Opinion
No. 2-1030 / 02-0060
Filed March 26, 2003
Appeal from the Iowa District Court for Linn County, William L. Thomas, Judge.
In this postconviction relief action, the petitioner, James Wendell Hall, claims his trial and appellate counsel were ineffective in failing to challenge several of the jury instructions given in the trial that resulted in his conviction of first degree murder. AFFIRMED.
Michael Lanigan, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Denver Dillard, County Attorney, and Todd Tripp, Assistant County Attorney, for appellee.
Considered by Habhab, Snell, and Brown, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
In this postconviction relief action, the petitioner, James Wendell Hall, claims his trial and appellate counsel were ineffective in failing to challenge several of the jury instructions given in the trial that resulted in his conviction of first-degree murder. We have considered each of the claims. We find no error and affirm.
I. Background facts and proceedings.
The night of March 19, 1992, Susan Hajek was found dead at her home of manual strangulation. Hall, who had previously had a sexual relationship with Hajek, admitted being at her home twice that night. The State believed he had been there a third time and charged him with first-degree murder.
The State alleged both premeditated murder, Iowa Code section 707.2(1) (1991), and felony murder, Iowa Code section 707.2(2). A jury found him guilty of murder in the first degree by a general verdict. Hall's direct appeal challenged the sufficiency of the evidence to support the verdict. His conviction was affirmed by the court of appeals. State v. Hall, No. 93-1027 (Iowa Ct.App. Nov. 28, 1994). He filed a petition for postconviction relief and counsel was appointed to represent him. Following trial the district court rejected each of his ineffective counsel challenges and this appeal followed.
Hall now alleges his trial counsel and appellate counsel were ineffective in failing to challenge several facets of the jury instructions. He claims (1) the definition of premeditated murder was erroneous; (2) the term "participating" should have been defined; (3) an erroneous definition of assault with intent to commit sexual abuse was given; (4) lesser included offense instructions were omitted; (5) the instructions failed to require a causal relationship between the underlying felony and the death of the victim; (6) use of the general verdict form was error; and (7) Hall was prejudiced by one or more of the court's errors.
II. Standard of review.
We review postconviction relief proceedings that allege ineffective assistance of trial or appellate counsel de novo. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998). To succeed in this postconviction action, Hall must demonstrate by a preponderance of the evidence his counsel, whether trial or appellate, (1) failed to perform an essential duty; and (2) Hall experienced prejudice as a result of counsel's performance. Irving v State, 533 N.W.2d 538, 540 (Iowa 1995).
To establish the first element of the test, he must overcome the presumption that the counsel was competent and demonstrate that, when considering the totality of the circumstances, the counsel's performance was not within the normal range of competency. In order to demonstrate prejudice, [Hall] must show counsel's failure worked to [his] actual and substantial disadvantage so that a reasonable probability exists that but for the counsel's error, the result of the proceeding would have been different.
Id.(internal citations omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).
III. Error preservation.
Initially, the State alleges Hall has failed to preserve error on his postconviction claims as required by Iowa Code section 822.8. It is certainly true Hall did not raise the issues he now asserts in his direct appeal, nor did he seek to preserve these issues for a postconviction action. However, ineffective assistance of appellate counsel may excuse ordinary error preservation requirements. Jasper v. State, 477 N.W.2d 852, 855 n. 1 (Iowa 1991); Kane v. State, 436 N.W.2d 624, 627 (Iowa 1989). Hall sufficiently alerted the trial court and this court to his ineffective counsel claims. We will review the issues raised as they inhere in the ineffective assistance of counsel claims. State v. Atwood, 342 N.W.2d 474, 475 (Iowa 1984).
In addition, the State challenges Hall's failure to argue or to cite authority here bearing on the ineffective assistance claims. Hall claims error in certain instructions, but makes no attempt to show that counsel was ineffective for failing to raise those issues. Reasonable competency of counsel does not require counsel to urge every possible objection to jury instructions. State v. Carberry, 501 N.W.2d 473, 477 (Iowa 1993). Nevertheless, in light of our view as to the propriety of the challenged instructions, we will consider these issues.
