                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0542
                               Filed June 19, 2019


JOSHUA ANDREW POWELL,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, William C. Ostlund,

Judge.




      Joshua Andrew Powell appeals the denial of his application for

postconviction relief. AFFIRMED.




      Nathan A. Mundy of Mundy Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
                                           2


VAITHESWARAN, Presiding Judge.

       A jury found Joshua Andrew Powell guilty of first-degree murder in

connection with the strangulation of his wife. This court affirmed his conviction.

State v. Powell, No. 13-1147, 2014 WL 4930480, at *1 (Iowa Ct. App. Oct. 1, 2014).

       Powell filed a postconviction-relief application, raising several ineffective-

assistance-of-counsel claims and two additional arguments that the court treated

as ineffective-assistance claims.1         Following an evidentiary hearing, the

postconviction court denied the application in its entirety. Powell appealed.

       Like the postconvicton court, we believe all the issues Powell raises must

be reviewed under an ineffective-assistance-of-counsel rubric. The claims require

proof that (1) counsel’s performance was deficient and (2) prejudice resulted.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Our review of the record is

de novo. Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018).

I.     Failure to Seek a Change of Venue

       Powell contends his trial attorneys should have requested a change of

venue and his attorney on direct appeal was ineffective in failing to raise the issue.

In his view, the postconviction court rejected the claim based on counsels’

“investigation and conversations with potential jurors in the community” but failed

to consider the biases of the “actual jurors in the pool that was impaneled.”

       Iowa Rule of Criminal Procedure 2.11(10)(b) provides a mechanism for a

venue change upon motion when “the evidence introduced in support of the motion

[shows] that such degree of prejudice exists in the county in which the trial is to be


1
  Multiple applications were filed by Powell and his attorney. We will refer to them as a
single application.
                                         3


held that there is a substantial likelihood a fair and impartial trial cannot be

preserved with a jury selected from that county.” “The question of when to seek a

change of venue is, however, a matter of professional judgment about which

experienced trial lawyers frequently disagree.” Fryer v. State, 325 N.W.2d 400,

413 (Iowa 1982). “[D]efense counsel’s failure to seek a change of venue does not

reflect on competency, nor is it indicative of ineffectiveness.” Id. (quoting Karasek

v. State, 310 N.W.2d 190, 191 (Iowa 1981)). The defense attorneys’ decision not

to seek a change of venue was a calculated strategic choice made after

consideration of Powell’s standing in the community, the level of publicity, and

knowledge of local jury outcomes. See id.

       Powell’s primary trial attorney testified she “couldn’t find anybody to say

anything bad about [Powell].” She said, “Everybody liked him.” Her co-counsel

seconded the opinion. She stated, “[J]ust with how positive his reputation was in

the community, we actually had a leg up on that.”

       With respect to publicity, one of the attorneys stated, “There wasn’t a lot of

publicity” outside one town in the county. Counsel said that, although four or five

jurors were stricken for cause based on their familiarity with the case, they did not

have a chance to speak to the other potential jurors about the case and she did

not see the number of strikes as overly significant.

       As for outcomes, counsel testified, “[H]istorically we had more confidence

in Boone County juries than we would have” had in juries from other counties.

When asked whether in hindsight she would have reconsidered her decision not

to seek a change of venue, she said, “Not really.”
                                           4


       We conclude Powell’s trial attorneys did not breach an essential duty in

failing to move for a change of venue. It follows that Powell’s appellate attorney

was not ineffective in failing to raise the issue. We affirm the district court’s denial

of the ineffective-assistance-of-counsel claim.

II.    Failure to Investigate and Present Evidence of Diminished Capacity

and Intoxication

       Powell next contends his trial attorneys were ineffective in failing to present

evidence in support of a diminished capacity or intoxication defense. “[I]neffective

assistance is more likely to be established when the alleged actions or inactions

of counsel are attributed to a lack of diligence as opposed to the exercise of

judgment.”    Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012) (citation

omitted).

       We begin with the claimed failure to raise a diminished-capacity defense.

