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concluding a combination of instructions “adequately addressed the concept of proximate cause”
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No. 4-125 / 03-0186
April 28, 2004.
Appeal from the Iowa District Court for Lee (South) County, John G. Linn, Judge.
John Washburne appeals from the denial of his postconviction relief application. AFFIRMED.
William Monroe, Burlington, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Michael Short, County Attorney, and Bruce McDonald, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
John Washburne was charged with and convicted of first-degree murder based on the death of Karen Owen. His conviction was affirmed on direct appeal, and he now appeals from the denial of his subsequent postconviction relief application. Concluding the postconviction court properly determined no ineffective assistance of counsel was established, we affirm.
I. Background Proceedings.
Washburne was charged by trial information with first-degree murder, in violation of Iowa Code section 707.2 (1995), based on the death of Karen Joann Owen on July 14, 1995. The State also alleged alternative theories of aiding and abetting or acting in concert with Bobby Hooper either with premeditation or while participating in a forcible felony. A jury found Washburne guilty and he appealed.
The Iowa Supreme Court subsequently affirmed the conviction and sentence. State v. Washburne, 574 N.W.2d 261 (Iowa 1997). In its opinion, the court made the following factual recitation:
On July 14, 1995, at approximately 7:30 p.m., the body of Karen Owen was found in the Des Moines River in a remote area of Keokuk, Iowa. Owen died as a result of severe injuries to her head inflicted by a blunt instrument. She had been beaten to death close to the river's edge and her body dragged to the river and dumped into the water. The evening before her body was discovered, Owen had been with Bobby Hooper and Washburne at a tavern. Law enforcement officials interviewed both Hooper and Washburne on July 15. On July 16 a search warrant was obtained to search the residences of Hooper and Washburne and to obtain samples of their blood.
On July 17 Washburne reported to the sheriff of Hancock County at Carthage, Illinois, to begin serving a sentence for an unrelated theft conviction. Iowa law enforcement officials continued questioning Washburne by telephone and in person. On July 24 law enforcement officials seized Washburne's tennis shoes and other personal property from Hancock County jail personnel. Interrogation of Washburne continued until he was charged with murder on August 9.
After entering a plea of not guilty to the charge Washburne filed a motion to suppress, which he later amended. The State filed a resistance to both the original motion and its amendment.
A hearing involving part of the original motion to suppress and part of the amended motion was held on February 1, 1996 before Judge D.B. Hendrickson. The issues presented at the hearing related to suppression of items seized pursuant to a search warrant and the suppression of recorded statements made by Washburne over the telephone while he was in the Illinois jail. On February 2, the judge denied Washburne's motion to suppress.
A hearing on the remainder of the motion to suppress was held on March 12, 13, and 19 before Judge R. David Fahey. On March 26 the judge denied the motion to suppress. The same day jury trial against Washburne commenced.
On April 11, the charge was submitted to the jury. The jury returned a verdict of guilty the following day. Washburne requested to be sentenced immediately and the court entered a judgment of conviction on April 12.
Washburne, 574 N.W.2d at 262-63.
Washburne then filed a writ of habeas corpus with the United States District Court for the Southern District of Iowa. That court, however, denied the petition and dismissed the case, concluding "Washburne's claims for habeas relief are either unreviewable or without merit." Washburne next filed an application for postconviction relief in the Iowa District Court for Lee County. In the application, he claimed, among other things, that (1) counsel was ineffective in various respects, (2) he was denied a fair trial because certain incriminating statements were not suppressed, (3) his equal protection rights were violated because co-defendant Bobby Hooper received a plea bargain to a lesser charge, and (4) newly discovered evidence entitled him to a new trial. Following a hearing, the court denied the application. Washburne now appeals from this ruling.
II. Scope of Review.
Postconviction relief proceedings are typically reviewed on claimed error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts constitutional claims, such as ineffective assistance of counsel and fair-trial violations, our review is de novo. Id.; Conner v. State, 362 N.W.2d 449, 458 (Iowa 1985).
III. Ineffective Assistance of Counsel.
To establish an ineffective-assistance-of-counsel claim under the Sixth Amendment of the federal Constitution, the applicant must show counsel failed to perform an essential duty and prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 693 (1984). To establish deficient performance, "[t]he test is `whether under the entire record and totality of the circumstances counsel's performance was within the normal range of competence.'" State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (quoting Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). "A defendant is not entitled to perfect representation, rather representation which is within the normal range of competency." Id.
The applicant must also demonstrate counsel's ineffective assistance caused prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L. Ed.2d at 697. To meet this burden, the applicant must prove "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.; State v. Carrillo, 597 N.W.2d 497, 500 (Iowa 1999). An ineffective assistance of counsel claim will fail if the defendant is unable to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
IV. Claims on Appeal.
Washburne's appellate brief is sprinkled with various related, and unrelated, claims. Many of these are mentioned in no more than one sentence and with little or no factual or legal support. Included among these are assertions that (1) trial counsel did not ensure Washburne was treated in a "civil manner," (2) Washburne was subjected to repeated and harassing questions by the prosecutor, (3) the trial information was over-broad in scope, (4) the postconviction trial was not fair due to the denial of Washburne's requests for discovery of the criminal file of his co-defendant Bobby Hooper, (5) Washburne's attorneys did not consult him on witness selection, (6) direct appeal counsel did not discuss with Washburne the issues to be raised on appeal, and (7) Washburne's trial counsel had dated the victim at one time. In making these assertions, Washburne generally makes no more than bare assertions or unsupported allegations of counsel's ineffectiveness.
