Opinion
No. 2-787 / 01-0448.
Filed December 11, 2002.
Appeal from the Iowa District Court for Muscatine County, PATRICK J. MADDEN, Judge.
Defendant appeals from a conviction and sentence for delivery of a controlled substance, alleging ineffective assistance of counsel. AFFIRMED; MOTION FOR LIMITED REMAND DENIED.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Richard R. Phillips, County Attorney, and Alan R. Ostergren, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and ZIMMER, and HECHT, JJ.
Steve Mendoza appeals from his convictions and sentences for delivery of cocaine. We affirm.
Background Facts and Proceedings . Police utilized confidential informant David Huerta to facilitate three controlled drug buys with Steve Mendoza. The transactions took place at Mendoza's home, which was in close proximity to an elementary school. Mendoza was charged with three counts of delivery of a controlled substance, as well as a sentencing enhancement for delivery within 1,000 feet of an elementary school. After initial refusals, Huerta eventually testified at trial. The State also offered testimony from a police officer, who used both a manual wheel counter and a laser device, that the distance between Mendoza's home and the neighboring school was either 688 or 635 feet. The "guilty" verdict forms submitted to the jury each required an additional finding as to whether the deliveries had taken place within 1,000 feet of the school. The jury returned guilty verdicts on all three counts, as well as findings the deliveries had occurred within 1,000 feet of the school. Mendoza appeals, forwarding numerous allegations of ineffective assistance of counsel.
Scope of Review. Ineffective assistance of counsel claims are reviewed de novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002).
Ineffective Assistance of Counsel. A number of Mendoza's claims are not stated with specificity and, accordingly, are not subject to resolution on direct appeal or preservation for possible postconviction proceedings. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (finding a defendant must state the specific way in which counsel's performance was deficient and identify how competent representation probably would have changed the outcome). To succeed on his remaining claims Mendoza must show his trial counsel's performance fell below the normal range of competency, and the inadequate performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 674, 693 (1984). To show prejudice he must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). We find he has failed to make this showing.
Mendoza makes a number of claims regarding the adequacy of his attorney's trial preparation. His primary focus is on the covert audio recordings of the transactions. Although officers testified the tapes were largely unintelligible, Mendoza argues his counsel should have listened to the tapes, and pointed up the "inconsistency" that allegedly unintelligible tapes were nevertheless used as a basis for a search warrant application.
We note that while the application stated a confidential informant had worn a body microphone to enable police taping of the transactions, police did not attempt to rely on the content of the tapes to bolster the application.
The portions of the record Mendoza refers to intimate, but do not establish, counsel's failure to review the tapes. Such fact might warrant preservation of the claim for possible postconviction proceedings. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). In this case, however, Mendoza has not clearly stated, much less shown, how counsel's alleged failure to listen to the tapes prejudiced his case. Dunbar, 515 N.W.2d at 15. Moreover, in light of the testimony that the tapes were largely unintelligible, and in the face of the remaining evidence of his guilt, particularly Huerta's testimony, Mendoza cannot show a reasonable probability that review of the tapes would have led to a different result. Atwood, 602 N.W.2d at 784. The same is true regarding counsel's failure to address the alleged inconsistency regarding the tapes and their use to support the warrant application. Id. Mendoza's remaining claims regarding trial preparation fail for lack of specificity. Dunbar, 515 N.W.2d 15.
Mendoza also argues counsel failed to adequately mount a defense. His focus is on counsel's failure to explore or assert an entrapment defense, and to move for a new trial on this same basis. However, the portions of the record Mendoza refers to, including his post-trial letter to the court, fall far short of constituting substantial evidence of entrapment. See State v. Babers, 514 N.W.2d 79, 83 (Iowa 1994) (noting a defense is submitted to a jury only upon a defendant showing substantial evidence in support of the theory).
