Opinion
No. 04-1364
Filed June 14, 2006
Appeal from the Iowa District Court for Black Hawk County, Joseph Moothart (trial), James C. Bauch, and Judge Jon Fister (sentencing), Judges.
Defendant appeals his conviction for possession of marijuana, third offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Ann Brenden, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., Hecht, J., and Nelson, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
On December 8, 2003, Waterloo police officers saw Cornell Hoosman coming out of a convenience store. There was an outstanding arrest warrant out for Hoosman, and the officers approached him. Hoosman got out of the car, and then put his hand in his pocket. Officer Robert Michael attempted to grab Hoosman's wrist, but Hoosman was able to throw several items on the ground. The officers found a bag containing marijuana on the ground close to Hoosman.
Hoosman had the following previous drug-related convictions: (1) possession of marijuana with intent to deliver in 1979; (2) possession of marijuana in 1989; and (3) possession of marijuana with intent to deliver in 1992. Because of these previous convictions, Hoosman was charged with possession of marijuana, third offense, which carries a possible enhanced sentence. In addition to the drug-related offenses, Hoosman also had convictions for going armed with intent in 1989 and two counts of attempted murder in 1991. Due to his extensive criminal history, he was charged with being a habitual offender.
At Hoosman's criminal trial, the parties apparently agreed the officers could testify that they approached Hoosman because of the outstanding warrant, but they would not say what the warrant was for. Officer Thomas Sullivan was questioned as follows:
Q. Why was it significant or important to you to have him stay in the vehicle until other officers arrived to assist? A. Well, that's normal procedure. You usually don't try to go in there by yourself. And also, he's a big boy, and he's been known to resist before.
Immediately after this question, Hoosman's counsel sought a sidebar discussion, but did not seek an admonition to the jury. After officer Sullivan's testimony was completed Hoosman sought a mistrial, claiming that officer Sullivan had testified that he had a propensity for violence. The district court denied the motion for a mistrial. A jury found Hoosman guilty of possession of marijuana.
A separate trial was held on the issue of whether Hoosman should be subject to an enhanced penalty under Iowa Code section 124.401(5) (2003), which provides, "A person who commits a violation of this subsection and has previously been convicted two or more times of violating this chapter . . . is guilty of a class `D' felony." At the hearing on this matter, Hoosman asked the judge, James C. Bauch, to recuse himself because Judge Bauch had been the prosecuting attorney on a 1979 conviction, and the trial judge in criminal proceedings in 1991. Judge Bauch denied the request to recuse himself, stating that he had no recollection of Hoosman. During the proceedings, Hoosman expressed a desire to represent himself. He refused, however, to answer the questions put to him by the court regarding whether he knowingly and voluntarily gave up his right to an attorney, and the court denied his request. A jury found Hoosman was a third-time offender within the meaning of section 124.401(5).
A third trial was held on the issue of whether Hoosman was a habitual offender. This trial was held before Judge Jon Fister, with Hoosman representing himself. Hoosman called Judge Bauch as a witness and questioned him generally about habitual offender law. A jury found Hoosman was a habitual offender.
The sentencing hearing was held before Judge Bauch. Hoosman was sentenced to a term of imprisonment not to exceed fifteen years, but the sentence was suspended and he was placed on probation for a period of five years.
II. Cruel Unusual Punishment
Hoosman contends that a fifteen-year sentence for the crime of possession of marijuana constitutes cruel and unusual punishment. The State asserts that this claim is not ripe because Hoosman was given a suspended sentence and he is not presently serving a fifteen-year sentence. Generally, our rules of judicial restraint preclude appellate review of issues that depend upon matters not yet developed. Worthington v. Kenkel, 684 N.W.2d 228, 234 (Iowa 2004). An issue is considered ripe for adjudication when it presents an actual, present controversy, as opposed to one that is merely hypothetical or speculative. State v. Bullock, 638 N.W.2d 728, 734 (Iowa 2002).
The Eighth Amendment of the United States Constitution prohibits "cruel and unusual" punishment, and this prohibition is applicable to the states through the Fourteenth Amendment. See Rhodes v. Chapman, 452 U.S. 337, 344-45, 101 S. Ct. 2392, 2398, 69 L. Ed. 2d 59, 67-68 (1981); State v. Lara, 580 N.W.2d 783, 784 (Iowa 1998).
We note that defense counsel argued at the sentencing hearing, "[I]f the Court does not suspend that sentence, I do believe that that is a violation of the Eighth Amendment of the Constitution as it relates to cruel and unusual punishment." By this statement defense counsel recognized that only if Hoosman were required to serve a fifteen-year prison sentence would an argument regarding cruel and unusual punishment become viable. On the present record, it is merely hypothetical or speculative whether Hoosman would ever be required to serve a fifteen-year sentence. We conclude the record is not ripe for a consideration of whether the prison sentence in this case constituted cruel and unusual punishment.
