Lamphere v. State, 83-62

• Decision Date: 11 April 1984
• Docket Number: No. 83-62,83-62
• Citation: 348 N.W.2d 212
• Parties: Richard Andrew LAMPHERE, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 212

348 N.W.2d 212

Richard Andrew LAMPHERE, Appellant, v. STATE of Iowa, Appellee.

No. 83-62.

Supreme Court of Iowa.

April 11, 1984.

Kermit L. Dunahoo, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Joseph P. Weeg, Asst. Atty. Gen., and Dan L. Johnston, County Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, McGIVERIN, and SCHULTZ, JJ.

REYNOLDSON, Chief Justice.

Applicant Richard Lamphere appeals from a district court ruling denying him postconviction relief. We affirm and remand with direction.

The transcripts of the trial and related hearings leading to the underlying convictions of first-degree kidnapping and second-degree sexual abuse are in evidence here. The jury could have found that applicant accosted the victim outside Peggy's tavern in Des Moines and forced her into his car at gunpoint. After handcuffing her, applicant drove to a city park where he subjected her to various acts of sexual abuse. The victim, fearful that he would kill her, convinced applicant she would spend the night with him. Applicant drove to a motel, and when he ran inside to register, the victim drove off in the car. Unfamiliar with the city, she finally stopped at an Ankeny service station, where the attendants called the Ankeny police. They in turn called their Des Moines counterparts. The jury also could have found that after applicant was stranded at the motel, he found transportation back to Peggy's tavern and reported his car had been stolen from that location.

The victim's testimony was supported by her injuries, by the testimony of another witness who saw applicant loading a gun in the tavern parking lot, and by an expert witness who identified applicant's writing on the motel registration card.

Applicant claimed to have been visiting an unidentified friend during most of the critical time, and then to have stopped at Peggy's tavern for a six pack of beer. According to applicant, his car was missing when he emerged from Peggy's. Following a brief search, he called the police to report it stolen. The officers took him to the police station to make out a stolen vehicle report. Later that night they charged him with sexual abuse.

The jury convicted applicant of first-degree kidnapping, a violation of Iowa Code section 710.2, and of second-degree sexual abuse, a violation of Iowa Code section 709.3(1). At sentencing on February 2, 1979, applicant indicated a desire to appeal. He did not retain his trial lawyer for this purpose, although he testified at the postconviction hearing that trial counsel had given his defense "the best shot he could." Instead, he hired a Des Moines attorney, William H. Cone, Jr. Applicant's family paid attorney Cone about $5,000 initially, and several smaller amounts later.

Although Cone assisted applicant's trial counsel in post-trial motions, he did not file an appendix or brief in this court. October 11, 1979, our clerk sent him a default notice, to which no response was filed. November 20, 1979, applicant's appeal was dismissed pursuant to rule 19, Iowa Rules of Appellate Procedure. Cone made no motion to reinstate the appeal. The postconviction evidence convinces us he did not inform applicant of these events until almost a year later, when he sent a handwritten letter that applicant received November 18, 1980. In that communication Cone informed applicant he had no grounds for direct appeal; his only recourse was through a postconviction proceeding.

Applicant, who thought at all times that an appeal was in progress and that he had grounds for appeal, wrote to the trial judge on December 3, 1980. The appellate defender's office was appointed to represent applicant. This court overruled a motion to reinstate the appeal. Applicant's present counsel was then appointed to represent him in postconviction proceedings. Following a hearing, the district court denied postconviction relief.

In this case applicant has raised the following issues: (1) ineffective assistance of appellate counsel, (2) ineffective assistance of trial counsel, (3) error in admission of evidence seized in a search, and (4) unconstitutional cruel and unusual punishment in imposing a life sentence.

Because all of these issues are constitutional in dimension, our review is de novo. See, e.g., State v. Newman, 326 N.W.2d 788, 793 (Iowa 1982); State v. Harlan, 301 N.W.2d 717, 718 (Iowa 1981).

