IN THE COURT OF APPEALS OF IOWA

No. 14-1409

Filed August 5, 2015

ROBERT MACLAIRD,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Warren County, Gregory A. Hulse, 

Judge.

Robert MacLaird appeals from the denial of his application for 

postconviction relief. AFFIRMED. 

Amanda Demichelis of Demichelis Law Firm, P.C., Chariton, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney 

General, John Criswell, County Attorney, and Douglas Eicholz, Assistant County 

Attorney, for appellee State.

Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, C.J.

Robert MacLaird appeals from the denial of his application for 

postconviction relief. Because MacLaird failed to prove the requisite prejudice, 

his claims of ineffective assistance of trial and appellate counsel fail. We affirm.

I. Background Facts and Proceedings.

Criminal trial. We have previously stated the facts leading to MacLaird’s 

conviction:

On August 7, 2007, while his wife, Cheryl MacLaird, was at 

work, Robert MacLaird (MacLaird) and his girlfriend, Diana 

Graham, went to the home of MacLaird’s friend Dennis Holt in 

Beech, Iowa. Although Holt lived only a few houses away from 

MacLaird, they drove to Holt’s house. MacLaird and Graham 

assisted Holt in counting cans to take to the redemption center. 

The three then left in Holt’s vehicle to drive to Indianola, where they 

redeemed the cans, and then bought beer at a Hy–Vee Store. 

MacLaird, Graham, and Holt all drank the beer as they drove 

through Warren County.

After they returned to Holt’s house, Holt suggested they go 

swimming at a nearby pond. MacLaird returned to his house to get 

some shorts. The three then drove to Pleasantville to get more 

beer, before going to the swimming pond. They agreed to go 

swimming in their underwear. After Holt made a comment noticing 

that Graham’s panties were transparent when wet, Graham and 

MacLaird exchanged underwear. They spent several hours 

swimming and drinking.

Eventually a thunderstorm broke out. MacLaird became 

impatient because Graham waited for Holt before getting out of the 

water. Graham stated MacLaird threw her clothes at her, and a 

bottle that was in them hit her on the head. MacLaird was unable 

to find his shorts before they left. As they stopped at Holt’s house, 

MacLaird got out of the car and walked home, wearing only 

Graham’s panties. Graham went into Holt’s home.

Cheryl let MacLaird into their home. He changed into dry 

clothes and told Cheryl “they wouldn’t let him have his belongings”

and stated he wanted to call the state patrol. MacLaird asked 

Cheryl to drive him to Holt’s house so he could get his keys, cell 

phone, and car. Cheryl testified, “It could be assumed he was 

angry, yes.” She described MacLaird as “Frustrated. Agitated.” . . .

MacLaird took a black powder revolver, a modern replica of an 

antique gun, with him.
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MacLaird knocked on Holt’s door, and Holt answered the 

door carrying an eight-inch survival knife. MacLaird repeatedly 

asked for his car keys and cell phone, and Holt kept telling him to 

go home. Cheryl got out of the car and came up to Holt’s porch as 

Holt came out of the door. Holt raised up the knife, and told Cheryl 

“get your old man out of here.” Cheryl said, “I’ll get Bob out of 

here,” and began trying to reason with him. In the meantime, 

MacLaird had obtained the revolver from Cheryl’s car. MacLaird 

shot the revolver. [The percussion cap, used to ignite the powder 

used in the revolver, “went off,” but the powder did not ignite and 

discharge the bullet that was in the cylinder. According to 

MacLaird’s testimony, he had in the past regularly used the blackpowder revolver for recreational shooting. He further testified, 

however, that when shooting the revolver in 1994 the percussion 

cap on the one cylinder that remained loaded with powder and a 

bullet “went off” but the revolver did not fire, he replaced the cap, 

and he had not subsequently shot the revolver.]

Holt said, “I can’t believe you just did that.” MacLaird replied 

that he would not shoot Holt. Holt came up to MacLaird and put the 

knife to his throat. MacLaird struck Holt on the head with the heavy 

revolver about three to five times. Cheryl told MacLaird to stop, 

and he did. Holt fell to the ground, bleeding profusely from the 

head. Graham came out of Holt’s house as he lay on the ground. 

Graham attempted to assist Holt. MacLaird came over and said, 

“Get away from him. He’s my friend.” Graham yelled at MacLaird. 

Cheryl told him his keys were in his car. MacLaird got in his car 

and drove home. Cheryl called 911.

After law enforcement officials and paramedics arrived, 

MacLaird returned from his home to turn himself in. MacLaird told 

a deputy sheriff he had gone to Holt’s house “to confront Diana and 

Dennis about what they were doing, about how it wasn’t right, and 

he wanted to run away with Diana and make a new life.” Officers 

found MacLaird’s cell phone in his car. Holt died of bluntforce injuries to the head.

