IN THE COURT OF APPEALS OF IOWA
No. 14-1480
Filed December 23, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TERRY DANIELS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
A defendant appeals his conviction and sentence after a jury found him
guilty of possession with intent to deliver a controlled substance as a second
offender. AFFIRMED.
Drew H. Kouris, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Jean C.
Pettinger, Assistant Attorneys General, for appellee.
Heard by Danilson, C.J., and Mullins and McDonald, JJ.
2
MULLINS, Judge.
Terry Daniels appeals his convictions for possession, or conspiracy to
possess, more than fifty grams of cocaine base with intent to deliver and failure
to possess a drug tax stamp, in violation of Iowa Code sections 124.401(1)(a)(3)
and 453B.12 (2013). He also admitted to being a second offender for the
purposes of the sentencing enhancement in section 124.411. On appeal, he
claims there was insufficient evidence to convict him of either offense due to the
lack of corroboration of his confession to the investigating officers. In addition,
Terry claims his counsel provided ineffective assistance in a number of respects
and the cumulative effect of these errors resulted in a fundamentally unfair trial.
Finally, he claims his sentence should be vacated and the case remanded for
resentencing because the court considered unproven offenses and his sentence
of ninety years is grossly disproportionate to his offense.
I. Background Facts and Proceedings.
Waterloo police officers were investigating the distribution of crack
cocaine, and they received information that a quantity of the drug would be
arriving by bus from Chicago on January 6, 2013. Surveillance was set up in
several locations, including the bus terminal. Officers observed Derrick Daniels
get off the bus from Chicago with a black duffel bag. He entered a vehicle driven
by his cousin, Latasha Daniels. The car was subsequently pulled over, and
plastic bags containing approximately sixty-nine grams of crack cocaine were
located in the black duffle bag.
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Officers also had two residential addresses under surveillance at the time.
Prior to Derrick arriving on the bus, police observed Latasha leave a home
located at 1223 Mulberry. Shortly after Derrick was picked up by Latasha at the
bus station, police observed the defendant, Terry Daniels, leave his residence at
868 Fowler along with his long-term girlfriend, Mary Frye, and a unknown male,
and drive in the direction of 1223 Mulberry. His vehicle was also stopped, and
officers returned to the Fowler address with Mary to execute a search warrant.
At the Fowler residence, police located a receipt for a money transfer from
Mary to Derrick and a car rental agreement. One of the officers testified it is
common to find car rental agreements during narcotics investigations as drug
traffickers will use rental cars in order to conceal their identity from officers.
Traffickers will also often use the name and identity of one of their customers in
order to further conceal their identity. The car rental agreement found at the
Fowler residence listed the name of an individual that the officer knew to be a
crack-cocaine user. Officers located a letter addressed to Latasha, Terry’s
daughter, with the Fowler address along with a letter addressed to Terry. The
officers also located a box of sandwich baggies in the kitchen and a receipt for a
money gram from Latasha. A canine officer alerted to a nightstand in the
upstairs bedroom, though no narcotics were found.
Officers also executed a search warrant at the Mulberry residence.
Officers found two digital scales, razor blades, and sandwich baggies, all
indicating drugs were weighed and packaged into individual units for resale in the
residence. A prescription pill bottle with Derrick’s name on it was located in a
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shoe in a closet. Mail containing Latasha’s name with the Mulberry residence
address and the Fowler address was also located in the Mulberry home.
At the police station, Officer Nicholas Berry interviewed Terry, who told the
officer he had a source in Chicago supplying him with crack cocaine.1 Terry
admitted the crack cocaine Derrick and Latasha were caught with was the result
of an arrangement he had made with his source in Chicago. He told Officer
Berry he was paying $1300 per ounce and receiving two ounces at a time, three
times a month. Officer Berry testified that one ounce of crack cocaine is a little
more than 28 grams, making the total amount of crack cocaine seized that day
equal to approximately two and one-half ounces. Officer Berry testified the
amount of cocaine base discovered in the vehicle was consistent with distribution
and not consistent with personal use. Another officer also testified Terry gave
the Mulberry address as his own when he was booked into jail.
