STATE OF IOWA, Plaintiff-Appellee, vs. JAMES MICHAEL COLEMAN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-567 / 09-0355
Filed August 6, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES MICHAEL COLEMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
James Michael Coleman appeals his convictions and sentences for
possession of marijuana, third offense, and unlawful possession of a prescription
drug. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Jeremy Westendorf,
Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
2
DOYLE, J.
James Michael Coleman appeals his convictions and sentences for
possession of marijuana, third offense, and unlawful possession of a prescription
drug. He contends the district court erred in making a certain evidentiary ruling
and denying his motion for new trial. Upon our review, we affirm.
I. Background Facts and Proceedings.
On April 7, 2008, Coleman was charged by trial information with
possession of a controlled substance, marijuana, third offense, in violation of
Iowa Code section 124.401(5) (2007), and unlawful possession of a prescription
medication, in violation of section 155A.21. From the evidence presented at trial
of the underlying criminal charges against Coleman, a reasonable jury could
have found the following facts:
On March 3, 2008, Coleman went to the home of his then girlfriend,
Markaye Cox. Cox had sewn a seam in Coleman’s coat and washed his laundry.
Coleman picked up the coat and laundry from Cox’s house and then went to visit
friends. Coleman stayed the night at his friend Ricky Carroll’s home.
The next day, Coleman’s ex-girlfriend, pregnant with his child, went into
labor. Coleman went to the Allen Hospital in Waterloo to await his child’s birth.
Waterloo Police Officer Robert Michael was also at the hospital and recognized
Coleman as someone who had outstanding warrants. After confirming there was
an arrest warrant for Coleman, Officer Michael arrested Coleman.
Officer Michael asked Coleman if he possessed any weapons or
contraband, and Coleman retrieved a pocket knife from his right rear pocket.
3
Coleman was then searched. The officer discovered a small bag containing six
grams of marijuana and a couple of burnt marijuana roaches in the same pocket
which had contained the pocket knife. Additionally, a small pipe for smoking
marijuana was discovered in Coleman’s inside coat pocket, and a bottle of
Nitroglycerin pills prescribed for Coleman’s friend Ricky Carroll was found in
Coleman’s backpack.
Officer Michael observed that Coleman smelled of burnt marijuana and
acted lazy and slow.
Officer Michael formed the opinion that Coleman was
heavily under the influence of marijuana. Officer Brian Weldon, who was also at
the scene of the arrest, did not smell any odor coming from Coleman, but
testified that his sense of smell was not very good. When Officer Michael located
the bag in Coleman’s pocket, Coleman initially claimed the substance in the bag
was not marijuana. Coleman later claimed the marijuana belonged to someone
else.
Officer Weldon observed that Coleman was quiet and maybe a little
nervous and that Coleman stated the marijuana belonged to Coleman’s friend.
While Coleman was in jail, Coleman and Cox wrote letters to one another
discussing, among other things, Coleman’s charges in this case and another
pending criminal case.1 One of Coleman’s letters to Cox stated, in relevant part:
Now on to getting me closer to getting out of here. . . . You
and [my friend] Rick need to set up an appointment with my
attorney. This is what Rick needs to tell her: That the pills are his
and that he has a heart condition and that I hold those pills for him
just in case he can’t get to his. Because I’m with or around him
almost every day. Yes I had permission to have them and most
times I leave them with him when I leave him. But on that day I
1
We have corrected the spelling errors contained in quoted letters below for the
purposes of this opinion.
4
was rushing trying to get to the hospital to see my son born, it was
an honest mistake.
Now what you need to do: Tell [my attorney] that on the
Monday before I was arrested I came by your house to pick up
some laundry and my winter coat. You had the coat to sew the
sleeve up. Tell her from time to time you do wear my things and
that you had accidently left the bag of weed in my right rear pocket
and I knew nothing about it, and that you left that little cigarette pipe
in my coat when you had been wearing the two items out side to
smoke because you couldn’t smoke in the house and yet again I
knew nothing about it until the police found it. Make it sound
believable.
Another letter to Cox stated, in relevant part:
Before I forget, my lawyer will be calling you soon for [a
deposition]. The only new thing I need to tell you about that stuff is
about the weed charge. This is what I want you to say that you put
the weed in the pocket of my jeans to hide it from your dad and you
forgot about it the day I came to pick up my clothes and my coat
and no I would not have known that either items were in the jeans
or the coat.