IV. Discussion.
Jury instructions are reviewed for errors at law. State v. Mitchell, 568 N.W.2d 493, 501 (Iowa 1997). We note the instructions challenged by Hall closely follow the uniform Iowa Criminal Jury Instructions. We are reluctant to disapprove those instructions. State v. Jeffries, 313 N.W.2d 508, 509 (1976). In fact, trial courts are encouraged to utilize these instructions. Mitchell, 568 N.W.2d at 501. Jury instructions are to be read and construed together, not as individual isolated statements of the applicable law. Clinton Land Co. v. M/S Associates, Inc., 340 N.W.2d 232, 234 (Iowa 1983). Further, if the subject matter urged by Hall is adequately covered by the instructions when considered altogether, no particular words need be used. State v. Veal, 564 N.W.2d 797, 812 (Iowa 1997). Words in instructions need not be defined if "they are of ordinary usage and are generally understood." State v. Thompson, 570 N.W.2d 765, 768 (Iowa 1997). It is elementary that counsel does not render ineffective assistance by failing to object to jury instructions which adequately and properly state the law. See, e.g., State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998) (holding counsel is not ineffective in failing to urge a meritless issue).
A. Instruction on premeditated murder. Hall asserts error in the jury instructions defining premeditation, deliberation and malice aforethought. His claim is that they did not follow the dictates of State v. Hofer, 238 Iowa 820, 28 N.W.2d 475 (1947). His specific objection is that the instructions failed to include the concept that there must be a causal connection between premeditation, deliberation and malice aforethought, and the resulting criminal act. In other words, premeditation, deliberation and malice aforethought must not only exist before the act, but also continue to exist at the time of the act.
This objection to the malice aforethought instruction was considered and rejected in State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993), and again in State v. Thompson, 570 N.W.2d 765, 769-70 (Iowa 1997). When this instruction is considered together with instruction 20, the marshalling instruction, which required a finding Hall acted with malice aforethought, the jury was fully and adequately advised that Hall must have possessed that mental state both before and at the time of the criminal act.
Jury instruction 23 read in relevant part "`Malice aforethought' is a fixed purpose or design to do some physical harm to another which exists before the act is committed. It does not have to exist for any particular length of time." This instruction is from I Iowa Criminal Jury Instructions 700.7.
Hall's objection to the premeditation and deliberation instruction is without merit by the same analysis. The court defined those terms in instruction 21. The marshalling instruction again required a finding that Hall " actedwillfully, deliberately, premeditatedly and with a specific intent to kill Susan Hajek." (emphasis added). Use of the verb "acted" in the marshalling instruction clearly advises the jury they must find Hall had this mental status at the time of the commission of the crime. This language is the functional equivalent of the language used in Hoferthat Hall urges is necessary to adequately advise the jury. In Hofer "deliberate" is defined as meaning "the actwas the result of a purpose formed after weighing the considerations for and against the doing of the act." Hofer, 238 Iowa at 836, 28 N.W.2d at 483 (emphasis added). "Premeditate" was defined in Hofer as meaning "the act was thought of beforehand and done in pursuance of a prior intention or plan." Id. (emphasis added). There was no error in these instructions.
B. Definition of "participating." Hall objects to the failure of the jury instructions to define the term "participating." The term was used in the alternative charge of felony murder. A person who kills another while participating in a forcible felony is guilty of first-degree murder. Iowa Code § 707.2. Instruction 20 required the State to prove Hall committed premeditated murder or that he "was participating in the offense of Assault with Intent to Commit Sexual Abuse." As noted, it is not necessary that jury instructions define a term the meaning of which is commonly understood. This same challenge was made in Thongvanh v. State, 494 N.W.2d 679 (Iowa 1993). The court rejected that contention, stating "[a] definition of the term `participation" as used in the instruction `while participating in a robbery,' is not necessary. The term `participating' is a term of common usage and readily understandable." Thongvanh, 494 N.W.2d at 684. But see, State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996) (stating it is important to define "participating" in felony murder context).
It is true, as Hall points out, that "participating" is defined by statute. Iowa Code § 702.13. However, the statutory definition is more expansive than the ordinary meaning of the term. We do not believe the failure to include the statutory definition could possibly have been detrimental to Hall.
"A person is ` participating in a public offense,' during part or the entire period commencing with the first act done directly toward the commission of the offense and for the purpose of committing that offense, and terminating when the person has been arrested or has withdrawn from the scene of the intended crime and has eluded pursuers, if any there be. A person is ` participating in a public offense'during this period whether the person is successful or unsuccessful in committing the offense."
Iowa Code § 702.13.
