Michael Donte Moss, Applicant-Appellee v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1624
Filed September 28, 2016
MICHAEL DONTE MOSS,
Applicant-Appellee,
vs.
STATE OF IOWA,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,
Judge.
The State appeals the postconviction court’s grant of postconviction relief
to Michael Donte Moss, following his conviction for first-degree murder.
AFFIRMED.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellant.
Kevin E. Hobbs, West Des Moines, for appellee.
Heard by Danilson, C.J., and Mullins and Bower, JJ.
2
MULLINS, Judge.
The State appeals the postconviction court’s grant of postconviction relief
(PCR) to Michael Donte Moss following his conviction for first-degree murder.
The State argues the PCR court erred in vacating Moss’s conviction and ordering
a new trial on the ground Moss’s trial counsel were ineffective in failing to object
to the jury instruction on kidnapping, which served as an alternate theory for the
underlying offense in the felony-murder charge. The State contends our prior
decision finding substantial evidence existed to support a finding of guilt for
felony murder by kidnapping is binding in this case. Alternatively, the State
asserts Moss failed to show his trial counsel had a duty to object to the
instruction based on the case law in existence at the time of trial and Moss failed
to establish prejudice in light of the overwhelming evidence that Moss’s
confinement of the victim was more than incidental to the underlying assault.
Upon our de novo review, we affirm.
I. Background Facts and Proceedings
The following undisputed facts were set forth in our opinion on direct
appeal:
On July 21, 2008, Moss and his friend, Nick Harris, went to
Oakridge apartments in search of Andrew Hughes, who allegedly
owed Moss $200. The men located Hughes in an apartment known
for drug activity. He appeared nervous to see Moss and stated he
did not have the $200 he owed Moss on his person, but suggested
they go to his bank to get the money.
The three men went to the parking lot of the apartment
complex where Hughes gave Moss the keys to his SUV after Moss
stated, “I’m driving.” The vehicle would not start with the key in the
ignition, so Hughes had to hotwire the vehicle. Harris overheard
Moss tell Hughes he had a gun. Moss also told Hughes if he did
not have the money, he was going to beat Hughes up. Harris
observed Hughes to be acting scared and nervous.
3
The men drove to First National Bank in Ankeny with Moss
driving the vehicle, Harris sitting directly behind [Hughes] in the
backseat, and Hughes sitting in the passenger side of the front seat
across from Moss. They pulled into the drive-through lane and
Moss sent Hughes’s driver’s license to the teller and asked her for
the balance on Hughes’s account. After Hughes nodded his
assent, the teller informed Moss the balance was $4.50. Harris
saw Moss give Hughes a furious look, although he said nothing.
Appearing frightened, Hughes attempted to exit the vehicle and
flee, but he got caught in the seatbelt.
With the passenger-side door partially open and Hughes
entangled in the seatbelt, Moss began to speed away. Harris was
shouting at Moss, “Let him out,” but Moss continued driving at a
high rate of speed. Harris could not see Hughes’s location and
asked Moss what happened to him, to which Moss replied, “I think
he went under the car.” During this time, Moss was repeatedly
glancing at the side mirror located on the passenger side of the
vehicle.
After a drive of approximately 1167 feet, Moss swerved the
vehicle to the right and drove up over the curb. Hughes was
dislodged from the seatbelt and left lying near the curb as Moss
sped away. Although Hughes was still breathing and had a strong
heart rate, his injuries were severe. He was declared brain dead
two days later.
Moss drove the vehicle back to Des Moines where he
abandoned it on Pennsylvania Avenue. He and Harris went their
separate ways. Harris later went to the police and reported what
had occurred.
State v. Moss, No. 10-0079, 2010 WL 5050561, at *1 (Iowa Ct. App. Dec. 8,
2010).
The State charged Moss with first-degree murder, in violation of Iowa
Code sections 707.1 and 707.2 (2007). The case was tried to a jury on
November 2–6, 2009. The State presented three alternative theories of murder
in the first degree: premeditated murder and felony murder based on the
predicate felonies of robbery and kidnapping. The jury returned a general verdict
of guilty, which did not state which theory was adopted. The district court
sentenced Moss to life in prison without the possibility of parole.
4
Moss appealed his conviction, claiming there was insufficient evidence to
support his conviction under either of the felony-murder theories. He did not
dispute sufficient evidence existed to support his conviction of premeditated
murder. Our court affirmed Moss’s conviction, concluding substantial evidence
existed to support the jury’s finding of guilt under both the kidnapping and the
robbery felony-murder theories.
