State v. Hrbek

• Decision Date: 20 July 1983
• Docket Number: No. 67902,67902
• Citation: 336 N.W.2d 431
• Parties: STATE of Iowa, Appellee, v. John Lee HRBEK, Appellant.
• Court: Iowa Supreme Court

Page 431

336 N.W.2d 431

STATE of Iowa, Appellee, v. John Lee HRBEK, Appellant.

No. 67902.

Supreme Court of Iowa.

July 20, 1983.

Francis C. Hoyt, Jr., Chief Appellate Defender, and Scott Rosenberg and Fern Shupeck, Asst. Appellate Defenders, for appellant.

Thomas J. Miller, Atty. Gen., Michael K. Jordan, Asst. Atty. Gen., and Joseph Hrvol and Michael Winter, Asst. County Attys., for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, SCHULTZ, CARTER and WOLLE, JJ.

McCORMICK, Justice.

Defendant John Lee Hrbek appeals his conviction by jury and sentences for two counts of first-degree murder based on the shooting deaths of Stanley Fisher and his mother Kate Fisher. The same incident was involved in State v. Chadwick, 328 N.W.2d 913 (Iowa 1983). We find that trial counsel's failure to preserve error on the admissibility of defendant's alleged inculpatory statements was so egregious it denied him his constitutional right to effective assistance of counsel under U.S. Const. amend. VI and XIV. Because we find no basis for reversal of the convictions in the present record, however, and no hearing has been held on the admissibility of the statements, we conditionally affirm the trial court and remand the case for an evidentiary hearing on the admissibility issue.

The specific issues are whether the trial court erred in failing to hold a hearing out of the presence of the jury to determine whether alleged statements of the defendant were made after valid waiver of his Miranda rights, whether the trial court erred in overruling defendant's motion to exclude the State's rebuttal evidence of those statements, and whether defendant was denied effective assistance of counsel because of counsel's failure to protect his rights as to those statements and in other respects. We first summarize the relevant evidence.

The State's evidence was that defendant was a passenger in a red Toyota pick-up truck operated by Charles Chadwick which stopped in a farm lane along highway 275 south of Council Bluffs during the morning of September 16, 1981. A black Datsun driven by Kate Fisher subsequently stopped at the end of the lane, and a blue Corvette driven by Stanley Fisher arrived soon afterward. According to the State's evidence, Chadwick shot and killed Kate Fisher and defendant shot and killed Stanley Fisher. Stanley was found slain on the front seat of his car with his seatbelt still on, and Kate was found on the ground outside her car.

The State offered evidence from which the jury could find that on the afternoon before the killings defendant and Chadwick drove their vehicle slowly past the Fisher farm twice and also interfered with Kate Fisher as she drove back to work after lunch on that date. The Fishers saw the truck parked near their farm the next morning. Stanley L. Fisher, Kate's husband and Stanley's father, testified the pick-up left the site at a high rate of speed when his son started toward it in his vehicle. The father last saw his son driving toward Council Bluffs at approximately 90 miles per hour. Kate Fisher left the farm in her car shortly after her son, turned in a different direction, and apparently located the pick-up in the lane where the shootings subsequently occurred. Defendant and Chadwick were apprehended shortly after the shootings following a high-speed chase in Council Bluffs.

Defendant testified, against his lawyer's advice, in his own defense. He asserted Chadwick was merely an acquaintance with whom he had been out socially the evening before the killings. He said they ended up spending the night in Chadwick's Omaha apartment. The next morning, according to defendant, Chadwick asked defendant to go with him to meet a man who owed him some money. Defendant said he did not know the man's name but had received telephone calls earlier in the week from a man identifying himself as "Fisher" and warning him "if I valued my family's lives to stay away from [Chadwick]."

When they got in the truck on the morning of September 16, 1981, defendant said he dozed off and did not awaken until the truck was on a highway in Iowa. He said he then learned for the first time they were going to the Fisher farm. He testified that he insisted Chadwick take him home and that Chadwick agreed to do so. While they were traveling north on highway 275 toward the interstate to return to Omaha, a black Datsun later determined to be Mrs. Fisher's began to pursue them. He said they pulled into a farm lane to get help, but no one appeared to be home. The Datsun blocked the lane, and Chadwick started toward it. At about that time a blue Corvette "came out of nowhere" and headed at Chadwick. Then, according to defendant, Chadwick shouted to defendant to get out of the truck and warned him the driver of the Corvette had a gun. Defendant said Chadwick fired at the car but it kept coming toward the truck. Defendant said he picked up a pistol he had lying between the seats in the pick-up and shot out a tire of the Corvette, stopping it. He asserted he then got out of the truck and went up to the driver's door of the Corvette and saw a man lying on the seat who suddenly jumped up at him. He testified he then fired his pistol at the man to protect himself. Defendant said that from then on he was in shock and just followed Chadwick's orders, although he wanted to turn himself in.

