Kristina Joy Fetters is the youngest female serving
life in prison in Iowa.
Fetters was convicted of stabbing her great aunt Arlene Klehm, 73,
with a kitchen knife on October 23, 1994, when she was 14.
Bill would allow juvenile 'lifers' a shot at
By Fred Love - WCFCourier.com
February 15, 2009
DES MOINES - Kristina Fetters doesn't know if she
can ever atone for what she did as a 14-year-old.
She says children of that age don't think like
adults. They don't always understand the consequences of their actions
as well as adults do.
She says children ought to get a second chance when
they make mistakes. But when the conversation turns to her situation,
Fetters can't bring herself to say she deserves anything other than
what she's been given - a lifetime behind bars for stabbing to death
her great-aunt in 1994.
"I take full responsibility. I don't justify - I
can't justify - my behavior. I took her life," Fetters said last week
during an interview at the Iowa Correctional Institution for Women in
Mitchellville, where she has spent the last 13 years.
But some state lawmakers are pushing for
legislation that would allow Fetters a chance at parole after she's
served 15 years of her sentence. Senate File 74, sponsored by Sen. Pam
Jochum, D-Dubuque, would allow juveniles sentenced to life in prison
to apply for a review after serving 15 years.
The review, which would be conducted by the Iowa
Board of Parole, could lead to eventual parole or work release. The
legislation also allows eligible offenders to apply for the review
every two years after the initial 15-year wait. Jochum said the bill
aims to allow reformed inmates who no longer pose a threat to society
a chance at getting out of prison.
"Many young people do some pretty dumb things in
life, and to make them stay in prison until the day they die in some
cases is probably more than society needs to demand from that person,"
Fetters was tried as an adult and sentenced to life
after she stabbed 73-year-old Arlene Klehm on Oct. 25, 1994, in
Klehm's Polk County home. Fetters had ran away from Orchard Place, a
mental health institution for juveniles in Des Moines, with another
girl earlier in the day.
She and her companion made their way to Klehm's
home where Fetters hit Klehm in the head with a frying pan and stabbed
her with a kitchen knife. Court documents indicate Fetters wanted to
take jewelry and money from her great aunt, but Fetters denies she
intended to steal anything. Fetters' lawyers mounted an insanity
She is now 29 years old and says she expects to
remain in prison until she dies. Iowa has 21 inmates serving life
sentences who entered prison as juveniles, plus another 18 who
committed their crimes as juveniles but turned 18 before going to
prison, according to the Iowa Department of Corrections.
Of the 21 who began their sentences as juveniles,
19 were convicted of first-degree murder. The other two were convicted
of first-degree kidnapping. An additional three inmates who committed
their crimes as juveniles are serving their terms in different states
The legislation would give the parole board the fi
nal authority on whether to grant parole or work release to an inmate,
but members of the board say the bill would add to an already
Karen Muelhaupt, vice chairwoman of the Iowa Board
of Parole, said the board reviewed 16,000 cases last year.
"We're busy, and we're concerned about more
responsibility," Muelhaupt said. "We want to make sure that we have
the funding and the staff to do the workload."
She noted inmates serving life sentences can apply
for a commutation of their sentence every 10 years. Under that
procedure, the parole board makes a recommendation to the governor,
who then decides whether to commute a sentence. Clarence Key Jr.,
executive director of the parole board, said the legislation could
clog up the board's work and affect its ability to carry out other
"It's going to change what we do a lot," Key said.
"It's going to slow us down a lot. And if that happens, oftentimes,
quality of work decreases, and we don't want to do that either."
Corwin Ritchie, executive director of the Iowa
County Attorneys Association, said his organization opposes the
legislation because it is unfair to victims and their family members,
especially in murder cases. Ritchie said reopening the cases for
review could reopen emotional wounds for victims and their families.
"What I think maybe some people are forgetting is
this is someone who has committed a class A felony, and you are now
subjecting the survivors of that deceased person to a reopening of
that case every two years for who knows how many years into the
future," Ritchie said.
A juvenile court judge must give approval if a
prosecutor wants to try a juvenile as an adult. Ritchie said that
ensures a defendant faces a just sentence if convicted. He said Iowa's
current policy of not offering parole opportunities to convicts
sentenced to life in prison safeguards the public.
