Opinion
No. 1-952 / 01-0284
Filed September 11, 2002
Appeal from the Iowa District Court for Linn County, David S. Good, Judge.
Applicant appeals the dismissal of his application for postconviction relief. AFFIRMED.
Jon M. Kinnamon, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Bridget Chambers, Assistant Attorney General, Denver D. Dillard, County Attorney, and Todd D. Tripp, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Miller and Hecht, JJ. Zimmer, J., takes no part.
Brian Sillick appeals from the dismissal of his application for postconviction relief. He contends his trial counsel was ineffective in failing to object to a combined jury instruction involving his defenses of diminished responsibility and intoxication. He also argues his trial counsel was ineffective in failing to raise the following claims in the district court: (1) that the marshalling instruction on first-degree murder misdefined the essential elements of that offense, (2) a claim under the Equal Protection and Due Process Clauses, (3) that the jury was not given a separate verdict form on the issue of diminished responsibility, (4) that the first-degree murder marshalling instruction did not include as an element a requirement that the mental capacity of the defendant was not either diminished or influenced by intoxication, (5) that the trial information did not specify the alternative of first-degree murder upon which the State was relying, (6) that the prosecutor made an improper comment during closing argument, (7) that the State's expert witness testified improperly regarding the applicant's mental capacity, and (8) that the trial court's pretrial ruling in limine excluding expert testimony which would compare the applicant's case to other cases should have been reconsidered, and urges various grounds as sufficient cause or reason for not raising these claims on direct appeal.
Noticeably absent from Sillick's brief is any claim the trial court erred in ruling on his application for postconviction relief. We nevertheless choose to view his substantive claims of ineffective assistance as claims the trial court erred in ruling on the claims. Finding no merit to the substantive claims, upon our de novo review we affirm the trial court ruling denying postconviction relief.
I. BACKGROUND FACTS AND PROCEEDINGS.
Brian Sillick was charged with first-degree murder in violation of Iowa Code sections 707.1, 707.2, and 902.7 (1993) on June 13, 1994, for killing his girlfriend, Tammi Wilson. Sillick and Wilson argued. Sillick went to the bedroom of their home, got a shotgun, returned, and shot at Wilson four times, hitting her three times and killing her. Sillick had been using cocaine for several days, and also drank beer on the morning of the crime. Wilson had also been using alcohol and cocaine before her death. Sillick had not slept for four days. He claimed he heard voices and hallucinated. He was extremely paranoid and panicky.
Sillick had a history of physically abusing Wilson. Wilson's eight-year-old daughter, Lindsey, heard Sillick and her mother arguing just prior to the shooting. Sillick was angry. Lindsey saw Sillick get a gun and shoot Wilson. Sillick then left the home. Lindsey ran to a neighbor's house, where a call was made to law enforcement authorities.
Sillick drove himself to the Cedar Rapids police station and turned himself in minutes after killing Wilson. He told officers, "I just shot somebody. I want to give myself up." He stated the shooting was an accident. One of the officers observed Sillick was cooperative and showed no signs he was intoxicated. Other officers also observed no signs of intoxication.
Sillick raised the defenses of intoxication and diminished responsibility based on his use of cocaine. At trial, Sillick and the State presented contradictory evidence on whether Sillick was able to form the specific intent to kill Wilson. The jury found Sillick guilty of first-degree murder, and the district court sentenced him to life imprisonment. Sillick appealed, arguing in relevant part that his trial attorney was ineffective in failing to object to a combined diminished responsibility and intoxication instruction he contended was incomplete and misleading. This court affirmed his conviction and rejected his ineffective assistance claim. On further review, our supreme court affirmed his conviction, but preserved for a possible postconviction relief proceeding his claim that his trial counsel was ineffective in failing to object to the instruction that combined the concepts of intoxication and diminished responsibility.
Sillick filed an application for postconviction relief June 16, 1998, alleging that his trial counsel was ineffective in failing to object to the combined jury instruction. He also raised other grounds for relief. He proceeded to amend his application twice. Following hearing, the district court dismissed Sillick's application, concluding that trial and appellate counsel acted within the range of normal competency required of a defense attorney. Sillick filed an Iowa Rule of Civil Procedure 1.904(2) motion. The court denied it as to all grounds relevant to this appeal. Sillick appeals.
II. SCOPE OF REVIEW.
We typically review postconviction relief proceedings on error. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicant asserts claims of a constitutional nature, our review is de novo. Id. Thus, we review claims of ineffective assistance of counsel de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000).
