State of Iowa v. Terrell Lamont Bailey ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-0909
Filed October 29, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TERRELL LAMONT BAILEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Mary Ann
Brown, Judge.
Terrell Bailey appeals from his convictions for possession of a controlled
substance with intent to deliver and two counts of possession of a controlled
substance. AFFIRMED.
Thomas Hurd of Glazebrook, Moe, Johnston & Hurd, L.L.P., Des Moines,
for appellant.
Thomas J. Miller, Attorney General, Alexandra Link and Kevin Cmelik,
Assistant Attorneys General, Patrick C. Jackson, County Attorney, and Tyron T.
Rogers, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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PER CURIAM
Terrell Bailey appeals his convictions for possession of marijuana with
intent to deliver and two counts of possession of a controlled substance. Bailey
claims his trial attorney was ineffective in failing to object to the State’s
questioning, which elicited opinions on the ultimate issue of his intent to distribute
the marijuana in his possession. He further claims counsel was ineffective in
failing to object to the jury instruction defining “knowledge.” Therefore, we affirm
the conviction and preserve both ineffective-assistance-of-counsel claims for
postconviction-relief proceedings to allow counsel an opportunity to address the
claims. See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct. App. 1998).
AFFIRMED.
All judges concur except Vogel, J., who concurs specially.
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VOGEL, P.J. (concurring specially)
Given the record now before us, I believe Bailey’s ineffective-assistance
claims can be resolved on direct appeal, and that neither have merit.
Consequently, I would deny both claims rather than preserving them for possible
postconviction relief proceedings.
The facts of this case are important to Bailey’s ineffective-assistance
claims. In the early morning hours of June 22, 2012, Officer Jason Webster
pulled over a vehicle in which Bailey and three others were passengers. Bailey
was in the back seat. When Officer Webster shone a flashlight on Bailey, the
officer observed what appeared to be marijuana on Bailey’s lap. Bailey was
ordered out of the car, handcuffed, and told he was being detained. Officer
Robert Rohrer, a detective in the Southeast Iowa Narcotics Task Force, was also
on the scene. He attempted to scrape the marijuana off of Bailey’s pants and,
while doing so, a bag of pills fell out of Bailey’s shirt. Bailey was then placed in
the back of the patrol car, at which point Officer Rohrer noticed a bag of
marijuana protruding from Bailey’s pant leg. The bag also contained what was
later determined to be cocaine and four hydrocodone pills, along with the 35.52
grams of marijuana. A further search turned up approximately $100 in Bailey’s
pocket and $400 in his sock.
Bailey takes issue with three portions of the officers’ testimony. The first
exchange between the State and Officer Webster took place as follows:
Q: And you’ve indicated that you’ve had many instances
where you’ve come across individuals who possessed marijuana?
A: Yes.
Q: Based on your experience, the amount of marijuana that
you saw in the baggie, did that appear to you to be a small amount
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of marijuana or a more significant amount of marijuana? A: In my
training and experience, it’s more than personal use, what Mr.
Bailey had.
The second exchange was between the State and Officer Rohrer:
Q: Based upon your experience, both when you were a
patrol officer and as a member of the task force, in dealing with
people who you knew to be a user—only users of marijuana, was
there a range of weights that they would—that they would generally
possess?
....
A: It’s hard to say in a range-wise, but I would say typically
under like ten grams, would be what I experience.
Q: You said under ten grams, but what I’m wondering is
based on your experience, is there—is there a range within that ten
gram limit that would be typical for a person who is just a user,
based on your experience? A: I will say probably between 1.75
grams and seven and a half grams.
Q: Okay. Based upon your experience both as a patrol
officer and your experience on the Drug Task Force, in your
experience, what is the most marijuana that you have ever
encountered a person who you knew to be only a user possess?
A: I think the most I can probably recall would be seven and a half
to eight grams.
Q: So would it be correct that a person who possesses thirty-
five or so grams has many times the amount of marijuana that a
typical user would possess? A: Yes.
....
Q: Detective Rohrer, based upon your training, your
education, your experience, and the specific factors of this case, is
the marijuana that you seized from the Defendant’s pant leg
consistent with marijuana for sale or marijuana for personal use?
A: Marijuana for sale.
....
Q: So it would be correct that the amount of marijuana that
was located in the defendant’s leg, it was several times more than
what in your experience a typical user possesses? A: That’s
correct.
The State also examined Detective Chiprez, during which the following
exchange occurred:
Q: Detective, based on your extensive experience in the
area of dealing with individuals who possess marijuana and your
review of the evidence in this case, is the marijuana in this case
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consistent with possession for sale or transfer to another person—
or is it consistent with possession for personal use only?
....
A: It’s consistent with possession with intent to sell.
Bailey argues that this combined testimony served to invade the province
of the jury regarding the intent element for the possession with intent to deliver
charge. Specifically, he cites two cases from the 1970’s—State v. Nimmo, 247
N.W.2d 228, 229–30 (Iowa 1976), and State v. Ogg, 243 N.W.2d 620, 621 (Iowa
1976)—for the proposition that expert witnesses cannot testify the defendant had
the intent to sell the controlled substance at issue. Consequently, he asserts,
trial counsel was ineffective for failing to make the proper objections regarding
the officers’ statements.
It is well settled that experts may testify about their opinion on an issue
within their knowledge or expertise, though this testimony may not invade the
province of the jury regarding an ultimate issue of fact. See State v. Dinkins, 553
N.W.2d 339, 341 (Iowa Ct. App. 1996) (noting this rule does not prohibit
otherwise admissible expert testimony because it may “embrace an ultimate
issue to be decided by the trier of fact”). However:
The State may not ask whether an expert has an opinion or
believes the defendant is guilty of the crime, or possessed drugs for
sale as opposed to personal use. The State may properly ask a
qualified expert, however, whether the particular facts of the case,
stemming from the expert’s field of expertise, would be
characterized as drug dealing or drug consumption.
