Long v. Brewer, 2-59169

• Decision Date: 25 May 1977
• Docket Number: No. 2-59169,2-59169
• Citation: 253 N.W.2d 549
• Parties: Merlin C. LONG, Appellant, v. Lou V. BREWER, Warden of the Iowa State Penitentiary, Fort Madison, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 549

253 N.W.2d 549

Merlin C. LONG, Appellant, v. Lou V. BREWER, Warden of the Iowa State Penitentiary, Fort Madison, Iowa, Appellee.

No. 2-59169.

Supreme Court of Iowa.

May 25, 1977.

John M. Thompson, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., Phil C. Redenbaugh, County Atty., for appellee.

Heard by MOORE, C. J., and MASON, RAWLINGS, LeGRAND and UHLENHOPP, JJ.

RAWLINGS, Justice.

This is an appeal from denial of postconviction relief. In 1964, applicant, Merlin C. Long, on a guilty plea, was convicted of murder in the first degree and sentenced to life imprisonment. No appeal followed. In the present action applicant contends he was denied effective assistance of counsel, after arrest, because of failure on the part of an appointed attorney to properly advise him regarding his right to contest testimonial admissibility of a previously given confession, and to invoke the diminished mental capacity theory in event of trial. Postconviction relief was denied. We affirm.

The record before us includes the original criminal file; guilty plea proceedings; and depositions by several crime investigating officials and applicant's court appointed attorney in the original action. There is also at hand the postarrest report by a Bureau of Criminal Investigation (BCI) agent.

June 23, 1964, the badly mutilated nude body of a white female, later identified as Bonnie Jean Johnson, was found floating in a river, about two miles southeast of Peterson. She had been gagged by use of a brassiere and the deceased's hands were tied behind her back. The Buena Vista County Medical Examiner attributed the cause of death to loss of blood from a slit throat.

It appears the involved offense occurred on or about June 22, 1964, in Buena Vista County. Inquiry revealed the murder victim had been last seen alive on that date when she emerged from a Sioux Rapids tavern accompanied by an unidentified itinerant laborer and rode away with him in a green Volkswagon bearing Nebraska license plates. Upon receipt of this information, June 23, Buena Vista County Sheriff, Donald Barels, contacted hotel personnel where the suspected laborer had been staying and thereby ascertained his identity, i. e., Merlin C. Long, formerly an Omaha resident. Barels promptly dispatched a radio message to hold Long on suspicion of murder.

June 24, at approximately 12:15 a. m., he was apprehended. At about 1:15 a. m., some officials, including the BCI agent, began questioning the arrestee in a city council room adjacent to the Spirit Lake Police Department.

As a preface to his ensuing statement, Long acknowledged it was being given "of his own free will" and he had been offered use of a phone, but placed no call. There followed detailed questions and answers. Reduced to narrative form this is the salient part of Long's confession:

The officers ultimately told applicant he was in serious trouble and he could talk to either the sheriff or county attorney or the BCI agent alone. At this point Long asked, "Who is in charge?" The BCI agent advised Long that Barels was the sheriff in the county concerned and the BCI was assisting with the investigation. Long stated he would talk to both the sheriff and agent, then began telling about his activities the night of June 22, 1964.

He had been drinking some beer that evening in Sioux Rapids and met Bonnie Johnson at "Bud" Dennis' Tavern. They later decided to go fishing so left the tavern sometime between 10:00 and 10:30 p. m., in his 1962 Volkswagon. He drove Bonnie to her grandfather's residence in Sioux Rapids where she got her rod and reel. The two then went to Linn Grove, where they purchased some worms and fished for a short period of time in that area. They eventually moved to a secluded place further down the river.

Both had been drinking quite a bit and after arriving at the second location began fooling around with each other. He removed Bonnie's toreador pants and underpants but at this point Bonnie acted as though she did not want to have intercourse. While Bonnie was sitting with her feet over the bank, he struck her with an object along the right side of the head. He knocked Bonnie out, then ripped off her brassiere and used it as a gag. He also grabbed a piece of cord and tied her hands behind her back. After having tied the woman he pulled her blouse and sweater back over her arms, cut her breasts, stomach and hips and lastly cut her throat with his fishing knife. He then attempted to have intercourse with her and thereafter dumped the body into the river. Long thereupon threw the murder weapon and his tackle box into the water.

