Opinion
No. 4-839 / 04-0026
Filed February 24, 2005
Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge.
The defendant-appellant, Edward Martin, appeals from his conviction for possession of cocaine, following a jury trial. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Heather Prendergast and Jill Dashner, Assistant County Attorneys, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht and Eisenhauer, JJ.
The defendant-appellant, Edward Martin, appeals from his conviction for possession of cocaine, following a jury trial. He contends there was insufficient evidence of possession. He also contends defense counsel was ineffective in (1) not objecting to hearsay on a property tag on an exhibit, (2) failing to object to using a prior conviction to impeach, and (3) not arguing the correct standard in the motion for new trial. We reverse and remand.
Background facts
On August 9, 2003, less than two weeks after his arrest for possession of cocaine in our case no. 4-838, the defendant was observed driving a pickup truck. Knowing the defendant's license was suspended, the officer stopped the truck. As the defendant got out of the cab, he threw up his hands and the officer saw something silvery or clear fly from the defendant's hands into the bed of the truck. The officer heard a "tink" sound. When he looked into the truck bed, the officer saw a glass crack cocaine pipe on some rocks and some keys on a pillow. The defendant told the officer he only had thrown the keys into the truck bed. He was charged with possession of cocaine, second offense.
Trial proceedings
At trial, the defendant testified the pipe found in the back of the truck was not his. The truck belonged to someone else. The defendant explained he had the keys in his hand when he got out of the truck, and the officers told him to put his hands up. When he opened his hands to show officers he had no weapon, the keys fell from his hand into the bed of the truck. The officers testified the defendant threw up his hands when he got out of the truck before they told him to do anything. He appeared to be throwing something into the bed of the truck.
The State offered the glass crack pipe as an exhibit. Attached to the outside of the envelope that contained the bag containing the pipe was a property tag listing the case number, defendant's name and address, the date, and remarks "narcotics." Defense counsel did not object to the hearsay in the property tag.
The jury found the defendant guilty of possession of cocaine, interference with official acts, and driving while suspended. At the hearing on the motion for new trial, the court determined there was sufficient evidence the defendant had the glass pipe in his possession before throwing it into the bed of the truck for the jury to find the defendant guilty of possession. The court sentenced him to two years in jail to be served consecutively to an existing sentence.
Claims on appeal
The defendant first contends there is insufficient evidence he constructively possessed the glass pipe found in the bed of the truck.
Second, the defendant contends counsel was ineffective in failing to (1) object "properly and completely" to the use of a prior drug conviction for impeachment, (2) object to the hearsay on the property tag on the envelope that contained the bag containing exhibit A, and (3) argue the proper standard in the motion for new trial.
Discussion
Sufficiency of the evidence.
The State had to prove the defendant knowingly or intentionally possessed the pipe containing the cocaine residue. See Iowa Code § 124.401(5) (2003). He argues that, because the evidence showed he may have been unaware of the pipe in the bed of someone else's truck, the State had to adduce additional proof linking him to the pipe. He asserts such proof is lacking, as is shown by the question the jury asked about "whether or not the fact that the pipe was in the truck constituted possession (direct physical control)."
In the hearing on the motion for new trial the State argued the case was tried as an actual possession case, not a constructive possession case. Even though the court had instructed the jury on both concepts, the court, in overruling the motion, apparently agreed with the State:
[I]f the jury accepted the testimony of the police officers, was that the defendant threw both the keys and the pipe that was later located and found to contain cocaine after he was stopped and after he exited the vehicle, and the jury could very well have found from the evidence that the defendant did have actual possession of the controlled substance prior to throwing it in the back of the truck, . . .
The jury had two different accounts of the events that occurred when the defendant got out of the truck. The testimony of the two officers was consistent that the defendant threw something clear or silvery into the bed of the truck and it made a "tink" sound when it hit. The keys that the defendant claimed were all he threw into the bed of the truck were found on a pillow. The glass crack pipe was in pieces on some rubble. We conclude there was sufficient evidence from which the jury could find the defendant guilty of possession beyond a reasonable doubt. See State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980).
Ineffective assistance.
The defendant raises three claims under the rubric of ineffective assistance of counsel.
1. Use of Prior Drug Conviction to Impeach Defendant.
Counsel failed to object "properly and completely" to the use of a prior drug conviction to impeach the defendant. Defense counsel raised the objection, "prejudicial value." The defendant claims the objection was not specific enough because it did not cite Iowa Rule of Evidence 5.609. We conclude the objection was sufficient to alert the court to the balancing analysis required under rules 5.609 or 5.404(b). We find it unlikely the court would have ruled differently had the objection been more specific.