“The common law defense of diminished responsibility ‘permits proof of

defendant’s mental condition on the issue of defendant’s capacity to form a specific

intent in those instances in which the State must prove defendant’s specific intent

as an element of the crime charged.’” Id. at 869 (citation omitted). Powell’s trial

attorneys thoroughly analyzed the costs and benefits of raising this defense. They

required Powell to undergo a psychiatric evaluation, and they considered the

evaluator’s diagnosis of intermittent-explosive disorder and its potential effect on

the jury. They elected not to present the evaluation and diagnosis because the

evaluation contained certain negative information about Powell, presentation of the

defense would have allowed the State to obtain its own psychiatric evaluation of

Powell, and the diminished-capacity defense may have steered the jury to second-
                                         5


degree murder rather than the lesser offense of voluntary manslaughter. Powell’s

primary attorney summarized the key weakness of presenting the evaluation as

follows:

       I think the state would have really used that against us quite a bit,
       and the picture that I wanted to paint of [Powell] at trial was that he
       was this calm, mild mannered person, which he always appeared to
       me to be. None of the witnesses ever saw him angry, throwing
       punches, anything like that. So that’s who he was, and I wanted to
       have the jury understand that that was his—that what happened with
       his wife was just a complete lost it kind of manslaughter situation. If
       they had known about previous anger problems, I think it would have
       been made it even harder for us to get there.

Because Powell’s attorneys thoughtfully considered the issue, we conclude they

did not breach an essential duty in declining to present a diminished responsibility

defense. See Heard v. State, No. 16-0723, 2018 WL 1631378, at *2 (Iowa Ct.

App. Apr. 4, 2018) (finding no ineffective assistance in failing to present a

diminished-responsibility defense where counsel “testified he reviewed a

psychological evaluation of [the defendant] in preparation for a diminished-

capacity defense”).

       We turn to the claimed failure to present an intoxication defense. Iowa Code

section 701.5 (2015) states:

       The fact that a person is under the influence of intoxicants or drugs
       neither excuses the person’s act nor aggravates the person’s guilt,
       but may be shown where it is relevant in proving the person’s specific
       intent or recklessness at the time of the person’s alleged criminal act
       or in proving any element of the public offense with which the person
       is charged.

       Powell’s strangulation of his wife was essentially undisputed. As noted, the

defense strategy was to gain a voluntary-manslaughter conviction rather than a

first or second-degree murder conviction. As defense counsel stated, they wished
                                         6


to “acced[e] to the cause of death” and “shift the focus away.” According to

defense counsel, an intoxication defense would not have advanced that strategy.

In her view, intoxication would simply “take [the offense] down to [] second-degree

murder, which carried a thirty-five year mandatory-minimum sentence.”              In

addition, counsel lacked evidence to support an intoxication defense because

they did not have “anybody who was going to testify that [Powell] was blacked out,

stumbling drunk.” See State v. Guerrero Cordero, 861 N.W.2d 253, 259–60 (Iowa

2015) (“Partial drunkenness does not make impossible the formation of said

criminal object. Therefore, the intoxication or drunkenness must be to the extent

that the designing or framing of such purpose is impossible.”), overruled on other

grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). Under these

circumstances, we conclude counsel did not breach an essential duty in declining

to present an intoxication defense. See Troupe v. State, No. 15-0678, 2016 WL

1661728, at *1–2 (Iowa Ct. App. Apr. 27, 2016) (finding no ineffective assistance

where “trial counsel consulted with a psychiatrist in advance of trial in order to

discern whether an intoxication defense was viable”).

       We affirm the postconviction court’s denial of this ineffective-assistance-of-

counsel claim.

III.   Failure to Investigate and Cross-Examine the Medical Examiner

       Powell argues his trial attorneys were ineffective in failing to challenge and

effectively cross-examine the medical examiner.         In particular, he contends

counsel should have attempted to impugn the medical examiner’s testimony that

it could take two to five minutes to strangle a person to death. He also argues the

attorneys should have questioned the medical examiner about a skin condition his
                                           7


wife had that may have provided another explanation for some of her injuries and

they should have asked the examiner about an injury to his forearm.

