State Of Iowa Vs. June Betty Lyman ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 07–1999
Filed January 8, 2010
STATE OF IOWA,
Appellee,
vs.
JUNE BETTY LYMAN,
Appellant.
Appeal from the Iowa District Court for Woodbury County,
Duane E. Hoffmeyer, Judge.
The defendant appeals her conviction for second-degree murder.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, Patrick Jennings, County Attorney, and Terry C.
Ganzel, Assistant County Attorney, for appellee.
2
WIGGINS, Justice.
The defendant appeals from her conviction for second-degree
murder alleging that the district court erred in holding she was
competent to stand trial and by failing to instruct the jury that murder in
the second degree is a specific intent crime. She also claims her trial
counsel provided ineffective assistance of counsel by failing to redact
and/or object to the introduction of evidence depicting the defendant’s
repeated invocations of her right to remain silent as well as failing to
object to prosecution references to these statements during closing
arguments. In this appeal, we find the district court correctly
determined the defendant was competent to stand trial and that she was
not entitled to a specific intent instruction. We also find the record
inadequate to decide her ineffective-assistance-of-counsel claim.
Accordingly, we affirm her conviction.
I. Background Facts and Proceedings.
June Lyman dropped out of high school and married Bob Auen
when she was fifteen years old. She had three daughters and one son
during the course of the marriage. A court dissolved her marriage after
seven or eight years. In 1967 June married Leo Lyman, Sr. Their
relationship was rocky. During the marriage, Leo allegedly sexually
assaulted June’s three daughters from her first marriage. In May 1970
Leo was charged with three counts of lascivious acts with a child but the
case was later dismissed for lack of prosecution. The couple divorced in
July 1979 but later remarried in November. The couple divorced for a
second time in 1998; however, they remarried a third time sometime
before 2006. In 2004, Sandra, one of June’s three daughters, committed
suicide causing June to experience increased depression and anxiety.
3
At approximately 8:14 p.m. on May 15, 2006, June called her
daughter-in-law and asked to speak to her son. He was not home, so
she hung up. Seven minutes later, an anonymous female called 911,
gave an address, requested police assistance, and reported a dead body
in the residence. The phone used to make the call was listed under
June’s name and the address provided was her residence. At 8:31 p.m.,
June called her daughter-in-law and again asked to speak to her son. At
8:33 p.m., June called her daughter-in-law for a third time, again asked
to speak to her son, and then stated, “oh, God, I just shot Dad” and hung
up.
Deputy Todd Peterson arrived at June’s residence around the time
June made the last call to her daughter-in-law. Upon entering the
residence, he noticed Leo lying on the floor on his right side, facing the
door, with blood coming from his mouth. He also saw a revolver lying on
the floor directly behind Leo. The police later identified the revolver as
the murder weapon. While Peterson was checking Leo’s vitals, June
entered the room, stood over Leo, and told Peterson that he deserved
what he got, he was a child molester, and she hoped he was dead. June
further stated that he should have been dead a long time ago, she had
shot him, and her fingerprints were all over the gun.
A volunteer EMT, who was on the scene to administer first aid,
confirmed Leo was dead. He had been shot four times, with the lethal
shot striking him in the left lower chest. While working on Leo, the EMT
heard June say, “yes, I did it. I shot him.” At the scene, Peterson
observed that June spoke coherently, appeared to understand what was
going on, and at one point even asked to make a phone call so that
someone could take care of her dog. Peterson smelled alcohol in the
residence and on June’s breath. He noticed there were numerous beer
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cans in the kitchen. He also thought June’s words were not slurred, but
her balance was a little unsteady. June admitted to him that she was
intoxicated.
Peterson read June the Miranda warning at approximately
8:37 p.m. Peterson observed that June appeared to understand her
rights when he read them to her. A short time thereafter, she requested
an attorney. Peterson allowed June to call her daughter-in-law before
transporting her to the law enforcement center. During the transport,
June voluntarily made numerous incriminating statements that were
recorded by the patrol car’s video recording system, such as, “I shot the
motherfucker,” “I’ve already admitted to you I killed him,” and “I shot the
fucker. Hey, and I can’t deny it. My fingerprints are on the gun.”
