Opinion
No. 1-777 / 00-1690.
Filed January 9, 2002.
Appeal from the Iowa District Court for Black Hawk County, JON FISTER (motion to suppress), GEORGE L. STIGLER (motion to suppress), JAMES C. BAUCH (motion to dismiss), STEPHEN C. CLARKE (trial and sentencing), Judges.
Defendant appeals from the judgment and sentence entered upon jury verdicts finding him guilty of conspiracy to manufacture more than five grams of methamphetamine while in possession of a firearm and within one thousand feet of a public school in violation of Iowa Code section 124.401(1)(b)(7) and (e) (1999), possession of ephedrine and/or pseudoephedrine in violation of section 124.401(4), receipt for unlawful purposes of precursor drugs in violation of section 124B.9, and possession of methamphetamine with intent to deliver while in the immediate possession or control of a firearm and within one thousand feet of a public school in violation of sections 124.401(1)(c), (e) and 124.401A. AFFIRMED.
Kenneth R. Martens of Martens Law Office, Marengo, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
I. Background Facts and Proceedings. On April 10, 1999, Greg Henson attempted to purchase more than two bottles of pseudoephedrine tablets from Dell Oil Company in Waterloo, Iowa. The clerk informed Henson the store would sell him only two bottles at a time. Henson left the premises, and several minutes later his codefendant, Ginger Seiler, attempted to purchase more than two bottles of pseudoephedrine from the same establishment. The clerk notified authorities after observing Seiler exit the store and enter the same vehicle Henson had entered earlier.
Henson and Seiler resided together near an elementary school. Authorities had been observing their home and their comings and goings. On April 13, 1999, officers received information from a confidential informant that led to the issuance of a search warrant for the home shared by Henson and Seiler. Officers surveilled the house while the application was presented to a judge. During the course of their surveillance, the officers observed Henson and Seiler leave their home. Seiler's vehicle was stopped and searched as she was the subject of an outstanding arrest warrant for forgery. Seiler informed the officers she wished to return home to care for her two small children. She returned home and asked to use the restroom. A female officer accompanied Seiler to the restroom and asked if she had anything on her person. Seiler produced a cigarette pack containing methamphetamine. Meanwhile, authorities obtained a search warrant for the residence and found materials used for the manufacture, delivery, and use of methamphetamine, as well as firearms.
Henson and Seiler were jointly charged and tried. Henson's motion to suppress challenging the reliability of a confidential informant for the search warrant was overruled. Several counts were dismissed, and the jury convicted Henson of conspiracy to manufacture more than five grams of methamphetamine while in possession of a firearm and within one thousand feet of a public school in violation of Iowa Code section 124.401(1)(b)(7) and (e) (1999), possession of ephedrine and/or pseudoephedrine in violation of section 124.401(4), receipt for unlawful purposes of precursor drugs in violation of section 124B.9, and possession of methamphetamine with intent to deliver while in the immediate possession or control of a firearm and within one thousand feet of a public school in violation of sections 124.401(1)(c), (e) and 124.401A.
The court sentenced him to up to fifty years for conspiracy, up to twenty years for possession with intent to deliver, and up to ten years each for possession of ephedrine and receipt of precursors. The court merged the ephedrine and precursors convictions. The sentences are to be served concurrently. On appeal, Henson contends his trial counsel was ineffective in failing to (1) move to sever his trial from that of his codefendant, (2) appeal the denial of his motion to suppress, and (3) challenge the stop and seizure of his codefendant.
II. Standard of Review. Ineffective assistance of counsel claims are reviewed de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000).
III. Discussion. In order to prevail upon a claim of ineffective assistance of counsel, a defendant must demonstrate (1) counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). "Both elements must be proven by a preponderance of the evidence." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citing State v. Ramirez, 616 N.W.2d 587, 593 (Iowa 2000); Oetken, 613 N.W.2d at 683; State v. Carrillo, 597 N.W.2d 497, 499 (Iowa 1999); State v. Wissing, 528 N.W.2d 561, 563 (Iowa 1995); State v. Tracy, 482 N.W.2d 675, 679 (Iowa 1992); State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999)).
