State v. Krogmann

1

STATE OF IOWA, Plaintiff-Appellee, v. ROBERT PAUL KROGMANN, Defendant-Appellant.

No. 21-1617

Court of Appeals of Iowa

March 8, 2023

Appeal from the Iowa District Court for Delaware County, Linda M Fangman, Judge.

Robert Krogmann appeals his convictions for attempted murder and willful injury causing serious injury. REVERSED AND REMANDED FOR NEW TRIAL.

Jamie L. Hunter and Angela Campbell of Dickey, Campbell, &amp Sahag Law Firm, PLC, Des Moines, for appellant.

Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

Heard by Greer, P.J., Chicchelly, J., and Gamble, S.J. ^[*]

GAMBLE, SENIOR JUDGE.

Robert Krogmann appeals following his convictions for attempted murder and willful injury causing serious injury. We reverse and remand for a new trial.

I. Background Facts and Prior Proceedings

Krogmann and J.S. began a relationship in 2007. But they broke up in January 2009. Then J.S. reached out to Krogmann to get a small kitchen appliance back from him; they got back together. But things were not the same, instead they were tense. J.S. discovered Krogmann was communicating with women on Match.com, so she ended their relationship. Krogmann wanted her back and would call her fifty times a day for "days on end." He even showed up at her house unannounced while she was gone, and J.S.'s brother, Michael, had to convince Krogmann to leave. But J.S. never felt like Krogmann was a danger, and she even went to visit him at his house after they broke up.

Around this same time, Krogmann's family became increasingly concerned about him. His older brother always had concerns about Krogmann's mental health, but he believed Krogmann's mental health was declining even further. Krogmann's sister-in-law thought Krogmann's mental health was the worst she had ever seen it and that Krogmann was fixated on J.S. Krogmann had told his mother he wanted to go to J.S.'s house and kill himself there. His son, Jeff, believed Krogmann was suicidal, so he took Krogmann's long guns away from him on March 11.

This all led up to March 13. J.S. was having a "lazy morning, drinking coffee" because she was off of work that week. Then Krogmann showed up at J.S.'s house. He asked to come inside, and J.S. let him in. He asked if they could get back together; she said no. He responded by asking for a hug, and she obliged. J.S. turned around to get her cup of coffee and when she turned back around, Krogmann was pointing a handgun at her.

J.S. asked Krogmann if he was going to shoot her, he replied that they were both going to die together and "[i]f he couldn't have [her], then no one was gonna." Then he shot her, but she couldn't feel anything. He said "he didn't want to spend the rest of his life in jail and he was gonna finish it and then he shot again." "[H]e said he was gonna kill [her] and then was gonna shoot himself." J.S. asked him to call 911, but he said he could not because he purposefully left his phone in the car so he would not be able to call for help.

Krogmann shot J.S. a third time, and the bullet went through her spine, causing her to fall immediately. She asked him to get her pillow and a rosary. The two said a prayer together before Krogmann remarked he didn't think it would take her that long to die.

Eventually, Krogmann retrieved J.S.'s phone and called Jeff to say he shot J.S. and Jeff needed to call 911 right away. Jeff left work for J.S.'s house and called 911. As some point, Krogmann also called 911 and informed dispatch that "someone had been shot." Meanwhile, Krogmann let J.S. call her mother. She told her mother that she loved her and asked her mother to tell her father and daughters that she loved them, and then she asked her mom to call Michael. Krogmann responded by ending the phone call and turning off her phone. Meanwhile, J.S.'s mother called Michael and told him to get to J.S.'s home as fast as he could.

Jeff showed up and took the gun away from Krogmann. Michael arrived just after Jeff and chased Krogmann out of the house with a broom. Krogmann and Jeff left while Michael stayed with J.S.

Emergency personnel took J.S. to a regional medical center so she could be airlifted to the University of Iowa Hospital, where she remained for three weeks. She underwent multiple surgeries. As a result of her injuries, she has no strength in one of her hands, walks with a cane due to a lack of feeling in her feet, and wears a brace on her leg from the knee down because her ankle "doesn't work at all." She is in constant pain every day.

