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finding officer's statement that residue was sufficient for a conviction to be "a correct statement of the law in Iowa"
Summary of this case from State v. AllieOpinion
No. 4-767 / 03-2092
Filed February 24, 2005
Appeal from the Iowa District Court for Black Hawk County, J.D. Coil, District Associate Judge.
Edward Martin III appeals from the district court's judgment and sentence, entered after a jury trial, finding him guilty of possession of cocaine, second offense, in violation of Iowa Code section 124.401(5) (2003). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jill Dashner, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, and Hecht, JJ., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Edward Martin III appeals from the district court's judgment and sentence, entered after a jury trial, finding him guilty of possession of cocaine, second offense, in violation of Iowa Code section 124.401(5) (2003). We affirm.
I. Background Facts and Proceedings.
On June 14, 2003 Waterloo police officers Ritchie Hesse and Aaron McClelland observed Martin and two other men drinking beer in a public parking lot. Officer Hesse requested that they dump out their beer and leave. A routine records check, however, revealed an outstanding warrant for Martin's arrest. While placing Martin under arrest, Officer McClelland asked Martin if he had anything in his pocket. Martin replied that he had a crack pipe in his pocket. Both officers observed residue in the pipe, but the pipe did not appear to be warm. Subsequent tests revealed the presence of cocaine in the pipe.
The State later charged Martin with possession of cocaine, in violation of Iowa Code section 124.401(5). Following trial, the jury returned a verdict of guilty. Following a later trial on the question of enhancement, the jury returned an interrogatory finding Martin previously had been convicted of delivery or possession with intent or conspiracy to possess with the intent to deliver a controlled substance. The court sentenced Martin to a prison term not to exceed two years and fined him $500. Martin appeals.
II. Evidence of Outstanding Warrant.
Over objection by Martin's trial counsel, both arresting officers testified the reason they arrested Martin was the existence of a warrant for his arrest. On appeal, Martin alleges the court abused its discretion in allowing the jury to hear that he was arrested on an outstanding warrant.
We review challenges to the admission of evidence for an abuse of discretion. State v. Veal, 564 N.W.2d 797, 807 (Iowa 1997). 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). Reversal is not required for the erroneous admission of evidence unless prejudice results. State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994).
We conclude the court did not abuse its discretion in allowing the jury to hear that officers searched Martin and arrested him based on the existence of an arrest warrant. Significantly, the charge underlying the warrant was not made known to the jury. Without more than the simple evidence of a general warrant, we cannot conclude this is the type of evidence which "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action" such that it would "cause a jury to base its decision on something other than the established propositions in the case." State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988). Accordingly, Martin failed to establish he suffered such prejudice as would justify a reversal of his conviction.
Our resolution of this issue is strongly influenced by a jury instruction directing the jury to ignore any suspicion which might arise from Martin's arrest. While it is true the cautionary instruction did not specifically address the existence of the warrant, the fact of the arrest itself arose from the existence of the warrant. Thus, we believe the substance of the instruction, which jurors are presumed to follow, see State v. Piper, 663 N.W.2d 894, 915 (Iowa 2003), can fairly be read as instructing the jury to ignore suspicion arising from the warrant which precipitated Martin's arrest. Accordingly, we affirm on this issue.
III. Ineffective Assistance of Counsel.
Martin also maintains trial counsel provided ineffective assistance in four respects. When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). However, we will consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001).
A. Property Tags.
Martin first claims his trial counsel was ineffective in failing to object to information contained on a property tag and on an evidence tag. A property tag on the crack pipe stated "One glass pipe. Suspected crack residue." Further, a tag on the envelope containing the pipe bore the descriptive term "Narcotics." Martin now argues counsel should have objected to these tags because they "contained improper hearsay . . . improperly summarizing the State's case."
Generally, the admission of incriminating evidence with an evidence tag still attached is error. State v. Shultz, 231 N.W.2d 585, 587 (Iowa 1975); State v. Branch, 222 N.W.2d 423, 427 (Iowa 1974). Such a tag is clearly hearsay. Branch, 222 N.W.2d at 426. Prejudicial error can occur even if the evidence tags are cumulative of other evidence in the record. Shultz, 231 N.W.2d at 587. However, error in the admission of an evidence tag may be deemed harmless where the defendant has made an admission relevant to the subject addressed by the tag. See State v. Gallup, 500 N.W.2d 437, 440-41 (Iowa 1993) (applying harmless error analysis where defendant admitted he sold drug referred to on evidence tag).
