                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0242
                              Filed June 5, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LARRY DONELL WHALEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Chris Foy,

Judge.



      A defendant appeals his conviction for second-degree murder. AFFIRMED.



      Alfredo Parrish and Adam C. Witosky of Parrish Kruidenier Dunn Boles

Gribble Gentry Brown & Bergmann, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins and Douglas

Hammerand, Assistant Attorneys General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                          2


TABOR, Judge.

         A jury found Larry Whaley guilty of murder in the second degree. The

verdict followed the State’s evidence showing Whaley fired three shots through his

closed apartment door—the first shot killed Samantha Teeter. On appeal, Whaley

contends the State offered insufficient evidence to prove he acted with malice

aforethought and without justification. Whaley also argues his trial counsel was

ineffective for not further investigating an insanity defense and his competency to

stand trial.

         Viewing the record in the light most favorable to the verdict, we find

substantial evidence to sustain the second-degree murder conviction.           But

because Whaley’s claims of ineffective assistance involve questions of trial

strategy and the record is inadequately developed to address those questions, we

preserve them for possible postconviction-relief proceedings.

I.       Facts and Prior Proceedings

         In the early morning hours of December 2, 2016, Samantha Teeter and her

boyfriend, Kaleb Van Scyoc, knocked on the door of Whaley’s apartment. Rather

than opening the door or asking who was there, Whaley shot three times. Van

Scyoc heard a loud slapping noise, and when he turned to look at Teeter, he saw

“this whole side of her face was gone.”

         The shooting culminated a chaotic day. On the morning of December 1,

Whaley “evicted” Cory and Heather Mays from his apartment with the assistance

of Mason City police. Cory was upset about moving out and kept a key to the

apartment so he could retrieve their belongings. Whaley believed Cory possessed

a gun.
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         That same day, Whaley hung out with Debra Ewing. Ewing, who met

Whaley three weeks earlier, had a past relationship with Jason Bendickson. She

was staying with a friend because she feared Bendickson. When Bendickson

tracked down Ewing at the friend’s home, Whaley picked her up in his car.

         Later in day, Whaley and Ewing met up with Teeter and Van Scyoc. The

foursome drove around in Whaley’s car, making several stops. At one stop,

Whaley purchased a revolver, telling Ewing it would protect her from Bendickson.

Then they stopped at Walmart to buy ammunition and a cellphone for Ewing.

Around 9:40 p.m., Whaley rented a room at the Days Inn to conceal Ewing from

Bendickson. But soon Ewing said she would rather spend the night at Whaley’s

apartment, so they left. With Teeter and Van Scyoc, they returned to Whaley’s

apartment. Whaley urged Ewing to return to the motel “because he didn’t want to

kill anybody” that night—“his words,” Ewing clarified—but Ewing prevailed upon

him to stay at the apartment.

         Whaley handed Teeter a key to his apartment. Teeter, Van Scyoc, and

Ewing went inside while Whaley went out for groceries. Teeter and Van Scyoc left

before Whaley returned. Ewing told Whaley Teeter would be back. Meanwhile,

Ewing stretched out on the couch to sleep.1 Whaley sat by her feet, with the gun

on his lap—Ewing assumed he was protecting her.

         It was around 3:40 a.m. when Teeter and Van Scyoc returned to the

apartment. Van Scyoc testified he thought Teeter tried to knock. Eventually,

Teeter used Whaley’s key to unlock the door. Then Van Scyoc knocked and called



1
    Ewing admitted using methamphetamine and heroin that night.
                                        4


out, “It’s Kid,” his nickname. Inside the apartment, Whaley woke Ewing up, saying

“somebody’s at the door.” Whaley then stood up and shot the gun toward the door.

      In an interview with police, Whaley recalled standing about five feet from

the door when he fired the first shot. “He said it was a warning shot.” Whaley then

fired two more shots through the door and told Ewing to call 911. Whaley told

police “he was hoping that it was Cory Mays” on the other said of the door. Ewing

testified she believed Bendickson was the person trying to enter the apartment. In

fact, Teeter was behind the door, and Whaley’s first bullet fatally wounded her.

      The State initially accused Whaley of first-degree murder, but amended the

charge to second degree. During the prosecution, Whaley filed many letters with

the court as a self-represented party.      The court originally appointed public

defender Susan Flander to represent Whaley, but Flander withdrew due to a

conflict of interest. Michael Adams replaced Flander. Adams sought and was

granted a court-ordered competency evaluation of Whaley.

