Summary
holding trial counsel did not breach an essential duty by not objecting to jury's use of recorder to listen to audiotape during deliberations
Summary of this case from State v. WalterOpinion
No. 2-981 / 01-1644.
Filed April 30, 2003.
Appeal from the Iowa District Court for Polk County, ROBERT D. WILSON, Judge.
Defendant appeals from the judgment and sentence for his convictions of delivery of methamphetamine, conspiracy to manufacture methamphetamine, possession of ephedrine or pseudoephidrine with intent to use it as a precursor, and possession of lithium with intent to use it as a precursor. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John Sarcone, County Attorney, and Dan Voogt, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Jon Johnson appeals from the judgment and sentence for his convictions of delivery of a controlled substance (methamphetamine) in violation of Iowa Code section 124.401(1)(c)(6) (1999), conspiracy to manufacture a controlled substance (methamphetamine) in violation of section 124.401(1)(b)(7), possession of ephedrine or pseudoephidrine with intent to use it as a precursor in violation of section 124.401(4), and possession of lithium with intent to use it as a precursor in violation of section 124.401(4) (Supp. 1999). He challenges the sufficiency of the evidence for the delivery and conspiracy charges and claims the trial court erred in admitting certain evidence. He also claims his trial counsel was ineffective in several respects. We reverse defendant's conviction for delivery of methamphetamine and affirm his other three convictions.
I. Background Facts and Proceedings.
In November 2000, police stopped Todd Slagle for speeding. They discovered methamphetamine precursors in his vehicle and later discovered methamphetamine under a seat. After his arrest, Slagle told police he had beneficial information for law enforcement. He agreed to provide information regarding the use and manufacture of methamphetamine by others in exchange for leniency.
Slagle informed police he purchased the methamphetamine found in his car from Johnson. At the direction of law enforcement officers, Slagle arranged to purchase drugs from Johnson. On February 1, 2001, Slagle went to the defendant's home wearing a recording device. He entered the home and purchased 1.67 grams of methamphetamine from Johnson with cash provided by police. Law enforcement officers recorded the conversation between Slagle and Johnson. During the conversation, Johnson asked Slagle if he had access to pseudoephedrine pills. Slagle responded affirmatively and the two arranged for defendant to purchase approximately $385 worth of pills at a later date.
On February 14, 2001, Johnson met Slagle at a grocery store parking lot where Slagle sold roughly 2000 pseudoephedrine pills to Johnson. As a result of this transaction, police arrested Johnson and searched his home. The search revealed stripped lithium batteries, a coffee grinder containing white powder, a clear plastic tube with a white residue, a scale, methamphetamine pipes, video surveillance cameras and a screen, a nine millimeter handgun magazine loaded with ammunition, and a picture of an unidentified man who appeared to be smoking marijuana.
The State filed a trial information on March 20, 2001 charging Johnson with delivery of a controlled substance in Count l, conspiracy to manufacture a controlled substance in Count II, possession of ephedrine or pseudoephedrine with intent to use it as a precursor in Count III, and possession of lithium with intent to use as a precursor in Count IV. A jury found Johnson guilty on all four counts. On September 21, 2001, Johnson was sentenced to a term not to exceed ten years on Count I, a term not to exceed twenty-five years on Count II, and up to five years each for Counts III and IV. Count I was ordered to run consecutively to the concurrent terms of imprisonment imposed for Counts II, III, and IV. Johnson appeals.
II. Merits. A. Admissibility of Evidence.
1. Scope of Review. Johnson contends the trial court erred in allowing Slagle to testify that he observed Johnson manufacturing methamphetamine in the defendant's home during the summer and fall of 2000. Johnson also contends the court erred in allowing the State to introduce evidence of ammunition found in his home. We ordinarily review evidentiary rulings for abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). An abuse of discretion occurs when the trial court exercises its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
2. Preservation of Error. The State claims Johnson did not preserve error on these claims. On the first day of trial, defendant made an oral motion in limine seeking to exclude Slagle's testimony and the ammunition evidence. The court withheld ruling and asked the parties not to mention this evidence during the jury selection process. During trial, the court addressed the issues outside the presence of the jury. Johnson argued Slagle's testimony regarding Johnson's prior involvement in manufacturing was inadmissible because it was not relevant. The State asserted the evidence was relevant to show the defendant was part of an ongoing conspiracy to manufacture methamphetamine. The State also argued there was no prejudice in light of defendant's claim of take-back entrapment. Johnson also claimed the ammunition evidence was unfairly prejudicial and of limited probative value. The trial court found Slagle's testimony was relevant as "dealings leading up to a crime." The court further found the evidence was relevant to show why Slagle approached Johnson about purchasing methamphetamine rather than someone else. The court also concluded the ammunition evidence was relevant. When trial resumed with the jury present, the State introduced the evidence at issue without objection by Johnson.
