Opinion
No. 5-633 / 04-1222
Filed October 26, 2005
Appeal from the Iowa District Court for Muscatine County, Patrick J. Madden, Judge.
Defendant appeals from his convictions and sentences for first-degree murder and two counts of attempted murder. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
David Lee Hering, Anamosa, pro se.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, James Kivi, Assistant Attorney General, Gary Allison, Muscatine County Attorney, and Alan Ostergren, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Zimmer, JJ.
David Lee Hering appeals following his convictions and sentences for murder in the first degree and two counts of attempted murder. We affirm.
I. Background Facts and Proceedings
The tragic events which give rise to this case occurred on August 6, 2003. On that date, David and Lisa Hering were living on a farm in Muscatine County with their four children: Amy, age fourteen; Amber, age twelve; and twins, Autum and Dusty, age ten. After doing some farm chores, David and Lisa took their children, and two other children who were visiting on the farm, on a picnic in the timber. After the picnic, the Hering children and their friends watched television and swam in the pool.
Around 6 p.m., David carried a shotgun out of the house. He loaded the shotgun and placed it in his truck. Lisa got into the truck with her husband. She appeared to be crying. Two of the Hering children heard David tell Lisa that he was not going to hurt her. Lisa told the children she and David were going to go check on some cattle. She also told the children she loved them and would be right back. David then drove Lisa to a field on the farm that could not be seen from the house.
David returned from the field alone with his shotgun. Amber asked her father where her mother was, and David replied that he thought Lisa was with the children. Amber called her father a liar. She also took his keys out of the truck and threw them away so he could not leave. David then entered the house and exchanged his shotgun for a rifle with a scope. Amy Hering and one of the visiting children went looking for Lisa. They found Lisa's body lying face down in a farm field. Lisa had been shot to death. Amy called 911, and numerous law enforcement officers from a variety of agencies were dispatched to the scene.
Investigators later determined that Lisa suffered two shotgun wounds, a nonfatal wound to her back and a fatal wound to the back of her head.
Durant police officer Robert McClanahan arrived first at the Hering farm. He pulled into the Herings' quarter-mile long driveway and parked some distance from the farmhouse. McClanahan observed five children running toward his patrol car. He also observed Hering walking in the farmyard with a rifle. Sergeant Eric Furnas arrived a short time later and parked behind McClanahan's car. Three of the children ran past the officers to a safer location farther away from the farmhouse, while two of the children "hunkered down" with Officer McClanahan and Sergeant Furnas. Hering fired at McClanahan and Furnas from a farrowing house, and the officers returned fire. The officers and the two children were pinned down for a time. Eventually, Furnas was able to place the two children in the back seat of his patrol car and back out of the driveway to safety.
The standoff between Hering and law enforcement officers continued as night fell. At some point, the officers learned that Dusty was still in the farmhouse, and they devised a plan to rescue him. As a group of state troopers approached the Hering residence, they observed Hering running toward the house. After Hering ignored orders to stop, a state trooper shot him in the leg. Hering was eventually subdued on the threshold of his home following a struggle. A short time later, a state trooper found Dusty upstairs in his parents' bed. Dusty had not been harmed.
Hering was transported to a hospital. Before he was taken to surgery, an officer informed him that he was under arrest for the death of his wife. At first, Hering denied Lisa was dead, but then he asked who shot her. He also expressed anger that law enforcement officers had entered his property without a warrant.
The State charged Hering with murder in the first degree for the death of Lisa and two counts of attempted murder for shooting at Officer McClanahan and Sergeant Furnas. The State also charged Hering with two counts of child endangerment.
Prior to the time that David shot Lisa, his family and friends noticed that David had been acting oddly. He believed that some of his family members were plotting to take the farm from him. He stayed up at night patrolling the farm with a gun and occasionally shot into the darkness. He shot a hole in his neighbor's satellite dish. Hering believed that his children's 4-H calves had been drugged at the local fair, so he pulled them from competition.
Prior to trial, Hering's defense attorneys filed a notice of intent to rely on a defense of insanity and/or diminished responsibility. Dr. Kirk Witherspoon, a clinical psychologist, examined Hering for the defense. Dr. Michael Taylor, a psychiatrist, examined Hering for the State.
At trial, defense counsel did not dispute that David shot Lisa. The defendant's expert witness, Dr. Witherspoon, testified that Hering suffered from paranoid schizophrenia and met the criteria for the designation of being insane at the time of the offense. The State's expert, Dr. Taylor, agreed that Hering suffered from some type of paranoid psychotic disorder, most likely paranoid schizophrenia, but disagreed that Hering's delusions caused by his paranoid schizophrenia interfered with his ability to form the specific intent to kill. Dr. Taylor also testified that Hering was fully capable of understanding the nature and quality of his acts and appreciating the wrongfulness of his acts despite suffering from a mental illness.