III. PRESERVATION OF ERROR.
Sillick raised his claim involving the joint jury instruction on direct appeal, and thus has preserved error on that claim. However, he failed to raise any of his remaining claims on direct appeal. Generally, a claim not raised on direct appeal cannot be raised in a postconviction relief proceeding unless the applicant can demonstrate a sufficient cause or reason for not properly raising the issue previously. Iowa Code § 822.8; Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). The applicant must also prove he was actually prejudiced by the alleged error. Ledezma, 626 N.W.2d at 141; Berryhill, 603 N.W.2d at 245.
Sillick asserts three grounds as bases for the failure to raise on direct appeal the claims first presented in this proceeding. First, he argues that the claims concerning instructional error are so novel that failure to raise them is excusable. As an alternative basis, he argues the Iowa Criminal Jury Instructions constituted an "external impediment" to a fair trial, therefore providing sufficient cause or reason for not raising the instructional error claims. Third, as to all claims not preserved on direct appeal, he contends appellate counsel was constitutionally ineffective by failing to raise these claims on direct appeal. Our supreme court appears to have rejected the idea that the novelty of a claim may be considered to excuse the failure to raise a claim in a prior proceeding. See Waterbury v. State, 387 N.W.2d 309, 311 (Iowa 1986) (citing State v. Holbrook, 261 N.W.2d 480, 482-83 (Iowa 1978)). Further, we doubt that the Iowa Criminal Jury Instructions constitute an "objective factor external to the defense imped[ing] counsel's efforts" to object to allegedly erroneous jury instructions. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397, 408 (1986) (noting that "objective impediments" which might constitute "cause" for procedural default include matters such as the factual or legal basis for a claim not being available to counsel, or interference by officials). However, we need not address Sillick's first two grounds because addressing the third requires us to address the substance of his claims, which we find to be without merit.
Our supreme court has previously found ineffective assistance of appellate counsel to constitute a sufficient reason for failing to raise the issue of ineffective assistance of trial counsel on direct appeal. Ledezma, 626 N.W.2d at 141. We utilize the same two-part test to determine ineffective assistance of appellate counsel that we do to judge ineffective assistance of trial counsel. Id. "To prove appellate counsel's deficient performance resulted in prejudice, the applicant must show his ineffective assistance of trial counsel claim would have prevailed if it had been raised on direct appeal." Id. Therefore, before we can determine whether error has been preserved, we must first analyze the merits of Sillick's claims of ineffective assistance of trial counsel. Id. at 141-42. If we determine Sillick has not established a sufficient ineffective assistance claim against his trial counsel, we need not address the ineffective assistance of appellate counsel claim. Id. at 145.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL.
To establish an ineffective assistance of counsel claim, Sillick must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of ineffective assistance focuses on whether the performance by counsel was reasonably effective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma, 626 N.W.2d at 145; State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). An ineffective assistance claim may be disposed of if the defendant fails to prove either of the two prongs of such claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Therefore, we need not determine whether counsel's performance is deficient before undertaking the prejudice determination. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).
A. Combined Jury Instruction on Diminished Responsibility and Intoxication.
Sillick contends that his trial counsel was ineffective in failing to object to the joint jury instruction on diminished responsibility and intoxication and in failing to request a separate instruction on these defenses. He argues the instruction was erroneous for its failure to adequately explain both the defenses of diminished responsibility and intoxication.
The jury instruction given was as follows:
`Diminished responsibility' means a mental condition which does not allow the person to form a specific intent. Concerning element number 4 of Instruction No. 15 [first-degree murder], it means a mental condition which does not allow the person to form a premeditated, deliberate, specific intent to kill.
`Diminished responsibility' does not entirely relieve a person of the responsibility for his actions and is not the same as an insanity defense.
The defendant claims he was under the influence of drugs at the time of the alleged crime. The fact that a person is under the influence of drugs does not excuse nor aggravate his guilt.
Even if a person is under the influence of a drug, he is responsible for his act if he had sufficient mental capacity to form the specific intent necessary to the crime charged or had the specific intent before he fell under the influence of the drug and then committed the act. Intoxication is a defense only when it causes a mental disability which makes the person incapable of forming the specific intent.
Neither `diminished responsibility' nor `intoxication' can reduce Second Degree Murder to Manslaughter.
The defendant does not have to prove `diminished responsibility' or `intoxication;' rather, the burden is on the State to prove the defendant was able to, and did, form the specific intent required.
Sillick complains in part that the instruction given does not include the following portions of Iowa Criminal Jury Instruction 200.12:
You should determine from the evidence if the defendant was capable of premeditating, deliberation, and forming a specific intent to kill.
