IN THE COURT OF APPEALS OF IOWA

No. 18-0006

Filed September 12, 2018

MIRANDA PETITHORY-METCALF,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

Applicant appeals the district court decision denying her application for 

postconviction relief from her conviction for second-degree murder. AFFIRMED.

Gordon E. Allen, Johnston, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant 

Attorney General, for appellee State.

Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

Miranda Petithory-Metcalf (Petithory) appeals the district court decision 

denying her application for postconviction relief from her conviction for seconddegree murder. We conclude Petithory has not shown she received ineffective 

assistance due to defense counsel’s strategic decision to withdraw a motion to 

suppress a videotape. We affirm the district court’s decision denying Petithory’s 

application for postconviction relief.

I. Background Facts & Proceedings

On November 28, 2013, Juan Carlos Chavarria got drunk and broke some 

bottles in the apartment he shared with Irvan Alfaro-Hernandez (Alfaro). Petithory, 

who was a friend of Alfaro’s, came into the apartment and got mad, stating, 

“nobody disrespect this homie’s apartment.” Petithory confronted Chavarria and 

they began shouting at each other. Petithory told Chavarria, “You don’t know me 

and you don’t know what I’m capable of.” Petithory stabbed Chavarria with a 

switch blade in front of several witnesses and he died as a result.

Petithory was given a ride to the police station in the vehicle of Officer David 

Cerne. A videotape (Videotape A) was made of Petithory as she sat in the back 

of the squad car. She told Officer Cerne she did not see what happened and was 

in the bedroom looking for her car keys at the time. She was crying during the 

drive. At the police station, Petithory was placed in an interview room by herself, 

where another videotape was made (Videotape B). She made several telephone 

calls.

Petithory was charged with first-degree murder for the stabbing death of 

Chavarria. She raised defenses of justification and intoxication. Petithory filed a 
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motion to suppress the two videotapes. The district court ruled Videotape A was 

not admissible because Petithory had not been informed of her Miranda rights at 

the time the statements were made. The court ruled the majority of Videotape B 

was admissible. During the trial, Petithory’s two defense attorneys decided to 

withdraw the motion to suppress Videotape A and both videotapes were shown to 

the jury.

Petithory was convicted of murder in the second decree, in violation of Iowa 

Code section 707.3 (2013), a class “B” felony. Petithory’s conviction was affirmed 

on appeal. State v. Petithory-Metcalf, No. 14-1478, 2016 WL 530241, at *10 (Iowa 

Ct. App. Feb. 10, 2016). The issue of whether Petithory received ineffective 

assistance when defense counsel withdrew the motion to suppress was preserved 

for possible postconviction proceedings. Id.

Petithory filed an application for postconviction relief on February 17, 2017, 

claiming she received ineffective assistance of counsel based on the withdrawal 

of the motion to suppress.

In a deposition, one of the defense attorneys stated the motion to suppress 

was withdrawn because the court had ruled Videotape B was admissible. The 

attorney testified, “The first statement that Miranda gave when she was in the 

police car, while she’s crying and seems more sympathetic to the jury, the problem 

with that video [Videotape A] is she’s lying about what happened.” Concerning 

Videotape B, however, she stated Petithory seemed to be “a despicable person,” 

“very unflattering,” “very aggressive,” and “used a lot of profanity.” In Videotape B, 

Petithory “was just very aggressive and very confrontational. And she was not a 

likeable person.” Defense counsel also testified:
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So then our strategy was—which we discussed with 

Miranda—well, since the ugly part of you is coming in, we need to 

show another part of you that at least shows you in a somewhat 

favorable light, and that’s when you’re in the back of the police car.

But even though she’s lying, at least she’s crying, and she’s 

upset, and hopefully she will be more sympathetic to the jurors. So 

we wanted the jurors to see another side.

If the tape that just shows her in the police station was the only 

tape that they saw, then that was the one that showed her in the most 

unfavorable light.

So it was a strategic decision that we made to at least let them 

see her in a more favorable light and to be crying.

Petithory’s other defense counsel agreed with these statements. She 

testified about the decision to waive the motion to suppress as to Videotape A:

That then anything we could do to make her seem more 

sympathetic to the jury. When she was in Officer Cerne’s car, 

although she was making statements that were untrue, she was very 

emotionally distraught. She was crying. She was acting more in line 

with what you would think someone who had been in a situation 

where someone had just been killed would act.

