IN THE COURT OF APPEALS OF IOWA
No. 15-0246
Filed June 29, 2016
JOSEPH MICHAEL STEPHEN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
Joseph Michael Stephen appeals the district court’s dismissal of his
application for postconviction relief. AFFIRMED.
Karmen R. Anderson of the Law Office of Karmen Anderson, Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee State.
Considered by Doyle, P.J., Mullins, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
EISENHAUER, Senior Judge.
Joseph Michael Stephen appeals the court’s dismissal of his application
for postconviction relief. We affirm.
I. Facts and Prior Proceedings
Shortly after 1:00 a.m. on April 13, 2009, Officer Paul Parizek observed a
pickup truck with an equipment violation and activated his emergency lights. As
driver Michael Scopa started to pullover, Parizek observed passenger Joseph
Stephen “moving around, kind of shifting from side to side in his seat.” Because
the stop occurred in a remote, dark area, Parizek approached the truck on the
passenger side and observed Stephen making furtive movements. Specifically,
[Stephen] was turned not completely facing the driver, but he had a
good portion of his back to where I was standing and both his
hands, and he was messing down around, like, where the seat belt
would buckle. Like he was stuffing something into the seats. So
they didn’t know I was there. I stood there for a second and waited
for [Stephen] to finish whatever he was doing and make sure he
came up with empty hands. When he did, I knocked on the door
. . . . They turned around and looked at me. I got identification
from both of them.
Officer Parizek took the identification back to his car, ran a computer
check, and called for backup. Parizek talked to Scopa outside the truck and
explained his rear license plate was not illuminated. Parizek asked Scopa, “Do
you know what Stephen was doing when he was messing around there?” Scopa
replied he did not. Parizek then asked if Scopa thought Stephen may have been
hiding a weapon, and Scopa replied he did not think so. Scopa gave Parizek
permission to search the truck, and once the other officer arrived, Parizek again
approached the truck and asked Stephen to get out. At trial, Parizek testified:
3
And as we were standing next to the truck, I asked [Stephen]
if I could pat him down. He said, “That’s fine.” I said, “Do you have
any weapons on you?” He said, “Yeah, I have a knife.” At that time
I . . . started patting him down, and the knife I found was . . . a small
pocket knife. I went ahead and I stuck that in my pocket just to hold
on to it until we were done, and then I continued on patting him
down.
As I was patting him down, in his left front pants pocket, I
could feel that there was a plastic Baggie in there. It is a pretty
distinct shape and texture. You can feel the jeans sliding across it.
I asked him what [it was, and Stephen] said he didn’t know. So I
stuck my hands into his pocket, pulled it out, and it was just a clear
plastic Baggie that contained what looked to me to be
methamphetamine. So at that time I went ahead and arrested Mr.
Stephen.
Rachael Seymour was appointed counsel for Stephen. In May 2009,
Stephen and Scopa were charged as codefendants in a four-count trial
information—count I, conspiracy to manufacture methamphetamine (excess of
five grams); count II, possession of lithium with intent to manufacture
methamphetamine; count III, possession of anhydrous ammonia with intent to
manufacture methamphetamine; and count IV, possession of methamphetamine.
Stephen’s trial was set for July 2009. However, on July 1, 2009, the county
attorney filed a notice of intent to not prosecute and sought dismissal on the
basis the federal government was pursuing the same criminal charges against
Stephen. The court granted the State’s motion and dismissed the case without
prejudice.
The federal action did not proceed to trial. At the end of July 2009, the
State refiled its trial information, charging Stephen with the same offenses but
also charging an habitual-offender enhancement. The court set Stephen’s trial
for October 21, 2009. Defense counsel Seymour filed a request for production of
documents, and she planned to depose the State’s witnesses on October 5,
4
2009. However, on October 5, Seymour made an oral motion to the court to
withdraw as Stephen’s counsel, citing an ethical conflict. Stephen was present,
and he suggested the court appoint Kent Balduchi as someone familiar with his
case from discussions of another matter. The court granted the motion to
withdraw and appointed Balduchi. Due to Seymour’s withdrawal, the depositions
were not taken.