Baby if you and your friend do a good job in [your
depositions] they may just drop the charges before I have to go to
trial.
Cox’s letter to Coleman stated, in relevant part:
I know I [f***ed] up Dad and I are going to talk to the cops
and tell them what’s up. So yeah but no matter how much you hate
me or [are] mad at me I still love you and I do understand why you
are mad and yes I [f***ed] up. I will fix it promise. Sorry I know you
won’t forgive me and I’m sorry I lied to you. I’m just a bad person I
guess because I mess everything up and lose everything I love and
I’m sorry I hope I don’t lose you, you are my whole life baby.
But I will fix it one way or another baby.
Another letter from Cox to Coleman stated:
I know you’re going to be mad at me but Monday night I tried to hurt
myself because I’m the whole reason you are in there.
Prior to trial, Cox was deposed. She testified that the marijuana and pipe
were hers and not Coleman’s. She testified that the reason Coleman asked her
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in his letters to tell his attorney that the drugs were hers was because they were
actually hers. Cox further testified at her deposition that Coleman “couldn’t make
[her] lie, nobody could make [her] lie, [she was] telling the truth, [and] that it was
[her] marijuana.”
A jury trial commenced on July 1, 2008. On direct examination by the
State, Cox testified that the marijuana was not hers, that she did not put the
marijuana in Coleman’s jeans pocket, and that she did not put the marijuana pipe
in Coleman’s coat pocket. She further testified that Coleman was asking her to
lie for him in his letters to her.
On cross examination, Coleman’s attorney presented Cox’s deposition
testimony for impeachment purposes. When asked by Coleman’s attorney why
she changed her testimony at trial, Cox testified it was “[b]ecause [she didn’t] feel
like lying for [Coleman] no more. Everybody tells [her] why would [she] sit in jail
for somebody. There’s no point to it.” Cox also testified that she and Coleman
had recently broken up and that she had moved in with her new boyfriend.
On redirect examination, Cox testified that she had “snitched” on Coleman
in the past, and she regretted snitching on Coleman at the time she wrote her
letters to Coleman. She testified that when she wrote “I know I [f***ed] up Dad
and I are going to talk to the cops and tell them what’s up,” she was referring to
Coleman’s marijuana possession charge and a forgery charge pending in
another criminal case.2 Additionally, she testified that when she said in her letter
she would fix it she meant she would “tell[] them that [the marijuana] was [hers]
2
See State v. Coleman, No. 08-1435 (Iowa Ct. App. July 22, 2009).
6
when it wasn’t.” When asked by the State why she testified at her deposition that
the marijuana was hers, she explained:
Because when I went up there a couple of days before that, I
went and seen [Coleman], of course, because at that time I still
wanted to be with him, but I went there and seen him and he don’t
want to get to sent to prison. I don’t know.
Immediately after her answer, the following exchange occurred:
Q. Are you afraid of the defendant?
[COLEMAN’S ATTORNEY]: Objection.
[THE COURT]: Overruled.
A. Yes, sometimes.
Q. Has there been any threats made to you about your
testimony in the marijuana case by the defendant?
[COLEMAN’S ATTORNEY]: Objection.
[THE COURT]: Overruled.
A. Yes, sir.
Q. Can you tell us what those were? A. When I was up
there visiting him he said that if he got sent to prison, because of
the marijuana or anything, that he would hurt me or something like
that. So . . .
Q. Did you take that seriously? A. Yes, sir.
On recross, Cox testified she was threatened by Coleman before her deposition
took place, but she went back to visit him in prison after her deposition “because
I just lied for him and I still have really deeply feelings for him and stuff . . . .”
Coleman’s friend Matt Stockeland testified on Coleman’s behalf.
Stockeland testified that Coleman was like a brother to him and that he drove
Coleman to the hospital on March 4, 2008. He testified that Coleman did not
smell like marijuana when Coleman got into his car.
Coleman then testified on his own behalf.
He testified that the night
before his arrest, he picked up his clothes and coat from Cox’s house.
