Opinion
No. 4-106 / 03-0523
Filed March 10, 2004
Appeal from the Iowa District Court for Story County, Thomas R. Hronek, District Associate Judge.
Jean Lynn Lillie appeals her convictions for two counts of assault on a peace officer. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Stephen Holmes, County Attorney, and Timothy Meals, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Jean Lynn Lillie appeals her convictions for two counts of assault on a peace officer. She claims her counsel was ineffective for: (1) failing to request additional jury instructions; (2) failing to object to two uniform jury instructions; and (3) failing to articulate a more specific motion for judgment of acquittal. We affirm her convictions and preserve one of her claims for a possible postconviction relief proceeding.
I. Background Facts Proceedings
On September 8, 2000, Ames Police Officer Todd Gohlmann stopped Jean Lillie for making an illegal left-hand turn. Lillie pulled into a parking lot and Gohlmann parked his squad car behind her vehicle. When Gohlmann approached Lillie's vehicle he noticed her window was open only about one quarter of an inch. He advised Lillie of the reason for the stop and requested her driver's license. Lillie appeared agitated and refused to produce her license. She also refused to provide her name, date of birth, or social security number. Lillie became more agitated and vocal and told Gohlmann that she felt harassed and intimidated. When Gohlmann realized Lillie did not intend to cooperate he requested back-up.
Officer John Nordyke responded to Gohlmann's request. After Nordyke arrived on the scene he spoke with Lillie. Nordyke was also unsuccessful in obtaining any information from her. Further investigation revealed the vehicle Lillie was driving had plates registered to a different vehicle. Nordyke called for a supervisor to come to the scene. Captain Kessel and Sergeant Brennan arrived a few minutes later. They were also unsuccessful in convincing Lillie to cooperate. Captain Kessel then requested a female officer. Officer Karen Mills responded to Kessel's call. She was also unable to obtain any information from Lillie. Mills described Lillie's behavior as "bizarre."
While officers continued to talk to Lillie, Nordyke used a "slim jim" to unlock the passenger side door of Lillie's vehicle. Lillie then got out of her vehicle. She appeared to be very angry with the officers. Captain Kessel told Lillie that they were going to tow her vehicle, but informed her she would be released if she signed citations. When Lillie again refused to cooperate, Kessel arrested her for interference with official acts. Lillie struggled with the officers as they handcuffed her. While Mills was placing Lillie into the back seat of her squad car Lillie kicked Mills in the thigh. The kick was painful to Mills and resulted in bruising to her thigh.
Mills transported Lillie to the police station. At the station, Lillie still would not cooperate. When Mills and Nordyke attempted to place Lillie face down on a cot in a holding cell to take her handcuffs off, Lillie kicked Nordyke in his left hip. Nordyke said the blow and resulting pain caused him to start "to go down."
Lillie's recollection of events differed substantially from the officers' accounts. She stated the she provided Gohlmann with proof of insurance and other forms of photo identification, which he refused to accept. She described Gohlmann as angry and rude. Lillie described Captain Kessel as angry and unprofessional. Lillie said she offered to take the tickets and leave without the car, but the officers would not let her. Lillie also said that she voluntarily unlocked her vehicle and exited.
Lillie claimed the officers pushed her against her car and roughly handcuffed her behind her back. She stated she was then thrown into a police car and claimed the car door was slammed on her shins. Lillie denied kicking Mills. After her arrest, Lillie complained of pain in her knees, her throat, and her wrists. She testified that at the police station she was thrown face down onto a concrete bench while her hands were still handcuffed. Lillie denied kicking Nordyke. She said that any contact was accidental.
On October 13, 2000, Lillie was charged with two counts of assault on a peace officer. Between October 2000 and March 2001, Lillie filed numerous pro se motions and pleadings. She then left the state and failed to appear on an outstanding warrant for more than one year. The district court appointed counsel for Lillie in September 2002. Lillie's counsel filed and later withdrew a motion to evaluate her competency.
On February 6, 2003, a jury trial commenced. Following trial the jury returned guilty verdicts on both counts. On February 21, 2003, Lillie filed a motion in arrest of judgment. On February 28, 2003, the district court heard the motion, denied it, and sentenced Lillie to concurrent terms of thirty days incarceration on each count, with credit for time served, and imposed fines of $250. Lillie appeals.
II. Ineffective Assistance of Counsel Claims
Lillie claims her counsel was ineffective for: (1) failing to request additional jury instructions; (2) failing to object to two uniform jury instructions; and (3) failing to articulate a more specific motion for judgment of acquittal.
We review claims of ineffective assistance of counsel de novo. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). For Lillie to prevail she must prove that her counsel failed to perform an essential duty and prejudice resulted from the omission. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Lillie's claims may be disposed of if she fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). In resolving an ineffective assistance claim the ultimate test is whether under the entire record and the totality of the circumstances counsel's performance was within the normal range of competency. Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). Improvident trial strategy, miscalculated tactics, or mistakes in judgment do not necessarily amount to ineffective assistance of counsel. Id.
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve such issues when the record on appeal is adequate. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). With one exception, we find the record adequate to address Lillie's claims.