       The medical examiner’s testimony on the length of time for death by

strangulation was as follows:

       [I]f those carotids are compressed and occluded, it only takes about
       five to ten seconds to pass out. However, the brain usually can
       survive for about six minutes without oxygen. That varies. It’s
       thought that most people can die with strangulation or have injury . . .
       from which they cannot recover after some period of about two to five
       minutes. So we say that with strangulation it takes seconds to lose
       consciousness but minutes to die.

       Powell’s primary attorney anticipated the medical examiner’s testimony.

Prior to trial, she deposed the examiner and “did other research on strangulation

and asphyxiation.” She acknowledged “anything that’s not just sudden—I mean,

if its 30 seconds or a minute or 20 seconds . . . gives the person time to premeditate

and stop doing what they’re doing.” But she said “that was always going to be a

problem in the case for any charge, whether it be second degree, voluntary or

anything else.”

       Powell’s second attorney testified she did “quite a bit of research on journals

and treatises and the medical/legal forensic and criminological fields trying to find

anything on a study of what the length of time was for strangulation.” She “didn’t

find any good studies.”

       Despite the absence of definitive studies on the time it would take to

strangle someone to death, Powell’s attorney cross-examined the medical

examiner and effectively narrowed the scope of her testimony. Specifically, she

asked the medical examiner, “[I]f there’s less of a struggle, it’s shorter to the period

of time that you gave of that two to five minutes; it would be closer to the two than
                                          8


the five?” The medical examiner responded, “If there’s lesser of a struggle and the

pressure is applied consistently, then that would be true.”

       On our de novo review, we are persuaded the medical examiner’s testimony

on the strangulation-by-death window was more equivocal than Powell suggests

and left room for a finding of guilt on a lesser-included offense of first-degree

murder. We also are persuaded Powell’s attorneys prepared for her testimony and

confronted the issue on cross-examination. We conclude counsel did not breach

an essential duty.

       We turn to Powell’s argument that the medical examiner “incorrectly

identified areas of psoriasis” on Powell’s wife “as bruises or contusions” and his

attorneys should have corrected the inaccurate testimony. Neither defense

attorney recalled the skin condition of Powell’s wife. The postconviction court

concluded counsel’s failure to address this medical condition was “reasonable trial

strategy.” The court reasoned:

               Even if some of the bruising or contusions found on [Powell’s
       wife’s] body were actually areas of psoriatic skin, that condition would
       not change the conclusions of the medical examiner regarding the
       cause of death, asphyxiation caused by strangulation, and the
       injuries [she] suffered to her upper eyelid, lower face, chin, inner lip,
       gums, lower lip, petechial hemorrhages, and brain swelling.

We agree with the court’s conclusion and reasoning.

       Finally, Powell argues his trial attorneys failed to question the medical

examiner about contusions on his forearm that would have supported his

statements of being hit by his wife. But, as will be discussed, the fact he was hit

by his wife emerged in an officer’s recounting of Powell’s statements.
                                            9


       We conclude Powell’s attorneys were not ineffective in their handling of

these matters. We affirm the postconviction court’s denial of the claim.

IV.    Failure to Raise Claimed Fifth Amendment Violation

       Powell contends his trial and appellate attorneys were ineffective in failing

to argue he invoked his Fifth Amendment right to counsel at the beginning of an

interview with a police investigator. We included Powell’s exchange with the

investigator in our prior opinion:

