IN THE COURT OF APPEALS OF IOWA No. 14

- 1177 Filed August 5, 2015

KIMBERLY ANN CHIAVETTA , Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner , Judge.

Kimberly Chiavetta appeals the denial of her application for postconviction relief. AFFIRMED.

Wallace L. Taylor of Law Offices of Wallace L. Taylor , Cedar Rapids , for appellant. Thomas J. Miller, Attorney General, Sheryl A. Soich , Assistant Attorney General, Jerry Vander Sanden , County Attorney, and Robert Hruska , Assistant County Attorney, for appellee State.

Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.2

DANILSON, C.J. Kimberly Chiavetta appeals the denial of her application for postconviction relief. She argues the district court erred in rejecting her claims that her criminal tria l attorneys w ere ineffective in not presenting evidence that her statement to police was unreliable, presenting the defense that her deceased husband injected himself with insulin and caused his own death by an overdose , and requesting a jury instruction o n voluntary manslaughter.

“‘ [W] hen the applicant asserts claims of a constitutional nature, our review is de novo. Thus, we review claims of ineffective assistance of counsel de

novo. ’” Lamasters v

. State , 821 N.W.2d 856, 862 (Iowa 2012) (quoting Ledezma

v

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

.

“ [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)

. The district court rejected Chiavetta ’ s first assertion of ineffectiveness

— that counsel failed to argue her statements to police (in which she confessed having injected her husband with insulin) were not reliable

— on grounds that he r two trial counsel had moved to suppress her statements on grounds they were not voluntarily made . That challenge was unsuccessful in the trial court and
up held on appeal. See State v

. Chiavetta , No. 05

- 1911, 2007 WL 1828323 , at *3

- 4 (Iowa Ct. App. June 2, 2007). On direct appeal, we stated:

Additionally, the court addressed the physician ’ s concerns about Chiavetta ’ s fragile mental condition, noting the physician did not have specific information on what, if any, drugs were still in her system. The co urt pointed out that several witnesses, including the3 physician, testified Chiavetta was alert and oriented on the day of questioning. In addition to these factors, we note that Chiavetta ’ s drug overdose occurred two days earlier of her own volition. Cou ntryman , 572 N.W.2d at 558 ( “ It was of her own volition that [the defendant] ingested any drugs affecting her. ” ). As soon as she was admitted to the hospital, Chiavetta was given charcoal to deactivate those drugs. On the day of the interview Chiavetta was taking an antidote to Tylenol, which was found in her system, a medication to protect her stomach against ulcers, a medicine to prevent blood clots, and an antibiotic for possible pneumonia. An anti

- depressant was not started until the day after the interview. The record contains no indication that the drugs administered at the hospital caused confusion or lack of orientation. Id. at *4. We are unable to discern how her present claim differs substantively from t he arguments previously rejected. As for her claim that trial counsel did not present a defense that her husband injected himself, the postconviction court found that the defense presented was reasonable “given the evidence the State had against h er.” We agree. As observed in Lamasters , 821 N.W.2d at 866 ,

“ [W]e measure the attorney ’ s performance against ‘ prevailing professional norms. ’” We start with the presumption that the attorney performed competently and proceed to an individualized fact

- based ana lysis. “ [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. ” “ Improvident trial strategy, miscalculated tactics or mistak es in judgment do not necessarily amount to ineffective counsel. ” “ When counsel makes a reasonable tactical decision, this court will not engage in second

- guessing. ” “ Selection of the primary theory or theories of defense is a tactical matter. ” (Citat ions omitted.) Moreover, Chiavetta chose the strategy pursued

— that she administered the doses of insulin but did not intend to kill her husband. Finally, we, like the postconviction court, find trial counsel was not ineffective in failing to request a vo luntary manslaughter instruction because4

factually there was no evidence to support such an instruction. See Iowa Code § 707.4 (2003) (“ A person commits voluntary manslaughter when that person causes the death of another person, under circumstances which would otherwise be murder, if the person causing the death acts solely as the result of sudden, violent, and irre sistible passion resulting from serious provocation sufficient to excite such passion in a person and there is not an interval between the
prov ocation and the killing in which a person of ordinary reason and temperament would regain control and suppress the impulse to kill. ” (emphasis added)); State v. Thompson , 836 N.W.2d 470, 476 (Iowa 2013) (stating “’[l] esser offenses must be submitted to the jury as included within the charged offense if but only if they meet both the appropriate legal and factual tests ’ ” (citation omitted) ). We find no reason to disturb the district court’s comprehensive and well

reasoned decision. We affirm the denial o f Chiavetta’s application for postconviction relief. See Iowa Ct. R. 21.26(1)(b), (d), (e).
AFFIRMED.