Stephen and his new counsel appeared at an October 9, 2009 status
conference. On October 13, Stephen filed a motion in limine to exclude items,
including the lab report and references to anhydrous ammonia and lithium. The
court held a motion hearing on October 14, 2009. On October 19, 2009, the
State filed its witness and exhibit list.
Immediately prior to the October 21 trial, Stephen told the court he had
elected to proceed to trial without his counsel taking depositions rather than
waive his right to a speedy trial. Stephen’s defense theory was he was working
with the seat belt and had no knowledge of the Baggies stuffed in the seat or the
other items in the truck. After the State rested its case, the defense rested
without presenting evidence. On count I, the jury found Stephen guilty of a
lesser-included offense, conspiracy to manufacture a smaller amount of
methamphetamine, five grams or less. The jury found Stephen guilty as charged
on count II, possession of lithium with intent to manufacture methamphetamine,
and count IV, possession of methamphetamine. The jury acquitted Stephen on
count III, possession of anhydrous ammonia with intent to manufacture. The
district court entered judgment and sentence, Stephen appealed, and this court
5
affirmed. See State v. Stephen, No. 10-0286, 2011 WL 5393453, at *1 (Iowa Ct.
App. Nov. 9, 2011).
Stephen filed an application for postconviction relief (PCR), and the PCR
court took testimony over two days.1 The court denied relief in a comprehensive
ruling on November 26, 2014. Stephen now appeals.
II. Ineffective Assistance of Counsel
Stephen contends both of his attorneys were ineffective.
A. Scope and Standards of Review. To prove ineffective assistance of
counsel, Stephen must establish counsel failed to perform an essential duty and
this failure resulted in prejudice. See State v. Lopez, 872 N.W.2d 159, 169 (Iowa
2015). We review de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010).
“In determining whether an attorney failed in performance of an essential
duty, we avoid second-guessing reasonable trial strategy.” Id.; see State v.
Ondayog, 722 N.W.2d 778, 785 (Iowa 2006) (“We presume performance of
counsel falls within a range of reasonable professional assistance.”). In order to
show prejudice, a defendant must show that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. State v. Madsen,
813 N.W.2d 714, 727 (Iowa 2012). Counsel is not ineffective for failing to make a
meritless claim. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).
B. Ineffective Assistance of Attorney Seymour. Stephen first claims
attorney Seymour rendered ineffective assistance. As the PCR court correctly
ruled, Stephen’s challenge to Seymour’s effectiveness was decided by this court
1
Seymour testified she did not feel she would be able to zealously represent Stephen
because he had twice threatened to kill the prosecutor. She considered Stephen’s
threats to be serious.
6
on direct review. See Stephen, 2011 WL 5393453, at *9 (ruling Stephen cannot
establish prejudice because Seymour was granted permission to withdraw and
pretrial matters “could have been conducted by subsequently appointed
counsel”). Stephen cannot relitigate issues decided adversely to him on direct
appeal. See Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009); see
also Wycoff v. State, 382 N.W.2d 462, 465 (Iowa 1986) (“Issues . . . adjudicated
on direct appeal cannot be relitigated in a postconviction proceeding.”).
C. Ineffective Assistance of Attorney Balduchi. Stephen’s PCR
application asserted Balduchi was ineffective in the same manner as attorney
Seymour and, additionally, was ineffective in failing to assert a Brady challenge.
We will address his claims in turn.
1. Failing to File a Motion to Suppress. Stephen asserts Balduchi should
have filed a motion to suppress evidence of the drugs found in his pocket during
Officer Parizek’s patdown search for weapons. Stephen contends a court would
have suppressed the drugs as the search violated the “plain feel” exception to
the warrant requirement. See Minnesota v. Dickerson, 508 U.S. 366, 375-76
(1993).
