Opinion
No. 4-747 / 03-1655
Filed January 13, 2005
Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.
Defendant appeals from his conviction and sentence for possession of marijuana. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, J. Patrick White, County Attorney, and Victoria Dominguez, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Raynaro Pirtle appeals from his conviction and sentence for possession of marijuana. He contends there is insufficient evidence to support his conviction and his trial counsel was ineffective in failing to object to prosecutorial misconduct.
In the early morning hours of May 1, 2002, Pirtle was a passenger in a vehicle being driven by his friend, Trenton Fults. Fults was in the process of buying the vehicle from his aunt. Officer William Welch observed the vehicle speeding and activated his emergency lights to initiate a traffic stop.
When Officer Welch approached the vehicle, he smelled the strong odor of burned marijuana emanating from within. Fults reached into the center console of the vehicle to retrieve his license and registration information. Fults and Pirtle told Officer Welch they had just come from a party where marijuana was being smoked. The officer asked Fults and Pirtle to exit the vehicle while he conducted a search, to which Fults consented. Officer Welch did not locate marijuana during this search; however he said he saw a cigar in the center console.
Fults testified he was asked to exit the vehicle first, while Pirtle remained in the passenger seat. Pirtle testified they exited the vehicle at the same time. Officer Welch testified they exited at the same time.
Fults denied having smoked marijuana that night. He was given field sobriety tests, which he passed. Meanwhile, a drug-sniffing dog arrived at the scene of the traffic stop and sniffed inside the car. The dog hit on the cigar the officer had previously seen in the console. It was described as a six-inch cigarette filled with marijuana, also referred to as a "blunt." Both men denied owning or having knowledge of the marijuana.
Both men were arrested for possession of marijuana. Pirtle then agreed to lead officers to the location of the party. No illegal activity was discovered at the house Pirtle identified.
At Pirtle's trial, Officer Blomgren testified Pirtle told him he had smoked marijuana at the party earlier on the night of his arrest. Fults testified for the State that Pirtle asked him to "take the rap because I would be looking at less time [in prison]." Fults also testified that Pirtle called him a "faggot" and warned him "that I better watch my back or wait till he sees me because he's going to kick my ass."
Pirtle testified in his defense. He denied knowledge or possession of the marijuana. Pirtle also denied threatening Fults or telling any officer that he had smoked marijuana on the night of his arrest.
Because we find it dispositive, we first address the ineffective assistance of counsel claim. Pirtle contends his trial counsel was ineffective in failing to object to several instances of prosecutorial misconduct. We review this claim de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). Ordinarily, we preserve claims of ineffective assistance of counsel for postconviction proceedings to allow trial counsel to explain his or her actions. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, if the record is sufficient we will resolve the issue on direct appeal. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We find the record adequate in this case. To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
It is misconduct for a prosecutor to ask a defendant to comment on the veracity of another witness. State v. Graves, 668 N.W.2d 860, 872-73 (Iowa 2003). Here, the prosecutor conducted the following cross-examination of Pirtle:
Q: Do you truly believe that two officers who have a fairly good work history are going to put their livelihood and their bread and butter on the line to frame you for possession of marijuana, to say something that was not true? A: I'm not saying they're framing me, but I know I didn't say that to them.
Q: So what you're saying is that they're purposefully lying about it? A: I'm not saying that either. I'm just saying that I never told them that.
Q: Where do you think that two separate officers at two separate times get that statement?
Defense Counsel: No. There was no two separate officers at this trial that Mr. Pirtle said anything to.
Court: Let's move on to something else, please.
Q: It was your testimony that you never said to Officer Welch —
Defense Counsel: Objection, Judge. You've asked that counsel move on to something else.
Court: Please ask another question.
. . .
Q: Do you believe that the officers that came in here testified truthfully?
In addition, the prosecutor stated in closing argument:
Either the statements were made and now he's denying them because, of course, it doesn't look quite good if you're admitting that you did smoke marijuana and that you did tell the officer that, or what the defendant is saying is that the officer is making it up and he just — they're just making it up because they don't like it, because they want to frame him, for whatever reason. How reasonable is it for a person who has nothing to gain to place their job in jeopardy, to lose their job for a possession of marijuana case?
No objection was made to the closing argument.
We conclude the prosecutor's conduct in asking Pirtle if other witnesses were lying was inappropriate. Counsel was ineffective in failing to object to this conduct.
Next, we must determine whether there is a "reasonable probability the prosecutor's misconduct prejudiced, inflamed, or mislead the jurors so as to prompt them to convict the defendant for reasons other than the evidence introduced at trial and the law as contained in the court's instructions." Graves, 668 N.W.2d at 877. In making this determination, we consider (1) the severity and pervasiveness of the misconduct; (2) the significance of the misconduct to the central issues; (3) the strength of the State's evidence; (4) the use of cautionary instructions; and (5) the extent to which the defense invited the misconduct. Id. Because there was no cautionary instruction or any claim that Pirtle invited the prosecutor's misconduct, we confine our discussion to the first three of these considerations. The evidence supporting Pirtle's conviction is tenuous. Pirtle was not the owner or driver of the vehicle in which the marijuana was found. He had no other belongings in the vehicle. No fingerprints were taken from the blunt. In order to find Pirtle was in possession of the marijuana, the jury would have to conclude Pirtle placed the marijuana in the console while Fults was being questioned outside the vehicle. However, Pirtle and Officer Welsh testified the two exited the vehicle at the same time.
Because the evidence supporting Pirtle's conviction was weak at best, we conclude the prosecutor's actions were prejudicial to Pirtle. See id. at 883 (holding prejudice was established in case of prosecutorial misconduct where evidence of defendant's participation in the manufacture of marijuana and of his ownership of the box of marijuana was not strong). Accordingly, we reverse Pirtle's conviction and sentence for possession of marijuana and remand for new trial.