IN THE COURT OF APPEALS OF IOWA
No. 1-634 / 00-1536
Filed December 28, 2001
DAVID FOELL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
Appeal from the Iowa District Court for Franklin County, Stephen P.
Carroll, Judge.
David Foell appeals following the denial of his postconviction relief
application. AFFIRMED.
Mark C. Meyer, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant
Attorney General, Brent Symens, County Attorney, and Thomas H. Miller,
Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
SACKETT, C.J.
David Foell was convicted of first-degree murder following the
stabbing death of Marian Atkinson. His conviction was affirmed on appeal.
State v. Foell, 512 N.W.2d 809 (Iowa Ct. App. 1993). Foell sought
postconviction relief contending that his trial attorney was ineffective.
The district court denied his claims and this appeal follows. We affirm.
Foell was charged after Marian Atkinson, a sixty-nine-year-old widow,
was found dead in her home in Sheffield on December 9, 1991. She had been
stabbed sixteen times. The next day, Atkinson's grandson, Chris Oltman,
was arrested for the murder. During an interview with the Department of
Criminal Investigation Oltman identified David Foell, as the person who
stabbed Atkinson. Atkinson had offered Foell money to commit the murder.
Later that evening, friends told Foell that the police wanted to talk to
him. Foell with his parents went to the local police station and
ultimately confessed to the stabbing.
Prior to trial Foell filed a motion to suppress these statements
arguing the police coerced him into confessing. The district court denied
the motion and this ruling was affirmed on appeal. Id.
Defendant's trial attorney raised an intoxication defense. The State
relied on Foell's confession and the testimony of Oltman's girlfriend, who
was granted immunity. The girlfriend had been a party to the plan to
murder Atkinson. The jury found Foell guilty of first-degree murder, and
the district court sentenced Foell to a mandatory life term of
imprisonment.
Foell first contends in this appeal that his trial attorney was
ineffective in calling him as a witness to generate sympathy and then
arguing to the jury that he was a tool in Oltman's hands because both the
strategy and the argument had no legal basis. Foell also advances his
attorney was ineffective in failing to introduce evidence that he suffers
from fetal alcohol syndrome and other mental deficiencies contending that
this evidence would have resulted in his confession being suppressed and
would have shown he did not form the specific intent to kill necessary for
the first degree murder conviction.
Foell on direct appeal had also claimed that his trial counsel was not
effective in that he did not aggressively argue the motion to suppress and
he withdrew the compulsion claim. Both claims were rejected on appeal.
This court also said
Further, we do not believe Foell has shown he was prejudiced from his
trial counsel's alleged breach of duty. The evidence of Foell's guilt
was overwhelming. The State introduced into evidence Foell's
confession and the testimony of Oltman's girlfriend, who was granted
immunity. Foell himself testified he intended to kill the victim when
he entered her house. He also stated he was fully aware he was
killing the victim when he repeatedly stabbed her.
Foell, 512 N.W.2d at 814.
To prevail on a claim of ineffective assistance of counsel Foell must
demonstrate both deficient performance and prejudice. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984); State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000); State v. Artzer,
609 N.W.2d 526, 531 (Iowa 2000). Both elements must be proven by a
preponderance of the evidence. State v. Ramirez, 616 N.W.2d 587, 593 (Iowa
2000); Oetken, 613 N.W.2d at 683. Yet both elements do not always need to
be addressed. If the claim lacks prejudice, it can be decided on that
ground alone without deciding whether the attorney performed deficiently.
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; State
v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995); State v. Bumpus, 459 N.W.2d
619, 627 (Iowa 1990); Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984).
To establish the first prong, Foell must demonstrate the attorney
performed below the standard demanded of a reasonably competent attorney.
Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94;
Artzer, 609 N.W.2d at 531. We measure the attorney's performance against
"prevailing professional norms." Strickland, 466 U.S. at 688, 104 S. Ct.
at 2065, 80 L. Ed. 2d at 694; State v. Risdal, 404 N.W.2d 130, 132 (Iowa
1987). There is a presumption that the attorney performed competently.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95;
Oetken, 613 N.W.2d at 683. The claim is reviewed in light of the totality
of the circumstances. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65,
80 L. Ed. 2d at 693-94. The inquiry is an individualized fact-based
analysis. Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct. 1495, 1512,
146 L. Ed. 2d 389, 416 (2000).
Miscalculated trial strategies and mere mistakes in judgment normally
do not rise to the level of ineffective assistance of counsel. Wissing,
528 N.W.2d at 564;Caldwell, 494 N.W.2d at 214.
Once Foell proves deficient performance, it must also be shown that
the error caused prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at
2067, 80 L. Ed. 2d at 697; State v. Westeen, 591 N.W.2d 203, 211 (Iowa
1999). To sustain this burden, Foell must demonstrate "that there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see Artzer, 609 N.W.2d at
531; State v. Tracy, 482 N.W.2d 675, 680 (Iowa 1992). "A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at
698.
Strickland establishes that prejudice exists when "there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland, 466 U.S.
at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In making the decision
whether there is a reasonable probability that the result of the trial
would have been different, the burden of proof is on the defendant to
establish this element by a preponderance of the evidence. Ledezma v.
State, 626 N.W.2d 134, 142 (Iowa 2001).
With these principles in mind we address Foell's first claim that his
attorney should not have called him as a witness to generate sympathy and
should not have argued to the jury that Foell was only a tool. Foell
claims that had the strategy not been used he could have been found guilty
of a lesser degree of murder.
Foell's trial attorney stated in his opening statement that Foell was
guilty of second-degree murder but not first-degree murder and that Foell
was a weapon in Oltman's hands. He told the jury that Oltman planned the
murder, got Foell drunk and used him to commit the crime. During trial
Foell's attorney elicited testimony Foell was vulnerable to suggestion and
easily influenced. He also presented evidence it was Oltman who wanted
Atkinson killed because he was of the opinion that he could then live in
her house with his girlfriend. In closing Foell's trial attorney argued
Foell was only guilty of second degree murder as it was Oltman who planned
the act and Oltman who had a motive.
Even if Foell's trial counsel's performance was deficient as Foell
argues, and we need not decide that it was, Foell cannot show he was
prejudiced. The argument that Foell was only guilty of second-degree
murder was well developed and presented by his trial attorney.
Foell next contends that his trial attorney did not adequately
present and develop evidence of Foell's psychological characteristics,
which he contends would have supported his suppression motion and resulted
in a lesser finding of guilt.
Foell has Native American blood. He was adopted as a child and his
adoptive mother testified that his birth mother consumed alcohol during her
pregnancy and Foell consequently suffered from fetal alcohol syndrome.
Foell's adoptive father sexually abused him and then rewarded Foell for his
behavior. Foell was subject to suggestion and functioned at a low
intelligence level.
We first address Foell's claim that his attorney should have
presented evidence he suffered from the fetal alcohol syndrome. The State
argues the only evidence Foell has the syndrome comes from his adoptive
mother and she was not a qualified expert. Even if Foell's mother's
statement is sufficient to support a finding he suffers from the malady,
Foell has failed to show that advancing it at the time of the suppression
hearing would have resulted in the suppression of Foell's confession.
Similar claims for suppression of confessions have not been successful.
See State v. Rhombert, 516 N.W.2d 803, 806-807 (Iowa 1994); State v. Reid,
394 N.W.2d 399, 401-404 (Iowa 1986); State v. Conner, 241 N.W.2d 447, 453-
54 (Iowa 1976): State v. Fetters, 202 N.W.2d 84, 87-90 (Iowa 1972).
Nor has Foell shown that his attorney did not adequately perform in
addressing the issue at trial. Foell's trial attorney did substantial
research before trial and found no case where the syndrome had been
successfully raised as a defense. The decision not to attempt to introduce
such evidence was a strategic decision.
Foell has failed to show that additional evidence as to his
psychological characteristics would have changed the results of the trial.
As this court found on direct appeal, the evidence of Foell's guilt was
overwhelming. Foell, 512 N.W.2d at 814.
We have considered Foell's other arguments and find them to be without
merit.
AFFIRMED.