While police clearly created the opportunity for Mendoza to commit the crimes, this is not entrapment. Jim O. Inc. v. City of Cedar Rapids, 587 N.W.2d 476, 479 (Iowa 1998). Although Mendoza's post-trial letter contends Huerta played on his sympathies, his statement does not adequately demonstrate " excessive incitement, urging, persuasion, or temptation by law enforcement agents." Babers, 514 N.W.2d at 83 (emphasis added). Mendoza has not shown a reasonable probability an entrapment defense would have been submitted to the jury, much less resulted in acquittal. Atwood, 602 N.W.2d at 784. We do not consider Mendoza's remaining claims regarding counsel's presentation of a defense, as he has not stated how these alleged failings prejudiced his case. Dunbar, 515 N.W.2d. at 15.
Mendoza further argues counsel should have objected when the prosecution used leading questions with Huerta, and when the prosecutor elicited testimony from Huerta that he had been threatened. However, Huerta was clearly a reluctant witness, having previously refused to testify, and the information about the threats was non-specific, and did not reference Mendoza. We cannot find, particularly in the face of the remaining evidence, that Mendoza demonstrated these omissions by counsel prejudiced his defense. Atwood, 602 N.W.2d at 784. As Mendoza concedes in his reply brief, even if the evidence of threats had been excluded, "[t]here still would have been uncontroverted evidence of three deliveries."
Finally, Mendoza argues counsel should have requested a specific jury instruction that the State bore the burden of proving the transactions had taken place within 1,000 feet of an elementary school, as that fact serves as a sentencing enhancement in this case. See Iowa Code § 124.401A (1999) (providing a person who distributes drugs within 1,000 feet of an elementary or secondary school may be sentenced up to an additional term of five years). It is clear such an instruction would have been appropriate, as a sentencing enhancement "must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2363, 147 L.Ed.2d 435, 455 (2000). While it appears the sentencing enhancement itself was submitted to the jury, we are not convinced the jury was adequately instructed as to the burden of proof.
Mendoza argues that because the jury was not instructed the State had to prove the distance to the school, they failed to properly apply the general jury instruction that "[w]henever . . . the State must prove something, it must be by evidence beyond a reasonable doubt." As a purely legal proposition, there is some merit to his stance. If the evidence as to distance had been in dispute, we might agree Mendoza had established a reasonable probability that, if the appropriate instruction had been given, the jury would have retuned a different finding on the sentencing enhancement. Under the record in this case, however, we cannot find Mendoza established prejudice.
Both police measurements were less than 1,000 feet, and no evidence contradicted these measurements. Although the officer admitted neither device had been formally certified or calibrated for accuracy, he stated he had personally found the laser device to be accurate. Moreover, while the two measurements did differ by roughly eight percent, the officer provided an explanation for the discrepancy, which indicated 635 feet might be the more accurate distance. Even if the proposed instruction had been given, there was evidence in the record from which a reasonable jury could find, beyond a reasonable doubt, that Mendoza had sold drugs within 1,000 feet of a school. There is no reasonable probability the omitted instruction would have led to a different result. Atwood, 602 N.W.2d at 784.
AFFIRMED; MOTION FOR LIMITED REMAND DENIED.
ZIMMER, J., concurs; HECHT, J. dissents.
I respectfully dissent from the majority's resolution of Mendoza's claims that his trial counsel was ineffective for failing to mount an entrapment defense, failing to interpose an objection to the informant's testimony that he previously refused to testify against Mendoza because of fear and threats, and failing to object to a marshalling instruction which did not inform the jury of the state's burden to prove beyond a reasonable doubt that the offenses were committed within 1000 feet of a school. I believe the record is inadequate to evaluate these claims, and I therefore conclude they should be reserved for possible post-conviction relief proceedings. In determining whether trial counsel was ineffective, a post-conviction court determines "`whether under the entire record and totality of the circumstances counsel's performance was within the normal range of competence.'" State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) ( quoting Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). My conclusion that Mendoza's claims of ineffectiveness should be reserved is further supported by Mendoza's trial counsel's failure to appear for trial on the day it was scheduled to commence and his admission during opening statement that he didn't know what the evidence would show.