Opinion
No. 6-012 / 05-0331
Filed March 15, 2006
Appeal from the Iowa District Court for Lee (South) County, David Fahey, Judge.
Nicholas Andrew O'Shea appeals from the district court's order denying his application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Michael Short, County Attorney, and Bruce C. McDonald, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Nicholas Andrew O'Shea appeals from the district court's order denying his application for postconviction relief. Upon our de novo review, Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999), we affirm the district court.
O'Shea was convicted of second-degree murder for the stabbing death of Jan Boley. O'Shea and Boley had a long-standing history of conflict and animosity. Boley's animosity extended to O'Shea's girlfriend, Billie Jo Bouchard. On the morning of March 25, 1998, Boley confronted Bouchard outside of O'Shea's home. A verbal exchange quickly escalated into a physical altercation. Boley pushed Bouchard, pulled Bouchard's hair, and struck Bouchard with her hands. At some point, Bouchard's head struck a hard surface. O'Shea observed the altercation from inside his house. He went to the kitchen, picked up a knife, and went outside to the street. Once there, O'Shea stabbed Boley in the chest with a knife. Boley died as a result of her injuries.
This court affirmed O'Shea's conviction, but preserved his ineffective assistance of counsel claims for possible postconviction proceedings. O'Shea filed an application for postconviction relief in April 2004, raising five claims of ineffective assistance of counsel. Following hearing, the district court found all the claims were without merit and dismissed O'Shea's application. In relevant part, the district court concluded trial counsel was not ineffective for failing to either (1) raise a defense of resisting a forcible felony, as there was no evidence Boley was perpetrating a forcible felony, or (2) independently interview Boley's children Chad and Lindsey, who witnessed the assault, as "it is inconceivable that either [child] would have recanted [their statements to law enforcement] or otherwise contributed to the defense."
See State v. O'Shea, No. 98-2170, (Iowa Ct.App. Jan. 26, 2000) (remanding for proper application of new trial standard and preserving ineffective assistance claims); State v. O'Shea, 634 N.W.2d 150, 160 (Iowa Ct.App. 2001) (finding no abuse of discretion in district court's new trial ruling).
O'Shea appeals. He contends trial counsel was ineffective for failing to raise a defense of resisting a forcible felony, as there was evidence Boley's attack on Bouchard constituted either willful injury or an assault in violation of individual rights. He contends counsel was also ineffective for failing to independently interview Boley's children, because they could have offered testimony indicating the stabbing was unintentional and led counsel to additional witnesses.
The contentions that O'Shea was resisting a forcible felony of willful injury and that counsel should have interviewed the Boley children were raised before the postconviction court and renewed in O'Shea pro se appeal brief. The contention that O'Shea was resisting a forcible felony of assault against individual rights is raised for the first time on appeal by O'Shea's appellate counsel.
To establish ineffective assistance of trial counsel, the defendant must prove both that his attorney's performance fell below "an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). Accordingly, trial counsel will not be deemed ineffective for failing to urge a meritless issue, State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998), or to investigate a particular matter when to do so would be fruitless or unwarranted, Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). When we view O'Shea's ineffective assistance claims in light of the foregoing principles, we conclude neither claim has merit.
Resisting a Forcible Felony.
This defense provides: "A person who knows that a forcible felony is being perpetrated is justified in using, against the perpetrator, reasonable force to prevent the completion of that felony." Iowa Code § 704.7 (1997). Trial counsel testified at the postconviction hearing and stated that, while he made a decision to raise defense of another, based on his training and experience the record in this matter did not provide any basis for the defense of resisting a forcible felony. Counsel opined that the defense was not legally tenable, and was in fact "silly." We conclude counsel made a reasonable tactical decision in deciding to raise only a justification defense, and was not ineffective, as the record provides little if any basis for the defense of resisting a forcible felony. See State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999) ("Where counsel's decisions are made pursuant to a reasonable trial strategy, we will not find ineffective assistance of counsel.").
Willful injury and assault in violation of individual rights with the intent to inflict serious injury are both forcible felonies. See id. §§ 702.11(1) (forcible felony), 708.2C(2) (violation of individual rights), 708.4 (willful injury). However, the record contains little if any support for the proposition that Boley was engaged in either offense at the time she was stabbed by O'Shea.
