                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0772
                             Filed January 25, 2017


ROBERT KROGMANN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Delaware County, Thomas A.

Bitter, Judge.



       Robert Krogmann appeals the denial of his postconviction relief

application. AFFIRMED.




       Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee State.




       Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
                                            2


VAITHESWARAN, Judge.

       Robert Krogmann shot his girlfriend several times. A jury found him guilty

of attempted murder and willful injury, and the supreme court affirmed his

judgment and sentence. See State v. Krogmann, 804 N.W.2d 518 (Iowa 2011).1

       Krogmann filed a postconviction relief application raising several

ineffective-assistance-of-counsel claims. The district court denied the application

following an evidentiary hearing.

       On appeal, Krogmann asserts his trial attorney was ineffective in (A)

resisting an asset freeze and failing to object to the prosecutor’s handling of the

freeze, (B) failing to call stronger experts in support of his diminished

responsibility defense, (C) failing to file a mistrial motion, (D) failing to obtain the

phone records documenting his 911 calls, (E) failing to obtain his mental health

records, (F) failing to object to the prosecutor’s cross examination of him about a

911 call, and (G) failing to object to the prosecutor’s arguably inconsistent

positions   with   respect     to   his   diminished    responsibility    defense    and

conservatorship. Krogmann also contends his sentences should have merged.

I.     Ineffective Assistance

       To succeed on his ineffective-assistance-of-counsel claims, Krogmann

must show (1) deficient performance and (2) prejudice.               See Strickland v.

Washington, 466 U.S. 668, 687 (1984).              Deficient performance requires a

showing of “errors so serious that counsel was not functioning as the ‘counsel’


1
  The background facts are detailed in the prior opinion and will be repeated here only to
the extent they bear on the specific issues raised in Krogmann’s postconviction relief
application. See Krogmann, 804 N.W.2d at 520-22.
                                          3

guaranteed the defendant by the Sixth Amendment.” Id. Prejudice requires a

“showing that counsel’s errors were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable.”   Id.   There must be “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “If we conclude a claimant

has failed to establish either of these elements, we need not address the

remaining element.”     State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015).

Because ineffective assistance of counsel claims have their basis in the Sixth

Amendment to the United States Constitution, our review is de novo. State v.

Hoskins, 711 N.W.2d 720, 725 (Iowa 2006).

       A.       Asset Freeze

       Shortly after the State filed charges against Krogmann, the prosecutor

applied for an order “freezing all of [Krogmann’s] assets.”         The prosecutor

asserted Krogmann might attempt to sell or transfer his assets “to avoid his

financial obligations to the victim of his offenses” before “criminal and/or civil

restitution [could be] established.”

       The district court entered a freeze order but gave Krogmann permission to

“make application to the Court for the sale or transfer of an asset at which time [it

would] determine whether good cause ha[d] been shown to grant the

application.”

       Krogmann’s attorney did not receive a copy of the State’s application for a

freeze until after the district court ruled. He filed a post-ruling resistance, which

the district court did not address, and an application for interlocutory review,

which the Iowa Supreme Court denied.
                                          4


       Meanwhile, Krogmann sought and obtained a conservatorship of his

extensive assets. When he applied to have conservatorship funds dispersed to

him, the district court required him to serve the applications on the victim and

prosecutor. Both routinely weighed in on Krogmann’s requests for funds.

       Following trial, the district court required Krogmann to pay the victim

restitution of $53,789.68.    The total amount subject to the asset freeze was

approximately $3.3 million.

       On direct appeal, Krogmann argued the asset freeze “was contrary to

Iowa law and also violated his constitutional rights to due process, to be free from

unreasonable seizures, and to counsel.” Krogmann, 804 N.W.2d at 522. The

court concluded Krogmann failed to preserve error “on his objections to the

asset freeze” because he “did not make a timely or sufficient objection to th[e]

freeze.” Id. at 523-25. While the court could have stopped there, it went on to

express concern with the prosecutor’s exploitation of the asset freeze remedy:

       Our determination that Krogmann has failed to preserve error does
       not mean we approve of the asset freeze. We are troubled by the
       State’s effort to tie up a criminal defendant’s personal assets
       without citing any rule or statute, without making a verified finding,
       and without citing the district court to relevant authority . . . . We
       are also troubled by the State’s attempts to use the asset freeze,
       once it was in place, to object to defense expenditures not on the
       ground they would jeopardize restitution or other victim
       compensation (the alleged reasons for the asset freeze), but simply
       because the State deemed them unnecessary.

