Lynn G. Lamasters Vs. State of Iowa

IN THE SUPREME COURT OF IOWA

No. 11–0016

Filed October 19, 2012

LYNN G. LAMASTERS,

Appellant,

vs.

STATE OF IOWA,

Appellee.

On further review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Buchanan County,

George L. Stigler, Judge.

Petitioner, who had previously been convicted of first-degree

murder, appeals the denial of his application for postconviction relief.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT

COURT AFFIRMED.

Stephanie C. Rattenborg of Rattenborg Law Office, Manchester, for

appellant.

Thomas J. Miller, Attorney General, Bruce L. Kempkes and

Andrew B. Prosser, Assistant Attorneys General, and Allan W.

Vander Hart, County Attorney, for appellee.

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MANSFIELD, Justice.

Lynn Lamasters was convicted of first-degree murder in 2005. In

2009, he filed an application for postconviction relief alleging his trial

counsel was ineffective for (1) failing to raise the defense of temporary

insanity or diminished capacity and (2) failing to adequately support the

request for bifurcation of his trial. Lamasters also asserted his appellate

counsel on direct appeal was ineffective for failing to appeal the trial

court’s denial of his request for bifurcation. The postconviction court

denied his application. The court of appeals affirmed, finding that the

postconviction court did not rule on Lamasters’s specific claims and

Lamasters failed to preserve error by filing a subsequent motion under

Iowa Rule of Civil Procedure 1.904.

We find that the postconviction court did rule on Lamasters’s

present claims, and they are properly preserved for appeal. However, we

also find that these claims lack merit. Therefore, we affirm the denial of

Lamasters’s application for postconviction relief.

I. Facts and Procedural History.

This case arises out of a brutal homicide. The basic facts are ably

set forth in the court of appeals’ opinion on direct appeal:

Lamasters was living with Patricia Rapacki in Jesup,

Iowa, along with her two daughters from previous

relationships. On December 27, 2003, Lamasters and

Rapacki took the children to visit their respective fathers for

the holidays. Rapacki was not seen alive again.

Lamasters spent the next several days extensively

using methamphetamine. He sold the television and some of

the furniture from the couple’s home. He told friends and

acquaintances various stories about Rapacki’s whereabouts.

He stated at times she was gambling in Minnesota, and at

others she was gambling in Dubuque. Rapacki did not

appear to pick up her children at the appointed time.

Lamasters told one of the fathers that Rapacki had gotten

drunk in Waterloo and put her car in the ditch, so she would

be unable to pick up her child as scheduled. He told the

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other father a friend had been injured in Minnesota, so he

and Rapacki were going up there and would not be able to

pick the child up at the time they had agreed upon.

On January 6, 2004, a deputy sheriff in Raymond,

Iowa, noticed a car parked in front of a bank that was not yet

open. The deputy drove by, and the car moved to a

convenience store. The deputy then started to drive to the

convenience store, when the car took off at a high rate of

speed. The deputy chased the car until it stopped in a farm

field. The driver, Lamasters, took off running. The deputy

called for back-up, and a search of the farm field was made.

Officers found Lamasters lying in a ditch with self-inflicted

stab wounds to his abdomen. He was taken to the hospital.

Officers discovered the car driven by Lamasters was

registered to Rapacki, and her purse was in the trunk.

Officers questioned Lamasters at the hospital on January 6

and 7 without giving a Miranda warning. At that time

officers did not suspect foul play, but wanted to know

Rapacki’s whereabouts because her car had been used in a

high-speed chase. Lamasters stated Rapacki was gambling

in Dubuque, and he was taking her purse to her. On

January 7, officer Jane Wagner asked Lamasters if he

believed Rapacki might have been harmed in some way.

Lamasters replied, “They can tell time of death, right? And

her time of death will state that I was not—or will show that I

was not there.”

Lamasters was questioned more extensively on

January 9 and 11, while he was still in the hospital. On

these occasions he was read his Miranda rights. Lamasters

was released from the hospital on January 12, 2004.

Methamphetamine had been found in the vehicle Lamasters

was driving, and he was taken to jail for drug-related

charges and parole violations.

Later on January 12, special agents with the Division

of Criminal Investigation (DCI) and local officers executed a

search warrant at Rapacki’s home. They found a blood stain

on the living room carpet, which was found to match the

DNA of Rapacki.

In the basement, Rapacki’s body was found inside a

locked freezer. She had been killed by ligature strangulation

with an electrical cord. DNA evidence showed Lamasters’

blood was on the collar of Rapacki’s sweater. His blood was

also on a small piece of electrical cord on the floor outside

the freezer. In addition, Lamasters’ blood was on the inside

of a knot in the electrical cord around Rapacki’s neck. Four

cigarette butts were found on the floor by the freezer, one

matching Lamasters, two matching Rapacki’s estranged

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husband, Jeff Rapacki, and one unknown. The key for the

freezer lock was found in the car Lamasters had been driving

during the police chase.

Lamasters was charged with first-degree murder in connection

with Rapacki’s death. See Iowa Code §§ 707.1, .2 (2003). His attorneys

in the jury trial were James Metcalf and David Dunakey. In November

2004, Lamasters filed a “Request to Bifurcate the Guilt Phase from the

Issues of Insanity/Diminished Responsibility/Intoxication.” In that

motion, he argued that if he was required to argue “I didn’t do it . . . but

if I did I was insane” it would “undermine the defense to the charge to

such an extent the Defendant will be denied a fair trial by a fair and

impartial jury.” The district court overruled Lamasters’s motion, stating:

Defendant has not yet even alleged an insanity defense. The

court has no information to support defendant’s apparent

contention that his insanity defense may be substantial.

Only if the court were presented with the situation in which

an insanity defense and an evidentiary defense were

substantial and prejudicially incongruent would the court

consider bifurcation.

Lamasters filed a second motion to bifurcate in January 2005.