Id. (internal citations omitted). This distinction highlights the fine line between
opinions that improperly interfere with the jury’s role in determining guilt or
innocence for specific intent crimes, and those opinions that properly
characterize the defendant’s conduct based on the facts. See id.
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Specifically in the context of drug cases, expert testimony regarding the
consistency of the facts of the case with general traits and patterns of drug
dealer’s modus operandi is often necessary “because the quality and quantity of
drugs, the manner of packaging, the manner of secretion, the presence of drug
paraphernalia, and many other circumstances may reflect whether drugs are
possessed for personal use or for distribution.” Id. Without this expert testimony,
the significance of such facts will often be unknown to the jury. See id.
Consequently, our courts have upheld the admission of expert testimony that
offers an opinion regarding the consistency of the facts of the case with a drug
dealer’s modus operandi, as opposed to the mere possession for personal use.
See id. at 342 (upholding the admission of testimony that the amount of drugs in
the case and the lack of other drug paraphernalia “indicates a dealer”); State v.
Olsen, 315 N.W.2d 1, 6–7 (Iowa 1982) (finding admissible testimony that the
evidence found on the defendant “fit into the method of operation of a person
who was selling drugs for profit”).
It is notable Dinkins was decided after Iowa Rule of Evidence 5.704
established that an expert’s testimony that is “otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of
fact.”1 Furthermore, our case law recognizes the need for the jury to hear the
1
The official comment reads:
This section is consistent with Iowa law. See, e.g., Grismore v.
Consolidated Products Co., 5 N.W.2d 646, 232 Iowa 328 (1942). Note,
however, that while this section and prior Iowa case law abolish the so-
called ultimate issue rule, testimony from experts is not without
limitations. Experts are not to state opinions as to legal standards. On
this basis, questions such as whether X was negligent or whether a
product was unreasonably dangerous may be excluded. Aller v. Rodgers
Machinery Mfg. Co., Inc., 268 N.W.2d 930 (Iowa 1978).
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expert testimony of officers who are familiar with the modus operandi of drug
dealers, and who can testify about the quantity of drugs that is consistent with the
amount a drug dealer possesses. See Dinkins, 553 N.W.2d at 341; see also
State v. Grant, 722 N.W.2d 645, 648 (Iowa 2006) (citing Dinkins, 553 N.W.2d at
342, and noting with approval the police officer’s testimony “that one purchasing
methamphetamine for personal use in the quantity that was involved here would
ordinarily receive the substance in bulk packaging form”); State v. Shumpert, 554
N.W.2d 250, 254 (Iowa 1996) (holding counsel was not ineffective for failing to
object to police officer’s statement that the manner in which the crack cocaine
was found indicated a dealer, given the testimony was properly admitted). The
fact that these cases were decided more recently, and after it was established
the jury should hear the opinion testimony of officers familiar with the modus
operandi of drug dealers, distinguishes them from Nimmo and Ogg, the cases on
which Bailey relies.
Here, the officers’ testimony was confined to their opinion that the amount
of drugs Bailey possessed was consistent with the quantity of marijuana
possessed by someone with the intent to sell. Thus, our more recent case law
counsels that these opinions did not cross that “fine but essential line.” Dinkins,
553 N.W.2d at 341; see also Grant, 722 N.W.2d at 648. Consequently, Bailey
was not prejudiced by trial counsel’s failure to object to the testimony on the
grounds of improper opinion testimony. See State v. Greene, 592 N.W.2d 24, 29
(Iowa 1999) (holding counsel does not breach an essential duty when declining
to pursue a meritless objection).
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I would also deny Bailey’s ineffective-assistance claim based on trial
counsel’s failure to object to jury instruction fourteen defining knowledge. The
jury instruction stated: “For the defendant to ‘know’ or ‘have knowledge of’ means
he had a conscious awareness that the substance he possessed was marijuana”
(emphasis added). “When a single jury instruction is challenged, it will not be
judged in isolation but rather in context with other instructions relating to the
criminal charge.” State v. Stallings, 541 N.W.2d 855, 857 (Iowa 1995). The
other jury instructions in this case properly stated the law and the State’s burden
on each charge. Jury instruction eighteen informed the jury that, to find Bailey
guilty of possession of cocaine, it must find he “knowingly or intentionally
possessed cocaine HCL.” Jury instruction nineteen was similarly phrased—to
find Bailey guilty of possession of hydrocodone, he must have “knowingly or
intentionally possessed hydrocodone.”
Viewed as a whole, I would conclude the instructions did not lower the
State’s burden on the possession charges. It is clear instruction fourteen
contained a typographical error, and, combined with the other proper instructions,
did not serve to prejudice the jury. See Anderson v. Webster City Cmty. Sch.
Dist., 620 N.W.2d 263, 267–68 (Iowa 2000) (noting prejudice only results “when
the trial court’s instruction materially misstates the law, confuses or misleads the
jury, or is unduly emphasized” and holding that, even though one instruction
improperly commented on the evidence, when considered as a whole the
instructions did not mislead the jury). Consequently, trial counsel was not
ineffective for failing to object to this instruction. See Greene, 592 N.W.2d at 29
(noting counsel is not ineffective for declining to pursue a meritless objection).
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For these reasons, I would affirm Bailey’s convictions and deny his
ineffective-assistance claims on the merits.