Gavin v. State

• Decision Date: 20 April 1988
• Docket Number: No. 86-1529,86-1529
• Citation: 425 N.W.2d 673
• Parties: Michael P. GAVIN, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.
• Court: Iowa Court of Appeals

Page 673

425 N.W.2d 673

Michael P. GAVIN, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.

No. 86-1529.

Court of Appeals of Iowa.

April 20, 1988.

John O. Moeller, Davenport, for applicant-appellant.

Thomas J. Miller, Atty. Gen., Richard J. Bennett, Asst. Atty. Gen., and Realff Ottesen, Asst. Co. Atty., for respondent-appellee.

Considered by HAYDEN, P.J., and SACKETT and HABHAB, JJ.

HABHAB, Judge.

A trial information was filed on February 26, 1981, in the Scott County District Court, charging the defendant and four others with several crimes including murder in the first degree, kidnapping in the first degree, and theft in the second degree. The defendant was convicted after his first jury trial on all of those charges.

On appeal of his conviction, the Supreme Court of Iowa held that the trial court committed reversible error in allowing impeachment of the defendant based upon a prior escape charge. State v. Gavin, 328 N.W.2d 501, 503 (Iowa 1983). The Iowa Supreme Court then remanded the case to the trial court.

Following the remand to the district court, the defendant was again tried before a jury. The jury returned verdicts of guilty against the defendant for the crimes of first-degree murder, second-degree kidnapping, and second-degree theft.

The defendant then appealed his conviction to the Iowa Supreme Court. The court affirmed the convictions, finding that the defendant's claim that he was denied his federal constitutional right to a trial by a fair and impartial jury was without merit. State v. Gavin, 360 N.W.2d 817 (Iowa 1985).

The defendant filed for postconviction relief which was denied. On appeal of this denial, the defendant contends (1) his trial counsel erroneously failed to object or offer an alternative to the felony murder instruction which was given to the jury at the second trial, and his appellate counsel in the second appeal failed to either raise or preserve these matters for postconviction, and (2) he was deprived of his constitutional right to a unanimous jury verdict, which claim previously was not raised by either trial or appellate counsel.

It is well established that postconviction proceedings are inappropriate for presentation of issues not properly preserved and raised in prior proceedings. See Iowa Code § 663A.8 (1987). As the court in Washington v. Scurr, noted:

Postconviction relief is not a means for relitigating claims that were or should have been properly presented at trial or on direct appeal. § 663A.2. Any claim not properly raised at trial or on direct appeal may not be litigated in postconviction unless there is sufficient reason for not properly raising it previously.

Washington v. Scurr, 304 N.W.2d 231, 234 (Iowa 1981); see also Polly v. State, 355 N.W.2d 849, 854-56 (Iowa 1984); Wenman v. State, 327 N.W.2d 216, 217-18 (Iowa 1982).

The only way that the defendant can obtain review of his claim is to prove by a preponderance of the evidence "sufficient reason" or cause for not having raised them in the trial court or on direct appeal. Hinkle v. State, 290 N.W.2d 28, 31 (Iowa 1980). The defendant must also show by a preponderance of the evidence actual prejudice resulting from the alleged errors. Polly v. State, 355 N.W.2d at 856. When a petitioner's claim of ineffective trial counsel is raised for the first time in a postconviction petition, he must demonstrate "sufficient reason" for failure to raise it on direct appeal. Washington v. Scurr, 304 N.W.2d at 235. The ineffective assistance of appellate counsel may provide the "sufficient reason" necessary to allow a petitioner to raise for the first time in postconviction the ineffective assistance of trial counsel. State v. White, 337 N.W.2d 517, 520 (Iowa 1983).

We are not completely satisfied that the defendant has demonstrated sufficient reason for his failure to earlier raise his claims. We note, however, that under both the waiver doctrine and the ineffective assistance of counsel claim, we have to determine if the defendant was prejudiced. For that reason, we will review defendant's claims.

