State v. Sullivan

• Decision Date: 07 April 2004
• Docket Number: No. 02-0542.,02-0542.
• Citation: 679 N.W.2d 19
• Parties: STATE of Iowa, Appellee, v. Andrew Marcus SULLIVAN, Appellant.
• Court: Iowa Supreme Court

679 N.W.2d 19

STATE of Iowa, Appellee, v. Andrew Marcus SULLIVAN, Appellant.

No. 02-0542.

Supreme Court of Iowa.

April 7, 2004.

Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Bob DiBlasi, Assistant County Attorney, for appellee.

LAVORATO, Chief Justice.

Andrew Marcus Sullivan appealed his conviction and sentence for possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(1)(d) (2001). Among other things, Sullivan contended the district court abused its discretion when it admitted evidence of a prior bad act. We transferred the case to the court of appeals, which reversed and remanded for a new trial. The State sought further review, which we granted. On further review, we affirm the court of appeals decision, reverse the district court judgment, and remand the case for a new trial.

I. Background Facts and Proceedings.

On the morning of October 17, 2001, West Des Moines Police Officer Jeffrey Hartshorn received a telephone call from the manager of Hamlet Apartments in West Des Moines. The manager told the officer that a tenant had complained about an odor of marijuana in the hallway.

Officer Hartshorn and Officer Jason Bryan went to the apartment. When the officers arrived, they smelled the odor of burnt marijuana in the hallway as the manager had reported. They noted that the smell was stronger around the door to apartment twenty-six.

When the officers knocked on the door to the apartment, Sullivan responded. Sullivan told the officers there was only one other person in the apartment. He denied he was a tenant but said "Chris," who was inside the apartment, was a tenant. The officers asked to speak with Chris, and Sullivan gave them permission to enter the apartment for that purpose.

After entering the apartment, Officer Hartshorn followed Sullivan to the bedroom where Chris Greteman was located. Officer Bryan waited in the living room. Dawn Frink-McCall was also in the bedroom with Greteman. The two were the tenants listed on the lease for the apartment. Officer Hartshorn located another individual, Brian Fasbender, in another bedroom. Fasbender said he was living in the apartment and paying rent but had not signed the lease.

When Officer Hartshorn returned to the entry area of the apartment with the four individuals, Officer Bryan told him that he had seen items consistent with marijuana in the living room, some in a blue fish plate on an end table and some in a white Frisbee on the floor. There were also some Swisher Sweets cigar boxes on an end table, some "blunts" (cigars whose contents have been emptied and refilled with marijuana), and a stack of money ($515) on the floor by the chair. At trial, Officer Hartshorn testified that the items found in the living room were consistent with use of marijuana but were not packaged for individual sale. Sullivan admitted to the officers that he was sleeping in the living room.

Greteman and Frink-McCall at first denied the officers permission to search the apartment. Officer Hartshorn then arrested all of the individuals for possession of marijuana and requested assistance from the narcotics unit.

When the narcotics unit arrived, Sullivan and Fasbender were transported to jail. Greteman and Frink-McCall agreed to talk to the narcotics detectives, and Greteman eventually consented to the search of the apartment.

The detectives found a baggie of nearly an ounce of marijuana in a freezer located in the kitchen. They also found a marijuana pipe and one pack of Zig Zag cigarette papers, commonly used to roll marijuana cigarettes. In the bedroom where Greteman and Frink-McCall were located, the detectives found crack cocaine in a cup on a closet shelf, plastic baggies, and an empty box of baggies. Plastic baggies were also found in the living room.

None of Sullivan's belongings were found in the bedroom shared by Greteman and Frink-McCall. And there was no evidence suggesting that Sullivan had been in the kitchen.

Don Simpson, narcotics detective with the City of Urbandale, testified that the baggie of marijuana found in the freezer and the crack cocaine found in the bedroom were not consistent with personal use. The detective also conceded the amount of marijuana could be consistent with personal use. Detective Simpson further testified that he believed the baggies were used for the packaging of illegal drugs although no drug substances were found in the baggies. In addition, the detective testified that in his experience people not only smoke the "blunts," but also sell them. Detective Logsdon testified that he believed the money found in the living room was proceeds from the sale of illegal drugs.

