State Of Iowa Vs. David Michael Boggs

IN THE SUPREME COURT OF IOWA
No. 42 / 05-1625
Filed November 16, 2007
STATE OF IOWA,
Appellee,
vs.
DAVID MICHAEL BOGGS,
Appellant.
Appeal from the Iowa District Court for Cass County, James M.
Richardson, Judge.
Defendant appeals conviction for possession of methamphetamine
with intent to deliver. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant
Attorney General, and Daniel Feistner, County Attorney, for appellee.
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CADY, Justice.
In this appeal, we must interpret a statutory provision relating to
double jeopardy to determine if a defendant can be subjected to a retrial for
a greater offense after reversal of a conviction for a lesser offense, when the
greater offense was originally charged but dismissed during the first
prosecution as part of an agreement between the parties in which the
defendant waived a jury trial and agreed to a trial on the minutes of
testimony on the lesser offense. On our review of this issue, as well as the
other claims raised on appeal, we affirm the judgment and sentence of the
district court.
I. Background Facts and Proceedings.
The relevant facts of this case date back to January 10, 2003, when
law enforcement officers executed a search warrant at the residence of
David Boggs in Atlantic, Iowa. The officers suspected Boggs was engaged in
drug dealing and obtained a search warrant after gathering incriminating
evidence from the trash left outside the residence. After entering the
residence, officers discovered Boggs seated at a desk in a room of the
basement. He was startled by their unsuspected entry into the room. A
large quantity of methamphetamine could be observed on the desk, and
Boggs was dividing it into smaller quantities with the aid of his driver’s
license. There was also a chunk of methamphetamine in a plastic bag
located on the desk. The quantity of methamphetamine in the bag was
consistent with an amount frequently sold by drug dealers, known as an
“eight ball.” Officers also observed numerous accoutrements of drug use
and dealing, including a razor blade, burnt foil, rolling papers, duct-taped
pouch, and digital scale. There was also a bong and a “snort tube” in the
area. Boggs had thirty-nine, twenty-dollar bills in his wallet. Surveillance
cameras were located outside the house that allowed the occupants to
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monitor activities outside the house on a television screen. A stash of
marijuana and another bong were located in a nearby bedroom that Boggs
shared with a woman.
One chunk of methamphetamine found on the desk weighed 58.66
grams. The estimated street value of the methamphetamine was in excess
of $6000. The “eight ball” found in the plastic bag weighed 3.25 grams.
The stashes of marijuana in the bedroom weighed 7.30 grams, 2.52 grams,
and 1.02 grams.
Boggs was arrested and transported to jail. He was given his Miranda
rights and signed a written waiver of those rights. During the course of a
subsequent interview by an officer, Boggs acknowledged ownership of the
methamphetamine and marijuana found in the basement. He said he
obtained the methamphetamine from a person in Council Bluffs. There were
also discussions between Boggs and the officer during the interview about a
possible plea agreement in exchange for helpful information, and the officer
spoke to the county attorney on the telephone. However, a plea bargain
never materialized.
Boggs was later charged by a two-count trial information. Count I
charged Boggs with possession of marijuana in violation of Iowa Code
section 124.401(5) (2001). Count II charged Boggs with possession of
methamphetamine (more than five grams) with intent to deliver and within
1000 feet of a public park, a class “B” felony, enhanced as a second or
subsequent offender in violation of sections 124.401(1)(b)(7), 124.401A, and
124.411.
Boggs eventually accepted an offer by the State to dismiss the charge
of possession of marijuana and reduce Count II of the trial information to
charge possession of methamphetamine (less than ten grams) with intent to
deliver, a class “C” felony, enhanced as a second or subsequent offender. In
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return, Boggs agreed to waive a jury trial and be tried to the court on the
minutes of testimony. The parties contemplated this procedure would
preserve Boggs’ right to appeal three claims of error: a ruling by the district
court on a motion to suppress, rulings by the trial court on his request for
self-representation, and the sufficiency of evidence to support a finding of
guilt.
At the trial on the minutes of testimony, the district court briefly
questioned Boggs about the agreement before finding him guilty of the
charge in the amended trial information. Boggs was then sentenced to a
term of incarceration not to exceed thirty years and was fined in the amount
of $1000. He filed a timely notice of appeal.
During the pendency of the appeal, the State moved for summary
reversal of the judgment and sentence. We granted the motion and
remanded the case for a new trial, based on a finding that the record in the
case revealed the district court failed to make a valid inquiry into Boggs’
request to waive counsel and represent himself.
On remand, the State sought to pursue the original class “B” felony
charge of possession with intent to deliver methamphetamine. Boggs filed a
pretrial motion and claimed a new trial on the original charge under Count
II would violate the double jeopardy provisions of Iowa Code section 811.3(3)
because the crime of conviction from the first trial was a lesser included
offense of the original class “B” possession of methamphetamine with intent
to deliver charge. The district court overruled Boggs’ motion, and the case
proceeded to a jury trial on the original charges.
The officers who executed the search warrant and interviewed Boggs
after his arrest testified at trial. This testimony revealed Boggs was
discovered cutting methamphetamine into saleable quantities in a room in
his residence set up for that purpose. It also revealed Boggs admitted
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ownership of the drugs after his arrest. Defense counsel objected to the
admissions, claiming they were inadmissible plea negotiations. To support
the objection, defense counsel conducted a voir dire examination of the
officer who interviewed Boggs, but the questioning failed to elicit any facts
to show the admissions were made in conjunction with the plea
discussions. The State presented other evidence of guilt and later
submitted evidence of Boggs’ prior drug convictions to support the repeat-
offender element of the charge.
