Opinion
No. 4-302 / 03-0737.
June 23, 2004.
Appeal from the Iowa District Court for Polk County, D.J. Stovall and Douglas F. Staskal, Judges.
Defendant Bradley Winters appeals his convictions and sentences on drug related charges. AFFIRMED.
Kent Gummert of Gaudineer, Comito George, L.L.P., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Defendant Bradley Winters appeals his convictions for possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(b)(7) (2001), conspiracy to deliver methamphetamine in violation of section 124.401(1)(b)(7), and failure to possess a tax stamp in violation of sections 453B.3 and 453B.12. Winters argues the district court erred by (1) denying his motion to dismiss which claimed his right to speedy trial under Iowa Rule of Criminal Procedure 2.33(2)( b) was violated, (2) admitting hearsay testimony, (3) denying his motion to suppress, and (4) imposing a sentence that was illegal and excessive. He also claims his trial counsel was ineffective. We affirm.
I. Background Facts and Proceedings.
On August 28, 2002, Agent Paul Feddersen of the Iowa Division of Narcotics Enforcement received a tip from Logan Wernet of the North Central Iowa Narcotics Task Force that Bradley Winters would be traveling that day from Mason City to Des Moines to pick up a large amount of methamphetamine. It was also disclosed to Agent Feddersen that Winters would be driving a red vehicle with the license plate number 152 LAA. During the day and part of the evening, law enforcement officials followed Winters's vehicle to various locations throughout the Des Moines area, including a residence located at 2742 ½ Cleveland Avenue.
The tip also revealed that Winters would be traveling with his mother, Barbara Query. Query would later become a codefendant of Winters.
A Chevrolet Celebrity registered to Kathleen Stalker and a red pickup registered to Paul Hulbert were parked at this address. Hulbert had a prior drug conviction, and Stalker had a prior drug arrest.
At around 10 p.m., Winters and Query packed the vehicle as if they were leaving the Cleveland Avenue address. They then drove to an apartment complex where officers watched Winters as he walked into the complex, stayed for a few minutes and then returned to his vehicle. Winters then drove onto Interstate 35 and headed north.
The Celebrity and red pickup also drove to the apartment complex.
State Trooper Marc Griggs stopped Winters's vehicle after he observed it weaving over the centerline and weaving towards the fog line on the right-hand side of the road. In addition, West Des Moines Police Officer Kenneth O'Brien had been following Winters's vehicle and observed it weaving and traveling eight to ten miles an hour over the speed limit. Trooper Griggs noticed that both Winters and Query were attempting to hide something as he approached the vehicle. After addressing Winters face-to-face, Trooper Griggs noticed that Winters had body tremors and that his eyes were abnormally dilated.
Narcotics agents called a canine unit to the scene. The dog alerted to the scent of narcotics in the vehicle. After the dog alerted, Winters was searched, and a small amount of methamphetamine was found on him. A search was conducted on Winters's vehicle, and approximately two-hundred grams or one-half pound of methamphetamines and $5000 in cash were found.
Winters was charged by trial information on October 9, 2002. A jury trial commenced on February 17, 2003. Winters was found guilty on all counts. The district court sentenced him to a period not to exceed seventy-five years for Counts I and II respectively, and five years with respect to Count III. The sentences were ordered to be served concurrently. Winters appeals.
II. Speedy Trial.
Review of a statutory speedy trial claim is for correction of errors at law. State v. Finn, 469 N.W.2d 692, 693 (Iowa 1991). A district court has limited discretion in ruling on a motion to dismiss under Iowa Rule of Criminal Procedure 2.33(2)( b). State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001). We thus review the district court's ruling for an abuse of discretion. State v. Nelson, 600 N.W.2d 598, 601 (Iowa 1999). We will not find an abuse of discretion unless "such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Cunningham, 463 N.W.2d 887, 889 (Iowa Ct.App. 1990).
Iowa Rule of Criminal Procedure 2.33(2)( b) provides:
If a defendant indicted for a public offense has not waived the defendant's right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.
The burden is on the State to demonstrate compliance with speedy trial principles. State v. Bond, 340 N.W.2d 276, 279 (Iowa 1983). However, dismissal is not compelled where the State proves (1) defendant's waiver of speedy trial, (2) delay attributable to the defendant, or (3) "good cause" for the delay. Nelson, 600 N.W.2d at 600.
