*1 may case This been difficult judicial fact
initial finder of to resolve. On however,
review, the evidence in the record plain duty
as a whole makes our to affirm.
DECISION OF COURT OF APPEALS
AND OF JUDGMENT DISTRICT COURT
AFFIRMED. Iowa, Appellee,
STATE KRAUS,
Joseph Appellant. B. KRAUS,
Joseph Appellant, B. Iowa, Appellee.
STATE
No. 84-1047.
Supreme Court of Iowa.
Dec. 1986. *2 conflicting
were versions of the altercation. According to grabbed defendant he a rifle only in the basement to scare his uncle who accidentally had followed there and it testimony The discharged. State’s indi- De- Harrington, Appellate L. Charles cated intended to vic- defendant shoot the fender, Ap- Asst. Raymond Rogers, E. tim. Defender, pellate appellant. for Defendant was arrested for second-de- Miller, Gen., Atty. Christie J. Thomas J. gree murder but the State to ac- offered Gen., Davis, Scase, E. Atty. Asst. William manslaughter. cept a Hoffman, Atty., Asst. Co. and James D. Co. there is Although some doubt about Atty., appellee. for matter we must assume attor- Kraus’ trial ney mistakenly told him the State would required prove specific order intent in second-degree convic- obtain a murder HARRIS, Justice. Testimony question on the tion. Contending he as- was denied effective postconviction hearing conflicting. was appeals sistance counsel the defendant Defendant’s trial counsel in con- testified following second-degree his conviction of accurately siderable detail that he advised (1983). 707.1, Iowa Code murder. 707.3 §§ charge, Kraus on elements of the appeals postcon- He also from a denial attorney Kraus testified whereas told grounds. relief on the same viction prove specif- him the would have to State case, is unusual in that the defendant re- kill ic intent to as an element of second-de- legal during plea inaccurate ceived advice gree murder. negotiations instead of at Defendant trial. record we coun- On this cannot concerning he relied on claims bad advice of the During sel’s version advice. cross- the elements of murder and postconviction examination Kraus’ coun- therefore declined offer to to a original sel the defense stated he conditionally lesser offense. We reverse tell did fact Kraus order doing court. the trial So we vacate a deci- murder, convict him of appeals. the court of sion specific have to State would he had a assignments error ad-
Because appeal On justifies intent to kill. the State quality legal representation dress a mis- testimony this cross-examination relating the facts to the criminal statement. On review it must be said in summary can stated form. Defend- testimony casts doubt on considerable sister, Carol, house ant’s moved into a the advice and lends Kraus’ credence to another woman named Defend- Marilyn. testimony.1 We take the as es- misadvice ant later moved into the house and Carol tablished. paying thereafter moved out rent without aptly explained I. Intent was in a court Marilyn. Marilyn and defendant told appeals’ dissenting opinion in this case: they keep Carol furniture Carol’s According law, to Iowa case is well it paid. rent until the “[fjirst degree established (and Carol obtained the assistance her distinguished from mur- degree
defendant’s) help George uncle Bain re- degree der in that an element of first Bain, wife, her specific kill, trieve furniture. murder is intent to while argument went to required degree Carol the house. An element is not in second Reese, ensued culminated in shoot- murder.” State v. 1977); Smith, killing (Iowa typical Bain. As is there complicated agreement purpose pleading guilty matter
1. The
was further
con-
colloquy
Judge
fusing
involuntary manslaughter.
colloquy
between
Mar-
will
Kraus and
That
garet
opinion.
appeared
Briles when he
in a later
be set out
division of this
(Iowa 1976);
judgment
N.W.2d
Rhoads,
State v.
calls.
Sallis
Leedom,
911, 916,
Iowa
N.W.2d
N.W.2d
(1966);
Miller,
prong
The second
(prejudice) re
(Iowa Ct.App.1984).
quires
showing
that the failure worked to
Second-degree
proof
require
murder does
the client’s actual and substantial disadvan
aforethought:
of malice
tage.
qualify
appear
To
it must
*3
aforethought
spe-
While malice
is the
failure amounted to “a denial of the ac
cific state of mind
to
necessary
convict
process
cused’s
right
due
to a fair
murder,
of
it is far different from the
miscarriage
justice,
fundamental
or an
specific
which
necessary
intent
is a
equivalent
deprivation.”
constitutional
degree.
element of
in the first
Miles,
231,
State v.