At the PCR hearing, Balduchi testified that if he had had more time, he
would have filed a motion to suppress. He also testified Stephen chose not to
delay trial by waiving his right to a speedy trial. The PCR court ruled Balduchi
was not ineffective because Parizek’s search was constitutional and counsel had
no duty to file a meritless motion.
Upon our de novo review, we conclude Parizek’s search violated the “plain
feel” exception. Protective searches for weapons are limited and are not meant
7
to discover evidence of crime. Id. at 373. The Supreme Court has established
the permissible scope of a patdown search for weapons:
[A] protective search—permitted without a warrant and on
the basis of reasonable suspicion less than probable cause—must
be strictly “limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others nearby.”
If the protective search goes beyond what is necessary to
determine if the suspect is armed, it is no longer valid under Terry
and its fruits will be suppressed.
Id. (citations omitted). The Court analyzed an officer’s “tactile” discovery of a
small lump in Dickerson’s jacket pocket and set forth the “plain feel” exception to
the warrant requirement:
If a police officer lawfully pats down a suspect’s outer
clothing and feels an object whose contour or mass makes its
identity [as contraband] immediately apparent, there has been no
invasion of the suspect’s privacy beyond that already authorized by
the officer’s search for weapons; if the object is contraband, its
warrantless seizure would be justified by the same practical
considerations that inhere in the plain-view context.
....
[W]hether the officer detects the contraband by sight or by
touch, however, the Fourth Amendment’s requirement that the
officer have probable cause to believe that the item is contraband
before seizing it ensures against excessively speculative seizures.
....
Here, the officer’s continued exploration of [the] pocket after
having concluded [the pocket] contained no weapon was unrelated
to “[t]he sole justification of the search . . . the protection of the
police officer and others nearby.” It therefore amounted to the sort
of evidentiary search that Terry expressly refused to authorize, and
that we have condemned in subsequent cases.
Id. at 375-77 (citations omitted); see State v. Harriman, 737 N.W.2d 318, 321
(Iowa Ct. App. 2007) (holding where “the identity of the contraband” (drugs) was
“immediately apparent” during the patdown search, the drugs were admissible).
At the PCR hearing, Officer Parizek testified he asked Stephen if Parizek
could “check” him and Stephen said, “Yes.” Officer Parizek explained:
8
Q. And if you could just [state] why feeling a Baggie in Mr.
Stephen’s pocket would pose a safety risk to you as an officer? A.
It doesn’t.
....
. . . A. I don’t usually use the term “pat down” because most
people don’t get it . . . . I know what I was thinking at the time.
Q. Which was your intent was to pat him down for
weapons? A. Yes.
Q. Okay. Now, you never asked Mr. Stephen if you could
go into his pockets to retrieve that Baggie; is that correct? A. No.
When I felt the Baggie, I asked him what it was. He said he didn’t
know.
Q. And so at that point, you went into his pocket. A. Yes.
Q. And he did not consent to that? A. No.
Q. And you did not ask him if you could reach into his
pocket? A. No.
Q. And you knew at that time that the Baggie was not a
weapon? A. Correct.
Because Officer Parizek did not testify it was “immediately apparent” the
Baggie he felt was contraband other than a weapon, we agree with Stephen that
the search of his pocket was not justified under the “plain feel” exception. See
Harriman, 737 N.W.2d at 321.
However, our conclusion the officer overstepped the constitutional bounds
does not end our analysis. Illegally obtained evidence is not “sacred and
inaccessible” under the exclusionary rule. State v. Seager, 571 N.W.2d 204, 210
(Iowa 1997). Where the evidence “ultimately or inevitably would have been
discovered” in a lawful manner, “the exclusionary rule serves no purpose and
does not apply.” Id. at 211 (discussing exceptions to the exclusionary rule).
Search incident to arrest is a recognized exception to the exclusionary rule.
State v. Gaskins, 866 N.W.2d 1, 8 (Iowa 2015) (explaining this exception “derives
from interests in officer safety and evidence preservation that are typically
implicated in arrest situations”).
