Opinion
No. 4-599 / 03-1913
Filed December 8, 2004
Appeal from the Iowa District Court for Sioux County, Edward A. Jacobson, Judge.
Guillermo Escobedo and Cesar Herrarte appeal following the denial of their postconviction relief applications. AFFIRMED.
Martha M. McMinn, Sioux City, for appellants.
Thomas J. Miller, Attorney General, Sheryl A. Soich and Charles Thoman, Assistant Attorneys General, and Melissa O'Rourke, County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Guillermo Escobedo and Cesar Herrarte appeal following the denial of their postconviction relief applications. We affirm.
Background Facts and Proceedings.
Based on an incident in which Kevin Kaskie and Justin Younie were stabbed and Younie later died, Escobedo was convicted of first-degree murder, willful injury, and assault causing bodily injury, while Herrarte was convicted of first-degree murder, assault causing bodily injury, and simple assault. During the joint trial, it was brought to the attention of the court that one of the jurors had been overheard at a local bar commenting on the case and making prejudicial remarks about the defendants and their attorneys. After confirming the allegations, the trial court indicated its intention to dismiss that juror and call an alternate. Both defense lawyers consented to this course of action.
After the jury returned guilty verdicts on all counts, both Escobedo and Herrarte appealed their convictions. On direct appeal, Escobedo raised an issue concerning the juror substitution; Herrarte did not. This court affirmed the convictions of both in State v. Escobedo, 573 N.W.2d 271 (Iowa Ct. App. 1997), and State v. Herrarte, No. 95-2053 (Iowa Ct.App. April 30, 1997). In Escobedo, we concluded that the trial court was not authorized to substitute the juror once deliberations had begun and that Escobedo would have been entitled to a mistrial had he requested one. Escobedo, 573 N.W.2d at 276. However, we concluded Escobedo had waived any error in this regard due to his acquiescence to the course of events. Id.
Both Escobedo and Herrarte subsequently filed applications for postconviction relief. The main issue in their postconviction action concerned the trial court's decision to substitute the alternate juror after deliberations had begun and respective trial counsel's failure to object and move for a mistrial. The postconviction court held that neither trial counsel was ineffective in foregoing a mistrial motion in that it was a strategic decision and further that appellate counsel was not ineffective in failing to raise the issue on direct appeal. Escobedo and Herrarte appeal from this ruling.
Scope and Standards of Review.
We typically review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts a claim of a constitutional nature, such as ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Id.
To prove ineffective assistance of counsel the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma, 626 N.W.2d at 142. In order to prove prejudice, one must show there is a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Ledezma, 626 N.W.2d at 143-44.
Merits.
On appeal, Escobedo and Herrarte maintain the postconviction court erred when it determined trial counsel made a strategic decision to forego requesting a mistrial. They further contend that because a mistrial would have been granted had one been requested and because there is a reasonable likelihood they would have been convicted of a lesser offense on retrial, they have established the requisite prejudice element.
The test to be applied in judging counsel's actions is whether counsel's performance was within the range of normal competency. Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). A presumption exists that counsel is competent. Sims v. State, 295 N.W.2d 420, 423 (Iowa 1980). "Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972).
At the postconviction hearing, Herrarte's counsel, Gregory Jones, testified that after the allegations regarding the juror came to light he was aware he had the option to either request a mistrial or continue with deliberations. He testified that, for various reasons, his view was that rather than seeking a mistrial, the jury should be allowed to continue deliberating: first, the trial court judge had strongly admonished the jury to disregard inappropriate statements by the prosecutor on another matter; second, due to certain actions by the prosecutor, Jones felt the State's credibility had been severely damaged; third, he felt generally the jury was favorably inclined to believe Herrarte and Escobedo had acted in self-defense. He characterized his choice to forego a mistrial motion as "strategic," and he noted that he had discussed the decision with both his client and co-counsel.
Steven Pals, Escobedo's trial counsel, concurred with Jones' assessment that the trial had gone well for their clients and he agreed with Jones' position that they had discussed, in the presence of their clients, the options of mistrial or having the jury continue with deliberations. He testified that he was disinclined to seek a mistrial because he "felt [they] had gotten as much as [they] could get from the State's witnesses during the course of the trial to establish our defense." He further noted that he "didn't think these matters would recreate themselves if there was a second trial."
While Escobedo and Herrarte assert that there was no opportunity for counsel to consult with them before they "acquiesced" to the seating of the alternate juror, the record does not indicate whether there was a pause in the proceedings or what may have previously transpired off the record.
Upon our de novo review, we concur in the postconviction court's conclusion that trial counsel's choices were reasonable strategic and tactical decisions. The fact that the decision may have, with hindsight, not achieved their desired result is irrelevant. Because the decision to not seek a mistrial was based on the professional judgment of two experienced criminal trial attorneys, Escobedo and Herrarte cannot establish that their counsel breached an essential duty.
Regardless, we further conclude neither Escobedo nor Herrarte can establish prejudice. The evidence against them was strong, including the testimony of various eye witnesses. There is no reasonable likelihood the result of a second trial would have been any different. We reject the contention that Escobedo and Herrarte need only show there was a reasonable probability the mistrial would have been granted, and not that there was a reasonable probability the ultimate verdict would have been different. In Ledezma, our supreme court reasoned that under Strickland, "different result" requires a reasonable probability that a different verdict would have been reached or that the factfinder would have possessed a reasonable doubt. Ledezma, 626 N.W.2d at 134.
Conclusion.
The postconviction court properly determined trial counsel did not provide ineffective assistance and that Herrarte's direct appeal counsel was not ineffective in failing to raise the issue of trial counsel's failure to move for a mistrial. We affirm the convictions.