testify." The PCR court disagreed, finding that "the record reflects that trial counsel was thorough in examining [Kirwan] to ensure he voluntarily made the decision to not testify." We concur with this assessment. At trial, one of Kirwan's attorneys engaged him in an on-the-record colloquy about his right to testify in his own defense. Kirwan confirmed he understood that the choice to testify was his and his alone before stating he did not want to testify. After stating that his medications were not interfering with his ability to decide whether to testify, Kirwan again expressed that he did not want to testify in his own defense.
But Kirwan's claim on appeal differs from the claim stated in his PCR application. The PCR court found that Kirwan "failed to prove by a preponderance of the evidence that he was coerced into not testifying or that his trial counsel misinformed him about the consequences of testifying or not testifying." (Emphasis added.) Kirwan now argues that "neither of [his] counsel advised him at all about the consequences of testifying or not." Assuming this claim is preserved for our review, the record does not support it. One of Kirwan's attorneys testified, "We would have talked to [Kirwan] a lot about" testifying in his own defense. During her testimony, his attorney referred to notes she took about her conversations with Kirwan. Her notes indicate that they discussed whether Kirwan should testify, she advised him against it, and Kirwan stated that he was "okay with not testifying." Kirwan's other attorney could not recall specific details of the conversations he had with Kirwan six years earlier but testified, "I know we had a discussion about" Kirwan testifying before recounting the risks and benefits he ordinarily considers in advising clients about testifying in their own defense. Moreover, advice about testifying in one's own defense is generally strategic advice that will not support an ineffective-assistance claim absent exceptional circumstances. Ledezma, 626 N.W.2d at 146.
B. Request for jury instruction.
Kirwan's next claim of ineffective assistance concerns a request to instruct the jury that a verdict of not guilty by reason of insanity would result in Kirwan being committed to a mental institution for evaluation and treatment. Kirwan's counsel requested the instruction at the close of evidence, which the district court denied. But Kirwan contends a competent attorney would have requested a ruling on the instruction before trial and used that information to make intelligent decisions about plea offers.
The PCR court found that not requesting an earlier ruling was a strategic decision on the best way to allocate limited resources and did not fall below normal competency. Our cases support this finding. See State v. Kehoe, 804 N.W.2d 302, 311-12 (Iowa Ct. App. 2011) (rejecting a claim of ineffective assistance of counsel for failing to request an instruction on the consequences of a not guilty verdict by reason of insanity, noting that "Iowa cases have held such an instruction is generally inappropriate and unnecessary"). In addition, Kirwan's claim of prejudice is purely speculative. Kirwan acknowledges that there is little information in the record about plea negotiations. Nothing suggests Kirwan could have achieved a better result if he knew before trial that the instruction would not be given.
C. Blood spatter expert.
Kirwan also contends his trial counsel was ineffective by failing to seek an expert on blood spatter evidence. He notes that photographic evidence showed the location and pattern of blood spatter at the crime scene. He also points to a portion of the prosecutor's closing argument that referenced the location of blood at the scene. The prosecutor argued that by reviewing the evidence using "reason and common sense," the jury could conclude that Kirwan did not shoot the victim in self-defense:
[W]e know this from the evidence. Mark was at the top of the stairs when the bloodletting began. We know that; right? Why do we know that? Common sense. Look at this blood drop (indicating), ladies and gentlemen. Straight down. Straight blood. Mark had to be standing on the top for those blood drops.
If you took a piece of paper and dropped water on a napkin or paper towel and you saw how that water would drop, that is not cast off or high velocity blood. That is blood dropping straight down when Mark begins bleeding. And he didn't fall up the stairs, ladies and gentlemen. We know that. That defies common sense. He fell down the stairs; right?
The PCR court rejected Kirwan's argument that counsel had a duty to seek a blood spatter expert. It noted that self-defense was one of three defenses presented to the jury, along with insanity and diminished responsibility. The PCR court found that deciding how to best allocate resources between those three defenses was reasonable trial strategy and counsel "had good reasons supporting the decision not to investigate other matters like blood spatter." Again, we agree, and again, we find Kirwan fails to show prejudice by speculating that a blood spatter expert would have supported a self-defense claim.
D. Cumulative error.
Kirwan's final claim is that the PCR court erred by dismissing his application because he was prejudiced by the cumulative effect of trial counsels' failures. Under the "cumulative error" theory, "if a claimant raises multiple claims of ineffective assistance of counsel, the cumulative prejudice from those individual claims should be properly assessed under the prejudice prong of Strickland." State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012). The PCR court found that Kirwan failed to show prejudice for three allegations: "(2) Failing to question defense expert on specifics of his report; (3) Failing to preserve error regarding admissibility of defense exhibits; and (5) Failing to find an expert or lay witness with personal knowledge to testify to conditions in Iraq during the dates in question." Because it analyzed these three claims under the prejudice prong of Strickland without addressing whether trial counsel failed to perform an essential duty, the PCR court could only deny Kirwan relief if the cumulative effect of those alleged errors did not prejudice him. See id. at 501-02.
The PCR court found that Kirwan failed to show he was prejudiced by counsel's alleged failures because "the evidence overwhelmingly supports the verdict." It noted our finding on direct appeal that "Kirwan's trial was not the kind of case where 'the evidence supporting a guilty verdict was so scanty, or the evidence opposed to the guilty verdict so compelling' that the verdict could be seen as contrary to the greater weight of the evidence." Kirwan, 2017 WL 3524772, at *5 (quoting State v. Adney, 639 N.W.2d 246, 253 (Iowa Ct. App. 2001)). We agree Kirwan fails to show that the combined effect of counsels' alleged errors prejudiced him. Given the strength of the evidence showing his guilt, Kirwan has not shown a reasonable likelihood of a different outcome had his trial counsel performed to the standard he believes was required.
III. Conclusion.
Kirwan has not shown he received ineffective assistance from his trial counsel. We therefore affirm the denial of his PCR application.
AFFIRMED.