9
Because Officer Parizek inevitably would have searched Stephen incident
to arresting him upon the officer’s discovery of the components for a
methamphetamine lab and would have obtained the Baggie of
methamphetamine through the lawful means of a search incident to arrest, the
exclusionary rule does not apply. See id.; see also State v. Rowland, 352 P.3d
506, 510 (Idaho Ct. App. 2015) (holding defendant “would certainly have been
arrested as a result of the contraband found pursuant to the valid search warrant
and then searched incident to that arrest, making the discovery of the
methamphetamine in his pocket inevitable”). Accordingly, the methamphetamine
in Stephen’s pocket would not have been suppressed had Balduchi filed a motion
to suppress, and Balduchi had no duty to make a meritless motion. See
Brubaker, 805 N.W.2d at 171.
2. Failing to File a Motion to Dismiss—Speedy Trial. Stephen asserts
Balduchi was ineffective in failing to challenge “the dismissal the State obtained;
especially in light of the fact [Stephen] was not prosecuted by the federal
government.” Stephen also contends Balduchi should have filed a motion to
dismiss “once the new charges were filed and the speedy trial dates had
passed.”
The State is free to refile a criminal charge that it dismissed in the
furtherance of justice. State v. Abrahamson, 746 N.W.2d 270, 273 (Iowa 2008).
For such a dismissal to be valid, the State must provide appropriate and
sufficient reasons for the dismissal. Id. For Stephen’s proposed motion to
dismiss to be successful, he would have to show “the prior dismissal, regardless
of its stated purpose, was without adequate cause and that it impacted
10
unfavorably upon [Stephen’s] speedy trial rights.” See id. (citation omitted). After
our de novo review of the record, we agree with the PCR court:
While the notice and order could have probably provided
more detail, there is sufficient information to show that the case
was dismissed for grounds unrelated to [Stephen’s] speedy trial
rights. The prosecutor stated that the case was dismissed due to
the federal prosecution in the notice, and he testified to such at [the
PCR trial]. No evidence was presented to challenge his testimony
or the information in the notice he filed with the court. There is no
indication that the State was not ready to proceed with trial in July if
it had not voluntarily dismissed the case.
....
In this case, the evidence shows that the State dismissed
the case because it thought the federal government would take on
the prosecution.
We conclude Balduchi was not ineffective in failing to file a meritless
motion to dismiss alleging a violation of Stephen’s speedy trial rights. See
Brubaker, 805 N.W.2d at 171.
3. Failure to Investigate. Stephen claims competent counsel would have
investigated the lights on the rear license plate, i.e., the equipment failure forming
the basis for the stop. Because Stephen’s PCR application did not assert
counsel was ineffective in this regard, the PCR court did not rule on this issue.
Stephen has failed to preserve error on this claim. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review
that issues must ordinarily be both raised and decided by the district court before
we will decide them on appeal.”).
Stephen also claims competent counsel would have investigated the seat
belt’s coupler. Specifically, Stephen’s “movements were consistent with him
trying to buckle a non-functional seatbelt or at least make it appear to the officer
11
that it was secure” and evidence the coupler was broken “would have challenged
the State’s evidence.”
On direct appeal, this court ruled Stephen’s claim Balduchi was ineffective
in failing to file a motion challenging the stop was without merit. See Stephen,
2011 WL 5393453, at *9.2 Both as the truck slowed down and after it stopped,
Officer Parizek observed Stephen making “furtive movements” in his seat area.
After receiving consent from Scopa, Parizek’s search of that area revealed two
incriminating Baggies. The officer’s search of the passenger area in which
Stephen was sitting revealed a fume mask. During the 2009 trial, he testified:
Q. Did you have occasion after Mr. Stephen and Mr. Scopa
were removed from the cab of the truck to examine the seatbelt
receiver? A. I saw it.
Q. Did you realize that that seatbelt receiver was broken
and inoperable? A. No.
Q. Would the movements Mr. Stephen had at the time you
approached also [have] been consistent with someone trying to trap
or put the seatbelt underneath their thigh? A. I suppose it’s
possible.
