                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1283
                           Filed December 20, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICKY KEASLING,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Myron L. Gookin,

Judge.



      A defendant appeals his conviction for first-degree murder and first-degree

burglary. AFFIRMED.



      Alfredo G. Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry,

Brown & Bergmann, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Heard by Vogel, P.J., and Tabor and Bower, JJ.
                                           2


VOGEL, Presiding Judge.

       Ricky Keasling, convicted of murder in the first degree and burglary in the

first degree, asserts his trial counsel was ineffective for failing to object to the

felony-murder instruction, failing to seek an eyewitness-identification instruction,

and failing to obtain an eyewitness expert. Further, Keasling asserts the district

court erred in excluding a witness from testifying at trial, or in the alternative, trial

counsel was ineffective for failing to timely disclose the witness. For the reasons

stated herein, we affirm his conviction.

   I. Background Facts and Proceedings

       Darrell Teeter was murdered on August 11, 2014, at the same location

where he lived and worked, the Main Street Bait Shop in downtown Eldon. The

bait shop was in the front of the building, and Teeter’s residence was in the back.

Teeter had been ill and undergoing dialysis a few days a week, and he had been

prescribed hydrocodone for chronic pain.

       A few days prior to his death, Teeter’s friend, Peter Saner, stopped by the

bait shop in the morning on his way to work to wake up Teeter. Upon waking,

Teeter discovered his cash drawer was empty and his hydrocodone pills were

missing. Teeter reported the theft. Teeter remarked to Saner, “the Keasling boy”

had asked him for hydrocodone but Teeter did not have any at the time. On August

10, Teeter was awakened by someone pounding on his door at approximately 3:30

a.m. The pounding stopped once Teeter turned on his lights.

       On August 11, Saner stopped by the bait shop just before 7:00 a.m.; he

knocked on the door but received no answer. He walked around the back of the

shop and found a window open and the air conditioning unit still running, but the
                                          3


unit was laying on the floor. He could see Teeter lying on his couch. Saner climbed

through the window, observed Teeter’s body, and called 911. While waiting for the

police to arrive, Brad McClure drove by, and Saner handed him the keys to a skid

loader for a job Saner was working on.

       Investigators found the living room to be in complete disarray with empty

bottles of hydrocodone. The doors of Teeter’s two vehicles were slightly ajar, and

papers found inside were disturbed. Police removed the pieces of siding next to

the window where the air conditioning unit had been located for fingerprint

analysis. The bullet removed from Teeter’s head and the shell casing found

outside Teeter’s window were consistent with a .22 long-rifle bullet.          Police

questioned Keasling, who denied taking any prescription medications other than

his own and who said Teeter once paid one of Teeter’s workers in hydrocodone

pills instead of money. Keasling also said he had been in the bait shop to buy

fishing supplies and had performed construction work for Teeter, but he had never

been in the back, residential portion of the building.

       Several witnesses provided pieces of information to the investigators. Upon

learning of Teeter’s death, his friend, Jim Knaak, told the police that Teeter said

Keasling had been offering to buy hydrocodone pills from Teeter. William Hilliard

spoke to police about his observations on the night in question, as he was on a

walk that evening on the bike path near the bait shop. Hilliard had observed a

pickup truck hauling concrete construction equipment and had memorized the

license plate. Seth Yochum indicated he observed Keasling drive his truck near

the bait shop in the early morning hours of August 10, park the truck, and walk in

the direction of the bait shop. Additional evidence linked Keasling with a .22 pistol.
                                           4


Witnesses testified they heard gunshots near the river approximately two weeks

prior to Teeter’s death and observed a white pickup truck similar to Keasling’s work

truck, which he used to haul concrete equipment. When police investigated the

location where witnesses heard gunshots, they found six spent .22 pistol casings.

       Police executed a search warrant on Keasling’s person and his

grandmother’s house, where Keasling resided.             They found approximately

fourteen hydrocodone pills on his person, some stamped M366 and others

stamped M357.       Pills marked M366 were later found at Teeter’s bait shop.

Fingerprint testing and analysis revealed Keasling’s fingerprints at the bait shop.