During the transport, June also repeatedly referenced her right to an
attorney and her right to remain silent.
Upon arriving at the law enforcement center, Deputy Todd Wieck
walked June to an office. June appeared to act normal, seemed to know
what was going on, did not slur her words, and did not appear
intoxicated. Wieck placed June in an office furnished with videotape
equipment. Another deputy informed her that she was being recorded
and reread the Miranda warning. After hearing the Miranda warning for
a second time, June again stated, “I want an attorney.” Due to her
request, the officers did not question her. However, rather than
remaining silent, June continued to voluntarily make incriminating
statements such as, “I shot the gun,” “I never thought it was that easy to
die or I would have done it a long time ago,” and “[w]ell, it’s not self-
defense actually. I wasn’t threatened, but I had a reasonable reason.” At
the same time, June continued to request an attorney and state that she
probably should not be saying anything.
5
While at the law enforcement center, investigators performed a
blood-alcohol-content test on June. A deputy administered a breath test
at approximately 12:32 a.m. to determine June’s blood-alcohol content.
June admitted to drinking ten beers and stated she felt buzzed at the
time the test was administered. The test’s final reading confirmed that
June’s blood-alcohol content was 0.133. Using a standard absorption
rate, June’s blood-alcohol content was approximately 0.213 at the time
she called 911. Moreover, June also had prescriptions for the drugs
Lipitor, Wellbutrin XL, Alprazolam, Naproxen, Daltiazem, Premarin, and
Triamterene at the time of the shooting.
The State charged June with murder in the first degree. June filed
a motion requesting the district court determine whether she was
competent to stand trial. She claimed an inability to remember and
recall facts surrounding the shooting, making her unable to assist her
attorneys in preparing her defense and rendering her incompetent
pursuant to Iowa Code section 812.3 (2005). 1
After hearing testimony from experts on both sides, the district
court concluded June had failed to carry her burden of proof to show her
incompetence. Therefore, the presumption of June’s competency
prevailed. Accordingly, the court denied the motion and set the matter
for trial.
June then filed a motion for the adjudication of a law point,
seeking a determination from the court regarding whether second-degree
murder, under Iowa Code section 707.3, is a specific intent crime. The
district court stated its preliminary observation and research indicated
second-degree murder was not a specific intent crime. However, the
1All references to the Iowa Code are to the 2005 Code unless otherwise noted.
6
court deferred action on the motion to the time and place June made her
record on the jury instructions.
At trial, the State played the full video recordings of June’s
transport to the law enforcement center as well as her later detention in
an office located within the center. At no point during the presentation
of this evidence did her attorneys object or ask to redact any portion of
the videos.
At the conclusion of the evidence, June renewed her argument that
because assault, a specific intent crime, is a lesser-included offense of
second-degree murder, the specific intent required for an assault must
be proven to establish second-degree murder. Therefore, June argued
that to establish second-degree murder the State was required to prove
beyond a reasonable doubt that she had the specific intent to commit an
assault even though the State need not establish a specific intent to kill.
The district court denied June’s motion and found that second-degree
murder is a general intent crime.
During the State’s closing argument, the prosecuting attorney
referred three times to June’s invocation of her right to remain silent by
requesting an attorney. June’s counsel did not object to these
references. The jury returned a unanimous verdict finding June guilty of
the lesser-included offense of murder in the second degree. June
appeals.
II. Issues.
In this appeal, June raises three issues. First, we must determine
whether the district court’s determination that June was competent to
stand trial was correct. Next, we must decide whether the district court
properly instructed the jury with regard to the elements of murder in the
second degree. Finally, we must consider whether June’s trial counsel
7
was ineffective for failing to redact and/or object to the introduction of
the video evidence depicting June’s repeated invocations of her right to
remain silent by requesting an attorney and for failing to object to
references concerning these invocations made in the prosecutor’s closing
argument.
