Opinion
No. 5-745 / 04-1814
Filed December 21, 2005
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
Darnell Theroith appeals from his drug-related convictions and sentence. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Darnell Theroith appeals from his drug-related convictions and sentence. We affirm.
I. Background Facts and Proceedings.
On February 2, 2004, law enforcement officers executed a search warrant at the residence of Darnell Theroith. Theroith was present at the residence, and admitted to officers that crack cocaine and a firearm were located in his bedroom. In addition to seizing 16.9 grams of crack cocaine from a shoe in Theroith's closet, officers also seized $155 in cash, a baggie of marijuana, and a small "rock" of crack cocaine from Theroith's person. Officers, however, did not locate any implement or paraphernalia associated with ingesting crack cocaine in the residence.
The loaded handgun was located under the mattress in the Theroith's bedroom, which was approximately four feet away from the crack cocaine found in the closet.
Other items commonly associated with the sale of crack cocaine were also found in the residence, including plastic baggies and a bowl and razor blade used for cutting the rocks.
Theroith was charged with (1) possession of more than ten grams of cocaine base with intent to deliver, while in immediate possession or control of a firearm; (2); failure to affix a drug tax stamp; and (3) possession of marijuana. During the jury trial on the charges, several officers and experts in narcotics enforcement testified that the amount of crack cocaine found in Theroith's immediate possession coupled with the seizure of (1) $155 in cash consisting of predominantly twenty dollar denominations, and (2) a bowl and razor blade suitable for cutting rocks of cocaine, together suggested that Theroith intended to sell the crack cocaine seized. Several of the State's witnesses also noted the conspicuous absence of any paraphernalia in the residence that could or had been used to ingest crack cocaine.
Despite this evidence suggesting Theroith intended to sell crack cocaine, both Theroith and his mother testified that Theroith was merely a drug addict who possessed such a large amount of crack cocaine in order to sate his burgeoning appetite for crack cocaine. Theroith adamantly denied ever having sold crack cocaine.
The prosecuting attorney, in preparation for his cross-examination of Theroith, requested a ruling from the district court on whether he would be permitted to probe Theroith's denial by (1) asking Theroith whether he ever sold crack cocaine to a man named Chip LaPole, and if necessary (2) calling LaPole as a rebuttal witness. The district court concluded Theroith's denial of drug sales on direct examination opened the door to impeachment under Iowa Rule of Evidence 5.608( b). And because the thrust of the evidence to be presented concerning LaPole's alleged drug transactions with Theroith was perceived to be probative of the element of intent, the district court concluded extrinsic evidence of these alleged prior acts was admissible under evidence rule 5.404( b).
As a result of the ruling, LaPole was called as a rebuttal witness for the state, and he testified that he had purchased several hundred dollars worth of crack cocaine per week from Theroith over a nine-month period that included the dates alleged in the trial information. The State, however, did not first confront Theroith during cross-examination with the substance of LaPole's eventual testimony, and thus Theroith was not given an opportunity to admit or deny LaPole's allegations. No objection to LaPole's rebuttal testimony was made by Theroith's defense counsel.
The jury found Theroith guilty on all charges. In addition to the assessment of fines associated with his various convictions, Theroith received concurrent sentences of fifty years imprisonment for the possession of cocaine base with intent to deliver, five years imprisonment for the drug tax stamp violation, and 30 days for possession of marijuana. Theroith now appeals from these convictions, claiming defense counsel was ineffective in failing to object to the rebuttal testimony of LaPole.
Theroith's sentence for this conviction was enhanced because of the firearm violation.
II. Scope and Standard of Review.
Where the ineffectiveness of counsel is alleged as the basis for the denial of a fair trial, we perform de novo review of the entire record in order to assess both the reasonableness of counsel's conduct and whether any prejudice resulted. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Claims of ineffective assistance of counsel raised on direct appeal are generally preserved for post-conviction relief proceedings so that a sufficient record can be developed, and so attorneys whose ineffectiveness is alleged may have an opportunity to defend their actions. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). Claims of ineffective assistance of counsel need not be raised on direct appeal to preserve them for post-conviction proceedings. Iowa Code § 814.7 (2005). If such a claim is raised on direct appeal, and the record is adequate to permit us to assess defense counsel's effectiveness, or the record is sufficient to determine whether prejudice resulted from counsel's alleged unprofessional error, we may decide the ineffectiveness claim on direct appeal. Allen, 348 N.W.2d at 248. In order to prevail on his claims of ineffective assistance of counsel, Theroith must demonstrate that but for counsel's failure to perform an essential duty, there is a reasonable probability the result of the trial would have been different. State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999).
III. Discussion.
We begin by noting that evidence of other crimes or prior bad acts, "even when it has substantial independent relevancy," still possesses the inherent danger "that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial." State v. Mitchell, 633 N.W.2d 295, 299 (Iowa 2001). We also note that Iowa Rule of Evidence 5.608( b) clearly states that specific instances of conduct bearing on a witness's character for truthfulness may not be proven by extrinsic evidence, but rather must be inquired into, if at all, on cross-examination of the witness to be impeached. Trial counsel may well have breached an essential duty in failing to interpose a proper objection to LaPole's rebuttal testimony upon the State's failure to confront Theroith on cross-examination with the substance of LaPole's testimony.
We, however, decline to address the merits of trial counsel's performance with regard to the admission of LaPole's rebuttal testimony because we are not persuaded that the result of the trial would have been different without LaPole's testimony. See State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999) (stating that our ultimate concern in claims of ineffective assistance is with the "fundamental fairness of the proceeding whose result is being challenged," and concluding that absent a finding that trial counsel's deficient performance affected the outcome of the trial, the claim fails).
Theroith contends that but for the admission of LaPole's testimony, the jury would not have concluded Theroith intended to deliver the crack cocaine found in his possession. Even if LaPole's testimony had been excluded, however, there is other compelling evidence in the record tending to establish Theroith's intent to sell the drugs. As noted above, several experts called by the State opined that taken together (1) the presence in the residence of a razor blade and bowl, (2) the large number of twenty-dollar bills and the pre-packaged "rock" found on Theroith's person, (4) the conspicuous absence of any paraphernalia or other device to ingest crack cocaine in the residence, and (5) the sheer amount of crack cocaine seized from Theroith clearly evidence that Theroith possessed the crack cocaine with the intent to deliver it to others. Although this other admissible evidence is concededly circumstantial, we find it very persuasive. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). Even without LaPole's testimony, we believe the jury would have found Theroith intended to deliver the illegal substance, and thus was guilty of the enhanced charge beyond a reasonable doubt. Id.
Because Theroith has failed to show a reasonable probability of a different outcome if LaPole's testimony had been challenged by a proper evidentiary objection and excluded by the district court, his claim of ineffective assistance of counsel must fail. Theroith's convictions and sentences are affirmed.