In his defense at trial, Terry called Derrick to testify. Derrick stated Terry
had nothing to do with the drugs found in his possession on January 6. While
Derrick testified he took full responsibility for the drugs, on cross-examination
Derrick also stated he was “shocked” when the police officer removed the drugs
from the duffle bag. While he was carrying the bag, he told police it did not
belong to him and pointed out in his testimony on cross-examination that the bag
contained clothing that was not his and contained Latasha’s wallet and
identification. However, he ultimately admitted to knowing the drugs were in the
duffle bag. He also admitted to owning the digital scales found during the search
1
The recording system in the interview room where Officer Berry interviewed Terry
malfunctioned. Officer Berry’s testimony was the only evidence of Terry’s confession.
5
of the Mulberry address. At the time of Terry’s trial, Derrick had already been
tried and convicted for possessing the cocaine base and was awaiting
sentencing.
The jury found Terry guilty of possession of, or conspiracy to possess,
over fifty grams of cocaine base and failure to have a drug tax stamp. Terry
admitted to being a subsequent offender and was sentenced to ninety years in
jail with a one-third mandatory minimum. He now appeals his conviction and
sentence.
II. Scope and Standard of Review.
Challenges to the sufficiency of corroboration to support a defendant’s
confession are reviewed for correction of errors at law. State v. Meyers, 799
N.W.2d 132, 138 (Iowa 2011). We examine the evidence in the light most
favorable to the verdict to determine if there is substantial evidence in the record.
Id. Evidence is substantial if it would convince a rational trier of fact the
defendant is guilty beyond a reasonable doubt. Id. Circumstantial and direct
evidence are equally probative, and we may draw all fair and reasonable
inferences from the evidence. Id.
Because it implicates a defendant’s Sixth Amendment right to counsel, we
review ineffective-assistance-of-counsel claims de novo. State v. Lyman, 776
N.W.2d 865, 877 (Iowa 2010). Terry must prove by a preponderance of the
evidence counsel failed to perform an essential duty and he suffered prejudice as
a result. See id. “To prove counsel failed to perform an ‘essential duty,’ a
defendant must prove counsel’s performance was deficient, meaning trial
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counsel ‘made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.’” Id. at 878
(citations omitted). “To establish prejudice, a defendant must prove ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’” Id. (citations omitted). “If a claim
lacks one of the elements of an ineffective-assistance-of-counsel claim, it is not
necessary for us to address the other element.” State v. Hischke, 639 N.W.2d 6,
8 (Iowa 2002).
Finally, Terry’s challenge that the court relied on unproven offenses in
reaching its sentencing decision is reviewed for correction of errors at law. State
v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). His claim that his sentence is
grossly disproportionate to his case implicates the Cruel and Unusual
Punishment Clause of the Eighth Amendment and article I, section 17 of the Iowa
Constitution, and is thus reviewed de novo. State v. Oliver, 812 N.W.2d 636, 639
(Iowa 2012).
III. Sufficiency of the Evidence—Corroboration.
Terry’s first claim on appeal is that there is insufficient evidence to support
his conviction. While there was evidence he confessed his involvement to Officer
Berry, Terry claims there is no other evidence that would link him to the crime.
As an initial matter, the State maintains Terry’s sufficiency claim was not
preserved for appellate review because counsel made an insufficient motion for
judgment of acquittal. See State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011)
(“To preserve error on a claim of insufficient evidence for appellate review in a
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criminal case, the defendant must make a motion for judgment of acquittal at trial
that identifies the specific grounds raised on appeal.”). At the close of all the
evidence, defense counsel made a motion for judgment of acquittal, stating,
“Comes now, the defendant, Terry Daniels, by and through counsel, and would
state that a directed verdict should be handed down at this time because the
State’s case, even when taken in the light most beneficial to the State, does—
does not raise a jury question.”
While the language used in the motion alone would be insufficient to
preserve error on a claim that Terry’s confession lacked corroboration, when we
view the State’s resistance to the motion along with the pretrial motions made in
this case, it is clear both parties and the court understood the grounds for the
motion. See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005) (“[W]e recognize
an exception to the general error-preservation rule when the record indicates that
the grounds for a motion were obvious and understood by the trial court and
counsel.”). The State’s resistance asserted there was sufficient corroboration for
the confession, specifically outlining the corroborating evidence and citing to
case law to support its response. In addition, the corroboration of the confession
was the subject of a motion in limine before the start of the trial, which indicates
the court was alerted to the corroboration issue. We therefore consider the
sufficiency claim made on appeal preserved for our review.
