State v. Broughton, 88-1564

• Decision Date: 24 January 1990
• Docket Number: No. 88-1564,88-1564
• Citation: 450 N.W.2d 874
• Parties: STATE of Iowa, Appellee, v. Jerry Dean BROUGHTON, Appellant.
• Court: Iowa Supreme Court

Page 874

450 N.W.2d 874

STATE of Iowa, Appellee, v. Jerry Dean BROUGHTON, Appellant.

No. 88-1564.

Supreme Court of Iowa.

Jan. 24, 1990.

Raymond E. Rogers, Appellate Defender, and B. John Burns, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Richard J. Bennett and Thomas H. Miller, Asst. Attys. Gen., and Paul M. Goldsmith, County Atty., for appellee.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, NEUMAN and ANDREASEN, JJ.

CARTER, Justice.

This appeal is from a judgment of conviction in the second trial of defendant, Jerry Dean Broughton, on a charge of murder in the first degree. The first trial also resulted in a conviction of the offense charged. That conviction was reversed, however, in State v. Broughton, 425 N.W.2d 48 (Iowa 1988). The facts developed at the first trial are set forth in detail in our first Broughton opinion, and because the evidence offered at the second trial does not differ significantly, we deem it unnecessary to again detail the evidence in this opinion.

Defendant seeks a reversal of his conviction in the second trial on two grounds: (1) that he received ineffective assistance of counsel based on his trial attorney's failure to object to the omission of a significant element of the crime in the marshaling instruction, and (2) that the district court allowed irrelevant testimony concerning the victim's family's sense of loss as a result of the crime. We find no merit in either of these contentions and affirm the judgment of the district court. Our reasons for so doing are hereafter set forth with respect to each of the assignments of error.

I. The Ineffective-Assistance-of-Counsel Claim.

At defendant's second trial, the charge of first-degree murder was submitted to the jury on alternative theories of (a) willful, deliberate, and premeditated murder; and (b) felony murder. Defendant's ineffective-assistance-of-counsel claim is based on the failure of his trial counsel to object to the marshaling instruction on the ground that it failed to require the State to establish malice aforethought as an element of murder under the felony murder theory.

In instructing the jury, the court stated in Instruction No. 13:

The law provides that a person commits Murder in the Second Degree when he kills another with either express or implied malice aforethought.

However, it is Murder in the First Degree, if, in addition, he:

1. Willfully, deliberately, and with premeditation kills another person, or;

2. Kills another person while participating in a forcible felony such as robbery.

That instruction correctly advises the jury as to all of the elements of both first-degree murder and second-degree murder. However, in giving Instruction No. 13A, which was the marshaling instruction, the court only included malice aforethought as an element of murder which the State must establish under the willful, deliberate, and premeditated theory. It omitted that element in instructing on the felony murder theory.

As the point of beginning in considering defendant's claims, we must accept his contention that Instruction 13A was erroneous concerning the elements of felony murder. In State v. Ragland, 420 N.W.2d 791, 794 (Iowa 1988), we recognized that the State must establish malice aforethought under a felony murder theory because that element is required to satisfy the basic definition of murder contained in Iowa Code section 707.1 (1987). We also accept defendant's contention that, where two inconsistent instructions are given to the jury, one which correctly details the law and one which erroneously states the law, this will ordinarily result in reversible error because it is impossible to know which instruction the jury followed. This principle is particularly applicable when the error occurs in the marshaling instruction.

Defendant contends that the present case cannot be distinguished from our opinion in State v. Goff, 342 N.W.2d 830 (Iowa 1983), in which counsel was found to be ineffective for failing to object to a marshaling instruction which omitted an essential element of kidnapping. Our determination in Goff led to a reversal of that defendant's conviction on direct appeal.

In comparing Goff with our more recent decisions on ineffective assistance of counsel, it is apparent that case was decided under a different analysis than that which has more recently been applied. The analysis employed in Goff was simply to determine whether counsel had failed to preserve error on an issue which, if error had been preserved, would have led to a reversal. Because it was determined that the conviction would have been reversed had error been preserved on the court's omission of a material element in the marshaling instruction, a new trial was ordered.

The approach to ineffective assistance of counsel taken in Goff must be contrasted with that which was applied by this court in State v. Propps, 376 N.W.2d 619 (Iowa 1985). Propps also involved a claim of ineffective assistance of counsel based on an alleged failure to object to omission of an essential element in the marshaling instruction. We made it clear in that case that ineffective-assistance-of-counsel claims, based on failure to preserve error, are not to be reviewed on the basis of whether the claimed error would have required reversal if it had been preserved at trial. It is incumbent on a...