Opinion
No. 5-008 / 03-1824
Filed January 19, 2006
Appeal from the District Court for Plymouth County, Gary E. Wenell, Judge.
Steven Palmer appeals from his convictions for possession of methamphetamine with intent to deliver and failure to affix a drug tax stamp, while the State cross-appeals from the district court's ruling sustaining Palmer's motion in arrest of judgment on a charge of delivery of a controlled substance. AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSS-APPEAL.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, and Darin J. Raymond, County Attorney, for appellee.
Considered by Vogel, P.J., Mahan and Vaitheswaran, JJ.
Steven Palmer appeals his convictions for possession of methamphetamine with intent to deliver and a drug tax stamp violation. He argues (1) the evidence was insufficient to support the convictions and (2) trial counsel was ineffective in several respects. The State cross-appeals from the district court's dismissal of a count charging Palmer with delivery of methamphetamine. We affirm on Palmer's appeal and reverse and remand on the State's cross-appeal.
I. Background Facts and Proceedings
Law enforcement officers in LeMars, Iowa were advised by Palmer's neighbor that Palmer supplied him with methamphetamine. The officers searched a nearby trailer identified as Palmer's and discovered baggies of methamphetamine hidden in a flashlight. Palmer was outside the trailer during the search. A woman named Cynthia Shields was inside.
The State also found marijuana and charged Palmer with possession of this substance. The district court granted his motion for judgment of acquittal on this count.
Three crimes are at issue: (1) possession of methamphetamine with intent to deliver as a habitual felon, (2) delivery of methamphetamine as a habitual felon, and (3) failure to affix a drug tax stamp. A jury found Palmer guilty of all three.
Palmer filed a motion in arrest of judgment, raising several ineffective-assistance-of-counsel claims. His attorney also filed a motion in arrest of judgment, as well as a motion for new trial. The district court denied the motions as to the possession with intent to deliver and drug tax stamp counts and sustained the motion in arrest of judgment as to the delivery count. After sentence was imposed, Palmer appealed and the State cross-appealed.
In light of the ineffective-assistance-of-counsel claims against him, counsel subsequently moved to withdraw. The motion was granted and new counsel was appointed.
II. Motion in Arrest of Judgment-Possession, Tax Stamp Counts
Palmer argues the district court should not have overruled his motion in arrest of judgment on the possession with intent to deliver and tax stamp counts. We review the court's ruling for errors of law. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). The verdict will be upheld if supported by substantial evidence, when viewed in a light most favorable to the State. Id.
A. Possession of Methamphetamine with Intent to Deliver.
The jury was instructed that the State would have to prove the following elements of possession of methamphetamine with intent to deliver:
1. On or about the 20th day of February, 2003, in Plymouth County, Iowa, the defendant, Steven Palmer, knowingly possessed methamphetamine.
2. Steven Palmer knew that the substance he possessed was methamphetamine.
3. Steven Palmer possessed the substance with the specific intent to deliver it.
Palmer contends the State failed to prove he "possessed" methamphetamine. He points out that he was not in the trailer when the drugs were retrieved, there was no evidence he "ever accessed the flashlight" containing the drugs, and "any dominion and control that [he] may have exercised was certainly not exclusive."
The district court instructed the jury that "possession" included "actual as well as constructive possession, and also sole as well as joint possession." The instruction continued, "a person who is not in actual possession, but who has knowledge ofthe 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."
A reasonable juror could have found the following facts. A neighbor testified he obtained methamphetamine from Palmer with the promise of more to come. The neighbor stated:
I was sitting at my house and he knocked on the door, basically told me that if I got rid of the quarter for him then he would give me more methamphetamine for my personal use.
He identified Palmer's residence, stating he lived "[o]ver on the trailer park right across the street from my house." He also noted that Palmer "was there almost all the time." Three police officers also testified Palmer lived at the trailer that was searched.
The State concedes Palmer did not live alone and his co-tenant, Cynthia Shields, had access to the drugs. However, she cooperated with authorities, leading to an inference that the drugs were not hers, but Palmer's. See State v. Henderson, 696 N.W.2d 5, 9 (Iowa 2005) (noting occupant's cooperation implied absence of guilty knowledge).