Because defense counsel presented his arguments pursuant to a motion in limine and failed to object to the evidence when admitted, the State submits that error was not preserved. See State v. Terry, 569 N.W.2d 364, 368-69 (Iowa 1997) (finding late motion to suppress and statement of "no objection" at trial fatal to argument on appeal). Under the circumstances presented here, we conclude error was preserved. "The preservation of error doctrine is grounded in the idea that a specific objection to the admission of evidence be made known, and the trial court be given an opportunity to pass upon the objection and correct any error." See State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003) (citation omitted). Johnson's counsel argued his objections before the trial court and the court was given an opportunity to address them. This sufficiently preserved error with respect to his claims.
3. Principles of Law. Under Iowa Rule of Evidence 5.401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evidence which is not relevant is not admissible. Iowa R. Evid. 5.402. Relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." Iowa R. Evid. 5.403. Unfair prejudice is any undue tendency to suggest decisions on an improper basis, commonly though not necessarily, an emotional one. State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988).
4. Slagle's Testimony. Johnson contends Slagle's testimony about Johnson's prior drug manufacturing activity was inadmissible as prior bad acts evidence pursuant to Iowa Rule of Evidence 5.404. Iowa Rule of Evidence 5.404( b) addresses the admissibility of evidence of other bad acts. It states:
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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
We conclude there is a problem with Johnson's "prior bad acts" argument. The record reveals the State offered evidence of prior manufacturing by the defendant not to prove Johnson acted in conformity with prior bad acts, but to establish his role in an ongoing conspiracy to manufacture methamphetamine. We believe the testimony was admissible for that purpose.
On appeal the State suggests the trial court may not have fully understood the State's argument for admission of the evidence of prior manufacturing. It points out that the trial court did not find the evidence was admissible for the purpose of proving the conspiracy charge as the State urged. Instead, the court believed the evidence was admissible regarding Slagle's credibility, and to show the interaction between Slagle and Johnson leading up to the February 2001 crimes in order to rebut Johnson's defense of entrapment. Although the State acknowledges it offered the evidence for a different purpose, it contends Slagle's testimony was also properly allowed to rebut the implication of entrapment.
The critical factor in an entrapment case is not the defendant's predisposition to commit the crime alleged. State v. Agent, 443 N.W.2d 701, 703 (Iowa 1989). Rather, the inquiry focuses on the conduct of government officers. Id. Our supreme court has stated,
In the practical world in which a jury operates to decide a defendant's fate, it is unrealistic to confine the examination of factors relevant to entrapment, even under the objective test, to only what the government agent said and did. A jury does not function in the sterile atmosphere of a scientist's laboratory and should not be isolated from the facts. The idea of entrapment of a normally law-abiding person can only have meaning at trial in the context of how the government's actions impacted on the defendant.Id. at 704.
We conclude the trial court appropriately exercised its discretion in admitting evidence of defendant's prior manufacturing activity. Johnson's manufacturing activity in the summer and fall of 2000 is relevant to rebut the defense of entrapment. As already indicated, we further find the defendant's earlier acts were relevant to establish the conspiracy which the State asserts defendant entered into with other individuals.
5. Ammunition Evidence. Johnson challenges the relevancy of State's Exhibit 6, a loaded nine-millimeter magazine, and State's Exhibit 20, a box containing loose ammunition, empty magazines, and a container for a nine-millimeter Ruger handgun. This evidence was seized during a search of the defendant's home along with other items which the State contends show Johnson was engaged in manufacturing methamphetamine. Johnson also claims the probative value of this evidence is substantially outweighed by the danger of unfair prejudice under the balancing test of rule 5.403.