The jury found Hering guilty of first-degree murder and two counts of attempted murder. Defense counsel made a motion for new trial. Among other things, they contended the verdict was contrary to the law and/or evidence. The court denied the motion. The court sentenced Hering to life in prison for the first-degree murder conviction and a term not to exceed twenty-five years for each count of attempted murder to be served consecutively to each other, but concurrent with the life sentence.
The State dropped the charges of child endangerment prior to trial.
Hering appeals. He asserts the district court applied an incorrect standard in ruling on his motion for new trial and contends that his attorneys were ineffective for failing to obtain an MRI (Magnetic Resonance Imaging). In his pro se brief, Hering argues the trial court incorrectly refused to instruct the jury on the lesser-included offense of voluntary manslaughter. He also claims that his trial attorneys were ineffective for failing to have his blood tested for hallucinogenic substances.
Magnetic Resonance Imaging is "a diagnostic radiologic modality, using nuclear magnetic resonance technology" to obtain a "3-dimensional" image. STEDMAN'S MEDICAL DICTIONARY 876 (Maureen Barlow Pugh, ed., Lippincott Williams Wilkins 27th ed. 2000) (1912).
II. Motion for New Trial
The defendant first contends the district court "erred in applying the wrong standard in ruling on the motion for new trial."
The district court may grant a new trial when the jury's verdict is "contrary to law or evidence," and "contrary to evidence" means "contrary to the weight of the evidence." Iowa R. Crim. P. 2.24(2)( b)(6); State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Appellate review of a claim that the weight of evidence failed to support the verdict is limited to reviewing the trial court's exercise of discretion. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). Our scope of review is for the correction of errors at law, and we will not review the underlying question of whether the verdict goes against the weight of the evidence. Id.
In this case, Hering does not contend the trial court was unaware that the weight-of-the-evidence standard set forth in Ellis needed to be used in ruling on his motion for new trial. Instead, he argues that several of the trial court's comments during the hearing on his motion for new trial indicate the court "failed to make its own determination whether the verdict was contrary to the weight of evidence." As a result, he argues that this matter should be remanded for a rehearing on the motion. Upon careful review of the record, we are not convinced a rehearing is necessary.
In Ellis, our supreme court made clear that the contrary to the weight-of-the-evidence standard is not the same as the sufficiency-of-the-evidence standard applied in ruling on a motion for judgment of acquittal. Here, the record affirmatively shows that the prosecutors, defense attorneys, and trial court were all aware of the standard to be applied in ruling on defendant's motion.
Our supreme court has admonished trial courts to exercise their discretion in ruling on motions for new trial "carefully and sparingly." Ellis, 578 N.W.2d at 659. Trial courts should invoke their power to grant a new trial only in exceptional cases where the evidence preponderates heavily against the verdict so that they do not diminish the jury's role as the principal trier of facts. Id. When the evidence is nearly balanced, or is such that different minds could fairly arrive at different conclusions, the district court should not disturb the jury's findings. Reeves, 670 N.W.2d at 203. Even if the district court might be inclined to render a different verdict than the jury, it must uphold that verdict in the face of mere doubts that it is correct. Id. Only when the court finds the verdict incorrect due to mistake, prejudice, or other cause, may it set aside that verdict and remand the question to a different jury. Id.
We do not believe the record supports the conclusion that the district court abdicated its responsibility to decide if the evidence preponderated heavily against the jury's verdict. In this case, two well-qualified expert witnesses reached different conclusions regarding the issue of Hering's sanity. At the hearing on Hering's motion, the trial court acknowledged that the expert witnesses' conclusions differed. The court rejected the argument that the expert opinions canceled each other out. The court stated:
I know that they [the jury] assign greater weight of evidence to the testimony of some experts over other experts, and in this case I think it's apparent they assigned more credibility — it's not credibility, more weight to Dr. Taylor's testimony than Dr. Witherspoon's.
"When conflicting psychiatric testimony is presented to the fact finder, the issue of sanity is clearly for the fact finder to decide." State v. Jacobs, 607 N.W.2d 679, 685 (Iowa 2000). We do not believe the trial court's deference to the jury's ability to analyze and resolve conflicting expert testimony was inconsistent with its consideration of a weight-of-the-evidence challenge. We believe the overall record regarding the motion for new trial reveals that the trial judge knew he had the authority to grant a new trial if the greater weight of the credible evidence preponderated heavily against the verdict, but simply did not accept the arguments advanced by the defendant in support of a new trial. We also conclude the trial court's rejection of the defendant's motion for new trial was not an abuse of discretion. Accordingly, we reject this assignment of error.
