Opinion
No. 5-022 / 04-0568
Filed February 24, 2005
Appeal from the District Court for Scott County, J. Hobart Darbyshire, Judge.
William Rumley appeals his convictions for delivery of crack cocaine and possession of crack cocaine with intent to deliver. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, William Davis, County Attorney, and Robert Weinberg, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
William Rumley was tried on charges of delivery and possession of crack cocaine with intent to deliver. Iowa Code § 124.401(1)(c) (2003). During the jury trial, the prosecutor asked the court about parameters for questioning Rumley about prior convictions. The court stated he could ask about the specifics of prior felony convictions. To blunt the impact of this damaging evidence, defense counsel preemptively elicited testimony about Rumley's 1998 felony conviction for possession of crack cocaine with intent to deliver. At the conclusion of trial, a jury found Rumley guilty.
The Iowa Supreme Court has held defense counsel does not waive error by doing so. State v. Daly, 623 N.W.2d 799, 801 (Iowa 2001); cf. Ohler v. United States, 529 U.S. 753, 759, 120 S. Ct. 1851, 1855, 146 L. Ed. 2d 826, 832 (2000) (concluding defendant waives error on court's preliminary ruling concerning a prior conviction where defendant preemptively raises it).
On appeal, Rumley contends the evidence of his prior conviction should have been excluded as "more prejudicial than probative" under Iowa Rule of Evidence 5.609( a)(1). The State responds that Rumley failed to preserve error. We first address the State's error preservation argument.
Iowa Rule of Evidence 5.609( a)(1) provides the following:
For the purpose of attacking the credibility of a witness:
(1) Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.
The State also raises a waiver argument premised on what it contends is the non-final nature of the district court's ruling on the evidence. We find it unnecessary to reach this issue.
Before Rumley testified at trial, the State initiated the following exchange:
[County Attorney]: Your Honor, I want to know if basically if there are any limitations on the State regarding cross-examination and the defendant's record.
Court: Any felony.
[County Attorney]: Okay.
[Defense Attorney]: You can ask if he's been convicted of a felony, right?
Court: You can ask the specifics of the felony.
During this exchange, defense counsel neither raised nor argued the applicability of rule 609 and the potentially prejudicial effect of the prior conviction evidence. Accordingly, he failed to preserve error. See State v. Mulvany, 603 N.W.2d 630, 632 (Iowa Ct.App. 1999) (citing State v. Taylor, 310 N.W.2d 174, 177 (Iowa 1981)) ("It is incumbent upon the objecting party to lodge specific objections so the trial court is not left to speculate whether the evidence is in fact subject to some infirmity that the objection does not identify. Every ground of exception that is not particularly specified is considered abandoned.").
This does not end our analysis because Rumley alternately contends we should review his challenge under an ineffective-assistance-of-counsel rubric. See State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004) (stating ineffective-assistance-of-counsel claim fits within exception to general rules on error preservation); cf. State v. Daly, 623 N.W.2d 799, 801 (Iowa 2001) ("Because we conclude the rule 609 issue now raised was adequately preserved in the district court, it is unnecessary to consider Daly's alternative claim of ineffective assistance of counsel."). We find the record adequate to do so. State v. Doggett, 687 N.W.2d 97, 100 (Iowa 2004).
To prevail on an ineffective-assistance-of-counsel claim, a defendant must show (1) counsel breached an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 690-692, 104 S. Ct. 2052, 2066-2067, 80 L. Ed. 2d 674, 695-696 (1984). To establish prejudice, Rumley must show "a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). A "reasonable probability" is "a probability sufficient to undermine the confidence in the outcome of the defendant's trial." Id. On our de novo review of the record, we conclude the prejudice prong is dispositive.
The record reveals the following. Law enforcement officers conducting an undercover drug investigation attempted to "purchase narcotics off the streets in downtown Davenport." They drove into an alley and approached a man, later identified as Butler. They asked if he "was working," a common street term referencing the sale of narcotics. Butler told the officers to drive their vehicle to a nearby parking area and indicated he would "be back." He walked to a house around the corner. Rumley opened the front door and stepped outside. He looked around, leaned over, and spat something into Butler's hand. Butler walked back to the undercover vehicle and presented two plastic baggies containing what he said was crack cocaine. The officers gave him forty dollars and left the area. Butler returned to Rumley and handed him folded bills. Rumley counted the money, placed it in his pocket, and went into the house. Butler remained on the front steps of the house for a few minutes. A woman then came out and handed him something. Butler walked away from the house and was arrested. The packages officers obtained from him were tested and found to contain .15 grams of cocaine base.
Within minutes, Rumley came out of the house again and began walking toward the alley. He also was arrested. During the arrest, officers observed four individually-packaged rocks of crack cocaine fall from his mouth. These rocks were tested and found to contain .16 to .18 grams of cocaine base. Officers also found $151 in Rumley's pocket.
Notably, the entire transaction was captured on videotape and the tape was admitted into evidence at trial. Also of note was Rumley's defense. He admitted to spitting something into Butler's hand but claimed it was soap rather than crack cocaine. None of the tested packages revealed soap particles.
As the State presented a virtually airtight case and Rumley presented an implausible defense, we conclude there is no reasonable probability of a different outcome had defense counsel raised and prevailed on an objection to the evidence of Rumley's prior drug conviction. In reaching this conclusion, we are cognizant of State v. Daly, holding that the district court abused its discretion under rule 5.609 by admitting evidence of prior convictions "for exactly the same crimes for which Daly was currently on trial." 623 N.W.2d at 803. That appeal, however, was not reviewed as an ineffective-assistance-of-counsel claim and, therefore, proof of Strickland prejudice was not required. Here, proof of Strickland prejudice was required and was not established. Accordingly, we reject Rumley's ineffective-assistance-of-counsel claim.
The Iowa Supreme Court has recently examined the related harmless error concept in cases involving non-constitutional and constitutional errors. Cf. State v. Sullivan, 679 N.W.2d 19, 30 (Iowa 2004) (analyzing admission of prior crimes evidence under rule 5.403 and concluding admission was not harmless error under non-constitutional standard, given "inherently prejudicial nature of the bad-acts evidence" and fact that "the properly admitted evidence was far from overwhelming"); State v. Peterson, 663 N.W.2d 417, 430-31 (Iowa 2003) (concluding error in admission of evidence was not harmless under constitutional standard because it could not be said beyond a reasonable doubt that the verdict would have been the same in the absence of the erroneously admitted evidence).