State v. Goff, 69285
| Citation | 342 N.W.2d 830 |
| Decision Date | 21 December 1983 |
| Docket Number | No. 69285,69285 |
| Parties | STATE of Iowa, Appellee, v. George Ray GOFF, Appellant. |
| Court | United States State Supreme Court of Iowa |
Charles L. Harrington, Appellate Defender, and Patrick R. Grady, Asst. Appellate Defender, for appellant.
Thomas J. Miller, Atty. Gen., Richard L. Cleland, Asst. Atty. Gen., and Michael P. Short, County Atty., for appellee.
Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, SCHULTZ, and WOLLE, JJ.
This appeal involves two issues in a prosecution on two counts of second-degree kidnapping and two counts of assault while participating in a felony. Defendant Richard Ray Goff was previously convicted on the same charges but we reversed on appeal on an evidentiary issue. State v. Goff, 315 N.W.2d 768 (Iowa 1982). He was then retried and convicted again, and he appealed a second time. For simplicity we consider the issues in terms of one of the victims, Clemons. The same considerations apply as to the other victim, Young.
The pertinent portions of the statutes creating these crimes are, as to kidnapping, sections 710.1 and .3 of the Iowa Code (1979):
710.1. A person commits kidnapping when he or she either confines a person or removes a person from one place to another, knowing that he or she has neither the authority nor the consent of the other to do so; provided that to constitute kidnapping the act must be accompanied by one or more of the following:
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2. The intent to use such person as a shield or hostage.
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710.3. Kidnapping where the ... kidnapper is armed with a dangerous weapon is kidnapping in the second degree. Kidnapping in the second degree is a class "B" felony.
The trial information also charged Goff with assaulting Clemons "while participating in a felony, to wit: kidnapping, in violation of Section 708.3 of the Iowa Criminal Code." The relevant portions of the assault statutes are:
708.1. A person commits an assault when, without justification, the person does any of the following:
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2. Any act which is intended to place another in fear of immediate physical contact which will be painful, insulting, or offensive, coupled with the apparent ability to perform the act.
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708.3. Any person who commits an assault as defined in section 708.1 while participating in a felony other than sexual abuse ... if no serious injury results ... is guilty of a class "D" felony.
From sections 710.1 and .3, the following elements of second-degree kidnapping appear, as related to this case:
4. with intent to use Clemons as a shield or hostage.
From sections 708.1 and .3, the following elements of assault while participating in a felony appear, as related to this case:
5. while participating in kidnapping.
The kidnapping need not have been consummated for Goff to be "participating" in it. State v. Mead, 318 N.W.2d 440, 446 (Iowa 1982).
Goff is an inmate of the penitentiary; he worked in the laundry at the time of the events in question. Although he introduced evidence contradicting several of the State's material allegations, from the entire record the jury could find the facts to be as follows.
In accordance with schedule, the inmates including Goff were placed in their cells at about 6:00 p.m. on December 8, 1977. Goff then told a guard he had to return to the laundry to work, and the guard let him out of his cell.
Leonard M. Young, cellhouse captain, was at his desk in the cellhouse. He looked up and saw Goff out of his cell. He called to a guard, Kent L. Clemons, to go up and place Goff in his cell. Clemons testified:
Q. After Mr. Young told you to lock him up, what did you do? A. I went upstairs and informed George Goff that he was supposed to be in his cell.
Q. What happened then? A. He wouldn't go in.
Q. Did he say anything to you? A. Well, he informed me that if anybody was going into his cell, I was going to go.
Q. Then what happened? A. Then he pulled a knife out on me and poked me in the stomach with it. It was in its sheath then. After he did that, he took it out of the sheath. I took off and went down to the desk to inform Leonard Young that--I didn't have a tactical alert system and Officer Young did, and I was going to inform him to push it so we could get some help over there.