If you have a reasonable doubt the defendant was capable of acting deliberately, with premeditation, and the specific intent to kill, then the defendant cannot be guilty of First Degree Murder. You should then consider the lesser included charges.
Sillick introduced evidence at trial that he suffered from cocaine intoxication and cocaine-induced psychosis at the time he shot Wilson. We assume without deciding that he was entitled to instructions on both defenses. Sillick's trial counsel testified at the postconviction hearing that because of the specific nature of this case in which the intoxication aspect and the diminished responsibility aspect were so intermeshed, it would be more confusing to the jury to have two separate instructions. He thought the single instruction was easier for the jury to understand. As shown by defense counsel's testimony, it was a strategic decision to have one instruction cover both diminished responsibility and intoxication. Further, we evaluate instructions as a whole, not piecemeal or in artificial isolation. State v. Chambers, 529 N.W.2d 617, 620 (Iowa Ct. App. 1994). Viewing the instructions as a whole, we believe the concepts embodied in the two paragraphs of Iowa Criminal Jury Instruction 200.12 that were not included in the trial court's instruction are adequately explained in the trial court's Instructions 2, 4, 6, 7, and 15, Iowa Criminal Jury Instructions 100.2, 100.8, 100.10, 100.11, and 700.1 respectively. We find no breach of duty or prejudice in counsel not objecting to the two paragraphs not being included.
B. First-Degree Murder Marshalling Instruction.
Sillick contends the essential elements of first-degree murder were not defined as provided in State v. Hofer, 238 Iowa 820, 28 N.W.2d 475 (1947). He also argues his due process and equal process rights were violated because the definitions of premeditation, deliberation, willfulness, and "malice aforethought" were not the same in all cases and deviated from Hofer. He further asserts Instruction 15 (first-degree murder marshalling instruction) was inadequate because it failed to include an additional jury finding for each separate defense. He contends that instruction should have included as an added fifth element the following: "The mental capacity of the defendant was not either `diminished,' or influenced by `intoxication' as defined by Instruction No. ___ and Instruction No. __."
First, we address the issue involving the definitions. After reviewing the definitions, we find that although they do not quote Hofer vertabim, they are consistent with Hofer's definitions. Although the definition of "malice aforethought" is not complete in that the instruction informs the jury that it must exist before the act is committed but does not inform the jury it must also exist at the time of the act, the omission is not prejudicial because the marshalling instruction makes it clear it must also exist at the time of the act. State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993). Counsel had no duty to raise this meritless issue. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
Second, we address Sillick's equal protection and due process claims. Due process requires that jury instructions adequately instruct the jury on the elements of first-degree murder and the State's responsibility to prove them. See State v. McMullin, 421 N.W.2d 517, 519-20 (Iowa 1988). The inquiry is whether an allegedly ailing instruction so infected the entire trial that the result violates due process. Id. at 520. The Equal Protection Clause requires that all members of the same class be treated equally under like circumstances. State v. Haines, 360 N.W.2d 791, 795 (Iowa 1985). Equal protection is not denied because in practice some inequality exists. Id. We find no due process or equal protection violations. The definitions at issue were adequate and materially followed the decisions in Hofer and Lee. Sillick has not indicated that he was a member of a protected class or that he was treated differently than similarly-situated defendants.
Third, we address Sillick's contention that Instruction 15 was inadequate for failing to require the State to disprove his "defenses" as an added element, and find this contention meritless. The State is not required to disprove diminished responsibility or intoxication as an additional element in its proof. State v. Rinehart, 283 N.W.2d 319, 320 (Iowa 1979) (diminished responsibility); State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977) (intoxication). Furthermore, Instruction 20 (combined instruction) adequately informed the jury as to the defenses of diminished responsibility and intoxication. That instruction notified the jury that Sillick did not have the burden of proving the defenses, but instead the State had the burden of proving he was able to and did form the requisite specific intent. The instruction adequately defined the relationship between the defenses and specific intent.
Counsel had no duty to raise these meritless issues, and Sillick suffered no prejudice as a result of counsel not doing so.
C. Trial Information.
The trial information charged that on or about May 2, 1994, Sillick "commit[ed] murder in the first degree by shooting Tammi Wilson with a shotgun resulting in her death, in violation of sections 707.1, 707.2, 902.7, Iowa Criminal Code." Sillick points out that the trial information did not set out the essential elements of the crime and designate a specific subsection of section 707.2. He argues the elements of the marshalling instruction on first-degree murder were therefore at variance with the language of the trial information, and at variance with the language contained in the statement of issues in the instructions, which paraphrased the trial information. He argues trial counsel was ineffective for failing to object to the trial information on the grounds the omission of the essential elements of the crime and a specific subsection of the code constituted a jurisdictional defect leaving the trial court without subject matter jurisdiction and rendered the trial information insufficient.
