Summary
holding appellate counsel did not provide ineffective assistance of counsel by failing to appeal district court's decision to admit evidence that defendant was a member of a gang, because "gang membership was relevant to show motive and intent"
Summary of this case from Pfau v. AultOpinion
No. 3-156 / 02-0568
Filed July 10, 2003
Appeal from the Iowa District Court for Clay County, Don E. Courtney, Judge.
Ryan Wedebrand appeals the district court's denial of his request for postconviction relief from his convictions for first-degree murder and kidnapping. AFFIRMED.
Michael Jacobsma and Bradley Bender of Klay, Veldhuizen, Bindner, De Jong Jacobsma, P.L.C., Orange City, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, and Michael Zenor, County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink, Mahan, and Hecht, JJ., but decided by Huitink, P.J., and Mahan and Hecht, JJ. Sackett, C.J., takes no part.
Ryan Wedebrand appeals from the district court's judgment denying his request for postconviction relief. We affirm.
I. Background Facts and Proceedings.
Wedebrand was convicted of kidnapping and murder in the first degree as the result of his participation in the June 6, 1997, abduction and shooting death of Sky Erickson. On direct appeal we rejected Wedebrand's jurisdictional claims and challenge to the trial court's ruling denying his motion for a change of venue. See State v. Wedebrand, 602 N.W.2d 186, 189-90 (Iowa Ct.App. 1999).
In these postconviction proceedings filed in state court in March 2000, Wedebrand claims he was denied effective assistance of counsel both at trial and on direct appeal. Wedebrand cites trial counsel's failure to adequately advise him of his exposure to prosecution as an adult and resulting murder and kidnapping conviction carrying a life sentence as a consequence of rejecting a more favorable plea offer from federal authorities. He also faults trial counsel for failing to strike jurors who were biased against him, failing to move for judgment of acquittal on the State's aiding and abetting theory of kidnapping, as well as counsel's failure to object to the court's jury instructions on both murder and kidnapping. Wedebrand faults appellate counsel for failing to appeal the trial court's ruling admitting evidence that he was a member of a gang. The postconviction court rejected all of Wedebrand's claims and denied his request for postconviction relief, resulting in this appeal.
II. Standard of Review.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a postconviction applicant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied an applicant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the applicant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
III. Plea Bargain.
Wedebrand contends he was not adequately advised by his state-appointed counsel about the consequences in state court of rejecting a plea agreement by federal prosecutors resolving all of the charges against him. He claims he did not know he would be prosecuted as an adult in state court, that he could be sentenced to a life sentence without parole, or that he could be charged with murder in Iowa under the felony murder rule. He asserts that if he had received adequate advice on these matters, he would have accepted the plea offer made by federal authorities.
In the district court, Wedebrand claimed ineffective assistance by both his state-appointed and federal-appointed counsel on this issue.
Wedebrand was initially charged in Iowa district court with first-degree kidnapping and conspiracy to commit a forcible felony. Wedebrand also faced federal murder, kidnapping, and conspiracy charges. In July 1997 the United States Attorney sent a letter to Wedebrand's federal counsel indicating he was willing to offer a plea agreement to Wedebrand including the following conditions: Wedebrand would receive a sentence in the range of 360 months to life imprisonment; he would cooperate and testify truthfully; and he would agree to waive further juvenile proceedings and be prosecuted as an adult. If Wedebrand accepted, the state charges against him would be dismissed.
Wedebrand was born on July 14, 1980, and was sixteen years old at the time of the offense. He was charged as an adult in Iowa, pursuant to Iowa Code §§ 232.8(1)(c) and 803.6(1) (1997), which allow a child age sixteen or older, charged with a forcible felony, to be tried as an adult. Wedebrand was charged in federal court as a juvenile.
The United States Attorney's letter provided:
[S]hould the state pursue charges, your client would face mandatory life imprisonment upon conviction. Further, for the offenses of kidnapping and murder state law authorizes county attorneys to directly file against your client as an adult without need for any prior juvenile proceedings.
In a subsequent letter, the United States Attorney stated:
As we discussed, if this matter is referred back to the state authorities for prosecution, there will be no limitation upon the charges to be pursued by those authorities. In other words, it is my expectation that your client will face not only kidnapping charges but felony murder and other charges in the state proceeding. Of course, as we have previously discussed, the county attorneys can proceed directly against your client as an adult in state court.
