State v. Martin

• Decision Date: 07 October 2005
• Docket Number: No. 04-0025.,04-0025.
• Parties: STATE of Iowa, Appellee, v. Edward MARTIN, III, Appellant.
• Court: Iowa Supreme Court

704 N.W.2d 665

STATE of Iowa, Appellee, v. Edward MARTIN, III, Appellant.

No. 04-0025.

Supreme Court of Iowa.

October 7, 2005.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Heather Prendergast and Jill Dashner, Assistant County Attorneys, for appellee.

STREIT, Justice.

During a routine "pat-down," a Waterloo police officer discovered a crack pipe in Edward Martin's pants. Martin, who was convicted of cocaine possession, claims he was denied effective assistance of counsel because his lawyer did not object when a hearsay-ridden evidence tag made its way to the jury room. Finding no prejudice, we vacate the decision of the court of appeals and affirm the district court. Martin also argues the district court abused its discretion by allowing testimony recounting prior robbery arrests and describing Martin as a violent person. Although it was error to allow such testimony, the error was harmless.

I. Facts and Prior Proceedings

On July 26, 2003, Waterloo police received a report that a man was "pimping" a female in the 200 block of West Third Street. The police stopped Edward Martin, III, who was in the area and matched the suspect's general description. One of the officers dispatched to the scene knew Martin had prior arrests for robbery and assault on a police officer. The officer concluded Martin had violent tendencies. Martin was also wearing baggy clothes, which the officer surmised might conceal a weapon. The officer asked Martin if he could pat him down. Martin refused.

The officer forcibly began a pat-down. Twice during the pat-down, Martin made a quick, furtive movement towards his pants-pocket. One of the officers suspected Martin had something in his pocket he did not want them to find. The officer manipulated the outside of Martin's pocket and felt a hard object. The officer reached in and pulled out a metal crack pipe. Discovering burnt residue inside the pipe, the officer arrested Martin for possession of cocaine. See Iowa Code § 124.401(5) (2003). Later tests confirmed the residue was cocaine.

At trial, the State introduced the crack pipe into evidence as "Exhibit A." Martin alleges the judge permitted the crack pipe to go to the jury in an envelope with an evidence tag attached. The manila envelope bears an "Exhibit A" sticker and a tag with the following writing:

CASE NO. W03-66194 DATE 072803 NAME Edward Martin III ADDRESS 316 E. Mullan TAKEN BY Mark McKinley DEVELOPED BY PRINTED BY REMARKS Narcotics A

Inside the envelope is a paper sack containing a crack pipe. Martin's lawyer did not object to the envelope at trial. The jury later found Martin guilty.

Martin appealed. The court of appeals held Martin's trial counsel was ineffective for failing to object to the evidence tag. The court reasoned the writing on the envelope constituted unfair hearsay that was prejudicial to Martin's case.¹ We granted the State's application for further review.

II. Standard of Review

We review ineffective-assistance-of-counsel claims de novo. See, e.g., State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005)

; State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005); State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004).

III. The Merits

A. The Evidence Tag

We have long held it is error for the district court to allow the prosecution to submit evidence to the jury with statements written on attached evidence tags. See, e.g., State v. Shultz, 231 N.W.2d 585, 587 (Iowa 1975)

; State v. Branch, 222 N.W.2d 423, 426-27 (Iowa 1974); see also State v. Gallup, 500 N.W.2d 437, 440-41 (Iowa 1993) (finding error but concluding it was harmless). But see State v. Christensen, 205 Iowa 849, 851, 216 N.W. 710, 711 (1927) (finding "no error or prejudice" because court gave limiting instruction). Not only may evidence tags contain hearsay, but they can also unfairly emphasize the State's evidence. Branch, 222 N.W.2d at 426-27. "Once an exhibit has been received in evidence, no proper purpose exists for leaving attached to it an [evidence] tag which summarizes the State's testimony regarding the exhibit." Shultz, 231 N.W.2d at 587.

