Van Hoff v. State

• Citation: 447 N.W.2d 665
• Decision Date: 23 August 1989
• Docket Number: No. 87-1758,87-1758
• Parties: Roger Gene VAN HOFF, Applicant-Appellant, v. STATE of Iowa, Resister-Appellee.
• Court: Court of Appeals of Iowa

Page 665

447 N.W.2d 665

Roger Gene VAN HOFF, Applicant-Appellant, v. STATE of Iowa, Resister-Appellee.

No. 87-1758.

Court of Appeals of Iowa.

Aug. 23, 1989.

Robert E. Walker, Fort Dodge, for applicant-appellant.

Thomas J. Miller, Atty. Gen., Richard J. Bennett, Asst. Atty. Gen., and James C. Hudson, Pocahontas County Atty., for resister-appellee.

Heard by DONIELSON, P.J., and SCHLEGEL and HAYDEN, JJ.

DONIELSON, Presiding Judge.

Shortly after his live-in girlfriend told him she was moving out, Roger Van Hoff found his shotgun and started firing. Both his father and his son were killed as a result. Van Hoff claims that at the time of the shootings he was depressed, confused, sleep-deprived, and under the influence of alcohol and amphetamines, and that he could not clearly remember what happened until shortly before trial when his memory returned. His attorneys having prepared a defense based on his loss of memory requested a continuance to allow them to develop a new theory based on the return of his memory. The district court denied that motion, and in due course a jury found Van Hoff guilty of two counts of first-degree murder. His conviction was affirmed in State v. Van Hoff, 371 N.W.2d 180 (Iowa App.1985), cert. denied, 474 U.S. 1034, 106 S.Ct. 598, 88 L.Ed.2d 578 (1985). Van Hoff subsequently applied for postconviction relief but it was denied.

Van Hoff's claims of ineffective assistance are grounded in seven allegations: 1) his trial attorneys were rendered ineffective by the trial court's denial of a continuance; 2) his trial attorneys presented no meaningful defense based on intoxication and/or diminished capacity or insanity; 3) his trial attorneys failed to explore the issue of whether the entry by police into Van Hoff's house on the day of the shooting constituted a warrantless search requiring the suppression of the fruits of that search; 4) his trial attorneys failed to challenge the admissibility of statements made by Van Hoff to police officers at the scene of the shootings; 5) his trial attorneys failed to present an adequate argument for the suppression of statements given by Van Hoff at the hospital; 6) his trial attorneys prejudiced his case when they took depositions in his absence and without his having waived his right to be present at this stage of the proceedings; and 7) his trial attorneys failed to challenge the prosecutor's impermissible comments during closing argument that called the jury's attention to Van Hoff's failure to testify.

Van Hoff asserts that his appellate counsel also provided ineffective assistance because of his failure to raise any of these issues on appeal.

Our ultimate concern in claims of ineffective assistance is with the "fundamental fairness of the proceeding whose result is being challenged." State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987), quoting Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984). We review de novo the totality of the circumstances relating to counsel's conduct, keeping in mind the presumption that counsel performed competently. Risdal, 404 N.W.2d at 131. The burden is on the defendant to prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted.

Ordinarily, our review of postconviction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). However, when a postconviction petitioner asserts violation of constitutional safeguards--such as ineffective assistance of counsel--we make our own evaluation based on the totality of the circumstances. This is the equivalent of de novo review. Id.

I. Denial of Motion for Continuance. Van Hoff contends that the trial court's denial of his motion for a continuance rendered his trial attorneys constitutionally ineffective in presenting his defense. Specifically, Van Hoff asserts that his trial attorneys could have, and would have, been effective and able to put on a proper defense of intoxication and/or diminished responsibility or insanity if the continuance had been allowed. He also argues that his appellate attorney was constitutionally ineffective in failing to address on appeal the issue of whether or not the denial of Mr. Van Hoff's motion for a continuance was an abuse of the trial court's discretion which denied him effective assistance of counsel.

On Tuesday, August 23, 1983, the day the trial was scheduled to begin, Van Hoff's attorneys sought a continuance of the trial. The attorneys informed the court that the recent return of Van Hoff's memory of the incident necessitated a change in the defense they would pursue. The attorneys argued that additional time was needed to prepare for presentation of the new defense.