The authenticity of this confession is materially placed beyond the pale of doubt by testimony elicited from Dr. William E. Erps, Buena Vista County Medical Examiner, during the September 8, 1964, degree of guilt hearing. Dr. Erps' description of the body wounds corresponds with applicant's portrayal of his mutilating and death-causing acts.

Although there is some testimonial conflict regarding identity of those present when Long confessed, the postconviction court found applicant had been timely advised regarding his right to remain silent. Despite Long's assertion to the contrary, this finding is amply supported by the deposition of Jack H. Bedell, then Dickinson County Attorney.

July 20, applicant was arraigned on a first degree murder charge. At that time Attorney William Perry was appointed to represent the accused. He promptly entered a not guilty plea, and soon thereafter secured a copy of Long's confession which had been reduced to writing. Mr. Perry also requested and obtained a psychiatric evaluation of Long at state expense. This is, in material part, the report received by Mr. Perry after Long's examination at the State Psychopathic Hospital in Iowa City:

"We believe that he can assist in the preparation of his defense and that he knows the difference between right and wrong. Because of the intensity of his sexual deviation, he would tend to ignore the consequences of the acts at the time of the murder to which he admits. Whatever course should be decided by the Court in the handling of this case, it would be our opinion that this man is dangerous to society and should be confined under conditions of maximum security."

In an effort to further evaluate the situation attorney Perry several times telephoned Dr. Spencer, author of the above statement, and discussed with him a possible insanity defense. Mr. Perry also explored the possibility of employing Long's mental status as a mitigating factor or in connection with a diminished responsibility approach. By deposition attorney Perry stated he consulted applicant regarding an insanity defense but Long emphatically rejected a jury trial with attendant publicity or the injection of any issue as to his mental status. Applicant noticeably limits his response to the denial of any statement by Perry regarding diminished responsibility.

Perry also said he never urged Long to enter a guilty plea but rather discussed this and left it entirely with his client to make the choice.

September 4, applicant as defendant, appeared in court with appointed counsel and personally entered a guilty plea to the charge as made. Some evidence was introduced and the matter continued to September 8, when hearing was had on degree of guilt. September 14, the time fixed for sentencing, Long appeared with attorney Perry who presented evidence and strenuously urged his client be found guilty of no more than second degree murder. Trial court found Long guilty of murder in the first degree and imposed the above noted sentence.

By written brief applicant avers, "the only relevant factual disputes in this appeal are whether Mr. Long was advised of his right to challenge the admissibility of his confession and present the defense of diminished capacity and, if so, whether that advice was 'within the range of competence demanded of attorneys in criminal cases.' " During oral argument, however, we were also asked to determine whether applicant's plea was intelligently and voluntarily entered. Even though this last inquiry was belatedly voiced, we entertain same as it relates to other matters presently considered and resolved.

In light of the fact applicant has alleged the violation of basic constitutional safeguards, this court's evaluation will be premised upon totality of relevant circumstances shown by the entire record. In other words, our review is de novo. See Jackson v. Auger, 239 N.W.2d 180, 182 (Iowa 1976); Hightower v. Peterson, 235 N.W.2d 313, 316-317 (Iowa 1975); Rinehart v. State, 234 N.W.2d 649, 658 (Iowa 1975); State v. Boren, 224 N.W.2d 14, 15 (Iowa 1974).

I. Applicant initially asserts trial court erred by applying the outmoded "mockery of justice" standard in evaluating effectiveness of attorney Perry's pre-plea representations. In lieu thereof applicant contends Perry's conduct must be measured by that competency prevailing among those licensed to practice before the bar. See United States v. Easter, 539 F.2d 663, 665-666 (8th Cir. 1976); Rinehart v. Brewer, 421 F.Supp. 508, 516 (S.D.Iowa 1976).

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), teaches that the right to counsel, assured federal defendants through the sixth amendment is a fundamental right guaranteed state court defendants through the fourteenth amendment due process clause. See State v. Williams, 207 N.W.2d 98, 104 (Iowa 1973); State v. Kendall, 167 N.W.2d 909, 910 (Iowa 1969).

Also, since Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), it has been generally understood a state defendant has the right not only to timely appointment of counsel, but also to assistance of an attorney whose quality of performance does not fall below a minimum level of effectiveness. See McQueen v. Swenson, 498 F.2d 207, 213 (8th Cir. 1974).

In other words, the right to counsel means...