State v. Kraus, 84-1047

• Citation: 397 N.W.2d 671
• Decision Date: 17 December 1986
• Docket Number: No. 84-1047,84-1047
• Parties: STATE of Iowa, Appellee, v. Joseph B. KRAUS, Appellant. Joseph B. KRAUS, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 671

397 N.W.2d 671

STATE of Iowa, Appellee, v. Joseph B. KRAUS, Appellant.

Joseph B. KRAUS, Appellant, v. STATE of Iowa, Appellee.

No. 84-1047.

Supreme Court of Iowa.

Dec. 17, 1986.

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., William E. Davis, Co. Atty., and James D. Hoffman, Asst. Co. Atty., for appellee.

Considered en banc.

HARRIS, Justice.

Contending he was denied effective assistance of counsel the defendant appeals following his conviction of second-degree murder. Iowa Code §§ 707.1, 707.3 (1983). He also appeals from a denial of postconviction relief on the same grounds. The case is unusual in that the defendant received inaccurate legal advice during plea negotiations instead of at trial. Defendant claims he relied on bad advice concerning the elements of second-degree murder and therefore declined an offer to plead to a lesser offense. We conditionally reverse the trial court. So doing we vacate a decision by the court of appeals.

Because the assignments of error address the quality of legal representation the facts relating to the criminal charge can be stated in summary form. Defendant's sister, Carol, moved into a house with another woman named Marilyn. Defendant later moved into the house and Carol thereafter moved out without paying rent to Marilyn. Marilyn and defendant told Carol they would keep Carol's furniture until the rent was paid.

Carol obtained the assistance of her (and defendant's) uncle George Bain to help retrieve her furniture. Bain, his wife, and Carol went to the house. An argument ensued and culminated in defendant shooting and killing Bain. As is typical there were conflicting versions of the altercation. According to defendant he grabbed a rifle in the basement only to scare his uncle who had followed him there and it accidentally discharged. The State's testimony indicated defendant intended to shoot the victim.

Defendant was arrested for second-degree murder but the State offered to accept a plea of involuntary manslaughter.

Although there is some doubt about the matter we must assume Kraus' trial attorney mistakenly told him the State would be required to prove a specific intent in order to obtain a second-degree murder conviction. Testimony on the question at the postconviction hearing was conflicting. Defendant's trial counsel testified in considerable detail that he accurately advised Kraus on the elements of the charge, whereas Kraus testified the attorney told him the State would have to prove a specific intent to kill as an element of second-degree murder.

On this record we cannot accept counsel's version of the advice. During cross-examination by Kraus' postconviction counsel the original defense attorney stated he did in fact tell Kraus that, in order to convict him of second-degree murder, the State would have to prove he had a specific intent to kill. On appeal the State justifies this cross-examination testimony as a misstatement. On review it must be said that the testimony casts considerable doubt on the advice and lends credence to Kraus' testimony. ¹ We take the misadvice as established.

I. Intent was aptly explained in a court of appeals' dissenting opinion in this case:

According to Iowa case law, it is well established that "[f]irst degree murder is distinguished from second degree murder in that an element of first degree murder is specific intent to kill, while this element is not required in second degree murder." State v. Reese, 259 N.W.2d 771, 778 (Iowa 1977); State v. Smith, 242 N.W.2d 320, 326 (Iowa 1976); State v. Leedom, 247 Iowa 911, 916, 76 N.W.2d 773, 776 (1956); State v. Miller, 359 N.W.2d 508, 511 (Iowa Ct.App.1984). Second-degree murder does require proof of malice aforethought:

While malice aforethought is the specific state of mind necessary to convict of murder, it is far different from the specific intent which is a necessary element of murder in the first degree. It may be express or implied from the acts and conduct of defendant.

State v. Gramenz, 256 Iowa 134, 142, 126 N.W.2d 285, 290 (1964). Malice aforethought is commonly defined as:

A fixed purpose or design to do some physical harm to another which exists prior to the act committed. It need not exist for any particular length of time and requires only such deliberation as would make a person appreciate and understand the nature of the act and its consequences, as distinguished from an act done in the heat of passion.

State v. Higginbotham, 351 N.W.2d 513, 515 (Iowa 1984) quoting State v. Sharpe, 304 N.W.2d 220, 226 (Iowa 1981).

