Opinion
No. 3-206 / 02-0451.
Filed April 30, 2003.
Appeal from the Iowa District Court for Davis County, ANNETTE J. SCIESZINSKI, Judge.
Defendant appeals from the judgment and sentence entered upon her convictions. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Rick Lynch, County Attorney, and Ed Harvey, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Sherry Foster appeals from the judgment and sentence entered upon her convictions of two counts of conspiracy to possess and/or possession of a precursor with intent to manufacture methamphetamine, operating a vehicle without owner's consent, and tampering with anhydrous ammonia. She contends the district court erred in applying the wrong standard in denying her motion for new trial. She also claims the court erred in failing to merge the felony counts, and that trial counsel was ineffective. We affirm.
I. Background Facts and Proceedings. At approximately 8:10 p.m. on August 17, 2001, Sergeant Shawn Armstrong of the Bloomfield Police Department responded to an alarm at the Farm Service plant in Davis County. Upon his arrival at the plant, Armstrong observed a truck parked near an anhydrous ammonia tank and a woman running toward a wooded area with a red thermos in her hand. The woman turned her head when Armstrong ordered her to stop, but continued running. Armstrong started after the woman, but encountered Robert Baclet standing near the truck. As Armstrong neared Baclet, he was nearly overcome by the strong odor of anhydrous ammonia. Other officers arrived on the scene and Baclet was arrested.
Armstrong observed a black purse inside the truck. The purse contained fourteen packs of psuedoephedrine and Foster's identification card. When Armstrong looked at the photo on the identification card, he recognized Foster as the woman he saw running away. A PVC tube and a cooler jug were also found at the scene.
Baclet told the officer the following facts: Foster was an acquaintance with whom he had arranged to gather supplies for making methamphetamine; they had purchased the psuedoephedrine pills and placed them in Foster's purse; the PVC pipe was to be affixed to the anhydrous ammonia tank in order to put the anhydrous ammonia in the cooler; and Foster had tried to fit the pipe onto the tank coupling. Baclet claims he told the officers the truth because he was promised that by doing so, he would not be charged with "everything."
At approximately 12 a.m. August 18, 2001, Foster arrived at Baclet's home in Missouri and told his wife her husband was in jail. Foster explained that the police surrounded them while she attempted to obtain anhydrous ammonia. She said she had stolen a Ford Ranger to return to Missouri. Deputy Sheriff David Davis later learned that a Ford Ranger had been reported stolen from a location approximately one half mile away from the Farm Service plant.
II. Motion for New Trial. Foster first contends the district court erred in applying an incorrect standard when denying her motion for new trial.
Rulings on motions for new trial are reviewed for errors at law. Iowa R.App.P. 6.4. The district court's ruling on a motion for new trial will only be reversed for an abuse of discretion. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). A motion for a new trial asserting the verdict was contrary to evidence should be granted only if 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 (citation omitted).
Foster argues the district court erred because it applied a sufficiency-of-the-evidence standard as opposed to the proper weight-of-the-evidence standard articulated in State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). The district court ruled as follows:
The Court has carefully considered the allegations made by Ms. Foster in her motion as well as the allegations and legal arguments made by Mr. Richardson in his — together with the evidence and argument here at this hearing, and in review of the basis for which the Court may grant a new trial set out in Iowa Rule of Criminal Procedure 23, the Court finds that there is no basis for granting a new trial or for issuing arrest of judgment.
Specifically, the Court finds in review of the complete trial record that the verdicts are not contrary to the law or evidence of the case. There has been no showing of newly-discovered evidence which would warrant a new trial.
And the trial, when all consideration is given to the totality of the record, was fair and impartial, so the Motion for New Trial and the Motion in Arrest of Judgment will be overruled.
We conclude the district court did not use the incorrect standard in denying Foster's motion for new trial. The district court referred to Iowa Rule of Criminal Procedure 23, now rule 2.24, which sets forth the grounds for which the court may grant a new trial. Rule 2.24(2)( b)(6) states that a new trial may be granted when "the verdict is contrary to the law or the evidence." The district court ruled that the verdicts were not contrary to the law or evidence of the case. We find no error.
III. Merger. Foster was convicted of conspiracy to possess and/or possession of psuedoephedrine, a precursor, with intent to manufacture methamphetamine and conspiracy to possess and/or possession of anhydrous ammonia, a precursor, with intent to manufacture methamphetamine. Foster argues the district court erred in failing to merge the conspiracy charges with the substantive offenses. As the State notes, Foster was adjudged as a habitual offender. She was not sentenced separately for the conspiracy and the substantive offense as disapproved in State v. Waterbury, 307 N.W.2d 45, 52 (Iowa 1981). Accordingly the district court did not err in failing to merge the convictions.
