Opinion
No. 2-172 / 00-1288.
Filed May 15, 2002.
Appeal from the Iowa District Court for Polk County, D.J. STOVALL, Judge.
Jose Martinez appeals from the judgment and sentence entered upon a jury verdict finding him guilty of conspiracy to possess more than five kilograms of methamphetamine with the intent to deliver and conspiracy to deliver methamphetamine. AFFIRMED.
Linda Del Gallo, State Appellate Defender, Martha J. Lucey, Assistant Appellate Defender, and Jose D. Martinez, pro se, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary Kendell, Assistant County Attorney, for appellee.
Heard by MAHAN, P.J., and ZIMMER and VAITHESWARAN, JJ. EISENHAUER, J., takes no part.
Jose Martinez appeals from the judgment and sentence entered upon a jury verdict finding him guilty of conspiracy to possess more than five kilograms of methamphetamine with the intent to deliver and conspiracy to deliver methamphetamine. Martinez's appellate counsel contends (1) the district court erred in finding sufficient evidence that Martinez entered into an "agreement" to possess with intent to deliver or deliver methamphetamine; (2) trial counsel was ineffective in failing to object to the admission of hearsay statements from a nontestifying coconspirator; and (3) trial counsel was ineffective in failing to request a jury instruction on "mere association." Martinez, in his supplemental pro se brief, alleges several errors on the part of the district court and his trial counsel. We affirm.
Background Facts and Proceedings. Appellate counsel agree, and this court concurs, that a complete recitation of the factual situation in this case would be lengthy, complex and confusing. Therefore, we conclude no useful purpose would be served by such a recitation. We will, instead, focus on those facts that are critical to a proper resolution of this appeal.
Sufficiency of the Evidence. Martinez contends the district court erred in finding sufficient evidence that he entered into an "agreement" to possess with the intent to deliver or deliver methamphetamine. We disagree.
A. Standard of Review. We review challenges to the sufficiency of evidence for errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). The existence of corroborating evidence is a legal question for the court to resolve. State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997). A verdict of guilty is binding on appeal unless no substantial evidence exists to support it, or it is clearly against the weight of the evidence. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998). Substantial evidence means evidence that could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id.
B. Conspiracy. Iowa Code section 124.401(1) makes it a crime "for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance . . . or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance. . . ." Iowa Code § 124.401(1). Iowa Code section 706.1 defines the crime of conspiracy. A "conspiracy is a combination or agreement between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner." State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998).
Prior decisions have described an agreement to form a conspiracy as a "concert of free wills," "union of the minds of at least two persons," and "a mental confederation involving at least two persons." State v. Speicher, 625 N.W.2d 738, 741-42 (Iowa 2001). The conspiracy does not depend on the fulfillment of the agreement, only that there is an agreement. Ross, 573 N.W.2d at 914. Both direct and circumstantial evidence may be used to prove such a meeting of the minds. Casady, 597 N.W.2d at 804-05; State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998). Circumstantial evidence includes the declarations and conduct of the alleged conspirators and all reasonable inferences arising from such evidence. Casady, 597 N.W.2d at 805. A tacit understanding is sufficient to sustain a conspiracy conviction:
An agreement that, because of its purpose or the means contemplated, amounts to a conspiracy need not be formal or express, but may be a tacit understanding; the agreement may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators.Mapp, 585 N.W.2d at 748. Moreover, "the agreement may be inferred from the surrounding circumstances. All legitimate inferences arising reasonably and fairly from the evidence may be indulged in to support the verdict." State v. Ruiz, 496 N.W.2d 789, 792 (Iowa Ct. App. 1992).
In the present case, we acknowledge there is no direct evidence that Martinez agreed to possess with the intent to deliver or deliver methamphetamine with another. However, in considering the surrounding circumstances, there is sufficient evidence that Martinez did conspire to possess with the intent to deliver or deliver methamphetamine.
The record is undisputed that Ricardo Valencia worked for Martinez in California prior to moving to Iowa in early 1999. Martinez admitted that Valencia continued to call him "boss" even after Valencia moved to Iowa. Lisa Dawson testified that she answered several telephone calls at her apartment for Valencia from a individual known as "the boss." She identified Martinez as the person who was repeatedly calling her apartment for Valencia. During May 1999 Peggy Gonzales, Dawson's mother, testified that she also answered telephone calls about twice a week at her daughter's apartment from an individual named "the boss" asking for Valencia.