Eventually, Sullivan was charged and tried for possession of a controlled substance (marijuana) with intent to deliver, possession of a controlled substance (crack cocaine) with intent to deliver, and failure to possess a drug tax stamp for the crack cocaine. The State also sought a sentencing enhancement based on Sullivan's status as a second or subsequent offender.

The parties tried the case to a jury. During trial, the State offered the following testimony from Detective Simpson, which the court received over Sullivan's objections:

Q. Now, were you present when ... Detective Logsdon interviewed Andrew Sullivan? A. Yes, I was.

....

Q. And what did Mr. Sullivan tell you about the marijuana? A. After he waived his Miranda rights he stated that he brought back an ounce of marijuana from Davenport.

Later, pursuant to Iowa Rule of Evidence 5.404(b), the State sought to offer testimony from Barbara Maness, Sullivan's attorney in a prior case of possession with intent to deliver, to establish Sullivan's knowledge and intent in the present case. The court allowed the testimony so long as it was limited to facts underlying the conviction and no mention of the criminal proceedings or attorney relationship was made. The court stated the evidence was not being offered to prove conformity of conduct, rather it was offered to show Sullivan knew what he was doing. The court then admitted the following testimony from Maness over Sullivan's objection under rule 5.404(b):

Q. All right. And is it fair to say that during the course of your relationship with Mr. Sullivan he admitted to you possessing crack cocaine with intent to deliver? A. Yes, I heard him make those admissions.

Q. And was that back in 1998? A. Yes.

Q. Could you tell the jury what he said to you as far as his admission goes? A. I heard him say that he was in possession of crack cocaine, that his intent was to deliver it.

At the close of the State's case, the court granted Sullivan's motion for judgment of acquittal on possession of crack cocaine with intent to deliver and failure to possess a drug tax stamp for crack cocaine. The court denied the motion on possession of marijuana with intent to deliver. Sullivan did not offer any evidence and renewed his motion for judgment of acquittal, which the court denied.

The jury found Sullivan guilty of possession of marijuana with intent to deliver, and following sentencing, Sullivan appealed.

We transferred the case to the court of appeals, which reversed and remanded for a new trial. The court of appeals determined the district court abused its discretion when it admitted testimony from attorney Maness about Sullivan's 1998 admission that he possessed crack cocaine with intent to deliver it. We granted the State's application for further review.

II. Prior Bad-Acts Evidence.

At issue here is the district court's admission of evidence that in the past Sullivan possessed crack cocaine with the intent to deliver it.

The State contends such evidence was relevant to show Sullivan's intent to deliver marijuana and therefore admissible pursuant to Iowa Rule of Evidence 5.404(b). Additionally, the State contends the probative value of such evidence was not substantially outweighed by the danger of unfair prejudice.

Not surprisingly, Sullivan contends the evidence was not relevant to any issue at trial, and even if relevant, the probative value of such evidence was substantially outweighed by the danger of unfair prejudice.

A. Applicable law. Iowa Rule of Evidence 5.404(b) controls the admissibility of bad-acts evidence. It provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Iowa R. Evid. 5.404(b). Rule 5.404(b) codifies our common law on bad-acts evidence and is the counterpart to Federal Rule of Evidence 404(b).

For good reason, courts have long followed the rule against admitting bad-acts evidence to show "that the defendant has a criminal disposition in order to generate the inference that he committed the crime with which he is charged." United States v. Myers, 550 F.2d 1036, 1044 (5th Cir.1977). As the court in Myers said, "A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is." Id. This concept is "fundamental to American jurisprudence." United States v. Foskey, 636 F.2d 517, 523 (D.C.Cir.1980).

Courts have also recognized the critical importance of guarding against inroads on the rule, not because bad-acts evidence has no probative value, but for the very reason that such evidence may have very substantial value not recognized in law. United States v. Goodwin, 492 F.2d 1141, 1155 (5th Cir.1974). For this reason, the public policy for excluding bad-acts evidence "is founded not on a belief that the evidence is irrelevant, but rather on a fear that juries will tend to give it excessive...