The attorneys had originally intended to rely on a defense which was predicated on the basis that Mr. Van Hoff had fallen into a fit of rage or passion, had loaded a weapon, and had indiscriminately began firing it. Their theory of the case was nonintentional, albeit reckless, shooting. According to Van Hoff's attorneys, the night before the trial was to begin he informed them that he recalled shooting his father and son and that he had believed shooting his family was necessary to end his father's pain and to prevent the family from being split up.

A motion for a continuance shall not be granted except upon a showing of good and compelling cause. Iowa R.Crim.P. 8.1. To obtain a continuance, a moving party must make a showing that substantial justice will be more nearly obtained by granting the continuance. State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983). Generally, continuances will not be granted for want of defense preparation in the absence of a showing of good excuse. State v. Youngbear, 229 N.W.2d 728, 733 (Iowa), cert. denied, 423 U.S. 1018, 96 S.Ct. 455, 46 L.Ed.2d 390 (1975). When a defendant claims he needs a continuance for further trial preparation because of some type of surprise or change in circumstances regarding the case, denial of a continuance is proper if the record rebuts the surprise claim. See State v. Slayton, 417 N.W.2d 432, 435 (Iowa 1987). A ruling on a motion for a continuance is a matter committed to the sound discretion of the trial court and will be reversed only when an abuse of discretion is shown. Id. Abuse of discretion is a difficult standard to meet. State v. Halstead, 362 N.W.2d 504, 506 (Iowa 1985).

The record in this case reveals that on the day of the murders, November 5, 1982, Van Hoff made statements in the hospital about discussions he allegedly had with his father about killing the entire family. The fact that Van Hoff on the eve of trial suddenly "recalled" that he had a belief that he needed to kill his entire family to save them from some fate he felt was going to befall them, should not have come as a great surprise to his attorneys in light of those prior statements.

Van Hoff's attorneys sought a court-ordered psychiatric examination. This request was granted and on May 5, 1983, Dr. Taylor examined Van Hoff. On June 22, 1983, Van Hoff's attorneys gave notice of their intent to rely on the defense of insanity and diminished capacity. Yet two months later on August 23rd, Van Hoff's attorneys moved for a continuance so that they might investigate the possibility that at the time of the commission of the crime Van Hoff might have been operating "under a mental disease or defect." It is evident from the record that the attorneys had earlier recognized and considered the possibility of relying on such a defense. Van Hoff's revelations to his attorneys on the eve of trial were not of such a nature that additional time was necessitated to allow them to prepare a defense based on Van Hoff's mental condition.

Similarly, the trial court's denial of a continuance did not render Van Hoff's counsel unable to render a defense based on his intoxication and/or diminished capacity. Evidence regarding Van Hoff's condition on the day of the murder was available long before Van Hoff's memory recall on the eve of trial. Test results showing the alcohol content of his urine sample and statements from hospital and police personnel who dealt with Van Hoff were much more important in preparing a defense based on intoxication and/or diminished capacity than any of the things remembered by Van Hoff and revealed to his attorneys on August 22, 1983. Van Hoff's attorneys were not rendered constitutionally ineffective and unable to develop a defense based on intoxication by the denial of their motion for a continuance.

In sum, the trial court acted within its discretion by denying the motion for a continuance. Van Hoff's attorneys had adequate time to prepare his case and they were allowed sufficient time within which to develop their trial defenses. Likewise, appellate counsel's decision not to appeal the denial of the continuance does not render him constitutionally ineffective.

II. Intoxication/Diminished Capacity Defenses. Van Hoff challenges the postconviction relief court's finding that the trial attorneys were effective in their representation of defendant and fully presented the defense of intoxication and/or diminished capacity or insanity.

Van Hoff's attorneys requested that the jury be instructed on the defenses of insanity and diminished responsibility. The trial court concluded that the evidence presented at trial was not substantial enough to warrant submitting these issues to the jury. The trial court did, however, instruct the jury that the defendant's intoxication could be considered in determining whether the State had proven premeditation, willfulness, deliberation, and specific intent to kill.

A review of the record reveals that the defense did not present any evidence but for the admission of two laboratory reports. One report included the results from a test measuring the alcohol content of Van Hoff's urine on the day of the murders. The other report contained the results of a...