Extrajudicial confessions of a defendant cannot result in a conviction
unless there is corroborating evidence of the crime charged. Meyers, 799
N.W.2d at 139; see also Iowa R. Crim. P. 2.21(4) (“The confession of the
8
defendant, unless made in open court, will not warrant a conviction, unless
accompanied with other proof that the defendant committed the offense.”).
Corroborating evidence is sufficient to support a conviction if it “tends to ‘confirm
some material fact connecting the defendant with the crime.’” Meyers, 799
N.W.2d at 139 (citation omitted). “It is sufficient as long as it supports the content
of the confession and if, together with the confession, proves the elements of the
charge against the defendant beyond a reasonable doubt.” Id. The
corroborating evidence can be either direct or circumstantial, and it does not
need to be strong or go to the whole of the case so long as it confirms some
material fact. Id. While the existence of corroborative evidence is for the court,
the sufficiency of the evidence is a question for the jury. State v. Polly, 657
N.W.2d 462, 467 (Iowa 2003).
In claiming there is no corroboration to support his confession to police,
Terry points to the lack of physical evidence of drug distribution found at his
residence on Fowler and the lack of evidence connecting him to the scales and
baggies found at the Mulberry residence. The corroboration necessary for
Terry’s confession comes not from the search warrants executed on the two
homes but from the details specified in the confession itself when compared to
the details surrounding the narcotics found in the black duffle bag. Terry stated
he had a source in Chicago that supplied him with crack cocaine. The crack
cocaine arrived on a bus from Chicago in a black duffle bag in the physical
possession of Terry’s nephew, who was picked up from the bus station by Terry’s
daughter. Terry stated his source provided him with two ounces of crack cocaine
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three times per month. The amount of crack cocaine found in the duffle bag was
approximately two and one-half ounces. Terry stated he paid $1300 per ounce,
which officers familiar with narcotics trafficking indicated was consistent with the
distribution, as opposed to street sale, cost of the drug. See id. (noting sufficient
corroboration existed to support the defendant’s confession where the details of
the crime as recounted by the defendant were identical to the details reported by
the victim); see also State v. Origer, 418 N.W.2d 368, 371 (Iowa Ct. App. 1987)
(stating sufficient corroboration existed to support defendant’s confession that he
shot the victim and the body would not be found for some time when the victim
had been shot and his body, located in an out-of-the-way ditch, was not found for
a month).
Because sufficient corroboration exists to support Terry’s confession to
Officer Berry, we conclude the jury’s verdict is supported by substantial evidence.
See Meyers, 799 N.W.2d at 138.
IV. Ineffective Assistance of Counsel.
Next, Terry claims his trial counsel was ineffective in a number of ways
requiring that he be granted a new trial. Specifically, he claims counsel failed (1)
to introduce into evidence his statements to police denying his involvement in the
conspiracy, (2) to object when a police officer testified as to what address Terry
gave upon being booked into jail, (3) to call Terry’s long-term girlfriend to testify
in his defense, (4) to move to suppress his confession based on a lack of
Miranda warnings, (5) to object when the court did not send the jury back to
deliberate when it appeared the jury did not have a unanimous verdict during the
10
polling of the jury, (6) to object to improper rebuttal testimony that admitted his
prior bad acts, and (7) to request the court include a jury instruction regarding the
fact his confession was not recorded. Normally, we preserve ineffective-
assistance claims for postconviction proceedings to allow the development of a
complete record and permit counsel to respond to the allegations. State v.
Shanahan, 712 N.W.2d 121, 136 (Iowa 2006). However, where the appellate
record shows as a matter of law a defendant can either prevail or not prevail on
his ineffective-assistance claim, we will not preserve the issue but will address it
on appeal. Id.
A. Statements Terry Made Denying Involvement. In his first claim,
Terry asserts counsel was ineffective in not cross-examining the testifying
officers, specifically Officer Sidles, regarding a statement in Officer Sidles’s
report that Terry denied having anything to do with the sale and distribution of
crack cocaine and did not know anything about his daughter or nephew bringing
in the drug from Chicago. Because of the importance of his confession to the
State’s case, he claims he was prejudiced when the jury was not told he also
denied any involvement in the crime to police.
