Opinion
No. 2-452 / 01-0068.
Filed July 19, 2002.
Appeal from the Iowa District Court for Polk County, SCOTT D. ROSENBERG, Judge.
Defendant appeals his judgment and sentence for possession of more than five grams of crack cocaine with the intent to deliver and failure to affix a drug tax stamp, in violation of Iowa Code sections 124.401(1)(b)(3) (1999), 453B.3, and 453B.12, following a jury trial. AFFIRMED.
Martha Suddreth, Bondurant, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Defendant-appellant Kristopher Shawn Allen, also known as Chris Harris, appeals his judgment and sentence for possession of more than five grams of crack cocaine with the intent to deliver and failure to affix a drug tax stamp, in violation of Iowa Code sections 124.401(1)(b)(3) (1999), 453B.3, and 453B.12, following a verdict of guilt in a jury trial. Defendant argues on appeal that 1) there was insufficient evidence to support the verdict, 2) the trial court erred in denying his motion to suppress, 3) he was rendered ineffective assistance of counsel, and 4) the admission of laboratory reports under section 691.2 violated his Sixth Amendment right to confrontation. We affirm.
On June 27, 2000 defendant was sitting in an indoor porch at 1532 21st Street in Des Moines, Iowa, with Cortez Armstrong when Des Moines police officers Ortman and Hickey arrived, following a report of suspected drug trafficking at that address. Upon approaching the porch, the officers testified they detected the smell of marijuana. Officer Ortman knocked on the door. In answer to Armstrong's asking his identity, Officer Ortman initially answered with his undercover name, "Tony," and then identified himself as an officer. Apparently Armstrong then partially closed the door, but as Officer Ortman talked to him, opened it wide enough to make entry possible. The officers came through the door, which led them to a closed-in porch where Armstrong and defendant had been sitting, according to testimony. Defendant then disappeared into the house. Officer Ortman pursued him. Officer Hickey remained on the porch where he saw a baggie of what he described to be crack cocaine partially covered by a blanket located on the bench where Armstrong and defendant had been sitting. He also saw another baggie with some small baggies and a scanner inside. Additionally, on or near that bench the officer saw and seized a box of cigars, a marijuana roach, and a container of liquid.
Ortman, having entered the house in pursuit of defendant, saw defendant coming up the basement steps and returned defendant to the porch area. A pat-down search of Armstrong revealed a bag of marijuana and cash on his person. Officer Ortman placed defendant in handcuffs. After discovering defendant was not yet eighteen years old and determining he had no parents or guardians in Iowa, Officer Hickey read defendant his rights. Defendant indicated that he understood them, and then told the officer that the baggie of crack cocaine would likely have his fingerprints on it. According to Officer Hickey, defendant next proceeded to point out a green, leafy substance, also on the porch.
A short time later codefendant Scott Wilson appeared at the front door and stated that he lived at the address. Other evidence supported his admission.
Other officers who appeared on the scene obtained and executed a search warrant. They seized several items, including a wrapper containing a green, leafy substance found in the living room, three rock substances located in the southwest bedroom, and a green leafy substance found in the southwest bedroom. The officers submitted the marijuana baggie found on Armstrong, the baggie of crack, the container with the liquid, and the marijuana roach, all of which were found on the porch, as well as the above-mentioned items seized pursuant to the search warrant, to the state laboratory for identification through testing. Laboratory personnel identified substances found in and on these items in reports which were introduced into evidence by the State.
Besides the drug and drug paraphernalia found in the house, a bag containing over $4000 was found in the basement. Two guns were also found in a bedroom in the house. As stated above, Armstrong was found to have cash on his person, and during the time the officers were at the address, three people came to the house to buy crack cocaine. No drugs or any significant amount of money were found on defendant's person.
On July 12, while being held in jail, defendant made the statement that the bag of money found at the house was his, and that he had just been "hauling" that bag. The statement was made in response to Officer Hickey's telling defendant that his fingerprints had been found on the bag. Yet defendant's fingerprints were never found on any of the items submitted for fingerprint testing, including the bag of money.
I. SUFFICIENCY OF THE EVIDENCE
Defendant first argues the evidence was insufficient to support the verdict finding him guilty of possession of crack cocaine with intent to deliver. Defendant argues that he could not have been found in possession because he claims the State failed to demonstrate he exercised dominion or control over the crack cocaine. See State v. Atkinson, 620 N.W.2d 1, 6 (Iowa 2000). The defendant further urges that he did not reside at the address where the arrest was made, and that no drugs or indicia of drug dealing were found on his person.
