Opinion
No. 4-838 / 04-0025
Filed February 24, 2005
Appeal from the Iowa District Court for Black Hawk County, Nathan A. Callahan, Judge.
The defendant-appellant, Edward Martin, appeals from his conviction for possession of cocaine, second offense, following a jury trial. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Jill Dashner, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht and Eisenhauer, JJ.
The defendant-appellant, Edward Martin, appeals from his conviction for possession of cocaine, second offense, following a jury trial. He contends the court erred in allowing testimony of prior bad acts. He also contends defense counsel was ineffective in not objecting to the prior-bad-acts testimony and to hearsay on a property tag on an exhibit. We reverse and remand.
Background facts
On July 26, 2003 officers were dispatched to an area of Waterloo. Upon arrival, they encountered the defendant, dressed in a baggy shirt and pants. Because his baggy clothes could conceal a weapon, and knowing the defendant's past criminal history and violent tendencies, two officers patted him down. Twice the defendant tried to reach into his left front pants pocket. Officers found a metal crack cocaine pipe in that pocket. He was charged with possession of cocaine, third offense.
Trial proceedings
Defense counsel made an oral motion in limine seeking to exclude testimony about the defendant's past criminal history. The court granted the motion, but advised counsel that if the defendant challenged the basis for the pat-down, the State would be allowed to go into the reasons for the pat-down, including the defendant's criminal history. In cross-examining one officer, defense counsel asked why he felt the defendant had a weapon. On redirect, the State was permitted to ask about other reasons for the pat-down, including the defendant's past arrests for robbery and assaulting a police officer and that the defendant was known to be violent. Defense counsel's "403" objection was overruled. The court immediately cautioned the jury the testimony was not offered to prove the truth of the statements, but should be considered only as a basis for the pat-down. Later, at defense counsel's request, the court informed the jury the arrest for robbery had not led to any charges or a conviction.
The State offered the metal crack pipe as an exhibit. Attached to the outside of the bag containing the pipe was a property tag listing the case number, defendant's name and address, the date, and remarks "narcotics." Defense counsel did not object to the hearsay in the property tag.
The jury found the defendant guilty of possession of cocaine, second offense. The court sentenced him to a year in jail to be served consecutively to two existing sentences.
Claims on appeal
The defendant first claims the trial court abused its discretion in allowing the testimony concerning the prior arrests and his violent tendencies. He argues it did not fall within any of the reasons for allowing such testimony in Iowa Rule of Evidence 5.404( b), it was unfairly prejudicial and should have been excluded under rule 5.403, and it must be relevant to be admissible under rule 5.402. He also claims defense counsel was ineffective in not making a timely and complete motion in limine and in not objecting to the testimony as inadmissible under rule 5.404( b).
The State responds (1) defense counsel's questions opened the door for the testimony on redirect, (2) the court's immediate response with a limiting instruction nullifies the danger of unfair prejudice, and (3) the weight of evidence in the State's case militates against unfair prejudice from the officer's testimony.
Secondly, the defendant contends counsel was ineffective in failing to object to the hearsay on the property tag on the bag containing exhibit A. The property tag contained the basic information identifying the exhibit with the defendant and the remarks "narcotics." The defendant argues this error was not harmless because the defendant made no admissions and the property tag improperly summarizes the State's case.
The State responds that the defendant's contention fails on both the performance and prejudice prongs of the ineffective-assistance-of-counsel test. Its primary argument is that there was no prejudice because the hearsay should be considered cumulative of other evidence and there is no indication in the record that the exhibit with the tag went with the jury during deliberations.
Discussion
Ineffective assistance.
Review of ineffective-assistance-of-counsel claims is de novo. State v. Weatherly, 679 N.W.2d 13, 18 (Iowa 2004). We typically preserve such claims for postconviction relief, but we will consider and dispose of ineffective assistance claims on direct appeal if an adequate record exists from which to address the claim and preserve valuable judicial resources. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001).
Relying on State v. Gallup, 500 N.W.2d 437 (Iowa 1993), the defendant claims counsel was ineffective for failing to object to the property tag on exhibit A because it improperly summarized the State's case. Id. at 440-41. The supreme court set forth its reasoning:
Were it not for the fact that [the defendant] admitted that he had sold LSD to [another], we would reverse his conviction on this issue. Generally, the admission of incriminating evidence with an evidence tag still attached is prejudicial error. Such a tag is clearly hearsay. And, in addition, the tag has the effect of unduly emphasizing the State's evidence because it is "a neat condensation of the [State's] whole case against the defendant." So even though recitals on the tag are merely cumulative of the State's evidence, prejudicial error can still occur.
Id. at 441 (citations and internal quotation marks omitted). In Gallup, the supreme court found no prejudice because the defendant made an admission. We reached the same result in another appeal involving the defendant filed today, State v. Martin, No. 03-2092/4-767 (Iowa Ct.App. February 24, 2005), because of Martin's admission.
In this case, however, Martin made no admission. Counsel did not object to the evidence tag on the outer envelope containing exhibit A. We find no reason for not objecting based on trial strategy. Counsel's failure to object was error. See State v. Shultz, 231 N.W.2d 585, 587 (Iowa 1975); State v. Branch, 222 N.W.2d 423, 427 (Iowa 1974). In Shultz, the court determined prejudicial error occurs even when the recitals on the tags are merely cumulative of the State's evidence. Shultz, 231 N.W.2d at 587. In Branch, the court observed the general rule that error in admitting hearsay must be presumed to be prejudicial "unless the contrary is affirmatively established." Branch, 222 N.W.2d at 427. The State has not overcome the presumption of prejudice. We find, therefore, that defense counsel was ineffective in not objecting to the admission of exhibit A when it still had the property tag affixed to the outside envelope. Because our resolution of this claim is dispositive, we need not address the defendant's evidentiary claims. We reverse the defendant's conviction and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Vogel and Eisenhauer, JJ. concur. Hecht and Zimmer, JJ. concur specially.
I concur in the result. Although I would reach the same result as the majority, I would do so pursuant to the prejudice analysis prescribed by Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984) (requiring applicant for post-conviction relief to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). Because this case does not present a direct appeal challenge to the admissibility of the evidence tag, I would not rely on the presumption of prejudice discussed in State v. Branch, 222 N.W.2d 423 (Iowa 1974).
Zimmer, J. joins this special concurrence.