Opinion
No. 3-334 / 02-1686.
Filed June 25, 2003.
Appeal from the Iowa District Court for Warren County, Martha L. Mertz, Judge.
Ronald Scarberry seeks postconviction relief from his convictions for conspiracy to manufacture methamphetamine, possession of a precursor, and possession of methamphetamine. AFFIRMED.
Unes Booth of Booth Law Firm, Osceola, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, Gary Kendall, County Attorney, and Ryan J. Ellis, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Ronald Scarberry seeks postconviction relief from his convictions for conspiracy to manufacture methamphetamine, possession of a precursor, and possession of methamphetamine. Scarberry claims he received ineffective assistance of counsel due to counsel's failure to: (1) move to suppress statements Scarberry made during the investigation of a different crime; (2) move to suppress evidence seized following a traffic stop; (3) object to the introduction of a co-conspirator's conviction; (4) object to opinion evidence of intent; and (5) advise him to testify. We affirm.
I. Background Facts Proceedings
On June 22, 1998, Scarberry was driving a car owned by Randy Fry, with Fry as the passenger, when he was stopped for speeding in Warren County by a state trooper. The trooper asked Scarberry for consent to search the car, and Scarberry replied the car belonged to Fry. Fry gave verbal consent, and Scarberry then gave written consent to search the vehicle. Inside the car there was a box of razor blades, a cellular phone, a scanner, a portable scanner, a walkie-talkie, and a large quantity of pseudoephedrine. The trunk contained more pseudoephedrine, lithium batteries, muriatic acid, plastic fuel tanks, plastic tubing, and gloves. Scarberry had $1690 in cash and .9 grams of methamphetamine on his person.
Scarberry was arrested and charged with conspiracy to manufacture methamphetamine, in violation of Iowa Code section 124.401(1)(b)(7) (1997), possession of a precursor, in violation of section 124.401(4), and possession of methamphetamine, in violation of section 124.401(5). Scarberry was represented by an attorney, and was released pending trial.
In November 1998 Scarberry was arrested on unrelated charges in Polk County. Scarberry was informed of his Miranda rights prior to questioning by police officer Patrick Hickey. Scarberry agreed to talk to Hickey, and he explained the process he used to manufacture methamphetamine, including the length of time the process took and the fact the necessary materials were readily available. He admitted to manufacturing the drug for his personal use.
The State called Hickey to testify to these statements during Scarberry's criminal trial on the Warren County charges. Jerry Nelson, a special agent with the Iowa Division of Narcotics Enforcement, and Nila Bremer, a criminalist with the Iowa Division of Criminal Investigation, testified the items found in the vehicle were consistent with the manufacture of methamphetamine. Scarberry did not testify at his criminal trial. A jury found him guilty of the crimes charged.
Scarberry was sentenced to terms of imprisonment of twenty-five years on the conspiracy charge, five years on the possession of a precursor charge, and one year on the possession of methamphetamine charge, all to be served concurrently. Scarberry appealed, and we upheld his conviction. State v. Scarberry, No. 99-0885 (Iowa Ct.App. Apr. 28, 2000).
In his direct appeal, Scarberry alleged the district court erred in (1) failing to grant his motion for judgment of acquittal based on insufficient evidence, and (2) abused its discretion in admitting his statements to Officer Hickey following the November 1998 arrest.
In his present postconviction proceedings, Scarberry claims he received ineffective assistance of counsel during his criminal trial and on appeal. The district court denied Scarberry's request for postconviction relief, finding Scarberry received representation which was within the normal range of competency. Scarberry appeals.
II. Standard of Review
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a postconviction applicant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied an applicant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the applicant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
III. Admission of Statements
Scarberry claims he received ineffective assistance due to counsel's failure to move to suppress his statements to Hickey based on his right to counsel under the Sixth Amendment. He asserts he had invoked his right to counsel on the Warren County charges and that the State could not question him without the presence of counsel.
The Sixth Amendment gives a defendant the right to the assistance of counsel. U.S. Const. amend. VI. Our Sixth Amendment analysis involves a two-step inquiry: (1) whether the right to counsel had attached when Scarberry made the incriminating statements; and (2) if so, whether he waived his right before making the statements. See State v. Nelson, 390 N.W.2d 589, 591 (Iowa 1986); State v. Findling, 456 N.W.2d 3, 6 (Iowa Ct.App. 1990).