We find the trial information complied with the content requirements of Iowa Rules of Criminal Procedure 2.4 and 2.5 and accompanying forms. It named the offense and identified by number the statutory provisions alleged to have been violated, and was thus sufficient to give the court and Sillick notice of the offense charged. No more is required. State v. McConnell, 178 N.W.2d 386, 388 (Iowa 1970); Iowa Rs. Crim. P. 4, 5.
We also note that Iowa courts consider not just the trial information but also the minutes of evidence when determining the adequacy of the allegations to apprise the accused of the crime charged. State v. Grice, 515 N.W.2d 20, 23 (Iowa 1994). Sillick makes no complaint that the trial information and minutes, when considered together, are inadequate to fully inform him of the crime with which he was charged and the particulars thereof.
Finally, we note Sillick's trial counsel testified that the minutes were sufficient to give defense counsel necessary information as to each element of the charge, the trial information could have been easily amended if objected to, and counsel saw no purpose to objecting to the trial information. Assuming, without so deciding, that the trial information was deficient in one or both of the respects alleged, no useful purpose would have been served by the suggested objection.
We conclude the trial information was not defective in such manner as to deprive the trial court of subject matter jurisdiction or otherwise render the trial information fatally deficient. No breach of duty by counsel or prejudice to Sillick has been shown.
D. Prosecutor's Closing Remarks.
Sillick asserts the prosecutor made "improper closing remarks." He claims "[t]rial counsel was ineffective by not objecting to comments that challenged the legal basis of the `defenses.'"
In responding to defense counsel's closing argument the prosecutor stated in relevant part,
Now Instruction No. 20 is the one that deals with this subject. It's a defense which a lot of people don't like. If they had their way, it wouldn't exist. People don't like other people getting away with activity, avoiding responsibility because of drug usage; but that is the law as expressed in Instruction 20, and you must follow your oath as a juror to apply that law, but don't become an advocate for the Defendant. Don't overdo it. Do what it says.
Defense counsel testified he believed the prosecutor's statement was made to point out to the jury that although people might not like the defense of diminished capacity or intoxication the jury would be well within its right to accept such a defense and return a verdict of murder in the second degree — "almost . . . an invitation to . . . come down . . . to murder two" — while suggesting the jury should not return a verdict to an offense lesser than second-degree murder. We find defense counsel's reading of the prosecutor's comment reasonable. We therefore also find his decision to not object to what in a different context might be seen as an objectionable comment to be reasonable trial strategy.
Sillick also argues the diminished responsibility and intoxication defenses, if accepted by the jury, could not allow the jury to return a verdict to a lesser crime than second-degree murder. He concludes that this "misunderstanding" of the law by defense counsel further demonstrates ineffectiveness. We find no merit to Sillick's argument. If the jury found Sillick not guilty of first-degree murder, whether because diminished responsibility or intoxication prevented him from having the specific intent to kill or for some other reason, the jury could nevertheless find him guilty of any submitted lesser included offense that did not require specific intent to kill.
We conclude no breach of duty has been proved.
E. State's Examination of its Expert Witness.
Sillick contends that trial counsel should have objected when the prosecutor asked and received an answer from a State's expert witness as to whether Sillick had the mental capacity "to form or have malice aforethought or malice toward another person." Sillick argues that his mental capacity for malice aforethought was not placed in issue by the defenses of diminished responsibility or intoxication, and counsel's failure to object blurred the distinction between the specific intent to kill and the general intent of malice aforethought.
For two reasons we find no ineffective assistance on this issue. First, assuming the question at issue was in fact asked and was answered in the affirmative, we note malice aforethought is an essential element of first-degree murder, Iowa Code §§ 707.1, 707.2, and the State must prove it beyond a reasonable doubt. State v. Wilkens, 346 N.W.2d 16, 20 (Iowa 1984). The State may present evidence tending to establish an element of a crime even if the defendant concedes the issue. State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981). The State was entitled to present evidence that Sillick did not lack the capacity to have malice aforethought. Furthermore, the jury instructions properly informed the jury of the differences between specific intent and malice aforethought. Second, the question was in fact not answered. The witness asked for clarification of the question and the prosecutor asked a different question. Sillick raises no claim or issue regarding that question or the answer given in response to it. He was not prejudiced by an answer that was in fact never given.
