Opinion
No. 4-830 / 03-1822
Filed January 13, 2005
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
Travis Patrick Berry appeals his conviction, following jury trial, for conspiracy to manufacture more than five grams of methamphetamine. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad P. Walz, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Travis Patrick Berry appeals his conviction, following jury trial, for conspiracy to manufacture more than five grams of methamphetamine. He contends his trial counsel was ineffective for failing to challenge the reliability of testimony from the State's expert witness on the potential methamphetamine yield from the precursors Berry possessed and in failing to move for a new trial based on the same ground. We affirm.
On November 26, 2002, Berry was caught by a Target store security manager stealing Sudafed, containing pseudoephedrine, and a package of lithium batteries from the store. The security manager explained to Berry he had seen him steal the items. Berry eventually admitted he had stolen the items, turned them over, and signed a form acknowledging he had stolen eight boxes of Sudafed and one package of lithium batteries.
Waterloo police officer Darcy Michael arrived at the Target store and arrested Berry and his companion Carrie Green. When Officer Michael conducted a pat down search of Berry she found a black pouch in his pants pocket. The pouch contained pieces of foil with drugs and drug residue on it. Later testing by the division of criminal investigation (DCI) showed there were .37 grams of methamphetamine present on the foil. Berry admitted to Officer Michael that he had taken the items from Target.
The police spoke to Green and obtained her consent to search the vehicle registered to her and Berry which was at Target. In the vehicle they discovered latex gloves, Sudafed tablets, lithium batteries, a notebook, and a receipt. The receipt showed the purchase of two packages of Sudafed from Osco. The notebook contained a drawing of what appeared to be an anhydrous ammonia plant, as well as references to Berry and Green and several numbers consistent with the prices of narcotics. Berry admitted being familiar with the notebook, but denied having seen the drawing of the plant. In addition, $299 in cash was found on Green.
On December 6, 2002, Berry was charged, by trial information, with: conspiracy to manufacture methamphetamine, later amended to conspiracy to manufacture more than five grams of methamphetamine, in violation of Iowa Code section 124.401(1)(b)(7) (2001) (Count I); possession of methamphetamine with intent to deliver, in violation of section 124.401(c) (Count II); possession of ephedrine and/or pseudoephedrine with the intent to use it to manufacture methamphetamine, in violation of sections 124.401(4)(a) and (b) (Count III); and possession of lithium with the intent to use it to manufacture methamphetamine, in violation of section 124.401(4)(f) (Count IV).
Jury trial commenced October 21, 2003. At trial Officer Krogh testified that he searched Green's vehicle and found the items listed above. He stated that after the search of the vehicle he spoke with Berry, who admitted taking the Sudafed and lithium batteries but stated he had taken them for a friend in exchange for money. He also told Krogh that the same friend had given him the black pouch to put the pills in. Berry would not name the friend. Berry stated he was aware that Sudafed and lithium could be used to make methamphetamine and that he had used methamphetamine in the past.
DCI Criminalist Nila Bremer testified at trial as an expert for the State. Two laboratory reports she had prepared were also admitted into evidence. Her testimony and reports addressed the potential methamphetamine yield in this case. One report was based on the pseudoephedrine found in the vehicle and the other report was based on the pseudoephedrine Berry had attempted to steal from Target. Bremer determined the estimated methamphetamine yield from the pseudoephedrine and ephedrine found in the vehicle would be between 3.2 grams and 10.9 grams, while the estimated methamphetamine yield from the pseudoephedrine Berry attempted to take from Target would have been between 2.5 grams and 8.6 grams, a total of between 5.7 grams and 19.5 grams of methamphetamine. According to Bremer's calculations the amount of finished product which contained methamphetamine would be a mixture of between approximately 12 grams and approximately 29 grams.
See Iowa Code § 124.401(1)(b)(7) (providing in part that it is a class "B" felony to conspire to manufacture " [m]ore than five grams of methamphetamine . . . or any compound, mixture, or preparation which contains any quantity or detectable amount of methamphetamine") (emphasis added).
The jury found Berry guilty as charged on Counts I, III, and IV, but found him guilty of the lesser included offense of simple possession on Count II. The court sentenced Berry to twenty-five years imprisonment with a mandatory one-third minimum on the conspiracy to manufacture charge (Count I), five years on both possession of a precursor charges (Counts III and IV), and one year on the possession charge (Count II). It ordered the sentences to run concurrently.
Berry appeals his conviction for conspiring to manufacture more than five grams of methamphetamine, contending his counsel was ineffective for failing to challenge the reliability of Bremer's expert testimony on the estimated methamphetamine yield and for failing to move for a new trial based on this unreliability. More specifically, he asserts that because Bremer's testimony was unreliable it should not have been admitted as expert testimony under Iowa Rule of Evidence 5.702.
By "testimony" Berry means and includes not only Bremer's oral testimony at trial but also her two written reports, which mirrored her trial testimony.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). However, we will consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We find the record to be adequate here and address Berry's claim of ineffective assistance.
Iowa Rule of Evidence 5.702 governs the admissibility of expert testimony. It provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
We are committed to a liberal view on the admissibility of expert testimony and afford great deference to the district court in the exercise of its discretion in this area. Mensink v. American Grain, 564 N.W.2d 376, 380 (Iowa 1997).
