Opinion
No. 2-902 / 02-0347
Filed January 15, 2003
Appeal from the Iowa District Court for Johnson County, Patrick R. Grady and Douglas S. Russell, Judges.
Defendant appeals his conviction, following a jury trial, of robbery in the first degree, a class B felony, in violation of Iowa Code sections 711.1 and 711.2 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, J. Patrick White, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.
Defendant was charged and convicted of robbery in the first degree, a class B felony, in violation of Iowa Code sections 711.1 and 711.2 (1999), after he pulled a gun on June 24, 1999, at a Radio Shack in Coralville, Iowa, and exited the store with cash and equipment. At trial defendant unsuccessfully sought to prove he was insane at the time the crime was committed. On appeal defendant contends that his trial attorney was ineffective in (1) not objecting to the jury instruction given on insanity, and (2) failing to file a motion for new trial challenging the jury's finding on the question of his insanity as being against the weight of the evidence. Defendant also contends the district court erred in not granting his motion for a mistrial after evidence was introduced concerning his prior drug use. We affirm.
At trial defendant did not deny having committed the crime. Rather, he raised and sought to prove an insanity defense. Defendant introduced the testimony of the owner of an interior design store who testified that on June 23, 1999, the day before the robbery, the defendant entered her store, asked about crystal, and then stood in one spot with slumped shoulders, looking down for nearly three hours. A University of Iowa psychiatrist, Dr. Scott Stuart, testified for defendant and opined defendant was suffering a psychotic illness called schizoaffective disorder, a combination of schizophrenia and depression, symptoms of which include hallucinations, delusions and episodes of depression as well as disorganized and illogical behavior. Stuart said defendant was having delusions and hallucinations both at the time of the robbery in June of 1999 and at the time of trial. Defendant contended he heard voices telling him to go to Canada, as there was to be a nuclear holocaust. He further contended he was being followed and was receiving messages from God. Stuart gave the opinion that at the time of the Radio Shack robbery defendant did not know or understand the nature and quality of his acts, and he could not tell the difference between right and wrong. The State rebutted Stuart's testimony with the testimony of two witnesses, a psychiatrist and a psychologist. The psychiatrist, Dr. Curtis Fredrickson, had evaluated defendant in the summer of 2001 and found no evidence of a psychosis, noting only a history of polysubstance dependence and a borderline personality disorder with psychotic episodes. This doctor said a personality disorder is not a psychosis, and in looking at the nature of the robbery, his opinion was that defendant was capable of understanding right from wrong, and his mental status did not play a part in the robbery. The State's second witness, psychologist Dr. Leonard Welsh, who interviewed defendant at the same time, believed defendant was bright and had a number of diagnoses, finding antisocial personality disorder most fitting. He found defendant's actions more consistent with antisocial personality disorder than with schizophrenia. He was of the opinion that it would be rare for a person with a mental illness or schizophrenia, absent acute psychosis, not to know right from wrong and understand the nature and consequences of his actions.
Defendant contends that the jury was not properly instructed on his insanity defense. He advances his trial attorney was ineffective in not objecting to an instruction. Because defendant brings this as a claim of ineffective assistance of counsel he must show both that (1) his trial attorney failed in an essential duty, and (2) prejudice resulted. See State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999); see also State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct.App. 1998).
A defendant in a criminal action is insane if he or she, suffers from such a diseased or deranged condition of the mind as to render the person incapable of knowing the nature and quality of the act the person is committing or incapable of distinguishing between right and wrong in relation to that act. Iowa Code § 701.2. A defendant must prove either prong by a preponderance of the evidence. It is unnecessary to prove both prongs. Id.
The jury received the following instruction:
If the State has proved all of the elements of a crime, you should then determine if the Defendant has proved he was insane.
In order for the Defendant to establish he was insane, he must prove by a preponderance of the evidence, either of the following:
(1) At the time the crime was committed, the Defendant did not have sufficient mental capacity to know and understand the nature and quality of the act(s) he is accused of, or
(2) At the time the crime was committed, the Defendant did not have the mental capacity to tell the difference between right and wrong as to the act(s) he is accused of, orIf the Defendant has proved either of these elements by a preponderance of the evidence, then the Defendant is not guilty by reason of insanity.