Q. So it’s consistent as far as Mr. Stephen stuffing
something down there, it could very well have been him trying to
make that seatbelt stay underneath his thigh to give the
appearance of having a seatbelt fastened; correct? A. It’s
possible.
....
Q. When you stopped the vehicle, did Mr. Stephen have his
seat belt on? A. Yes.
Q. So he didn’t have it stuffed under his leg? A. Not that I
could see.
Q. . . . Did you ask Mr. Stephen what he was doing? A. At
one point I did.
Q. Did he tell you he was trying to hook his seatbelt up? A.
No.
....
Q. . . . Mr. Scopa could have stuffed that stuff in the seat
down there in that hiding place before he ever picked up Mr.
Stephen; isn’t that correct? A. It’s possible.
2
Thus, we do not address the same claim fleetingly made in Stephen’s brief.
12
Even if the seatbelt coupler was broken, Parizek had grounds to search
that area to confirm or dispel the suspicions he had regarding Stephen’s
movements. Based on Parizek’s trial testimony and the State’s additional
evidence at trial, we are unable to conclude, but for Baluchi’s failure to
investigate the coupler, the results of the proceeding would have been different.
See Madsen, 813 N.W.2d at 727. Thus, Stephen has failed to meet the
prejudice prong of this ineffective-assistance claim.
III. Illegal Sentence
Stephen challenges the sentences imposed by the district court. We
described his sentences on direct appeal:
At the sentencing hearing held January 29, 2010, Stephen
stipulated to two prior felonies: he was convicted on September 6,
2000, of possession of lithium, and on May 13, 2003, of
manufacturing a controlled substance, both . . . violations of chapter
124.
[On] February 11, 2010, the court imposed sentences of
incarceration not to exceed forty-five years each on Counts I and II,
and a term not to exceed fifteen years on Count IV.
The sentences in Count I and II shall run
concurrent to each other but shall run consecutive to
his sentence in Count IV for an indeterminate term of
incarceration not to exceed sixty (60) years.
Additionally, these sentences shall run consecutive to
his parole revocation.
The court found “mitigating circumstances do not exist and
the defendant shall be required to serve the mandatory minimum
sentences established under Iowa Code sections 902.8, 124.411,
and 124.413 prior to being eligible for parole.”
Stephen, 2011 WL 5393453, at *5.
A. Previously Resolved Sentencing Challenges. Stephen first
complains his sentences subject him to “double counting.” Stephen cannot
relitigate the “double counting” issue because this challenge was resolved on
13
appeal. See Holmes, 775 N.W.2d at 735; Stephen, 2011 WL 5393453, at *14-15
(stating “even if we were to apply the concept of double-counting, the legislature
has intended the result” and concluding the district court “properly sentenced”
Stephen “by imposing the penalty for an habitual offender under chapter 902 and
then enhancing that sentence pursuant to [Iowa Code] section 124.411(1)”).
Second, Stephen claims his sentence “was cruel and unusual
punishment,” a claim also previously resolved on direct appeal and thus not
properly before us. See Stephen, 2011 WL 5393453, at *12 (“[T]he sentence
was not grossly disproportionate to the underlying crimes as to constitute cruel
and unusual punishment”).
B. Equal Protection. Stephen challenges the constitutionality of his
sentencing enhancements—mandatory minimum and habitual offender—under
the Federal Equal Protection Clause. We review constitutional challenges de
novo. State v. Kern, 831 N.W.2d 149, 164 (Iowa 2013).
“[A]ll persons need not be treated alike to meet constitutional standards of
equal protection. It is enough if all members of the same Class are treated
equally. Of course, the classification itself must be reasonable.” Hack v. Auger,
228 N.W.2d 42, 43 (Iowa 1975). “The legislature is given wide discretion in
defining the limits of classes when a statute involves classification of persons or
things. If a classification is reasonable and operates equally upon all within the
class, it is a valid classification.” State v. Hall, 227 N.W.2d 192, 194 (Iowa 1975).
