Opinion
No. 03-1591.
March 31, 2005.
Appeal from the Iowa District Court for Johnson County, Amanda Potterfield (Motion in limine) and Denver D. Dillard (Trial), Judges.
Demetrius Johnson appeals his conviction of ongoing criminal conduct in violation of Iowa Code section 706A.2(1)(c). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen and Cristen Odell-Douglass, Assistant Attorneys General, J. Patrick White, County Attorney, and Linda Paulson, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Decisions without published opinions. Affirmed in part, Reversed in part, and Remanded with Instructions.
Demetrius Johnson appeals his conviction and sentence following a jury trial for ongoing criminal conduct a class "B" felony in violation of Iowa Code section 706A.2(1)(c) (2003). Specifically, Johnson argues (1) his trial counsel was ineffective in several respects, (2) the district court utilized an improper standard in ruling on his motion for a new trial, and (3) the record contains insufficient evidence to support his conviction. We affirm in part, reverse in part, and remand with instructions.
I. Background Facts and Proceedings
Viewing the evidence in the light most favorable to the State, the jury could have found the following facts.
On the evening of January 13, 2003, Johnson and five cohorts drove to the Holiday Inn Express in Coralville, Iowa, and rented three rooms. A Discover credit card was presented for payment. Later that evening and in the early morning hours of January 14, additional charges were made using this credit card. However, the desk clerk received a message to call the credit card company as these charges were not approved by the company. Upon calling the company, the desk clerk learned the name on the credit card did not correspond to the account number. The police were then notified.
Officer Richard Smith and two detectives responded about 8:30 a.m. and went to Johnson's hotel room. After they announced their presence, a female occupant of the room stalled their entrance into the room. During this time Officer Smith noticed a Dodge Intrepid with an African-American driver and Illinois license plates circling in the hotel parking lot. One of the detectives went outside and noticed two black crescent shaped marks on the outer hotel wall about six feet below the window to Johnson's room and concluded someone had exited the hotel room through the window. The detective was given the vehicle description and was able to locate the vehicle and its occupant, Johnson, at a nearby shopping mall.
Meanwhile, the police officers remaining at the hotel used a pass key and bolt cutters to enter Johnson's room. The officers observed pill bottles from which the labels had been removed, a ripped-up money order, and a ripped-up document appearing to be a charge from a dentist office. The hotel engineer found credit cards and identification cards hidden in a tissue box. Upon the search of Johnson's companions' rooms the police found in a toilet tank a checkbook not belonging to Johnson or his cohorts, gift cards as well as numerous credit cards.
Subsequent investigation revealed that the Discover Card as well as the other credit cards found were either stolen or counterfeit, that is, a credit card with a valid account number but a non-corresponding name. In addition to being used to rent the hotel rooms in Coralville, the Discover Card was also used to makes purchases at an Amoco in Minooka, Illinois, a Walgreen's in Carol Stream, Illinois, and a QC Mart in Rapid City, Illinois. The Dodge Intrepid being driven by Johnson was rented in Illinois with a counterfeit American Express card. Johnson was not an authorized driver of this car. The two gift cards, one from TJ Maxx, and one from Target, had both been purchased in Illinois with counterfeit credit cards. Neither the American Express Card nor the Discover Card was recovered by the police.
A trial information was filed charging Johnson with ongoing criminal conduct in that on January 13 he:
knowingly participated, directly or indirectly, in an enterprise [Johnson] knew was being conducted through specified unlawful activity, to wit: [Johnson] and others possessed fraudulently made credit cards which were used to purchase goods and services, resulting in the theft of goods and services for the benefit of [Johnson] and other members of the enterprise.
On May 19 the jury trial was held, and on May 22 the jury returned a verdict of guilty. Johnson filed a pro se motion in arrest of judgment and motion for new trial, and Johnson's counsel filed a subsequent motion in arrest of judgment. These motions asserted the issues of whether the jury was properly instructed and whether the evidence was sufficient to support a conviction. After a hearing on the motions, the district court ruled that although the evidence was circumstantial it was sufficient evidence to sustain the verdict and the jury had been properly instructed. Johnson was then sentenced to a period of incarceration not to exceed twenty-five years. He appeals.
II. Issues
A. Ineffective Assistance of Trial Counsel
Johnson raises seven challenges to his trial counsel's performance. Claims of ineffective assistance of counsel are reviewed de novo. State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004).
