                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1013
                           Filed September 17, 2014


SHALONDA GREEN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Shalonda Green appeals from the district court’s denial of her second

application for postconviction relief. AFFIRMED.




      Christopher Kragnes of Kragnes & Associates, P.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, John P. Sarcone, County Attorney, and Michael T. Hunter,

Assistant County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vogel and Bower, JJ.
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VOGEL, J.

       Shalonda Green appeals from the district court’s denial of her second

application for postconviction relief. She asserts that trial counsel was ineffective

for failing to request a jury instruction on voluntary manslaughter and for not

pursuing an insanity defense, and that postconviction and appellate counsel were

ineffective for not making these claims in a previous proceeding, given that these

claims were then waived.       Because both of Green’s claims are meritless,

postconviction and appellate counsel were not ineffective for failing to raise them

in a previous proceeding, and we affirm the district court’s denial of Green’s

application.

       On November 8, 2002, following a jury trial, Shalonda Green was

convicted of first-degree murder in violation of Iowa Code sections 707.1 and

707.2(1), (5) (2001).    In affirming Green’s conviction, our court recited the

following background facts:

               In his six short years, Charles Green experienced many
       forms of abuse. He was born on February 6, 1996, to Kizzie Evans
       and Tu-mma Green. Tu-mma was no longer involved with Kizzie
       when Charles was born. Charles was abused by Kizzie and was
       removed from her home when he was between the ages of nine
       and twelve months. As a result, he was placed with his maternal
       uncle. Two years later, Charles was again removed because of
       suspected abuse in that home. He was subsequently placed in a
       group home until October of 2001, when he was reunited with his
       father in Des Moines.
               Tu-mma had married Shalonda before this placement. They
       had two children together, Tu-mma Jr. and Tamia. Shalonda also
       had a child from a previous relationship, Devonti, who lived with the
       family.
               Charles presented his family with many challenges. He
       acted out at school. He threw tantrums and soiled himself when he
       did not get his way. In addition, he could not be left alone with
       Tamia because he had previously touched her in a sexual manner.
                                  3


        On March 13, 2002, Charles had a tantrum and threw
himself on the floor. In the process, he hit his head on the corner of
the stairs. He sustained a large gash, and Shalonda took him to
the hospital. He was examined in the emergency room where he
was diagnosed as having superficial injuries on the left parietal area
of his skull. The wound was stapled, and the injury was not
considered serious.
        On March 15, 2002, Charles was choked by his father. Tu-
mma became upset with Charles after a bad report from school.
Tu-mma picked him up by the neck, shook him, and then put him
back down. Shocked by his own actions, Tu-mma left the house to
cool off.
        On March 18, 2002, the children were home for spring
break. Tu-mma had left for work around 4:30 a.m., and Shalonda
was the only adult supervising the children. When Charles awoke
that morning, he complained of a headache. Shalonda gave him
Motrin and told him to lie back down. She then departed from the
house with two of the children, leaving Charles and Devonti home
alone. Upon her return, Shalonda learned Charles had not stayed
in his room as she had instructed. Instead, he had been running
around the house. Shalonda became upset because Charles had
not obeyed her orders.
        Shalonda picked Charles up by the shoulders and pushed
him against the wall. She told him she wanted to choke him. She
then took him upstairs to the bedroom to discipline him. Once in
the room, Shalonda got on her knees and ordered Charles to come
at her. Shalonda shoved him away when Charles did as he was
told. She stated she wanted him to cry and feel bad. She became
angrier when Charles ignored her. She pushed him again and told
him to hit her. Shalonda continued pushing Charles until he
pushed her back. Shalonda then punched him in the chest. At that
point, Charles became frightened and told Shalonda he wet his
pants. This caused Shalonda to become extremely upset. She
repeatedly punched Charles with a closed fist and choked him.
She then stood up and kicked the child. He fell backward, then
forward to his hands and knees. He tried to get up. Shalonda
kicked him again knocking him completely to the floor. Shalonda
then paused in the assault and left the room.
        Shalonda’s friend Asha Brown stopped by to visit shortly
after the incident in the bedroom. She stayed and conversed with
Shalonda for approximately forty minutes. They both remained in
the living room of the house during the visit. After Brown left,
Shalonda took a moment to call Tu-mma and then went back
upstairs. She found Charles still lying on the floor.
        Shalonda again kicked Charles in his side. She then left to
pick up clothing and laundry in the bedrooms and bathroom. The
next time she looked in the bedroom, Charles was still lying on the
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         floor. She heard him take a deep breath and gurgle. Shalonda
         immediately attempted to revive him by calling his name and
         slapping him on the face. She then called 911.
                The Des Moines Fire Department was called to the scene
         where they found Charles on the floor with his face up and eyes
         open. His heart was not beating. Their initial efforts to resuscitate
         him were unsuccessful.         Charles was transported to Blank
         Children’s Hospital where doctors were able to get his heart
         pumping again. Although Charles’s heart was beating, doctors
         were unable to fully revive him. The child was pronounced clinically
         brain dead on March 20, 2002. He was subsequently taken off his
         respirator.