III. Competence to Stand Trial.
A. Standard of Review. June claims the standard of review is de
novo. The State claims the standard of review is for correction of errors
at law and that we are bound by the district court’s finding of
competency, if it is supported by substantial evidence. June and the
State cite Iowa authority for their respective positions. Accordingly, to
determine the proper standard of review, it is necessary to review the
applicable cases and statutes pertaining to competency.
The trial of an incompetent defendant in a criminal matter violates
the defendant’s due process rights as guaranteed by the Fourteenth
Amendment to the United States Constitution. Cooper v. Oklahoma, 517
U.S. 348, 354, 116 S. Ct. 1373, 1376, 134 L. Ed. 2d 498, 505–06 (1996).
Therefore, whether a defendant is competent to stand trial implicates a
constitutional right. State v. Edwards, 507 N.W.2d 393, 395 (Iowa
1993).
Prior to January 1, 1978, a jury determined a defendant’s
competency to stand trial. Iowa Code § 783.2 (1975); see also State v.
Drosos, 253 Iowa 1152, 1156, 114 N.W.2d 526, 528 (1962) (recognizing it
is well settled law in Iowa that a jury determines the mental competency
of a defendant to stand trial). Because a jury made the determination of
a defendant’s competency, we reviewed the jury’s finding for substantial
evidence and did not conduct a de novo review. Id.
8
Effective January 1, 1978, the legislature repealed section 783.2.
1976 Iowa Acts ch. 1245, ch. 4, §§ 526, 529. In its place, the legislature
enacted section 812.4. 1976 Iowa Acts ch. 1245, ch. 2, § 1204. Section
812.4 required the court to make the determination of a defendant’s
competency to stand trial. Iowa Code § 812.4 (Supp. 1977). Although
the legislature has amended chapter 812 numerous times since 1978,
the determination of a defendant’s competency to stand trial has
remained with the court. See Iowa Code § 812.5 (stating the court shall
receive all relevant evidence and make the determination of a defendant’s
competency to stand trial).
Since 1978, we have been somewhat inconsistent as to the
standard of review we use to determine if a defendant is competent to
stand trial. In State v. Lyon, 293 N.W.2d 8, 10 (Iowa 1980), the
defendant’s competency to stand trial became an issue during the trial.
At that point, the court recessed the trial, personally questioned the
defendant, and heard testimony from various experts regarding the
defendant’s competency. Lyon, 293 N.W.2d at 12. Based on this
testimony, the trial court found the defendant competent to stand trial.
Id. There, we conducted a de novo review, considered all the defendant’s
circumstances, and affirmed the trial court’s finding of competency. Id.
at 9, 12–13.
One year later, we were confronted with another case where a
defendant’s competency to stand trial was at issue. State v. Jackson,
305 N.W.2d 420, 422 (Iowa 1981). There, the trial court held a pretrial
competency hearing. Id. In reviewing the competency ruling, we
determined the standard of review was at law to determine whether
substantial evidence supported the trial court’s determination of
competency. Id. at 425. In reaching this conclusion, we did not discuss
9
the constitutional implications of the competency issue, but instead
relied on our pre-1978 decisions reviewing jury determinations of
competency. Id.
In 1981, we were again confronted with a case involving a
defendant’s mental competency to stand trial. State v. Pedersen, 309
N.W.2d 490, 491 (Iowa 1981). In Pedersen, the trial court conducted a
pretrial hearing to determine the defendant’s competency. Id. at 492.
After hearing testimony from conflicting experts, the trial court found the
defendant competent to stand trial. Id. During the trial, the defendant
began to display odd behavior. Id. at 492–95. The trial continued
despite this behavior. Id. Noting that the trial of an incompetent
defendant deprives that defendant of due process of law, we conducted a
de novo review of the entire record including the pretrial hearing, the
defendant’s conduct during trial, and his conduct following trial. Id. at
495–501.
Two years later, we were again confronted with the issue of
competency. State v. Aswegan, 331 N.W.2d 93, 95 (Iowa 1983). In
Aswegan, two pretrial hearings were held to determine the defendant’s
competency to stand trial. Id. After the second hearing, the trial court
found the defendant competent to stand trial. Id. There, we held the
defendant did not raise a due process challenge with respect to the
pretrial competency hearing; therefore, our review was not de novo. Id.
