Opinion
No. 1-743 / 00-0407.
Filed February 20, 2002.
Appeal from the Iowa District Court for Black Hawk County, STEPHEN C. CLARKE, Judge.
Defendant appeals from the judgment and sentence entered upon jury verdicts finding him guilty of manufacturing more than five grams of methamphetamine as a second offender in violation of Iowa Code sections 124.401(1)(b)(7) and 124.411 (1999) and receipt for unlawful purposes of precursor drugs in violation of section 124B.9. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Kevin Baxter appeals from the judgment and sentence entered upon jury verdicts finding him guilty of manufacturing more than five grams of methamphetamine as a second offender in violation of Iowa Code sections 124.401(b)(7) and 124.411 (1999) and receipt for unlawful purposes of precursor drugs in violation of section 124B.9. On appeal Baxter contends the trial court erred in several respects, including: (1) rejecting his request that the jury instruction on the definition of "manufacture" be expanded to include an exception for manufacturing a controlled substance for personal use; (2) overruling his motion to suppress; and (3) failing to admit his proffered exculpatory evidence as an exception to the hearsay rule. Additionally, Baxter claims his trial counsel was ineffective in failing to properly investigate his case. Finding no merit in any of his claims, we affirm.
I. Background Facts and Proceedings .
Acting on a tip, Deputy Sheriff Dan Reese drove by the Frisch residence at 5311 Osage Road in Waterloo on May 13, 1999, and smelled ether. Based on his knowledge and experience as a member of a drug task force, he associated the smell with the production of methamphetamine. Deputy Reese observed two pickups and a car at the residence. The door to a barn located on the premises was open. He drove by the residence a second time to confirm the suspicious odor.
At trial, Nathan Frisch confirmed that Kevin Baxter, Jimmy Anderson, and Frisch were at Frisch's parent's home making methamphetamine on May 13, when Baxter observed a police car go by. Fearing their unlawful activities had been detected, the three men gathered their materials into grocery sacks and a duffel bag, placed their methamphetamine operation in the back of Frisch's pickup and left the residence. After dropping off Anderson, Baxter and Frisch transported their operation to the defendant's house at 503 Third Street in Washburn.
As a result of his observations, deputy Reese notified detectives. Reese and two other law enforcement officers were sent to the Frisch residence, where they met Nathan's mother, Dawn Frisch. Dawn told the officers her son and his friends were no longer there. She informed them her son still had a room at her house, but had recently moved out. Frisch's parents told the officers that Nathan was living with Kevin Baxter at 503 Third Street in Washburn. Dawn Frisch consented to a search of the Osage Road residence. During the ensuing search, officers discovered evidence of methamphetamine production and use in a barn and in Nathan's room.
Officers then traveled to Washburn in search of Nathan Frisch. They observed a black mid-sized GMC pickup truck belonging to Frisch in the driveway of the address provided by Frisch's mother. When officers knocked on the door, Frisch answered. The officers searched Frisch and discovered what was believed to be methamphetamine inside an open pack of cigarettes.
After learning that Baxter was also in the house, Deputy Reese returned to the front door and called him outside. Once Baxter appeared at the front door, Deputy Reese asked him to come out and discuss the investigation. Baxter exited the house and followed Deputy Reese to the patrol car where he consented to a pat down search for weapons. Just prior to being searched, however, Baxter reached into his pants pocket and attempted to conceal an object he pulled out. Noticing the suspicious activity, Deputy Reese opened Baxter's hand and discovered a five-dollar bill wrapped around a plastic baggie containing a razor blade. The officer's initial belief that the baggie contained methamphetamine residue was not supported by later lab analysis.
A search of the Washburn address and Frisch's truck revealed extensive evidence of a methamphetamine production operation. The evidence observed and seized was consistent with the lithium-ammonia reduction method of methamphetamine production and suggested the intent to manufacture more than five grams. Subsequent investigation the same day led officers to a third location on Wallgate Avenue in Waterloo. The Wallgate address was searched by consent of the defendant's uncle. The search revealed evidence of equipment, material, and empty packaging of material indicative of methamphetamine manufacture.
Baxter was charged with conspiracy to manufacture more than five grams of methamphetamine as a second offender, manufacturing more than five grams of methamphetamine as a second offender, possession of ephedrine and/or pseudoephedrine, and receipt for unlawful purposes of precursor drugs. Prior to trial, he filed a motion to suppress claiming a search warrant issued for the search of a residence, outbuildings, and a vehicle at 503 Third Street in Washburn was invalid because it was issued in reliance on intentionally or recklessly false information. The district court denied Baxter's motion to suppress.
