No. 4-103 / 03-0395Court of Appeals of Iowa.
April 28, 2004.
Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.
John Edward Buchanan, Jr. appeals from his conviction, following jury trial, for homicide by vehicle in violation of Iowa Code section 707.6A(1) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Jennifer Miller, County Attorney, and Raymond Reel, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Miller, JJ.
MILLER, J.
John Edward Buchanan, Jr. appeals from his conviction, following jury trial, for homicide by vehicle in violation of Iowa Code section 707.6A(1) (2001). He contends (1) the trial court erred in denying his motion to suppress the evidence obtained from the seizure of a specimen of his blood, (2) the evidence was insufficient to support a finding of guilt of the offense of homicide by vehicle based on the “under the influence of alcohol” alternative, and (3) his trial counsel rendered ineffective assistance. We affirm his conviction and preserve the specified claim of ineffective assistance of counsel for a possible postconviction proceeding.
I. BACKGROUND FACTS AND PROCEEDINGS.
On March 26, 2002 at approximately 2:30 p.m. Buchanan was driving a one-ton pick-up truck and pulling an eighteen to nineteen foot trailer for the purpose of delivering tires for A-1 Quality Tires. In order to avoid driving the truck and trailer through Marshalltown, Buchanan headed south on Zeller Avenue, a gravel road, toward Iowa City. Ryan Ruopp was heading east on 110th Street at the same time when the two vehicles collided at the intersection of Zeller Avenue and 110th Street. There were no stop or yield signs at the intersection of Zeller and 110th. However, there is no dispute that Buchanan was to the left of Ruopp and thus would have had the duty to yield to Ruopp at the intersection. See Iowa Code §§ 321.319, 321.321. Buchanan struck Ruopp’s vehicle on the driver’s side and apparently the force of the collision flipped Ruopp’s vehicle on its top in the ditch. Ruopp suffered severe injuries in the accident, resulting in his death.
Approximately an hour after the accident, at 3:30 p.m., Deputy Doug Marshall went to the hospital to investigate the accident and speak with Buchanan. Buchanan was in a bed in the emergency room, but Deputy Marshall testified he was able to talk with him and understand him without any problems. Deputy Marshall detected the order of alcohol on Buchanan’s breath and testified that Buchanan admitted to having a couple of beers. Buchanan then began to vomit and the smell of alcohol became stronger. Marshall requested first a blood specimen and then a urine specimen but Buchanan refused both. Ultimately Marshall obtained and executed a search warrant for a blood specimen. Alcohol analysis of the blood specimen showed Buchanan had an alcohol concentration of .104.
Using the result of the analysis and “back extrapolation,” the State concluded that Buchanan had been under the influence of alcohol at the time of the accident and charged him, by amended trial information, with homicide by vehicle by operating a motor vehicle under the influence of alcohol or a drug or a combination of such substances or while having an alcohol concentration of .10 or more, in violation of Iowa Code section 707.6A(1) (2001). Buchanan filed a motion to suppress all evidence obtained pursuant to the warrant for the body specimen contending, among other things, that the warrant was invalid because it incorrectly identified the name of the person from whom the blood specimen was to be drawn as the victim, Ryan Ruopp, and thus the warrant did not provide a sufficiently particular description of the person or place to be searched. The district court denied Buchanan’s motion to suppress.
Although the court recognized that the magistrate incorrectly identified the name of the person from whom to secure the specimen as Ruopp at the bottom of the warrant, the court found the warrant also correctly identified Buchanan as the defendant two separate times and identified Ruopp as the decedent. Therefore, the court determined the mistake was merely a clerical error and, because the defendant was correctly named in some places on the warrant, a careful reading of the warrant made it clear “that the misnomer is indeed a mistake.” The court concluded the warrant described the person to be searched with sufficient particularity to enable the deputy to locate and identify the person with reasonable effort.
A competency evaluation was conducted due to Buchanan’s head injuries and, following the evaluation, all parties agreed he was competent to stand trial. The State filed a second amended trial information charging Buchanan solely with the alternative of homicide by vehicle while under the influence of alcohol or a drug or a combination of such substances. See Iowa Code §§707.6A(1), 321J.2(1)(a). The case proceeded to jury trial.