344 N.W.2d
234
may
express
It
or
from
implied
Supreme
The United States
Court
acts and conduct of defendant.
prejudice
way:
described
Gramenz,
134, 142,
v.
256
Iowa
The defendant must show that there is a
285,
(1964).
126 N.W.2d
Malice
probability
reasonable
but for coun-
aforethought
commonly
is
defined as:
unprofessional errors,
sel’s
the result of
purpose
A
or design
fixed
to do some
proceeding
would have been differ-
physical harm another
to
which exists
ent. A
probability
proba-
reasonable
is a
prior to the act committed. It need not
bility sufficient to undermine confidence
any particular
length
exist
time
in the outcome.
requires only
such deliberation as
668,
Strickland v. Washington, 466 U.S.
make
person appreciate
would
a
697,
2069,
2052,
674,
104 S.Ct.
80 L.Ed.2d
understand the nature of the act and
(1984).
consequences,
distinguished
its
as
pas-
from an act
done
the heat
Misadvice on a matter so
as
basic
sion.
charge quali
elements
the criminal
repre
fies
foregoing incompetent
under the
513,
Higginbotham,
State v.
351 N.W.2d
sentation standard.
(Iowa 1984)
See State v.
quoting
Schoeler
Sharpe,
man,
67,
(Iowa 1982)
220,
(Iowa 1981).
315 N.W.2d
71-72
304 N.W.2d
(“A normally competent attorney who un
rules for considering
Our
claims of
represent
dertakes to
a criminal defendant
ineffective assistance of
are
well
should either be familiar with the basic
a
understood. Because
fundamental con
provisions
code,
criminal
or should
right
stitutional
is at issue
make
we
an
make an
to
acquaint
effort
himself
independent
totality
evaluation
provisions
may
applicable
those
which
to
relevant circumstances. This amounts to a
allegedly
criminal acts
committed
State,
Taylor
de novo review.
v.
client.”).
plea bargain
The
stage is a
683,
(Iowa 1984).
To establish
point
proceeding,
critical
in a criminal
prove:
an ineffectiveness claim one must
which an accused’s sixth amendment
(1)
perform
counsel failed to
an essential
competent
counsel has attached. Meier
(2)
duty
prejudice
resulted. State v.
(Iowa 1983).
State,
337 N.W.2d
Hrbek,
(Iowa 1983).
336 N.W.2d
satisfy
A claimant must
this burden
previous
involving
In our
cases
at
preponderance of all the
Kellogg
evidence.
torney
during plea bargain nego
misadvice
(Iowa 1980).
State,
288 N.W.2d
plea,
guilty
tiations the misadvice led
(failure
prong
than,
here,
plea.
guilty
The first
of essential
rather
as
a not
duty)
showing
is not
And
satisfied
mere
we have found no cases from other
strategy
jurisdictions
anoth
involving
trial
backfired or that
misadvice which led
attorney
er
case
guilty plea.
have tried the
dif
to a not
There have been
ferently. Fryer
involving
analogous
several
situa
cases
(Iowa 1982).
ordinarily
413-15
attorney
We
refuse
tion where an
fails to tell his
second-guess
tactics, strategies,
prosecution
accused
has of-
trial
client
(1978)(because
fered to
a lesser offense.
of counsel’s inade-
greater
quate
client,
When a conviction of a
offense has
explanation
offer to
followed,
reversed,
similar claims
been made
conviction
case remanded for fur-
attorney’s
failure resulted in a lost
plea negotiations
trial).
ther
or new
chance
settle for a lesser sentence. Re
appellate response
No
misadvice
sults have been mixed. Johnson v. Duck
entirely satisfactory
these
is
circumstances
worth,
(7th Cir.1986)
793 F.2d
because the
is less
misadvice
harmful to
(though
plead guilty
decision to
is funda
accused who
stands
later
trial than to an
mentally
different
decision to
from
accused who
prompted
plead guilty.
is
guilty,
may
unilaterally
not
There is a vast difference between what
reject plea
choose to
without advis
happens to
pleads
a defendant when he
client);
Caruso v. Zelinsky,
U.S. ex rel.
guilty
opposed
to what occurs when a
(3d Cir.1982) (ineffec-
689 F.2d
443-44
plea agreement
rejected.
rejec-
tive assistance of counsel found where at
*4
plea
tion
agreement,
of a
in most instanc-
torney
plea
failed to communicate offer of
es, will
going
result in
defendant
bargain to client—case remanded for hear
trial with all of the concomitant constitu-
prejudice);
determine
Rasmussen v.