To prevail on a claim of ineffective assistance of counsel, Johnson must demonstrate both that his counsel failed in an essential duty and that prejudice resulted from this failure. State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005). "To establish the first prong, the applicant must demonstrate the attorney performed below the standard demanded of a reasonably competent attorney." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). To demonstrate prejudice, the applicant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 143 (citations omitted). These elements must be proven by a preponderance of the evidence. Id. at 142. If one of these elements is lacking, it is not necessary for us to address the other element. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002).
Turning now to the merits, we note that Johnson's seven claims of ineffective assistance are more easily understood and categorized as challenges involving his counsel's alleged failure to (1) request a jury instruction, (2) object to hearsay, (3) object to evidence of prior bad acts, (4) object to testimony regarding Johnson's invocation of his right to remain silent, and (5) counter an erroneous proposition. We will address each in turn.
1. Jury Instruction
Johnson was convicted of violating Iowa Code section 706A.2(1)(c), which states:
It is unlawful for any person to knowingly conduct the affairs of any enterprise through specified unlawful activity or to knowingly participate, directly or indirectly, in any enterprise that the person knows is being conducted through specified unlawful activity.
(Emphasis added). Iowa Code section 706A.1 defines "specified unlawful activity" as:
[A]ny act, including any preparatory or completed offense committed for financial gain on a continuing basis that is punishable as an indictable offense under the laws of the state in which it occurred and under the laws of this state.
(Emphasis added).
The district court did not instruct the jury that they needed to determine whether the "specified unlawful activity" at issue constituted indictable offenses in both Illinois and Iowa. Johnson argues his counsel was ineffective for not requesting such an instruction because it resulted in him being convicted without a jury determination that one of the elements of the crime met the legal definition of that element. The State counters by asserting that "[t]he status of an offense as indictable is a question of law for the court, not an issue of fact for the jury." Thus, the fighting issue is whether the determination that the underlying unlawful conduct constitutes an indictable offense in both Illinois and Iowa is a question of fact for the jury to determine or whether it is a question of law for the court. Both Johnson and the State agree that this is an issue of first impressionin Iowa.
We, however, conclude we do not need to reach this issue. The record clearly indicates that the State provided both Johnson and the Court with "a compilation of the Illinois and Wisconsin statutes regarding the crimes of credit card theft and theft. It includes with those the fact that they're indictable offenses and their sentencings [sic]" (emphasis added). Thus, even if the issue of whether the offenses were indictable was a question of fact for the jury to decide, the jury could not have found that the offenses were not indictable. Consequently, the result of the proceedings would not have been different had Johnson's counsel requested a jury instruction requiring such a jury determination. We accordingly find no prejudice with regard to the jury instructions.
2. Hearsay
Hearsay is not admissible unless provided by the Iowa Constitution, statute, rules of evidence, or other rules of the Iowa Supreme Court. Iowa R. Evid. 5.802. Johnson argues testimony by several State witnesses is hearsay, and that his counsel was ineffective for failing to object to it. These statements were all offered to demonstrate that Johnson was part of an enterprise engaging in specified unlawful activity.
We begin our analysis of these statements by noting that while some of the witnesses' testimony was clearly hearsay, there was substantial properly admitted testimony which demonstrated the counterfeit nature of some of the credit cards. For example Daniel Castro, a Discover Card employee, was able to testify to some cards being counterfeit simply by examining them and testifying as to the counterfeit characteristics. Second, and more significant to our conclusion, our review reveals that Johnson's theory of defense was to admit that this enterprise existed and that his compadres did engage in specified unlawful activity, but that Johnson did not knowingly participate in this enterprise. This defense theory is demonstrated by Johnson's statement in his pro se motion to dismiss that "there is no evidence nor fact to support the state's allegations that defendant `knowingly participated' directly or indirectly in an enterprise that defendant knew was being conducted through specified unlawful activity . . ." and by his counsel's statements in support of his motion for judgment of acquittal that:
While not dispositive, Johnson's appellate counsel also stated at oral argument that Johnson's theory of defense appeared to be that Johnson had a suspicion something criminal was occurring but did not have actual knowledge of criminal conduct and that every element of the crime but knowledge was conceded at trial.
[T]here is no doubt that there were fraudulent credit cards involved. . . . Nor do we dispute that in the situation that was involved here in Coralville, that ongoing activity was being carried on at least by some of the participants that were involved. What we would contest is that the State has failed to prove — carry their burden of proof that the Defendant was knowingly participating either directly or indirectly in this enterprise.
Thus, the testimony at issue demonstrated only what Johnson had conceded. Consequently, the result of the proceedings would not have been different had this testimony been excluded.