Nathan Frisch cooperated with authorities and entered into a plea agreement. He testified he made methamphetamine with Baxter and others on three occasions within a couple of days. According to Frisch, the manufacturing took place at three locations: first, at Baxter's address in Washburn; second, at a residence on Wallgate Avenue; and the last time at Frisch's parent's home on Osage Road. According to Frisch, he and his companions intended to make or did make more than five grams of methamphetamine on each occasion when manufacturing occurred. Extensive physical evidence corroborated Frisch's testimony. Frisch testified that when he made methamphetamine with the defendant, they would split it up evenly among the persons involved and then use or sell it.
Following trial, the jury found Baxter guilty on all charges. The district court sentenced Baxter to a term not to exceed thirty years for manufacturing methamphetamine and a term not to exceed ten years for receipt for unlawful purposes of precursor drugs, to be served concurrently. The conspiracy charge merged with the manufacturing charge, and the possession charge merged with the receipt of precursors charge. Baxter appealed.
II. Jury Instruction .
Baxter first contends the district court erred in refusing to instruct the jury on the personal use exception to the charge of manufacturing methamphetamine. At trial, the court defined "manufacture" in Instruction 20 as follows:
"Manufacture" means the production, preparation, growing, or processing of a controlled substance, either directly or by extraction from natural substances, or independently by means of chemical process, or both. It includes any packaging or repackaging of the substance, or labeling or relabeling of its container.
Baxter requested the following language be added to the definition:
Except that this term does not include the preparation or compounding of a controlled substance by an individual for the individual's own use.
The court declined to amend Instruction 20, finding the proposed exception was not supported by the facts of the case. We agree.
The standard of review for matters related to jury instruction is for correction of errors at law. State v. Mesch, 574 N.W.2d 10, 12 (Iowa 1997). The district court must instruct the jury on the elements of the crime charged against the defendant and must instruct the jury on all material issues raised by the evidence. State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996); State v. Goff, 342 N.W.2d 830, 837 (Iowa 1983). However, where there is scant evidence in the record to support an issue or defense, the district court is not required to instruct the jury on the issue. The defendant is entitled to an instruction only when substantial evidence from some source appears in the record to support an issue. State v. Predka, 555 N.W.2d 202, 214 (Iowa 1996).
We find the record supports the trial court's refusal to instruct the jury regarding the personal use exception to the then-existing version of Iowa Code section 124.101(16). Baxter did not testify personally at trial. In support of his argument for a personal use instruction, the defendant points to the testimony of a former girlfriend that she suspected Baxter was using methamphetamine in May of 1999. He also relies on Nathan Frisch's testimony that Frisch did not know what Baxter did with the methamphetamine they made on May 13. The evidence reveals the defendant, in association with a group of other men, engaged in a complex multi-step process to produce methamphetamine, and that the yields of this production were divided among them. Methamphetamine was manufactured on at least three occasions. The jury heard evidence that some of the manufactured methamphetamine was sold. In addition, a scale consistent with the sale of methamphetamine was recovered from the defendant's basement.
We conclude there is not substantial evidence in the record to support Baxter's proposed instruction. We further find that the personal use exception found in the former version of section 124.101(16) does not apply to methods of manufacturing other than "preparation" or "compounding" and therefore, has no application to this case. Accordingly, we conclude the district court acted properly in declining to instruct the jury regarding the exception cited by the defendant.
III. Motion to Suppress .
In his motion to suppress, the defendant alleged that information supplied to the judge in the search warrant application was false and that he was illegally searched. At the suppression hearing Baxter argued that statements in the search warrant application regarding where Nathan Frisch lived and the amount of methamphetamine found were false. He claims that absent this false or misleading information, there was an insufficient nexus between the Osage address and Baxter's Washburn home to support the issuance of the search warrant. The district court concluded otherwise and upheld the validity of the search warrant. The court further found that even without the challenged information, the application demonstrated probable cause.
Our review of the conclusion a district court reaches on a motion to suppress concerning Fourth Amendment issues is de novo. State v. Gillespie, 619 N.W.2d 345, 350 (Iowa 2000). The district court's factual findings on such a motion are binding if those findings are supported by substantial evidence. Id. If a defendant establishes that a search warrant application contains false information or omits crucial information, the district court must make a new determination of probable cause by viewing the application as if it were properly corrected. See State v. Groff, 323 N.W.2d 204, 209 (Iowa 1982).
We conclude the record does not support defendant's claim that information indicating Nathan Frisch resided at the house to be searched in Washburn was false. The suppression hearing record reveals substantial evidence supporting a connection between Nathan Frisch and the Washburn residence. The claim that Frisch lived at the 5311 Osage address is undermined by the fact that his parents, who owned the home, told investigating officers that Nathan had recently moved out. They also informed officers that their son had moved in with Kevin Baxter and supplied authorities with a Washburn address. Officers located a vehicle belonging to Frisch at the Washburn address. Deputy Reese knocked on the door at 503 Third Street in Washburn and Nathan Frisch answered the door.
