text:
    2004 SD 37
    Thaddeus WELLS, Claimant and Appellee, v. HOWE HEATING & PLUMBING, INC., Employer and Appellant, and CNA Commercial Insurance, Insurer and Appellant.
    Nos. 22950, 22951.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 17, 2004.
    Decided March 17, 2004.

      A. Russell Janklow, Ronald A. Parsons, Jr. of Johnson, Heidepriem, Miner, Mar-low and Janklow, Sioux Falls, South Dakota Attorneys for claimant and appellee.
    Rick W. Orr, Dana Van Beek Palmer of Davenport, Evans, Hurwitz and Smith Sioux Falls, South Dakota, Attorneys for appellants.
   KONENKAMP, Justice.

[¶ 1.] In this workers’ compensation case, Thaddeus Wells, the claimant, an employee of Howe Heating & Plumbing, Inc., suffered electrical burns while working as an apprentice plumber. He filed for compensation. Howe and CNA Commercial Insurance, the employer and insurer, denied coverage, declaring that the claimant’s failure to use a portable ground fault circuit interrupter (GFCI) amounted to willful misconduct. The matter was heard before the Department of Labor. The Department found that the claimant’s failure to use a GFCI constituted willful misconduct and that such failure was a proximate cause of his injury. On appeal, the circuit court reversed, holding that the employer and insurer failed to meet their burden of proving proximate cause. On appeal before this Court, we affirm because we are firmly and definitively convinced that the Department erred in finding that failure to use a GFCI proximately caused the injury.

Background

[¶ 2.] Wells worked for Howe from 1994 until 2002. For most of that time, he was a shop foreman responsible for issuing tools. Eventually, he became an apprentice plumber. On July 7, 2000, he was sent to a rental property in Sioux Falls to install some plumbing fixtures. To perform his work, Wells entered a crawl space under the building. He took with him a “trouble light” and a “sawzall.” Both required a source of electricity to function. Before entering the crawl space, he plugged the light into an electrical outlet in the kitchen and the saw into an outlet in the living room.

[¶ 3.] Once he entered the crawl space, Wells reached over and grasped the light in order to position it. He felt and saw an electrical spark. Concerned for his safety, he began to exit the crawl space. With one hand, he grabbed the light; with the other, he grabbed the saw. Electricity surged through his body. He attempted to drop the saw, but he could not release his grip. He tried to call for help, but was unable to speak. After approximately thirty seconds of electrocution, he spotted the extension cord connected to the saw. He kicked at the cord. While the kick did not unplug the cord, his action stopped the current. After collecting himself, Wells returned to the shop and reported the incident. He had suffered an electrical burn to his arm. It required skin graft surgery.

[¶ 4.] After initially preauthorizing his surgery, CNA informed Wells that he was not entitled to any coverage for his injury because he had failed to use a safety device — a GFCI. This device plugs directly into an outlet, and, in turn, an extension cord, and an electrically operated tool can be connected to it. A GFCI detects irregularities (ground fault) in the flow of electrical current. When this happens, the GFCI will break the circuit, immediately stopping the flow of electricity to reduce the hazard of electric shock. Howe claimed that (a) its employees were required to use GFCIs when using any electrical equipment, (b) Wells could have obtained a GFCI upon request, and (c) if he had used the device, the accident would not have occurred.

[¶ 5.] Wells filed a petition for workers’ compensation benefits with the Department of Labor. Howe and CNA answered, affirmatively alleging that the claim was barred by SDCL 62-4-37. During the subsequent hearing, Howe argued that its safety policies required that all its employees use GFCIs when working with any electrical equipment. In support of its position, Howe offered copies of various safety checklists, which Howe interpreted as mandating the use of GFCIs. Howe also showed that Wells was aware of this policy and that GFCIs were available for use by its employees. Finally, Howe presented evidence that it enforced its safety policies.

[¶ 6.] As for the cause of the accident, Greg Lorenzen, Howe’s service manager, testified that had Wells used a GFCI, the accident would not have occurred. Loren-zen explained that his inspection of the accident site did not reveal any other sources of electricity. He also testified that, using a GFCI, he finished the work that Wells had begun and was neither injured nor electrocuted. While Wells offered no other possible cause for the accident, he disputed Lorenzen’s qualifications to offer an opinion that failure to use a GFCI was a proximate cause of the accident.

[f 7.] Following the hearing, the ALJ concluded that SDCL 62-4-37 barred his petition because Wells “intentionally disregarded [Howe’s] safety rule” and Howe “established by a preponderance of the evidence that claimant’s intentional and willful failure to use a safety appliance provided by [Howe] was the proximate cause of [the] injury.”

[¶ 8.] The circuit court reversed, concluding that Howe failed to demonstrate that failure to use a safety appliance proximately caused the injuries. The employer and insurer now appeal, raising the following issue: “Whether the circuit court erred in reversing the Department of Labor’s decision that claimant was barred from receiving worker’s compensation benefits pursuant to SDCL 62-4-37, for engaging in willful misconduct by failing to use a safety appliance?”

Analysis and Decision

[¶ 9.] Under SDCL 1-26-36, we must “give great weight to the findings made and inferences drawn by an agency on questions of fact.” However, when an agency’s decision is “[c]learly erroneous in light of the entire evidence in the record” a reviewing court should reverse. Id. “Even when substantial evidence supports a finding, reviewing courts must consider the evidence as a whole and set it aside if they are definitely and firmly convinced a mistake has been made.” Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 7, 575 N.W.2d 225, 229 (emphasis added). Questions of law, like statutory interpretation, are reviewed de novo. Clausen v. Northern Plains Recycling, 2003 SD 63, ¶ 7, 663 N.W.2d 685, 687; Johnson v. Albertson’s, 2000 SD 47, ¶ 19, 610 N.W.2d 449, 453.

[¶ 10.] The employer and insurer claim that Wells engaged in willful misconduct, and thus, he is precluded from recovery under SDCL 62-4-37. That statute provides:

No compensation shall be allowed for any injury or death due to the employee’s willful misconduct, including intentional self-inflicted injury, intoxication, illegal use of any schedule I or schedule II drug, or willful failure or refusal to use a safety appliance furnished by the employer, or to perform a duty required by statute. The burden of proof under this section shall be on the defendant employer.

SDCL 62-4-37 (emphasis added). Under this statute, the employer has the burden of proving not only that the employee committed “willful misconduct,” but also that the alleged injury was “due to” such willful misconduct. Goebel v. Warner Transp., 2000 SD 79, ¶ 13, 612 N.W.2d 18, 22. A party must lose when it bears the burden of proof but fails to offer probative evidence. Cavender v. Bodily, Inc., 1996 SD 74, ¶ 19, 550 N.W.2d 85, 89. In interpreting the phrase “due to,” this Court has said that it refers to proximate cause. Id. Therefore, in order to prevail, an employer must first show that the employee’s “willful misconduct” was a proximate cause of the injury. Id. A proximate cause is a cause that produces a result in a natural and probable sequence and without which the result would not have occurred. Estate of Gaspar v. Vogt, Brown & Merry, 2003 SD 126, ¶ 6, 670 N.W.2d 918, 921 (citations omitted). This cause need not be the only cause of a result. Id. It may act in combination with other causes to produce a result. Id.

[¶ 11.] The employer and insurer argue that the “mechanics of the accident support the conclusion that [the claimant’s] injury was the proximate result of his failing to use a [GFCI].” In maintaining this proposition, they reason that

[i]t is beyond dispute that the very purpose for using a [GFCI] is to protect from electrocution.... [T]he electric shock occurred after [the claimant] grabbed the sawzall.... Thus, the evidence presented to the Department showed that the only logical explanation is that the living room outlet was the source of the electric shock. (Emphasis added.)

The employer and insurer conclude, “[t]here can be no question that [the claimant’s] failure to use a GFCI, which indisputably protects against the very injury [the claimant] suffered, was a substantial factor in causing his injury.”

[¶ 12.] Crucial to the employer and insurer’s theory that failure to use a GFCI was a proximate cause of the claimant’s injury is whether the device would have prevented the underlying electrical irregularity from harming the claimant. It is undisputed that a GFCI is a device that under certain circumstances prevents an electrical current from injuring a person. But a GFCI will not protect a person from every possibility of electrocution. Thus, in order to prove that the claimant’s failure to use a GFCI was a proximate cause of his injury, it was necessary for the employer and insurer to prove, by a preponderance of the evidence, that under the circumstances a GFCI would have prevented the electrical shock. This they failed to do.

[¶ 13.] The employer and insurer’s sole support for their assertion that the use of a GFCI would have prevented the claimant’s injury is the testimony of Lorenzen, Howe’s service manager. Larry Howe testified that he did not know what underlying event caused the electrocution. Ronald Howe also testified that he did not know what initially happened to cause the electrocution. Nor did Kathleen Haan-Strong, Howe’s safety chairperson, explain the cause of the electrocution. Despite the claimant’s request that Howe hire an electrician to determine the cause of the electrical malfunction, the only “investigation” into the underlying cause of the accident was conducted by Lorenzen.

