Opinion
No. 6-014 / 05-0382
Filed April 12, 2006
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
Herman Ronnfeldt appeals the district court's denial of his application for postconviction relief. REVERSED AND REMANDED.
Brian Farrell, Savannah, Georgia, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Herman Ronnfeldt appeals the district court's denial of his application for postconviction relief. He contends the postconviction court erred in not finding his trial counsel was ineffective for failing to object to the marshalling instruction on conspiracy to manufacture methamphetamine. We reverse the decision of the district court and grant a new trial.
On September 6, 2002, a jury found Ronnfeldt guilty of conspiracy to manufacture methamphetamine, receipt for unlawful purpose of precursor drugs, interference with official acts, and unlawful possession of ephedrine, lithium, ether, and anhydrous ammonia. Ronnfeldt appealed his convictions, arguing insufficient evidence on the conspiracy and possession charges. He also raised a claim of ineffective assistance of trial counsel for failure to object to the marshalling instruction on the conspiracy to manufacture charge. This court affirmed his conviction and preserved the ineffective assistance claim for a postconviction proceeding. See State v. Ronnfeldt, No. 02-1666 (Iowa Ct.App. Aug. 27, 2003). In that case we specifically stated that the only issue preserved for a postconviction proceeding was whether the conspiracy instruction "allowed the jury to find [Ronnfeldt] guilty on the basis of the driver's intent, rather than his own, and omitted reference to the requirement of an overt act."
The charges against Ronnfeldt arose out of an incident in which items commonly used to manufacture methamphetamine were thrown from a vehicle occupied by Ronnfeldt and another person during pursuit by police after an attempted stop for traffic violations and more such items were found in the vehicle after it was stopped in a cornfield. The other person fled and remained unidentified.
Ronnfeldt filed an application for postconviction relief on January 21, 2004. The State filed a motion to dismiss arguing the only issue which had been preserved for postconviction relief was the jury instruction issue. The district court entered an order dismissing Ronnfeldt's claims except the jury instruction issue preserved by this court. Thus, the only issue presented to and addressed by the postconviction court was the alleged ineffective assistance of trial counsel in not objecting to the conspiracy to manufacture instruction. The district court denied Ronnfeldt's application, finding
that the instructions submitted when taken as a whole do adequately apprise the jury of the law in the case, and even if it could be considered confusing to the jury such as including overt act in Instruction No. 20 and not again in Instruction No. 23 or concerning the alternative theories presented, it was within the trial strategy of the attorney consistent with his arguments to the jury.
Ronnfeldt appeals, contending the court erred in finding his trial counsel was not ineffective.
We typically review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicant asserts a claim of constitutional nature, such as ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Ledezma, 626 N.W.2d at 141.
A criminal defendant is entitled to the assistance of counsel under the Sixth Amendment to the United States Constitution and article 1, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). "To establish an ineffective assistance of counsel claim, the applicant must show that `(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom.'" Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999) (quoting State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984)).
As in the district court, the only issue properly before us is whether Ronnfeldt's trial counsel was ineffective in not objecting to the jury instruction on conspiracy to manufacture methamphetamine on the grounds the instruction incorrectly allowed the jury to find Ronnfeldt guilty on the basis of the driver's intent, rather than his own, and omitted reference to the requirement of an overt act.
In evaluating the jury instructions, we must read all of the instructions together, not piecemeal or in artificial isolation. State v. Scalise, 660 N.W.2d 58, 64 (Iowa 2003). "An error in instructing a jury `does not necessitate reversal unless it is prejudicial.'" State v. Bone, 429 N.W.2d 123, 127 (Iowa 1988) (quoting State v. Seiler, 342 N.W.2d 264, 268 (Iowa 1984)). Error in jury instructions "is presumed prejudicial unless the contrary appears beyond a reasonable doubt from a review of the whole case." Id. "Prejudice results when the trial court's instruction materially misstates the law, confuses or misleads the jury, or is unduly emphasized." Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000).
