Michelle Lynn Kehoe v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 18-0222
Filed December 18, 2019

MICHELLE LYNN KEHOE,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Buchanan County, Richard D.

Stochl, Judge.

The 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.

Thomas 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, JJ.
2

POTTERFIELD, Judge.

Michelle 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,1 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.

I. Background Facts and Proceedings.

On 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

1
Kehoe filed a supplemental pro se brief. We consider it as part of her appeal because
this matter was already pending when Iowa Code section 814.6A took effect on July 1,
2019. See State v. Macke, 933 N.W.2d 226, 236 (Iowa 2019) (concluding the
amendments to Iowa Code section 814.6 and 814.7 apply only prospectively—to
appeals filed after the law took effect on July 1); State v. Purk, No. 18-0208, 2019 WL
5790875, at *7 n.8 (Iowa Ct. App. Nov. 6, 2019) (applying the reasoning of Macke and
concluding section 814.6A “does not apply to this appeal, which was filed prior to July 1,
2019”).
3

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.

Kehoe 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.

Once 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.

Agents 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
4

attacked them, indicating2 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 surgery.

The DCI 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.3 Agent Callaway began by telling Kehoe to let him know

2
The note Kehoe wrote was admitted in the underlying trial as an exhibit. However, the
PCR court was not asked to take judicial notice of the underlying felony file, so we do not
have those exhibits as part of our record. Our understanding of the contents of the note
Kehoe wrote before surgery is based on the agent’s testimony reading and explaining
the note during the trial (the transcript from the underlying trial is part of our record).
3
We have neither the recording from the interview nor Kehoe’s written responses; both
were entered into evidence at the felony trial.
5

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.

Agent 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.”

When 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
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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 back.

When 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.

Kehoe was charged with first-degree murder, attempted murder, and child

endangerment resulting in serious injury.

Kehoe 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
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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.

The 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.

The jury convicted Kehoe of all three counts as charged.

Kehoe 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
8

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.

Kehoe filed her application for PCR on September 18, 2014, alleging trial

counsel provided ineffective assistance in ten respects.

By the 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 the attorney’s deposition, a transcript of Kehoe’s deposition, the

reports of both experts Kehoe hired in the underlying trial, this court’s opinion in
9

Kehoe’s direct appeal, and the district court’s written ruling on the motion to

move the felony trial from Buchanan County.

Kehoe testified at the PCR trial; she shared her lengthy history of mental-

health issues. Kehoe maintained that trial counsel never advised her of the

disadvantages of her testifying at trial. She testified she told counsel that the jury

needed to hear her story from her, but counsel never undertook any trial

preparation with her as to what questions she would be asked or what counsel’s

approach would be. Kehoe said counsel’s only advice was that “cross-

examination by the prosecutor would be brutal” and “any time they ask a

question, pause first and allow us to object.” Kehoe maintained that on the third

day of trial, she told counsel, “I do not feel stable to testify.” Kehoe also testified

about the medications she was prescribed while she was in jail pending trial, her

mental status throughout the time she was in jail and through trial, and her desire

to have more medical treatment throughout. She noted that the last time she

received treatment from a psychiatrist before her trial was on September 9,

2009—about a month and a half before. After that psychiatrist went on

sabbatical, no other doctor took over her care until after she was convicted.

One of Kehoe’s two trial attorneys testified by way of deposition; the other

was not called to testify. When asked if she could testify as to how Kehoe

appeared to her throughout the time she represented her, the attorney testified:

She had times when she was in a better frame of mind than other
times when she was perhaps more emotionally upset, more
irritable. And irritability is a common symptom of depression, I will
say that.
So her emotional states had quite a bit of variability to it.
The one thing that was consistent over time was that Ms. Kehoe
was an intelligent person. She was obviously educated. Better
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educated than many Public Defender Office clients. She had a
good vocabulary. Her thought processing was good at all times. I
mean, from an intellectual standpoint, she had very good
intellectual functioning. She was not someone who was
developmentally disabled or had that type of problem, very clearly.

The attorney also testified as to how Kehoe participated in her defense, noting

Kehoe

made lists of things that she discussed with me. She made lists of
points that she was concerned about or details that she was
concerned about and brought them to my attention either, like I say,
directly or through the investigators. She is a very organized
person, and—I mean, she would make notes on things that were
incorrect or she wanted explored.

