Opinion
No. 3-521 / 02-1412
Filed August 27, 2003
Appeal from the Iowa District Court for Des Moines County, Michael R. Mullins, Judge.
Kelvin Willform appeals from the judgment and sentence entered upon his conviction for possession of marijuana, third offense. AFFIRMED.
Linda Del Gallo, Appellate Defender and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Michael Walton and Gerald Feurebach, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Kelvin Willform appeals from the judgment and sentence entered upon his conviction for possession of marijuana, third offense, in violation of Iowa Code sections 124.401(3) and 902.8 (1999). We affirm.
I. Background Facts and Proceedings.
Brandi Black is the mother of three children. Willform is the father of two of her children. The two never married and separated after four years of living together. When the relationship ended, a no-contact order was issued preventing Willform from having contact with Black.
On February 11, 2002, Black was driving around West Burlington, Iowa, with her children and sister. At this time, Black was five months pregnant with Willform's second child. Black approached Officer Mark Moore and asked him to accompany her home because she was concerned Willform was there in violation of the no-contact order. Officer Moore agreed to escort her home. When they arrived at her home, Black noticed Willform's heavy leather and fur jacket on the stairs to the second floor. Officer Moore threw the jacket into the kitchen and called for assistance.
A few minutes later Officers Clint Williams and Charles Thompson arrived at the Black residence. The three Officers searched the second floor but found no one there. Then they checked the basement and found Willform hiding in a corner. Willform was arrested for violating the no-contact order, and officers patted him down for weapons but found none. Inside the squad car, Willform asked Officer Moore to search his pockets "because he said he didn't want anything planted on him." After Willform was secured in the squad car, Officers Moore and Thompson returned to the house. Officer Moore took photographs of the damage to the front door lock while Officer Thompson did a "squeeze down" of Willform's jacket for weapons. Officer Thompson felt some change in one pocket and when he reached inside he found some coins and a scrap of paper, which he showed to Black and her sister before putting them back. When they arrived at the jail Officer Thompson handed the jacket to Officer Jack Brisser. Officer Brisser, in the presence of Willform, completed a routine property check of the pockets of the jacket. He found a yellow piece of paper with a note on it, some change, and a small baggy of marijuana. Willform acted like he was surprised and said "nice try."
On February 21, 2002, Willform was charged by trial information with possession of marijuana, third offense. At trial, Willform's defense was that the police "planted" the marijuana in his jacket. Following trial, the jury returned a verdict of guilty. The district court sentenced Willform to a term of incarceration not to exceed fifteen years. He appeals.
II. Ineffective Assistance of Counsel.
Willform claims he was denied effective assistance of counsel. Our review
of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
The defendant bears the burden of demonstrating ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Willform claims he received ineffective assistance of counsel when his counsel (1) failed to file a motion to suppress the marijuana; (2) failed to "properly articulate a motion for judgment of acquittal" and thus, did not preserve his sufficiency argument for review; (3) failed to object to the admission of the marijuana; (4) failed to request three additional jury instructions; and (5) failed to properly elicit testimony from Officer Thompson regarding his alleged racial bias. We conclude the record in this case is adequate for us to decide claim one and claim four as it applies to one of the three requested jury instructions. Therefore, we shall decide those issues and preserve the other ineffective assistance of counsel claims for possible postconviction relief proceedings.
A. Motion to Suppress. Willform contends his trial counsel should have filed a motion to suppress the admission of the marijuana because officers violated his right to be free from unreasonable search and seizure. The State argues Willform did not have a legitimate expectation of privacy in Black's home and, therefore, could not challenge the warrantless search. Our supreme court stated in State v. Ortiz, 618 N.W.2d 556 (Iowa 2000):
A person challenging the legality of a search must first show a legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2256, 2561, 65 L.Ed.2d 633, 641 (1980); State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995).
We have said `[t]he determination of whether a person has a legitimate expectation of privacy with respect to a certain areas is made on a case-by-case basis, considering the unique facts of each particular situation. [ State v.] Breuer, 577 N.W.2d [41], 46 [(Iowa 1998)]. Additionally, the expectation of privacy must be one that society considers reasonable, an issue that involves reference to property law or to understandings that are recognized and permitted by society. Id. The party challenging a search must establish that this or her own Fourth Amendment rights have been violated, not the rights of someone else such as, in this case, the householder. See Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387, 393 n. 1 (1978).
The Supreme Court has said a defendant challenging the search must show (1) a subjective expectation of privacy and (2) this expectation of privacy was reasonable in light of `long-standing social custom[s] that serve functions recognized as valuable by society.' Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85, 94 (1990); see also 5 Wayne R. LaFave, Search Seizure § 11.3, at 118-19 (3d ed. 1996).
Ortiz, 618 N.W.2d at 559. Since Willform was at Black's home in violation of a no-contact order, we conclude that he had neither a subjective nor an objective expectation of privacy in her home. As the Supreme Court stated in Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421 at 430 n. 12, 58 L. Ed.2d at 401 n. 12.
Obviously, however, a "legitimate" expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as "legitimate." His presence . . . is "wrongful"; his expectation is not "one that society is prepared to recognize as reasonable."'
Accordingly, we find Willform did not have a legitimate expectation of privacy in Black's home and, therefore, counsel was not ineffective in failing to challenge the warrantless search.
B. Jury Instruction. Willform also argues trial counsel was ineffective for failing to request three additional jury instructions. We deal only with one of the three requested instructions.
The district court has a duty to instruct fully and fairly on the law regarding all issues raised by the evidence. State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). The court may phrase the instructions in its own words as long as the instructions given fully and fairly advise the jury of the issues it is to decide and the law which is applicable. Id. When a single instruction is challenged, it will be judged in context with other instructions relating to the criminal charge, not in isolation. Id. Any error in jury instructions must be prejudicial to warrant reversal. State v. Countryman, 572 N.W.2d 553, 561 (Iowa 1997).
Willform contends trial counsel should have requested a confession instruction. He argues that his comment "nice try" is tantamount to a confession of knowledge that the substance was marijuana and, thus, the jury should have been instructed that a confession alone does not warrant conviction unless accompanied with other proof that the defendant committed the offense. See Iowa R.Crim.P. 2.21(4). We agree with the State that the comment "nice try" does not amount to a confession. A confession is an acknowledgement in express terms, by a party in a criminal case, of his guilt of the offense charged. State v. Olson, 149 N.W.2d 132, 136 (Iowa 1967). If anything, this comment was exculpatory. Therefore, we conclude trial counsel did not fail to perform an essential duty.
Accordingly, we affirm Willform's conviction and sentence and preserve all other claims of ineffective assistance of counsel for possible postconviction relief proceedings.