Kane v. State, 87-158

• Citation: 436 N.W.2d 624
• Decision Date: 22 February 1989
• Docket Number: No. 87-158,87-158
• Parties: Thomas KANE, Appellant, v. STATE of Iowa, Appellee.
• Court: United States State Supreme Court of Iowa

Page 624

436 N.W.2d 624

Thomas KANE, Appellant, v. STATE of Iowa, Appellee.

No. 87-158.

Supreme Court of Iowa.

Feb. 22, 1989.

James P. Cleary, Phoenix, Ariz., for appellant.

Thomas J. Miller, Atty. Gen., Bruce Kempkes, Asst. Atty. Gen., and E.A. Westfall, County Atty., for appellee.

Considered by McGIVERIN, C.J., and LAVORATO, NEUMAN, SNELL and ANDREASEN, JJ.

McGIVERIN, Chief Justice.

Applicant, Thomas Kane, was convicted of first degree murder in violation of Iowa Code sections 707.1 and 707.2 (1979). On his direct appeal, we affirmed the conviction. His subsequent application for postconviction relief was denied by the district court. On the present appeal, Kane claims 1) ineffective assistance of appellate counsel in his criminal case, 2) he was denied a fair trial in his criminal case due to a private communication between the trial judge and jury, and 3) ineffective assistance of his criminal case trial counsel. This postconviction case appeal was transferred to the court of appeals which reversed the judgment of the postconviction court and remanded for a new trial in the criminal case. The State applied for further review, which we granted. We now vacate the decision of the court of appeals and affirm the judgment of the postconviction court.

I. Background facts and proceedings. On October 7, 1980, Kane and another after-hours patron of a Council Bluffs tavern entered into an argument. Insults were traded, and Kane accepted the other patron's invitation to take the argument outside. In the alley behind the tavern, Kane shot the other patron four times, fatally wounding him.

Kane was immediately apprehended and thereafter charged with first degree murder.

At trial, Kane asserted alternative defenses: self defense, and diminished capacity due to intoxication. Following the evidence and after the case was submitted to the jury, the jury sent a note to the presiding judge inquiring about the testimony of three witnesses for the prosecution. Specifically, those questions were:

Did Dorothy Pierce [a neighbor to the shooting scene] say that she told Lt. Shaw that she heard moans and pleas for help when Lt. Shaw spoke to her at the phone booth.

Re: Dr. Scartino's testimony. Was the trajectory on the shot that went through the tissue [of the victim] on the left side up or down, how the angle was described.

Did Lt. Shaw say that Dorothy Pierce told him about the moans and pleas for help at the phone booth.

There was no request by the jury that testimony of the witnesses be read back to the jury. The questions obviously were directed for the court to answer.

The trial judge, without consulting either counsel or Kane, issued a written response stating, "You, the Jury, will have [to] rely on your own recollection of the testimony." There is no dispute that this instruction was transmitted to the jury through the court attendant outside of the presence or knowledge of Kane and counsel.

A jury verdict was rendered finding Kane guilty of murder in the first degree. Judgment and sentence were entered upon the verdict.

Kane appealed his conviction. He asserted on the direct appeal that the trial court erred in overruling his motion for mistrial after a State witness disclosed Kane had a criminal record, and in overruling his motion for judgment of acquittal of first degree murder because of insufficient evidence on the mens rea of that offense. At the time of the appeal, Kane's appellate counsel who was different from his trial counsel was aware of the communication between judge and jury, but elected not to present this issue on direct appeal.

Kane's conviction was affirmed by a per curiam decision of this court. State v. Kane, 319 N.W.2d 312 (Iowa 1982) (table).

By new counsel, Kane then filed an application, as amended, for postconviction relief, alleging he was denied a fair trial. The grounds assigned for relief included Kane's trial counsel's failure to object to certain jury instructions, ineffective assistance of trial and appellate counsel, and improper communication between the trial judge and jury. The application was denied by the district court.

Kane appealed the judgment of the postconviction court and the matter was transferred to the court of appeals. The court of appeals found that Kane's trial counsel was not ineffective and that no error occurred in counsel's failure to object to certain jury instructions. The court of appeals reversed the postconviction court, however, and ordered that Kane be granted a new trial because the trial court's communication with the jury was outside the presence of Kane and defense counsel in violation of Iowa Rule of Criminal Procedure 18(5)(g). Only the State sought further review of this decision, which we granted.

