Schertz v. State, 84-1521

• Decision Date: 18 December 1985
• Docket Number: No. 84-1521,84-1521
• Citation: 380 N.W.2d 404
• Parties: Sheila Mae SCHERTZ, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 404

380 N.W.2d 404

Sheila Mae SCHERTZ, Appellant, v. STATE of Iowa, Appellee.

No. 84-1521.

Supreme Court of Iowa.

Dec. 18, 1985.

Michael J. Motto, of John J. Carlin, P.C., Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Marcia Mason, Asst. Atty. Gen., and William E. Davis, County Atty., for appellee.

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

SCHULTZ, Justice.

This appeal is from a district court's denial of postconviction relief. Sheila Mae Schertz, along with her husband and three other codefendants, was tried in a criminal proceeding on charges of murder, kidnapping, and theft. She was convicted of first degree kidnapping, second degree murder, and second degree theft. On appeal these convictions were affirmed. State v. Schertz, 328 N.W.2d 320 (Iowa 1982). Thereafter, Schertz filed a petition for postconviction relief which was denied. Before this court appellant now urges that she was denied effective assistance of counsel at each of her three previous proceedings. Additionally, appellant asserts that the postconviction court should have remedied errors allegedly committed by the trial court in denying her motions for severance and failing to determine whether she voluntarily relinquished her right to testify.

At the joint criminal trial, evidence was presented concerning appellant's participation in a planned theft which resulted in a killing and the abduction and kidnapping of a witness. The facts of the case were set out in an appeal by a codefendant and need not be repeated here. See State v. LeCompte, 327 N.W.2d 221, 222 (Iowa 1982).

Both prior to the trial and at the close of the State's evidence appellant unsuccessfully moved to sever her trial from the joint proceeding. At that time appellant claimed that her husband would be able to invoke the spousal privilege afforded by Iowa Code section 622.7 (1981) to her prejudice and that the jury would not give each defendant the necessary attention in that it would likely convict her of guilt by association. The trial court initially overruled this objection but allowed appellant to renew her motion at the close of the State's case. The trial court, however, overruled the renewed motion.

During the joint criminal trial appellant did not testify on her own behalf, even though her trial counsel had expected her to testify that she was coerced into participating in the crimes. At the postconviction proceeding both the appellant and her trial counsel stated that she had intended to testify, but at the last instant refused to do so because of threats she received from her codefendant husband. Further, appellant and her trial counsel testified that appellant refused to make a record concerning any such threats directed against her. At the joint criminal trial, however, appellant stated on the record that she voluntarily made the decision not to testify and was not coerced in any way.

On direct appeal of the criminal convictions appellant urged that the State "failed to present sufficient evidence to (1) show that she was a principal or aider and abettor to the kidnapping; and (2) establish the victim was tortured." Schertz, 328 N.W.2d at 321. In affirming her conviction we found that error was not preserved on the first issue and that there was substantial evidence that the victim was tortured. Id. at 321-22.

Thereafter, appellant petitioned for postconviction relief and alleged several grounds for relief. The grounds pertinent to this appeal are that appellant alleged that she was denied effective assistance of trial counsel and that she was threatened by her codefendants in such a manner that it precluded her from testifying. Following an evidentiary hearing, the district court denied appellant's petition for postconviction relief. It held that appellant failed to show ineffective assistance of counsel or that error was committed by the criminal trial court. The postconviction court reviewed the criminal proceedings and held that appellant failed to show she was prejudiced by her failure to testify. The court alluded to the substantial evidence against appellant and stated that "even if she had testified as was indicated in the postconviction hearing, the verdict would have been exactly what the jury did return."

In her appeal from the denial of postconviction relief, appellant now urges that the postconviction court erred in: (1) failing to find ineffective assistance of counsel by trial counsel and appellate counsel; (2) failing to find that the trial court abused its discretion in not granting her motion for severance; and (3) failing to find that the trial court erred in not personally addressing appellant, on the record, to determine whether she voluntarily waived her right to testify on her own behalf. Additionally, appellant urges that the counsel appointed to her for the postconviction relief proceeding provided ineffective assistance.

Ordinarily a postconviction relief proceeding pursuant to Iowa Code chapter 663A is at law and our review is not de novo. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). However, when a postconviction petitioner asserts a violation of constitutional safeguards, the reviewing court makes its own evaluation based on the totality of the circumstances, which is the equivalent of a de novo review. Id.

I. Ineffective assistance of trial counsel. Appellant claims counsel's representation at her criminal trial was deficient. Specifically, she urges that trial counsel: (1) failed to preserve error on the issue of the sufficiency of evidence to show that she was a principal or aider and abettor to the kidnapping; (2) failed to object to improper statements made by the prosecutor during closing arguments; and (3) failed to advise appellant that a record could be made outside the presence of her codefendants regarding threats allegedly made against her.

When a postconviction applicant claims ineffective assistance of criminal trial counsel, the applicant assumes the burden to establish by a preponderance of evidence two particulars. First, the applicant must show that sufficient reason exists for not having raised the issue on direct appeal. Hinkle, 290 N.W.2d at 31. Secondly, by an examination of the circumstances the applicant must demonstrate counsel's inadequacy of representation. Id. at 30-31.

Appellant has made the proper showing on the first Hinkle requirement concerning the reason that the issue or issues were not raised on direct appeal. The sufficiency of the evidence as to aiding and abetting the kidnapping and the failure to object to improper statements made by the prosecutor during closing arguments could not have been raised on the criminal conviction appeal because trial counsel did not preserve these errors for appeal. Additionally, the State does not claim that appellate counsel should have raised ineffectiveness of counsel as to these two issues on direct appeal of the criminal convictions. On her third claim appellant complains of trial counsel's advice, a matter not in the trial record.

We have established general principles regarding the second particular, ineffective assistance of counsel. To constitute a claim of ineffectiveness of counsel, appellant must show: (1) that counsel's performance was so deficient that counsel was not functioning as the "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, ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). The Supreme Court stated in Strickland, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93. With these principles in mind, we turn to the particular claims.

A. Sufficiency of the evidence. On direct appeal of her criminal convictions, we indicated that appellant did not preserve error on the issue of whether the State presented sufficient evidence to show that she was a principal or aider and abettor to the kidnapping. Schertz, 328 N.W.2d at 321. Appellant's trial counsel testified at the postconviction hearing that he did, however, challenge the sufficiency of the evidence to prove serious injury or torture was inflicted in connection with the kidnapping. Trial counsel explained further that he did not request a directed verdict for acquittal on the grounds that appellant was neither a principal nor aider and abettor to the kidnapping because there "was abundant evidence to indicate that she was participating in this." We believe the initial question is whether trial counsel's assessment was correct.

Appellant urges that there was no evidence presented at trial of her planning the kidnapping. Additionally, she claims that there was a lack of evidence that she assented to or lent countenance to the kidnapping or in some manner encouraged it. Appellant asserts that the evidence shows that she was just along for the ride when she went to the murder victim's apartment and that she did not know of plans to confront Mark Webb, the murder victim, for money. Appellant points to evidence that she did not pursue the kidnapping victim, Russell Greer, when he attempted to escape. Appellant refers to additional testimony indicating that she did not participate in any of the acts that led to the kidnapping or retention of the kidnapping victim.

Our examination of the record, however, indicates that there was evidence to support that appellant did participate in the kidnapping. Greer was visiting Webb when the five codefendants entered Webb's apartment. None of the codefendants appeared to fear each other and were in fact friends. Appellant and her husband, Terry...