This motion was filed contemporaneously with his “Notice of Defenses:

Insanity/Diminished Responsibility,” which was “conditioned on

[Lamasters’s] right to withdraw it in the event that the Court refuse[d] to

allow the bifurcation of the trial.” The second motion to bifurcate made

reference to a preliminary psychiatric evaluation conducted by forensic

psychiatrist, Dr. Thomas Gratzer. The motion also offered, for in camera

review, correspondence from Dr. Gratzer to attorney Metcalf indicating

Gratzer’s opinion that “there was substantial evidence and/or

substantial likelihood that Mr. L[am]asters[’s] psychotic symptoms had

risen to the level of an insane act with respect to the first degree murder

charge.” The State resisted the motion to bifurcate, while also seeking a

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psychiatric evaluation of Lamasters and production of Dr. Gratzer’s

preliminary report. Lamasters opposed these requests. The trial court

overruled Lamasters’s second motion to bifurcate, finding it unnecessary

to address the State’s additional requests. In denying Lamasters’s

second motion to bifurcate, the district court explained:

The court agrees that the Iowa courts have in the past

suggested that a bifurcated trial may be appropriate under

certain circumstances. State v. Jenkins, 412 N.W.2d 174

(Iowa 1987); State v. Collins, 236 N.W.2d 376 (Iowa 1975).

The factors necessary for bifurcation have not been

demonstrated in this case. The defendant should not be

compelled to choose between exercising his Fifth Amendment

right not to incriminate himself and his due process right to

present a defense on the merits. However, the defendant has

not demonstrated that a violation of his Fifth Amendment

right not to incriminate himself is necessarily involved in the

event he pursues his insanity defense. The defense has not

demonstrated that the psychiatric examination and

presentation of defendant’s psychiatric defense necessarily

involves inculpatory testimony which cannot be excised

without diminishing the force of the insanity defense. State

v. Jenkins, 412 N.W.2d 174 (Iowa 1987).

The court added that it had “evaluated the substantiality of the proffered

[insanity] defense both on the merits and on the issue of insanity, and

conclude[d] that based upon the information proffered to the court, it

[wa]s appropriate to deny bifurcation.” Finally, the court commented:

It appears that the defendant in this case is not

prepared to allege that his psychiatric examination will

necessarily be inculpatory. Rather, the defendant makes the

blanket assertion that “an insanity defense will create an

unfair mindset in jurors, essentially negating any other

defense the defendant may assert.” . . . This assertion is

really no different than a problem any litigant—civil or

criminal, plaintiff or defendant—encounters when presenting

alternative theories.

Lamasters went to trial without raising either an insanity or a

diminished capacity defense. On April 5, 2005, the jury found Lamasters

guilty of first-degree murder. As required by Iowa law, he was sentenced

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to life in prison without the possibility of parole. See Iowa Code § 902.1.

The court of appeals affirmed Lamasters’s conviction, rejecting

arguments that the district court erred in permitting the State to

introduce evidence of Lamasters’s flight and in denying Lamasters’s

motion to suppress statements he made on January 6 and 7, 2004. See

State v. Lamasters, No. 05–0927, 2006 WL 3018129 (Iowa Ct. App. Oct.

25, 2006).

On February 14, 2007, Lamasters filed a pro se application for

postconviction relief. After obtaining appointed counsel, Lamasters filed

an amended application, which alleged, among other things,

(1) “[i]neffective assistance of Appellate Counsel on failing to raise on

Appeal the Trial Court denial of bifurcation on the issues of Guilt and an

insanity defense,” (2) “[i]neffective assistance of Trial Counsel on failing to

pursue a defense of temporary insanity,” and (3) “[i]neffective assistance

of Trial Counsel in failing to present adequate and available evidence to

support a claim for bifurcation of issues of guilt and insanity or

diminished capacity defense.” Lamasters subsequently filed a second

amended application for postconviction relief, which added further

grounds for relief.

On November 18, 2010, the district court held a hearing on

Lamasters’s application for postconviction relief. Deposition testimony

was submitted from Lamasters, his trial attorneys Metcalf and Dunakey,

and Dr. Gratzer. On December 23, 2010, the court issued a four-page

order denying Lamasters’s application. The order began by describing

the claims set forth in the application. According to the district court,

these included claims that “trial counsel was ineffective in that

(1) counsel failed to pursue a defense of temporary insanity, (2) counsel[]

[failed] to present evidence in support of an application to bifurcate

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issues of temporary insanity and diminished capacity,” as well as a claim

that appellate counsel was ineffective in “failing to challenge on appeal

the denial of bifurcation of trial on the issues of guilt and insanity.”

The court’s ruling went on to acknowledge that certain

postconviction issues originally raised by Lamasters had been conceded

by him in his trial brief. The court then continued:

The issues remaining for disposition by this court are

(1) whether trial counsel and appellate counsel rendered

ineffective assistance of counsel by failing to raise the issues

of temporary insanity or diminished capacity, (2) whether

trial counsel and appellate counsel rendered ineffective

assistance of counsel by failing to raise the issues of

bifurcation of trials on guilt and temporary insanity,

(3) whether counsel rendered ineffective assistance of

counsel by failing to present testimony by the medical

examiner as to the time of death, and (4) whether trial

counsel, David Dunakey[’s], hearing problems and personal

distractions caused counsel to render ineffective assistance

of counsel.

After discussing the law applicable to claims of ineffective

assistance of counsel, the district court proceeded to address issues

three and four above. It then made the following observations:

The trial judge . . . ruled on the issue of bifurcating trial on

the merits from any issue of the applicant’s alleged

temporary insanity. Both defense counsel at trial indicated

that they never asked Mr. Lamasters whether he committed

the crime. To date, Mr. Lamasters continues to deny he

committed the crime. Any testimony by the applicant’s

present expert, Dr. Gratzer, is unavailing on that point.

The court’s ruling concluded, “The Application for Post-Conviction

Relief is DENIED. Court costs . . . are assessed to Lynn Gene

Lamasters.”

