Scarberry v. State
| Decision Date | 25 June 2003 |
| Docket Number | No. 3-334 / 02-1686.,3-334 / 02-1686. |
| Parties | <B>RONALD RUSSELL SCARBERRY,</B> Applicant-Appellant, v. <B>STATE OF IOWA,</B> Respondent-Appellee. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Warren County, Martha L. Mertz, Judge.
Ronald Scarberry seeks postconviction relief from his convictions for conspiracy to manufacture methamphetamine, possession of a precursor, and possession of methamphetamine. AFFIRMED.
Unes Booth of Booth Law Firm, Osceola, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, Gary Kendall, County Attorney, and Ryan J. Ellis, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Ronald Scarberry seeks postconviction relief from his convictions for conspiracy to manufacture methamphetamine, possession of a precursor, and possession of methamphetamine. Scarberry claims he received ineffective assistance of counsel due to counsel's failure to: (1) move to suppress statements Scarberry made during the investigation of a different crime; (2) move to suppress evidence seized following a traffic stop; (3) object to the introduction of a co-conspirator's conviction; (4) object to opinion evidence of intent; and (5) advise him to testify. We affirm.
On June 22, 1998, Scarberry was driving a car owned by Randy Fry, with Fry as the passenger, when he was stopped for speeding in Warren County by a state trooper. The trooper asked Scarberry for consent to search the car, and Scarberry replied the car belonged to Fry. Fry gave verbal consent, and Scarberry then gave written consent to search the vehicle. Inside the car there was a box of razor blades, a cellular phone, a scanner, a portable scanner, a walkie-talkie, and a large quantity of pseudoephedrine. The trunk contained more pseudoephedrine, lithium batteries, muriatic acid, plastic fuel tanks, plastic tubing, and gloves. Scarberry had $1690 in cash and .9 grams of methamphetamine on his person.
Scarberry was arrested and charged with conspiracy to manufacture methamphetamine, in violation of Iowa Code section 124.401(1)(b)(7) (1997), possession of a precursor, in violation of section 124.401(4), and possession of methamphetamine, in violation of section 124.401(5). Scarberry was represented by an attorney, and was released pending trial.
In November 1998 Scarberry was arrested on unrelated charges in Polk County. Scarberry was informed of his Miranda rights prior to questioning by police officer Patrick Hickey. Scarberry agreed to talk to Hickey, and he explained the process he used to manufacture methamphetamine, including the length of time the process took and the fact the necessary materials were readily available. He admitted to manufacturing the drug for his personal use.
The State called Hickey to testify to these statements during Scarberry's criminal trial on the Warren County charges. Jerry Nelson, a special agent with the Iowa Division of Narcotics Enforcement, and Nila Bremer, a criminalist with the Iowa Division of Criminal Investigation, testified the items found in the vehicle were consistent with the manufacture of methamphetamine. Scarberry did not testify at his criminal trial. A jury found him guilty of the crimes charged.
Scarberry was sentenced to terms of imprisonment of twenty-five years on the conspiracy charge, five years on the possession of a precursor charge, and one year on the possession of methamphetamine charge, all to be served concurrently. Scarberry appealed, and we upheld his conviction. State v. Scarberry, No. 99-0885 (Iowa Ct. App. Apr. 28, 2000).1
In his present postconviction proceedings, Scarberry claims he received ineffective assistance of counsel during his criminal trial and on appeal. The district court denied Scarberry's request for postconviction relief, finding Scarberry received representation which was within the normal range of competency. Scarberry appeals.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a postconviction applicant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied an applicant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the applicant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct. App. 1994).
Scarberry claims he received ineffective assistance due to counsel's failure to move to suppress his statements to Hickey based on his right to counsel under the Sixth Amendment. He asserts he had invoked his right to counsel on the Warren County charges and that the State could not question him without the presence of counsel.
