Opinion
No. 4-013 / 03-0208
Filed February 27, 2004
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Earl Freeman appeals his convictions for conspiracy to manufacture methamphetamine and two counts of possession of a precursor. AFFIRMED.
Jesse Macro Jr., Des Moines, for appellant.
Earl Freeman, Newton, for appellant pro se.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John Sarcone, County Attorney, and Dan Voogt, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Vogel and Mahan, JJ.
I. Background Facts Proceedings
On April 10, 2002, Urbandale, Iowa, police officers were informed by the manager of a local Fareway Store that a man was attempting to purchase three boxes of pseudoephedrine. The manager stated the same man had been in the store to purchase four boxes of pseudoephedrine a few days earlier. Officers approached two men, Earl Freeman and Ronald Mason, in the Fareway parking lot. Freeman held a bag which contained the three boxes of pseudoephedrine. Freeman volunteered that he had ten more boxes in the car and he did not realize he could get in trouble for that. Freeman was read his Miranda rights. Freeman then stated he would "trade the pills for dope, but he did not cook."
The following evidence was admitted at trial: (1) evidence found on Freeman — three boxes of pseudoephedrine, a cell phone, cash; (2) evidence found on Mason — a coin purse containing drug paraphernalia; (3) evidence found in the car — Mason's checkbook, Mason's leather coat with marijuana in the pocket, rolling papers, latex gloves, a green book of possible drug transactions, the charger for Freeman's cell phone, Osco brand pseudoephedrine, Walgreen's brand pseudoephedrine, an Osco bag, a Walgreen's bag, a Super Target bag, an Osco receipt, two Super Target receipts, an address book; (4) evidence found in the trunk — license plates registered to Mason, a red bag with drug paraphernalia, plastic bags, a bag containing a digital scale and a metal sifter, a bag containing four lithium batteries, and Freeman's underwear.
The receipts showed all of the pseudoephedrine had been purchased that day, April 10, 2002. One receipt from Super Target had the time of purchase at 9:26 a.m., and another showed the time as 9:28 a.m. A criminalist from the Iowa Division of Criminal Investigation testified the pseudoephedrine and lithium batteries found in the vehicle could have been used to produce sixteen to twenty grams of methamphetamine.
Freeman was charged with conspiracy to manufacture a controlled substance, in violation of Iowa Code section 124.401(1)(b)(7) (2001), possession of pseudoephedrine with intent to use it as a precursor, in violation of section 124.401(4), and possession of lithium with intent to use it as a precursor, in violation of section 124.401(4). Freeman did not waive his right to a speedy trial. The district court continued his trial past the speedy trial deadline, however, because Detective Don Simpson, who had contact with Freeman in the Fareway parking lot, had injured his back and was unable to appear for trial. The district court found the State had established good cause to continue the trial.
The case was tried to a jury. The jury found Freeman guilty of the charges against him. The district court denied Freeman's motion for new trial and motion in arrest of judgment. Freeman then obtained new counsel and filed a second motion for new trial, claiming he received ineffective assistance of counsel due to counsel's failure to (1) conduct a pretrial investigation or take depositions; (2) file a motion to suppress; and (3) seek relief regarding the time limits for discovery, depositions, or pretrial motions. Freeman's trial counsel, John Wellman, testified at a hearing on the motion. The district court determined Freeman had not received ineffective assistance and denied the second motion for new trial. Freeman appeals.
II. Sufficiency of the Evidence
Freeman contends there is insufficient evidence in the record to show that he conspired with another to manufacture methamphetamine. In particular, he asserts there was no evidence he had an agreement with Mason to commit a crime. He states that simply being in the same location as precursors does not show there was an agreement to manufacture illegal drugs. See State v. Speicher, 625 N.W.2d 738, 743 (Iowa 2001) (holding a defendant's mere presence at a meth lab does not show participation in a conspiracy to manufacture methamphetamine).