Lamasters appealed to this court. The three argument headings in

his appellate brief were: (1) “trial counsel was ineffective in failing to raise

the issues of temporary insanity and/or diminished capacity,” (2) “trial

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counsel was ineffective in failing to sufficiently support the request for

bifurcation,” and (3) “appellate counsel was ineffective in failing to raise

the issue of bifurcation on [direct] appeal.” We transferred the case to

the court of appeals.

The court of appeals affirmed the judgment of the district court.

However, the court did not reach the merits of Lamasters’s appeal.

Instead, it accepted the State’s argument “that error was not properly

preserved” for appellate review because the district court “failed to rule

on the claims presented, other than a general denial of [Lamasters’s]

application.” The court concluded, “Lamasters failed to file a rule 1.904

motion to obtain a more specific ruling, and error was not preserved.”

We granted Lamasters’s application for further review.

II. Standard of Review.

“ ‘Generally, an appeal from a denial of an application for

postconviction relief is reviewed for correction of errors at law.’ ” Perez v.

State, 816 N.W.2d 354, 356 (Iowa 2012) (quoting Goosman v. State, 764

N.W.2d 539, 541 (Iowa 2009)). “However, when the applicant asserts

claims of a constitutional nature, our review is de novo. Thus, we review

claims of ineffective assistance of counsel de novo.” Ledezma v. State,

626 N.W.2d 134, 141 (Iowa 2001).

III. Analysis.

A. Error Preservation. This case requires us to revisit the

question of when an appellant needs to file a postruling motion in order

to preserve error. “It is a fundamental doctrine of appellate review that

issues must ordinarily be both raised and decided by the district court

before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d

532, 537 (Iowa 2002). “When a district court fails to rule on an issue

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properly raised by a party, the party who raised the issue must file a

motion requesting a ruling in order to preserve error for appeal.” Id.

In Meier, we considered this subject at some length. That case

involved an interlocutory appeal from the denial of a motion to dismiss a

petition. In the trial court, Senecaut III had argued that dismissal

should be granted for three reasons: (1) “the district court had no

jurisdiction to reinstate the petition after Meier filed the unconditional

dismissal of the petition on September 23”; (2) “the length of time

between the filing of the petition and his service of process constituted

abusive delay”; and (3) “service of the altered original notice failed to

conform to rule 49(a) and (c).” Id. The district court denied the motion,

but only discussed the second and third grounds in its ruling. Id. On

appeal, Senecaut III tried to raise all three grounds.

We found that Senecaut III had waived the first ground for

dismissal. As we explained, the preservation of error rule

requires a party seeking to appeal an issue presented to, but

not considered by, the district court to call to the attention of

the district court its failure to decide the issue. The claim or

issue raised does not actually need to be used as the basis

for the decision to be preserved, but the record must at least

reveal the court was aware of the claim or issue and litigated

it.

Id. at 540 (internal citations and footnote omitted). We continued:

In this case, Senecaut III properly raised the issue

regarding the jurisdiction of the court to reinstate the

petition. In his motion to dismiss and to quash, he

specifically claimed the voluntary dismissal deprived the

court of any jurisdiction. Clearly, Senecaut III raised the

issue. However, this was not the only issue raised in

support of the motion so that the denial of the motion to

dismiss by the district court would necessarily mean the

issue was considered. Additionally, the record fails to reveal

that the jurisdictional issue was considered by the district

court through other means. There was no record of the

hearing on the motion and the district court did not address

the issue in the written ruling on the motion. The district

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court confined its written ruling to the issues of delay in

service of process and the alteration of the original notice.

Id. at 540–41. Accordingly, we found “the record fails to show the

jurisdictional claim was considered by the district court” and the issue

was therefore “waived.” Id. at 541.

Our Meier decision also addressed the proper procedural

mechanism for asking a court to rule on an issue that had been

overlooked. We said that rule 179(b) (now rule 1.904(2)) is one means,

but not the only means, for requesting such a ruling. Id. at 539. As we

explained:

[T]he preservation of error doctrine does not require the

request for a ruling to be made under [rule 1.904(2)]. There

is no procedural rule solely dedicated to the preservation of

error doctrine, and a party may use any means to request

the court to make a ruling on an issue. Furthermore, we

treat a motion by its contents, not its caption.

Id. Thus, a motion raising the court’s failure to decide a purely legal

issue could still be described as a rule 1.904(2) motion, and it would

preserve error. Id. 1

We have reiterated the Meier holding in subsequent cases. See,

e.g., State v. Krogmann, 804 N.W.2d 518, 524 (Iowa 2011) (stating that

“when a court fails to rule on a matter, a party must request a ruling by

some means”); Fennelly v. A-1 Mach. & Tool Co., 728 N.W.2d 181, 187

(Iowa 2007) (finding a claim that was not addressed in the district court’s

summary judgment order and not subsequently brought to the court’s

attention had not been preserved for appeal); Stammeyer v. Div. of

Narcotics Enforcement, 721 N.W.2d 541, 548 (Iowa 2006) (finding an

argument not preserved for appeal when there was “nothing indicating

1However, we have cautioned that a rule 1.904(2) motion raising a purely legal

issue does not extend the time for appeal. See In re Marriage of Okland, 699 N.W.2d

260, 265–66 & n.2 (Iowa 2005).

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the court ruled upon or even considered [it]”); Boyle v. Alum-Line, Inc.,

710 N.W.2d 741, 751 n.4 (Iowa 2006) (stating that “[w]hen a district

court fails to rule on an issue properly raised by a party, the party who

raised the issue must file a motion requesting a ruling in order to

preserve error for appeal”).

