Summary
finding sufficient evidence of operating while under the influence of marijuana based on "a strong smell of marijuana" in the car, "watery, bloodshot eyes, dilated pupils, and impaired balance," erratic driving, and failure of all field sobriety tests
Summary of this case from State v. MajoukOpinion
No. 3-367 / 02-0523
Filed August 27, 2003
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis, District Associate Judge.
Michael Adams appeals his conviction for operating while under the influence of alcohol or a drug. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Michael G. Adams, Cedar Rapids, pro se.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, J. Patrick White, County Attorney, and Victoria Dominguez, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Michael Adams appeals his conviction for operating while under the influence of alcohol or a drug, in violation of Iowa Code section 321J.2 (2001). He claims: (1) he was entitled to a judgment of acquittal; (2) the district court should have granted his application for the appointment of substitute counsel; and (3) he received ineffective assistance of counsel. Adams also raises several issues pro se.
I. Background Facts Proceedings
On October 8, 2001, Iowa City police officers observed a vehicle stop in the traveled portion of a road to let in a passenger. The car stopped again, for no apparent reason, then made a left turn from the right lane. The officers stopped the car, which was driven by Adams and had Eric Beard as a passenger. When the officers approached the car, they smelled a strong odor of burnt marijuana. Adams's eyes were bloodshot and watery, and his pupils were dilated. Adams failed field sobriety tests. Officer Greg Humrichouse, a drug recognition evaluator, testified Adams's balance was notably impaired.
Adams was charged with operating a motor vehicle while under the influence of alcohol or a drug. A jury found him guilty of the crime charged. Adams was sentenced to two days in the county jail and ordered to pay a fine of $1000. He now appeals.
II. Sufficiency of the Evidence
Adams claims the district court should have granted his motion for judgment of acquittal. He claims the State did not present sufficient evidence to show he was driving while under the influence of marijuana. Adams refused chemical testing, and there was no physical evidence to show he was under the influence of a drug.
Where a defendant challenges the sufficiency of the evidence supporting a jury verdict, our standard of review is that the verdict will be upheld if there is substantial evidence to support it. State v. Conyers, 506 N.W.2d 442, 444 (Iowa 1993). We review all the evidence presented in the light most favorable to the State, to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992).
When we consider whether a person is under the influence of alcohol, we consider whether the person was intoxicated. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 355 (Iowa 1995). A person is "intoxicated" when one or more of the following is found: (1) the person's reasoning or mental ability has been affected; (2) the person's judgment is impaired; (3) the person's emotions are visibly excited; and (4) the person has, to any extent, lost control of bodily actions or motions. In re S.C.S., 454 N.W.2d 810, 814 (Iowa 1990). We determine a like standard should be applied to determine whether a person is under the influence of a drug, such as marijuana.
We conclude there is sufficient evidence in the record to support the jury's finding that Adams operated a motor vehicle while under the influence of a drug. The officers noted a strong smell of marijuana in Adams's car. They also saw he had watery, bloodshot eyes, dilated pupils, and impaired balance. Furthermore, they observed Adams's erratic driving. Adams failed all the field sobriety tests he was asked to perform. We find no error in the district court's denial of Adams's motion for judgment of acquittal.
III. Substitute Counsel
Adams asserts the district court should have granted his request for substitute counsel to present his motion for new trial. Adams raised several claims of ineffective assistance of counsel in a pro se motion for new trial. He also sought a continuance of sentencing to allow new counsel to review the case. Our review of a district court's denial of a request for substitute counsel is for an abuse of discretion. State v. Martin, 608 N.W.2d 445, 449 (Iowa 2000). To establish an abuse of discretion, a defendant must show that the court exercised the discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001).
A defendant must demonstrate sufficient cause to warrant the appointment of substitute counsel. State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994). Sufficient reasons include a conflict of interest, an irreconcilable conflict with the client, or a complete breakdown in communications between the attorney and the client. State v. Jefferson, 574 N.W.2d 268, 278 (Iowa 1997). A defendant must show prejudice, unless counsel has been denied or there is a conflict of interest. Id. (citing Williams v. Nix, 751 F.2d 956, 960 (8th Cir. 1985)).
