Osborn v. State, 94-684

• Decision Date: 18 February 1998
• Docket Number: No. 94-684,94-684
• Citation: 573 N.W.2d 917
• Parties: Jerry Lee OSBORN, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 917

573 N.W.2d 917

Jerry Lee OSBORN, Appellant, v. STATE of Iowa, Appellee.

No. 94-684.

Supreme Court of Iowa.

Feb. 18, 1998.

Rehearing Denied March 18, 1998.

David McCord, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Julie H. Brown, Assistant Attorney General, William E. Davis, County Attorney, and Realff Ottesen, Assistant County Attorney, for appellee.

Considered by HARRIS, P.J., and LARSON, CARTER, NEUMAN, and TERNUS, JJ.

HARRIS, Justice.

This appeal from a district court decree denying postconviction relief presents a classic conflict between two basic rights. One is the fundamental constitutional right to a fair trial. Under the facts here a claim that this right was violated is confronted by society's right to finality in criminal prosecutions. We find that the postconviction plaintiff waived his present fair-trial challenge by not raising it during his prior direct appeal. We affirm.

Jerry Lee Osborn, the postconviction plaintiff, was convicted following a bench trial of first-degree kidnapping, attempted murder, and first-degree robbery. His direct appeal from the convictions resulted in an affirmance. State v. Osborn, 455 N.W.2d 292 (Iowa App.1990). Osborn was tried jointly with Carl Gordon Ramsey who was convicted of the same offenses, but by a jury. We affirmed Ramsey's convictions in State v. Ramsey, 444 N.W.2d 493 (Iowa 1989). Also implicated was Osborn's younger half-brother, Larry Joe McFarland, then fifteen years of age.

Osborn and McFarland had stolen two guns which they had in their possession. They met up with Ramsey and Ramsey's girlfriend, Cristal Jones, with whom they had become acquainted a few days earlier. Osborn and McFarland sold one of the two stolen guns to an acquaintance for fifteen dollars which they used to buy beer and wine coolers for the four.

The extent of Osborn's--as well as McFarland's--participation in what followed is disputed. But under either the State's or Osborn's version, Ramsey later approached a man sitting alone in a pickup truck and asked for a ride to a party at a location out in the country. The man, James Clark, agreed. Ramsey, Osborn, and McFarland got into the truck. Jones however went into a bar and telephoned the police.

When the four reached a rural area Ramsey, using the remaining stolen gun, shot Clark in the head. Clark survived. Ramsey, Osborn, and McFarland proceeded to steal Clark's truck, $200 to $300 in cash, and a checkbook. The three were later apprehended in St. Louis, Missouri, in Clark's truck. Osborn waived his right to a jury trial and his case was tried to the court simultaneously with Ramsey's jury trial.

Osborn presented two witnesses at trial. The first, his mother Donna McFarland, testified that Osborn had a nonviolent character. The second was McFarland who, when called, refused to testify, claiming his constitutional privilege against self-incrimination under the fifth amendment of the United States Constitution.

The next day Osborn's trial attorney, Phil Goedken, alleged to the court the reason McFarland had invoked the privilege was because of prosecutorial intimidation. He asserted an assistant county attorney, Realff Ottesen, threatened to bring charges against McFarland as an adult if he testified on Osborn's behalf. The State denied the accusations and the court overruled the motion, finding it had no factual basis. There was no offer of proof and the trial ended at this point. Osborn's convictions followed.

On direct appeal Osborn assigned only two errors: whether the acts amounted to kidnapping when the victim voluntarily consented to drive the defendant to the country; and whether the kidnapping statute was unconstitutionally vague. Both assignments were rejected. Osborn, 455 N.W.2d at 294-95.

As suggested at the postconviction hearing, the State's and Osborn's versions of the events leading up to the shooting differ sharply. McFarland there testified that neither he nor Osborn knew Ramsey was going to shoot the victim or steal his truck. He stated they just wanted a ride to a party. This version was of course in sharp contrast with the prosecution evidence at trial.

