Opinion
No. 2-303 / 01-0362
Filed October 16, 2002
Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.
Defendant appeals from her convictions for third degree burglary and various drug-related offenses. AFFIRMED.
Robert Tiefenthaler of Tiefenthaler Law Office, P.C., Sioux City, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas S. Mullin, County Attorney, and James J. Katcher, Assistant County Attorney, for appellee.
Heard by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Nancy Ann Hanika appeals from her convictions and sentences for third-degree burglary, possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, delivery of methamphetamine to a minor, and two counts of failing to possess a drug tax stamp. She contends she was denied a fair trial due to prosecutorial misconduct, the trial court erred in denying her motion for a mistrial, trial counsel provided ineffective assistance, and the district court erred in overruling her motion to suppress regarding eyewitness identification. We affirm.
I. Background Facts and Proceedings. While Russ and Wanda Pick were out of town for several days in early May 2000, their apartment was burglarized. Upon returning home, they discovered their DVD player and DVD movies, a C.D. player, speakers, a remote control, a telephone, a microwave and bread machine, a tent, and a lock box containing papers were missing. The Picks suspected that Russ's aunt, Nancy Hanika, was involved. Russ Pick had purchased drugs from her and knew her to be a drug dealer. At the time of the burglary, he owed Hanika $1200 for past marijuana and methamphetamine purchases.
Seven to ten days after the burglary, the Picks discovered their neighbor, Kendra Mendoza, had witnessed the crime. The night of the burglary, Mendoza heard a noise coming from the hallway she shared with the Picks and believed someone was moving out of the Picks's apartment. When she opened her door, she saw an older woman and a young man removing items from the apartment. Mendoza observed the couple for a brief period, making eye contact with them before shutting her door.
Mendoza described the woman as white, older and resembling a man, and the man as white, young, and wearing a long ponytail. She had seen the man previously at the Picks apartment. The Picks reported this information to the police.
The police presented Mendoza with a photo array containing Nancy Hanika's picture. Mendoza was unable to identify a suspect, as she could not decide between Hanika's photo and another photo. Later that day, Russ Pick showed Mendoza a family photo that included both Hanika and her son. Pick asked Mendoza whether she had seen anyone in the picture the night of the burglary. Mendoza identified Hanika and her son. A police officer later showed Mendoza the same photograph and she again identified Hanika and her son.
Based on Mendoza's identification, a warrant was obtained to search Hanika's residence. Several of the Picks's missing items were discovered during the search, along with large quantities of methamphetamine and marijuana, cash and drug paraphernalia. Hanika was arrested and charged. A jury found her guilty on all counts.
II. Prosecutorial Conduct. At trial, the State called Officer Randy Suggitt to testify at length about the items seized from Hanika's residence. At the end of his examination, the prosecutor asked whether any requests for fingerprint analysis were made. Officer Suggitt testified the items seized from Hanika's residence were tested for Hanika's fingerprints. The prosecutor did not ask the results of the fingerprint analysis. On cross-examination, Hanika's attorney asked if any fingerprints obtained from the items tested matched Hanika's fingerprints. Officer Suggitt testified there was a match. On re-direct, the prosecutor started by asking the officer on which item Hanika's fingerprints were identified. After testifying the fingerprints were discovered on a bag containing marijuana, Hanika's counsel requested a hearing outside the jury's presence. He then made a motion to strike any testimony regarding the fingerprint, as well as a motion for a mistrial. The district court denied both motions.
Hanika argues the prosecutor engaged in misconduct that denied her a fair trial. A week before trial, the State knew a fingerprint had been found. The State requested a comparison be made with Hanika's fingerprints. On the first day of trial, the State learned a match had been made. On the second day of trial, when Officer Suggitt testified, the State received the report regarding the match. The State did not disclose to Hanika the existence of the fingerprint or the match. Hanika claims the prosecutor did not reveal this information because he was upset with her attorney for challenging the eyewitness identification prior to trial. She contends the prosecutor engaged in misconduct when he withheld this information, and then lured defense counsel into opening the door to the evidence. She also argues the district court erred in denying her motion to strike and her motion for a mistrial.
A prosecutor's misconduct will not warrant a new trial unless the conduct was "so prejudicial as to deprive the defendant of a fair trial." State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999) (citations omitted). Misconduct alone does not entitle a defendant to a new trial. Id. Rather, the defendant must prove the misconduct has caused prejudice resulting in an unfair trial. Id. In determining whether the prosecutor's misconduct resulted in an unfair trial for the defendant, we "consider the entire trial, including the trial court's admonition to the jury, number of incidents, and strength of the evidence." Id. (citations omitted).