State,
safeguards
tional
472, 473-75, 658
part
par-
that are
280 Ark.
and
S.W.2d
867,
(1983) (notwithstanding
judicial process.
868
cel of
attorney’s
our
The defend-
plea offer,
pleads
hand,
failure
communicate
ant
guilty,
court
who
on the other
grounds
“no
found
on which to set aside
many
protections....
waives
of these
finding
guilt
or to order a new
Duckworth,
Johnson v.
failure to order a second trial communicate offer a fair one reversal); pretrial error, calls for if v. because tactical Commonwealth even 54, 60-61, Pa.Super. misguided. Napper, unwilling 385 A.2d We are to reverse merely his telling Kraus’ conviction because attor- Mr. me Hoffman county at- [the ney’s guilty plea. misadvice led to a not torney] saying if trial, he demands a he’ll charge. file another inquiry II. The does not however MR. I quote DOYLE: can Mr. Hoff- end there. In addition to misadvice man—and I think we call can confused, counsel this defendant was as we do, now—that that’s what he would Your confused, by are misadvice Honor. judge appeared when Kraus bargain. In Judge the first instance Well, THE COURT: I’m not sure that gave conflicting signals Briles on whether proper it’s ethical or lawful me to charge State could fact raise the take a under that kind of coercion murder. Worse than County from the Attorney. compounded judge defense counsel’s MR. Okay. got DOYLE: I think we’ve referring misadvice possibly got I’ve Joe [the defendant] —or murder as a “willful In killing.” accord enough now, confused so I think in his plan plea bargain ance with the to file a interests, best we probably should curtail second-degree murder charge had been proceedings now, maybe he I dropped and a man will go have to review it just to trial. slaughter been following had filed. The THE COURT: don’t know. I’m not colloquy occurred: trying to force anybody to I’m sim- THE Is COURT: there some reason ply saying got charge here, that I’ve if why trying we aren’t it? pleading he’s guilty to it because if he *5 MR. DOYLE trial coun- [defendant’s plead guilty they’ll doesn’t to it file a In my judgment, from the—all the sel]: charge him, against murder then I need minutes, talking in par- with some Is why you’re pleading know it. that present ties that least in my were —at guilty involuntary manslaughter, be- judgment charge initial was to be —the charge? cause it’s the least degree second murder. THE DEFENDANT: Yeah. THE COURT: Well THE COURT: One of reasons MR. DOYLE: —and you’re pleading guilty you’re is because —you THE I COURT: and don’t, you County afraid if that At- agree probably that fit. doesn’t torney degree will file a second Well, just saying, MR. DOYLE: I’m charge original complaint, like the is that that initially. was what we were told it? [*] Jfc [*] [*] [*] [*] THE DEFENDANT: I feel that’s pret- I ty THE much what you COURT: Do understand deserve.
punishment you- charge you slaughter; charged you [*] have your [*] with they isn’t now trial and lost? [*] going something can’t with to be [*] amend more. any [*] They that worse if man- [*] have and Honor. Doyle. I need to hear from THE MR. DOYLE: understand He can handle himself COURT: I All you. right. very That’s well, Your what Mr. Well, THE COURT: the law states ... up only THE COURT: That clears they suppose can’t I they amend it. thing worrying that Court in this charge— could it and file dismiss another think I case. I also this fits. do. But I you fully MR. DOYLE: I to be want you do make want to sure that —make discussing we aware what had been be- you you fight thing sure know can fore. court, I make open out in want to sure Well, guilty, any you plead you
THE can’t that have to COURT: there don’t however, trial; punishment, you your you worse if can do understand de- charge. you mand a trial on this Are that? head.)
