State v. Wissing, 94-50

• Decision Date: 29 March 1995
• Docket Number: No. 94-50,94-50
• Citation: 528 N.W.2d 561
• Parties: STATE of Iowa, Appellee, v. Fredric William WISSING, Appellant.
• Court: Iowa Supreme Court

Page 561

528 N.W.2d 561

STATE of Iowa, Appellee, v. Fredric William WISSING, Appellant.

No. 94-50.

Supreme Court of Iowa.

March 29, 1995.

Linda Del Gallo, State Appellate Defender, and Kevin Cmelik, Asst. State Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Thomas G. Fisher, Jr., Asst. Atty. Gen., Thomas S. Mullin, County Attorney, and Clinton L. Spurrier, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, ANDREASEN, and TERNUS, JJ.

ANDREASEN, Justice.

The defendant appeals his convictions of involuntary manslaughter and vehicular homicide, in violation of Iowa Code sections 707.5 and 707.6A (1993). He asserts he received ineffective assistance of counsel from his trial attorney. We affirm as modified.

I. Background.

From the evidence at trial, a jury could find the following facts. The defendant, Fredric William Wissing, was driving a pickup truck in the early morning hours of August 26, 1993. Michele Rydstrom was a passenger. At approximately 1:30 a.m. uniformed Sioux City police officer Douglas Fay spotted the truck driven by Wissing run a red light. After a short chase, Fay pulled the truck over, got out of his patrol car, and approached the truck. When he asked to see Wissing's driver's license, Wissing drove away. Fay ran back to his marked patrol car and gave chase with the car's lights and siren running. The chase continued for several blocks. Wissing ran several red lights during the chase, but he did slow slightly while crossing some intersections. Finally, Wissing's vehicle struck a curb, raising a cloud of dust. When the dust settled, Fay discovered the truck had smashed against a tree. He found Rydstrom lying outside the truck with no detectable pulse. She died as a result of the injuries she received in the accident.

The results of blood tests indicated Wissing's blood alcohol level was .221 and Rydstrom's was .296. An accident reconstruction approximated the speed of the truck at the time of impact to be 62.71 miles per hour. The speed limit on the street where the chase took place was thirty miles per hour. Wissing admits he was speeding and attempting to elude officer Fay, but he claims Rydstrom caused the accident by grabbing the wheel to help him avoid hitting a dog in the road.

The jury found Wissing guilty of involuntary manslaughter and vehicular homicide. Iowa Code §§ 707.5(1), 707.6A(1). At post-trial proceeding, Wissing admitted he had two prior felony convictions. The court found him to be a habitual offender. Iowa Code § 902.9(2). Judgments of conviction were entered against Wissing, and he was sentenced to a term not to exceed fifteen years for each felony with the sentences to run concurrently. On appeal, he asserts he did not receive effective assistance of counsel. He claims counsel failed to secure the appropriate jury instruction regarding intervening and superseding causes and that counsel should have moved to dismiss the involuntary manslaughter charge because, by adopting Iowa Code section 707.6A, the legislature impliedly repealed section 707.5.

II. Scope of Review.

Because Wissing asserts his constitutional right to a fair trial was violated, we make an evaluation based on the totality of the circumstances. This is equivalent to a de novo review. Morgan v. State, 469 N.W.2d 419, 426 (Iowa 1991). Although we have held that claims for ineffective assistance of counsel are better reserved for postconviction relief proceedings, "[w]e have, however, reviewed such claims on direct appeal where the evidence available is sufficient to establish the validity of the claim." State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990) (citation omitted).

III. Ineffective Assistance of Counsel.

Wissing bears the burden of proving by a preponderance of the evidence that he received ineffective assistance of counsel. State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). He must prove two elements: First counsel failed to perform an essential duty, and second, he was prejudiced by counsel's omission. Morgan, 469 N.W.2d at 426; Bumpus, 459 N.W.2d at 627. The test for the first element is whether the attorney's performance was outside the range of normal competency. Morgan, 469 N.W.2d at 426. The test for the second element is whether there is "a reasonable probability that but for his trial attorney's unprofessional errors, the resulting conviction and sentence would have been different." Bumpus, 459 N.W.2d at 627. A reasonable probability is "one sufficient to undermine confidence in the outcome." Id. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-93 (1984).

