Opinion
No. 1-294 / 00-1355.
Filed June 13, 2001.
Appeal from the Iowa District Court for Black Hawk County, GEORGE L. STIGLER (motion to suppress) and STEPHEN C. CLARKE (trial and sentencing), Judges.
Ginger Seiler appeals the judgment and sentence entered upon a jury verdict finding her guilty of conspiracy to manufacture more than five grams of methamphetamine while in the immediate possession or control of a firearm within 1000 feet of a public school, possession of ephedrine and/or pseudoephedrine, receipt of precursor drugs for an unlawful purpose, and possession of more than five grams of methamphetamine with the intent to deliver while in the immediate possession or control of a firearm within 1000 feet of a public school. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
Considered by STREIT, P.J., and MAHAN and ZIMMER, JJ.
A woman convicted of multiple methamphetamine-related charges claims her trial attorney was ineffective because he did not file an appropriate motion to suppress or object to the prosecutor's purported misconduct. We affirm.
I. Background Facts Proceedings .
Law enforcement officers in Black Hawk County received information suggesting Gregg Henson and Ginger Seiler were involved in manufacturing methamphetamine. Based on this information, the officers applied for a search warrant for Henson and Seiler's home. They watched the home while the application was presented to a judge.
During the course of their surveillance, the officers saw Henson and Seiler leave their home in a Chevy Blazer on two occasions. On the second occasion they stopped the Blazer, searched it, and found a new plastic gasoline can. They knew Seiler was the subject of an outstanding arrest warrant for forgery.
At Seiler's request, two officers took Seiler to her home so she could check on her two sons. They received Seiler's permission to enter the home. When Seiler asked to use the bathroom, the officers had a female officer sent to the home.
The female officer accompanied Seiler to the bathroom. She told Seiler she had to search her before she could use the bathroom and asked Seiler if "she had anything on her." Seiler pulled a pack of cigarettes out of her underwear, told the officer it had methamphetamine in it, and said she had used methamphetamine earlier that day.
Shortly thereafter, other officers arrived at Henson and Seiler's home to execute the search warrant the judge had just granted. The officers found methamphetamine and various items consistent with the manufacture of methamphetamine at the home. Seiler was charged, and convicted, of (1) conspiracy to manufacture more than five grams of methamphetamine within 1000 feet of a public school and while in the immediate possession or control of a firearm, (2) possession of ephedrine and/or pseudoephedrine, (3) receipt of precursor drugs for an unlawful purpose, and (4) possession of more than five grams of methamphetamine with the intent to deliver within 1000 feet of a public school and while in the immediate possession or control of a firearm. Seiler appeals.
Henson was tried as Seiler's co-defendant and apparently was convicted of the same charges.
II. The Merits .
Seiler claims she received ineffective assistance of counsel because her trial attorney did not challenge the officers' stop and seizure of her and did not object to the prosecutor's misconduct during closing argument. Our review of ineffective-assistance-of-counsel claims is de novo. State v. Howes, 525 N.W.2d 874, 876 (Iowa Ct. App. 1994). To prevail, Seiler must show her attorney's performance fell outside a normal range of competency and the deficient performance so prejudiced her as to give rise to the reasonable probability that, but for her attorney's errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
A. Stop and Seizure.
Seiler argues her attorney was ineffective because he "failed to challenge the initial stop and seizure of [her] which was unsupported by either a warrant or probable cause." The officers' actions were constitutionally permissible under the circumstances. Seiler's attorney was not obligated to pursue this meritless issue. See State v. Truesdell, 511 N.W.2d 429, 433 (Iowa Ct. App. 1993).
The officers' stop of the Blazer in which Seiler was a passenger was permissible. The officers knew Seiler was the subject of an outstanding arrest warrant and reasonably believed she was in the Blazer. They thus could — and purportedly did — stop the Blazer to execute the warrant. See Iowa Code § 804.7 (1997) ("A peace officer may make an arrest in obedience to a warrant delivered to the peace officer."); State v. Merrill, 538 N.W.2d 300, 301 (Iowa 1995). Whether their actual intent was to circumvent the search-warrant requirement is irrelevant. See State v. Hofmann, 537 N.W.2d 767, 770 (Iowa 1995) (holding a pretextual arrest is valid as long as the officer making the arrest is "legally permitted and objectively authorized to do so").
The officers' seizure of Seiler after they stopped the Blazer was also permissible. Because Seiler was the subject to an outstanding arrest warrant, the officers could take her "into custody . . . in the manner authorized by law." See Iowa Code § 804.5; see also id. §§ 804.1, 804.7, 804.14. Seiler has not pinpointed any facts or circumstances suggesting the officers violated any constitutional or statutory provisions when they seized and detained her.