We believe the qualifications established for Bremer at trial are significant, impressive, and more than sufficient to qualify her as an expert in the field of potential yield analysis as it relates to the manufacture of methamphetamine. She has a master's degree in chemistry and has worked for the DCI crime laboratory for twenty-four years. During her time at the DCI she has worked in the areas of drug identification and analyzing samples from clandestine methamphetamine laboratories. Bremer is a member of the Midwestern Association of Forensic Scientists and the Clandestine Laboratory Investigating Chemists Association.
As part of her research she has personally manufactured methamphetamine. Specifically, she has done extensive research on the lithium ammonia reduction method of manufacturing methamphetamine, the most common method of manufacturing methamphetamine in Iowa. Bremer has manufactured methamphetamine with this method under various conditions, including some of the worst possible, in order to determine the practical methamphetamine yield under the various conditions. She testified she was a leader in the potential yield analysis area as it relates to the lithium ammonia reduction method of manufacturing methamphetamine and she is the only person who has published in that area.
Our supreme court has previously determined that Bremer "is clearly qualified by `knowledge, skill, experience, training and education,' and her testimony would assist a trier of fact to understand the evidence or determine a fact in issue" regarding potential yield evidence under rule 5.702. See State v. Casady, 597 N.W.2d 801, 806 (Iowa 1999). In Casady, the court further held that Bremer's testimony regarding potential yield not only relevant because it was necessary to prove the conspiracy was to manufacture methamphetamine, but was necessary for the jury to determine if the defendant conspired to manufacture more than five grams of methamphetamine, as is required under section 124.401(1)(b)(7). Id. "The only way for the jury to determine that, without merely speculating, was to hear from an expert." Id. Thus, under Casady, potential yield evidence is relevant to show how much methamphetamine can be made from a given amount of precursor. General scientific acceptance is not a prerequisite to admission of scientific evidence if the reliability of the evidence is otherwise shown. State v. Hall, 297 N.W.2d 80, 85 (Iowa 1980). If shown to be reliable, when such evidence is provided by a qualified expert such as Bremer evidence of how much methamphetamine can be made from a given amount of precursor is admissible to support a conviction for conspiracy to manufacture methamphetamine. Casady, 597 N.W.2d at 806-07.
We note that federal courts frequently make determinations as to the expected yield from precursor chemicals based on expert testimony on the subject. See Casady, 597 N.W.2d at 806, and cases cited therein; see also United States v. Eide, 297 F.3d 701, 705 (8th Cir. 2002) ("Estimating the amount a clandestine lab is capable of manufacturing may be determined from the quantity of the precursor chemicals seized together with expert testimony about their conversion to methamphetamine.").
Bremer explained the difference between the maximum theoretical yield of methamphetamine from a given quantity of pseudoephedrine and ephedrine, and the practical yield from the same quantity, the former being based strictly on a chemical equation and the latter being based on the research she had done. She described the lithium ammonia reduction method of manufacturing methamphetamine. Bremer explained that from her research she had learned that under the worst conditions this method resulted in a practical yield of fifteen percent to thirty percent of the maximum theoretical yield, and under the best conditions resulted in a practical yield of forty percent to fifty percent of the maximum theoretical yield. She then applied the chemical equation and the results of her research to the amount of pseudoephedrine and ephedrine found in the vehicle and the amount Berry had attempted to steal, resulting in 5.7 to 19.5 grams of methamphetamine and 12 to 29 grams of a mixture containing methamphetamine, as noted above.
We agree with the State that the evidence of potential or estimated yield presented through Bremer's testimony and reports is neither complex nor novel. Although Berry points out Bremer testified she could not state within a reasonable degree of scientific certainty what the low end of the practical methamphetamine yield that could be obtained was, her calculations and results were based on an unchallenged chemical equation together with the results of her personal research, conducted under a wide range of conditions and circumstances. "[A]n expert's lack of absolute certainty goes to the weight of [her] testimony, not to its admissibility." State v. Buller, 517 N.W.2d 711, 713 (Iowa 1994). We conclude the evidence in question has sufficient indicia of reliability to be admissible. Any weakness in that evidence would go to its weight rather than its admissibility.
We conclude that any challenge by Berry's trial counsel to the admissibility of Bremer's expert testimony and reports alleging they were not reliable would have been without merit. Counsel is not ineffective for failing to raise meritless issues or to make questionable or meritless objections. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999); State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998). Because Berry's challenge to the admissibility of Bremer's expert testimony lacks merit, his counsel had no duty to object to the evidence under rule 5.702 and was not ineffective for not doing so.
Berry also argues that although his counsel moved for a judgment of acquittal, he was ineffective for not moving for a new trial on the conspiracy to manufacture more than five grams of methamphetamine charge because the verdict was contrary to the weight of the evidence under Iowa Rule of Criminal Procedure 2.24(2)( b)(6). Berry reiterates his argument regarding the reliability of Bremer's expert testimony and argues that had trial counsel moved for a new trial on this basis the district court would have found the weight of the circumstantial evidence on this charge preponderated against a guilty verdict.
For the same reasons discussed above, we conclude Bremer provided reliable expert testimony regarding the potential yield evidence. Her credentials and her research in this area show that even under a "weight of the evidence" standard there is not a reasonable probability that counsel would have prevailed on a motion for new trial based on a claim the verdict was against the weight of the evidence. Accordingly, counsel did not breach any duty and was not ineffective for not filing such a motion, as it would have been without merit. See Greene, 592 N.W.2d at 29.
For the reasons set forth above, we conclude Berry was not denied his Sixth Amendment right to effective assistance of counsel. The expert testimony and reports regarding potential yield of methamphetamine were reliable and admissible. Trial counsel had no duty to raise the meritless challenges to this evidence urged here by Berry.