A court must balance the defendant's right to counsel of his choice and the public's interest in the prompt and efficient administration of justice. Webb, 516 N.W.2d at 828. A defendant should not be permitted to manipulate the right to counsel in order to delay or disrupt the trial. Lopez, 633 N.W.2d at 779. "Thus, last-minute requests to substitute counsel must not be allowed to become a tactic for delay." United States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992).
The district court denied Adams's request for substitute counsel. The court determined Adams's complaints of ineffective assistance of counsel should be preserved, and would be more appropriately brought in a postconviction action. The court noted that Adams had asked for his first attorney to withdraw, and that his trial counsel was his second counsel. As the State pointed out, obtaining new counsel for sentencing would not likely affect the sentence. In fact, Adams received the minimum sentence recommended by his counsel. After reviewing the record, we determine the district court did not abuse its discretion in denying Adams's request for substitute counsel.
IV. Ineffective Assistance of Counsel 1997
Adams contends he received ineffective assistance from defense counsel. He specifically claims defense counsel should have objected to the introduction of Beard's driving record. He also makes several general complaints about counsel's performance.
In order to show ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted therefrom. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). We generally preserve ineffective assistance claims for postconviction proceedings to permit development of the record and to give counsel an opportunity to respond to defendant's claims. State v. Ruesga, 619 N.W.2d 377, 383 (Iowa 2000).
The record in this case is inadequate for us to address defendant's claims on direct appeal. Adams's claims of ineffective assistance of counsel are preserved for possible postconviction proceedings.
V. Pro Se Arguments
Adams raises several arguments in a pro se brief. He did not cite any legal authorities in support of his arguments. "Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue." Iowa R.App.P. 6.14(1)( c). We determine these issues have been waived on appeal, and we do not address them.
We affirm Adams's conviction and sentence for operating while under the influence of alcohol or a drug.
AFFIRMED.
Mahan, P.J., and Vaitheswaran, J., concur; Miller, J., concurs in part and dissents in part.
I respectfully dissent from the preservation for a possible postconviction proceeding of seven of the nine claims of ineffective assistance of counsel. In all other respects I fully concur in the majority opinion and the result.
To preserve claims of ineffective assistance of counsel for postconviction review, a defendant must make some minimal showing from which this court can assess the potential viability of his or her claim. Such a showing should not only demonstrate some need for further development of the record, but should indicate why the challenged actions are believed to have been ineffective and what prejudice is likely to have resulted from them. The bald assertion that certain acts constitute ineffective assistance of counsel will be insufficient to preserve the question for postconviction proceedings.
State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987) (citations omitted).
In complaining about the adequacy of an attorney's representation, it is not enough to simply claim counsel should have done a better job, for example should have called a witness. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). The defendant must: (1) state the specific ways in which counsel's performance was inadequate, and (2) identify how competent representation probably would have changed the outcome. Id. at 15.
Adams claims counsel inadequately prepared for trial, having been appointed only a few weeks before trial began. He does not, however, state what additional preparation should have occurred, what the result of additional preparation would have been, or how additional preparation would have affected the result. Adams claims counsel was ineffective for failing to (1) object to certain testimony, (2) challenge the validity of the traffic stop, and (3) move for a new trial and in arrest of judgment. He does not, however, state what basis might arguably exist for any such actions or how such actions would have affected the result. Adams additionally claims counsel was ineffective in (1) using his influence to convince Adams and a witness not to testify, and (2) failing to present favorable evidence. He does not, however, identify the witness, in any manner indicate what his or the witness's testimony would have been or what the favorable evidence would have been, or how any such testimony or evidence might have produced a different result. Adams also claims counsel was ineffective in failing to keep him advised as to the progress of the case. He does not, however, in any manner indicate what additional advice or information counsel should have provided, or how it might have produced a different result.
All of these claims are thus too vague and general to preserve for a possible postconviction proceeding. See Dunbar, 515 N.W.2d at 15 (holding that claims of ineffective assistance of counsel are too general in nature to allow them to be addressed or to preserve them for a postconviction proceeding where the claims do not suggest what the result of different action by counsel would have been or how such different action would have affected the result below); Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985) (holding that appellant did not present grounds to address or preserve a claim of ineffective assistance of counsel where he did not suggest what the results of different action by counsel would have been or how they would have produced a different result). I therefore respectfully dissent from the majority's preservation of these seven claims of ineffective assistance.