Opinion
No. 1-881 / 00-0445.
Filed May 15, 2002.
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison (motion to compel testimony) and Robert J. Blink (trial and sentencing), Judges.
Obell Vanover appeals a conviction for delivery of a controlled substance in violation of Iowa Code section 124.401(1)(c)(3) (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Obell Vanover appeals a conviction for delivery of a controlled substance in violation of Iowa Code section 124.401(1)(c)(3) (1999). He contends (1) the trial court erred in failing to grant requested entrapment jury instructions, (2) the trial court erred in not granting his motion for judgment of acquittal based on insufficiency of the evidence, including the State's failure to rebut his "take-back entrapment" claim, (3) the trial court erred in refusing to grant his request for immunity for defense witness Rick Roby, and (4) the trial court abused its discretion in allowing evidence of his prior drug conviction. He argues his trial counsel was ineffective in failing to (1) raise the issue that his rights under the Confrontation Clause were violated by Roby's refusal to testify, (2) advise him or have the court advise him of the perils of proceeding to trial while dressed in jail clothing or to move the court for funds with which to purchase suitable clothing, and (3) timely file a notice of defense of entrapment. We affirm.
I. BACKGROUND FACTS.
Based on the record, the jury could reasonably have found the following facts. On June 9, 1999, Scott Leighter, a special agent for the Iowa Division of Narcotics Enforcement, parked his unmarked car in the driveway north of Obell Vanover's home in Des Moines. Leighter was in plain clothes. Rick Roby accompanied Leighter. Leighter honked his horn, and Vanover approached the passenger side of the vehicle where Roby was sitting. Leighter gave Vanover $500. Vanover went into his residence and came out with crack cocaine. Vanover handed Leighter an eight-ball (1/8 ounce) of crack cocaine. Vanover told Leighter that for the payment of an additional $200 that was owed he could get a full ounce of crack cocaine. Later that day, Leighter called Vanover and offered to pay him some of the $200. An hour later Leighter gave $100 to Vanover. The next day, Leighter arrived at Vanover's residence to pay off the remaining $100 and get half an ounce to a full ounce of crack cocaine, but Vanover saw police nearby and asked if Leighter was a cop. Leighter left and did not meet with Vanover again.
Vanover testified that Leighter came to his house with Roby on June 9, 1999, and that Vanover demanded of Roby "where's the money you owe me." Leighter gave Roby $500, and Roby gave Vanover the money. Roby asked Vanover if he could find Leighter an ounce, to which Vanover replied "possibly." Vanover testified that upon payment of the $500, he went into the house, retrieved a package that Roby left with him about three weeks earlier, and gave the package to Roby. The package contained crack cocaine. He testified that Leighter called him later on June 9, asking if he had seen Roby, and that Leighter also came to his house. Vanover testified he saw the unmarked police car the next day, but he stated that he refused Leighter's offer to go to his car for money that was, presumably, to purchase the drugs that Leighter had requested through Roby the previous day.
The State charged Vanover with delivery of a controlled substance, a class "C" felony. A jury found Vanover guilty of the charged offense. The court sentenced him to an indeterminate thirty-year term of imprisonment, an enhancement pursuant to section 124.411(1) because he had a prior controlled substance conviction. The court ordered that the sentence be served consecutively to a pending parole revocation. Vanover appeals.
II. "TAKE-BACK ENTRAPMENT."
Vanover contends that the trial court erred in (1) failing to grant requested entrapment jury instructions, and (2) failing to grant his motion for judgment of acquittal based upon the State's failure to rebut his "take-back entrapment" claim. He argues he was merely returning the contraband left at his house to Roby, who was undoubtedly working as an agent of the State. He asserts that the "take-back entrapment" defense appears to be appropriate here, because the government agent, Roby, supplied the drugs to him and later reappropriated the drugs from him. He contends the State has failed to rebut the evidence of the "take-back entrapment," and thus he is entitled to dismissal as a matter of law based on his motion for judgment of acquittal, or at least a "take-back entrapment" jury instruction.
