Kellogg v. State, 63360

• Decision Date: 20 February 1980
• Docket Number: No. 63360,63360
• Citation: 288 N.W.2d 561
• Parties: Francis Vern KELLOGG, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 561

288 N.W.2d 561

Francis Vern KELLOGG, Appellant, v. STATE of Iowa, Appellee.

No. 63360.

Supreme Court of Iowa.

Feb. 20, 1980.

Lloyd E. Humphreys, of Humphreys & Associates, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and David H. Correll, Black Hawk County Atty., for appellee.

Considered by REYNOLDSON, C. J., and REES, HARRIS, McGIVERIN and LARSON, JJ.

HARRIS, Justice.

In State v. Kellogg, 263 N.W.2d 539, 544 (Iowa 1978), we affirmed this petitioner's conviction of second-degree murder. § 690.3, The Code 1975. For want of an adequate record, however, we reserved for a possible postconviction proceeding any consideration of Kellogg's assertion he was denied effective counsel. Kellogg accepted our invitation and brought this postconviction proceeding under chapter 663A, The Code 1979. He now appeals the trial court's denial of his claim. We affirm the trial court.

I. The burden of proof is upon the postconviction petitioner to establish by a preponderance of evidence a claim of ineffective assistance of counsel. The question is whether, under all the circumstances, the attorney's challenged performance was within the range of normal competency. State v. Veverka, 271 N.W.2d 744, 750 (Iowa 1978), and authorities. In general our review of postconviction rulings under section 663A.9 is on error and not de novo. But there are broad exceptions.

We have often said that where, as here, there is an asserted violation of a basic constitutional safeguard we make our own evaluation of the totality of circumstances under which the ruling was made. E. g., Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 31 (Iowa 1979). Whether we call such a review de novo or a review under the totality of circumstances our function is the same. We consider anew all the matters presented to, and which should have been considered by, the trial court and reach our own conclusion on whether the constitutional safeguard was violated. It makes no practical difference whether such a review is called de novo or one under the totality of circumstances. State v. Boren, 224 N.W.2d 14, 15 (Iowa 1974), cert. denied, 422 U.S. 1008, 95 S.Ct. 2630, 45 L.Ed.2d 671 (1975).

II. Kellogg comes perilously close to ineffectively presenting his claim of ineffective counsel. The postconviction court took judicial notice of the "court file." And Kellogg raised in the postconviction proceeding the same arguments of ineffective counsel that he attempted in his first appeal. But it is far from clear that the original appellate briefs were ever made a part of this proceeding. Hence, the inclusion of those briefs in the appendix on this appeal may not be proper.

Kellogg may have feared that the original briefs had not become a part of the record. Perhaps for this reason he stated in his appellate brief on this appeal that they were "incorporated by reference." We know of no authority for such a step. It seems contrary at least to the spirit of Iowa R.App.P. 10(a) and 14(a)(5). Nevertheless, without suggesting we must, we choose to pass any procedural failures and proceed with our de novo review on the merits.

This proceeding necessarily became a trial of the professional conduct of James C. Dunbar who was Kellogg's original trial counsel. In several ways his conduct in the preparation and trial of the murder case was severely criticized. Dunbar answered these criticisms in his testimony in this proceeding. We shall weigh the criticisms together with Dunbar's explanations in the divisions that follow.

III. Kellogg first points to the fact that Dunbar did not take pretrial discovery depositions. Kellogg now claims that failure to take discovery depositions indicates that Dunbar's representation was ineffective. But Dunbar is not persuaded that discovery depositions are always good tactics for a criminal trial. He testified he informally interviewed witnesses and potential witnesses rather than deposing them. With one exception he interviewed all witnesses who were later called by the State. One witness (Bransteater) was not interviewed because he would not keep appointments. Dunbar did not interview all witnesses listed on the State's minutes for additional testimony but testified he was not surprised by any of the trial testimony. Dunbar stated he heard no testimony at trial he did not anticipate.

Dunbar's reservations about taking discovery depositions in criminal cases have to do with his belief that the technique is a "two-edged sword." He believes they help the State as much as the defendant, that the procedure is as informative to the prosecutor as to the defense counsel, and also alerts witnesses to questions that would be asked at trial.

We recognize the use of discovery depositions can be a valuable tool in the preparation of criminal trials. We cannot say, however, that it is an absolute requirement for preparation. Neither can we say that Dunbar's strategic decision not to depose the potential witnesses is an indication of incompetent representation.

Kellogg raises a similar charge against Dunbar's failure to file any pretrial discovery motions. Dunbar explained that they were unnecessary in this case because the county attorney made his complete files available to him prior to trial. He viewed all evidence the State then had in its possession. He was again given the State's files the weekend before trial and once more thoroughly examined them. He felt there was nothing more for him to discover. Under these circumstances we cannot say that the failure to file pretrial discovery motions reflect adversely upon Dunbar's professional competence.

IV. Kellogg also argues that Dunbar's incompetence is shown by his failure to consult and call various expert witnesses. It is first suggested that experts should have been consulted in the field of weapons. Kellogg suggests that the question whether the murder weapon had a "hair trigger" was crucial to his defense theory that the death was accidental. But we agree with Dunbar that the question whether the gun had a "hair trigger" was not central to his theory of the case. The evidential dispute was whether Kellogg or his wife was holding the gun when it discharged while it was pressed against her head. The question was not how easily the gun fired but rather who was holding it at the time.

Kellogg also claims that Dunbar should have consulted with experts about particles of blood, bone, and skin which were found inside the gun barrel after the killing. There was testimony at trial that they would have been found if the barrel were in fact pressed against the victim's head. This conclusion was not in any way damaging to Kellogg because it was entirely consistent with his testimony that the victim held the gun to her head and shot herself.

Kellogg also complains because Dunbar did not consult or call an accident reconstruction expert. But again, there was nothing inconsistent between the State's testimony and Kellogg's account of the victim's position when she was shot. The State's witness testified that flecks of blood on the headboard of the bed indicated the victim's head was very close to the headboard when the gun discharged. This was entirely consistent with Kellogg's account. The same can be said with regard to Kellogg's complaint that Dunbar should have consulted a fingerprint expert. No fingerprints were found on the murder weapon. There would be no point in Kellogg calling a fingerprint expert to testify about fingerprints on the murder weapon. Any fingerprints found elsewhere were consistent with Kellogg's account of how he and his wife handled the two weapons on the day of the murder.

Kellogg shows no injury from Dunbar's decision not to consult the expert witnesses or use them at trial. He has failed to carry his burden of proving Dunbar was incompetent or in any way ineffective on this contention.

V. Kellogg next complains of Dunbar's failure to introduce evidence of the victim's allegedly violent temper. According to Dunbar's investigation, however, it appeared that any violence or assaults by the victim were provoked by Kellogg himself. Dunbar chose not to use the evidence of the victim's conduct for fear it would open the door to further showing of the past stormy relationship between Kellogg and his wife. We conclude, especially in view of our holding in Kellogg's first appeal that this was a sound tactical decision by Dunbar. We held that prior relations between Kellogg and his wife were admissible to show Kellogg's malice. Kellogg, 263 N.W.2d at 542. Dunbar's decision in this...