State v. Vanover
| Citation | 559 N.W.2d 618 |
| Decision Date | 19 February 1997 |
| Docket Number | No. 95-1688,95-1688 |
| Parties | STATE of Iowa, Appellee, v. Obell VANOVER, Appellant. |
| Court | United States State Supreme Court of Iowa |
Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Susan M. Crawford, Assistant Attorney General, John P. Sarcone, County Attorney, and Jamie Bowers, Assistant County Attorney, for appellee.
Considered by McGIVERIN, C.J., and HARRIS, LARSON, LAVORATO, and TERNUS, JJ.
A jury convicted the defendant, Obell Vanover, of conspiracy to deliver a controlled substance and possession of a controlled substance. His appeal presents the classic clash between a criminal defendant's Sixth Amendment right to counsel of defendant's choice and a trial court's need to maintain the highest ethical standards of professional responsibility in the courtroom. The issue is whether the district court abused its discretion when it disqualified Vanover's counsel because the State intended to call counsel as a witness to testify about a statement counsel took from a codefendant. In the statement the codefendant implicated herself and exonerated Vanover. Additionally, we must decide whether the district court abused its discretion in sentencing Vanover following his conviction.
Finding no abuse of discretion in either instance, we affirm.
On the evening of November 2, 1994, Des Moines police were conducting an undercover narcotics investigation. One of the undercover officers agreed to purchase a small rock of crack cocaine from Ken Scoggins. Scoggins was unaware he was dealing with a police officer.
Other officers followed Scoggins to a nearby residence at 1114 Tenth Street where Scoggins purchased the cocaine to sell to the officer. Shortly after Scoggins delivered the cocaine to the undercover officer, the officers who had followed Scoggins arrested him on drug charges and jailed him.
The police immediately secured a search warrant for the Tenth Street premises and forced their way in. Once inside, the police found Obell Vanover, Tina Waters, Darrell Howard, and several others.
During the search, the police seized two grams of crack cocaine and $250 in cash from Waters' purse. They also seized a police scanner from the living room, a marijuana pipe from a coat pocket, and $220 in cash from Vanover's person. The police arrested and jailed Vanover and Waters on drug charges.
The following day Waters was released under the local pretrial release program. Vanover and Scoggins remained in jail.
The district court appointed the local public defender to represent Vanover. Later the public defender withdrew. On November 10 the court appointed attorney Dean Stowers to represent Vanover. Apparently, Stowers had represented Vanover before on criminal matters.
On December 5 the court temporarily rescinded Stowers' appointment because of some misunderstanding about his eligibility for court appointments. The court reinstated Stowers as Vanover's attorney on December 29. Stowers, however, continued to provide legal consultation to Vanover between December 5 and December 29.
On November 10 Stowers visited Scoggins at the county jail. Stowers made the visit without first contacting Scoggins' attorney. Stowers convinced Scoggins to give Stowers a written statement about the events of November 2. In his statement Scoggins admitted purchasing the crack cocaine at the Tenth Street premises from a young black male. Scoggins, however, denied purchasing the cocaine from Vanover and denied Vanover was present when the purchase was made.
Four days later, at his office, Stowers met with Waters and interviewed her on tape. In her interview, which was transcribed, Waters stated that (1) the Tenth Street residence was her home, (2) Vanover had been staying with her for only a month before November 2, (3) Howard sold the crack cocaine to Scoggins for her on the evening of November 2, (4) she had been selling drugs at other times from her residence, (5) Vanover knew nothing about her drug activities, and (6) Vanover was not present when Scoggins purchased the cocaine at her home on November 2.
At the time of this interview, Waters had counsel. Stowers, however, did not inquire whether Waters had counsel. Only Stowers and Waters were present during the interview.
Stowers also interviewed Howard on the same day he interviewed Waters. In his statement, Howard admitted he sold the crack cocaine to Scoggins for Waters on the evening of November 2 at Waters' home. He also stated that Vanover was not present when this sale was made but arrived shortly before the police forced their way into Waters' home.