Fetters said she has grown during her 13 years in
prison. She said she entered the corrections system an angry and
scared girl, lashing out because she viewed herself as a victim.
"I felt like I had to act hard. I felt like I had
to protect myself, so I rebelled," she said of her early days behind
But a class she took a few years into her sentence
forced her to step into the shoes of a crime victim. Fetters said that
class was a turning point that put her on a path of growth and
During the class, Fetters said, she forged a
relationship with a woman whose son had attempted to kill her. Fetters
said that bond has given her strength and a sense of purpose.
"It's like I can almost forgive myself," Fetters
said. "I never fully will be able to, but almost. It's like a tiny bit
IN THE COURT OF APPEALS OF IOWA
No. 4-156 /
Filed April 14, 2004
STATE OF IOWA,
from the Iowa District Court for Polk
County, Artis I. Reis, Judge.
Applicant-appellant Kristina Fetters
appeals the decision of the district court dismissing her application
for postconviction relief. AFFIRMED.
Del Gallo, State Appellate Defender, and David Adams, Assistant State
Appellate Defender, for appellant.
J. Miller, Attorney General, Richard Bennett, Assistant Attorney
General, John Sarcone, County Attorney, and Steve Foritano, Assistant
County Attorney, for appellee.
Kristina Fetters, Mitchellville, appellant pro se.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Applicant-appellant Kristina Fetters
appeals the decision of the district court dismissing her application
for postconviction relief. On appeal applicant claims the State, in
failing to raise the issue of the timeliness of the application in its
resistance, has waived this argument. On the merits applicant claims
the district court erred in dismissing her application for
postconviction relief claiming ineffective assistance of trial and
appellate counsel on several grounds. We affirm this dismissal.
Applicant also claims ineffective assistance of postconviction
counsel. We preserve these claims for possible postconviction
Applicant was convicted by a jury of first-degree murder on December
18, 1995. She appealed, and our court affirmed the conviction.
See State v. Fetters, No. 96-0239 (Iowa Ct. App. Feb. 26, 1997).
Procedendo issued on May 23, 1997. More than five years later, on
July 15, 2002, applicant filed a pro se application for postconviction
relief. The following were the specific grounds and allegations of
fact in the application:
filing a claim of ineffective assistance of counsel. My attorney
failed to pursue the issues of medical malpractice (in the State
doctor’s prescription of Prozac to a child – not FDA approved)
and the juvenile court officer (lawyer’s) failure to follow proper
procedure (allowing Dr. Dedney to make a ruling rather than taking it
to a juvenile court judge). I am also filing under new information.
Recent medical information has resulted in restrictions upon the use
of Prozac in children.
was appointed to represent applicant and ordered to determine whether
the application had merit. In the event counsel determined the
application was without merit, counsel was ordered by the district
court to file a motion for summary judgment and accompany that motion
with affidavits and a brief, among other documents.
December 19, 2002 counsel determined the application was without merit
and moved to withdraw from the case. Counsel did not file a motion
for summary judgment or file a brief as ordered by the district
court. On January 22, 2003 the court permitted counsel to withdraw
and ordered the State to file an answer to applicant’s application.
On January 27, 2003 the State filed an answer which denied the
substantive grounds upon which applicant sought postconviction relief
but did not raise the issue of applicant’s untimeliness in filing the
application. The matter was set for trial on April 4, 2003.
Applicant did not appear, and no one appeared on her behalf. No
hearing was held, no evidence was taken, and there was no discussion
of any of the issues applicant raised in her application. On April
18, 2003 the court issued a Notice of Intent to Dismiss Postconviction
Relief Application, finding there was no genuine issue of material
fact, and granting applicant thirty days to reply. Applicant did not
reply, and the court dismissed the application on May 20, 2003. On
June 19, 2003 applicant filed a pro se appeal of the dismissal of her
Applicant now makes several claims of ineffective assistance of
counsel, claiming postconviction counsel was ineffective for failing
to make claims of ineffective assistance of counsel with respect to
the following issues:
(1) appellate counsel failed to argue
the trial court applied the incorrect standard of review to her motion
for a new trial; (2) trial counsel erred in stipulating to the waiver
of juvenile court jurisdiction prior to trial, and appellate counsel
erred in failing to make this claim on appeal; (3) trial counsel erred
in failing to proffer evidence of the Polk County jury selection
system to support the claim that African-Americans were excluded in
the jury selection process, and appellate counsel erred in failing to
make this claim on appeal; and (4) trial counsel failed adequately to
investigate the likelihood that applicant’s actions resulted from her
Prozac use, and appellate counsel erred in failing to make this claim
on appeal. Applicant further claims postconviction counsel was
ineffective for failing to argue that newly discovered evidence shows
the drug Prozac may cause violent outbursts in the individual taking
it, and the fact she was on Prozac may have been evidence of insanity
or diminished capacity.