               POWELL: It is . . . I guess before we get started, my biggest
       question, I don’t . . . is it my interest to have an attorney . . . .
               [INVESTIGATOR]: That’s . . . .
               POWELL: . . . or do I need one, I . . . .
               [INVESTIGATOR]: . . . definitely up to you.
               POWELL: I don’t . . . .
               [INVESTIGATOR]: And I can go over those with you. So I
       mean you always have the right to an attorney, I mean you can . . .
       uh . . . ask for an attorney any time . . . uh . . . you can have that
       attorney now if you want it while we’re doing the questioning or you
       can get one later, you know, they’re free of cost if you can’t afford
       one. Uh . . . it’s totally up to you. Uh . . . like I said, my goal today is
       just to get your side of the story. Uh . . . I mean, we know what
       happened, you called 911 . . . uh . . . now I’m just trying to get the
       details ‘cause I think that’s important. But, you know, we can sit
       down for awhile if you wanna . . . uh . . . if you like how things are
       going, continue, if you don’t we can stop at any time. I mean that’s
       your rights, so.
               POWELL: Okay.
               [INVESTIGATOR]: However you wanna go.
               POWELL: I got nothing to hide. I just don’t know it’s, you
       know, in my best interest.
               [INVESTIGATOR]: Right. That’s something you gotta think
       about. I mean, like I said, I . . . I’ve done this a lot . . . uh . . . and I
       know that, you know, we got our crime scene people down there
       doing their thing now and, you know, and the goal is to put the pieces
       together . . . .
               ....
               [Y]ou wanna explain what’s going on to me, kinda talk . . . talk
       me through it, talk me through your relationship?
               POWELL: Yeah. That’s fine.

Powell, 2014 WL 4930490, at *5.
                                             10


       Absent an unequivocal assertion of a right to counsel, an officer does not

have a Fifth Amendment obligation to stop interrogating a suspect. See Davis v.

United States, 512 U.S. 452, 459 (1994). In Davis, the Court concluded the

statement, “Maybe I should talk to a lawyer” was insufficient to require cessation

of questioning. Id. at 454, 462. The Court declined to extend precedent “to require

law enforcement officers to cease questioning immediately upon the making of an

ambiguous or equivocal reference to an attorney.” Id. at 459. Similarly, in State

v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997), the Iowa Supreme Court concluded

the statement “I think I need an attorney” was not a successful invocation of the

defendant’s right to counsel.

       Powell’s reference to counsel was equivocal.          Applying precedent, we

conclude his trial attorneys breached no essential duty in failing to argue his Fifth

Amendment right to counsel was violated. It follows appellate counsel was not

ineffective in failing to raise the issue.

V.     Failure to Challenge Sufficiency of Evidence on Malice Aforethought

       Powell next contends his trial attorneys were ineffective in failing to

challenge the sufficiency of the State’s evidence on malice aforethought. Malice

aforethought was defined for the jury as follows:

                “Malice aforethought” is a fixed purpose or design to do some
       physical harm to another which exists before the act is committed. It
       does not have to exist for any particular length of time. It is sufficient
       if it exists any time before the killing.


As noted, Powell does not dispute that he strangled his wife to death. The use of

fists and strangulation supports a finding of malice aforethought. See State v.

Boeding, 2016 WL 1130285, at *3 (Iowa Ct. App. Mar. 23, 2016) (finding sufficient
                                         11


evidence to support malice aforethought based in part on testimony of forensic

pathologist that the decedent died of strangulation); Martin v. State, No. 12-2240,

2014 WL 69542, at *9–10 (Iowa Ct. App. Jan. 9, 2014) (“[W]e conclude the use of

fists and strangulation of a child is likewise action tending to show malice.”); cf.

State v. Heinz, 275 N.W. 10, 21 (Iowa 1937) (“The hands and fists of the defendant

violently used to strangle and beat to death this six year old child constituted an

instrument likely to produce death and were dangerous weapons.”). But even if

the act of strangulation does not alone establish malice aforethought, the jury could

have considered Powell’s statements to a police officer who arrived on the scene.

Powell began by saying he thought he “killed her.” Powell then told the officer he

suspected his wife was cheating on him and planned to leave him. When he and

his wife returned to the house following a wedding reception, she in fact attempted

to leave and Powell “tried to stop her by putting his hand on the slider door.” Powell

said his wife hit him and he “tried to stop her from leaving again.” Powell told the

officer he was hit again and “all he remembers was drawing his hand back . . . with

a fist closed.” According to the officer, Powell remembered “washing his hands

and blood off his hands in a sink.” The officer found Powell’s wife lying on the floor

behind some chairs. “There was pooling of the blood in the face” and “bruising

around the nose and the mouth area.”

