State v. BrooksState v. Brooks
- Reporters:
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- Before:
- Larson
Dаryl E. Brooks was convicted of three counts of delivery of a controlled substance in violation of Iowa Code sectiоn 124.401(l)(e) (1993). He appealed, asserting an abuse of the trial court’s discretion in refusing to appoint substitute counsel and ineffeсtive assistance of counsel. On appeal, the court of appeals preserved for postconviction рroceedings issues regarding the court’s exercise of discretion regarding substitution of counsel and alleged ineffective assistance of counsel. It otherwise affirmed. We vacate the court of appeals decision and affirm the judgment of the district court.
I. The Appointment of Substitute Counsel.
Approximately one week prior to the date scheduled for trial the defendant wrote to the court requesting the appointment of new counsel. He cited strategic differences with his counsel, counsel’s failure to properly investigate his case, and the failure of counsel to communicate with him. Specifically, his letter complained that his lawyer had fаiled to (1) secure expert testimony concerning difficulties in Caucasians identifying black persons, (2) spend adequate time cоnsulting with him, (3) obtain pictures of a “look-alike” for whom Brooks contends he was mistaken, and (4) check jail records to see if Broоks might have been in jail at the time of the offenses.
In the face of these assertions, Brooks’ attorney moved to withdraw from the сase. She stated that she was prepared for trial, but the defendant’s lack of confidence in her made it difficult for her to сontinue. The court denied both the motion to withdraw and the defendant’s request for substitute counsel.
Brooks’ complaint regarding his lawyer’s failure to obtain photos of a look-alike was effectivеly neutralized by a pretrial photo identification in which the officers identified Brooks from a group of persons selectеd by Brooks. Also, it was clear that the “lookalike” did not have a particular sear that made Brooks’ appearanсe unique.
As to Brooks’ claim that his attorney failed to secure the appointment of an expert witness to testify to the problems of “cross-racial identification,” the defendant could have suffered no prejudice because the court madе it clear in its ruling that it would not have allowed such testimony anyway.
We find that none of the claims of pretrial ineffectiveness, including counsel’s failure to check the jailhouse roster, were substantial enough to mandate the appointment of substitute counsel, and we find no abuse of discretion in the trial court’s refusal to do so.
II. The Ineffective-Assistance Claims.
The defendant complains that his counsel rendered ineffective assistance at trial because she failed to object to the attachment of evidence tags that went to thе jury and failed to move for a mistrial based on events outside the record.
A. It is undisputed that the State’s exhibits of the seized drugs went to the jury room with evidence tags still affixed and that defense counsel did not object. We have held that this is error. State v. Shultz, 231 N.W.2d 585, 587 (Iowa 1975); State v. Branch, 222 N.W.2d 423, 427 (Iowa 1974).
In Shultz, identification tags were аttached to eight state exhibits and two defense exhibits. The defendant’s attorney objected, but the objection was overruled. Wе reversed on the ground that the attached tags had the effect of emphasizing the state’s evidence. We said that prejudiсial error occurs even when the recitals on the tags are merely cumulative of the State’s evidence. Shultz, 231 N.W.2d at 587.
In Branch, the evidenсe tags were attached to heroin exhibits presented by the State. The tags were substantially the same as those in the present case, providing identification of the drug, the name of the defendant, the agents involved, and the time and date of delivery. We nоted the general rule that error in admitting hearsay must be presumed to be prejudicial “unless the contrary is affirmatively established.” Branch, 222 N.W.2d at 427. We reversed the conviction.
In State v. Gallup, 500 N.W.2d 437 (Iowa 1993), we discussed the Shultz and Branch еases but noted that in some circumstances the submission of evidence with tags attached would not be reversible error. In Gallup, the defendant admitted that he sold LSD, so the identification was not contested and because of that it was harmless error to submit the tags.
In this case, the defendant has not challenged any of the information contained on the evidence tags except their identifiсation of the defendant as the seller of the drugs. The defendant claimed at the trial that he was mistakenly identified, but there was strong еvidence to the contrary: the officers had numerous and lengthy dealings with him during their undercover operations, they identified him at the timе of each of the sales, and they picked his photograph from a lineup immediately before the trial. The distinguishing scar on his сheek made identification even more conclusive.
B. Brooks alleges other grounds for his ineffeetive-assistance-of-eounsel claim. First, he complains that his counsel failed to request a mistrial after jurors saw him in handcuffs on the first day of the trial. In addition, he complained that his counsel had failed to investigate and follow up on a “heated debate” between the county attorney and another person in the presence of the jury.
We conclude that the reсord is inadequate to rule on these additional claims regarding alleged ineffectiveness of counsel, and we therefore preserve the issue for postconviction proceedings.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.