The trial court found the ammunition evidence relevant and not unfairly prejudicial. Johnson offered an entrapment defense and argued that, though he was a drug user, he did not deal in controlled substances. The State had to prove the defendant intended to manufacture or deliver controlled substances. During trial, an officer described the connection between firearms and drugs as well as the significance of other items found in Johnson's home. Under the circumstances presented here, we conclude the ammunition evidence was probative and not unduly prejudicial. Defendant has failed to show the trial court abused its discretion in admitting this evidence.
B. Ineffective Assistance of Counsel.
Johnson claims his trial counsel was ineffective in several ways. To establish a claim of ineffective assistance of counsel, Johnson has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Our review is de novo. State v. Query, 594 N.W.2d 438, 444 (Iowa Ct.App. 1999). An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. Id. Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002).
Ordinarily, 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 an ineffectiveness claim on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We will address an ineffectiveness claim on direct appeal "when the record is clear and plausible strategy and tactical considerations do not explain counsel's actions." State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998).
1. Tape Recorder. The trial court provided the jury with a tape recorder to enable the jurors to play the recording made during the controlled buy at Johnson's home if they wished to do so. Johnson claims his trial counsel was ineffective for failing to object to the jury's use of the tape recorder. He contends the tape recorder's use unduly emphasized the controlled buy recording. Because we find the record is adequate, we address Johnson's claim. Arne, 579 N.W.2d at 329.
The trial court has discretion to allow the jury to retire with all papers and exhibits received as evidence. Iowa R.Crim.P. 2.19(5)( e); State v. Gathercole, 553 N.W.2d 569, 575 (Iowa 1996). The court is not allowed to permit a jury to retire with depositions. Iowa R.Crim.P. 2.19(5)( e). There is nothing in the record which suggests the court's decision to provide the jury with a tape recorder unduly emphasized the controlled buy recording. Furthermore, the record reveals the recording was difficult to understand and inaudible at times. Use of the recorder merely provided the jury with the opportunity to better understand the conversation which was recorded. The court did not abuse its discretion in providing a recorder for the jury's use. Gathercole, 553 N.W.2d at 575 (finding the trial court did not abuse its discretion in allowing the jury to use a tape recorder to review a recording admitted as an exhibit). Accordingly, defendant has failed to establish defense counsel breached an essential duty. We reject this assignment of error.
2. Entrapment Jury Instruction. Johnson asserted the defense of take-back entrapment regarding the delivery charge. He claimed Slagle sold him the methamphetamine approximately ten days before he, in turn, sold it back to Slagle during the controlled buy. At the close of trial, the court set out the elements necessary to find defendant guilty of the delivery charge in Instruction 16. The court also gave a jury instruction regarding entrapment, Instruction 18A. The disputed portion of the entrapment instruction states in relevant part, "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." The jury was also instructed to "consider all of the jury instructions together because no one instruction includes all of the applicable law."
Johnson asserts his counsel was ineffective for failing to object to the instruction in the form given. He contends the instruction denied him due process. We find the record adequate to address Johnson's claim. See State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999).
Due process entitles a defendant to certain minimal basic procedural safeguards, including the requirement that the prosecution must prove every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). Error in jury instructions "is presumed prejudicial unless the contrary appears beyond a reasonable doubt from a review of the whole case." State v. Bone, 429 N.W.2d 123, 127 (Iowa 1988) (citation omitted). The Supreme Court has stated "that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973). The proper analysis "is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. at 400, 38 L.Ed.2d at 374. A conviction is not reversible for error in jury instructions unless there is a reasonable basis for finding the jury was confused or the instructions were so contradictory the jury may have followed the wrong one. State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993).
We agree with the defendant that the entrapment instruction is defective. It allowed the jury to find Johnson guilty without requiring the State to prove every element of the crime charged by proof beyond a reasonable doubt. It is not clear whether the jury found defendant guilty of Count I based on the entrapment instruction alone without considering the essential elements of the delivery charge; the marshalling instructions alone without considering the entrapment defense; or a combination of both the entrapment and marshalling instructions. We are not permitted to speculate as to which instruction the jury followed. See State v. Davis, 228 N.W.2d 67, 73 (Iowa 1975). We cannot conclude beyond a reasonable doubt, that Johnson was not prejudiced by the unconstitutional entrapment instruction. See Bone, 429 N.W.2d at 127.
