Opinion
No. 4-850 / 04-0396
Filed February 24, 2005
Appeal from the Iowa District Court for Black Hawk County, Lawrence H. Fautsch, Judge.
Defendant-appellant, Thomas Leonard Campbell, appeals following his conviction on four counts of burglary in the third degree as a habitual offender, and one count of criminal mischief in the fourth degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ.
Defendant-appellant, Thomas Leonard Campbell, appeals following his conviction on four counts of burglary in the third degree as a habitual offender in violation of Iowa Code sections 713.6A and 902.9(2) (2003) and one count of criminal mischief in the fourth degree in violation of section 716.6. Defendant contends (1) the case should have been dismissed by the district court because he was denied his right to a speedy trial, (2) the district court erred in excluding impeachment evidence, and (3) he was denied effective assistance of counsel when his attorney failed to file a timely motion to suppress certain evidence. We affirm.
I. BACKGROUND FACTS.
In May and June of 2003, four nighttime burglaries occurred at Waterloo businesses. On June 14, 2003 defendant had an argument with his girlfriend, Hope Voshel, at her apartment. Voshel left the apartment. That night, Voshel's neighbor and cousin, Tawana Parks, saw defendant drive up to Voshel's apartment and get out of the car. Parks then heard glass breaking and called the police, who found the windows of Voshel's apartment had been shattered. Voshel went to the police station and was giving a statement when defendant called her on her cell phone and allegedly admitted to breaking the windows and threatened her. Voshel later told officers defendant had broken into various places in Waterloo.
Defendant was arrested and at the time of his arrest officers seized a coat lying on nearby chair. The coat contained a mask and a pair of gloves. With Voshel's assistance, officers recovered some of the items taken in the burglaries. Officers also searched a room in a home where defendant had previously stayed and seized a number items that were stolen in burglaries.
II. RIGHT TO SPEEDY TRIAL.
A. Scope of Review.
Defendant argues the district court erred in denying his motion to dismiss for lack of a speedy trial, pursuant to Iowa Rule of Criminal Procedure 2.33(2)( b). We review a trial court's ruling on a motion to dismiss based on speedy trial grounds for an abuse of discretion. State v. Nelson, 600 N.W.2d 598, 601 (Iowa 1999) (citing State v. Todd, 468 N.W.2d 462, 470 (Iowa 1991)). However, where speedy trial grounds are at issue, the discretion of the district court is narrowed. Id.; see also Todd, 468 N.W.2d at 470 ("We recognize the trial court's discretion to refuse to dismiss within the limits of the exceptions to the speedy trial mandate.").
B. Analysis.
The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution. It is also guaranteed by Iowa Rule of Criminal Procedure 2.33(2)( b).
Rule 2.33(2)( b) states that a defendant "mustbe 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 ninety-day period by rule is more stringent than constitutional requirements. State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001). The ninety-day period begins to run upon filing of the trial information. State v. Clark, 351 N.W.2d 532, 534 (Iowa 1984). When a trial is not commenced within the ninety-day period, the district court must dismiss the case unless (1) the defendant has waived his right to a speedy trial, (2) the delay is attributable to the defendant, or (3) "good cause" exists for the delay. Miller, 637 N.W.2d at 204; State v. Bond, 340 N.W.2d 276, 279 (Iowa 1983); State v. Hamilton, 309 N.W.2d 471, 475 (Iowa 1981). "The burden of proving an exception to the rule's deadline rests squarely with the State." Miller, 637 N.W.2d at 204 (citing State v. Olson, 528 N.W.2d 651, 653 (Iowa Ct.App. 1995)).
Defendant was charged by trial information on June 27, 2003 with four counts of burglary in the third degree and being a habitual offender, in violation of Iowa Code sections 713.6A and 902.9(2), and criminal mischief in the fourth degree in violation of section 716.6. On July 10, 2003, defendant appeared for arraignment and entered "not guilty" pleas to all charges.
Trial was originally scheduled for September 2, 2003. At the final pretrial conference on August 28, 2003 defendant requested a continuance to conduct further discovery, which was granted, and trial date was reset for September 9, 2003. The district court attributed the delay to defendant. On September 5, 2003, at the final pretrial conference before the September 9 trial date, defendant asked that the case be set for further proceedings "A.S.A.P." The district court responded by setting the case for further proceedings on September 12, 2003. Subsequently on September 5, 2003, defendant told the district court that he "desires to stand on his right to trial." In response the district court withdrew the order setting the case for further proceedings and set the trial for September 16, 2003.
