Gering v. State

• Decision Date: 19 February 1986
• Docket Number: No. 84-1617,84-1617
• Citation: 382 N.W.2d 151
• Parties: Larry GERING, Appellee, v. STATE of Iowa, Appellant.
• Court: Iowa Supreme Court

Page 151

382 N.W.2d 151

Larry GERING, Appellee, v. STATE of Iowa, Appellant.

No. 84-1617.

Supreme Court of Iowa.

Feb. 19, 1986.

Kermit L. Dunahoo of Shelton-Dunahoo Law Firm, Des Moines, for appellee.

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., and James A. Smith, County Atty., for appellant.

Considered en banc.

CARTER, Justice.

Larry Gering, the postconviction relief applicant in the present case, was convicted of first-degree arson in June of 1981. This conviction was affirmed by the court of appeals in an unpublished opinion on April 26, 1983, 339 N.W.2d 171. In the present postconviction proceeding, commenced in March of 1984, he challenged his conviction on several grounds not raised at trial or on direct appeal.

The district court found merit in two of these claims, one of which relates to the instruction on reasonable doubt given at his trial, and the other to the failure of the court at that trial to instruct the jury that its verdict must be unanimous. As a result of these determinations, the district court vacated Gering's conviction and sentence and granted a new trial. The State has appealed from this order. We reverse the order of the district court and reinstate Gering's conviction and sentence.

During Gering's trial on the arson charge in June of 1981, the State offered evidence that a state fire investigator had discovered the remains of newspapers saturated with fuel oil near the origin of a fire occurring in February of 1980, which destroyed an apartment building owned by Gering. Other evidence provided by the State included incriminating statements made by Gering to an insurance adjuster and to one Joleta Ripley concerning his involvement in causing the fire.

On direct appeal from his conviction, Gering raised issues relating to (1) admission of evidence of other crimes, (2) failure of the state to disclose material evidence in pretrial discovery, (3) allowing a State's witness to testify about matters not described in the minutes of testimony, (4) improper cross-examination, (5) admission of laboratory exhibits without sufficient showing as to chain of custody, (6) insufficiency of the evidence to support the conviction, and (7) the statutory defense of "owner's consent." These claims were all found to be lacking in merit by the court of appeals, and a subsequent application for further review was denied by this court.

The issues raised in the postconviction application other than those relating to the reasonable doubt instruction and the unanimous verdict requirement were all rejected by the district court either in its August 23, 1984 order or its subsequent ruling on Gering's motion under Iowa Rule of Civil Procedure 179(b). With respect to the two grounds upon which relief was granted, the State asserts that, absent a finding that Gering's trial counsel were ineffective (a matter on which the postconviction court made precisely the opposite finding), he is barred from pursuing issues not previously raised at trial or on direct appeal by the provisions of Iowa Code section 663A.8.

Gering meets this argument by urging that, notwithstanding the district court's contrary finding (he has cross-appealed from that determination), his two trial counsel were, in fact, ineffective in not raising these issues. In addition, he claims that he should be able to pursue these claims in the postconviction action because the attorney who represented him on direct appeal was also ineffective for not pursuing these issues on appeal under the rubric of an ineffective assistance claim. The State denies that Gering's counsel were ineffective either at trial or on direct appeal. In addition, it asserts a lack of prejudice to Gering from the matters of which he complains.

I. Failure to Challenge Alleged Errors at Original Trial.

The district court granted postconviction relief to Gering after finding that the court at his trial, in instructing the jury, failed to follow the mandate of State v. McGranahan, 206 N.W.2d 88, 92 (Iowa 1973) by not referring to "evidence produced by the State" in the reasonable doubt instruction, and failed to instruct the jury that its verdict must be unanimous. Neither of these omissions were objected to by Gering's counsel at the original trial. At the postconviction hearing, the attorneys who represented him at trial testified that they failed at the time to notice these two deficiencies in the instructions.

It is provided in Iowa Code section 663A.2 pertaining to postconviction relief that "this remedy is not a substitute for ... direct review of the sentence or conviction." Section 663A.8 further provides:

Any ground ... not raised ... in the proceeding that resulted in the conviction or sentence ... may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted.

(Emphasis added.) In our recent decision in Polly v. State, 355 N.W.2d 849, 856 (Iowa 1984), we specified that, in addition to this statutory requirement that a postconviction applicant show a sufficient reason for failure to have asserted a ground for relief, it is also necessary to establish "actual prejudice resulting from [the] errors" in order to prevail.

In Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984), we determined that the degree of prejudice required to be shown in postconviction relief proceedings in order to overturn a criminal conviction on grounds not previously urged as a result of ineffective assistance of counsel is that espoused by the Supreme Court in Strickland v. Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984):

The defendant must show that there is 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.

We also recognized in Taylor, 352 N.W.2d at 685 that it is not necessary to determine whether counsel's performance was deficient before examining the prejudice component of an ineffectiveness claim. Accordingly, we first consider the issues of prejudice, if any, arising from the irregularities at the original trial for which the district court granted postconviction relief.

A. Absence of an Instruction Requiring a Unanimous Verdict. Although there appears to be no federal constitutional right to a unanimous jury verdict in a state criminal prosecution, see Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), Gering urges that this court has opted in favor of unanimity. We will assume for purposes of the present case that he is correct in this contention and that conviction by a vote of less than all of the jurors would satisfy the prejudice standard necessary to mount a collateral attack on such conviction. Notwithstanding these assumptions, we believe that the failure to instruct the jury on unanimity in the present case was harmless.

It appears that, at one stage of the trial prior to arriving at its verdict, the jury sent a written message to the trial judge advising that it was deadlocked ten to two, a circumstance strongly suggesting that the jurors were aware that their verdict was required to be unanimous. Evidence was offered at the postconviction hearing that a poll of the jurors was conducted before their discharge which revealed that each was in agreement with the verdict rendered. Finally, evidence was presented at the postconviction hearing that a private investigator had interviewed several of the jurors who served at Gering's trial following the conclusion of their terms of service on the jury panel. Such interviews were conducted on behalf of Gering's trial...