Moreover, even if Johnson had not used this defense strategy, our review of the record demonstrates that Johnson admitted that he drove the rented car to Coralville and immediately produced the rental agreement from the glove compartment when asked by police. The rental agreement contained the same false name as was used on the counterfeit credit card to rent the hotel rooms. When asked to give his social security number, Johnson gave Detective Clark a false number. Johnson also admitted that he stayed in one of the hotel rooms with another participant in the enterprise, Teneka Brown. The record further reveals that Johnson on a prior occasion had admitted that Brown was his girlfriend. Moreover, the search of his hotel room produced numerous counterfeit credit cards which were hidden in a Kleenex box. Furthermore, the jury could have found the paint marks on Johnson's shoe matched the exterior paint of the hotel where marks were found under room 219. From this the jury could infer that Johnson had knowledge of the specified unlawful activity at issue, he knowingly participated in the unlawful enterprise, and had jumped out of the window of the hotel in order to avoid apprehension by the police. See State v. Ash, 244 N.W.2d 812, 816 (Iowa 1976) (stating evidence of flight may be utilized in determining guilt or innocence). Consequently, we conclude Johnson suffered no prejudice in his counsel's failure to object to the testimony at issue because the evidence was sufficient to convict Johnson without the testimony Johnson now challenges as hearsay. 3. Prior Bad Acts
Johnson has also appealed the district court's denial of his motion for judgment of acquittal which challenged the sufficiency of the evidence. Our discussion and conclusion regarding the lack of prejudice applies equally to Johnson's challenge to the sufficiency of the evidence.
Iowa Rule of Evidence 5.404( b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that they person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 5.404( b) "seeks to exclude evidence that serves no purpose except to show the defendant is a bad person, from which the jury is likely to infer he or she committed the crime in question." State v. Rodrequez, 636 N.W.2d 234, 239 (Iowa 2001) (citation omitted). Consequently, to be admissible evidence must be relevant "to prove some fact or element in issue other than the defendant's criminal disposition." Id. If a reasonable person might believe the probability of the truth of a consequential fact to be different if they knew of certain evidence, then that evidence is relevant. See id.
Johnson argues that the testimony of Illinois police officers indicating that a vehicle Johnson was driving was pulled over in 2001 and that during this stop Johnson identified Teneka Brown, a cohort in the Coralville scheme, as his girlfriend runs afoul of rule 5.404( b). Johnson also argues evidence resulting from a 2002 execution of a search warrant on the apartment he shared with Brown was inadmissible under Rule 5.404( b). This evidence demonstrated the existence in the apartment of burnt paper and credit card receipts, cut-up credit cards, and bogus ID cards and drivers' licenses, as well as the fact Johnson and Brown had three children together.
We think this evidence was relevant to the existence of (1) Johnson's relationship and association with one of the key cohorts in the Coralville enterprise and (2) Johnson's prior knowledge of and complicity in the manufacture of counterfeit credit cards. These facts help establish the elements of Johnson's knowing participation in an enterprise as he admitted in 2001 that one of the individuals involved in the Coralville scheme was his girlfriend, and his knowledge of the specified unlawful activity as the jury could infer that he was complicit in or at least had knowledge of the manufacture of counterfeit cards in 2002. Thus, this was not evidence of prior bad acts offered to show his propensity to commit this crime, but evidence of his knowledge of the underlying criminal activity, the manufacture of counterfeit credit cards, which the jury could then infer his knowing participation in the Coralville enterprise. See Iowa R. Evid. 5.404( b) (stating that evidence of prior bad acts is admissible to demonstrate "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident").
Additionally, we determine the prejudicial effect of this evidence does not substantially outweigh its probative value. See Iowa R. Evid. 5.403. Significant to this determination is the fact that the State did not elicit testimony indicating that Johnson was arrested, charged, or convicted with any offense in connection with the stop of his car or search of his apartment. Consequently, the testimony regarding the car stop and the apartment search was relevant for a legitimate purpose and admissible. We accordingly find Johnson's attorney did not fail in an essential duty in not objecting to this testimony.
4. Right to Remain Silent
Johnson next claims his trial counsel was ineffective because he failed to object to a police officer's testimony that "he declined to answer any questions regarding his name or where he resided, basic information." In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court reaffirmed its understanding that the privilege against self-incrimination protects individuals not only from legal compulsion to testify in a criminal courtroom but also from "informal compulsion exerted by law-enforcement officers during in-custody questioning." In Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 2650, 110 L. Ed. 2d 528, 552 (1990), the Supreme Court determined that although routine questions by an officer regarding a suspect's height, weight, name, address, etc. may constitute custodial interrogation depending on the particular "perspective of the suspect," a response to such questioning is nonetheless admissible because this type of "routine booking questioning" is exempt from the self-incrimination protections of the Fifth Amendment. Therefore, we conclude Johnson's Fifth Amendment right to remain silent was not violated when testimony was elicited regarding his refusal to provide answers to routine booking questions.
