Opinion
No. 5-573 / 04-0570
Filed August 31, 2005
Appeal from the Iowa District Court for Black Hawk County, Nathan A. Callahan, District Associate Judge.
Chester Lee Polk, Jr. appeals from his conviction, judgment, and sentence for theft in the first degree. AFFIRMED; SENTENCE VACATED, AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Chester Lee Polk, Jr., pro se, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Zimmer, JJ.
Chester Lee Polk, Jr. appeals from his conviction, judgment, and sentence for theft in the first degree in violation of Iowa Code sections 714.1(1) and 714.2(1) (2003), enhanced as a habitual offender under Iowa Code section 902.8. We affirm Polk's conviction, but vacate his sentence and remand for resentencing as it appears the district court may have considered unproven facts in determining Polk's sentence. We preserve Polk's ineffective assistance of counsel claim as to the jury venire selection.
Background Facts and Proceedings.
In August of 2003 Cassandra Meier walked into a HyVee grocery store in Waterloo carrying one hundred and ninety one-dollar bills, a video, some envelopes, and her thirteen month old daughter. Meier then entered the teller line of the John Deere Credit Union housed within the HyVee in order to deposit her cash. Polk got in line directly behind Meier and began moving closer to her. Polk then reached around Meier and tried to grab the cash from Meier's hand. When Meier would not let go of the money, Polk used his shoulder to shove her aside, grabbed the cash and ran. When Meier yelled for someone to stop Polk, two HyVee employees tackled Polk and held him until police arrived.
Meier worked as a waitress and the money she sought to deposit was received from tips.
The State filed a trial information charging Polk with Count I, Robbery in the Second Degree in violation of Iowa Code section 711.1 and 711.3 enhanced as a habitual offender pursuant to Iowa Code section 902.8 (2003); and Count II, Theft in the First Degree in violation of Iowa Code section 714.1(1) and 714.2(1), which was also enhanced as a habitual offender pursuant to Iowa Code section 902.8.
Trial commenced in late January of 2004. Following the trial the jury found Polk not guilty of count I including the lesser included offense of assault, but guilty under count II of theft in the first degree. Polk admitted to having two previous felony convictions so as to trigger the habitual offender enhancement. The district court sentenced Polk to an indeterminate prison term not to exceed fifteen years with a mandatory minimum sentence of three years. Polk appeals.
I. Unproven Offenses in Sentencing.
Polk argues that the district court abused its sentencing discretion by referencing and thereby considering several items found on his person when he was arrested. Our review of a sentencing decision is for correction of errors at law. See State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). "Where . . . a defendant does not assert that the imposed sentence is outside the statutory limits, the sentence will be set aside only for an abuse of discretion." Id. Reversal on this ground is mandated when the trial court considers an improper sentencing factor. State v. Carrillo, 597 N.W.2d 497, 501 (Iowa 1999).
In determining an appropriate sentence a court may look to the facts and circumstances surrounding the crime. State v. Manser, 626 N.W.2d 872, 874 (Iowa Ct.App. 2001). However, if a court in determining a sentence uses any improper consideration, resentencing of the defendant is required. Carrillo, 597 N.W.2d at 501 ("We have noted that we may not speculate about the weight given by the sentencing court to the improper factor and that there is no way of knowing what sentence would have been pronounced had the improper factor not been considered."); State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998). This is true even if it was merely a "secondary consideration." State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). See also State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981) ("[W]e cannot speculate about the weight trial court mentally assigned [an improper] factor, or whether it tipped the scales to imprisonment.").
During the sentencing hearing the district court made several comments regarding Polk's extensive criminal history and the circumstances of this crime. The court also made the following comments:
The other factors that concern me greatly is number one, you were in possession of a social security card, a MasterCard and Shazam card from the John Deere Community Credit Union in the name of another individual, Kevin Dale Cameron. I don't know how you came to be in possession of Mr. Cameron's identity card and his credit card and his Shazam card, but I do find it somewhat coincidental that you were in the line at the John Deere Community Credit Union where those things were from. If you have some information to shed some light on it, I would certainly be interested in it.
And, nonetheless, I'm certainly not making a finding that you have committed another criminal offense in that regard; but those are factors I find to be somewhat aggravating and circumstantially suspect. You were also in possession and [sic] a check for Iris Wright. I don't know how you came to be in possession of those things. No explanation was submitted in regards to that.
You were also in possession of a straightedge razor. That, for somebody who had just been released from completing another sentence, is very disconcerting to me, particularly when it's combined with the fact that you have stated that this was a crime of opportunity. It was an impulsive thing.
None of those factors speak well in your behalf, Mr. Polk; and I think that the 15-year sentence is an appropriate sentence.
