Hinkle v. State

• Decision Date: 19 March 1980
• Docket Number: No. 63313,63313
• Citation: 290 N.W.2d 28
• Parties: Elbert James HINKLE, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 28

290 N.W.2d 28

Elbert James HINKLE, Appellant, v. STATE of Iowa, Appellee.

No. 63313.

Supreme Court of Iowa.

March 19, 1980.

James P. Cleary, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., Dan Johnston, Polk County Atty., and Michael Hansen, Asst. County Atty., for appellee.

Considered by REYNOLDSON, C. J., and REES, HARRIS, McGIVERIN, and LARSON, JJ.

REYNOLDSON, Chief Justice.

This is another in a rising river of postconviction relief proceedings in which the competency of counsel who represented petitioner in the prior criminal action is put in issue. District court denied relief and petitioner Hinkle appeals. We affirm.

Hinkle's first-degree murder conviction was affirmed on appeal. State v. Hinkle, 229 N.W.2d 744 (Iowa 1975). The criminal trial transcript, made a part of this proceeding, discloses there was overwhelming evidence from which the jury could have found the following facts. Hinkle became angry because his girl friend, Patty Bradley, decided to return to her husband. He broke into Patty's home on the morning of the murder and stole the murder weapon. He called her the afternoon of the murder and said he was going to kill her. He obtained additional bullets for the gun, walked to Patty's home, and excited the neighborhood as he broke the front door down. Hinkle shot Patty seven times, then tried to rape her. Within five minutes after the murder the police found him hiding in the basement with human blood on his underpants and the murder weapon in his pocket.

In this postconviction proceeding Hinkle asserts (1) he was denied an adequate pretrial psychiatric examination to determine his sanity at the time of the offense and he was thereby denied due process, and because of ineffective appellate counsel this issue was not raised in the direct appeal; and (2) he was denied effective assistance of counsel at trial, evidenced by several specified failures.

I. Burden of proof and judicial review.

Ordinarily a proceeding under the Uniform Postconviction Procedure Act (chapter 663A, The Code) is at law and our review is not de novo. Hines v. State, 288 N.W.2d 344, 345 (Iowa 1980). But where, as here, the postconviction petitioner asserts violations of constitutional safeguards, we make our own evaluation of the totality of circumstances. Lawson v. State, 280 N.W.2d 400, 401 (Iowa 1979). This is the equivalent of a de novo review. Kellogg v. State, 288 N.W.2d 561, 563 (Iowa 1980), and citations.

The petitioner must shoulder the burden of proof to establish by a preponderance of evidence a claim of ineffective assistance of counsel. Kellogg, 288 N.W.2d at 563; State v. Hicks, 277 N.W.2d 889, 896 (Iowa 1979); State v. Veverka, 271 N.W.2d 744, 750 (Iowa 1978). The test is whether under all the circumstances counsel's performance was within the range of normal competency. Cleesen v. State, 258 N.W.2d 330, 332 (Iowa 1977). Such circumstances must include an affirmative factual basis demonstrating counsel's inadequacy of representation. Id. at 332.

The required examination should proceed while resisting, in the light of hindsight, the temptation to Monday morning quarterback the lawyer in the arena. Nor should the inquiry degenerate into a postmortem, microscopic dissection of each desperate effort of counsel to save a terminal case.

(E)ffective assistance of counsel does not mean successful. Rather, it denotes conscientious, meaningful legal representation wherein the accused is advised of his rights and honest, learned and able counsel is accorded reasonable opportunity to perform his assigned task. Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel.

Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972).

The right to effective assistance of counsel also applies to assistance of counsel on appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The same standards applied to trial counsel competency should apply in measuring the competency of appellate counsel. See Cleesen, 258 N.W.2d at 332.

II. Adequacy of pretrial psychiatric examination.

Trial counsel in the criminal case raised the issue of the adequacy of Hinkle's pretrial psychiatric examination. Hinkle now urges the alleged inadequacy denied him his right to a fair trial and due process of law as guaranteed by the fourteenth amendment.

Under our decisions this new ground cannot be raised in a postconviction relief proceeding unless Hinkle establishes by a preponderance of the evidence "sufficient reason" for not having raised the inadequacy issue on his direct appeal. See, e. g., Armento v. Baughman, 290 N.W.2d 11, 13 (Iowa 1980); Redding v. State, 274 N.W.2d 315, 317 (Iowa 1979); Bledsoe v. State, 257 N.W.2d 32, 33, 34 (Iowa 1977); §§ 663A.2, -.8, The Code. Multiple grievances of a convicted defendant should be submitted in a unitary action rather than piecemeal in successive actions. Carstens v. Rans, 210 N.W.2d 663, 664-65 (Iowa 1973).