Young testified:
Q. What was the next thing you noticed then? A. Well, I went to let someone in at the door and all of a sudden Clemons came down and he says, "He has a knife." And George Goff came down right after that.
Q. And did he have a knife? A. A shank, yes, Sir. It was a shank. A shank is a knife, a homemade knife.
Q. What was he doing when you saw him--Mr. Goff? A. He came down the stairs with Kent Clemons and he told us that he was taking over the cellhouse.
Q. What did you do then? A. Well, I pushed my beeper.
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Q. What happened next after you pushed your beeper? A. He told us to go into a cell, which was on C Range.
Q. Now, by "he", you're referring-- A. Mr. Goff.
Q. Did he have his knife in his hand at that time? A. Yes, Sir.
Q. What was he doing with it, do you remember? A. He had it out and he told us to get into a cell.
The Court: Speak up.
A. He pushed us into a cell.
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Q. Did you go into that cell voluntarily? A. No, Sir.
Q. Silly question. Was he authorized to put you in that cell? A. No, Sir.
Q. Why did you go? A. Because he told us to go.
Q. He had a knife? A. Yes, Sir.
Clemons described this part of the incident thus:
Q. Did he have a knife at that time? A. Yes, he did. It was out of his sheath then.
Q. What was he doing with it? A. He put the knife to my throat and informed me that he wasn't--that he was thirty-three years old and he wasn't going to take no orders from an eighteen year-old punk.
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Q. Did you go into the cell? A. Yes, I did. This happened in the cell.
Q. This was in the cell? A. Yes.
Q. Were you scared? A. Yes.
Goff then took Young to the cellhouse door. Young testified:
Q. When he took you over to the door, did he have the knife with him? A. Yes.
Q. What was he doing with the knife? A. He had it in his hand.
Q. How did he take you over to the door? Did he just say, go over to the door? A. No. He grabbed my arm and took me over to the door.
Q. When he grabbed your arm, did he still have the knife in his hand? A. Yes, Sir.
Q. What was he doing with it? A. He just had it out.
Goff next placed Clemons and Young in a shower room on the second floor. Young testified:
Q. He [Goff] still have the knife out? A. Yes, Sir.
Q. Did he say anything to you as he was taking you up to the shower? A. Yes, Sir.
Q. What did he say? A. He said that if they came and threw tear gas in here that he was going to have to kill us. He said if he couldn't get us with a shank then he would do it with fire.
Q. Were you scared? A. Yes, Sir.
Q. What happened after he put you in the shower? A. Just locked us in and--
Q. How did he lock you in? A. He put a padlock on the cell door.
Q. How long were you in the shower? A. About an hour.
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Q. Would you have gone into the cell if Mr. Goff didn't have a knife? A. No, Sir.
Q. Would you have gone into the shower if he didn't have a knife? A. No, Sir.
Prison officials appeared, Goff was taken into custody, he and the officials discussed grievances he presented, and order was restored.
An assistant attorney general charged Goff in separate counts with second-degree kidnapping of Clemons and Young while Goff was armed with a dangerous weapon, and with corresponding counts of assault upon Clemons and Young while Goff was participating in the felony of second-degree kidnapping. The State also alleged that Goff had been previously convicted of kidnapping and aggravated robbery, and Goff admitted this allegation at trial. Upon trial the jury again found Goff guilty of the kidnappings and assaults. The trial court sentenced him, and he appealed.
Goff presents two propositions in his present appeal. He contends that the assaults were included offenses in the kidnapping charges and that he could not be convicted of both the kidnappings and the assaults. He also contends that his trial counsel did not render effective assistance.
I. Assaults as included offenses. Under our rules an accused may be charged with and prosecuted for multiple offenses committed in a single incident. Iowa R.Crim.P. 6(1). That rule states:
Two or more public offenses which arose from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan may be alleged and prosecuted as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise. Where a public offense carries with it certain lesser included offenses, the latter should not be charged, and it is sufficient to charge that the accused committed the major offense.
See Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)....
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