McLaughlin v. State, 94-334

• Decision Date: 21 June 1995
• Docket Number: No. 94-334,94-334
• Citation: 533 N.W.2d 546
• Parties: Richard J. McLAUGHLIN, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 546

533 N.W.2d 546

Richard J. McLAUGHLIN, Appellant, v. STATE of Iowa, Appellee.

No. 94-334.

Supreme Court of Iowa.

June 21, 1995.

Thomas G. Reidel, Muscatine, for appellant.

Thomas J. Miller, Atty. Gen., Mary Tabor, Asst. Atty. Gen., Richard R. Phillips, County Atty., and Ann Terry and Dana Christiansen, Asst. County Attys., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, LAVORATO, and NEUMAN, JJ.

LARSON, Justice.

This postconviction action by Richard McLaughlin challenges his conviction of several counts of sexual offenses. He bases his claim on the alleged ineffectiveness of his trial lawyer. The district court rejected his postconviction application, but the court of appeals reversed. We affirm in part and reverse in part as to both the decision of the court of appeals and the judgment of the district court.

McLaughlin, a former dance instructor, was charged with various sexual offenses involving four of his students. The charges included third-degree sexual abuse, lascivious acts with a child, assault with intent to commit sexual abuse, indecent contact with a child, and lascivious conduct with a minor.

During its deliberation, the jury submitted this written question to the trial judge: "Counts III, V, VI, concerning [victim M.A.], we do not understand which incident matches which charge." Count III charged third-degree sexual abuse; Counts V and VI charged lascivious acts with a child. All of these counts involved acts against only one victim, M.A.

When the court received the jury's question, it notified the prosecutor and the defense attorney and requested their presence in chambers to consider the matter. McLaughlin was not present at this time. The court had allowed him to go home (about ten minutes away) to await the verdict.

The judge proposed this response to the jury's note:

Count III--December 1990, alleged shower incident at the defendant's home. Alleged touched breasts and vaginal area.

Count V--April 28, 1990, alleged shower incident at defendant's home. Also alleged measure for costume with no clothing. Alleged touched breasts and vaginal area.

Count VI--December 1990, alleged defendant got in shower with her. Alleged touched breasts and vaginal area.

See instructions for further information regarding each count.

The district court submitted the proposed instruction without objection.

The jury convicted the defendant on eight counts. The court of appeals, in an unpublished opinion, affirmed defendant's convictions on direct appeal, but preserved for postconviction relief the issue of whether defendant's attorney rendered ineffective assistance in connection with the jury's note.

The defendant filed this postconviction action. At the postconviction hearing, defendant's trial attorney stated that he was ill during the trial and "not at the top of his game." He testified that he had sent the defendant home to await the verdict and could not recall summoning him for consideration of the jury's note. He stated that he did not object to the supplemental instruction because the judge had "simply tried to straighten out" the jury's confusion and that he did not feel the instruction prejudiced the defendant in any way.

The district court denied postconviction relief, but the court of appeals reversed as to all counts on the basis of ineffective assistance of counsel with respect to the supplemental instruction on Counts III, V, and VI.

The standard of review on appeal from the denial of postconviction relief is for errors at law. Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989). 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. Id.; Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984).

To establish a claim of ineffective assistance a defendant must show that: (1) counsel's performance fell outside the normal range of competency; and (2) the deficient performance so prejudiced the defendant as to give rise to a reasonable probability that, but for counsel's errors, the result would have been different. State v. Heacock, 521 N.W.2d 707, 710 (Iowa 1994) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)).

Defendant bases his ineffective-assistance claim on his attorney's failure to: (1) secure his presence during the meeting in which the district court considered the note from the jury; and (2) object to the supplemental instruction, or answer, given by the district court.

In support of his first argument, he cites Iowa Rule of Criminal Procedure 18(5)(g), which states:

After the jury has retired for deliberation, if there be any disagreement as to any part of the testimony, or if it desires to be informed on any point of law arising in the cause, it must require the officer to conduct it into court, and, upon its being brought in, the information required may be given, in the discretion of the trial court.... Where the court gives the jury additional instructions, this shall appear of record. Provided, that the procedures described in this section shall take place in the presence of the defendant and counsel for the defense and prosecution, unless such presence is waived.

(Emphasis added.) Several of our cases have applied rule 18(5)(g) in the context of a court's response to jury questions. See, e.g., State v. Meyers, 426 N.W.2d 614, 617 (Iowa 1988) ("[T]rial courts should generally conduct all matters involving jury inquiry in the presence of the defendant and counsel."); State v. Griffin, 323 N.W.2d 198, 201 (Iowa 1982) ("[T]he trial court has discretion whether, and to what extent, a jury inquiry should be answered; but it has no discretion in deciding whether the defendant and counsel need to be present."); State v. Epps, 313 N.W.2d 553, 556 (Iowa 1981) ("We have consistently disapproved of trial courts having private communications with jurors."); State v. McKee, 312 N.W.2d 907, 914 (Iowa 1981) ("[T]he procedures involved in giving additional instructions must take place in the presence of defendant and his attorney, unless such presence is waived."); State v. Snyder, 223 N.W.2d 217, 221-22 (Iowa 1974).

We have held that the absence of the accused when additional instructions are given raises a presumption of prejudice necessitating reversal unless the record affirmatively shows the instruction had no influence on the jury's verdict prejudicial to the defendant. See Meyers, 426 N.W.2d at 616; Griffin, 323 N.W.2d...