This holding is inconsistent with the Supreme Court’s statement that,
“ ‘[c]ompetence to stand trial is rudimentary, for upon it depends the
main part of those rights deemed essential to a fair trial, including the
right to effective assistance of counsel . . . .’ ” Cooper, 517 U.S. at 354,
116 S. Ct. at 1376–77, 134 L. Ed. 2d at 506 (quoting Riggins v. Nevada,
504 U.S. 127, 139–40, 112 S. Ct. 1810, 1817, 118 L. Ed. 2d 479, 492
10
(1992) (Kennedy, J., concurring)). We cannot see how the issue of a
defendant’s competence to stand trial does not implicate a defendant’s
due process rights.
In 1985, we reviewed another case involving the competency issue.
State v. Emerson, 375 N.W.2d 256, 260 (Iowa 1985), abrogated on other
grounds by Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110
L. Ed. 2d 112 (1990). In Emerson, the trial court held a pretrial hearing
and determined the defendant was competent to stand trial. Id. On
appeal, we held the standard of review was de novo because
constitutional safeguards were implicated. Id. at 261.
In 1993, we decided State v. Edwards, 507 N.W.2d 393 (Iowa
1993). There, the defendant’s competency became an issue during trial
due to his obstreperous behavior. Edwards, 507 N.W.2d at 394. We
reviewed the defendant’s trial conduct de novo to determine if he was
competent to stand trial because the issue of his incompetence raised a
constitutional issue. Id. at 395.
Finally, in 1996, we decided State v. Rieflin, 558 N.W.2d 149 (Iowa
1996). There, after a pretrial hearing, the trial court found the defendant
competent to stand trial. Rieflin, 558 N.W.2d at 151. On our
discretionary review, we relied on Jackson and Aswegan in holding the
scope of review was at law for substantial evidence because the court
had held a pretrial competency hearing. Id. at 151–52. We did note,
however, if competency became an issue during trial, our review was de
novo. Id. The Rieflin court did not distinguish Emerson or discuss the
constitutional implications of a competency-to-stand-trial challenge.
We believe Jackson, Aswegan, and Rieflin were wrongly decided as
to the standard of review required when this court reviews a defendant’s
pretrial hearing to determine his or her competence to stand trial.
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Jackson relied on our old cases, decided under a statute that allowed a
jury to determine the defendant’s competence to stand trial. Jackson,
305 N.W.2d at 425. Aswegan and Rieflin failed to consider that a
defendant’s competency to stand trial implicates a constitutional right.
Rieflin, 558 N.W.2d at 151–52; Aswegan, 331 N.W.2d at 95. In Iowa,
when an appeal involves a defendant’s constitutional rights, we review
the appeal de novo. See, e.g., State v. Bruegger, 773 N.W.2d 862, 869
(Iowa 2009) (reviewing sentence under the Cruel and Unusual
Punishment Clause); Formaro v. Polk County, 773 N.W.2d 834, 838 (Iowa
2009) (reviewing claim that a statute violated the Ex Post Facto Clause);
State v. Harper, 770 N.W.2d 316, 319 (Iowa 2009) (reviewing claim
involving the Confrontation Clause); State v. Cromer, 765 N.W.2d 1, 6
(Iowa 2009) (reviewing ineffective-assistance-of-counsel claim under the
Sixth Amendment); State v. Kramer, 760 N.W.2d 190, 193–94 (Iowa
2009) (reviewing application of the Double Jeopardy Clause under the
Fifth Amendment); State v. Mitchell, 757 N.W.2d 431, 434 (Iowa 2008)
(reviewing constitutionality of a statute under the Equal Protection
Clause); State v. Willard, 756 N.W.2d 207, 211–12 (Iowa 2008) (reviewing
prohibition against bills of attainder under the Federal and Iowa
Constitutions); State v. Fremont, 749 N.W.2d 234, 236 (Iowa 2008)
(reviewing validity of a search warrant under the Fourth Amendment);
State v. Harris, 741 N.W.2d 1, 5 (Iowa 2007) (reviewing right against self-
incrimination under the Fifth Amendment); State v. Wells, 738 N.W.2d
214, 218–19 (Iowa 2007) (reviewing breakdown of the attorney-client
relationship under the Sixth Amendment); State v. Smitherman, 733
N.W.2d 341, 345 (Iowa 2007) (reviewing conflict of interest implicating
the right to counsel under the Sixth Amendment).
