State of Iowa v. Alan Scott Lawton ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 4-030 / 13-0605
Filed April 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALAN SCOTT LAWTON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, James S.
Heckerman, Judge.
A defendant appeals following his conviction for second-degree theft
challenging his counsel’s effectiveness, the court’s admission of evidence, and a
defect in his sentence. CONVICTION AFFIRMED; SENTENCE VACATED AND
REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Joe Williams, Student Legal Intern, Matthew Wilber, County Attorney,
and Amy Zacharias, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Doyle and Mullins, JJ.
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MULLINS, J.
Alan Lawton appeals following a jury’s verdict finding him guilty of theft in
the second degree. He alleges on appeal that his attorney rendered ineffective
assistance when he failed to challenge the search of Lawton’s motel room as
violating Lawton’s Fourth Amendment rights. He also claims the court erred in
admitting into evidence a recording of a phone call made while Lawton was in the
county jail. Finally, he asserts the court erred in failing to articulate on the record
the reasons for imposing the sentence it did.
I. Background Facts and Proceedings.
On November 1, 2012, Officer Shawn Landon of the Council Bluffs Police
Department was in the parking lot of a local motel running the license plates of
the vehicles located there to see if any of the owners of the vehicles had
outstanding warrants or if any car was stolen. Officer Landon ran the license
plate of a white Chevy pickup truck and found the license plate was not
registered to that vehicle. He called a tow company to unlock the door to the
vehicle so that he could check the VIN number, as a glove covered the VIN in the
front window. When he ran the VIN number on the truck, a response came back
that the truck had been reported stolen out of Omaha.
Officer Landon contacted the staff of the motel, who were able to direct
him to the room where the people connected with that vehicle were staying.
Officers knocked on the motel room, and after several minutes, Jody Riddle,
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Lawton’s girlfriend, opened the door. Lawton was found in the motel bathroom
and was eventually arrested.1
The case proceeded to trial on March 19, 2013. During trial the State
offered a recording of a phone conversation recorded by the phone system of the
county jail. The State called Stuart Delacastro, who offered testimony as to how
the phone system worked and how he was able to retrieve this recording as
associated with Lawton. Lawton’s attorney voir dired the witness, who admitted
he did not know for sure that Lawton made the phone call recorded. Lawton’s
attorney objected to the admission of the recording asserting, “It would not be
relevant to this case.” The court overruled the objection and admitted the phone
recording. The phone call was not played for the jury until after Jody Riddle
testified. Riddle admitted during her testimony that Lawton called her on March
3, the date of the recorded phone call. After Riddle was excused, the State
asked to play the recording for the jury. Lawton’s attorney objected on the basis
that the State was attempting to “impeach their own witness” and it was
“hearsay.” The court again overruled the objections and played the recording for
the jury. The recording was a conversation between Lawton and Riddle
discussing the facts of the case.
1
The trial information indicates Lawton was charged with two counts of theft in the
second degree, possession of a controlled substance, and ongoing criminal conduct.
However, Lawton was tried only on one count of second-degree theft, and the record is
unclear what occurred with the other charges. Because the issues on appeal do not
deal with the other charges, we will not address them further.
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After Lawton took the stand to testify in his own defense, the case was
submitted to the jury. The jury returned a verdict the next day finding Lawton
guilty of second-degree theft. Lawton now appeals.
II. Scope and Standards of Review.
Lawton’s ineffective-assistance claim is reviewed de novo as it implicates
his constitutional right to counsel under the Sixth Amendment. See State v.
Carter, 602 N.W.2d 818, 820 (Iowa 1999). In order to prove counsel was
ineffective, Lawton must show by a preponderance of the evidence that counsel
failed to perform an essential duty and he suffered prejudice as a result. See
State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008).
With respect to his claim the court should not have admitted the recording
of the phone call from the county jail, our review is for abuse of discretion. State
v. Weatherly, 519 N.W.2d 824, 825 (Iowa Ct. App. 1994). We also review
Lawton’s challenge that the court failed to state on the record the reasons for
imposing the sentence for an abuse of discretion. State v. Oliver, 588 N.W.2d
412, 414 (Iowa 1998). To prove an abuse of discretion, Lawton must show the
court “exercised its discretion on grounds or for reasons clearly untenable or to
an extent clearly unreasonable.” Weatherly, 519 N.W.2d at 825 (internal
quotation marks and citations omitted).
