STATE OF IOWA, Plaintiff-Appellee, vs. LUIS ALBERTO GOMEZ-RODRIGUEZ, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-193 / 06-0527
Filed June 13, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LUIS ALBERTO GOMEZ-RODRIGUEZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Courts for Muscatine and Scott Counties,
Bobbi M. Alpers, Judge.
Luis Alberto Gomez-Rodriguez appeals his conviction for two counts of
first-degree murder. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney
General, William E. Davis, Scott County Attorney, Gary Allison, Muscatine
County Attorney, and Kerrie L. Snyder and Alan Ostergren, Assistant County
Attorneys, for appellee.
Heard by Vogel, P.J., and Zimmer and Miller, JJ.
2
ZIMMER, J.
Luis Alberto Gomez-Rodriguez appeals his conviction for two counts of
first-degree murder and one count of interference with official acts. 1 He claims
ineffective assistance of counsel due to his trial counsel’s failure to argue the
defense of imperfect self-defense. We affirm.
I.
Background and Facts
Gomez-Rodriguez immigrated to the United States from Cuba. He worked
with his companion of seven and one-half years, Maria Rivero, buying, selling,
and remodeling homes in Florida. They accumulated approximately $120,000 to
$150,000. In mid-2004, while Gomez-Rodriguez was away on a business trip,
Rivero and Julio Sarol took the money and disappeared.
Between June 2004 and February 2005, Gomez-Rodriguez made many
attempts to locate Rivero and Sarol to obtain his share of the money that he and
Rivero had accumulated. He contacted Sarol’s brother, two private investigators,
an attorney, and the Ottumwa Police Department. He also conducted his own
investigation. At some point, Gomez-Rodriguez was told that Julio Sarol had
offered two people $10,000 to kill Gomez-Rodriguez. This information was also
reported to the Ottumwa police.
Gomez-Rodriguez eventually tracked Rivero and Sarol to Muscatine,
Iowa. During the late afternoon on February 23, 2005, Gomez-Rodriguez parked
his van in a yard near a duplex where Rivero and Sarol were living. Armed with
1
Although Gomez-Rodriguez’s notice of appeal states he “appeals every adverse ruling
entered against him in this cause,” his argument on appeal focuses on the murder
convictions.
3
a six-shot .38 caliber revolver and a ten-shot 9mm semiautomatic pistol, GomezRodriguez waited for the pair to return home.
Shortly after 5:00 p.m., Rivero and Sarol arrived at their residence in their
pickup truck and parked the vehicle behind their home. At that point, GomezRodriguez approached the truck and shot Sarol several times. Rivero got out of
the truck and ran away screaming.
Gomez-Rodriguez chased her down the
street, repeatedly shooting at her. After Rivero fell, he caught up with her, stood
over her, and shot her once in the back. He then returned to the truck and shot
Sarol two more times. Both Rivero and Sarol died of their injuries.
Gomez-Rodriguez left the scene in his van. He was pursued by police
and, after a short standoff, surrendered and was taken into custody.
At the
police station, Gomez-Rodriguez told an officer that he had tried to talk to Sarol
and Rivero, but Sarol pulled a red-colored gun, 2 and he got scared. A flare gun,
loaded with a flare, was found near Sarol’s body.
Gomez-Rodriguez was charged with two counts of first-degree murder in
violation of Iowa Code sections 707.1 and 707.2 (2005) and one count of
interference with official acts in violation of section 719.1. A jury found him guilty
of all three counts. He was sentenced to a life sentence for each of the murders,
and a five-year sentence for the interference charge, to run concurrently.
Gomez-Rodriguez appeals.
2
The record shows that, when looking down the barrel of a flare gun, it is red.
4
II.
Merits
Gomez-Rodriguez contends he was denied the effective assistance of
counsel by his counsel’s failure to argue the defense of imperfect self-defense
and to request an instruction explaining the concept.
A claim of ineffective assistance of counsel requires a de novo review
because the claim is derived from the Sixth Amendment of the United States
Constitution.
State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).
Typically,
ineffective assistance of counsel claims are preserved for possible postconviction
proceedings to enable a complete record to be developed. State v. Truesdell,
679 N.W.2d 611, 616 (Iowa 2004). “However, they may be resolved on direct
appeal when the record adequately addresses the issues.” State v. Kone, 557
N.W.2d 97, 102 (Iowa Ct. App. 1996). Here, we find the record is adequate to
resolve Gomez-Rodriguez’s claim.
