Brian Scott Ketelsen v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-0241
Filed December 18, 2024

BRIAN SCOTT KETELSEN,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, David F. Staudt, Judge.

An applicant appeals the denial of his application for postconviction relief.

AFFIRMED.

Mark C. Meyer, Iowa City, for appellant.

Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee State.

Considered by Greer, P.J., Langholz, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
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DANILSON, Senior Judge.

In 1993, Brian Ketelsen shot and killed Gregory Scott Goodyear during a

scuffle outside of a tavern. Ketelsen claimed he had pulled out his gun in self-

defense after Goodyear attacked his friend and then turned toward him; he claimed

Goodyear kicked him in the chest causing him to accidentally discharge the

weapon and shoot Goodyear. A jury did not buy Ketelsen’s story and convicted

him of first-degree murder in 1994. Ketelsen was unsuccessful in his direct appeal,

and he filed an application for postconviction relief (PCR) in 1997. After more than

two decades of motion practice, the PCR court held a trial on the matter in

January 2022 and issued a ruling denying Ketelsen’s application a year later.

Ketelsen filed a motion to reconsider, which the PCR court denied. Ketelsen

appeals, claiming his trial counsel was ineffective in a number of respects, some

of which resulted in structural error; juror misconduct; and that the PCR court

incorrectly denied his claims based on his lack of credibility when his claims are

not solely dependent on his credibility. We affirm.

I. Ineffective Assistance

We begin by addressing Ketelsen’s claim that he received ineffective

assistance of trial counsel. We typically review PCR rulings for legal error. Doss

v. State, 961 N.W.2d 701, 709 (Iowa 2021). However, because ineffective-

assistance claims are of a constitutional dimension, our review of these claims is

de novo. Id. To establish a claim of ineffective assistance, an applicant must

establish (1) that counsel breached an essential duty by a preponderance of the

evidence and (2) that prejudice resulted. See Strickland v. Washington, 466

U.S. 668, 687 (1984). With respect to the first element, we presume counsel
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performed competently. Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

Counsel’s performance is measured against “the standard of a reasonably

competent practitioner.” Id. (citation omitted). “We assess counsel’s performance

objectively by determining whether it was reasonable, under prevailing

professional norms, considering all the circumstances.” Id. (cleaned up). With

respect to the second element, an applicant must show that prejudice resulted from

counsel’s failure to perform an essential duty. See id. To do so, the applicant

“need only show that the probability of a different result is sufficient to undermine

confidence in the outcome.” State v. Clay, 824 N.W.2d 488, 496 (Iowa 2012)

(quoting State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008)). However, if an

applicant cannot establish either element, then we may affirm the district court

without considering the other element. See Anfinson v. State, 758 N.W.2d 496,

499 (Iowa 2008).

Ketelsen contends that trial counsel failed to adequately investigate the

facts of his case and present an effective defense. He complains that counsel

advanced the theory that Ketelsen accidentally shot Goodyear during opening

arguments but then requested a jury instruction on self-defense. Ketelsen

contends these two claims, that the shooting was accidental or done in self-

defense, are contradictory and “indicates that counsel had not developed a

consistent theory of defense.” We disagree and think the presentation of multiple

theories of the case was done to provide the jury with multiple plausible alternative

theories contrary to the State’s theory.

Ketelsen also claims that trial counsel failed to adequately prepare for trial

by not retaining a ballistics expert to support his claim that the shooting was
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accidental. But defense counsel explained in a deposition that they 1 “didn’t see

any issue where an expert would necessarily benefit” the case. So, counsel

considered retaining experts but thought it would not help the case. While we

generally do not second-guess trial counsel’s strategic decisions, see Ledezma v.

State, 626 N.W.2d 134, 142 (Iowa 2001) (“[W]e avoid second-guessing and

hindsight.”), we agree with trial counsel that a ballistics expert would not have been

particularly helpful to Ketelsen in this case. The expert retained in this PCR

proceeding completed a forensic analysis and reconstruction of the shooting that

determined Ketelsen’s version of events, that he accidentally pulled the trigger as

he was kicked, was not “forensically supported.”2 Moreover, when deposed, the

expert explained,

Typically with an unintended discharge, it’s a very rare case that you
can diagnos[e] that it’s likely that it did occur simply because there’s
no forensic difference in—a gun behaves the same way whether you
intended to pull the trigger or you didn’t intend to pull the trigger. It
becomes what was going on in the person’s mind, what was their
intent.

As a ballistic expert would not be able to provide meaningful insight on whether

Ketelsen accidentally discharged the gun, counsel was not ineffective for deciding

against retaining such an expert.

