STATE OF IOWA, Plaintiff-Appellee, vs. CURTIS LLOYD, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-188 / 08-1171
Filed May 6, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CURTIS LLOYD,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon Fister,
Judge.
Curtis Lloyd appeals his conviction, following jury trial, for conspiracy to
possess a controlled substance (crack cocaine) with intent to deliver.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant
County Attorney, for appellee.
Considered by Miller, P.J., and Potterfield and Doyle, JJ.
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MILLER, J.
Curtis Lloyd appeals his conviction, following jury trial, for conspiracy to
possess a controlled substance (crack cocaine) with intent to deliver.
He
contends the district court erred in overruling his motion for continuance of trial
and in granting the State’s motion to amend the minutes of evidence. We affirm.
I.
BACKGROUND FACTS AND PROCEEDINGS.
From the testimony presented at trial a jury could find the following facts.
In mid-January 2008 Tessa Steimel met and began dating Lloyd.
By late
January 2008 Steimel was involved with Lloyd in the purchasing, packaging, and
selling of crack cocaine. Steimel testified at trial that on several occasions she
went on trips out of state with Lloyd to purchase crack cocaine, and that she
would always drive the car when they were selling the drugs and Lloyd would
always make the sales. On March 12, 2008, Steimel and Lloyd were arrested
while driving around making crack cocaine sales. They were arrested following a
tip from Theodore Burt, a friend of Lloyd’s who was also a confidential informant
working with the Waterloo Police Department. Burt was with Lloyd and Steimel
on March 12 and telephoned the police about the location of the car. The stop
and arrest followed. The police found three cell phones on Lloyd, one of which
was Steimel’s, and $425 in cash in his pocket. During the consent search of the
vehicle police also found a small digital scale with white residue on it consistent
with residue from crack cocaine.
Lloyd and Steimel were then placed in the back of a police vehicle where
their conversation was recorded. During that conversation Lloyd told Steimel not
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to say anything to the police. At the police station following their arrest, Steimel
was interviewed by officers and eventually strip searched. She told the officers
she had drugs hidden in her vaginal area and a plastic baggie with six
individually wrapped rocks of cocaine was recovered from her vagina.
On March 24, 2008, the State filed a joint trial information charging Lloyd
and Steimel with possession of a controlled substance with the intent to deliver
and/or conspiracy to possess a controlled substance with the intent to deliver, to
wit: cocaine base (crack cocaine), in violation of Iowa Code section 124.401(1)(c)
(2007). At his arraignment on April 8, 2008, Lloyd pled not guilty and demanded
speedy trial. Trial was set for Tuesday, June 3, 2008. In two additional pretrial
conference orders the district court noted that Lloyd continued to insist on trial as
scheduled and did not waive his speedy trial right.
On Friday, May 30, 2008, co-defendant Steimel and her attorney met with
the State and accepted a plea offer that required her to testify truthfully against
Lloyd at trial in exchange for a suspended sentence and probation following her
guilty plea to the charge. On that same date both the prosecutor and Steimel’s
attorney called and informed Lloyd’s attorney that Steimel would now be an
additional witness for the State. On Monday, June 2, 2008, the State filed a
motion to amend the minutes of evidence. The proposed amendment added
Steimel as a witness and gave a summary of her expected testimony.
The
proposed amendment included evidence that had not been presented in the
minutes prior to her addition as a witness, testimony about trips out of town
Steimel had taken with Lloyd to purchase drugs, as well as other drug activity in
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which she and Lloyd had engaged. On the same date the State also filed an
amended trial information adding second offense and habitual offender
sentencing enhancements against Lloyd.
On the morning of trial, prior to jury selection, Lloyd orally moved for a
continuance of trial for one week to enable him to depose Steimel and investigate
her allegations. He argued that based on Steimel’s testimony, as set out in the
amended minutes of evidence, his defense strategy had to be completely
changed. Lloyd’s counsel stated the defense strategy was “going to be sort of
making the State prove it because their case was very thin against Mr. Lloyd,”
but with the addition of Steimel as a witness he now had to try to rebut the
testimony of a co-conspirator which “completely changes our strategy.”
The district court denied the continuance because due to previously
scheduled county attorney and judicial conferences the next available trial date
would be beyond Lloyd’s speedy trial deadline and Lloyd still refused any waiver
of a speedy trial.
The court, however, allowed a brief continuance so that
defense counsel could depose Steimel after jury selection. The court stated he
would be allowed to finish the deposition before Steimel testified.
Lloyd’s counsel deposed Steimel, largely that afternoon and then briefly
finishing the next morning.
On Wednesday, June 4, 2008, prior to further
proceedings Lloyd orally resisted the State’s motion to amend the minutes of
evidence to add Steimel, raising the same arguments as in his motion for
continuance, and asking that Steimel’s testimony be excluded.
The court
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granted the State’s motion to amend and denied Lloyd’s request to exclude
Steimel.
The jury found Lloyd guilty as charged and the court sentenced him to
imprisonment. Lloyd appeals, contending the district court erred in overruling his
motion for continuance of trial and in allowing the State to amend the minutes of
evidence to add Steimel as a witness.1
II.
MERITS.
A.
Motion to Amend the Minutes of Evidence.
The State is required to file minutes of evidence of each witness expected
to testify at trial and a full and fair statement of the witness’s expected testimony.