      At the competency hearing, the evidence showed Whaley was 61 years old,

a former Marine, and a retired machine operator. He had a long history of abusing

substances—including     alcohol,   crack    cocaine,   heroin,   marijuana,   and

methamphetamine. In early November 2016, Whaley’s mental health plummeted.

Four times, Mason City police officers responded to calls at his apartment and

found Whaley in need of treatment. Whaley was hospitalized all four times. In one

instance, Whaley wielded a knife and claimed people were inside his home with a

gun; in another, he told police to check the windows and “watch their backs”; on

yet another occasion, Whaley said people were in his home preventing him from

leaving, and he repeatedly asked if the hospital windows were bulletproof.
                                          5


       Dr. John Bayless, a neuropsychologist, and Dr. Arnold Anderson, a

psychiatrist, separately examined Whaley and found him competent to stand trial.

Both experts based their conclusions on police reports and deposition transcripts

from the November 2016 incidents, as well as notes from two psychiatric visits and

a variety of other sources. The experts did not review medical records from

Whaley’s November hospitalizations.

       At trial, Whaley advanced a claim of self-defense. The jury ultimately

convicted Whaley guilty of second-degree murder. Whaley appeals.

II.    Analysis

       A. Jury Verdict

       “We review challenges to the sufficiency of evidence for correction of errors

at law.” State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). We will uphold a guilty

verdict if it is supported by substantial evidence. Id. Substantial evidence exists

when a rational trier of fact would be convinced the defendant is guilty beyond a

reasonable doubt. Id. We view all relevant evidence in the light most favorable to

the State. Id. Evidence is not substantial if it raises only suspicion, speculation,

or conjecture. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016).

       To prove murder in the second degree, the State had to prove these

elements beyond a reasonable doubt:

              1. On December 2, 2016, Defendant shot Samantha Teeter.
              2. Samantha Teeter died as a result of being shot.
              3. Defendant acted with malice aforethought.
              4. Defendant acted without justification.

Whaley concedes elements (1) and (2). But he contends the evidence was

insufficient to show malice aforethought and lack of justification.
                                          6

          1. Malice Aforethought. Whaley contends the State did not prove he shot

Teeter with malice aforethought. After all, Whaley argues, the State offered “no

evidence of any anger or conflict between Whaley and Teeter from which a jury

could find any malice.” But Whaley’s contention rests on a misapprehension of the

requisite state of mind. Malice is not mere spite, hatred, or ill will toward another.

State v. Leedom, 76 N.W.2d 773, 777 (Iowa 1956). Rather, “[m]alice aforethought

requires the actor to have a ‘fixed purpose or design to do physical harm to another

that exists before the act is committed.’” State v. Lyman, 776 N.W.2d 865, 877

(Iowa 2010) (quoting State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002)), overruled

on other grounds by Alcala v. Mariott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). While

malice must exist before the act occurs, it need not exist for any specific length of

time. State v. Reeves, 636 N.W.2d 22, 25–26 (Iowa 2001). A jury may infer malice

from the intentional use of a deadly weapon in a deadly manner, even if the

perpetrator had no chance to deliberate. Id. at 25. The presumption of malice

from wielding a gun may be rebutted with evidence the shooting was “accidental,

under provocation, or because of mental incapacity.” State v. Reeves, 670 N.W.2d

199, 207 (Iowa 2003).

          A reasonable jury could conclude Whaley acted with malice aforethought.

A gun is a dangerous weapon, and Whaley fired through his front door in a deadly

manner—knowing a person stood on the other side. Whaley contends he shot

under provocation, but the circumstances belie that contention. Whaley did not

know who was behind the door, nor did he take time to find out before he began

firing.
                                           7


       Whaley insists he knew Bendickson was angry and out looking for Ewing.

And “of more concern” to Whaley was Cory Mays, who likely possessed a firearm,

had threatened Whaley, and possessed a key to the apartment. But the record

contained no proof of any specific or imminent threats from either Mays or

Bendickson on the night in question. Whaley also knew Teeter planned to return—

he gave her a key, which she used to open the door.

       Regardless of Whaley’s indiscriminate targeting, he could act with malice

aforethought toward an unidentified victim.2 Malice aforethought only requires a

fixed purpose or design to do harm to another. See Lyman, 776 N.W.2d at 877.