If the defendant has failed to prove either of the elements by a preponderance of the evidence, then the Defendant is guilty. (Emphasis supplied).
Defendant challenges the last two sentences of the instruction. He contends that because of the way these sentences are worded, the instruction given and the uniform instruction from which it is taken fail to advise the jury of the applicable law in a manner non-lawyers of ordinary intelligence can comprehend. The defendant argues the last two sentences of the instructions pose a paradox for jurors: the jury is told if the defendant proves one of the elements of insanity, he is not guilty, while at the same time the jury is also told that if defendant fails to prove one of the elements of insanity, he is guilty. The defendant asks what the jury is to do if the defendant proves one of the elements of insanity but does not prove the other.
The State contends the instructions as a whole correctly state the applicable law of an insanity defense. The State argues defendant's claim that the instruction may mislead the jury into finding him guilty if he fails to prove one of the elements of insanity and not the other has no basis, as nowhere in the instruction does the word "one" appear. The State further argues the instruction specifically provides the defendant has to prove either of the two elements, meaning one of the two, and that this instruction appears in three different places. The State further notes the word "or" separates the two stated elements. While conceding in oral argument that the instruction would be clearer if the last sentence of the instruction were omitted or modified, the State contends there is no basis to reverse on this issue.
A conviction should not be reversed for claimed errors in jury instructions unless there is a reasonable basis for finding that the jury was confused or that the instructions, when viewed as a whole, were so contradictory that the jury may have followed the wrong one. State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993); State v. Lynch, 197 N.W.2d 186, 190 (Iowa 1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 916, 34 L.Ed.2d 700 (1973). When a single instruction is challenged, it may be judged in context with other instructions relating to the criminal charge, not in isolation. State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). While recognizing that the instruction could be improved, we accept the State's argument that the challenged instruction as written is neither so confusing or so misleading that it changes defendant's burden of proving insanity by proving either of the State elements. Defendant's trial attorney had no duty to make a meritless objection. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
Defendant's second issue is that his trial counsel was ineffective in not filing a motion asking the district court to consider whether or not the verdict was against the weight of the evidence. The weight of the evidence standard allows the trial court to weigh the evidence and consider the credibility of the witnesses. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998).The State argues there is no probability that the district court would have exercised its discretion and granted a new trial.
A defendant claiming ineffective assistance must prove, by a preponderance of the evidence, that his trial counsel failed in an essential duty and that prejudice resulted. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). This prejudice must give rise to a reasonable probability that, but for counsel's errors, the results of the proceeding would have been different. State v. Carrillo, 597 N.W.2d 497, 500 (Iowa 1999).
Frequently, claims of ineffective assistance of counsel are not resolved on direct appeal but are preserved for postconviction proceedings to allow the preparation of an adequate record and to allow the attorney charged with ineffective assistance an opportunity to respond to the claim. State v. Atwood, 602 N.W.2d 775, 784-785 (Iowa 1999); State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997). That appears to be the appropriate relief here. We therefore preserve this issue for possible postconviction proceedings.
Defendant's third claim is that the district court erred in denying his motion for mistrial because of references made to his prior drug use. The State acknowledges that error was preserved on some of the challenged evidence. Defendant contends error was preserved, and that if it were not, his trial attorney was ineffective. The district court overruled the motion for mistrial, affirming all of its prior rulings on objections and finding the cumulative effect of the manner in which it was handled did not deprive defendant of a fair trial. The court further concluded the curative measures it took were adequate to protect defendant's rights.