Following the submission of the evidence at the trial, the district court
instructed the jury. One instruction informed the jury how to consider
evidence of Boggs’ character and reputation for drug use. This instruction
told the jury they could consider Boggs’ “good character or reputation” in
determining the probability or lack of probability of his guilt of the crime.
Defense counsel failed to object to the instruction, even though Boggs never
introduced any evidence of his good character.
During closing arguments, the prosecutor repeatedly mentioned the
charge of possession of methamphetamine with intent to deliver in the
context of the “community” and the distribution of drugs into the
“community.” In response to defense testimony at trial that contradicted
some of the testimony of the officers who had testified at trial, the
prosecutor also told the jury the officers had no reason to lie, and they told
the truth.
The jury found Boggs guilty of possession of marijuana and
possession of methamphetamine with intent to deliver, as charged in the
original indictment.
Prior to sentencing, trial counsel for Boggs filed a motion to withdraw.
This occurred after Boggs filed a statement with the district court listing his
claims of ineffective assistance of counsel. The district court questioned
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Boggs and his attorney before ruling on the motion. Boggs told the court it
did not “really matter” to him if trial counsel continued to represent him.
However, trial counsel expressed his belief that he was no longer able to
zealously represent Boggs or speak on his behalf at sentencing due to his
complaints of ineffective assistance of counsel. The district court overruled
the motion, and the case proceeded to sentencing. The district court
sentenced Boggs to an indeterminate term of imprisonment not to exceed
seventy-five years, with a mandatory one-third minimum period of
confinement and a fine of $15,000. Prior to pronouncing sentence, the
court gave Boggs and his attorney an opportunity to speak. Boggs
submitted a written statement in mitigation of punishment, as well as a
letter of support and other written documentation of mitigation. Counsel
for Boggs only reiterated his belief that it was “not appropriate” to address
the court.
On appeal, Boggs raises four grounds of error. First, he claims it was
error to be reprosecuted on the original charge following the reversal of his
original conviction. Second, he claims the district court erred in admitting
his incriminating statements made to police. Third, he claims the district
court erred by failing to appoint substitute counsel at the sentencing
hearing. Finally, he claims trial court provided ineffective assistance during
the trial.
II. Standard of Review.
The district court’s interpretation of a statute must be reviewed for
errors at law. Iowa R. App. P. 6.4; State v. Francois, 577 N.W.2d 417, 417
(Iowa 1998) (“We review the trial court’s interpretation of statutes for errors
of law.”). To the extent Boggs raises constitutional questions, our review is
de novo. Taylor v. State, 351 N.W.2d 532, 535 (Iowa 1985). We review
claims of ineffective assistance of counsel de novo. State v. Tejeda, 677
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N.W.2d 744, 753 (Iowa 2004). We normally review claims of error in the
admission of evidence for abuse of discretion. State v. Rodriguez, 636
N.W.2d 234, 239 (Iowa 2001). However, when admission of evidence turns
on interpretation of a statute, we review for errors of law. State v. Kjos, 524
N.W.2d 195, 196 (Iowa 1994).
III. Double Jeopardy.
The right to be free from double jeopardy is rooted deeply in our
common law and assumes a familiar and prominent position in our state
and federal constitutions. See generally Jay A. Sigler, Double Jeopardy 1–
37 (1969) (tracing history of the double jeopardy doctrine); Benton v.
Maryland, 395 U.S. 784, 795–96, 89 S. Ct. 2056, 2063, 23 L. Ed. 2d 707,
716 (1969) (noting the guarantee against double jeopardy “can be traced to
Greek and Roman times, and it became established in the common law of
England long before this Nation’s independence”). The Fifth Amendment of
the United States Constitution declares no person may be “subject for the
same offense to be twice put in jeopardy of life or limb.” Similarly, the Iowa
Constitution provides a person may not be tried for the same offense “after
acquittal.” Art. I, § 12. Generally, the double jeopardy principle protects
persons “from prosecution for the same offense after conviction or acquittal,
and against multiple punishments for the same offense.” State v. Burgess,
639 N.W.2d 564, 568 (Iowa 2001). It “serves ‘a constitutional policy of
finality for the defendant’s benefit.’ ” Brown v. Ohio, 432 U.S. 161, 165, 97
S. Ct. 2221, 2225, 53 L. Ed. 2d 187, 194 (1977) (quoting United States v.
Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 554, 27 L. Ed. 2d 543, 553 (1971)).
While the principles of double jeopardy are etched into our federal
and state constitutions, our legislature has chosen to separately define
double jeopardy protections and exceptions by statute. See Iowa Code ch.
816 (entitled “Double Jeopardy.”). States are not only permitted to enact
8
statutes that are consistent with constitutional principles, they may also
define greater rights than provided by the federal and state constitution.
See Peel v. Burk, 197 N.W.2d 617, 619 (Iowa 1972) (“The legislature may
enact any law providing it is not prohibited by some provision of the state or
federal constitutions.”). Thus, the question we face in this case is whether
Iowa has defined additional rights under its statute.
Generally, Iowa’s double jeopardy statute establishes two rules that
bar retrial after a conviction or acquittal, followed by three exceptions or
limitations to the bar to retrial, and concludes with a procedural rule
governing a plea of former conviction or acquittal. See Iowa Code §§ 816.1–
.4. The first statutory rule bars a second prosecution for the same offense
following a conviction or acquittal. Id. § 816.1. The second rule bars a
second indictment for the same offense previously charged or any lesser
degree of the offense, or for an included offense, when the defendant is
convicted or acquitted of an indictment or an offense consisting of different
degrees. Id. § 816.2. The specific section of the statute at issue in this case
is the third exception. It provides:
A prosecution is not barred . . .