On December 16, in a single trial information, the State charged Waters, Scoggins, and Vanover with conspiracy to deliver crack cocaine and delivery of crack cocaine. The State also charged Waters and Vanover with one count of possession of crack cocaine with intent to deliver. By this time, Howard was nowhere to be found.
On January 19 Stowers testified at Vanover's parole revocation hearing on a separate charge and conviction. A different attorney represented Vanover at this hearing. Through Stowers, Vanover's parole counsel was able to admit into evidence the statements from Scoggins, Waters, and Howard.
The next day, the State listed Stowers as a witness in the present case. The State also filed supplemental minutes detailing Stowers' involvement in obtaining the three statements. The minutes further stated that Stowers had testified at Vanover's parole revocation hearing and that through Stowers' testimony Vanover's parole counsel was able to admit into evidence the three statements.
The State also listed Scoggins as a witness. The State filed supplemental minutes indicating that Scoggins had (1) reached a plea agreement with the State, (2) pleaded guilty to the pending drug charges against him, and (3) agreed to testify against Vanover. The minutes also stated that Scoggins would testify that he did not purchase the cocaine from Vanover on November 2 but had purchased cocaine from him about 100 times from October 1 to November 2, 1994. Finally, the minutes stated that Scoggins would testify that while in jail with Vanover, Vanover urged Scoggins not to testify against Vanover and threatened Scoggins if he did testify.
In the meantime, Waters and Vanover remained jointly charged as codefendants.
On January 26 Vanover filed a notice waiving his right to object to the foundation for introduction of the statements Stowers took from Scoggins, Waters, and Howard. Several days later Vanover filed a motion to sever his trial from Waters'. In his motion to sever, Vanover asserted that (1) none of the testimony the State sought to offer through Stowers was admissible against Vanover because it was hearsay; (2) only statements attributed to Waters were admissible against her; (3) the alleged improprieties by Stowers were groundless; (4) "the specter of the State calling [Vanover's] counsel as a witness on behalf of the State would result in a violation of [Vanover's] constitutional right to a fair trial;" (5) denying severance would cause Stowers to withdraw against Vanover's wishes and in violation of the Sixth Amendment right to counsel; and (6) "noticing attorney Stowers as a witness was not done in good faith for the purpose of eliciting admissible evidence; rather it was done for the purpose of disrupting [Vanover's] attorney-client relationship."
On February 13 the district court heard the motion to sever. Waters' attorney characterized Waters' statement to Stowers as a confession and alleged that either Stowers or Vanover may have coerced Waters to give it. The State argued that Stowers had become a witness for his client and against a codefendant. The State also argued that such problems with Stowers representing Vanover would exist in either a joint or severed trial.
Stowers responded to the State's arguments as follows:
I think the State is just wrong. I think that this is going to be a violation of my client's right to counsel of his choice under the Sixth Amendment if I am put in a situation--
I am going to tell the court right now I don't intend to withdraw, because I think that in order to preserve the record, if you don't grant the severance I am going to make the court or the county attorney take some action to get me to withdraw. And that might not be [a] completely consistent thing to do under the ethical rules, but that's what I'm going to do. So that that issue is going to have to be crossed at some point in time.
....
And I am willing to represent Mr. Vanover. He wants me to represent him. I intend to represent him in this case. And that's where we are.
....
The only conceivable need for my testimony on behalf of the State in a joint trial is this interview of Tina Waters, codefendant. An interview, of course, that the foundation for which I don't think is disputed. The circumstances under which it occurred I don't think are disputed.
In denying Vanover's motion to sever, the court stated:
Apparently [Stowers] took a recorded statement from a codefendant, Tina Waters.... Apparently the statement implicates Waters but does not implicate Vanover. The State has noticed the parties that they intend to call as a witness in their case in chief defendant's attorney, Dean Stowers.... Forcing the defendant's attorney to testify will result in [Stowers] being unable to continue as attorney for the defendant Vanover.
Stowers filed a request for clarification of the court's ruling. Stowers pointed out that there was no pending motion to disqualify or withdraw before the court at the time the court denied Vanover's motion to sever. The court responded:
Defendant in this request for clarification correctly states that at the time of the court's ruling there was "no motion to disqualify counsel for defendant Vanover and no motion to withdraw was...
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