Opinion
No. 1-821 / 00-1019.
Filed January 28, 2002.
Appeal from the Iowa District Court for Johnson County, LARRY J. CONMEY, Judge.
Robert John Lee, Jr. appeals from his conviction following jury trial for operating while intoxicated, third offense, in violation of Iowa Code section 321J.2 (1999). JUDGMENTS OF CONVICTION AFFIRMED; SENTENCE (COUNT II) VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant Attorney General, J. Patrick White, Johnson County Attorney, and Angela Boeke, Assistant Johnson County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Robert John Lee, Jr. appeals from his conviction following jury trial for operating while intoxicated, third offense, in violation of Iowa Code section 321J.2 (1999). He contends his trial counsel was ineffective for failing to object to testimony that was both impermissible hearsay and violated his constitutional right to confront witnesses against him. He also appeals the sentence imposed following his guilty plea to possession of a controlled substance, in violation of Iowa Code section 124.401(5). Lee contends his counsel was ineffective for failing to inform the court that the prosecution had violated the plea agreement concerning the controlled substance charge. We affirm the convictions, vacate the sentence imposed on the controlled substance conviction, and remand for resentencing on the controlled substance conviction.
I. BACKGROUND FACTS
Shortly before five a.m. on October 23, 1999 Officer Patrick McCoy of the Coralville Police Department received a dispatch regarding a disabled vehicle on Interstate 80 and an individual attempting to flag down traffic at that location. Within approximately seven minutes of the call Officer McCoy located the van on I-80. The van was unattended when McCoy arrived at the scene. In looking through the windows McCoy noticed a six-pack of beer bottles next to the driver's seat. Four of the bottles were empty. McCoy then drove to a nearby gas station thinking perhaps the motorist might have gone there for assistance. While en route to the gas station McCoy called in the van's plates and learned the owner of the vehicle was Robert Lee, who was described to him by dispatch as having red hair.
When McCoy arrived at the gas station he observed another vehicle pull in immediately before him and stop. The passenger, a man with red hair, left the passenger seat and went into the station. McCoy then approached the driver and asked him if he had picked up his passenger on the side of the interstate and the driver stated he had. McCoy did not get the driver's name or license plate number. Proceeding into the store, McCoy observed Lee standing at the counter attempting to buy gasoline in a plastic jug. McCoy asked Lee if he was the van's driver. Lee acknowledged that the van was his and that he had been drinking but stated he had not been driving the van. Lee told McCoy that a friend of his, Scott Naughton, was driving. He refused to give McCoy Naughton's phone number. When McCoy informed Lee that no one else was near the van when he arrived, Lee stated that he must have started to head home. McCoy arrested Lee and transported him to the Coralville police station.
At the police station McCoy found a phone number for Scott Naughton (Naughton) and spoke to his mother, Sonya Naughton, by phone. Sonya Naughton informed McCoy Naughton had been home since 11:00 p.m. that evening. McCoy apparently heard Naughton in the background confirm that he had in fact been home since 11:00 p.m. When McCoy presented this information to Lee, Lee then admitted that Naughton had not been driving the van but continued to maintain he was not the driver either. Lee refused to say who had been driving because he did not want to "narc him off." When McCoy asked Lee exactly how many people were in the van he initially said four but then changed his story several times later saying there were eight, then sixteen, then thirty-two. Lee eventually gave McCoy five names of people he claimed were in the van, four of whom lived in Iowa City and one in Cedar Rapids. McCoy could not find any of the names in phone books and Lee eventually said the names were "aka's" and not real names.
Due to Lee's continuing uncooperative and dishonest behavior McCoy concluded that any further investigation was pointless and determined Lee was in fact the driver of the van. McCoy charged Lee with operating while intoxicated (OWI) third offense, in violation of Iowa Code section 312J.2 (1999) (Count I).
The police impounded McCoy's van and inventoried the contents. During the inventory they found a marijuana cigarette, a baggie of stems and seeds and a pair of tweezers with burn residue. Accordingly, Lee was also charged with possession of marijuana in violation of Iowa Code sections 124.401(4)(m) and 124.401(5) (Count II).
The OWI charge was tried to a jury. During the trial McCoy testified regarding both the statement Naughton's mother made to him over the phone relating to Naughton's whereabouts and the statements the unidentified driver had made to him at the gas station. Lee's trial counsel did not object to any of McCoy's testimony. The jury found Lee guilty of OWI third offense. Lee plead guilty to the possession of marijuana charge pursuant to a plea agreement wherein the State agreed to recommend four days of incarceration and a $300 fine on that charge. The court sentenced Lee to an indeterminate five-year term on count I and a concurrent ten-day sentence on count II. He was also fined $2500 and his licensed revoked for six years on count I and fined $250 and his license revoked for six months on count II.