Good cause, under our rule, focuses on only one factor: the reason for the delay. Id. at 601 (citing State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980)). Our supreme court stated in Nelson:
Surrounding circumstances bear on the inquiry only to the extent they relate directly to the sufficiency of the reason itself. Thus a short period of delay or the absence of prejudice may be legitimate considerations but "only insofar as they affect the strength of the reason for the delay." In other words, "[i]f the reason for the delay is sufficient the other factors are not needed. If the reason for the delay is insufficient the other factors will not avail to avoid dismissal."
Id. (citations omitted).
In this case, the trial information was filed on October 9, 2002. Winters was subsequently arraigned on those charges on October 10. Initially, Winters's pretrial conference was set for November 7, 2002, and his trial was to take place on December 9, 2002. On October 14, 2002, Winters filed a pro se motion to dismiss and a pro se motion to suppress. The court decided to hear both motions at the same time as the pretrial conference set for November 7, 2002. The pretrial conference was held on November 7; however, the court did not hear Winters's motions. Instead, the court listed the motions as outstanding.
A status hearing was scheduled to take place on November 27, 2002. At that hearing, Winters's codefendants waived their rights to speedy trial and filed motions to continue so they could have additional time for discovery and to file additional motions. At that point, Winters stated he would not waive his right to a speedy trial.
The State was ready to proceed to trial on December 9, 2003. The State listed in excess of twenty witnesses that could appear as part of its case-in-chief. Winters wanted to engage in discovery, including the deposition of witnesses, and have hearings on his previously filed pro se motions prior to trial on December 9. The State noted it was not possible for Winters to take depositions of the witnesses and to have a hearing on all of the motions filed by either Winters or the codefendants prior to December 9. The district court determined there was good cause to continue the trial beyond the speedy trial deadline stating:
[T]he Court considering these matters determines that, first of all, as a practical matter it would not be possible for the Court to hold hearings and rule on pro se motions that are in the file, and for the discovery that Mr. Winters desires to do, for both of those things to be accomplished by even the January 7 speedy trial deadline, even if the Court were to accommodate Mr. Winters by setting the trial within the speedy trial deadline, then what I am saying is he would be going to trial without accomplishing the things that he's said on the record here that he wants to accomplish because it cannot be accomplished.
For that reason it would not even make sense to sever the trials and allow Mr. Winters' case to be tried first, because that wouldn't solve his problem, because he couldn't do the things he wants to do before the trial anyway.
Additionally, if you severed the trials, it would result in duplication of [probable] discovery, as well as certainly, obviously, trials with a lot of witnesses. The Court concludes, based on all these factors, that there is good cause for setting a trial date outside of the speedy trial deadline, and so the Court will continue this trial and reschedule it for February the 17th, 2003.
The Court orders Mr. Marks to review and recast the defendant's pro se filings in a proper form for consideration by the Court.
. . . .
. . . I wanted to say for the record that the factor — balancing factor in the Court's determination of good cause included consideration that the only way to accommodate Mr. Winters would be either to force all of the defendants to go to trial on December 9, and that would seriously interfere with the other two defendants' rights to a fair trial, because they wouldn't be able to engage in discovery and prepare, or to sever the cases and incur the expense and other problems that would go along with duplicity of discovery efforts, and duplicative trials, especially when there is that many witnesses.
We have carefully reviewed the record and conclude there was "good cause" for the district court to set the trial outside the speedy trial deadline. We also conclude the delay in this case was attributable to the defendant. "Delay attributable to the defendant may constitute good cause; a defendant must accept such passage of time as is reasonably necessary for action upon his own motions and applications." State v. Moehlis, 250 N.W.2d 42, 46 (Iowa 1977) (citing State v. Donnell, 239 N.W.2d 575, 579 (Iowa 1976); State v. Collins, 236 N.W.2d 376, 377-78 (Iowa 1975); State v. Truax, 232 N.W.2d 861, 863 (Iowa 1975)). Accordingly, we affirm on this issue.