       The officer’s recounting of Powell’s statements would have allowed a

reasonable juror to find malice aforethought.       Because substantial evidence

supports a finding of malice aforethought, the failure of Powell’s attorneys to

challenge this element could not have been prejudicial. See State v. Truesdell,

679 N.W.2d 611, 616 (Iowa 2004).
                                         12


VI.    Failure to Challenge Trial Information

       Powell notes “[t]he trial information submitted in [his] case lacked the

specific intent element required by case law to support an indictment for first-

degree murder.”     In his view, his trial and appellate attorneys should have

challenged the trial information on this ground.

       Iowa Rules of Criminal Procedure 2.4 and 2.5 specify what should be

included in an indictment and trial information. See Iowa Rs. Crim. P. 2.4(7)

(identifying required contents of indictment), 2.5(5) (stating an information “shall

be drawn and construed, in matters of substance, as indictments are required to

be drawn and construed”).

       The trial information comported with these requirements. See Sillick v.

State, No. 01-0284, 2002 WL 31015257, at *6 (Iowa Ct. App. Sept. 11, 2002). It

named Powell (rule 2.4(7)(a)), identified the offense, the degree of the offense,

and the statutory provision alleged to have been violated (rule 2.4(7)(b)), specified

the date and county of the offense (rule 2.4(7)(c)), and provided a brief statement

of the acts by which the offense was alleged to have been committed (rule

2.4(7)(d)).

       One of Powell’s attorneys conceded the trial information was adequate.

She testified, “I think as long as the state cites the correct code section that’s

sufficient.” She said that was the case even if the state omitted listing every

element of the crime.

       We conclude Powell’s attorneys did not breach an essential duty in failing

to challenge the sufficiency of the trial information. It follows appellate counsel
                                           13


was not ineffective in failing to raise the issue. We affirm the postconviction court’s

denial of the claim.

VII.   Failure to Strike Alternate Juror

       Powell argues his trial attorneys were ineffective in “failing to challenge the

district court’s abuse of discretion in denying their strike [of an alternate juror] for

cause.” He asserts the “issue needs to be remanded to the district court for further

development of the record.” On our de novo review, we disagree.

       We begin with the relevant jury-selection proceedings. During voir dire, the

State and defense questioned three individuals in the jury pool about possible

service as alternate jurors. One of the three stated he knew of Powell and

recognized “[m]ost of” the witnesses on the witness list. He said he heard or read

about the case and remembered details. He also said he knew the brother of

Powell’s wife “most of” his life and the brother was a “good friend.” He said he

would “hang out just like regular friends once, twice a week on and off through high

school and college.” The potential juror agreed that, as the brother’s confidante,

he probably knew a lot of details about the case from the perspective of the brother.

He stated he did not think he “could proceed unbiasedly.” While acknowledging

he could still see Powell as “an innocent person,” he said he did not “want it to

come to light that” he “knew something beforehand and jeopardize the case in any

way.” He simply did not “want to chance it.” He also stated he was a law

enforcement officer in another county.

       Powell’s attorney moved to strike the potential juror for cause. The State

resisted. At that juncture, the district court asked the potential juror if he could “set

everything” he knew “about the case aside and judge the case just on the facts
                                         14


presented in the courtroom and the instructions” given.         The potential juror

responded, “Yes, Your Honor.” The court denied the request to have him stricken

for cause.

       After the court ruled, Powell’s attorney obtained permission to ask the

potential juror additional questions. In response to one, the juror recounted that

the brother of Powell’s wife was “just angry with the outcome because he thought

of [Powell] as a brother. And this is something that really hurt [the brother] and he

never thought . . . in a million years that it would happen.” He reiterated that the

wife’s brother was a pretty close friend. He also said he knew Powell’s wife for

“probably ten years” and she was “a very sweet girl.” He said he last spoke to the

wife’s brother about the case a month before trial. He characterized a relative of

Powell’s wife as a second mom.

