State v. Hartsfield, 3-375 / 02-0744.
| Decision Date | 13 August 2003 |
| Docket Number | No. 3-375 / 02-0744.,3-375 / 02-0744. |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. NAPOLEON HARTSFIELD, Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Scott County, David E. Schoenthaler, Judge.
Napoleon Hartsfield appeals his convictions and sentences, following a bench trial, for possession of crack cocaine with intent to deliver and failure to affix a drug tax stamp.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Napoleon Hartsfield, Fort Madison, for appellant pro se.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, William Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Napoleon Hartsfield appeals his convictions and sentences, following a bench trial, for possession of crack cocaine with intent to deliver and failure to affix a drug tax stamp. Hartsfield contends (1) there was insufficient evidence to support either the drug tax stamp conviction or the possession with intent to deliver conviction, (2) Iowa Rule of Appellate Procedure 6.13(2) and the "copying fee" policy of the state appellate defender's office are unconstitutional, (3) the trial court abused its discretion in imposing restitution, and (4) trial counsel was ineffective in several ways. We affirm in part, reverse in part, and remand for entry of judgment of acquittal on Count II.
The record before us reveals the following facts. While on routine patrol at approximately 8:00 p.m. on September 4, 2001, Davenport Police Officers Brown and Welke saw Hartsfield driving a Cadillac with no front plates. The officers knew Hartsfield from previous encounters with him and were aware he did not have a driver's license. The officers turned around and followed Hartsfield in order to perform a traffic stop, at which time they noticed there was a female in the front passenger seat with him. A traffic stop became unnecessary when Hartsfield stopped and parked the vehicle in front of an apartment building. Hartsfield got out of the car and walked quickly into the apartment building.
The officers pulled into a nearby alley and Officer Brown entered the front door of the apartment building while Officer Welke went to the back door. After entering the front door of the apartment building Officer Brown observed Hartsfield walk towards the back door. When Hartsfield got to the area of a banister near a cubbyhole, Officer Brown saw his right arm come outward toward the cubbyhole and saw him open up his fingers as he made a throwing motion to the right side. However, Brown did not hear anything hit the floor or see anything leave Hartsfield's hand. Hartsfield then immediately turned around and began walking toward the front of the building and met Officer Brown. When Brown asked him what he was doing, Hartsfield replied that he was trying to find someone to drive his car and was going upstairs to get someone. Brown asked him why he was driving without a license and Hartsfield stated he was aware he was doing so and was at the apartment building to find someone else to drive.
Based on Hartsfield's suspicious behavior Brown decided at that point to do a pat down search for officer safety purposes. Officer Welke entered the building while Brown was conducting the pat down search. Brown found no weapons on Hartsfield. Welke then went outside to Hartsfield's vehicle. After doing the pat down search, Officer Brown quickly looked at the area around the cubbyhole where Hartsfield had made the throwing motion. He noticed garbage and debris but did not at that time see any contraband. However, he testified he did not feel comfortable doing a thorough search of the area at that point because his back had to be turned toward Hartsfield. Brown then took Hartsfield to the squad car.
Prior to placing him in the squad car Brown searched Hartsfield again and asked him to take off his shoes. As Hartsfield took off his shoes $446 fell out of one of the shoes. Brown testified that when he asked Hartsfield where he got the money Hartsfield told Brown he was a "good hustler."
After placing Hartsfield in the squad car Officer Brown went back into the apartment building. He did not see anyone or hear any noise from the upper floors. Brown went back to search the area where Hartsfield had made the throwing motion and found six individually wrapped rocks of crack cocaine by the banister. The bags in which the crack was wrapped were wet. Brown then went back to the squad car, showed Hartsfield the crack, and read him the Miranda warnings which Hartsfield indicated he understood. Brown then asked Hartsfield if the rocks of crack were his. Hartsfield initially denied they were his, but when asked a second time stated they were his and he was going to take his girlfriend to the motel and smoke them. When asked why the bags were wet Hartsfield stated he had them in his mouth. Brown also testified that Hartsfield told him the money in his shoe was from selling crack. Hartsfield apparently explained to Brown that he would obtain money from a buyer, buy crack from a seller, and then deliver the crack to the buyer, skimming off one-half of the money for himself.
