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IN THE SUPREME COURT OF IOWA
No. 19 / 04-0855 Filed April 7, 2006 STATE OF IOWA, Appellee, vs. DIXIE LYNN SHANAHAN, Appellant.

Appeal from the Iowa District Court for Shelby County, Charles L. Smith III, Judge.

The defendant appeals from her conviction for second-degree murder. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellant Defender, for appellant.

Thomas J. Miller, Attorney General, Mary E. Tabor and Charles N. Thoman, Assistant Attorneys General, for appellee.

2 WIGGINS, Justice. A jury convicted Dixie Shanahan of second-degree murder for killing her husband. Dixie claims the trial court erred in overruling her motion to suppress and her motions for judgment of acquittal and for new trial. She also asserts her trial counsel was ineffective. Although we find no basis to reverse her conviction, we preserve some of Dixie's claims of ineffective assistance of counsel for postconviction relief. Accordingly, we affirm the judgment of the district court. I. Background Facts and Proceedings. Dixie and Scott Shanahan were married in 1995, and they lived in Defiance, Iowa in a house Scott inherited from his parents. Scott did not work. Dixie worked at various jobs. They had two children during Scott's lifetime, Zachary and Ashley. A third child, Brittany, was born after Scott's death. Dixie and Scott's relationship was characterized by both physical and mental abuse. Dixie testified Scott "could flip on a nickel," threatened her life, and often threatened to take their children away from her. There were many instances of abuse, which Dixie often attempted to cover up. Three of the incidents led to the prosecution of Scott for domestic abuse. On July 21, 2003, the Shelby County sheriff's office received a call from a concerned citizen who advised law enforcement that Scott had not been seen in or around Defiance for a considerable amount of time, which the caller considered out of the ordinary. Sheriff Gene Cavenaugh first tried to locate Scott in Atlantic, Iowa because the officers had heard he might be there. Cavenaugh was unable to do so. Deputy John Kelly visited Dixie the following day. They talked on the sidewalk outside her residence. Dixie told Kelly that Scott had left their

3 residence in August 2002 and she did not know where he was, but she thought he might be living in Atlantic. She stated she had not seen Scott since that time, but said he called her around February 2003 in regards to the birth of their third child. She also told Kelly she believed Scott made hang-up calls to her residence periodically. Dixie stated her sister in Texas was making the house payments along with the insurance and tax payments. She also denied selling Scott's tools but acknowledged she was involved in a romantic relationship with Jeffrey Duty of Ida Grove, Iowa. On July 23, 2003, Dixie went to the sheriff's office and spoke to Cavenaugh, wanting to know why the sheriff's office was checking on Scott. She also asked if she was being accused of doing something to Scott, which Cavenaugh denied. At that time, she gave Cavenaugh the name of an individual who claimed to have seen Scott in Harlan, Iowa in April 2003. The next day, Cavenaugh and Dixie spoke in the driveway of her residence. She told Cavenaugh that Scott left in August 2002 after he became angry with her over her pregnancy. She also told Cavenaugh before Scott left, he beat her up when she refused to have an abortion. She further stated she was not home when Scott left but he took his clothes, some other possessions, and withdrew all of the funds he had in some mutual funds. She also stated he did not take a vehicle with him. On October 17, 2003, law enforcement officers from the Shelby County sheriff's office and the Iowa division of criminal investigation made an application for a search warrant to search Scott and Dixie's residence, property, and vehicles for any blood, bodily fluids, hair, fibers, or DNA samples of Scott, as well as any computer hardware, printers, dangerous weapons, or Scott's body or body parts. The application stated such items were used or possessed with the intent to be used as the means of

4 committing a public offense or concealed to prevent an offense from being discovered, and were relevant and material as evidence in a criminal prosecution. The affidavit in support of the application for the search warrant, made by the same law enforcement officers, recited most of the above facts, stated the Defiance post office did not have a forwarding address for Scott and Dixie picks up his mail, listed Cavenaugh's contacts with Scott's friends and relatives, and set forth the law enforcement officers' various attempts to locate Scott. The affidavit included a statement from one of Scott's friends stating he heard from a meter reader in Defiance that a bedroom window was open in the Shanahan house all of the previous winter. The affidavit also stated Scott's mutual fund account was depleted in August 2002 and numerous insufficient-funds checks were drawn on it in August and September 2002 bearing Scott's signature, although a note attached to the file indicated the checks may have been signed by Dixie. The affidavit further stated Dixie had sold one of Scott's vehicles and perhaps the contents of his shop building. It detailed how Scott's bank account was frequently overdrawn in the summer of 2002 but had been inactive for nearly a year. The affidavit also stated Dixie was receiving public assistance based on an application she filed on September 11, 2002. In addition, the affidavit referred to the bank's mortgage records, which included an October 2002 letter supposedly signed by Scott requesting the bank to add Dixie's name to the account. Finally, the affidavit confirmed Dixie sold Scott's tractor and told the buyer Scott would never be back. In the affidavit, the applicants stated the above facts indicated Scott "likely met with some type of foul play" at his home, concluding there was probable cause that a crime had been committed and that evidence of that

