State of Iowa v. Oladimeji A. Ayodele

IN THE COURT OF APPEALS OF IOWA
No. 15-2059
Filed August 16, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
OLADIMEJI A. AYODELE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Monona County, Steven J.
Andreasen, Judge.
Oladimeji Ayodele appeals his conviction for possession of a controlled
substance, marijuana (second offense). REVERSED AND REMANDED.
Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux
City, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
PER CURIAM
Oladimeji Ayodele appeals his conviction for possession of a controlled
substance, marijuana (second offense). He argues the district court abused its
discretion in denying his mistrial motion grounded in the prosecutor’s references
to excluded evidence.
I. Background Facts and Proceedings
Iowa State Trooper Justin Sackett clocked a vehicle driving seventy-seven
miles per hour in a seventy-mile-per-hour zone. Sackett activated his emergency
lights. The vehicle started to slow down but did not stop immediately. Sackett
observed “a lot of movement in the back of the vehicle” and saw “an object”
being “thrown out the right rear passenger window.” After the vehicle stopped,
Sackett approached the rear, passenger-side occupant, who was later identified
as Ayodele, and berated him for throwing out what the trooper perceived to be
marijuana.1 Sackett instructed Ayodele to exit the vehicle. He observed
marijuana residue on Ayodele’s shirt and smelled marijuana in the vehicle and,
later, on Ayodele. He handcuffed Ayodele and placed him in his state vehicle.
Sackett removed the remaining occupants and had a brief discussion with co-
defendant Johnny Madison, who conceded there was probably marijuana inside.2
The trooper searched the vehicle and found more marijuana.
The State charged Ayodele with possession of marijuana (second
offense). Ayodele filed a motion in limine seeking to exclude evidence that he
1
Sackett did not search for or locate the thrown substance.
2
Madison was tried with Ayodele and was found guilty of possession of a controlled
substance, marijuana (first offense). This court affirmed his conviction. See State v.
Madison, No. 15-2069, 2017 WL 3077910, at *2 (Iowa Ct. App. July 19, 2017).
3
threw marijuana out of the vehicle’s window. The district court permitted
evidence indicating something was thrown, but disallowed evidence reflecting the
thrown substance was marijuana. The court’s ruling was as follows:
[T]he State (counsel, witnesses, video or other evidence) shall be
precluded from arguing, stating, opining, or otherwise suggesting
that the object thrown out of the window of the vehicle was
marijuana. Without sufficient evidence substantiating that it was
marijuana, the probative value of such evidence is substantially
outweighed by the danger of unfair prejudice to . . . Defendant
Ayodele.
....
. . . [T]he State can play the video that depicts something
thrown out of the window. Trooper Sackett can testify that he
observed something thrown out of the window. The State,
however, cannot play any audio/video that includes statements
made by Trooper Sackett stating that the object appeared to be
marijuana or describes the object as marijuana. Trooper Sackett
may not testify that the object appeared to be marijuana. Trooper
Sackett may not describe the object in any manner suggesting that
it was marijuana (i.e. shape, size, color); and counsel for the State
may not argue or imply to the jury that the object was marijuana.
The evidence would simply be that an object that is unknown and
unidentified was thrown out of the window of the vehicle.
During trial, the prosecutor had the following exchange with Trooper
Sackett regarding the thrown material:
Q. Okay. Did you—As you were riding behind the vehicle
attempting to stop it, did you notice anything happen? A. There
was a lot of movement in the back of the vehicle and an object was
thrown out the right rear passenger window.
Q. Now, without making any sort of conclusions on what that
object was, were you able to tell whether it was liquid or solid? A. It
was definitely solid.
Q. Were you able to tell if the object was all in one piece as it
was thrown out or was it in multiple pieces?
Ayodele objected at this juncture. The objection was sustained.
The prosecutor next showed the jury a redacted video of the traffic stop,
omitting references to marijuana as the thrown substance. The State did not
4
omit references to the following: (1) Sackett’s statement: “They just threw shit out
the window,” (2) two of Sackett’s questions to Madison: (a) “What was going on?
He got nervous, started throwing shit?” and (b) “Is there any more marijuana in
the vehicle . . . ?” and (3) Sackett’s assertion, “I’m making a traffic stop here and
they’re throwing 200 out the window.”3
Ayodele moved for a mistrial, arguing the prosecutor violated the court’s
ruling on his motion in limine. The district court reserved ruling on the motion.
After the close of the State’s case, Ayodele renewed his motion on the same
ground. The court again reserved ruling.
During the State’s closing rebuttal argument, the prosecutor referred to
two other occupants of the vehicle, pointed out they did not possess marijuana,
and asserted, “[I]f they were on trial today, I suspect they would be found not
guilty.” After the jury began its deliberations, Ayodele moved for mistrial a third
time, adding as a ground the prosecutor’s reference to the other occupants’
innocence. Ayodele asserted the reference violated a pre-trial ruling on the
State’s motion in limine excluding evidence of these individuals’ charges,
convictions, or acquittals. The court again reserved ruling.