       In light of these additional statements, Powell’s attorney renewed her

request to have the potential juror stricken for cause. The district court again

denied the request. Powell’s attorney exercised one of her ten peremptory strikes

to remove the potential juror. The State exercised one of its peremptory strikes to

remove another potential alternate jurors. The third person was selected as an

alternate juror, without objection.

       At the postconviction hearing, Powell’s primary trial attorney testified she

was “dumbfounded” that the trial court did not strike the potential juror for cause.

At the same time, she said she “was okay with” the jury she ended up with. The

postconviction court concluded, “Even if the trial court erred in not granting the

strike for cause,” Powell did not establish prejudice. We agree.
                                         15


       Iowa Rule of Criminal Procedure 2.18(5)(k) authorizes a challenge to a

potential juror “for cause” where the juror has “formed or expressed such an

opinion as to the guilt or innocence of the defendant as would prevent the juror

from rendering a true verdict upon the evidence submitted on the trial.” Counsel

did her best to have the potential alternate juror stricken for cause on this ground,

to no avail. She was forced to use a peremptory strike to remove the person.

       But she had a strike to use, a key fact the Iowa Supreme Court considered

in assessing non-Strickland prejudice. See State v. Neuendorf, 509 N.W.2d 743,

746 (Iowa 1993).      There, as here, the district court denied the defendant’s

challenge for cause, forcing the defendant to use a peremptory challenge. The

court stated:

       The search for legal prejudice must therefore focus on the potential
       for prejudice that flowed from forcing defendant to use a peremptory
       challenge on [the juror] that might have been used to remove another
       juror. In the absence of some factual showing that this circumstance
       resulted in a juror being seated who was not impartial, the existence
       of prejudice is entirely speculative.

Id. The court held:

       [P]artiality of a juror may not be made the basis for reversal in
       instances in which that juror has been removed through exercise of
       a peremptory challenge. Any claim that the jury that did serve in the
       case was not impartial must be based on matters that appear of
       record. Prejudice will no longer be presumed from the fact that the
       defendant has been forced to waste a peremptory challenge.

Id. at 747.

       As noted, Powell did not argue that the alternate juror who was seated or

any other seated juror was biased. In the absence of a challenge to the jurors,

Neuendorf dictates affirmance under a non-constitutional standard.
                                          16

       It follows that Powell could not establish constitutional or Strickland

prejudice. Cf. Dixon v. State, No. 16-2195, 2018 WL 3471833, at *6 (Iowa Ct. App.

July 18, 2018) (finding constitutional prejudice on an ineffective-assistance-of-

counsel claim where an actually biased juror was seated). Because the biased

juror was removed, Powell received a fair trial.

       The supreme court’s recent opinion in State v. Jonas, 904 N.W.2d 566, 568

(Iowa 2017), does not alter our opinion.       There, the defendant asserted that

“because he was forced to use a peremptory strike to disqualify a potential juror

who should have been disqualified for cause, reversal [was] required even though

the challenged potential juror was not seated and there [was] no specific showing

of prejudice in the case.” Jonas, 904 N.W.2d at 568. The defendant acknowledged

“Neuendorf . . . [was] contrary to his position” but invited the court to “reconsider

that precedent.” Id. The court declined to overrule Neuendorf. Id. at 583. Instead,

the court articulated a presumed-prejudice standard under the following limited

circumstance:

       [I]in order to show prejudice when the district court improperly
       refuses to disqualify a potential juror under Iowa Rule of Criminal
       Procedure 2.18(5)(k) and thereby causes a defendant to expend a
       peremptory challenge under rule 2.18(9), the defendant must
       specifically ask the court for an additional strike of a particular juror
       after his peremptory challenges have been exhausted. Where the
       defendant makes such a showing, prejudice will then be presumed.