Defense counsel stated Petithory agreed to the strategy of withdrawing the motion 

to suppress.

The district court denied Petithory’s application for postconviction relief. 

The court found, “The waiver of suppression was a tactical choice to allow 

[Petithory] to appear more sympathetic to the jury.” The court determined defense 

counsel engaged in “a legitimate strategic action.” The court also found Petithory 

was not prejudiced by the decision to show Videotape A to the jury—she made 

untruthful statements in both videos, so the impeachment value of Videotape A 

was “mostly duplicative of the station interview.” Petithory now appeals the district 

court’s decision.
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II. Standard of Review

We conduct a de novo review of claims of ineffective assistance of counsel. 

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of 

ineffective assistance of counsel, an applicant must prove (1) counsel failed to 

perform an essential duty and (2) prejudice resulted to the extent it denied the 

defendant a fair trial. Id. An applicant’s failure to prove either element by a 

preponderance of the evidence is fatal to a claim of ineffective assistance. State 

v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

III. Ineffective Assistance

Petithory claims she received ineffective assistance because defense 

counsel withdrew her previously successful motion to suppress Videotape A. She 

states the jury was permitted to hear statements made in violation of her 

constitutional rights because she had not been informed of her right against selfincrimination or her right to counsel before she made the statements. Petithory

claims she was prejudiced by the decision to withdraw the motion to suppress 

Videotape A because it contained some untruthful statements. She states her 

defense—claiming she acted in self-defense—depended upon her credibility and 

the untrue statements in Videotape A weakened her credibility.

“Crafting a trial strategy is inherently difficult, so we ‘must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action “might be considered sound 

trial strategy.”’” State v. Harrison, 914 N.W.2d 178, 206 (Iowa 2018) (citations
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omitted). In order to show ineffective assistance, an applicant must overcome this 

strong presumption. State v. Coleman, 907 N.W.2d 124, 141 (Iowa 2018).

“While miscalculated trial strategies or mistakes in judgment ‘normally do 

not rise to the level of ineffective assistance of counsel,’ ‘strategic decisions made 

after a “less than complete investigation” must be based on reasonable 

professional judgments which support the particular level of investigation 

conducted.’” State v. Virgil, 895 N.W.2d 873, 879 (Iowa 2017) (citations omitted). 

Where there has been a thorough investigation of the law and facts, however, an 

attorney’s strategic decisions “are virtually unchallengeable.” State v. Fountain, 

786 N.W.2d 260, 266 (Iowa 2010). “[W]e require more than a showing that trial 

strategy backfired or that another attorney would have prepared and tried the case 

somewhat differently.” State v. Gines, 844 N.W.2d 437, 440–41 (Iowa 2014)

(citation omitted).

We find Petithory has not overcome the strong presumption the conduct of 

her trial counsel “falls within the wide range of reasonable professional assistance.” 

See Harrison, 914 N.W.2d at 206. The challenged action—withdrawing the motion 

to suppress Videotape A—could be considered sound trial strategy. See id. The 

district court ruled Videotape B was admissible. In this video, Petithory told several 

lies as she made telephone calls and exhibited a demeanor described as “very 

aggressive and very confrontational.” In order to counteract the evidence in 

Videotape B, defense counsel made the decision to withdraw their opposition to 

the presentation of Videotape A, which also showed Petithory making untrue 

statements. Defense counsel made the strategic decision the presentation of 

Videotape A would not be unduly prejudicial and might be helpful because it 
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showed Petithory exhibiting a completely different demeanor. In order to support 

Petithory’s claim she killed Chavarria in self-defense, her trial counsel wanted to 

show her in a more sympathetic light and felt this could be accomplished by 

showing Videotape A to the jury. A strategic decision of this nature is “virtually 

unchallengeable.” See Fountain, 786 N.W.2d at 266.

We conclude Petithory has not shown she received ineffective assistance 

due to defense counsel’s strategic decision to withdraw the motion to suppress 

Videotape A. We affirm the district court’s decision denying Petithory’s application 

for postconviction relief.

AFFIRMED.