The Iowa county attorneys involved in the matter also sent a letter stating that if the federal charges were dismissed, Wedebrand would be charged as an adult in Iowa. They also stated:
We are in agreement that each one of the juveniles deserves a life sentence because of their involvement in the shooting of Sky Erickson. Therefore, there will be no plea offers of less than one Class A felony, without possibility of parole.
Wedebrand received copies of these letters. He discussed the matter fully with his federal-appointed counsel before deciding to reject the federal plea offer. The federal charges against Wedebrand were thereafter dismissed. Iowa authorities then additionally charged Wedebrand with first-degree murder and criminal gang participation.
Wedebrand must show that he would have accepted the federal plea offer but for trial counsel's erroneous advice. See Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995). In analyzing whether a person would have accepted a plea offer, we apply a subjective analysis. Wanatee v. Ault, 259 F.3d 700, 704 (8th Cir. 2001). A claimant must show more than nonconclusory evidence that he would have agreed to the plea bargain if properly advised. Engelen, 68 F.3d at 241.
Wedebrand has failed to show he did not receive proper advice prior to rejecting the federal plea offer. The letters from federal and state prosecutors, outlined above, show Wedebrand was informed he could be charged as an adult in state court, that he could be facing a life sentence without parole, and that he could be charged with murder. Wedebrand received copies of all of these letters. In addition, his federal-appointed counsel testified he discussed these matters with Wedebrand. On appeal, Wedebrand focuses on whether he received advice from his state-appointed counsel, ignoring the fact he was fully advised from other sources. Wedebrand's state-appointed counsel testified his federal-appointed counsel was acting as lead counsel in the federal plea negotiations. Wedebrand's state-appointed counsel had several conversations with his federal-appointed counsel and was aware his federal-appointed counsel was advising Wedebrand in regard to the federal plea offer. We determine Wedebrand has failed to show he received ineffective assistance from his state-appointed counsel in regard to the plea offer made by the United States Attorney.
IV. Biased Jurors.
During jury selection, two jurors initially expressed some reservations about whether they could be impartial but, after further discussions, stated they would try to be fair and impartial, and they were selected to be on the jury. Wedebrand contends the jurors' expressed bias against him necessitated their disqualification and trial counsel breached an essential duty by failing to request their removal from the panel.
A juror may be removed from the jury panel if the juror has such a fixed opinion on the merits of the case that he or she cannot judge impartially the guilt or innocence of the defendant. State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa 1993). The voir dire transcript shows that initially two jurors expressed some reservations about their ability to be impartial in this case. The mere fact a prospective juror has a preconceived notion of guilt does not per se disqualify the juror if the record reflects the juror can lay aside that notion and render a verdict based on evidence presented in court. State v. Walters, 426 N.W.2d 136, 138 (Iowa 1988). The transcript shows that after further discussion, the jurors stated they could be fair and impartial. Wedebrand has failed to show ineffective assistance on this issue.
V. Motion for Judgment of Acquittal.
Wedebrand claims that because he was acquitted of the charge of conspiracy to commit a forcible felony (kidnapping), he was entitled to be acquitted on the charge of aiding and abetting first-degree kidnapping. He asserts conspiracy to commit kidnapping is a lesser-included offense of aiding and abetting kidnapping. He believes his trial counsel was ineffective for failing to file a motion for judgment of acquittal on this ground.
We first note conspiracy to commit a crime is not a lesser-included offense of the predicate crime. State v. Lies, 566 N.W.2d 507, 509 (Iowa 1997). Furthermore, a criminal defendant may not challenge a conviction on one count solely because it may be inconsistent with an acquittal by the jury on another count. State v. Hernandez, 538 N.W.2d 884, 889 (Iowa Ct.App. 1995). "Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." Id. (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358-59 (1932)). We conclude Wedebrand has failed to show he received ineffective assistance due to counsel's failure to file a motion for judgment of acquittal.