Post-conviction claims must be stated with sufficient specificity: "[I]t is not enough to simply claim that counsel should have done a better job. The applicant must state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome." Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citations omitted). Failure to do so renders the claim too general to either address on appeal or preserve for a possible additional postconviction proceeding. Id. Similarly, failure in the brief to provide argument in support of an issue may be deemed waiver of that issue. Iowa R. App. P. 6.14(1)( c). We conclude the above claims have been waived as a consequence of Washburne's failure to argue them with sufficient specificity or cite support for them.
V. Jury Instructions.
We agree with the State's contention that the only issue properly before this court is Washburne's contention his two trial attorneys provided ineffective assistance in failing to request certain jury instructions. In particular, he maintains the jury should have been instructed on proximate cause and on the affirmative defenses of insanity, intoxication and diminished responsibility.
Generally speaking, the trial court has a duty to instruct fully and fairly on the law regarding all issues raised by the evidence. State v. Stallings, 541 N.W.2d 855, 858 (Iowa 1995). To warrant submission of a defense to the jury, a defendant must produce substantial evidence from any source to support the theory. State v. Lucas, 368 N.W.2d 124, 127 (Iowa 1985).
A. Proximate Causation.
We first address the claim counsel was ineffective in failing to request a jury instruction on proximate causation. In particular, Washburne alleges "the weight of the evidence presented at trial required a jury finding that Bobby Hooper's actions independently and proximately caused the death of Ms. Owen and that Petitioner was not a part." Moreover, Washburne asserts "the jury needed to be properly and fully instructed as to" the proximate cause requirement.
In addressing this issue, the district court concluded that although a specific proximate cause instruction was not given, the essential nature of such an instruction was found elsewhere. For example, instruction 18 directed the jury to consider whether Owen died as a "result of being struck," and instruction 25 informed the jurors that "[t]he Defendant's alleged act `resulted' in the death of Karen Joann Owen if it caused or directly contributed to her death."
We agree with the postconviction court's conclusion the combination of these instructions adequately addressed the concept of proximate cause. The instructions, as given, properly conveyed the essential nature of the proximate cause instruction which Washburne now contends his counsel should have advocated. The postconviction court properly noted 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. See State v. Blackford, 335 N.W.2d 173, 178 (Iowa 1983). Here, counsel had no duty to request further instruction on this issue. Accordingly, we conclude counsel breached no duty in neglecting to request a separate proximate cause instruction.
Even if we assume without deciding that a separate proximate cause instruction was required under the circumstances of this case, however, we conclude Washburne cannot establish the requisite prejudice. See Strickland, 466 U.S. at 693, 104 So. Ct. at 2067, 80 L. Ed.2d at 697. There is no reasonable probability that, had a separate proximate cause instruction been given, he would have been acquitted. See State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990) (requiring convicted person seeking relief on a claim of ineffective assistance of trial counsel to demonstrate within the totality of the trial the dual elements of breach of an essential duty and prejudice). As the State notes, evidence was presented that Washburne admitted to various police officers that he struck Owen with a bat after having sex with her. Moreover, expert testimony established that Owen's death was caused by multiple blows to her face and the back of her head, leading to brain damage and a skull fracture consistent with bat-inflicted trauma.
B. Affirmative Defenses.
We next address Washburne's contention counsel was ineffective in failing to request instructions on insanity, intoxication, and diminished responsibility. In considering these claims, the postconviction court determined "substantial evidence was not adduced during trial which would have justified the Court in" giving such instructions. The court also concluded that, regardless, Washburne had suffered no prejudice by's counsel's failure in that the outcome of the trial would not have changed had the instructions been given.
In addressing similar issues, Iowa courts have recognized that the question of whether counsel was ineffective for failing to object to or request a particular instruction must be determined with regard to the theory of defense which is being employed in the case. Broughton, 450 N.W.2d at 876 (citing Blackford, 335 N.W.2d at 178). In the present case, a primary theory of defense appears to have been Bobby Hooper killed Owen, and that Washburne was not culpable as either a principal or an aider and abettor. On our de novo review, we conclude it was a reasonable trial strategy to portray Hooper as the murderer, and to claim that Washburne was not involved. Any claim that his culpability was lessened due to his drug and alcohol ingestion, or that he was somehow mentally impaired, would have detracted from, and been inconsistent with, that theory of defense.
We thus determine defense counsel's choice involved a reasonable tactical decision by trial counsel. See State v. Oetken, 613 N.W.2d 679, 683-84 (Iowa 2000). Where an attorney makes a reasonable strategic decision, even if it is not successful, we will not find the attorney ineffective. See State v. Newman, 326 N.W.2d 788, 795 (Iowa 1982). Accordingly, counsel breached no duty in failing to seek instructions on intoxication, diminished responsibility, or insanity.
Nor do we believe the facts could sustain the prejudice element which Washburne must establish in order to obtain relief on this issue. It is unlikely that the inclusion of insanity, intoxication, or diminished responsibility instructions would have produced a different jury verdict. See State v. Propps, 376 N.W.2d 619 (Iowa 1985). We therefore affirm the district court's denial of Washburne's postconviction relief application.