Finally, the officers' searches of Seiler and the Blazer were permissible. Although the record does not disclose whether the officers specifically informed Seiler she was under arrest, the totality of the circumstances confirm she was arrested: the officers knew Seiler was the subject of an outstanding arrest warrant and their stated purpose in stopping the Blazer was to take her into custody on the warrant; the officers Mirandized Seiler; the officers transported Seiler to her home when she asked to check on her two sons; and the officers did not allow Seiler to enter her home alone or use her bathroom alone. See State v. Delockroy, 559 N.W.2d 43, 45-46 (Iowa Ct. App. 1996). The officers could, as a contemporaneous incident of Seiler's arrest, search the passenger compartment of the Blazer. See New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981). The officers could also search Seiler. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 441 (1973) (""[W]e hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also `reasonable' under that Amendment."). The fact this latter search occurred roughly thirty minutes after the officers' initial stop and was conducted at Seiler's home is of no consequence. Cf. United States v. Edwards, 415 U.S. 800, 803, 94 S.Ct. 1234, 1237, 39 L.Ed.2d 771, 775 (1974) ("[S]earches and seizures that could be made on the spot at the time of the arrest may legally be conducted later when the accused arrives at the place of detention."). The fruits of these searches were legally obtained.
An attempt to challenge the officers' actions would have been futile. Seiler's counsel was not ineffective for failing assert the above-discussed issues via a motion to suppress.
B. Prosecutorial Misconduct.
Seiler also argues her attorney was ineffective because he failed to object to certain statements the prosecutor made during her closing argument. "A prosecutor's misconduct will not warrant a new trial unless the conduct was `so prejudicial as to deprive the defendant of a fair trial.'" State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989) (citations omitted). Seiler's attorney was not confronted with such misconduct.
Seiler contends the prosecutor's statements regarding "fiction" and "fibs" in her closing argument were improper and prejudicial. The prosecutor began her closing argument with the following remarks:
This case . . . is about facts and not fibs. What was told to you by counsel during opening statements is not evidence. The only evidence in this case is what you heard from this witness stand, the exhibits that were offered into evidence, the expert testimony and the statements that you hear [sic] the witnesses testify to concerning what the defendants had said.
Now the fiction[s] in this case, which you are not to consider because they are not facts, are the following.
The prosecutor then discussed about a dozen assertions either Seiler's attorney or Henson's attorney had made during their opening statements that were "fiction" and "not the facts of the case." On one occasion, the prosecutor also stated one of Henson's attorney's assertions involved "fibs." The prosecutor concluded this segment of her closing argument with remarks similar to those with which she began:
Henson's attorney apparently made all but one of these assertions.
The proceeding . . . I just went through was all that counsel told you in voir dire and opening as to what the facts would show, which the facts did not show. All of those statements that I've just talked about were fiction.
The prosecutor's various "fiction" statements were not an inappropriate attempt to "label defendants' attorneys as liars or storytellers." The prosecutor was entitled to respond to the unsubstantiated assertions Henson's and Seiler's respective attorneys made during their opening statements. Cf., e.g., Austin v. State, 700 So.2d 1233, 1235 (Fla.Dist.Ct.App. 1997); People v. Cannon, 614 N.E.2d 17, 23 (Ill.App.Ct. 1992); Commonwealth v. Hawkins, 701 A.2d 492, 510 (Pa. 1997). Moreover, as the prosecutor herself explained, she was using the word "fiction" as a shorthand means of distinguishing between evidence the jury could consider and statements, comments, and arguments they could not. She was not telling the jury the defendants' attorneys had lied to them.
The prosecutor's "fibs" statements are more problematic. Given the literal meaning of "fib," she should have chosen her words more carefully. Nonetheless, she apparently only used the word "fibs" on two occasions in her lengthy closing argument. Moreover, when her statements are considered in context, she was — at worst — attacking the integrity of Henson's attorney, not that of Seiler's attorney. Seiler cannot demonstrate the requisite prejudice even if the prosecutor's "fibs" statements were improper. See Anderson, 448 N.W.2d at 33.
A "fib" is "a trivial or childish lie." Webster's New Collegiate Dictionary 421 (1981).
Finally, none of the prosecutor's disputed statements were impermissible references to Seiler's failure to testify.
Whether a statement constitutes an improper reference on a defendant's silence at trial depends on whether (1) the prosecutor manifestly intended to refer to the defendant's failure to testify, or (2) the jury would naturally and necessarily interpret the statement to be a reference to the defendant's silence.
Van Hoff v. State, 447 N.W.2d 665, 675 (Iowa Ct. App. 1989). As was discussed above, the prosecutor had legitimate reasons for making many of the statements at issue. See State v. Bishop, 387 N.W.2d 554, 563 (Iowa 1986) ("We will not find that the prosecutor manifestly intended to comment on defendant's right to remain silent when an equally plausible explanation exists for his or her statement."). The prosecutor also did not explicitly state Seiler had not testified — indeed, many of the "fictions" and "fibs" she alluded to could have been substantiated without Seiler's testimony. See id. ("We are not required to ask `whether the "jury possibly or even probably would view the challenged remark in this manner but whether the jury necessarily would have done so."'") (citations omitted) (emphasis in original). The prosecutor's statements did not constitute inappropriate comments on Seiler's silence.
Seiler does not have a viable prosecutorial misconduct claim. Her counsel was not ineffective for failing to object to the prosecutor's "fiction" and "fibs" statements. We affirm the district court.
AFFIRMED.