The defendant also claimed the information regarding his contact with police was misleading because the addendum to the search warrant failed to mention that officers ordered him out of the house prior to performing the personal search. The defendant claims the evidence gained as a result of his subsequent personal search should have been suppressed. Relying on its assessment of the credibility of both Deputy Reese and the defendant, the trial court concluded the suspected methamphetamine and contraband taken from the defendant were discovered as a result of a legal consent search. We agree.
Assuming arguendo that Deputy Reese was attempting to compel Baxter to come out of the house in Washburn, the record does not indicate Baxter was seized after he came to the door. After the defendant appeared at the door, the deputy asked him to come out and discuss the investigation. Baxter was not restrained or physically removed from the house. The deputy informed Baxter why he was there, and told him Frisch had been arrested for methamphetamine-related charges. According to his own testimony, the defendant followed the deputy down the sidewalk to a patrol car where he consented to a pat down search for weapons. Baxter put his hands in his pocket and then took them out. The deputy observed something in his hand and recovered a five-dollar bill wrapped around a plastic bag which contained a razor blade and a residue the deputy believed was methamphetamine. We conclude a valid consent search of the defendant was conducted, and no Fourth Amendment violation occurred. Furthermore, even without the challenged information, the search warrant
application contained adequate facts to establish probable cause for the search of the Washburn address. We find the court properly denied the defendant's motion to suppress.
IV. Evidentiary Issue .
Baxter claims the trial court erred in refusing to admit exculpatory hearsay contained in a transcript of a police interview with an unavailable witness. At trial, the defendant attempted to call Nathan Frisch as a witness and question him about a recorded interview between police and Tim Pyle. In the interview, Pyle described the involvement of Frisch and others in the methamphetamine manufacturing process. He denied that Baxter was involved in methamphetamine production. Pyle did not testify at trial and the parties agree that if called, he would have asserted his Fifth Amendment rights. The defendant contends the trial court erred in refusing to admit Pyle's statement under Iowa Rule of Evidence 804(b), which makes an exception to the hearsay rule for certain statements made by unavailable witnesses.
The standard of review for evidentiary matters is for correction of errors of law. The trial court's decision will not be overturned unless there has been an abuse of discretion. State v. Veal, 564 N.W.2d 797, 807 (Iowa 1997); State v. Martinez, 621 N.W.2d 689, 692 (Iowa Ct. App. 2000).
We conclude the trial court properly excluded Pyle's statement to police. The record suggests the real purpose of the defendant's proffer of Pyle's statement was to make the jury aware of a double hearsay statement indicating the defendant was not involved in the manufacture of methamphetamine. The defendant's offer of proof in support of admission of the hearsay statement falls far short of demonstrating the reliability of Pyle's statement. Therefore, we find the district court did not abuse its discretion in excluding the defendant's proffered evidence.
V. Ineffective Assistance of Counsel .
The defendant claims his trial counsel was ineffective in failing to fully investigate the address listed on Nathan Frisch's vehicle registration. Armed with such information, the defendant contends trial counsel may have convinced the court of the invalidity of the search warrant issued for Baxter's Washburn residence.
We review claims of ineffective assistance of counsel de novo. State v. Allison, 567 N.W.2d 371, 373 (Iowa 1998). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "However, they may be resolved on direct appeal when the record adequately addresses the issues." State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct. App. 1998).
To succeed with a claim of ineffective assistance of counsel, a claimant must prove two elements. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). First, he must show that counsel failed to perform an essential duty. Id. Second, he must prove he was prejudiced by counsel's error. Id. We can affirm on appeal if either element is lacking. Id.
One of defense counsel's duties to a client is the duty to investigate. Schrier v. State, 347 N.W.2d 657, 662 (Iowa 1984). Baxter contends the affidavit attached to the search warrant application contained misleading information regarding the address where Frisch's vehicle was registered. The affidavit states: "Deputy Reese located a black 1998 GMC truck, Iowa license 200 GFO, registered to Nathan Frisch at 503 3rd Street, Washburn, Iowa." Baxter contends his trial counsel should have investigated and made clear that Frisch's vehicle was merely located at the Wahburn address, and officially registered to the Osage address.
Our review of the record suggests a sufficient nexus existed among the officer's investigation of methamphetamine production, the defendant, Nathan Frisch, and the Washburn residence to support the issuance of a valid search warrant. This nexus remains strong even in the absence of the allegedly misleading vehicle registration information. Moreover, there is no indication that the judge who issued the search warrant was under the impression the truck was registered to the Washburn address. The pertinent information in the affidavit was that the truck was registered to Nathan Frisch, who officers suspected of methamphetamine production, and was observed at the Washburn address prior to the search. The address the vehicle was registered to had marginal relevance in light of the other evidence connecting the defendant and Nathan Frisch to methamphetamine production. Therefore, we conclude, Baxter's trial counsel breached no essential duty.
AFFIRMED.