Citing State v. Daly, 623 N.W.2d 799 (Iowa 2001), in which the supreme court reversed drug possession convictions concluding it was likely the jury was improperly influenced by impeachment with a prior drug possession conviction, the defendant suggests his admission he had a prior drug conviction likely influenced the jury improperly because the other evidence against him was not strong. In Daly, the supreme court held:
The 1993 convictions were for exactly the same crimes for which [the defendant] was currently on trial. . . . This fact alone could very likely have a substantial effect on a jury, which, although instructed not to do so, could reasonably be expected to misuse the evidence as substantive proof of guilt. While we give deference to a trial court's ruling under rule [5.609], the evidence of [the defendant's] conviction in 1993 for the identical three crimes charged here was so likely to have influenced the jury improperly we conclude the court abused its discretion in admitting it.
Id. at 802-03 (citation omitted).
In the case before us, the court instructed the jury it could only consider the evidence in evaluating the defendant's credibility. Although the prior conviction was for the same crime, it was twelve years earlier. The defendant testified he pled guilty to get out of jail. As noted above, the evidence of knowledge and possession was sufficient for the jury to find the defendant guilty beyond a reasonable doubt. We cannot conclude, from the record before us, that the evidence of the prior conviction "was so likely to have influenced the jury improperly [that] the court abused its discretion in admitting it." See id.
2. Improper admission of hearsay evidence.
Relying on State v. Gallup, 500 N.W.2d 437, 440-41 (Iowa 1993), the defendant claims counsel was ineffective for failing to object to the property tag on the outer envelope that contained exhibit A because it improperly summarized the State's case and to object to the corresponding testimony of an officer, recounting the information on the property tag. The property tag contained the basic information identifying the exhibit, the defendant's name, date, and the remarks "narcotics." The defendant argues this error was not harmless because the defendant made no admissions. Our supreme court set forth its reasoning:
Were it not for the fact that [the defendant] admitted that he had sold LSD to [another], we would reverse his conviction on this issue. Generally, the admission of incriminating evidence with an evidence tag still attached is prejudicial error. Such a tag is clearly hearsay. And, in addition, the tag has the effect of unduly emphasizing the State's evidence because it is "a neat condensation of the [State's] whole case against the defendant." So even though recitals on the tag are merely cumulative of the State's evidence, prejudicial error can still occur.
Id. 441 (citations and internal quotation marks omitted). In Gallup, the supreme court found no prejudice because the defendant made an admission. We reached the same result in another appeal involving the defendant filed today, State v. Martin, No. 03-2092/4-767 (Iowa Ct.App. February 24, 2005), because of Martin's admission.
In this case, however, Martin made no admission. Counsel did not object to the evidence tag on the outer envelope containing exhibit A or to the officer's testimony from the evidence tag. We find no reason for not objecting based on trial strategy. Counsel's failure to object was error. See State v. Shultz, 231 N.W.2d 585, 587 (Iowa 1975); State v. Branch, 222 N.W.2d 423, 427 (Iowa 1974). In Shultz, the court determined prejudicial error occurs even when the recitals on the tags are merely cumulative of the State's evidence. Shultz, 231 N.W.2d at 587. In Branch, the court observed the general rule that error in admitting hearsay must be presumed to be prejudicial "unless the contrary is affirmatively established." Branch, 222 N.W.2d at 427. The State has not overcome the presumption of prejudice. We find, therefore, that defense counsel was ineffective in not objecting to the admission of exhibit A when it still had the property tag affixed to the outside envelope and to the officer's testimony from the evidence tag.
3. Motion for new trial.
Finally, the defendant contends counsel failed to argue the proper standard in the motion for new trial. At the hearing, the district court viewed the claims of the defendant to be the same as were raised in all the motions for judgment of acquittal, which challenged the sufficiency of the evidence. A district court is to apply a weight-of-the-evidence standard in considering motions for new trial alleging the verdict was contrary to the evidence. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). The defendant asserts the court "would likely have ruled in defendant's favor" if counsel had reminded the court of its "duty to weigh the credibility of the witnesses." The State responds it is unlikely the district court would have found the evidence "preponderates heavily against the verdict" if defense counsel had specifically argued the weight-of-the-evidence standard. Because of our resolution of the claim counsel was ineffective in not objecting to the evidence tag and the corresponding testimony of the officer, we need not address this issue.
REVERSED AND REMANDED.
Vogel and Eisenhauer, JJ. concur. Hecht and Zimmer, JJ. concur specially.
I concur in the result. Although I would reach the same result as the majority, I would do so pursuant to the prejudice analysis prescribed by Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984) (requiring applicant for post-conviction relief to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). Because this case does not present a direct appeal challenge to the admissibility of the evidence tag, I would not rely on the presumption of prejudice discussed in State v. Branch, 222 N.W.2d 423 (Iowa 1974).
Zimmer, J. joins this special concurrence.