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.
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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 

trial attorneys were 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 on 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 her 

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 

upheld 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 court pointed out that several witnesses, including the 
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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. 

Countryman, 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 the 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 her.” 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 analysis. “[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 

mistakes 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.”

(Citations 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 voluntary manslaughter instruction because 
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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 irresistible passion resulting from serious provocation sufficient to 

excite such passion in a person and there is not an interval between the 

provocation 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 wellreasoned decision. We affirm the denial of Chiavetta’s application for 

postconviction relief. See Iowa Ct. R. 21.26(1)(b), (d), (e). 

AFFIRMED.