III. Alleged Hearsay.
Winters contends the district court erred by allowing hearsay to be admitted into evidence during the direct examination of Agent Feddersen. We review the admission of hearsay for errors at law, not for abuse of discretion. State v. Long, 628 N.W.2d 440, 447 (Iowa 2001). However, we give deference to the district court's factual findings and uphold such findings if they are supported by substantial evidence. Id. Hearsay is an out-of-court statement, other than one made by a declarant while testifying at trial, offered to prove the truth of the matter asserted. Iowa R. Evid. 5.801( c). Hearsay is not admissible except as provided by the Iowa Constitution, by statute, by the rules of evidence or by other rules of the Iowa Supreme Court. Iowa R. Evid. 5.802.
At trial, Agent Feddersen testified that Detective Wernet told him Winters would be traveling to Des Moines on August 28, 2002, in a red vehicle with the license plate number 152 LAA to purchase methamphetamines. We, first of all, conclude this testimony was not hearsay because it was not offered to prove the truth of the matter asserted. The agent was simply testifying concerning the reason he found it necessary to take an initial and responsive action. Thus, his testimony was "admissible as necessary to complete the story of the crime on trial." State v. Rush, 242 N.W.2d 313, 319 (Iowa 1976). "Generally, an investigating officer may explain his actions by testifying as to what information he had and its source regarding the crime and the criminal." State v. Reynolds, 250 N.W.2d 434, 440 (Iowa 1977).
Even assuming this testimony was improperly admitted hearsay, we conclude it was not prejudicial to Winters. If the error is not of constitutional dimension, affecting a fundamental right, we review the inadmissible statements weighed against the other evidence properly admitted to determine whether admission of the statements impacted the jury's verdict. State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct.App. 1999). The test for harmless error in this circumstance is "whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice." State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998). To warrant reversal, an error must have prejudiced the defendant. Id. It is elementary that the "admission of evidence is not prejudicial where substantially the same evidence is elsewhere in the record without objection." State v. Wells, 437 N.W.2d 575, 578 (Iowa 1989); State v. Hood, 346 N.W.2d 481, 484 (Iowa 1984); State v. Jacoby, 260 N.W.2d 828, 834 (Iowa 1977).
Officer O'Brien testified, without objection, about the information Agent Feddersen had received from Detective Wernet. Agent Feddersen's testimony, even if hearsay, was substantially the same evidence as the testimony of Officer O'Brien. We find the district court's admission of this testimony did not prejudice Winters. Accordingly, we affirm the district court on this issue.
IV. Motion to Suppress.
Winters argues the district court erred when it denied his motion to suppress. In our de novo review, we make an independent evaluation of the totality of the circumstances based on the entire record. State v. Tolsdorf, 574 N.W.2d 290, 291 (Iowa 1998). We are bound by findings of fact underlying the district court's ruling if they are supported by substantial evidence. State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). In reviewing the district court's ruling, we consider both the evidence presented at the suppression hearing and that introduced at trial. Id.
Both the United States Constitution and the Iowa Constitution protect persons from unreasonable searches and seizures. See U.S. Const. amend. IV; Iowa Const. art. I, § 8. Warrantless searches are per se unreasonable unless the State proves by a preponderance of the evidence that one of the recognized exceptions to the warrant requirement applies. Tolsdorf, 574 N.W.2d at 292. The exceptions include searches based on consent, plain view, probable cause and exigent circumstances, and searches incident to arrest. State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997); State v. Howard, 509 N.W.2d 764, 766-67 (Iowa 1993).
We first address whether law enforcement officials had reasonable and articulable cause to stop Winters's vehicle. Looking at the totality of the circumstances, we conclude the detailed information provided to the officers and the verification of those details, coupled with Winters's traffic transgressions, provided law enforcement officials with reasonable and articulable cause to stop his car. See State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996); see also State v. Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980); State v. Markus, 478 N.W.2d 405, 407 (Iowa Ct.App. 1991).
We next address whether Winters's vehicle was lawfully searched. Winters asserts the search of his vehicle was not conducted under one of the established exceptions to the warrant requirement. The State contends the warrantless search was justified by the existence of probable cause coupled with exigent circumstances. We agree.
