No. 4-024 / 03-0394Court of Appeals of Iowa.
Filed March 10, 2004
Appeal from the Iowa District Court for Warren County, Dale B. Hagen, Judge.
Todd Anthony McGee appeals from his conviction for two counts of delivery of methamphetamine. AFFIRMED IN PART; REVERSED INPART; AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Todd McGee, Clarinda, appellant, pro se.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Gary Kendell, County Attorney, and Doug Eichholz, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
ZIMMER, P.J.
Todd Anthony McGee appeals from his convictions for two counts of delivery of methamphetamine. He contends that: (1) his trial counsel was ineffective because she failed to object to a jury instruction on entrapment and failed to object to testimony regarding his prior bad acts; (2) the district court erred in allowing the jurors to separate and go home for the night between the first and second day of their deliberations; and (3) he is entitled to a new trial because of jury misconduct. Upon our review of the record, we affirm McGee’s conviction on Count I and reverse his conviction on Count II.
I. Background Facts Proceedings
Todd McGee and David Downey have been acquainted for many years. Downey got into legal trouble in the fall of 2001. He contacted the Marion-Warren County drug task force to offer his assistance. Members of the drug task force showed Downey a list of names. McGee’s name was on the list. Downey agreed to help the task force with their investigation of McGee.
On October 21, 2001, Downey met with officers at an arranged location, to prepare to make a controlled buy of methamphetamine from McGee. Downey was given $200 in buy money and was equipped with a recording device. Officers also searched Downey and his car. Downey then went to McGee’s house to purchase three grams of methamphetamine. McGee was careful to avoid any discussion of drug sales when he talked with Downey and repeatedly stated that Downey was a drug dealer. However, after some discussion McGee retrieved a vial containing a sixteenth of a gram of methamphetamine from a nightstand next to his bed and sold it to Downey for $125. Downey then met with the officers, who were waiting down the street, to give them the methamphetamine, the remaining money, and the tape recording.
On October 26, 2001, Downey returned to McGee’s house to make another controlled buy of methamphetamine from McGee. Officers searched Downey and his car, equipped him with a recording device, and gave him $125 in buy money. They then followed Downey to McGee’s house. Downey proceeded to purchase a half-gram of methamphetamine from McGee for $60. He then returned to the officers with the methamphetamine, the remaining money, and the tape recording.
On August 5, 2002, the State charged McGee with two counts of delivery of methamphetamine for acts alleged on October 21, 2001, and October 26, 2001. McGee filed a notice of entrapment. A jury trial commenced on January 15, 2003. The district court instructed the jury on entrapment in accordance with a former version of current Iowa Criminal Jury Instruction 200.17. The jury found McGee guilty on both counts. On February 25, 2003, the district court sentenced McGee to a term of imprisonment not to exceed ten years on each count. The sentences were to run concurrently. Both sentences were suspended, subject to three years of probation. McGee was also fined $1,000 and ordered to pay the applicable surcharges. McGee’s driving privileges were revoked for 180 days. McGee appeals.
II. Ineffective Assistance of Counsel Claims
McGee first claims that his counsel was ineffective because she failed to object to a faulty jury instruction on entrapment. He contends the instruction denied him due process and that he is entitled to a new trial on Count II.[1] Because McGee alleges a denial of his constitutional right to effective assistance of counsel, our review is de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000).
The defendant bears the burden of demonstrating ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 142
(Iowa 2001). To establish a claim of ineffective assistance of counsel, the defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted from this omission. State v. Constable, 505 N.W.2d 473, 479 (Iowa 1993). To prove the first prong, the defendant must overcome the presumption that counsel was competent and show that counsel’s performance was not within the range of normal competency. State v. Buck, 510 N.W.2d 850, 853
(Iowa 1994). To prove the second prong, the defendant must show counsel’s failure worked to the defendant’s actual and substantial disadvantage so that a reasonable possibility exists that but for counsel’s error the trial result would have been different. Id. An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
Usually 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 ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). Here, we find the record sufficient to address McGee’s claims.