The attorney remembered that there were problems getting Kehoe ongoing

mental-health treatment while she was in jail pending trial; the attorney

remembered discussing the issue with her investigator four or five times. But,

the attorney testified she never had any concerns as to Kehoe’s competence to

stand trial. Additionally, she noted that neither of the experts hired by Kehoe—a

psychiatrist and a psychologist—who each met with and reviewed the medical

history of Kehoe indicated any concern regarding Kehoe’s competency. She

noted, “I communicated with her, she communicated back. We could discuss

things the same way that you and I can discuss things across this table.”

Trial counsel was also asked about the change of venue for the trial—from

Buchanan County to Grundy County. The following exchange occurred between

Kehoe’s PCR counsel and trial counsel:

Q. Okay. A concern that is raised by my client, as we have
discussed this, is why the change of venue would have been proper
from Buchanan County to Grundy County when you take into
account they’re in roughly the same media market. Did that ever
come up in your discussion of a proper venue? A. Yes.
11

Q. And how did you try to address that? A. I was not happy
about it being in Grundy County. My recollection is that the trial
judge had decided on Grundy County and that was how it was
going to be, and if we hadn’t—if we hadn’t gotten jurors in Grundy
County who said they hadn’t formed an impression based on
anything they knew about the case—I think jury selection was
reported. That would have been my practice. And I would have
renewed it during jury selection process if I thought we had a
situation where we could renew our motion and I could move the
judge away from the decision that he had made.
But my recollection is, we didn’t end up in circumstances
where it would have been realistic for me, first of all, to renew the
motion, and, second of all, for the trial judge to actually grant it. I
would have preferred being further away with the trial myself, but,
like I said, the decision had been made and it would have taken
more than I remember we had to get that decision changed or
reconsidered.

Additionally, the psychiatrist who initially treated Kehoe while she was in

jail—before the psychiatrist left on a sabbatical in September 2009—testified by

way of deposition. He opined that Kehoe was able to understand the charges

against her during the period leading up to trial but stated she had “severe

treatment-resistant mental illness” and indicated that “such profound illness

would make meaningful participation with her legal team tenuous.” When asked

what he meant by tenuous, the doctor stated “It means she would have difficulty.”

He agreed that while he was treating her, he never communicated to the

attorneys, the court, or anyone else that he felt Kehoe was incapable of

participating in her defense.

The PCR court denied Kehoe’s PCR application. In its written ruling, the

court incorrectly stated Kehoe had abandoned her claim about the change of

venue; the court did not address the claim. In considering her claim that she

received ineffective assistance from counsel for their failure to raise issues

regarding her competency to stand, the court ruled:
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This court does not find her attorneys, considering she was under
regular medical care, had any duty to obtain further medical
opinions as to her ability to assist in her own defense and stand up
for herself in confrontations with them. The court therefore finds
that counsel was not ineffective in failing to participate more fully in
[Kehoe’s] medical care and in failing to recognize any perceived
medical issues.

The court also found Kehoe’s claim counsel provided ineffective

assistance by not calling her to testify in her own defense to be meritless; the

court noted that it was “clearly trial strategy” on the part of counsel to advise

Kehoe against testifying, as counsel determined Kehoe would not hold up well

under cross examination and believed the experts could better tell Kehoe’s

backstory of trauma and mental-health issues.

Kehoe appeals.

II. Standard of Review.

We generally review PCR proceedings for correction of errors at law, but

when the applicant alleges ineffective assistance, we review de novo. See

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

III. Discussion.

Kehoe raises three claims of ineffective assistance. As she did before the

PCR court, she maintains trial counsel was ineffective for failing to raise the issue

of her competency to stand trial. She also argues PCR counsel was ineffective

for failing to file a motion to reconsider after the PCR court incorrectly stated she

abandoned her claim trial counsel was ineffective for not requesting a different,

more remote change of venue. And, for the first time, she argues all counsel

provided ineffective assistance by failing to raise the issue of suppression

regarding the statements she made to the DCI agents while in the hospital.
13

To succeed on a claim of ineffective assistance, Kehoe has the burden to

prove (1) her trial counsel failed to perform an essential duty and (2) she was

prejudiced by this failure. See Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011).

