State v. Fox

• Decision Date: 21 October 1992
• Docket Number: No. 91-982,91-982
• Citation: 491 N.W.2d 527
• Parties: STATE of Iowa, Appellee, v. Lisa L. FOX, Appellant.
• Court: Iowa Supreme Court

Page 527

491 N.W.2d 527

STATE of Iowa, Appellee, v. Lisa L. FOX, Appellant.

No. 91-982.

Supreme Court of Iowa.

Oct. 21, 1992.

William L. Kutmus of Kutmus & Pennington, P.C., and Lylea Dodson Critelli of Nick Critelli Associates, P.C., Des Moines, for appellant.

Bonnie J. Campbell, Atty. Gen., Richard J. Bennett, Asst. Atty. Gen., Mary Richards, County Atty., and Michael Houchins, Asst. County Atty., for appellee.

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

LAVORATO, Justice.

In her appeal from an attempted murder conviction, defendant Lisa Fox raises a number of issues. Because she failed to preserve several of those issues for our review, we address only two: (1) whether she was unconstitutionally denied her right to present a defense, and (2) whether her trial counsel was ineffective. We affirm.

I. Background Facts.

Lisa Fox and Robert Hasiak became friends in 1988. In 1990 Lisa and her teen-age daughter Sonya moved into Hasiak's residence.

Five shots were fired at Hasiak at his home on March 6, 1990. Two of them hit their mark. Both Lisa and Sonya were present at the time of the shooting.

Police officers questioned Lisa at the scene. Sonya, however, was not questioned. Lisa refused to consent to Sonya's interrogation because Sonya was a minor.

Before the police questioned Lisa, she volunteered to one officer that "we both shot him." Lisa repeated this statement verbatim when the officer asked her what she had said.

During police interrogation--which was preceded by Miranda warnings--Lisa stated to officers "I shot him. It was an accident."

Though seriously wounded, Hasiak remained conscious and coherent during his rescue and medical treatment. When officers asked him to explain what had happened, Hasiak replied, "They shot me.... They tried to kill me." The officers then asked Hasiak who "they" were. He named Lisa Fox and Sonya Fox.

II. Background Proceedings.

In March 1990 Lisa was charged with attempting to murder and willfully injuring Robert Hasiak. See Iowa Code §§ 707.11, 708.4 (1989). Sonya was likewise charged in June following the juvenile court's waiver of its jurisdiction.

Sonya later initiated plea negotiations with the State. On August 27, 1990, Story County attorney Mary Richards sent Sonya's counsel a letter. The letter outlined the conditions the State would impose should Sonya plead guilty. The conditions were that (1) Sonya agree not to testify in Lisa's case, (2) Sonya admit to the facts or agree to a trial on the minutes of testimony, (3) the disposition of Lisa's case precede the disposition of Sonya's case, (4) sentencing be done pursuant to Iowa Code section 232.8(3), (5) the pertinent offense be attempted murder or conspiracy to commit murder, and (6) the State be bound to an Iowa Rule of Criminal Procedure 9 agreement, which would provide for deferred judgment and a four-year probationary period to include appropriate counseling.

Plea negotiations between the State and Sonya continued. On October 3, 1990, county attorney Richards sent Sonya's counsel a second letter. The letter said:

This letter is intended to put in writing the State's present position in plea negotiations in State v. Sonya Fox, as conveyed verbally by Mike Houchins.

Because of my concern that the first step in rehabilitation is acceptance of personal responsibility for one's behavior, I feel that it is in neither Sonya's nor the community's interest to allow a plea in which she does not admit culpability.

A second concern is our present expectation that Sonya will testify to facts and circumstances which are contrary to the physical evidence in the case. Entering into a plea agreement which guarantees a deferred judgment in the face of such anticipated testimony has the appearance of condoning perjury.

As a consequence of the above considerations, the State will entertain a guilty plea to attempted murder in which Sonya Fox admits the facts corroborated by other evidence. In exchange for such a plea, the State would remain silent at sentencing and would not resist sentencing under Section 232.8(3) of the Code of Iowa [juvenile tried as an adult may still be granted deferred judgment though adult in similar circumstances may not be].