[¶ 14.] From his investigation, Loren-zen testified that the kitchen outlet and the distribution box were not protected by an internal GFCI. He did not find any other sources of electrical current in the crawl space, and he testified that he was able to complete the job, using a portable GFCI, without being electrocuted. Based on these observations, Lorenzen concluded that the claimant “crossed two power tools together and had himself grounded, I would imagine, on a piece of copper down there or whatever, but that’s how it would have happened.”

[¶ 15.] The employer and insurer reason that because Lorenzen was knowledgeable in the functioning of a GFCI, he was qualified to offer an expert opinion on the cause of the electric shock. Yet, a person who might understand how a piece of electrical equipment functions is not nécessarily qualified to opine on the cause of an electrocution. For the Department to accept Lorenzen’s “expert” opinion on causation, the employer and insurer must have provided some “scientific, technical or other specialized knowledge” to support it. SDCL 19-15-2 (Rule 702). Under this rule, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” This rule has two major requirements. Obviously, the first is that a witness offered to testify on specialized knowledge must be an expert. Although Lorenzen certainly had expertise in using electrical equipment, including GFCIs, the record is devoid of any showing that he was an expert in identifying the causes of an electrical shock. Indeed, we still do not know which electrical outlet malfunctioned or whether either of them malfunctioned. Thus, we cannot know if a GFCI would have been effective.

[¶ 16.] The second requirement of SDCL 19-15-2 (Rule 702) is that expert testimony must be reliable to be admissible. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court concluded that the admissibility of expert testimony is dependant upon a showing of relevance and reliability. Judges have “considerable leeway” in deciding in each case “how to go about determining whether particular expert testimony is reliable.” Kumho, 526 U.S. at 152, 119 S.Ct. 1167. Although the standard for reliability is not high, the goal is to ensure that expert testimony is based on sound methods and valid procedures. Id. at 147, 119 S.Ct. 1167; Weinstein’s Evidence § 702.05[3]. To abide by Dau-bertr-Kumho, the proponent offering expert testimony must show that the expert’s theory or method qualifies as scientific, technical, or specialized knowledge. State v. Guthrie, 2001 SD 61, ¶ 34, 627 N.W.2d 401, 415-16 (citing SDCL 19-15-2 (Rule 702)). One method of meeting this burden is by establishing that there has been adequate empirical proof of the validity of the theory or method. Edward J. Imwinkel-ried, Evidentiary Foundations 287 (4th ed 1998). As the Supreme Court stated, “[t]he focus ... must be solely on principles and methodology, not on the conclusions they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786.

[¶ 17.] Lorenzen’s opinion was unreliable because it could not be substantiated by showing what the electrical fault was that caused the claimant’s electrical shock. Without knowing this, we cannot know if a GFCI would have prevented the claimant’s injury. Lorenzen’s proof was purely anecdotal: he performed the same job using the portable GFCI and did not experience a shock. His opinion on causation was not admissible as expert testimony. SDCL 19-15-2.

[¶ 18.] Alternatively, the employer and insurer argue that Lorenzen’s opinion was at least admissible under SDCL 19-15-1, which allows laypersons to give opinion testimony. However, this Court has repeatedly affirmed that “[e]xpert testimony is required when the subject matter at issue does not fall within the common experience and capability of a lay person to judge.” Goebel, 2000 SD 79, ¶ 32, 612 N.W.2d at 26 (citations omitted). Here, where no source of the electrical current that injured Wells was apparent or identified, expert testimony was necessary.

[¶ 19.] Lastly, the employer and insurer argue that “[cjommon sense and logic clearly support the Department’s factual finding that the use of a GFCI would have prevented [the claimant’s] injury.” Without expert opinion, however, we are not satisfied that no other logical explanation exists on why the electrocution began when Wells grabbed the saw and ended when he kicked at the extension cord. First, neither of these events explains what caused the light to “spark” and then “shock” Wells before he grabbed the saw. Second, Wells testified that the kick did not unplug the extension cord from the wall. Perhaps even more detrimental to their argument, the employer and insurer claim that “Lorenzen completed this particular job himself using the same type of equipment under the same general conditions without being shocked.” “The only difference between [the claimant’s] activities and ... Lorenzen’s activities” they claim, “was ... Lorenzen’s use of a [GFCI] to complete the job.” This assertion leads us to ask, how did Lorenzen complete the job under the same conditions? As explained by Lorenzen, when an irregularity in the flow of electricity is detected by the GFCI, it interrupts the flow of current. Seemingly then, it would be impossible to complete the job using a GFCI. Under identical conditions, the GFCI would have simply shut down the flow of electricity each time Lorenzen grasped the saw. Lorenzen did not testify that this occurred.

[¶ 20.] These unexplained questions leave us with the definite and firm conviction that the Department was clearly erroneous in concluding that the evidence established that failure to use the GFCI was a proximate cause of the claimant’s electric shock. Without knowing what caused the errant flow of electricity, it is impossible to conclude with any reasonable certainty that a GFCI would have prevented the injury.

[¶ 21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Because of the circuit court’s holding on the issue of proximate cause, it did not reach the issue whether the accident involved “willful misconduct” under SDCL 62-4-27. Because we affirm, neither do we address that issue.

      . We emphasize this language because both sides rely on a standard of review no longer in use. In Sopko, we made clear that the "substantial evidence test” was not in accord with the “clearly erroneous” standard. 1998 SD 8, V 7, 575 N.W.2d at 229. Insofar as Lewis v. State Dep't of Transp., 2003 SD 82, 667 N.W.2d 283, and Reetz v. Lutheran Health Systems, 2000 SD 74, 611 N.W.2d 230, state otherwise, they are overruled.

      . SDCL 19-15-1 provides:
      If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
      (1) rationally based on the perception of the witness and
      (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.


source: Caselaw Access Project

author:
GILBERTSON, Chief Justice.
      AMUNDSON, Retired Justice

license: Public Domain

text:
    2004 SD 38
    FT. PIERRE QUALITY CONSTRUCTION, INC., Mid-Century Insurance Co., Plaintiffs and Appellees, v. John ACKLEY, Defendant and Appellant.
    No. 22869.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 12, 2004.
    Decided March 17, 2004.

      Kenneth L. Chleborad, Rapid City, South Dakota, Attorney for plaintiffs and appellees.
    Steven C. Beardsley, Michael K. Sabers of Beardsley, Jensen, and Von Wald Rapid City, South Dakota, Attorneys for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] A circuit court determined that the Department of Labor was obligated to consider and apply Social Security old-age benefits as an offset when calculating future worker’s compensation benefits. This holding reversed a decision of the Department of Labor. We now reverse and reinstate the Department of Labor decision.

FACTS AND PROCEDURE

[¶2.] John Ackley worked for Ft. Pierre Quality Construction (Employer) for thirty-nine years performing concrete work. On February 28, 2002, the Department of Labor (Department) awarded Ack-ley permanent and total disability benefits. Employer did not appeal this decision. After the Department’s decision and pursuant to SDCL 62-7-6, Ackley moved for a partial lump sum payment of such benefits in order to pay his attorney’s fees. In response to this request, Employer claimed that the Department must consider the old-age offset provision contained in SDCL 62-4-7. The Department declined to apply the old-age offset provision in its calculation of a lump sum payment of Ack-ley’s disability benefits.

[¶ 3.] Employer appealed to the circuit court. The circuit court reversed the Department’s decision and determined that the old-age offset provision of SDCL 62-4-7 must be taken into account when computing a lump sum payment pursuant to SDCL 62-7-6. Ackley now appeals and raises the following issue for our review:

Whether the Department of Labor was obligated to account for the Social Security old-age benefit offset provision in SDCL 62-4-7 when it calculated the present value of Ackley’s permanent total disability benefits pursuant to SDCL 62-7-6.

Reversed.

STANDARD OF REVIEW

[¶ 4.] As this case presents a matter of statutory construction, our review is de novo. Martinmaas v. Engelmami, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611. In so reviewing, this Court “must confine itself to the language” expressed in the statute, and the “intent of a statute is determined from what the legislature said, rather than what the courts think it should have said.” Id.

ANALYSIS AND DECISION
[¶ 5.] Whether the Department of Labor was obligated to account for the Social Security old-age benefit offset provision in SDCL 62-4-7 when it calculated the present value of Ackley’s permanent total disability benefits pursuant to SDCL 62-7-6.

[¶ 6.] This case involves the interpretation of SDCL 62-7-6 which provides:

An employer or employee who desires to have any unpaid compensation paid in a lump sum may petition the Department of Labor asking that the compensation be paid in that manner. If, upon proper notice to interested parties and proper showing before the department, it appears in the best interests of the employee that the compensation be paid in lump sum, the secretary of labor may order the commutation of the compensation to an equivalent lump-sum amount. That amount shall equal the total sum of the probable Juture payments capitalized at their present value on the basis of interest calculated at a rate per year set by the department with annual rests in accordance with rules promulgated pursuant to chapter 1-26. If there is an admission or adjudication of permanent total disability, the secretary may order payment of all or part of the unpaid compensation in a lump sum under the following circumstances:
(1) If the employee has exceptional financial need that arose as a result of reduced income due to the injury; or
(2) If necessary to pay the attorney’s fees, costs and expenses approved by the department under § 62-7-36.
If a partial lump sum payment is made, the amount of the weekly benefit shall be reduced by the same percentage that the partial lump sum bears to the total lump sum computation. The remaining weekly benefit is subject to the cost of living allowance provided by § 62-j-7. Any compensation due to beneficiaries under §§ 62-4-12 to 62-4-22, inclusive, may not be paid in a lump sum, except for the remarriage lump sum provided in § 62-4-12.