The State argues the following evidence is substantial to support the verdict that defendant possessed crack cocaine with intent to deliver it: (1) defendant was in close proximity to a large and partially-visible amount of cocaine and packaging materials found on the porch; and (2) defendant made a quick exit into the basement when the police identified themselves. The State contends that defendant's intent to deliver was further evidenced by (1) his voluntary statement to Officer Hickey that his fingerprints were probably on the partially-visible baggie of crack cocaine found on the porch, (2) his pointing out the marijuana roach, 3) the paraphernalia on the porch, and 4) the large sum of money found on codefendant Armstrong, the person defendant was sitting near when the police arrived.
We review challenges to the sufficiency of the evidence for errors at law. Id.; Iowa R. App. P. 6.4. In reviewing challenges to the sufficiency of evidence supporting a guilty verdict, we consider all of the record evidence in the light most favorable to the State, and we make all reasonable inferences that may fairly be drawn from the evidence. Atkinson, 620 N.W.2d at 3. A verdict of guilt is binding unless no substantial evidence in the record exists to support it, or it is clearly against the weight of the evidence. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). Substantial evidence is evidence which would convince a rational factfinder that the defendant is guilty beyond a reasonable doubt. Id.
Unlawful possession of a controlled substance requires proof of three elements: (1) dominion and control of the substance, (2) knowledge of its presence, and (3) knowledge of its nature. State v. Padavich, 536 N.W.2d 743, 751 (Iowa 1995) ( citing State v. Rudd, 454 N.W.2d 570, 571 (Iowa 1990)). Possession can be actual or constructive and sole or joint: the word "possession" includes actual as well as constructive possession, and also sole as well as joint possession. Padavich, 536 N.W.2d at 751. A person who has direct physical control of something on or around his person is in actual possession of it. Id. A person who is not in actual possession, but who has knowledge of the presence of something and has the authority or right to maintain control of it either alone or together with someone else, is in constructive possession of it. Id.; see also State v. Simpson, 528 N.W.2d 627, 631 (Iowa 1995). Additionally, a fact finder may infer constructive possession when the thing is found in a place which is subject to the defendant's dominion and control, or to the joint dominion and control of the defendant and other persons. Simpson, 528 N.W.2d at 632. However, dominion and control must be established with proof, not merely inferred, where the accused has not been in exclusive possession of the premises. Atkinson, 620 N.W.2d at 3 (citing State v. Reeves, 209 N.W.2d 18, 23 (Iowa 1973)).
We agree with the State that there was evidence which was persuasive beyond a reasonable doubt that defendant had sufficient dominion and control over the premises to establish constructive possession of the crack cocaine with intent to deliver. Defendant was on the porch when the officers arrived. The baggie of crack cocaine was on the porch and visible. The baggie contained a large amount of crack cocaine. There was evidence defendant was aware of the bag of cocaine and had touched it, as he indicated after his arrest that it may have his fingerprints on it. Defendant was in the company of Armstrong, who was found to have a large sum of money on his person. Defendant and Armstrong were the only people at the house when the police arrived. The evidence is sufficient to support a finding that the cocaine on the porch was in defendant's constructive possession, and he had sufficient dominion and control over the area where the cocaine was found to establish he possessed the crack cocaine with the intent to deliver. In that there was no tax stamp on the cocaine, we also find the evidence supported the drug tax stamp violation.
II. MOTION TO SUPPRESS
Defendant next claims the trial court erred in not granting his motion to suppress the statement he made to officers while in jail that his fingerprints would be on the bag of money found in the basement. Defendant claims he made this statement only after being told falsely by officers that his prints were on the bag. Defendant claims the statement made by officers eliciting what he claims was an involuntary response was interrogation, and was in violation of his Fourteenth Amendment due process rights, his Sixth Amendment right to counsel, his Fifth Amendment Miranda rights, and his rights under Iowa Code section 232.45(9).
Defendant is likely referring to section 232.45(11). This section was renumbered in the 1997 Iowa Code Supplement.
Defendant failed to raise this issue before the trial court in a timely manner. Although defendant joined a suppression motion filed by three codefendants, that motion did not include the statement defendant now claims should have been suppressed. Error preservation rules apply equally to constitutional issues. See State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999). This issue was not preserved for our direct review.