Id. at 525. The court did not foreclose an ineffective assistance claim challenging

counsel’s inaction with respect to the asset freeze. Id. at 525 n.8

       Krogmann pursued this claim. He alleged his trial attorney was ineffective

in failing to “properly preserve an objection to the court[’s] freez[e of] [his] assets
                                           5


before trial,” “file a motion to reconsider the freezing of [his] assets after the court

entered the order,” or “file an application to terminate the freeze order and . . .

cite clear and controlling authority revealing that the freeze order could not

properly be continued.”      He asserted he was “denied his right to counsel

pursuant to the Sixth and Fourteenth Amendments of the U.S. Constitution and

Article I, Section 10 of the Iowa Constitution, due to the State’s invasion of such

right and defense counsel[‘s] ineffective resistance to same.”

       In ruling on the claim, the postconviction court stated, “[I]t seems clear that

Krogmann’s counsel failed to properly raise his objection to the asset freeze. He

filed an objection, but he should have insisted on a ruling and/or requested a

hearing. He did neither. Such action fell below the standard demanded of a

reasonably competent attorney.” Nonetheless, the court concluded Krogmann

“failed to prove any reasonable probability of a different result.”

       On appeal, Krogmann asserts,

       [I]t was ineffective assistance of counsel to not properly object to
       the asset freeze, not sufficiently preserve the issue for interlocutory
       or direct appeal, to fail to file a motion to reconsider the freezing of
       the assets, to fail to object to the prosecutor and victim’s
       participation in the asset freeze and application for funds, to fail to
       file an application to terminate the freeze order, to fail to cite clear
       controlling authority, and to fail to raise the prejudice the asset
       freeze was causing [him] at the trial level.

These claims boil down to an assertion that counsel failed to properly challenge

the asset freeze. The State responds with an error preservation concern that we

find unpersuasive. Accordingly, we proceed to the merits.

       Krogmann begins by noting “[a]sset freezes are not allowed to be used the

way they were used in this particular case.” He is correct. In State ex rel. Pillers
                                         6

v. Maniccia, 343 N.W.2d 834, 835 (Iowa 1984), a county attorney filed a petition

“ask[ing] for an injunction to restrain the defendants from selling, disposing of, or

converting any of their personal or real property . . . without court approval.” The

court framed the issue as follows: “Can persons charged with crime be enjoined

from disposing of property which might otherwise be used to reimburse their

alleged victims or the county?” Maniccia, 343 N.W.2d at 836. In the court’s

view, “the cure sought by the county attorney [was] apt to be worse than the

disease” because “[m]ost or all of the assets which the State seeks to freeze

might lawfully belong to the defendants” and therefore “might be needed to

finance their defense.”    Id.   The court continued, “Under our criminal justice

system defendants are presumed innocent of the pending charges. They are

entitled to a trial.   The possible injustice to them is not outweighed by the

possible advantage to the county.” Id. The court disallowed the injunction. Id.

       We do not expect a defense attorney to be clairvoyant. See Millam v.

State, 745 N.W.2d 719, 722 (Iowa 2008). But we do expect the attorney to cite

long-standing precedent. Maniccia is such precedent and is controlling. As the

Iowa Supreme Court stated in Krogmann’s direct appeal, “The only difference

[between Maniccia and Krogmann’s case] is that the State sought the order

within the criminal case, instead of filing a separate civil action for injunctive

relief.” Krogmann, 804 N.W.2d at 523. The court essentially found this to be a

distinction without a difference, reasoning as follows:

       [T]he State has the statutory right to seek a criminal restitution lien
       to protect both its interests and those of the victim. See Iowa Code
       § 910.10. Indeed, it requested and received such a lien. Under
       these circumstances, one might well question the State’s ability to
                                         7


       obtain inherent injunctive relief beyond the statutory remedy
       already afforded by section 910.10.

Id. at 523-24. Because Mannicia was filed more than twenty-five years before

the prosecutor sought a freeze of Krogmann’s assets, we conclude Krogmann’s

attorney breached an essential duty in failing to bring the opinion to the district

court’s attention.