Inadequacy of appellate counsel, if established, would provide "sufficient reason" to permit Hinkle to raise this issue now although he did not do so on direct appeal. See State v. Masters, 196 N.W.2d 548, 550 (Iowa 1972). See also Horn v. Haugh, 209 N.W.2d 119, 121 (Iowa 1973). We thus proceed to an examination of the totality of the circumstances under which the postconviction court's ruling was made, to determine if Hinkle has established by a preponderance of evidence the inadequacy of his counsel on appeal. If he was competently represented on appeal he cannot raise now the inadequacy of his pretrial psychiatric examination.

Hinkle's trial was set for January 22, 1973. On January 15 defense counsel filed an application to have him taken to the Security Mental Health Institute at Oakdale for examination and evaluation as to his competency to stand trial and to determine his sanity or insanity at "the time of the alleged incident." The next day defense counsel filed a motion for continuance, citing among other reasons the requested examination. Trial court first ordered the examination to be made at Broadlawns Hospital, Des Moines, but on January 17, "because of the number of patients and workload" at Broadlawns, ordered the sheriff to transport Hinkle to the Johnson County jail "for psychiatric evaluation (by Dr. Paul L. Loeffelholz) to determine if the defendant is competent to stand trial."

The examination was conducted January 18. Hinkle was first seen by psychologist Dr. Edwin Johnston, for an hour and fifteen minutes "at the minimum." He was administered an intelligence test which placed him on the low normal range. Dr. Johnston also administered the usual Gossit test employed for claims of brain damage, which was negative, and a draw-a-person test. There was no evidence of psychiatric disorder. Thereafter he was seen for about an hour and a half by Dr. Loeffelholz, who then spent an equal amount of time studying the record of Hinkle's case and relating that material to the direct interview.

January 18, Dr. Loeffelholz forwarded a letter to trial court outlining his examination and expressing his opinion Hinkle was "clearly" competent to stand trial and aid in his own defense. Two days later, apparently at the request of the trial court or assistant Polk County attorney, he wrote a second letter providing further factual findings relating to Hinkle's sanity at the time of the October 6, 1972, homicide. Dr. Loeffelholz stated Psychiatric evaluation clearly indicates that Mr. Hinkle has the capacity to know right from wrong and is able to form intent consistent with responsibility for his behavior.

There is no history which would support the belief that he was unable to know right from wrong on or about October 6, 1972.

Defense counsel raised the issue of the adequacy of the psychiatric evaluation by motion filed January 19 and by motions for new trial and in arrest of judgment.

Circumstances bearing on effectiveness of Hinkle's trial counsel should include his testimony at the postconviction hearing. Counsel stated that Hinkle made references to a boyhood hit on the head and, "He told me that he had blackout periods when he drank, and I assumed that the blackout periods . . . were in connection with his drinking," but explained that in nine meetings with his client before trial "he showed no indication of any mental problem or process mental process deficiency whatsoever." Counsel indicated the application for examination was filed to try to get "leverage" for plea bargaining. There is an underlying inference it was also an attempt to buy time.

After reading Dr. Loeffelholz's report, counsel consulted a psychiatrist friend who told him the standard for these types of reports varied from doctor to doctor and he was unwilling to say it was not adequate. Counsel was led by this conversation to conclude he probably would not find anyone to challenge the examination. Based upon Dr. Loeffelholz's report and his experience with him as a witness, he knew the Doctor would say nothing to help Hinkle if called to the witness stand. As for raising the adequacy of the examination on appeal, defense counsel, who was also appellate counsel, testified Hinkle said that, "I was the lawyer and he would abide by my opinions." Counsel's practice was not to "shotgun" appeals and raise every conceivable issue:

I decided not to appeal it because I didn't think the record would support a any serious look by the Supreme Court at the issue because I didn't have an expert to go against Doctor Loeffelholz. . . . As it was, all I had was Mr. Hinkle saying he was examined for an hour and a half and, on the other hand, we had Dr. Loeffelholz's report from a qualified certified psychiatrist who is the head of the institution at Oakdale.

Our de novo review of all these circumstances, including the information counsel obtained from his psychiatrist friend,...