12
We review de novo a district court decision implicating a
defendant’s constitutional rights, even if the district court held a full
hearing on the matter below. Formaro, 773 N.W.2d at 838; Harper, 770
N.W.2d at 319; Willard, 756 N.W.2d at 211; Fremont, 749 N.W.2d at 236;
Harris, 741 N.W.2d at 4–5; Smitherman, 733 N.W.2d at 344–45. The
distinction made in Rieflin, that our review is de novo if the district court
did not conduct a competency hearing, but for substantial evidence if the
district court held a competency hearing, is inconsistent with our
jurisprudence regarding the standard of review when constitutional
issues are implicated. We see no reason to treat a defendant’s due
process rights, implicated by a claim of competency to stand trial, any
differently from our review of other constitutional issues. Accordingly,
we review a trial court’s decision as to a defendant’s competency to stand
trial de novo and overrule any of our prior cases holding otherwise.
B. Legal Framework. At common law, the State could not try a
criminal defendant if that person’s mental condition was such that he or
she lacked the capacity to understand the nature and object of the
proceedings, to consult with counsel, and to assist in preparing a
defense. Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903, 43
L. Ed. 2d 103, 112–13 (1975). The Supreme Court has stated the test to
determine if a criminal defendant is competent to stand trial is whether
the person “ ‘has sufficient present ability to consult with [counsel] with
a reasonable degree of rational understanding—and whether [the person]
has a rational as well as factual understanding of the proceedings.’ ”
Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4
L. Ed. 2d 824, 825 (1960) (per curiam). In Iowa, we define the test as
whether “the defendant is suffering from a mental disorder which
prevents the defendant from appreciating the charge, understanding the
13
proceedings, or assisting effectively in the defense.” Iowa Code
§ 812.3(1); accord Rieflin, 558 N.W.2d at 152; Edwards, 507 N.W.2d at
395; Lyon, 293 N.W.2d at 9. The common thread running through these
tests is that a criminal defendant must be able to effectively assist
counsel in his or her defense.
We presume a defendant is competent to stand trial. Pedersen,
309 N.W.2d at 496. The defendant has the burden of proving his or her
incompetency to stand trial by a preponderance of the evidence. Id. If
the evidence is in equipoise, the presumption of competency prevails. Id.
Moreover, once a court finds a defendant competent to stand trial, the
presumption of competency continues unless and until the defendant
produces new evidence to the contrary. Jackson, 305 N.W.2d at 425–26.
In this appeal, June argues she suffers from amnesia concerning
the facts and events surrounding the shooting; therefore, she asserts she
was incompetent to stand trial because she was unable to effectively
assist in her own defense. Particularly, she claims she was unable to
assist her counsel in determining whether the defense of self-defense
would be available to her.
Amnesia on its own will not render a criminal defendant
incompetent to stand trial. Emerson, 375 N.W.2d at 261. Rather, a
court must determine whether an amnesic defendant is competent to
stand trial by the circumstances of each individual case. United States v.
Swanson, 572 F.2d 523, 526 (5th Cir. 1978). A subjective circumstance
to consider is the defendant’s present ability to assist counsel in his or
her defense. Id. Under a subjective circumstance analysis, the court
should consider the defendant’s particular situation including:
(1) whether the defendant has the present ability to take the stand on
matters other than the amnesic event, (2) whether the defendant suffers
14
from other pathological or psychological conditions that hinder the
defendant’s present ability to assist in his or her defense, and (3) whether
a continuance would remediate the situation. Id. at 526–27.