(Emphasis added).

[¶ 7.] According to the plain language of the statute, the Department must apply the cost of living allowance provision of SDCL 62-4-7 when calculating a lump sum payment pursuant to SDCL 62-7-6. Neither Ackley nor Employer disputes this point. The parties disagree, however, as to whether the Social Security old-age benefit offset provision described in the second paragraph of SDCL 62-4-7 applies. Because SDCL 62-7-6 does not expressly provide for the consideration of old-age benefits, the Department declined to apply the offset in computing the lump sum payment.

[¶ 8.] The circuit court reversed the Department’s decision because it focused upon the language of SDCL 62-7-6 which states the lump sum payment “shall equal the total sum of the probable future payments.” The circuit reasoned that a lump sum payment must equal what Ackley would likely receive in a lifetime disbursement. Thus, because the old-age offset provision in SDCL 62-4-7 would apply to Ackley’s lifetime disbursement, the offset must also apply to the lump sum settlement authorized by SDCL 62-7-6.

[¶ 9.] On appeal, this Court must limit its statutory review to the plain language of SDCL 62-7-6. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d at 611. By its plain language, SDCL 62-7-6 only addresses the cost of living provision of SDCL 62-4-7 and not the old-age offset provision. The circuit court’s reliance on additional language in the statute, however, suggests that SDCL 62-7-6 is somewhat ambiguous. Where legislation is ambiguous, the Court may turn to legislative history in order to ascertain the true intent of a statute. Slama v. Landmann Jungman Hospital, 2002 SD 151, ¶ 7, 654 N.W.2d 826, 828. After a review of the legislative history, we believe the Legislature did not intend for the old-age offset provision of SDCL 62M-7 to apply to lump sum calculation pursuant to SDCL 62-7-6.

[¶ 10.] Prior to July 1, 1994, SDCL 62-7-6 contained language directing the Department to consider SDCL 62-4-7 in order to “determin[e] the present value of the permanent total award.” Until 1993, SDCL 62-4-7 only contained one paragraph detailing the cost of living increase. On July 1, 1993, the Legislature added the second paragraph to SDCL 62-4-7 which contained the old-age offset provision. One year later, the Legislature amended SDCL 62-7-6 by deleting the general reference to SDCL 62-4-7 and adding specific language directing the Department to solely consider the cost of living increase found in the statute’s first paragraph. From this legislative sequence, it appears the Legislature did not intend for the offset provision found in the second paragraph of SDCL 62-4-7 to apply to SDCL 62-7-6. Otherwise, the general reference to SDCL 62-4-7 would have remained.

[¶ 11.] Here, this Court must apply the language of the statute as enacted by the Legislature rather than what “it should have said or might have said.” Slama, 2002 SD 151, ¶ 7, 654 N.W.2d at 828. SDCL 62-7-6 does not specifically address the old-age offset provision found in SDCL 62-4-7. In addition, legislative history suggests the Legislature did not wish the offset provision to apply to lump sum calculations made pursuant to SDCL 62-7-6. Accordingly, we reverse the judgment of the circuit court and reinstate the decision of the Department declining to consider the old-age offset provision in its calculation of the lump sum available to Ackley under SDCL 62-7-6.

[¶ 12.] Reversed.

[¶ 13.] KONENKAMP, and MEIERHENRY, Justices, concur.

[¶ 14.] AMUNDSON, Retired Justice, concurs in result.

[¶ 15.] SABERS and ZINTER, Justices, deeming themselves disqualified, did not participate.

AMUNDSON, Retired Justice

(concurring in result).

[¶ 16.] There is no disputing that SDCL 62-4-7, included in the chapter in the code that establishes the amount of compensation for injury, provides for a setoff when an injured employee receives both workers’ compensation benefits and social security benefits. There is also no question that the legislature deleted the reference to 62-4-7 from SDCL 62-7-6, which is set forth in the chapter dealing with the claims procedure for a lump sum settlement after the benefits paid monthly have been established under SDCL 62-4-7. Therefore, it leads the Court to its conclusion that there is no setoff when awarding a lump sum payment of the injured employee’s attorney’s fees. There is no question that by paying these attorney’s fees, the injured employee will receive less compensation for his injury in the future. Also, the amount of his workers’ compensation benefits could be reduced again in the future by the setoff contained in SDCL 62M-7.

[¶ 17.] There is settled precedent in this state that a lump sum award is the exception and not the general rule. In Enger v. FMC, 2000 SD 48, ¶¶ 11-12, 609 N.W.2d 132, 134-135, this Court stated:

In regard to this mixed factual and legal issue, it is important to note that the general rule in South Dakota does not favor lump sum awards. As stated by this Court, “the allowance of a lump-sum award is the exception and not the general rule.” Wulff v. Swanson, 69 S.D. 539, 543, 12 N.W.2d 553, 555 (1944). Larson explains the rationale behind this policy:
Since compensation is a segment of a total income insurance system, it ordinarily does its share of the job only if it can be depended on to supply periodic income benefits replacing a portion of lost earnings. If a ... disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the workman is right back where he would have been if workmen’s compensation had never existed.
8 Larson’s Worker’s Compensation Law, § 82.71 (1999).
Despite this general rule against lump sum awards, Larson points out that the remedy can work in certain circumstances:
The only solution lies in conscientious administration, with unrelenting insistence that lump-summing be restricted to those exceptional cases in which it can be demonstrated that the purpose of the Act will best be served by a lump sum award.

Id.

[¶ 18.] Would it not be inequitable to deny a person receiving benefits a lump sum settlement before the setoff in SDCL 62-4-7 is triggered? If it does not apply to determining any partial lump sum payment for attorney’s fees, why would it not be an exceptional circumstance or in the best interest of the injured employee to receive a lump sum payment and thereby avoid this setoff. It appears to this member of the Court that the legislature has amended a claims procedure statute that seems to mandate a petition by a permanently injured employee for a lump sum settlement. To do otherwise results in reduced benefits in the future when the offset of SDCL 62-4-7 is applied to his or her monthly benefits. Also, this seems to be in direct opposition to the above general rule.

[¶ 19.] While I concur in result based on the legislature’s amendment of SDCL 62-7-6 to remove reference to SDCL 62-4-7, this result is contrary to the intent and purpose of the workers’ compensation statutes. This Court has said on numerous occasions that the workers’ compensation statutes are to be liberally construed in favor of the injured employee. The purpose of workers’ compensation is to provide for employees who have lost their ability to earn because of an employment related accident, casualty, or disease. The holding of this case is inconsistent because by not applying the offset to partial lump sum settlements to pay attorney’s fees, the employee ultimately receives less compensation. Therefore, I concur in result.

      . SDCL 62-4-7 provides:
      In case of total disability as defined in subdivision 62-4-6(23), compensation shall be paid at the rate provided by § 62-4-3 for life with an annual increase in the amount of the benefit allowance for each year commencing on the July first that is at least twelve months following the date on which the benefit was first payable equal to one hundred percent of the annual percentage change in the consumer price index for urban wage earners and clerical workers as computed by the United States department of labor for the prior calendar year, not to exceed a three percent increase compounded annually.
      For injuries occurring on or after July 1, 1993, if an employee is entitled to compensation under this section and is also receiving old-age insurance benefits under section 202 of the Social Security Act (42 U.S.C., § 402), the compensation payable shall be a sum equal to one hundred fifty percent of the compensation payable under § 62-4-7 less the old-age insurance benefit under § 202 of the Social Security Act (42 U.S.C., § 402). However, benefits payable by the employer may not exceed the amount payable pursuant to § 62-4-7. This section does not apply to any person who is entitled to old-age insurance benefits at the time of the injury.

      . We also note that Ackley, fifty-nine years old at the time of the Department’s decision, is not currently eligible to receive old-age benefits. Nor can we be certain that he will ever receive such benefits.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. LeAnn Faye WERTS, Appellant.
    No. 01-1813.
    Supreme Court of Iowa.
    Feb. 25, 2004.
    As Amended on Denial of Rehearing April 5, 2004.

      Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble & Cook, L.L.P., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Frank Severino and Susan Cox, Assistant County Attorneys, for appellee.
   CARTER, Justice.

Defendant, LeAnn Werts, appeals from a conviction of first-degree murder in regard to the death of a twenty-one-month-old child for whom she provided day care. The court of appeals reversed the conviction based on its conclusion that prior bad-acts evidence should not have been allowed. For reasons hereinafter stated, we agree with the conclusion of the court of appeals. The decision of the court of appeals is affirmed, and the judgment of the district court is reversed and remanded.

Defendant operated a day care center out of her home. She provided regular day care for Ben Vorwerk between April and November of 2000. In November 2000 Ben was twenty-one months old. On November 16, at approximately 1 p.m., defendant called 911 from her Altoona home and reported that Ben had.stopped breathing. When paramedics arrived, defendant was giving Ben CPR on the floor. Emergency personnel observed that the child was comatose, his skin was ashen, and his lips were blue. When questioned by paramedics and later by police, defendant stated that Ben had choked on his lunch of macaroni and cheese and green beans.

