Summary
finding there was insufficient evidence to support a conviction for intimidation with a dangerous weapon in regard to a neighbor who, "during the actual incident . . . had no idea a gun was being fired or that he was potentially in danger," and concluding the neighbor's delayed fear "the next day, when he discovered what had occurred," did not satisfy the element
Summary of this case from State v. KirganOpinion
No. 3-866 / 03-0511.
Filed January 14, 2004.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Robert Rivas appeals following his convictions for assault with intent to commit serious injury, attempted murder, intimidation with a dangerous weapon with intent, two counts of intimidation without intent, and going armed with intent. AFFIRMED IN PART, REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John Sarcone, County Attorney, and James Ward, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Robert Rivas appeals from the judgment and sentence entered upon his convictions for intimidation with a dangerous weapon. We affirm in part and reverse in part.
I. Background Facts and Proceedings.
In the early morning hours of July 22, 2002, Des Moines police officers were alerted to a potentially suicidal individual at 705 Winegardner Street. Upon responding, officers observed Rivas standing on the back deck. When Rivas saw that officers had spotted him, he turned and ran into the house and locked the doors. When Officer Brian Mathis approached the house and looked through the door, he witnessed Rivas reach for a shotgun. Mathis yelled "Gun," and the officers ran for cover. Officers Mathis, Harris, and Mitchell then heard a shotgun blast and glass breaking. The blast had broken the sliding glass door, behind which Officer Mathis had just been standing.
Officer Mitchell attempted to reach Officer Harris, who was on the other side of the house, but was turned back after more shots were fired in his direction. Officer Mitchell felt one shot was so close, he could feel it go by his hair. Officer Mathis testified he heard more than twenty-five shots come from the house in the first forty-five minutes of the ordeal. The shots destroyed much of the interior of the 704 Winegardner home. Some of the ammunition fired by Rivas struck neighboring homes. One neighboring family, the Croushores, was evacuated from their home by police. Another neighbor, Dallas Bagley, was awakened, but only became aware of the true nature of the incident the following day. The matter was finally resolved after an eight-hour standoff when Rivas surrendered to police. Officers theorized Rivas was attempting "suicide by cop," where he would bait officers into shooting him, rather than shooting himself.
Based on this incident, the State charged Rivas with a variety of crimes. Following a jury trial, Rivas was found guilty of assault with intent to inflict serious injury, see Iowa Code §§ 708.1, 708.2(1) (2001), attempted murder, see Iowa Code § 707.11, intimidation with intent, see Iowa Code § 708.6(1), two counts of intimidation without intent, see Iowa Code § 708.6(2), and going armed with intent, see Iowa Code § 708.8. Rivas appeals, asserting various instances of ineffective assistance of trial counsel.
II. Ineffective Assistance General Principles.
To prevail in his claims that he has been denied effective assistance of counsel, Rivas must show that his counsel failed to perform an essential duty and that the failure prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). He must prove both elements by a preponderance of the evidence. Ledezma, 626 N.W.2d at 142. However, both elements do not always need to be addressed. If the claim lacks prejudice, it can be decided on that ground alone without deciding whether the attorney performed deficiently. Id. The court will generally presume counsel is competent, and we will not second guess a reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).
Our review of constitutional rights is de novo. State v. Haviland, 532 N.W.2d 767, 768 (Iowa 1995). We must look at the totality of the circumstances as shown by the entire record. State v. Cook, 530 N.W.2d 728, 731 (Iowa 1995). Appellate review is not precluded if failure to preserve error results from a denial of effective assistance of counsel. State v. Clark, 351 N.W.2d 532, 535 (Iowa 1985). Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). "Rather, we preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Id. III. Instruction on Intimidation With a Dangerous Weapon.
Rivas first contends his trial counsel was ineffective for failing to object to the court's erroneous instruction on the offenses of intimidation with a dangerous weapon. We find the record adequate to address this issue on direct appeal.
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, 857 (Iowa 1995). The court may phrase the instructions "in its own words as long as the instructions given fully and fairly advise the jury of the issues they are to decide and the law which is applicable." State v. Rupp, 282 N.W.2d 125, 126 (Iowa 1979).
According to Iowa Code section 708.6, a person is guilty of intimidation with a dangerous weapon when the person, with the intent to injure or provoke fear, shoots into an assembly of people and thereby places the people in "reasonable apprehension of serious injury." Iowa Code § 708.6. The court in this case, however, instructed the jury it must determine the people "actually experienced fear which was reasonable under the existing circumstances." Rivas maintains this instruction misstated the applicable law by omitting the essential element that the victim must be placed in "reasonable apprehension of serious injury." Iowa Code § 708.6(1) (emphasis added). The State concedes the instructions lack a necessary element and that counsel, thus, breached a duty. However, it maintains Rivas cannot establish the necessary prejudice to prevail on this issue. See Foster v. State, 378 N.W.2d 713, 721 (Iowa Ct. App. 1985) (requiring defendant to prove prejudice due to erroneous jury instruction).
To establish prejudice, Rivas must show there is a reasonable probability that but for counsel's unprofessional error, the result of the proceeding would have been different. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). A reasonable probability is a probability sufficient to undermine confidence in the outcome of defendant's trial. Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). Our ultimate concern is with the fundamental fairness of the proceeding whose result is being challenged. Id.
The three counts of intimidation with a dangerous weapon corresponded to actions against (1) the Des Moines police officers, (2) neighbors Bob and Kim Croushore, and (3) neighbor Dallas Bagley. We proceed to address each.