II. SCOPE OF REVIEW
review the dismissal of an application for postconviction relief for
errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.
The State urges us to dismiss
applicant’s application for postconviction relief on the grounds that
it was not timely filed. Under Iowa Code section 822.3 (2001)
applications for postconviction relief regarding appealed convictions
must be filed within three years of the issuance of procedendo. There
is no dispute applicant did not file her application within three
years of procedendo. Applicant argues the State waived its timeliness
argument by failing to make it to the district court and also that
some of her postconviction claims are based on facts which were not
available during the applicable time period. See id.
State did not raise, and the district court did not address, the
procedural error the State now claims on appeal, namely the late
filing date of the application. Under DeVoss v. State, 648
N.W.3d 56, 63 (Iowa 2002), we will not address a procedural or
substantive issue for the first time on appeal. We decline to affirm
the district court on preservation grounds which it did not address.
district court determined there appeared to be no genuine issue of
material fact, and it gave applicant thirty days to respond.
Although the applicant was not represented by counsel at the time the
court filed its Notice of Intent to Dismiss Postconviction Relief
Application, she was given thirty days to reply to the proposed
order. She did not respond within those thirty days. There is no
claim she did not receive the proposed order and thirty-day notice.
The court followed a recognized statutory method for summary
disposition of a postconviction relief application. See Iowa
Code § 822.6; Poulin v. State, 525 N.W.2d 815, 816 (Iowa
previously held that where a motion to dismiss an application for
postconviction relief has been filed by the State, proper service has
been made on the applicant, and the applicant has been afforded an
adequate time to respond and fails to do so, the district court may
summarily dismiss the application as a matter of default judgment.
See Brown, 589 N.W.2d at 275. We affirm the dismissal of
claims applicant has made of ineffective assistance of postconviction
counsel were not before the district court, and there is insufficient
record for us to address them on appeal. They are preserved for
possible postconviction proceedings.
Court of Appeals of Iowa
State v. Fetters
STATE of Iowa, Plaintiff-Appellee,
Kristina Joy FETTERS, Defendant-Appellant.
February 26, 1997
Heard by HABHAB, C.J., and STREIT and VOGEL, JJ.
William A. Price, Des Moines, for appellant.Thomas
J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney
General, John P. Sarcone, County Attorney, and Steve Foritano and
Karen A. Romano, Assistant County Attorneys, for appellee.
Kristina Joy Fetters appeals from the judgment and
sentence entered following her conviction of first-degree murder.
She challenges (1) the sufficiency of evidence to support her
conviction; (2) the district court's exclusion of her proposed jury
instruction to inform the jury of the consequences of a not guilty by
reason of insanity or diminished capacity verdict; (3) a violation of
her Sixth Amendment right to a jury comprised of a fair cross-section
of the community; and (4) the district court's decision to allow
color autopsy photos of the victim, Arlene Klehm.