Ben was taken to Blank Children’s Hospital in critical condition. Upon .arrival doctors observed no brain activity, abnormal hemorrhaging in the back of his eyes, and several bruises on his forehead, chin, and left shoulder. A swatch of hair on his left scalp looked as if it had been pulled out. Ben was declared brain-dead at 10:07 a.m. on November 17, 2000.

During the autopsy that ensued, the medical examiner found no signs of choking. The brain was very swollen, and there were multiple impact injuries inside Ben’s scalp. The medical examiner concluded that Ben had received a fatal injury-in the nature of blunt-force trauma.

The medical examiner consulted with the pediatric neurosurgeon with regard to cause of death. The consulting physician did not believe that Ben had choked and concluded his injuries were caused by his head hitting something very hard just a few minutes before the paramedics arrived.

The State’s evidence at trial was basically that which has been recounted above. The defense produced an expert who testified that the fatal injury was from a massive head trauma that occurred several hours or even days before the paramedics arrived. The jury found defendant guilty of first-degree murder. Other circumstances of note will be reviewed in our discussion of the legal issues presented.

I. The Court of Appeals Decision.

The court of appeals’ reversal of defendant’s conviction arose from the following circumstances. Following defendant’s testimony in chief, she was questioned on cross-examination concerning a conversation that evening with Ben’s parents at the hospital where Ben was taken.

Q. And then after you had a chance to talk to the doctor, you looked over at Jeff and Laura [Ben’s parents], didn’t you? A. I don’t recall.
Q. And you admitted to them that the relationship that you had with them was not the greatest, didn’t you? A. Yes.
Q. And you told them that you would never hurt Ben; is that right? A. That’s true.

Based on the foregoing testimony by defendant, the State sought permission to call a rebuttal witness “for impeachment purposes.” This impeachment was to consist of the testimony of a neighbor who once saw the defendant pick up Ben and slam him down on his bottom. Counsel for defendant objected to the State’s intended rebuttal evidence, and in an out-of-court colloquy, the district court determined that this evidence could be admitted for impeachment purposes. In the same ruling, the court declared that the State could not use this one instance of specific conduct as a basis for an opinion by the witness as to defendant’s propensity for violence. Following the court’s ruling, the prosecutor called Sandra Earns, defendant’s neighbor, who gave the following testimony:

Q. We’ve heard testimony in this case that the defendant stated that she would never hurt Ben. On the day that you were standing in your toy room and looking over at the defendant’s house, did you see something that is in contradiction to what the defendant said? A. Yes, I did.
Q. Can you tell the jury what it is that you saw? A. I saw LeAnn walk up to Ben, they were standing on the front sidewalk there, and she picked him up by his arm, raised him up, and slammed him down onto his bottom and then just walked away from him.
Q. What was Ben’s response to this? A. He started crying.
Q. Did it appear that Ben was in pain after he was picked up by the arm and dropped down? A. He was crying fiercely. Yeah, I’m assuming he was.

The court of appeals held that it was prejudicial error to admit Earns’ testimony. It noted that defendant had not testified that she had never hurt Ben, but rather that she had told his parents “that [she] would never hurt Ben.” The court of appeals concluded that Werts’ testimony did not pertain to what defendant had told Ben’s parents and thus did not contradict that to which defendant had testified. The court of appeals rejected the State’s claim that the evidence was independently admissible as relevant to an issue at trial on the ground that this had not been the purpose for which the evidence was offered at trial.

We agree with the court of appeals conclusion that Karns’ testimony was improperly admitted as impeachment evidence. Our conclusion in this regard is not based entirely on the fact that the testimony sought to be impeached concerned a conversation rather than prior acts of defendant. It is also based on the fact that what transpired had all the attributes of a setup. In cross-examining defendant, the prosecutor asked a question that, on its face, was bound to elicit a response favorable to defendant so that he could use otherwise inadmissible evidence to impeach the self-serving response. This type of bootstrapping bears a strong resemblance to that which this court condemned in State v. Turecek, 456 N.W.2d 219 (Iowa 1990). In Turecek we stated:

The State is not entitled ... to place a witness on the stand who is expected to give unfavorable testimony and then, in the guise of impeachment, offer evidence which is otherwise inadmissible. To permit such bootstrapping frustrates the intended application of the exclusionary rules which render such evidence inadmissible on the State’s case in chief.

Turecek, 456 N.W.2d at 225. In the present case, it had been established in a pretrial ruling that bad-acts evidence of the type involved here was not to be admitted as evidence. The fact that this ruling came in response to a motion filed by the State does not limit its binding effect to the extent that it applied to evidence that the State wished to present.

We cannot agree with the court of appeals’ rejection out of hand of the claim that the evidence was independently admissible on the basis that the State had not urged other grounds for admissibility when it was offered at trial. We recognized in DeVoss v. State, 648 N.W.2d 56, 62-63 (Iowa 2002), that evidentiary rulings may be upheld on a theory not urged at trial. We indicated that this rule was based on “the realization that on retrial the error could easily be corrected.” DeVoss, 648 N.W.2d at 62.

Our statements in DeVoss do not mean, however, that an appellate court must always accept a proffered alternative basis for admissibility that is advanced for the first time on appeal. The State now urges that, even if this evidence was not properly admitted for impeachment purposes, it was relevant to show malice. The admissibility of bad-acts evidence, even if relevant to some issue in the case, is subject to a balancing of the probative value of the evidence against its prejudicial effect as required by Iowa Rule of Evidence 5.403. Because the district court considered the evidence for impeachment only, it was not specifically required to make the balancing test that is mandated for substantive proof under the rules of evidence. There is no indication that the court did so in the present case. It therefore falls on this court to engage in such balancing in order to determine whether the State’s claim for an independent basis for admissibility should be accepted. We are satisfied that the prejudicial effect of this evidence outweighs its probative value. Consequently, we affirm the decision of the court of appeals that this evidence should have been excluded. We also affirm the decision of the court of appeals that the prejudicial effect of the evidence warranted reversal.

II. Jury Instructions.

Defendant claims ineffective assistance of counsel based on failure to object to jury instructions 21, 25, and 29. Defendant contended and the court of appeals agreed that the instructions improperly permitted the jury to find that Ben’s death occurred from “shaking.” While we agree that the instructions should have referred to “shaking that produced a blunt-force trauma,” that omission in the instructions did not independently provide a basis for reversal. This issue may be clarified on retrial.

III. Improper Questioning and Comment by Prosecuting Attorney.

Defendant complains about the conduct of the assistant county attorney prosecuting the case in several particulars. Among these were the following.

Dr. Jan Leestma testified for defendant that Ben’s head trauma had occurred a considerable period of time prior to the 911 call. In cross-examining Dr. Leestma, the assistant county attorney asked the following questions:

Q. When we talk about the times that you did speak and didn’t listen, but spoke, that one of those occasions was when you went to the public defender’s conference earlier this year; isn’t that true? A. I was invited to speak at the annual meeting in Sioux Falls — Sioux City. Sorry. And I gave a lecture there.
Q. That was in front of a bunch of defense lawyers, wasn’t it? A. That’s the organization, defense attorneys. I don’t know who else was in the audience.
Q. That was the last time that you gave a presentation, was before a bunch of defense lawyers in the State of Iowa; isn’t that true? A. I wouldn’t call them a bunch — it’s an organization. And that’s a pejorative comment. I gave a lecture there I was invited. I did it. I have no apologies to make.

The cross-examination continued to demean Dr. Leestma as a defendant’s expert witness suggesting that he had only formed his conclusions concerning Ben’s trauma after giving a presentation “in front of all the defense lawyers here in the State of Iowa.” The witness was asked:

Q. You are routinely hired by the defense in cases where children are allegedly victims of child abuse and you testify on behalf of the perpetrator; isn’t that true?

In a later question, the assistant county attorney implied that Dr. Leestma had been hired to testify forty-six times for people who were charged with killing children.

We have recognized that

[u]nfairly questioning [a witness] simply to make the defendant look bad in front of the jury regardless of the answer given is not consistent with the prosecutor’s primary obligation to seek justice, not simply a conviction.

State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003). The American Bar Association Criminal Justice Standards provide:

The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate' the witness unnecessarily.

ABA Standards for Criminal Justice: Prosecution Function 3-5.7(a) (3d ed.1993).

It is apparent that in the present case the prosecutor injected the issue of defendant’s expert witness associating with defense lawyers and representing and testifying for perpetrators charged with killing children as an improper effort to demean the witness. We condemn that act.

In his cross-examination of defendant, the assistant county attorney asked:

Q. You didn’t treat him as your own child? A. I tried to help Ben, yes.
Q. You never sent Ben a sympathy card? A. I sent him something, yes.
Q. Did you ever send his parents a sympathy card to their home? A. No.
Q. You never went back to the hospital after Thursday the 16th to visit them or Ben? A. No.
Q. You knew he was alive on the 16th, didn’t you? A. That’s Thursday, the 16th?
Q. Yes. You knew he was alive didn’t you? A. I went to the hospital.
Q. On the 17th you knew he was alive didn’t you? A. Yes.
Q. You didn’t visit him did you? A. No.
Q. On the 18th you never went over and visited his parents, did you? A. No.
Q. You never attended his funeral did you? A. No.
Q. You have never been to that little boy’s gravesite, have you? A. No.
Q. The truth is that you knocked the life out of Ben and that’s why you were afraid you were going to be arrested; isn’t that true? A. No, that’s not true.
Q. The truth is you robbed Jeff and Laura of their only son, didn’t you? A. No I did not.
Q. You robbed that little boy of his life because he didn’t fit within your schedule; isn’t that true? A. No, it’s not.