Because the jury instruction violated Johnson's right to due process, his trial counsel had a duty to object to the unconstitutional form of the instruction as submitted to the jury. Our review of the record reveals no plausible justification for trial counsel's failure to object to the entrapment instruction. Counsel's error is more than a mere strategic or tactical mistake. It constitutes reversible error because it relieved the State of proving every element of the delivery charge beyond a reasonable doubt. Under the entrapment instruction, the jury could have determined Johnson's guilt on the defense of entrapment alone. Consequently, trial counsel's failure to object to the erroneous instruction was a breach of an essential duty and prejudiced Johnson. See Hopkins, 576 N.W.2d at 379-80. We conclude Johnson's delivery conviction must be reversed and the charge remanded for a new trial.
3. Remaining Issues. We preserve Johnson's remaining claims for possible postconviction proceedings.
C. Sufficiency of the Evidence.
Johnson also contends the evidence is insufficient to support his convictions on the conspiracy and delivery charges. Based on our decision regarding the entrapment instruction, we need not address his sufficiency of the evidence challenge to the delivery charge.
We review sufficiency of the evidence challenges for correction of errors at law. State v. Chang, 587 N.W.2d 459, 461-62 (Iowa 1998). We view the evidence in the light most favorable to the State and uphold the denial of a motion for judgment of acquittal if there is substantial evidence in the record supporting the charges. State v. Boleyn, 547 N.W.2d 202, 204 (Iowa 1996). Evidence is substantial if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). A verdict can rest on circumstantial evidence alone. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). However, evidence which merely raises suspicion, speculation, or conjecture is insufficient. Id.
Because the evidence of defendant's manufacturing activity in the summer and fall of 2000 was limited by the trial court to the entrapment defense and Slagle's credibility, we are precluded from considering it in our analysis of this issue. The court's limitation is the law of the case because the State failed to appeal from the limiting instruction. See Grinnell Mut. Reins. Co. v. Recker, 561 N.W.2d 63, 71 (Iowa 1997).
The trial court instructed the jury to consider the testimony concerning the manufacturing activity during the summer and fall of 2000 only for the purpose of (1) determining Slagle's credibility, candor, bias or motivation; or (2) considering Slagle's alleged interaction with defendant leading up to the criminal conduct alleged in February 2001.
To prove the existence of a conspiracy, the State had to prove: (1) the defendant agreed with another that he or the defendant would manufacture or attempt to manufacture a controlled substance, (2) the defendant entered into an agreement with the intent to promote or facilitate manufacturing of a controlled substance, (3) the defendant or other participant in the agreement committed an overt act, and (4) the agreement was not with a law enforcement agent. Iowa Code § 706.1.
The recording made of the controlled buy included numerous references to past and future manufacturing of methamphetamine. Slagle asks, "You're not doing it here are you?" Defendant responds "No, but it smells like it after we get back." Defendant states in the recording that his clothes and car smelled like it when returning from doing it. Slagle then tells Johnson that it smelled like ether in the back of the house on a prior visit. On numerous occasions, defendant refers to another person with whom he manufactures methamphetamine. The tape is peppered with references to "him," "we," "Richie," and "Josh." It is clear defendant had an agreement with another person to manufacture methamphetamine. Slagle testified that defendant asked if he could acquire additional pills. Slagle responded affirmatively and the plan for obtaining the pseudoephedrine was discussed. Ultimately, defendant purchased roughly 2000 pseudoephedrine pills from Slagle at a grocery store parking lot. After defendant's arrest, police seized evidence of the manufacture of methamphetamine, including stripped lithium batteries, a coffee grinder with white powdery residue, a tube containing white residue, a scale, a police scanner, methamphetamine pipes, and surveillance equipment. Slagle's testimony indicated defendant had an agreement with Josh to manufacture methamphetamine with the pseudoephedrine Slagle was to provide.
Viewing the evidence in a light most favorable to the State, we conclude the jury's finding of guilt is supported by substantial evidence. After reviewing the evidence in the record, a reasonable fact finder could find proof beyond a reasonable doubt that Johnson conspired to manufacture methamphetamine within the meaning of section 706.1. We affirm the court's denial of defendant's motion for judgment of acquittal.
III. Conclusion.
We affirm Johnson's convictions for conspiracy to manufacture methamphetamine and possession of precursor items as charged in Counts II, III, and IV. We reverse his conviction for delivering a controlled substance as charged in Count I and grant a new trial on that offense. We preserve the ineffective assistance claims not addressed on direct appeal for possible postconviction relief proceedings.