Sillick v. Ault, No. C02-185-LRR.

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtReade
Citation358 F.Supp.2d 738
PartiesBrian R. SILLICK, Petitioner, v. John F. AULT, Warden, Respondent.
Docket NumberNo. C02-185-LRR.
Decision Date25 February 2005
358 F.Supp.2d 738
Brian R. SILLICK, Petitioner,
v.
John F. AULT, Warden, Respondent.
No. C02-185-LRR.
United States District Court, N.D. Iowa, Cedar Rapids Division.
February 25, 2005.

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COPYRIGHT MATERIAL OMITTED

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Brian Robert Sillick, Anamosa, IA, pro se.

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Jon M. Kinnamon, Kinnamon-Kinnamon-Russo-Meyer, Cedar Rapids, IA, for Plaintiff.

Thomas W. Andrews, Department of Justice, Des Moines, IA, for Defendants.

ORDER

READE, District Judge.


 TABLE OF CONTENTS
                 I. INTRODUCTION ................................................................741
                 II. PROCEDURAL BACKGROUND .......................................................741
                 A. Trial ...................................................................741
                 B. Direct Appeal ...........................................................742
                 C. State Post-Conviction Relief Proceedings ................................745
                 D. Federal Post-Conviction Relief Proceedings ..............................749
                III. STANDARD OF REVIEW ..........................................................754
                 IV. 28 U.S.C. § 2254 MOTION ................................................754
                 A. Applicable Standard .....................................................754
                 B. Analysis of Properly Exhausted Claims ...................................754
                 1. Ineffective Assistance of Counsel Standard ..........................756
                 2. Combined Defense Instruction and Marshaling Instruction Errors ......757
                 a. Combined Defense Instruction ....................................758
                 b. Marshaling Instruction Errors ...................................760
                 3. Definitions of Specific Intent Elements .............................762
                 C. Procedurally Defaulted Claim ............................................765
                 V. CONCLUSION ..................................................................766
                
I. INTRODUCTION

The matter before the court is Petitioner Brian R. Sillick's ("Sillick") Objections (docket no. 19) to Chief Magistrate Judge John A. Jarvey's Report and Recommendation (docket no. 18) in which he recommends denying Sillick's action filed pursuant to 28 U.S.C. § 2254 (docket no. 1).

II. PROCEDURAL BACKGROUND

Sillick does not dispute Chief Magistrate Judge Jarvey's summary of the relevant procedural background surrounding this case. For convenience, the court will restate this case's procedural background.

A. Trial

On June 13, 1994, Sillick was charged with first-degree murder, in violation of Iowa Code §§ 707.1, 707.2 and 902.7, for killing his girlfriend, Tammi Wilson ("Wilson"), on May 2, 1994. Sillick's jury trial commenced January 30, 1995.1 The evidence presented at trial was that on the morning of May 2, 1994, eight-year old Lindsey Wilson ("Lindsey") awoke to the sound of her mother, Wilson, arguing with Sillick. Wilson got a donut for Lindsey. As she sat and ate her donut, Lindsey listened to Sillick and Wilson. Sillick yelled at Wilson and Wilson cried. Lindsey watched as Sillick went into a bedroom, returned with a sawed-off shotgun, and shot Wilson. Lindsey testified that, before Sillick shot her mother, she heard Wilson say, "Don't do this in front of my kids." Sillick shot Wilson three times with the sawed-off shotgun. Police later discovered a fourth hole from the shotgun blast in the carpeting on the hallway floor just

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above Wilson's head. Lindsey watched as Sillick, still holding the shotgun, retrieved his keys from the television room and "drove off." Sillick drove to the Cedar Rapids Police Station, approached several officers standing outside of the building, stuck out his hands, dropped his keys on the pavement, and announced, "I just shot somebody. I want to give myself up."

The case was defended on the theory that Sillick, due to his extensive use of cocaine and consumption of alcohol, did not have the requisite intent to kill Wilson in order to be convicted of first-degree murder. Sillick asserted through evidence and testimony, not his own, that he had a history of depression and drug and alcohol abuse, had sought treatment for drug and alcohol abuse, had been using cocaine for several days prior to shooting Wilson and had been drinking beer on the morning of the crime. A defense expert testified that, during an interview with Sillick concerning the time prior to shooting Wilson, Sillick relayed that he had not slept for four days, had been hearing voices and had hallucinated through the morning of the shooting and had experienced paranoia and panic. According to expert testimony regarding an interview with Sillick, Sillick did not remember actually shooting Wilson but recalled stepping over her body and "beginning to hunt for his car keys." A defense expert testified that Sillick met the criteria for "cocaine psychosis" at the time of the shooting. On February 9, 1995, the jury returned a unanimous verdict of guilty of first-degree murder. On March 10, 1995, the Iowa District Court for Linn County sentenced Sillick to life imprisonment. See State v. Sillick, FECR002422 (Iowa Dist. Ct. for Linn County 1995).