We find that, although it appears the district court gave considerable weight to Polk's prior criminal history and the circumstances surrounding this crime, the district court also mentioned and thereby may have given secondary consideration to Polk's possession of several items conceivably not belonging to him. The district court's statements imply that it considered Polk's possession of these items suspicious, even though the court stated it was not making a finding that Polk committed other uncharged crimes by possessing these items. While it is clear that the district court also considered other relevant sentencing factors, including Polk's prior criminal history and the circumstances of the current conviction, we cannot speculate on the weight the district court gave to the uncharged and unproven suspicious activity. We therefore vacate Polk's sentence on theft in the first degree and remand to the district court for resentencing.
Polk also raised ineffective assistance of counsel issues concerning the presentence investigation report. In the interest of judicial economy, on remand and before resentencing we direct the presentence investigation report be updated to remedy these issues.
II. Objection to Jury Venire.
Polk next contends on appeal that his trial counsel was ineffective for failing to adequately challenge the composition of the jury venire summoned for Polk's trial in Black Hawk County. Because a claim of ineffective assistance of counsel implicates constitutional rights, our review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). The defendant must overcome a strong presumption of his counsel's competence. State v. Nucaro, 614 N.W.2d 856, 858 (Iowa Ct.App. 2000). He has the burden of proving (1) his attorney's performance fell below "an objective standard of reasonableness," and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Polk claims his trial counsel failed to adequately challenge the jury venire as unrepresentative of African Americans in the community, and thereby violating his Sixth Amendment rights, the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Iowa Constitution. The State asserts there was no evidence presented of systematic exclusion of minorities in the jury selection process and that there is not a reasonable likelihood that Polk's trial counsel would have discovered a consistent pattern of underrepresentation of minorities on Black Hawk County juries.
A. Applicable Legal Principles. 1. Sixth Amendment and Iowa Constitution Article I, Section 10.
The Sixth Amendment and the Iowa Constitution entitle a defendant to an impartial jury panel designed to represent a fair cross section of the community. State v. Huffaker, 493 N.W.2d 832, (Iowa 1992).
The fair cross section venire requirement is obviously not explicit in this text, but is derived from the traditional understanding of how an "impartial jury" is assembled . . . The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does).
Holland v. Illinois, 493 U.S. 474, 480, 110 S. Ct. 803, 807, 107 L. Ed. 2d 905, 916 (1990).
However, the United States Supreme Court has stated that requiring jury venires to reflect a fair cross section of the community "impose[s] no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition." Id. at 483, 110 S. Ct. at 808, 107 L. Ed. 2d at 918 (quoting Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690, 703 (1975)).
To establish a prima facie violation of the fair cross section requirement, a defendant must first show that the group alleged to be excluded is a "distinctive" group in the community. Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579, 586-87 (1979). Second, the defendant must show that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community. Id. A defendant may use statistical evidence, such as the most recent census figures, to calculate the absolute disparity between the distinctive group reflected by census and as reflected on the jury. State v. Fetters, 562 N.W.2d 770, 777 (Iowa Ct.App. 1997). A numerical disparity alone does not violate any of defendant's rights and is insufficient to establish a prima facie case. United States v. Garcia, 991 F.2d 489, 492 (8th Cir. 1993). Third, the defendant must establish that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren, 439 U.S. at 366, 99 S. Ct. at 669, 58 L. Ed. 2d at 587-88. To make this showing, defendant must show the exclusion is "inherent in the particular jury-selection process utilized." Id. If a prima facie case is established, the burden shifts to the State to demonstrate a justifiable reason for the disproportionate representation by showing that obtaining a fair cross section is incompatible with a significant state interest. Id. at 368, 99 S. Ct. at 670-71, 58 L. Ed. 2d at 589-90; State v. Jones, 490 N.W.2d 787, 792 (Iowa 1992). Our Iowa Supreme Court has held that the manner of jury venire selection set out in Iowa Code section 607A.22 is proper. See Jones, 490 N.W.2d at 794.
2. Equal Protection under the Fourteenth Amendment.
An equal protection challenge to the jury venire selection process under the Fourteenth Amendment entails a slightly different analysis. The United States Supreme Court stated the three-part analysis in Casteneda v. Partida, 430 U.S. 482, 494-95, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498, 510-11 (1977), of an equal protection violation under the Fourteenth Amendment involving jury venire selection:
The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. This method of proof, sometimes called the `rule of exclusion,' has been held to be available as a method of proving discrimination in jury selection against a delineated class. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.
(citations omitted).