A. Police Officers and the Croushores.
We first address the court's instructions relevant to the officers and the Croushores. Officers Harris, Mathis, and Mitchell were first to arrive on the scene. When they saw the gun in Rivas's hands, they scrambled for cover, only to hear two shotgun blasts breaking glass. Mathis described the first shot as going where he had previously been standing. Officer Mitchell felt the shot "literally go through my hair." He believed the officers were in "imminent danger." Officer Harris felt the concussion from one shot, and heard the pellets hitting the trees and leaves in the area. Eventually, Rivas took twenty-eight shots while the officers were surrounding the house.
The Croushores, who live in the home next to 704 Winegardner, were in bed when Bob Croushore was awakened by the gunfire, which he believed to be thunder. After another neighbor called to inquire about his outdoor motion detector light, Bob saw flashes of light, apparently coming from the gunfire, and saw a number of police officers outside his house. The officers evacuated Bob and Kim to a neighbor's house for their safety. When asked how the incident made him feel, Bob responded "[a]nxious, angry, violated" and "scared." When asked about his wife's demeanor and emotions, Bob noted that "[s]he's still to this day petrified, terrorized of rainstorms." He also stated that she was afraid that night because of what was happening.
As regards the counts relevant to the officers and the Croushores, we conclude Rivas has not established counsel's failure to request the alternate jury instruction prejudiced him. We find no likelihood the result of the proceeding would have been different had the phrase "reasonable apprehension of serious injury" been added to the instruction. Based on the facts of the incident itself and the testimony of officers and Bob Croushoure at trial, we find the evidence is overwhelming that the officers' and the Croushores' fears would be that of sustaining a serious injury. Our confidence in the jury's verdicts on these two counts is not undermined. We therefore affirm on these two counts.
B. Dallas Bagley.
Our analysis differs with regard to the intimidation with a weapon count based on Dallas Bagley. Bagley, also a neighbor, testified that he awoke during the night and thought he had heard fireworks. He got out of bed and saw police officers around and near his house. However, he did not realize what was occurring until some time the next morning when he learned of the incident on the news. Around 5:00 p.m. the next day Bagley discovered a hole in a bedroom closet presumably caused by a slug fired by Rivas. When asked how he felt upon realizing what happened, Bagley responded it made him feel angry and fearful for his wife's safety.
We note that, in addition to claiming ineffective assistance with regard to the jury instruction on this count, Rivas also maintains counsel was ineffective in failing to object to the sufficiency of the evidence. We consider these two claims together in this division.
Thus, the evidence is clear that during the actual incident Bagley had no idea a gun was being fired or that he was potentially in danger. There is no evidence that during the evening in question he was in fear of serious injury. Not until the next day, when he discovered what had occurred, did he realize any fear. In other words, he experienced fear at a time remote from the shooting and not at a time at which he could reasonably have expected to be at risk of serious injury. In State v. White, 319 N.W.2d 213, 215 (Iowa 1982) our supreme court affirmed that the states of mind of both the actor and the victim are elements of terrorism, the predecessor to intimidation with a dangerous weapon with intent. Here, as noted, the only evidence in the record is that Bagley was not in fear of serious injury on the night of the incident. Without this essential fact in evidence, we cannot envision any reasonable trial strategy in which counsel would fail to either object to the incomplete instruction or move for a directed verdict and judgment of acquittal based on the sufficiency of the evidence. Had a motion based on the sufficiency of the evidence been made, it would have been granted. Counsel thus breached an essential duty and prejudice resulted. We therefore reverse Rivas's conviction on Count IV, intimidation with a dangerous weapon as it regards Dallas Bagley.
IV. Lesser Included Offense.
Rivas alleges counsel was ineffective in failing to request an instruction on assault while displaying a dangerous weapon as a lesser included offense of intimidation with a dangerous weapon with intent. To establish assault while displaying a dangerous weapon, the State must prove the defendant intentionally pointed or displayed a firearm in a threatening manner toward another. Iowa Code § 708.1(3). Rivas maintains intimidation with intent encompasses all the elements of assault while displaying a dangerous weapon. In particular, he urges it would be impossible to discharge a weapon into an assembly of people with the intent to provoke fear (intimidation with a weapon) without also pointing it at or displaying in a threatening manner to the victims (assault while displaying a dangerous weapon).
At trial, it is apparent Rivas pursued a strategy that sought to establish his actions on the night in question were based on his desire to commit "suicide by cop." His counsel questioned Officer Mitchell about the "phenomenon," and the officer described it as a situation in which a suicidal individual acts in such a manner that would force police officers to use deadly force. Rivas himself testified extensively about his depression and suicidal thoughts and plans.
Rivas's claim on appeal, that counsel should have pursued a theory he was only guilty of simple assault, is inconsistent with the strategy actually pursued at trial, i.e. that he was not guilty of the crimes charged because he was only trying to harm himself. We conclude this is a reasonable trial strategy aimed at defending on the intent element. "Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not necessarily amount to ineffective assistance of counsel." State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). We generally presume counsel is competent, and we will not second-guess a reasonable trial strategy. State v. Martin, 587 N.W.2d 606, 610 (Iowa Ct. App. 1998). Therefore, without necessarily concluding assault while displaying a dangerous weapon is a lesser included offense of intimidation with a dangerous weapon with intent, we hold counsel was not ineffective in failing to request an instruction on assault while displaying a dangerous weapon.