       We turn to the prejudice prong. Krogmann argues “he should not have to

show traditional prejudice.” In his view, the asset freeze prevented him from

“using his money in his criminal case as he saw fit,” in violation of his rights to

counsel under the Sixth Amendment to the United States Constitution and article

1, section 10 of the Iowa Constitution. He contends prejudice should be

presumed.

       Our courts have presumed error where the errors “affect[] the framework

within which the trial proceeds.” Lado v. State, 804 N.W.2d 248, 251-52 (Iowa

2011). These structural errors allow a defendant to bypass the showing of a

different outcome “because such an analysis ‘would be speculative inquiry into

what might have occurred in an alternate universe.’” Id. at 252 (citation omitted).

       We have recognized structural error occurs when: (1) counsel is
       completely denied, actually or constructively, at a crucial stage of
       the proceeding; (2) where counsel does not place the prosecution’s
       case against meaningful adversarial testing; or (3) where
       surrounding circumstances justify a presumption of ineffectiveness,
       such as where counsel has an actual conflict of interest in jointly
       representing multiple defendants.

Id.

       In Lado, the court determined the defendant was constructively denied

counsel where his attorney stood by as the court dismissed his postconviction
                                           8

relief application for failure to pursue it. See id.; see also Iowa R. Civ. P. 1.944.

The court stated, “This is the type of error that renders the entire postconviction

relief proceeding ‘presumptively unreliable.’” Lado, 804 N.W.2d at 253.

       The United States Supreme Court also addressed structural error in a

recent opinion with a strikingly similar issue as the issue raised by Krogmann. In

Luis v. United States, ___ U.S. ___, 136 S. Ct. 1083 (2016), the question

presented was “whether the pretrial restraint of a criminal defendant’s legitimate,

untainted assets (those not traceable to a criminal offense) needed to retain

counsel of choice violates the Fifth and Sixth Amendments.” Luis, 136 S. Ct. at

1088. The Court answered yes to this question. Id. The Court stated,

       [I]nsofar as innocent (i.e., untainted) funds are needed to obtain
       counsel of choice, we believe that the Sixth Amendment prohibits
       the court order that the Government seeks . . . .
              ....
              We have found no decision of this Court authorizing
       unfettered, pretrial forfeiture of the defendant’s own “innocent”
       property—property with no connection to the charged crime.

Id. at 1093-94. The Court vacated a district court freeze order and remanded the

case for further proceedings. Id. at 1096. In doing so, the Court reaffirmed prior

holdings concluding “the wrongful deprivation of the right to counsel” was “a

‘structural error’” and “courts may not even ask whether the error harmed the

defendant.” Id. at 1089; see also United States v. Gonzalez-Lopez, 548 U.S.

140, 148 (2006) (concluding “it is unnecessary to conduct an ineffectiveness or

prejudice   inquiry   to   establish   a   Sixth   Amendment    violation”   because

“[d]eprivation of the right is ‘complete’ when the defendant is erroneously

prevented from being represented by the lawyer he wants, regardless of the

quality of the representation he received”).
                                         9


       In deciding whether to find structural error, then, we must first ask whether

the asset freeze ordered by the district court deprived Krogmann of his counsel

of choice. The record reveals that Krogmann hired not one but three attorneys of

his own choosing—one in the pre-trial phase, a second in the pretrial and trial

phases, and a third for his direct appeal. The district court paid all three from

conservatorship funds.     As the postconviction court found, Krogmann “was

permitted to use around $67,000 of his own funds to pay [his attorney] for trial

preparation and for trial” and “significant funds (at least $20,000) for his appeal.”

Because Krogmann was allowed to obtain counsel of his choice despite the

freeze order, we will not find structural error based on a denial of counsel.

       This does not end our analysis because a finding of structural error may

be warranted if the freeze order impinged upon defense counsels’ ability to

perform their jobs. See Maine v. Moulton, 474 U.S. 159, 170-71 (1985) (“Once

the right to counsel has attached and been asserted, the State must of course

honor it.   This means more than simply that the State cannot prevent the

accused from obtaining the assistance of counsel. The Sixth Amendment also

imposes on the State an affirmative obligation to respect and preserve the

accused’s choice to seek this assistance. . . . [A]t the very least, the prosecutor

. . . ha[s] an affirmative obligation not to act in a manner that circumvents and

thereby dilutes the protection afforded by the right to counsel.”); United States v.