However, it should be emphasized that the foregoing rule is not

concerned with the substance, logic, or detail in the district court’s

decision. If the court’s ruling indicates that the court considered the

issue and necessarily ruled on it, even if the court’s reasoning is

“incomplete or sparse,” the issue has been preserved. See Meier, 641

N.W.2d at 540; see also Jensen v. Sattler, 696 N.W.2d 582, 585 (Iowa

2005) (finding error was preserved even though “the summary judgment

record is not a model of clarity”). Meier distinguishes between the

situation where error was preserved even though “the record or ruling on

appeal contains incomplete findings or conclusions,” 641 N.W.2d at 539,

and the situation where the issue was “not considered by” the district

court and thus error was not preserved, id. at 540. 2

2Of course, if the appellant claims as error on appeal that the district court

failed to make sufficiently specific findings and conclusions, then the appellant must file

a rule 1.904(2) motion to preserve that point. Starling v. State, 328 N.W.2d 338, 341–42

(Iowa Ct. App. 1982). Here, however, Lamasters does not question the specificity of the

court’s findings and conclusions; he challenges only the ultimate ruling.

We think the text of subsection (1) of rule 1.904 provides insight into the

circumstances under which the use of a rule 1.904(2) motion is contemplated. Rule

1.904(1) states

The court trying an issue of fact without a jury, whether by equitable or

ordinary proceedings, shall find the facts in writing, separately stating its

conclusions of law, and direct an appropriate judgment. No request for

findings is necessary for purposes of review. Findings of a master shall

be deemed those of the court to the extent it adopts them.

Iowa R. Civ. P. 1.904(1) (emphasis added). If a party does not need to request findings

in order to obtain review of a court decision, then a deficiency in the quantity or quality

of findings on an issue should not preclude review of that decision, so long as the

record indicates the court considered the issue and resolved it.

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Applying those principles here, we find that error was preserved on

Lamasters’s present appellate arguments. Lamasters first argues to us

that trial counsel was ineffective “in failing to raise the issues of

temporary insanity and/or diminished capacity.” This very claim was

specifically noted in the district court’s ruling. That court said, “The

issues remaining for disposition by this court are (1) whether trial

counsel . . . rendered ineffective assistance of counsel by failing to raise

the issues of temporary insanity or diminished capacity . . . .” The court

then provided several paragraphs of discussion on various points before

concluding, “The Application for Post-Conviction Relief is DENIED.”

Where the trial court’s ruling, as here, expressly acknowledges that an

issue is before the court and then the ruling necessarily decides that

issue, that is sufficient to preserve error. See Meier, 641 N.W.2d at 540

(“The claim or issue raised does not actually need to be used as the basis

for the decision to be preserved, but the record must at least reveal the

court was aware of the claim or issue and litigated it.”). This is not one

of those cases where the court failed to mention the issue. Cf. Addison

Ins. Co. v. Knight, Hoppe, Kurnik & Knight, L.L.C., 734 N.W.2d 473, 480

(Iowa 2007) (rejecting argument that error had been preserved on the

issue of forum non conveniens where “[t]he only reference to convenience

in the district court’s decision was in the context of its analysis of

personal jurisdiction”).

Furthermore, while the district court did not provide a lengthy

analysis of Lamasters’s claims, some of the court’s discussion was

relevant to this particular ineffective assistance claim. The court noted

that “[t]o date, Mr. Lamasters continues to deny he committed the

crime.” This would tend to undermine either a temporary insanity or a

diminished responsibility defense. With both defenses, it is assumed the

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defendant committed the acts in question. The insanity defense,

however, urges that the defendant was “incapable of knowing the nature

and quality of the act [being committed] or incapable of distinguishing

between right or wrong in relation to that act.” See Iowa Code § 701.4;

State v. Becker, 818 N.W.2d 135, 144 (Iowa 2012). A defendant asserting

diminished responsibility maintains he or she lacked the required

specific intent of the crime charged. See Anfinson v. State, 758 N.W.2d

496, 502 (Iowa 2008); State v. Jacobs, 607 N.W.2d 679, 684 (Iowa 2000).

We likewise find that Lamasters preserved error on his claim that

trial counsel was ineffective in failing to sufficiently support the request

for bifurcation. This is a much closer call, though. Clearly Lamasters

raised the claim in his application for postconviction relief and discussed

it in his trial brief. In the first page of its ruling, the district court

specifically noted that such a claim had been raised. However, when the

district court later went on to list “[t]he issues remaining for disposition

by this court,” after mentioning certain other issues conceded by defense

counsel, it recharacterized the issue somewhat. Instead of stating the

issue was whether trial counsel had been ineffective in not supporting the

request for bifurcation, it spoke in terms of a combined issue, namely

“whether trial counsel and appellate counsel rendered ineffective

assistance of counsel by failing to raise the issues of bifurcation of trials

on guilt and temporary insanity.” This recasting of the issue does not

make sense, because no one disputed that trial counsel had moved for

bifurcation and because it could not have been ineffective assistance for

appellate counsel to fail to raise an issue if trial counsel had also failed to

raise it.

Thus, the record suggests the postconviction court may have

misunderstood Lamasters’s claim. Lamasters was not questioning trial

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counsel’s failure to move for bifurcation, he was questioning counsel’s

failure to support such a motion. The better and safer practice would

have been for Lamasters to call the district court’s attention to this

potential oversight by filing a motion.

Nevertheless, faced as we are with a ruling that correctly describes

the applicant’s claim, but is followed later by an inaccurate restatement

of that claim, and followed finally by a denial of the entire application, we

cannot say that the court failed to consider and rule upon the matter.

For one thing, as we have pointed out, the district court’s recapitulation

of the claim on page two, as opposed to its original statement of the claim

on page one, makes no sense. Thus, we believe it is more reasonable to

conclude the court was simply being a little careless in its restatement of

the claim, not that it misunderstood what Lamasters was arguing. Also,

because this is a postconviction relief proceeding, finding that counsel

below failed to preserve error by filing a motion would simply pave the

way for another application for postconviction relief, alleging ineffective

assistance by postconviction relief counsel.