3. If subsequent proceedings resulted in the
invalidation, setting aside, reversal or vacating of the
conviction, unless the defendant was adjudged not guilty; but
in no case where a conviction for a lesser included crime has
been invalidated, set aside, reversed or vacated shall the
defendant be subsequently prosecuted for a higher degree of
the crime for which the defendant was originally convicted.
Id. § 816.3.
Thus, the exception has two components that govern retrial when a
conviction is set aside or otherwise reversed. First, the exception declares a
defendant may be prosecuted after a conviction has been invalidated, set
aside, reversed, or vacated unless the defendant was adjudicated not guilty.
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Second, the exception is subject to a qualification that in no event may a
defendant be “prosecuted for a higher degree of the crime for which the
defendant was originally convicted” when “a conviction for a lesser included
crime has been invalidated, set aside, reversed or vacated.”
The exception comports with the long-standing, judicially recognized
principle first announced by the United States Supreme Court in Ball v.
United States, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896), that
double jeopardy under the Constitution does not normally prohibit the
retrial of a defendant whose conviction has been set aside or reversed on
appeal because of an error in the trial proceedings. Lockhart v. Nelson, 488
U.S. 33, 38, 109 S. Ct. 285, 289, 102 L. Ed. 2d 265, 272 (1988); State v.
Swartz, 541 N.W.2d 533, 537 (Iowa Ct. App. 1995). The rationale for this
rule ultimately rests on “the premise that the original conviction has . . .
been wholly nullified and the slate wiped clean.” North Carolina v. Pearce,
395 U.S. 711, 721, 89 S. Ct. 2072, 2078, 23 L. Ed. 2d 656, 667 (1969).
Viewed another way, the jeopardy attached to the original conviction
continues through the retrial, and consequently, there is no second
jeopardy to attach on retrial. Green v. United States, 355 U.S. 184, 189, 78
S. Ct. 221, 224, 2 L. Ed. 2d 199 (1957). In addition to these
constitutionally based theories that permit retrial, the exception is also
justified by the important public policy of the “sound administration of
justice.” United States v. Tateo, 377 U.S. 463, 466, 84 S. Ct. 1587, 1589, 12
L. Ed. 2d 448, 451 (1964). In Tateo, the Supreme Court explained this
important public policy behind the Ball principle as follows:
Corresponding to the right of an accused to be given a fair trial
is the societal interest in punishing one whose guilt is clear
after he has obtained such a trial. It would be a high price
indeed for society to pay were every accused granted immunity
from punishment because of any defect sufficient to constitute
reversible error in the proceedings leading to conviction. From
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the standpoint of a defendant, it is at least doubtful that
appellate courts would be as zealous as they now are in
protecting against the effects of improprieties at the trial or
pretrial stage if they knew that reversal of a conviction would
put the accused irrevocably beyond the reach of further
prosecution. In reality, therefore, the practice of retrial serves
defendants’ rights as well as society’s interest.
Id.
Thus, based on these reasons, it has been well-settled law, at least
since 1896, that the double jeopardy bar to retrial following a conviction
does not normally apply to a reversal of a conviction on appeal. Pearce, 395
U.S. at 719–20, 89 S. Ct. at 2077–78, 23 L. Ed. 2d at 666. Of course, this
principle, as with Iowa’s statutory exception at issue in this case, does not
apply when the conviction was invalidated or reversed on grounds of
insufficient evidence because such a ground for reversal is equivalent to an
adjudication of not guilty. United States v. DeFrancesco, 449 U.S. 117, 131,
101 S. Ct. 426, 434, 66 L. Ed. 2d 328, 341 (1980); Swartz, 541 N.W.2d at
537; see also Iowa Code § 816.3(3) (retrial following reversal of conviction on
appeal not barred by double jeopardy “unless the defendant was adjudged
not guilty”). Thus, the statutory exception does not define any greater
rights than those currently derived from our federal and state constitutions.
Instead, it reiterates existing constitutionally based rules.
The qualification to the exception enunciated in section 816.3(3) also
appears to be aligned with constitutional principles of double jeopardy.
While the Ball principle or exception has dominated the double jeopardy
landscape for over a century, it was crafted in the context of a retrial of the
same charge as in the prior conviction. In that context, both the
Constitution and public policy permit retrial of a defendant whose first
conviction was set aside or reversed. However, in Green v. United States,
355 U.S. 184, 189, 78 S. Ct. 221, 224, 2 L. Ed. 2d 199, 205 (1957), the
Supreme Court qualified the Ball principle. It held Ball did not apply to a
11
retrial of a greater crime following the conviction of a crime in the first trial,
