                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1288
                               Filed March 8, 2017


DONTE MARCELL GILMORE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



      Donte Gilmore appeals the dismissal of his application for postconviction

relief. AFFIRMED.




      John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoster, Assistant

Attorney General, for appellee State.




      Considered by Bower, P.J., McDonald, J., and Mahan, S.J.* Blane, S.J.*

takes no part.

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                        2


MAHAN, Senior Judge.

      Donte Gilmore appeals the dismissal of his application for postconviction

relief (PCR).   He contends the PCR court erred in rejecting his ineffective

assistance of counsel claims.

             “Generally, an appeal from a denial of an application for
      postconviction relief is reviewed for correction of errors at law.”
      Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012) (quoting
      Goosman v. State, 764 N.W.2d 539, 541 (Iowa 2009)). However,
      “[u]nder both the State and Federal Constitutions, ineffective-
      assistance-of-counsel claims are reviewed de novo.” Ennenga v.
      State, 812 N.W.2d 696, 701 (Iowa 2012). We review these claims
      de novo because they are based on the constitutional guarantees
      of the effective assistance of counsel found in the Sixth
      Amendment of the U.S. Constitution and article I, section 10 of the
      Iowa Constitution. See State v. McNeal, 867 N.W.2d 91, 99 & n.1
      (Iowa 2015).

Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016).

      In order to prevail on his ineffective-assistance-of-counsel claims, the

applicant must prove by a preponderance of the evidence both that (1) trial

counsel breached an essential duty and (2) prejudice resulted from that

breach. See id. In Strickland v. Washington, 466 U.S. 668, 687 (1984), the

United States Supreme Court explained a successful ineffectiveness claim will

establish that counsel made errors so serious that counsel was not functioning as

the “counsel” guaranteed by the Sixth Amendment and “so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.” Upon our de novo

review, we conclude Gilmore was not deprived of a fair trial by the alleged errors

of counsel.

      Gilmore shot and killed his wife—this is not in dispute. A jury rejected his

insanity and diminished-responsibility defenses and convicted him of first-degree
                                              3

murder. State v. Gilmore, No. 11-0858, 2012 WL 3589810, at *1 (Iowa Ct. App.

Aug. 22, 2012).        On appeal from his conviction, this court rejected Donte’s

allegation that his trial counsel were ineffective for failing to object to the jury

instructions relating to his insanity defense. See id. at *6-9.

          In his PCR action, Gilmore alleged his two trial counsel, Philip Reser and

Wendy Samuelson, were ineffective in failing to move for a mistrial after receiving

notes from the jury, failing to object to the prosecutor’s questions to a jailhouse

witness’s testimony concerning religious beliefs, failing to object to the

introduction of photographs of assault rifles, failing to convince him to accept a

plea agreement (requiring him to plead guilty “to second degree murder and

attempted murder and run those two consecutive”), and failing to demonstrate

police had moved a hammer at the crime scene.

          After a hearing and reopening the record for additional claims and

evidence to be submitted, the PCR court carefully addressed each of Gilmore’s

claims and dismissed the application. Upon our de novo review of Gilmore’s

claims and the record, we agree with the district court Gilmore has failed to

establish his trial counsel’s performances were so deficient he was deprived of a

fair trial.

          1. Jury notes.1 The two notes from the jury indicated the jury was focusing

on Gilmore’s asserted defense. We cannot conclude the trial court’s responses

to the jury notes were improper, and thus, Gilmore has failed to establish trial

counsel should have objected. Trial counsel testified their responses to the jury

notes were strategic. We decline to second guess a reasonable tactical decision.

1
    The issues found at headnotes 1, 3, 4, and 5 are argued in Gilmore’s pro se brief.
                                             4

See State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct. App. 1998) (“The court will

generally presume counsel is competent, and we will not second guess a

reasonable trial strategy.”); e.g., Houston v. State, No. 05-1591, 2007 WL

254543, at *7 (Iowa Ct. App. Jan. 31, 2007) (“In response to each note, defense

counsel requested that no further instruction be given, and that the jury be

directed to consider the instructions and continue its deliberations. Mayer and

Goudy [trial counsel] both testified that this was a strategic decision by counsel.