The automobile exception to the Fourth Amendment requirement of a search warrant is applicable if probable cause and exigent circumstances exist when the police stop an automobile. State v. Dawdy, 533 N.W.2d 551, 556 (Iowa 1995); State v. Edgington, 487 N.W.2d 675, 678 (Iowa 1992). An officer has probable cause to search an automobile when the facts and circumstances would lead a reasonably prudent person to believe that the vehicle contains contraband The facts and circumstances upon which a finding of probable cause is based include "the sum total . . . and the synthesis of what the police have heard, what they know, and what they observe as trained officers."
Edgington, 487 N.W.2d at 678 (citation omitted). The exigency requirement is satisfied "when the car is mobile . . . and the car's contents may never be found again if a warrant must be obtained." Id. (citation omitted). Because both circumstances existed in the present case, the search conducted falls within the recognized exception and did not violate the Fourth Amendment of the United States Constitution or Article I, section 8 of the Iowa Constitution. We affirm the district court on this issue.
V. Sentence Imposed. A.
Winters first claims his conviction was illegal because it violated the double jeopardy provisions of the Fifth Amendment of the United States Constitution and Article I of the Iowa Constitution. More specifically, he contends the use of his prior drug conviction in determining his current sentence violated his constitutional protections from multiple prosecutions and punishments. On this constitutional claim our review is de novo. State v. Spilger, 508 N.W.2d 650, 651 (Iowa 1993).
The Double Jeopardy Clause applies to state criminal trials through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794-95, 89 S.Ct. 2056, 2065, 23 L.Ed.2d 707, 715-16 (1969).
The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause protects a defendant against: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. State v. Schmitz, 610 N.W.2d 514, 515 (Iowa 2000) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-665 (1969)). The prohibitions in the Double Jeopardy Clause are based on principles of finality and the prevention of prosecutorial misconduct. State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
When the court applies enhanced punishment, the defendant is not being prosecuted for his past offenses. State v. Miller, 606 N.W.2d 310, 312 (Iowa 2000) (citing State v. Garcia, 600 N.W.2d 320, 321 (Iowa 1999)). Instead, enhanced punishment is based on the defendant's conduct at the time of the defendant's latest offense. Id. The use of prior convictions to enhance punishment does not violate constitutional principles of double jeopardy. State v. Tobin, 333 N.W.2d 842, 845 (Iowa 1983); see also Spencer v. Texas, 385 U.S. 554, 559-60, 87 S.Ct. 648, 651, 17 L.Ed.2d 606, 611-12 (1967); State v. Popes, 290 N.W.2d 926, 927 (Iowa 1980); State v. Kramer, 235 N.W.2d 114, 117 (Iowa 1975). Accordingly, we find the district court did not violate Winters's constitutional rights when factoring his prior conviction into the court's determination of his current sentence.
B.
Winters also claims the sentence imposed upon him was illegal because the Iowa Code sections he was convicted under were unconstitutionally vague. Our review of Winters's constitutional claim is de novo. State v. White, 545 N.W.2d 552, 554 (Iowa 1996). "As part of our analysis of a vagueness challenge we presume the statute is constitutional and give it any reasonable construction necessary to uphold it." State v. Hunter, 550 N.W.2d 460, 462 (Iowa 1996). The challenger has the burden to demonstrate the statute is unconstitutional by negating every reasonable basis for supporting its validity. State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997).
"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Hunter, 550 N.W.2d at 463 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983)). Therefore, to withstand a constitutional attack, a statute must (1) give a person of ordinary intelligence fair notice of what is prohibited, and (2) provide an explicit standard for those who apply it. State v. Walker, 506 N.W.2d 430, 432 (Iowa 1993). The void-for-vagueness doctrine, as used in a vague-as-applied claim, "simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed." Milner, 571 N.W.2d at 14-15. The fact that a statute may be vague as applied to other factual scenarios is irrelevant to this analysis. State v. Atley, 564 N.W.2d 817, 831 (Iowa 1997).
Section 124.401(1)(b)(7) defines the prohibited acts of manufacturing and possession of controlled substances as follows:
1. Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated substance.
. . . .
b. Violation of this subsection with respect to the following controlled substances, counterfeit substances, or simulated controlled substances is a class "B" felony, and in addition to the provisions of section 902.9, subsection 2, shall be punished by a fine of not less than five thousand dollars nor more than one hundred thousand dollars:
. . . .