A. Scope of review. We review a sufficiency-of-the-evidence argument for the correction of errors at law. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). We also review jury instructions for the correction of errors at law. Iowa R. App. P. 6.4; Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). The standard of review for jury instructions is whether prejudicial error by the trial court has occurred. Thavenet v. Davis, 589 N.W.2d 233, 236 (Iowa 1999). A trial court must instruct on all material issues raised by the evidence. State v. Broughton, 425 N.W.2d 48, 51 (Iowa 1988). In order to obtain such an instruction, the defendant must produce substantial evidence to support it. Id. at 52. "Substantial" evidence means evidence which could convince a rational finder of fact that the defendant has established his affirmative defense. Id.
B. "Take-back entrapment" jury instruction. Entrapment occurs when a peace officer induces an otherwise law-abiding citizen to commit an offense. Jim O. Inc. v. City of Cedar Rapids, 587 N.W.2d 476, 479 (Iowa 1998). To rise to the level of prohibited activity, the officer's conduct must involve "excessive incitement, urging, persuasion, or temptation." Id. Conduct that merely affords a person an opportunity to commit an offense is not entrapment. Id. If an accused produces evidence disclosing (1) the government, through an agent or informer, supplied drugs to the defendant, and (2) the government, through an agent or informer, later reappropriates any of those drugs from the accused, then a "take-back entrapment" is shown. State v. Overmann, 220 N.W.2d 914, 917 (Iowa 1974).
We have serious doubt concerning whether there is substantial evidence that when Roby delivered the crack cocaine to Vanover, if he in fact did so, Roby was acting as a government agent or informer. However, we need not decide that question because we conclude there is no substantial evidence that Roby induced Vanover to commit the crime of delivery of a controlled substance. There is no substantial evidence that Roby's conduct involved excessive incitement, urging, persuasion, or temptation. Instead, according to Vanover's testimony at trial, Roby asked if Vanover had the package Vanover was holding for him. Vanover went into his house and came out with Roby's package that contained crack cocaine. This is not evidence of improper inducement, and there is no other evidence in the record supporting such inducement. We affirm on this issue.
C. Motion for judgment of acquittal. Because there is no substantial evidence that Roby improperly induced Vanover to commit a crime, we conclude the trial court did not err in failing to grant Vanover's motion for judgment of acquittal based on his argument that he was entitled to a dismissal as a matter of law because the State failed to rebut the evidence of a "take-back entrapment." We affirm on this issue.
III. SUFFICIENCY OF THE EVIDENCE.
Vanover contends that the trial court erred in failing to grant his motion for judgment of acquittal based on insufficiency of the evidence. He argues the evidence was insufficient to prove that he delivered a controlled substance and that he knew that the substance was crack cocaine.
A. Scope of review. Because a jury verdict is binding on this court when supported by substantial evidence, appellate review of Vanover's sufficiency-of-the-evidence argument is for the correction of errors at law. Speicher, 625 N.W.2d at 740. Evidence is substantial if a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). The jury was entitled "to give as much weight to the evidence as, in its judgment, such evidence should receive." State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996). "Direct and circumstantial evidence are equally probative." Iowa R. App. P. 6.14(6)(p). This court reviews the evidence in a light most favorable to the State. Casady, 597 N.W.2d at 804. This includes all legitimate inferences that may fairly and reasonably be deduced from the evidence. Id. We consider all the evidence, not just the evidence supporting the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998).
B. Merits. The elements of delivery of crack cocaine are that (1) the defendant intentionally delivered crack cocaine, and (2) the defendant knew that the substance he delivered was crack cocaine. Iowa Code § 124.401(1); see also Iowa Crim. Jury Instructions 2300.1 (2001). Vanover testified that he handed Roby a package containing an off-white looking rock in a piece of plastic. Vanover also testified that he "figur[ed] it's probably drugs [in the package] from my-from being familiar of selling drugs when I did it. I-it looked like drugs. . . . It's similar from what I've sold and been around. It looked just like crack cocaine." We conclude there is substantial evidence to support the jury's finding that Vanover intentionally delivered a substance he knew to be crack cocaine. We affirm on this issue.
IV. IMMUNITY FOR ROBY.
Vanover contends that the district court erred in refusing to grant his request for a grant of immunity for Roby. The State contends Vanover has failed to preserve error.
"Our error preservation rule requires that issues must be presented to and passed upon by the district court before they can be raised and decided on appeal." State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995). Vanover moved the court to compel Roby's testimony on the ground that Roby did not have the Fifth Amendment privilege against self-incrimination available to him. Vanover did not request that the court grant Roby immunity. We agree with the State that error has not been preserved. Accordingly, we do not address this issue.