A. Jury Instructions
Lillie argues her trial counsel was ineffective because he did not request additional jury instructions on: (1) simple assault, as a lesser-included offense; and (2) the definitions of "peace officer" and "apparent ability." Lillie also contends that her counsel was ineffective because he failed to object to two uniform jury instructions.
Lillie claims that her counsel was ineffective for not requesting a jury instruction on simple assault, as a lesser-included offense of assault on a peace officer. We disagree. For Lillie to succeed on her claim she needs to prove she was prejudiced by the omission of this jury instruction. To establish prejudice, Lillie must show there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). By virtue of Iowa Code section 708.3A(4) (1999), simple assault is a serious misdemeanor if it is committed against a peace officer. Our de novo review of the record reveals no dispute that Officers Mills and Nordyke were "peace officers" for purposes of section 708.3A(4). Accordingly, we conclude Lillie has failed to prove that she was prejudiced by her counsel's failure to request a simple assault instruction. We reject this assignment of error.
Lillie next claims she received ineffective assistance of counsel because her attorney failed to request a jury instruction which defined the term "peace officer." The court's instructions advised the jury that they were required to find that each of the complaining witnesses was a peace officer. In this case, there was never any doubt that both Mills and Nordyke were Ames police officers. Both officers wore police uniforms, drove marked squad cars, and identified themselves to Lillie as police officers. In addition, Lillie testified that she knew Mills and Nordyke were police officers. The record reveals Lillie never questioned the officers' status as peace officers during trial. We conclude that Lillie's counsel had no duty to request an instruction defining "peace officer" under the circumstances of this case. See State v. Thompson, 570 N.W.2d 765, 768 (Iowa 1997) ("[W]ords used in a jury instruction need not be defined `if they are of ordinary usage and are generally understood'"). (citations omitted). Moreover, we find that an instruction defining "peace officer" would not have changed the outcome of the trial on either charge. As a result, we find no merit to this claim.
Lillie also claims that her counsel was ineffective for failing to request a jury instruction that provided a definition of the phrase "apparent ability." The district court instructed the jury that an assault "is committed when a person does any act which is intended to result in physical contact which would be painful, injurious, insulting, or offensive to another, with the apparent ability to execute the acts." The jury instructions did not include the jury instruction defining apparent ability found in uniform instruction 800.6. To establish an assault, the offender must have the apparent ability to execute the assault. Bacon v. Bacon, 567 N.W.2d 414, 418 (Iowa 1997). The focus is on the offender's intent and not on the victim's expectations. State v. Jackson, 305 N.W.2d 420, 423 (Iowa 1981). As we have already mentioned, to succeed on this claim, Lillie must establish that her counsel failed to perform an essential duty and that prejudice resulted. No record has been made on this issue and trial counsel has not been given the opportunity to explain his actions. Accordingly, we pass the issue in this direct appeal and preserve it for a possible postconviction proceeding. State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
Finally, Lillie claims that her counsel was ineffective because he failed to object to two uniform jury instructions. She claims that Jury Instructions No. 4 and No. 13 changed the "dynamics of the trial" and effectively placed "an unconstitutional burden upon the defendant." Our supreme court rejected a similar argument in State v. Langlet, 283 N.W.2d 330, 337 (Iowa 1979) (finding unpersuasive a defendant's claim of prejudice from the use of the word "innocence" in a jury instruction similar to Instruction No. 13 in this case). Counsel is not ineffective for failing to pursue meritless issues, State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998), or for failing to make questionable objections, State v. Atwood, 342 N.W.2d 474, 477 (Iowa 1984). Moreover, when the instructions in this case are viewed in their entirety, we conclude Lillie suffered no prejudice. The trial court instructed the jury that Lillie had entered pleas of not guilty to each count which was a complete denial of the charges. The court also instructed the jury that it was the State's burden to prove guilt beyond a reasonable doubt. The court informed the jury Lillie was "presumed innocent and not guilty." Finally, the verdict forms provided the jury with the choice of finding Lillie either guilty or not guilty on each of the counts charged. We reject this assignment of error.
Instruction No. 4 stated: The defendant has been charged with two counts. This is just a method for bringing each of the charges to trial. If you find the defendant innocent or guilty on either of the two counts, you may not conclude guilt or innocence on the other. The defendant's innocence or guilt must be determined separately on each count.
Instruction No. 13 stated: You must determine the defendant's guilt or innocence from the evidence and the law in these instructions. You must consider all of the instructions together. No one instruction includes all of the applicable law.
B. Motion for Judgment of Acquittal
Lillie contends that her trial counsel was ineffective because he failed to properly articulate her motion for judgment of acquittal. She argues that the motion her counsel did make did not adequately preserve error for appellate review. We find that counsel's motion in this case was sufficient because it challenged the State's proof that Lillie had the intent to commit an assault upon either Mills or Nordyke and whether physical contact occurred between Lillie and the officers. Additionally, we find no reasonable probability that the result of the motion would have been any different had the motion been more detailed because substantial evidence supports the jury's verdicts on both counts of assault. Consequently, Lillie's claim fails.
III. Conclusion
We affirm Lillie's convictions and preserve one of her claims of ineffective assistance of counsel for a possible postconviction relief proceeding.