Opinion
No. 3-610 / 02-1332
Filed October 15, 2003
Appeal from the Iowa District Court for Des Moines County, William L. Dowell, Judge.
Baker appeals his conviction for delivery of a controlled substance. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Terry Baker, Rockwell City, pro se for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Patrick Jackson, County Attorney, and Michael Bennett, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
A police informant was strip searched, outfitted with a recording device, and told to purchase drugs from Terry Baker. She did so, and based on the evidence she retrieved, a jury subsequently found Baker guilty of delivery of a controlled substance (salt of cocaine). See Iowa Code § 124.401(1)(c)(2)(b) (2001).
On appeal, Baker argues his trial attorney was ineffective in failing to: 1) object to the admission of the cocaine evidence on chain-of-custody grounds and 2) fully investigate and question the informant about her background. He also contends the district court failed to consider relevant factors in sentencing him to a prison term not exceeding ten years. In a pro se supplemental filing, Baker also raises several other challenges to his conviction. We affirm.
I. Chain of Custody
The State is required to "show sufficient custody of physical evidence to establish that the article presented at trial is the same one taken from the defendant and that it has not been altered by intermeddlers." State v. Barger, 511 N.W.2d 632, 635 (Iowa Ct.App. 1993). The level of custody required is that which "`make[s] it reasonably probable that tampering, substitution or alteration . . . did not occur.'" Id (citing State v. Bakker, 262 N.W.2d 538, 543 (Iowa 1978)).
Baker claims the State did not establish that the informant's "mouth, ears, and private parts" were searched prior to the drug purchase. He believes his attorney should have objected to this claimed omission.
Our highest court's recent holding in State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002) resolves this issue. Like Baker, the defendant in Biddle argued that the State took insufficient steps to ensure that informants had not tampered with certain drugs. The court rejected this argument, noting that police conducted a "thorough search" of the informants, albeit one that did not include "female cavities." Biddle, 652 N.W.2d at 197.
As in Biddle, the evidence here reflects that an officer strip-searched the informant both before and after the controlled buy and found no drugs or money. Although body cavities were not included in the search, an officer testified that the type of compound retrieved from Baker was not amenable to storage in a cavity. There was also evidence that an officer monitored the drug transaction through the recording device. We believe this evidence rendered it reasonably probable that tampering, substitution or alteration of evidence did not occur. Bakker, 262 N.W.2d at 543. Accordingly, trial counsel did not breach an essential duty in failing to object to the cocaine evidence on chain-of-custody grounds. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
II. Failure to Investigate and Question Informant
Baker claims the informant's background "was a lot worse than came out at the trial" and his trial attorney was ineffective in failing to more persuasively impugn her credibility. Trial counsel in fact elicited testimony that the informant previously used crack cocaine and probably delivered it to friends. He also established that she earned money for acting as an informant and did not report these earnings on her income tax returns. Additionally, there was evidence the informant had a prior conviction for theft. On this record, we are not convinced defense counsel breached an essential duty in failing to cross-examine the informant more vigorously about her background. For the same reason, we reject Baker's claim that counsel should have more thoroughly investigated the informant.
III. Sentencing Factors
Biddle next argues the district court sentenced him without considering the fact that he "has the loving support of his family, and that he is a hard working individual who is an asset to the community." Prior to imposing sentence, the court stated:
Mr. Baker, the Court is required by law to state on the record its reasons for fashioning a particular sentence in each case I dispose of. In your case, I've noted the following: your age, in that you are 31 years old, and not a youthful offender; your prior record of convictions; you have previously been afforded the benefits of supervised probation on a felony conviction; you lack a stable residence; you have no family ties to the area, or no substantial family ties to the area; you have a history of substance abuse; you lack an established work history; and, I also note the recommendation of the Des Moines County Attorney's Office.
This sentencing statement does not reflect an abuse its discretion. State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979).
IV. Other Claims
Baker contends: 1) the audio tape of the drug transaction "should have been suppressed;" 2) police officers "provided Improper Expert Testimony and Improper Opinion Testimony on a question of Law, or mixed Law and Fact, when he testified that he didn't need to make out report because of his experience and also other issues," and 3) counsel should have objected to the audio recording of the drug purchase as "highly prejudicial." We conclude the first two of these ineffective-assistance-of-counsel claims are too vague to address or preserve. State v. White, 337 N.W.2d 517, 519-20 (Iowa 1983). As for the third claim, we note the tape is cumulative of the informant's testimony. Therefore, admission of the tape was harmless error. See State v. Sowder, 394 N.W.2d 368, 372 (Iowa 1986). For the same reason, Baker cannot establish Strickland prejudice.
Baker finally argues there was insufficient evidence to support the conviction. He appears to raise this issue as an ineffective assistance of counsel claim and we will review it under this rubric, as defense counsel raised only a general motion for judgment of acquittal. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (holding defense counsel did not preserve error when he failed to specify elements he was challenging).
The jury was instructed that the State would have to prove the following elements of delivery of a controlled substance:
1. On or about the 8th day of March, 2001, the Defendant delivered salt of cocaine.
2. The Defendant knew that the substance he delivered was salt of cocaine.
There was substantial evidence to support each of these elements. Id. (setting forth standard of review). The informant testified she purchased cocaine from Baker in the past. At the behest of police, she arranged to make another purchase from him. She completed a controlled buy of $100 of salt of cocaine. On this record, defense counsel breached no essential duty in failing to more specifically challenge the State's evidence supporting the charge.
V. Disposition
We affirm Baker's judgment and sentence for delivery of a controlled substance.