(Defendant right, nods THE COURT: That’s that’s you. what I told I maybe MR. DOYLE: think now the more, enlightened us I Court has think THE I go DEFENDANT: If him, me, only fairness not but I’m they higher the charges could then? position in an now in awkward THE they COURT: Whether will file record, probably, I think we should one, another and case dismiss this I don’t interests, go trial. best Because I’m know, they but is what could do. you questions sure have a lot of can’t, They it, put one, as I amend this now, Judge spelled after doubts they would have to dismiss this case out, don’t you? start a new you case and with you Doyle, THE Mr. can do COURT: murder in the degree, second is— which do, you’re you whatever want to because a fifty year charge. it’s now I don’t Judge— provoked with the they know if could murder in the No, no— MR. DOYLE: degree or not. That’s a willful THE not COURT: I’m convinced that killing. you just your what said inis client's best THE DEFENDANT: I’d like to talk please you get interests. Would let me my lawyer about it with first. through plea? Judge encourage- Briles’ enthusiastic right. MR. DOYLE: All ment to guilty, coupled with the Now, Okay. THE COURT: let’s back advice, conflicting misleading unques- off a little technicality— bit. This isn’t a tionably precipitated the deci- defendant’s okay, know, you need know now how to spurn sion his counsel’s insistence that feel, you you if understand what I’m plea bargain accepted. should It saying, just soon, and I’d as counsel— apparent (as defendant’s blunder it through, if you when we’re don’t want be) proved arose, not from his miscom- your plead, plea, client to I won’t take a prehension of the elements of a criminal just I’d you’d stay but soon that out offense, but from the ill-advised tactical my of it and let me have conversation counseling given him Judge Briles. Un- client, your which is what the law *6 circumstances, der these notwithstanding requires. the fair trial that followed and notwith- Kraus, Mr. if I you understand what standing any the of by absence mistake the just me, you now told that the reason prosecution, we cannot leave the defendant plead guilty you want to to this is think remedy. without a just right, you it’s about and what de- serve; We remand the you is case to district and that about what told me? court again direct that the accused be allowed to THE I DEFENDANT: don’t feel I de- plea enter a to the included serve, offense you know— involuntary manslaughter under bar- THE you COURT: You don’t think gain formerly If guilty plea reached. a is it deserve at all? judgment pronounced entered shall ac- THE going to DEFENDANT: Not cordingly and defendant’s conviction of sec- prison years. for five ond-degree murder shall as reversed. stand Well, THE Okay. COURT: I didn’t If the defendant fails refuses to enter you say understand that. So would plea a such his conviction of you more, like to think this over some murder shall stand affirmed. go any before we further? You don’t now; have to do this do you want to ignored III. We have not defendant's think it over a little more? alternative claims that he was also denied Well,
THE way— DEFENDANT: effective assistance of counsel reason plead guilty now, if I to this a then number of failures and omissions he be- going get I’m years, Iway during five lieves occurred trial. To and detail understand. comment unduly on them would extend this challenges opinion. These fail The Rejected Bargain. I. Plea adequate Tay- counsel standard outlined in Defendant has not demonstrated he lor pleaded guilty would to the manslaughter if his counsel OF OF DECISION COURT APPEALS colloquy and the court its with defendant VACATED; JUDGMENT OF DISTRICT had more clearly explained the elements of COURT REVERSED ON CONDITION second-degree murder. Several factors AND CASE REMANDED. lead me to that conclusion. Defendant’s vigorously that recommended he WOLLE, except
All Justices concur
plead guilty to involuntary manslaughter,
McGIVERIN, SCHULTZ,
NEUMAN,
and
and defendant’s
acceptance
initial
of that
JJ., who dissent.
brought
advice
the hearing
about
before
Judge Briles
subsequent
colloquy.
WOLLE,
(dissenting).
Justice
correctly pointed out,
The court
and de-
his
Defendant contends
conviction was
fendant
colloquy,
understood from the
that
tainted
ineffectiveness
counsel which
guilty plea
put
would
at
risk
separate stages
occurred
three
years
prison.
sentence of five
To me it
proceeding: during
bargain-
criminal
plain
is
defendant decided not to
during presentation
ing;
of opening state-
guilty to involuntary manslaughter for the
jury;
ments and evidence
and near
he
reason
told the court: “I don’t feel I
jury
the close
trial
in-
when
was
going
prison
years.”
deserve ...
for five
on the
charged
structed
elements of the
rejected
Defendant
at that
offense
lesser included offenses.