We find the prosecutor's actions did not prejudice Hanika. Even if the evidence of Hanika's fingerprints on the bag of marijuana had not been introduced, there was overwhelming evidence for a jury to find Hanika guilty of the drug charges. The presence of drugs and drug paraphernalia was pervasive in her home. A bag of marijuana was found in Hanika's bedroom. A small bag of methamphetamine was discovered under the couch on which Hanika sat. Large quantities of marijuana and methamphetamines were found in lockboxes for which Hanika had keys or knew the lock combination. Hanika's name was written on at least one of several pill bottles containing methamphetamines. Several scales were found around the home. Slips of paper with names and dollar amounts written on them were also discovered. Additionally, over $21,000 was found inside a safe.
Russ Pick testified he purchased marijuana and methamphetamine from Hanika over a period of one year, he saw Hanika provide methamphetamine to other people in her home, he witnessed Hanika share methamphetamine with her minor son approximately once a month over a one-year period, and he saw Hanika give her son small bags of marijuana.
Wanda Pick testified she had seen drug-related items in Hanika's home and witnessed Hanika provide the key to a lock box to her son in order to allow him to get drugs. Hanika informed Wanda that the papers she had seen with names and dollar amounts written on them were records of people who owed her money. Wanda also accompanied Hanika during the delivery of methemphatemine to an employee of a car dealership.
Hanika was convicted of possession of methamphetamine and marijuana with intent to deliver. There are three elements of possession: (1) dominion and control of the substance; (2) knowledge of its presence; and (3) knowledge of its nature. State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). Where a defendant has joint possession of the premises in which drugs are found, evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises is required. Id. at 78-79. From the evidence set forth above, Hanika clearly had possession of marijuana and methamphetamine. Nearly five pounds of marijuana and 318 grams of methamphetamine were found in the home. This amount of drugs would lead a reasonable person to conclude the drugs were possessed with the intent to be sold. We also find overwhelming evidence supports Hanika's convictions of delivery of methamphetamine to a minor and failure to possess a drug tax stamp.
Accordingly, we find Hanika was not denied a fair trial due to prosecutor misconduct. Additionally, the trial court did not err in denying Hanika's motion to strike and her motion for mistrial based on admission of the fingerprint evidence.
III. Ineffective Assistance of Counsel. Hanika next contends counsel was ineffective in eliciting testimony regarding the fingerprint identification, and in failing to call her son to testify. We review her claims de novo. See State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001).
To succeed with a claim of ineffective assistance of counsel, a claimant must prove two elements. McBride, 625 N.W.2d at 373. First, he must show that counsel failed to perform an essential duty. Id. Second, he must prove he was prejudiced by counsel's error. Id. We can affirm on appeal if either element is lacking. Id. A presumption exists that counsel is competent and that counsel's conduct falls within a wide range of reasonable professional assistance. Burgess v. State, 585 N.W.2d 846, 847 (Iowa Ct.App. 1998). We will not second-guess reasonable trial strategy. Id. The second prong of the test is satisfied if a reasonable probability exists that, "but for the counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1994)).
We find Hanika's claims must fail because she has failed to prove the result of her trial would have been different had her attorney done as she suggests. As stated above, there was overwhelming evidence for the jury to find her guilty.
IV. Eyewitness Identification. Hanika argues the district court erred in denying her motion to suppress the out-of-court identification and allowing the in-court identification.
In assessing Hanika's claim that the district court erred in denying her motion to suppress the out-of-court identification, we must first determine whether the identification procedure was impermissibly suggestive. See State v. Birch, 479 N.W.2d 284, 286 (Iowa 1991) (citations omitted). If the procedure was impermissibly suggestive, we then determine whether, under the totality of the circumstances, the suggestive procedure gave rise to a "very substantial likelihood of irreparable misidentification." State v. Holderness, 301 N.W.2d 733, 738 (Iowa 1981). Reliability is the linchpin in determining the admissibility of identification testimony. State v. Lasage, 523 N.W.2d 617, 620 (Iowa Ct.App. 1994). The factors to be used in assessing reliability are:
(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness's degree of attention;
(3) the accuracy of his prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.
Id. (citation omitted).
We find Kendra Mendoza's out-of-court and in-court identifications were reliable. Mendoza observed two people carrying items out of the Picks's apartment one night while the Picks were away. The hallway Mendoza shared with the Picks was well lit. The couple looked directly at Mendoza while she observed them and she saw their faces clearly. Mendoza was only a few feet away from the couple. She recognized the man as having been at the Picks's apartment in the past. She had called the police when the same man had broken a front window of the apartment building. One week later, Mendoza was unable to select Hanika's picture from a photo array. However, she was able to limit the possibilities to Hanika and another woman. When Russ Pick showed her a family photo, Mendoza readily identified Hanika. She again identified her when an officer presented her with the family photo.
Given the totality of the circumstances, we find the out-of-court identification was reliable and affirm the district court's denial of Hanika's motion to suppress. Because the out-of-court identification did not lead to a substantial likelihood of irreparable misidentification, we find no error in allowing Mendoza's in-court identification.