Opinion
No. 5-414 / 04-1257
Filed June 29, 2005
Appeal from the Iowa District Court for Hancock County, John S. Mackey, Judge.
Brad Erdahl appeals from the ruling denying his postconviction relief application. AFFIRMED.
Roger Sutton of Sutton Troge Law Office, Charles City, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Sharon K. Hall, Assistant Attorneys General, and Karen R. Kaufman, County Attorney, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
Brad Erdahl appeals from the ruling denying his postconviction relief application. We affirm.
Background Facts and Proceedings.
Following a jury trial, Erdahl was convicted of first-degree murder and first-degree sexual abuse, in violation of Iowa Code sections 707.2 and 709.2 (1999). This court affirmed his convictions on appeal and rejected his claims of ineffective assistance of counsel. State v. Erdahl, No. 01-0830 (Iowa Ct.App. Nov. 15, 2002). The Iowa Supreme Court, upon further review, vacated that opinion and preserved the ineffective assistance of counsel claims for a postconviction relief proceeding which Erdahl subsequently filed.
Erdahl's postconviction counsel described the claim of ineffectiveness in these terms at the outset of the postconviction trial:
I do want to state for the record that we have narrowed down the issues which we think are most important, and we believe that issue after we have reviewed the matter comes down to the issue of whether or not the attorneys who originally represented him at trial on the merits investigated the issue of intoxication as a defense and whether or not they determined it was a viable defense and if that investigation led them to that conclusion.
Following a trial, the postconviction court issued a ruling denying Erdahl's application. The court concluded "trial counsel's decision not to explore and raise the issue of intoxication fell within the range of strategic choices afforded competent counsel. . . ." Erdahl appeals from this ruling.
Analysis.
Ordinarily, our review of postconviction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). However, when a postconviction petitioner asserts a violation of a constitutional right such as the right to effective assistance of counsel, we make our own evaluation based on the totality of the circumstances. Id. This is equivalent to de novo review. Id.
To establish a claim of ineffective assistance, the applicant must show (1) the attorney failed to perform an essential duty in representing the defendant and (2) prejudice resulted. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). To prove a breach of an essential duty, the applicant must overcome a strong presumption that the performance of counsel fell within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second-guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).
Erdahl asserts on appeal his trial counsel was ineffective in failing to let him
participate in the strategy discussion of his case including whether the defense of intoxication should be used, whether [he] should testify, and the failure to explain to [him] counsel's reason for not using the defense of intoxication or letting him testify concerning the alleged rape.
This claim of counsel's ineffectiveness was neither presented to nor ruled upon by the district court. It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) ("issues must be presented to and passed upon by the district court"). The claims regarding counsel's failure to consult with Erdahl were not raised or addressed below. In fact, postconviction trial counsel clearly indicated the intention to restrict the issue to that of trial counsel's failure to pursue the intoxication defense. Erdahl himself testified to his agreement with this strategy. We therefore confine our discussion to the only issue presented to and ruled upon by the district court.
Erdahl contends the postconviction court erroneously concluded trial counsel did not provide ineffective assistance in failing to investigate or present the issue of intoxication. "Evidence of temporary intoxication is simply evidence to be considered by the jury on the issue of intent." State v. Lawrence, 559 N.W.2d 292, 296 (Iowa Ct.App. 1996). Intoxication is a defense only when it causes a mental disability that makes the person incapable of forming the specific intent necessary for the crime charged. State v. Collins, 305 N.W.2d 434, 436 (Iowa 1981). The fact that a person is under the influence of intoxicants or drugs neither excuses the person's act nor aggravates his or her guilt, but may be shown where it is relevant in proving the person's specific intent or recklessness at the time of the person's alleged criminal act or in proving any element of the public offense with which the person is charged. Iowa Code § 701.5.
Susan Flander, one of Erdahl's trial attorneys, testified that she contacted a psychologist early-on in the case to discuss the prospects for a diminished responsibility defense. After having that discussion, however, she elected not to pursue such a defense. She then considered an intoxication defense, and reviewed the evidence of the preliminary breath test given to Erdahl on the night of the murder. Flanders concluded the evidence did not make intoxication a viable defense. She explained that "intoxication is difficult to argue in the alternative, and if it's not argued in the alternative, then you're . . . generally admitting a death or a sexual abuse." Flanders further opined the defense would not have been "helpful" because the preliminary breath test is not "terribly accurate," much of the alcohol consumed by Erdahl had probably "metabolized out" of his body by the time of the victim's death, Erdahl's level of intoxication did not appear to have been significant enough to support the defense, and because Erdahl's companion on that night appeared to have been more intoxicated than he.
Further, Flanders testified to a perceived risk associated with using the defense. She feared introduction of evidence of Erdahl's intoxication evidence might open the door for the State to introduce evidence from a similar crime committed by Erdahl in Georgia. Finally, Flanders testified that even if she had pursued the intoxication evidence, it would not have been a "complete defense" because it could only reduce the level of the murder charge and would have no effect on the sexual abuse charge.
Because Erdahl is not entitled to perfect representation, we will not reverse where counsel has made a reasonable decision concerning trial tactics and strategy, even if such judgments ultimately fail. Fryer v. State, 325 N.W.2d 400, 413-15 (Iowa 1982). We conclude counsel's decision to forego the intoxication defense was a reasonable and strategic trial decision under the circumstances. Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). The defense had limited prospects of success against the murder charge and would have been of no utility in connection with the other class "A" felony with which he was charged. First-degree sexual abuse does not have a specific intent element. Lamphere v. State, 348 N.W.2d 212, 217 (Iowa 1984). Erdahl's trial counsel made a legitimate strategic decision to forego an intoxication defense under the circumstances of this case. The selection of the primary theory or theories of defense is a tactical matter. See Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984). We find no merit in Erdahl's claim of ineffective assistance of counsel and therefore affirm the district court's ruling.