MacLaird was charged with murder in the first degree, willful 

injury resulting in serious injury, and burglary in the first degree. 

MacLaird filed notice of his intent to rely on the defense of selfdefense, or justification, at trial. MacLaird testified that he shot the 

revolver at the ground, and he was hoping to scare Holt off. He 

said Holt threatened to slit his gullet like a fish, and that he pushed 

the knife at his throat. MacLaird stated he thought Holt was killing 

him, and he hit Holt with the revolver. MacLaird sustained no 

injuries in the incident.

State v. MacLaird, No. 08-1559, 2009 WL 2960408, at *1-2 (Iowa Ct. App. 

Sept. 2, 2009). MacLaird was convicted of second-degree murder. 
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Direct appeal. On direct appeal from his conviction, MacLaird claimed his 

trial counsel were ineffective in failing to move for judgment of acquittal on 

grounds there was insufficient evidence to establish he acted without justification. 

This court rejected that claim, ruling:

MacLaird initiated the incident by going to Holt’s home while 

he was angry and bringing a loaded revolver with him. He was 

asked multiple times to leave by Holt and Cheryl, but continued to 

demand the return of his car keys and cell phone. MacLaird had an 

alternative course of action available to him in that he could have

retreated or left the area at any time during this discussion. Instead 

he continued the incident by returning to Cheryl’s car to get the 

revolver he brought to Holt’s home. MacLaird admitted that as he 

came forward with the revolver he pulled it up to show Holt, and 

Holt “went to head towards—in the house.” Thus, as Holt was 

retreating, MacLaird further escalated the incident by shooting the 

revolver.

We conclude that even if defense counsel had argued in the 

motion for judgment of acquittal that there was insufficient evidence 

to establish that he had acted without justification, the district court 

would have denied the motion because the State presented 

sufficient evidence to show that the defendant acted without 

justification.

Id. at *3. We also rejected another claim of constitutionally-defective counsel on 

direct appeal, which was grounded on MacLaird’s contention there was 

insufficient evidence of malice aforethought. See id. at *4. We noted, “MacLaird 

brought a loaded revolver to Holt’s home, which permits a presumption of malice 

aforethought. Id. We affirmed his conviction for second-degree murder, and the 

supreme court denied further review on October 30, 2009. 

Postconviction application. MacLaird then filed his present application for 

postconviction relief in which he asserts trial and appellate counsel were 

ineffective in numerous respects. 
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Upon trial on the application, the deposition testimony of criminal trial 

attorney Marc Elcock and of appellate attorney David Adams was admitted into 

evidence. MacLaird’s lead counsel at trial, D. William Thomas, testified. 

MacLaird testified as well. The district court filed an extensive written ruling, 

addressing each of MacLaird’s twenty claims of ineffective assistance of counsel 

and rejecting several. However, the postconviction court found Thomas should 

have filed a motion in limine; should have cross-examined Warren County 

Deputy Tim Cook; should have objected to irrelevant and prejudicial evidence of 

drug paraphernalia and photographs of digital scales; should have objected to 

the admissibility of nude photographs of Graham (though acknowledging whether 

prejudicial effect outweighed relevance was for the court to decide); and failed to 

timely object to Cheryl’s testimony that when MacLaird drank too much, he 

became violent. Nonetheless, the postconviction court determined that despite 

these deficiencies of counsel’s performance, MacLaird failed to establish the 

prejudice necessary to prove a claim of ineffective assistance of counsel.

MacLaird appeals, contending the postconviction court erred in finding 

overwhelming evidence of guilt. He asserts counsel was ineffective in other 

respects, and the cumulative failures require a new trial. 

II. Scope and Standard of Review. 

Because ineffective-assistance-of-counsel claims are grounded in the 

Sixth Amendment to the United States Constitution, our review is de novo. State 

v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). 
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III. Discussion.

Ineffective assistance of counsel constitutes deficient 

performance by counsel resulting in prejudice, with performance 

being measured against an objective standard of reasonableness,

under prevailing professional norms. Not every claim of ineffective 

assistance, even a meritorious one, requires reversal of a criminal 

conviction. To prevail on a claim of ineffective assistance of 

counsel, a claimant must satisfy the Strickland test by showing 

(1) counsel failed to perform an essential duty; and (2) prejudice 

resulted. Unless a defendant makes both showings, it cannot be 

said that the conviction resulted from a breakdown in the adversary 

process that renders the result unreliable.

Id. at 494-95 (alterations, citations, and internal quotation marks omitted).