According to Cristal Jones' trial testimony, after the fifteen dollar gun sale, while drinking beer and wine coolers, the three men discussed obtaining a ride from someone, shooting them, and taking their car. According to this testimony, Osborn was suggesting this and both Ramsey and McFarland were "going along with it." Jones accompanied the three until Ramsey, Osborn, and McFarland left with Clark. Jones' trial testimony continued:

DAVIS [the prosecutor]: Did you know what their destination was when they drove away --- where they were going?

JONES: Well, they said that they were going to have him drive out by Bettendorf, you know, and then they said something about going out to McCausland after that.

DAVIS: Okay. Did they say what they were going to do after they drove out there?

JONES: They were going to go out to McCausland and then shoot him out there and then go to Missouri or something, and then they were going to go to California or Florida. They weren't for sure which yet.

DAVIS: And how long had they been planning that --- how many days?

JONES: Well, they didn't plan to shoot him until that day, but before that, they were just going to beat somebody up for about probably three days before that.

DAVIS: When you were back on the porch with the beer and wine coolers and there was a gun, then it was decided that they would shoot him?

JONES: Yeah.

....

DAVIS: Was there a discussion about when he would be shot?

JONES: Yeah, [Osborn] told him not to shoot him until he told him to....

DAVIS: And why did that come up?

JONES: Because [Ramsey] said something about shooting him in the truck, and [Osborn] told him not to because it would make a mess.

....

DAVIS: Now this discussion about actually robbing someone, taking their truck, do you know when that started?

JONES: A few days before it happened.

DAVIS: And there wasn't any talk about shooting someone until suddenly they had the guns?

JONES: Until that day yeah.

DAVIS: And the discussions that you heard, who was doing the talking?

JONES: Mostly [Osborn] was.

After the three left with Clark in his truck, Jones called the police and reported the plan.

I. Postconviction relief proceedings are actions at law and are reviewed on error. State v. Blum, 560 N.W.2d 7, 9 (Iowa 1997). But when the postconviction applicant asserts violations of constitutional safeguards, we make our own evaluation of the totality of the circumstances in a de novo review. Jones v. State, 479 N.W.2d 265, 271 (Iowa 1991). We apply the de novo review in claims of ineffective assistance of counsel. Irving v. State, 533 N.W.2d 538, 540 (Iowa 1995).

We have already mentioned that Osborn raised only two assignments of error in his direct appeal. As will appear, neither of them touched on the grounds on which he posits his postconviction challenge. This presents him with a formidable obstacle. Iowa Code section 822.8 (1997) provides that postconviction relief may not be granted on assignments not asserted in prior applications for relief in the absence of a showing of good cause. Under this provision we have long held postconviction relief is not a means for relitigating claims that were or should have been properly presented on direct appeal. Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993); Washington v. Scurr, 304 N.W.2d 231, 235 (Iowa 1981). Thus any claim not properly raised on direct appeal may not be litigated in postconviction unless there is a showing of "sufficient reason" or "cause" for not properly raising it previously, and of actual prejudice resulting from the alleged error. Jones, 479 N.W.2d at 271; Polly v. State, 355 N.W.2d 849, 856 (Iowa 1984). Ineffective assistance of appellate counsel may provide "sufficient reason" or "cause" to permit the issue of ineffective assistance of trial counsel to be raised for the first time in a proceeding for postconviction relief. Jones, 479 N.W.2d at 271; Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991).

II. The State does not dispute that Osborn had a right to present McFarland as a witness, free from prosecutorial threats. Osborn's position on the point is well taken. The right to present a defense is rooted in the sixth amendment right to compulsory process. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019, 1023 (1967). The right to present a defense is so fundamental and essential to a fair trial that it is accorded the status of an incorporated right in the due process clause of the fourteenth amendment:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Id. at 19, 87 S.Ct. at 1923, 18 L.Ed.2d at 1023. Since Washington, several decisions have rested on the due process clause alone without any mention of the sixth amendment. See Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam). Our authority is in accord. State v. Fox, 491 N.W.2d 527, 531 (Iowa 1992).

III. Osborn presents his witness intimidation claim in two ways, both of which are subject to the preservation problem under Code section 822.8. He first argues that section 822.8 is no bar to his claim because he had "sufficient reason" for not raising his claim on his direct appeal. At that time, the argument goes, the record was inadequate to justify raising the point for want of an offer of proof. He asserts that many facts pointed...