Finally, we conclude that Lamasters has preserved error on his

claim that his original appellate counsel should have appealed the denial

of bifurcation. This claim is correctly summarized on both the first and

the second pages of the district court’s ruling, before the court denied the

application in its entirety.

B. Ineffective Assistance of Counsel. We turn now to the merits

of Lamasters’s appeal. As noted, Lamasters urges on appeal three

separate grounds of ineffective assistance of counsel: (1) trial counsel

was ineffective in failing to raise the issues of temporary insanity and

diminished capacity; (2) trial counsel was ineffective in failing to

sufficiently support the request for bifurcation; and (3) appellate counsel

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was ineffective in failing to raise the issue of bifurcation on appeal. “[A]ll

postconviction relief applicants who seek relief as a consequence of

ineffective assistance of counsel must establish counsel breached a duty

and prejudice resulted.” Castro v. State, 795 N.W.2d 789, 794 (Iowa

2011) (citing State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009)); see also

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674, 693 (1984). “We may affirm the district court’s rejection of

an ineffective-assistance-of-counsel claim if either element is lacking.”

Anfinson, 758 N.W.2d at 499.

On the breach of duty prong, Lamasters must demonstrate his trial

attorney performed below the standard demanded of a “reasonably

competent attorney.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80

L. Ed. 2d at 693 (citation and internal quotation marks omitted); see also

Ledezma, 626 N.W.2d at 142. “[W]e measure the attorney’s performance

against ‘prevailing professional norms.’ ” Ledezma, 626 N.W.2d at 142

(quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at

694). We start with the presumption that the attorney performed

competently and proceed to an individualized fact-based analysis. Id.

“[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.” Id. “Improvident trial strategy,

miscalculated tactics or mistakes in judgment do not necessarily amount

to ineffective counsel.” Hinkle v. State, 290 N.W.2d 28, 34 (Iowa 1980).

“When counsel makes a reasonable tactical decision, this court will not

engage in second-guessing.” Fryer v. State, 325 N.W.2d 400, 413 (Iowa

1982). “Selection of the primary theory or theories of defense is a tactical

matter.” Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984); see also

Pettes v. State, 418 N.W.2d 53, 56–57 (Iowa 1988).

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To meet the prejudice prong, Lamasters must show his counsel’s

“errors were so serious as to deprive [him] of a fair trial.” Strickland, 466

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Even if Lamasters

can show his counsel made a professionally unreasonable error, the

judgment shall not be set aside unless it can be shown the error had an

effect on the judgment. Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at

696. A showing that the error “conceivably could have influenced the

outcome” of the proceeding is not enough. Id. at 693, 104 S. Ct. at 2067,

80 L. Ed. 2d at 697. Rather, the effect must be affirmatively proven by a

showing “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also

King v. State, 797 N.W.2d 565, 572 (Iowa 2011). “[R]easonable

probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d

at 698. In a challenge to a criminal conviction, the appropriate question

to ask is “whether there is a reasonable probability that, absent the

errors, the factfinder would have had a reasonable doubt respecting

guilt.” Id. at 695, 104 S. Ct. at 2068–69, 80 L. Ed. 2d at 698; see also

Ledezma, 626 N.W.2d at 143.

As we discuss below, we need not examine the breach of duty

prong on Lamasters’s ineffective-assistance claims because all of

Lamasters’s claims can be resolved on the prejudice prong. Ledezma,

626 N.W.2d at 142 (“If the claim lacks prejudice, it can be decided on

that ground alone without deciding whether the attorney performed

deficiently.”); see also Strickland, 466 U.S. at 697, 104 S. Ct. at 2069, 80

L. Ed. 2d at 699.

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1. Failure to present a defense of temporary insanity and/or

diminished capacity. Lamasters relies on the December 15, 2004 letter of

Dr. Gratzer as well as Dr. Gratzer’s subsequent testimony in the

postconviction relief proceeding to argue that his trial counsel should

have pursued an insanity or diminished capacity defense. In December

2004, Dr. Gratzer wrote there is “substantial evidence and/or substantial

likelihood that Mr. L[am]asters[’s] psychotic symptoms had risen to the

level of an insane act with respect to the first degree murder charge.” By

2010, his recollection of Lamasters’s mental condition was fairly limited

but he testified that “it was [his] opinion at that time . . . that [Lamasters]

was fairly mentally ill at the time of the event and that there was

evidence that he had psychotic symptoms that may have risen to the

level of an insanity defense.” As he put it, “I felt that it was reasonable to

pursue a more thorough evaluation regarding an insanity defense.”

Dr. Gratzer added that the insanity defense is “very restrictive” and that

he has only found one person out of approximately 1000 evaluations who

met the criteria for the defense. Yet he felt that Lamasters “might” meet

the criteria and recommended further evaluation to Lamasters’s counsel,

who elected not to pursue the matter further.

Lamasters also points to his self-inflicted stab wounds on

January 6, 2004, and his subsequent reports to the hospital that he

“was hearing voices,” in addition to a prior hospitalization for suicidal

thoughts in the year 2000. In short, Lamasters argues that if his trial

counsel had presented an insanity or diminished responsibility defense,

there is a substantial probability the outcome would have been different.

18

To this day, however, Lamasters has no expert opinion that he was

legally insane at the time of the killing. 3 Nor does his own postconviction

testimony support such a defense. Instead, at the hearing, Lamasters

was unrepentant and continued to deny he had killed Rapacki. All he

could remember about the December 2003/January 2004 time period

was that he was “out partying, waiting to come back to prison [because

of a parole violation]. Doing a lot of drugs and a lot of drinking.” He said

his relationship with Rapacki at the time of the killing “was fine.”

Lamasters added, “I have problems with my memory all the time,” and,

“Everybody forgets shit.” He said that “[o]bviously somebody murdered”

Rapacki but “I didn’t kill her” and “I didn’t murder her.”