McGee asserted the defense of take-back entrapment regarding the delivery of methamphetamine charge described in Count II. He claimed the drugs involved in the transaction on October 26, 2001, came from Downey the day before and that Downey was just reappropriating them. At the close of evidence, the court set out the elements necessary to find McGee guilty of the delivery charge in Instruction 14, the marshalling instruction. The court also gave a jury instruction regarding entrapment, Instruction 18. The portion of the entrapment instruction, which McGee claims is flawed, states: “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.” On appeal, the State concedes that the entrapment instruction the jury received “is an incorrect statement of law and may deny the defendant due process when given.” We agree the entrapment instruction is defective. It permitted the jury to find McGee guilty without requiring the State to prove the elements of the crime charged by proof beyond a reasonable doubt.[2]
The 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). Since the entrapment instruction was flawed and the record reveals no tactical reason for trial counsel’s failure to object to the instruction, we conclude counsel breached an essential duty by failing to object to the form of the entrapment instruction given to the jury.
Additionally, we find that McGee was prejudiced by his counsel’s breach of duty. The marshalling instruction and the entrapment instruction were contradictory. Instruction 18 does not discuss the State’s burden of proving the essential elements of delivering a controlled substance, which were set forth in Instruction 14. Similarly, Instruction 14 does not discuss the entrapment instruction. Therefore, the instructions allowed the jury to find McGee guilty without addressing the essential elements of the delivery charge in Count II. Under the circumstances of this case, we believe the instructions undermine the reliabity of the result in this proceeding. At trial, the informant, David Downey, admitted selling drugs for eight to ten years. He did not inform law officers of his history. Downey sold methamphetamine to McGee in June 2002. The record reveals that officers would not have used Downey as an informant in this case if they had known of his history, or would have searched him better. Because we conclude that trial counsel’s breach of an essential duty resulted in prejudice, we find that McGee’s right to effective assistance of counsel was violated. Accordingly, we reverse McGee’s conviction on Count II and remand for a new trial on that count.
McGee also argues that his counsel was ineffective for not objecting to testimony regarding his prior bad acts. He claims his attorney should have objected to: (1) Downey’s testimony that he thought the police had a lot of problems with McGee in the past; (2) the prosecutor asking McGee “Why do you think the police had your name?”; and (3) the prosecutor questioning McGee about whether it made any sense that the police just randomly picked him out for Downey to purchase drugs from. McGee contends the State improperly introduced evidence of his prior wrongdoing to bolster their case against him.
Iowa Rule of Evidence 5.404(b) states that “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” but may be admissible for other purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Iowa R. Evid. 5.404(b). In deciding whether to admit bad acts evidence, a district court must determine whether the evidence is relevant for a legitimate purpose and, if relevant, whether its probative value is substantially outweighed by the danger of unfair prejudice. State v. Mitchell, 633 N.W.2d 295, 298-99 (Iowa 2001).
The State responds to McGee’s argument by asserting that the disputed evidence does not implicate rule 5.404(b), because no actual evidence was ever offered about a previous crime, wrong, or act that McGee committed. It agues Downey’s vague testimony that the police had problems with McGee in the past was offered in an attempt to explain that he did not single out McGee, but rather the police did. The State further contends that because other similar evidence was already in the record, McGee cannot show sufficient prejudice to avoid reversal.
In the context of this case, we find it unnecessary to address whether or not McGee’s counsel breached an essential duty when she failed to object to the disputed evidence on the basis of rule 5.404(b). Even if error was committed, we conclude it did not contribute to the verdict in this case. Before the disputed testimony came into the record, Downey testified, without objection, that he was shown a list of suspects that contained the defendant’s name. McGee also admitted that he had a long-term substance abuse problem. Because similar evidence was already in the record, we do not believe the disputed testimony contained any information the jury would have found surprising. We reject this assignment of error.
III. Jury Separation and Jury Misconduct
In his pro se brief McGee contends the district court erred when it allowed the jurors to separate and go home for the night between the first and second day of their deliberations without his consent or his attorney’s consent. He also argues he deserves a new trial because a juror researched the definition of the term entrapment on the Internet at home. We find that McGee failed to preserve error for either of these issues. McGee did file a motion for a new trial on the ground that the jury was allowed to separate; however, there is nothing in the record to show that he or his counsel objected at trial to this procedure. Any error that the defendant raises after trial is limited by the exceptions taken at trial. State v. Geier, 484 N.W.2d 167, 170
(Iowa 1992). Any ground not asserted at trial is not preserved for appellate review. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). McGee did not preserve error regarding jury separation. We also conclude McGee waived his jury misconduct claim because he failed to identify where in the record this issue was preserved for review and failed to argue or cite any authority in support of his position. Iowa R. App. P. 6.14(1)(c).
IV. Conclusion
We affirm McGee’s conviction for delivery of methamphetamine as charged in Count I. We reverse his conviction for delivery of methamphetamine as charged in Count II and remand for a new trial on that offense.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.