No. 5-175 / 04-1199.Court of Appeals of Iowa.
March 31, 2005.
Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.
Keith Morrison appeals the district court’s denial of his request for postconviction relief. AFFIRMED.
Mark Denniston of Stuyvesant Benton, Carlisle, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Robert T. DiBlasi, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
HUITINK, P.J.
I. Background Facts Proceedings
Keith Morrison was convicted of possession of crack cocaine with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(2) (2001). The record made at his trial indicates that on July 7, 2001, police officers Douglas Brown and Lillie Miller-Sistrunk responded to a complaint of drug activity at a Des Moines residence. As they approached, Morrison exited the residence and fled on foot. When Morrison was apprehended, he was carrying a crack pipe and a vial of crack. An additional search produced a plastic bag and a napkin containing crack cocaine. Officers found a total of 4.4 grams of crack cocaine on Morrison’s person.
Although Morrison admitted possession of crack cocaine, he denied any intent to deliver, claiming the drugs seized were for personal consumption.
At trial, Officer Brown testified:
Q. And the quantity of crack cocaine contained in State’s Exhibit 1, is that consistent with personal use cocaine? A. No, with my experience it’s — it’s a little high, the amount.
Q. And why do you say that? A. Just what we have here is 5 grams, approximately around five grams.
Officer Miller-Sistrunk testified:
Q. . . . Estimate dosage units, how many — how many different times could you smoke the crack cocaine that’s in there based on your diagram? A. Quite a few based on my diagram. There’s some larger rocks that I’m sure would be chunked off into smaller pieces.
Q. Because it is based on your expertise that they chunk off larger rocks into smaller rocks? A. That’s correct.
Keith Hoferman, a narcotic investigator, testified:
Q. And Officer, based on your training and experience, is the amount, the quantity of crack cocaine that’s contained in State’s Exhibit 1 consistent with personal use of cocaine? A. No.
Q. What’s it consistent with? A. Consistent with dealing cocaine, drug dealing.
Q. And why do you say that? A. Because of the size of it, the amount carried. The rock in the plastic container could be several numerous chunks that could be broken off for individual sale.
Morrison’s trial counsel did not object to any of the foregoing testimony. After the jury returned a verdict finding Morrison guilty of possession of crack cocaine with intent to deliver, Morrison filed a “motion to override the jury’s verdict.” The district court treated that motion as a motion in arrest of judgment and ultimately denied it. We affirmed Morrison’s conviction on direct appeal, but remanded for resentencing State v. Morrison, No. 01-1982 (Iowa Ct.App. Mar. 12, 2003).
Morrison subsequently filed a petition for postconviction relief, claiming he was denied his Sixth Amendment right to effective assistance of trial and appellate counsel. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). More specifically, Morrison alleged:
A. Counsel was ineffective for failing to file a motion in Limine and/or objecting to the admission of testimony that was entered pertaining to prior bad acts that are not supported by evidence.
B. Counsel was ineffective for failing to object to opinions made by the State’s witnesses concerning this Applicant’s guilt.
C. Trial counsel was ineffective for failing to motion [sic] for a new trial based on the verdict being contrary to the weight of the evidence.
. . . .
A. Applicant’s appellate counsel was ineffective for failing to raise the proper claims and/or preserving such, during this applicant’s direct appeal, i.e., ineffective assistance of trial counsel with specific designations.
Postconviction counsel subsequently filed an amended application for postconviction relief, including the following allegations:
5. Trial Counsel Failed to Object to Improper Expert Opinion Testimony.
6. Trial Counsel Failed to File a Clearly Captioned Motion for New Trial under Iowa Rule of Criminal Procedure 2.24(2)(b)(6), Make Arguments in Support Thereof, or Obtain a Ruling from the Judge Under the Weight of the Evidence Standard.
. . . .
Appellant [sic] counsel failed to preserve the Applicant’s ineffective assistance of trial counsel claim that if the motion was not considered to be a motion for new trial under the Ellis standard, trial counsel failed to perform an essential duty to properly caption Defendant’s request, or elaborate on what counsel believed to be the correct legal standard under which Defendant’s request should be considered.
The State moved for summary judgment pursuant to Iowa Code section 822.6. The trial court’s resulting ruling provides:
Similar to the officer’s testimony in Shumpert,
Officer Hoferman did not testify about whether Morrison possessed the requisite intent to deliver. See Shumpert, 554 N.W.2d [250,] 254 [(Iowa 1996)]. Rather, Officer Hoferman testified that the quantity of crack cocaine seized from Morrison was consistent with drug dealing; in other words, Officer Hoferman testified that the quantity seized was consistent with the modus operandi of the offense. Id. Officer Hoferman’s testimony included such phrases as “consistent with drug dealing” and “the rock in the plastic container could be several numerous chunks that could be broken off for individual sale.” . . . Officer Hoferman did not offer an opinion as to Morrison’s guilt on the charge of possession of a controlled substance with intent to deliver.
. . . .
The Court finds that even if Officer Hoferman’s expert testimony was an opinion as to Morrison’s guilt or innocence and trial counsel should have objected to it as such, Morrison has still not met the burden of proving a claim for ineffective assistance of counsel. . . . Even without Officer’s Hoferman’s testimony, the testimony of Officers Brown and Miller-Sistrunk still demonstrates that the quantity of crack cocaine seized from Morrison is not consistent with personal usage. . . . Therefore, the Court finds that no genuine issue of material fact exists as to whether Morrison’s trial counsel’s failure to object to Officer Hoferman’s expert testimony or appellate counsel’s failure to raise the issue on direct appeal supports Morrison’s claim for ineffective assistance of counsel. Summary disposition of Morrison’s post-conviction relief application is appropriate on this issue.