B. Direct Appeal

On March 30, 1995, Sillick filed his notice of appeal to the Iowa Supreme Court.2 On direct appeal, Sillick raised the following issues: (1) whether the district court abused its discretion in excluding impeachment evidence concerning the State's expert's opinion that Sillick is guilty of only second degree murder; (2) whether Sillick was denied his right to the effective assistance of counsel for failing to object to a jury instruction which combined and confused the concepts of intoxication and diminished responsibility such that the jury was not sufficiently instructed on either principle; and (3) whether the State proved beyond a reasonable doubt that Sillick committed first degree murder.

First, Sillick argued the trial court abused its discretion in excluding a portion of the written report prepared by the State's expert witness, Dr. Frederickson, which Sillick wished to use at trial to impeach Dr. Frederickson's credibility. Dr. Frederickson wrote in his report, "I would note that most inmates who commit crimes like his are doing time for second degree murder." Ct. Ex. 3. Prior to trial, the State filed a motion in limine asking the court to exclude from evidence only that sentence from Dr. Frederickson's report. Sillick resisted the motion in limine and, prior to trial, the trial court excluded the evidence as unduly prejudicial to the State. At trial, Dr. Frederickson testified Sillick was not psychotic at the time of the shooting. He also mentioned two of his psychotic patients and the verdicts in their trials. Sillick's attorneys made no objection to Dr. Frederickson's testimony about his psychotic patients on the basis they could not cross-examine Dr. Frederickson about such statement as a result of the court's ruling on the State's motion in limine. Sillick's trial counsel cross-examined Dr. Frederickson but did not question Dr. Frederickson regarding the statement the trial court excluded from evidence.

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Sillick's attorneys did not make an offer of proof during the trial regarding the sentence excluded from Dr. Frederickson's report pursuant to the court's ruling on the State's motion in limine.

Second, Sillick claimed he received ineffective assistance of counsel when his trial counsel failed to object to Jury Instruction 20, which was a combined instruction regarding diminished responsibility and intoxication. Jury Instruction 20 reads:

INSTRUCTION NO. 20

"Diminished responsibility" means a mental condition which does not allow the person to form a specific intent. Concerning element number 4 of Instruction No. 15, it means a mental condition which does not allow the person to form a premeditated, deliberate, specific intent to kill.

"Diminished responsibility" does not entirely relieve a person of the responsibility for his actions and is not the same as an insanity defense.

The Defendant claims he was under the influence of drugs at the time of the alleged crime. The fact that a person is under the influence of drugs does not excuse nor aggravate his guilt.

Even if a person is under the influence of a drug, he is responsible for his act if he had sufficient mental capacity to form the specific intent necessary to the crime charged or had the specific intent before he fell under the influence of the drug and then committed the act. Intoxication is a defense only when it causes a mental disability which makes the person incapable of forming the specific intent.

Neither "diminished responsibility" nor "intoxication" can reduce Second Degree Murder to Manslaughter.

The Defendant does not have to prove "diminished responsibility" or "intoxication"; rather, the burden is on the State to prove the Defendant was able to, and did, form the specific intent required.

State v. Sillick, No. 6-569/95-0578 (Iowa Ct.App.1997), Appellant's Appx. at 617-18. Prior to instructing the jury, the trial court asked the attorneys whether either side had any objections to the instructions. The State objected to Jury Instruction 20 on the basis the State did not believe a defendant is entitled to use both defenses. Furthermore, the State believed the evidence supported the intoxication defense and there was insufficient evidence to support a diminished responsibility defense. However, if the court intended to instruct the jury as to both defenses, while the State's attorney would not necessarily have chosen to combine the two defenses in one instruction, the State found no particular language objectionable. Sillick's trial counsel stated he had no exceptions or objections to any of the court's instructions. Regarding Jury Instruction 20, Sillick's attorney stated he believed there was sufficient evidence presented to give both instructions.

In his appellate brief, Sillick stated,

It is apparent that the district court prepared this instruction by combining part of the Uniform diminished...

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1 practice notes
  • State v. Stonerook, No. 6-626/05-1917 (Iowa App. 12/28/2006), No. 6-626/05-1917
    • United States
    • Court of Appeals of Iowa
    • 28 d4 Dezembro d4 2006
    ...We therefore find no fault in the marshalling instruction for failing to mention Stonerook's insanity defense. See Sillick v. Ault, 358 F. Supp. 2d 738, 761-62 (N.D. Iowa 2005) (rejecting identical Having concluded that the instruction is legally adequate, we note that it would have been ap......
1 cases
  • State v. Stonerook, No. 6-626/05-1917 (Iowa App. 12/28/2006), No. 6-626/05-1917
    • United States
    • Court of Appeals of Iowa
    • 28 d4 Dezembro d4 2006
    ...We therefore find no fault in the marshalling instruction for failing to mention Stonerook's insanity defense. See Sillick v. Ault, 358 F. Supp. 2d 738, 761-62 (N.D. Iowa 2005) (rejecting identical Having concluded that the instruction is legally adequate, we note that it would have been ap......

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