To prove counsel failed to perform an essential duty, Kehoe “must show that

counsel “was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). We

measure effective performance by determining “whether counsel’s assistance

was reasonable considering all the circumstances.” See id. at 688. To prove

prejudice, Kehoe must prove “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. at 694. To show a reasonable probability the result would have been

different, she must demonstrate the probability of a different result is enough to

undermine our confidence in the outcome. See Bowman v. State, 710 N.W.2d

200, 206 (Iowa 2006) (quoting State v. Graves, 668 N.W.2d 860, 882–83 (Iowa

2003)). “There is a strong presumption counsel’s representation fell within the

wide range of reasonable professional assistance, and Kehoe is not denied

effective assistance by counsel’s failure to raise a meritless issue.” Kehoe, 804

N.W.2d at 305.

A. Failure to Move to Suppress Statements.

Kehoe maintains trial counsel provided ineffective assistance by failing to

file a motion to suppress the statements she made to DCI agents while in the

hospital. She contends her statements were the product of custodial

interrogation without the benefit of Miranda warnings and that they were

involuntarily made. If Kehoe cannot prove a motion to suppress would have
14

been meritorious, her claims fails. See State v. Carroll, 767 N.W.2d 638, 645

(Iowa 2009) (considering the defendant’s claim of ineffective assistance for

failure to file a motion to suppress and starting with the question of whether such

a motion would have had merit).

First we consider whether Kehoe has proved trial counsel could have

successfully pursued a motion to suppress because the DCI agents did not

advise her of the Miranda warnings. See State v. Countryman, 572 N.W.2d 553,

557 (Iowa 1997) (“We utilize a dual test in determining the admissibility of a

defendant’s inculpatory statements over a Fifth Amendment challenge. We first

determine whether Miranda warnings were required and, if so, whether they were

properly given. Second, we ascertain whether the statement is voluntary and

satisfies due process.” (citations omitted)). “Miranda warnings are not required

unless there is both custody and interrogation.” Id. Therefore, we must

determine whether Kehoe was in custody at the times she made the incriminating

statements. “A court must examine all of the circumstances surrounding the

interrogation, but the ultimate inquiry is simply whether there was a formal arrest

or restraint on freedom of movement of the degree association with formal

arrest.” State v. Tyler, 867 N.W.2d 136, 171–72 (Iowa 2015) (altered for

readability) (citations omitted). “To determine whether the suspect’s freedom of

movement was restricted to such a degree, we apply an objective analysis and

ask whether a reasonable person in the defendant’s position would have

understood [her] situation to be one of custody.” State v. Bogan, 774 N.W.2d

676, 680 (Iowa 2009). “The custody determination depends on the objective
15

circumstances of the interrogation, not on subjective views harbored either by the

officer or the person being questioned.” Countryman, 572 N.W.2d at 557.

To make the determination whether Kehoe was in custody at the time she

spoke with the DCI agents—both before she went into surgery and the next

day—we use a four-factor test: 1) the language used to summon the individual;

2) the purpose, place, and manner of interrogation; 3) the extent to which the

defendant is confronted with evidence of her guilt; and 4) whether the defendant

is free to leave the place of questioning. Id. at 558.

Kehoe compares the facts of her case to that of State v. Chiavetta and

State v. Ellenbecker. In Ellenbecker, a “DCI agent chased [the defendant],

caught him, struggled with him, and prevented him from returning to his

apartment by physical force.” No. 12-2229, 2014 WL 1999291, at *7 (Iowa Ct.

App. May 14, 2014). The defendant was then “shot by a different agent and

physically restrained until an ambulance arrived—including a period of restraint

with handcuffs. A trooper rode in the ambulance to the hospital.” Id. Our court

determined the defendant was in custody throughout this time. Id. Additionally,

despite the State’s argument the defendant was not in custody once he reached

the hospital “because the only restraint imposed on his freedom of movement

was his need for medical treatment,” our court found the custody continued, in

part, since the defendant “was transferred to the hospital ‘after being previously

within police custody.’” Id. at *8. The mere fact a suspect cannot leave the

hospital as a result of injury or illness does not place that person in the custody of

law enforcement, but the other circumstances surrounding the restraints on the

defendant’s liberty may render it custody. See id. (citing State v. Grant, 939 A.2d
16

93, 101–02 (Me. 2008)). Because of the surrounding facts and circumstances,

our court concluded a reasonable person in the defendant’s position would have

understood themselves to be in police custody, making Miranda warnings

necessary. Id. at *9. We reversed and remanded for further proceedings with

any statements made by the defendant while in custody suppressed. Id.

