STATE OF IOWA, Plaintiff-Appellee, vs. LUNDELL EARLEST BUCHANAN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-685 / 06-0723
Filed October 24, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LUNDELL EARLEST BUCHANAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Thomas M. Horan,
Judge.
Buchanan appeals from the judgment and sentence entered on his
conviction of possession of cocaine (penalty enhanced). AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney
General, Harold Denton, County Attorney, and Jerry Vander Sanden, Assistant
County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
2
VAITHESWARAN, J.
The State originally charged Lundell Earlest Buchanan with possession of
cocaine with intent to deliver (penalty enhanced) and possession of marijuana
(penalty enhanced). The State subsequently filed an amended trial information
reducing the first charge to possession of cocaine (penalty enhanced). Iowa
Code § 124.401(5) (2003).
A jury found Buchanan guilty on the amended cocaine charge. The court
then considered the penalty enhancement question in connection with the
cocaine count and concluded that Buchanan admitted to two prior convictions.
On the marijuana charge, Buchanan waived his right to a jury trial and
stipulated to a trial on the minutes of testimony.
The district court found
Buchanan guilty of that charge and found that Buchanan “had previously been
convicted of Possession With Intent to Deliver a Controlled Substance-Marijuana
in Linn County, Iowa, on November 17, 1995, in FECR 8386 and on July 25,
1996, in case number FECR 12057.”
Buchanan raises two issues on appeal. He first asserts that he “did not
stipulate to the allegations of prior offense as they relate to [the cocaine count]
and [he] did not waive his right to a jury trial regarding the penalty enhancement
on that count.” He argues trial counsel was ineffective in failing to object to the
procedure used by the district court in the penalty enhancement phase of the
cocaine trial.
We preserve this issue for postconviction relief to allow full
development of the facts surrounding counsel’s conduct. Berryhill v. State, 603
N.W.2d 243, 245 (Iowa 1999).
3
Buchanan also contends the district court should not have denied a
motion for mistrial he made following the testimony of two law enforcement
officers. One officer made reference to the fact that Buchanan was originally
arrested on a charge of possession with intent to deliver cocaine. The other
referred to an electronic scale in Buchanan’s possession. He testified the scale
was evidence of drug dealing.
After this testimony came into the record, the district court expressed a
willingness to “admonish the jury to disregard [the officer’s] mention of the fact
that the Defendant was originally charged with Possession with Intent to Deliver
because now he’s charged with Possession of Cocaine and not Possession with
Intent to Deliver.” The court also expressed a willingness to “admonish the jury
not to consider the testimony of the officer in regard to the scales.” Defense
counsel declined the court’s offer on the ground that the “admonishment would
not be sufficient to remove the taint of the designated testimony.”
At this
juncture, the court summarily denied the mistrial motion.
Our court has “long recognized the general sufficiency of cautionary
instructions except in extreme cases.” State v. Choudry, 569 N.W.2d 618, 621
(Iowa Ct. App. 1997).
The State urges us to find that, by declining the
instruction, Buchanan waived error.
We need not address this point, as
Buchanan also argues that we should examine this issue under an ineffectiveassistance-of-counsel rubric.
Having preserved Buchanan’s first claim for
postconviction relief proceedings, we preserve this claim as well.
AFFIRMED.
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