He
admitted he had smoked marijuana with Cox in the past, but testified he had not
7
on that occasion. He testified he was up all night prior to his arrest due to stress
about the impending birth of his child, explaining why he could have possibly
looked high at the hospital. He testified he was unaware at the time of his arrest
that the marijuana was in his pocket, the pipe was in his coat, and the
Nitroglycerin pills were in his backpack. He testified initially he “did not know
exactly how or who placed them there, but during a visit with [Cox] . . . she stated
to [him] that she had placed them there.” He testified that Cox put the marijuana
in his pocket and jacket “because she knew that her dad wouldn’t go through
[his] things. She had placed them there so she could keep them concealed from
her dad.” He also testified that his letters were only asking Cox to tell the truth
that the drugs were hers, and that was just his “style of writing.” He denied ever
threatening Cox and testified he did not know why she changed her testimony.
As to the Nitroglycerin pills, Coleman was unsure how the pills ended up in his
backpack, but explained that sometimes he held his friend’s medication for him.
Coleman assumed either he took the pills out of his pocket and stuck it in his
backpack or that the pills ended up in his backpack while he was washing up in
the bathroom. He testified that did Nitroglycerin pills did not have any street
value.
Coleman’s friend Ricky Carroll testified on Coleman’s behalf. However,
Carroll testified on cross-examination that he never gave Coleman his
Nitroglycerin pills or asked Coleman to hold his medication for him. He also
testified he never gave Coleman permission to have possession of his
medication.
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The jury found Coleman guilty as charged. Following the trial, Coleman’s
attorney filed a combined motion for a judgment of acquittal and a new trial. The
motion cited Iowa Rule of Criminal Procedure 23(2)(b)(4) and (9).3 The motion
asserted, in relevant part:
At trial, [Cox] contradicted her testimony given in a
deposition in which she stated that the drugs were hers. After she
testified at trial that the drugs were not hers, she was seen by one
of the defense witnesses, laughing, and told him that the drugs
were, in fact, hers.
That witness, Matt Stockeland, will appear at court and
testify as to what Ms. Cox told him in the hall after she testified.
The motion was heard prior to Coleman’s sentencing. Stockeland did not
appear for the hearing.4 As to the timing of Stockeland’s allegation, Coleman’s
attorney stated that Stockeland went on vacation the same day he testified in
Coleman’s criminal case, and Stockeland called her after he returned from
vacation a few weeks later concerning Cox’s alleged statement.
Coleman’s
attorney argued:
I had hoped to have Mr. Stockeland here to testify as to what
[Cox] told him. I just know that he did leave a voice mail for me,
said that he was concerned because she did come out and she
was laughing and joking around with her, I believe, boyfriend, and
pretty much told the witness as well as everybody else in the hall
that the drugs were in fact hers. So unless Mr. Stockeland shows
up here pretty soon, I just have that information to go off of. We
would request that that would be grounds for a new trial . . . .
The court overruled Coleman’s motion for a new trial, explaining:
[D]espite [Stockeland’s] trial testimony as to being such a
close personal friend of Mr. Coleman and having heard allegedly
that [Cox] had just submitted perjured devastating testimony
3
Coleman’s motion cites rule 23 although the rule was renumbered to 2.24 in 2001. All
references hereinafter will be to rule 2.24.
4
Coleman’s attorney did not subpoena Stockeland because Stockeland indicated he
would appear for the hearing willingly.
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against his close personal friend, . . . all Mr. Stockeland cared to do
was to simply go on vacation and a week or two or so later . . .
place a phone call to an answering machine that that’s been the
sum substance of Mr. Stockeland’s concern about the predicament
of his close personal friend being wrongly convicted. . . . [I]t just
doesn’t bear weight for two reasons. First, Mr. Coleman . . . has
demonstrated proclivity for procuring perjured testimony. Second, it
just doesn’t make sense if Mr. Stockeland testified as he did before
this jury that he and Mr. Coleman are personal close friends that if
he heard this he would simply leave on vacation, walk away from
his close personal friend and let the chips fall where they may. I
would assume any reasonable person if he heard such statements
would immediately turn around and go back into the courtroom and
say to the prosecutor, to the court, to the defense attorney, this is
what I just heard. You guys should do something about this. Then
we could have had him give his testimony in front of that jury and
the jury could make an assessment as to whether Mr. Stockeland
was telling the truth or not. . . .
[I]f Mr. Stockeland had testimony to give, he should have
either alerted us to it when he heard it immediately . . . or at the
very least been more timely than he now asserts.
Judgment was then entered, and Coleman was sentenced to a prison term not
to exceed five years on the marijuana possession conviction and a fine on the
unlawful possession of a prescription medication conviction.
