Davis v. State, 93-232

• Decision Date: 26 May 1994
• Docket Number: No. 93-232,93-232
• Parties: Beverly Marie DAVIS, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Court of Appeals

Page 319

520 N.W.2d 319

Beverly Marie DAVIS, Appellant, v. STATE of Iowa, Appellee.

No. 93-232.

Court of Appeals of Iowa.

May 26, 1994.

Linda Del Gallo, State Appellate Defender, and Shari Barron, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Richard J. Bennett, Asst. Atty. Gen., Thomas S. Mullin, County Atty., and Mark Campbell, Asst. County Atty., for appellee.

Heard by DONIELSON, C.J., and SACKETT and HABHAB, JJ.

DONIELSON, Chief Judge.

On June 11, 1989, Beverly Davis stabbed John Jasa in the chest. Jasa was taken to the emergency room and treated by Dr. Theodore Roman, who determined Jasa had suffered a stab wound to the heart. Jasa's heart was repaired, but Jasa suffered brain damage from lack of oxygen, leaving him in a persistent vegetative state. On July 1, 1989, a feeding tube was placed into Jasa's stomach. The opening for the tube was just slightly larger than the tube, allowing fluid to leak into the abdominal cavity resulting in bacterial peritonitis. Jasa died on July 2, 1989.

Davis was charged with first-degree murder. Kay E. Dull and Jeffrey T. Myers were appointed to represent Davis. At trial Davis's theory of defense was the proximate cause of death was not the stabbing, but rather the improper or negligent placement of the feeding tube. Davis sought, but did not receive, a jury instruction concerning intervening causation. Davis was convicted of second-degree murder.

On appeal, Davis argued that the trial court erred in failing to instruct on intervening and superseding causation. The conviction was affirmed by operation of law and Davis's application for further review was denied.

Davis filed an application for postconviction relief alleging trial counsel was ineffective in failing to call an expert witness to testify concerning medical negligence on the part of the doctor who placed the feeding tube in Jasa's stomach and in failing to make a sufficient request for an intervening cause instruction. The State's motion for summary judgment was granted. Davis asked to have the application reinstated and for adequate time to find a medical expert to refute the State's trial witnesses. Her motion was granted and Davis was allowed to hire an expert.

The State renewed its motion for summary judgment. Davis submitted the report of her expert, Roger Geiss who stated:

... both the peritonitis and the bronchopneumonia were significant events in causing [Jasa's] demise.... However, since both were medical complications ultimately eventuating from the stab wound to the chest, the fact remains ... the underlying cause of [Jasa's] death was the stab wound to the chest.

The district court granted the State's motion for summary judgment. It found trial counsel's failure to employ an expert independent of the State's was a breach of duty. However, since Davis's own expert concurred in the cause of death, she had failed to establish prejudice.

Davis now appeals. She argues Geiss's report did not address intervening causation and a sufficient question remains to warrant a hearing on the merits. She also contends there remains a question concerning the adequacy of trial counsel's jury instruction objections. Davis contends her trial counsel's decision to abandon intervening causation as a defense was not a reasonable tactical decision.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R.Civ.P. 237(c); see Farm Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988). The moving party has the burden to show the nonexistence of a material fact, Milne, 424 N.W.2d at 423, and the evidence must be viewed in the light most favorable to the resisting party, Thorp Credit, Inc. v. Gott, 387 N.W.2d 342, 343 (Iowa 1986). The procedure is functionally akin to a directed verdict, and every legitimate inference that reasonably can be deduced from the evidence should be afforded the resisting party. Id.; Sherwood v. Nissen, 179 N.W.2d 336, 339 (Iowa 1970). A fact issue is generated if reasonable minds can differ on how the issue should be resolved, but if the conflict in the record consists only of the legal consequences flowing from undisputed facts, entry of summary judgment is proper. Milne, 424 N.W.2d at 423; Gott, 387 N.W.2d at 343. If the motion is properly supported, however, the resisting party "must set forth specific facts showing that there is a genuine issue for trial." Iowa R.Civ.P. 237(e).

Ordinarily, our review of postconviction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). However, when a postconviction petitioner asserts violation of constitutional safeguards--such as ineffective assistance of counsel--we make our own evaluation based on the totality of the circumstances. This is the equivalent of de novo review. Id.

In order to prevail on such a claim, appellant must show by a preponderance of the evidence (1) counsel failed to perform an essential duty and (2) prejudice resulted. See State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987); Edman v. State, 444 N.W.2d 99, 101 (Iowa App.1989). In evaluating counsel's performance, we presume counsel acted competently. See Risdal, 404 N.W.2d at 131.

In proving the first prong of this test, appellant must overcome the strong presumption counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). To prove the second prong of this test appellant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). With these principles in mind we now turn to appellant's specific claims.

Davis first argues her attorney did not make a sufficient request for an intervening cause instruction to the jury. We disagree. The supreme court's decision in Murray v. State, 512 N.W.2d 547 (1994) cogently discusses this issue:

We have recognized that principles of causation normally associated with civil tort litigation have a proper application in criminal cases. See State v. McFadden, 320 N.W.2d 608, 612-13 (Iowa 1982); State v. Marti, 290 N.W.2d 570, 585-86 (Iowa 1980). Under accepted principles of civil tort law, rules that restrict an actor's responsibility under theories of superseding cause are for the court to apply rather than the jury. Restatement (Second) of Torts § 453 (1965). The governing principle in deciding whether the medical decisions in the present case could be a superseding cause is covered by another section of the Restatement. That section provides:

The intervention of a force which is a normal consequence of a situation created by the actor's negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about.

Restatement (Second) of Torts § 443 (1965) (emphasis added). The interpretive comment to the above section with respect to what is a "normal" consequence states that:

The word "normal" is not used in this Section in the sense of what is usual, customary, foreseeable, or to be expected.

It denotes rather the antithesis of abnormal, of extraordinary. It means that the court or jury, looking at the matter after the event, and therefore knowing the situation which existed when the new force intervened, does not regard its intervention as so extraordinary as to fall outside of the class of normal events.

Id. cmt. b. Judged by this standard, we conclude that the medical decisions ... were as a matter of law normal consequences of the situation created by [defendant's] criminal conduct. There was no basis for instructing the jury with respect to a superseding cause.

Murray, 512 N.W.2d at 550-51 (emphasis in original). The...