IV. Ineffective Assistance of Counsel. Foster contends his trial counsel was ineffective in several respects.
To succeed with a claim of ineffective assistance of counsel, a claimant must prove two elements. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). 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. A presumption exists that counsel is competent and that counsel's conduct falls within a wide range of reasonable professional assistance. Burgess v. State, 585 N.W.2d 846, 847 (Iowa Ct.App. 1998). We will not second guess reasonable trial strategy. Id. The second prong of the test is satisfied if a reasonable probability exists that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).
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, such claims 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).
A. Jury instruction. Pursuant to Iowa Rule of Criminal Procedure 2.21(3), "[a] conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the crime. . . ." Foster contends her counsel was ineffective in failing to request a jury instruction on corroboration of accomplice testimony.
We conclude Foster cannot show she was prejudiced by counsel's failure to request the jury instruction. Had the jury been instructed regarding corroboration of accomplice testimony, there is ample evidence from the record by which the jury could find Baclet's testimony was corroborated. Armstrong identified Foster as the woman he saw running away and her purse was discovered in the truck containing fourteen packs of psuedoephedrine. In addition, Baclet's wife testified that Foster told her she and Baclet were attempting to obtain anhydrous ammonia when Baclet was arrested. Baclet's wife observed Foster driving a black Ford Ranger and a vehicle matching that description was stolen one-half mile from the plant.
B. Hearsay. Foster also contends her trial counsel was ineffective in failing to object to testimony she claims was inadmissible hearsay. Specifically, she argues counsel failed to perform an essential duty by not objecting to Deputy Davis's testimony about receiving the PVC tube and cooler jug from Deputy McElderry when McElderry did not testify. Foster also argues counsel was required to object to Davis's testimony regarding the report of the stolen Ford Ranger.
Deputy Davis testified that he worked as the evidence officer in the investigation. Davis identified State's Exhibit C by stating, "This PVC tube is one of the two items that Deputy McElderry brought to me that he found there at the FS plant." Davis had previously testified that McElderry had brought a jug and the PVC tube to him in the booking room.
If hearsay is admitted, prejudice to the non-offering party is presumed unless the contrary is affirmatively established. State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996). However, admission of hearsay alone is not a valid ground for reversal in cases where the State upholds its burden of proving the challenged evidence did not impact upon the jury's verdict of guilty. Id. Foster claims Davis's testimony was prejudicial because it linked her to the case beyond the testimony of Baclet. We disagree. Armstrong identified Foster as the woman he saw running from the scene. Her purse containing her identification was found in the truck. Foster also told Baclet's wife that she and Baclet were attempting to obtain anhydrous ammonia. Because other evidence linked Foster to the crime, any hearsay that was admitted was not prejudicial.
Deputy Davis also testified regarding the stolen Ford Ranger. He stated, "Just as I was returning to my residence and ending my shift, I did hear that there was a possible stolen vehicle from a wash rack at Heartland Pork." Davis testified that Heartland Pork was located less than one-half mile from the Farm Service plant. Finally, Davis testified that Henry Egbert was the owner of the vehicle. Foster claims this testimony was hearsay and was prejudicial because it established that Egbert owned the vehicle and that it was taken without his permission.
The State urges that Davis's testimony was admissible pursuant to Iowa Rule of Evidence 5.803(8)( a). Rule 5.803(8)( a) excludes from the hearsay rule the following:
[R]ecords, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to a duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.
However, no report was introduced at trial. Rather, Davis testified regarding information that he may have learned from a report. Furthermore, investigative reports by police and other law enforcement personnel are not included within the exception enumerated in rule 5.803(8)( a). Iowa R. Evid. 5.803(8)( b)(i). Therefore, the public records exception does not apply.
Baclet's wife testified that she observed Foster driving a Ford Ranger when she returned home on August 18, 2001. She further testified that Foster "said she had stolen it to get back to Missouri." It is apparent from this statement that Foster had taken the vehicle without the consent of its owner as required under Iowa Code section 714.7 (2001). Accordingly, we conclude Foster was not prejudiced by Davis's testimony regarding the report of a stolen vehicle and its ownership.
C. Alibi rebuttal witness. Foster gave notice of two alibi witnesses. Only her son, Kevin, testified. Kevin stated he was with his mother in Greentop, Missouri on the night of August 17, 2001. He testified that he knew that date because his mother called the next day and told him she had been arrested. Although the State did not file notice of a rebuttal witness, it called Magistrate Rex Steinkruger who testified regarding an arrest warrant signed on August 21, 2001. Steinkruger stated that it would be impossible for Foster to have been arrested on August 18. However, on cross-examination, Foster's trial counsel established that it was possible Foster had been arrested in another jurisdiction on August 18, and the magistrate had signed an arrest warrant and faxed it somewhere else on the same date.