An objective circumstance to consider is whether the defendant
can receive a fair trial despite his or her amnesia. Id. at 527. To analyze
this factor, a court should consider: (1) whether the crime and the
defendant’s whereabouts could be reconstructed without the defendant’s
testimony, (2) whether access to the information contained in the State’s
files would help fill in the gaps of the defendant’s memory, and (3) how
the defendant’s testimony would affect the strength of the State’s case.
Id.
C. Analysis. The experts testifying regarding June’s competency
to stand trial offered differing opinions as to the extent and permanency
of June’s amnesia. On our de novo review, we find her amnesia is
probably due to patchy memory retrieval, rather than memory formation.
We reach this conclusion because she is able to remember some of the
events, but not all of them. Although we cannot say whether June’s
amnesia is permanent or transient, we do believe it will probably last
indefinitely into the future. From a subjective standpoint, we are left
with an individual who has a memory of the events, but for some reason
cannot relate her entire memory of the events to her attorneys at this
time. We do not believe a continuance will help her patchy memory
retrieval.
June’s situation is not unlike many persons who are involved in
similar incidents. No person’s memory is complete; even under the best
conditions everyone is amnesic to some degree due to the natural loss of
memory or the failure to observe. State v. Martens, 521 N.W.2d 768, 771
(Iowa Ct. App. 1994); see also United States v. Stevens, 461 F.2d 317,
15
320 (7th Cir. 1972); State v. McClendon, 437 P.2d 421, 423, 425 (Ariz.
1968) (finding that “a defendant is entitled to a fair trial, but not
necessarily to a perfect trial”). As the Seventh Circuit Court of Appeals
noted about the plight of an amnesiac:
“In his plight the amnesiac differs very little from an
accused who was home alone, asleep in bed, at the time of
the crime or from a defendant whose only witnesses die or
disappear before trial. Furthermore, courts, of necessity,
must decide guilt or innocence on the basis of available facts
even where those facts are known to be incomplete, and the
amnesiac’s loss of memory differs only in degree from that
experienced by every defendant, witness, attorney, judge,
and venireman. How much worse off is a generally amnesic
defendant on trial for murder, for example, than one who
remembers all but the dispositive fact: who struck the first
blow?
....
If a defendant is permanently amnesic, furthermore,
there will be no time in the future when the court can secure
the benefit of his version of the facts. The choice facing the
court would therefore be that of proceeding to adjudicate the
defendant’s guilt or innocence on the basis of incomplete
data or abandoning the adjudicatory process altogether.”
Stevens, 461 F.2d at 320 (quoting Note, Amnesia: A Case Study in the
Limits of Particular Justice, 71 Yale L.J. 109, 128–29 (1961)).
In spite of June’s memory problems, we believe June can receive a
fair trial. The State’s files and physical evidence make it relatively simple
for the defense to reconstruct the facts surrounding the shooting. June
was the only other individual at the house at the time of the shooting.
The crime scene did not indicate a struggle took place prior to the
shooting. June had no visible injuries indicating that Leo attacked her
prior to the shooting. After the shooting, June made numerous calls to
her family. There was no indication from the manner in which she
spoke, or in the words she used to describe the incident, that signaled
16
she was in imminent danger of death or injury at the time of the
shooting.
In none of the statements she made after the shooting, either at
the scene, while being transported to the law enforcement center, or at
the center, did she ever indicate that she shot Leo in self-defense. In
fact, in two of her statements she said, “[w]ell, it’s not self-defense
actually,” and “I wasn’t threatened, but I had a reasonable reason.”
From the statements made by June, the physical evidence gathered, and
the information contained in the State’s file, we conclude June’s amnesia
did not prevent her from receiving a fair trial and agree with the district
court that she was competent to stand trial.
IV. Jury Instruction Regarding Second-Degree Murder.
A. Standard of Review. June claims the district court erred by
failing to give a specific intent instruction in connection with its
instruction regarding second-degree murder. Although we review a claim
that the court gave an improper jury instruction for correction of errors
at law, we review the related claim that the trial court should have given
a defendant’s requested instruction for abuse of discretion. Summy v.