The evidence seized from the various searches conducted by the Des Moines Police Department is consistent with Peggy Gonzales's testimony that Valencia informed her that he was involved in transporting drugs from his boss in California to Iowa in the windshields of vehicles. The white Lincoln Continental that was retrieved from a storage unit on April 28, 1999 had California license plates and contained a universal molding tool, which is used for removing windshields. On the morning of May 6, 1999 the police stopped the vehicle Martinez was driving. The police found approximately $7000 wrapped in red plastic hidden within the engine compartment of the vehicle. Martinez claimed ownership of the money. The police also retrieved from Martinez's possession a slip of paper listing three California license plate numbers. Two of the license plate numbers appeared on two vehicles seized some six weeks later that contained large amounts of narcotics. One of those numbers matched the license plate on a Lincoln found in a storage unit on June 28, 1999, and the second number matched the license plate on the Crown Victoria driven by Jose "Big Jose" Rodriguez which was stopped a few days before June 28, 1999. Both of these vehicles contained large quantities of methamphetamine in the windshields.
Officer Lonny Namanny of the Des Moines Police Department testified that prior to June 28, 1999 the department was notified that California authorities stopped a Crown Victoria. The driver was identified as "Big Jose." Namanny learned that the vehicle was being driven to Des Moines. "Big Jose" agreed to cooperate with the authorities and deliver this vehicle to Des Moines, which was delivered to Valencia's apartment on June 28, 1999 during the execution of the search warrant.
Moreover, the evidence seized from Martinez's motel room on May 6, 1999 is also consistent with the inference that he was involved in a conspiracy to possess with the intent to deliver or deliver methamphetamine. Namanny testified that the police found a large amount of cash hidden in two places in Martinez's motel room. The police retrieved a duct-taped bundle of $8440 from inside a boom box radio. Another duct-taped bundle of $30,260 was found in the wall in the bathroom. Martinez claimed ownership of the money but claimed it was a business advance from a Wells Fargo account. However, the receipts retrieved from Martinez's black pouch showed bank receipts from September and December of 1998, some five months prior to the search. The police also retrieved a small plastic bag of methamphetamine from the ceiling of the bathroom.
The Wells Fargo account was in the name of Martinez's father. Following Martinez's arrest in May, the account was depleted by various ATM withdrawals.
Expert testimony also corroborated evidence that infers Martinez was involved in a conspiracy. Officer Namanny testified that several pieces of paper found in Martinez's motel room and black pouch revealed notes of drug computations. Specifically, Namanny testified that the police recovered from Martinez's motel room a maid card which had the name Antonio written in the corner and that Antonio Salise was known to traffic methamphetamine. Namanny also opined that the card and envelope retrieved from Martinez's black pouch reflected computations of dollar amounts as to either drugs that had been delivered or money that was owed. Handwriting analysis established that Martinez may have written those notes. However, it specifically excluded Valencia as the author of these notes. Namanny also explained that the evidence retrieved on May 6, 1999 is commonly used in drug trafficking. In addition, he noted that the large amounts of cash and the manner of packaging are consistent with drug dealing.
We also note that Martinez gave evasive answers to questions by the police when he was arrested on May 6 about where he was staying and his purpose for visiting Des Moines. This was additional evidence from which the jurors could infer guilt. See State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (stating that defendant's admissions may be implied by his conduct subsequent to the crime when such conduct indicates a consciousness of guilt); State v. Blair, 347 N.W.2d 416, 422 (Iowa 1984) (stating that "a defendant's inconsistent statements are probative circumstantial evidence from which the jury may infer guilt"). Therefore, Martinez's evasive answers to the officer may indicate a consciousness of guilt. Cox, 500 N.W.2d at 25.
When the evidence is viewed in the light most favorable to the State, we are satisfied the cumulative effect of this evidence is sufficient to support the jury's verdict. There is sufficient evidence from which a reasonable jury could find there was an agreement to possess with the intent to deliver or deliver methamphetamine. We therefore find substantial evidence exists in the record to support Martinez's convictions, and we affirm the district court on this issue.