V. EVIDENCE OF PRIOR CONVICTION.
Vanover contends that the trial court abused its discretion in allowing evidence of his prior conviction for delivery of crack cocaine in 1993. He argues it is not relevant because he pled guilty in the 1993 case, but exercised his right to trial in this case. He argues that the State offered the evidence merely to prove that he acted in conformity with his prior crime. He maintains that even if the prior crime is relevant, the trial court failed to address the concerns of Iowa Rule of Evidence 5.403.
A. Scope of review. Our scope of review is for the correction of errors at law. Iowa R. App. P. 6.4. We review the admission of other-crimes evidence for an abuse of discretion. State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001).
B. Merits. Iowa Rule of Evidence 5.404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
There must be some factual issue raised to permit evidence of other crimes under the noted exceptions. Castaneda, 621 N.W.2d at 440.
Courts must engage in a two-step process to determine whether such challenged evidence is admissible. State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001). The court must first decide whether the other crimes evidence is relevant to a legitimate factual issue in dispute. Id. If it is not relevant, then the challenged evidence is inadmissible. Castaneda, 621 N.W.2d at 440. However, if the court finds that the challenged evidence is relevant, the court must then decide whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Id.; Iowa R. Evid. 5.403. Even relevant evidence is excluded if there is an affirmative finding in the balancing process. Castaneda, 621 N.W.2d at 440. We believe the trial court's ruling was presumptively based on the correct legal standard. State v. Miles, 346 N.W.2d 517, 519 (Iowa 1984).
Usually a defendant's knowledge regarding the activity that makes up a criminal charge is crucial to the State's case. State v. Mendiola, 360 N.W.2d 780, 782 (Iowa 1985). When knowledge is an element of the offense and the defendant's prior crime tends to prove knowledge with respect to the current crime, the prior act meets the basic standard of relevancy. State v. McDaniel, 265 N.W.2d 917, 921 (Iowa 1978) ("[The defendant's prior deliveries of drugs] also helped establish defendant's knowledge that the bag contained drugs."). Defendant here was charged with delivery of a controlled substance. According to the jury instruction, the State was required to prove Vanover knew the substance he delivered was crack cocaine. His knowledge is crucial to the charge. Mendiola, 360 N.W.2d at 782; State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981). Therefore, we conclude the other-crime evidence is relevant for the legitimate purpose of showing Vanover's knowledge.
In reviewing an admissibility determination, we must apply an appropriate balancing test. However, we decline Vanover's apparent suggestion to apply the balancing test applied in State v. Daly, 623 N.W.2d 799 (Iowa 2001). In Daly the supreme court noted the obvious difference in the language of rules 403 and 609 (now 5.403 and 5.609 respectively) with respect to their probative-value/prejudice analysis concerning an accused as a witness. Daly involved the use of prior convictions for impeachment purposes under Iowa Rule of Evidence 5.609 and elements of the test, such as the prior conviction's bearing on veracity, are uniquely geared to the impeachment context. Rather, in a rule 5.403 analysis we apply the standards set forth in State v. Wade, 467 N.W.2d 283 (Iowa 1991). See State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001). The judge must consider
on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other hand, the degree to which the jury will probably be roused by the evidence to overmastering hostility.Wade, 467 N.W.2d at 284-85 (citation omitted).
We will reverse a trial court's decision concerning admissibility of other crimes, wrongs, or acts evidence only when we find a clear abuse of discretion. Castenada, 621 N.W.2d at 440. We conclude that the trial court did not abuse its discretion in applying the balancing test here. First, the State's actual need for the evidence was great, as Vanover testified that he thought the substance in the package was probably crack cocaine, but he did not admit that he knew it was crack cocaine. Second, Vanover pled guilty to the other crime, and thus the convincingness that the other crime was committed and that he was the actor is great. Third, the strength of the other-crime evidence is great in supporting whether Vanover knew the substance in this case was crack cocaine. Last, the jury would not be roused to overmastering hostility by the other-crime evidence.
The jury did not hear any details of the crime. We also note that the trial court gave a limiting instruction, advising the jury that the other-crime evidence could only be used to show Vanover's intent and knowledge. Only in extreme cases is such an instruction insufficient to nullify danger of unfair prejudice. State v. Plaster, 424 N.W.2d 226, 232 (Iowa 1988). This is not an extreme case. We affirm on this issue.