Coleman now appeals. He contends the district court erred in allowing
testimony of Coleman’s alleged threat to Cox. Additionally, he argues the court
erred in applying the wrong standard in considering his motion for a new trial and
in denying his motion for new trial. Coleman alternatively argues his trial counsel
was ineffective should we find he failed to preserve error on either of his claims.
II. Discussion.
A. Admission of Threat Testimony.
On appeal, Coleman contends the district court erred in allowing testimony
of Coleman’s alleged threat to Cox.
We generally review a district court’s
10
evidentiary and trial objection rulings for abuse of discretion. Kurth v. Iowa Dep’t
of Transp., 628 N.W.2d 1, 5 (Iowa 2001); State v. Tracy, 482 N.W.2d 675, 68081 (Iowa 1992). However, the State argues Coleman failed to preserve this
issue for appellate review because his attorney did not state a specific objection
to the testimony. See State v. Maghee, 573 N.W.2d 1, 8 (Iowa 1997) (stating
that in order to preserve error, an objection must be specific enough to alert the
district court to the basis for the complaint).
We agree and find Coleman’s
challenge to this evidentiary ruling is not preserved for our review.
Coleman alternately argues his trial counsel was ineffective for failing to
specifically object to the testimony, an exception to the general rule of error
preservation. See Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993). We
review claims of ineffective assistance of counsel de novo. State v. Maxwell, 743
N.W.2d 185, 195 (Iowa 2008). Unless the record on direct appeal is adequate to
address the issue, a claim of ineffective assistance of counsel is generally
preserved for possible postconviction proceedings. State v. Bearse, 748 N .W.2d
211, 214 (Iowa 2008). We conclude the record in this case is adequate to decide
this issue.
To establish a claim of ineffective assistance of counsel, Coleman must
prove (1) counsel failed to perform an essential duty and (2) prejudice resulted.
Maxwell, 743 N.W.2d at 195. A defendant’s failure to prove either element by a
preponderance of the evidence is fatal to the claim. State v. Polly, 657 N.W.2d
462, 465 (Iowa 2003). To establish the second element of the test, Coleman
must show “there is a reasonable probability that, but for the counsel’s
11
unprofessional errors, the result of the proceeding would have been different.”
State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008) (citations omitted).
A
reasonable probability is a probability sufficient to undermine confidence in the
outcome of defendant's trial. State v. Bugley, 562 N.W.2d 173, 178 (Iowa 1997).
Assuming without deciding that Coleman’s trial counsel failed to perform
an essential duty, we find Coleman suffered no prejudice.
We reach this
conclusion because we believe that Coleman has failed to show a reasonable
probability that the outcome of the proceeding would have differed if his counsel
had successfully objected to the evidence at issue here.
At trial, Officer Michael testified that Coleman smelled of marijuana and
that Coleman acted lazy and slow at the time of his arrest.
Officer Michael
testified that he formed the opinion that Coleman was heavily under the influence
of marijuana at the time of his arrest.
Officer Michael further testified that
Coleman’s first response to finding the bag of marijuana in his pocket was that
the substance in the bag was not marijuana, and not that the bag of marijuana
belonged to Coleman’s friend.
Additionally, Coleman’s letters to Cox were
admitted into evidence. In his letters to Cox, Coleman requested Cox contact his
attorney and tell his attorney that the marijuana and pipe belonged to Cox, not
that she tell the truth.
He specifically stated for her to “[m]ake it sound
believable.” He also stated in another letter that if she did a “good job” in her
deposition, the State “may just drop the charges before [he had] to go to trial.”
Moreover, Coleman’s friend, for whom the Nitroglycerin medication was
intended, testified he did not ask Coleman to hold the medication for him or give
12
him permission to possession the medication, contradicting Coleman’s testimony.
Given the contradictions to Coleman’s testimony at trial and the above-stated
evidence, we find it is not reasonably probable that even in the absence of the
threat evidence the jury would have accepted Coleman’s explanations.
We
therefore find Coleman’s counsel was not ineffective for failing to specifically
object to the threat testimony.