Based upon his conversations with Buchanan and further investigation, Deputy Marshall testified that he believed Buchanan had delivered tires shortly after 1:00 p.m. in Union, Iowa and left Union at approximately 1:20 p.m. Marshall testified that Buchanan had told him that after leaving Union he stopped for lunch at a convenience store and had a sandwich and a couple of beers. However, Marshall was unable to locate anyone, at a convenience store or otherwise, who had seen Buchanan between approximately 1:20 p.m. and when the accident occurred at about 2:30 p.m. In addition, Marshall testified that there was no evidence of the lunch or beers in Buchanan’s vehicle. Deputy Jerry Allen testified it is approximately seventeen miles from Union to the intersection of 110th Street and Zeller Avenue. Buchanan testified that due to the head injuries he sustained in the accident he does not remember any of the events from the day of the accident.[1]
Orville Berbano from the Iowa Division of Criminal Investigation Criminalistics Laboratory testified as an expert witness for the State. He testified about how alcohol is processed by the human body and how “back extrapolation” is used to take a known alcohol concentration result and go backwards in time to determine what the concentration would have been at an earlier time. Mr. Berbano performed such calculations on the results of the alcohol analysis performed on the blood specimen taken from Buchanan at the hospital. Based on Buchanan’s tested alcohol concentration of .104, and a range of rates at which studies show the human body eliminates alcohol, Berbano testified that Buchanan’s alcohol concentration at the time of the accident, approximately three hours prior to when the sample registering .104 was taken, would have been within the range of .149, at the low end, and .164, at the high end.[2] Berbano also testified that some studies have shown there is a measurable impairment of driving at an alcohol concentration of .050, that an alcohol concentration of .08 is the “level of intoxication” used by the federal government and most states, and that in his expert opinion at an alcohol concentration of .08 a person’s driving would be impaired.
After the jury was excused for the weekend one of the jurors, Merle Starn, took it upon himself to conduct an investigation of laws he felt were relevant to the case. When this was brought to the attention of the court, Mr. Starn was examined under oath by the court and counsel. He testified that he read a “driver’s license manual” in order to determine the law regarding yielding the right-of-way, and called the County Sheriff, the Marshalltown Police Department, and the County Attorney’s Office seeking similar information. The court excused juror Starn and replaced him with one of the alternate jurors.
Buchanan moved for judgment of acquittal following the close of the State’s evidence and again at the close of all of the evidence. Both motions argued there was insufficient evidence to convict him of the crime charged. The trial court denied the motions. The jury found Buchanan guilty as charged. The court imposed the statutorily mandated sentence of an indeterminate term of twenty-five years imprisonment.
Buchanan appeals contending (1) the court erred in denying his motion to suppress, (2) there was insufficient evidence to prove he was under the influence of alcohol at the time of the accident, and (3) his attorney was ineffective for failing to assure that a sufficient inquiry was conducted to determine whether juror Starn tainted the entire jury panel. We address these issues separately.
II. MERITS.
A. Motion to Suppress.
Buchanan claims the district court erred in denying his motion to suppress the evidence obtained from the seizure of his blood because the search warrant did not authorize the seizure of a body specimen from him but from the decedent, Ruopp, and therefore the seizure violated his federal and state constitutional rights to be free from illegal searches and seizures.[3] More specifically, he contends that because the warrant incorrectly identified the person from whom the blood was to be withdrawn it fails to describe the place to be searched with sufficient particularity.
We review this constitutional question de novo in light of the totality of the circumstances as shown by the record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). “We give deference to the district court’s fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings.” Id.
The Fourth Amendment to the United States Constitution guarantees a person’s right to be free from unreasonable search and seizure.[4] It provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV (emphasis added). Evidence obtained in violation of this provision is inadmissible in a prosecution, no matter how relevant or probative the evidence may be. State v. Manna, 534 N.W.2d 642, 643-44 (Iowa 1995).
One important command of the Fourth Amendment which lies at the core of the issue in this case is that the warrant must describe the place or person to be searched with particularity. State v. Prior, 617 N.W.2d 260, 263 (Iowa 2000). Requiring a warrant to particularly describe the persons or places to be searched and things to be seized forbids the use of general warrants. State v. Thomas, 540 N.W.2d 658, 662 (Iowa 1995). It also helps to “minimize the risk that the officers executing the search warrant will mistakenly search an area or person not intended by the issuing magistrate.” Prior, 617 N.W.2d at 263. In order to guarantee the Fourth Amendment’s right of privacy from arbitrary police intrusion, nothing should be left to the discretion of the official executing the warrant. Thomas, 540 N.W.2d at 662. The officer must be able to reasonably ascertain and identify the places and things authorized to be searched. Prior, 617 N.W.2d at 263; Thomas, 540 N.W.2d at 662.
This is not to mean that a hypertechnical, perfectly accurate description must be provided, rather, that the descriptions in the warrant and affidavits be “sufficiently definite to enable the searcher to identify the persons, places or things the magistrate has previously determined should be searched or seized.”