In this case, Officer Berry testified a “couple of other investigators had
spoken to [Terry] for a little while. They hadn’t—they hadn’t obtained a lot of
information from him.” However, defense counsel did not inquire into what Terry
had told these other investigators. Because our record is unclear what
information Terry provided to the other officers and whether this information
would have had an impact on the jury’s verdict, we preserve this claim for
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possible postconviction-relief proceedings. See State v. Johnson, 784 N.W.2d
192, 198 (Iowa 2010) (“If . . . the court determines the claim cannot be addressed
on appeal, the court must preserve it for a postconviction-relief proceeding,
regardless of the court’s view of the potential viability of the claim.”).
B. Booking Address. Next, Terry claims his trial counsel should have
objected when a police officer testified that Terry gave the Mulberry address as
his home address when he was booked into jail. Terry claims counsel should
have objected to this testimony by the officer on either foundation or hearsay
grounds and should have impeached the officer with evidence in the record
indicating Terry resided at the Fowler address.
Terry does not indicate what foundation objection should have been
made. He simply states in his brief that the testimony about what address Terry
gave at booking “may not be true” and there was no information about how the
officer came to know this information. See Carter v. Wiese Corp., 360 N.W.2d
122, 132 (Iowa Ct. App. 1984) (noting an objection that simply said the evidence
was “without a proper foundation” was inadequate as the objection must
specifically identify what aspect of the foundation is lacking). Terry also claims
this testimony was objectionable on hearsay grounds. But see Iowa Rs. Evid.
5.801(d)(2) (concluding an admission by a party opponent is outside the
definition of hearsay), 5.804(b)(3) (describing the statement-against-interest
hearsay exception). Again, because we conclude the record on appeal is
inadequate to address this claim, we preserve it for possible postconviction-relief
proceedings. See Johnson, 784 N.W.2d at 198.
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C. Terry’s Girlfriend. Terry also complains his trial counsel should have
called as a favorable witness his long-term girlfriend, Mary, to testify in his
defense. The minutes of testimony indicate Mary informed the officers she had
observed Terry in possession of crack cocaine when the couple lived in Chicago
years ago, but she had no knowledge about any current activities. On appeal,
Terry claims she could have been a sympathetic defense witness and supported
his claim of innocence. He also claims Mary may have been in the interrogation
room when Terry confessed to Officer Berry, and if that was the case, Mary may
have been able to shed light on exactly what Terry said.
The defense only called one witness to testify—Derrick. The record does
not disclose the reason Mary was not called as a witness or what information she
could have provided. As the decision regarding what evidence to present to a
jury falls within the realm of defense strategy, we preserve this claim for possible
postconviction-relief proceedings. See State v. Ondayog, 722 N.W.2d 778, 786
(Iowa 2006) (“[P]ostconviction proceedings are often necessary to discern the
difference between improvident trial strategy and ineffective assistance.”).
D. Miranda Warnings. Terry asserts his counsel should have filed a
motion to suppress his confession because there was no indication in Officer
Berry’s report that he advised Terry of his Miranda rights before Terry made the
incriminating statements. He also asserts counsel was ineffective in not
challenging whether his statement was voluntary or the result of promissory
leniency. The minutes of testimony indicate Terry was given his Miranda
warnings by Officer Sidles on January 6 at 2:12 p.m. The details surrounding the
13
Miranda warnings and Terry’s waiver of his rights prior to giving his incriminating
statement are not contained within our record on appeal, and thus, we determine
the record is not adequate for us to address this claim. We preserve it for
possible postconviction-relief proceedings.
E. Unanimous Verdict. Next, Terry contends counsel should have
insisted the court send the jury back to deliberate when it became clear during
the polling of the jury that one juror had questions regarding the verdict. After the
guilty verdict was announced, defense counsel requested the jury be polled
pursuant to Iowa Rule of Criminal Procedure 2.22(5). Each member responded
in the affirmative when asked by the court, “Is this your true and correct verdict?”
except for one member who responded, “Yes, with questions.” After an off-the-
record discussion between the court and counsel, the court advised the jury that
their verdict needed to be unanimous and then polled the jury again. During the
second poll, the same juror stated, “It’s the same as I said before, yes, but with—
I need to clearly understand something though. That’s my—yes, but I—before—
from what I’m understanding—.” The court then returned the jury to the
deliberation room except for this juror who the court directed to remain behind.