B. Motion for New Trial.
Coleman’s next argument centers upon his motion for a new trial. The
district court has “wide discretion in deciding motions for new trial.” State v. Ellis,
578 N.W.2d 655, 659 (Iowa 1993); see also Iowa R. App. P. 6.904(3)(c) (“In
ruling upon motions for new trial the district court has a broad but not unlimited
discretion in determining whether the verdict effectuates substantial justice
between the parties.”). We reverse only where the district court has abused that
discretion. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003).
1. Applicable Standard.
Coleman first contends the district court applied the wrong standard in
considering his motion because the court did not specifically weigh the conflicting
testimony of the witnesses and make a determination about whether or not he
deserved a new trial. Coleman argues Iowa Rule of Criminal Procedure 2.24(2)
requires courts to employ a “weight-of-the-evidence” standard instead of a
“sufficiency-of-the-evidence” standard, citing our supreme court’s decision in
State v. Ellis, 578 N.W.2d at 659. We find no merit in Coleman’s argument.
13
In Ellis, the court specifically interpreted the definition of Iowa Rule of
Criminal Procedure 2.24(2)(b)(6). Rule 2.24(2)(b)(6) provides that the district
court may grant a new trial “[w]hen the verdict is contrary to law or evidence.” In
Ellis, the court held that “contrary to . . . the evidence” as stated in the rule meant
“contrary to the weight of the evidence” and use of the “sufficiency of the
evidence” standard was not proper. The court in Ellis did not generalize that any
motion brought under rule 2.24(2)(b) required employment of the weight of the
evidence standard.
This is important because Coleman’s motion for a new trial only cited rule
2.24(2)(b)(4) and (9) as grounds for the new trial. Rule 2.24(2)(b)(4) provides
that a new trial may be granted “[w]hen the verdict has been decided by lot, or by
means other than a fair expression of opinion on the part of all jurors.” Rule
2.24(2)(b)(9) provides that a new trial may be granted “[w]hen from any other
cause the defendant has not received a fair and impartial trial.”
Neither
subsection (4) nor (9) contain “contrary to law or evidence” language. Coleman’s
motion does not cite rule 2.24(2)(b)(6) or assert that the jury’s verdict was
contrary to the weight of the evidence. Additionally, in arguing the motion at the
sentencing hearing, Coleman’s attorney did not assert that the jury’s verdict was
contrary to the weight of the evidence. Thus, we conclude the district court did
not apply the wrong standard in considering Coleman’s motion because the court
was not required to weigh the witnesses’ conflicting testimony under the grounds
raised in the motion.
14
2. Denial of Coleman’s Motion.
Coleman argues the district court erred in denying his motion for a new
trial. Based upon the grounds and claims raised by Coleman in his motion and at
the sentencing hearing, we disagree.
Although Coleman’s motion cited rule 2.24(2)(b)(4), no evidence was
raised or cited to support this ground for a new trial. The only ground remaining
is rule 2.24(2)(b)(9), providing that a new trial may be granted “[w]hen from any
other cause the defendant has not received a fair and impartial trial.”
This
ground asserted makes sense in view of the argument advanced by Coleman in
his motion and at the hearing.
Coleman’s motion argued that Stockeland had heard Cox allegedly state,
after testifying in court, that she lied on the stand and that the drugs were hers. If
this evidence were true and supported, a new trial under rule 2.24(2)(b)(9) may
have been warranted. However, Stockeland failed to appear at the hearing to
give his testimony concerning Cox’s latest statement. The court considered the
information given by Coleman’s attorney pertaining to the new testimony, and
found it did not “bear weight” given evidence that Coleman had demonstrated a
proclivity for procuring perjured testimony and the fact that Stockeland did not
come forward with the information for a few weeks, although Stockeland testified
that he was a close personal friend of Coleman’s. We agree with the court’s
reasoning and therefore conclude the district court did not abuse its discretion in
denying Coleman’s motion for a new trial.
15
III. Conclusion.
Although we find Coleman’s challenge to his evidentiary ruling issue is not
preserved for our review, we conclude Coleman’s counsel was not ineffective for
failing to specifically object to the threat testimony. Additionally, we conclude the
district court did not apply the wrong standard in considering Coleman’s motion
because the court was not required to weigh the witnesses’ conflicting testimony
in making a determination about whether or not Coleman deserved a new trial
under the grounds raised in his motion. We are also in accord with the district
court’s reasoning and conclude the court did not abuse its discretion in denying
Coleman’s motion for a new trial. For these reasons, we affirm.
AFFIRMED.
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