Opinion
No. 3-613 / 02-1469
Filed September 24, 2003
Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.
Scotty Ray McNeil appeals the judgment and sentence entered upon his conviction for delivery of a controlled substance. AFFIRMED.
Linda Del Gallo, Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Timothy N. Schott, County Attorney, and Ricki Osborn, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Scotty Ray McNeil appeals the judgment and sentence entered upon his conviction for delivery of a controlled substance, methamphetamine, in violation of Iowa Code section 124.401(1)(c)(6) (2001). McNeil contends his counsel was ineffective in failing to object to evidence that he attempted to convince the State's witness to change his testimony. He likewise contends his counsel was ineffective in failing to move to dismiss when the deadline for a speedy trial expired.
To succeed with a claim of ineffective assistance of counsel, a claimant must prove two elements. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). First, he must show that counsel failed to perform an essential duty. Id. Second, he must prove he was prejudiced by counsel's error. Id. We can affirm on appeal if either element is lacking. Id. While we generally preserve ineffective assistance claims on direct appeal to allow full development of the issues, we will resolve such claims if the defendant fails to demonstrate one of the two elements. State v. Pierson, 554 N.W.2d 555, 562 (Iowa Ct.App. 1996). McNeil was arrested and charged with selling methamphetamine to Harold Powell, who had agreed to assist the police in making controlled buys as part of a plea agreement. He was convicted of delivering methamphetamine on June 12, 2001, but was acquitted on a second charge of delivery stemming from a controlled buy on June 15, 2001. At trial, Powell testified without objection that McNeil approached him before his June 7, 2002 deposition and asked if Powell "knew what [he] was doing." Powell also stated McNeil told him he could "always change [his] story."
McNeil first contends counsel should have objected to Powell's testimony regarding McNeil's statements on June 7, 2002 as irrelevant and prejudicial pursuant to Iowa Rules of Evidence 5.402 and 5.403, as well as evidence of a prior bad act pursuant to rule 5.404( b). However, we conclude counsel had no duty to object to the evidence because it was offered to show admission by conduct, and was therefore admissible. See State v. Sufflebeam, 260 N.W.2d 409, 412 (Iowa 1977) ("An attempt by a party to improperly, even illegally, influence a witness is thought to be an admission by conduct.")
McNeil next contends counsel was ineffective in failing to move to dismiss when the speedy trial deadline expired. Iowa Rule of Criminal Procedure 2.33(2)( b) requires a defendant to be brought to trial ninety days after indictment unless the defendant has waived this right or good cause is shown. Here, the trial information was filed on March 6, 2002. Trial was to commence by June 5, 2002 in order for the requirements of rule 2.33(2)( b) to be met. McNeil filed a motion to sever the counts of the trial on June 13, 2002. Trial was scheduled June 25, 2002, at which time two of the State's witnesses were unavailable. The State then sought, and was granted, a continuance.
The State notes only eight days had passed between the speedy trial deadline and the filing of McNeil's motion to sever. The State contends McNeil must accept the passage of time reasonably necessary for deliberation and ruling on his own motion. However, trial was set for June 25 before the filing of McNeil's June 13 motion. Although the State argues a less important reason for the short delay in trial would suffice, no such reason is revealed in the record. While the record seems to suggest McNeil waived his right to speedy trial, the record as to this matter is likewise insufficient to resolve this issue. Accordingly,we preserve this issue for postconviction proceedings to allow full development of the facts. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978).