Mayer clarified he did not want the judge to expand on the instruction because it

appeared the jury was having trouble reaching a decision which, in his

experience, was to Houston’s advantage.”).

       2. Jailhouse witness’s testimony concerning religious beliefs.              Gilmore

contends Elijah Campbell, a fellow jailhouse resident with whom Gilmore

engaged in conversations,2 was asked improper questions about religion to

which his trial attorneys should have objected.

       The PCR court’s observations are an accurate characterization of the

record:


2
  Campbell testified without objection that he first started to converse with Gilmore in the
jail because they both were reading the Bible. They then discussed religion, leading to
Gilmore talking about Gilmore shooting his wife. Gilmore talked about his arguments
with his wife over her not following his religious beliefs. Gilmore told Campbell when he
shot his wife she fell to the left, which indicated to Gilmore she had turned her back on
God, and that this justified him shooting her.
        Campbell testified he went to the prosecutor with this conversation because he
disagreed with Gilmore.
        On redirect, the State asked:
                 Q. And your difference between your view of God and his had to
        be—is over what? A. My view is, I don’t believe that God thinks it’s okay
        to kill your wife. And he said—he basically said, “She’s in hell, and I’m
        here serving him now, so this is what—this is what was meant to be.” I
        don’t believe that. I don’t believe nobody deserves to die. I don’t believe
        God—my God don’t tell me that anybody deserves to die.
                                             5


       [D]efense counsel did not object to Campbell’s testimony about his
       discussions with Gilmore or any reference to religion. Gilmore does
       not specify a particular question involving religion that he believes
       was objectionable, even though he indicates that his trial attorneys
       at deposition [stated] that “the particular question Gilmore
       complained of was objectionable.” Although not specified in
       Gilmore’s pleadings, his attorney did ask the trial attorneys
       (Samuelson and Reser) during their depositions, if it would be
       objectionable if witness Campbell was asked whether his God
       condoned murder, would each consider that to be relevant
       evidence. Both Samuelson and Reser thought that would not be
       relevant.

       The prosecutor did ask Campbell, “Does the God you worship allow this to

happen?” Campbell answered, “No, sir.” We agree with the PCR court that the

question

       followed questions about why Campbell came forward and advised
       authorities of Gilmore’s conversations with Campbell. This involved
       Campbell’s disagreement with Gilmore over religion and that
       Gilmore’s perception of his wife “turning her back on God” did not in
       Campbell’s religious beliefs justify shooting one’s wife. In the
       overall context of Campbell’s testimony, the question was not
       objectionable. The fact that Gilmore’s trial counsel did not object
       did not constitute ineffective assistance of counsel.

       On appeal, Gilmore contends the PCR court misunderstood his complaint.

Relying on Dedric v. Hopson, 17 N.W. 772, 773 (Iowa 1883),3 Gilmore faults his

lawyers for failing to respond to this claimed improper injection of religion into his

case, arguing: “[W]hen a prosecutor asks his own witness to comment on his

own good, or preferable, religious views, the questioning descends into improper



3
  We are not convinced Dedric stands for the proposition argued. “[A] witness cannot be
required to testify to his want of belief in any religious tenet, nor to divulge his opinions
upon matters of religious faith.” Dedric, 17 N.W. at 773. Dedric is later cited by the
supreme court for the proposition that it is improper to discredit a witness by inquiring
about the oath taken before testifying. State v. Browning, 133 N.W. 330, 333 (Iowa
1911) (“If one understands the nature of an oath and assumes to take it as binding upon
him, he is a competent witness.”).
                                             6


witness bolstering and vouching.”            He also asserts the questions were

“argumentative and did not elucidate the State’s position on the issues on trial.”

       Both of Gilmore’s trial attorneys testified they did not remember the

question being asked. Reser testified “[t]hat would probably be something that

we would object to as being irrelevant.” Defense counsel also testified, however,

that Gilmore’s unorthodox religious beliefs were relevant to his state of mind and

his defense.4 We are not persuaded that the prosecutor’s questions “amounted

to the prosecutor unfairly disparaging the defendant in an effort to inflame the

passions of the jury” or that defense counsel’s failure to object was

constitutionally deficient representation.