II. STANDARD OF REVIEW
When there is an alleged denial of constitutional rights, such as effective assistance of counsel, we review the totality of the circumstances de novo. State v. Osborn, 573 N.W.2d 917, 920 (Iowa 1998). A claimed violation of a person's constitutional right to confront witnesses against him or her under the Confrontation Clause is also reviewed de novo. State v. Hoeck, 547 N.W.2d 852, 856 (Iowa Ct. App. 1996).
III. MERITS
The standards by which to measure ineffective assistance of counsel claims are well established. 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). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). 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). We may affirm on appeal if either element is lacking. State v Terry, 544 N.W.2d 449, 453 (Iowa 1996).
Lee appeals his convictions alleging his trial counsel was ineffective for failing to object to McCoy's testimony regarding the statement of Naughton's mother and the statements of the unidentified driver at the gas station. Lee contends this testimony was impermissible hearsay and violated his Sixth Amendment right to confront witnesses against him. Lee also asserts the State breached the plea agreement by recommending a ten day term of incarceration and a $250 fine, in accordance with the presentence investigation, instead of four days and a $300 fine as had been agreed to in the written plea agreement.
The State argues the challenged testimony was not hearsay because it was offered to explain McCoy's subsequent conduct during the investigation, and not for the truth of the matter asserted. Furthermore, the State argues Lee suffered no prejudice from the testimony as it was merely cumulative evidence and thus trial counsel's failure to object does not warrant reversal. The State also argues that because McCoy's testimony was admitted for non-hearsay purposes it does not implicate the Confrontation Clause. The State concedes, however, that it breached the plea agreement on the controlled substance charge by recommending the sentence proposed in the presentence investigation report rather than the sentence it had agreed to recommend. We will address these issues separately.
A. Testimony Regarding Sonya Naughton
We deal first with McCoy's testimony regarding his telephone conversation with Sonya Naughton, Scott Naughton's mother. McCoy testified he called Naughton's residence and reached Naughton's mother. He asked if Naughton had been home all night and she told McCoy he had come home about eleven and had been home since then. McCoy also testified he could hear Naughton in the background say he got home about eleven. Lee's counsel made no objection to this testimony at trial. McCoy further testified that when he informed Lee he had spoken to Naughton's mother and that he had been home since eleven Lee recanted his earlier statements and told McCoy it was not Naughton driving the van, but another friend. However, Lee would not identify the other alleged driver because he did not want to "narc him off."
1. Hearsay
Hearsay is an out of court statement, other than one made by a declarant while testifying at trial, offered to prove the truth of the matter asserted. Iowa R. Evid. 801(c). Hearsay is not admissible except as provided by the Iowa Constitution, by statute, by the rules of evidence, or by other rules of the Iowa Supreme Court. Iowa R. Evid. 802.
To determine whether the evidence was offered for the truth of the matter asserted we must objectively assess the real purpose for which the evidence was offered under the facts and circumstances found in the record. State v. Deases, 518 N.W.2d 784, 792 (Iowa 1994); State v. Martin, 587 N.W.2d 606, 610 (Iowa Ct. App. 1998). "Statements that otherwise would be considered hearsay, offered not for the purpose of proving the truth of the statements but rather offered to help explain relevant conduct taken in response to them, are not hearsay and are not excludable as such." State v. Hollins, 397 N.W.2d 701, 705 (Iowa 1986). However, we will not "blindly accept as controlling the purpose urged by the State. Rather, we review the relevant record to determine if the purpose voiced by the State can reasonably be found to be the real purpose for which the challenged testimony was offered." Id.; see also State v. Summage, 532 N.W.2d 485, 487 (Iowa Ct. App. 1995).
Generally if hearsay is admitted prejudice to the non-offering party is presumed unless the contrary is affirmatively established. State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998); State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996); State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992). However, that prejudice will not be found where substantially the same evidence is in the record without objection and thus the challenged testimony is merely cumulative. Id. McCoy's testimony regarding his telephone conversation with Sonya Naughton constituted evidence that Naughton was not the driver of the van. However, this evidence was merely cumulative to McCoy's testimony concerning Lee's recantation and admission that Naughton was not the driver. Lee did not object to the testimony regarding Lee's recantation, and on appeal he does not claim trial counsel was ineffective for not objecting to it.
Without determining whether this testimony was improperly admitted hearsay we conclude it was not prejudicial to Lee. The same evidence (that Naughton was not the driver of the van) came into the record unchallenged in the form of Lee's own admission to McCoy. Thus McCoy's testimony regarding Sonya Naughton's statement was merely cumulative and cannot be seen as at all prejudicial to Lee. Accordingly, we find that Lee was not denied effective assistance of counsel due to his trial counsel's failure to object to the admission of this testimony as hearsay. See McKettrick, 480 N.W.2d at 60.