Furthermore, eyewitness testimony at the 2005 trial did not

suggest Lamasters was incapable of knowing the nature and quality of

his acts or incapable of distinguishing between right or wrong in relation

to those acts during the December 2003/January 2004 time period. In

order to cover up Rapacki’s disappearance, Lamasters related numerous

false stories about her whereabouts to friends and family. He first said

that neither he nor Rapacki could pick up Rapacki’s oldest daughter on

December 28 because a friend had had a serious accident and Lamasters

needed to travel to Rochester, Minnesota, to visit him in the hospital.

Later, he told an elaborate tale about a trip he and Rapacki had planned

to take to a Minnesota casino, indicating she had gone before him and he

was to follow her there on New Year’s Eve. Lamasters’s other stories

included assertions Rapacki was in Farley, Iowa, with friends; Rapacki

was drunk and had wrecked a vehicle in Waterloo, Iowa; and Rapacki

3Inthe postconviction proceeding, Dr. Gratzer testified, “I think it’s possible to

do an evaluation today on his mental state in December of ’03 or January of ’04.”

However, he had not done such an evaluation.

19

had gone gambling with friends in Dubuque, Iowa. Lamasters further

attempted to cover up Rapacki’s disappearance by telling witnesses and

investigators he had taken trips to those various locations to meet

Rapacki or to look for her. In short, Lamasters told many inconsistent

stories. Their only common denominator was that all were false and all

would have led others to believe Rapacki was still alive.

While covering up Rapacki’s disappearance to friends and family,

Lamasters set about the task of selling, or attempting to sell, Rapacki’s

personal items and accessing the funds in her bank account. Testimony

showed Lamasters attempted to liquidate Rapacki’s car, television, DVD

player, couch, and household furniture. He enlisted the help of friends

and family to rent a U-Haul truck, load and unload items, transport

furniture, and store property which belonged to Rapacki. Further, he

attempted to negotiate the sale of the items to various businesses and

acquaintances, and even collected money for the sale of the same set of

furniture from multiple parties.

Witnesses also testified that Lamasters frequently used drugs in

the days following Rapacki’s disappearance, which he confirmed in his

postconviction deposition. Before his arrest, Lamasters had clear plans

of continuing his days of partying as, on two separate occasions, he told

witnesses of his intention to hire strippers for entertainment at the

upcoming birthday party he was planning to throw for himself.

Additionally, both of Lamasters’s trial counsel testified at the

postconviction relief hearing that their client had persistently denied

killing Rapacki. They felt it would be difficult to argue to the jury that

Lamasters had not committed the killing (e.g., by suggesting that

Rapacki’s estranged husband, whose cigarette butts were also found by

the freezer, was culpable) while simultaneously arguing that if Lamasters

20

did kill her, he was insane. Metcalf, the more experienced criminal

defense attorney of the two, 4 added that he thought an insanity defense

involving a client who had been on a methamphetamine binge “probably

couldn’t be sold to an Iowa jury and particularly . . . a Buchanan

[County] jury.”

In light of all the foregoing, we cannot find a reasonable probability

on this record that an insanity defense would have been successful. No

expert has opined that Lamasters was legally insane at the time of the

killing. Dr. Gratzer did not say that Lamasters was insane at the time of

the killing, only that it was a possibility. See Anfinson, 758 N.W.2d at

502 (finding that the defendant “failed to demonstrate a reasonable

probability of the success, or even viability, of an insanity defense” where

her expert did not opine she was insane at the time of the victim’s death).

Even if an insanity defense had been presented, the trial testimony, and

Lamasters’s own postconviction relief testimony, indicate that the

prosecution would have had considerable material to rebut that defense.

Lamasters’s more experienced criminal lawyer testified that he thought

such a defense “probably couldn’t be sold” to a jury. In sum, we

conclude the viability of an insanity defense is at best speculative. 5

4Dunakey concedes that Metcalf was “way more experienced in what was going

to fly in terms of an insanity defense.”

5Lamasters argues that his drug use and his act of stabbing himself before he

was apprehended lend credibility to an insanity defense. But the overall impression one

gets from the trial testimony is a pattern of deception used by Lamasters to prevent

friends, family and authorities from discovering what happened to Rapacki. He spent

several days selling off her possessions and using drugs. Throughout that time period,

Lamasters spent most nights with either his sister or brother, both of whom testified he

had acted normally. He continued living his daily life, drinking, partying, and doing

drugs, and he created stories as necessary to account for Rapacki’s whereabouts and

evade suspicion. These appear to be the acts of someone who is aware he has

committed a crime and who calculates steps to avoid detection. These acts do not

foreclose an insanity defense, but they certainly do not support it.

21

Lamasters further argues his counsel should have presented a

defense of diminished responsibility that could have negated the intent

element required for first-degree murder. See Anfinson, 758 N.W.2d at

502–04 (explaining that the defense of diminished capacity may reduce a

first-degree murder charge to second-degree murder). 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.’ ” State v. Douglas,

485 N.W.2d 619, 621 (Iowa 1992) (quoting State v. Gramenz, 256 Iowa

134, 139, 126 N.W.2d 285, 288 (1964)).

Yet Lamasters’s arguments here fall short for the same reasons

that his insanity arguments do not succeed. Lamasters offered no expert

opinion relating to diminished responsibility. Dr. Gratzer has no

recollection if he was even aware of Lamasters’s methamphetamine use.

And Lamasters elaborate efforts to conceal the killing seem to belie the

notion that he lacked the mental capacity to premeditate a killing. See

Jacobs, 607 N.W.2d at 685 (noting the trial court’s conclusion that the

defendant’s “intricate transactions . . . to cover up the thefts” weighed

against a diminished responsibility defense and affirming the trial court’s

rejection of that defense). Considerable trial evidence was presented that

Lamasters carried on ordinary activities in late December 2003 and early

January 2004 despite his ongoing drug use. Given the lack of evidence

in the postconviction relief record to support a defense of diminished

capacity, we cannot find there was a reasonable probability such a

defense would have swayed a jury.