The postconviction court also rejected Morrison’s claims concerning failure to properly caption and argue Morrison’s motion for a new trial. The court’s ruling on that issue states:
The Court finds that even if Morrison’s motion had been properly captioned a Motion for New Trial and the trial court had considered the motion under the Ellis standard, there is not a reasonable probability that the result of the proceeding would have been different.
The State’s motion for summary judgment was granted and Morrison’s application for postconviction was dismissed, resulting in this appeal.
On appeal, Morrison raises the following issues:
I. WHETHER APPLICANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON TRIAL COUNSEL’S FAILURE TO OBJECT TO IMPROPER EXPERT OPINION CONCERNING THE QUANTITY OF DRUGS POSSESSED BY APPLICANT?
II. WHETHER APPLICANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON TRIAL COUNSEL’S FAILURE TO PROPERLY CAPTION AND ARGUE APPLICANT’S MOTION FOR NEW TRIAL UNDER IOWA RULE OF CRMINAL PROCEDURE 2.24(2)(b)(6)?
II. Standard of Review.
Our review of postconviction relief proceedings is for correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60
(Iowa 2002). We review ineffective assistance of counsel claims de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999).
III. Error Preservation Issue.
We initially reject the State’s argument that Morrison waived his ineffective assistance of counsel claims by failing to raise them on direct appeal. Because the trial court’s judgment dismissing Morrison’s postconviction relief petition was filed on August 20, 2004, Morrison was no longer required to preserve his ineffective assistance of counsel claims by raising them on direct appeal. See Iowa Code § 814.7 (effective July 1, 2004).
IV. Summary Judgment.
Iowa Code section 822.6 provides that a court may summarily dismiss a postconviction relief action when “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” The Iowa Rules of Civil Procedure governing summary judgment are controlling in these circumstances. Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002). The State, as the moving party has the burden of showing the nonexistence of a material fact, and the court considers the evidence in the light most favorable to the party opposing the motion. Id.
For Morrison to prevail on his ineffective assistance of counsel claim, he must prove (1) his attorney failed to perform an essential duty and (2) prejudice resulted to the extent he was denied a fair trial. See State v. Ceaser, 585 N.W.2d 192, 195
(Iowa 1998). We therefore review the summary judgment record to determine whether Morrison is unable, as a matter of law, to prove either prong of his ineffective assistance of counsel claim.
V. Opinion Testimony.
As noted earlier, Morrison claims his trial counsel should have objected to expert opinion testimony by police officers that the amount of drugs he possessed was consistent with dealing drugs.[1] He argues that this testimony amounted to an impermissible opinion on the ultimate issue of his guilt or innocence.
Under Iowa Rule of Evidence 5.704, opinion testimony, otherwise admissible, is not objectionable because it embraces an ultimate issue. In re Detention of Palmer, 691 N.W.2d 413, 417 (Iowa 2005). A witness, however, “cannot opine on a legal conclusion or whether the facts of the case meet a given legal standard.” Id.
This is because the witness and the jury may not understand the legal standards used. Id.
There is a fine line between testimony concerning the modus operandi of drug dealers and opinion testimony on the guilt or innocence of a defendant. State v. Vesey, 482 N.W.2d 165, 167
(Iowa Ct.App. 1991). We have previously stated:
This fine line is especially apparent in cases where the fighting issue is whether the accused possessed drugs with the intent to sell. This is because the quality and quantity of drugs, the manner of packaging, the manner of secretion, the presence of drug paraphernalia, and many other circumstances may reflect whether drugs are possessed for personal use or for distribution. However, the average juror is normally unaware of the significance of these circumstances, and may not appreciate how they would signify an intent to possess for personal use or for distribution. Thus, the prosecutor frequently calls an expert to provide testimony to help the jury in understanding evidence of drug packaging, drug properties, and the like, and determining the element of intent.
State v. Dinkins, 553 N.W.2d 339, 341 (Iowa Ct.App. 1996) (citations omitted). Such testimony is admissible if “it is an opinion that the evidence in the case is consistent with selling drugs, and is properly admitted as a comparison for the jury, not an opinion of guilt.” Id. at 342 (citing State v. Olson, 315 N.W.2d 1, 7 (Iowa 1982)).
Here, the police officers testified the quantity of drugs possessed by Morrison was consistent with drug dealing. The witnesses did not opine or otherwise testify that Morrison was guilty of possession of crack cocaine with intent to deliver. Under these circumstances, the postconviction court correctly determined, as a matter of law, that trial counsel had no duty to make meritless objections to the challenged testimony. We affirm on this issue.
VI. Motion for New Trial.
Morrison contends trial counsel should have moved for a new trial because the jury’s verdict was against the weight of the evidence. The record simply does not support that contention. There is abundant evidence indicating that the quantity of crack cocaine Morrison possessed was more than that required for Morrison’s personal consumption. Moreover, evidence that some of the crack cocaine had been broken down into smaller portions weighs in favor of the jury’s verdict. We, like the trial court, conclude Morrison’s ineffective assistance of counsel claim fails as a matter of law because trial counsel had no duty to make a meritless motion for a new trial. We also affirm on this issue.
We need not consider Morrison’s claims concerning appellate counsel because the resolution of his ineffective assistance of trial counsel claims is dispositive.
The judgment of the trial court dismissing Morrison’s application for postconviction relief is affirmed in its entirety.
AFFIRMED.