The appellate review for whether a verdict is supported by substantial evidence is limited to corrections of errors at law. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Evidence is substantial if it could convince a rational jury of the defendant's guilt beyond a reasonable doubt. Id. We must view the evidence in the light most favorable to the State, but we consider all of the evidence, and not just the evidence supporting guilt. Speicher, 625 N.W.2d at 741.
A conspiracy is completed when two people agree to commit a crime and one of them performs an overt act in support of the criminal scheme. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). Direct evidence of an agreement to commit a crime is not necessary; a conspiracy may be shown through circumstantial evidence and legitimate inferences arising from the conduct of the co-conspirators. State v. Nickens, 644 N.W.2d 38, 42 (Iowa Ct. App. 2002). Our supreme court has stated:
An agreement that, because of its purpose or the means contemplated, amounts to a conspiracy need not be formal or express, but may be a tacit understanding; the agreement may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators.
State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998) (quoting 16 Am. Jur.2d Conspiracy § 10, at 204-05 (1998) (footnotes omitted)). There must be proof of the involvement of more than one person in order to infer an agreement. Speicher, 625 N.W.2d at 743.
We determine the record contains substantial evidence Freeman was involved in a conspiracy. Freeman and Mason were found together in the Fareway parking lot. Freeman is linked to the car through his cell phone charger, and to the trunk by his underwear. Mason is linked to the car through his checkbook and leather coat, and to the trunk by his license plates. The car and trunk contained two precursors necessary to manufacture methamphetamine, pseudoephedrine and lithium batteries. Store receipts showed a large quantity of pseudoephedrine had been purchased that morning. The receipts from Super Target tend to show that two people were involved in the purchase of pseudoephedrine, because the receipts show the purchases were made just two minutes apart.
We conclude there was sufficient evidence of the involvement of more than one person, which would allow the jury to infer an agreement. See Speicher, 625 N.W.2d at 743. From this evidence the jury could find Freeman and Mason were involved in a conspiracy to manufacture methamphetamine.
III. Speedy Trial
Freeman claims the district court erred by finding there was good cause to try his case after the speedy trial deadline had expired. We review a district court's decision to extend the speedy trial deadline for an abuse of discretion. State v. Miller, 637 N.W.2d 201, 203 (Iowa 2001). A court abuses its discretion when its decision is made on grounds or for reasons which are clearly untenable or to an extent clearly unreasonable. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996).
Under Iowa Rule of Criminal Procedure 2.33(2)( b), a defendant must be tried within ninety days, unless (1) the defendant has waived the right to a speedy trial, (2) the delay is attributable to the defendant, or (3) other good cause is present. See State v. Bond, 340 N.W.2d 276, 279 (Iowa 1983). In considering whether there was good cause, we look primarily to the reason for the delay. Miller, 637 N.W.2d at 205.
The State provided information that Detective Simpson had injured his back, that he was only able to move from the rest room to his couch, and was unable to make it to the courtroom on the date scheduled for Freeman's trial. We conclude the district court did not abuse its discretion in finding the State had shown good cause for a continuance. See State v. Todd, 468 N.W.2d 462, 470 (Iowa 1991) (finding good cause for delay when some of the State's witnesses were unavailable); State v. Peterson, 288 N.W.2d 332, 335 (Iowa 1980) (noting good cause existed for a speedy trial extension because a material prosecution witness was on vacation); State v. Searcy, 470 N.W.2d 46, 47-48 (Iowa Ct.App. 1991) (noting the illness of the arresting officer could be good cause for delay).
IV. Ineffective Assistance
Freeman raises several claims alleging that he received ineffective assistance of counsel. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002).
A. Freeman contends he received ineffective assistance because his trial counsel did not file a motion to suppress. Freeman claims he was subjected to a warrantless search, and that his statements and the evidence found in the car should have been suppressed.