On July 19, 2011, Moss filed a pro se application for PCR asserting
numerous claims, including his trial counsel were ineffective in failing to object to
the kidnapping instruction because it did not include a definition of “confinement”
or “removal.” On June 23, 2014, Moss filed an amended pro se application,
again claiming his trial counsel provided ineffective assistance in failing to object
to the kidnapping jury instruction. On April 29, 2015, the PCR court held a
hearing on Moss’s amended application; however, neither side raised this
argument at the hearing. Thus, although one of Moss’s trial attorneys testified at
the PCR hearing, she was not asked to explain any trial strategy she may have
had in failing to object to the court’s instruction or to seek an instruction on the
elements of “confinement” and “removal.”
On September 10, 2015, the PCR court granted Moss’s application on the
basis Moss’s trial counsel were ineffective in failing to object to the jury
instruction for kidnapping as a predicate felony to support the charge of first-
degree murder because the instruction omitted the intensified tripartite test
5
established in State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981), and in failing to
move for a new trial based upon this legal error.1 The State appeals.
II. Scope and Standard of Review
PCR proceedings are generally reviewed for correction of errors at law.
Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016). When, as here, the
applicant raises an ineffective-assistance-of-counsel claim, we apply a de novo
review. See id.
III. Analysis
A. Law of the Case
The State argues our court’s decision on direct appeal, finding substantial
evidence of Moss’s confinement of Hughes far exceeded the confinement
inherent in the underlying felonious assault, was binding on the PCR court and,
therefore, precluded the PCR court from granting Moss’s requested relief.
Under the doctrine of law of the case, “an appellate decision becomes the
law of the case and is controlling on both the trial court and on any further
appeals in the same case.” Bahl v. City of Asbury, 725 N.W.2d 317, 321 (Iowa
2006) (quoting United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103
(Iowa 2000)); see also State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987)
1
The PCR court further found Moss’s appellate counsel provided ineffective assistance
in failing to present an ineffective-assistance-of-trial-counsel claim based on these
grounds. An ineffective-assistance-of-trial-counsel claim “need not be raised on direct
appeal from the criminal proceedings in order to preserve the claim for postconviction
relief purposes.” Iowa Code § 814.7(1) (2013); see also State v. Johnson, 784 N.W.2d
192, 198 (Iowa 2010) (“[W]e hold defendants are no longer required to raise ineffective-
assistance claims on direct appeal, and when they choose to do so, they are not
required to make any particular record in order to preserve the claim for postconviction
relief.”). Thus, we need not determine whether Moss’s appellate counsel rendered
ineffective assistance in failing to raise Moss’s ineffective-assistance-of-trial-counsel
claim on direct appeal.
6
(“[T]he legal principles announced and the views expressed by a reviewing court
in an opinion, right or wrong, are binding throughout further progress of the case
upon the litigants, the trial court and [appellate] court[s] in later appeals.”). The
doctrine stems from “a public policy against reopening matters which have
already been decided.” Bahl, 725 N.W.2d at 321. “[T]he [law-of-the-case]
doctrine does not preclude consideration of issues that could have been, but
were not, raised in the first appeal.” Grosvenor, 402 N.W.2d at 405.
Moss did not raise the issue of the allegedly deficient kidnapping jury
instruction prior to the filing of his PCR application. Thus, his claim had not
already been decided by a court of review, and the PCR court did not err in
considering the issue for the first time under the ineffective-assistance-of-counsel
rubric in the proceeding below. See id.
B. Ineffective Assistance of Counsel
To succeed on a claim of ineffective assistance of counsel, Moss must
show by a preponderance of the evidence: “(1) his trial counsel failed to perform
an essential duty, and (2) this failure resulted in prejudice.” State v. Thorndike,
860 N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams, 810 N.W.2d 365, 372
(Iowa 2012)); accord Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Under the first prong, ‘we measure counsel’s performance against the standard
of a reasonably competent practitioner.’” Thorndike, 860 N.W.2d at 320 (quoting
State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012)). “Under the second prong,
[Moss] must establish that prejudice resulted from counsel’s failure to perform an
essential duty.” Id. Failure to prove either prong is fatal to the claim. See State
v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006). In examining Moss’s claim, we
7
presume his trial attorneys performed their duties competently. See Thorndike,
860 N.W.2d at 320.
The State claims Moss failed to show his trial counsel breached an
essential duty in failing to object to the trial court’s instruction to the jury on
kidnapping as the underlying offense in support of the felony-murder charge.
The State further asserts Moss failed to establish prejudice in light of the
overwhelming evidence that Moss’s confinement of Hughes was more than
incidental to the underlying assault.
In his amended PCR application, Moss specifically claimed his trial
counsel rendered ineffective assistance in failing to object to the trial court’s jury
instruction that omitted the definition for “confinement” or “removal” necessary for
kidnapping to serve as the predicate felony in his charge of felony murder.