Stein, 541 F.3d 130, 156-57 (2d Cir. 2008) (stating “the Sixth Amendment

protects against unjustified governmental interference with the right to defend

oneself using whatever assets one has or might reasonably and lawfully obtain”
                                          10


and presuming prejudice where the State effectively impaired the defendants’

“ability to mount a defense” by restricting the activities of counsel).

       In Stein, the defendants claimed “that the government unjustifiably

interfered with their relationship with counsel and their ability to mount the best

defense they could muster.” Stein, 541 F.3d at 154. The court agreed, stating

the government caused the defendants’ employer, who “would have paid

defendants’ legal fees and expenses,” to “impose conditions on the advancement

of legal fees[,] . . . to cap the fees, and ultimately to end payment.” Id. at 135,

156.   The court cited the “novel theory of criminal liability,” the “substantial

penalties” the defendants faced, “the relevant facts . . . scattered throughout over

22 million documents,” the complexity of the subject matter, the complexity of the

litigation, the “technical expertise . . . needed to figure out and explain what

happened,” and the length of the expected trial.          Id.   The court found the

government “failed to establish a legitimate justification for interference with [the]

advancement of legal fees.” Id. at 156. The inconsistency of the government’s

position was highlighted as follows:

       The government conceded at oral argument that it is in the
       government’s interest that every defendant receive the best
       possible representation he or she can obtain. A company that
       advances legal fees to employees may stymie prosecutors by
       affording culpable employees with high-quality representation. But
       if it is in the government’s interest that every defendant receive the
       best possible representation, it cannot also be in the government’s
       interest to leave defendants naked to their enemies.

Id. at 157.     The district court’s dismissal of the indictments against the

defendants whose fee arrangements were restricted as well as the defendants

who were denied counsel of choice was affirmed. See id. at 157-58.
                                         11

       Like the Stein defendants who had access to their employer’s funds to

mount their defense, Krogmann was of sufficient means to muster the best

defense possible and could have expended funds on defense strategies that

might have been deemed unnecessary to someone of lesser means. But for the

asset freeze, he would have had to answer to no one. Because of the freeze,

Krogmann was forced to obtain the court’s prior approval to spend his own

money, subject to the objections of the prosecutor.

       And object he did.      The prosecutor objected to the retention of a

psychologist on the ground that the defense failed to name or disclose a

psychologist.    He also objected to defense counsel’s retention of a jury

consultant on the ground that the service was “a luxury rather than a necessity.”

These objections were successful. The district court ruled, “[N]o disbursements

shall be made nor monies expended for any psychologist not previously named

or otherwise disclosed to the State as a witness or expert or for the engagement

or employment of the jury/trial consultant.”

       The prosecution provided no justification for the objections other than the

initial claim that the freeze was necessary to preserve funds for restitution.

However, the restitution amount was a tiny fraction of Krogmann’s assets and, as

the Iowa Supreme Court noted on direct appeal, was preserved through a

restitution lien. Krogmann, 804 N.W.2d at 523-24.

       These actions might warrant a finding of structural error.     See United

States v. Stein, 435 F. Supp. 2d 330, 371-72 (S.D.N.Y. 2006) (noting “[p]roperly

defending this case, in all its complexity, has required, and will continue to

require, substantial financial resources,” and “[i]n these circumstances,
                                           12


demonstrating prejudice after the fact would be all but impossible” and

concluding “there is no need for a particularized showing of prejudice here”).2

But the facts do not fit neatly into the structural error scenarios set forth in Lado.

804 N.W.2d at 252. First, as discussed, counsel was not completely denied;

Krogmann retained attorneys of his choice. Second, Krogmann’s trial attorney

tested the prosecution’s case through cross-examination and by presenting

witnesses for the defense. Third, the surrounding circumstances did not evince

an obvious structural concern such as a conflict of interest. But see Stein, 435 F.

Supp. 2d at 371 (finding support for a structural error analysis in “cases involving

criminal defense counsel burdened by conflicts of interest”). The district court

took pains to emphasize that defense counsel’s fee requests—requests directly

implicating the right to counsel—would be granted. In approving trial counsel’s

request for $35,000, the court stated:

       [T]he Court will not refuse to pay the[] sums as [Krogmann] has a
       right to competent counsel under the Sixth Amendment to the
       Constitution of the United States. . . . [T]he conservator shall act on
       [Krogmann’s] best interest to ensure that [he] receives the defense
       he is entitled to in these proceedings and continues to require
       counsel to present itemized billing statements concerning fees
       incurred in these matters.

