Opinion
No. 3-436 / 02-1543
Filed September 10, 2003
Appeal from the Iowa District Court forScott County, John A. Nahra, Judge.
Brent Clayton Moore, Sr. appeals the district court order denying his application for postconviction relief. REVERSED.
Brian Farrell, DeKalb, Illinois, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Brent Clayton Moore, Sr. appeals from a district court order denying his application for postconviction relief. He contends his trial counsel was ineffective for failing to object to a jury instruction containing an erroneous statement of law. We reverse.
I. Background Facts Proceedings
On March 4, 1997, Moore, confronted an acquaintance, Daniel Bowers, at Bowers's apartment and demanded money. When Bowers told Moore that he could not give him any money because he was broke, Moore, became angry, held a knife to Bowers's throat and threatened to kill him. Bowers then told Moore, "I will cash a check for you at Eagle's." Bowers believed that going to Eagle's was a way out of the situation. Bowers and Moore then drove to Eagle's in Bowers's car. While Bowers was endorsing a check at the service counter he wrote, "call the police" above his signature and slid the check to the clerk. Moore fled the store before police arrived. As a result of these events, the State charged Moore with robbery in the first degree and kidnapping in the second degree.
The case proceeded to trial before the Honorable Edward de Silva. On July 8, 1998, a jury returned verdicts finding Moore guilty of the lesser-included offenses of third-degree kidnapping and second-degree robbery. This court affirmed Moore's convictions on direct appeal, but remanded for resentencing because the district court did not give reasons for imposing consecutive sentences. As part of his direct appeal, Moore claimed he was denied effective assistance of trial counsel citing his counsel's failure to object to a jury instruction. We preserved the issue of ineffective assistance of counsel for possible postconviction proceedings.
State v. Moore, No. 1999-258, 1999 WL 1020495 (Iowa Ct.App. 1999).
Moore filed an application for postconviction relief. Among other things, he renewed his claim that trial counsel provided ineffective assistance by failing to object to a jury instruction which advised the jury of the requirements of "confinement" in a kidnapping case. Moore claimed that instead of using the word "kidnapping" in the first full sentence of instruction number 16, the court should have used the word "robbery." He also notes that the sixth sentence of the same instruction should have referred to "robbery" instead of "kidnapping."
The trial court gave the following instruction defining confinement or removal and explaining the incidental rule, based on Iowa Criminal Jury instruction 1000.5:
Jury Instruction Number 16: Confinement or removal requires more than what is included in the commission of the crime of kidnapping. A person is "confined" when his freedom to move about is substantially restricted by force, threat or deception. The person may be confined either in the place where the restriction began or in a place to which he has been removed. No minimum time of confinement or distance of removal is required. It must be more than slight. The confinement or removal must have significance apart from the kidnapping. In determining whether confinement or removal exists, you may consider whether: 1. The risk of harm to Daniel Bowers was increased. 2. The risk of detection was reduced. 3. Escape was made easier.
Following trial, the postconviction court found instruction number 16 was flawed, but concluded that Moore, "failed to carry his burden regarding prejudice in this case" since he failed to "prove that the result would have been any different if Uniform Instruction 1000.5 would have been given as he now proposes." The court also reviewed Moore's other claims and found that he failed to carry his burden of proof in establishing any grounds upon which to grant his application for postconviction relief. As a result, the court denied Moore's application for postconviction relief. Moore appeals from the court's refusal to reverse his conviction for kidnapping in the third degree. His conviction for robbery in the second degree is not at issue in this appeal.