This conclusion is bolstered by the fact the authority relied on by Johnson for the proposition that the officer's testimony "amounted to an illegal comment on [his] right to remain silent in violation of the Sixth Amendment to the United State's Constitution" is distinguishable from Johnson's facts. Johnson relies on State v. Metz, 636 N.W.2d 94 (Iowa 2001), for his proposition. This case held that the State may not use a defendant's post arrest silence at a custodial interrogation to impeach trial testimony. Metz, 639 N.W.2d at 95-99. The testimony regarding Johnson's refusal to answer routine booking questions was not used to impeach Johnson. Johnson's counsel did not fail in an essential duty in not objecting to testimony that he would not answer routine booking questions.
The right to remain silent is contained in the Fifth Amendment, not the Sixth.
5. Failure to Counter an Erroneous Proposition
Testimony was offered by two State witnesses that two of the defendant's comrades stated that the purpose of their trip from the Chicago area to Coralville was that they were heading to Omaha for the graduation of a cousin from the University of Nebraska. The State witnesses both questioned the veracity of these statements based on their belief that the University of Nebraska is in Lincoln. While the main university is in Lincoln, Johnson has since discovered that there is a University of Nebraska at Omaha (UNO).
Johnson's final complaint with regard to his trial counsel's performance is that his counsel failed to discover the existence of UNO, resulting in an inability to confront the State's witnesses. Johnson provides no argument or authority in support of his proposition that he was prejudiced by this alleged failure. Nor do we believe there is any probability that countering this evidence would have changed the outcome of the proceedings. Johnson has the burden of demonstrating ineffective assistance of counsel by a preponderance of the evidence. Ledezma, 626 N.W.2d at 142. He has failed to carry this burden.
B. Motion for New Trial
The grant or denial of a new trial is ordinarily committed to the sound discretion of the trial court, reviewable on appeal only for abuse of that discretion. State v. Holland, 485 N.W.2d 652, 655 (Iowa 1992). However, when the sole determining factor in the court's decision involves a question of law, the grant of a new trial stands or falls on the correctness of the legal ruling. State v. Belt, 505 N.W.2d 182, 184 (Iowa 1993). Johnson asserts the district court applied the wrong legal standard in denying his motions for a new trial. Our review is on error. Id. at 102.
In State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998), the Iowa Supreme Court recognized a distinction between a "sufficiency of the evidence" standard and a "weight of the evidence" standard on a motion for new trial. The court then held that when a defendant moves for a new trial under Iowa Rule of Criminal Procedure 2.24(2)( b)(6)), the words "contrary to . . . the evidence" contained within this rule means "contrary to the weight of the evidence." See id.
Both parties agree that the district court in ruling on Johnson's motions for new trial applied the sufficiency of the evidence standard and not the weight of the evidence standard. The State argues that Johnson did not move for a new trial pursuant to rule 2.24(2) (b) (6), which would have entitled him to a "weight of the evidence" review, but instead asserted in his motions that the evidence was insufficient. A review of the record indicates that Johnson's pro se motion for new trial alleges that "the guilty verdict is contrary to the law and the evidence at trial." This language is identical to that contained within rule 2.24(2)( b)(6), which the Iowa Supreme Court held in Ellis meant "contrary to the weight of the evidence." Id. Consequently, we conclude the district court erred in applying the sufficiency of the evidence standard to Johnson's motion for new trial.
III. Conclusion
Johnson failed to establish by a preponderance of the evidence that his trial counsel was ineffective. This was in part because his conviction was supported by sufficient evidence even without the evidence admitted because of his counsel's alleged errors. We accordingly affirm the district court's denial of Johnson's' motion for judgment of acquittal. However, the district court did not apply the correct standard in denying Johnson's motion for a new trial. We accordingly, remand to the district court for application of the "weight of the evidence" standard in ruling on Johnson's motion for new trial. Because the sole issue presented in this motion is whether the weight of the evidence supports the conclusion that Johnson had the knowledge required by Iowa Code section 706A.1(2)(c) we direct that the district court assess the weight of the evidence without consideration of the testimony asserted by Johnson to be hearsay. This testimony is not probative with regard to Johnson's requisite knowledge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
Mahan, J., concurs, Vaitheswaran, J., specially concurs.
I specially concur. I would conclude that the evidence concerning the execution of a search warrant in 2002 was irrelevant and, therefore, inadmissible. However, I would not reverse for a new trial as, in my view, Johnson did not establish Strickland prejudice.