No. 5-526 / 04-1302Court of Appeals of Iowa.
Filed August 31, 2005
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge.
Eric Lamont Jones appeals his convictions for delivery of a controlled substance and willful injury causing serious injury.AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William E. Davis, County Attorney, and Kelly G. Cunningham, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Zimmer, JJ.
SACKETT, C.J.
Defendant Eric Lamont Jones was charged and convicted, following a jury trial, of delivering a controlled substance,[1] in violation of Iowa Code sections 124.401(1)(c)(3), 124.206(2)(d) and 703.1 (2003), and willful injury causing serious injury to Don Pherigo, in violation of sections 708.1(1) and 708.4(1). On appeal defendant contends (1) the district court abused its discretion in overruling his motion for mistrial[2] when evidence concerning his prior use of drugs and possession of guns was introduced in violation of a motion in limine, and (2) his trial attorney was ineffective. We affirm.
The delivery charges were supported by evidence principally from Mike Long and Don Pherigo that defendant (1) got rock cocaine from Stanley Williams and delivered it to Long’s apartment, where he shared it with the two men; and (2) gave cocaine to Pherigo for safekeeping, which Pherigo used contrary to defendant’s instructions. There was also evidence defendant assaulted Pherigo, blinding him in one eye. Defendant testified on his own behalf and denied he provided cocaine and contended he hit Pherigo in self defense.
Pherigo, Long and Williams were the principal witnesses for the State. Pherigo and Long had substance abuse problems. Defendant was working for and became indebted to Williams, who at the time of defendant’s trial had been convicted in federal court of drug related offenses. Williams testified for the State in return for a recommendation of a downward departure from the sentence range that would have been indicated by the Federal Sentencing Guidelines for his federal conviction.
Motion in Limine.
The State had evidence that (1) defendant was released from prison in September of 2003 and had been involved in other drug related crimes, (2) Williams was selling drugs, and he and defendant had arrived at an arrangement whereby defendant would pick up and deliver cocaine for him, (3) defendant owed Williams money for past drug sales, (4) Pherigo’s truck had been used to make prior deliveries of drugs, and (5) defendant was in possession of guns. Defendant made a motion in limine prior to trial seeking to exclude this evidence. The district court sustained the motion as to testimony of specific activities occurring prior to December 20, 2004.
Defendant’s first motion for mistrial was based on statements Williams made while testifying for the State. Williams testified he met Pherigo when he and defendant were “taking care of business.” Williams also testified defendant owed him over $1,000. The defendant contends this testimony was in violation of the motion in limine because Williams in referring to “doing business” meant the two men were dealing drugs. He further contends the testimony he owed Williams money suggested involvement in criminal activity. No objection was made to this evidence at the time of its admission. Also in response to the State’s question to Williams about a conversation the defendant had with him, Williams said defendant told him he was going to bring guns to Williams and pay off the debt. Defendant’s trial attorney objected to this evidence and the district court sustained the objection and defendant’s attorney then asked that it be stricken. The district court did not rule on that request.
Defendant’s attorney indicated to the court at some time during testimony in a side bar he wished to make a motion outside the presence of the jury. When the jury was excused for the day he made the first motion for mistrial based on Williams’s testimony outlined above.[3] The district court denied the motion, finding Williams’s testimony limited and not unduly prejudicial and determining it would be sufficiently cured by the court’s subsequent instruction to the jury that they make their determinations based on evidence presented.
A second motion for a mistrial was made after closing arguments wherein defendant urged the grounds above with another ground which will be discussed later.
The State contends the error urged here was not preserved because there was no objection to the testimony nor was a motion made to strike it and that defendant’s motion for mistrial was not timely.