III. Ineffective Assistance of Counsel
Hering claims that trial counsel was ineffective for failing to obtain an MRI of his brain prior to trial. We review ineffective assistance of counsel claims de novo. State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000). Usually, we preserve ineffective assistance claims for possible postconviction proceedings to allow for the full development of the record regarding trial counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). If the record is sufficient to reach the merits of the defendant's arguments, we will address ineffective assistance of counsel claims on direct appeal. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App. 2000). In this case, we conclude the record is sufficient to address Hering's claims.
To prevail on a claim of ineffective assistance of counsel, Hering must prove that his trial counsel failed to perform an essential duty, and prejudice resulted from that failure. State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004). The inability to prove either breach of duty or prejudice defeats the claim of ineffective assistance of counsel. State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003).
Hering claims his trial counsel failed to perform an essential duty by failing to obtain an MRI for him that may have shown tissue loss in the brain due to untreated schizophrenia. "Failing to perform an essential duty means counsel's performance fell outside the normal range of competency." Scalise, 660 N.W.2d at 61-62. Hering must overcome a strong presumption that his trial attorneys were competent. State v. Nucaro, 614 N.W.2d 856, 859 (Iowa Ct.App. 2000). Hering contends that if his trial counsel had ordered an MRI, they could have called a neurologist as a witness to explain why his brain functioned abnormally due to certain areas of tissue loss. If it was unnecessary to call a neurologist, then Hering's trial attorneys acted within the range of normal competency. Both Hering's expert witness and the State's expert witness agreed that Hering exhibited symptoms of paranoid schizophrenia. Therefore, even if an MRI had shown brain tissue loss, that evidence would have only reinforced the experts' consensus that Hering suffered from the disease. Dr. Taylor, the State's expert, testified that even if an MRI had shown brain tissue loss, that would not have affected his opinion that Hering met the legal definition of sanity at the time of the offense. Furthermore, Dr. Witherspoon never testified that the lack of an MRI diminished his opinion that Hering was insane when he killed his wife. We conclude Hering's trial counsel breached no duty by failing to secure an organic medical examination for their client.
After reviewing the entire record, we note that Hering's trial attorneys, J.E. Tobey and David Treimer, provided a skillful and tenacious defense for their client.
We also find that Hering has failed to demonstrate prejudice. A defendant can prove prejudice by showing a reasonable probability that, but for counsel's errors, the outcome of the trial would have differed. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). Even if an MRI would have shown abnormalities in the defendant's brain, Hering has not shown that the testimony of a neurologist would have convinced the jury that Hering's schizophrenia rendered him legally insane at the time of the offense. We conclude no reasonable probability exists that the outcome of the trial would have been different if counsel had procured additional neurological testing of the defendant.
IV. Pro Se Claims
Hering's pro se claims include contentions that the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter and that his trial counsel was ineffective for failing to have his blood tested for hallucinogenic substances.
We review the district court's refusal to give a jury instruction for abuse of discretion. Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005); Kiesau v. Bantz, 686 N.W.2d 164, 171 (Iowa 2004). The court only needs to instruct the jury on a lesser included offense if sufficient evidence supports the offense. Scalise, 660 N.W.2d at 64; State v. Royer, 436 N.W.2d 637, 642 (Iowa 1989). One of the elements of voluntary manslaughter is that the individual charged with the killing acts "solely as the result of sudden, violent, and irresistible passion resulting from serious provocation." Iowa Code § 707.4 (2003). Hering's pro se brief fails to cite anything in the record that could lead a reasonable jury to conclude he killed Lisa because of "serious provocation." In addition, the district court stated that nothing in the record supported a jury instruction on voluntary manslaughter. We conclude the district court correctly refused to instruct the jury on voluntary manslaughter.
In considering Hering's claim that his trial attorneys were ineffective for failing to test his blood for hallucinogenic substances, we again note that his attorneys had no duty to raise an issue that lacked merit. Taylor, 689 N.W.2d at 134. Hering argues his attorneys should have had his blood tested to prove his claim that his food was drugged while he was at the fair. Hering's trial counsel did not fail to perform an essential duty by failing to explore this issue.
V. Conclusion
The trial court applied the correct standard in ruling on Hering's motion for new trial and did not abuse its discretion in denying the motion. We conclude that Hering's claim of ineffective assistance of counsel is without merit. After considering Hering's pro se claims, we conclude they are also without merit. We affirm his convictions for murder in the first degree and two counts of attempted murder.