State v. Green, 0-061/09-0706, 2010 WL 893909, at *1–2 (Iowa Ct. App. April 28,

2004).

         Our court affirmed the district court’s denial of Green’s first postconviction

application, see Green v. State, 09-0706, 2010 WL 1052079 (Iowa Ct. App.

March 24, 2010), in which she argued trial counsel was ineffective for failing to

object to alleged prosecutorial misconduct, and by not introducing evidence of

the polygraph test administered by police. On January 3, 2012, Green filed this

second postconviction relief application. The district court denied the application,

stating the claims presented were waived due to Green’s failure to previously

raise them, and that the arguments also failed on the merits. Green appeals,

arguing that, to the extent the district court properly concluded these claims were

waived, postconviction and appellate counsel were ineffective for failing to

present them at a previous hearing.

         We review ineffective-assistance-of-counsel claims de novo.          State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006).             To succeed on this claim, the

defendant must show, first, that counsel breached an essential duty, and,

second, that he was prejudiced by counsel’s failure. Id. We note that counsel is
                                          5

not ineffective for failing to pursue a meritless issue.      State v. Greene, 592

N.W.2d 24, 29 (Iowa 1999).

       Upon review of the record, we conclude the district court properly found

both Green’s claims failed on the merits.           With regard to the voluntary

manslaughter instruction, Iowa Code section 707.4(1) states:

       A person commits voluntary manslaughter when that person
       causes the death of another person, under circumstances which
       would otherwise be murder, if the person causing the death acts
       solely as the result of sudden, violent, and irresistible passion
       resulting from serious provocation sufficient to excite such passion
       in a person and there is not an interval between the provocation
       and the killing in which a person of ordinary reason and
       temperament would regain control and suppress the impulse to kill.

Iowa Code § 707.4(1); see also id. § 707.4(3) (noting voluntary manslaughter is a

lesser-included offense of murder in the first or second degree).

       The record in this case does not support a jury instruction under this

statute, particularly given that, as a matter of law, a child cannot provoke a

defendant to commit the crime of voluntary manslaughter. See State v. Taylor,

452 N.W.2d 605, 606 (Iowa 1990) (holding an eight-month-old child cannot

“provoke” an adult under the voluntary manslaughter statute).            Furthermore,

when submitting a jury instruction for a lesser-included offense, the facts of the

case must support the essential elements of the offense, a requirement not

supported by this record. See State v. Royer, 436 N.W.2d 637, 642–43 (Iowa

1989) (holding that supporting facts are necessary when submitting a jury

instruction for a lesser-included offense). Consequently, trial counsel did not err

in failing to request that this instruction be submitted to the jury, nor did appellate

or postconviction counsel breach an essential duty by failing to raise this
                                          6

argument earlier. See State v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006)

(noting counsel has no responsibility to propose instructions that are not

supported by substantial evidence or do not accurately reflect the law).

       Nor does the record support Green’s claim that trial counsel was

ineffective for failing to investigate or assert an insanity defense, specifically, one

based on post-partum depression. Green has presented no evidence, either at

trial or in her current application, showing she suffered from a mental disability

such that she was unaware of the nature of her actions at the time of her crime or

that she was unable to distinguish right from wrong. See Iowa Code § 701.4

(defining the insanity defense as necessitating that the defendant show “a

diseased or deranged condition of the mind [that] render[s] the person incapable

of knowing the nature and quality of the act the person is committing or incapable

of distinguishing between right and wrong in relation to that act.”).         Green’s

testimony at trial relied on her claim that she lied in her confession to the police,

not that she suffered from a mental disability. There was no indication, from

either the record or Green’s statements, that trial counsel should have

investigated her mental state.      Rather, at the postconviction hearing, Green

testified she never discussed her mental health with trial counsel. Given this lack

of record, Green has failed to establish trial counsel was ineffective for failing to

investigate or argue the insanity defense at trial, and therefore appellate and

postconviction counsel were not ineffective for failing to raise this claim

previously. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (stating it

is the defendant’s burden to show both prongs of her ineffective-assistance claim

by a preponderance of the evidence).
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       Having considered Green’s arguments, we affirm the district court’s denial

of her application for postconviction relief.

       AFFIRMED.