As for Krogmann, officers followed Jeff to Krogmann's house and took Krogmann into custody as he headed back home. Once in custody, Jack Liao, a special agent with the Iowa Division of Criminal Investigation, was assigned to interview Krogmann. That interview was videotaped. Special Agent Liao found Krogmann seated in a restraint chair that restrained his arms and legs. Special Agent Liao asked for the arm restraints to be removed because he would not normally interview suspects in restraint chairs. A deputy loosened the restraints on Krogmann's arms and later his hands, but Krogmann remained restrained in the chair by his legs. At the beginning of the interview Krogmann began by asking if J.S. was okay. Then Krogmann went over what happened at J.S.'s home that morning. He admitted shooting J.S. At times during the interview Krogmann talked very softly or in a whisper. And sometimes there were long pauses in between Special Agent Liao's questions and Krogmann's answers.

The State charged Krogmann with attempted murder and willful injury causing serious injury. The jury in his first trial found Krogmann guilty of both counts. Krogmann appealed, and the supreme court affirmed his convictions. State v. Krogmann, 804 N.W.2d 518, 520 (Iowa 2011). Then he sought postconviction relief (PCR), which the PCR court denied. This court affirmed the PCR court. Krogmann v. State, No. 15-0772, 2017 WL 363226, at *10 (Iowa Ct. App. Jan. 25, 2017). However, the supreme court granted further review, found structural error, and granted Krogmann a new trial. Krogmann v. State, 914 N.W.2d 293, 318-25 (Iowa 2018).

Krogmann filed notice of his intent to rely on the defense of diminished capacity on retrial. The State filed a motion in limine seeking to exclude, among other things, "[a]ny out of court statements made by the defendant that are offered by the defendant at trial and not subject to an exception." Krogmann resisted.^[1]Krogmann explained the video of Special Agent Liao's interview of him would contain his out-of-court statements but could be offered for purposes other than to prove the truth of the matter asserted like to demonstrate his mental and emotional state and his ability to follow the conversation around the time of the shooting. Following a hearing on the parties' motions in limine, the court determined Krogmann's out-of-court statements were

[g]enerally . . . considered hearsay by [Iowa] Rule of Evidence 5.801(d)(2)(A) as well as State v. Veal, 564 N.W.2d 797, 808 (Iowa 1997). However, an exception to those general rules may be applicable. As such, [that portion] of the State's motion in limine is sustained unless and until a proper foundation is laid for an exception.

It filed an additional order specifically addressing Krogmann's ability to introduce the video of Special Agent Liao's interview with Krogmann-exhibit A. The court determined exhibit A would not be admissible because it amounted to hearsay without an exception and Krogmann could not offer his own out-of-court statements under Veal, 564 N.W.2d at 808.

The case proceeded to a jury trial. The parties presented numerous witnesses, including respective expert witnesses who testified as to Krogmann's ability to form specific intent. Special Agent Liao testified. During his testimony, he noted his entire interview with Krogmann was recorded. In response, Krogmann made an offer of proof for exhibit A. Counsel explained:

So we think that Mr. Liao's testimony has opened the door to offering that exhibit. It is the best evidence of what the substance of Mr. Liao's testimony was. It shows Mr. Krogmann's demeanor. It shows time frames. It shows how many times and how he was being questioned and the State did elicit testimony from Mr. Liao about what was going on in the interview. They were asked about-he was asked, did he seem to track and understand; was he following the conversation; was this a normal conversation; were these-this was not unusual. There was nothing unusual about the interview. And I think that the video itself actually shows the opposite, Your Honor. It shows the demeanor of the defendant as being confused at times, not responsive at times. There's long pauses. He's talking so softly, it's not a normal conversation. It's not just someone speaking softly, it is something different. It is showing, we think, the demeanor of the defendant and the current mental state of the defendant at that particular time.

So because-the officer is also shown a transcript, an unofficial transcript of the recording by the State and the best evidence of that interview is simply the actual interview. So we would offer Exhibit A as a court's exhibit for an offer of proof.

The court reaffirmed its pre-trial rulings on exhibit A and found Special Agent Liao's testimony did not open the door to the video.

Following deliberations, the jury returned guilty verdicts on both counts. Krogmann filed motions in arrest of judgment and for new trial, which the district court denied.

Krogmann appeals.

II. Discussion A. Sufficiency of the Evidence^[2]

We review Krogmann's challenge to the sufficiency of the evidence for corrections of errors at law. State v Sanford, 814 N.W.2d 611, 615 (Iowa 2012). Guilty...