Opinion
No. 3-530 / 02-1608.
Filed July 23, 2003.
Appeal from the Iowa District Court for Story County, Michael J. Moon, Judge.
Tom Hop Nguyen appeals from the judgment and sentence entered upon a jury verdict finding him guilty of delivery of methylenedioxymethamphetamine. AFFIRMED.
Linda Del Gallo, Appellate Defender and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Stephen H. Holmes, County Attorney, and James Scheetz, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Tom Hop Nguyen appeals from the judgment and sentence entered upon a jury verdict finding him guilty of delivery of methylenedioxymethamphetamine in violation of Iowa Code section 124.401(1)(c)(8) (Supp. 2001) and failure to affix a drug tax stamp in violation of section 453B.12. We affirm.
Nguyen argues his trial counsel was ineffective for failing to object to the written statement of witness Belinda Brockman on the grounds it was hearsay and other crimes evidence. The written statement provided:
Brockman was working for the Ames Police Department as a confidential informant.
At approximately 4:00 p.m. today I purchased 10 hits of ecstasy, excaliburs, for $300 from Hop (Tom) at his cousin Shane's efficiency above the Golden Wok on Chamberlain. Comments made during the purchase included:
— He had GHB also for sale. —
— He had crystal meth and Special K for personal. —
— He had 3 more hits of ecstasy left and had sold the rest. —
— He stated that he would be, or is planning on, getting more ecstasy in one month. —
We review ineffective assistance of counsel claims de novo. State v. Ledezma, 626 N.W.2d 134, 141 (Iowa 2001). 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). We conclude the record does provide a sufficient basis for determining this issue.
To prevail on his claim, Nguyen must show (1) his counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). The reviewing court may first consider either prong of an ineffective assistance of counsel claim. State v. Oetken, 613 N.W.2d 679, 684 (Iowa 2000). We have considered the prejudice prong first and conclude Nguyen has failed to establish any prejudice under this record because the evidence is merely cumulative. See State v. McGuire, 572 N.W.2d 545, 547-48 (Iowa 1997) (holding a court will not find a statement prejudicial when substantially the same evidence comes into the record without objection). At trial, Officer Howard Snider testified without defense objection that Brockman was wearing a wire during the drug buy and he heard Nguyen state he had enough GHB to get three or four people high. In addition, Brockman testified without defense objection that she purchased ten hits of ecstasy for $300 from Nguyen. She also stated Nguyen told her he had other drugs for sale if she wanted to purchase them. Therefore, substantially the same evidence came into the record without objection. Accordingly, we conclude Nguyen was not prejudiced by counsel's failure to object to the testimony.