Stephen specifically claims applying “all enhancements to a single offense
is reading [in] a provision that is not in the statute” and a “plain reading” of
section 902.8 and section 124.411 would not lead to the conclusion both can be
14
applied. However, Stephen admits those statutes have been “interpreted in that
manner” and, accordingly, we find no merit to this challenge. See Iowa Code
§§ 124.411 (stating any person convicted of a “second or subsequent” offense
under the controlled substances chapter “may be punished by imprisonment [not
exceeding] three times the term otherwise authorized”), 902.8 (defining habitual
offenders as persons “twice before” convicted of a felony).
Alternatively, Stephen claims his sentence shows “Iowa has singled out
drug offenders and habitual offenders under section 902.8 to punish at a higher
rate than burglars, child molesters, and even some homicides.”
“Our habitual criminal law is the typical recidivist statute by which the State
undertakes” to utilize “increasingly severe punishment” on offenders “who have
previously failed to respond to more lenient or considerate measures.” Hack,
228 N.W.2d at 43. The State’s “harsher treatment of those who have already
been unsuccessfully subjected to penitentiary commitment, as opposed to those
who have not, is a logical and rational development of this state policy.” Id.
Iowa’s enhanced sentences for habitual offenders “sets up a reasonable
classification . . . not subject to challenge under the equal protection clause . . . .
Virtually all courts [that] have considered such statutes have reached the same
result.” Id. Additionally, mandatory imprisonment for certain drug-related
offenses does not violate an offender’s equal protection rights because there is a
rational relationship between a mandatory prison sentence and the legitimate
governmental interest in deterring drug abuse and sales. Hall, 227 N.W.2d at
194 (recognizing the “legislature has broad police power to regulate drug traffic”).
Stephen’s challenge based on equal protection is without merit.
15
C. Double Jeopardy. Stephen asserts the district court
violated the double jeopardy provision when it made the
determination that [he] could be sentenced on [both possession of
lithium with intent to manufacture and conspiracy to manufacture a
controlled substance]. The State alleged Stephen was conspiring
to manufacture methamphetamine, thus he would have been in
possession of the materials to manufacture the substance, i.e.
lithium. Because [lithium] must necessarily be possessed, in order
to manufacture methamphetamine, it is double jeopardy to convict
[him] of both offenses.
We review de novo. Kern, 831 N.W.2d at 164. In situations where “the
same act” constitutes “a violation of two distinct statutory provisions, the test . . .
to determine whether there are two offenses or only one, is whether each
provision requires proof of a fact . . . the other does not.” Blockburger v. United
States, 284 U.S. 299, 304 (1932). “If a requisite element of one offense is not
necessarily essential to conviction of another offense, then no double jeopardy
claim is present.” Id. We turn to the elements of the two offenses.
To prove possession of lithium with intent to manufacture, the State had to
show Stephen (1) possessed a product containing lithium and (2) had the intent
the product be used to manufacture any controlled substance—here,
methamphetamine. See Iowa Code § 124.401(4).
To prove the conspiracy charge, the State had to show (1) Stephen had
an agreement with Scopa that one or both of them would manufacture or attempt
to manufacture methamphetamine, (2) Stephen entered into such agreement
with the intent to promote or facilitate the manufacture of methamphetamine, (3)
Stephen or Scopa committed an overt act to accomplish the manufacturing of
methamphetamine, and (4) Scopa was not a law enforcement agent or assisting
16
law enforcement when the conspiracy began. See id. § 706.1; Kern, 831 N.W.2d
at 158.
Our comparison of the elements of the offenses shows neither of
Stephen’s crimes is the lesser-included offense of the other. See Blockburger,
284 U.S. at 304 (finding no double jeopardy where each offense “requires proof
of a different element”). The possession-with-intent-to-manufacture offense did
not require the State to prove Stephen entered into an agreement with Scopa.