Willful injury requires that a perpetrator "intended to cause and does cause serious injury to another." Id. § 708.4. Serious injury, in turn, is defined as "disabling . . . bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 702.18. Here, the record demonstrates that Boley was not armed with a weapon. She struck Bouchard with her hands, and possibly caused Bouchard's head to strike a vehicle or the ground. As a result of the altercation Bouchard, who had broken her collar bone sometime prior to the altercation, suffered the loss of some hair, knots on the back of her head, and pain in her collarbone area. Thus, the record demonstrates that Boley did not cause serious injury to Bouchard, and contains little if any evidence to prove Boley intended to cause such injury.
Nor is there any evidence to support the claim that Boley was engaged an assault in violation of individual rights. Such an assault is one that constitutes a hate crime. Id. § 708.2C. In relevant part, a person commits a hate crime by assaulting an individual "because of the person's . . . disability. . . ." Id. § 729A.2. The record contains no evidence Bouchard was suffering from a disability at the time of the altercation; we reject the notion that Bourchard was disabled simply because she had a broken collar bone. See id. § 216.2(5) (defining "disability," for purpose of civil rights act, as "the physical . . . condition of a person which constitutes a substantial disability"); 161 Iowa Admin. Code r. 8.26(1) (defining "substantially handicapped person" as "any person who has a physical . . . impairment which substantially limits one or more major life activities"). Moreover, even if Bouchard's broken collar bone could be construed as a disability, there is no evidence Boley's attack was motivated by Bouchard's physical condition. Rather, the record overwhelmingly indicates Boley was motivated by her deeply-rooted animosity towards O'Shea and Bouchard.
Finally, we note this defense is viable only when the person asserting it used reasonable force. Because O'Shea used deadly force, see id. § 704.2(2), the level of force he used was reasonable only if it was reasonable to believe that level of force was necessary "to avoid injury or risk to . . . the life or safety of" Bouchard, or "to resist a like force or threat." Id. § 704.1. As we stated in O'Shea's direct appeal, when considering his justification defense and his assertion that deadly force was reasonable under the circumstances:
Boley was not armed with a weapon and no person, including O'Shea, testified it even appeared that she held one. None of the disinterested witnesses described the confrontation between Boley and Bouchard as being of a life-threatening nature. . . . While it was necessary for O'Shea to physically confront Boley to end her attack on Bouchard, it was neither necessary nor reasonable to stab her in the chest with such force that the knife broke a rib and came close to exiting from Boley's back.
State v. O'Shea, 634 N.W.2d 150, 158 (Iowa Ct.App. 2001).
Under the circumstances of this case, we cannot conclude a reasonably competent attorney would have raised the defense of resisting a forcible felony, nor can we conclude failure to raise such a defense prejudiced O'Shea. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The district court did not err in rejecting this claim.
Failure to Interview Witnesses.
O'Shea contends trial counsel abdicated a duty to investigate by relying on the statements Boley's two children gave to law enforcement, rather than conducting independent interviews with the children. He asserts further interviews would have produced information tending to demonstrate the stabbing was unintentional, and would have helped locate two small children who were, according to Lindsey's statements, walking by when the stabbing occurred. However, the children's statements confirm that O'Shea stabbed Boley at least once, and indicate he did so after Boley had ceased her assault on Bouchard. Moreover, Lindsey indicated that she could not identify the children, other than the fact that she believed one was named Chris. Finally, trial counsel testified that, based upon his review of the statements, conversations with investigating officers at the scene, and personal knowledge of both children through the juvenile court system, he did not believe it would be beneficial to O'Shea's defense to conduct further interviews.
O'Shea has not demonstrated that independent interviews of the children would have assisted in his defense. Accordingly, we cannot conclude that failure to interview the children was a breach of an essential duty, or that O'Shea has shown a reasonable probability that, if the children had been interviewed, the result of the proceeding would have been different. See Atwood, 602 N.W.2d at 784. The district court did not err in dismissing this ineffective assistance claim.