III. Ineffective Assistance—Search of Motel Room.
Lawton’s first claim is that his attorney rendered ineffective assistance
when the attorney failed to file a motion to suppress evidence obtained from a
search of Lawton’s motel room that violated Lawton’s Fourth Amendment rights.
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In support of his claim, Lawton seizes upon the following paragraph from the
minutes of testimony attached to the trial information filed by the State
Detective Elonich will testify that on November 1, 2012, while
looking through motel room #23 at the Lake Manawa Inn Motel that
was occupied by the Defendants . . . he noticed numerous tools
and miscellaneous other items that appeared to be from burglaries.
There was a Starcaster guitar with amplifier, laptop computer,
portable DVD player, numerous cell phones and car chargers, etc.
The title to Mr. Wilson’s stolen Chevy pickup, along with some of
his stolen tools was also found in the motel room that was occupied
by the Defendants. Detective Elonich will testify that with this
evidence he obtained a warrant for the additional charges of Theft
in the Second Degree and Ongoing Criminal Conduct for the
Defendants.
Lawton states he had a reasonable expectation of privacy in the motel room as
he had been staying there with his girlfriend, Jody Riddle, for five days. Lawton
asserts the search was conducted without a warrant and none of the exceptions
to the warrant requirement apply.
Lawton admits in his brief that it is unclear from this record where he was
arrested—inside or outside the hotel room—and when he was arrested—before
or after this search. What is also unclear to this court is whether there was in fact
a search. The minutes of testimony merely say Detective Elonich “noticed” tools
and numerous items “while looking through motel room #23.” This could be
interpreted to mean that the tools and items were in plain view while Detective
Elonich was inside the room to investigate who possessed the stolen vehicle in
the parking lot.
The testimony of Detective Elonich at trial does not answer or clarify these
factual questions. Detective Elonich admitted to taking pictures of the room
which was “quite full of numerous items,” but he stated he took the pictures just
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to document the room and did not search through anything, “didn’t look at serial
numbers, didn’t open purses. Just took photos.” Detective Elonich identified the
pictures he took that day, which were admitted into evidence without objection.
This challenged paragraph in the minutes of testimony mentions that
some of the victim’s stolen tools were found in the motel room. However, at trial,
Detective Elonich testified he showed the victim the pictures taken from the
room, and the victim identified certain items as belonging to him. The items
identified were retrieved from the motel storage area after they were identified by
the victim from the pictures taken, and the items were given back to the victim.
The police did not “seize” the evidence at the time of the challenged search.
The same paragraph in the minutes of testimony also mentions that the
title to the stolen vehicle was found in the motel room. However, elsewhere in
the minutes of testimony it states the title was found by the motel manager while
he was cleaning the room after the police and Lawton had left. In addition, at trial
Officer Landon testified he received a call from the motel manager after they had
left the scene asking him to return to the motel because the manager had found
items in the room he wanted Officer Landon to see. Included in those items the
manager gave to Officer Landon was the title to the stolen Chevy pickup. Thus,
it appears the title was not in fact “noticed” by Detective Elonich as Lawton would
have us believe from the wording of the paragraph in the minutes of testimony
but discovered by the manager of the motel while cleaning the room after the
officers had left. It was the manager who turned over the title to Officer Landon.
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What is also unclear from this record is what evidence obtained from this
alleged search by Detective Elonich was used against Lawton at trial. Lawton
only claims in his brief that “police seized items that were eventually used in trial
against him” and “further charges were brought following the discovery of the
items.” He never alleges what items in particular were illegally seized and used
against him at trial. He mentions that the photographs taken by the officers were
prejudicial to him because they showed “items that were stolen from the truck
and a set of brass knuckles with a spike on one end.”
While a defendant is certainly able, but not required, to raise an
ineffective-assistance-of-counsel claim on direct appeal, most of the time, the
record on direct appeal is insufficient to decide whether counsel breached an
essential duty and whether prejudice results. State v. Johnson, 784 N.W.2d 192,
198 (Iowa 2010). Where the record is inadequate to address the claim, we
preserve the claim for possible postconviction-relief proceedings where a fuller
record can be developed. Id. Here, the record is clearly inadequate to address
Lawton’s claim. We are unable to determine whether counsel had a duty to file a
motion to suppress based on the police officers’ actions on November 1, 2012,
nor can we determine whether Lawton suffered any prejudice as a result of the
lack of a motion to suppress. We therefore preserve this claim for possible
postconviction-relief proceedings.
