Opinion
No. 2-573 / 01-1305
Filed October 30, 2002
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Defendant appeals from his convictions and sentences for ongoing criminal conduct, second-degree theft, and four counts of first-degree theft. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.
Jessie Miller appeals from his convictions and sentences for ongoing criminal conduct, second-degree theft, and four counts of first-degree theft. He contends the trial court erred in denying his motions for new trial and for judgment of acquittal because the State failed to provide sufficient evidence to refute his entrapment defense. He also contends his trial counsel rendered ineffective assistance. Because we find Miller's counsel rendered ineffective assistance by requesting the stock jury instruction on entrapment, we reverse and remand for new trial on all counts.
I. Background Facts and Proceedings. In September 2000, law enforcement officers from the State and various local police departments began working undercover at Winters Auto Recovery in an effort to purchase drugs and stolen property. The objective of the operation was to gather intelligence, deter crime, and obtain criminal convictions. The officers asked informants to direct others with stolen property to Winters Auto Recovery. The informants were told not to solicit people. These informants were paid, but on a transactional basis.
Between November 2000 and January 2001, Jessie Miller was involved in the sale of five vehicles to Winters Auto Recovery. None of the vehicles were registered to Miller or anyone accompanying him. One vehicle had a broken driver's side window, which Miller admitted to breaking to gain entrance to the vehicle. All five vehicles had been stolen and were sold for under value.
Miller, who had two prior convictions for theft of motor vehicles, was arrested and charged with one count of ongoing criminal conduct, four counts of first-degree theft, and one count of second-degree theft. His counsel filed notice of his intent to use an entrapment defense. At the jury trial, Miller testified he simply brought the vehicles to Winters Auto Recovery for other people, although he did receive money for the vehicles' sale. He testified that he would not have brought the vehicles to the shop if the officers had not paid him. Miller testified that Officer Barger encouraged him to steal a vehicle.
At the close of testimony, the jury convicted Miller of all six counts. Miller's motions for a mistrial and a new trial were denied. The district court sentenced Miller, who appeals.
II. Ineffective Assistance of Counsel. Miller contends his counsel was ineffective in requesting a stock instruction on entrapment. We review his claim de novo. See State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) he was prejudiced by this failure. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). We can affirm on appeal if either element is lacking. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, such claims may be resolved on direct appeal when the record adequately addresses the issues. State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct.App. 1998).
Iowa Criminal Jury Instruction 200.17 was used to instruct the jury on Miller's entrapment defense. It reads in pertinent part, "If the State has proved beyond a reasonable doubt that the defendant was not entrapped, he is guilty. However, if the State has not disproved the defense of entrapment, the defendant is not guilty." The instruction contains no mention of the State's burden of proving the essential elements of theft and ongoing criminal conduct, which were set forth in earlier marshaling instructions. Likewise, the marshaling instructions for theft and ongoing criminal conduct make no reference to entrapment. We find the entrapment instruction allows the jury to find a defendant guilty without requiring the State to prove beyond a reasonable doubt every element of the crimes charged. We cannot speculate on which instruction the jury followed. State v. Davis, 228 N.W.2d 67, 73 (Iowa 1975). As a result, the instruction violates Miller's right to due process. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970) (holding the prosecution must prove every element of the crime charges beyond a reasonable doubt). In requesting this language be used in the entrapment jury instruction, counsel failed to perform an essential duty.
An error in instructing the jury is presumed prejudicial unless the contrary appears beyond a reasonable doubt from a review of the whole case. State v. Engle, 590 N.W.2d 549, 551 (Iowa Ct.App. 1998). A conviction may be reversed for error in jury instructions where there is a reasonable basis for finding the instructions were so contradictory the jury may have followed the wrong one. State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993). The jury instructions allowed the jury to find Miller guilty on the basis of the entrapment instruction, without considering the essential elements of the offenses with which he was charged. Additionally, the jury could have found Miller guilty on the marshaling instructions, without considering the entrapment defense. The instructions were clearly contradictory, and therefore prejudicial.
A question arises as to whether Miller was even entitled to an instruction on entrapment. Regardless, such an instruction was given. Where an instruction is requested and given, counsel has a duty to make sure the instruction is a correct statement of the law and does not violate the defendant's constitutional rights.
Because Miller's counsel had a duty to request a correct entrapment instruction and failed to do so, and his failure resulted in prejudice to Miller, Miller's right to effective assistance of counsel was violated. Accordingly, we reverse his convictions and remand the case for new trial. We need not consider Miller's other claims on appeal.