Our supreme court has long held:
[O]ur legislature, in enacting section 710.1 [(kidnapping defined)],
intended the terms “confines” and “removes” to require more than
the confinement or removal that is an inherent incident of
commission of the crime of sexual abuse. Although no minimum
period of confinement or distance of removal is required for
conviction of kidnapping, the confinement or removal must
definitely exceed that normally incidental to the commission of
sexual abuse. Such confinement or removal must be more than
slight, inconsequential, or an incident inherent in the crime of
sexual abuse so that it has a significance independent from sexual
abuse. Such confinement or removal may exist because it
substantially increases the risk of harm to the victim, significantly
lessens the risk of detection, or significantly facilitates escape
following the consummation of the offense.
Rich, 305 N.W.2d at 745. In subsequent cases, the supreme court applied the
standards delineated in Rich to kidnapping in the context of the commission of
other crimes. See, e.g., State v. Misner, 410 N.W.2d 216, 223 (Iowa 1987)
8
(affirming kidnapping conviction when inmates armed with shanks and knives
captured and detained guards, forced officers to release a number of prisoners,
and claimed guards were held “hostage” and demands would be forwarded).
In State v. Doughty, 359 N.W.2d 439, 441 (Iowa 1984), the trial court
minimally instructed the jury on the definition of confinement:
A person is “confined” when his freedom to move about is
substantially restricted by force, threat or deception. He may be
confined either in a place where the restriction commences or in a
place to which he has been removed. The confinement need not
exist for any particular length of time, as long as it is for the purpose
of restricting the person’s freedom to move about.
The supreme court held the defendant “was entitled to the submission of an
instruction pointing out the removal or confinement necessary for first-degree
kidnapping” and “[i]t was not enough . . . that the jurors could have inferred this
from [the language above].” Id. Furthermore, in State v. Ripperger, 514 N.W.2d
740, 750–51 (Iowa Ct. App. 1994), our court concluded an instruction that
included the Rich tripartite test2—without the intensifiers “substantially” and
“significantly”—appropriately conveyed the law and cautioned the jury that the
kidnapping charge must have independent significance apart from the underlying
offense.
Here, the trial court instructed the jury on kidnapping as follows:
A person commits kidnapping when the person either
confines a person or removes a person from one place to another,
knowing that the person who confines or removes the other person
has neither the authority nor the consent of the other to do so;
provided, that to constitute kidnapping the act must be
accompanied by the following, the intent to inflict serious injury
upon such person.
2
The standards announced in Rich have been repeatedly referred to in our case law as
the “Rich tripartite test.” See, e.g., State v. Robinson, 859 N.W.2d 464, 475 (Iowa 2015).
9
The court’s instruction to the jury did not include the standards established
in Rich and followed in subsequent cases. From the instruction given, the jurors
could not infer the confinement or removal that was necessary for kidnapping to
serve as the underlying offense in support of the felony-murder charge. See
Doughty, 359 N.W.2d at 441. Furthermore, we agree with the PCR court’s
assessment that no reasonable trial strategy is apparent from the record because
a proper Rich instruction would only have intensified the State’s burden of proof.
See Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (“Miscalculated trial
strategies and mere mistakes in judgment normally do not rise to the level of
ineffective assistance of counsel.”). Thus, we conclude the trial court’s
instruction on kidnapping was erroneous.
Our supreme court has held that counsel’s “failure to recognize an
erroneous [jury] instruction and preserve error [by objecting to it] breaches an
essential duty,” supporting a claim of ineffective assistance. State v. Ondayog,
722 N.W.2d 778, 785 (Iowa 2006). Based on our de novo review of the record,
we agree with the PCR court that Moss’s trial counsel breached an essential duty
in failing to object to the trial court’s instruction on kidnapping, which served as
an alternate predicate felony in support of the felony-murder charge.
We now turn to whether prejudice resulted from trial counsel’s failure to
perform an essential duty. Prejudice is the “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Ondayog, 722 N.W.2d at
784 (quoting Strickland, 466 U.S. at 694). In the ineffective-assistance-of-
10
counsel context, “the instruction complained of [must be] of such a nature that
the resulting conviction violate[s] due process.” State v. Maxwell, 743 N.W.2d
185, 196 (Iowa 2008) (alterations in original) (citation omitted). Whether a
defendant can show prejudice in cases challenging jury instructions as erroneous
largely depends on the facts and circumstances of the case. We must determine
whether there is a reasonable probability the jury would have reached a different
verdict assuming a jury instruction including the standards announced in Rich
was properly given.