2. Confrontation clause
The Sixth Amendment to the Federal Constitution guarantees that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him.
The Sixth Amendment is of course binding on the states through the Fourteenth Amendment to the United States Constitution. Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638, 651 (1990).
Although the Supreme Court has recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, the Court does not equate the Confrontation Clause's prohibitions with the general rule prohibiting the admission of hearsay statements. In other words, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.
State v. Castaneda, 621 N.W.2d 435, 444 (Iowa 2001) (citations omitted). The Confrontation Clause restricts the range of admissible hearsay in two separate ways. First, the Clause establishes a rule of necessity "which requires the prosecution to `either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.'" State v. Rojas, 524 N.W.2d 659, 664 (Iowa 1994) (quoting Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597, 607 (1980)). Second, once a witness is shown to be unavailable, the Clause permits "only hearsay marked with such trustworthiness that there is no material departure from the reason of the general rule." Id. In other words, the statement must bear adequate indicia of reliability to be admissible. Id.
However, harmless errors, even errors of constitutional magnitude, do not require reversal. State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998). Even "where there has been a violation of a defendant's fundamental rights under the United States Constitution, we can hold error harmless if we can declare a belief it was harmless beyond a reasonable doubt." State v. Iowa Dist. Court, 464 N.W.2d 244, 249 (Iowa 1990); see also Morgan v. State, 469 N.W.2d 419, 427 (Iowa 1991).
An assessment of harmlessness cannot include consideration of whether the witness' testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.
Coy v. Iowa, 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857, 867 (1988). The question is not whether we, as an appellate court, after omitting the challenged evidence would find the defendant guilty, but rather whether we are satisfied beyond a reasonable doubt that the fact finder would have done so. State v. Brodene, 493 N.W.2d 793, 797 (Iowa 1992).
Assuming, without deciding, that McCoy's testimony regarding the statements of Sonya Naughton violated Lee's right to confront witnesses against him, for two somewhat related reasons we are nevertheless satisfied beyond a reasonable doubt that the jury would have found Lee guilty without the challenged evidence. First, the evidence in question was merely cumulative to evidence of Lee's admission that Naughton was not the driver. Second, the evidence that Lee was the driver was overwhelming. There was evidence Lee owned the van, dispatch said one person was trying to flag down traffic, there was no one else in the area of the van when McCoy arrived only seven minutes after being dispatched, there was no one else in the area of the van when the unidentified driver earlier picked Lee up at the van, and Lee lied to McCoy by telling him Naughton had been driving. Lee's lie is by itself an indication of guilt and relevant to show he fabricated evidence to aid his defense. State v. Cox, 500 N.W.2d 23, 24 (Iowa 1993). We conclude the admission of McCoy's testimony concerning Sonya Naughton's statement was harmless beyond a reasonable doubt and therefore caused no prejudice to Lee. See Morgan, 469 N.W.2d at 428. Accordingly, Lee's trial counsel was not ineffective for failing to object to McCoy's testimony with regard to the statement attributed to Sonya Naughton.
B. Testimony Regarding the Unidentified Driver
Lee also alleges McCoy's testimony with regard to the conversation he had with the unidentified person who picked Lee up and took him to the gas station was impermissible hearsay as well as a violation of the confrontation clause and his trial counsel was ineffective for failing to object to this testimony. As set forth above, McCoy testified that upon seeing a person with red hair (as Lee had been described by dispatch) exit the passenger's side of a vehicle at the gas station he approached and spoke to the driver. McCoy asked the driver if Lee was the person he had picked up on the interstate and the driver said he was. However, McCoy did not get the driver's name or license plate number and does not know who the driver was.
Lee specifically challenges McCoy's testimony in response to the State's inquiry as to why he initially arrested Lee. McCoy responded,
Well, at that time I was either considering public intoxication, being intoxicated in a public places — however, I was confident that Scott Naughton was not actually the driver since he was not being cooperative and wanting to give me the number. Plus the fact that when the subject picked Mr. Lee up, there was nobody else around, which made me kind of believe that there was nobody else around when he said well, he must have left, we must have got separated. Well, he would have known that if he was there when the other subject picked him up.
(Emphasis added). Lee argues McCoy's testimony regarding his conversation with the driver was offered for the truth of the matter asserted by the driver. He argues this testimony implied that the unidentified driver had told McCoy Lee was alone when he picked him up, thus providing circumstantial evidence Lee must have been the driver.