The jury found Ayodele guilty. Ayodele filed post-trial motions, including
another motion for mistrial. The district court denied the motions. With respect
to the mistrial motion, the court stated:
The court initially does determine that the state, during trial,
violated this court’s ruling on the motion in limine.
3
In a written motion for mistrial, defense counsel argued “200” is a police code for drugs.
The motion stated: “While the jury, or most other non-law enforcement people, may not
know that ‘200’ refers to drugs, the immediate mention of ‘shit’ being thrown out coupled
with an obvious police code of some kind infers drugs.”
5
....
The fact that the State continues to essentially argue that the
ruling on the motion in limine was in error suggests to this Court
that some of the state’s actions in bringing some of this evidence
was intentional.
In regard to the violation of the ruling on the motion in limine,
in particular, the State’s questioning of Trooper Sackett beyond
simply that there was an object thrown out of the window, and in
particular, the follow-up questions as to whether the object was a
liquid or a solid and whether it was in chunks or apart, some other
descriptive question that the court then sustained the objection,
were in clear violation of this court’s ruling on the motion in limine . .
..
....
. . . [I]in regard to the video, the court would tend to agree
with the State that the video, as played, technically did not violate
this court’s ruling on the motion in limine.
....
. . . [H]owever, . . . the court’s ruling on the motion in limine
was expanded after the questioning of Trooper Sackett.
As part of a sidebar, the court cautioned the State as to any
further references to this object being thrown out the window, and
the State immediately thereafter played this video with numerous
references to the object being thrown out the window.
....
In regard to the closing argument, the court, at the time of
trial, again, would incorporate the statements in regard to the
concerns that the State, in its rebuttal closing argument, argued
and stated that the other passengers would have been found not
guilty of possession charges and whether or not that violated the
court’s ruling on the State’s motion in limine.
....
Otherwise, the court believes the key determination in regard
to the motion for mistrial is whether or not either defendant was
prejudiced and denied a fair trial based upon . . . these violations of
the in limine ruling and the evidence and statements brought into or
raised in the presence of the jury by the State.
In this regard, the court finds and concludes that the
defendants were not prejudiced to the point that they were denied a
fair trial in this matter. . . .
....
. . . [T]here was significant other evidence in this matter
directed towards the constructive possession of this marijuana by
Mr. Ayodele, and by “this marijuana,” the court is referencing the
marijuana that was discovered inside the shoe in that rear
passenger area.
....
6
The court does not believe Mr. Ayodele was denied a fair
trial in regard to any references that went beyond the court’s ruling
on the motion in limine. The court believes that he was not
prejudiced in this matter based upon that portion of the evidence
submitted at trial and that based upon the other evidence, and
again, the weight of that evidence, that the verdict was certainly
supported regardless of that reference and the additional
references to the object being thrown out the window for the
reasons that the court previously stated.
Ayodele appealed following imposition of sentence.
II. Mistrial Motion
Ayodele contends the prosecutor committed misconduct by referring to
and offering evidence excluded by the court. In his view, the misconduct
deprived him of a fair trial. Alternatively, in the event we conclude he failed to
preserve error, he argues his attorney was ineffective in failing to properly seek a
mistrial. We conclude Ayodele preserved error. Accordingly, we review the
court’s mistrial ruling directly rather than under an ineffective assistance of
counsel rubric.
Our review of the court’s ruling is for an abuse of discretion. State v.
Gathercole, 877 N.W.2d 421, 427 (Iowa 2016). To establish reversible error,
Ayodele “must show the violation of the limine order resulted in prejudice that
deprived [him] of a fair trial.” State v. Frei, 831 N.W.2d 70, 80 (Iowa 2013),
overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708
n.3 (Iowa 2016). A defendant is denied a fair trial when “the matter forbidden by
the ruling was so prejudicial that its effect upon the jury could not be erased . . . .”
State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998).
That is the case here. In no uncertain terms, the district court ruled, “the
State (counsel, witnesses, video or other evidence) shall be precluded from
7
arguing, stating, opining, or otherwise suggesting that the object thrown out of
the window of the vehicle was marijuana.” The court continued, “Trooper Sackett
may not testify that the object appeared to be marijuana. Trooper Sackett may
not describe the object in any manner suggesting that it was marijuana (i.e.
shape, size, color); and counsel for the State may not argue or imply to the jury
that the object was marijuana.” In discussing the defense motion with counsel,
the court also stated any references to the thrown substance as marijuana would
be “highly prejudicial” in the absence of evidence the substance was indeed
marijuana.
