DOUGLAS KINNEY, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-239 / 06-1284
Filed July 12, 2007
DOUGLAS KINNEY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Leo Oxberger, Judge.
Douglas Kinney appeals the district court’s denial of his request for
postconviction relief from his conviction on two counts of willful injury and one
count of criminal mischief. AFFIRMED.
Kerri Keyte of Marks Law Firm, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, John P. Sarcone, County Attorney, and Frank Severino, Assistant
County Attorney, for appellee State.
Considered by Zimmer, P.J., and Baker, J. and Beeghly S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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BEEGHLY, S.J.
I. Background Facts and Proceedings
On October 5, 2002, Douglas Kinney and his wife went to Prairie
Meadows Racetrack and Casino. They arrived at about 3:30 in the afternoon.
Kinney drank beer while he was gambling. He brought $600, lost that, got more
money from an ATM, and lost that money as well.
At about 10:00 p.m. Kinney left the casino without his wife and went to his
vehicle. Kinney drove his Chevrolet Tahoe through a metal security gate, and
struck and destroyed a concrete planter. Kinney did not stop or slow down, but
continued traveling at forty-four miles per hour through two sets of glass doors
and into the casino.
escalator.
The vehicle did not stop until it struck the base of an
Two people, Ardeth Klobnack and Sandra Veach, were seriously
injured by Kinney’s actions. After the crash, Kinney’s blood alcohol limit was
.141.
Kinney was charged with several crimes. Kinney’s defense was that it
was an accident and he did not mean to harm anyone. Kinney did not file a
defense of intoxication, but still presented evidence to show he was intoxicated at
the time of the incident. After a bench trial, the district court found Kinney guilty
of two counts of willful injury and one count of criminal mischief.
He was
sentenced to three consecutive ten-year terms of imprisonment.
Kinney’s
convictions were affirmed on appeal. State v. Kinney, No. 03-1149 (Iowa Ct.
App. Feb. 9, 2005).
Kinney filed an application seeking postconviction relief. He claimed he
received ineffective assistance because his defense counsel failed to diligently
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pursue a defense of intoxication. At the postconviction hearing Kinney testified
he drank nineteen to twenty-one beers at Prairie Meadows. He stated, “[A]bout
an hour prior to the accident I started feeling a little funny . . . I was starting to
feel the effects of the alcohol.” Kinney stated he had urinated on himself while
still inside the casino, and had vomited once he got out to his vehicle. Kinney
presented the testimony of Ronnette Gannon and Jolynne Farron, who had seen
Kinney in the parking lot and testified he appeared intoxicated.
Kinney also
presented written reports from M.L. Rehberg, a toxicologist, and Dr. Kenneth
Moon, Jr., which stated Kinney was more intoxicated at the time of the crash than
was shown in his blood test.
Kinney’s defense counsel, F. John Spellman, testified he did not believe
the testimony of Gannon or Farron would be necessary or helpful in any way.
Spellman stated he had presented what he believed was the most persuasive
evidence of Kinney’s intoxication, the blood alcohol test. He stated Kinney was
shown on a security videotape while he was walking through the parking lot. He
stated the videotape was better evidence than the testimony of the witnesses,
who did not know Kinney or know how many drinks he had. Spellman also
stated he did not believe an expert witness was necessary to show Kinney was
intoxicated.
He stated that under Iowa Code section 321J.2(8)(a) (2001),
Kinney’s alcohol level at the time of the incident was presumed to be the amount
determined at the time of the test.
The district court denied Kinney’s postconviction relief. The court noted
Kinney “made dramatically inconsistent statements to others, including his trial
attorney, regarding the number of drinks he consumed.” The court concluded:
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The Court finds counsel did present a defense which
included intoxication. The defense was unsuccessful because the
Court rejected the defense, not because of trial counsel’s
performance.
The evidence was overwhelming Mr. Kinney
committed the crimes.
The trial record clearly showed the
Petitioner’s actions were intentional. Petitioner failed to prove an
expert witness if retained by trial counsel would have changed the
outcome of the case. The Petitioner failed to prove counsel was
ineffective and/or prejudice resulted
Kinney appeals the district court’s denial of his postconviction relief claims.
II. Standard of Review
Our scope of review in postconviction proceedings is for the corrections of
errors at law. Iowa R. App. P. 6.4; Ledezma v. State, 626 N.W.2d 134, 141
(Iowa 2001). We review constitutional claims, such as ineffective assistance of
counsel, de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999).
To establish a claim of ineffective assistance of counsel, an applicant must
show (1) the attorney failed to perform an essential duty and (2) prejudice
resulted to the extent it denied applicant a fair trial. Strickland v. Washington,
466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694-95 (1984); State
v. Shanahan, 712 N.W.2d 121, 136 (Iowa 2006). The petitioner must overcome
a strong presumption of counsel’s competence, and a postconviction applicant
has the burden to prove by a preponderance of the evidence that counsel was
ineffective.
Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998).
Absent
evidence to the contrary, we assume that the attorney’s conduct falls within the
wide range of reasonable professional assistance.
N.W.2d 735, 739 (Iowa 1995).
State v. Hepperle, 530
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III. Merits
Kinney asserts his defense counsel did not adequately plead or argue a
defense of intoxication.
He believes Gannon and Farron should have been
called to testify at his criminal trial. He claims defense counsel should have
called experts, such as Rehberg and Dr. Moon, to testify to his level of
intoxication. Kinney points out that willful injury and criminal mischief are both
specific intent crimes. He contends his intoxication rendered him incapable of
forming the requisite specific intent to be guilty of the crimes of which he was
convicted. There was no testimony, however, that either expert was prepared to
testify that Kinney was unable to form specific intent.
We first note that although Kinney did not file a formal defense of
intoxication, the district court in his criminal trial clearly considered Kinney’s
intoxication as it pertained to specific intent. The court stated:
[E]ven if the alcohol consumed by the Defendant may have
contributed to the defendant’s actions, it did not prevent him from
forming the specific intent to seriously injure Ms. Klobnack and Ms.
Veach nor did it prevent him from forming the intent to purposely
damage, alter, deface, or destroy the property belonging to Prairie
Meadows.
In order to prevail on his claim of ineffective assistance of counsel, Kinney
would need to show that if counsel had presented the additional evidence he
proposes, the result of the proceeding would have been different. See Davis v.
State, 520 N.W.2d 319, 321 (Iowa Ct. App. 1994) (noting a postconviction
applicant must show a reasonable probability that but for counsel’s conduct, the
result of the proceeding would have been different). The district court found, and
we agree, Kinney has not shown there is a reasonable probability the result of his
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criminal trial would have been different if the additional evidence had been
presented. Kinney presented the most pertinent evidence of intoxication, the
results of his blood test and the videotape. The evidence he now proposes
would not be more persuasive than that evidence, it would not lead the district
court to come to a different result.
Kinney has failed to show he was prejudiced by counsel’s performance. If
an applicant fails to show prejudice, we do not need to consider whether defense
counsel failed to perform an essential duty. State v. Oetken, 613 N.W.2d 679,
683 (Iowa 2000).
We determine Kinney has failed to show he received
ineffective assistance. We affirm the decision of the district court.
AFFIRMED.
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