Similarly, the conspiracy-to-manufacture offense did not require the State to
prove Stephen possessed a product containing lithium. See, e.g., Dodge v.
Robinson, 625 F.3d 1014, 1019 (8th Cir. 2010) (applying Iowa law and ruling
cumulative punishment for manufacture of methamphetamine and possession of
pseudoephedrine with intent to manufacture methamphetamine did not violate
double jeopardy); State v. Dodge, No. 99-1503, 2000 WL 1421759, at *4 (Iowa
Ct. App. Sept. 27, 2000) (ruling Iowa legislature intended to impose cumulative
punishment for the offenses of manufacture of methamphetamine and
possession of pseudoephedrine with intent to manufacture methamphetamine
where each offense “contained an element not found in the other”). We conclude
the district court’s sentence did not violate the double jeopardy clause.
IV. Brady Violation
Stephen argues the prosecution failed to disclose Walgreen’s receipts
showing Scopa had purchased pseudoephedrine. See Brady v. Maryland, 373
U.S. 83, 87 (1963) (holding due process requires the prosecution to disclose
exculpatory evidence to the accused). Stephen contends the evidence was
17
exculpatory because it shows the pseudoephedrine in the Baggie in the truck
was not his but belonged to Scopa.
“Because the basis for relief here is a due process violation, we employ a
de novo review” of the [PCR] court’s ruling on Stephen’s alleged Brady violation.
See Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003) (holding prosecution
committed a Brady violation by failing to disclose police reports identifying
alternative suspect). To demonstrate a due process violation, Stephen must
prove (1) the prosecution suppressed the evidence, (2) the evidence was
favorable to Stephen, and (3) the evidence was material to the issue of
Stephen’s guilt. See id. at 521. After our de novo review, we agree with and
adopt the [PCR] court’s resolution of the issue.
On or around October 16, 2009, the county attorney
received a document showing pharmacy drug purchases by Mr.
Scopa. The document showed Mr. Scopa purchased Sudafed,
which contains pseudoephedrine, on three occasions between
February 20, 2009, and March 30, 2009. The document indicated
that the county attorney faxed it to Mr. Balduchi on October 18,
2009. Mr. Balduchi did not have any memory of the document but
it was found in his file, thus indicating he had it prior to trial.
Prosecutor] DiBlasi likewise had no independent recall of the
document, but did not deny it was part of the file.
....
The State disclosed the document to the defense prior to
trial. The document is of questionable value. Even if Mr. Scopa
purchased drugs containing pseudoephedrine that does not mean
[Stephen] did not. Moreover, the pseudoephedrine and lithium
batteries were tied to [Stephen] because they were found in area of
the seat that he was seen apparently stuffing something between
the seat cushions, not because the State proved that he had
purchased the items. There is no reasonable probability that the
outcome of [Stephen’s] criminal trial would have been different if
[the document] had been provided to Balduchi earlier and he had
used the document at trial.
18
V. Insufficient Evidence
A. Conspiracy. Stephen contends “there is not sufficient evidence to
support his conspiracy conviction.” Stephen cannot relitigate this issue, which
was decided adversely to him on direct appeal. See Holmes, 775 N.W.2d at 735;
Stephen, 2011 WL 5393453, at *6-8.
B. Possession. Stephen argues there was “insufficient evidence to
prove [he] had dominion or control over the pseudoephedrine or the lithium” and
his “alleged movements are not enough.” Assuming, but not deciding, error was
preserved, this issue also was resolved on direct appeal:
[Stephen] was observed making motions consistent with
shoving something between the cushions of the truck’s bench seat
and when that area was searched, the police officer found both
crushed pseudoephedrine and stripped lithium batteries-both
precursors to methamphetamine. The jury could reasonably infer
Stephen’s furtive movements show these precursors were his.
See Stephen, 2011 WL 5393453, at *8.
VI. Conclusion
We have analyzed all of Stephen’s appellate challenges and any claims
not specifically discussed are without merit. We affirm the PCR court’s dismissal
of his application.
AFFIRMED.