The court addressed the juror:
[N]o matter how you personally came to that decision, the end
result is the only thing that needs to be unanimous from our jury.
So my question to you is, is the verdict that was rendered your
verdict?
[Juror]: Yes.
The Court: All right.
[Juror]: My question’s not something that’s outside of what
was stated. It’s just about on that—it’s really a simple question
because it says or. It says Possession or Conspiracy. Is that
saying both, or are you saying one or the other?
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The Court: It can be either or.
[Juror]: Okay. That’s all—it was real simple. I just wanted to
make sure, like, because I—I might say yes on one and not the
other, so that’s—I—I wanted to be clear on—
The Court: All right.
[Juror]: —what that meant.
The Court: Your verdict is as is reflected on the verdict form?
It doesn’t matter precisely the theory that it’s based on, but it is as
reflected on the verdict form and as was read; is that correct?
[Juror]: Yes.
The Court: All right. Let’s return the—is everyone satisfied?
[Prosecutor]?
[Prosecutor]: Yes, Your Honor.
The Court: [Defense Counsel]?
[Defense Counsel]: Yes, Your Honor.
The court then returned the rest of the jury to the courtroom, where the jury was
polled a third time, and the juror in question responded in the affirmative that it
was her true and correct verdict.
Terry claims on appeal his counsel was ineffective in not insisting that the
court send the entire jury panel back to deliberate once it became clear a juror
had questions about the verdict. See Iowa R. Crim. P. 2.22(5) (“A party may
then require a poll asking each juror if it is the juror’s verdict. If any juror
expresses disagreement on such poll or inquiry, the jury shall be sent out for
further deliberation . . . .”). He also claims that the proper procedure for a jury
question was not followed as provided in Iowa Rule of Criminal Procedure
2.19(5)(g).2
2
This rule provides
After the jury has retired for deliberation, . . . if it desires to be
informed on any point of law arising in the cause, it must require the
officer to conduct it into court, and, upon its being brought in, the
information required may be given, in the discretion of the trial court. . . .
Where the court gives the jury additional instructions, this shall appear of
record. The procedures described shall take place in the presence of
15
The State responds that the juror at issue did not indicate that she
disagreed with the verdict, as rule 2.22(5) requires, but only said she had a
question or that she needed to understand something clearly. The clarification
she sought, and the information the court provided her, was already part of the
jury instructions. Instruction No. 37 stated,
Where two or more alternative theories are presented, or
where two or more facts would produce the same result, the law
does not require each juror to agree as to which theory or fact leads
to his or her verdict. It is the verdict itself which must be
unanimous, not the theory or facts upon which it is based.
The State maintains that counsel did not breach an essential duty because the
verdict was in fact unanimous and further deliberation was not required. The
State also maintains Terry cannot show the result of the trial would have been
different if counsel had urged the court to respond in a different manner.
Because the juror at issue did not indicate disagreement regarding the
verdict but only sought to have an issue clarified and because the information
given to the juror by the court in response to the juror’s question was the same
information already contained in the instructions, we agree Terry has failed to
show either that counsel breached an essential duty or that the result of the
proceeding would have been different had counsel lodged an objection to the
action taken by the court. We therefore deny this ineffective-assistance claim.
F. Rebuttal Testimony. For his next claim, Terry asserts counsel should
have objected to the rebuttal testimony offered by the State because it contained
defendant and counsel for the defense and prosecution, unless such
presence is waived.
Iowa R. Crim. P. 2.19(5)(g).
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evidence of his prior bad acts, which he claims is inadmissible. Specifically,
Terry claims counsel should have objected to the testimony of Officer Sidles, who
disclosed that he had observed a drug transaction occur at the Fowler residence
in December 2012. Officer Sidles testified a person entered the residence
without crack cocaine and emerged a few minutes later with crack cocaine.