Prior to trial defendant asked the district court to exclude evidence under Iowa Rules of Evidence 403, 404(b), 609 and 702 regarding his prior drug use and criminal record, including testimony that he had told a witness he was interested in buying drugs, asking the witness to help him do so. He also sought to bar reference to a report from a Wisconsin doctor, Dr. Patricia Jens, and a note from another Wisconsin doctor, Dr. Fleck. Defendant had been in Wisconsin prior to the robbery. The district court initially sustained these motions. During the State's case there was testimony that defendant told a State's witness he was going to use money from the robbery to buy drugs and take them to Wisconsin to sell, and that after the robbery the defendant called the same witness and asked where he could get drugs. Defendant objected to this testimony, and his objections were overruled. Defendant contends this was error because the matter had been resolved in the motion in limine where the evidence had been ruled inadmissible. The State first argues the defendant did not preserve error through the motion in limine. The State further contends that the ruling was not erroneous for a number of reasons: (1) given defendant's insanity defense the evidence showed defendant's state of mind both before and after the robbery, (2) the testimony was evidence of defendant's intent, and (3) the evidence completed the story of the crime.
Now Iowa Rules of Evidence 5.403, 5.404(b), 5.609, 5.701.
The State is correct in arguing the defendant was required to again make the motions at trial to preserve error. Ordinarily, to preserve error on a motion in limine, one must make a timely objection when the evidence that was the subject of the motion in limine is offered at trial. See State v. Edgerly, 571 N.W.2d 25, 29 (Iowa Ct.App. 1997). We next look to whether the trial court abused its discretion in admitting the evidence at trial. Challenges to the admission of evidence are generally reviewed only for an abuse of discretion. See State v. Query, 594 N.W.2d 438, 443 (Iowa Ct.App. 1999). To reverse we must find the trial court's discretion was exercised "on grounds clearly untenable or to an extent clearly unreasonable." State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999).
Evidence of other crimes, wrongs, or acts is admissible under certain circumstances. Iowa Rule of Evidence 5.404(b) provides, Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The question we address is "whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit wrongful acts." State v. Casady, 491 N.W.2d 782, 785 (Iowa 1992); State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988); State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987). If the evidence is relevant, then the court must determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Casady, 491 N.W.2d at 785; Plaster, 424 N.W.2d at 229; State v. Kern, 392 N.W.2d 134, 136 (Iowa 1986). In the process of employing this two-step analysis, the trial court must exercise its discretion. Casady, 491 N.W.2d at 785.
The challenged evidence shows the defendant's intent to commit the crime and is relevant to the issue of his insanity defense in that it shows his state of mind before and after the robbery. The trial court did not abuse its discretion in admitting it into evidence. See id.
Defendant's next challenge is to the State's cross-examination of the defendant's expert, Stuart, through which the State raised Jens' report. Stuart testified without objection that he and Jens agreed on a diagnosis of polysubstance abuse, and further that defendant had a lengthy history of abuse and probable dependence on a number of drugs. He also testified without objection to defendant's alcohol abuse. Defendant then objected to testimony of Jens' diagnosis of antisocial personality disorder and its symptoms. This objection was overruled. The trial court did sustain objection to contents in Jens' report that defendant hurt people and admonished the jury to disregard this evidence. The trial court also sustained objections to whether defendant's mother knew he used alcohol and psychedelic mushrooms, as well as to evidence of defendant's other drug use.
Following Stuart's testimony defendant moved for a mistrial on the basis of the State's reference to his request for an attorney and the cumulative effect of improper and prejudicial prior bad acts testimony. The State argued that defendant's drug use was relevant to his claims of delusions and hallucinations. The motion for a mistrial was overruled. The challenged evidence was relevant to his insanity defense. The trial court had broad discretion in ruling on the motion. Greene, 592 N.W.2d at 30. The trial court did not abuse that discretion in overruling this motion for a mistrial. See id.
Then Fredrickson, the State's rebuttal witness, testified he initially diagnosed defendant with probable paranoid schizophrenia in remission and noted a history of polysubstance dependence, especially on cannabis and also alcohol. Defendant objected, and the objection was sustained.
Defendant's ultimate motion for mistrial challenged the cumulative effect of all of the above evidence.
Defendant put his mental status at issue by raising an insanity defense to the robbery charge. He contended that he was driven by delusions and hallucinations to commit the robbery. The history showing defendant used illegal substances and his prior psychiatric diagnoses and treatment were relevant to the issue of his mental health and sanity on the day of the robbery. After considering this and the other challenges the defendant made to the evidence, we find the district court did not abuse its discretion in overruling defendant's final motion for mistrial. We affirm.