The State filed a trial information charging
defendant with first-degree murder with malice aforethought and
premeditation and/or while participating in the forcible felony of
robbery of Arlene Klehm. Jurisdiction had been transferred from
juvenile court to district court on February 17, 1995. Defendant
admitted to the murder but asserted insanity and diminished capacity
On December 18, 1995, a jury found defendant guilty
of the first-degree murder of Arlene Klehm. Klehm was defendant's
seventy-three-year-old great aunt. Defendant was fifteen years old
at the time of the conviction. The district court denied defendant's
motions for judgment of acquittal. Defendant was sentenced to life
I. Sufficiency of the Evidence.
When reviewing sufficiency of the evidence, we
consider the entire record and determine whether the verdict is
supported by substantial evidence. State v. Shumpert, 554 N.W.2d 250,
253 (Iowa 1996). “ ‘Substantial evidence’ is ‘such evidence as would
convince a rational trier of fact that defendant is guilty beyond a
reasonable doubt.’ ” Id. (citing State v. Robinson, 288 N.W.2d 337,
339 (Iowa 1980)). In making this determination, we view the evidence
in the light most favorable to the verdict and accept as established
all reasonable inferences that support it. Id.; State v. Gay, 526
N.W.2d 294, 295 (Iowa 1995); State v. Geier, 484 N.W.2d 167, 170
(Iowa 1992). The weight of the evidence and credibility of witnesses
are to be determined by the jury and not the appellate court. State
v. Allen, 348 N.W.2d 243, 247 (Iowa 1984).
The facts reveal that in January 1994 defendant
became a resident of Orchard Place, a residential facility for the
psychological and emotional treatment of children, located in Des
Moines. At trial, the State presented the testimony of three
residents of Orchard Place who testified they had discussions with
defendant about running away. The record reveals defendant began
planning to elope from Orchard Place in mid-October. Jessica Wilhite
testified that during her conversations with defendant she explained
Klehm had a lot of money and she (defendant) and Tisha Versendaal
planned to kill her and take her truck and money.
Tisha Versendaal was also a resident of Orchard
Place. She testified she also had conversations with defendant about
eloping. She explained defendant planned to kill Klehm by stabbing
her and cutting her throat while she was sitting in a chair.
Further, defendant had informed her Klehm had money kept in a safe.
She explained that in the days just before defendant eloped, she
noticed defendant appeared more and more volatile and upset.
Jeanie Fox was defendant's suite mate at Orchard
Place and accompanied her at the time of the homicide. She testified
she and defendant each packed a bag and left Orchard Place together.
As they were leaving, defendant mentioned to her that she was going to
kill her aunt. That afternoon the two stopped at three different
places before proceeding to the aunt's home. One of the home's
occupants testified, after being asked to describe defendant's
demeanor that afternoon, “She seemed to know what she was doing. She
seemed to have it all down just what she was going to say and how she
was going to do it.” One of the residents of another home testified
that defendant joined in conversation, appeared to understand, and
appropriately responded to questions. The two girls eventually made
their way to the home of a friend of defendant and there obtained a
small paring knife. Defendant joked about killing Klehm before
leaving the apartment.
The two girls were dropped off on the east side of
Des Moines near Klehm's home. Fox explained that when the two
arrived at Klehm's home, a van was parked outside. The two concealed
themselves outside the house near a fence and waited for the owners of
the van to leave. While waiting, defendant repeated her plan to kill
her aunt and explained Satan had given her the power to do so.
After the van left, the two girls went up to the
house and Klehm let them in. At some point, defendant pulled Fox
into a side room and again informed her that she was going to kill her
aunt. Defendant then returned to the kitchen area where Klehm was
sitting. Thereafter, defendant struck Klehm on the head from behind
with a kettle while Klehm was seated in the kitchen. Klehm got up
and asked her what happened. Defendant then struck her in the head
again with a frying pan. Defendant then asked Fox for the paring
knife. She got on top of Klehm and attempted to slit her throat.
Defendant then got a bigger kitchen knife and proceeded to stab Klehm
in the back.
During the attack, Klehm was screaming and asked
Fox for help. Klehm also attempted to reach for a phone in the
kitchen area. Defendant told her “no” and removed the phone from the
After the attack, defendant removed her bloody
clothing. She then took some necklaces and began looking for the
keys to her aunt's safe and truck but was unable to locate them.
Defendant and Fox then left the scene. Once outside, defendant
thought she heard sirens. The two girls started running. Defendant
began to cry. The two girls then started pounding on neighborhood
doors until they found someone who called the police. After police
arrived, defendant cried and stated repeatedly she had killed her
a) Insanity Defense.