Foster contends trial counsel was ineffective in failing to object to the State's rebuttal witness because the State failed to provide notice pursuant to Iowa Rule of Criminal Procedure 2.11(11)( a), which states in pertinent part:
In the event that a defendant shall file [a notice of an alibi defense] the prosecuting attorney shall file written notice of the names and addresses of the witnesses the state proposes to offer in rebuttal to discredit the defendant's alibi. Such notice shall be filed within ten days after filing of the defendant's witness list, or within such time as the court may direct.
Failure to comply with this rule precludes the State from offering evidence on the issue of alibi without leave of court for good cause shown. See Iowa R. Evid. 2.11(11)( d). Foster contends that if the State had provided notice of its rebuttal witness, she would have likely prevailed due to a better-planned defense. Because there is not adequate evidence in the record as to how counsel's trial strategy would have benefited from this knowledge, we preserve this issue for postconviction relief.
D. Other claims. Finally, Foster contends that several claims of ineffective assistance of counsel be preserved for postconviction relief. They include counsel's failure to call a second alibi witness, counsel's failure to let Foster testify, counsel's failure to adequately explain to her the consequences of being found guilty by the jury in respect to an alleged plea offer, and counsel's failure to investigate and discover the identity and location of a third alibi witness.
Foster contends the second alibi witness was necessary and material to her defense because the State questioned her son's honesty and motivation to protect his mother. Because the record is not fully developed regarding this matter, we preserve this claim for postconviction relief.
Foster does not indicate how she was prejudiced by counsel's alleged deficient performance in regard to her other three claims. In order to preserve a claim of ineffective assistance of counsel for postconviction review, a defendant must make a minimal showing by which this court can assess the viability of the claim. State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987). A defendant must indicate why the challenged action is alleged to be ineffective and what prejudice is likely to have resulted from it. Id. The bald assertion that certain acts constitute ineffective assistance of counsel will be insufficient to preserve the question for postconviction proceedings. Id. Because she has not complied with these minimal requirements, we conclude Foster has raised no viable claim of ineffective assistance and find no basis for preserving these issues for postconviction review. See id. V. Conclusion. After considering all of the errors Foster alleges and finding they lack merit, we affirm her convictions and sentence. We preserve for postconviction relief the issue of whether her trial counsel was ineffective in failing to object to the State's alibi rebuttal witness. We also preserve for postconviction relief Foster's claim that counsel was ineffective in failing to call a second alibi witness. We dismiss her remaining claims of ineffective assistance of counsel on direct appeal.
AFFIRMED.
VOGEL, P.J., concurs, MILLER, J., dissents in part.
I respectfully dissent from that part of the majority opinion which preserves for a possible postconviction proceeding Foster's claim that counsel was ineffective for not calling a second alibi witness, Brandi Ocher. In all other respects I fully concur in the majority opinion and the result.
To preserve claims of ineffective assistance of counsel for postconviction review, a defendant must make some minimal showing from which this court can assess the potential viability of his or her claim. Such a showing should not only demonstrate some need for further development of the record, but should indicate why the challenged actions are believed to have been ineffective and what prejudice is likely to have resulted from them. The bald assertion that certain acts constitute ineffective assistance of counsel will be insufficient to preserve the question for postconviction proceedings.
State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987) (citations omitted).
In complaining about the adequacy of an attorney's representation, it is not enough to simply claim counsel should have done a better job, for example should have called a witness. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). The defendant must: (1) state the specific ways in which counsel's performance was inadequate, and (2) identify how competent representation probably would have changed the outcome. Id. at 15.
Although Foster asserts counsel was ineffective for not calling Brandi Ocher as an alibi witness, she does not in any manner indicate what Ocher's testimony would have been or how it might have produced a different result. Her claim is thus too vague and general to preserve it for a possible postconviction proceeding. See Dunbar, 515 N.W.2d at 15 (holding that claims of ineffective assistance of counsel are too general in nature to allow them to be addressed or to preserve them for a postconviction proceeding where the claims do not suggest what the result of different action by counsel would have been or how such different action would have affected the result below); Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985) (holding that appellant did not present grounds to address or preserve a claim of ineffective assistance of counsel where he did not suggest what the results of different action by counsel would have been or how they would have produced a different result). I therefore respectfully dissent from the majority's preservation of this one claim of ineffective assistance.