Palmer is also correct that he never acknowledged the presence of the drugs. However, his neighbor's accusation that he supplied them was corroborated by the discovery of pre-packaged methamphetamine in his trailer. Cf. State v. Nickens, 644 N.W.2d 38, 41 (Iowa 2002) (noting absence of "statements by Nickens regarding her knowledge of the items or circumstances from which a jury might lawfully infer knowledge").
The jury could reasonably have concluded from this evidence that the methamphetamine was in Palmer's "possession." The neighbor's testimony also constitutes substantial evidence to support the remaining elements of this count.
B. Drug Tax Stamp Violation.
With respect to the drug tax stamp violation, the jury was instructed that the State would have to prove the following elements:
1. On or about the 20th of February, 2003, in Plymouth County, Iowa, Defendant, Steven Palmer, knowingly possessed 7 grams or more of the taxable substance as defined in Instruction # 26.
2. The taxable substance that Steven Palmer possessed did not have permanently affixed to it a stamp, label or other official indication of payment of the state tax imposed on the substance.
A jury could have found the following facts. Officers found four small plastic bags of methamphetamine inside the flashlight. The bags contained 1.47, 3.39, 3.39 and 1.22 grams of methamphetamine respectively. None of the bags was affixed with a drug tax stamp. This amounts to substantial evidence to support the conviction for a drug tax stamp violation.
As the State presented substantial evidence on all elements of the possession with intent to deliver and tax stamp counts, the district court did not err in overruling Palmer's motions in arrest of judgment.
III. Motion for New Trial-Possession, Drug Tax Stamp Counts
We review the ruling on the new trial motion for an abuse of discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). In denying the new trial motion, the district court applied the "weight of the evidence" standard set forth in Ellis. We discern no abuse of discretion in this ruling.
IV. Ineffective-Assistance-of-Counsel Claims
Palmer alleges trial counsel was ineffective in failing to (A) object to other crimes evidence and prosecutorial misconduct, (B) object to certain jury instructions, (C) object when exhibits still bearing law enforcement evidence identification tags were given to the jury, and (D) adequately advise him and prepare him for trial. Our review of these claims is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Palmer must rebut the presumption that counsel was effective by showing both a failure to perform an essential duty and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984).
A. Prior Bad Acts.
On several occasions, the prosecutor asked law enforcement officers how they knew Palmer and Shields. They answered that they knew them through "other dealings," "prior dealings," or "criminal investigations." Palmer asserts trial counsel should have interposed appropriate and timely objections to all these questions as, in his view, they called for irrelevant and prohibited evidence of prior bad acts that was unfairly prejudicial. See Iowa Rs. Evid. 5.402, 5.404( b), 5.403. He also asserts the prosecutor committed misconduct by placing this matter in the record. The State counters that the testimony was proffered only to establish Palmer's residence, which was key to the question "whether or not Mr. Palmer had either actual or constructive possession of the methamphetamine that was found in the trailer."
We agree with the State that the evidence was relevant to whether Palmer possessed the methamphetamine. See Iowa R. Evid. 5.401 (defining "relevant evidence"). We also agree the evidence was not admitted to show action in conformity with bad character, but to establish Palmer's residence. See Iowa R. Evid. 5.403( b). Finally, we are not persuaded that the evidence was unfairly prejudicial, as the officers did not mention the nature of their past dealings with Palmer. For these reasons, we conclude trial counsel did not breach an essential duty in failing to adequately object to the references to prior contact with law enforcement.
As for the prejudice prong of the Strickland test, Palmer has made no argument that, but for counsel's failure to object, there was a reasonable probability of a different outcome. Strickland, 466 U.S at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699. Therefore, his claim must fail.
Having rejected Palmer's ineffective-assistance-of-counsel claim premised on the admission of prior bad acts evidence, we also reject his related prosecutorial misconduct claim.
B. Jury Instructions.
Palmer argues trial counsel rendered ineffective assistance in failing to raise two objections to the jury instructions.