which was set aside or reversed. Green, 355 U.S. at 189, 78 S. Ct. at 224, 2
L. Ed. 2d at 205.
In Green, the defendant was indicted and tried on separate counts of
arson and murder in the first degree. Id. at 185, 78 S. Ct. at 222, 2
L. Ed. 2d at 203. The first-degree murder count included the lesser offense
of second-degree murder. Id. at 185–86, 78 S. Ct. at 222–23, 2 L. Ed. 2d at
203. The jury found Green guilty of arson and second-degree murder. Id.
at 185, 78 S. Ct. at 223, 2 L. Ed. 2d at 203. The second-degree murder
conviction was later reversed on appeal. Id. Green was tried again, over his
objection, on the first-degree murder count, and the second trial resulted in
a conviction of murder in the first degree. Id. The Court distinguished the
case from the Ball situation by emphasizing that Green was not retried “for
second degree murder, but for first degree murder, even though the original
jury had refused to find him guilty on that charge.” Id. at 190, 78 S. Ct. at
225, 2 L. Ed. 2d at 205. Double jeopardy was violated because the jury’s
refusal to convict Green of first-degree murder in the first trial was an
“implicit acquittal” of the charge. Id. Green was placed in direct jeopardy of
a conviction for first-degree murder in the first trial, and the jury refused to
convict him. Id. This qualification to the Ball principle recognized in Green
has also been long recognized in Iowa. State v. Smith, 217 Iowa 825, 826,
253 N.W. 130, 131 (1934).
This background reveals two important conclusions. First, Iowa’s
statutory exception to the rule barring retrials echoes the long-standing
judicially crafted exception. Second, the judicially crafted double jeopardy
exception has been qualified in those cases involving the retrial of a greater
offense, as with the statutory exception. Importantly, the judicial
qualification of the exception applies when the greater offense was
12
submitted to the trier of fact at the first trial. Yet, Boggs claims the Iowa
statute contains no such qualification. Thus, Boggs claims the Iowa statute
provides greater protection by also prohibiting prosecution of a greater
offense when the greater offense was charged, but dismissed prior to trial so
that only the lesser included offense was submitted to the fact finder for
adjudication. Thus, we must ultimately decide if our legislature has defined
rights or protections greater than recognized under the Federal and state
Due Process Clauses.
We acknowledge lesser included crimes can be identified and
determined independent of any facts of a particular case. See State v.
Finnel, 515 N.W.2d 41, 43 (Iowa 1994) (identifying a lesser included offense
by “putting the offenses side by side and comparing the elements”). Thus, it
would be possible for the legislature to construct a rule to bar the retrial of
a greater offense of the crime of conviction, even when the greater crime was
not expressly or impliedly adjudicated in the first trial. In deciding whether
section 816.3 contains such a rule, we first return to the language of the
statute. See State v. Bonstetter, 637 N.W.2d 161, 166 (Iowa 2001)
(determining the intent of the legislature by considering the language of the
statute).
We observe the statutory rule only applies to a “conviction of a lesser
included offense.” While a greater and lesser included offense can be
determined in the abstract, a “conviction for a lesser included offense”
normally signifies the fact finder was given the option to also return a
conviction for the greater crime. Otherwise, it would be unnecessary to
designate the conviction as “a lesser included offense.” Instead, the
conviction would simply be for the offense charged. Generally, we interpret
statutes consistent with their normal meaning, and we refrain from an
interpretation that is strained. Gen. Elec. Co. v. Iowa State Bd. of Tax
13
Review, 702 N.W.2d 485, 489 (Iowa 2005). Moreover, it is clear the
legislature could have expressed a clear intent to bar the retrial of an
unprosecuted higher offense by simply not referring to the crime of
conviction as one for a lesser included offense. See Hines v. Ill. Cent. Gulf
R.R., 330 N.W.2d 284, 289 (Iowa 1983) (assuming “the legislature was
familiar with the existing state of the law” and “if the legislature sought to
remedy a specific evil it would have clearly so indicated”). In other words,
the reference to a “lesser included” crime in the statute implies the higher
crime excluded from reprosecution under the statute was submitted to the
fact finder and included in the deliberations that led to the “conviction for a
lesser included crime.” An intent to exclude unprosecuted greater crimes
from reprosecution would actually be expressed by excluding any reference
to the crime of conviction as “a lesser included crime.”
We next turn to the objectives and purpose of section 816.3(3). In
interpreting statutes, we search for a reasonable interpretation that best
achieves the purpose of the statute. State v. Gonzalez, 718 N.W.2d 304, 308
(Iowa 2006). As previously noted, the driving public policy that permits
retrial after a conviction has been set aside or reversed is derived from the
proper administration of justice. A retrial after a conviction has been set
aside serves both the rights of a defendant and the interest of society.
Furthermore, the qualification to the Ball exception recognized in Green is
entirely consistent with this purpose. If a defendant is placed in jeopardy of
the greater crime in the first trial, so that the fact finder implicitly acquits
the defendant of the greater crime by convicting the defendant of a lesser
crime, society no longer has any interest in punishing the defendant for the
crime of which he or she has been acquitted. On the other hand, if the trier
of fact never weighed a defendant’s guilt or innocence on the greater crime
at the first trial, the competing interests in the administration of justice
14
recognized in Ball as a justification for a retrial continue to exist. Yet,
under the interpretation of section 816.3(3) advocated by Boggs, no retrial
would be permitted. Instead, a defendant would not only be immune from a
retrial, but would be permitted to rescind the guilty plea while retaining its
benefits. See Tateo, 377 U.S. at 466, 84 S. Ct. at 1589, 12 L. Ed. 2d at 451.
These considerations have led a vast majority of the courts from other
jurisdictions to conclude that a defendant who succeeds in setting aside a
conviction may normally be retried on all charges in the original indictment
that were not expressly or implicitly resolved by the finder of fact at the first
trial. See Sweetwine v. State, 421 A.2d 60, 64 n.3 (Md. 1980) (citing state
and federal cases). See generally Michael A. DiSabatino, Retrial on Greater
Offense Following Reversal of Plea-Based Conviction of Lesser Offense, 14
A.L.R. 4th 970 (1982). Only a few jurisdictions have taken the position
urged by Boggs, and some of these jurisdictions later changed course and
adopted the majority rule. See Hawk v. Burkemer, 610 F.2d 445, 446-48
(6th Cir. 1979) (overruling prior cases and adopting majority rule); see also
People v. Dugan, 305 N.E.2d 308, 308–09 (Ill. App. Ct. 1973), abrogated by
People v. McCutcheon, 368 N.E.2d 886, 887–89 (Ill. 1977) (plea of guilty to
lesser included offense was not acquittal of greater offense). The rationale
for the minority rule was largely predicated on the fear that the majority
rule can unfairly discourage the exercise of the right to appeal by defendant.