To establish deficient performance, "[t]he test is `whether under the entire record and totality of the circumstances counsel's performance was within the normal range of competence.'" State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (quoting Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). "A defendant is not entitled to perfect representation, rather representation which is within the normal range of competency." Id.
The defendant must also demonstrate the error caused prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697. To meet this burden, the defendant must prove "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.; Carrillo, 597 N.W.2d at 500. An ineffective assistance of counsel claim will fail if the defendant is unable to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Ordinarily, we preserve ineffective assistance of counsel claims for postconviction proceedings. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). These claims may be resolved on direct appeal, however, when the record adequately addressed the issues. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). We deem this record sufficient.
A. Motion to Sever Trial. Henson contends his trial counsel was ineffective in failing to move to sever his trial from that of his codefendant. In particular, Henson asserts his interests were directly opposed to Seiler's and evidence found on her person and in her vehicle harmed his case.
Generally, defendants who are indicted together should be tried together. State v. Sauls, 356 N.W.2d 516, 517 (Iowa 1984). Severing the trials of codefendants is required in two instances: (1) where the trial is so complex and the evidence so voluminous that the jury will be confused and cannot compartmentalize the evidence; or (2) where the evidence admitted by or against one defendant is so prejudicial to a codefendant, the jury is likely to wrongly use it against the codefendant. State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998).
Neither of these exceptions to the general rule that defendants jointly indicted should be jointly tried is applicable in this case. We find no indication that the volume of evidence in this case was so substantial that the jury was likely to be confused or unable to compartmentalize it. Moreover, we reject Henson's contention that the nature of the evidence against Seiler was so prejudicial that the jury was likely to use it against him. We hold that counsel was not obligated to move for severance, and that the lack of such motion was not prejudicial.
B. Motion to Suppress. Henson further contends his trial counsel was ineffective in failing to appeal the denial of his motion to suppress. Henson asserts the confidential informant used for the search warrant was his sister who had a personal vendetta against him.
When complaining about the adequacy of an attorney's representation, it is not enough to simply claim counsel should have done a better job. State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct. App. 1998). The defendant must state specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Henson's argument fails to specify why an appeal from the ruling on the motion to suppress should have been pursued or how counsel's actions would have changed the outcome. See State v. Kendall, 167 N.W.2d 909, 911 (Iowa 1969) (holding allegations of inadequate representation "must be supported by more than speculative, generalized argument"). In the absence of greater specificity, we are unable to address Henson's ineffective assistance of counsel claim on direct appeal or preserve it for future postconviction relief proceedings. We accordingly affirm on this issue.
C. Stop and Seizure of Codefendant. Finally, Henson asserts his trial counsel was ineffective in failing to challenge the stop and seizure of his codefendant. We disagree. The officers' actions were constitutionally permissible under the circumstances. The officers' stop of Seiler's vehicle was permissible as the officers knew Seiler was the subject of an outstanding search warrant. Iowa Code § 804.5 (1999) ("A peace officer may make an arrest in obedience to a warrant delivered to a peace officer."); State v. Merrill, 538 N.W.2d 300,301 (Iowa 1995). Moreover, the officers' seizure of Seiler was also permissible. Since Seiler was the subject of an outstanding arrest warrant, the officers could take her "into custody . . . in the manner authorized by law." Iowa Code § 804.5. Finally, the officers' search of Seiler and her vehicle was permissible. The officers could, as a contemporaneous incident of Seiler's arrest, search Seiler as well as the passenger compartment of her vehicle. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 441 (1973) (holding "that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also `reasonable' under that Amendment"); New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981) (holding "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile"). Accordingly, Henson's trial counsel did not fail in an essential duty by not challenging the stop and seizure of Seiler because he was under no duty to do so. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (holding defense counsel has no duty to make a meritless motion).
A panel of our court reached the same conclusion on this issue in State v. Seiler, No. 00-1355 (Iowa Ct.App. June 13, 2001) (holding stop and seizure of Seiler constitutionally permissible).
AFFIRMED.