III. INEFFECTIVE ASSISTANCE
Defendant next claims that the failure of his counsel to make a timely motion to suppress the statement he made in jail, as well as statements he made at the time of his arrest, was ineffective assistance of counsel.
In analyzing ineffective assistance claims, our review is de novo. State v. Morgan, 559 N.W.2d 603, 612 (Iowa 1997). A defendant receives ineffective assistance of counsel when 1) the defense attorney fails in an essential duty, and 2) prejudice results. State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct.App. 1998) (citations omitted). Defendant's counsel admitted, when his motion to suppress defendant's statements was denied by the court as untimely, that he had rendered ineffective assistance of counsel.
We affirm because we find defendant has failed to show prejudice. Defendant was in the porch where the large amount of crack cocaine was found. He left the porch area and went to the basement where the bag of money was found. Defendant's statement that his fingerprints would likely be on the money bag was directly refuted by lab reports. His fingerprints were not found on the bag. Defendant's actions at the time of the incident, not his statements afterward, which were proven to be untrue, establish his connection to the scene.
IV. RIGHT TO CONFRONTATION
Defendant claims on appeal that the statute under which the trial court allowed the introduction of these lab reports, specifically section 691.2 of the Iowa Code, is unconstitutional in that it violates defendant's Sixth Amendment right to confrontation. Defendant's authority for this contention is a recent finding by the Illinois Supreme Court, in People v. McClanahan, 729 N.E.2d 470, 478 (Ill. 2000), that an Illinois statute similarly providing for the introduction of lab reports without the preparer's in-court attestation as to their reliability was unconstitutional.
We review defendant's constitutional claim de novo. State v. Jefferson, 574 N.W.2d 268, 271 (Iowa 1997). The confrontation clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. amend. VI; see also, Ohio v. Roberts, 448 U.S. 56, 62-63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597, 605 (1980); Iowa Const. art. 1, § 10. A face-to-face confrontation is essential except in limited cases and under very stringent requirements. See Morgan v. State, 469 N.W.2d 419, 423 (Iowa 1991). A face-to-face confrontation may be denied if denial of such confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured. Id. (citations omitted).
We first address whether the protections of the confrontation clause are satisfied by the provision in section 691.2 requiring a criminalistics laboratory employee or technician to testify during a particular proceeding if the defendant makes such a request ten days in advance of a proceeding. In its previous inquiries into the constitutionality of this statute the Iowa Supreme Court has approached the issue from this angle, finding that the option to require a lab technician to testify, even if it requires defendant to make this request ten days prior to a proceeding or forfeit the right, satisfies defendant's right to confront and cross-examine adverse witnesses. In State v. Kramer, 231 N.W.2d 874, 880 (Iowa 1975), the court reasoned that the purpose of the confrontation clause was to secure the right for the accused the opportunity of cross-examination. Id., (emphasis added) (citations omitted). In concluding the defendant's right to cross-examine was an "opportunity," the court appeared to reason that the defendant's right was one he had to exercise to maintain. Id. Similarly, in State v. Davison, 245 N.W.2d 321, 323 (Iowa 1976), the court appeared to conclude that defendant needed to exercise his right to confrontation if he wished to maintain it.
More recent treatment of this issue by the United States Supreme Court indicates the contrary conclusion, that a defendant possesses a right to confrontation by default, and that he need not exercise this right to maintain it. In Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653-54, 98 L.Ed.2d 798, 811 (1988), the United States Supreme Court reasoned, in differentiating the compulsory process clause of the Sixth Amendment from the confrontation clause, that, unlike the confrontation clause's automatic imposition of a right upon the defendant, the availability of the compulsory clause was entirely dependant upon the defendant's initiative. The Illinois Supreme Court recently adopted this reasoning in McClanahan, 729 N.E.2d at 476, for its conclusion that the requirement upon the defendant to request testimony by the preparer of a lab report "impermissibly [required] the defendant to take affirmative action to secure a right that he [had] already been constitutionally guaranteed or be deemed to have waived that right." In the case at hand, defendant argues that Iowa law similarly conflicts with Taylor and is similarly unconstitutional insofar as it requires the defendant to assert his right to confrontation in order to possess it.