Specifically, Keasling’s prints were found on two pieces of aluminum siding next to

the window where the air conditioning unit had been located, one pill bottle next to

Teeter’s television stand, one pill bottle from the living room, and another pill bottle

from behind the counter of the bait shop. Additionally, Keasling’s prints were found

on papers located inside Teeter’s car and truck.

       On January 2, 2015, Keasling was charged with first-degree murder, in

violation of Iowa Code sections 707.1 and 707.2(1)(a) or (b) (2014), and first-

degree burglary, in violation of Iowa Code sections 713.1 and 713.3(1)(b) or (c).

Trial began May 10, 2016, and the jury returned guilty verdicts on both counts. On

June 10, 2016, Keasling filed a motion for new trial and motion in arrest of

judgment. The motions were denied. Keasling was sentenced to life without

parole for first-degree murder and twenty-five years for first-degree burglary, to run

concurrently.

       Keasling appeals.

   II. Standard of Review
                                            5

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

Ondayog, 722 N.W.2d 778, 783 (Iowa 2006). To establish a claim of ineffective

assistance of counsel, the defendant must prove by a preponderance of the

evidence: (1) trial counsel failed to perform an essential duty and (2) prejudice

resulted from this failure. State v. Lane, 743 N.W.2d 178, 183 (Iowa 2007) (citing

Strickland v. Washington, 466 U.S. 668, 694 (1984)).              Claims of ineffective

assistance of counsel raised on direct appeal are generally preserved for

postconviction-relief proceedings for the development of a sufficient record and to

allow the attorney an opportunity to defend his or her actions. See State v. Allen,

348 N.W.2d 243, 248 (Iowa 1984). However, where the record on appeal is

sufficient to allow us to determine that either prong of an ineffective assistance

claim is lacking, we may decline to preserve the issue and may instead address

the claim on direct appeal. State v. Brown, 656 N.W.2d 355, 364 (Iowa 2003).

       We review the record to determine if the court abused its discretion in

excluding a witness as a sanction for failure to comply with the disclosure of a

witness. State v. Babers, 514 N.W.2d 79, 82 (Iowa 1994). The sanctions are

discretionary and will be reversed only if the trial court abuses its discretion. Id.

An abuse of discretion will not generally be found unless the party whose rights

have been violated suffered prejudice. Id.

   III. Ineffective Assistance of Counsel

           A. Felony-Murder Instruction

       The district court instructed the jury it could convict Keasling of first-degree

murder if it found either he acted willfully, deliberately, premeditatedly, and with the

specific intent to kill Darrel Teeter or he killed Teeter while participating in the crime
                                           6

of first-degree burglary.1 See Iowa Code §§ 707.2(1)(a) (premeditated killing),

707.2(1)(b) (killing while participating in a forcible felony), 702.11 (providing “[a]

‘forcible felony’ is any felonious child endangerment, assault, murder, sexual

abuse, kidnapping, robbery, arson in the first degree, or burglary in the first

degree”).

       Keasling claims his trial counsel should have objected to instructing the jury

on the felony-murder alternative because the evidence at trial established only a

single act caused injury to Teeter, which also caused his death. Because first-

degree burglary may be committed when a person inflicts bodily injury on any

person, Keasling asserts the act of shooting Teeter was the same act as contained

in the predicate felony. See Iowa Code § 713.3. To support his argument,

Keasling relies on the following cases: State v. Heemstra, 721 N.W.2d 549, 557

(Iowa 2006) (holding felonious assault of willful injury could serve as the predicate

offense for felony murder only in certain circumstances); Goosman v. State, 764

N.W.2d 539, 514 (Iowa 2009) (holding federal due process did not require

retroactive application of Heemstra); State v. Millbrook, 788 N.W.2d 647, 650 (Iowa

2010) (finding the defendant committed an assaultive act sufficiently independent

of the firing of the gun that resulted in the victim’s death); and State v. Tribble, 790

N.W.2d 121, 129–30 (Iowa 2010) (upholding the conviction because substantial

evidence supported a jury finding that head trauma and asphyxia were caused by

separate acts).