Issues must ordinarily be both raised and decided by the district court before we will decide them on appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). As with most objections a mistrial motion must be made when the grounds therefore first become apparent. State v. Ware, 205 N.W.2d 700, 702 (Iowa 1973). While the motion could have been filed earlier, that is not the only consideration if the objectives of the error-preservation rules are met. The defendant filed a motion in limine alerting the district court to his effort to keep evidence of his prior drug dealing and gun possession from the jury. The district court sustained the motion. Defendant alerted the district court during testimony that he sought to make a motion outside the presence of the jury. The motion was made in chamber as soon as the jury was dismissed for the day. The district court had ample opportunity to rule on the issue and/or to instruct the jury the next day to disregard the testimony. Finding the rules of error preservation were met, we consider the issue despite the fact the motion for new trial could have been made earlier. See State v. Mann, 602 N.W.2d 785, 791 (Iowa 1999).
A trial court has wide discretion in granting or denying a motion for mistrial. State v. Brotherton, 384 N.W.2d 375, 381
(Iowa 1986); State v. Hamilton, 335 N.W.2d 154, 160 (Iowa 1983). We find an abuse of discretion only when defendant shows prejudice which prevents him from having a fair trial. See State v. Trudo, 253 N.W.2d 101, 106 (Iowa 1977). The trial court is in a better position to observe the matters complained of and to ascertain its effect, if any, on the jury. Brotherton, 384 N.W. 2d at 381. Generally, an admonition to the jury to disregard inadmissible testimony is sufficient to cure any prejudice. Id.
We do not believe Williams’s reference to “taking care of business” or to defendant owing him $1,000 necessarily suggests drug dealing went on between defendant and Williams. Furthermore, even if the statement suggested earlier drug dealing defendant was not prejudiced as there was testimony not objected to from other witness who told the jury about defendant’s past. Pherigo testified defendant sold him cocaine before December 20, 2004, needed his truck to make cocaine deliveries before December 20, gave him cocaine to hold in case the police stopped his truck, and sold cocaine to Long on the morning of December 20. Williams testified he and defendant recently pled guilty to conspiracy to deliver cocaine and had a relationship before December 20, 2004. Defendant, testifying on his own behalf, admitted he had a prior felony conviction and a history of drug use. The district court did not abuse its discretion in denying the first motion for mistrial.
Defendant’s second motion for mistrial was filed following closing arguments which were not reported. Defendant objected to the State arguing that defendant told Williams he would bring two guns over. He contends this was prosecutorial misconduct and the misconduct prejudiced him. The prosecutor admitted in rebuttal that she argued defendant had said he would bring two guns over to pay Williams. She argued the evidence was proper rebuttal to defendant’s attorney’s argument that no drugs were found when executing a search warrant for defendant’s premises. She reasoned it showed defendant had not paid his supplier and this was a reason for the absence of drugs. The district court noted that though it had sustained defendant’s objection to the gun evidence, it had not stricken it from the record nor had it given a limiting instruction. The court then agreed with the prosecutor’s argument that it was proper rebuttal argument and overruled the second motion for a mistrial.
Trial courts have broad discretion in ruling on claims of prosecutorial misconduct. State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993). Therefore, we review a district court’s ruling on a motion for mistrial based on prosecutorial misconduct for abuse of discretion. See id. We find an abuse of discretion only where (1) there is misconduct, and (2) the defendant was so prejudiced by the misconduct “as to deprive the defendant of a fair trial.” State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989). It is not the prosecutor’s misconduct that entitles a defendant to a new trial, but rather any resulting prejudice that prevents the trial from being a fair one. State v. Greene, 592 N.W.2d 24, 31 (Iowa 1999).
Defendant was not so prejudiced by what happened to prevent him from receiving a fair trial. The district court did not abuse its discretion in denying the second motion for mistrial.
Ineffective assistance of counsel.
Defendant next contends his trial counsel was ineffective. He acknowledges trial counsel obtained favorable rulings on the motion in limine but then advances trial counsel did not consistently object to evidence that should have been excluded under the ruling nor did trial counsel demand curative measures such as admonitions to the jury to disregard the evidence and cautionary instructions. Defendant also contends his trial counsel should have taken additional steps to minimize the prejudicial effect of other crimes evidence. He points out that while his attorney’s objection to gun evidence was sustained no cautionary instruction was requested.