III. Recusal of Judge
Hoosman claims Judge Bauch abused his discretion by failing to recuse himself from the district court proceedings. At the second trial, Hoosman asked Judge Bauch to recuse himself because he had prosecuted him on a 1979 charge, and been the presiding judge during a 1991 trial. Judge Bauch was initially listed as a witness for the second trial, but the parties agreed he would not be called. Judge Bauch recused himself during the third trial because he was called as a witness. Hoosman also asked Judge Bauch to recuse himself as the sentencing judge for the same reasons outlined above, and because he had been a witness in the proceedings.
Iowa Court Rule 51, Canon 3(C)(1) provides, "A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. . . ." While there is a constitutional right to a neutral and detached judge, mere speculation as to judicial bias is not sufficient to prove the grounds necessary for recusal. State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994). Only personal bias or prejudice stemming from an extrajudicial source constitutes a disqualifying factor. State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005). A judge's perception or attitude arising from the judge's participation in a case is not a disqualifying factor. Id.
A party seeking recusal of a judge has the burden of showing the grounds for recusal. Taylor v. State, 632 N.W.2d 891, 894 (Iowa 2001). A party must show actual prejudice before recusal is necessary. State v. Sinclair, 582 N.W.2d 762, 766 (Iowa 1998). A judge must consider "whether reasonable persons with knowledge of all facts would conclude that the judge's impartiality might be questioned." Mann, 512 N.W.2d at 532. We will not reverse a judge's decision on whether or not to recuse unless there has been an abuse of discretion. Millsap, 704 N.W.2d at 432.
We find Judge Bauch did not abuse his discretion, under the facts of this case. Hoosman has not shown that Judge Bauch had any personal bias or prejudice arising from an extrajudicial source. Although Judge Bauch had contact with Hoosman from previous criminal cases, this is not an "extrajudicial" source, and furthermore, Judge Bauch stated he did not remember Hoosman. Hoosman has not shown any actual prejudice due to Judge Bauch's participation in the present case. We note Judge Bauch properly recused himself from the proceeding where he was called as a witness by Hoosman.
IV. Motion for Mistrial
Hoosman asserts the district court erred by not granting him a mistrial during his first trial. He claims that the testimony by officer Sullivan that he previously resisted arrest should be deemed inadmissible under Iowa Rule of Evidence 5.404( b). Hoosman claims he is entitled to a new trial that is not tainted by evidence of his prior bad acts.
The State claims that Hoosman's motion for a mistrial was untimely. A mistrial motion must be made when the grounds for it first become apparent. State v. Jackson, 422 N.W.2d 475, 479 (Iowa 1988). Here, while defense counsel asked to approach the bench after officer Sullivan's testimony, he did not make a formal motion for a mistrial at that time. Only later, after Sullivan's testimony was completed, did Hoosman seek a mistrial. We seriously question whether error has been preserved in this case.
Even if we were to find the mistrial motion to be timely, however, we determine the district court did not abuse its discretion in denying the motion. A trial court has wide discretion in considering a motion for a mistrial. State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003). An abuse of discretion will be found only when a defendant shows prejudice which prevents a fair trial. See State v. Trudo, 253 N.W.2d 101, 106 (Iowa 1977). The trial court is in a better position to observe the matters raised in a mistrial motion, and to ascertain its effect on the jury. State v. Brotherton, 384 N.W.2d 375, 381 (Iowa 1986). Here, officer Sullivan did not testify that Hoosman was violent, as defense counsel alleged, but instead merely stated, "he's been known to resist before." The district court did not abuse its discretion in denying the motion for a mistrial.
V. Ineffective Assistance
Finally, Hoosman contends that he received ineffective assistance because his defense counsel did not object to evidence that there was an outstanding warrant against him. As noted above, the parties apparently agreed the officers could testify there was an arrest warrant out for Hoosman, but they could not state what it was for. Hoosman now claims that his counsel should not have entered into this agreement.
Our review on this constitutional issue is de novo. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999). To prevail on a claim of ineffective assistance of counsel, Hoosman must prove (1) his attorney failed to perform an essential duty and (2) prejudice resulted to the extent he was denied a fair trial. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
We determine this issue should be preserved for possible postconviction proceedings. See State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). ("Ordinarily, ineffective assistance of counsel claims are best resolved by postconviction proceedings to enable a complete record to be developed and afford trial counsel an opportunity to respond to the claim."). From the record on appeal it is not clear if there was an agreement between the parties, and if there was such an agreement, defense counsel's reasons for entering into the agreement.
We affirm Hoosman's conviction.