Under Iowa Rule of Evidence 5.404(b): “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.” However, the rule goes on to state
evidence of other crimes could be admissible to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Iowa R. Evid. 5.404(b). Because counsel did not object to this evidence offered
at trial, we do not have a record from which we can evaluate whether one of the
exceptions to the prior bad acts prohibition applies or whether such evidence
would have been more probative than prejudicial. As a result, we preserve this
claim for possible postconviction relief.
Terry further claims the State’s failure to put this information into the
minutes of testimony violated Iowa Rule of Criminal Procedure 2.19(2).3 As
Officer Sidles was called in rebuttal, the State had no obligation to disclose the
contents of his testimony in the minutes of evidence. See State v. Belken, 633
3
This rule provides in part:
The prosecuting attorney, in offering trial evidence in support of an
indictment, shall not be permitted to introduce any witness the minutes of
whose testimony was not presented with the indictment to the court; in
the case of informations, a witness may testify in support thereof if the
witness’s identity and a minute of the witness’s evidence has been given
pursuant to these rules.
Iowa R. Crim. P. 2.19(2).
17
N.W.2d 786, 795 (Iowa 2001) (“Rebuttal witnesses, however, are not required to
be disclosed by the State.”). Thus, counsel was not ineffective for failing to
object to the testimony on this ground.
G. Spoliation Instruction. Finally, Terry asserts counsel should have
requested the court give the jury an instruction that the failure of his confession to
be recorded could affect the weight and believability of the confession. Terry
maintains such an instruction was considered and approved in State v. Avila, No.
13-0134, 2014 WL 1495496, at *8–9 (Iowa Ct. App. Apr. 16, 2014). In Avila, the
court instructed the jury:
In determining the weight and believability of the confession, you
may consider:
1. Defendant’s mental capacity and intelligence.
2. Defendant’s mental and emotional state at the time it was
made.
3. Whether it was knowingly and intelligently made.
4. Whether the Defendant understood his statement to be an
admission.
5. Whether the Defendant’s statement was recorded.
6. Any other evidence relating to the confession.
2014 WL 1495496, at *9 (emphasis added). The Avila court determined this
instruction fairly stated the law as it applied to the case and the district court did
not abuse its discretion in not giving a different instruction regarding the failure to
record the confession. Id.
The same instruction was given to the jury in this case except number 5
was not included among the list of factors to be considered by the jury. The
confession did have a critical part in this case, and there was extensive
discussion at trial about the lack of recording. However, we preserve the claim
for postconviction relief proceedings as we determine this record is inadequate to
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address whether counsel breached a duty or whether Terry suffered prejudice.
See State v. Fountain, 786 N.W.2d 260, 267 (Iowa 2010) (“Although trial counsel
failed to request the proper instruction, we are unable on this record to assess
whether the failure constituted ineffective assistance of counsel.”).
H. Cumulative and Structural Error. Terry claims the multitude of
errors made by counsel together resulted in him not receiving a fair trial. He also
claims counsel committed a structural error mandating a new trial. Terry fails to
articulate what structural error counsel committed, and therefore, we reject that
claim. In addition, because we did not find any error in the claims we addressed,
and because we preserved the remaining claims for postconviction relief, we
need not address his cumulative error claim.
V. Sentencing.
Terry’s last claim asserts he is entitled to a resentencing because the
court relied on unproven offenses in reaching its sentencing decision and his
sentence is grossly disproportionate to his crime.
A. Unproven Offenses. We first address his claim that the court relied
on an unproven offense when determining the sentence; specifically, he asserts
that the sentencing court’s references to prior drug transactions were not proved
by the State and should not have been used for the purposes of sentencing.
Sentencing courts may not consider an unproven or unprosecuted offense
when sentencing a defendant unless (1) the facts before the court show the
defendant committed the offense or (2) the defendant admits it. State v. Jose,
636 N.W.2d 38, 41 (Iowa 2001). When a sentence is challenged on the basis of
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improperly considered unproven criminal activity, “the issue presented is simply
one of the sufficiency of the record to establish the matters relied on.” State v.
Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). “The standard of proof during
the sentencing stage is lower than the standard used during trial.” Id. But if the
court relies on any improper consideration, even if it is a secondary
consideration, resentencing is required. Id. We are not free to “speculate about
the weight the trial court mentally assigned to [the improper factors].” State v.
