Opinion
No. 3-279 / 02-0575
Filed June 13, 2003
Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.
Defendant-appellant Jerrold Molosky appeals his conviction and sentence, following retrial by a jury, for conspiracy to manufacture more than five grams of methamphetamine, in violation of Iowa Code section 124.401(1)(b) (1997) (Count I), possession of ephedrine or pseudoephedrine with intent to use as a precursor, in violation of section 124.401(4) (Count II), and receipt of a precursor (ephedrine or pseudoephedrine) with the intent to use in the manufacture of a controlled substance, in violation of section 124B.9 (Count III). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Defendant-appellant Jerrold Molosky appeals his conviction and sentence, following retrial by a jury, for conspiracy to manufacture more than five grams of methamphetamine, in violation of Iowa Code section 124.401(1)(b) (1997) (Count I), possession of ephedrine or pseudoephedrine with intent to use as a precursor, in violation of section 124.401(4) (Count II), and receipt of a precursor (ephedrine or pseudoephedrine) with the intent to use in the manufacture of a controlled substance, in violation of section 124B.9 (Count III). On appeal defendant claims his counsel rendered ineffective assistance for (1) failing to object to "potential yield" evidence; (2) failing to object to evidence seized at Gayle Howard's trailer on February 17, 1998; and (3) failing to object to State's Exhibit 73 and testimony regarding other stolen merchandise. We affirm but preserve one of defendant's ineffective assistance claims for possible postconviction proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS
Trial information charged defendant and codefendant Jennifer Bergmeier with committing the above offenses "on or about" February 11, 1998. The State's case against defendant included evidence that defendant and Bergmeier purchased Sudafed or an equivalent pseudoephedrine product in large quantities from Wal-Mart on that date. The State also included in its case evidence regarding surveillance and search of defendant's motel room and Bergmeier's automobile, also on February 11. Expert testimony offered by the State indicated chemicals and other items seized as a result of these searches were consistent with the manufacture of more than five grams of methamphetamine. Defense counsel did not object to testimony regarding the potential yield of these chemicals.
In addition to the February 11, 1998 evidence, the State also introduced evidence obtained from searches of Gayle Howard's residence on February 17, 1998 and Geraldine Fitzgerald's garage on October 26, 1998.
In the first appeal of this case we determined that evidence resulting from the February 17 search, subsequent to defendant's arrest, was substantially probative and relevant to defendant's commission of offenses charged on February 11. We consequently concluded the trial court did not abuse its discretion in allowing the admission of the February 17 evidence.
We determined, however, that the admission of evidence from the October 26, 1998 search was unfairly prejudicial to the defendant and remanded for a new trial.
Following a second jury trial, defendant was again convicted. On this appeal he claims his counsel was ineffective in several respects, specifically, (1) for failing to seek to exclude the potential yield evidence and to object to testimony regarding that evidence at trial; (2) for failing to object to the February 17, 1998 evidence as irrelevant and highly prejudicial; and (3) for failing to object to State's Exhibit 73 and other testimony regarding stolen merchandise.
II. SCOPE OF REVIEW
We review ineffective assistance of counsel claims de novo. State v. Osborn, 573 N.W.2d 917, 920 (Iowa 1998). To establish a claim of ineffective assistance of counsel, defendant must demonstrate, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from that failure. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). We may dispose of the claim if defendant fails to demonstrate either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). To sustain his burden of proof with respect to the duty element, defendant must overcome the strong presumption that counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. Smothers, 590 N.W.2d at 722. Miscalculated trial strategies and mere mistakes in judgment generally do not rise to the level of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). Thus, claims of ineffective assistance involving tactical or strategic decisions of counsel must be examined in light of all the circumstances to ascertain whether the actions were a product of tactics or inattention to the responsibilities of an attorney guaranteed defendant under the Sixth Amendment. Id.
The trial record is often inadequate for us to resolve claims of ineffective assistance of trial counsel raised on direct appeal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). For this reason we often preserve defendant's ineffective assistance of counsel claims for postconviction relief proceedings to allow for the development of a record on trial counsel's performance. Id.
III. ANALYSIS
Defendant first argues, based upon Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), that his counsel was in error for failing to seek to exclude the potential yield evidence and failing to object to testimony regarding potential yield at trial. The witnesses who testified to potential yield were Officer Schmidt of the Waterloo Police Department and Tri-County Drug Enforcement Task Force; Todd Jones, special agent with the Iowa Division of Narcotics Enforcement (DNE); Larry Wessels, sergeant with the Black Hawk County Sheriff's Office and veteran of the Tri-County Drug Enforcement Task Force; Scott Green, special agent in the DNE; and Nila Bremer, an Iowa Division of Criminal Investigation criminalist. Iowa Rule of Evidence 5.702 provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify to scientific, technical or other specialized knowledge for purposes of determining a fact in issue. Furthermore, the supreme court has held that potential yield evidence is reliable to support a conviction of conspiracy to manufacture methamphetamine, even if it is inadequate to support a conviction on an actual manufacturing charge. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999), cited in State v. Royer, 632 N.W.2d 905, 907-09 (Iowa 2001). As pursuit of this claim by defense counsel would not have been fruitful, we affirm on this issue and decline to preserve it for postconviction proceedings.
With respect to the claim that counsel was in error for failing to object to the February 17 evidence, we rely on our previous conclusion in the first appeal in this case that the February 17 evidence was in fact relevant and not overly prejudicial. State v. Molosky,No. 1-261 (Iowa Ct.App. Aug. 29, 2001). We decline to preserve this claim for postconviction proceedings.
As to defendant's final claim of ineffective assistance, that his attorney was in error for failing to object to State's Exhibit 73 and testimony regarding other stolen merchandise which could not be connected directly either to defendant or Ms. Bergmeier, we preserve this claim for possible postconviction proceedings so that the record may be more fully developed.