Opinion
No. 2-017 / 01-0612.
Filed March 13, 2002.
Appeal from the Iowa District Court for Marion County, RICHARD D. MORR, Judge.
Defendant Prentiss Session, Jr. appeals his jury convictions for possession with the intent to deliver a schedule II controlled substance and for failure to affix a tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Terry E. Rachels, County Attorney, and Ryan J. Ellis, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Defendant Prentiss Session, Jr. appeals his jury convictions for possession with the intent to deliver a schedule II controlled substance in violation of Iowa Code section 124.401(1)(b)(3) (1999), and for failure to affix a tax stamp in violation of Iowa Code sections 453B.1, 453B.3 and 453B.12. He argues that his trial counsel rendered ineffective assistance of counsel by failing to object to statements the assistant county attorney made in his opening and closing arguments. Session also contends that the district court erred in overruling his hearsay objection. We affirm.
Background Facts and Proceedings. On November 29, 2000, the Marion and Warren County Drug Task Force executed a search warrant on Kathryn Feaster's residence in Knoxville. Session was staying at the residence at the time of the execution of the search warrant. When officers entered the house Session was sitting in a recliner in the living room. When questioned as to his identity, Session gave a false name and social security number. The officers searched Session and found a clear plastic bag containing individually wrapped smaller bags of crack cocaine inside the left leg of his sweatpants. There were fifteen pieces of crack cocaine, weighing approximately thirteen and one-half grams. He also had approximately one hundred dollars on his person. The search of Session also revealed a wallet containing a pay stub with his real name.
On December 8, 2000, Session was charged by trial information with possession with the intent to deliver a schedule II controlled substance in violation of section 124.401(1)(b)(3) (count I), and with failure to affix a tax stamp in violation of sections 453B.1, 453B.3 and 453B.12 (count II). A jury trial commenced on February 28, 2001. Session was found guilty on both counts. The district court sentenced him to an indeterminate term of twenty-five years on the possession with intent to deliver charge, and an indeterminate term of five years on the failure to affix a tax stamp charge. The sentences were ordered to be served concurrently. Session appeals.
Ineffective Assistance of Counsel. Session contends that he was denied effective assistance of counsel. We review claims of ineffective assistance of counsel de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). 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 is adequate in this case to resolve the issue.
A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. 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 defendant bears the burden of demonstrating both elements of ineffective assistance of counsel by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
Session contends his trial counsel was ineffective in failing to object to statements made by the assistant county attorney in his opening and closing arguments. Error was not preserved on this issue. However, this is not fatal in the instant case. See State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999) (stating ineffective assistance claims operate as an exception to our error preservation requirements).
To support a claim of prosecutorial misconduct, Session must show (1) misconduct on the part of the State and (2) prejudice so grave that he was denied his constitutional right to a fair trial. See State v. Escobedo, 573 N.W.2d 271, 277 (Iowa Ct. App. 1997). Prejudice ordinarily results from " persistent efforts to inject prejudicial matter before the jury." State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976) (emphasis supplied). It is also important to consider the strength of the evidence of guilt. Id.
After a careful review of the record, we find the assistant county attorney utilized the theme of "responsibility" during both his opening and closing arguments. Session argues the "responsibility to your community" comments constituted misconduct. We agree and find "these comments improperly urge the jurors to convict the defendant in order to protect community values and prevent further criminal activity." State v. Johnson, 534 N.W.2d 118, 128 (Iowa Ct. App. 1995). This court has previously stated such comments are "an improper emotional appeal designed to persuade the jury to decide the case on issues other than the facts before it." Id.
We determine the prosecutor's conduct was improper and trial counsel should have objected. We must therefore determine whether Session was prejudiced by trial counsel's breach of duty. To show prejudice, Session must "demonstrate counsel's failure worked to his actual and substantial disadvantage so that a reasonable possibility exists that but for counsel's error the trial result would have been different." Johnson, 534 N.W.2d at 128. We conclude these comments did not rise to the level of prejudice needed. This court has previously held that no prejudice results where "the prosecutor did not repeatedly appeal to the jurors' community interest" and the "remarks were limited to a few sentences" in the prosecutor's arguments. Id. In addition, after a careful review of the record, we conclude the evidence of guilt on this charge was overwhelming. Trial counsel's failure to object to the comments was not prejudicial. Therefore, Session's ineffective assistance of counsel claim must fail.
Alleged Hearsay. Session also claims that the district court erred by allowing hearsay to be admitted into evidence during the State's cross-examination of him regarding how the drugs came to be found in his pant leg. We review the admission of hearsay for errors at law, not for abuse of discretion. State v. Long, 628 N.W.2d 440, 447 (Iowa 2001). However, we give deference to the district court's factual findings and uphold such findings if they are supported by substantial evidence. Id.
Hearsay is an out of court statement, other than one made by a declarant while testifying at trial, offered to prove the truth of the matter asserted. Iowa R. Evid. 5.801(c). Hearsay is not admissible except as provided by the Iowa Constitution, by statute, by the rules of evidence, or by other rules of the Iowa Supreme Court. Iowa R. Evid. 5.802. If hearsay is admitted, prejudice to the nonoffering party is presumed unless the contrary is affirmatively established. State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996). Admission of hearsay alone is not a valid ground for reversal in cases where the State upholds its burden of proving the challenged evidence did not impact upon the jury's verdict of guilty. Id.
During the trial, Session testified that the crack cocaine found in his pants did not belong to him. Instead, he testified that while he was sleeping, his roommate, Katie Feaster, put the drugs in his pants. During cross-examination, the State asked Session whether he would agree that Feaster had given a statement to the police. When he testified that she did, the State asked him whether he would "have to agree" that Feaster told the police that he purchased the crack cocaine in Kansas City. Over objection, Session responded "Yeah." Session claims that the district court erred in overruling a hearsay objection to these questions.
Without determining whether this testimony was improperly admitted hearsay we conclude it was not prejudicial to Session. "If the error is not of constitutional dimension, affecting a fundamental right, we review the inadmissible statements weighed against the other evidence properly admitted to determine if admission of the statements impacted the jury's verdict." State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct. App. 1999). The test for harmless error in this circumstance is "whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice." State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998). To warrant reversal, an error must have prejudiced the defendant. Id.
The State contends, and we agree, the challenged evidence did not have an impact on the jury's finding of guilt. As mentioned above, evidence of Session's guilt was overwhelming, even without the challenged evidence. Therefore, the district court's admission of this testimony did not prejudice him.
AFFIRMED.