Opinion
No. 4-402 / 03-1156.
July 14, 2004.
Appeal from the Iowa District Court for Buena Vista County, Frank B. Nelson and John P. Duffy, Judges.
Amphay Inthaphone appeals his convictions for possession with intent to deliver more than five grams of methamphetamine, failure to affix a drug tax stamp, and assault while participating in a felony. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Phil Havens, County Attorney, and David Patton, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Amphay Inthaphone appeals his convictions, following jury trial, for possession with intent to deliver more than five grams of methamphetamine, in violation of Iowa Code section 124.401(1)(b)(7) (2001), failure to affix a drug tax stamp, in violation of section 453B.12, and assault while participating in a felony, in violation of section 708.3. He alleges several grounds of ineffective assistance of trial counsel. We affirm his convictions and preserve the ineffective assistance claims for a possible postconviction proceeding.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State,573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State,602 N.W.2d 810, 814 (Iowa 1999). In order to prove prejudice, the defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland,466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Inthaphone first claims his trial counsel was ineffective for failing to object to various instances of prosecutorial misconduct. Specifically, he contends the prosecutor committed misconduct by asking him on cross-examination whether the police were lying and asking him to comment about the veracity of the police officers' testimony. Inthaphone also asserts the prosecutor committed misconduct when he called him a liar during closing arguments. He argues that these actions by the prosecutor violated his right to a fair trial and that based on our supreme court's holdings in State v. Graves,668 N.W.2d 860 (Iowa 2003), his trial counsel failed in an essential duty by not objecting to the prosecutor's actions.
The State argues that here, unlike in Graves, there was no prejudice to the defendant because counsel's failure to object to the two isolated questions asked during cross-examination regarding the officers' veracity is not sufficient to show there is a reasonable probability that but for counsel's failure the result of the proceedings would have been different.
Inthaphone also claims his counsel was ineffective for failing to adequately cross-examine the police officers who testified for the State concerning the basis for their opinions that he possessed the methamphetamine with the intent to sell it. He argues that although trial counsel cross-examined one of the officers concerning the basis for their opinions, counsel did not cross-examine any of the officers regarding the absence of indicia (i.e. packaging materials, scales, large sums of money, drug notes), other than amount and wrapping in individual packets, that he possessed the methamphetamine with the intent to deliver it rather than possessing it for personal use.
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle,652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead,570 N.W.2d 97, 103 (Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez,633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). "[W]e preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Biddle,652 N.W.2d at 203.
As set forth above, Inthaphone can succeed on his ineffectiveness claims only by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark,602 N.W.2d at 814; Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985). No record has yet been made before the trial court on this issue, trial counsel has not been given an opportunity to explain his actions, and the trial court has not ruled on this claim. Under these circumstances, we pass the issue in this direct appeal and preserve it for a possible postconviction proceeding. See State v. Bass,385 N.W.2d 243, 245 (Iowa 1986).
We affirm Inthaphone's convictions and preserve the specified claims of ineffective assistance of counsel set forth herein for a possible postconviction relief proceeding.
AFFIRMED.