Waterbury v. State, 85-436

• Decision Date: 21 May 1986
• Docket Number: No. 85-436,85-436
• Citation: 387 N.W.2d 309
• Parties: Edward Junior WATERBURY, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 309

387 N.W.2d 309

Edward Junior WATERBURY, Appellant, v. STATE of Iowa, Appellee.

No. 85-436.

Supreme Court of Iowa.

May 21, 1986.

Mark C. Meyer, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., and Denver Dillard, Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, CARTER, WOLLE, and LAVORATO, JJ.

CARTER, Justice.

Postconviction applicant, Edward Junior Waterbury, appeals from a denial of postconviction relief from his 1979 conviction of first-degree murder and resulting life sentence. He contends that the court, at his trial in December of 1979, gave incorrect and prejudicial instructions to the jury in six different particulars pointed out in his application for postconviction relief. The district court considered these claims and denied the application. We affirm the judgment of the district court.

Waterbury was convicted of first-degree murder in December of 1979 in connection with the shooting of Robert Joslyn, who was the husband of Waterbury's sister, Shirley Joslyn. His conviction was affirmed on direct appeal in State v. Waterbury, 307 N.W.2d 45 (Iowa 1981). A detailed statement of the facts adduced at his trial appear in the reported decision on that appeal. We therein describe Waterbury's confession to the killing which came in without objection. It indicated that he and his sister decided that Robert Joslyn should be killed because of his repeated beatings of his wife, Shirley. Waterbury purchased a sixshot revolver with money furnished him by Shirley for the purpose of carrying out their joint intention to kill Robert. On the evening of July 18, 1979, he went to the apartment where Shirley and Robert lived and purported to go to sleep on a couch. Later that evening, Waterbury went into the bedroom and fired at Robert repeatedly with the gun until he was dead.

None of the six claimed infirmities in the jury instructions which form the basis for the present application for postconviction relief were challenged by Waterbury at trial by exceptions taken in accordance with Iowa Rule of Criminal Procedure 18(5)(f) and Iowa Rule of Civil Procedure 196. Nor were any of these six issues raised in his direct appeal from his conviction. The State urges that Waterbury's failure to raise these contentions at an earlier time precludes him from doing so now. It urges that, under Iowa Code section 663A.2 (1985), postconviction relief "is not a substitute for ... direct review of the sentence or conviction."

In Washington v. Scurr, 304 N.W.2d 231, 235 (Iowa 1981), we stated:

A postconviction proceeding is not an avenue for litigating issues that were not properly preserved for our review on direct appeal.... We will not ordinarily allow a defendant to claim in postconviction proceedings that the trial court erred on issues that were not properly presented for our review on direct appeal.

(Citations omitted.) In Polly v. State, 355 N.W.2d 849, 855 (Iowa 1984), we established that a postconviction applicant must both show "cause" for the failure to challenge the alleged error at the original trial and also establish that the error which is belatedly asserted worked to the defendant's "actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions." Id. at 855.

In State v. Holbrook, 261 N.W.2d 480, 482 (Iowa 1978), we observed that:

Our requirement that error has been properly preserved, in situations of pending appeals and of timely appeals, is based on the general principle that we consider only issues which were raised in the trial court. We are a court of review, not a nisi prius court. We cannot "review" an issue unless it was raised in the trial court. The requirement that the issue be raised in the trial court is not something new or a device imposed as a barrier against constitutional rights. It is of long standing and applies generally to claimed errors of all kinds, constitutional and otherwise; nor is it a rule peculiar to Iowa.

Our requirement of contemporary objections in order to preserve a claim of error for assertion on either direct appeal or by subsequent collateral attack is particularly appropriate in the area of jury instructions where a failure to object will ordinarily be equated with acquiescence in the instruction as an adequate statement of the applicable law.

Waterbury urges that adequate cause for his failure to make a contemporaneous objection to any of the six claimed instructional infirmities may be found in the "novelty" of the constitutional issues he is now advancing. In the alternative, he argues that, because these instructional infirmities infected his original trial with error of constitutional dimensions, we may infer that his counsel at trial was ineffective for not asserting these claims at that time. Our decision in Holbrook, 261 N.W.2d at 482-83 appears to reject Waterbury's contention that the novelty of a claim may be considered to excuse the requirements for error preservation. We are not inclined to depart from that determination. To the extent that Waterbury urges that a "novelty" exception is mandated for preservation of federal constitutional claims by the opinion of the Supreme Court in Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), we conclude, for reasons which we will presently discuss, that the Reed holding is not persuasive with respect to the issues involved in the present proceeding.

With respect to the alternative contention that ineffective assistance of counsel may excuse compliance with the usual requirement of contemporary objection, we do not believe that Waterbury has established that his counsel at trial or on his direct appeal was ineffective. We have recognized that

"[t]he defense attorney's function consists, in large part, of the application of professional judgment to an infinite variety of decisions in the development and prosecution of the case. A determination whether any given action or omission by counsel amounted to ineffective assistance cannot be divorced from consideration of the peculiar facts and circumstances that influenced counsel's judgment. In this fact-laden atmosphere, categorical rules are not appropriate."

Schrier v. State, 347 N.W.2d 657, 661-62 (Iowa 1984) (quoting United States v. Decoster, 624 F.2d 196, 203, (D.C.Cir.1979). Application of these principles to the area of jury instructions has caused us to observe that "not every right to insist that a particular instruction be given need be availed of by counsel in order to satisfy the standard of normal competency." State v. Blackford, 335 N.W.2d 173, 178 (Iowa 1983).

Waterbury's contentions concerning the trial court's instructions may be summarized as follows:

1. That Instruction No. 19 which permits an inference of malice, deliberation, premeditation and specific intent to kill from the intentional use of a dangerous weapon relieves the State from its burden of persuasion beyond a reasonable doubt with respect to one or more elements of the crime contrary to the requirements established in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

2. That Instruction No. 56 which permits an inference that an actor has knowledge of the natural and probable consequences of his voluntary acts also relieves the State from its burden of persuasion beyond a reasonable doubt with respect to an essential element of the crime.

3. That Instruction No. 22 improperly permitted conviction upon proof that he shot the victim deliberately and premeditatedly with malice aforethought when it should have required proof that he killed the victim deliberately and premeditatedly with malice aforethought.

4. That although deliberation and...