       That said, one surrounding circumstance bears further discussion: the

district court’s decision to require service of Krogmann’s expense applications on

2
   One court distinguished Stein’s structural error discussion on the ground that a
Strickland prejudice analysis was not possible at the pretrial phase of that case. See
United States v. Stodder, No. 2:05-CR-00027, 2006 WL 3066196, at *2 (C.D. Cal. Oct.
4, 2006). The court stated that defendant’s motion, in contrast, was “made post-trial and
the Court [was] in a position to determine that no constitutional violation, and therefore
no prejudice, ha[d] occurred.” Id. We question the propriety of focusing on the stage of
trial in deciding whether to apply a structural error analysis or an outcome-determinative
prejudice analysis. Even post trial, a structural error analysis may be appropriate where
the “ability to present the defense [of choice] has been compromised.” Stein, 435 F.
Supp. 2d at 369.
                                         13


the prosecutor, potentially affording the prosecutor access to trial strategy and

work product.     We must decide whether this potential access warrants a

structural error analysis.

       The Iowa Supreme Court broached the subject in State v. Dahl, 874

N.W.2d 348, 352 (Iowa 2016).        There, the court was faced with an indigent

defendant’s application for reasonably necessary defense services in the form of

a private investigator. Dahl, 874 N.W.2d at 351-52. The court held, “Disclosure

of the defense counsel’s trial strategy to the State impairs an indigent

defendant’s right to effective assistance of counsel.” Id. at 352. However, the

court did not endorse a wholesale prohibition of State access to defense expense

applications. Instead, the court approved a protocol that limited the State’s ability

to delve into defense strategy but afforded the State an opportunity to resist

applications believed to be prejudicial to the administration of justice. Id. at 353.

Under the protocol, the defendant was obligated to file a timely application stating

the name of the investigator, a cost estimate, and, “if possible, a general

description of what services the investigator will provide.” Id. The district court

was to “give the State an opportunity to resist the application” and “appear and

participate in a hearing regarding the application.” Id. If the trial court believed

an application might have merit but did not contain adequate information for the

court to determine whether the application should be granted, the court was to

“hold an ex parte hearing before ruling on the merits of the application” and “seal

any transcript or order that would disclose defense strategy or work product and

file a separate order announcing its decision to grant or deny the application.” Id.
                                        14


      An obvious difference between Dahl and Krogmann is wealth. Dahl was

an indigent defendant whose litigation expenses came from the State coffers,

whereas Krogmann was a wealthy farmer who could single-handedly fund his

defense.      See Griffin v. Illinois, 351 U.S. 12, 23 (1956) (Frankfurter, J.,

concurring) (“A man of means may be able to afford the retention of an

expensive, able counsel not within reach of a poor man’s purse.”); State v.

Touchet, 642 So. 2d 1213, 1215 (La. 1994) (stating the obligation to provide the

“‘basic tools of an adequate defense,’ at no cost to [an] indigent defendant”

stemmed from the belief that “[t]here can be no equal justice where the kind of

trial a man gets depends upon the amount of money he has” (citations omitted));

see also Luis, 136 S. Ct. at 1090 (noting the untainted funds of the defendant

“belong[ed] to” him); Maniccia, 343 N.W.2d at 836 (same). There is no reason to

believe this protocol would apply to defendants funding their own defense. But,

because Dahl speaks to the issue of prosecutorial interference with defense

strategy or work product, we will assume without deciding the protocol is

applicable.

      In Krogmann’s case, the protocol was not breached. Although Krogmann

was forced to notify the prosecutor of his fund requests, he was not forced to

divulge defense strategy or work product. For example, trial counsel sent a letter

to the court requesting $12,000, which he asked to be reviewed in camera. The

letter stated only that he would need the funds “to cover [his] trial time and trial

preparation.” Similarly, counsel’s application for the payment of litigation-related

expenses in the form of a psychologist and jury consultant did not divulge how

the defense intended to use the psychologist or what the jury consultant hoped to
                                          15


glean in analyzing the jury venire.3      Even after the prosecutor objected, no

disclosure of trial strategy or work product was required.            Acknowledging