See People v. Thornton, 269 N.W.2d 192, 193 (Mich. 1978). Only one state
apparently followed the minority rule at the time our legislature enacted
section 816.3(3). See Sweetwine, 421 A.2d at 65 n.4. We consider the state
of the law when a statute was enacted. Doe v. Ray, 251 N.W.2d 496, 501
(Iowa 1977). We also assume our legislature was familiar with the existing
state of the law when it enacted section 816.3(3) in 1979. Hines, 330
N.W.2d at 289.
15
In construing statutes, it is also important to read the text of the
statute in light of its overall context. H & Z Vending v. Iowa Dep’t of
Inspections & Appeals, 511 N.W.2d 397, 398 (Iowa 1994). Chapter 816
clearly governs double jeopardy. Additionally, we can derive legislative
intent not only from the subject matter of statutes, but also the
consequences of the competing interpretations. State v. Dohlman, 725
N.W.2d 428, 431 (Iowa 2006). As we have previously indicated, double
jeopardy principles do not cast a protective net over retrials on a greater
charge not submitted to the trier of fact in the first trial. On the other
hand, situations can arise when it would be unfair to permit the
prosecution of a defendant for a greater crime following reversal of a
conviction for a lesser crime, even when the greater crime was not
submitted for adjudication in the first prosecution. Thus, the interpretation
sought by Boggs does have some appeal. However, these circumstances
normally concern the situation in which the prosecutor and defendant have
entered into a plea bargain (involving a reduction of the charge to a lesser
included offense in exchange for an adjudication of guilt) prior to the
original conviction, and the defendant then seeks to enforce the plea
bargain on retrial following a reversal of the conviction on grounds other
than insufficiency of evidence, while the prosecutor seeks to prosecute the
defendant on the original greater offense. This situation has little to do with
double jeopardy policy, but relates instead to a due process analysis that
normally involves claims of prosecutorial vindictiveness. See Blackridge v.
Perry, 417 U.S. 21, 25–29, 94 S. Ct. 2098, 2101–03, 40 L. Ed. 2d 628, 632–
35 (1974); Pearce, 395 U.S. at 723–26, 89 S. Ct. at 2080–81, 23 L. Ed. 2d at
668–70; United States v. Moulder, 141 F.3d 568, 571–72 (5th Cir. 1998)
(finding no double jeopardy obstacle when the state seeks to reprosecute the
original charge after defendant successfully challenges a conviction based
16
on a plea bargain on appeal, but a due process claim of vindictiveness
exists). We do not think our legislature would develop a broad rule that
effectively immunizes all defendants from being retried on a crime for which
jeopardy has never attached based on a due process analysis that depends
upon the facts and circumstances of a particular case. See Moulder, 141
F.3d at 572 (considering the context of the entire proceedings in deciding a
claim that reinstatement of more serious charge violated due process).
We are respectful of the power of our legislature to create rights by
statute and are mindful of our limited task to discern the intent of the
legislature when an enactment is disputed. See State v. Dann, 591 N.W.2d
635, 638 (Iowa 1999) (noting the polestar of all statutory construction is to
search for the true intention of the legislature). These fundamental
precepts are especially important to keep in mind in cases like this when
the development of the law has been heavily influenced by judicial decision
making. We emphasize that the exceptions and qualifications to the double
jeopardy rule developed by our courts do not necessarily need to be shared
by our legislature. See State v. Wagner, 596 N.W.2d 83, 87 (Iowa 1999)
(recognizing the goal of statutory interpretation is not to decide what the
supreme court thinks the law should be). Yet, considering our rules of
statutory construction, as applied to the statute, we are convinced the
legislature did not intend, by enacting the qualification to the section
816.3(3) exception, to immunize all defendants from being retried following
a reversal of a conviction on the original, greater charge that was never
submitted to the trier of fact at the original trial. We also observe that at
least one other state court has reached the same conclusion based on
statutory language similar to that in our statute. See State v. Martinez, 905
P.2d 715, 716 (N.M. 1995) (concluding a Code section that prohibits retrial
of a defendant for a “crime or degree of the crime greater than the one of
17
which he was originally convicted” precludes retrial of a greater offense only
after acquittal of that offense). We give weight to the judicial interpretation
of similar statutory language in other jurisdictions. Quaker Oats Co. v.
Cedar Rapids Human Rights Comm’n, 268 N.W.2d 862, 866 (Iowa 1978),
superseded by statute on other grounds as stated in Gray v. Kinseth Corp.,
636 N.W.2d 100, 102 (Iowa 2001).
Under our rules of statutory construction, we conclude the intent of
the legislature under section 816.3(3) was only to preclude retrial on the
greater crime when the greater crime was submitted for adjudication with
the lesser included offense, consistent with our established double jeopardy
jurisprudence. Since Boggs makes no due process claim in this case, we do
not address the issue further. Section 816.3(3) did not prohibit prosecution
for the original crime.
IV. Plea Negotiations.
Boggs claims the trial court erred by admitting into evidence at trial
his incriminating statements about the source and ownership of the drugs
made to the officer following his arrest. He claims the statements were
inadmissible plea discussions under Iowa Rule of Criminal Procedure
2.10(5). This rule, in relevant part, provides: “If a plea discussion does not
result in a plea of guilty, . . . the plea discussion . . . shall not be admissible
in any criminal or civil action or administrative proceeding.”