While Officer Brown was dealing with Hartsfield, Officer Welke spoke with the passenger in Hartsfield's car. He discovered the passenger was an eighteen-year-old female with an open container of alcohol. After searching the car, Welke discovered a glass pipe, a piece of steel wool, and a small rock of crack cocaine under the arm rest of the car toward the driver's side of the vehicle. It was later determined the rock of crack found in the car weighed .07 of a gram. Welke stated he did not arrest the woman because she seemed unaware that the paraphernalia and crack were in the car.
Hartsfield was charged by trial information with possession of crack cocaine with intent to deliver (Count I), in violation of Iowa Code sections 124.401(1)(c)(3), 124.206(2)(d) and 703.1 (2001), failure to affix a drug tax stamp (Count II), in violation of Iowa Code sections 453B.1(3)(d), 453B.12 and 703.1, possession of drug paraphernalia (Count III), in violation of section 124.414(2) and (3), and failure to have a valid driver's license (Count IV), in violation of section 321.174. The State later amended Counts I and II of the trial information to charge Hartsfield as an habitual offender under section 902.8.
Jury trial was held on Counts I through III, the State having dismissed Count IV. During trial Hartsfield moved for mistrial because the forfeiture proceedings involving the money found on him at the time of his arrest were not properly conducted and the jury had heard evidence of the forfeiture. The State concurred in Hartsfield's motion and the court granted the motion for mistrial. A second jury trial resulted in a hung jury and a second mistrial.
A third jury trial commenced. After the jury was selected and sworn in Hartsfield requested a bench trial instead and signed a written waiver of his right to jury trial. The State consented to his waiver of jury trial and the case proceeded as a bench trial. At the close of the State's evidence Hartsfield moved for a judgment of acquittal on Counts I and II. He also conceded that there was sufficient evidence to prove he possessed drug paraphernalia (Count III) and possessed the .07 gram rock of crack cocaine. However, he argued there was insufficient evidence to prove he possessed with intent to deliver the six rocks of crack that were found in the apartment building, as there was insufficient evidence to establish his dominion and control of them. The court denied the motion.
Following trial the trial court issued on the record its findings of fact, conclusions of law, and verdicts. The court found Hartsfield guilty on all three counts tried to the court. Bench trial on Hartsfield's habitual offender status commenced shortly after the court read the verdict. Hartsfield became disruptive during the proceedings and voluntarily waived his presence for the remainder of the hearing. The court found Hartsfield was an habitual offender for sentencing purposes.
At a sentencing hearing the court sentenced Hartsfield to a term of incarceration not to exceed fifteen years on the possession with intent to deliver charge (Count I), including the mandatory minimum sentence pursuant to section 124.413. Hartsfield was also fined $1000 plus a $10 D.A.R.E. surcharge on Count I. The court imposed a term of incarceration not to exceed fifteen years, a $1000 fine, and a $10 D.A.R.E. surcharge on the drug tax stamp violation (Count II), and sentenced Hartsfield to a thirty-day term on the possession of drug paraphernalia charge (Count III). The court ordered these terms of incarceration to run concurrently with one another, but consecutively to sentences imposed in three other cases not at issue here.
Hartsfield appeals from this judgment and sentence through both appellate counsel and a pro se supplemental brief. In appellate counsel's brief Hartsfield contends there was insufficient evidence to support his conviction for failure to affix a drug tax stamp. Hartsfield's pro se brief alleges (1) Iowa Rule of Appellate Procedure 6.13(2) and the state appellate defender's "copying policy" violate his due process, equal protection, and "access to the courts" rights under the state and federal constitutions, (2) there was insufficient evidence to convict him of possession of crack cocaine with intent to deliver, and (3) the court abused its discretion in ordering restitution. Hartsfield's pro se brief also alleges several grounds of ineffective assistance of trial counsel. We address these issues separately.
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