Then on September 8, 2003, the State filed a notice of additional minutes of testimony. On September 10, 2003, the defendant sent a letter to the district court seeking to have his court-appointed attorney removed because he lacked confidence in his attorney and had complaints about how his attorney handled the case. On September 12, 2003 defendant filed a pro se motion to suppress evidence. Then on September 15, 2003, the day before trial, defendant's court-appointed counsel, who was from the public defender's office, filed a request for a hearing, alleging that he had a conflict of interest because the State's notice of additional minutes included an individual who he currently represented and that other witnesses listed had recently been represented by the other attorneys from the public defender's office.
Counsel referred to it as a request for a Watson hearing, apparently because of the court's holding in State v. Watson, 620 N.W.2d 233 (Iowa 2000).
After a hearing the district court found that defendant wished to replace his attorney and that his attorney had a conflict of interest. Defendant's attorney was allowed to withdraw. Defendant was advised that the withdrawal would require a continuance. Defendant objected and asserted he would represent himself at trial the next day. The district court informed defendant that standby counsel would then be necessary and that standby counsel would also need time to prepare; thus, a continuance would still be necessary. Defendant then withdrew his request to represent himself and asked that a new attorney be appointed to represent him. The district court appointed a new attorney and the trial was continued until October 7, 2003 with the delay charged to defendant for speedy trial purposes.
On September 25, 2003 defendant filed a motion to dismiss, asserting that his right to a speedy trial had been violated. On September 29, 2003 defendant's new attorney filed a motion to withdraw, which was granted on the basis that there were irreconcilable differences between defendant and the attorney. Another attorney was appointed on October 3, 2003. The trial was continued to November 4, 2003 to allow defendant's new attorney to prepare, with the delay again charged to defendant for speedy trial purposes.
On October 22, 2003 defendant filed a pro se motion in limine, alleging that various witnesses were not competent to testify. Also on October 22, 2003, defendant filed a motion to dismiss his new attorney, alleging the attorney was failing "to do his job." On October 27, 2003 defendant filed another motion to dismiss alleging violation of his speedy trial rights. On October 31, 2003, defendant's attorney also filed a motion to dismiss alleging violation of defendant's speedy trial rights.
On November 5, 2003 trial commenced. At that time the district court denied defendant's motions to dismiss, finding that the delays in getting to trial were properly charged to defendant. Trial proceeded and the jury found defendant guilty on all charges on November 7, 2003.
The trial information was filed on June 27, 2003; thus, the ninety-day speedy trial period expired on September 25, 2003. Trial was originally set for September 2, then for September 9, then for September 16, then for October 7, then for November 4, and trial actually began on November 5 (the last delay due to defense counsel's illness). Therefore, defendant was not brought to trial within ninety days.
The district court attributed the continuance from the September 16, 2003 date to defendant. The defendant claims the district court was in error by attributing the delay to him and also argues there was not good cause for the delay. In particular, defendant argues the delay is properly attributable to the State because the conflict of interest causing defendant's attorney to withdraw was caused by the filing of the State's notice of additional minutes of testimony. Defendant points out that the State's notice of additional minutes of testimony violated Iowa Rule of Criminal Procedure 2.19(2), which requires the prosecuting attorney to give notice of additional witnesses within ten days of commencement of trial and, here, only eight days notice was given. Furthermore, defendant argues that he objected to the continuance even though it meant he would proceed without counsel, but the district court thwarted this option by asserting that a continuance would still be required if the defendant were to proceed pro se because standby counsel would need to be appointed and would need to time to prepare for the case.
The State argues the continuance issued from the September 16 trial date and each subsequent continuance is attributable to defendant. First, the State points out that on September 10 defendant filed a pro se motion to dismiss his counsel. The district court did note the motion by defendant in its order continuing the trial, although the order also relied on the conflict of interest that resulted from the State's notice of additional minutes of testimony. The State argues it was not its filing of a notice of additional minutes of testimony that alone caused the trial to be extended beyond the ninety-day period; defendant's motion played a part. The State further argues that much of the delay in getting to trial is attributable to defendant's actions even before the State filed a notice of additional minutes of testimony.