Iowa Code section 701.4 (1993) provides, in part:
A person shall not be convicted of a crime if at
the time the crime is committed the person suffers from such a disease
or deranged condition of the mind as to render the person incapable of
knowing the nature and quality of the act the person is committing or
incapable of distinguishing between right and wrong in relation to
that act. Insanity need not exist for any specific length of time
before or after the commission of the alleged criminal act.
When a defendant raises a defense of insanity, her
burden of proof is by a preponderance of the evidence. Iowa Code
§ 701.4. Defendant argues she has produced sufficient evidence to
establish she was either incapable of knowing the nature and quality
of her actions in killing Klehm or that she could not distinguish
right from wrong in relation to that act.
As it relates to defendant's insanity defense, the
State presented the testimony of psychiatrist Michael Taylor. Dr.
Taylor examined defendant and opined she was fully capable of
understanding the nature and quality of her acts and was fully capable
of distinguishing right from wrong on October 25. He explained that
he found no evidence of any diagnosable psychiatric disorder and he
believed she suffered from only a personality disorder. Dr. Taylor
noted defendant's precise planning and deception in the execution of
her plan and statements she made after the killing which reflected she
understood what she had done.
In support of her defense of insanity, defendant
directs us to the trial testimony of psychiatrist Gaylord Nordine.
Dr. Nordine testified defendant did not know the difference between
right and wrong and was incapable of understanding the nature of her
acts on October 25 because she was in a psychotic state. He opined
she had a physical disorder involving the brain's limbic system. He
also believed Prozac prescribed to defendant and her treatment at
Orchard Place may have had a “toxic” effect on her.
However, Dr. Taylor noted the various medications
defendant was then receiving, including Prozac, would not have had any
adverse consequences for her. It was also noted by Dr. Taylor that
defendant was receiving Thorazine at the time, which has the effect of
making one less inclined to be aggressive.
Dr. Nordine additionally testified as to his belief
that defendant was in a sustained affectively-centered psychotic state
by approximately the first few days of October 1994. He explained he
believed defendant experienced an “affective storm” which totally
overwhelmed all other operations of her brain, leaving her in a
dangerous limbic psychotic state before murdering Klehm. He
testified defendant's ability to carry out ministerial tasks just
prior to the killing of her aunt did not alter his opinion that she
was not sane when killing Klehm. He also explained it was not
inconsistent with defendant's mental condition that she would have
understood the nature and consequences of her actions one hour after
Defendant also directs us to the trial testimony of
Jeanie Fox. Fox testified defendant was repeating the word “Anthony”
while killing Klehm. There was also stipulated testimony at trial
that shortly thereafter defendant was experiencing hallucinations.
Defendant argues this evidence established she was legally insane at
the time of the murder.
Dr. Taylor, however, testified he was skeptical of
defendant's claims of hallucinations. Two other professionals who
had contact with defendant had also indicated skepticism of
defendant's reports of symptoms of mental disturbances, with one
noting a concern that defendant's reports might be made “to gain some
In explaining his opinions, Dr. Taylor noted the
facts regarding defendant's planning, deception, exercise of her plan
with precision, and the statements she made after which reflected she
knew what had been done. Dr. Taylor further testified the most
important information he received that formed the basis of his opinion
was the information he received from defendant. He testified:
In talking with her I found absolutely no evidence
of any type of psychiatric disorder, and in talking with her I found
absolutely no indication that she was doing anything on October 25,
1994, other than killing her aunt.
b) Insanity Defense-Jury Question.
A defendant may not be acquitted by reason of
insanity unless the evidence shows defendant suffered from a disease
or deranged condition of the mind which rendered defendant either:
(1) “incapable of knowing the nature and quality of the act”; or (2)
“incapable of distinguishing between right and wrong in relation to
that act.” Iowa Code § 701.4 (1993). The first prong concerns
whether at the time of a crime a defendant “knew what he [or she] was
doing;” the second prong concerns whether a defendant knew the act was
wrong despite awareness of what he [or she] was doing. State v.
Thomas, 219 N.W.2d 3, 6 (Iowa 1974). The jury was instructed
consistent with these principles.
The defense called witnesses who testified
favorably on those questions. Likewise, the State called expert
witnesses who gave testimony directly rebutting the defense's
evidence. When conflicting psychiatric testimony is presented to the
fact finder, sanity is “clearly an issue for the jury to decide.”