The Sixth Amendment gives a defendant the right to the assistance of counsel. U.S. Const. amend. VI. Our Sixth Amendment analysis involves a two-step inquiry: (1) whether the right to counsel had attached when Scarberry made the incriminating statements; and (2) if so, whether he waived his right before making the statements. See State v. Nelson, 390 N.W.2d 589, 591 (Iowa 1986); State v. Findling, 456 N.W.2d 3, 6 (Iowa Ct. App. 1990).
The right to counsel attached upon the initiation of adversarial criminal judicial proceedings. State v. Johnston, 406 N.W.2d 794, 796 (Iowa Ct. App. 1987). It is clear criminal proceedings against Scarberry had been initiated in Warren County at the time he made the statements in question, and his right to counsel had attached. Our supreme court has stated, "our constitution prohibits agents of the State from initiating any conversations or dealing with an accused concerning the criminal charge on which representation of counsel has been sought."2 State v. Newsom, 414 N.W.2d 354, 359 (Iowa 1987) (emphasis added).
Under the Sixth Amendment, the State could not question Scarberry about the Warren County charges absent the presence of counsel or a valid waiver. See Nelson, 390 N.W.2d at 592. Scarberry admitted, however, he was not questioned about the charges in Warren County at the time he spoke to police officers in November 1998. Scarbarry's invocation of the Sixth Amendment regarding the Warren County charges would not bar police-initiated questions concerning other crimes. See McNeil v. Wisconsin, 501 U.S. 171, 182, 111 S. Ct. 2204, 2211, 115 L. Ed. 2d 158, 171 (1991). We conclude there was no Sixth Amendment violation necessitating suppression of Scarberry's statements to the officers in Polk County regarding a separate crime.
In the alternative, we determine Scarberry waived his right to counsel. Prior to talking to Scarberry, the police officers informed him of his Miranda rights. In Patterson v. Illinois, 487 U.S. 285, 299, 108 S. Ct. 2389, 2398-99, 101 L. Ed. 2d 261, 277 (1988), the United States Supreme Court held that a defendant's waiver of Miranda rights is sufficient to waive his Sixth Amendment right to counsel. See also State v. Tovar, 656 N.W.2d 112, 118 (Iowa 2003). The Miranda warnings informed Scarberry of the consequences of his statements. See Findling, 456 N.W.2d at 7.
The district court ruled, "There is no evidence if a motion to suppress was filed on Sixth Amendment grounds Scarberry would have been successful." We determine Scarberry did not receive ineffective assistance due to counsel's failure to move to suppress his statements to Hickey based on his right to counsel under the Sixth Amendment.
Scarberry contends his trial counsel should have moved to suppress the admission of the items seized from the vehicle on the ground the seizure violated the Fourth Amendment. Scarberry admits that because he was speeding, the state trooper had reasonable cause to stop the vehicle he was driving. See State v. Gillespie, 619 N.W.2d 345, 351-52 (Iowa 2000) (citing Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996)). He asserts his consent to search the vehicle was invalid because he was illegally detained after he had been issued a citation for speeding. See Florida v. Royer, 460 U.S. 491, 507-08, 103 S. Ct. 1319, 1329, 75 L. Ed. 2d 229, 243 (1983).
Warrantless searches and seizures are per se unreasonable unless they fall within one of the carefully drawn exceptions to the warrant requirement. State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996). Valid exceptions are those based on: (1) consent; (2) probable cause and exigent circumstances; (3) items in plain view; or (4) search incident to arrest. Id. The search in this case was based on consent. Both Scarberry, the driver, and Fry, the owner of the vehicle, consented to the search.3
The evidence does not show Scarberry was illegally detained at the time he gave his consent. Scarberry gave his consent after he had been given a citation for speeding. As the State points out, the trooper had no identification or property of Scarberry's, and Scarberry had everything he needed to continue his trip. Scarberry was not considered detained, or "seized," within the meaning of the Fourth Amendment because he was free to continue on his way. See United States v. Morgan, 270 F.3d 625, 630 (8th Cir. 2001); United States v. Beck, 140 F.3d 1129, 1135 (8th Cir. 1998); United States v. White, 81 F.3d 775, 779 (8th Cir. 1996). Scarberry has failed to show trial counsel was ineffective due to his failure to seek to...
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