We conclude the district court abused its discretion by failing to sustain the
motion for mistrial made by Ayodele after the video was published for jury
viewing. At that point, the prosecutor had shown he did not heed the court’s prior
ruling: “Without sufficient evidence substantiating [the thrown object] was
marijuana, the probative value of such evidence is substantially outweighed by
the danger of unfair prejudice.” Prior to the video being shown, the prosecutor
asked Trooper Sackett whether the thrown item was a solid. The court sustained
a defense objection. Undeterred, the prosecutor failed to redact and published to
the jury portions of the video in which (1) Sackett said Ayodele threw “shit out the
window,” (2) Sackett asked Madison whether Ayodele “got nervous, started
throwing shit,” and (3) Sackett asked him if there was “more” marijuana in the
vehicle. The above references were thinly-veiled attempts to “argue or imply to
the jury that the object was marijuana,” in direct contravention of the court’s ruling
on Ayodele’s motion in limine. Cf. State v. Trudo, 253 N.W.2d 101, 107 (Iowa
1977) (“[I]t is also apparent the prosecution, in an ill-advised effort to gild the lily,
8
was attempting to elicit testimony in an area we indicated was forbidden to
experts at least four months before this trial.”).
The bell could not be unrung. A juror exercising common sense as
instructed could have surmised from these inadmissible references, rather than
the duly admitted evidence, that Ayodele possessed marijuana. Notably, the
case was tried to a jury, and the jury was not given a curative instruction
following the prosecutor’s introduction of the problematic portions of the video.4
See State v. Richards, 879 N.W.2d 140, 153 (Iowa 2016) (noting “the better
practice” is to give “the jury a limiting instruction curtailing the danger of unfair
prejudice”).
We reverse Ayodele’s conviction for possession of marijuana (second
offense) and remand for a new trial.
REVERSED AND REMANDED.
All judges concur except Vaitheswaran, P.J., who dissents.
4
Additionally, the prosecutor violated a ruling on his own motion in limine, which
precluded the State from making reference to two occupants’ innocence of potential drug
possession charges. This impermissible reference left the jury with the impression that
only Ayodele and Madison could have possessed the marijuana. This violation, along
with (1) asking whether the thrown item was a solid and (2) failing to redact the cited
portions of the video, were, as the district court found, “highly prejudicial.” We are
persuaded the jury could not erase the effect of these impermissible references.
9
VAITHESWARAN, Presiding Judge (dissenting)
I respectfully dissent. Although I agree the prosecutor violated the district
court’s rulings on the motions in limine, I am convinced the error was harmless.
There is more than one prejudice standard that could apply. If we were
analyzing the case in terms of prosecutorial misconduct, the Iowa Supreme Court
has stated we would have to find “the defendant was so prejudiced by the
misconduct ‘as to deprive the defendant of a fair trial.’” See State v. Green, 592
N.W.2d 24, 30-31 (Iowa 1999) (quoting State v. Anderson, 448 N.W.2d 32, 33
(Iowa 1989)). This is a constitutional harmless error standard. See State v.
Musser, 721 N.W.2d 734, 756 (Iowa 2006) (“[P]rosecutorial misconduct is not,
standing alone, a due process violation. . . . [O]nly when the prosecutor’s
conduct deprives the defendant of a fair trial is the right to procedural due
process denied.”); accord State v. Winters, No. 06-0535, 2007 WL 1062894, at
*3 (Iowa Ct. App. Apr. 11, 2007). But where we are dealing with evidentiary
rulings, we apply a nonconstitutional harmless-error standard: “Does it sufficiently
appear that the rights of the complaining party have been injuriously affected by
the error or that he has suffered a miscarriage of justice?” State v. Sullivan, 679
N.W.2d 19, 29 (Iowa 2004) (quoting State v. Trudo, 253 N.W.2d 101, 107 (Iowa
1977)). Under this nonconstitutional standard, we presume prejudice unless the
contrary is affirmatively established. Id.
I would apply the nonconstitutional harmless-error standard because the
crux of the appeal is the State’s violation of evidentiary rulings. I am not
convinced Ayodele’s rights were injuriously affected or that he suffered a
miscarriage of justice. It is virtually undisputed that Trooper Sackett observed
10
“marijuana shake” or residue on Ayodele and smelled marijuana around him. It
is also undisputed that Ayodele inculpated himself in the law enforcement vehicle
when he was overheard asking if “Madison told.” In addition, Sackett found baby
jars containing marijuana residue and two small bags of marijuana in a pair of
shoes near Ayodele. These items were situated close to Ayodele in the rear right
passenger portion of the vehicle. Finally, Ayodele conceded to smoking
marijuana recently. This evidence affirmatively establishes Ayodele’s possession
of marijuana independently of the prosecutor’s intimations that the thrown
substance was marijuana. I would affirm Ayodele’s conviction for possession of
marijuana (second offense).