Next, Ketelsen complains about defense counsel’s failure to consult an

expert about the various drugs and alcohol in Goodyear’s system at the time of the

1 Ketelsen was represented by two defense attorneys at his criminal trial.
2 The analysis concluded, “A kick in the chest by Goodyear, biomechanically,
would move Goodyear forward and Ketelsen back (opposite directions). This
action is in conflict with the wound dynamics and is not forensically supported.”
The analysis did support a conclusion that Goodyear was shot in the chest
after Goodyear kicked Ketelsen in the chest “when a likely recover position of both
individuals is considered and aligned with the wound path.”
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shooting. Specifically, he complains that counsel should have retained an expert

to testify that cocaine, which was in Goodyear’s system, was a stimulant rather

than a nervous-system depressant after a State expert testified to the opposite.

Ketelsen contends this testimony would have established that Goodyear was the

initial aggressor. But the record was already replete with evidence that Goodyear

was drunk, high on cocaine, and the initial aggressor. Even assuming counsel

should have called an expert to clarify that cocaine is a stimulant, no prejudice

resulted.

Moving on, Ketelsen contends counsel was ineffective for failing “to

impeach key witnesses whose testimony at trial was at variance with statements

they made to the police when first questioned, or later when they were deposed.”

He claims witnesses changed their recollection of the shooting, specifically when

Goodyear stepped back from Ketelsen. But the State points out that the witnesses’

prior statements were silent on when Goodyear stepped back, so they were not

contradictory when they added the detail of when Goodyear stepped back (before

Ketelsen shot him) at trial.

Ketelsen also complains that counsel should have impeached a witness

who initially reported that Goodyear “kicked” Ketelsen but then testified in the

affirmative when asked, “. . . then [Gregory] Scott Goodyear reached and kicked

out, and then it was the second shot that was fired into his chest?” He claims this

suggests that Goodyear never made contact with him. But that same witness

provided additional testimony that Goodyear kicked Ketelsen, consistent with his

prior statement.
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Ketelsen next complains about a witness’s testimony changing to suggest

that Ketelsen’s friend was the initial aggressor rather than Goodyear. He also

complains that counsel never exploited two witnesses’ inability to later identify him

as the shooter, contending doing so would demonstrate how poor a vantage point

they had when they witnessed the shooting. But the big problem with Ketelsen’s

complaints is that even if counsel had performed as he wished and went after the

credibility of these witnesses, we do not believe it would have had any impact on

the outcome of the proceedings. None of these differences would have

meaningfully bolstered Ketelsen’s claim that the shooting was accidental.

Next, Ketelsen claims that the counsel was ineffective for failing to object to

or seek an amendment to jury instruction twenty-one, which stated:

If a person has the opportunity to deliberate and uses a
dangerous weapon against another resulting in death, you may, but
are not required to, infer that the weapon was used with malice,
premeditation and specific intent to kill.
Malice aforethought may be inferred from the defendant’s use
of a dangerous weapon.

Ketelsen claims defense counsel should have anticipated the supreme court’s

opinion in State v. Green, 896 N.W.2d 770, 780 (Iowa 2017), and argued that

instruction twenty-one was not appropriate because he claimed the shooting was

accidental. Ketelsen misreads Green. The instruction is not improper simply

because Ketelsen claimed the shooting was accidental, particularly because the

State presented evidence that his conduct was intentional. See Green, 896

N.W.2d at 781 (“The instructions on malice aforethought and a dangerous weapon

accurately stated the law, and there was substantial evidence presented at trial to

support them.”). The instruction simply permitted the jury to infer malice,
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premeditation, and specific intent; it did not require the jury to make such an

inference. See id. As the instruction correctly stated the law, counsel had no duty

to object to it.

II. Structural Error

Ketelsen claims that counsel was deficient to such an extent during closing

arguments that it resulted in structural error. “Structural errors are not merely

errors in a legal proceeding, but errors ‘affecting the framework within which the

trial proceeds.’” Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011) (quoting Arizona

v. Fulminante, 499 U.S. 279, 310 (1991)).

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

Id. In these instances, no demonstration of prejudice is required because the

judicial proceeding itself is presumed unreliable due to the structural error. Id.