City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006). “Under Iowa law,
a court is required to give a requested instruction when it states a correct
rule of law having application to the facts of the case and when the
concept is not otherwise embodied in other instructions.” Herbst v.
State, 616 N.W.2d 582, 585 (Iowa 2000) (emphasis added).
B. Analysis. The court instructed the jury that before it could
find June committed the crime of second-degree murder, the State had to
prove the following elements:
1. On or about the 15th day of May 2006, the
defendant shot Leo Lyman.
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2. Leo Lyman died as a result of being shot.
3. The defendant acted with malice aforethought.
June requested a specific intent instruction arguing that the act of
shooting someone, as instructed in element number one, is an assault
and to commit an assault, a person must necessarily have acted with
specific intent. The district court rejected this argument and so do we.
In Iowa, all crimes are statutory. Iowa Code § 701.2 (stating, “[a]
public offense is that which is prohibited by statute and is punishable by
fine or imprisonment”). Iowa Code section 707.1 provides that a person
commits murder when that person “kills another person with malice
aforethought either express or implied.” Id. § 707.1. Murder in the first
degree occurs when a person commits murder under any of the following
circumstances:
1. The person willfully, deliberately, and with
premeditation kills another person.
2. The person kills another person while participating
in a forcible felony.
3. The person kills another person while escaping or
attempting to escape from lawful custody.
4. The person intentionally kills a peace officer,
correctional officer, public employee, or hostage while the
person is imprisoned in a correctional institution under the
jurisdiction of the Iowa department of corrections, or in a
city or county jail.
5. The person kills a child while committing child
endangerment under section 726.6, subsection 1, paragraph
“b”, or while committing assault under section 708.1 upon
the child, and the death occurs under circumstances
manifesting an extreme indifference to human life.
6. The person kills another person while participating
in an act of terrorism as defined in section 708A.1.
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Id. § 707.2. Murder in the second degree occurs when “[a] person . . .
commits murder which is not murder in the first degree.” Id. § 707.3.
Thus, murder in the second degree has only two elements—a person kills
another person and does so with malice aforethought.
The first element required for a person to commit second-degree
murder is the killing of a person. The killing can occur by an affirmative
act, such as when a person shoots another person, or by an omission to
act when there is a duty to do so, such as when a parent fails to provide
medical care for a child who dies from a lack of care. 1 Wayne R.
LaFave, Substantive Criminal Law §§ 6.1, .2, at 422–23, 435–36 (2d ed.
2003).
The second element required for a person to commit second-degree
murder is that the act of killing another person is done with malice
aforethought. Malice aforethought requires the actor to have “a fixed
purpose or design to do physical harm to another that exists before the
act is committed.” State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). “‘It
does not mean mere spite, hatred, or ill will, but does signify that state of
disposition which shows a heart regardless of human life.’ ” State v.
Leedom, 247 Iowa 911, 917, 76 N.W.2d 773, 777 (1956) (quoting State v.
Burris, 198 Iowa 1156, 1158, 198 N.W. 82, 84 (1924), overruled on other
grounds by State v. Kernes, 262 N.W.2d 602, 604 (Iowa 1978)). It is well-
settled law that murder in the second degree is a general intent crime
only requiring proof of malice aforethought. State v. Kraus, 397 N.W.2d
671, 672–73 (Iowa 1986).
June argues when the court instructs the jury that the State must
prove June shot Leo, the court must also give the jury a specific intent
instruction because a shooting is an assault, and an assault can only be
committed with specific intent. We disagree.
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The first element the State must prove to convict June of second-
degree murder is that June killed another person, namely Leo. It does
not matter how she accomplished the act of killing. She could have shot
Leo as alleged or withheld medical care if the State proved she had a
duty to provide such care. The manner of killing another is not an
element of the crime; the only element required by the Code is that she
did an act that killed another person. Thus, if the State proves June did
an act to kill Leo with malice aforethought, she is guilty of murder in the
second degree. Neither the killing of another person nor malice
aforethought requires specific intent under section 707.3. Consequently,
the district court was correct in refusing to give a specific intent
instruction for second-degree murder.