II. Preservation of error. The State contends that Kane failed to preserve error concerning the trial court's jury communications. The State alleges that by not asserting the error on direct appeal in the criminal case, applicant has waived review and postconviction relief in the present case; thus, the court of appeals erred by reaching the merits of the jury communications issue and reversing the district court. Kane counters that assigning such error on the direct appeal was unnecessary, and if necessary, the omission was due to ineffective assistance of appellate counsel.

Proceedings under Iowa Code chapter 663A are civil actions at law and ordinarily reviewed on error. When there is an alleged denial of constitutional rights, however, we make our own evaluation of the totality of the circumstances in a de novo review. Polly v. State, 355 N.W.2d 849, 854 (Iowa 1984). We assume without deciding, for purposes of this review, that Kane's claims relating to the trial court's communications with the jury implicate not only our Iowa rules of criminal procedure, but also Kane's sixth amendment rights under the United States Constitution. See State v. Meyers, 426 N.W.2d 614, 616 (Iowa 1988). Therefore, our review is de novo.

Iowa Code section 663A.8 generally bars applicants in postconviction actions from assigning grounds for relief which were not asserted on direct appeal from the criminal conviction. That section provides:

All grounds for relief available to an applicant under this chapter must be raised in the applicant's original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, 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 or was inadequately raised in the original, supplemental or amended application.

Iowa Code § 663A.8 (1987) (emphasis added).

In Washington v. Scurr, 304 N.W.2d 231, 235 (Iowa 1981), we stated that postconviction proceedings should not be considered to be a substitute for direct appeal. "We will not ordinarily allow a defendant to claim in postconviction proceedings that the trial court erred on issues that were not properly presented for our review on direct appeal." Id.

In order to assign new error challenging a conviction, an applicant must "not only show 'cause' (or Iowa Code section 663A.8 'sufficient reason') for failure to challenge the alleged errors in trial court, but also show actual prejudice resulting from these errors." Polly, 355 N.W.2d at 856 (citing Wainwright v. Sykes, 433 U.S. 72, 85, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594, 607 (1977)).

A. Cause or "sufficient reason". It is not disputed that Kane failed to adequately allege an improper jury communication in his direct appeal. See State v. White, 337 N.W.2d 517, 519-20 (Iowa 1983). Instead, he asserts that any failure to raise the error on direct appeal was due to the ineffective assistance of his appellate counsel.

Ineffective assistance of counsel may satisfy the "sufficient reason" element of the test articulated in Polly. Lamphere v. State, 348 N.W.2d 212, 215 (Iowa 1984). To establish a claim of ineffective assistance of trial counsel, we have indicated the applicant must show: 1) that counsel's performance was so deficient as not to be functioning as "counsel" guaranteed by the sixth amendment; and 2) that the deficient performance so prejudiced the defense as to deprive the defendant of a fair trial. State v. Losee, 354 N.W.2d 239, 243 (Iowa 1984) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). A claim of ineffective assistance of appellate counsel must satisfy an analogous standard. See Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987). Representation by counsel is presumed to be competent, and a postconviction applicant has the burden to prove by a preponderance of the evidence that counsel was ineffective. Snethen v. State, 308 N.W.2d 11

, 14 (Iowa 1981).

1. Appellate counsel's performance. Improvident trial strategy, miscalculated tactics, or mistakes in judgment do not necessarily amount to ineffective assistance of counsel. Hinkle v. State, 290 N.W.2d 28,34 (Iowa 1980).

In his testimony before the district court in Kane's postconviction hearing, Kane's counsel from the direct appeal stated that he was aware of the trial court's communication with the jury and the possible violation of Iowa Rule of Criminal Procedure 18(5)(g). Counsel testified that he elected not to assign this error on appeal, however, because he considered the error to be without merit and predicted "the [supreme] court would be highly unlikely to reverse on that limited type of language by the [trial] court."

We refused to find the performance by appellate counsel to be deficient in a similar postconviction action. In Cuevas, 415 N.W.2d at 631, the applicant claimed ineffective assistance of appellate counsel where counsel declined to present an issue on direct appeal that ultimately...