Messer, 306 N.W.2d 731, 733 (Iowa 1981). However, “[t]here is no general
prohibition against considering other criminal activities by a defendant as factors
that bear on the sentence to be imposed.” State v. Longo, 608 N.W.2d 471, 474
(Iowa 2000).
Prior to pronouncing sentence, the court explained the factors it
considered in fashioning a sentence:
Mr. Daniels, in considering your sentence, I’ve thought about
the following things:
I’ve thought about the quantity of the drug involved, I have
considered [the prosecutor’s] argument about the fact that in light of
your prior conviction and in light of some of the other evidence that
came in about bringing in drugs from Chicago on a regular basis—
or I guess from other places or Chicago. What stands out in my
mind is that this is not an isolated incident. I do believe with the
quantity involved and the nature of how and—what was being
distributed, that the distribution of those created a significant
danger to our community. I do find also that the fact that you are
the second offender, as we have previously noted and to which you
pleaded guilty. I also make note of [the prosecutor’s] statements
including reference to your statements and the Presentence
Investigation Report, that essentially, the sale of drugs has been a
business to you. It is not, again, something you’ve been wrapped
up in as a user and selling to continue your own use, your own
substance abuse issue. It does appear that it’s been something
you’ve conducted as a business. And in my mind, that makes a
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greater danger to the community, someone who’s literally out
selling a controlled substance as a business venture.
I have also taken into consideration your age and the
arguments that have been made by your counsel.
On appeal Terry argues that there was never any evidence of prior
transactions or any evidence the conspiracy extended beyond January 6, 2013,
except vague testimony about an incident in December 2012 that should never
have been received by the court. However, Terry admitted the on-going nature
of his activities in his confession to Officer Berry and this confession was
supported by sufficient corroborating evidence. Terry admitted that his source
provided him with two ounces of crack cocaine, three times per month. There
was corroborating evidence fitting with the details in his confession. Moreover,
there was also testimony about “short-term traffic” outside both residences on
Mulberry and Fowler, which was consistent with the sale of narcotics. Therefore,
there are facts before the court showing Terry was involved in prior drug
transactions, and we conclude the court did not consider an unproven crime
during sentencing.
B. Gross Disproportionality. Terry also argues that his sentence is
unconstitutional because it constituted cruel and unusual punishment under both
the federal and state constitutions. He contends his sentence, concurrent terms
of ninety years for the cocaine charge and five years for the drug-tax-stamp
violation, is grossly disproportionate to the crime he committed, and thus his
sentence, as applied to him, is unconstitutional.
Both the Eighth Amendment to the United States Constitution and article I,
section 17 of the Iowa Constitution prohibit the infliction of cruel and unusual
21
punishment. See Iowa Const. art. I, § 17 (“Excessive bail shall not be required;
excessive fines shall not be imposed, and cruel and unusual punishment shall
not be inflicted.”). Terry argues his sentence is cruel and unusual punishment
“because it is so excessively severe that it is disproportionate to the offense
charged.” See State v. Robbins, 257 N.W.2d 63, 68 (Iowa 1977). When a
defendant challenges his sentence under both article 1, section 17 of the Iowa
Constitution and the Eighth Amendment of the United States Constitution, we
analyze the claim under the “more stringent gross-disproportionality review”
available under the Iowa Constitution. Oliver, 812 N.W.2d at 650.
To determine whether Terry’s sentence is grossly disproportionate to his
crime, we need to apply the three-step test developed in Solem v. Helm, 463
U.S. 277, 296-300 (1983). “The first step in this analysis, sometimes referred to
as the threshold test, requires a reviewing court to determine whether a
defendant’s sentence leads to an inference of gross disproportionality.” Oliver,
812 N.W.2d at 647. “This preliminary test involves a balancing of the gravity of
the crime against the severity of the sentence.” Id. When the threshold test is
satisfied, a court then proceeds to steps two and three of the analysis. Id. These
steps require the court to engage in an intrajurisdictional analysis—“comparing
the challenged sentence to sentences for other crimes within the jurisdiction”—
and an interjurisdictional analysis—“comparing sentences in other jurisdictions
for the same or similar crimes.” Id. The first factor poses a high burden for
Terry. See Bruegger, 773 N.W.2d at 873 (“[I]t is a rare case in which a threshold
22
comparison of the crime committed and the sentence imposed leads to an
inference of gross disproportionality.” (internal quotation marks omitted)).