1
 The verdict form simply stated the jury found Keasling “guilty of Murder in the First
Degree” without distinguishing premeditated murder from felony murder.
                                             7


         Our court has dealt with the issue of merger in the context of the predicate

felony of arson, noting:

                 In Heemstra, our supreme court held that if the act causing
         willful injury as a forcible felony is the same act that causes the
         victim’s death, the former is merged into the murder and cannot
         serve as the predicate felony for felony-murder purposes. Heemstra,
         721 N.W.2d at 558. Accordingly, our court adopted what is known
         as the “merger rule.” Id.

State v. Tucker, 810 N.W.2d 519, 521–22 (Iowa Ct. App. 2012). Our court also

noted:

         [A]pplication of the felony-murder rule in the case of arson is
         consistent with the traditional purpose of the felony-murder rule:
         deterring people from committing those felonies that present a
         heightened risk of death to others by transforming the felony offense
         sought to be deterred into first-degree murder if a person is killed in
         the course of the felony . . . .

Id. at 522.

         Our “supreme court has not extended the Heemstra merger rule beyond the

context of felonious assaults.” Id.; accord Tribble, 790 N.W.2d at 129; Millbrook,

788 N.W.2d 653–54. Although burglary contains an assault element, the merger

rule has not been extended beyond felonious assaults to include burglary or other

forcible felonies.2 As noted in Tucker, “although the supreme court has seemingly



2
  Further, our court has declined to find counsel was ineffective for not challenging the
felony-murder instruction when the predicate felony was robbery or assault with the intent
to commit sexual abuse. See Killings v. State, No. 15-1061, 2017 WL 1735614, at *4-5
(Iowa Ct. App. May 3, 2017) (addressing assault with the intent to commit sexual abuse);
State v. McCoy, No. 14-0918, 2016 WL 3269458, at *4-7 (Iowa Ct. App. June 15, 2016)
(addressing the assault alternative to first-degree robbery); see also State v. Pollard, No.
13-1255, 2015 WL 405835 at *3-4 (Iowa Ct. App. Jan. 28, 2015) (addressing the assault
alternative to first-degree robbery). First-degree burglary and first-degree robbery may be
committed when a person inflicts bodily injury on any person. See Iowa Code §§
713.3(1)(c), 711.2. Thus, even though an assault may occur during the commission of a
burglary, robbery, or assault with the intent to commit sexual abuse, we have concluded
the merger rule will not apply to such forcible felonies.
                                         8


adopted a ‘two separate acts’ approach for felony-murder, we believe that

approach is best served by limiting it to felonious assaults.       To extend that

approach to arson would effectively write arson out of the felony-murder statute.”

See 810 N.W.2d at 522; accord Tribble, 790 N.W.2d at 128. The same, we

conclude, would apply to the assault alternative to first-degree burglary if the “two

separate acts” approach is extended beyond felonious assaults. Therefore, we

decline to find counsel was ineffective for not challenging the felony-murder

instruction.

           B. Eyewitness-Identification Instruction

       Keasling next asserts trial counsel was ineffective for failing to request an

instruction regarding eyewitness identification. The State offered testimony from

various witnesses who claimed to have either seen Keasling at Teeter’s shop on

or near the date he was killed, or had seen Keasling’s truck either at the shop or

near the river where spent shells were found, linking Keasling to the murder

weapon. The trial court did not use the model instruction on eyewitness testimony

or a similar instruction. Instruction 200.45 indicates the jury may consider:

             1. If the witness had an adequate opportunity to see the
       person at the time of the crime. . . .
             2. If an identification was made after the crime . . . consider
       whether it was the result of the witness’s own recollection. . . .
             ....
             4. Any occasion in which the witness failed to identify the
       defendant or made an inconsistent identification.

Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.45.         Keasling’s trial

counsel did not request the instruction.       Keasling asserts his counsel was

ineffective for failing to request the instruction because the instruction would have
                                                9


given the jury guidance to test the reliability of each witness. Keasling notes the

State primarily relied on witness identification of him and his truck.

          As was the case in State v. Shorter, the State concedes Keasling likely

would have been entitled to the eyewitness instruction had counsel requested it.

See 893 N.W.2d 65, 86 (Iowa 2017). However, as in Shorter, Keasling cannot

show a reasonable probability the result at trial would have been different if the

court had provided the jury with the eyewitness-identification instruction. See id.

