Opinion
No. 5-069 / 04-0337
Filed February 24, 2005
Appeal from the Iowa District Court for Des Moines County, Mark Kruse, District Associate Judge.
Brian Michael Conard appeals his conviction for driving while barred, in violation of Iowa Code sections 321.560 and 321.561 (2003). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Jeffrey Lavallee, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Brian Michael Conard appeals his conviction for driving while barred, in violation of Iowa Code sections 321.560 and 321.561 (2003). Specifically, he contends the district court erred in failing to instruct the jury on his asserted necessity defense. Conard further alleges he received ineffective assistance of counsel. We affirm.
I. Background Facts Proceedings.
On June 20, 2003, at approximately 4:00 a.m., a Burlington police officer observed Conard driving a vehicle. Conard was not wearing his seatbelt. The officer followed the car for approximately seven blocks until Conard parked the vehicle in front of a residence. The officer approached Conard and requested his driver's license. Conard told the officer his license was suspended. Upon checking Conard's driving record, the officer learned Conard's license was barred. The officer arrested Conard. The State subsequently charged Conard by trial information for driving while barred.
At trial, Conard relied upon the defense of necessity or sudden emergency. Conard testified he woke up in extreme pain during the early morning hours prior to his arrest due to a gunshot wound he had sustained approximately seven weeks earlier. Because Conard did not have any pain medication at his residence, he decided to go to Hy-Vee to obtain ibuprofen. Conard called a cab company, but declined the service when he was informed he would have to wait approximately an hour for the cab to reach his residence. Conard called a second cab company who told him their cab was inoperable. Conard testified he decided to drive because walking to the store would have taken approximately thirty minutes. At the conclusion of the evidence, Conard submitted the following proposed jury instructions on legal excuse and sudden emergency:
Legal Excuse.
Brian Conard claims that if you find that he violated the law in the operation of his vehicle, he had a legal excuse for doing so because he was experiencing pain, therefore, he is not guilty. "Legal excuse" means that someone seeks to avoid the consequences of his conduct by justifying acts which would otherwise constitute a public offense. The burden is upon Brain Conard to establish as a legal excuse:
1. Anything that would make complying with the law impossible.
2. Anything over which the driver has no control which places the vehicle in a position contrary to law.
3. Failure to obey the law when the driver is confronted with [a] sudden emergency not of his own making.
4. An excuse or exception provided by law.
If you find that Brian Conard has violated the law as submitted to you in other instructions, and that he has established a legal excuse set forth above, then you should find that Brian Conard was not negligent for violating the particular law involved.
Sudden emergency.
A sudden emergency is a combination of circumstances that calls for immediate action or a sudden or unexpected occasion for action. A driver of a vehicle who, through no fault of his own, placed in a sudden emergency, is not chargeable with negligence if the driver exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.
The district court declined to instruct the jury as proposed. The jury found Conard guilty of driving while barred. The district court sentenced Conard to 180 days in jail, all of which except for twenty days was suspended. Conard appeals.
II. Defense of Necessity.
Conard argues the district court erred by refusing to instruct the jury on his defense. We review the propriety of jury instructions for errors at law. State v. Kellogg, 542 N.W.2d 514, 515 (Iowa 1996); State v. Breitbach, 488 N.W.2d 444, 449 (Iowa 1992). Ordinarily, the district court must instruct on a defendant's theory of defense provided the defendant makes a timely request, the requested theory of defense instruction is supported by the evidence, and the requested instruction is a correct statement of the law. State v. Johnson, 534 N.W.2d 118, 124 (Iowa Ct.App. 1995). Evidence in support of the requested instruction must be substantial. State v. Broughton, 425 N.W.2d 48, 51-52 (Iowa 1988). Evidence is substantial if it could convince a rational fact finder that the defendant has established the affirmative defense. Id. It is axiomatic that if the record is insufficient to support a party's theory of defense, the court need not submit the theory to the jury. Vasconez v. Mills, 651 N.W.2d 48, 52 (Iowa 2002).
We first note, that as worded, both instructions are an incorrect statement of criminal law. The proposed instructions incorporate the terminology and burden of proof applicable to civil negligence cases. Because the proposed instructions erroneously apply a civil standard to criminal proceedings, the trial court properly refused the proposed instructions. See Johnson, 534 N.W.2d at 124 (noting a trial court is not required to instruct on defendant's theory of defense if it contains an incorrect statement of law).
However, even if we were to assume Conard's proposed instructions were a correct statement of the law, we find defendant's evidence in this case failed to generate a fact question on his defense. The sudden emergency doctrine "reflects the realization that a person who is confronted with an emergency situation is `left no time for thought, or is reasonably so disturbed or excited, that he cannot weigh alternative courses of action, and must make a speedy decision, based largely upon impulse or guess.'" Jones v. Blair, 387 N.W.2d 349, 352 (Iowa 1986) (quoting W. Prosser, The Law of Torts § 33, at 169 (4th ed. 1971)). To excuse otherwise illegal conduct, the event constituting an emergency must provoke "if not an instantaneous response, certainly something fairly close to that." Foster v. Ankrum, 636 N.W.2d 104, 106 (Iowa 2001). "`[A] person is not entitled to the benefit of the emergency rule if it clearly appears he either had actual knowledge of a dangerous situation or in the exercise of reasonable care could have such knowledge in time to act in relation thereto.'" Vasconez, 641 N.W.2d at 54 (quoting Rice v. McDonald, 258 Iowa 372, 380, 138 N.W.2d 889, 894 (1965)).
The problem with Conard's argument is that his alleged emergency was not as he asserts, unexpected, but rather, foreseeable. See Weiss v. Bal, 501 N.W.2d 478, 481 (Iowa 1993) (holding driver's conduct could not be excused when alleged emergency was foreseeable). Conard received the gunshot wound that caused him pain seven weeks earlier. Conard testified he had been experiencing pain ever since he left the hospital and that he had been taking prescription medication to control his discomfort. He was not only aware of his injury, but also aware of the need to control his pain with medication. It was entirely foreseeable that without any type of medication, Conard would experience extreme pain. Conard's conduct in failing to make reasonable accommodations to control his foreseeable pain essentially created the alleged emergency situation. See Vasconez, 651 N.W.2d at 55 (holding a driver who failed to account for a foreseeable hazard created the emergency and therefore, the court properly refused to give the instruction). In short, Conard had actual knowledge of the need to control his pain through medication and had ample opportunity to remedy the situation. Because Conard's alleged emergency was entirely foreseeable, the trial court did not err in refusing to submit this issue to the jury.
III. Ineffective Assistance of Counsel.
Finally, Conard avers he received ineffective assistance of counsel. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted from counsel's error. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). 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).
Conard claims his trial counsel was ineffective for failing to lodge an objection to Jury Instruction 4, which stated: "you must determine the defendant's guilt or innocence from the evidence and the law in these instructions." He asserts the utilization of the term "innocence" placed an unconstitutional burden on him because it forced him to prove his own innocence. Our supreme court has most recently addressed and rejected this argument in State v. Tubbs, ___ N.W.2d ___ (Iowa 2005). We conclude, as did the court in Tubbs, that when the jury instructions are considered as a whole, "they make it clear that [the defendant] was presumed innocent and the State had the burden to prove guilt beyond a reasonable doubt." Id. (citing State v. Fintel, 689 N.W.2d 95, 104 (Iowa 2004)). Consequently, counsel was not ineffective in failing to raise this meritless issue. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). We find no basis for reversing Conard's conviction and therefore affirm.