IV. Admission of Phone Conversation.
Next, Lawton claims the court should not have admitted the recording of
the phone call made from the jail to Jody Riddle. He claims because the jail
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administrator could not identify Lawton as the one making the call, there was “no
showing that the recording was accurate or trustworthy as a telephone call made
by [Lawton] at the time when the recording was admitted.” He claims, had the
court not admitted the phone call, he would not have taken the stand to testify in
his own defense. Lawton asserts he felt the need to address the contents of the
conversation so he testified.
Stuart Delacastro, the administrator of the county jail, testified the phone
system at the jail records the phone calls as they are made. The inmates are
given PINs to use when making a call or the jail can sell phone cards at a
reduced cost to inmates. The system can then be searched by an inmate’s
name, the PIN used, or the phone card used. Delacastro stated he was asked to
download the phone call in question and identified the CD and the report
generated by the system. After the State offered the CD and report into
evidence, Lawton’s attorney requested to voir dire the witness.
[Defense Counsel]. Sir, is there any way you know exactly
who made that phone call? A. Only by the method I described
earlier in searching by name or phone number.
[Defense Counsel]. Okay. In this particular case, do you
know that Alan Lawton made that phone call? A. I don’t know that,
sir.
[Defense Counsel]: I would object to it then, Your Honor?
THE COURT: Overruled.
[Defense Counsel]: It would not be relevant to this case.
THE COURT: Overruled.
The court confirmed the CD and report were admitted into evidence at that time.
The recording was not played for the jury until after Jody Riddle testified. Jody
confirmed that Lawton called her from the county jail on March 3, 2013, the date
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the recording was made. When the State asked to play the recording for the jury,
Lawton’s counsel objected again:
[Defense Counsel]: That’s fine, Your Honor, but I—at this
time, I move to—I am objecting to it on the basis of it is impeaching
their own witness. She was here to testify. They could have asked
her any questions. They chose not to. It’s hearsay, and we don’t
think it should be admitted, Your Honor.
THE COURT: Clearly overruled. But I just—I am seriously
considering revisiting the ruling I made earlier with respect to
redacting the contents of the—but let’s proceed now. We will
discuss it before the State rests.
No further discussion regarding the recording is contained in the record.2
The State claims on appeal Lawton failed to preserve error on this claim
because his objection at trial was to relevance, not to the foundation of the
exhibit. See State v. Mulvany, 603 N.W.2d 630, 632 (Iowa Ct. App. 1999) (“[A]
defendant may not announce an objection at trial and on appeal rely on a
different objection to challenge an adverse ruling.”). In addition, even if defense
counsel’s objection could be interpreted as an attack on the foundation laid for
the recording, the State argues Lawton failed to articulate at trial what aspect of
the foundation was lacking as required by the rules. See State v. Entsminger,
160 N.W.2d 480, 482–83 (Iowa 1968) (“[R]eversible error may not be predicated
upon this general objection that no proper foundation had been laid for admission
of these exhibits. A party objecting to the offer of evidence for this reason must
2
From the statement of the court, we can deduce that an off-the-record discussion
regarding the recording occurred either sometime prior to or during the trial where
certain parts were redacted from the recording. However, without further explanation in
the record, we are unable to determine what ruling was made by the court and what
objections to the recording may have been made by defense counsel.
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point out in what particular or particulars the foundation is deficient so the
adversary may have an opportunity to remedy the alleged defect, if possible.”).
“The preservation of error doctrine is grounded in the idea that a specific
objection to the admission of evidence be made known, and the trial court be
given an opportunity to pass upon the objection and correct any error.” State v.
Brown, 656 N.W.2d 355, 361 (Iowa 2003).
The general rule is that unless the reasons for an objection are
obvious one attempting to exclude evidence whether the attempted
exclusion is by objection or motion has the duty to indicate the
specific grounds to the court so as to alert the judge to the question
raised and enable opposing counsel to take proper corrective
measures to remedy the defect, if possible.