State v. Hahn, 259 N.W.2d 753, 758 (Iowa 1977); see also State v.
Lass, 228 N.W.2d 758, 768 (Iowa 1975). When the psychiatric
testimony is conflicting, the reviewing court will “not determine anew
the weight to be given trial testimony.” State v. Wheeler, 403 N.W.2d
58, 61 (Iowa App.1987).
We find there is substantial evidence in the record
to uphold the conviction of first-degree murder. In addition, we
find there is substantial evidence to support the jury's conclusion
that defendant failed to show by a preponderance of evidence she was
incapable of knowing the nature and quality of her actions or that she
was incapable of distinguishing between right and wrong in relation to
her actions at the time she killed Klehm.
We find the jury could have determined from
substantial evidence within the record that defendant did possess the
requisite specific intent necessary for a first-degree murder charge.
Resolution of conflict in the evidence is for the jury to decide.
State v. Brown, 466 N.W.2d 702, 704 (Iowa App.1990).
The jury is at liberty to believe or disbelieve the
testimony of witnesses as it chooses ․ and give such weight to the
evidence as in its judgment the evidence is entitled to receive․ The
very function of a jury is to sort out the evidence presented and
place credibility where it belongs.
Id. (citing State v. Blair, 347 N.W.2d 416, 420
We have carefully considered all of the evidentiary
concerns raised by defendant and find there is substantial evidence to
support defendant's conviction of first-degree murder.
c) Malice Aforethought and Specific Intent.
Defendant next argues the State failed to prove
beyond a reasonable doubt that she possessed the requisite malice
aforethought and specific intent for a conviction of first-degree
murder. In support of this argument, defendant again directs us to
the testimony of Dr. Nordine. She asserts, in light of this
evidence, she has shown that her mental impairment precluded her from
having malice aforethought and specific intent.
As we have found substantial evidence to support
the jury's conviction of defendant under the previous subsection, we
reject defendant's contentions in this regard and reiterate that
substantial evidence in the record exists on which the jury could
render a verdict against defendant for murder in the first degree.
II. Dispositional Consequences of Verdict.
Defendant argues the district court should have
granted her request for a jury instruction informing the jury that
should it return a verdict of not guilty by reason of insanity, the
verdict would not result in her release, but rather further
proceedings would be conducted to determine her appropriate placement.1
We review a trial court's determinations regarding
jury instructions for errors at law. Iowa R.App. P. 4; State v.
Kellogg, 542 N.W.2d 514, 516 (Iowa 1996).
We affirm the trial court's exclusion of this
instruction. The United States Supreme Court has held generally the
consequences of a not guilty by reason of insanity verdict should not
Shannon v. United States, 512 U.S. 573, 586-88, 114 S.Ct. 2419,
2428, 129 L.Ed.2d 459, 471 (1994). Additionally, our state supreme
court has expressly held the refusal of this type of instruction is
not error. See State v. Oppelt, 329 N.W.2d 17, 21 (Iowa 1983);
State v. Hamann, 285 N.W.2d 180, 186 (Iowa 1979).
The majority rule is that the jury should not be
informed of the effect of such a verdict. Two principle reasons are
given for this view. The first is that such information is
irrelevant to the jury's proper function, the determination of the
insanity issue. The second reason is that the information would
invite a compromised verdict․
[A]n instruction to the jury regarding the
post-trial disposition of a defendant found not guilty by reason of
insanity is irrelevant to the jury's proper function. It could only
serve to confuse the jury or invite it to consider improperly
defendant's post-trial disposition. A jury might improperly consider
defendant's post-trial disposition even in the absence of an
instruction on that subject. But this does not justify our aiding
and abetting it in that role. Rather, such a possibility merely
tends to illustrate the necessity of precisely informing the jury of
its proper function.
Hamann, 285 N.W.2d at 186 (citations omitted). In
light of these well-established principles, we affirm the district
court's exclusion of this instruction.
III. Jury Venire.
At trial defendant challenged the jury venire.
She requested the venire be discharged because the forty-six
prospective jurors were Caucasian.3
She asserted the venire was not a fair cross-section of the community
and as such was violative of her Sixth Amendment rights. Defendant
is biracial; one parent is Caucasian and the other is
African-American. The court overruled defendant's motion to
discharge the panel.