F. Verdict Form on Diminished Responsibility.
Sillick claims trial counsel was ineffective in failing to object to the omission of a verdict form by which the jury could find him not guilty by reason of diminished responsibility. Our rules of criminal procedure allow such a verdict. Iowa R. Crim. P. 2.22(1). They also provide that if the defense is diminished responsibility the jury must be instructed that if it acquits the defendant on that ground it shall so state in its verdict. Iowa R. Crim. P. 2.22(8)( a). Trial and appellate counsel were unaware of this requirement. The trial court's jury instructions and verdict forms did not comply with these rules.
It appears that trial counsel most likely breached an essential duty by not being aware of and timely objecting to the omission of an appropriate instruction and verdict form. Nevertheless, for several somewhat related reasons we find Sillick has failed to prove resulting prejudice and has thus failed to prove ineffective assistance.
The physical facts of the incident which gave rise to the charge against Sillick were undisputed. During an argument Sillick removed himself from Wilson's presence, secured a shotgun, returned, and killed Wilson by shooting her multiple times. There was, as understood and acknowledged by defense counsel, essentially no chance the defendant would be acquitted. The entire approach of the defense, one that appears eminently reasonable under the undisputed physical facts, was not to convince the jury that Sillick should be acquitted, but rather to convince the jury that by reason of intoxication or diminished responsibility he was not guilty of murder in the first degree but of some lesser included offense. The verdict form in question and the related instruction would be of significance only if there were a reasonable possibility of complete acquittal.
Further, the jury instructions and verdict forms that the trial court submitted were fully adequate to allow the jury to find Sillick not guilty of first-degree murder but guilty of a lesser included offense, or to find Sillick not guilty and acquit him, whether because of diminished responsibility or because the State otherwise did not prove its case. The verdict of murder in the first degree establishes beyond any reasonable doubt that the jury rejected Sillick's "defense" of diminished responsibility and found he had the requisite specific intent to kill.
Finally, the rule appears to require the verdict form and related instruction for the sole purpose of commitment for evaluation and subsequent proceedings in the event a complete acquittal is by reason of diminished responsibility. See Iowa R. Crim. P. 2.22(8)( b)-( e). Given that purpose, where, as here, the jury instructions and verdict forms are fully adequate for the jury to return a verdict of acquittal, whether by reason of diminished responsibility or because the State otherwise did not prove its case, it appears the absence of the instruction and verdict form cannot have caused prejudice to a defendant.
G. Ruling on Motion in Limine.
Sillick argues his trial counsel was ineffective in failing to attempt to reverse the trial court's pretrial ruling sustaining the State's motion in limine concerning one sentence of a State's expert witness's written report of an evaluation of Sillick. The sustained motion in limine excluded from the jury Dr. Frederickson's statement that, "I would note that most inmates who commit crimes like this are doing time for second-degree murder." Sillick argues trial counsel should have asked to be able to present this portion of the report, or to confront Dr. Frederickson with examples of patients he had used and compared to Sillick.
Trial counsel testified that he thought about revisiting the motion in limine ruling, but opted against it. He thought Dr. Frederickson's testimony may have helped Sillick, as Frederickson testified about one person that was acquitted of first-degree murder and another person that was convicted of second-degree murder. Furthermore, our supreme court in its decision on direct appeal found there was no abuse of discretion in the trial court's challenged ruling as any relevancy was outweighed by possible prejudice to the State, and that any ineffectiveness claim derived from the same contention was moot. See State v. Sillick, No. 95-578 (Iowa July 23, 1997). We conclude Sillick has shown neither a breach of duty nor resulting prejudice.
H. Ineffective Assistance of Appellate Counsel.
As noted previously, we have held that ineffective assistance of appellate counsel constitutes a sufficient reason for an applicant not raising an issue on direct appeal. Berryhill, 603 N.W.2d at 245. For Sillick to have preserved error on his ineffective assistance claims that were not raised on direct appeal, we must find his appellate counsel ineffective for failing to raise on direct appeal his claims of ineffectiveness of trial counsel. Because we find no merit in Sillick's claims that his trial counsel was ineffective, we conclude his appellate counsel was not ineffective in failing to raise these meritless claims. Thus, Sillick has failed to preserve error on his claims that he failed to raise on direct appeal.
V. CONCLUSION.
We conclude trial counsel was not ineffective in failing to object to the joint jury instruction, and because the claims he did not raise on direct appeal have no merit he failed to preserve error on those claims. We affirm the trial court's ruling.
AFFIRMED.