C. Malice inference. "A person who kills another person with malice aforethought either express or implied commits murder." Iowa Code § 707.1. Malice may be inferred from the commission of a felony that results in death. State v. Oliver, 341 N.W.2d 744, 747 (Iowa 1983); State v. Escobedo, 573 N.W.2d 271, 280 (Iowa Ct.App. 1997) (malice aforethought may be implicit and, in felony murder charge, it may be inferred from commission of underlying felony resulting in death).
In instruction 24 the court instructed the jury:
"Malice may be inferred from the commission of Assault With Intent to Commit Sexual Abuse which results in death." Hall claims this misdefines the underlying felony in the felony murder alternative because there is no crime in Iowa Code section 709.11 of assault with intent to commit sexual abuse resulting in death. He then claims the instruction allows the jury to start with the result — the death — and work back to the felonious conduct. This, he claims, removes the issue of causation from the jury.
We think Hall's argument misconstrues the court's instructions. We agree there is no crime denominated assault with intent to commit sexual abuse resulting in death. However, assault with the intent to commit sexual abuse is a crime. Iowa Code § 709.11. It is a class "C" felony if serious injury results, id., which also makes it a forcible felony. Iowa Code § 702.11(1). It is not debatable that death is a serious injury. Iowa Code § 702.18(b)(1) (serious injury is a bodily injury which creates a substantial risk of death); State v. Rhode, 503 N.W.2d 27, 40 (Iowa Ct.App. 1993) ("An injury which is life threatening, such as an injury which does in fact cause death, is by definition a `serious injury.'"). Instruction 24 requires the jury find two distinct elements exist before malice can be inferred. First, that Hall committed assault with intent to commit sexual abuse, and, second, that death ensued as a result. This is precisely the forcible felony proscribed by Iowa Code section 709.11.
For the same reasons, the jury is not reasoning backward from the result to the felonious conduct. Under the marshalling instruction the jury is required to separately find both the felonious conduct and the death. There is no error associated with instruction 24.
D. Lesser-included offense instructions. Hall takes issue with counsel for not excepting to the trial court's failure to submit to the jury the misdemeanor offense of assault with intent to commit sexual abuse where no injury results. The no-injury alternative assault with intent to commit sexual abuse is an aggravated misdemeanor under Iowa Code section 709.11, and thus would not qualify as the underlying forcible felony in the felony murder alternative. Hall claims even if there was sexual abuse, the jury could have found no injury resulted from that act, and it was error to not allow the jury that choice.
In the trial court's instruction 20 respecting the felony murder alternative, the court told the jury that Hall could be convicted of first-degree murder if Hall was "participating in the offense of Assault With Intent to Commit Sexual Abuse." Instruction 26 then advised the jury that a person "commits the crime of Assault With Intent to Commit Sexual Abuse when that person assaults another with the specific intent to commit a sex act resulting in serious injury to the victim." A sex act and assault were defined in other instructions.
It is important to remember Hall was not charged with, nor tried for, assault with the intent to commit sexual abuse. The State was not required to prove Hall committed the offense of assault with the intent to commit sexual abuse, nor must it have proved all of the elements of that crime. State v. Liggins, 557 N.W.2d 263, 268 (Iowa 1996). The State needed only to prove Hall participated in that offense. Id. The underlying felony, assault with the intent to commit sexual abuse, is not a lesser-included offense of murder. State v. Ruesga, 619 N.W.2d 377, 382-83 (Iowa 2000); State v. Walters, 426 N.W.2d 136, 141 (Iowa 1988) (holding felony underlying felony murder charge is not a lesser included offense of felony murder). Therefore it was not incumbent on the State to prove, or the court to instruct on, any offenses which might, in turn, be lesser included offenses of assault with intent to commit sexual abuse. State v. Aswegan, 331 N.W.2d 93, 97-98 (Iowa 1983) (holding it is not appropriate to submit included offenses of arson, the underlying felony in the murder felony charge). When murder is charged under both the premeditated murder and the felony murder alternatives of Iowa Code section 707.2, the court should only submit lesser included offenses under the premeditated murder alternative. Aswegan, 331 N.W.2d at 98. This principle was followed and reiterated in Steinkuehler v. State, 507 N.W.2d 716 (Iowa Ct.App. 1993). There we held "counsel was not ineffective for failing to argue in the trial court if felony-murder was to be submitted to the jury, then the lesser-included offenses of the underlying felony of willful injury also should have been submitted." Id.at 724.