The evidence shows Whaley intended to shoot at whoever was behind the door.

The jury could reasonably conclude from the use of a dangerous weapon that

Whaley had the fixed purpose of harming that person. He took the deliberate steps

of aiming and firing multiple times. Whaley claims he gave a verbal warning after

the first shot, but Van Scyoc did not hear it. In addition, his so-called “warning

shot” struck Teeter’s face, blasting off part of her skull. Whaley did not fire a

warning to scare off the alleged intruder, he shot on a trajectory that proved fatal.

On this record, a reasonable jury could conclude Whaley acted with malice

aforethought when he shot Teeter through the door.




2
 Wayne LaFave discusses a similar mistaken-identity situation:
      [I]n the semi-darkness A shoots, with intent to kill, at a vague form he
      supposes to be his enemy B but who is actually another person C; his well-
      aimed bullet kills C. A is guilty of murdering C, to the same extent he would
      have been guilty of murdering B had he made no mistake. A intended to
      kill the person at whom he aimed, so there is even less difficulty in holding
      him guilty than in the bad-aim situation.
1 Wayne R. LaFave, Substantive Criminal Law § 6.4(d) (3d ed.) (footnotes omitted).
                                            8

       2. Justification. Whaley contends he shot in self-defense or the defense of

another and was thus justified. When a defendant raises the justification defense,

the burden shifts to the State to prove the action was not justified. State v. Rubino,

602 N.W.2d 558, 565 (Iowa 1999). “A person is justified in the use of reasonable

force when the person reasonably believes that such force is necessary to defend

oneself or another from any imminent use of unlawful force.” Iowa Code § 704.3

(2016).3 At the time of the shooting, the State could overcome a justification

defense by proving any of the following facts: (1) the defendant initiated or

continued the incident; (2) the defendant did not believe he was in imminent danger

of death or injury and the use of force was not necessary to save him; (3) the

defendant had no reasonable grounds for the belief; (4) the force used was

unreasonable; or (5) an alternative course of action was available to the defendant.

State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).

       Whaley argues the following circumstances demonstrate he was justified in

shooting: He was in his home in the early morning hours when someone tried to

enter unannounced through the front door—the only exit. Whaley knew two men

were looking to cause harm to either him or Ewing. He knew at least one of those

men likely had a gun.

       Whaley was not required to retreat from his home if the circumstances

presented a “justifiable belief that his life [was] in danger or that he [would] sustain

a great bodily injury.” See State v. Leeper, 200 N.W. 732, 736 (1924). But the jury


3
 The legislature amended this provision in 2017 to state: “A person is justified in the use
of reasonable force when the person reasonably believes that such force is necessary to
defend oneself or another from any actual or imminent use of unlawful force.” 2017 Iowa
Acts ch. 69, § 41.
                                         9

was entitled to find his professed belief was unreasonable. See Thornton, 498

N.W.2d at 674.

      Neither Bendickson nor Mays posed a specific threat to Whaley or Ewing at

the time of the shooting. While Mays had a key to the apartment, he had given

Whaley no reason to believe he would show up spoiling for a fight in the dead of

the night.   As for Bendickson, if Whaley had a reasonable fear he was still

searching for Ewing, they could have stayed at the motel as originally planned.

Whaley even told Ewing he did not want to “kill anyone” that night as a reason for

not retreating to his apartment, yet the pair returned anyway. Whaley also knew

Teeter would be returning and had a key to the apartment. Instead of asking who

was at the door, Whaley took aim and fired where a person would be standing

behind the door. A reasonable jury could conclude Whaley blindly shot through

his door without a reasonable belief that such force was necessary to defend

against the imminent use of force by the person on the other side. Accordingly,

we cannot reverse on the justification defense.

      B. Ineffective Assistance Of Counsel

      Ineffective assistance of counsel is a constitutional claim, rooted in the Sixth

Amendment of the United States Constitution and article 1, section 10 of the Iowa

Constitution. Therefore, our review is de novo. State v. Schminkey, 597 N.W.2d

785, 788 (Iowa 1999).

      To establish his ineffective-assistance claim, Whaley must show (1) trial

counsel failed to perform an essential duty, and (2) prejudice resulted.         See

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Harrison, 914 N.W.2d

178, 188 (Iowa 2018). Whaley must prove both elements of the two-pronged test
                                        10

by a preponderance of the evidence. See State v. Halverson, 857 N.W.2d 632,

635 (Iowa 2015); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

      On the duty prong, Whaley must show trial counsel “performed below the

standard demanded of a ‘reasonably competent attorney.’” Lamasters v. State,

821 N.W.2d 856, 866 (Iowa 2012) (quoting Strickland, 466 U.S. at 688). Trial

counsel’s performance is measured against “prevailing professional norms.”