V. Ineffective Assistance of Counsel.
A. Standard of Review. Claims involving ineffective assistance of
counsel have their basis in the Sixth Amendment to the United States
Constitution and we review these claims de novo. State v. Allen, 708
N.W.2d 361, 365 (Iowa 2006).
B. Analysis. “ ‘In order for a defendant to succeed on a claim of
ineffective assistance of counsel, the defendant must prove: (1) counsel
failed to perform an essential duty and (2) prejudice resulted.’ ” Id.
(quoting State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005)); see also
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674, 693 (1984). To prove counsel failed to perform an
“essential duty,” a defendant must prove counsel’s performance was
deficient, meaning trial counsel “made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80
L. Ed. 2d at 693. Trial counsel’s performance is measured objectively by
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determining whether counsel’s assistance was reasonable, under
prevailing professional norms, considering all the circumstances. Id. at
688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; State v. Maxwell, 743
N.W.2d 185, 195 (Iowa 2008). Establishing this first prong is not easy
because “ ‘there is a strong presumption trial counsel’s conduct fell
within the wide range of reasonable professional assistance.’ ” State v.
Graves, 668 N.W.2d 860, 881 (Iowa 2003) (quoting DeVoss v. State, 648
N.W.2d 56, 64 (Iowa 2002)).
To establish prejudice, a defendant must prove “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694, 104
S. Ct. at 2068, 80 L. Ed. 2d at 698. To establish a reasonable probability
that the result would have been different, we have stated that a
defendant “need only show that the probability of a different result is
‘sufficient to undermine confidence in the outcome.’ ” Graves, 668
N.W.2d at 882 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068,
80 L. Ed. 2d at 698).
June claims her trial counsel was ineffective for failing to redact
and/or object to the introduction of video evidence depicting June’s
repeated invocations of her right to remain silent by requesting an
attorney, as well as for failing to object to several prosecution references
to these statements made during the prosecutor’s closing argument. It is
impermissible to use an individual’s exercise of his or her constitutional
rights against them after the State implicitly assured the individual,
through the Miranda warning, that his or her invocation of those rights
would not be penalized. Wainwright v. Greenfield, 474 U.S. 284, 292,
106 S. Ct. 634, 639, 88 L. Ed. 2d 623, 631 (1986). Any breach of this
implied assurance is a breach of fundamental fairness required by the
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due process clauses of the Federal and Iowa Constitutions. Id. at 291,
106 S. Ct. at 638–39, 88 L. Ed. 2d at 630; State v. Decker, 744 N.W.2d
346, 353–54 (Iowa 2008). Additionally, the Supreme Court has held that
prosecutorial comments concerning a defendant’s silence are
constitutionally banned. Griffin v. California, 380 U.S. 609, 615, 85
S. Ct. 1229, 1233, 14 L. Ed. 2d 106, 110 (1965). Under this record,
however, we cannot reach June’s claim of ineffective assistance of
counsel.
The State charged June with first-degree murder. First-degree
murder is a specific intent crime. State v. Jespersen, 360 N.W.2d 804,
807 (Iowa 1985). As a defense to this charge, June raised the defense of
diminished responsibility. The court instructed the jury that
“ ‘diminished responsibility’ means a mental condition which does not
allow the person to form a premeditated, deliberate, specific intent to
kill.” The jury did not return a verdict for first-degree murder under
these instructions. The state of the record does not allow us to decide if
June’s trial counsel purposely decided not to object to this evidence or
prosecutorial comments to show June’s mental state at the time of the
shooting, in order to bolster her diminished responsibility defense. Trial
tactics may require counsel to forego certain defenses or objections in
pursuit of the best interests of the accused. State v. Rand, 268 N.W.2d
642, 649 (Iowa 1978). Accordingly, we will not address June’s
ineffective-assistance-of-counsel claim on direct appeal.
VI. Disposition.
We affirm June’s conviction for second-degree murder because the
district court was correct when it found June competent to stand trial
and when it refused to give a specific intent instruction for second-degree
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murder. However, we do not reach June’s claim of ineffective assistance
of counsel on direct appeal.
AFFIRMED.