Defendant asserts in her brief:
There was no meaningful possibility that the lack
of representation of African-Americans from the Polk County venire
summons occurred by chance, and therefore was due to the systematic
exclusion of the group from the jury selection process.
Defendant further argues that as a result the State
bears the burden of showing a justifiable reason for the
disproportionate representation and must do so by showing that
obtaining a fair cross-section is incompatible with a significant
Because this argument raises a constitutional
issue, our review is de novo. See State v. Jones, 490 N.W.2d 787,
789 (Iowa 1992).
A person accused of a crime has a right to a speedy
and public trial by an impartial jury. U.S. Const. amend. VI; Iowa
Const., art I, § 10. This entitles the accused to a jury panel
designed to represent a fair cross-section of the community. Holland
v. Illinois, 493 U.S. 474, 477, 110 S.Ct. 803, 805-06, 107 L.Ed.2d
905, 914 (1990); Taylor v. Louisiana, 419 U.S. 522, 526-31, 95 S.Ct.
692, 696-98, 42 L.Ed.2d 690, 695-99 (1975); State v. Huffaker, 493
N.W.2d 832, 833 (Iowa 1992); State v. Brewer, 247 N.W.2d 205, 209
(Iowa 1976). However, “[a] criminal defendant's right to an
impartial jury does not guarantee representation of his [or her] race
on the jury panel.” State v. King, 225 N.W.2d 337, 342 (Iowa 1975);
Thongvanh v. State, 494 N.W.2d 679, 683 (Iowa 1993).
To establish a prima facie violation of the
requirement that a jury be representative of the community, the
applicant must show:
(1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the representation of
this group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community;
and (3) that this under-representation is due to the systematic
exclusion of the group in the jury selection process.
Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664,
668, 58 L.Ed.2d 579, 586-87 (1979); Thongvanh, 494 N.W.2d at 683;
State v. Watkins, 463 N.W.2d 411, 414 (Iowa 1990). If a prima facie
case is made, “the burden shifts to the State to demonstrate a
justifiable reason for the disproportionate representation by showing
that obtaining a fair cross-section is incompatible with a significant
State interest.” Duren, 439 U.S. at 368, 99 S.Ct. at 670-71, 58
L.Ed.2d at 589-90 (1979); Jones, 490 N.W.2d at 793.
Assuming defendant has met the first prong of the
Duren test, we next consider the remaining two prongs set forth in
Duren. See Jones, 490 N.W.2d at 793.
Under the second prong of Duren, when determining
whether the representation of African-Americans in the jury venire at
hand was fair and reasonable in relation to the number of
African-Americans in the community, we utilize an absolute disparity
calculation. See Huffaker, 493 N.W.2d at 833. In making this
calculation, we consider only the distinctive group involved. Id.
Absolute disparity is determined by taking the
percentage of the distinct group in the population and subtracting
from it the percentage of that group represented in the jury panel.4
See United States v. Sanchez-Lopez, 879 F.2d 541, 547 (9th Cir.1989);
United States v. Rodriguez, 588 F.2d 1003, 1007 (5th Cir.1979);
Jones, 490 N.W.2d at 793. A numerical disparity alone does not
violate any of defendant's rights and thus will not support a
challenge to the jury selection process utilized in Polk County.
United States v. Garcia, 991 F.2d 489, 492 (8th Cir.1993). We need
not determine the significance of disparity as defendant has failed to
establish that any alleged disparity in the representation of
African-Americans within Polk County venires is due to systematic
exclusion in the jury selection process as required by the third prong
Under the third prong of the Duren test, defendant
is required to show that African-Americans are under-represented in
the jury selection process due to systematic exclusion. Duren, 439
U.S. at 364, 99 S.Ct. at 669, 58 L.Ed.2d at 586-87; see Garcia, 991
F.2d at 491. To make this showing, defendant must show the exclusion
is “inherent in the particular jury-selection process utilized.”