First, Palmer takes issue with the court's use of the word "innocent," rather than "not guilty" in the instructions, and counsel's failure to object to this usage. The Iowa Supreme Court recently rejected this argument. See, e.g., State v. Tubbs, 690 N.W.2d 911, 916 (Iowa 2005); see also State v. Langlet, 283 N.W.2d 330, 337 (Iowa 1979). Therefore, trial counsel did not render ineffective assistance in failing to object on this ground.
Second, Palmer asserts the jury instruction on "possession" was flawed because the following sentence was deleted from the proposed instructions:
If something is found in a place which is exclusively accessible to only one person and subject to his dominion and control, you may, but are not required to, conclude that the person has constructive possession of it.
He argues that deletion of this sentence "relieved" the State "of having to prove all of the elements necessary to show constructive possession."
It is unclear how inclusion of the omitted language would have aided Palmer, as the language creates an inference in favor of the State on the question of knowledge of and control over the substances. See Henderson, 696 N.W.2d at 9. In any event, a litigant is only entitled to a jury instruction if that instruction is supported by substantial evidence. See, e.g., Vasconez v. Mills, 651 N.W.2d 48, 52 (Iowa 2002). Palmer has not pointed to evidence suggesting anyone relevant to this case had exclusive access to the trailer. In the absence of such evidence, he was not entitled to submission of the omitted sentence. Counsel was not ineffective in failing to insist on inclusion of this sentence.
C. Evidence Tags.
Palmer notes that certain exhibits went to the jury with law enforcement identification tags still attached to them. He argues the "jury's exposure to the evidence tags . . . had the effect of unduly emphasizing and legitimizing the State's evidence."
The Iowa Supreme Court recently addressed this issue in State v. Martin, 704 N.W.2d 665, 668-70 (Iowa 2005). The court concluded the defendant failed to establish Strickland prejudice.
We reach the same conclusion here. The first and third tags related to the possession of marijuana count which was dismissed. The second tag described the evidence ("round mirror w/meth on it"), and listed the location, date and time of the recovery, suspects (Shields and Palmer), the offense ("POS meth"), the victim ("society"), and the person recovering the evidence. This evidence came into the record independently and without challenge through the testimony of one of the officers. In addition, this evidence was not crucial to the State's charges. The State instead focused on the pre-packaged methamphetamine found inside the flashlight. That evidence was not summarized on an evidence tag. For these reasons, we conclude Palmer has not shown a reasonable probability that the outcome would have changed had the tags been taken off before submission of the case to the jury. Strickland, 466 U.S at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; Martin, 704 N.W.2d at 670.
D. Advice and Preparation.
Palmer argues trial counsel inadequately advised and prepared him for trial with respect to (1) plea offers, (2) his right to testify, and (3) the residence issue.
1. Plea Offers.
Palmer contends trial counsel inadequately advised him of plea offers made by the State and of enhanced penalties, habitual offender penalties, and mandatory minimums he would face if a jury found him guilty. The State counters that Palmer failed to prove "he would have accepted the plea but for counsel's advice, and that had he done so he would have received a lesser sentence." We agree with the State.
Trial counsel testified that he communicated plea offers to Palmer and encouraged him to accept them. Palmer did not testify he would have accepted these plea offers. In fact, in correspondence to the state court administrator he stated he would accept "no deals." As he has failed to show "he would have accepted the plea but for counsel's advice," this ineffective-assistance-of-counsel claim must fail. Wanatee v. Ault, 259 F.3d 700, 703-04 (8th Cir. 2001).
2. Right to Testify.
Palmer argues trial counsel provided inadequate advice on his right to testify. He notes that counsel advised him not to testify because of prior criminal convictions, but did not tell him the convictions were inadmissible as irrelevant and too remote.