2. Bifurcation. We now turn to Lamasters’s related claims that

(1) trial counsel were ineffective in failing to sufficiently support the

22

request to bifurcate the trial on the issues of guilt and insanity, and

(2) appellate counsel were ineffective in failing to challenge the trial

court’s denial of the motion to bifurcate on direct appeal.

In Jenkins, we considered the question of whether a criminal trial

should be bifurcated into guilt and insanity phases. 412 N.W.2d at 176.

In that case, the defendant, who had been charged with first-degree

sexual assault and first-degree burglary, “posed alternative defenses of

intoxication, insanity and alibi.” Id. at 175. Before trial he

moved to bifurcate the trial on the ground that “[i]f defendant

is forced to present this [insanity defense] testimony at the

same trial on the charges themselves, it will be impossible to

prevent the jury from inferring the defendant is admitting

guilt, [thus] there is no way to ensure a fair trial without

bifurcation.”

Id. at 175–76. This request was denied, and the defendant was

subsequently found guilty on both counts. Id. at 175.

On appeal, the defendant argued “the trial court abused its

discretion by denying his pretrial motion to bifurcate the trial on the

issues of insanity and guilt” because “in Iowa a defendant is entitled to a

bifurcated trial when the psychiatric examination forces the defendant to

disclose information otherwise protected by the fifth amendment.” Id. at

175–76. The defendant cited two of our prior cases for the proposition

that “the importance of bifurcation to the fairness of the defendant’s trial

is said to be determined by the extent to which the psychiatric

examination elicits inculpatory testimony which cannot be excised

without diminishing the force of the insanity defense.” Id. at 176 (citing

Collins, 236 N.W.2d at 382–83 (Rawlings, J., concurring); State v. Moses,

320 N.W.2d 581, 583 (Iowa 1982)).6

6In Moses, an appeal from a first-degree murder conviction, we upheld the denial

of a motion to bifurcate where the State’s experts “did not testify to any incriminating

23

Alternatively, the defendant invoked “the alleged prejudice inherent

when evidence relevant only to the issue of sanity becomes tantamount

to a confession of guilt.” Id. at 176 (citing United States v. Bennett, 460

F.2d 872 (D.C. Cir. 1972)). Thus, the defendant urged us to follow a

federal appellate case that concluded bifurcation should occur “where

the defendant presents a substantial defense both on the merits and on

the issue of sanity.” Id. (citing Bennett, 460 F.2d at 878).

In our Jenkins decision, we assumed for purposes of appeal that

bifurcation could be required in both scenarios. Id. Yet we found neither

scenario existed. Id. The defendant had only a “feeble alibi,” which

could not “reasonably be characterized as a ‘substantial defense.’ ” Id.

Also, the psychiatric testimony “yielded no admissions or inculpatory

statements or admissions made by the defendant.” 320 N.W.2d at 583. However, we

did not expressly indicate when bifurcation should occur. Id.

Collins was a sexual abuse case where the defendant sought a court-ordered

mental evaluation to support an insanity defense. 236 N.W.2d at 377. In the course of

the examination, the defendant related his version of events, and the State later called

the examining psychiatrist as a witness at trial. Id. The defendant objected to that

portion of the psychiatrist’s testimony on the ground he had not been given Miranda

warnings prior to the evaluation. Id. at 378. The trial court overruled the objection and

the defendant was subsequently found guilty. Id. On appeal we affirmed the trial

court’s ruling because the defendant had not been “subjected to custodial interrogation

nor was he being questioned [o]n behalf of law enforcement officers.” Id.

Justice Rawlings specially concurred, discussing in some detail the issues raised

by self-incriminating statements in the course of forensic psychiatric examinations. He

concluded:

[W]here a defendant is examined as to his or her sanity as bearing upon

the accused’s criminal responsibility for the act charged, whether such

be initiated by the defendant, the prosecution or sua sponte order of the

court, any self-incriminating information obtained from an accused in

course thereof shall not be admitted in evidence, over appropriate

objection, during trial of the examined defendant in which guilt or

innocence is to be determined.

Id. at 382 (Rawlings, J., concurring). Justice Rawlings went on to state that if “a

psychiatrist is unable to testimonially evaluate defendant’s legal responsibility absent

reference to incriminatory statements made by the accused, then a bifurcated hearing

would be unavoidable and appropriate.” Id. at 383.

24

statements. Defendant simply professed no recollection of the crime.”

Id. Hence, we concluded the district court did not abuse its discretion in

denying the defendant’s motion to bifurcate. Id.

In this case, the district court denied Lamasters’s motion to

bifurcate principally on the ground that Lamasters had not shown that

his psychiatric examinations had included or would include inculpatory

admissions. On appeal, Lamasters argues that he did make inculpatory

statements in his session with Dr. Gratzer and that counsel were

ineffective in failing to bring them to the district court’s attention. To be

clear, Lamasters does not dispute that he has consistently denied killing

Rapacki. Yet he points to the following testimony from Dr. Gratzer

regarding their interview:

I do remember as he was being questioned that there was

the issue of him [Lamasters] denying the offense. And the

interview technique that I used was “If you had committed

the offense, while I understand that you’re denying it, what

would have been the reasons for it,” and he actually

answered that question.

Thus, as Dr. Gratzer explained:

Mr. Lamasters, while denying the offense, then

acknowledged that if he had committed the offense, these

would have been some of the reasons why he did it.

So while he was denying the offense, he at another

point was giving reasons why he might have committed the

offense, so it might be seen as incriminating. I don’t know.

Lamasters argues that if this information had been presented to

the district court, bifurcation would have been ordered, he would have

then put on an insanity defense in the second phase of the trial, and the

insanity defense would have had a reasonable prospect of success.