I. Ineffective Assistance of Appellate Counsel.

The State argues applicant is barred from raising several of the issues presented in this appeal because he cannot demonstrate "sufficient reason" under Iowa Code section 663A.8 for failing to raise them on a direct appeal, citing Bledsoe v. State, 257 N.W.2d 32, 33-34 (Iowa 1977). Of course, ineffectiveness of counsel provides a "sufficient reason" for the purposes of section 663A.8. See State v. Schoelerman, 315 N.W.2d 67, 71-73 (Iowa 1982).

Attorney Cone, who filed the notice of appeal following applicant's convictions, elected to permit the appeal to be dismissed and did not notify the applicant. His letter written to applicant the following year discloses the funds he had received for fees and expenses of appeal had been paid by applicant's mother and that applicant was without funds.

We need not decide here whether the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and rule 104, Iowa Rules of Appellate Procedure apply. It is clear that Cone's duties as a lawyer and officer of this court required him to notify his client of his decision to abandon the appeal in time for his client to find some other method of protecting his rights. Disciplinary rule 2-110(A)(2), Iowa Code of Professional Responsibility for Lawyers, forbids an attorney to withdraw from employment "until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, [and] delivering to the client all papers and property to which the client is entitled." Attorney Cone's decision to allow dismissal of applicant's appeal was tantamount to a withdrawal and invoked the above rule, which he did not follow. Cf. Committee on Professional Ethics and Conduct v. Freed, 341 N.W.2d 757 (Iowa 1983) (attorney disciplined for failure to prosecute client's civil appeal).

Although it is charitable to characterize attorney Cone's assistance as ineffective, we can and will avoid prejudice to applicant by avoiding the bar of Iowa Code section 663A.8 and considering the issues now raised under the rationale of Fryer v. State, 325 N.W.2d 400, 404 (Iowa 1982); and Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 33-34 (Iowa 1979). Thus we proceed to the next issue.

II. Ineffective Assistance of Trial Counsel.

Applicant now asserts his trial counsel was ineffective in implementing applicant's alibi defense, in failing to object to certain jury instructions, and in failing to raise double jeopardy objections.

The burden of proof to establish ineffectiveness is on applicant, who must rebut the presumption of counsel's competence. "[T]he ultimate test is whether ... counsel's performance was within the range of normal competency." (Citations omitted.) Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). Relief will be granted only if applicant has been prejudiced by counsel's substandard performance. Id. We will not hold applicant has been prejudiced unless the error constitutes "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).

A. Alibi Defense.

Applicant's trial counsel filed a pretrial notice of an alibi defense. See Iowa R.Crim.P. 10(11)(a). In compliance with the rule, the notice listed William Talbert as a person in whose home applicant spent "some of such material times," and the names of two bartenders from Peggy's. Applicant now asserts trial counsel provided ineffective assistance by not presenting the two bartenders as "alibi-buttressing" witnesses, and by not requesting an alibi instruction.

Upon his direct examination, applicant testified he spent part of the critical time ("closer to an hour" than to five minutes) at the home of a friend. On cross-examination, he testified this person was not William Talbert, but refused to provide the name because the person "deals in marijuana" and "I am not going to jeopardize his life." Applicant nonetheless contends the two bartenders should have been called to testify. Trial counsel testified at the postconviction hearing, however, that one bartender could only place applicant at Peggy's sometime between 11:30 p.m. and 1 a.m., and the other indicated only that applicant might have arrived about 12:30 a.m.

This evidence would not have rebutted the victim's testimony that she was abducted by applicant at 11 p.m. See Thomas v. Estelle, 588 F.2d 170, 171 (5th Cir.1979), in which counsel's failure to call alibi witnesses was not adjudged ineffective assistance: "Their testimony, however, would not have aided defendant at trial, since they do not account for his activities during the time of the alleged assault." Trial counsel's decision not to call these bartenders cannot be characterized as ineffective assistance of counsel.

Applicant asserts counsel's failure to request the alibi instruction ¹ is further evidence of his ineffective assistance. Trial counsel testified at the postconviction hearing that he knew there was a standard alibi instruction, but elected not to ask for it because he did not think it was necessary; the State had to prove applicant was present at the critical time and place. Counsel's rationale, drawn from all of his testimony, is articulated more clearly in an annotation, 72 A.L.R.3d 547, 557 (1976):

Several courts have suggested that in certain circumstances, an alibi charge might be undesirable since it...