In Chiavetta, a woman suspected of killing her husband attempted suicide

and was taken to a local hospital. No. 05-1911, 2007 WL 1828323, at *1 (Iowa

Ct. App. June 27, 2007). Two days after she was admitted to the hospital, police

officers sought and received permission of medical personnel to interview the

defendant. Id. Although the officers went to the defendant’s hospital room in the

intensive care unit while she was hooked up to a number of medical devices and

were alone with her at the time, the defendant’s room was enclosed by glass and

could be seen from the nurse’s station. Id. at *2. The interview lasted less than

forty minutes. Id. At one point, the defendant expressed she wanted to talk to an

attorney, but before the officers left, she “reached out and touched” one of the

officer’s arms. Id. When the officer asked the defendant if she wanted to talk,

she nodded yes and then confessed to killing her husband. Id. The “only

circumstances limiting [the defendant’s] ability to leave were medical

circumstances, such as the intravenous lines in her arms and the fact she had

not been medically discharged.” Id. at *3. Considering all of the surrounding

facts and circumstances, our court concluded the defendant was not in police

custody at the time she confessed and, therefore, the statements she made

without the benefit of Miranda did not need to be suppressed. Id.
17

The facts and circumstances in Kehoe’s case—insofar as we have a

record that discloses them—are more like those in Chiavetta. Kehoe was not in

police custody immediately preceding or at the time she was airlifted to the

hospital. While she was still a patient in the hospital and hooked up to a number

of machines at the time the agents interviewed her the day after her surgery, the

agents first asked medical personnel if they could speak with Kehoe. The agents

and Kehoe were the only people in the room most of the time, but it does not

seem the agents restricted access to the room, as nurses came and went during

the time they spoke. Additionally, at the beginning of the interview, Agent

Callaway informed Kehoe she could stop at any time if she felt tired or wanted to

end the interview. Agent Callaway testified he was not aggressive with Kehoe;

he tried to build a rapport with her. The agents confronted Kehoe with her guilt

insofar as they told her the story she first told did not match up with what her son

was saying. Kehoe made some inculpatory statements before a nurse came in

and interrupted the interview. The agents left the room while the nurse assisted

Kehoe; Kehoe asked the nurse to send the agents back in. When they returned,

Kehoe resumed writing her confession without prompting. With these facts, we

cannot say Kehoe was in custody at the time she confessed to the agents.4

Next we consider whether Kehoe’s statements were involuntarily made. If

Kehoe had filed a motion to suppress, the State would have the burden to prove,

by a preponderance of the evidence that Kehoe’s inculpatory statements were

4
We recognize the record is devoid of any indication how long the interview took or
whether nurses and others could see into the room during the interview. Kehoe bears
the burden to prove a motion to suppress would have been successful because she was
in custody at the time she made inculpatory statements.
18

voluntary given. See State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997). But,

as Kehoe has raised this as an issue of ineffective assistance, she bears the

burden to prove a motion to suppress would have been successful in order to

show trial counsel breached an essential duty in failing to file one. See State v.

McCoy, 692 N.W.2d 6, 20 (Iowa 2005) (“At this point, the critical question is

whether the motion to suppress would have been successful.”). We employ the

totality-of-circumstances test in determining voluntariness: it must appear the

statements were the product of “an essentially free and unconstrained choice,

made by the defendant whose will was not overborne or whose capacity for self-

determination was not critically impaired.” Countryman, 572 N.W.2d at 558

(citation omitted). In determining whether her statements were involuntarily

obtained, we consider:

The defendant’s knowledge and waiver of [her] Miranda rights, the
defendant’s age, experience, prior record, level of education and
intelligence, the length of time the defendant is detained and
interrogated, whether physical punishment is used, including the
deprivation of food or sleep, the defendant’s ability to understand
the questions, the defendant’s physical and emotional condition
and his reactions to the interrogation, whether any deceit or
improper promises were used in gaining the admissions, and any
mental weakness the defendant may possess.

State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997).