A defendant may establish a prima facie case of an equal protection violation where, "underrepresentation of a distinctive group [has] been so compelling that statistical proof of the imbalance is enough in itself to establish a prima case." See State v. Watkins, 463 N.W.2d 411, 414 (Iowa 1990). But cf. Swain v. Alabama, 380 U.S. 202, 208-09, 85 S. Ct. 824, 829, 13 L. Ed. 2d 759, 766 (1965) (ten percent absolute disparity not compelling enough to establish prima facie case), overruled on other grounds by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); United States v. Clifford, 640 F.2d 150, 155 (8th Cir. 1981) (7.2 percent absolute disparity insufficient). Watkins refers to the Castaneda analysis, where statistical evidence of a substantialunderrepresentation of a cognizable group may establish a prima facie case of discriminatory purpose that violates equal protection. Castaneda, 430 U.S. at 495-96, 97 S. Ct. at 1280-81, 51 L. Ed. 2d at 511-12. Discriminatory purpose is not required under the Sixth Amendment fair cross section analysis. Duren, 439 U.S. at 368 n. 26, 99 S. Ct. at 670, 58 L. Ed. 2d at 589.
B. Discussion.
The jury venire summoned for Polk's case consisted of 50 residents of Black Hawk County, none of which were African-American. The pool was almost exclusively Caucasian, whereas Polk is African-American. Polk's trial counsel immediately challenged the venire and potential juror panel on the grounds that the venire was not representative of the minority population of Black Hawk County. The district court stated that it did not have any information suggesting abnormalities in the jury summons, including nothing "that would suggest that there was any sort of intentional deletion of African American or other minorities from this jury pool." The district court overruled the defense objection to the jury panel. Polk's trial counsel renewed the objection to the jury panel the following day, citing Census Bureau figures from the year 2000, which counted 11.6 percent of the Black Hawk County population as persons of color, and more specifically, eight percent African-American. Polk's trial counsel did not present further evidence as to particular selection methods used by the county in this case or in previous cases. The district court again overruled the objection to the jury panel on the grounds that Polk failed to show any unlawful method of jury selection in Black Hawk County resulting in the systematic exclusion of minorities from the jury venire.
The venire was reduced to 27 potential jurors on the panel before voir dire took place.
Ineffective assistance of counsel claims are generally reserved for postconviction relief actions. State v. Fox, 491 N.W.2d 527, 535 (Iowa 1992); State v. Stewart, 691 N.W.2d 747, 750 (Iowa Ct.App. 2004). Although there is some record to review on Polk's claims, the better option is to preserve them to allow for the full development of the facts concerning trial counsel's conduct with regard to challenging the composition of the jury venire. Accordingly, we preserve his ineffective assistance claims regarding challenges to the jury venire for possible postconviction relief.
III. Theft in the First Degree Challenge.
Polk also contends in his pro se appellate brief that the State committed prosecutorial misconduct in violation of his constitutional right to due process when it charged him with theft in the first degree instead of only the lesser offense of theft in the fifth degree. Although Polk did not raise this issue in the district court, we consider it now because Polk also argues that his trial counsel was ineffective for failing to object to the first degree theft charge and have it excluded.
As noted above, we may decide ineffective assistance claims on direct appeal if the appeal record demonstrates that the defendant cannot prevail on a claim as a matter of law. State v. Martinez, 679 N.W.2d 620, 625-26 (Iowa 2004). Polk was originally charged by trial information on September 5, 2003, with robbery in the second degree and theft in the first degree. The lesser included offense of theft in the fifth degree was also submitted to the jury. Polk argues on appeal that once his trial counsel's motion to include theft in the fifth degree was granted, counsel should have also moved to have theft in the first degree dismissed. Theft, as defined by Iowa Code section 714.1, occurs when one "[t]akes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof." Iowa Code section 714.2(1) categorizes theft in the first degree as "[t]he theft of property exceeding ten thousand dollars in value, or the theft of property from the person of another . . . is theft in the first degree." (emphasis added). That code section also categorizes theft in the fifth degree as theft involving property not exceeding two hundred dollars in value. Iowa Code § 714.2(5). While the evidence presented at trial was that Polk took less than two hundred dollars from Meier, the evidence also was that Polk took it out of her hand, thereby satisfying the "from the person of another" element of theft in the first degree. Therefore, based on the evidence presented, the charge was properly submitted to the jury. See State v. Washington, 308 N.W.2d 422, 423 (Iowa 1981). Trial counsel is not under a duty to raise a meritless issue, State v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005), and thus we find that Polk's trial counsel did not breach an essential duty by failing to object to the inclusion of the charge of theft in the first degree.
We affirm Polk's conviction for theft in the first degree but vacate the sentence and remand for resentencing,