In order to prove Ronnfeldt conspired to manufacture methamphetamine, the State was required to show that (1) Ronnfeldt agreed with another that one or both of them would manufacture or attempt to manufacture methamphetamine, (2) Ronnfeldt entered into such an agreement with the intent to promote or facilitate the manufacture of methamphetamine, (3) one of the parties to the agreement committed an overt act to accomplish the manufacturing of methamphetamine, and (4) the alleged coconspirator was not a law enforcement agent or assisting law enforcement when the conspiracy began. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001); see also Iowa Code § 706.1(1)-(4) (2001).
The marshalling instruction on conspiracy to manufacture submitted to the jury in Ronnfeldt's criminal trial, instruction number 23, stated:
To prove a defendant guilty of Conspiracy to Manufacture A Controlled Substance, the State must prove both of the following elements:
1. On or about the 29th day of April 2002, the defendant knowingly:
a. entered into a common scheme or design with the other occupant of the vehicle to manufacture methamphetamine, or
b. conspired with the other occupant of the vehicle to manufacture methamphetamine.
2. The defendant:
a. had the specific intent to manufacture methamphetamine, or
b. entered into a common scheme or design with, or conspired with the other occupant of the vehicle while knowing the other's specific intent to manufacture methamphetamine.
If the State has proven both elements, the defendant is guilty of Conspiracy to Manufacture A Controlled Substance. If the State has failed to prove either one of the elements, the defendant is not guilty.
Ronnfeldt contends the instruction given was incorrect because it did not require the jury to find the second or third elements required to sustain a conviction for conspiracy to manufacture. He argues the instruction did not require the jury to find that he entered into an agreement with the intent to promote or facilitate the manufacture of methamphetamine, or that a conspirator committed an overt act in furtherance of the alleged conspiracy. He urges that defense counsel was ineffective for failing to object to this instruction. Based on the record before us we are compelled to agree with Ronnfeldt.
Although not an issue presented to and passed upon by the postconviction trial court, thus not an issue preserved for this postconviction proceeding, and not urged as an issue on appeal, Ronnfeldt does point out in his brief that instruction number 23 also did not require the jury to find the fourth element of the conspiracy to manufacture charge.
The specific intent of the defendant to promote or facilitate the manufacture of methamphetamine must be proved to sustain a conviction for conspiracy to manufacture. See Speicher, 625 N.W.2d at 741; Iowa Code § 706.1(1). However, element 2(b) of instruction number 23 here allowed the jury to find Ronnfeldt guilty if it found Ronnfeldt knew that the other occupant in the vehicle had the specific intent to manufacture methamphetamine, without requiring the jury to find that Ronnfeldt himself had the specific intent to accomplish that purpose.
In his postconviction testimony Ronnfeldt's trial counsel stated that he believed the "knowingly" language in the challenged instruction meant specific intent and satisfied that required element of the crime. The State argues essentially the same thing on appeal and that when read as a whole, as they must be, the jury instructions sufficiently informed the jury the State was required to prove Ronnfeldt had the specific intent to manufacture methamphetamine. However, the term specific intent is used to "designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime." Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa 1981). "The requirement that a defendant act knowingly `is separate and apart from whether a defendant acted intentionally or deliberately, as well as whether a defendant intended any specific result from the commission of his acts.'" State v. Buchanan, 549 N.W.2d 291, 294 (Iowa 1996) (citation omitted). When questioned further about the fact that instruction number 23 did not require specific intent on the part of defendant Ronnfeldt, defense counsel stated that "[o]n hindsight I see where other people feel that it's — that it may not represent the law."
