Opinion
No. 4-464 / 03-1649.
Filed August 11, 2004
Appeal from the Iowa District Court for Linn County, Amanda Potterfield, Judge.
Mitchell Langel appeals the district court decision denying his request for postconviction relief. AFFIRMED.
John Bishop, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Harold Denton, County Attorney, and Todd Tripp, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Mitchell Langel appeals from the dismissal of his application for postconviction relief. He asserts his trial counsel was ineffective in (1) failing to require the trial court to engage in a colloquy to insure that the waiver of his right to a jury trial was knowing, intelligent, and voluntary; and (2) failing to argue that he acted in self-defense. We affirm.
I. Background Facts and Proceedings.
On November 19, 1998, Langel's mother called the Linn County Sheriff's Office and stated Langel intended to commit suicide and he had a shotgun. The sheriff's office was already aware of Langel because they intended to serve him with civil commitment papers that day. Members of the Cedar Rapids Police Department were called to assist the sheriff's office.
Langel refused to respond to officers or to come out of his apartment. Officers surrounded the apartment and tried to discuss matters with Langel. After several hours, in order to conduct surveillance, Police Captain Philip Peters crawled into Langel's apartment through the attic. Langel shot Peters, causing injuries, including the loss of vision in one eye.
Langel was charged with attempted murder, in violation of Iowa Code section 707.11 (1997), and willful injury, in violation of sections 708.4 and 902.7. Langel raised a defense of diminished responsibility. On the day of trial, upon the advice of counsel, Langel waived his right to a jury trial. The district court found Langel guilty of the crimes charged. He was sentenced to indeterminate terms of twenty-five years and ten years, to be served concurrently. Langel's convictions were upheld on appeal. State v. Langel, No. 99-1930 (Iowa Ct.App. Apr. 11, 2001).
Langel filed a petition seeking postconviction relief, claiming he received ineffective assistance of counsel due to counsel's failure to ensure that he made a knowing, intelligent, and voluntary waiver of his right to a jury trial. He also claimed counsel should have raised a defense of justification. The district court determined Langel had failed to show that his jury waiver was defective, or that trial counsel acted outside the range of competence. The court also found counsel's decision not to assert a weaker, alternative defense was a decision of trial strategy well within the range of competence. The court concluded Langel failed to show he received ineffective assistance of counsel. Langel appeals.
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, an applicant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant 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 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. Ineffective Assistance.
A.
Langel first claims his trial counsel should have required the trial court to engage in a colloquy with him to ensure that he made a knowing, intelligent, and voluntary waiver of his right to a jury trial. In State v. Liddell, 672 N.W.2d 805, 812 (Iowa 2003), the supreme court determined that an in-court colloquy will be required prior to a waiver of the right to a jury trial. This decision, however, was not made retroactive. Liddell, 672 N.W.2d at 814. Here, Langel waived his right to a jury trial in September 1999, long before Liddell was decided. Counsel should not be considered ineffective for failing to foresee a change in the law. Id.
We consider the performance of defense counsel under the law in effect at the time Langel waived his right to a jury trial. See State v. Miranda, 672 N.W.2d 753, 763 (Iowa 2003). Iowa Rule of Criminal Procedure 2.17(1) provides, "Cases required to be tried by jury shall be so tried unless the defendant voluntarily and intelligently waived a jury trial in writing. . . ." Previously, where there has been a written waiver of the right to a jury trial, the waiver has been upheld whether or not there was an in-court colloquy. State v. Buck, 510 N.W.2d 850, 854 (Iowa 1994).
In addressing this issue, the district court found:
Here, however, the waiver colloquy occurred with the Defendant under oath, on the record, and buttressed by a written, personally executed waiver. The fact that the colloquy was conducted by defense counsel rather than the Court is form over substance. Mr. Langel has a college education, had not received any medication since the evening before trial, and makes no claim that his thought processes were altered or confused.
Mr. Langel has failed to show that his jury waiver was defective, or that counsel acted outside the range of competence.
We concur in the district court's assessment. Langel has failed to show he received ineffective assistance of counsel in regard to the waiver of his right to a jury trial.
B.
Langel also claims his trial counsel should have raised a defense of justification or self-defense. Section 704.3 provides, "[a] person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force." Langel now claims he was justified in shooting at Peters because he believed an unknown assailant was in his apartment.
"Counsel's duty to investigate and prepare a defense is not limitless and does not require counsel to pursue each possible witness and delve into every line of inquiry." Van Hoff v. State, 447 N.W.2d 665, 670 (Iowa Ct.App. 1989) (citing Heaton v. State, 420 N.W.2d 429, 431 (Iowa 1988)). When counsel makes a reasonable tactical decision regarding which defense to present at trial, we will not engage in second-guessing on appeal. Id. (citing Fryer v. State, 325 N.W.2d 400, 413 (Iowa 1982)).
The district court determined:
Defense counsel testified in his deposition that it was possible to argue justification and diminished capacity in the alternative. However, the self-defense claim was not compelling, in counsel's opinion, because the officers, relatives and friends had been pleading with Mr. Langel for hours to put his gun down and come out of the apartment. Justification was not a strong claim, particularly in comparison to the diminished responsibility defense that had support even from State experts.
Counsel's decision not to assert a weaker, alternative defense was a decision of trial strategy well within the range of competence.
We agree with the district court's conclusion that defense counsel was not ineffective for raising only the stronger defense, diminished responsibility, and not arguing an alternative, weaker defense, justification. Langel was well aware that police officers had surrounded his apartment and wanted him to come out. It is disingenuous for him to claim that he acted in self-defense.
We affirm the decision of the district court finding Langel failed to prove ineffective assistance of counsel.