“Prejudice exists where the claimant proves by a reasonable probability 

that, but for the counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 496 (citations and internal quotation marks 

omitted). We must determine whether MacLaird has shown “that the probability 

of a different result is sufficient to undermine confidence in the outcome.” Id. 

Here, the postconviction court determined MacLaird did not and could not 

establish the requisite prejudice because there was overwhelming evidence that 

MacLaird did not act with justification. As noted by the postconviction court, the 

State can meet its burden to prove the defendant acted without justification by 

proving one of the following: (1) the defendant started or continued the incident 

which resulted in injury; (2) an alternative course of action was available to the 

defendant; (3) the defendant did not believe he was in imminent danger of death 

or injury and the use of force was not necessary to save the defendant; (4) the 

defendant did not have reasonable grounds for the belief; or (5) the force used by 

the defendant was unreasonable. See State v. Thornton, 498 N.W.2d 670, 673 

(Iowa 1993). The postconviction court found the evidence
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not only sufficient but overwhelming that [MacLaird] went [to Holt’s]

to do physical harm to the victim. The evidence is uncontested that 

[MacLaird] went to Holt’s house with the gun. It is also uncontested 

that he had numerous chances to leave the premises and that he 

had shot his gun thus provoking Holt to brandish the knife.

 

We agree. Iowa law allows the presumption that a person who uses a deadly 

weapon acts with malice aforethought. State v. Reeves, 670 N.W.2d 199, 207 

(Iowa 2003). The presumption may be rebutted by evidence the killing was 

accidental or under provocation. Id.; see also State v. McNamara, 104 N.W.2d 

568, 572 (Iowa 1960) (holding that presumption of malice aforethought arises 

from the use of a deadly weapon “unless there is an explanation to the contrary 

showing a legal excuse such as self-defense”). MacLaird’s testimony at trial did 

not convince the jury the killing was justified, and his additional testimony at 

postconviction does not convince us otherwise:

Q. Besides yourself, and her testimony is that you struck Mr. 

Holt three times? A. That’s the truth. After three times, he fell 

down, and I dropped the gun and I got on my knees, and I held his 

head up. I said, “I’m sorry, Holt. I didn’t mean to hurt you.” It was 

just instantaneous.

Q. And why was it instantaneous? A. Once I felt that knife 

on my throat, I didn’t even have a chance to think. It was just 

instant. I just brought the gun up and swung until he fell down. It 

was just that quick, just a few seconds.

Q. And because you had the knife to your throat and

because you only struck him three times, that was why you filed

your notice of self-defense, right? A. That’s correct.

. . . .

Q. Your theory was that you simply grabbed it [the gun] to be 

able to defend yourself because you wanted to get your stuff back,

your personal items back? A. Plus at the time [months prior] I had 

words with him, I walked up to his driveway holding hands with 

Diana Graham, and he had a pick handle and he proceeded to beat 

me with it and broke my ribs. We had words at the pond that night.

Actually, when I went home, somebody pulled up in the driveway 

and since I was so drunk, I couldn’t find my clothes when we got 

out of the pond; I went home in my underwear. When I got dressed 

I was thinking, if he’s standing in the driveway again with that pick 
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handle, maybe I should have something to show him so he won’t 

do anything. So I threw it in my wife’s car. When I went to the door 

and knocked, I never took it up to the door. It wasn’t until he came 

out with the knife and threatened me several times and then he had 

the knife and was shaking it at my wife telling me what he was 

going to do when I reached in and grabbed the gun. That was just 

to scare him off, because after I pointed it at the ground and pulled 

the trigger, he asked—he ran inside the house. He was in the 

house. He asked, “Bob, did you try to cap me?” I said, “No, 

Denny, the gun is not loaded. I won’t try to hurt you.” Then he 

came back outside and grabbed me around the collar and put the 

knife to my throat.

MacLaird’s own testimony shows beyond a doubt that he had an 

alternative course of action available—he could have left, which Holt repeatedly 

told him to do before MacLaird retrieved the gun. And the asserted provocation 

upon which MacLaird relies—Holt’s use of the knife—occurred only after 

MacLaird brandished the gun. Consequently, assuming without deciding that 

counsel’s performance was deficient in some respects, we cannot conclude there 

is a reasonable probability that the result of the proceeding would have been 

different had those deficiencies not occurred. 

The postconviction court carefully considered all of MacLaird’s claims. 

The court wrote an exhaustive and thoughtful ruling. On our de novo review, we 

reach the same conclusion as the district court and deny the application for 

postconviction relief. Additional discussion is not necessary. We therefore affirm 

without further opinion.

AFFIRMED.