The foregoing questioning was clearly seeking to play upon the passions of the jury. Such questions violate a prosecutor’s duty to keep the record free of undue denunciations or inflammatory utterances. Graves, 668 N.W.2d at 874.

As a final claim of prosecutorial misconduct, defendant asserts that during closing arguments the assistant county attorney held a baby book in front of the jury and stated that Ben’s baby book will never be written. He then described several child activities that he asserted Ben would never get to perform, and for each such activity, he tore a page out of the book and dropped it on the floor until there were ten pages lying in front of the jury box. Unfortunately, for reasons that are not explained, no record was made of the final argument, so we may not confirm that these acts occurred. Notably, however, the State has not attempted to deny that this conduct took place. If it occurred, this conduct was an improper attempt to appeal to the passion and prejudice of the jury and should be condemned. See ABA Standards for Criminal Justice: Prosecution Function 3 — 5.8(c) (prosecutor should not make arguments calculated to appeal to the prejudices of the jury). The type of prosecutorial misconduct that we have identified should be avoided on retrial of defendant.

IV. Other Issues.

Other matters argued by defendant include alleged trial court errors for limiting cross-examination of the State’s witnesses about journal articles, refusing to permit cross-examination of the medical examiner concerning his failure of a board certification test and refusing to allow defendant to offer specific instances of good conduct. We are satisfied that these issues were decided correctly by the court of appeals.

We have considered all issues presented and conclude that the decision of the court of appeals should be affirmed. The judgment of the district court is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

      . This balancing test is only specifically required for impeachment involving prior criminal convictions. See Iowa R. Evid. 5.609.


author: LARSON, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Alan N. WAPLES, Respondent.
    No. 03-1968.
    Supreme Court of Iowa.
    April 7, 2004.
    Rehearing Denied April 23, 2004.
    Norman G. Bastemeyer and Mark Schouten, Des Moines, for complainant.
    ■ Aan N. Waples of Wittkamp & Waples, Burlington, pro se.
   LARSON, Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint with our Grievance Commission charging Aan N. Waples with several ethical violations in connection with his handling of an estate and a custody case. The commission found several violations and recommended a thirty-day suspension with several conditions placed on any reinstatement. We affirm the findings of the violations but suspend the respondent’s license for a minimum of six months and place conditions on any reinstatement.

I. The Paul C. Jones Estate.

Paul C. Jones died on July 25, 1996. Jones’s sons, Gregory Jones and Jeff Jones, residents of California, were appointed coexecutors. The executors designated Waples as the attorney for the estate, and Waples opened the estate on July 29, 1996. The estate included several farms, farm products, and other assets with a value of approximately $1,300,000.

On October 7, 1996, Waples wrote to the executors and requested that they send attorney fees of $33,914.41 by overnight mail. The letter stated “I have completed the Estate Tax Return and the Inheritance Tax Return.” This, as it developed, was not true. The executors mailed the requested fee to Waples, who had not earned the fees under our probate rules and who had not obtained an order of the court approving their payment. Waples deposited the estate check in his regular office account rather than in a trust account, holding out $914.01 in cash. The court order allowing fees was not signed by a district judge for several days. At the time the court approved payment, the respondent had not completed the services required before receipt of payment.

The federal estate tax return was prepared at some time showing it was signed by Waples on April 15, 1997. However, it was not sent to the executors for their signature until June 9, 1997, more than a month after the nine-month filing deadline. The return and payment of the tax were not remitted to the Internal Revenue Service until July 9, 1997. This resulted in penalties for late payment and late filing. The estate tax return was selected for audit, and on February 11, 1998, an auditor for the Internal Revenue Service wrote to Waples requesting documents and information for the purpose of the audit.

On July 1,1998, the clerk of court issued a notice under Iowa Code section 633.32 advising the executors and Waples that they were delinquent in filing an interlocutory report due within eighteen months of the second publication of notice to creditors. On July 10, 1998, Waples filed an interlocutory report stating that the tax clearances should be received by October 31, 1998, and stating that the final report had already been prepared.

On August 3, 1998, Greg Jones contacted Waples about the penalties assessed by the Iowa Department of Revenue, and Wa-ples replied that “this was the first time I had seen anything of these notices” and contended that the returns had been forwarded to the executors for payment within the time allowed by law.

On January 1, 1999, the IRS examiner wrote to Waples and stated that he had been waiting for eleven months to receive the documents he had requested earlier and complained that his repeated attempts to contact Waples by letter and phone had been unsuccessful. The auditor threatened that, if the required information was not provided by January 15, 1999, he would be “forced to pursue enforcement procedures provided for under federal law.” The auditor mailed copies to the executors. At about this point, the executors began to contact the IRS auditor directly, reported that they were dissatisfied with Waples’ representation of the estate and stated that “[w]e feel as though we have been left in the dark regarding much of the legal process.” The auditor wrote to Waples advising him that there was additional federal estate tax due in the amount of $211,814.59 as well as $43,895.89 in penalties for failure to file and $1374.04 in penalties for failure to pay.

On November 3, 1999, the clerk of court sent a delinquency notice for the estate’s failure to file a final report. In November 1999 the executors hired a law firm in Cedar Rapids to complete the estate work. Waples withdrew as attorney for the estate, which, by that time, had been open for more than three years. Despite that fact, no distributions had been made to the beneficiaries.

The Cedar Rapids firm completed the estate proceedings, filed amended tax returns, established a testamentary trust provided by the decedent’s will, and distributed estate assets in accordance with the will. The estate paid the successor attorneys $25,000 in attorney fees. According to the commission’s finding, the estate, when it was finally closed on August 28, 2002, had incurred substantial additional costs, including penalties and interest, because of Waples’ mishandling of the estate.

II. The Michelle Olson Custody Matter.

In June 2002 Waples was-hired by Michelle Olson, who was the mother of a son born to her and Jessy Lee Hulett. The father filed a petition seeking joint custody, primary physical care, and temporary physical care of the child who was then in the custody of his mother. The court set a hearing on the father’s petition for July 1, 2002. Waples filed a motion to dismiss the father’s petition for failure to file supporting affidavits three days in advance of the hearing as required by a local rule. The court continued the hearing to allow time for the filing of those affidavits and reset the hearing for July 15, 2002. Under the local rule, Waples’ client was also required to file affidavits prior to the hearing, but Waples failed to do so. He contends that he was relying on his legal assistant and his client-mother to prepare and file the affidavits.

III. Violations.

The respondent’s handling of the Jones estate violated several provisions of our Code of Professional Responsibility. His collection of fees without completion of the required work and without court approval violated Iowa Court Rule 7.2(4), which requires, before payment of the first half of the fees, that the attorney have prepared federal and state death-tax returns. The remainder of the fees may be received when the final report is filed and costs have been paid. Iowa Ct. R. 7.2(4). However, as of the date the respondent obtained the entire fee, the final report had not been filed; in fact, most of the work in the estate remained to be done. Some requirements were not satisfied until the replacement attorneys became involved. Waples’ lack of attention to tax matters resulted in substantial penalties and interest. His dilatory handling of the estate also delayed distribution of the estate assets. As of December 1999, when the substitute attorneys took over the estate, no distributions had been made.

We conclude that Waples’ handling of the estate violated DR 1-102(A)(5) (a lawyer shall not “[e]ngage in conduct that is prejudicial to the administration of justice”) and DR 1-102(A)(6) (a lawyer shall not engage “in any other conduct that adversely reflects on the [lawyer’s] fitness to practice law”). The respondent’s receipt of fees without court order and without earning them at the time they were paid violates DR 2-106(A). Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Fleming, 602 N.W.2d 340, 342 (Iowa 1999).

In the Olson matter, Waples’ failure to timely file the affidavits resulting in their ultimately being stricken deprived the court of important information it should have had in this custody matter regarding the father’s potential for violence. Even more important, Waples’ failure to file affidavits conceivably weighed in the court’s decision on the merits of the case, as shown by its statement that it was “quite concerned that [Michelle Olson’s] apparent inability to be responsible and follow through with her obligations in this legal cause.” The fault was not Ms. Olson’s, but was due to Waples’ mishandling of the case.

We agree with the commission that Wa-ples’ conduct in the Olson case violated DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 6-101(A)(2) (lawyer shall not handle a legal matter without adequate preparation), and DR 6-101(A)(3) (neglect of client’s legal matters).

IV. Sanctions.

The commission recommends a thirty-day suspension, and we give that recommendation respectful consideration. However, in view of Waples’ glaring failure in his handling of the Jones estate and his inattention to the Olson matter, we believe a more severe sanction is warranted.