Krogmann could have retained the services of the psychologist and jury

consultant had his personal funds been freely accessible to him, the procedure

the district court employed did not compromise Krogmann’s defense by coercing

the disclosure of trial strategy and work product. See United States v. Marshall,

No. 5:15-CR-36, 2016 WL 3937514, at *6 (N.D.W. Va. July 18, 2016) (finding

most of restrained funds were available for reasonable fees and expenses but

directing “the submission of a proposed budget from defense counsel, to be filed

ex parte, for review by the Court”). Because trial strategy and work product was

not disclosed, we decline to find structural error.4

       This brings us to the outcome-determinative prejudice standard set forth in

Strickland. No precedent that we can find directly addresses Strickland prejudice

in the context of defense counsel’s failure to properly challenge a freeze order.

But we have applied the standard in analyzing claims that counsel was

ineffective in failing to retain experts. See Hilson v. State, No. 15-0679, 2016 WL

6652329, at *2 (Iowa Ct. App. Nov. 9, 2016); Sirovy v. State, No. 13-0095, 2014

WL 955130, at *1 (Iowa Ct. App. Mar. 12, 2014). And other jurisdictions have

applied the same standard in denying claims based on defense counsel’s failure

to retain a jury consultant. See Robinson v. State, No. W2011-00967-CCA-R3-

PD, 2013 WL 1149761, at *68 (Tenn. Crim. App. Mar. 20, 2013) (rejecting claim

3
  The court also denied Krogmann’s request for a bond payment. The State did not
register an objection to this payment; only the victim did. Accordingly, we decline to
consider this denial of payment.
4
  Krogmann argues disclosure of trial strategy and work product also supports a finding
of Strickland prejudice. Our conclusion that none was disclosed resolves this argument.
                                       16


that counsel was ineffective in failing to retain a jury consultant on the ground

that postconviction relief applicant “failed to present evidence supporting his

claim that the jury was not fair and impartial”); Allen v. State, No. E2010-01971-

CCA-R3-PC, 2012 WL 826522, at *8 (Tenn. Crim. App. Mar. 13, 2012) (“[T]he

Petitioner has presented no evidence as to how [the failure to hire a jury

consultant] prejudiced his defense.”); United States v. Olis, No. H-03-217-01,

2008 WL 5046342, at *30 (S.D. Tex. Nov. 21, 2008) (reviewing ineffective

assistance claim based on failure to hire a jury consultant and retain expert

witnesses and concluding “[a] review of the record establishes that even if trial

counsel had taken the steps that Olis now argues should have been taken, the

result would have been the same”).          Because the freeze order affected

Krogmann’s retention of a psychologist and jury consultant, we find these

opinions persuasive. We will apply a Strickland prejudice analysis in deciding

whether counsel’s breach of duty in failing to properly challenge the freeze order

requires reversal.

      As discussed below, Krogmann retained a well-credentialed trial expert to

opine on his diminished responsibility defense. This expert met with Krogmann,

reviewed his medical records, and evaluated him. There is no indication that an

additional psychologist would have added a new or different perspective to the

mental health defense.

      In attempting to establish prejudice on his request for a jury consultant,

Krogmann called a jury consultant as a witness at the postconviction hearing.

She testified that, if she had been involved, she would have insisted defense

counsel object to seating fifteen rather than twelve jurors and three alternates.
                                         17


She also stated she would have posed follow-up questions to the jury panel

during voir dire. While she opined that the jury likely would have been composed

of different people had she been involved, there is scant if any evidence that a

different jury might have reached a different result.

       As noted, Krogmann shot his girlfriend several times. He admitted to the

shooting and relied on the diminished responsibility defense which, as discussed

below, found only weak support in the record. Without belaboring the facts, we

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

succeeded in obtaining a psychologist and jury consultant.

       Krogmann also raises his challenge to the handling of the freeze order as

a prosecutorial misconduct claim but essentially concedes this claim would have

to be analyzed under an ineffective assistance of counsel rubric. Accordingly, we

decline to engage in a separate analysis. In addition, recent precedent would

suggest the prosecutor’s action with respect to the freeze order was less

prosecutorial misconduct than prosecutorial error. See State v. Schlitter, 881

N.W.2d 380, 394 (Iowa 2016) (“Prosecutorial error occurs where the prosecutor

exercises poor judgment and where the attorney has made a mistake based on

excusable human error, despite the attorney’s use of reasonable care.” (citation

omitted)).