In this case, the jury was provided the general instructions that inform the jury to

“reconcile any conflicts in the evidence” and evaluate the various witnesses’

testimony.3 Keasling points to potential weaknesses in some testimony that could

call into question a witness’s memory, eyesight, vantage point, and level of

intoxication. Yet each witness Keasling asserts has a weakness in his testimony

was pressed on that weakness during cross-examination by defense counsel at

trial. The jury was then instructed to use its “observations, common sense and




3
    Instruction No. 11 provided:
                  Decide the facts from the evidence. Consider the evidence using
          your observations, common sense and experience. Try to reconcile any
          conflicts in the evidence; but if you cannot, accept the evidence you find
          more believable.
                  In determining the facts, you may have to decide what testimony
          you believe.
                  You may believe all, part, or none of any witness’s testimony.
                  There are many factors which you may consider in deciding what
          testimony to believe, for example:
                  1. Whether the testimony is reasonable and consistent with other
          evidence you believe.
                  2. Whether a witness has made inconsistent statements.
                  3. The witness’s appearance, conduct, age, intelligence, memory
          and knowledge of the facts.
                  4. The witness’s interest in the trial, their motive, candor, bias and
          prejudice.
                                         10

experience” to “try to reconcile any conflicts in the evidence.” As stated in Shorter,

“much of the eyewitness identification instruction embraces commonsense notions

that would not likely have escaped a conscientious jury unaided by the [model]

instruction.” Id. The same is true here. Thus, when the instructions given to the

jury provided it with the tools needed to sort through the evidence and make its

findings, Keasling cannot establish he was prejudiced by his counsel’s failure to

request the model instruction. See id.

          C. Eyewitness Expert

       Next, Keasling asserts that since eyewitness identification was central to

the State’s case against him, trial counsel was ineffective for failing to obtain an

eyewitness expert. Specifically, Keasling asserts expert testimony was necessary

due to the threat of a mistaken eyewitness identification. See Gary L. Wells,

Eyewitness Identification Evidence: Science and Reform, 29 Champion 12 (2005).

Keasling contends this failure left the jury without the framework for assessing the

discrepancies in the eyewitness testimony they heard, resulting in prejudice.

       Our supreme court has noted that eyewitness testimony may have a

dramatic influence on defense strategy or the theory of the case. Shorter, 893

N.W.2d at 81–82. Our supreme court went on to note:

       Voir dire may be used to educate the jury about honestly mistaken
       witnesses. Defense counsel must be prepared to explore the
       potential for error in the identification process through effective
       cross-examination. Cross-examination, however, is not likely to be
       effective when a person is genuinely mistaken about past events.
       Consideration should be given to obtaining expert witness testimony
       of the problems with eyewitness identification.

Id. at 82 (citing State v. Schutz, 579 N.W.2d 317, 319 (Iowa 1998)).
                                         11


      In addition to the general jury instructions aiding the jury in its determination

of witness credibility, the jury was also presented with sufficient corroborating

evidence supporting the identifications. Some witnesses provided eyewitness

testimony regarding either Keasling or his truck. Other witnesses provided non-

eyewitness testimony linking Keasling to Teeter’s death. For instance, Saner

testified Teeter was concerned “the Keasling boy” had stolen some of his

hydrocodone pills after Teeter had declined Keasling’s recent offer to purchase

some of the pills; after Teeter’s death, Keasling was found in possession of

hydrocodone pills bearing the same identifying markings as those found in Teeter’s

possession.

      Further, shortly before Teeter was killed, his gun had been stolen, and

Keasling had bragged to his brother that he had recently acquired a “22 pistol,”

boasting in text messages about how well the gun shot.             After the murder,

investigators found a number of .22 rounds of ammunition in Keasling’s

possession. Keasling’s truck had been seen near the river immediately after

neighbors heard gunshots, and the shell casings found by the river were

determined to have been fired by the same firearm as was fired at Teeter’s

residence. Additionally, although Keasling denied ever being in the residential

portion of Teeter’s building, Keasling’s fingerprints were found both inside and

outside that area, on hydrocodone pill bottles, as well as on items located in

Teeter’s vehicles. Thus, the jury was presented with considerable evidence that

was not dependent on eyewitness testimony linking Keasling to the crime.