“A defendant is entitled to effective assistance of counsel.” State v. Artzer,
609 N.W.2d 526, 531 (Iowa 2000) (citing Strickland v. Washington, 466 U.S. 668,
686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)). “The benchmark for
judging any claim for ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process the trial cannot be
relied on as having produced a just result.” Kone, 557 N.W.2d at 102.
To prevail on an ineffective assistance claim, Gomez-Rodriguez must
demonstrate (1) his counsel failed to perform an essential duty and (2) the
ineffective assistance prejudiced him. See Ledezma v. State, 626 N.W.2d 134,
142-43 (Iowa 2001).
To prove the first prong, he must overcome the
presumption counsel was competent. State v. Buck, 510 N.W.2d 850, 853 (Iowa
5
1994). He must show counsel’s performance, considering the entire record and
totality of the circumstances, was not within the range of normal competency.
Artzer, 609 N.W.2d at 531.
To prove the second prong, he must show a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. Id. We may dispose of Gomez-Rodriguez’s claim if
he fails to prove either breach of duty or prejudice. State v. Query, 594 N.W.2d
438, 445 (Iowa Ct. App. 1999).
A. Breach of Duty
Gomez-Rodriguez contends his trial counsel breached his duty when he
failed to argue imperfect self-defense because it “was an argument worth making
to the court in light of the evidence presented at trial.” 3
Under Iowa law, self-defense is the justified use of force “when the person
reasonably believes that such force is necessary to defend oneself or another
from any imminent use of unlawful force.” Iowa Code § 704.3 (emphasis added).
The doctrine of imperfect self-defense, on the other hand, recognizes a
defendant’s honest but unreasonable belief that deadly force is necessary. See,
e.g., State v. Jones, 8 P.3d 1282, 1287 (Kan. Ct. App. 2000) (“Imperfect selfdefense is an intentional killing committed with an unreasonable but honest belief
that circumstances justified deadly force.”); State v. Faulkner, 483 A.2d 759,
769 (Md. 1984) (“[W]hen evidence is presented showing the defendant’s
subjective belief that the use of force was necessary to prevent imminent death
3
Gomez-Rodriguez’s trial counsel argued that the defendant flew into a “sudden, violent,
irresistible passion for self–preservation” when Sarol pointed a flare pistol at him. He
contended the slayings of both victims constituted voluntary manslaughter, rather than
murder.
6
or serious bodily harm, the defendant is entitled to a proper instruction on
imperfect self defense.”). “The theory underlying the doctrine is that when a
defendant uses deadly force with an honest but unreasonable belief that it is
necessary to defend himself, the element of malice, necessary for a murder
conviction, is lacking.” State v. Catalano, 750 A.2d 426, 429 (R.I. 2000). In
states where the doctrine of imperfect self-defense has been adopted, proof of
an imperfect self-defense does not exonerate the accused but mitigates the
homicide to voluntary manslaughter. See, e.g., People v. Vasquez, 39 Cal. Rptr.
3d 433, 435 (Cal. Ct. App. 2006) (“When imperfect self-defense applies, it
reduces a homicide from murder to voluntary manslaughter because the killing
lacks malice aforethought.”).
Gomez-Rodriguez contends his trial counsel had a duty to argue the
doctrine of imperfect self-defense as an alternative to self-defense because his
belief that deadly force was necessary was unreasonable despite the fact that he
had reason to fear Sarol and Rivero. See State v. Westeen, 591 N.W.2d 203,
210 (Iowa 1999) (a defendant’s attorney had a duty to raise an undecided issue if
a normally competent attorney would conclude the issue was worth raising). For
the reasons which follow, we conclude Gomez-Rodriguez’s trial attorney had no
duty to present a defense based on the doctrine of imperfect self-defense.
While a valid defense in some jurisdictions, the doctrine of imperfect selfdefense has not been adopted in Iowa.
Moreover, the doctrine has been
expressly rejected in several other states. See, e.g., State v. Buchanan, 431
N.W.2d 542, 549 (Minn. 1988) (resisting “the invitation to fashion a new defense
which the legislature has not seen fit to mandate”); State v. Branch, 714 A.2d
7
918, 924 (N.J. 1998) (“In New Jersey, there is no such defense as imperfect selfdefense.”); Catalano, 750 A.2d at 429 (declining to accept the doctrine of
imperfect self-defense in Rhode Island); State v. Finley, 290 S.E.2d 808,
809 (S.C. 1982) (holding imperfect self-defense “is not the law in South
Carolina”); State v. Shaw, 721 A.2d 486, 492 (Vt. 1998) (“[I]f the doctrine of
imperfect self-defense is adopted in Vermont, it should be done by the
Legislature.”); State v. Hughes, 721 P.2d 902, 909 (Wash. 1986) (“We decline to
adopt the doctrine of so-called ‘imperfect’ self-defense.”).