Iowa R. Crim. P. 2.5(3). These minutes are filed with the trial information to
“eliminate claims of foul play and provide an accused meaningful information
from which a defense may be prepared.” State v. Wells, 522 N.W.2d 304, 307
(Iowa Ct. App. 1994). The court may allow the State to amend the minutes
before or during trial unless “substantial rights of the defendant are prejudiced by
the amendment, or if a wholly new and different offense is charged.” Iowa R.
Crim. P. 2.4(8)(a), (e). The parties agree appellate review of a ruling allowing
amendment of minutes of evidence is for correction of errors at law. See Iowa R.
App. P. 6.4.
The State may file additional minutes of evidence and add witnesses up to
ten days before the commencement of trial. Iowa R. Crim. P. 2.19(2). If the
1
We believe that the question of a longer continuance and the question of amendment
of the minutes to add Steimel are closely and inextricably related. However, Lloyd and
the State have chosen to address them separately and independently, and we will
therefore do the same.
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prosecutor does not give notice to the defendant of all witnesses at least ten
days prior to trial, the court may order the State to permit the discovery of such
witnesses, grant a continuance, enter such other order as it deems just, or order
the exclusion of the testimony if necessary to protect the defendant from undue
prejudice. Iowa R. Crim. P. 2.19(3).
Prejudice does not arise simply because an amendment to the
minutes is allowed. Prejudice generally looks to the existence of
some legitimate surprise visited upon the defendant which
undermines an aspect of the defense to the charge or renders
defendant’s evidence inapplicable. A claim of prejudice must find
support in the record.
Wells, 522 N.W.2d at 307 (citations omitted).
Lloyd contends he was prejudiced by the court’s grant of the State’s
motion to amend the minutes of evidence. More specifically, he contends the
addition of Steimel as a witness necessitated a wholesale change in his trial
strategy on the eve of trial because he now had to attempt to rebut the testimony
of a co-conspirator and this “severely prejudiced” his case. Lloyd argues the
district court should have found Steimel’s testimony was unduly prejudicial and
thus excluded her testimony pursuant to rule 2.19(3).
Initially, we note that Steimel accepted the plea offer requiring her to
testify against Lloyd and gave her statement to the prosecutor on Friday, May,
30, 2008, two business days and a weekend before trial. Lloyd does not allege
the State lacked due diligence in informing him that Steimel was going to be a
witness.
Prior to jury selection on Tuesday, June 3, 2008, defense counsel
conceded that the news of Steimel’s addition as a witness was not “coming as a
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surprise” because both the prosecutor and Steimel’s attorney alerted him to that
fact on May 30 as soon as she accepted the plea agreement.
Consistent with the remedies provided in rule 2.19(3) for a late addition to
the minutes, the district court granted Lloyd the opportunity to depose Steimel
prior to opening statements and the presentation of any evidence.
Defense
counsel deposed Steimel prior to opening statements, and during trial subjected
her to a thorough cross-examination that spans forty-six pages of transcript.
Lloyd has not shown how this remedy was inadequate to dispel any potential
prejudice to him. As the court noted, the State may be allowed to amend the
minutes and add witnesses even during trial as long as the substantial rights of
the defendant are not prejudiced by the amendment. Iowa R. Crim. P. 2.4(8)(a),
(e). Because Lloyd was allowed to depose Steimel prior to opening statements
and any presentation of evidence, and Lloyd has not shown how this remedy was
inadequate, we conclude the court did not err in determining he was not
prejudiced by the court’s grant of the State’s motion to amend the minutes of
evidence.
B.
Continuance.
As set forth above, on the morning trial was scheduled to commence
Lloyd moved for a continuance of one week in light of Steimel agreeing to testify
against him and the State seeking to amend its minutes of evidence to add
Steimel as a witness. The district court offered Lloyd a continuance if he agreed
to a waiver of speedy trial. Lloyd chose not to waive his right to speedy trial and
the court denied the motion for continuance of trial, but did order a brief
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continuance so defense counsel could depose Steimel prior to opening
statements and evidence. Lloyd contends the district court erred in denying his
motion for continuance.
Motions for continuance of trial are discouraged and shall not be granted
“except upon a showing of good and compelling cause.” Iowa R. Crim. P. 2.9(2).
The decision to grant or deny a continuance of a criminal trial lies within the
broad discretion of the trial court. State v. Leutfaimany, 585 N.W.2d 200, 209
(Iowa 1998). Such a ruling will not be disturbed on appeal unless “an injustice
has resulted.” Id. “This standard recognizes the interest of the State and the
defendant in a speedy and fair trial.” Id.
Because the prosecuting attorneys would be unavailable the following
week, and judges would be unavailable the week after that, a continuance of trial
to a later date was not possible without violating Lloyd’s right to speedy trial as
the next available trial date was beyond the speedy trial deadline. The district
court stated that if Lloyd insisted on speedy trial “he’s going to get it and it will
start in about twenty minutes.” Having allowed Lloyd an opportunity to depose
Steimel before opening statements, the court opted for the most efficient and fair
remedy given the next available date for a trial and the impending speedy trial
deadline. No injustice to Lloyd has been shown and we conclude the district
court did not abuse its broad discretion in denying his motion to continue.
III.
CONCLUSION.
For the reasons set forth above, we conclude the district court did not err
in granting the State’s motion to amend the minutes of evidence to add Steimel
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as an additional witness, and did not abuse its broad discretion in denying his
motion to continue.
AFFIRMED.
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