We looked the record and determine that delay attributable to defendant prevented the defendant from going to trial within ninety days of the trial information. "Delay attributable to defendant may constitute statutory good cause preventing the State from carrying out its obligation to bring him to trial." State v. Keys, 535 N.W.2d 783, 787 (Iowa 1995) (quoting State v. Donnell, 239 N.W.2d 575, 579 (Iowa 1976)). "A defendant may not actively or passively participate in the events which delay his or her trial and then later take advantage of that delay to terminate the prosecution." State v. Orte, 541 N.W.2d 895, 898 (Iowa 1995) (citing State v. Ruiz, 496 N.W.2d 789, 792 (Iowa Ct. App. 1992)); see also State v. Finn, 489 N.W.2d 692, 694 (Iowa 1991).
Defendant's August 28 request for a continuance from the original trial date of September 2 caused seven days of delay, as the trial was rescheduled to September 9. This delay must be attributed to defendant. Defendant's September 5 request for further proceedings caused seven more days of delay, as trial had to be rescheduled to September 16, even though defendant later withdrew the request for further proceedings. This delay must also be attributed to defendant. These two delays, which are attributable to defendant, caused fourteen days of delay. Defendant may not cause delay and later take advantage of that delay. Thus, we extend defendant's original speedy trial deadline of September 25 by fourteen days; the result being defendant's speedy trial deadline was actually October 9.
Trial would have occurred on October 7, which was within the recalculated speedy trial period. However, defendant and his attorney had "irreconcilable differences," which resulted in defendant's attorney seeking to withdraw and defendant agreeing that the attorney should withdraw. Thus, the delay from the October 7 trial date to November 4 must also be attributed to defendant. We further find that the one day delay from November 4 to November 5 due to defense counsel's illness was for good cause. Therefore, we conclude that with certain delays properly attributed to defendant and good cause, defendant's trial occurred within the speedy trial period.
We need not and do not reach whether the delay caused by defendant's attorney withdrawing on September 15 due to a conflict of interest created by the State filing its notice of additional minutes on September 8 should have been attributed to the defendant or to the State. We affirm the district court's denial of defendant's motion to dismiss.
III. Cross-Examination of Hope Voshel.
A. Scope of Review.
The scope of cross-examination rests in the broad discretion of the district court. Strain v. Heinsen, 434 N.W.2d 640, 641 (Iowa 1989). We will disturb the district court's ruling only if the court obviously abused its discretion. State v. Smith, 522 N.W.2d 591, 593 (Iowa 1994). An abuse of discretion will be found when the court exercises its discretion on grounds clearly untenable or to an extent clearly unreasonable. Id. B. Analysis.
Defendant claims his cross-examination of Hope Voshel, his former girlfriend, was inappropriately limited by the district court. Defendant sought to establish, through cross-examination of Voshel, that prior to becoming a suspect in the burglaries he told Voshel that her nephews were responsible for the burglaries. The district court ruled defense counsel could cross-examine Voshel as to burglaries committed by her nephew as long as some substantive facts supported her belief that her nephews committed them. Relying on Iowa Rule of Evidence 5.404( b) the district court ruled that testimony as to burglaries by Voshel's nephew or others would not be allowed if the only reason Voshel had to believe her nephews committed the burglaries was the allegation that defendant told her that they had. Apparently, Voshel could only implicate her nephews based on the statements made to her by defendant because defense counsel did not further question Voshel about her nephews.
Defendant asserts the district court abused its discretion in limiting cross-examination in this manner. Defendant argues the limitation on cross-examination prevented defendant from presenting evidence relevant to his defense. Further, defendant argues the cross-examination of Voshel regarding statements made by defendant were relevant to undermine the credibility of Voshel and show bias, in that it might demonstrate Voshel was simply covering for her nephews by implicating defendant in the burglaries.
We conclude that the district court appropriately limited cross-examination pursuant to rule 5.404( b) and the relevant case law. Rule 5.404( b) does not permit defendants to bootstrap their out-of-court accusations against third parties into evidence in the manner in which defendant sought to do so. "Evidence offered by a defendant tending to incriminate another must be confined to substantive facts and create more than a mere suspicion that such other person committed the offense." State v. Wilson, 406 N.W.2d 442, 447 (Iowa 1987) (citing State v. Harrington, 349 N.W.2d 758, 761 (Iowa 1984)). The district court did not abuse its discretion in limiting cross-examination in this manner and we affirm on this issue.
IV. Ineffective Assistance Due to Failure to File Motion to Suppress Certain Evidence.
A. Scope of Review.
Claims of ineffective assistance of counsel are reviewed de novo. State v. Myers, 653 N.W.2d 574, 577 (Iowa 2002).