Based on our independent review of the record, however, we are not

persuaded by Lamasters’s arguments. To begin with, there are no notes

25

or other documents to confirm Dr. Gratzer’s recollection that Lamasters

answered hypothetical questions in the interview. 7 Both Dunakey and

Metcalf recalled that Dunakey was responsible for the bifurcation issue,

yet Dunakey specifically denied being aware that Lamasters “made

statements in response to hypothetical questions from Dr. Gratzer that

were incriminating.” In Dunakey’s view, this was an important fact he

would have wanted to present had he been aware of it. Metcalf was

apparently the person in direct communication with Dr. Gratzer, but

Metcalf added, “I don’t remember Dr. Gratzer having expressed to me

that he [Lamasters] had admitted participating in the act.” Dr. Gratzer

states on the other hand that he “probably” would have told counsel if

Lamasters had given reasons for his actions in response to hypothetical

questions.

We are unable to conclude from this record that Lamasters’s

counsel actually had information about incriminating statements that

they failed to provide to the district court. The record indicates that

defense counsel were very familiar with Jenkins and tried to present the

best argument under that case for bifurcation. If they had known of

inculpatory statements made by their client to the psychiatrist, we

believe they would have brought them to the court’s attention.

In any event, we are not persuaded that the answers to

hypotheticals described generally by Dr. Gratzer would have been

sufficient by themselves to warrant bifurcation under Jenkins. 8 Dr.

Gratzer specifically recalled that Lamasters denied committing the

7Dr. Gratzer testified in the postconviction relief proceeding that he had not

retained any records concerning this case.

8Lamasters argues that Jenkins sets forth the standard in this state as to when

bifurcation is required. We do not decide that question but assume Lamasters is

correct for purposes of this appeal only.

26

offense. While Dr. Gratzer also remembered that Lamasters had

answered hypothetical questions about his state of mind “if he had

committed” the offense, these answers would not necessarily have posed

more difficulties for the defense in a one-stage trial than the mere

juxtaposition of two inconsistent defenses already posed. Without more

detail about the alleged incriminating statements, we cannot say at the

present time that a winning bifurcation motion could have been filed

under Jenkins.

Even if the statements could be deemed inculpatory under

Jenkins, Lamasters also has not shown that Dr. Gratzer would have been

unable to testify equally effectively if the statements were simply

excluded from evidence. See Jenkins, 412 N.W.2d at 176 (noting the

need for bifurcation is said to be determined by the extent to which the

incriminating admissions “cannot be excised without diminishing the

force of the insanity defense”).

Furthermore, to obtain postconviction relief, Lamasters has to

show not only that a “better-supported” bifurcation motion would have

been successful, but also that there is a reasonable probability his

insanity defense would have prevailed in the second phase of a

bifurcated trial. For the reasons we have discussed in the previous

section of this opinion, we cannot reach that conclusion. Lamasters has

not offered a psychiatric opinion that he was legally insane at the time of

the killing, and the testimony of numerous lay witnesses tends to show

he was in command of his faculties.

Finally, Lamasters argues that his counsel on direct appeal were

ineffective for not raising the district court’s denial of bifurcation when

they appealed his conviction. However, the text of Lamasters’s appellate

brief makes clear that he is not quarreling with the district court’s

27

decision to deny bifurcation on the record that was before it in 2005.

Rather, this argument is simply a restatement of Lamasters’s current

contention that his trial counsel were ineffective in failing to make a

better record. We have already explained why that argument does not

justify relief.

IV. Conclusion.

For the reasons stated, we affirm the district court’s denial of

Lamasters’s application for postconviction relief.

DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

All justices concur except Wiggins and Appel, JJ., who concur

specially.

28

#11–0016, Lamasters v. State

WIGGINS, Justice (concurring specially).

I specially concur in the outcome of this case. I agree that we

should reach the merits of Lamasters’s postconviction relief action and

that Lamasters is not entitled to postconviction relief. However, I part

ways with the majority on its error preservation analysis. Once again,

the majority unnecessarily expands our well-settled error preservation

rules in order to reach the merits of a case. 9 See King v. State, 818

N.W.2d 1, 43–49 (Iowa 2012) (Wiggins, J., dissenting).

The rule in Iowa, as opposed to the federal system, is that a

defendant is entitled to effective assistance of counsel in a postconviction

relief action. Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994). Because

of this rule, I would find logic dictates that there can never be an error

preservation issue for failing to file a 1.904(2) motion in an ineffective-

assistance-of-counsel case.

When an appellate court finds an error preservation problem on

appeal in a case other than a postconviction relief action, the court does

not address the unpreserved issue on appeal, and the appeal is final. In

a postconviction relief action, our finding that error was not preserved

due to a failure to file a rule 1.904(2) motion will only lead to the

defendant filing another postconviction relief action, alleging

postconviction relief counsel was ineffective. In the second

postconviction relief action, the defendant will offer substantially the

same evidence offered in the first action. This is a complete waste of

precious judicial resources. Had the majority not contorted our error

9The tip-off that the majority is stretching our error preservation rules is when it

states that error preservation is a close call.

29

preservation rules, this is exactly what would have happened in this

case.

The better practice is to adopt an exception to our error

preservation rules for a postconviction relief action and hold a defendant

preserves error on all issues raised and litigated in the trial court,

regardless of whether the defendant filed a rule 1.904(2) motion. This

type of exception is not new to Iowa jurisprudence.

In DeVoss v. State, we held an appellate court may uphold

evidentiary rulings on a theory not urged at trial based on “the

realization that on retrial the error could easily be corrected.” 648

N.W.2d 56, 62 (Iowa 2002). The basis of DeVoss’s holding is that it

would be a waste of judicial resources to retry the case, when the same

evidence would be admissible in a new trial under a different theory than

previously urged in the trial court. Id.

The same reasoning applies here. If we were to agree with the

court of appeals that Lamasters did not preserve error, he would

probably refile his action, alleging ineffective assistance of postconviction

relief counsel. The subsequent action would contain the same evidence

as the prior trial. This makes no sense to me and is a tremendous waste

of judicial assets.

Appel, J., joins this special concurrence.