While each disciplinary case is different and must be judged on its own facts, Comm. on Prof'l Ethics & Conduct v. Bitter, 279 N.W.2d 521, 524 (Iowa 1979), prior cases shed light on the question of the appropriate sanctions to be imposed. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Jay, 606 N.W.2d 1 (Iowa 2000), an attorney who mishandled an estate, resulting in losses to the estate, and who had received a prior suspension and a public reprimand, was suspended for a minimum of one year. In Committee on Professional Ethics & Conduct v. Coddington, 360 N.W.2d 823 (Iowa 1985), the respondent had received fees that were excessive and received without court authorization. We suspended his license for a minimum of two years. Id. at 826. In Committee on Professional Ethics & Conduct v. Martin, 375 N.W.2d 235 (Iowa 1985), the attorney had “neglected and failed to carry out his duty as an attorney” in four estates. Id. at 236. We suspended his license for a minimum of one year. Id. at 239. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Fleming the attorney had neglected matters and took fees without authorization. We suspended his license for a minimum of six months. 602 N.W.2d at 342. Iowa Supreme Court Board of Professional Ethics & Conduct v. Pracht, 656 N.W.2d 123, 124-25 (Iowa 2003), involved an attorney’s neglect of an estate and failure to abide by our previous order that he refrain from practicing probate law unless he abided by certain restrictions we had placed on him. We suspended his license for a minimum of one year and barred him thereafter from handling probate matters until further order of this court. Id. at 126.

In view of the respondent’s receipt of fees before they were earned and without court approval, his failure to timely comply with the requirements of federal and Iowa death-tax laws, his failure to make a timely distribution in the estate, and the attendant costs to the estate in late filing and late payment of taxes, together with the additional interest to the estate, the fees paid to his replacement attorneys, and his neglect of the Olson custody matter, we conclude the sanction should be more severe than that recommended by the commission.

We order the suspension of Alan Waples license for an indefinite period of time without any possibility of reinstatement for six months. This suspension applies to all facets of the practice of law. Iowa Ct. R. 35.12(3). On any application for reinstatement, the respondent shall establish that he has not practiced law during the suspension and that he has in all other respects complied with the requirements of Court Rule 35.21. He shall also establish that he has reimbursed the estate, or its beneficiaries, for all the attorney fees received by him, with interest at the legal rate, from the date of their payment. In addition, following any reinstatement, the respondent shall not handle any probate matters unless he associates with a competent probate attorney approved by the district court. See Pracht, 656 N.W.2d at 126. Costs of this action are taxed to the respondent pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.


author: STREET, Justice.

text:
    STATE of Iowa, Appellee, v. Edward Ochoa TEJEDA, Appellant.
    No. 03-0782.
    Supreme Court of Iowa.
    April 7, 2004.

      Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael T. Hunter, Assistant County Attorney, for appellee.
   STREET, Justice.

A jury convicted Edward Tejeda of willful injury for clobbering a young man in the head with a baseball bat. Prior 'to trial, Tejeda sent the court two letters alleging a breakdown in communication with his attorney. Tejeda claims the district court should have inquired into this potential problem. We agree, and hold trial courts have a duty to inquire into alleged breakdowns in communication between defendants and their attorneys. Because the record before us is inadequate for resolution on direct appeal, however, we preserve for postconviction proceedings the issue of whether this breakdown amounted to a denial of Tejeda’s Sixth Amendment right to counsel.

Tejeda also challenges the district court’s refusal to admit hearsay evidence of another man’s confession to the crime, and claims his trial counsel was ineffective for failing to object to a jury instruction which lacked evidentiary support in the record. We reject these two claims, and affirm.

I. Facts and Prior Proceedings

Late one night in June 2002, a large number of young people assembled on West Riverside Drive in Des Moines. West Riverside Drive is, by all accounts, a popular place for youth to cruise, socialize, play music, and drink alcohol. Among the congregation gathered at West Riverside Drive on this summer night were Edward Tejeda and his ex-roommate,. Lisa Woods. Although Tejeda and Woods arrived separately, trouble soon ensued. Before sunrise, another young man, Matthew Heman, would nearly lose his life.

According to the prosecution’s witnesses, Tejeda, wielding a baseball bat and accompanied by several friends, confronted Woods about some of his personal property, which she had taken from their former residence. Tejeda argued with Woods about the property. One of Tejeda’s female comrades then whacked Woods over the head with a forty-ounce beer bottle. As a crowd gathered, a stunned Woods looked up and saw Tejeda and another male standing before her, each holding baseball bats. Woods cried out for help.

Woods’ friend, Matthew Heman, came to her aid. As Heman arrived, Tejeda raised his bat. Heman stepped in front of Woods, and Tejeda swung the bat, hitting Heman on the right side of the head. Heman fell to the ground, his skull fractured and bleeding. Tejeda and his companions fled.

Doctors were able to save Heman’s life. He spent ten days in the hospital recovering from his injuries, which required several metal plates and stitches. Despite continued therapy, Heman has suffered memory problems, personality changes, and difficulty processing information.

Tejeda was charged with willful injury, a felony. See Iowa Code § 708.4 (2001). The county attorney further alleged Teje-da committed the crime while in possession of a dangerous weapon, an aggravating factor in sentencing proceedings. See id. § 902.7.

In December 2002, Tejeda was tried. The jury could not reach a unanimous verdict, and the judge declared a mistrial. A second trial was scheduled for February 17, 2003.

On February 3, Tejeda wrote a letter to Judge Joel Novak. Tejeda told the judge his attorney wanted him to plead guilty and, when he refused, his attorney got upset and left the room. Tejeda professed his innocence, and then wrote:

But with my lawyer beside me I can’t win. I am asking you to please remove my counsal [sic].... I found out new evidence in my case and I’m scarred [sic] to even bring it to my lawyer’s attention. I think he’ll tell the prosacutor [sic] before we even get a chance to use it in trial.

On February 5, Judge Eliza Ovrom ordered counsel for both parties to review Tejeda’s request and file “any response thereto ... within 10 days. If a hearing is requested, counsel should contact [the court attendant].” , A copy of this order was mailed to Tejeda.

In a letter filed on February 13, Tejeda again wrote Judge Novak. Tejeda repeated his desire for new counsel. Tejeda said his attorney had again requested he plead guilty. Believing his attorney was “not going to put in his best intrest [sic],” Tejeda asked the court to appoint substitute counsel. Tejeda believed Jesse Macro, his lawyer in another case, would “represent me to his fullest.”

The record contains no other, direct references .to Tejeda’s requests. The parties did not file responses to Judge Ovrom’s order, and there is no record of a hearing. Nor is there an order denying Tejeda’s request.

At most, there is circumstantial evidence in the court file the court saw Tejeda’s requests. Tejeda’s second letter .was stapled to several other documents in the file. The items in this collection of documents were filed within minutes of each other on February 13. These other documents included: (1) a waiver of speedy trial, signed by the defendant and his attorney; (2) a motion to continue, signed by Tejeda’s attorney; and-(3) an order resetting trial to March 10. In the motion to continue, Tejeda’s attorney stated that on February 7 he had learned of a new potential material witness, Richard Adair. Tejeda’s attorney requested additional time to interview Adair.

Tejeda’s second jury trial was held on March 10. At the outset of trial and outside the presence of the jury, Tejeda’s attorney, in the presence of the defendant, told the court Tejeda had rejected an offer of a plea from the State. He then stated “And that certainly doesn’t mean that we won’t represent him zealously. We are ready to proceed today.” The defendant remained silent during these statements.

During trial, Tejeda’s new witness, Adair, testified he saw someone other than Tejeda attack Heman. Adair did not know Tejeda at the time of the crime, but had only come to know him months later while both were incarcerated. According to Adair, Tejeda told Adair his story (apparently in late January or early February) and upon hearing it Adair remembered he had been at the crime scene, and knew Tejeda didn’t strike Heman. Tejeda asked Adair if he would testify on his behalf, and Adair agreed. Adair told his story to the defense attorney on February 12. Several other witnesses contradicted Adair’s testimony, however, and Tejeda was found guilty.

On appeal, Tejeda raises three issues for our review: (1) Did the district court deny his right to counsel in failing to adequately inquire into his allegations of a breakdown in the attorney-client relationship?; (2) Did the trial court abuse its discretion in excluding a report of another man’s confession to the crime as unreliable hearsay?; and (3) Was. Tejeda denied effective assistance of counsel when his attorney failed to object to a jury instruction for which there was no evidence in the record?

II. Duty of Inquiry and a Breakdown in Communication

Tejeda argues the district court abridged his right to counsel when it failed to inquire after he alleged a breakdown in communication with his attorney and requested substitute counsel. Tejeda points to two letters, in which he (1) stated his attorney was trying to persuade him to plead guilty; (2) told the court he was withholding evidence from his attorney; and (3) requested substitute counsel. In the absence of evidence of an adequate judicial response to his letters — such as holding a hearing in which the court would inquire into the nature of his complaints— Tejeda requests we remand his case to the district court for an inquiry into whether there was an unconstitutional breakdown in communication with his attorney. If the district court determines there was such a breakdown, Tejeda asks for a new trial.

The State contends Tejeda failed to preserve error, and, in the alternative, maintains a hearing was not warranted because Tejeda’s letters only show his unhappiness with his attorney’s recommendation that he accept a plea bargain.