B. Analysis.
To prove an ineffective assistance of counsel claim, defendant must show by a preponderance of the evidence that (1) trial counsel failed to perform an essential duty and (2) prejudice resulted from counsel's error. Myers, 653 N.W.2d at 577 (Iowa 2002). Failure to demonstrate either element is fatal to a claim of ineffective assistance. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). We begin our discussion with the presumption that counsel acted competently. Id.
Defendant claims defense counsel was ineffective in failing to file a motion to suppress evidence that was seized after a warrantless search of a room where defendant sometimes stayed in the house of Tangala Saffold. An attorney is not ineffective when the issue the attorney failed to raise had no merit. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). Therefore, our first step is to consider whether there is any merit to the claim that defense counsel should have filed a motion to suppress. If there is merit to this issue, we must then proceed to determine whether counsel's failure fell outside the normal range of competency expected of criminal defense attorneys and whether defendant was prejudiced by the failure. Id.
Defendant claims the search of the room at the Saffold house violated his rights under the Fourth Amendment to the United States Constitution and Article 1, section 8 of the Iowa Constitution; that is, the evidence obtained from the room was obtained by an unreasonable search and seizure. We use a two-step approach in analyzing the constitutionality of a search under the Fourth Amendment. First, the person challenging the search must show that he or she had a legitimate expectation of privacy in the area searched. State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998). If we conclude that a person has a legitimate expectation of privacy with respect to a certain area, we must then decide whether the search was unreasonable; in other words, we consider whether the State unreasonably invaded that protected interest. Id.
The determination of whether a person has a legitimate expectation of privacy in a certain area is made on a case-by-case basis, considering the unique facts of each particular situation. Id. The test of legitimacy is not whether the individual has chosen to conceal some private activity but "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Id. (quoting State v. Flynn, 360 N.W.2d 762, 765 (Iowa 1985)). Additionally, the expectation of privacy must be one considered reasonable by society. Id.
Defendant claims he had a legitimate expectation of privacy in the room searched. He argues that because he had a designated room in the house where he sometimes slept, he had a privacy expectation in the same manner as an overnight guest has a recognizable expectation of privacy. See State v. Lovig, 675 N.W.2d 557, 564 (Iowa 2004).
Next, defendant claims the search was unreasonable. "When a defendant contests a warrantless search and seizure, the State has the burden to show that officers acted reasonably under one of the recognized exceptions to the warrant requirement articulated in Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967)." State v. Predka, 555 N.W.2d 202, 206 (Iowa 1996). The exceptions include (1) consent to the search, (2) probable cause coupled with exigent circumstances, and (3) plain view. The State must prove one of these exceptions by a preponderance of the evidence. Id.
Defendant contends the homeowner, Saffold, lacked authority to grant consent to search the room in which defendant slept. However, we look to our analysis in State v. Grant, where we stated:
That expectation of privacy, however, is applicable only to the unwarranted actions of government actors. It does not ensure the guest's "possessions will not be disturbed by . . . [the] host and those [the] host allows inside." Minnesota v. Olson, 495 U.S. 91, 99, 110 S. Ct. 1684, 1689, 109 L. Ed. 2d 85, 94 (1990). Thus, an overnight guest's legitimate expectation of privacy does not vitiate the homeowner's ability to consent to a search of his home. See United States v. Oates, 173 F.3d 651, 656 (8th Cir. 1999); United States v. Wright, 971 F.2d 176, 180 (8th Cir. 1992) ("[the homeowner] possessed authority to consent to a search of his own home, including the guest bedroom where [defendant] spent the evening."); United States v. Salinas-Cano, 959 F.2d 861, 863 (10th Cir. 1992); United States v. Isom, 588 F.2d 858, 860-61 (2d Cir. 1978) ("As the lawful tenant, [the homeowner] clearly had authority to consent to a search of her premises, even though a `guest' was also present."). A consent search of a home is only proper if the police reasonably believed the person granting the police permission to search had the authority to do so. See Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S. Ct. 2793, 2800, 111 L. Ed. 2d 148, 159-60 (1990).
State v. Grant, 614 N.W.2d 848, 853 (Iowa Ct.App. 2000) (emphasis added).
We do not determine whether defendant had a legitimate expectation of privacy in the room. Instead, we rely on our reasoning in Grant and conclude that regardless of whether defendant had a legitimate expectation of privacy, the homeowner's consent to search the room was valid.
We conclude there is no merit to the claim that the evidence seized in the search of the room should have been suppressed; thus, defendant did not receive ineffective assistance of counsel.