Kehoe largely bases her argument on the fact that she suffered from

mental-health issues and was on a number of medications at the hospital during

the time the agents interviewed her. The record before us contains a progress

note completed by hospital personnel on October 29, 2009—the day after Kehoe

confessed to the agents—and lists a number of medications that were prescribed

to her in the preceding forty-eight hours. But we do not know when she took
19

those medications (before or after speaking to the agents) and also do not know

the effects those medicines may have had. In her appellate brief, Kehoe cites to

various websites for information of possible side effects of some of the

medications, but none of that information is in the record before us, and, even

more importantly, no information regarding the side effects Kehoe actually

suffered is before us. “The mere fact that one is under the influence of a drug

while making an inculpatory statement does not rend the statement involuntary.”

State v. Vincik, 698 N.W.2d 788, 793 (Iowa 1987). Moreover, the agents spoke

to medical staff about whether Kehoe was able to speak to them before they

initiated the interview.

Kehoe did not have a criminal record before this incident and had little

involvement with police; her knowledge of her rights and her lack of experience

with the system weigh in favor of finding her statements were involuntary.

Additionally, her mental-health issues are well-documented, and she was still a

patient in the hospital following surgery. But Kehoe was also a grown woman

who had a college degree and an exceptionally high IQ. We do not know how

long the interview lasted, but there is no indication the agents used physical

punishment, deprived Kehoe of food or water, or made any untruthful or improper

statements to Kehoe. Additionally, based on the back and forth between Agent

Callaway’s questions and Kehoe’s written answers, it is clear she understood the

questions being asked of her and could answer—in writing—in an appropriate

manner. “Coercive police activity is a necessary predicate to finding that a

confession is not voluntary.” State v. Conger, 434 N.W.2d 406, 408 (Iowa 1988).

Kehoe has not proved her statements were involuntarily given.
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Because Kehoe has not proved a motion to suppress would have been

successful, counsel did not breach an essential duty by not moving for

suppression. This claim fails.

B. Change of Venue.

Kehoe maintains trial counsel breached an essential duty by not securing

a different, more remote change of venue than Grundy County. Although she

initially raised this issue in her PCR application, the PCR court incorrectly stated

she had abandoned the issue and did not rule on it. Kehoe argues PCR counsel

provided ineffective assistance by failing to file a post-trial motion to obtain a

ruling on her claim. Kehoe must prove a motion for a second change of venue

would have been successful in order to establish that PCR counsel and trial

counsel each breached an essential duty.

In asking for a change of venue, the moving party has “the burden to

either establish prejudice in fact, or to show the publication of material which is

so potentially prejudicial that prejudice must be presumed.” State v. Cuevas, 288

N.W.2d 525, 527 (Iowa 1980). The court shall change the venue for a trial when

“such degree of prejudice exists in the county in which the trial is to be held that

there is a substantial likelihood a fair and impartial trial cannot be preserved with

a jury selected from that county.” Iowa R. Crim P. 2.11(10)(b).

Here, Kehoe must establish prejudice in fact in order to be successful, as

the record before us is devoid of any information regarding the nature, tone,

timing, or volume of pretrial publicity. See State v. Evans, 671 N.W.2d 720, 726

(Iowa 2003) (requiring the defendant to show the publicity attending the trial was

so pervasive that prejudice could be presumed and considering “the nature, tone,
21

and accuracy of the articles; their timing in relation to the trial; and the impact of

the publicity on the jurors as revealed through voir dire”); see also State v.

Spargo, 364 N.W.2d 203, 208 (Iowa 1985) (“The media accounts are factual and

informative in tone and as such do not support defendant’s claim that they must

be presumed to have created prejudice against him.”).

Kehoe argues she could not get an impartial trial in Grundy County

because all of the potential jurors had heard about the case beforehand and had

discussed it with their friends and family before getting the summons for jury

duty. But that is not the standard for finding prejudice. “A juror need not be

completely ignorant of the issues and events involved in a trial.” State v.

Voelkers, 547 N.W.2d 625, 629 (Iowa Ct. App. 1996). The question is “whether

the juror holds such a fixed opinion of the merits of the case he or she cannot

impartially judge the guilt or innocence of the defendant.” Id. at 629–630. Here,

a few individuals stated during voir dire that their minds were made up and they

would be unable to determine the case solely on what they heard at trial; none of

those potential jurors served on the jury. Kehoe has not established prejudice in

fact such that her counsel breached an essential duty by failing to move for a

second change of venue. See State v. Simmons, 454 N.W.2d 866, 868 (Iowa

1990) (concluding vigorous voir dire conducted in the case, where only two of the

sixty prospective jurors were completely unfamiliar with the case, “was clearly

effective in routing out any juror prejudice”). This claims fails.