VI. Jury Instructions. A. Specific Intent.
Wedebrand asserts the trial court's jury instructions on murder and kidnapping improperly provided that the jury could find either that Wedebrand had a specific intent or that he had knowledge that others had such a specific intent. He asserts he should not be convicted unless the State proved he shared in the principal's criminal intent. He also claims he could not be convicted of aiding and abetting unless the instructions required a finding that he had the specific intent to aid and assist in the commission of these crimes. We disagree.
Wedebrand was charged with aiding and abetting in the crimes of murder and kidnapping. Aiding and abetting in a crime occurs when a person assents to or lends countenance and approval to another's criminal act either by active participation or by encouraging it in some manner prior to or at the time of its commission. Wedebrand, 602 N.W.2d at 189. When a defendant is accused of aiding and abetting in the commission of a crime in which intent is an element, there must be substantial evidence the defendant either participated with the intent himself or with knowledge the principal had the required intent. State v. Salkil, 441 N.W.2d 386, 387 (Iowa Ct.App. 1989). The jury instructions which were given were supported by the law in Iowa, and defense counsel had no obligation to object.
B. Malice Aforethought.
Wedebrand also claims the marshaling instruction for murder was improper because it provided that, "the Defendant or another with whom the Defendant was aiding and abetting acted with malice aforethought." Wedebrand contends the State should be required to prove he had malice aforethought, not merely that the principal had malice aforethought. A similar jury instruction was approved in State v. Tangie, 616 N.W.2d 564, 573 (Iowa 2000) ("The defendant acted with malice aforethought, or someone aided and abetted by the defendant acted with malice aforethought, with the knowledge of the defendant."). Defense counsel was not ineffective for failing to object to this instruction.
C. Coercion.
Wedebrand claims the jury instruction on aiding and abetting should have included language which stated that participation must have been voluntary and not the result of fraud, duress, or coercion. His defense was that he participated in the crimes due to his fear of reprisals by other gang members.
Here, the jury was give a separate instruction on compulsion. We consider all of the instructions together, not piecemeal or in artificial isolation. State v. Simpson, 528 N.W.2d 627, 632 (Iowa 1995). We conclude the instructions, taken as a whole, adequately explain the concept of coercion or compulsion. Trial counsel did not breach an essential duty by failing to object to the trial court's instructions on this issue.
VII. Evidence of Gang Participation.
Prior to trial the district court denied Wedebrand's motion in limine seeking to prohibit the State from presenting evidence he was a member of a gang. Wedebrand claims he received ineffective assistance of appellate counsel based on counsel's failure to appeal this ruling.
The State agreed to dismiss the charge of criminal gang participation with the understanding Wedebrand would not object to limited evidence he belonged to a gang. The defense entered into this agreement after the district court indicated it would allow some evidence of gang membership to be presented to the jury.
Wedebrand argues this evidence was more prejudicial than probative and should have been excluded. In determining whether this evidence is admissible, the district court must first decide whether the evidence is relevant. State v. Casteneda, 621 N.W.2d 435, 440 (Iowa 2001). If the evidence is relevant, the court must decide whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Id. A district court's decision will be reversed only if there is a clear abuse of discretion. Id.
The evidence of Wedebrand's gang membership was relevant to show motive and intent. See State v. Smith, 573 N.W.2d 14, 21 (Iowa 1997) (finding evidence of gang membership was admissible to show motive, intent, and lack of mistake). Evidence of gang membership and activity is considered inherently prejudicial. State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995). The evidence in the present case, however, was relevant and material to a legitimate issue other than a general propensity to commit wrongful acts. See State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001) (stating evidence is prima facie admissible if it is relevant to a legitimate issue in dispute). There was evidence Erickson owed money to another member of the gang and had an argument with other gang members the day before he was killed. The evidence of gang membership is relevant to show how Wedebrand became involved in the events which led to Erickson's death. We conclude the district court did not abuse its discretion in determining the evidence was admissible. Wedebrand has failed to show he received ineffective assistance due to appellate counsel's failure to raise this as an issue on appeal.
VIII. Cumulative Error.
Wedebrand asserts the cumulative effect of counsels' errors were so prejudicial he was denied a fair trial. We have rejected Wedebrand's claims of ineffective assistance of counsel and deny his claims of cumulative error. We also find Wedebrand has failed to show he was prejudiced by counsels' alleged errors.
We affirm the decision of the district court denying Wedebrand's request for postconviction relief.