5 crime would be found in the places requested to be searched. In addition, as part of the application for the search warrant, there were seven informant's attachments and other documentation related to the investigation. A magistrate issued the search warrant, and law enforcement officers executed the warrant. The officers who processed the residence found the northeast bedroom of Dixie's residence blocked off with various items in the hallway. A rolled-up towel was placed at the base of the bedroom door alongside two air fresheners. In the bedroom, the officers found human remains on the bed, under the covers, in the position of lying on the right side and stomach area. The body was clothed only in briefs and a television remote control was at the end of the left foot. The body had its head on a pillow, with a second pillow placed between its legs, and a third pillow tucked within its left arm. An officer at the crime scene described this position as "typical of someone . . . lying in bed, resting or sleeping, just lying on your side, with your head on a pillow and a pillow between your legs and one under your left arm." The remains were later identified as the body of Scott. Although the body was markedly decomposed, partially skeletonized, and partially mummified, it was determined he died from a shotgun wound to the back of the head. The officers did not find the shotgun that killed Scott during the search of the residence, but located it later in the children's bedroom closet. During the search, Dixie was at the home of Kathy Meyers. Meyers testified Dixie became hysterical and admitted to shooting Scott. Meyers stated Dixie said "she didn't know if it was right or wrong but she just couldn't take it no more" and couldn't justify what she did. Meyers stated

6 Dixie hid from the officers but was eventually arrested, and Dixie had told her "she wanted [Scott] out for fear of Brittany's life." At trial, Dixie explained her relationship with Scott at the end of August 2002 was "[v]ery, very rocky" and she was being "[v]ery badly" abused by him three to four times a week. She said when she found out she was pregnant with Brittany, Scott "went ballistic" and told her to have an abortion. She refused. She testified they fought for several days, with Scott beating Dixie. During the beatings, Scott would tell her he would make sure she would not have the baby and there was nothing she could do about it. She went on to testify that on August 30, 2002, Dixie woke up around 6:30 a.m. and woke her children. She sent Zachary to school before Scott awoke. When Scott woke up, he became enraged because Dixie did not wake him before Zachary left. She stated he then pulled Dixie by the hair and beat her in the stomach, hollering he was going to kill the unborn baby one way or another. At this point, Dixie sent Ashley to a friend's house nearby. Dixie testified as she tried to leave, Scott followed her, took the car keys from her, and prevented her from leaving. He then knocked her on the ground, dragged her by her hair back into the house, and punched her in the stomach saying, "I'm gonna kill this baby. You're not having this baby." Dixie said while she laid there crying, Scott went into the other room and came back with the shotgun. She said he was in a rage, physically shaking, and calling her names. He put two different shells in the gun and pointed the gun at her. He threatened her by saying, "This day is not over yet. I will kill you." He then walked away. As she sat in the living room chair, he came back in a rage and beat her again, threatening her and the unborn baby's lives.

7 Scott took all of the telephones out of the telephone jacks except the one in the bedroom. He took the telephones with him into the bedroom, where he laid down. Dixie thought the telephone in the bedroom was still working. Despite being dressed and sitting in a chair right by the door with nobody around, Dixie decided to call the police instead of leaving the house. She went into the bedroom to get the telephone. She said Scott was awake lying in bed on his side. As Dixie entered the bedroom to get the telephone, she saw Scott make a movement at her or the gun sitting beside the telephone. Dixie said she saw the gun, grabbed it, pointed it at Scott, closed her eyes, and shot him in the back of the head. She claimed she needed to protect herself and did not have any other choice but to fire the gun. Dixie said she set the gun down, walked out of the bedroom, and sat in a chair for a couple of hours. She described herself as "[v]ery upset," thinking about what she did and what she was going to do. Still unsure about what she was going to do, Dixie went back into the bedroom, pulled up the sheets to cover the body, retrieved the telephone and the gun, shut the bedroom door, and put a towel underneath it. She put the gun in the children's bedroom closet. Dixie never did anything else with Scott's body and never told anyone what happened. She and her children continued to live in the house trying to live a normal life. She told people lies about Scott so she could avoid going to jail. She said she went into the bedroom three times after the shooting, all in the same day. She said at the time of the shooting the windows were open in the house, but she was able to close the bedroom window from the outside.