Rule 2.10(5) makes certain plea discussions inadmissible at trial
because they are privileged. See State v. Taylor, 336 N.W.2d 721, 726 (Iowa
1983). However, the privilege only extends to actual plea discussions. Id.
It does not extend to all conversations between law enforcement and a
defendant hoping to achieve some leniency by agreeing to talk to law
enforcement. See People v. Jones, 734 N.E.2d 207, 212 (Ill. App. Ct. 2000),
rev’d on other grounds, 757 N.E.2d 464 (Ill. 2001). Thus, a distinction exists
18
between “those discussions in which the accused was merely making an
admission and those discussions in which the accused was seeking to
negotiate a plea agreement.” United States v. Robertson, 582 F.2d 1356,
1367 (5th Cir. 1978).
In this case, the State offered the incriminating statements into
evidence at trial through the testimony of the officer who interviewed Boggs
following his arrest. Boggs objected to the admission of these statements
and was permitted by the district court to voir dire the witness for the
purpose of supporting the objection. During the voir dire examination,
Boggs established that the law enforcement officer conducted the interview
in an effort to obtain an admission of guilt and to determine if a plea
agreement could be reached, although there was no evidence elicited to
show Boggs was aware of these purposes. Boggs also established during
the voir dire examination that the interview included plea discussions and
that the interviewer contacted the county attorney by telephone during the
interview.1
Importantly, Boggs failed to produce any evidence to reveal that point
during the interview when plea discussions first occurred and that point
when the incriminating statements were made by Boggs to the officer. Plea
discussions that take place during the course of a general police interview of
a suspect do not transform the entire interview into a plea discussion so
1Various rules of evidence also address the relevancy of plea negotiations and other
such postoffense activity. See B. John Burns, Iowa Practice, Criminal Procedure § 25:2(e)
(2007) [hereinafter Burns]. In particular, rule of evidence 5.410 makes certain pleas, plea
discussions, and related statements inadmissible, including “any statement made in the
course of plea discussions with an attorney for the prosecuting authority which do not
result in a plea of guilty or which result in a plea of guilty later withdrawn.” Iowa R. Evid.
5.410(4). This rule correlates with Iowa Rule of Criminal Procedure 2.10(5), but rule of
evidence 5.410 is specifically limited to plea negotiations with a prosecuting attorney. Rule
2.10(5) applies to “all discussions relating to resolution of the case including those between
the defense and law enforcement officers.” Burns, at § 25:2(e). Boggs makes no claim that
rule 5.410(4) applies to this case.
19
that all statements made during the interview become privileged under rule
2.10(5). Instead, the “totality of the circumstances” must be examined to
determine “whether a discussion can properly be characterized as a
privileged plea negotiation.” State v. Hovind, 431 N.W.2d 366, 370 (Iowa
1988). A defendant must exhibit an “actual subjective expectation to
negotiate a plea at the time of the discussion,” and the defendant’s
expectation must be “ ‘reasonable given the totality of the objective
circumstances.’ ” Taylor, 336 N.W.2d at 726 (quoting Robertson, 582 F.2d
at 1366).
While plea discussions took place in this case, there was no evidence
elicited that Boggs had a reasonable expectation to negotiate a plea at the
time he made the incriminating statements pertaining to the source and
ownership of the drugs found in his residence. Boggs’ counsel was given an
opportunity to elicit this evidence and failed to do so. Accordingly, we
conclude the district court did not err in admitting the incriminating
statements. 2
V. Substitute Counsel at Sentencing.
Boggs claims the district court erred by failing to grant the motion to
withdraw filed by his counsel prior to the sentencing. He claims a complete
breakdown of the attorney-client relationship took place that justified
2On appeal, we denied a request by Boggs to supplement the record with a
videotape of the interview between Boggs and the law enforcement officer. A videotape of
the interview would be very helpful in determining whether the incriminating statements by
Boggs were privileged, but the videotape in this case was never introduced into evidence or
otherwise made a part of the trial court record. It is a fundamental principle that our
review of district court rulings is limited to the record made before the district court.
Additionally, Boggs did not raise any claim of ineffective assistance of trial counsel based
on the failure of his trial counsel to make an adequate record of the interview at trial.
Boggs did claim on appeal that his trial counsel was ineffective for failing to file a motion to
suppress the incriminating statements. However, Boggs raised this claim only if we found
he failed to preserve error on his claim by objecting at trial that the incriminating
statements were improperly admitted. Boggs preserved error by making his trial objection,
but failed to establish grounds to support his claim of error.
20
substitution of counsel prior to the sentencing hearing after his attorney
informed the trial court that he was unable to zealously represent him and
speak on his behalf at the time of sentencing. Boggs further claims he was
denied effective assistance of counsel at sentencing when his attorney
actually declined to speak on his behalf after the court denied the motion to
withdraw. Thus, Boggs not only claims the district court erred by denying
the motion to withdraw and failing to appoint substitute counsel, but that
his rights to effective counsel guaranteed under the Sixth Amendment to
the Federal Constitution and article I, section 10 of the Iowa Constitution
were denied when his attorney failed to speak on his behalf at sentencing.
Boggs does not claim the denial of the motion to withdraw and the failure to
appoint substitute counsel implicated any form of waiver of his right of self-
representation or that the court failed to adequately inquire into the need
for substitute counsel. See State v. Martin, 608 N.W.2d 445, 449–50 (Iowa
2000); Tejeda, 677 N.W.2d at 794. Instead, Boggs asserts the record
justified the appointment of substitute counsel.