       We affirm the district court’s denial of Krogmann’s ineffective-assistance-

of-counsel claim premised on the freeze order.

       B.     Failure to Call Stronger Experts

       Krogmann contends his trial attorney “failed to hire sufficient experts to

maintain a viable mental health defense.” He concedes defense counsel called
                                         18


an expert to support his diminished responsibility defense but argues the expert

only provided a weak statement.

       The choice of an expert is the hallmark of a strategic decision.         See

Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984). At the postconviction relief

hearing, Krogmann’s attorney testified he consulted with “gifted lawyers in this

area” before retaining the expert who testified. He stated the expert “kind of

work[ed] both sides fair[ly] and, I think, equally, and I think that buil[t] his

credibility.” He opined that the expert was “very gifted,” “very qualified,” and “did

a very good job.”

       The attorney’s assessment finds support in the record.         As noted, the

expert met with Krogmann, reviewed his medical records dating back to 1995,

and independently diagnosed Krogmann with bipolar disorder punctuated with

“hypomania,” a diagnosis that corroborated Krogmann’s testimony of long-

standing depression.      We acknowledge his ultimate opinion on whether

Krogmann’s diagnosis could have influenced his intent on the day of the shooting

was framed in terms of a possibility rather than a probability. But the “stronger

expert” identified by Krogmann at the postconviction relief hearing also framed

his opinion as a possibility. He stated, “There is a possibility that at the time of

the crime [Krogmann] may have had a brief psychotic episode as well as being

severely depressed.”     If Krogmann was searching for an expert who would

provide a more forceful opinion, this expert did not advance his cause. We

conclude Krogmann’s trial attorney did not breach an essential duty in failing to

call “multiple, and stronger, experts for Krogmann.”

       C.     Mistrial Motion
                                           19


      Krogmann contends his trial attorney was ineffective in “failing to file a

mistrial [motion] after the prosecutor’s statement ‘have you shot anybody today.’”

The Iowa Supreme Court addressed the prosecutor’s statement on direct appeal.

Krogmann, 804 N.W.2d at 526-27.            The court preliminarily stated Krogmann

could not “obtain a new trial based on prosecutorial misconduct when he failed to

move for a mistrial at the time.” Id. However, the court went on to address the

merits of the misconduct claim and concluded the question was “inflammatory

and improper” but “isolated” and not “so severe or pervasive that it affected

Krogmann’s right to a fair trial.”   Id.     In light of the court’s rejection of this

prosecutorial misconduct claim, we conclude Krogmann’s trial attorney did not

breach an essential duty in failing to challenge the prosecutor’s question.

      D.       Phone Records

      Krogmann contends his trial attorney provided ineffective assistance in

“failing to obtain the phone records necessary to demonstrate [he] had called 911

so as to prevent the false assertion at trial by the prosecution that he had not

called 911.”      His attorney addressed this issue at the postconviction relief

hearing. He testified, “I have some real vague memory that maybe the call was

not that favorable to Robert, by his tone and demeanor and maybe what he said

or didn’t say.”     He continued, “I think the content of the call was not very

favorable, because, again, I think it was Robert that was deceptive about he

would not give his name or state some details, so to say.”            This testimony

establishes that the decision not to obtain the phone records was strategic. We

conclude Krogmann’s trial attorney did not breach an essential duty in failing to

obtain documentation of the 911 call.
                                           20


         E.     Mental Health Records

         Krogmann argues his trial attorney was ineffective in “failing to obtain [his]

mental health records in support of his mental health defense.” The records

would have added little to the defense because Krogmann’s expert testified to

the contents of those records, as did Krogmann. We conclude counsel did not

breach an essential duty in failing to obtain the mental health records.

         F.     Prosecutorial Misconduct – 911 Call

         Krogmann next contends, “[I]t was prosecutorial misconduct for the

prosecutor to improperly ask, and imply, and extensively cross examine at trial,

around the question of whether and when [he] had called for help, knowing, and

having in his possession, the 911 tapes showing that [he] had, in fact, called for

help.”