Because defendant claimed to have been an unwilling participant in the events, the prosecutor on cross-examination sought to show that defendant and Chadwick had confronted Kate Fisher in the black Datsun on the previous afternoon. The following colloquy occurred:

Q. Did you ... and Mr. Chadwick ... have any confrontation with Mrs. Fisher's vehicle on the afternoon of the 15th? A. No.

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Q. Did you ever tell anybody that you and Charley had a confrontation with Mrs. Fisher's vehicle on the afternoon of the 15th? A. No, sir.

On rebuttal, the State called deputy sheriff Jerry Quigley in an effort to impeach defendant's testimony on this subject. He testified as follows:

Q. Mr. Quigley, were you present at the conversation at the County Attorney's Office involving this defendant ... on or about the 21st day of September, 1981? A. Yes, sir, I was.

Q. And this defendant has indicated on his direct testimony and cross examination that at that time he did not mention any contact with Mrs. Fisher ... at any time prior to the shooting, her shooting death. Did he make any other statement in that conversation which does not reflect that view? A. Yes, sir he did.

Q. What did he say? A. He was asked--it was, more or less, he was asked if they had seen Kate Fisher--

MR. O'SULLIVAN: I'm going to object and ask that there be foundation laid as to the Miranda aspects of this.

MR. HRVOL: Are you going to sustain that, Judge?

THE COURT: Yes.

By Mr. Hrvol:

Q. Officer Quigley, can you tell us if you had occasion to talk to Mr. Hrbek prior to this conversation in the County Attorney's Office on September 21st relative to his rights under the Miranda decision? A. Yes, sir.

Q. Can you tell us if you explained those rights to him on your way to the County Attorney's Office? A. Yes sir.

Q. Who was with you at the time that you explained to him his rights? A. Chief Deputy Duane Otto.

Q. And did he accompany you to the County Attorney's Office after those rights were read to him? A. Yes sir.

Q. Can you tell us what you advised him if you can recall? A. Read him his rights per Miranda that he had the right to remain silent; anything he said could be used against him in a court of law; that he had a right to be represented by counsel; that if he could not afford counsel, the State would appoint one at their expense; that he had the right to have that attorney present with him during any and all questioning.

Q. Did he indicate an understanding of those rights to you? A. Yes, sir, after each right he was asked if he understood that right.

Q. And what was his response, if you know? A. Yes.

Q. After he had arrived at the office, did he in fact converse with yourself and other members of the staff that were present? A. Yes, sir, he did.

Q. Now, Officer Quigley, can you tell us if in fact any statements he made at that time touched upon the area that we just--that I asked you initially? A. Yes, sir, he did.

Q. Can you tell us what question was asked and what the response was, as best you know? A. Whether he was out at the Fisher farm the day before the shooting. Yes.

Q. Yes? A. "Yes" he answered.

Q. Can you tell us, Officer Quigley, if he ever mentioned any contact with Mrs. Kate Fisher on the date--around the date of the shooting, prior to her shooting-death? A. Yes, sir.

Q. And can you tell us what the substance of that conversation was, if you know? A. That he and Charley Chadwick had attempted to run her off the road two times the day before the shooting.

Q. Did he admit doing it two times or one time? A. No, sir, he stated they did that only once.

On cross-examination, Quigley said chief deputy Duane Otto, county attorney David Richter and assistant county attorney Joseph Hrvol were present during the conversation. He also testified as follows:

Q. Had you made any statements to him with reference to your desire to implicate this Mrs. Fisher [the estranged wife of Stanley, the victim] in the case? A. The, more or less, conversation was as to what knowledge he had of the whole incident.

Q. And in addition to that, was there a reward offered to him at that time if he did implicate Mrs. Fisher? A. Dollar award? or?

Q. No, I mean, anything promised to him? A. Only that some slack might be cut to him in the murder of Mrs. Fisher.

Q. So that there was an inducement offered to him in order for him to make these statements that might implicate Mrs. Fisher in the proceedings; is that correct? A. Yes, sir.

Q. And who made those statements to him? A. I believe they were by Dave Richter.

Q. Was...