Wissing's burden is a difficult one to meet. "Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not necessarily amount to ineffective assistance of counsel." McKettrick, 480 N.W.2d at 55. Courts generally presume that counsel is competent.

[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95 (citation omitted). However, we need not determine whether counsel's performance is deficient before examining the prejudice element. Id.; Bumpus, 459 N.W.2d at 627. If sufficient prejudice is not shown, we need not address whether counsel breached an essential duty.

A. Jury Instructions.

Wissing contends he received ineffective assistance of counsel when his attorney agreed to the submission of a jury instruction which did not include the terms "superseding" or "intervening." Instead, Wissing's attorney and the county attorney agreed to submission of an instruction which used lay language to incorporate the concepts of superseding and intervening causation. The instruction stated:

The State is required to prove by evidence beyond a reasonable doubt that the defendant's act or acts unintentionally caused the death of Michele R. Rydstrom.

The defendant contends that the act or acts of Michele R. Rydstrom caused her death.

If the act or acts of Michele R. Rydstrom interrupted the natural course of events started by the act or acts of the defendant and her act or acts were the only cause of her death, then the defendant did not cause the death of Michele R. Rydstrom and he must be found not guilty as to the charges of Vehicular Homicide and Involuntary Manslaughter.

Wissing's theory of defense was that Rydstrom caused the accident by grabbing the steering wheel to avoid hitting a dog in the road. Therefore, he argues the instruction should have contained a discussion or definition of intervening and superseding causes. He asserts a question asked by the jury demonstrates it did not fully understand the causation issue. The jury asked the court:

Regarding the word "only":

If we conclude that both parties contributed to the accident (for example equally) do the words "her acts were the only cause of her death" imply that he should not be found guilty of vehic hom and invol mansl. per instruction # 16? In other words, must she have caused 100% for a not guilty verdict?

The court instructed the jury to reread the instruction.

The definition of "proximate cause" in a criminal case is the same as in a civil case. State v. Hubka, 480 N.W.2d 867, 869 (Iowa 1992). In the criminal context, proximate cause "serves as a requirement that there be a sufficient causal relationship between the defendant's conduct and a proscribed harm to hold him criminally responsible." State v. Marti, 290 N.W.2d 570, 584 (Iowa 1980). The defendant's conduct is the proximate cause of another's death if (1) [his or] her conduct is a "substantial factor" in bringing about the harm and (2) there is no other rule of law relieving the defendant of liability because of the manner in which [his or] her conduct resulted in the harm.

Hubka, 480 N.W.2d at 869. A criminal defendant can be relieved of criminal responsibility if an intervening event breaks the chain of causal connection between the defendant's actions and the victim's death. Id. However, for a factor other than the defendant's act to relieve the defendant of criminal responsibility for homicide, the other factor must be the sole proximate cause of death. Id.

The instruction given used plain language to convey the concepts Wissing now asserts should have been defined. The ultimate question is whether Rydstrom's actions could be considered the sole cause of her death, and the instruction explained this. The instruction was correct. Because the instruction correctly incorporated the concepts of intervening and superseding causation, this case is unlike State v. Cunningham, 463 N.W.2d 887 (Iowa App.1990), where the instruction did not clearly convey these concepts. Wissing has not proven he was prejudiced by his counsel's decision to agree to the instruction.

B. Failure to Move to Dismiss Involuntary Manslaughter.

Wissing argues that his trial attorney should have moved to dismiss the involuntary manslaughter charge. He claims that by adopting section 707.6A dealing with vehicular homicide, the legislature impliedly repealed part of the involuntary manslaughter statute. Wissing challenges his multiple convictions which he claims arise from a single act. He argues the legislature did not intend multiple punishments for the same act.

The relevant parts of the vehicular homicide statute state:

1. A person commits a class "C" felony when the person unintentionally causes the death of another by either of the following means:

a. Operating a motor vehicle while under the...