Ketelsen claims structural error resulted from trial counsel’s failure to ensure

that closing arguments were reported and then “by inviting the jury to find [him]

guilty of murder in the second degree” during closing arguments. Ketelsen points

to nothing that required closing arguments to be recorded at the time of trial in

1993. Moreover, he provides nothing other than his own testimony to claim that

defense counsel invited the jury to find him guilty of second-degree murder during

closing arguments. The PCR court found Ketelsen’s credibility to be suspect; we

defer to that credibility finding. See Ledezma, 626 N.W.2d at 141. And we think it

is more likely that defense counsel attempted to argue that there was no proof of
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premeditation so the jury should, at the very most, consider second-degree murder

and then went on to argue down each lesser-included offense. This closing

argument strategy is common in first-degree murder cases to turn the jury’s

attention away from the first-degree charge and then work through the weaknesses

of each lesser-included offense to show that the defendant should be found not

guilty. We are not convinced of Ketelsen’s claim that trial counsel argued for his

conviction of second-degree murder, and thus, Ketelsen cannot establish

structural error.

III. Juror Misconduct

Ketelsen contends that juror misconduct denied him a fair trial as

guaranteed under the state and federal constitutions. He points to statements from

a juror about the jury only being provided one set of instructions and the jury not

reading the instructions as a whole and that another juror speculated about how

much prison time Ketelsen would serve if convicted of second-degree murder.

With respect to his claim regarding the limited copies of the jury instructions

provided to the jury and that the jury did not read the instructions as a whole,

Ketelsen is not entitled to relief as his complaint relates to the internal workings of

the jury deliberation room, which we will not question.3 See State v. Christensen,

3 We also note that that Ketelsen does not explain why he did not raise his claim

regarding the number of copies of the jury instructions or the jury’s failure to read
the instructions as a whole in his direct appeal as it does not appear that he is
claiming appellate counsel was ineffective for not raising the claim. So, we are
doubtful of his ability to raise the claim now. See Osborn v. State, 573 N.W.2d 917,
921 (Iowa 1998) (recognizing that PCR actions are “not a means for relitigating
claims that were or should have been properly presented” in a prior action absent
a showing of sufficient reason as to why the claim was not previously presented
and resulting prejudice); see also Iowa Code § 822.8 (1997).
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929 N.W.2d 646, 666 (Iowa 2019) (recognizing we may not question the

deliberative process unless there is evidence of extraneous influences on the

deliberations).

With respect to the juror’s speculation about how much prison time Ketelsen

would serve if convicted of second-degree murder, this court already squarely

addressed that claim of juror misconduct in Ketelsen’s direct appeal. See State v.

Ketelsen, No. 5-529/94-1292, at *16–17 (Iowa Ct. App. Dec. 22, 1995).4 As such,

this claim cannot serve as a ground for PCR.5 See Iowa Code § 822.8 (prohibiting

a PCR applicant from raising a claim previously finally adjudicated in a prior

proceeding). Moreover, we caution that if this alleged comment by a juror is

misconduct, it would lead us down an unending road to review all comments made

by fellow jurors. Doing so would invade the jury’s privacy, which “is essential to

public confidence in the verdict,” and frustrate our interest in achieving finality in

each proceeding. See Christensen, 929 N.W.2d at 666.

IV. Fundamental Premise

Finally, Ketelsen contends that the PCR court’s conclusions were based on

the fundamental premise that he was not credible without consideration of other

evidence he presented. He argues that reports from his expert witnesses stand

4 This opinion is not available on Westlaw.
5 To the extent Ketelsen argues that the discussion of Remmer v. United States,

347 U.S. 227 (1954), in Christensen, 929 N.W.2d at 678, “set forth a new rule of
law” that requires retroactive application despite our prior ruling on direct appeal,
he is mistaken. Christensen did not create a new rule of law, and its discussion of
what party bears the burden of proof is only relevant when determining whether
extraneous information known by the jury resulted in prejudice. 929 N.W.2d at
678. So, it is not applicable here where the claim relates to a statement made by
a juror speculating on potential sentences.
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on their own and entitle him to relief. But those reports did not draw any definitive

conclusions that would warrant relief. And some of his claims, like his structural

error claim, relied only on his testimony, which the PCR court was free to find not

credible. Some of his ineffective-assistance claims failed because he could not

establish Strickland prejudice and had nothing to do with his credibility. In short,

the PCR court’s conclusions were not based on a faulty fundamental premise.

V. Conclusion

Ketelsen cannot establish any claims of ineffective assistance of counsel,

nor can he establish structural error. His juror misconduct claims fail as he does

not allege any extraneous influence on the jury. And the PCR court’s conclusions

were not based on a faulty fundamental premise. We have given due

consideration to all Ketelsen’s appellate arguments, including those not specifically

discussed herein, and find them to be without merit. We affirm the PCR court’s

denial of relief.

AFFIRMED.