Defendant also contends trial counsel did not request appropriate jury instruction or make timely objections to jury instructions. Defendant contends his attorney should have requested an instruction on the corroboration of an accomplice’s testimony and an instruction on aiding and abetting. He contends Pherigo was an aider and abettor in the delivery of drugs and could have been charged with the same offense with which defendant was charged.
To establish ineffective assistance of counsel is established the defendant must show that (1) trial counsel failed to perform an essential duty, and (2) he was prejudiced by counsel’s errors State v. Weatherly, 679 N.W.2d 13, 19 (Iowa 2004); State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003). Failure to prove either of these elements is fatal to a claim of ineffective assistance Id. We presume that trial counsel acted within the normal range of competency. Id. Prejudice is established by proof that but for the attorney’s unprofessional errors, the result of the proceeding would have been different. Id. Our review of claims of ineffective assistance of counsel is de novo in light of the constitutional dimensions of the claim. See id. Claims of ineffective assistance of counsel are ordinarily not decided on direct appeal but in post conviction proceedings allowing counsel to respond to the claims. See id. We will consider and dispose of ineffective assistance claims on direct appeal where an adequate record exists from which to analyze a claim so as to preserve valuable judicial resources. Weatherly, 679 N.W.2d at 19; State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001).
Defendant first contends his attorney should have objected to rebuttal evidence from Williams that defendant had complained about his recent release from prison and asked about opportunities for making money. Defendant contends this testimony indicates past drug dealing and should have been kept from the jury. Specifically defendant claims trial counsel should have objected to rebuttal testimony of Williams that defendant was paroled from prison in September of 2003 and came to him seeking an opportunity to earn money, that Williams provided him an opportunity to earn money and that, as a result, defendant got behind to him financially. Defendant contends his trial attorney should have objected to this testimony because it was in violation of the motion in limine, was irrelevant and unfairly prejudicial and showed defendant’s propensity to commit crimes. The State contends the questioned evidence came in as rebuttal to defendant’s testimony that he did not know Williams well. The State argues this was proper rebuttal because the defendant when testifying on direct examination in his case suggested his income did not come from drug-dealing and he further attempted to distance himself from Williams testifying he hardly knew the man. Furthermore, the State argues defendant was not prejudiced by Williams’s testimony because defendant himself testified that he had a history with drugs and had served time in prison. We agree with the State’s arguments that the testimony was properly admitted and defendant’s own testimony established the facts he now contends his attorney should have kept from the jury. He has failed to show his attorney was ineffective on this issue or that he suffered prejudice.
Defendant next contends his attorney should have done more to keep from the jury testimony he possessed a gun. The record reflects that in responding to the proposed instructions defendant’s attorney noted the objection he made to the gun evidence and his motion for a mistrial. Then counsel debated whether he should ask for a cautionary instruction but did not, noting it would just call attention apparently to the evidence. The district court noted it concurred with counsel’s judgment on this issue. The State contends this shows counsel made a judgment call. What the State’s argument does not address is the State was able to use the evidence in rebuttal argument because defense counsel did not follow through to have the evidence stricken from the record. We preserve this claim for possible postconviction proceedings.
Defendant next contends his trial counsel should have requested an instruction on accomplice corroboration. Iowa Rule of Criminal Procedure 2.21(3) notes that accomplice testimony requires corroboration. Corroboration evidence must support some material part of an accomplice’s testimony and tend to connect the accused to the crime. State v. Brown, 397 N.W.2d 689, 695 (Iowa 1986). The defendant contends Pherigo was an accomplice to deliveries made by defendant on December 20th and that his testimony required corroboration.
The district court did describe Pherigo as an accomplice as to December 19 and 20 deliveries. However, the district court in denying defendant’s motion for acquittal ruled that the there was substantial evidence (1) to support a finding defendant brought a rock of crack cocaine to the apartment of Long and he and Long and Pherigo used it, and (2) defendant gave rocks to Pherigo to keep. Neither of these transactions involved an accomplice. In addition, there was substantial other evidence connecting defendant to the deliveries where the court determined Pherigo an accomplice. Defendant has failed to show he was prejudiced by his attorney’s failure to request a corroboration instruction. We affirm.
AFFIRMED.