Thomas, 540 N.W.2d at 662 (quoting People v. Nieves, 330 N.E.2d 26, 31 (N.Y. 1975)).
The search warrant in this case listed Buchanan as the “Defendant” in its caption. It then went on to state, in part, that: 1) there were reasonable grounds to believe “the above-named Defendant,” whose driving may have been the proximate cause of the accident which resulted in Ruopp’s death, was violating section 321J.2; 2) “the Defendant refused to give a body specimen . . .”; and 3) there existed “probable cause for the issuance of a Search Warrant for a Body Specimen from the Defendant.” The warrant then stated, “YOU ARE HEREBY AUTHORIZED AND DIRECTED, pursuant to Iowa Code section 321J.10 to secure the withdrawal of a blood specimen from. . . .” In the immediately following space provided for inserting the “name of Defendant” the magistrate incorrectly wrote “Ryan Ruopp.” Finally, the warrant provides that “if Defendant objects to the withdrawal of blood” the officer is authorized and directed to “secure a breath specimen from [blank for “Name of Defendant”] for chemical analysis. . . .” The magistrate correctly wrote “John Buck Buchanan” in the blank provided at this location for the name of the defendant from whom the breath specimen might be secured.
The United States Court of Appeals for the Eighth Circuit has stated that “[w]here one part of the description of the premises to be searched is inaccurate, but the description has other parts which identify the place to be searched with particularity, searches pursuant to such warrants have been routinely upheld.”United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979). The court in Gitcho also noted other important factors which had been cited in upholding searches made pursuant to warrants which contained some inaccuracies in the description of the premises to be searched. Id. at 371-72. Among the circumstances which convinced the court in Gitcho the search should be upheld despite an incorrect address in the warrant were the facts that the agents executing the warrant personally knew which premises were intended to be searched, and the premises intended to be searched were those actually searched. Id. at 372. Although here we have a seizure from a person, not a search of premises, we believe the same principles should apply.
Although there was a scrivener’s error in one place on the face of the warrant, the defendant Buchanan was at all other places correctly named. Furthermore, a reading of the entire warrant makes it clear who the defendant is, what crime he was believed to have committed, and whose blood specimen the warrant intended to be seized. We also note that the officer who interviewed Buchanan, made application for the warrant, was present when the application was presented to the magistrate, and secured the warrant from the magistrate, was the same officer who actually executed the warrant. It is thus clear the deputy personally knew that the application sought a warrant to secure a blood specimen from Buchanan, knew the warrant intended the blood specimen to come from Buchanan rather than Ruopp, and actually secured the blood specimen from Buchanan, facts highly analogous to those i Gitcho.
Accordingly, we conclude, as did the district court, that the warrant described Buchanan with sufficient particularity to enable Deputy Marshall to identify him as the person from whom the blood specimen was to be secured. Thus, the seizure did not violate Buchanan’s Fourth Amendment rights and the court was correct in denying his motion to suppress the evidence obtained from his blood specimen.
B. Sufficiency of the Evidence.
Our scope of review of sufficiency-of-evidence challenges is for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). In reviewing such challenges we give consideration to all the evidence, not just that supporting the verdict, and view such evidence in the light most favorable to the State. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). We will uphold a trial court’s denial of a motion for judgment of acquittal if there is substantial evidence to support the defendant’s conviction. State v. Kirchner, 600 N.W.2d 330, 333
(Iowa Ct.App. 1999). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. at 334. The court’s denial of Buchanan’s motions for judgment of acquittal based on insufficient evidence preserved error for our review.
Buchanan argues there was insufficient evidence to find he was guilty of the offense of homicide by vehicle based on the “under the influence” alternative. Specifically, he contends Berbano’s expert testimony regarding “back extrapolation” to determine Buchanan’s blood alcohol content at the time of the accident was too speculative and makes too many assumptions to rise to the level of proof beyond a reasonable doubt that Buchanan was under the influence of alcohol at the time of the accident.
The elements of the crime charged, which the State had to prove beyond a reasonable doubt, are that (1) Buchanan was operating a motor vehicle while under the influence of alcohol or other drug or a combination of such substances, and (2) this act unintentionally caused the death of another. Iowa Code §§707.6A(1), 321J.2(1)(a).
The majority of the State’s evidence came from its expert witness, Berbano. As set forth above, Berbano testified regarding the extrapolation method he used to determine what Buchanan’s alcohol concentration would have been at the time of the accident based on the known concentration found three hours after the accident from the blood specimen taken by Deputy Marshall. Based on the .104 alcohol concentration at the hospital at 5:30 p.m., Berbano used the extrapolation method and testified that, subject to a five percent margin of error, he estimated Buchanan’s blood alcohol concentration when the accident occurred at 2:30 p.m. would have been between .149 and .164. Berbano further testified that people show signs of impairment at as low of an alcohol concentration as .05, driving is impaired at a concentration of .08, and in his opinion a person’s physical abilities and judgment would be impaired at concentrations of .104 and above.