Id. (footnote omitted). The court concluded the defendant “did not identify an

additional juror who the defense sought to remove from the jury through the

exercise of an additional peremptory challenge” and, accordingly, could not take

advantage of the presumed prejudice standard, but had to show actual prejudice.

Id. at 584. Because the defendant failed to show actual prejudice, the court
                                              17

concluded he could not succeed on appeal. Id. The same is true here. Cf. State

v. Mootz, 808 N.W.2d 207, 226 (Iowa 2012) (“We therefore require automatic

reversal whenever a defendant is denied the use of a peremptory challenge based

on an erroneous interpretation of Batson and its progeny and the objectionable

juror is improperly seated.”).2

        We affirm the postconviction court’s denial of this ineffective-assistance-of-

counsel claim.

VIII.   Stun Belt

        Powell contends the trial court abused its discretion in requiring him to wear

a stun belt during trial.      He specifically argues, “[T]he State can provide no

evidence . . . to show the necessity of forcing [him] to wear this device during the

trial.” In his view, counsel should have requested a hearing on the necessity of the

belt.

        “Courts are entitled to take reasonably necessary precautions for the

maintenance of order during the progress of the trial and for the detention and

custody of the accused.” State v. Shipley, 429 N.W.2d 567, 568 (Iowa Ct. App.



2
  That said, there is little doubt the potential juror should have been stricken for cause. In
Jonas, the court cited “authority for the proposition that when a potential juror at the outset
of voir dire expresses bias or prejudice unequivocally, the potential juror should be
disqualified for cause notwithstanding later, generalized statements the potential juror
could be fair.” Jonas, 904 N.W.2d at 571. The potential juror in this case arguably made
an unequivocal assertion of bias before he was rehabilitated. Although his bias stemmed
from a friendship rather than one of the impermissible factors identified in Jonas, the
postconviction court aptly pointed out that Jonas “calls into question the practice of judges
rehabilitating jurors who express bias.” See id. at 575 (“Where a potential juror initially
repeatedly expresses actual bias against the defendant based on race, ethnicity, sex, or
sexual orientation, both in a pretrial questionnaire and in voir dire, we do not believe the
district court can rehabilitate the potential juror through persistent questioning regarding
whether the juror would follow instructions from the court.”).
                                              18

1988) (citing State v. Williams, 217 N.W.2d 573, 574 (Iowa 1974)). A security

practice such as shackling of a defendant which is “inherently prejudicial” may

warrant “close judicial scrutiny.” Id. at 569; see also State v. Wilson, 406 N.W.2d

442, 449 (Iowa 1987) (“It is clear that requiring a defendant to appear in shackles

before a jury is inherently prejudicial.”).

       Under the circumstances of this case, the precaution of fitting Powell with a

stun belt underneath his clothing was not an “inherently prejudicial” practice

requiring “close judicial scrutiny.”    Powell’s primary attorney testified the belt

worked to Powell’s advantage because he “did not have the deputy hovering over

him,” she and Powell “were able to discuss things privately,” and Powell was free

to move about without having a deputy following him. She confirmed that Powell

did not express any distress or indicate he was unable to speak to her at trial

because of the belt. Cf. State v. Wilmer, No. 06-1339, 2007 WL 4322212, at *5

(Iowa Ct. App. Dec. 12, 2007) (noting district court “did not cite reasons for

requiring” the defendant to wear a “brace during trial except that it was the sheriff’s

standard operating procedure and the court would not interfere with that policy”).

       Powell’s second attorney agreed Powell “didn’t seem to be out of sorts

about” the belt. She said she did not hear “any complaints that the stun belt was

worrying him.” See Houk v. State, No. 15-1976, 2017 WL 514402, at *2 (Iowa Ct.

App. Feb. 8, 2017) (noting defendant “did not express any concerns about the belt

during trial”). On our de novo review of the record, we conclude counsel did not

breach an essential duty in failing to request a hearing on the issue.
                                        19


       We affirm the postconviction court’s denial of Powell’s postconviction-relief

application.

       AFFIRMED.
