JAMES MICHAEL GREENE, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-760 / 09-0233
Filed October 21, 2009
JAMES MICHAEL GREENE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,
Judge.
James Michael Greene appeals the district court decision denying his
application for postconviction relief. AFFIRMED.
Lynn Poschner of Borseth Law Office, Altoona, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant
County Attorney, for appellee State.
Considered by Vaitheswaran, P.J., Mansfield, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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MANSFIELD, J.
James Michael Greene appeals the district court decision denying his
application for postconviction relief.
Greene was convicted of first-degree
robbery for forcing a contractor to pay him money at gunpoint. One of Greene’s
trial defenses was that the contractor owed him the money—a so-called “claim of
right” defense.
Greene argues his trial counsel was ineffective for failing to
object to a jury instruction that stated “a rebuttable presumption exists that those
in possession of property are rightly in possession.”
Greene contends this
instruction improperly shifted the burden of proof to him, and thereby violated his
due process rights. Because we agree with the district court that a “claim of
right” defense should not have been available to Greene under Iowa law, we
affirm the judgment below.
I. Background Facts and Prior Proceedings
This court set forth the facts of this case on direct appeal as follows:
James Greene was a subcontractor for Cover Up Industries,
an exterior home improvement business. In September 2000, he
contracted to hang siding on a home. Believing the work to be
complete, Greene asked Cover Up Industries owner James Ayres
for payment of his services. Ayres informed Greene the work was
incomplete and corrections needed to be made. Later the same
day, Ayres told Greene they would “settle up” when the repairs
were complete.
Upset, Greene left and retrieved a handgun. Greene
returned to Ayres’s office and asked him for payment. When Ayres
again refused, Greene pulled out the semiautomatic handgun and
demanded payment. Ayres gave Greene money from his billfold
and employee John Winchell gave him money from the petty cash
drawer. Greene then ordered the men to lie down in the corner of
the room.
Upon leaving and getting into his car, Greene
accidentally shot himself in the leg. He drove himself to the
hospital where he was treated and then arrested.
State v. Greene, No. 01-1918 (Iowa Ct. App. Sept. 11, 2002).
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Greene was charged with first-degree robbery in violation of Iowa Code
section 711.2 (1999). The case proceeded to trial on October 23, 2001. During
trial, Greene asserted a defense of diminished responsibility while trying also to
maintain an alternative defense of claim of right. The claim of right defense was
clearly expressed in Greene’s motion for a judgment of acquittal, when defense
counsel stated, “Mr. Greene was not there to steal money. He was there to
collect money that was owed to him, that he had a good faith based claim.”
After the close of evidence, a conference was held to discuss the jury
instructions. Consistent with Iowa Code sections 711.1 and 711.2, for Greene to
be convicted of first degree robbery, the State had to prove that Greene had a
specific intent to commit a theft. At that time, the State, in response to Greene’s
claim of right arguments, requested the following language be added to the jury
instruction defining theft: “Ownership is not necessary to the crime of theft; it is
committed by an unauthorized taking from one who is in rightful possession. In
addition, a rebuttable presumption exists that those in possession of property are
rightly in possession.” Greene’s counsel objected to the proposed jury instruction
on the ground that it included language not found in the Iowa Code, but his
objection was overruled. The jury found Greene guilty and he was sentenced to
a term of twenty-five years in prison.
On direct appeal, Greene asserted the additional language in the
instruction defining theft violated his due process rights by shifting the burden of
proof and relieving the State of its burden to prove every element of the offense
beyond a reasonable doubt. Id. However, this court found that Greene had
failed to preserve error because Greene’s counsel “made no reference to due
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process, the constitution, or improper burden shifting” when objecting to the theft
jury instruction.
Id.
Therefore, we affirmed Greene’s conviction without
addressing the constitutionality of the instruction. Id.
Greene filed an application for postconviction relief on July 1, 2003.
Greene’s initial application was dismissed by the district court based on an oral
motion made by Greene’s counsel outside of Greene’s presence.
Greene
appealed, and we reversed and remanded, finding that Greene had not been
afforded a meaningful opportunity to present his position. See Greene v. State,
No. 04-1764 (Iowa Ct. App. July 27, 2005).
On remand, a hearing was held on Greene’s claim that his trial counsel
was ineffective for failing to object to the jury instruction regarding theft on the
ground that it violated his due process rights. See, e.g., Sandstrom v. Montana,
442 U.S. 510, 524, 99 S. Ct. 2450, 2459, 61 L. Ed. 2d 39, 51 (1979) (holding that
a presumption in the jury instructions violated the defendant’s due process rights
under the Fourteenth Amendment). The district court determined that Greene’s
trial counsel was not ineffective because Greene invited the error and any error
was harmless beyond a reasonable doubt. Greene now appeals.
II. Scope of Review
Generally, we review postconviction relief proceedings for correction of
errors at law. Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008). However,
ineffective assistance of counsel claims are constitutional in nature; therefore,
our review is de novo. Id.
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III. Analysis
To establish a claim of ineffective assistance of counsel, a defendant must
prove (1) counsel failed to perform an essential duty and (2) prejudice resulted.
State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish 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 establish the
second prong, a defendant must show a counsel’s failure worked to the
defendant’s actual and substantial disadvantage so that a reasonable probability
exists that but for counsel’s error the result of the proceeding would have
differed. Id. Failure to prove either element by a preponderance of the evidence
is fatal to the claim. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). Therefore,
we do not have to determine whether counsel’s performance was deficient before
examining the prejudice element. State v. Wissing, 528 N.W.2d 561,564 (Iowa
1995). If sufficient prejudice is not shown, we need not address whether counsel
breached an essential duty. Id.
In this case, Greene is unable to show prejudice because the jury
instruction related to a defense that he was not entitled to in the first place. In
Iowa, the statutory claim of right defense is unavailable to a defendant in
offenses involving violent reclamations of property, such as robbery or burglary.
We decided this point in State v. Miller, 622 N.W.2d 782, 785-87 (Iowa Ct. App.
2000), prior to Greene’s trial. As we noted in Miller, there is a “modern distaste
for violent self-help” and “vigilante” action. Id. at 786. Allowing a burglar or
robber to argue that he had a “right” to the property anyway would promote
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socially undesirable conduct. Id. As we put it, “basic public policy dictates that
even rightful owners should not be permitted to perpetrate break-ins or use force
to regain their property, once it has been taken.” Id. We also held that in Iowa
Code section 714.4 the legislature recognized a claim of right defense to theft,
but not burglary and robbery. Id. at 785-87.
This case clearly falls within the holding of Miller. Greene took the money
from Ayers and Winchell at gunpoint and was charged with first-degree robbery.
Therefore, whether Greene had a reasonable belief he had a right to the money
was legally irrelevant. Such a claim of right could not have negated his intent to
commit a theft under Iowa law. See id. at 784-87.
Since a claim of right was not a defense available to Greene, it makes no
difference whether the challenged instruction established a “presumption” that
Greene did not have a claim of right. In reality, Greene received more than he
was entitled to under Iowa law when his trial counsel was permitted to argue to
the jury that Greene was merely retrieving his own money. Because the State
had no obligation to prove that the contractor was “rightly” in possession of the
money, it could not have prejudiced Greene for the jury to have been told “a
rebuttable presumption exists that those in possession of property are rightly in
possession.”
We find Greene’s counsel was not ineffective for failing to object to the
theft jury instruction on the basis of due process. Accordingly, we affirm the
denial of his application for postconviction relief.
AFFIRMED.
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