II. Scope of Review
Generally, an appeal from the denial of an application for postconviction relief is reviewed for errors of law. Harpster v. State, 569 N.W.2d 594, 596 (Iowa 1997). However, if the applicant raises constitutional issues, we review "in light of the totality of the circumstances and the record upon which the postconviction court's ruling was made." Id. (quoting Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994)). This is the equivalent to a de novo review. Id. (citing Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980)). Our review is de novo because Moore alleges a denial of his constitutional right to effective assistance of counsel. See State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999); Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. The Merits
Moore must demonstrate two elements to succeed on his claim of ineffective assistance: (1) counsel failed to perform an essential duty; and (2) this failure resulted in prejudice. Westeen, 591 N.W.2d at 207. In proving the first prong, the postconviction applicant faces a strong presumption that the performance of counsel falls within a wide range of reasonable professional assistance. See State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995) (citing Strickland v. Washington, 466 U.S. 668, 689-90). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong of the test is satisfied if a reasonable probability exists that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
Moore is correct in asserting jury instruction number 16 was erroneous. A correct instruction would have advised the jury that "Confinement or removal requires more that what is included in the commission of the crime of robbery." It would also have stated that confinement or removal "must be more that slight" and "must have significance apart from the robbery." The State concedes the instruction given to the jury is not a correct statement of the law. While testifying at the postconviction hearing, Moore's trial counsel acknowledged the jury instruction was wrong and could recall no tactical or strategic reason for his failure to object to the flawed instruction.
A defendant has the right to representation that falls within a normal range of competency. State v. Hopkins, 576 N.W.2d 374, 379 (Iowa 1998). Competency includes familiarity with the current state of the law. Id. The failure to recognize an erroneous instruction and preserve error breaches an essential duty. Id. at 379-80. One of Moore's main contentions was that any confinement in his case was wholly incidental to the central criminal activity of robbery. The incorrect instruction failed to advise the jury of the correct requirements of confinement. The record reveals no tactical reason for failing to object to this instruction. We find trial counsel's failure to object to the instruction breached an essential duty.
We next examine the prejudice prong of Moore's ineffectiveness claim. State v. Baker, 560 N.W.2d 10, 14 (Iowa 1997) (noting prejudice must also be shown to stem from counsel's failure to object to erroneous instruction). When trial counsel fails to object to an erroneous instruction, several factors militate against a finding of prejudice. State v. Miles, 344 N.W.2d 231, 235 (Iowa 1984). The first is where a separate instruction correctly informs the jury of the element omitted from the challenged instruction. Id. Another is when the missing element is not a fighting issue in the case. Id. Finally, there may also be a lack of prejudice where there is so much evidence of guilt, no reasonable probability exists that the result would have been different, even if the instruction had been correct. Hopkins, 576 N.W.2d at 380.
The State contends that the instruction at issue was unnecessary and therefore could not have caused Moore any prejudice. The State asserts that an incidental rule instruction is only applicable in sexual abuse cases. Since this case dealt with robbery and kidnapping the Stare argues the instruction should not have been given at all. We find that State v. Rich, 305 N.W.2d 739 (Iowa 1981) and its progeny, including State v. Misner, 410 N.W.2d 216 (Iowa 1987), do not support the State's claims. In Misner, the Supreme Court observed that many cases fall between the extremes of "classic kidnapping" and kidnapping that is "merely incidental" to another crime. Misner, 410 N.W.2d at 223. The Misner Court stated:
In cases like these that fall on neither end of the continuum, a jury reasonably could find either (1) that the confinement or movement was merely incidental to some other underlying crime; (2) that some underlying crime was involved but the confinement or movement had significance independent of that charge and thus kidnapping was supported; or (3) that kidnapping was itself the central crime and did not simply arise in the course of other criminal activity.
In such cases, trial court should instruct the jury with respect to all three possibilities. A proper Rich instruction, modified to fit the potential underlying charges, will properly present to the jury the first two alternatives.
Id.
We note that the instructions given in the Misner case were found to have properly presented to the jury the requirements of Rich. Those instructions explained that the "State was required to show the confinement or movement was not merely incidental to the assault or insurrection charges." Id. at 223-224. Accordingly, we reject the State's arguments that the incidental rule only applies to cases of sexual abuse.
We conclude Moore has proved the prejudice prong of his ineffective assistance of counsel claim. Confinement was clearly a fighting issue in this case. Furthermore, we would not characterize the evidence of Moore's guilt as "overwhelming," such that there could have been no other result. While we do not express an opinion on Moore's guilt or innocence, we find there is a reasonable probability the result of this case would have been different if the jury had been properly instructed.
Because we find Moore's counsel breached an essential duty that worked actual prejudice, we reverse his conviction for third-degree kidnapping and remand for a new trial on that offense. As we have mentioned, Moore's conviction for robbery is not at issue in this appeal.