State v. Nimmo, 247 N.W.2d 228, 231 (Iowa 1976) (internal quotation marks and
citations omitted). The objecting party must “lodge specific objections so the trial
court is not left to speculate whether the evidence is in fact subject to some
infirmity that the objection does not identify.” Mulvany, 603 N.W.2d at 632. The
court considers a party to have abandoned “every ground of exception that is not
particularly specified.” Id. “Fairness and considerations of judicial economy
dictate that we not consider a contention on appeal which the trial court never
had the opportunity to consider.” Id.Our court has previously recognized that our case law is unclear as to
when a simple relevancy objection will preserve a more specific argument on
appeal. See Mulvany, 603 N.W.2d at 632 (“Prior case law does not clearly
delineate when a simple relevancy objection is sufficient to preserve a more
specific argument on appellate review.”). When the recording was offered,
defense counsel objected that the recording “would not be relevant to this case”
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after questioning Delacastro about his knowledge of whether Lawton himself
made the phone call. No further explanation of the objection was made on the
record before the court overruled the objection. Because the “objection was
simplistically generic and immediately overruled, the prosecution was unable to
make a record to support the relevancy of the evidence.” Id. at 633. Specifically,
in this case the prosecution was not offered an opportunity prior to the exhibit’s
admission to present proof Lawton was the person who called Riddle. The
prosecution could have easily provided the necessary proof, if the court had
required, as Riddle testified later that she did receive a call from Lawton from the
jail on the date the recording was made. In addition, we note the recording
identifies the caller as “Alan,” it is clear the other speaker is Riddle, and they
discuss the facts of the case along with Riddle’s proposed testimony.
Given the limited record made on counsel’s objection to the admission of
the recording, we conclude counsel failed to preserve error on his claim that the
State failed to prove the recording was “accurate and trustworthy.” The
objections of hearsay and improper impeachment were made after the court
admitted the exhibit and therefore were too late to preserve error on those
grounds. We find no abuse of the district court’s discretion in admitting the
recording.
V. Sentencing.
Finally, Lawton asserts the district court abused its discretion during
sentencing when it failed to state on the record the reasons for the sentence
imposed. A court must state on the record its reasons for selecting a particular
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sentence. See State v. Hennings, 791 N.W.2d 828, 838 (Iowa 2010) (citing Iowa
Rule of Criminal Procedure 2.23(3)(d)). A statement is sufficient even if it is
“terse and succinct” so long as we can review the exercise of the trial court’s
discretion. Id.At sentencing, the district court, after hearing arguments from both
counsel and asking Lawton if there was anything he wished to say, made the
following statement on the record:
THE COURT: All right. It will be the judgment and sentence
of the court that in the theft charge in case number FECR048594
that the Defendant be sentenced to a term not to exceed 15 years
in the custody of the Director of the Department of Correctional
Services. The IMCC at Oakdale is hereby designated as the
reception center.
With respect to the probation in case number FECR047367,
the Defendant’s probation in that case is hereby revoked and the
five-year sentence previously suspended is reinstated and the
Court will order that sentence be served concurrently. And the
reason for that, a, primarily is I don’t think that it really makes a bit
of difference. I think effectively the enhancement added 10 years,
to add another five years to what we’ve already done, I think
especially with a mandatory three-year sentence that that requires I
don’t think it’s going to make any difference whatsoever.
We also look to the sentencing order to see if sufficient reasons for the sentence
imposed are supplied. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).
The sentencing order in this case does not provide any reasons for the sentence
imposed. The State concedes the district court did not supply the necessary
reasons for imposing the sentence and asks that the sentence be vacated and
the case remanded for resentencing. Upon our review of the record, we agree.
We vacate the sentence imposed and remand this case for resentencing.
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VI. Conclusion.
Because we find the record on direct appeal inadequate to address
Lawton’s ineffective-assistance claim, we preserve that claim for possible
postconviction-relief proceedings. We find Lawton failed to preserve error on his
claim the court erred in admitting the recording of the phone conversation.
Finally, we agree the district court abused its discretion in failing to articulate on
the record the reasons for the sentence imposed, so we vacate Lawton’s
sentence and remand for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED
FOR RESENTENCING.