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discussing how consideration, in ruling on defendant's motion for new trial, of juror's testimony was permissible as it related only to the "`question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.'"
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No. 4-301 / 03-0733.
June 9, 2004.
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Defendant appeals his conviction and sentence for violation of Iowa Code section 124.401(1)(b)(7). AFFIRMED IN PART; VACATED IN PART.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Donald Dacken appeals his convictions of conspiracy to manufacture a controlled substance and manufacturing a controlled substance, in violation of Iowa Code section 124.401(1)(b)(7) (2001). We affirm in part and vacate in part.
Background Facts.
On May 11, 2002, Sergeant Joseph Simon of the Polk County Sheriff's Department observed a Jeep Cherokee, registered to Donald Dacken, with the wrong license plates leave the Bavarian Inn parking lot in Des Moines. Sergeant Simon followed the vehicle to a nearby QuikTrip. When the driver, Jammi Shepley, got out of the vehicle to enter the store, Sergeant Simon summoned her to speak with him. Shepley returned to her vehicle as instructed but then drove away at a high rate of speed. Shepley returned to the Bavarian Inn with Sergeant Simon in pursuit. In the parking lot, Shepley jumped from the moving vehicle and ran into the Inn. A foot-chase ensued. While running up a flight of stairs, Shepley yelled "Donny, the cops are after me. Dump the dope." As Shepley ran down the hallway, the door to room 240 opened, a man said "oh, shit," and then shut the door quickly. Sergeant Simon continued to chase Shepley through the corridors of the Inn and as he again rounded the corner on the second floor, the door to room 240 slammed shut.
After gaining entrance to the room, Sergeant Simon and Deputy Dan Wignall found Dacken lying on the bed pretending to sleep and Shepley trying to hide on the floor by the bed. Sergeant Simon observed a couple of syringes on the nightstands, one filled with a substance. There were also pieces of aluminum foil with a burnt substance on it, a police scanner, a test tube, and an empty package of lithium batteries. A later search of the Jeep Cherokee also produced evidence of drugs and manufacturing.
After a jury trial, Dacken was found guilty of conspiracy to manufacture a controlled substance and manufacturing a controlled substance. Dacken was sentenced to prison for a period not to exceed twenty-five years on each count, the terms to be served concurrently. Dacken appeals.
Scope of Review.
We review sentencing decisions for corrections of errors at law. Iowa R. App. P. 6.4. Any sentence not authorized by statute is void. State v. Kapell, 510 N.W.2d 878, 879 (Iowa 1994). We look to see whether a district court's denial of a new trial motion was an abuse of its discretion. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). Claims of ineffective assistance of counsel are constitutional challenges, and we conduct a de novo review of the district court ruling, assessing its decision in light of the totality of the circumstances. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Merger.
Both parties agree that the district court erred in adjudging Dacken guilty of both conspiracy to manufacture and manufacturing a controlled substance. The Iowa Supreme Court has held that conspiracy is one of the alternative means of violating Iowa Code section 124.401(1). State v. Maghee, 573 N.W.2d 1, 7 (Iowa 1997). Under the principles of double jeopardy, a defendant can only be sentenced for a single offense in violation of section 124.401(1); thus, Dacken could only be sentenced for a single offense for violating section 124.401(1). Id. The district court committed error when it sentenced Dacken on the conspiracy count. See id. We vacate the sentence on the conspiracy count insofar as the sentences for two individual offenses (manufacturing and conspiracy) were imposed. See Iowa R. Crim. P. 2.24(5)( a) (providing that an illegal sentence may be corrected at any time); State v. Taft, 506 N.W.2d 757, 763 (Iowa 1993) (holding sentence violating double jeopardy principles as illegal). We can sever and vacate the conspiracy sentence without disturbing the balance of the sentence. We therefore let the balance of the sentence stand See State v. Hutt, 548 N.W.2d 897, 899 (Iowa Ct.App. 1996) (holding that where improper sentence imposed is severable, severing court may strike invalid part of sentence without disturbing the rest).
Motion for New Trial.
Dacken argues that the district court abused its discretion in denying his motion for a new trial based on jury misconduct. The State argues that the district court properly overruled Dacken's motion as there was no juror misconduct.
After the trial was finished and the jury verdict read, the presiding judge discussed the jury experience with the jurors. During this discussion, Juror C.S. expressed some concerns about repercussions against her if Dacken or his associates found out where she resided. It was revealed that C.S. lived within a block of the Bavarian Inn. The presiding judge was not a part of the voir dire in this case and was unsure if this fact was made known at that time. While he did not think that C.S.'s concerns affected her objectivity in evaluating the evidence, the judge informed the attorneys of the conversation. At the hearing on the motion for new trial, C.S. testified she did not realize the incident and arrest occurred at the Bavarian Inn located a half-block from her home until the opening statements at trial. C.S. also testified that during the trial, she needed a ride to the courthouse and one of the other jurors gave her a ride. During the drive, the two jurors discussed where C.S. lived in proximity to the crime scene. C.S. further testified that during the deliberations the jurors were trying to figure out the layout of the area around the Bavarian Inn. C.S. approximated the distance between the Inn and the QuikTrip. Nonetheless, C.S. stated that she judged the case on what she heard in the courtroom and not on any other information and that she did not decide Dacken was guilty until all the evidence was received.