       3. Video of crime scene included assault rifles. The trial record indicates

Gilmore’s attorneys did object to photographs of assault rifles found at Gilmore’s

home that were not used in the killing of his wife, as well as to a crime scene

video that also showed the assault rifles.            The trial court excluded the

photographs but allowed the video. Gilmore’s defense at trial was that at the

time he shot his wife, he had a dissociative event that left him unable to form the

requisite intent or to know right from wrong. Numerous exhibits related to the

murder weapon, including the semi-automatic .45 caliber used to kill Gilmore’s

wife, were admitted into evidence. There was testimony that no ammunition

other than for that for the .45 was found outside the cabinet or closet where those



4
  We observe a person’s beliefs, superstitions, or affiliation with a religious group is
properly admissible where probative of an issue in a criminal prosecution. United States
v. Beasley, 72 F.3d 1518, 1527 (11th Cir. 1996) (“The First Amendment’s protection of
beliefs and associations does not preclude such evidence where relevant to a trial
issue.”).
                                          7


assault rifles were found. There was no inference that the other weapons in the

house had any relation to the shooting. We are unable to conclude the crime

scene video affected the results of the trial.

       4. Plea offer. Gilmore asserts he would have been willing to enter a guilty

plea to second-degree murder and attempted murder with consecutive sentences

as offered by the State had he known that double jeopardy would have voided

one of the sentences. The underlying premise of this allegation is faulty—in the

circumstances presented here, a court could find a factual basis for both

attempted murder and second-degree murder. See State v. Velez, 829 N.W.2d

572, 584 (Iowa 2013) (“It is well established in Iowa law that a single course of

conduct can give rise to multiple charges and convictions.”); see also State v.

Kehoe, 804 N.W.2d 302, 313 (Iowa Ct. App. 2011) (stating malice aforethought—

which is an element of second-degree murder—is not an element of the crime of

attempt to commit murder).

       We adopt the PCR court’s findings:

       Here, the facts would support both verdicts. The evidence showed
       Gilmore fired numerous bullets at the victim. Seven struck the
       victim; four would have caused a fatal wound. The firing of one of
       the non-fatal shots would have supported the attempted murder
       charge, while any one of the four fatal shots would have supported
       the second-degree murder plea. [Defense counsel] Samuelson
       also believed that there was adequate evidence for a factual basis
       for a guilty plea to both second degree murder and attempted
       murder.

Because Gilmore’s premise is erroneous, this claim fails.

       5. Location of the hammer. Gilmore asserted his wife had threatened him

with a hammer before he shot her. He complains trial counsel did not properly

investigate whether the police had moved the hammer, i.e., tampered with the
                                            8


evidence. In the crime scene video shown to the jury, the hammer can be seen

on the porch of the house with a clipboard on it. Defense counsel Samuelson

testified many people, including Gilmore’s family and the paramedics, had

entered the crime scene prior to the arrival of the crime scene investigation unit.

         Gilmore argues that had counsel developed this notion that police moved

the hammer, it “would have corroborated the statements Gilmore made initially to

police and during the interview at the police department that [his wife] threatened

him with a hammer which provoked the dissociative episode he experienced.”

Yet, trial counsel did present this information to the jury in relation to Gilmore’s

asserted defense.5 Defense counsel introduced the hammer into evidence and

argued the hammer at the scene supported Gilmore’s statements.                The jury

rejected Gilmore’s insanity defense, and we are not persuaded the location of the

hammer would have changed the result.

         Because Gilmore has failed to prove trial counsel were ineffective, we

affirm the dismissal of his PCR application.

         AFFIRMED.




5
    At the criminal trial, attorney Samuelson in closing argument stated:
          [T]hat mental health evidence also supports the argument that Donte
          Gilmore faced a serious provocation, a threat with a hammer—and, yes,
          the hammer was found on the porch. But let’s talk about the fact that
          there were at least two people that left that house prior to law
          enforcement getting there: Donte himself and his mom.
                  We don’t really know where the hammer was dropped because
          the people who were involved here can’t tell us, for one reason or
          another. We do know Donte tells us that [the wife] doesn’t have a
          hammer at the time the shooting starts. But that provocation with the
          hammer is part and parcel of what led to the snap, what led to his
          emotional circuits just blowing, what led to him being overwhelmed with
          an irresistible passion and pulling the trigger.