This letter conspicuously omitted any mention of Sonya not testifying in Lisa's case.

At this point negotiations between the State and Sonya apparently stalled. They resumed almost six months later, on the Friday immediately preceding Lisa's March 4, 1991, trial date. Sonya, the State, and Lisa agreed to the following plea bargain: (1) Sonya would plead guilty to the attempted murder charge; (2) the State would consent to a deferred judgment for Sonya under Iowa Code section 232.8(3) (1989); and (3) Lisa would waive her rights to a jury trial and witness confrontation and allow the State to present its evidence in documentary form via the trial information, the minutes of testimony, exhibits, and depositions.

Pursuant to this plea bargain, Lisa was tried to the district court on March 4, 1991. Later that same day Sonya entered a guilty plea.

During her guilty plea proceeding, Sonya made an unsworn statement on the record that she had fired five shots at Robert Hasiak on March 6, 1990. At this point, Sonya's counsel asked for a recess and consulted with his client. During this recess, county attorney Richards told Sonya's counsel that if Sonya persisted in her statement regarding the five shots, the State would reject the plea bargain.

When the guilty plea proceeding resumed, Sonya asked the court for an opportunity to change her earlier statement to the court. She then recanted her earlier statement, indicating instead that she had shot Robert Hasiak attempting to kill him.

At sentencing, Sonya received a deferred judgment and probation. Following the sentencing, county attorney Richards had a conversation with Sonya's counsel. Richards told him that if his client ever testified (1) that she was responsible for all five shots, or (2) in some other way that was inconsistent with the State's belief about what happened on the night of the shooting, the State would view her testimony as perjury and would promptly move to revoke Sonya's deferred judgment and probation.

Later, after this conversation, the district court heard Lisa Fox's motion for new trial and motion in arrest of judgment. Lisa called Sonya to testify at the hearing on these matters. Once sworn, Sonya asserted her Fifth Amendment right against self-incrimination in response to certain questions posed by Lisa's counsel. These questions were aimed at exculpating Lisa and sought to elicit the very testimony the plea bargain prohibited. Because the district court concluded Sonya properly invoked her Fifth Amendment right against self-incrimination, she did not answer any of these questions.

Lisa then argued that the sum of the State's actions regarding the plea bargain with Sonya was tantamount to prosecutorial misconduct and unconstitutionally interfered with Lisa's right to present her own defense.

In ruling against Lisa in her posttrial motions, the district court was critical of some of the State's actions surrounding the culmination of the plea agreement with Sonya. The court, however, found insufficient evidence that the State's actions in any way improperly coerced Sonya into invoking her Fifth Amendment right.

This appeal followed.

III. Right to Present a Defense.

Lisa urged in the district court, as she does here, that she has a constitutional right to present a defense. She thinks a number of things happened in the district court that frustrated that right and denied her due process under the Fifth and Fourteenth Amendments to the United States Constitution and under article I, section 9 of the Iowa constitution. These include (1) the State's efforts to intimidate and prevent Sonya from testifying, (2) the district court's refusal to recognize the State's substantial interference with Sonya's testimony and to remedy that interference, (3) the district court's refusal to grant use immunity to Sonya, and (4) the district court's refusal to recognize that Sonya's testimony constituted newly discovered evidence.

Because Lisa raises constitutional issues, our review is de novo. We independently evaluate the totality of the circumstances as evidenced by the whole record. See State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991).

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). One commentator, who has studied the development of the compulsory process clause, thinks that at the time of its adoption the clause had this meaning: "[A] defendant should have a meaningful opportunity, at least on a par with that of the prosecution, to present a case in his favor through witnesses." Peter Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 78 (1974).

The right to present a defense is so fundamental and essential to a fair trial that the Supreme Court has accorded it 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.

Washington, 388 U.S. at 19, 87 S.Ct. at 1923, 18 L.Ed.2d at 1023. Of course, because of this status, the right to present a defense is binding on the states. Id. Since Washington, several Supreme Court decisions in this area have been decided...