Ineffective Assistance of Counsel. Martinez also contends that trial counsel was ineffective in failing to object to the admission of hearsay statements from a nontestifiying coconspirator and in failing to request a jury instruction on "mere association." We disagree.
A. Law Governing Ineffective of Assistance of Counsel. A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. 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). The defendant bears the burden of demonstrating both elements of ineffective assistance of counsel by a preponderance of the evidence. Ledezma, 626 N.W.2d at 142. An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
B. Admission of Hearsay. The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. See U.S. Const. amend. VI. Although the Supreme Court has recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, the Court does not equate the Confrontation Clause's prohibitions with the general rule prohibiting the admission of hearsay statements. State v. Castaneda, 621 N.W.2d 435, 444 (Iowa 2001). In other words, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. Id.
The Sixth Amendment is binding on the states through the Fourteenth Amendment to the United States Constitution. Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638, 651 (1990).
In the present case, Martinez's counsel filed a motion in limine prior to trial seeking to exclude any testimony from Officer Namanny with regard to any statements made by Jose Rodriguez. The State did not resist, and the court granted this portion of the motion. At trial, Officer Namanny was allowed to testify on cross-examination that California authorities stopped Jose Rodriguez on June 28, 1999. His vehicle was carrying nineteen pounds of methamphetamine. Namanny then testified that Jose Rodriguez stated he was to deliver the car for Martinez. Despite the motion in limine, his counsel made no objection to this testimony. During redirect examination, Martinez's counsel did object to similar testimony on hearsay grounds, which the court overruled. Clearly, Namanny's testimony regarding the statements of Jose Rodriguez violated Martinez's right to confront witnesses against him. As such, the State concedes, and we agree, that Martinez's counsel breached an essential duty by failing to properly object and move to strike the inadmissible testimony.
However, harmless errors, even errors of constitutional magnitude, do not require reversal. State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998). Even where there has been a violation of a defendant's fundamental rights under the United States Constitution, we can hold the error harmless if we can declare a belief it was harmless beyond a reasonable doubt. State v. Hensley, 534 N.W.2d 379, 382-83 (Iowa 1995) (citations omitted). The United States Supreme Court has stated:
An assessment of harmlessness cannot include consideration of whether the witness' testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.Coy v. Iowa, 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857, 867 (1988). Therefore, the question is not whether we, as an appellate court, after omitting the challenged evidence would find the defendant guilty, but rather whether we are satisfied beyond a reasonable doubt that the fact finder would have done so. State v. Brodene, 493 N.W.2d 793, 797 (Iowa 1992). The United States Supreme Court has listed the following factors for determining whether improper admission of testimony was harmless error:
[T]he importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross examination otherwise permitted, and, of course, the overall strength of the prosecution's case.Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674, 686-87 (1986).
After a careful review of the record, we conclude the admission of Namanny's testimony concerning Jose Rodriguez's statement was harmless beyond a reasonable doubt. We therefore reject this claim of ineffective assistance of counsel.
C. "Mere Association" Instruction. Martinez also argues that trial counsel was ineffective for failing to request the uniform instruction on "mere association." Specifically, Martinez contends such an instruction was required in this case given his only involvement with Ricardo Valencia was for the purpose of his automobile business. We disagree.
After a careful review of the jury instructions, we conclude the jury was properly instructed on the applicable law of conspiracy and the State's burden of proof. Specifically, the jury was instructed that the State is required to prove more than a "[m]ere nearness to, or presence at, the scene of the crime" and more than "mere knowledge of the crime." As a result, Martinez has not demonstrated that his counsel's failure to request a "mere association" instruction was a breach of an essential duty. In light of the evidence summarized above, the record clearly establishes Martinez has failed to prove he was prejudiced by counsel's actions. We reject this claim of ineffective assistance of counsel.
D. Martinez's Pro Se Ineffective Assistance Claims. Martinez's supplemental pro se brief raises several ineffective assistance of counsel claims. Generally, ineffective assistance of counsel claims are preserved for postconviction relief proceedings to allow trial counsel an opportunity to defend the charge. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). We find that the record is sufficient for us to resolve these issues. After a careful review of the record, we find no merit in any of Martinez's claim. Accordingly, we reject these claims of ineffective assistance of counsel.
AFFIRMED.