1. Hearsay
As set forth above, although prejudice will be presumed when hearsay is admitted this prejudice will not be found where substantially the same evidence comes into the record without objection. Hildreth, 582 N.W.2d at 170; Rice, 543 N.W.2d at 887; McKettrick, 480 N.W.2d at 60. Assuming, without deciding, that McCoy's testimony regarding his conversation with the unidentified driver was hearsay we find the testimony was merely cumulative and thus was not prejudicial to Lee. McCoy testified that the police dispatcher told him there was a subject trying to flag down traffic. On redirect examination McCoy more specifically emphasized that the call from dispatch had said one person was flagging down traffic. Lee did not object to this testimony at trial, nor does he allege on appeal that trial counsel was ineffective for failing to object to it at trial. Therefore, to the extent this testimony can be read as McCoy stating that the unidentified driver told him Lee was alone at the van when he picked him up it is merely cumulative of substantially similar, unchallenged evidence regarding what the police dispatcher had said. Because the testimony was merely cumulative it was not prejudicial to Lee and his trial counsel was therefore not ineffective for not objecting to it.
2. Confrontation clause
As stated above not all errors, even errors of constitutional magnitude, require reversal. Griffin, 576 N.W.2d at 597. Even "where there has been a violation of a defendant's fundamental rights under the United States Constitution, we can hold error harmless if we can declare a belief it was harmless beyond a reasonable doubt." Iowa Dist. Court, 464 N.W.2d at 249. Assuming, without deciding, that McCoy's testimony regarding the statements of the unidentified driver violated Lee's constitutional right to confront witnesses against him, for essentially the same two reasons that we are satisfied beyond a reasonable doubt the jury would have found Lee guilty without evidence of Sonya Naughton's statement we are also satisfied beyond a reasonable doubt the jury would have found Lee guilty without evidence of the unidentified driver's statements. First, the evidence in question was merely cumulative to evidence of what the dispatcher said and McCoy's testimony as to his own observation that there was no one else in the area of the van. Second, the evidence that Lee was the driver was overwhelming, as discussed above. We conclude the admission of McCoy's testimony concerning the unidentified driver's statements was harmless beyond a reasonable doubt and therefore caused Lee no prejudice. See Morgan, 469 N.W.2d at 428. Accordingly, Lee's trial counsel was not ineffective for failing to object to the challenged testimony.
C. Breach of Plea Agreement
Finally, Lee argues his counsel was ineffective by failing to object to the State's breach of the plea agreement at sentencing. The written plea agreement stated that Lee would plead guilty to the possession of marijuana charge (Count II) and in turn the State would recommend four days confinement and a $300 fine. At sentencing the State instead followed the recommendation in the presentence investigation report and recommended ten days confinement (concurrent with a prison sentence on the OWI conviction) and a $250 fine on the possession charge. On appeal the State concedes it breached the plea agreement and therefore the case should be remanded for resentencing.
When the State breaches a plea agreement defense counsel ordinarily has a clear duty to object because only by objecting can counsel ensure that the defendant receives the benefit of the agreement, and no possible advantage can flow to the defendant from counsel's failure to point out the State's noncompliance. State v. Bergmann, 600 N.W.2d 311, 315 (Iowa 1999); State v. Horness, 600 N.W.2d 294, 300 (Iowa 1999). Consequently, when a defendant is sentenced by the court at a hearing tainted by the prosecutor's improper recommendations the defendant is prejudiced by counsel's failure to perform this essential duty. Horness, 600 N.W.2d at 301.
Lee claims defense counsel breached an essential duty and he was prejudiced by defense counsel not objecting to the State's recommendation of a $250 fine and ten days concurrent confinement rather than insisting that the State adhere to the plea agreement and recommend a $300 fine and four days confinement. He requests that we remand to the district court, affording him the opportunity to withdraw his plea or request specific performance from the State. The State agrees that Lee received ineffective assistance of counsel and that remand for resentencing is required. We conclude it is appropriate to vacate Lee's sentence on count II and remand for resentencing on that count. See Bergmann, 600 N.W.2d at 315-16 (vacating sentence and remanding for resentencing before a different judge, with prosecutor to abide by the terms of the plea agreement, where State had breached agreement concerning sentencing recommendation); State v. King, 576 N.W.2d 369, 371 (Iowa 1998) (same).
Accordingly, we vacate Lee's sentence on count II and remand this case for resentencing before a different judge at which time the prosecutor will abide by the terms of the plea agreement by recommending Lee be sentenced to four days confinement and a $300 fine on count II.
JUDGMENTS OF CONVICTION AFFIRMED; SENTENCE (COUNT II) VACATED AND REMANDED FOR RESENTENCING.