Without deciding that the confrontation clause must be exercised to be maintained, but finding that the statutory option to request the presence of a lab technician does not summarily dismiss the confrontation issue, we turn to the substantive requirements of the confrontation clause. The confrontation clause plays an integral role in the administration of justice, but it must occasionally give way to considerations of public policy and the necessities of the case. See Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409, 411 (1895). We recognize that a competing interest to the right of the accused under the confrontation clause is the State's interest "in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings." Roberts, 448 U.S. at 64, 100 S.Ct. at 2538, 65 L.Ed.2d at 607.
The confrontation clause permits hearsay evidence to be admitted against a defendant only where either the evidence falls within a firmly rooted hearsay exception or where particularized guarantees of trustworthiness assure the reliability of the evidence. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608.
In arguing that the lab reports in this case are in violation of the confrontation clause, defendant claims they do not fall under any firmly rooted hearsay exception. The State concedes that the Iowa Supreme Court would probably find laboratory reports to be inadmissible under the rule 803(8)(B) investigative report exception to the business record exception to the hearsay rule. See State v. McCurry, 544 N.W.2d 444, 445-47 (Iowa 1996). We are inclined to agree with defendant that laboratory reports are inadmissible as an exception to hearsay if they are introduced without accompanying testimony by their preparer. See McCurry, 544 N.W.2d at 445-48.
We therefore look to the alternative means under the confrontation clause under which hearsay may be admitted, namely whether the hearsay possesses particularized guarantees of trustworthiness. Defendant again refers us to McClanahan, 729 N.E.2d at 475, where the Illinois Supreme Court also determined that laboratory reports did not possess such particularized guarantees of trustworthiness to justify their being introduced without accompanying testimony as to their reliability. The McClanahan court found that although the Illinois statute required a notarized statement by the preparer of the report indicating 1) identity of the preparer, 2) his or her employment by the Department of the State Police, 3) name and location of the laboratory, 4) performance of analysis as part of regular duties, and 5) qualification by education, training and experience, the reports nevertheless contained insufficient guarantees of trustworthiness. Id. at 473, 475. The court reasoned that the statute only provided for "vague assurances" of trustworthiness, that it did not require the State to provide any information as to how the tests were conducted, what the accepted scientific procedures were, or what qualifications and training the lab employees had. Id. at 475.
As the defendant points out, section 691.2 provides for the admission of a lab report without even one of these accompanying guarantees of trustworthiness. The State argues in response, with authority, that the very nature of the reports supplies the requisite guarantees: lab reports document the performance of routine tests; these sorts of lab tests would be mechanically objective; the tests would have been performed by qualified professionals; and the results recorded would have been recorded contemporaneously. See Minner v. Kerby, 30 F.3d 1311, 1314-15 (10th Cir. 1994); Reardon v. Manson, 806 F.2d 39, 41 (2d Cir. 1986). The State further argues that the right to confrontation really would not serve a purpose here: it would be unlikely that a chemist would remember any particular one of the many tests he or she performs, and cross-examination would therefore be fruitless. Reardon, 806 F.2d at 41.
We note that the State offers additional authority for its contention that the nature of the tests themselves demonstrates their trustworthiness. See Fischer v. Powers, 957 F.2d 609, 610 (8th Cir. 1992); State v. Huggins, 659 P.2d 613, 616-17 (Alaska Ct.App. 1982); Howard v. United States, 473 A.2d 835, 839 (D.C. 1984); State v. Smith, 323 S.E.2d 316, 318 (N.C. 1984) (Martin, J., dissenting); State v. Hancock, 854 P.2d 926, 930 (Or. 1993) (Unis, J., dissenting); State v. Hughes, 713 S.W.2d 58, 62 (Tenn. 1986). But we must also note that all of the above cases involved statutes where there was at least some statutory requirement (e.g., accompanying affidavit, certification) tending to support the trustworthiness of the lab report. Iowa, in contrast, has no such statutory requirement to establish trustworthiness and must rely solely on the nature of the investigative report to establish "particularized guarantees of trustworthiness."
In Iowa there exists a strong presumption that a regularly enacted statute is constitutional. Kramer, 231 N.W.2d at 880. Given our own supreme court's decisions in Kramer and Davison upholding the constitutionality of a presumptive-reliability statute, as well as the above authority indicating many other states have found their own presumptive-reliability statutes do not violate constitutional protections, combined with the inherent reliability of laboratory reports which demonstrates their particularized guarantees of trustworthiness, we find section 691.2 of the Iowa Code is constitutional. We affirm on this issue.
AFFIRMED.