The right to counsel attached upon the initiation of adversarial criminal judicial proceedings. State v. Johnston, 406 N.W.2d 794, 796 (Iowa Ct.App. 1987). It is clear criminal proceedings against Scarberry had been initiated in Warren County at the time he made the statements in question, and his right to counsel had attached. Our supreme court has stated, "our constitution prohibits agents of the State from initiating any conversations or dealing with an accused concerning the criminal charge on which representation of counsel has been sought." State v. Newsom, 414 N.W.2d 354, 359 (Iowa 1987) (emphasis added).
This statement was made in regard to the Iowa Constitution, article I, section 10. State v. Newsom, 414 N.W.2d 354, 359 (Iowa 1987). When the federal and state constitutions contain similar provisions, "they are usually deemed to be identical in scope, import, and purpose." State v. Davis, 304 N.W.2d 432, 435 (Iowa 1981).
Under the Sixth Amendment, the State could not question Scarberry about the Warren County charges absent the presence of counsel or a valid waiver. See Nelson, 390 N.W.2d at 592. Scarberry admitted, however, he was not questioned about the charges in Warren County at the time he spoke to police officers in November 1998. Scarbarry's invocation of the Sixth Amendment regarding the Warren County charges would not bar police-initiated questions concerning other crimes. See McNeil v. Wisconsin, 501 U.S. 171, 182, 111 S.Ct. 2204, 2211, 115 L.Ed.2d 158, 171 (1991). We conclude there was no Sixth Amendment violation necessitating suppression of Scarberry's statements to the officers in Polk County regarding a separate crime.
In the alternative, we determine Scarberry waived his right to counsel. Prior to talking to Scarberry, the police officers informed him of his Miranda rights. In Patterson v. Illinois, 487 U.S. 285, 299, 108 S.Ct. 2389, 2398-99, 101 L.Ed.2d 261, 277 (1988), the United States Supreme Court held that a defendant's waiver of Miranda rights is sufficient to waive his Sixth Amendment right to counsel. See also State v. Tovar, 656 N.W.2d 112, 118 (Iowa 2003). The Miranda warnings informed Scarberry of the consequences of his statements. See Findling, 456 N.W.2d at 7.
The district court ruled, "There is no evidence if a motion to suppress was filed on Sixth Amendment grounds Scarberry would have been successful." We determine Scarberry did not receive ineffective assistance due to counsel's failure to move to suppress his statements to Hickey based on his right to counsel under the Sixth Amendment.
IV. Seizure of Evidence
Scarberry contends his trial counsel should have moved to suppress the admission of the items seized from the vehicle on the ground the seizure violated the Fourth Amendment. Scarberry admits that because he was speeding, the state trooper had reasonable cause to stop the vehicle he was driving. See State v. Gillespie, 619 N.W.2d 345, 351-52 (Iowa 2000) (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996)). He asserts his consent to search the vehicle was invalid because he was illegally detained after he had been issued a citation for speeding. See Florida v. Royer, 460 U.S. 491, 507-08, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229, 243 (1983).
Warrantless searches and seizures are per se unreasonable unless they fall within one of the carefully drawn exceptions to the warrant requirement. State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996). Valid exceptions are those based on: (1) consent; (2) probable cause and exigent circumstances; (3) items in plain view; or (4) search incident to arrest. Id. The search in this case was based on consent. Both Scarberry, the driver, and Fry, the owner of the vehicle, consented to the search.
We previously found on direct appeal consent to search the vehicle was given by both Scarberry and Fry.
The evidence does not show Scarberry was illegally detained at the time he gave his consent. Scarberry gave his consent after he had been given a citation for speeding. As the State points out, the trooper had no identification or property of Scarberry's, and Scarberry had everything he needed to continue his trip. Scarberry was not considered detained, or "seized," within the meaning of the Fourth Amendment because he was free to continue on his way. See United States v. Morgan, 270 F.3d 625, 630 (8th Cir. 2001); United States v. Beck, 140 F.3d 1129, 1135 (8th Cir. 1998); United States v. White, 81 F.3d 775, 779 (8th Cir. 1996). Scarberry has failed to show trial counsel was ineffective due to his failure to seek to suppress the results of the search of the vehicle. We affirm the district court's ruling, "[i]t is improbable that Scarberry would have been successful on a Motion to Suppress on that basis."
V. Co-conspirator's Conviction
During the prosecutor's direct examination of Jerad Dreeszen, a state trooper, the following exchange took place:
Q. Okay. Do you know what the status of Mr. Fry's case is? A. I believe the trial has been completed. I believe he has been sentenced. I don't know what his sentencing was.