Duren, 439 U.S. at 366, 99 S.Ct. at 669, 58 L.Ed.2d at 588. We find
it significant that defendant failed to present evidence to the trial
court regarding the procedures utilized in Polk County for drawing
jury venires. Defendant also failed to provide any statistical
evidence to substantiate her claim of the under-representation of
African-Americans in Polk County jury venires, or analysis as to the
probability that under-representation, if shown, did not occur in this
instance by chance. Because defendant has failed to meet the third
prong of the Duren test, we find she has not established a violation
of her Sixth Amendment rights.
IV. Admission of Autopsy Photographs. During the
testimony of Polk County Medical Examiner Dr. Francis L. Garrity, the
State introduced six color photographs of Klehm's autopsy. Garrity
testified regarding five fatal stab wounds to Klehm's back and other
wounds on her hands and head. The autopsy photographs were quite
graphic in nature. They depict the stab wounds on Klehm's back, the
wounds on her hands, and bruises and lacerations on her forehead,
face, and on the back of her head. Dr. Garrity utilized the
photographs when testifying about the autopsy and the cause of death.
Defendant argues the trial court abused its
discretion in admitting these photographs. She points out she has
essentially admitted to the commission of the homicide and
acknowledged she struck and stabbed Klehm. She contends because the
jury was not asked to determine who killed Klehm or how the killing
was accomplished, the prejudicial effect of the photographs outweighed
any probative value they may have had.
We disagree. Autopsy photographs are admissible
to illustrate medical testimony and demonstrate viciousness in
connection with the State's claim of malice. State v. Plowman, 386
N.W.2d 546 (Iowa App.1986).
The test for admitting photographs is two-fold:
“(1) the evidence must be relevant and (2) if the evidence is
relevant the trial court must determine whether the probative value of
the exhibits outweighs the prejudice which would be caused by their
admission into evidence.”
State v. Brown, 397 N.W.2d 689, 700 (Iowa 1986)
(citing State v. Oliver, 341 N.W.2d 25, 33 (Iowa 1983)).
The autopsy photographs simply embellished the
graphic picture that already had been drawn, both verbally and
visually, for the jury.
That the autopsy photographs were themselves
somewhat gruesome does not render them inadmissible. Murder is often
a gruesome affair giving rise to equally gruesome evidence. That
alone is not sufficient reason to exclude that evidence.
Id. (citations omitted).
We find the photographs were relevant as they
illustrated the medical testimony and made it comprehensible for the
jury. They also demonstrated the viciousness of the crime in support
of the State's claim of malice. Furthermore, the probative value of
the photographs was not outweighed by their prejudicial effect. We
find the trial court did not abuse its discretion in admitting the
color autopsy photographs.
following request was made of the district court by defense
counsel:Your honor ․ I would request the court give an instruction to
the general effect that if the jury enters a verdict of not guilty by
reason of insanity, it does not mean that the defendant goes free but
rather that further proceedings are had in these courts to determine
the appropriate placement of the defendant.
court did note, however, it was not imposing an “absolute prohibition”
on such instructions. The court indicated that in limited
circumstances it may be appropriate to so instruct the jury; such as
when a prosecutor stated in the jury's presence the defendant would
“go free” if found not guilty by reason of insanity. Shannon v.
UnitedStates, 512 U.S. 573, 586-88, 114 S.Ct. 2419, 2428, 129 L.Ed.2d
459, 471 (1994). We find the present case is not one which warrants
the invocation of any such exception.
is some indication in the record not all jurors indicated their race
on the jury questionnaire. However, the questionnaires were not made
part of the record by either party. Furthermore, there is some
indication one juror may have been of mixed ethnic background, but
there is no indication the juror's heritage was African-American.
considering defendant's argument under the second prong of Duren v.
Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 586-87
(1979), we note African-Americans represent 4.52% of the total
population of Polk County according to the 1990 census. We take
judicial notice of these figures as defendant provided no evidence of
the African-American population of Polk County to the trial court.
See State v. Huffaker, 493 N.W.2d 832, 833-34 (Iowa 1992). Thus, the
absolute disparity between African-Americans in Polk County (4.52%)
and African-Americans on the jury panel at trial (0%) would be 4.52%.
HABHAB, Chief Judge.
Kristina Fetters, 27, is seen at the Mitchellville
Women’s Correctional Facility
in Mitchellville in this photo from
(AP photo/Holly McQueen/Des Moines Register)