VI. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Vanover contends his trial counsel was ineffective in failing to (1) raise a Confrontation Clause issue based on Roby's refusal to testify, (2) advise him or have the court advise him of the perils of going to trial in jail clothing or move for funds to purchase clothing, and (3) give timely notice of an entrapment defense.
A. Scope of review. A defendant is entitled to the effective assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). Because a claim of ineffective assistance of counsel implicates constitutional rights, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
B. Merits.
To establish an ineffective assistance of counsel claim, the 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). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
An ineffective assistance claim may be disposed of if the defendant fails to prove either of the two prongs of such claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Therefore, we need not determine whether counsel's performance is deficient before undertaking the prejudice determination. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In order to prove prejudice, the defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. "A `reasonable probability is a probability sufficient to undermine confidence in the outcome' of the defendant's trial." State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997) (quoting State v. Kraus, 397 N.W.2d 671, 673 (Iowa 1986)).
While we often preserve ineffective assistance claims for possible postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. Casady, 597 N.W.2d at 807. Neither party suggests we should preserve Vanover's ineffective assistance claims for postconviction proceedings, the State asserts the record is adequate to address them, and we believe the record is adequate to address them.
1. Confrontation Clause. The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. Amend VI; see also Iowa Const. art. 1, § 10. This amendment was made applicable to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926 (1965). There are four components to the Confrontation Clause: physical presence, oath, cross-examination, and observation of demeanor by the factfinder. Maryland v. Craig, 497 U.S. 836, 845-46, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678 (1990).
We find no Confrontation Clause violation here. Roby was not called as a witness at trial. Nor did he testify through a deposition, affidavit, out of court statement, or in any other manner. Because Roby was not a witness against Vanover, the Confrontation Clause is not implicated. Trial counsel had no duty to raise this meritless issue. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
2. Jail clothing. Defendants are entitled to the indicia of innocence in the presence of the jury. State v. Wilson, 406 N.W.2d 442, 448 (Iowa 1987). The State cannot compel a defendant to stand trial in identifiable prison clothing. Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126, 135 (1976). Requiring a defendant to appear in prison clothing creates an unacceptable risk the jury may be influenced in their deliberations. Id. at 504-05, 96 S.Ct. at 1693, 48 L.Ed.2d at 130-31. The practice is, therefore, inherently prejudicial. See Wilson, 406 N.W.2d at 449. Conversely, a defendant may elect to wear prison clothing, and cannot later claim prejudice. Estelle, 425 U.S. at 507-08, 96 S.Ct. at 1694-95, 48 L.Ed.2d at 132-33; State v. Johnson, 534 N.W.2d 118, 126 (Iowa Ct. App. 1995).
The State and court did not compel Vanover to appear before the jury in his jail clothing. Prior to commencement of the trial the trial judge raised a concern that Vanover was wearing jail garb and not street clothes. Vanover had been unable to contact his wife and get clothes from her or relatives, and the clothes he was arrested in were "pretty rough work clothes." Vanover chose not to seek a continuance or any other measure to obtain clothes. Vanover and his counsel specifically discussed the issue, and waived any objections to Vanover appearing before the jury in his jail clothes. Vanover was not compelled to appear in jail clothing.
Furthermore, Vanover's jail clothing told the jury nothing more than that to which Vanover testified himself. He testified that he was currently living in jail at the time of trial, and he had been living there for seven months. He also testified that he was on parole when the alleged crime was committed in this case and at the time of trial. We conclude Vanover cannot show prejudice.
3. Notice of defense of entrapment. As we noted above, the facts of this case do not support a defense of entrapment. Therefore, this claim is without merit, and we do not address it further.
VII. CONCLUSION.
We conclude that there was no substantial evidence of a "take-back entrapment," and thus the trial court did not err in failing to grant the requested entrapment jury instructions or in failing to grant Vanover's motion to dismiss on this ground. We find substantial evidence to support the jury's finding that Vanover intentionally delivered crack cocaine. We determine Vanover failed to preserve error on his claim that the trial court erred in refusing to grant a request for immunity for Roby. We conclude the trial court did not abuse its discretion in allowing evidence of Vanover's prior delivery conviction. We find Vanover has not established that trial counsel was ineffective. We affirm.
AFFIRMED.