At the hearing on the second motion for new trial, Wellman testified:
Q. And at one of those conversations do you recall telling me that there were a couple reasons that you didn't file a motion to suppress, one being that you didn't think it would be successful, and two being that because of the particular county attorney that was handling the case, if you did so, it would eliminate the possibility of negotiations with the State? Is my recollection correct? A. That is correct.
Wellman stated he did not believe a motion to suppress was warranted because Freeman's interactions with officers were voluntary. He also stated that if he had filed a motion to suppress, the State would have recalled its plea offer.
Even if admissibility of evidence is questionable, failure to file a motion to suppress is not per se ineffective assistance of counsel. Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995). Counsel is not considered ineffective is there is a strategic reason for failing to file a motion to suppress. Kellogg v. State, 288 N.W.2d 561, 565 (Iowa 1980). Here, defense counsel made the strategic decision not to file a motion to suppress in order to keep open the option for Freeman to accept the State's plea offer. Reasonable strategic decisions cannot serve as the basis for a claim of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (citing Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984)).
Furthermore, counsel is not considered ineffective for failing to seek the suppression of admissible evidence. Love v. State, 543 N.W.2d 621, 623 (Iowa Ct.App. 1995). Under the Fourth Amendment, a police officer must have reasonable cause to stop a person for investigation. State v. Heuser, 661 N.W.2d 157, 161 (Iowa 2003). To justify an investigatory stop, an officer must be able to point to "specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 So. Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)), overruled on other grounds by State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001).
An investigatory stop is permissible only if the officer making the stop has specific and articulable cause to reasonably believe criminal activity is afoot. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). "Circumstances raising mere suspicion or curiosity are not enough." Id. It is sufficient, however, if the officer believes criminal activity may be afoot. Id. at 642. The principle function of an investigatory stop is to resolve the ambiguity as to whether criminal activity is taking place. Id. (citing State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993)).
We determine police officers had reasonable cause to briefly detain Freeman and question him about his purchases of pseudoephedrine. Police officers were aware that the Fareway store manager had seen Freeman buy four boxes of pseudoephedrine just a few days prior to his purchase of three boxes on the day he was stopped. Pseudoephedrine is a precursor to methamphetamine. Police officers are aware that people engaged in the manufacture of methamphetamine generally try to avoid suspicion by gathering precursors from a number of stores. State v. Maddox, 670 N.W.2d 168, 172-73 (Iowa 2003); Heuser, 661 N.W.2d at 162. Additionally, Freeman voluntarily made the statement that he had another ten boxes of pseudoephedrine in the car. Based on all of these factors, we determine a motion to suppress would have been unsuccessful, and Freeman was not prejudiced by counsel's failure to file such a motion. We conclude the district court properly denied Freeman's claim of ineffective assistance on this issue.
B. Freeman contends his trial counsel was ineffective because he failed to conduct an adequate pretrial investigation or take depositions. Wellman testified he did not believe depositions were necessary in this case because Freeman's statements to him agreed with the information in the police reports. Moreover, we note Freeman does not allege what information defense counsel could have discovered that would be helpful to his case. A defendant should specifically identify the deficiencies in counsel's performance and identify how competent representation probably would have changed the outcome. See Rivers v. State, 615 N.W.2d 688, 690 (Iowa 2000). We determine the district court correctly concluded Freeman failed to show ineffective assistance of counsel on this ground.
C. Freeman additionally claims he received ineffective assistance due to defense counsel's failure to: (1) challenge the jury instructions regarding the amount of methamphetamine involved in this case; (2) raise the issue that the State failed to prove the alleged co-conspirator was not a law enforcement agent; (3) argue the State failed to show the precursors were going to be used to manufacture methamphetamine; (4) raise the issue of whether the State adequately showed that he constructively possessed lithium; and (5) permit him to testify. Freeman also raises some of these same issues in a pro se brief.
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). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). These issues were not addressed in Freeman's second motion for new trial, and his trial counsel has not had an opportunity to respond to these claims. We determine these issues should be preserved for possible postconviction proceedings.
We affirm Freeman's convictions.