The PCR court determined Moss was prejudiced by his trial counsel’s
failure to object to the jury instruction in question because “the evidence [did not]
clearly establish[] the prerequisites for confinement or removal independent of
the underlying crime.” The court found the evidence presented by the State “was
less than overwhelming” and this was a close case that should have been
submitted to a “properly instructed . . . jury to decide the question without
speculation and conjecture.” The PCR court reasoned:
[A] jury could reasonably find that [Hughes] did not voluntarily
accompany Moss to the bank; that Moss said, “I’m driving”; that
Moss threatened to beat up [Hughes] and said he had a gun before
they got to the bank; and that he had specific intent to commit
serious injury by dragging [Hughes] 1167 feet from the bank’s
drive-up window. On the other hand, a properly instructed jury
could reasonably find that [Hughes] suggested going to the bank;
that [Hughes] gave Moss the keys and hotwired his own car; that
Moss did not brandish a weapon; that Moss did not restrain
[Hughes] within the car; that appearing in front of a drive-up teller at
a bank that would typically have surveillance cameras did not
substantially increase the risk of harm to [Hughes], significantly
lessen the risk of detention, or significantly facilitate the risk of
escape; and that Moss did not anticipate [Hughes]’s sudden
attempt to bolt from the car. Thus, a properly instructed reasonable
jury could have reasonably concluded that the State failed to prove
beyond a reasonable doubt that the confinement or removal of
11
[Hughes] was not incidental to the assault and was substantially
more heinous as to constitute kidnapping and murder.
(Footnote omitted.) The PCR court concluded its “confidence in the outcome is
substantially undermined by the error in the trial court’s jury instructions.”
The State argues our court already considered the evidence in light of the
standards set forth in Rich on direct appeal and ultimately concluded the
evidence that Moss dragged Hughes for 1167 feet while Hughes was entangled
in his seatbelt established confinement “far greater than the mere moments [in
which] an assault would ordinarily take place” and was not “normally incidental to
assault with intent to inflict serious injury.” Moss, 2010 WL 5050561, at *5. The
State urges us to conclude our earlier opinion is the law of the case and
established that Moss was not prejudiced by his trial counsel’s error in failing to
object to the erroneous instruction.3 However, the State neglects the crucial
detail of the differing standards of review and burdens of proof at issue in this
case on direct appeal and PCR. We will not substitute our judgment on direct
appeal—when we found substantial evidence sufficient to convince the jury of
Moss’s guilt while viewing the record in the light most favorable to the State—for
that of a more stringent standard in a new trial before a properly instructed jury,
3
The State also argues the PCR court improperly relied on Justice Wiggins’s special
concurrence in Robinson because it was not the law in effect at the time of Moss’s trial in
2009. See Robinson, 859 N.W.2d at 487–88 (Wiggins, J., concurring specially) (stating
that the trial court’s instruction on the confinement necessary for kidnapping—which did
not include the Rich intensifiers “substantially” and “significantly”—would have been
reversible error on direct appeal if counsel had objected). Justice Wiggins concluded he
would have found the challenge to the instruction “was a claim worth raising” and
counsel provided ineffective assistance in failing to object to the instruction. See id. at
492. We find Moss’s claim on PCR that the instruction on kidnapping was erroneous
because it did not instruct the jury on the confinement or removal necessary for
kidnapping under the law in effect at the time of Moss’s trial. See Ripperger, 514
N.W.2d at 751; Misner, 410 N.W.2d at 223; Doughty, 359 N.W.2d at 441; Rich, 305
N.W.2d at 745.
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see State v. Hensley, 534 N.W.2d 379, 384 (Iowa 1995) (concluding sufficiency
of the evidence is a lesser standard than overwhelming evidence), especially in
such a close factual case when it is unclear on our de novo review of the record
the point at which Moss’s confinement or removal of Hughes began.
We conclude, although the jury could have found Moss’s confinement and
removal of Hughes was not merely incidental to the underlying assault, we
cannot say the record contains overwhelming evidence to compel the jury to
reach that result. See Maxwell, 743 N.W.2d at 197 (concluding trial counsel’s
failure to object to the court’s erroneous jury instruction did not prejudice the
defendant because overwhelming evidence existed to support the guilty verdict);
see also Boose v. State, No. 13-1130, 2014 WL 7343218, at *3 (Iowa Ct. App.
Dec. 24, 2014) (applying the “overwhelming evidence” standard cited in Maxwell
to the applicant’s ineffective-assistance-of-trial-counsel claim in a PCR action).
Thus, under these circumstances, we cannot conclude Moss was not prejudiced
by trial counsel’s failure to object to the erroneous jury instruction.
IV. Conclusion
Because trial counsels’ failure to object to the trial court’s kidnapping
instruction, which served as an alternate theory for the underlying offense in the
felony-murder charge, was deficient performance and resulted in prejudice to
Moss, we affirm the postconviction court’s ruling granting his PCR application.
Moss is entitled to a new trial.
AFFIRMED.