Ledezma, 626 N.W.2d at 142 (quoting Strickland, 466 U.S. at 688). Counsel is

presumed to have acted competently. Id. Reasonable strategic decisions, even if

ultimately unsuccessful, are not grounds for an ineffective-assistance-of-counsel

claim. State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006).

      We may decide a claim of ineffective assistance on direct appeal if the

record is sufficient, or we may preserve it for postconviction proceedings. State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). If the appellant’s brief does not develop

a claim sufficiently for our consideration, we need not entertain it, but we should

not “outright reject it.” State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018). Leaving

such claims for a later hearing allows for full development of facts surrounding

counsel’s conduct.     State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997).

Postconviction proceedings are often necessary to sort improvident trial strategy

from ineffective assistance. Ondayog, 722 N.W.2d at 786.

      Counsel has a duty to conduct a reasonable investigation. Strickland, 466

U.S. at 691. Whaley argues his attorney should have fully investigated Whaley’s

mental health in pursuit of an insanity defense. To prevail on an insanity defense,

Whaley had to show, by the preponderance of the evidence, when he committed

the crime he suffered from a diseased or deranged condition of the mind rendering
                                        11


him (1) incapable of knowing the nature and quality of the act he was committing,

or (2) incapable of distinguishing between right and wrong in relation to that act.

See Iowa Code § 701.4; State v. Harkness, 160 N.W.2d 324, 330 (Iowa 1968)

(adopting M’Naghten rule); see also M’Naghten’s Case (1843) 8 Eng. Rep. 718,

722 (H.L.). Whaley points to numerous signs of his ongoing paranoia, including

repeated hospitalizations in the month before the shooting and his pro se letters to

the trial judge. He argues his trial attorney realized he could be suffering from a

mental disorder, yet did not seek psychiatric records or consult an expert to assess

the viability of an insanity defense.

       Whaley also complains although trial counsel correctly sought a

competency evaluation, he failed to conduct an independent investigation into

Whaley’s mental health and all but conceded Whaley’s competency based on the

two court-ordered evaluations. He contends counsel should have pursued another

evaluation.

       The State responds the record is inadequate to show counsel failed to fully

investigate the viability of the insanity defense—the record does not disclose

whether counsel considered raising an insanity defense or what advice counsel

gave Whaley concerning such a defense; nor does it show Whaley’s view on

claiming he was not guilty by reason of insanity. Whaley went to trial on a

justification defense; it is possible counsel and Whaley decided it would appear

inconsistent to assert an insanity defense as well. Such strategic discussions

constitute critical evidence for an ineffective-assistance claim. See Ondayog, 722

N.W.2d at 787.
                                           12


       As to a more persistent competency fight, the State asserts, “[A]n absence

of record evidence hobbles much of Whaley’s argument.” We agree it is not clear

what a third evaluation would have shown that the first two did not. The record

does not disclose what the medical records from the November 2016

hospitalizations would have added to the evaluators’ assessments of Whaley’s

mental state at the time of trial, more than a year later.

       Because our direct-appeal record does not show how counsel’s alleged

failures would have impacted Whaley’s chances in the competency hearing and at

trial, we affirm his conviction for second-degree murder but preserve the

complaints    about     his   representation     for   possible    postconviction-relief

proceedings.4 See Harris, 919 N.W.2d at 754.

       AFFIRMED.




4
  In his reply brief, Whaley argues for the first time Iowa courts should not be bound by
federal interpretations of the Sixth Amendment, and instead should analyze ineffective
assistance claims under article I, section 10 of the Iowa Constitution, which guarantees
assistance of counsel. Whaley argues Iowa attorneys should be held to the standard of
conduct exemplified by “a reasonably competent Iowa attorney” and asserts, “Iowa should
demand more from Iowa attorneys consistent with our history and tradition.” He also
argues he should not be required to prove prejudice when the trial attorney’s performance
is sub-standard. But we must follow controlling precedent. See State v. Beck, 854 N.W.2d
56, 64 (Iowa Ct. App. 2014). And we do not address issues asserted for the first time in
a reply brief. Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992).