This issue is presented to us, however, in the context of Martin's claim of ineffective assistance of counsel. We conclude Martin must, notwithstanding the rule announced in Shultz, still establish Strickland prejudice arising from trial counsel's breach of duty. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. After careful review of the record, we find no probability that removal of the evidence tags would have produced a different outcome in this case. Martin admitted to the arresting officers that he possessed a crack pipe. A DCI report received in evidence documented that the pipe contained cocaine residue. Thus, in light of Martin's admission and other strong evidence establishing Martin's possession of crack cocaine, trial counsel's failure to object to the hearsay statements on the property tags did not likely affect the outcome. Our confidence in the outcome of the case is not shaken, and we therefore conclude this claim of ineffective assistance is without merit.
B. Officers' Testimony on Law.
At trial, the prosecutor asked Officer McClelland if "it is legal to possess any amount of cocaine even if it's just residue?" He responded "No." Likewise, the prosecutor asked another officer "is it legal to possess residue of any amount of cocaine?" The officer responded "No, it's not." On appeal, Martin urges that the officers' testimony on the substance of the law was inaccurate and that trial counsel was ineffective in failing to object to the testimony.
Here, Martin was convicted on evidence of mere burnt residue of cocaine. We believe the officers' testimony was a correct statement of the law in Iowa. See State v. Simpson, 587 N.W.2d 770, 774 (Iowa 1998) (affirming a conviction where defendant possessed crack pipes containing burnt residue). However, the jury instructions in this case directed the jury to find Martin guilty if he knowingly possessed cocaine, not burnt residue of cocaine. Notwithstanding this slight inconsistency between the officer's testimony and the jury instruction, we conclude Martin did not suffer prejudice. It is not reasonably probable that counsel's failure to object to the officers' clearly inadmissible testimony led the jury to convict Martin on an improper ground. Our confidence in the outcome of the trial is not shaken.
C. Identification of Martin.
Martin next maintains counsel was ineffective in failing to move for judgment of acquittal on the grounds of insufficient proof of identification on the enhancement of his second-offense conviction. In particular, he contends there was no evidence offered to identify him as the person referred to in the documents offered to establish the prior conviction. We will address on direct appeal this challenge to the sufficiency of the evidence. State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004).
In reviewing challenges of this nature, we examine the evidence in the light most favorable to the State, and make all reasonable inferences that may fairly be drawn therefrom. State v. McPhillips, 580 N.W.2d 748, 753 (Iowa 1998). Evidence is substantial if a rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994).
We conclude the evidence was sufficient to support Martin's conviction on the enhancement. In support of its position that Martin had been convicted of a drug offense in 1991, the State presented to the jury several documents including: two financial affidavit forms, one from 1991 and one from the current case; certified copies of an order of judgment from 1991; and two fingerprint cards, one from 1991 and one from 2003. The documents from the earlier case list the same social security number and birth date for Edward Martin III as appear on the documents from the 2003 possession conviction. Our de novo review of the record reveals that the signatures of Edward Martin III on the documents related to the earlier and later crimes appear to be consistent. Finally, as the State notes, other consistencies as to gender, race, height, hair, and eye color on the fingerprint documents from 1990 and 2003 support the jury's finding. Viewed in a light most favorable to the State, substantial evidence supports a finding that Edward Martin is the same individual as the person who was convicted of cocaine delivery in 1991. Accordingly, counsel did not provide ineffective assistance because the motion for judgment of acquittal would have been without merit.
D. Fingerprint Card.
The State introduced Exhibit J, a fingerprint card dated June 14, 2003 which contained the statement "Suicidal Tendencies, Known to Assault Police, Known to Go Armed." Martin's counsel did not object to this evidence. He now claims counsel had a duty to object to these "highly inflammatory" remarks. We find the record inadequate to address this issue, and therefore preserve it for a possible postconviction relief application.