Berbano also testified that the elimination rate of alcohol from the human body is fairly constant, regardless of height, weight, gender, or food consumption, and is between .015 to .020 grams of alcohol per 100 milliliters of blood per hour. However, he stated that the rate of absorption of the alcohol can vary from person to person, the absorption phase can range from fifteen minutes to three hours, absorption is faster on an empty stomach, and absorption is faster if you drink large quantities in a short amount of time. Berbano testified that generally the “absorption phase” takes between thirty and ninety minutes.
Buchanan argues that Berbano’s calculations are flawed because he assumed Buchanan was in the “elimination phase” between the times of the accident and when the specimen was taken and thus his blood alcohol concentration was decreasing during that time. Buchanan contends he could have easily still been in the “absorption phase” during this time frame and thus his alcohol level could have in fact been lower at the time of the accident than when the specimen was taken.
Based on the following evidence, we conclude a reasonable jury could conclude that Buchanan was under the influence of alcohol at the time of the accident regardless of whether he was in the absorption or elimination phase, or whether his blood alcohol concentration was higher or lower at the time of the accident than it was three hours later. The evidence shows that Buchanan’s whereabouts from approximately 1:20 p.m. to 2:30 p.m. are unknown, although some of this time would have been spent driving the seventeen miles from his last delivery to the intersection where the accident occurred, leaving only about forty-five to fifty minutes unaccounted for. Furthermore, Deputy Marshall testified that Buchanan told him he had stopped at a convenience store during this time for a sandwich and a couple of beers. However, no convenience store employee in the area could recall seeing Buchanan or his truck during that time. In addition, it is undisputed that Buchanan had a blood alcohol concentration of .104 at 5:30 p.m. (three hours after the accident), and that Buchanan consumed no alcohol after 2:30 p.m. Finally, Berbano’s testimony established that to achieve an alcohol level of .104 Buchanan would have had to consume at least eight beers.
Accordingly, based on the expert testimony given and the time frame involved only a limited number of scenarios are possible and it was a fact question for the jurors to determine what they believed happened. We conclude, viewing the evidence in the light most favorable to the State, there is sufficient evidence in the record for a reasonable jury to find beyond a reasonable doubt that Buchanan was under the influence of alcohol at the time of the accident. Accordingly, there was sufficient evidence to find Buchanan guilty, beyond a reasonable doubt, of homicide by vehicle while under the influence of alcohol in violation of Iowa Code section 707.6A(1).
C. Ineffective Assistance of Counsel.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel’s error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693
(1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
Buchanan contends his trial counsel breached an essential duty when he failed to assure a sufficient inquiry was conducted to determine if juror Starn tainted the rest of the jury panel with his questions and “personal investigation” regarding the case by sharing any “knowledge” or “information” from his investigation with the other jurors. Due to the alleged inadequate inquiry into this matter, Buchanan requests this issue be preserved for postconviction relief.
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 103
(Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). “[W]e preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant’s claims.” Biddle, 652 N.W.2d at 203.
As set forth above, Buchanan can only succeed on his ineffectiveness claims by establishing both that his counsel failed to perform an essential duty and that prejudice resulted Wemark, 602 N.W.2d at 814; Hall v. State, 360 N.W.2d 836, 838
(Iowa 1985). Despite the State’s strong argument that counsel did not breach an essential duty and Buchanan could not have been prejudiced by the alleged breach, we conclude the record on this matter is simply not sufficient for us to address this issue on direct appeal. No record has yet been made before the trial court on this issue, trial counsel has not been given an opportunity to explain his actions, and the trial court has not ruled on this claim. Under these circumstances, we pass the issue in this direct appeal and preserve it for a possible postconviction proceeding. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
III. CONCLUSION.
We conclude the district court was correct in denying Buchanan’s motion to suppress because the warrant described the person from whom to draw the blood specimen with sufficient particularity to enable Deputy Marshall to locate and identify that person. We further conclude there was sufficient evidence in the record for a reasonable jury to find, beyond a reasonable doubt, that Buchanan was under the influence of alcohol at the time of the accident and was thus guilty of homicide by vehicle as charged. We find the record insufficient to address Buchanan’s claim of ineffective assistance of counsel in this direct appeal and preserve this issue for a possible postconviction proceeding.
AFFIRMED.