Our rules for considering claims of ineffective assistance of counsel are well understood. Because a fundamental constitutional right is at issue we make an independent evaluation of the totality of relevant circumstances. This amounts to a de novo review. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). To establish an ineffectiveness claim one must prove: (1) counsel failed to perform an essential duty and (2) prejudice resulted. State v. Hrbek, 336 N.W.2d 431, 436 (Iowa 1983). A claimant must satisfy this burden by a preponderance of all the evidence. Kellogg v. State, 288 N.W.2d 561, 563 (Iowa 1980).

The first prong (failure of essential duty) is not satisfied by a mere showing that trial strategy backfired or that another attorney would have tried the case differently. Fryer v. State, 325 N.W.2d 400, 413-15 (Iowa 1982). We ordinarily refuse to second-guess trial tactics, strategies, or judgment calls. Sallis v. Rhoads, 325 N.W.2d 121, 123 (Iowa 1982).

The second prong (prejudice) requires a showing that the failure worked to the client's actual and substantial disadvantage. To qualify it must appear that the failure amounted to "a denial of the accused's due process right to a fair trial, fundamental miscarriage of justice, or an equivalent constitutional deprivation." State v. Miles, 344 N.W.2d 231, 234 (Iowa 1984). The United States Supreme Court described prejudice this way:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 698 (1984).

Misadvice on a matter so basic as the elements of the criminal charge qualifies under the foregoing incompetent representation standard. See State v. Schoelerman, 315 N.W.2d 67, 71-72 (Iowa 1982) ("A normally competent attorney who undertakes to represent a criminal defendant should either be familiar with the basic provisions of the criminal code, or should make an effort to acquaint himself with those provisions which may be applicable to the criminal acts allegedly committed by his client."). The plea bargain stage is a critical point in a criminal proceeding, at which an accused's sixth amendment right to competent counsel has attached. Meier v. State, 337 N.W.2d 204, 208 (Iowa 1983).

In our previous cases involving attorney misadvice during plea bargain negotiations the misadvice led to a guilty plea, rather than, as here, to a not guilty plea. And we have found no cases from other jurisdictions involving misadvice which led to a not guilty plea. There have been several cases involving the analogous situation where an attorney fails to tell his accused client that the prosecution has offered to accept a plea to a lesser offense. When a conviction of a greater offense has followed, similar claims have been made that the attorney's failure resulted in a lost chance to settle for a lesser sentence. Results have been mixed. Johnson v. Duckworth, 793 F.2d 898, 901 (7th Cir.1986) (though decision to plead guilty is fundamentally different from decision to plead not guilty, attorney may not unilaterally choose to reject plea bargain without advising client); U.S. ex rel. Caruso v. Zelinsky, 689 F.2d 435, 443-44 (3d Cir.1982) (ineffective assistance of counsel found where attorney failed to communicate offer of plea bargain to client--case remanded for hearing to determine prejudice); Rasmussen v. State, 280 Ark. 472, 473-75, 658 S.W.2d 867, 868 (1983) (notwithstanding attorney's failure to communicate plea offer, court found "no grounds on which to set aside the finding of guilt or to order a new trial"); People v. Brown, 177 Cal.App.3d 537, 555-57, 223 Cal.Rptr. 66, 78 (1986) (no reversible error in absence of showing that plea bargain was in fact offered by prosecution); People v. Whitfield, 40 Ill.2d 308, 310-12, 239 N.E.2d 850, 852 (1968) (because of attorney's failure to communicate plea offer, conviction reversed and case remanded for a new trial); Harris v. State, 437 N.E.2d 44, 46 (Ind.1982) (no error in defense counsel's decision, communicated to defendant, electing not to engage in plea negotiations until counsel received a firm proposal from prosecution); Curl v. State, 272 Ind. 605, 607-09, 400 N.E.2d 775, 777 (1980) (attorney's delay in communicating offer of plea bargain until a few moments before trial did not call for reversal); Rose v. State, 488 N.E.2d 1141, 1145 (Ind.App.1986) (not reversible error for defense counsel to reject plea offer); Lyles v. State, 178 Ind.App. 398, 401-02, 382 N.E.2d 991, 994 (1978) (failure to communicate plea offer was grounds for reversal, case remanded for plea under bargain or new trial); State v. Simmons, 65 N.C.App. 294, 299-300, 309 S.E.2d 493, 497 (1983) (attorney's failure to communicate plea bargain offer calls for reversal); Commonwealth v. Napper, 254 Pa.Super. 54, 60-61, 385 A.2d 521, 524 (1978) (because of counsel's inadequate explanation of plea offer to client, conviction reversed, case remanded for further plea negotiations or new trial).

No appellate response to misadvice in these circumstances is entirely...