A.Standard of Review

The parties disagree over the applicable standard of review. The State posits we should review for an abuse of discretion, because it is the standard applied to a district court’s denial of a request for substitute counsel. See State v. Martin, 608 N.W.2d 445, 449 (Iowa 2000). In this case, however, the court never ruled on Tejeda’s request; Tejeda’s claim thus poses a constitutional question: Does a court have a duty to inquire sua sponte once a defendant alleges a breakdown in communication? Our standard of review, therefore, is de novo. See State v. Thompson, 597 N.W.2d 779, 782 (Iowa 1999) (review of constitutional claims is de novo).

B. Error Preservation

Before turning to the merits, we briefly consider and reject the State’s error preservation claim. The State alleges Tejeda failed to preserve error because he never received a ruling from the court.

We disagree. Tejeda wrote two letters to the court in support of his request and the question in this case is whether the court had a duty to inquire sua sponte once Tejeda complained of his attorney’s, actions. Although error was not preserved in the traditional sense, Tejeda’s two letters sufficiently alerted the trial court of a problem for us to consider the issue. It would be unrealistic to expect much more from a defendant not trained in the law.

C. Duty of Inquiry

The Sixth Amendment to the United States Constitution mandates

In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.

U.S. Const, amend. VI. This provision, incorporated into the Fourteenth Amendment, is binding upon the states. U.S. Const, amend. XIV; see Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562, 566 (1975); State v. Watson, 620 N.W.2d 233, 235 (Iowa 2001). It does not, however, “guarantee a ‘meaningful relationship between an accused and his counsel.’ ” State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001) (quoting Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610, 621 (1983)).

Where a defendant represented by a court-appointed attorney requests the court appoint substitute counsel, sufficient cause must be shown to justify replacement. Id. at 778-79. “Sufficient cause includes a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.” Id. at 779 (citations and internal quotation omitted). The decision to grant a motion for substitute counsel is a matter within the trial court’s discretion. Id. at 778. Last-minute requests for substitute counsel, insofar as they constitute a delay tactic, are disfavored. Id. at 779.

In State v. Lopez, we discussed the adequacy of, a trial judge’s inquiry into a defendant’s allegation of a breakdown in communication ' with his lawyer. Id. at 778-781. In Lopez, the State did not dispute the existence of a judicial duty to inquire, and therefore we did not explicitly recognize one. See id. Instead, we simply noted that, according to federal authority, there is a duty of inquiry once a defendant requests substitute counsel on account of an alleged breakdown in communication. Id. at 780 (citing United States v. Webster, 84 F.3d 1056, 1062 n. 2 (8th Cir.1996); Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir.2000); Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000); United States v. Davidson, 195 F.3d 402, 407-08 (8th Cir.1999)). We ultimately determined the judicial inquiry conducted in Lopez satisfied the federal standard, and held the district court did not abuse its discretion in denying the defendant’s request for substitute counsel. Lopez, 633 N.W.2d at 781.

Implicit in Lopez, however, was the recognition of a duty to inquire; otherwise our examination of the adequacy of the inquiry makes little sense. In light of Lopez and the federal authority cited therein, we therefore now explicitly recognize that there is a duty of inquiry once a defendant requests substitute counsel on account of an alleged breakdown in communication. See id. at 778-781 (citations omitted); State v. Irvine, 547 N.W.2d 177, 180 (S.D.1996) (‘When a defendant alleges the existence of a dispute leading to a destruction of communication and a breakdown in the attorney-client relationship, the judge is obligated to inquire whether such allegations are . true.” (Citations omitted.)); William W. Schwarzer, Dealing With Incompetent Counsel — The Trial Judge’s Role, 93 Harv. L.Rev. 633, 652 (1980) (“If at any time during the proceeding the defendant makes a seemingly substantial complaint about the adequacy of counsel ... the judge should conduct an inquiry and make findings on whether bona fide grounds exist for a change of counsel.”); cf. Watson, 620 N.W.2d at 238 (trial court has a duty of inquiry when it knows or reasonably should know of an actual conflict of interest on the part of defense counsel). As the United States Court of Appeals for the Tenth Circuit recently remarked, an inquiry is necessary because

“Even if a defendant’s counsel is competent, a serious breakdown in communication can result in an inadequate defense.” A defendant who cannot communicate with his attorney cannot assist his attorney with preparation of his case, including suggesting potential witnesses to call and trial strategies to pursue, discussing whether the defendant himself should testify, and helping formulate other bread-and-butter decisions that can constitute the core of a successful defense. A trial court’s failure to appoint new counsel when faced with a total breakdown in communication may thus constitute a denial of counsel in violation of the Sixth Amendment.

United States v. Lott, 310 F.3d 1231, 1250 (10th Cir.2002), cert. denied, 538 U.S. 936, 123 S.Ct. 1612, 155 L.Ed.2d 336 (2003), and cert. denied, 538 U.S. 991, 123 S.Ct. 1812, 155 L.Ed.2d 689 (2003) (quoting United States v. Musa, 220 F.3d 1096, 1102 (9th Cir.2000)).

In Lopez, we found the trial court conducted an adequate inquiry where the presiding judge, when apprised of a potential breakdown in communication, personally asked the defendant at a hearing to explain the nature of the communication problem. 633 N.W.2d at 781. The defendant, however, failed to give the judge “any reason why he believed communication between his lawyer and him had broken down.” Id. We determined “[t]he basis of Lopez’s complaints had nothing to do with defense counsel’s representation.” Id. As a result, we held the trial court conducted an adequate inquiry, and therefore did not abuse its discretion in denying the defendant’s request for substitute counsel. Id.

In this case, the court did not inquire into this problem. Unlike Lopez, there is nothing suggesting the court determined the nature of the alleged breakdown in communication. The court merely invited counsel to respond to Tejeda’s request for substitute counsel. Because the court did not address Tejeda personally, counsel did not respond, and no other measure was undertaken, the nature of Tejeda’s allegations was left undisclosed. We simply have no way to determine whether a complete breakdown in communication occurred, in violation of Tejeda’s Sixth Amendment right to counsel. See id. at 779 (sufficient cause for substitution of counsel includes a “complete breakdown in communication between the attorney and the defendant”).

Although there may be some evidence in the record which may indicate the court determined there was not a complete breakdown in communication in violation of Tejeda’s Sixth Amendment right to counsel, it would be misplaced for us to engage in such speculation. The record itself is completely silent on whether there was a complete breakdown in communication, and if so, its causes or duration. State ex rel. C.C., 48 P.3d 244, 249 (Utah Ct.App.2002) (“[T]he court’s failure to sufficiently explore Appellant’s complaints in this case leaves us without the information needed to evaluate whether she was entitled to substitute counsel either as a matter of sound discretion or as a matter of law.”); Schell, 218 F.3d at 1027 (noting, in habeas context, that “because the state trial court failed to make an appropriate inquiry, the record does not reflect how far the [attorney-client] relationship ... had deteriorated, or whether [the defendant] himself had sabotaged the relationship or failed to make reasonable efforts on his end to develop the relationship ... [because no court has examined his claims] we must take his- allegations at face value”). In a case such as this, an evidentiary or in camera hearing — although not required in every case every time a defendant alleges a breakdown in communication — would have' been appropriate. Schell, 218 F.3d at 1027 (“Evidentiary hearings are particularly appropriate when claims raise facts that occurred out of the courtroom and off the record.”); see, e.g., Lott, 310 F.3d at 1249 (remanding for a hearing).

This is not to say courts must conduct a hearing every time a dissatisfied defendant lodges a complaint about his attorney. In this case the defendant did more than simply ask for counsel of his choice; Tejeda indicated the relationship with his attorney had deteriorated so far that he was withholding evidence from his attorney. Cf. State v. Williams, 285 N.W.2d 248, 254 (Iowa 1979) (defendant does not have an absolute right to lawyer of own choosing). Having received a col-orable complaint, the.district court should have inquired into whether there was “a complete breakdown in communication between the attorney and the defendant” to the extent Tejeda’s Sixth Amendment right to counsel was violated. Lopez, 633 N.W.2d at 779.

The types of communication breakdowns that constitute “total breakdowns” defy easy definition.... As a general matter ... to prove a total breakdown in communication, a defendant must put forth evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible.

Lott, 310 F.3d at 1249.

D. Remedy

Tejeda requests we remand his case for a hearing to determine whether there was a complete breakdown in the attorney-client relationship. See, e.g., Lott, 310 F.3d at 1250 (remanding for a hearing); C.C., 48 P.3d at 249 (same); cf. Mickens v. Taylor, 535 U.S. 162, 170-75, 122 S.Ct. 1237, 1242-46, 152 L.Ed.2d 291, 303-07 (2002) (remand proper remedy for trial court’s failure to inquire after defendant’s counsel did not object to conflict of interest). But see State v. Vessey, 967 P.2d 960, 964 n. 4 (Utah Ct.App.1998) (courts are divided on appropriate remedy); 3 Wayne R. LaFave et al., Criminal Procedure § 11.4(b) n. 22, at 554-55 (2d ed.1999). In support of this argument, Tejeda cites Watson, our recent Sixth Amendment conflict-of-interest case. In Watson, we stated “[i]f the record on appeal shows only the possibility of a conflict [of interest], then the ease must be remanded for a determination as to whether an actual conflict existed.... ” 620 N.W.2d at 238 (but reversing and remanding for new trial because trial court had a duty to inquire into conflict of which it knew or should have known). The case at bar, however, involves a pre-trial breakdown in communication, not a conflict of interest. Unlike a conflict of interest, a pre-trial breakdown in communication may resolve itself before trial. To simply remand for a hearing to determine whether there was a complete breakdown in communication before trial, then, would accomplish very little; any pre-trial violation of the defendant’s Sixth Amendment right to counsel may not have had any adverse effect on his trial defense, if timely ameliorative measures were taken. By contrast, the actual conflict of interest in Watson was permanent, and, once identified, constituted a denial of the defendant’s constitutional right to counsel. See id. at 240-41. In this case, a more expansive hearing, which takes into account the health of the attorney-client relationship at trial, is appropriate.