A defendant has a right to counsel “[a]t all critical stages of the
criminal process.” State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006). This
right extends to sentencing. The grounds to justify the appointment of
substitute counsel include a conflict of interest, irreconcilable conflict, or a
complete breakdown in communication between the defendant and counsel.
Martin, 608 N.W.2d at 449. The defendant must show the grounds to justify
substitute counsel. Id. The court has considerable discretion whether to
grant substitute counsel, and eleventh-hour requests for substitute counsel
are generally disfavored. Tejeda, 677 N.W.2d at 749.
A complete breakdown in communication supports the appointment
of substitute counsel because it deprives counsel of a critical component to
an adequate defense—attorney-client communication. See State v. Barrow,
21
287 F.3d 733, 738 (8th Cir. 2002) (focusing inquiry on the adequacy of
counsel in the adversarial process). Yet, general frustration and
dissatisfaction with defense counsel expressed by a defendant does not
alone render counsel unable to perform as a zealous and effective advocate.
The focus of the inquiry is not on the defendant’s relationship with his or
her attorney, but “the adequacy of counsel in the adversarial process.” Id.
In reality, “a person accused of a crime is often genuinely unhappy with an
appointed counsel who is nevertheless doing a good job.” Id. Thus, not all
criticism lodged by a defendant against defense counsel requires new
counsel. Nevertheless, counsel for Boggs took the position in this case that
the criticism leveled by Boggs rendered him unable to be a zealous advocate
and prevented him from speaking on his behalf at sentencing. Thus, two
questions are presented. The first question is whether counsel’s declaration
of intent to remain silent at sentencing justified the appointment of
substitute counsel. The second question is whether Boggs was denied
effective assistance of counsel when his attorney failed to speak on his
behalf in mitigation of the sentence.
Before considering these questions, we turn to the element of
prejudice. In the context of a claim for ineffective assistance of counsel,
defendant must establish that prejudice resulted from the ineffective
assistance. See State v. Simmons, 714 N.W.2d 264, 276 (Iowa 2006) (stating
prejudice exists when it is reasonably probable the result would have been
different without counsel’s unprofessional error). Similarly, a defendant
must generally establish prejudice when denied substitute counsel unless
the defendant was completely denied counsel or counsel had a conflict of
interest. State v. Lopez, 633 N.W.2d 774, 779 (Iowa 2001). Similar to a
complete denial of counsel, a third exception to the rule of prejudice
governing the denial of substitute counsel is recognized when “ ‘counsel
22
entirely fails to subject the prosecution’s case to meaningful adversarial
testing.’ ”3 Bell v. Cone, 535 U.S. 685, 696, 122 S. Ct. 1843, 1851, 152
L. Ed. 2d 914, 928 (2002) (quoting United States v. Cronic, 466 U.S. 648,
659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984)). Importantly,
this exception recognized in Cronic requires a complete failure by counsel.
Bell, 535 U.S. at 697, 122 S. Ct. at 1851, 152 L. Ed. 2d at 928.
If none of the three exceptions apply in this case, prejudice is required
to be established. Thus, we must decide if Boggs’ claim falls within one of
the three exceptions. Boggs does not claim he was denied counsel or his
counsel had an irreconcilable conflict. Moreover, he does not claim his
counsel failed to represent him at the sentencing hearing as a whole, but
only in failing to address the court on his behalf in mitigation of
punishment. See id. Consequently, the specific failure of counsel to speak
on behalf of Boggs in mitigation of punishment at the sentencing does not
fall within the third exception. See Darden v. Wainwright, 477 U.S. 168,
185–86, 106 S. Ct. 2464, 2473–74, 91 L. Ed. 2d 144, 160–61 (1986)
(holding failure of counsel to offer any mitigation evidence at sentencing did
not constitute ineffective assistance of counsel); Burger v. Kemp, 483 U.S.
776, 788, 107 S. Ct. 3114, 3122, 97 L. Ed. 2d 638, 653 (1987) (same).
Accordingly, Boggs must show he suffered prejudice in his claim that the
trial court erred in failing to appoint substitute counsel at sentencing, as
well as with his claim that he was denied effective assistance of counsel at
sentencing.
The existence of prejudice is evaluated under the same standard as a
claim for ineffective assistance of counsel. See Bell, 535 U.S. at 697–98,
3We have adopted the two exceptions to the prejudice requirement from Williams v.
Nix, 751 F.2d 956, 966 (8th Cir. 1985). See State v. Brooks, 540 N.W.2d 270, 272 (Iowa
1995).
23
104 S. Ct. at 1851–52, 80 L. Ed. 2d at 929. Boggs has failed to explain how
he was prejudiced, and our review of the record fails to support prejudice.
After the district court denied the motion to withdraw, Boggs’ counsel
acknowledged he had reviewed the presentence investigation report and
found no errors. He also informed the district court that he gave Boggs a
copy of the presentence investigation report prior to the sentencing.
Additionally, he told the district court he knew of no reason why the court
could not pronounce the sentence.
Counsel for Boggs did fail to speak on behalf of Boggs in mitigation of
punishment at the sentencing hearing. However, Boggs submitted a written
statement of mitigation together with other documents in mitigation of
punishment. He was also given his right of allocution. Boggs makes no
claim that the sentence imposed by the district court was illegal or that any
evidence in mitigation existed that was not presented to the court. The
court was fully apprised of Boggs’ background and other matters pertinent
to the imposition of sentence by the presentence investigation report.
Under all the circumstances, Boggs has failed to establish prejudice.
VI. Ineffective Assistance of Trial Counsel.
Boggs claims his trial counsel was ineffective for two main reasons.
