State v. Reed

• Decision Date: 26 February 2016
• Docket Number: No. 13–0988.,13–0988.
• Citation: 875 N.W.2d 693
• Parties: STATE of Iowa, Appellee, v. Donald Benjamin Earl REED, Appellant.
• Court: Iowa Supreme Court

875 N.W.2d 693

STATE of Iowa, Appellee,

v.Donald Benjamin Earl REED, Appellant.

No. 13–0988.

Supreme Court of Iowa.

Feb. 26, 2016.

Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.

WATERMAN, Justice.

In this appeal, we review a twenty-seven-year-old defendant's challenges to his sentence of up to 100 years for drug dealing, child endangerment, and possession of firearms. The jury found the defendant guilty on those offenses, which he committed as an adult. The firearm conviction automatically doubled the sentence for his cocaine offense from twenty-five to fifty years. The district court had discretion to sentence him to as little as fifty years with immediate parole eligibility, or up to 150 years based on another enhancement for his prior felony drug conviction at age seventeen. The sentencing court chose to double but not triple the fifty-year sentence and require him to serve one-third of the sentence before becoming eligible for parole. This meant he could be on parole as early as age forty-three with earned-time credit.

The defendant argues the evidence was insufficient to prove his constructive possession of the drugs and firearms, his trial counsel was ineffective, and his sentence is cruel and unusual punishment violating the Iowa Constitution because it is based on a prior conviction for an offense he committed as a minor. The court of appeals affirmed his convictions and sentence, and we granted his application for further review.

For the reasons elaborated below, we hold the evidence was insufficient to prove his constructive possession of firearms, requiring resentencing without the firearm conviction and enhancement. We affirm his remaining convictions. We leave intact the court of appeals decision rejecting his ineffective-assistance-of-counsel claims. Because defendant will be resentenced, we do not reach his constitutional challenge to his original sentence. Thus, we affirm in part and vacate in part the court of appeals decision, reverse defendant's convictions for possession of firearms, and remand the case for resentencing.

I. Background Facts and Proceedings.

In March 2012, Waterloo police officers Michael Girsch and Edward Savage began conducting surveillance of a house to find an individual who was suspected of trafficking drugs from Chicago. The house, located at 1320 Randolph Street, is a single-family home with a detached garage. The house is owned by Chad Wolf, and the utilities are in Wolf's name. The police suspected drugs were sold from this location. During surveillance spanning three weeks, cars frequently pulled up in the adjacent alley, and people went into the house for brief visits. The officers never saw the original target of their investigation there and soon focused their investigation on Donald Reed.

The officers frequently observed Reed at the Randolph Street home. His girlfriend, Alicia Buchanan, rented the house and lived there with her two daughters, A.R., age two, and A.B., age four. Reed is the father of A.R. The officers observed Buchanan playing outside with her children and taking out the garbage. Reed always arrived in a white Buick and parked in the driveway. He entered the house without knocking or ringing the doorbell, and his observed visits lasted for hours. Reed was also seen taking out the garbage.

On April 5, Officer Savage conducted a "trash rip" at the house by retrieving garbage bags left curbside and searching the contents. He found several small plastic bags with ripped corners consistent with drug packaging, dryer sheets,¹ an envelope, a Rent–A–Center application, and a Rent–A–Center bill in the trash. The envelope, postmarked February 15, was addressed to Buchanan at a different address. The Rent–A–Center application stated that Buchanan and Reed owned 1320 Randolph Street subject to a mortgage. The application listed Reed as Buchanan's husband in one section and father in another. Reed's address was listed as 548 ½ Riehl Street in Waterloo, another house where he was observed. The rental application was completed in one person's handwriting and signed by Buchanan alone. The Rent–A–Center bill was addressed to Buchanan and Reed at 1320 Randolph Street.

On April 11, Officer Girsch arrived at the house around 9:30 p.m. and saw Reed's Buick in the driveway. Buchanan stepped outside several times but never left the yard. Officer Girsch departed around midnight to get a search warrant and returned at 7:30 a.m. Reed's Buick was still parked in the driveway. Officer Girsch saw Wolf go inside for fifteen minutes and leave. Reed left the house at 11:20 a.m. Officer Girsch coordinated with other officers to follow Reed and conduct a traffic stop.