Keasling, therefore, has not shown there is a reasonable probability the result of

the trial would have been different if an expert on eyewitness identification had
                                         12


testified. We conclude Keasling has not shown he was prejudiced by defense

counsel’s failure to present the testimony of an expert on eyewitness identification.

   IV. Witness Exclusion

       Next, Keasling asserts the exclusion of a witness who could have provided

exculpatory evidence was an extreme and unreasonable sanction, unsupported by

prejudice to the State. On day seven of the trial, after the State had rested,

Keasling’s counsel sought to have Brad McClure testify for the defense. At a

hearing outside the presence of the jury, Keasling’s counsel explained to the court

that he had become aware of McClure’s testimony during the nine-day period prior

to trial in which disclosure of additional witnesses was not permitted. See Iowa R.

Crim. P. 2.13(3). Keasling’s counsel made the strategic decision to call McClure

as an undisclosed defense witness during trial rather than to supplement

disclosure.   After a brief summary of the substance of McClure’s purported

testimony, the State resisted, claiming McClure’s testimony would be inadmissible

hearsay. The district court agreed and excluded McClure’s testimony.

       The sanctions available to the district court when a defendant fails to comply

with subsection (3) of rule 2.13 are found in subsection (4) of the rule, which states

in pertinent part:

       If the defendant . . . does not disclose to the prosecuting attorney all
       of the defense witnesses (except the defendant and surrebuttal
       witnesses) at least nine days before trial, the court may order the
       defendant to permit the discovery of such witnesses, grant a
       continuance, or enter such other order as it deems just under the
       circumstances. It may, if it finds that no less severe remedy is
       adequate to protect the state from undue prejudice, order the
       exclusion of the testimony of any such witnesses.
                                         13

Iowa R. Crim. P. 2.13(4); see Babers, 514 N.W.2d at 82. The district court, in

choosing to exclude McClure as a witness, ruled:

              First of all, it appears to the court that although the defendant
       has referred to this proposed evidence at exculpatory, the court
       considers it more in line with being impeachment of Mr. Saner’s
       testimony.
              Furthermore, that the State has rested its case in this matter.
       As the state’s attorney points out, the defense evidence, if not
       concluded, at least is close to being concluded at this point in time,
       so we are far into and very close to the end of the presentation of
       evidence in this case. So the notice of this potential witness by the
       defense is very delinquent.
              Furthermore, based upon the statements of counsel made
       here today, they knew of the potential testimony of this witness within
       the nine-day period prior to trial and made a specific and strategic
       decision not to list this person as a witness for the defendant, and
       therefore, at this point in time to spring a witness on the State, the
       court considers to be unfair, and the proper remedy is to exclude the
       witness.

       Because the State had rested its case, Keasling was close to resting his

own defense, and the court viewed the evidence as impeachment rather than

exculpatory, we do not find this choice of remedy to be an abuse of the district

court’s discretion.

       Next, Keasling asserts his trial counsel was ineffective for failing to timely

disclose McClure as a witness, causing him prejudice. Keasling argues his trial

counsel’s decision to withhold disclosure of McClure was due to a lack of diligence

rather than due to an appropriate trial strategy.      Keasling contends that due

diligence would have revealed the likelihood that McClure’s testimony would have

been excluded due to nondisclosure.

       Keasling must prove, by a preponderance of the evidence, both that counsel

failed to perform an essential duty and that prejudice resulted. Ledezma v. State,

626 N.W.2d 134, 142 (Iowa 2001). Iowa Rule of Professional Conduct 32:1.3
                                         14


requires lawyers to “act with reasonable diligence and promptness in representing

a client.” A lawyer who neglects to file documents with the court in a timely manner

without an adequate excuse violates this rule. See State v. Ary, 877 N.W.2d 686,

705 (Iowa 2016). While strategic decisions made after “thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable,” strategic

decisions made after a “less than complete investigation” must be based on

reasonable professional judgments supporting the particular level of investigation

conducted.    Ledezma, 626 N.W.2d at 143.         However, if the claim lacks the

necessary prejudice, we can decide the case on the prejudice prong of the test

without deciding whether the attorney performed deficiently. Id.