We again find no breach of an essential duty and no Strickland prejudice. Counsel testified that, in addition to the prior crimes evidence that might have been elicited had Palmer testified, there was a chance that Palmer would have been asked if he lived at the trailer that was searched. This was a key question at trial and one that counsel strategically decided the State should have to prove without the input of his client. He stated, "[t]he only thing [testifying] would have accomplished would have probably to have been admit in his prior convictions and other evidence that we kept out." Additionally, as with his argument on plea offers, Palmer did not assert he would have testified and fails to show how the outcome would have changed if he had testified. Accordingly, we agree with the district court's rejection of this claim.
3. Residence Issue.
Palmer asserts trial counsel "was unreceptive to any input," "discouraged him from asserting he did not live with" the woman in the trailer, and "assured Palmer that the police had so egregiously violated his rights that he did not need to present a defense." He further asserts that trial counsel failed to consider evidence that he did not live in the trailer and did not discuss the legal definition of possession with him.
The evidence Palmer alleges his trial counsel did not consider involves the issue of where Palmer lived. At a hearing on the post-trial motions, trial counsel testified that Cynthia Shields "made some very incriminating statements against Palmer." Another witness Palmer wished to have testify was "a known prostitute" who counsel believed would not have "been an effective witness." A third proposed witness "was in prison at the time for drug dealing." Finally, counsel testified that the strategy Palmer wished to pursue "probably would have opened up the door to [Palmer's] booking sheet where he indicated that that was where he was living." When asked if these were things he would have discussed with Palmer, counsel responded, "Yes, definitely."
We conclude trial counsel's decision not to call these witnesses and his decision not to pursue Palmer's strategy on the residence issue involved reasonable strategic calculations.
We affirm the district court's ruling rejecting Palmer's ineffective-assistance-of-counsel claims.
V. Cross-Appeal
As noted, the district court granted Palmer's motion in arrest of judgment with respect to the delivery of methamphetamine count. Citing Iowa Code section 705.1, the court reasoned that the evidence offered on this count "was solely that of a solicited person." The court stated Iowa Rule of Criminal Procedure 2.21(3) required corroboration of such testimony and, in the absence of such corroboration, no legal judgment could be pronounced.
In its cross-appeal, the State argues the district court's reliance on Rule 2.21(3) was misplaced because no solicitation or conspiracy was charged. In the alternative, the State contends that even if corroboration were required, it was present in the record. The State seeks reinstatement of the conviction on the delivery count.
We agree with the State's primary argument. Palmer was not charged with solicitation. Therefore, it does not matter that evidence supporting the charge of methamphetamine delivery came from someone Palmer solicited to sell drugs. State v. Williams, 315 N.W.2d 45, 57-58 (Iowa 1982). What does matter is the sufficiency of the evidence supporting the charge. Palmer's neighbor unequivocally testified he received the methamphetamine from Palmer. His testimony was sufficient, with or without corroboration.
We turn to Palmer's responsive argument that reinstatement is barred under the Double Jeopardy Clause of the United States Constitution and Iowa Code section 816.1, a statutory codification of the State Constitution's double-jeopardy bar. See U.S. Const. amend. V; Iowa Const. art. I, § 12. We are not persuaded by this argument. United States v. Wilson, 420 U.S. 332, 352-353, 95 S. Ct. 1013, 1026, 43 L. Ed. 2d 232, 247 (1975) (holding, "[W]hen a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause."); State v. Keehner, 425 N.W.2d 41, 46 (Iowa 1988) (adopting rationale of Wilson for purposes of analysis under Iowa Constitution). As the Iowa Supreme Court stated in Keehner,
Our reversal of the district court's judgment merely reinstates the verdict reached by the judicial magistrate. This will not subject Keehner to a second trial and, therefore, does not violate the constitutional prohibition that no person "shall after acquittal be tried for the same offense." Iowa Const. art. I, § 12.
425 N.W.2d at 46. We reverse on the State's cross-appeal and remand for reinstatement of the jury's verdict on Count II and other necessary proceedings.
VI. Disposition
We affirm Palmer's judgment and sentences for possession of methamphetamine with intent to deliver and violation of the drug tax stamp law. We reverse the district court's grant of Palmer's motion in arrest of judgment on the delivery of methamphetamine count, and remand for reinstatement of the jury's verdict on this count and other necessary proceedings.