I
point not because he misunderstood the
agree
the majority
technical
elements of
mur-
relief
judgment
entitled to
from the
con-
der
unwilling
but because he was
viction because he has established
was
he
likely prison
sentence.
prejudiced
per-
his counsel’s failure to
noteworthy
It is also
that after that col-
duty.
my
form an essential
From
review
loquy
prosecution
open
left
until
record, however, I
of this
conclude
proposed
commencement of trial the same
only prejudicial error resulted from coun-
plea bargain,
during
intervening
object
clearly
sel’s failure to
erroneous
months
four
defendant’s counsel continued
jury instructions.
reverse
re-
its
urge
acceptance. Again
I conclude
mand for
new trial.
sentence,
year
the likelihood of a five
To
relief on a sixth
obtain
amendment
ineffectiveness,
counsel’s
caused defendant
claim that counsel
ineffective a
defend-
ground.
to stand
This record does not
prove by preponderance
ant must
*7
support defendant’s contention that he
perform
that
to
evidence
counsel failed
an
plea
have accepted
would
the
if he had
duty
essential
the failure
that
caused
clearly
understood more
the elements of
such
of
prejudice
to constitute “a denial
second-degree murder.
right
the
process
accused’s due
to a fair
disagree
remedy
I also
the
selected
trial,
miscarriage
fundamental
justice,
of
disposition
majority,
allows
which
equivalent
or an
depriva-
constitutional
accept
plea
on
to
231,
defendant
remand
Miles,
tion.”
v.
344 N.W.2d
234
1984);
bargain formerly offered and directs the
(Iowa
see Strickland
v. Wash-
.695,
plea.
district court to
such a
This
668,
2052,
ington, 466 U.S.
104 S.Ct.
deprives the
ordi-
2069,
674,
(1984) (accused
disposition
State of its
L.Ed.2d
698
also in-
nary prosecutorial discretion and
unprofessional
must show that counsel’s
result).
vades
usual discretion of the trial court
errors caused a different
re-We
any plea
whether
view such constitutional
issues de novo.
determine
683,
(Iowa
Taylor
accepted
v.
352 N.W.2d
should
circumstanc-
existing
es
at the time a defendant offers
Mabry
Johnson,
guilty.
In
on
instructions
the elements of second-de-
504,
2543,
U.S.
104 S.Ct.
III. Jury Erroneous Instructions. five-paragraph liberate” in the instruction repeated I do find merit in on malice were or defendant’s nowhere direct- contention that he prejudiced ly marshalling referenced in when his counsel instruction object failed to jury setting to the trial court’s forth the elements jury murder. jury could well have been correctly had been instructed on the believing misled instruction into elements of the charged and included of- murder could com- fenses it have returned a verdict of accidental, unlawful, mitted though guilty on the lesser included offense of shooting firing of the victim. The of a involuntary manslaughter, charged not the weapon under circumstances which consti- offense of second-degree murder. tuted an involuntary assault or even man- I would vacate the decision of the court slaughter would be unlawful but not neces- appeals, reverse defendant’s conviction sarily second-degree impor- murder. The degree, and re- question tant jury for the to answer was mand this case for a new trial. whether shooting was or was not in- object tentional. The failure to to the in- McGIVERIN, SCHULTZ and setting struction forth the elements of sec- NEUMAN, JJ., join this dissent. ond-degree prejudicial murder constituted ineffective assistance of counsel.
Even more crucial theory to defendant’s shooting was accidental were the governing involuntary
instructions man
slaughter. The definition
manslaughter applicable to the facts in this
case was set forth Iowa Code section 707.5(1) (1983). Ware, See State v. Iowa, Appellee, STATE of Ing (Iowa 1983); N.W.2d er, 122-24 required The State was beyond Stanley THOMPSON, Appellant. Dale (1) reasonable doubt that the defendant No. 85-1199. (2) unintentionally, (3) recklessly, and with (4) justification, out caused the death of Supreme Court of Iowa. (5) person, another by the commission Dec. 1986. public offense other than a felony forceable Dunahoo, escape. See The New Iowa II, Criminal Code: Part 29 Drake L.Rev. (1980); Conner, (Iowa 1980) (recklessness necessary element of both definitions of
involuntary manslaughter). The trial marshalling
court’s instruction on involun however,
tary manslaughter, omitted the only vaguely
second element and referred
to the first and fifth elements. The in impli
structions did not make clear that the public
cated offense was very assault. The theory
essence of counsel’s of defense was tragic accidental nature of this homi
cide. The instructions jury to the missed point.
that central grant
I would defendant a new trial be- (1)
cause defendant’s trial counsel should court, jury,
have assisted the and his by providing
client accurate instructions fo- defense, (2) on theory
cused of the *9 probability
there is a if reasonable