At the hearing on the motion for new trial, the judge stated, "It is clear to me from listening to this juror this morning that there is not juror misconduct, and I do believe that out of an abundance of caution, it was appropriate for me to inform you as to my recollection of what this juror might have said."
Iowa Rule of Criminal Procedure 2.24(2)( b)(2) provides that the district court may grant a new trial "[w]hen the jury has received any evidence, paper or document out of court not authorized by the court." In order to receive a new trial on the basis of jury misconduct, three conditions must be met:
(1) evidence from the jurors must consist only of objective facts as to what actually occurred in or out of the jury room bearing on misconduct; (2) the acts or statements complained of must exceed tolerable bounds of jury deliberation; and (3) it must appear the misconduct was calculated to, and with reasonable probability did, influence the verdict.
State v. Johnson, 445 N.W.2d 337, 341 (Iowa 1989) (citing State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984)). The district court has broad discretion in ruling on these matters. Cullen, 357 N.W.2d at 27.
The evidence of the alleged misconduct satisfies the first element above. That is, C.S.'s testimony was permitted under Iowa Rule of Evidence 5.606( b) as it related only to the "question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Iowa R. Evid. 5.606( b).
"Of necessity jurors have considerable latitude in their deliberations, and conduct or occurrences which are within tolerable limits are said to `inhere in the verdict' or constitute no ground for `impeachment of the verdict.'" Harris v. Deere Co., 263 N.W.2d 727, 730 (Iowa 1978), superseded on other grounds by Ryan v. Arneson, 422 N.W.2d 491, 495 (Iowa 1988). "Trials are to be decided on facts produced in court under rules of evidence and subject to cross-examination." State v. Folck, 325 N.W.2d 368, 372 (Iowa 1982). The introduction of any additional, outside information is beyond permissible bounds. Johnson, 445 N.W.2d at 342. While providing some personal knowledge of the area, the district court determined the information C.S. provided was not material to the case. Further, the court reasoned a juror from Polk County is going to possess knowledge about and familiarity with certain parts of the county. As the court stated, "these jurors don't live in a vacuum, and its certainly ridiculous for us to assume that any person who walks through the door . . . wouldn't have some knowledge of the geographical layout of the City of Des Moines." We agree. The fact that C.S. had personal knowledge of the area in which the crime took place and shared it with other jurors during deliberations is not juror misconduct under these circumstances. See generally State v. Lass, 228 N.W.2d 758, 771 (Iowa 1975) (affirming denial of motion for a new trial which was based upon fact that several jurors related their personal observations of individuals suffering hypoglycemic and diabetic attacks).
While we need not reach the third element, influence on the verdict, we will address it. In determining whether a juror's misconduct influenced the verdict, a court may "examine the claimed influence critically in light of all the trial evidence, the demeanor of witnesses and the issues presented before making a common-sense evaluation of the alleged impact of the jury misconduct." State v. Christianson, 337 N.W.2d 502, 506 (Iowa 1983). Dacken was arrested inside of the Bavarian Inn because Sergeant Simon found evidence of drugs in the hotel room and later in the Jeep Cherokee. There is no evidence that C.S.'s knowledge of the area influenced the verdict in any way. Dacken also claims that C.S.'s fear of retaliation influenced the verdict and she wanted drug dealers out of the area. However, there is no evidence C.S.'s fear of reprisal existed before the rendering of the verdict and C.S. denied making any statement referencing clearing the neighborhood of drug dealers. The court did not abuse its discretion in denying the motion for mistrial.
Ineffective Assistance.
Dacken contends that trial counsel was ineffective for failing to move for a new trial on the grounds that the verdict was contrary to the weight of the evidence. The State asserts that trial counsel did not breach an essential duty nor was Dacken prejudiced by this alleged failure.
To establish ineffective assistance of trial counsel, the defendant must overcome a strong presumption of his counsel's competence. State v. Nucaro, 614 N.W.2d 856, 858 (Iowa Ct.App. 2000). He has the burden of proving his attorney's performance fell below "an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. State v. Carrillo, 597 N.W.2d 497, 500 (Iowa 1999).
A motion for a new trial should be granted only if, after considering both inculpatory and exculpatory evidence, the jury's verdict was contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). A verdict is contrary to the weight of the evidence where "a greater amount of credible evidence supports one side of an issue or cause than the other." Id. at 658 (quoting Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 658 (1982)).
The evidence in this case was overwhelming. Dacken was found in a room with syringes, burnt aluminum foil, a test tube, methamphetamine, and an empty package of lithium batteries. The Jeep Cherokee, also containing incriminating evidence, was registered in Dacken's name. Shepley testified that she helped Dacken manufacture methamphetamine and that he would "roll around" in the Jeep making meth. Based on the evidence produced at trial, a motion for a new trial based on a verdict contrary to the weight of the evidence would have been meritless. Therefore trial counsel did not breach an essential duty by failing to file the motion. Nor did prejudice result from this failure as there is not a reasonable probability that the result of the proceeding would have been any different had trial counsel made the motion.