8 The day of the shooting, Dixie drove to a store and signed a check in Scott's name. The check was drawn on the mutual fund account. She wrote checks bearing Scott's signature from that account totaling $1942 after he died. When the mutual fund dishonored the checks, the stores sent letters to Scott at the Defiance residence. Dixie replied to these letters blaming Scott for the problem. Dixie also wrote a letter to the mortgage company, again signing Scott's name, so she could have her name added on the account to deal with the late mortgage payments. In addition, Dixie sold Scott's property netting about $10,400. She sent the money to her sister in Texas to hold for her house payments and to avoid reporting the money as an asset to the public assistance authorities. On October 30, 2003, the State charged Dixie with murder in the first degree in violation of Iowa Code sections 707.1 and 707.2 (2001), stating she "did willfully, deliberately, and with premeditation and malice aforethought kill another person." The State amended the trial information to add the use of a firearm in the commission of the offense. Dixie entered a plea of not guilty. Prior to trial, Dixie filed a motion to suppress claiming the application for the search warrant, the affidavit in support of the application for the search warrant, and the search warrant itself were all without probable cause. The court denied Dixie's motion. Dixie filed a notice of defense, stating she intended to introduce evidence of justification by defense of self and others at trial. The case proceeded to a jury trial. Dixie's trial counsel moved for a judgment of acquittal stating the State did not present a prima facie case as to murder in the first or second degree. Her counsel claimed there was no evidence of

9 malice or evidence showing her actions were not justified. overruled the motion. At this point in the proceedings, Dixie acknowledged she rejected the State's offer to allow her to plead guilty to voluntary manslaughter. She acknowledged she was aware of the possible sentencing ramifications at the time she turned down the plea agreement. Prior to final arguments, the court sustained the State's motion in limine prohibiting Dixie's trial counsel from arguing she acted in defense of Zachary or Ashley. The jury found Dixie guilty of the lesser included offense of murder in the second degree and that she was in the immediate possession and control of a firearm at the time of the offense. Dixie filed a motion for new trial. The court overruled the motion. On the same day, the court The court

sentenced Dixie to an indeterminate fifty-year term of imprisonment, required her to serve a minimum of thirty-five years, and ordered her to pay $150,000 in restitution to Scott's estate. Dixie appealed. We will set out additional facts as they relate to the issues. II. Issues. Dixie raises numerous issues on appeal. They include: (1) whether the district court erred in overruling Dixie's motion to suppress; (2) whether the district court erred in overruling Dixie's motions for judgment of acquittal and for new trial; and (3) whether Dixie's trial counsel provided her with ineffective assistance of counsel. III. Motion to Suppress. Dixie claims the search warrant application did not contain information giving rise to probable cause that a crime was committed on the premises or that evidence of a crime could be located there. She alleges innocent-appearing activity alone will not support a finding of probable

10 cause. She says the only reason the authorities gave for the search warrant was Scott's disappearance from the community and the speculation in the affidavit is not enough to supply the necessary nexus between the place to be searched and items sought. She claims this is a violation of her rights as guaranteed by the Fourth Amendment to the United States Constitution. She makes no claim on appeal under the Iowa Constitution. When assessing an alleged violation of a constitutional right, our review is de novo. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). We independently evaluate the totality of the circumstances. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). The fact findings of the district court are not binding; however, because the district court had the opportunity to assess the credibility of the witnesses, we do give deference to those findings. Id. The Fourth Amendment to the United States Constitution assures "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The Fourth Amendment is binding on the states through the Fourteenth Amendment of the federal constitution. Freeman, 705 N.W.2d at 297. The Fourth Amendment requires probable cause to support a search warrant. State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). The test to determine whether probable cause exists to issue a search warrant is: "whether a person of reasonable prudence would believe a crime was committed on the premises to be searched or evidence of a crime could be located there." Probable cause to search requires a probability determination that "(1) the items sought are connected to criminal activity and (2) the items sought will be found in the place to be searched."

11 Id. (citations omitted). We do not attempt to independently determine

probable cause but rather "merely decide whether the issuing judge had a substantial basis for concluding probable cause existed." Id. Our