We believe the doctrine also plainly conflicts with Iowa statutory law. Iowa
Code section 704.3 provides that “[a] person is justified in the use of reasonable
force when the person reasonably believes that such force is necessary to
defend oneself or another from any imminent use of unlawful force.” (emphasis
added). In essence, Gomez-Rodriguez is asking us to judicially create a new
non-statutory defense. See State v. Khouri, 503 N.W.2d 393, 395 (Iowa 1993)
(declining to adopt the doctrine of emotional disturbance in the absence of
legislative action).
We decline Gomez-Rodriguez’s invitation to find his trial counsel breached
any duty by failing to argue a defense that has not been adopted in this state,
has been rejected in several other states, and is contrary to Iowa statutory law.
Cf. Westeen, 591 N.W.2d at 210 (finding counsel ineffective for failing to raise an
issue of first impression where statute would have supported the argument,
caselaw from other jurisdictions uniformly supported the argument, and the
legislature had instructed courts to construe the statute as other states did).
8
Additionally, while an imperfect self-defense argument may have been
beneficial to Gomez-Rodriguez in defending the murder of Sarol, his trial counsel
was also faced with defending the shooting of Rivero.
The record reveals
Gomez-Rodriguez shot an unarmed Rivero in the back as she was trying to run
away from him. It is improbable a reasonable jury would believe that GomezRodriguez, even unreasonably, thought he was in imminent danger from Rivero.
See People v. Lewis, 22 P.3d 392, 416 (Cal. 2001) (stating an imperfect selfdefense occurs when a defendant kills “in the actual but unreasonable belief that
he or she was in imminent danger”). The failure of trial counsel to argue a
defense that was unlikely to succeed is not outside the range of normal
competence.
We conclude Gomez-Rodriguez has not overcome the
presumption that his trial counsel was competent. See Wissing, 528 N.W.2d at
564 (“Courts generally presume that counsel is competent.”).
B.
Prejudice
We also conclude Gomez-Rodriguez suffered no prejudice when his trial
counsel failed to present a defense based on the doctrine of imperfect selfdefense.
To prove prejudice, a defendant must show a reasonable probability that,
but for counsel’s errors, the result would have been different. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. For the above-stated
reasons, an imperfect self-defense argument would not have been effective in
defending the killing of Rivero. It would also likely not have been effective with
regard to Sarol.
9
An imperfect self-defense argument will fail if the State proves the
defendant (1) initiated the incident, (2) did not actually believe in the need to use
force, (3) used more force than necessary, (4) failed to avoid the confrontation
when an alternative course of action was available, or (5) the danger was not
imminent. Iowa Code §§ 704.1, 704.3, 704.6; State v. Rubino, 602 N.W.2d 558,
565 (Iowa 1999); see also State v. Marr, 765 A.2d, 645, 648 (Md. 2001) (holding
the elements of the doctrines of self-defense and imperfect self-defense are the
same). In this case, Gomez-Rodriguez tracked the victims to their home and
waited for them with loaded weapons. He returned to the truck and fired two
additional shots at Sarol, who was disabled and helpless, and Gomez-Rodriguez
could have avoided the confrontation by staying away from Sarol. It is highly
likely the State would have proved beyond a reasonable doubt at least one of the
facts necessary to defeat the defense of imperfect self-defense. See Rubino,
602 N.W.2d at 565 (“When [self-]defense is raised, the burden rests upon the
State to prove beyond a reasonable doubt that the alleged justification did not
exist.”).
We find no reasonable probability that Gomez-Rodriguez would not
have been convicted of both murders if his counsel had argued the defense of
imperfect self-defense. See Artzer, 609 N.W.2d at 531.
III.
Conclusion
Gomez-Rodriguez has failed to establish either a breach of duty or
prejudice. His trial counsel’s conduct fell well within the range of competent
professional assistance. Upon careful review of the record, we find no reason to
believe the outcome of the case would have been different if his trial counsel had
10
argued the defense of imperfect self-defense.
Because we find no merit to
Gomez-Rodriguez’s ineffective assistance claim, we affirm his convictions.
AFFIRMED.
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