Under the felony murder alternative, the instructions properly required the State prove Hall had participated in the forcible felony of assault with intent to commit sexual abuse resulting in serious injury. As we have seen, the State was not required to prove any other offenses which may have been included offenses, or lesser degrees, of assault with the intent to commit sexual abuse. It would not have been appropriate for the court to instruct on an offense which was not designated by the State as the underlying offense, such as assault with the intent to commit sexual abuse resulting in no injury, as urged by Hall, even if that was an included offense of the crime that was designated by the State. No error can be attributed to trial or appellate counsel in this respect.
E. Causal relationship between forcible felony and death of victim. The complaint here is that the instructions do not require a causal relationship between the underlying felony in the felony murder alternative and the resulting homicide. However, our law does not require such a relationship. Conner v. State, 362 N.W.2d 449, 453 (Iowa 1985). "All that is required is that the murder and the accompanying felony be part of the same transaction or, in other words, that the murder be committed within the `res gestae' of the commission of the felony, without any causal or strict incidental relationship between those crimes." Gavin v. State, 425 N.W.2d 673, 677 (Iowa Ct.App. 1988).
We think the instructions in this case adequately answered Hall's complaint. The marshalling instruction, instruction 20, sets out the elements of first-degree murder. The jury must find each of the elements in that instruction was proved by the State beyond a reasonable doubt. Element one required the State to prove that "[o]n or about the 20th day of March 1992, the Defendant strangled Susan Hajek." Element two required proof that "Susan Hajek died as a result of being strangled." Element four required a finding that "[t]he Defendant . . . . was participatingin the offense of Assault With Intent to Commit Sexual Abuse." (emphasis added). We think the requirement that the defendant "was participating" sufficiently conveys that the act of participating in the underlying felony must take place as part of the same transaction as the act causing Hajek's death.
In the same assignment of error, Hall refers to the seemingly unrelated challenge that instruction 28 defining a "sex act" was deficient in that it did not require that the act be nonconsensual. However, he does not cite any authority for this proposition, nor does he argue it in his brief as required by Iowa Rule of Appellate Procedure 6.14(1)( c). State v. Keopasaeuth, 645 N.W.2d 637, 641 (Iowa 2002) (waiver of issue by not complying with rule 6.14(1)( c)). Although it appears Hall does not wish to pursue this complaint, we nevertheless find it is without merit. A guilty verdict under the felony murder alternative includes the finding Hall committed an assault that resulted in serious injury. The nonconsensual nature of the act inheres in this finding.
F. Verdict form. This assignment of error claims the use of the general verdict form was erroneous. The verdict did not indicate whether the jury found Hall guilty under the charge of premeditated murder, Iowa Code section 707.2(1), or the charge of felony murder, Iowa Code section 707.2(2), or both. However, our law is clear that as long as each of the alternative ways of committing the same crime submitted to the jury is supported by substantial evidence, "the jury need not have been unanimous as to the mode of commission of the crime as long as it was unanimous as to the commission of the crime." State v. Draper, 457 N.W.2d 606, 609 (Iowa 1990). Our supreme court has approved the use of a general verdict where first degree murder was submitted to the jury under both the premeditated murder and the felony murder alternative. State v. Williams, 285 N.W.2d 248, 269-70 (Iowa 1979). In Gavin, 425 N.W.2d at 678, our court approved a general guilty verdict of first degree murder where four separate alternatives were submitted to the jury, including premeditated murder and felony murder. The court reiterated that if there is substantial evidence in the record to support each alternative and the alternative modes are not repugnant to one another, there is no need for unanimity on the particular means of committing the crime. Id.
In this case, on Hall's direct appeal of his conviction the court of appeals determined there was sufficient evidence to support the submission of both alternatives to the jury. Hall does not claim the two alternatives were repugnant, nor do we find them to be so.
Hall's specific challenge in this assignment is based on State v. Martens, 569 N.W.2d 482, 485 (Iowa 1997). There the court held it is error to submit multiple alternatives under a general verdict if one of the alternatives contains legal error. We have previously found there was no legal error in the instructions on either the premeditated murder or felony murder alternative, therefore the Martenscase has no application here. Trial counsel was not ineffective for failing to object to the general verdict.
G. Prejudice. Hall also urges the postconviction trial court committed error in deciding that there was no prejudice to the defendant even if one or more of the instructions complained of were erroneous. Finding no error in the instructions we find it unnecessary to decide the prejudice issue, but affirm the trial court in all other respects.