       McClure’s testimony at the hearing on Keasling’s motion for new trial

consisted of impeachment evidence against Saner. At trial, Saner testified he does

not take hydrocodone, had been friends with Teeter for years, and “the Keasling

boy” offered to purchase hydrocodone from Teeter. McClure testified he drove by

Teeter’s bait shop around 7:00 a.m. on August 11 to meet Saner before a job and

Saner “flagged” him down as he approached. McClure testified Saner said he

“found Mr. Teeter dead” and then asked McClure for hydrocodone. Saner then

asked McClure to lie for him about finding Teeter’s body on August 11. McClure

indicated he knew Saner took “handfuls” of hydrocodone, regularly carried

firearms, and associated with individuals who McClure “did not know what they

were capable of.”    Although McClure testified he did not know what Saner’s

associates were capable of, he indicated he was not fearful of them.

       As the district court noted:
                                         15


               Even assuming such evidence could not have been
       discovered earlier in the exercise of due diligence, evidence that
       Saner asked McClure to lie about their encounter merely goes to
       Saner’s credibility as a witness. No other evidence ties Saner to the
       commission of the crimes.
               Concerning Saner’s credibility, a jury could conclude his
       credibility was successfully impeached. Or, a jury could just as easily
       conclude that Saner’s testimony was credible and Saner only asked
       McClure to lie because he did not want McClure to publicly reveal at
       trial Saner was taking prescription pain killers that were not
       prescribed to him.
               Bottom line, based upon the totality of the credible evidence
       presented, even if McClure had testified about Saner asking him to
       lie, and Saner’s credibility as a witness was successfully impeached,
       the court concludes such would probably not have changed the result
       of the trial.

       Saner was interviewed by police, provided a DNA sample, and provided

fingerprint samples four times. Despite the presence of Saner’s fingerprints in

Teeter’s residence, which is explained by Saner’s admission to finding Teeter’s

body, no other evidence linked him to the killing. On our de novo review, we

conclude there is no reasonable probability of a different outcome had counsel

timely disclosed McClure as a witness.         Accordingly, Keasling’s ineffective-

assistance-of-counsel claim fails.

   V. Cumulative Error/Plain Error

       Finally, Keasling contends the cumulative error of his ineffective-assistance

claims as asserted above should entitle him to a new trial. “Iowa recognizes the

cumulative effect of ineffective-assistance-of-counsel claims when analyzing

prejudice under Strickland.” State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012). If a

claimant raises multiple claims of ineffective assistance of counsel, the cumulative

prejudice from those individual claims should be properly assessed under the

prejudice prong of Strickland. Id. If the court only considered the prejudice prong,
                                         16


“the court can only dismiss the postconviction claim if the alleged errors,

cumulatively, do not amount to Strickland prejudice.” Id. at 501–02. Here, as to

the claims counsel failed to request an eyewitness-identification instruction, failed

to obtain the testimony of an eyewitness expert, and failed to timely disclose

McClure as a witness, in which we only considered the prejudice prong, we do not

find the cumulative effect of Keasling’s attorney’s actions or inactions rise to the

level of Strickland prejudice.

       Moreover, our supreme court does not recognize a “plain error” rule. See

State v McCright, 869 N.W.2d 506, 607 (Iowa 1997) (citing State v. Hutchison, 341

N.W.2d 33, 38–40 (Iowa 1983)). We cannot do so in its stead. See State v.

Hastings, 466 N.W.2d 697 (Iowa Ct. App. 1990) (“We are not at liberty to overturn

Iowa Supreme Court precedent.”).

   VI. Conclusion

       Because Keasling’s trial counsel was not ineffective for failing to object to

the felony-murder instruction and no prejudice resulted from counsel’s failure to

request an eyewitness-identification instruction or obtain an eyewitness expert, we

affirm. Also, the district court did not abuse its discretion in excluding witness

testimony presented after the State rested and no prejudice resulted from

counsel’s untimely disclosure of the witness because the testimony was

impeachment testimony.

       AFFIRMED.