I.

The defendant complains about the instructions given to the jury on the issues of felony murder and aiding and abetting. More precisely, the issue is ineffective assistance of counsel concerning failure to object to the instructions. The trial court read the instructions complained of and found them to be correct statements of the law. The trial court further found that trial counsel and appellate counsel were not ineffective in this connection. Finally, the court found that there was no prejudice to the defendant. We find no error in the court's decision.

The petitioner, in order to prevail on a claim of ineffective assistance of counsel, must show by a preponderance of the evidence that (1) counsel's performance was deficient, and (2) counsel's deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985); White v. State, 380 N.W.2d 1, 3 (Iowa App.1985). If, however, the petitioner makes an insufficient showing on either prong of the two-part test, we need not address both components. Id. In deciding the first prong, we require more than that the trial strategy backfired or that another attorney would have prepared and tried the case somewhat differently. Fryer v. State, 325 N.W.2d 400, 413-15 (Iowa 1982). The petitioner must overcome a strong presumption of counsel's competency. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674, 793-94 (1984). An affirmative factual basis demonstrating the alleged inadequacy of representation needs to be set forth. Hinkle v. State, 290 N.W.2d at 30. Defendant is not entitled to perfect representation, only that which is in the normal range of competency. State v. Halstead, 362 N.W.2d 504, 508 (Iowa 1985). In evaluating ineffective assistance claims, it is axiomatic that the fact that the defense was not successful does not mean that counsel was ineffective. Hall, 360 N.W.2d at 838.

The United States Supreme Court set forth in Strickland the standard by which counsel's performance is to be judged. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Concerning counsel's method of investigation of a particular case, the Strickland court opined that:

Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonably precise to the extent that reasonable professional judgments support the limitations on investigation.

Id. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. The court further reasoned that:

In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Id. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

The Strickland court recognized that usually counsel's actions are based on strategic choices made by the defendant and on information supplied by the defendant. Id. Specifically, the court pointed out that "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id.

Consistent with this view, the Iowa Supreme Court has recognized that the duty to investigate and prepare a defense is not limitless. Schrier v. State, 347 N.W.2d 657, 662 (Iowa 1984). "It does not require that counsel pursue 'every path until it bears fruit or until all conceivable hope withers.' " Id. (citing United States v. Tucker, 716 F.2d 576, 584 (9th Cir.1983)).

When deciding the second component of a claim of ineffective assistance, we have required the person making the claim to show that counsel's failure to perform an essential duty worked to the client's actual and substantial disadvantage, thereby constituting "a denial of the accused's due process right to a fair trial, a fundamental miscarriage of justice, or an equivalent constitutional deprivation." State v. Miles, 344 N.W.2d 231, 234 (Iowa 1984). The crux of the prejudice component rests on whether the defendant has shown "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. The ultimate test is whether under the entire record and totality of the circumstances counsel's performance was within the range of normal competency. Meier v. State, 337 N.W.2d 204, 206 (Iowa 1983); Henderson v. Scurr, 313 N.W.2d 522, 524 (Iowa 1981).

Having reviewed the applicable law, we turn now to the facts to determine whether or not the defendant met those legal standards. At trial the jury was instructed in the first-degree murder marshalling instruction that petitioner could be convicted of murder under one of several alternative theories, which included felony-murder which requires the jury to find that the victim was killed with malice aforethought while petitioner was "participating in the forcible felony of robbery."

The defendant argues that his trial counsel should have requested the following jury instruction:

An instruction that for a felony-murder conviction the murder must in [sic] perpetration of a felony. It must result as an incident to the felony and be associated with the felony as one of its hazards. [citations]. Felony-murder must be based upon a causally [sic] related felony and acts causing death.

The defendant now claims that appellate counsel's failure to assert trial counsel's omission in this regard was ineffective assistance of counsel...