There are some general principles we must consider when reviewing a
defendant’s sentence to determine whether it is “grossly disproportionate” to the
crime committed. Oliver, 812 N.W.2d at 650. First, we defer to legislative
determinations of punishment and realize a sentence need not adhere to strict
proportionality to be constitutional. See Bruegger, 773 N.W.2d at 872 (“[A]
reviewing court is not authorized to generally blue pencil criminal sentences to
advance judicial perceptions of fairness.”); see also Ewing v. California, 538 U.S.
11, 28 (2003) (emphasizing a reviewing court does not “sit as a ‘superlegislature’
to second-guess policy choices”). Second, although we impose a more rigorous
review under our state constitution than under its federal counterpart, it remains
rare that a sentence is so grossly disproportionate to the offense that it satisfies
the threshold inquiry under Solem. Oliver, 812 N.W.2d at 650 (citing Iowa cases
in which defendants failed to meet this preliminary standard). Third, we regard a
recidivist offender as more culpable and, therefore, more deserving of a longer
sentence than a first-time offender. Id. Fourth, the unique features of a case
may “converge to generate a high risk of potential gross disproportionality.” Id. at
651 (quoting Bruegger, 773 N.W.2d at 884).
Keeping these principles in mind, we turn to the instant facts and consider
whether Terry’s sentence was grossly disproportionate to his offense of
possession of, or conspiracy to possess, over fifty grams of cocaine base and
failure to have a drug tax stamp under article 1, section 17 of the Iowa
23
Constitution. We find Terry’s circumstances are not so unique as to “converge to
form a high risk of disproportionality.” See Bruegger, 773 N.W.2d at 884.
Unique features to be considered include “a broadly framed crime, the
permissible use of preteen juvenile adjudications as prior convictions to enhance
the crime, and a dramatic sentence enhancement for repeat offenders.” Id.
Here, Terry’s actions were not “inadvertently caught by a broadly written statute.”
See Oliver, 812 N.W.2d at 651. Rather, his conduct falls squarely within the
elements of possession of a controlled substance, to wit: more than 50 grams of
cocaine base with intent to distribute—a special class “B” felony—and failure to
have a drug tax stamp—a class “D” felony. See Iowa Code §§ 124.401(1)(a)(3),
453B.12. Although his sentence was enhanced based on a previous felony drug
offense, this enhancement was provided in Iowa Code section 124.411, and the
sentencing court imposed a 90-year term of incarceration instead of the
maximum sentence of 150 years. Further, Terry’s sentence was not based upon
any preteen juvenile adjudications.
To fully address the proportionality question, we consider the totality of
circumstances, including the mitigating factors identified by Terry, as well as
other “potential factors that tend to aggravate the gravity of the offense and
magnify the consequences on [the victim].” Bruegger, 773 N.W.2d at 886. Here,
the district court captured the gravity of the offense when it noted the sale of
drugs has been a business for Terry, which created a significant danger to the
community. After considering the features of Terry’s case, we do not find his
sentence to be grossly disproportionate. Because the punishment does not
24
create an inference of gross disproportionality, we need not analyze the second
and third factors of Solem. Oliver, 812 N .W.2d at 653.
VI. Conclusion.
Because we find adequate corroboration to support Terry’s confession to
the crimes, we conclude his conviction is supported by sufficient evidence. We
reject Terry’s ineffective-assistance claim that counsel should have requested the
court send the jury back to deliberate when one juror voiced questions about the
verdict during the polling of the jury. We conclude Terry has failed to show either
that counsel breached an essential duty or that he suffered prejudice. We
likewise reject Terry’s claim that counsel should have objected when the
prosecution offered rebuttal evidence that was not previously disclosed in the
minutes of testimony. However, the record on appeal is inadequate to address
the remaining ineffective-assistance claims, and we preserve them for possible
postconviction-relief proceedings. Finally, we affirm his sentence, concluding the
court did not consider an unproven offense and his sentence was not grossly
disproportionate to this offense.
AFFIRMED.