We conclude Ronnfeldt's trial counsel had a duty to object to instruction number 23. No possible advantage could flow to Ronnfeldt from trial counsel not pointing out the flawed nature of the instruction, which allowed conviction without proof of an essential element of the charged crime. Defense counsel's failure in this regard simply cannot be attributed to improvident trial strategy or misguided tactics. There is no reasonable basis for counsel's failure to object to the instruction in the form given. A failure to recognize an erroneous instruction and preserve error breaches an essential duty. State v. Hopkins, 576 N.W.2d 374, 379-80 (Iowa 1998). We conclude Ronnfeldt has met his burden to prove trial counsel failed to perform an essential duty by not objecting to the flawed conspiracy to manufacture marshalling instruction.
Ronnfeldt must also demonstrate defense counsel's failure to perform an essential duty resulted in prejudice. Wemark, 602 N.W.2d 814. The fourteenth amendment to the United States Constitution prohibits a state from depriving any person of liberty without due process of law. Due process entitles a defendant to certain minimal, basic procedural safeguards, including the requirement that the prosecution must prove every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970). As discussed above, Ronnfeldt's specific intent to promote or facilitate the manufacture of methamphetamine was an essential element of conspiracy to manufacture methamphetamine. Although the alternative contained in element 2(a) of instruction number 23 correctly stated the law, element 2(b) of the instruction permitted the jury to convict Ronnfeldt based on the other occupant's specific intent and without requiring it to find Ronnfeldt himself had the requisite specific intent.
In a case in which trial counsel fails to object to an erroneous instruction, certain factors may militate against a finding of prejudice. State v. Miles, 344 N.W.2d 231, 235 (Iowa 1984). First, prejudice may not exist if a separate instruction correctly informs the jury of the element omitted from the marshalling instruction. Id. In this case there exists no separate instruction correctly stating the State was required to prove that Ronnfeldt himself had the requisite specific intent. Second, prejudice may not exist if the element in question is not a fighting issue in the case. Id. That is not the case here, where Ronnfeldt was only a passenger in a vehicle from which items commonly used to manufacture methamphetamine were thrown and in which more such items were found. Third, prejudice may not exist where the evidence of guilt is so strong there is no reasonable probability the result would have been different if the instruction in question had been correctly stated. Hopkins, 576 N.W.2d at 380. As noted above, the evidence in this case showed only that Ronnfeldt was a passenger in the vehicle from which the items were thrown and in which more items were found. The evidence that Ronnfeldt conspired to manufacture methamphetamine was not strong.
We conclude counsel should have objected to instruction number 23 as submitted to the jury and trial counsel's failure to do so allowed Ronnfeldt to be convicted without the State having proved an essential element of the crime. "Failure of defense counsel to take proper steps regarding [jury] instructions . . . can be so egregious that counsel's performance does not satisfy the constitutional right to effective assistance of counsel." State v. Goff, 342 N.W.2d 830, 838 (Iowa 1983) (citations omitted) (holding that defendant did not receive effective assistance of counsel where trial court did not include required essential element of specific intent in marshalling instruction and defense counsel failed to object to the instruction).
The test for prejudice is whether "there was a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. We conclude that test is met in this case and thus further conclude counsel's failure to object to the challenged instruction resulted in prejudice to Ronnfeldt.
In addition, Ronnfeldt is correct that instruction number 23 lacked the essential element that Ronnfeldt or the other unidentified conspirator committed an "overt act" in order to accomplish the manufacturing of methamphetamine. Although we do not believe this omission alone was prejudicial to Ronnfeldt given the contents of the jury instructions as a whole, it can be seen as contributing to the prejudice caused by the specific intent flaw discussed above.
Instruction number 20, while not a marshalling instruction, did set forth in detail legal principles concerning conspiracy, including the requirement that the State prove Ronnfeldt committed an overt act to promote or facilitate an agreement to manufacture methamphetamine.
We therefore conclude Ronnfeldt has sufficiently established a claim of ineffective assistance of trial counsel. We grant the application for postconviction relief, reverse the order of the district court, and grant a new trial.