         The Iowa Supreme Court recently refined the concept of prosecutorial

misconduct, making a distinction between misconduct and error. See Schlitter,

881 N.W.2d at 393-94. The court included within the definition of prosecutorial

misconduct “those statements ‘where a prosecutor intentionally violates a clear

and unambiguous obligation or standard imposed by law, applicable rule or

professional conduct,’ as well as ‘those situations where a prosecutor recklessly

disregards a duty to comply with an obligation or standard.’” Id. at 394 (citation

omitted). The court stated:

         The range of trial conduct by prosecutors falling into the category of
         claims referred to as “prosecutorial misconduct” includes
         questioning witnesses about others’ deceit, distorting testimony,
         making unsupported statements during closing argument, stating
         the defendant lied during testimony, diverting the jury from deciding
         the case based on the evidence, making other inflammatory or
         prejudicial statements about the defendant, and more.
                                         21



Id. at 393. The court distinguished this type of conduct from “prosecutorial error,”

which the court defined as “exercise[] [of] poor judgment” and “a mistake” based

on “excusable human error, despite the attorney’s use of reasonable care.” Id.

at 394 (citation omitted).

       We view Krogmann’s claim as a claim that the prosecutor distorted the

record, which the court cited as an example of prosecutorial misconduct. This

prosecutorial misconduct claim fails because the prosecutor did not distort the

record.

       There is no dispute Krogmann made 911 calls following the shooting. On

direct examination, he testified that, while he did not recall making the calls,

dispatcher records documented them.           On cross-examination, the prosecutor

questioned Krogmann about the timing of the calls. He attempted to portray

Krogmann as hard-hearted by eliciting an admission that Krogmann called his

son before making a 911 call.        The prosecutor’s questioning fell within the

parameters of direct examination and, while pointed, was a fair inquiry in light of

the testimony elicited on direct examination. Accordingly, we find no breach of

an essential duty in defense counsel’s failure to object to this questioning.

       G.     Prosecutorial Misconduct – Inconsistent Positions

       Krogmann contends his trial attorney was ineffective in “contesting [his]

diminished capacity defense at trial while simultaneously setting forth to the court

that [he] needed the conservatorship to control his assets.” As the State points

out, the prosecutor did not insist on a conservatorship; the application came from

Krogmann. Because Krogmann cannot establish that the State took inconsistent
                                         22


positions or engaged in hypocrisy in its advocacy, this prosecutorial misconduct

claim also fails. Accordingly, we find no breach of an essential duty in defense

counsel’s failure to bring this claimed inconsistency to the court’s attention.

II.    Merger

       Krogmann was sentenced to consecutive sentences of twenty-five years

for attempted murder and ten years for willful injury.       He contends “the two

offenses should have merged, and the [D]ouble [J]eopardy [C]lause of the

federal [C]onstitution should prevent the consecutive sentences that he received

for the two counts.” Krogmann concedes his argument “is in direct contravention

of State v. Clarke, 475 N.W.2d 193 (Iowa 1991)” but argues “Clarke . . . is

distinguishable, erroneous, and should be overruled, if it has not already been.”

       In Clarke, the Iowa Supreme Court held “[a]pplication of the legal

elements test plainly demonstrates that willful injury is not a lesser-included

offense of attempted murder.” 475 N.W.2d at 196. This court reaffirmed the

holding of Clarke in multiple opinions. See Rausch v. State, No. 14-0509, 2015

WL 576064, at *3 (Iowa Ct. App. Feb. 11, 2015); Bell v. State, No. 13-1128, 2014

WL 5243351, at *4 (Iowa Ct. App. Oct. 15, 2014); State v. Zmuda, No. 11-0563,

2012 WL 470201, at *2 (Iowa Ct. App. Feb. 15, 2012); Shimko v. State, No. 09-

1815, 2011 WL 3115935, at *3 (Iowa Ct. App. July 27, 2011); Cole v. State, No.

07-0723, 2008 WL 782759, at *3 (Iowa Ct. App. Mar. 26, 2008); State v. Ronni,

No. 02-0590, 2003 WL 1524571, at *1 (Iowa Ct. App. Mar. 26, 2003); State v.

Haskins, 573 N.W.2d 39, 44 n.1 (Iowa Ct. App. 1997). We see no basis for

distinguishing these opinions.       Additionally, recent Iowa Supreme Court

precedent cited by Krogmann as potentially requiring a different outcome is
                                       23


inapposite. Finding no merger of the offenses, we conclude the district court did

not err in sentencing Krogmann to consecutive sentences.

      We affirm Krogmann’s judgment and sentences.

      AFFIRMED.