Officer Savage stopped Reed at 11:30 a.m. near Young Arena, an ice rink in downtown Waterloo. Reed gave Officer Savage his registration, but he did not have an ID. The Buick was registered in Reed's name. The address on the registration was 548 ½ Riehl Street. Officer Savage searched Reed and found a cell phone and $523 in cash "bungled up" in Reed's front pocket. Reed did not have a wallet, drugs, or a weapon. Officer Savage placed Reed under arrest and took him to the Waterloo police station.

Within minutes of Reed's traffic stop, Officers Girsch, Albert Bovy, and Steve Newell executed the search warrant at 1320 Randolph Street. Officers Bovy and Girsch went to the front door while Officer Newell went to the rear. Buchanan responded to Officer Girsch's knock. Officer Girsch asked to come in, and Buchanan asked why. When he explained that he had a search warrant, Buchanan ran towards the kitchen. Officer Girsch kicked in the door. The officers found Buchanan in the hallway leading to the bedrooms and the girls hiding under a bed. Officer Bovy directed Buchanan and the girls to sit on the couch while the police searched the home.

The house had three bedrooms, a kitchen, a living room, and an unfinished basement. One bedroom was furnished for adults, one was a children's room with two small beds, and the third was empty. A pungent smell of burnt marijuana emanated from the kitchen. The officers saw white powder scattered on the table and countertops and a small plastic bag near the powder. Loose marijuana leaves were on the kitchen table.

The officers found more drugs and two firearms in the adult bedroom. Against one wall was a built-in with open cabinets and a television. The left side of the built-in had floor-to-ceiling cabinets containing men's and women's clothing. When the officers began searching the clothing, they found a small plastic bag with twenty-seven grams of crack cocaine underneath a stack of clothes with a folded pair of large men's pants on top. Reed weighed 210 pounds. As they searched, a bag of marijuana fell out of the clothing. The right side of the built-in had a large television with a cabinet on top. That cabinet contained an Xbox and a brown purse. When Officer Girsch searched the cabinet, he saw a pink lotion bottle and a gun barrel pointing out from behind the Xbox. The gun barrel was not visible from the center of the room. After photographing the Xbox, Officer Girsch moved it and found two guns—a Springfield .45 automatic 1911 and a Jennings 9 mm firearm. Both guns were loaded and were within four feet of the cocaine. Two partial fingerprints were found—one on each gun. Neither print matched Buchanan or Reed. Officer Girsch found a torn small plastic bag and two bottles of nail polish inside the purse.

More items were found on top of a dresser across the room: a box of small plastic bags, small plastic bags with the corners torn off, a digital scale, white powder, a Wisconsin ID with white powder caked on one side, and a cell phone. The name on the ID was Ramon Brumfield. The top drawer of the dresser was open and contained cash, more small plastic bags and another pair of men's jeans.

In the children's bedroom, Officer Girsch found a crumpled dollar bill and a marijuana roach on the mattress. In the children's closet, there was a white nylon shoulder bag hanging from the door handle with loose marijuana inside it. The hallway closet contained more ripped small plastic bags.

Reed was in a holding cell. Around 3:30 p.m., he asked for Officer Savage and suggested an interest in cooperating, stating:

I need to talk to you, but I can't do shit man. I got to make sure that my girl, she—I mean, we've got to do it together or something, because, I mean, we can help you out, dude. We got kids. The only thing, sir, me and my girl, we would help you. We would help you get—to get some because, you know what I saying, because I want her to look like I know mother f* *kers.

The State brought seven charges against Reed: possession of more than ten but less than fifty grams of cocaine base² with intent to deliver while in possession or control of a firearm in violation of Iowa Code sections 124.401(1)(b )(3) and 124.401(1)(e ) (2011); failure to affix a drug stamp in violation of section 453B.12; possession of a firearm by a felon in violation of section 724.26 ; two charges of child endangerment in violation of sections 726.6(1)(a) and 726.6(7); possession of powder cocaine as a second offender in violation of section 124.401(5) ; and possession of marijuana as a second offender in violation of section 124.401(5). The State made a plea offer of fifty years with no recommended mandatory minimum. Reed rejected the plea.

Reed's five-day jury trial began on April 23. The police officers testified regarding their surveillance of the house, the search, and Reed's statements. Officer Girsch testified to his experience investigating drug crimes and explained the pattern of visitors to the house was consistent with drug dealing, as were the ripped small plastic bags found throughout the house....