First, he claims trial counsel was ineffective for failing to object to an
instruction given to the jury by the district court concerning Boggs’
character and reputation for drug use. Boggs points out that no evidence
was presented at trial concerning his good character or reputation, and the
only evidence of his drug use was introduced by the officer who executed
the search warrant when he mentioned that the occupants of the house had
a history of drug activity. Boggs believes the instruction and this evidence
permitted the jury to consider the evidence of his drug use in deciding
whether he was guilty of the crimes charged.
24
Boggs also claims his trial counsel failed to object to multiple
incidents of prosecutorial misconduct during closing arguments. Boggs
claims the prosecutor repeatedly made improper references about removing
drugs from the streets of the community. He also claims the prosecutor
made improper comment on the credibility of witnesses when he stated that
Boggs’ defense in the case was to show the State’s witnesses were “lying”
and when he argued that police who testified did not lie.
To establish a claim of ineffective assistance of counsel, a defendant
must show trial counsel failed to perform an essential duty and prejudice
resulted. State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998). Generally,
claims of ineffective assistance of counsel are preserved for postconviction
relief. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). However, if the
record shows the defendant cannot prevail under either element as a matter
of law, we will affirm the conviction without preserving the claim. Id. In
this case, we turn to the second prong of the test without considering the
first.
The defendant establishes prejudice by showing “ ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ ” Graves, 668 N.W.2d at
882 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674, 697 (1984)). This standard is met when the
probability of a different result is “ ‘sufficient to undermine confidence in
the outcome.’ ” Id. We consider the totality of the circumstances, the
factual findings that would have been affected by counsel’s conduct and
whether the effect of the conduct was pervasive or isolated and trivial. See
Graves, 668 N.W.2d at 882-83. To the extent Boggs makes a due process
claim based on prosecutorial misconduct, we consider whether Boggs was
denied a fair trial in light of the following factors:
25
(1) the severity and pervasiveness of misconduct; (2) the
significance of the misconduct to the central issues in the case;
(3) the strength of the State’s evidence; (4) the use of
cautionary instructions or other curative measures; (5) the
extent to which the defense invited the misconduct.
Id. at 869 (citations omitted). The most important factor is the strength of
the State’s case against the defendant. State v. Carey, 709 N.W.2d 547, 559
(Iowa 2006).
The submission of the character instruction to the jury was
perplexing, at best. The instruction permitted the jury to consider evidence
of Boggs’ good character or reputation regarding drug use in deciding if he
committed the crimes charged, but no such evidence of good character was
introduced. Generally, the submission of an instruction unsubstantiated
by the evidence is prejudicial. Tejeda, 677 N.W.2d at 753. Yet, the error in
the submission of the instruction under the circumstances of this case does
not undermine our confidence in the verdict. See id. The officers’ testimony
that the occupants of the house had a history of drug use could be
considered as evidence of a bad reputation regarding drug use, but the
instruction did not specifically tell the jury it could consider Boggs’ bad
history or reputation for drug use in considering its verdict. The instruction
largely informed the jury how to consider evidence of good character. Thus,
we do not share Boggs’ concern that the instruction impacted the verdict.
Additionally, the prosecutor did not make any argument to suggest the
instruction could be used in such a manner. Moreover, the State’s case
against Boggs was overwhelming. He was caught “red-handed”4 by law
enforcement officers dividing a large quantity of methamphetamine into
4The phrase “red-handed” is derived from the anonymous Latin phrase “flagrante
delicto.” Bartels Familiar Quotations 123:128 (17th ed. 2002). “To be caught ‘red-handed’ is
to be caught in the act, in flagrante delicto, as if with blood on the hands.” Brewer’s
Dictionary of Phrase and Fable 920 (14th ed. 1989). Black’s Law Dictionary 782 (7th ed.
1999) translates “flagrante delicto” as “while the crime is ablaze.”
26
small quantities in a room filled with numerous drug paraphernalia and
other evidence of drug dealing. See id. at 755 (holding no prejudice resulted
for the purposes of an ineffective-assistance-of-counsel claim when the
prosecution presented overwhelming evidence of the defendant’s guilt and
the effect of a superfluous jury instruction was speculative).
We also conclude the conduct of the prosecutor during closing
argument did not result in prejudice to Boggs. At the outset, comments
about the “community” are improper when used to improperly inflame the
jury. See State v. Johnson, 534 N.W.2d 118, 128 (Iowa Ct. App. 1995)
(prosecutor urged jury to convict to “protect community values”). Similarly,
a prosecutor who calls a witness a “liar” improperly inflames the jury. See
Carey, 709 N.W.2d at 558. While we do not decide if the comments in this
case constituted misconduct, they were not egregious. The references to the
community were not pervasive and largely related to the intent-to-distribute
element of the crime, not the need for the jury to convict to protect the
community. See State v. Monroe, 236 N.W.2d 24, 30–31 (Iowa 1975)
(condemning prosecutor’s references regarding the need to protect the
community from drug dealing because their purpose was to inflame the
jury). Similarly, the statements by the prosecutor about “lying” were
isolated and generalized with no specific reference to Boggs. See Carey, 709
N.W.2d at 558 (suggesting that, while referring to the defendant as a liar is
misconduct, asking the jury to make reasonable inferences as to the
believability of certain testimony, based on the evidence, is permissible).
Under all the circumstances, no prejudice can be observed. The
alleged improper comments were not inflammatory and were isolated.
Moreover, as previously indicated, the case against Boggs was strong.
27
VII. Conclusion.
For the reasons set forth in this opinion, we reject all claims raised by
Boggs in support of his appeal. We affirm the judgment and sentence of the
district court.
AFFIRMED.