The record is inadequate for us to resolve this issue on direct appeal. In his letters to the trial court, Tejeda never alleged a complete breakdown in communication. Nor is there any other evidence in the record to support such a finding. Instead, we only have Tejeda’s bare allegation that he had some communication problems with his attorney. As previously indicated, this allegation triggered a duty to inquire on the part of the trial court, because it might indicate a greater problem was afoot.

Because the record is inadequate for us to rule on direct appeal, we preserve Teje-da’s claim for postconviction relief. Cf. State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986) (where no record made in the district court, “we pass the issue in this direct appeal and reserve it for post-conviction proceedings.”) Postconviction relief is particularly appropriate here, because the defendant claims (1) his “conviction ... was in violation of the Constitution of the United States” and (2) “[t]here exists evidence of material facts, not previously presented and heard, that required vacation of the conviction ... in the interest of justice.” Iowa Code § 822.2(1), (4). Although decided in the ineffective-assistance-of-counsel context, our discussion in State v. Coil is particularly instructive with respect to Tejeda’s Sixth Amendment claim:

We have said we should not decide a claim such as is made here without an adequate factual basis to support it. There are cases when incompetency is so glaring that we are justified in saying so upon an examination of the record. Ordinarily, we should be slow to do so on what amounts to an ex parte hearing
This holding is without prejudice to [the defendant’s] right to raise this issue by application for postconviction relief, where a full evidentiary hearing may be had and where counsel will have an opportunity to respond to defendant’s charges.

264 N.W.2d 293, 296 (Iowa 1978) (citations omitted). Given the scant record before us and the availability of an adequate remedy in postconviction, we affirm the judgment of conviction without adjudicating whether Tejeda was denied his Sixth Amendment right to counsel. Instead, we preserve this issue for postconviction proceedings, in which an adequate hearing may be held and a record developed. Cf. State v. O’Connell, 275 N.W.2d 197, 206 (Iowa 1979) (“We find no basis on the record before us to hold defendant’s trial counsel did not perform within the range of normal competence. We determine we should affirm the judgment but without adjudicating the issue.... Defendant’s right to raise that issue by postconviction proceedings ... is reserved.”) (citations omitted).

III. Exclusion of Hearsay Evidence

In his second assignment of error, Teje-da claims the district court erred in refusing to permit his ex-girlfriend, Leticia Lopez, to testify that she heard another man, Saloman Ayala, admit to the crime. Lopez was prepared to testify that Ayala, while in an excited state, confessed to the crime in an alleyway some ten to thirty minutes after Heman was attacked. Ayala’s alleged confession came in response to Lopez’s question “Who did it?”. The district court excluded the evidence as unreliable hearsay.

A. Standard of Review

Where a party challenges the district courts exclusion of evidence as hearsay, appellate review is for an abuse of discretion. State v. Forsyth, 547 N.W.2d 833, 839 (Iowa Ct.App.1996).

B. The Merits

A hearsay statement “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Iowa' R. Evid. 5.801(c). Hearsay is generally inadmissible. Id. 5.802. The “excited utterance” doctrine is one recognized exception to the general rule. Id. 5.803(2). An excited utterance is defined as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. The rationale behind the exception is that statements made under the stress of excitement are less likely to involve deception than if made upon reflection or deliberation. See Jay M. Zitter, Annotation, When is Hearsay Statement “Excited Utterance” Admissible Under Rule 803(2) of Federal Rules of Evidence, 155 A.L.R. Fed. 583, 583 (1999) (excited utterance exception “presupposes that the declarant blurted out a remark while under the influence of the startling event, so that it is unlikely that the remark was the product of conscious thought or reflection, but was probably accurate”); see State v. Mateer, 383 N.W.2d 533, 535 (Iowa 1986).

The application of the exclusion lies largely within the discretion of the trial court, which should consider (1) the time lapse between the event and the statement, (2) the extent to which questioning elicited the' statements that otherwise would not have been volunteered, (3) the age and condition of the declar-ant, (4) the characteristics of the event being described, and (5) the subject matter of the statement.

State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). Although neither is conclusive, in this case the first two Atwood factors weigh heavily against the evidence’s admission: (1) Ayala’s statement was made in another location up to thirty minutes after the incident; and (2) the statement was made in response to a direct question. We therefore conclude the district court did not abuse its discretion in refusing to admit Lopez’s testimony as an excited utterance. The factors tend to show the statement was not made as the spontaneous reaction to a startling event, but rather the product of reflection or deliberation in response to a question. See Mateer, 383 N.W.2d at 535.

IV. Ineffective Assistance of Counsel

Tejeda claims his trial counsel was ineffective for failing to object to a jury instruction regarding admissions. The instruction read:

Evidence has been offered to show the Defendant made statements at an earlier time and place while not under oath. These statements are called admissions.
You may consider an admission for any purpose.

Tejeda points out none of his admissions were presented to the jury during trial. As a result, Tejeda claims, the instruction is inherently confusing and may have wrongly led the jurors to believe he made an admission.

A. Standard of Review

Where a defendant alleges ineffective assistance of counsel, our standard of, review is de novo. State v. Liddell, 672 N.W.2d 805, 809. (Iowa 2003). While generally preserved for postconviction relief, where presented with an adequate record, the merits of the defendant’s claim may be resolved on direct appeal. Id. In this case, we deem the record sufficient.

B. The Merits

For his ineffective-assistanee-of-counsel claim to succeed, Tejeda must prove by a preponderance of the evidence that “(1) his counsel failed to perform an essential duty, and (2) prejudice resulted.” Id. Because proof of both prongs of this test is required, should Tejeda fail to prove prejudice we need not consider whether his trial counsel failed to perform an essential duty. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). In this context, “prejudice must give rise to a reasonable probability the outcome of the proceeding would have been different had counsel not erred.” Id. at 684.

Assuming, for the sake of argument, that no admissions were presented to the jury, it is clear Tejeda did not suffer prejudice, and for this reason we reject his ineffective-assistance-of-counsel claim. It is true that we have said that “an instruction submitting an issue unsubstantiated by evidence is generally prejudicial.” State v. Mays, 204 N.W.2d 862, 865 (Iowa 1973) (error to submit to jury aiding-and-abetting instruction where no proof anyone other than the defendant was involved in the crime); see also State v. Smith, 129 Iowa 709, 717, 106 N.W. 187, 190 (1906) (“the giving of a jury instruction which has no basis in the evidence is reversible error”). Unlike the case at bar, however, Mays and Smith were decided on direct appeal, and not in the ineffective-assistance-of-counsel context. In the ineffective-assistance-of-counsel context,

the facial appeal of [the defendant’s argument] is diminished in most situations where practical considerations make it unlikely that the inclusion of a particular element in the marshaling instruction would have produced any difference in the verdict of the jury.

State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990) (quoting State v. Propps, 376 N.W.2d 619, 623 (Iowa 1985)). In this case submission of this superfluous jury instruction did not raise an issue which “give[s] rise to a reasonable probability the outcome of the proceeding would have been different had counsel not erred.” See Spies, 672 N.W.2d at 799. Jury “instructions must be considered as a whole,” and here another instruction made clear that it was the jury’s duty to decide the facts of the case. Cf. Noland v. Kyar, 228 Iowa 1006, 1011, 292 N.W. 810, 813 (1940). The jury, as arbiter of the facts, should have disregarded the court’s suggestion that the prosecution had offered evidence to show Tejeda had made an admission, and we think that such is the inevitable conclusion to be drawn about the jury in this case. There is no suggestion the instruction contradicts another instruction or misstates the law; Tejeda only alleges submission of this superfluous instruction was confusing. His claims about the effect on the jury are speculative, and, we think, without merit. The prosecution presented overwhelming evidence to show Tejeda was Heman’s assailant. Tejeda has failed to show prejudice, and for this reason we reject his ineffective-assistance-of-eounsel claim.

Y. Conclusion

The district court had a duty to inquire into a potential breakdown in communication between Tejeda and his trial counsel. We preserve the issue of whether there was a complete breakdown in communication for postconviction proceedings. We affirm the district court’s evidentiary ruling. The court did not abuse its discretion in excluding Tejeda’s ex-girlfriend’s testimony about another man’s confession to the crime as unreliable hearsay. Lastly, we reject Tejeda’s ineffective-assistance-of-counsel claim, because he fails to show he was prejudiced when his trial attorney did not object to a jury instruction which lacked evidentiary support in the record. In this respect, we also affirm.

AFFIRMED.