7. More than five grams but not more than five kilograms of methamphetamine, its salts, isomers, or salts of isomers, or analogs of methamphetamine, or any compound, mixture, or preparation which contains any quantity or detectable amount of methamphetamine, it salts, isomers, or salts of isomers, or analogs of methamphetamine.
In addition, section 124.411 sets forth the sentencing options for a second or subsequent offender as follows:
Any person convicted of a second or subsequent offense under this chapter, may be punished by imprisonment for a period not to exceed three times the term otherwise authorized, or fined not more than three times the amount otherwise authorized, or punished by both such imprisonment and fine.
For purposes of this section, an offense is considered a second or subsequent offense, if, prior to the person's having been convicted of the offense, the offender has ever been convicted under this chapter or under any state or federal statute relating to narcotic drugs or cocaine, marijuana, depressant, stimulant, or hallucinogenic drugs.
Section 124.401(1)(b)(7) clearly provides it is unlawful to possess methamphetamines with the intent to deliver those controlled substances. Moreover, section 124.401(1)( b)(7) states that such an act is a class "B" felony. Section 124.411 clearly provides a second-time offender can be punished up to three times the term otherwise authorized. Winters had previously been convicted of a drug felony on March 28, 1998. On February 19, 2003, Winters was found guilty of three separate counts. In its sentencing order the district court stated:
A class "B" felony is punishable by confinement up to twenty-five years. Iowa Code § 902.9.
The Defendant shall be imprisoned for a period not to exceed SEVENTY-FIVE (75) YEARS EACH with respect to Counts I and II; and FIVE (5) YEARS with respect to Count III as provided by Iowa Code sections 902.3, 902.9 and 124.401. The prison terms imposed shall run concurrent to each other.
We conclude sections 124.401(1)(b)(7) and 124.411 are not unconstitutionally vague as applied to Winters's conduct.
C.
Winters finally claims the district court abused its discretion because his sentence was excessive. Our review is for the correction of errors at law. Iowa R. App. P. 6.4. A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as the trial court's consideration of impermissible factors. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). Sentencing decisions of the trial court are cloaked with a strong presumption in their favor, and an abuse of discretion will not be found unless the defendant shows such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995).
In determining the proper sentence, the district court "should weigh and consider all pertinent matters, including the nature of the offense, the attending circumstances, defendant's age, character, and propensities and chances of his reform." State v. August, 589 N.W.2d 740, 744 (Iowa 1999) (quoting State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)). The courts owe a duty to the public as much as to defendant in determining a proper sentence. Id. The punishment should fit both the crime and the individual. Id.
Winters contends the district court erred in determining his sentence because it did not properly consider the fact that he claimed he had no intent to deliver or sell the methamphetamine. He also claims the district court overlooked the fact that he had previously completed parenting and drug education classes. At sentencing, the district court heard arguments from both Winters and his attorney, as well as from the State. The State noted that Winters's criminal history extended back to his days as a juvenile and included "a number of felony convictions." Moreover, the State pointed out that Winters had been convicted twice for drug felonies. After hearing the arguments on both sides of the issue, the district concluded there were no mitigating circumstances in Winters's favor. The record reveals the court carefully weighed all pertinent matters. Therefore, we conclude the district court did not abuse its discretion in sentencing Winters. We affirm the district court on this issue.
VI. Ineffective Assistance of Counsel.
Winters claims he was denied effective assistance of counsel when his attorney failed to call Detective Wernet to the stand in an attempt to point out discrepancies between the information Detective Wernet provided as an informant and the testimony of Agent Feddersen, who testified at trial. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999).
In order to show ineffective assistance of counsel a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Winters must prove that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceedings would have been different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
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. Atley, 564 N.W.2d at 833. "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). We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We conclude the record before us is adequate to determine Winters's claim of ineffective assistance of counsel. In our discretion, we address the prejudice prong first. State v. Nebinger, 412 N.W.2d 180, 192 (Iowa Ct.App. 1987).
We conclude Winters has failed to prove that there is a reasonable probability that but for counsel's error he would not have been convicted of the above-mentioned crimes. We do not believe the failure to call Detective Wernet amounted to prejudice. Three different law enforcement officers confirmed the information provided by Detective Wernet. We conclude Winters's claim of ineffective assistance of counsel must fail.