C. Issue of Competency.

Kehoe argues trial counsel breached an essential duty by not raising the

issue of her competency to stand trial. See State v. Lyman, 776 N.W.2d 865,
22

871 (Iowa 2010) (“The trial of an incompetent defendant in a criminal matter

violates the defendant’s due process rights as guaranteed by the Fourteenth

Amendment to the United States Constitution.”), overruled on other grounds by

Alcala v. Marriott Intern’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016). We

recognize the difficulty in determining post hoc whether someone was previously

competent—especially this number of years later. See, e.g., State v. Harris, No.

12-2139, 2014 WL 2432588, at *6 n.5 (considering a post-trial competency

hearing). We also recognize that Kehoe did not receive perfect care while

pending trial; after her psychiatrist went on sabbatical in early September 2009,

Kehoe did not see another psychiatrist in the approximately six weeks leading up

to trial. But Kehoe continued to see a social worker, and she continued to

receive her prescribed medications. The social worker never expressed concern

Kehoe was incompetent. Kehoe also met with a number of mental health

experts—both those hired by her and the one hired by the State—between the

time of her arrest and the trial, and none expressed a concern about her

competency. At the PCR trial, Kehoe’s trial attorney testified that Kehoe, though

experiencing issues with mental health, understood the charges against her and

participated in her defense. Even the psychiatrist who was treating Kehoe during

most of her time in jail (before going on sabbatical), when testifying at the PCR

trial, did not opine that Kehoe had been incompetent to stand trial.

“A history of mental illness, standing alone, does not mean the defendant

is incompetent.” State v. Rieflin, 558 N.W.2d 149, 153 (Iowa 1996), overruled on

other grounds by Lyman, 776 N.W.2d at 873. The question is whether defendant

can “(1) appreciate the charge[s], (2) understand the proceedings, and (3) assist
23

effectively in the defense.” Id. at 152–53. Based on the record before us, we

cannot say counsel breached an essential duty by not raising the issue of

Kehoe’s competency before or during trial. See id. at 152 (noting we start with

the presumption that a defendant is competent to stand trial and the defendant

has the burden to prove otherwise).

D. Pro Se Issues.

While we have considered Kehoe’s supplemental brief as part of her

appeal, we cannot address any of her claims. She lists seventeen errors she

maintains the PCR court made in its ruling, but she does not challenge the

alleged errors under any legal theory and does not explain how these alleged

issues are preserved for our review. Additionally, she makes no cite to the

record and includes just one cite to one authority apropos of nothing. In

characterizing some of the statements made by the PCR court as errors, she

appears to rely on outside-the-record explanations, such as conversations she

had with her trial counsel leading up to the underlying trial. See Iowa R. App. P.

6.801 (“Only the original documents and exhibits filed in the district court case

from which the appeal is taken, the transcript of proceedings, if any, and a

certified copy of the related docket and court calendar entries prepared by the

clerk of the district court constitute the record on appeal.”).

Because she makes no cognizable legal claims and her supplemental pro

se brief fails to comport with the appellate rules of procedure, we do not consider

any of the issues further. See In re Estate of DeTar, 572 N.W.2d 178, 181 (Iowa

Ct. App. 1997) (“We are not bound to consider a party’s position when the brief

fails to comply with the Iowa Rules of Appellate Procedure.”); see also Metro.
24

Jacobson Dev. Venture v. Bd. of Review of Des Moines, 476 N.W.2d 726, 729

(Iowa Ct. App. 1991) (“We do not utilize a deferential standard when persons

choose to represent themselves. . . . Rather, all are expected to act with equal

competence.”).

IV. Conclusion.

Because Kehoe has not proved any of her claims of ineffective assistance

have merit, we affirm the denial of her application for PCR. As for her pro se

claims, she makes no cognizable legal claims and her supplemental pro se brief

fails to comport with the appellate rules of procedure; we do not consider any of

those issues.

AFFIRMED.