determination of a substantial basis is " `limited to consideration of only that information, reduced to writing, which was actually presented to the [judge] at the time the application for warrant was made.' " Id. (alteration in original) (citations omitted). In determining if evidence seized pursuant to a warrant should be suppressed, "the affidavit of probable cause is interpreted in a common sense, rather than a hypertechnical, manner." Id. at 363-64. Additionally, "we draw all reasonable inferences to support the judge's finding of probable cause . . . and give great deference to the judge's finding." Id. at 364. "Close cases are decided in favor of upholding the validity of the warrant," and "[i]f a warrant is held to permit places to be searched or items to be seized for which probable cause is lacking, the warrant is nevertheless valid for those places and items described for which probable cause exists." Id. The law enforcement officers submitted an eight-page affidavit to support their application for a search warrant. In addition to including the statements made by Dixie, the affidavit stated the authorities launched a nationwide search for Scott after they discovered Scott left no forwarding address. First, they started with Scott's friends and relatives. These people stated they had not seen Scott for a long time. The authorities also checked the Iowa Job Service files and with the Social Security Administration. Both agencies reported no activity by Scott in the last year. They also checked all fifty states' driving license records. They found no state had issued a license to Scott other than the one previously issued by Iowa. Finally, they entered Scott's name as a missing person in the National Crime Information

12 Center (NCIC), a nationwide computer database. The database

automatically cross-checks missing persons with unidentified dead files on a nightly basis and sends a message to the entering agency if it finds a match. The authorities never received any messages as a result of their entry. The affidavit also indicated the authorities checked on Dixie's statements. They learned she sold Scott's tractor telling the purchaser Scott would never be back. They also made inquires with the Cass County chief deputy because Dixie said she thought Scott might have moved to Atlantic. The Cass County chief deputy and the Atlantic police chief

checked their information sources and found nothing to indicate Scott was living in Atlantic. The authorities also subpoenaed the mutual fund

account records and checked the file containing the checks allegedly written by Scott after he disappeared. The file contained a notation stating that even though the checks bear Scott's signature, Dixie might have signed them. In checking the motor vehicle registration records, the authorities determined Dixie sold Scott's vehicle to a person who registered it in Pottawattamie County. The authorities also subpoenaed the records of the Iowa department of human services. Dixie's application for public assistance stated she and Scott were separated and she only had six hundred dollars available to her. Dixie's financial disclosure to the department was inconsistent with the record of payments made on her mortgage. Finally, the affidavit discussed the long history of domestic violence in Scott and Dixie's home, including Scott's possessive personality. The

affidavit also noted Dixie's new romantic relationship. It stated it would be out of character for an abuser such as Scott to leave his wife, children, and

13 possessions in light of his possessive personality. It also mentioned it would be unusual for Dixie to start a new romantic relationship without any concern or fear Scott would find out and physically harm her. In a case remarkably similar to this case, we affirmed the issuance of a search warrant to search the defendant's residence to seek evidence regarding the disappearance of the defendant's former girlfriend. State v. Green, 540 N.W.2d 649, 656 (Iowa 1995). There the State charged the defendant with murder after a search of his residence resulted in finding the body of his former girlfriend, which had been under the basement stairs for seven months. Id. at 652-53. We found the magistrate was justified in finding probable cause stating: Several factors suggest that [the victim Rosemary] McGivney's disappearance was not voluntary. For example, had McGivney left Mason City of her own accord, it is reasonable to believe she would have needed money and a means of transportation, yet she left her car and SSI checks behind. Given the fact that Rosemary normally kept in touch with her mother on a regular basis, her complete lack of communication for at least three months bolsters the conclusion that her disappearance was not voluntary. Added to this mysterious disappearance is Green's history of domestic violence toward her. This knowledge, coupled with the fact that Rosemary was last seen at Green's house, adds support to the conclusion that some harm had come to her and that Green was involved. Finally, Green's extreme reaction to the request to search his house calls into question his explanation of Rosemary's disappearance. Although a refusal to submit to a search may not, standing alone, constitute probable cause to believe an offense has been committed . . . when added to the other facts in this case, it strengthens the probable cause finding. Id. at 656 (citation omitted). Turning to the facts of this case, we find the totality of the circumstances as presented in the search warrant application and the common-sense inferences that a reasonable person may draw from them result in the conclusion the issuing judge could reasonably have inferred

14 criminal activity caused Scott's disappearance, and the authorities would find evidence of this activity at Dixie's residence. Thus, there was a

substantial basis for the issuing judge to conclude probable cause existed to issue the search warrant. IV. Motions for Judgment of Acquittal and for New Trial. Dixie's trial counsel moved for a judgment of acquittal at trial on the grounds the State failed to prove malice and Dixie was not justified in shooting Scott. The district court overruled Dixie's motion. After the jury returned its verdict of murder in the second degree, Dixie raised this issue in her motion for new trial claiming the verdict was contrary to the weight of the evidence. The court also overruled the motion for new trial. In order to convict Dixie of second-degree murder, the district court instructed the jury the State had to prove: (1) on or about August 2002, Dixie shot Scott; (2) Scott died as a result of being shot; (3) Dixie acted with malice aforethought; and (4) Dixie acted without justification. See Iowa Code

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