Scarberry claims he received ineffective assistance due to trial counsel's failure to object to this testimony. He points out that evidence of another's conviction or acquittal is generally not admissible to bolster a witness's credibility or as substantive evidence of a defendant's guilt. See State v. Scott, 619 N.W.2d 371, 374-75 (Iowa 2000).
At the postconviction hearing, defense counsel testified he purposely did not object to this testimony because his trial strategy was to implicate Fry. In a deposition, defense counsel stated:
I think the question at the end of the examination, as I recall, seemed rather innocuous, and the focus of my case in defending [Scarberry] was to discredit Mr. Fry. I think juries want to hold somebody responsible when something happens, and — I don't know whether or not this jury picked up on that, but if they did, the fact that Mr. Fry was held responsible I don't think was a bad thing for us.
Reasonable strategic decisions cannot serve as the basis for a claim of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (citing Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984)). A primary theory of defense is a tactical matter which we will not disturb if it appears to have been a conscientious, principled decision within the normal range of competency. Hall v. State, 360 N.W.2d 836, 839 (Iowa 1985). Furthermore, as the district court pointed out, the outcome of this case may very well have been the same regardless of the trial strategy.
VI. Opinion Evidence
Scarberry contends he received ineffective assistance due to trial counsel's failure to object to opinion evidence regarding his intent. During the criminal trial, agent Nelson was questioned:
Q. Based upon your education, training, and experience, as well as your knowledge of the items found in this case, do you have an opinion to a reasonable degree of certainty whether these items found were intended to be used in the manufacturing of methamphetamine? A. It was my opinion that, yes, these items would be used in the manufacturing because of the equipment that was used, along with the pills that were already taken out of the container, along with additional pills, the batteries that were loose and then also you have some in packaging. So it was my opinion that they were preparing to manufacture methamphetamine.
Criminalist Bremer testified:
Q. Okay. Based upon your education, training, and experience, as well as your review of the facts and the evidence in this case, do you have an opinion regarding the items found in this case and any significance-or, excuse me, any consistency of those items with the Nazi method of manufacturing methamphetamine? A. Yes, I do.
Q. And what is that opinion? A. It is my opinion that due to the fact that there were over 2,000 tablets containing precursor, and that there were 20 batteries which are at the same time an ingredient or used in the process and more than the average a person would have in their car at any one time, and based upon the other items on the list, the person or persons associated with the vehicle were most likely involved in the manufacture of methamphetamine using the lithium ammonia reduction method.
The State may not ask whether an expert has an opinion or believes the defendant is guilty of the crime charged. State v. Dinkins, 553 N.W.2d 339, 341 (Iowa Ct.App. 1996). An expert witness is permitted to express an opinion as to whether the facts of the case fit the profile of a person who sells drugs. Id. at 342. Scarberry asserts the witnesses in this case improperly gave an opinion concerning his guilt. The district court ruled that while trial counsel might have objected to the testimony of the experts, there was no assurance that the objection would have been sustained or that it would have changed the outcome of the case.
Defense counsel testified he did not object to this testimony because he did not want to appear to be an "obstructionist." Defense counsel wanted to rely on the experts to establish that the methamphetamine found on Scarberry was consistent with personal use, that it does not take two people to manufacture methamphetamine, and that the methamphetamine found on Scarberry was different than the methamphetamine found on Fry. As noted above, defense counsel was not arguing that the items in the vehicle were inconsistent with the manufacture of methamphetamine; he argued that it was Fry, not Scarberry, who had engaged in criminal conduct. We will not second guess reasonable trial strategy. Wissing, 528 N.W.2d at 564. We determine Scarberry has failed to show he received ineffective assistance of counsel on this issue.
VII. Right to Testify
Scarberry claims trial counsel failed to properly advise him of his constitutional right to testify, which denied him the opportunity to present an effective defense. Counsel has a duty to advise a defendant about the consequences of testifying so that an informed decision can be made. Ledezma, 626 N.W.2d at 136.
Defense counsel testified he discussed the pros and cons of testifying with Scarberry. He stated they had a lengthy discussion on the matter, and they worked on direct testimony in case Scarberry decided to testify. Defense counsel stated:
I had indicated to him that it would be important for him to testify to indicate all those things that we discussed earlier about where he had been, what he was doing, you know, what he knew about Randy Fry and, quite honestly, he didn't want to testify.
The district court concluded:
The ultimate decision not to testify was made by Scarberry. . . . Scarberry's testimony would have added little help in obtaining an acquittal. Scarberry did not establish prejudice from his failure to testify or to be advised to testify under these facts.
We concur in the district court's conclusion.
We affirm the district court decision denying Scarberry's request for postconviction relief.