In Branch, we reversed a conviction for delivery of a controlled substance because an evidence tag contained a "neat condensation of the [State's] whole case against the defendant" — the name of the drug, the times and dates of the sale and the delivery, the name of the defendant, the purchase price, and the names of the police officers and special agent involved in the sting. 222 N.W.2d at 425-27. Likewise, in Shultz we reversed a conviction for breaking and entering because the tag contained a concise summary of the case — the place where the evidence was found, the date and time of its recovery, the defendant's name, the charge, the name of the victim, and the name of the officer who recovered the evidence. 231 N.W.2d at 587. In contrast, in Gallup, we held any error in submitting an evidence tag to the jury was harmless because the defendant, charged with delivery of a controlled substance, had admitted he had sold the drug to an undercover agent. 500 N.W.2d at 440-41.

On appeal, Martin contends his case is like Branch and Shultz, not Gallup, because unlike the defendant in Gallup, he never made an admission. The court of appeals agreed. Relying on Branch, the court presumed the evidence tag was prejudicial. The court held that Martin's trial counsel was ineffective in not objecting to the admission of the exhibit when it still had the property tag affixed to the outside envelope.

We find a critical distinction between the present case and Branch, Shultz, and Gallup. In those three cases, we analyzed whether the trial court had abused its discretion in overruling the defendant's objection to the admission of the property tag on the piece of evidence. Gallup, 500 N.W.2d at 440-41; Shultz, 231 N.W.2d at 587; Branch, 222 N.W.2d at 426. In the present case, the trial court was not presented with the opportunity to rule on such an objection, and "[g]enerally, when a party makes no objection to the reception of evidence at trial, the matter will not be reviewed on appeal." Wirtanen v. Provin, 293 N.W.2d 252, 257 (Iowa 1980); see also Iowa R. Evid. 5.103(a) (stating "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . a timely objection or motion to strike appears of record"). Martin did not object to the envelope. Consequently, the trial court was not alerted to the issue so that the error could be avoided, and the state was not given the opportunity to remove the tag or establish that it was not prejudicial. We cannot, therefore, analyze whether the court abused its discretion in admitting the evidence. We must only analyze this case under ineffective-assistance-of-counsel principles. See, e.g., State v. Brooks, 540 N.W.2d 270, 273 (Iowa 1995)

(requiring defendant to establish prejudice in case in which no objection was made to evidence tags at trial); see also State v. Carberry, 501 N.W.2d 473, 477 (Iowa 1993) ("Defendant urges . . . all hearsay testimony is presumed to be prejudicial. The cases stating that proposition, however, involved alleged evidentiary error preserved by contemporaneous objection.").²

To prove a claim of ineffective assistance of counsel, Martin must show by a preponderance of the evidence that his trial counsel (1) failed to perform an essential duty and (2) prejudice resulted. Philo, 697 N.W.2d at 485 (citations omitted); accord Rompilla v. Beard, ___ U.S. ___, ___, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360, 377 (2005)

("Ineffective assistance . . . is deficient performance by counsel resulting in prejudice. . . ."). To prove prejudice on this test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

We will focus solely upon the second prong of this test because we find Martin cannot show prejudice. See State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003)

(recognizing failure to prove either prong of test is fatal to ineffective-assistance-of-counsel claim). Although it contained hearsay, the particular tag in this case did not provide the jury with "a neat condensation of the [State's] whole case against the defendant." Cf. Branch, 222 N.W.2d at 427. Far from encapsulating the State's case against Martin, the information on the tag simply describes the chain of custody of the crack pipe. A closer inspection of the evidence tag bears this assertion out.

First, unlike the evidence tags in Branch and Shultz, the date on the tag in the case at bar does not match the date of the alleged offense. The alleged offense occurred on July 26; the evidence tag lists July 28. At trial, the supervisor of the Waterloo crime lab explained the discrepancy: the date on the tag was the date the crime lab investigators prepared the crack pipe for shipment to the state crime lab in Des Moines. Second, the officer listed on the tag was not one of the arresting officers, but rather — as other evidence presented to the jury makes clear³ — the case officer assigned to handle the crack pipe. Third, the crime lab supervisor testified that the case number was the agency number the Waterloo police department used to keep track of the crack pipe. Fourth, the address listed on the evidence tag is not the location of Martin's arrest, but rather his residence. Fifth, the tag, as well as the inner paper sack, contains a number of other identifying numbers, dates, and initials, as well as bright red crime lab tape. Taken together,...