Opinion
No. 3-284 / 02-0892.
Filed July 23, 2003.
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer and Jon Fister, Judges.
Jerrold Molosky appeals from his convictions for failure to appear and flight to avoid prosecution. 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, Thomas Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Jerrold Molosky appeals from his convictions for failure to appear and flight to avoid prosecution. We affirm, but preserve one claim of ineffective assistance of counsel for possible postconviction relief.
I. Background Facts and Proceedings.
In 1998 Molosky was charged with conspiracy to manufacture methamphetamine, possession of ephedrine or pseudoephedrine, receipt for unlawful purposes of precursor drugs, and possession of an incendiary device. A jury trial on the first three commenced; however, Molosky failed to appear on the fourth day of trial and an arrest warrant was issued. The trial continued and a jury found him guilty of all three counts. Molosky was later apprehended, and on appeal his convictions were overturned and a new trial ordered. On retrial, Molosky was again found guilty. The court sentenced him to concurrent terms of up to fifty years on the first count, and up to fifteen years on merged counts II and III.
On February 7, 2002, the State filed a trial information charging Molosky with failure to appear and flight from prosecution, in violation of Iowa Code sections 811.2(8) and 719.4(4) (1999), stemming from his absence from the first trial. The district court denied Molosky's attempts to disqualify the county attorney's office and depose the prosecuting attorney from his initial trial. It also rejected his attempts to raise the affirmative defenses of coercion, entrapment, duress, necessity, competing harms, and flight to avoid political and judicial oppression. Following a trial, the jury found him guilty on both counts. The court sentenced Molosky to two terms not to exceed five years to be served concurrently, but consecutive to another sentence already imposed. Molosky appeals.
II. Ineffective Assistance of Counsel.
Molosky forwards two claims of ineffective assistance of counsel. First, he maintains counsel breached a duty to raise and litigate the issue of prosecutorial vindictiveness. Second, he asserts counsel's failure to object to the marshaling instruction on the failure to appear charge constituted ineffective assistance. We review these claims de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984).
"A defendant receives ineffective assistance of counsel when: (1) the defense attorney fails in an essential duty; and (2) prejudice results." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). To prove counsel failed in an essential duty, the defendant must prove the attorney's performance was outside the range of normal competency . State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App. 1996). The court will generally presume counsel is competent, and we will not second guess a reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).
Generally, claims of ineffective assistance of counsel are preserved for postconviction proceedings. Kone, 557 N.W.2d at 102. However, they may be resolved on direct appeal when the record adequately addresses the issues. Id.
III. Vindictive Prosecution.
Molosky contends trial counsel rendered ineffective assistance in failing to raise and litigate the issue of vindictive prosecution. He believes his convictions should be reversed and the matter remanded with directions to dismiss both counts with prejudice. For an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is patently unconstitutional. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). To punish a person because he has done what the law plainly allows him to do is a due process violation "of the most basic sort." Id. Because we find the record inadequate to resolve this claim, we preserve it for a possible postconviction relief proceeding.
IV. Jury Instructions.
In jury Instruction No. 13, the court instructed the jury that in order to find Molosky guilty of failure to appear, the State had to prove he "failed to appear before the Iowa District Court as required." Iowa Code section 811.2(8) provides that a person is guilty of failure to appear if he or she " willfully fails to appear before any court or magistrate as required. . . ." (Emphasis added.) Thus, Instruction No. 13 omitted the requirement that Molosky's failure to appear have been done "willfully." Molosky argues counsel's failure to object to this instruction constitutes ineffective assistance. He requests a remand with directions to grant him a new trial on this charge. We find the record adequate to address this issue.
The district court has a duty to instruct fully and fairly on the law regarding all issues raised by the evidence. State v. Stallings, 541 N.W.2d 855, 857 (Iowa 1995); State v. Watts, 223 N.W.2d 234, 237 (Iowa 1974) (finding it incumbent on the trial court to instruct on all the elements of the offense). When a single instruction is challenged, it will be judged in context with other instructions relating to the criminal charge, not in isolation. State v. Stallings, 541 N.W.2d 855, 857 (Iowa 1995). However, an error in instructing a jury does not necessitate reversal unless it is prejudicial. State v. Seiler, 342 N.W.2d 264, 268 (Iowa 1983). 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. Davis, 228 N.W.2d 67, 73 (Iowa 1975).
We agree counsel breached an essential duty by failing to object to a jury instruction which erroneously omitted the statutory requirement the State prove Molosky acted willfully. The willfulness requirement clearly places an enhanced burden on the State, a burden often difficult to prove. See State v. Osborn, 368 N.W.2d 68, 70 (Iowa 1985) (noting willfulness may be established by proof of a voluntary and intentional violation of a known legal duty); State v. Dunn, 199 N.W.2d 104, 107 (Iowa 1972) (defining willfully as purposely, deliberately, or intentionally).
However, the issue then becomes whether Molosky was prejudiced and whether there was a reasonable probability that, but for the failure to object to the omission in the marshalling instruction, a different result would have been likely. Strickland, 466 U.S. at 687, 194 S.Ct. at 2059, 180 L.Ed.2d at 698. Upon review of the evidence, including the jury instructions, it appears there is no reasonable probability the result would have been any different had the word "willfully" been added to the instruction. As noted, Molosky was found guilty of both failure to appear and flight to avoid prosecution. The marshaling instruction on the flight to avoid prosecution charge required the State to prove that Molosky, from on or about April 5, 1999, fled the State with the specific intent to avoid prosecution for a felony. A further instruction defined "specific intent," in part, to mean "not only being aware of an act and doing it voluntarily, but in addition, doing it with a specific purpose in mind." The jury's finding of guilt on the flight charge thus clearly expresses its conclusion Molosky had the specific intent, and thus willfully, absented himself from a required court appearance and left the State.
Likewise, the failure to appear charge was also based on acts taken by Molosky on April 5, 1999. All the testimony supported Molosky left the trial because he felt the trial was not going well and he left the state immediately thereafter. When considered in conjunction with the flight to avoid charge and its marshaling instruction, see Stallings, 541 N.W.2d at 857, the inescapable conclusion is the jury found Molosky willfully failed to appear before the Iowa District Court for Black Hawk County on April 5, 1999. We therefore conclude there was no resulting prejudice from counsel's failure to object to the instructions. See State v. Heacock, 521 N.W.2d 707, 710 (Iowa 1994) (finding no prejudice in court's failure to include a specific intent jury instruction where there was no reasonable probability of a different verdict).