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State v. Morse8/27/2003
Defendant-appellant Edward Morse appeals his convictions and sentence, following a jury trial, for operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2001) and possession of marijuana, in violation of section 124.401(5). AFFIRMED.
Defendant-appellant Edward Morse appeals his convictions and sentence, following a jury trial, for operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2001) and possession of marijuana, in violation of section 124.401(5). On appeal defendant claims he received ineffective assistance of counsel. We affirm but preserve defendant's claims for possible post-conviction proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS
On December 31, 2001 Trooper Cliff Wilson observed defendant's vehicle traveling northbound on Highway 14. When defendant's vehicle made a left turn in front of Trooper Wilson's patrol car, Trooper Wilson observed the license plate light in defendant's vehicle was burned out. Trooper Wilson stopped defendant's vehicle just after it turned left into the parking lot of Dan's Village Pump in Knoxville.
Upon approaching defendant's vehicle Trooper Wilson noticed a strong odor of alcohol emanating from the car. Trooper Wilson testified he also noticed defendant's speech was a bit "mush ." Trooper Wilson had defendant step out of the car, where he had him perform several field sobriety tests. Based on defendant's performance on the tests and his apparent admission to having consumed alcohol, Trooper Wilson concluded defendant had been operating his vehicle under the influence of alcohol. At some point defendant submitted to a Preliminary Breath Test (PBT), showing his blood-alcohol level exceeded.10. Trooper Wilson and Trooper Steffan, who accompanied him, proceeded to arrest defendant and read him his Miranda rights. Trooper Steffan searched his vehicle and found an Altoids tin containing rolling papers, what appeared to be a marijuana pipe, and a green, leafy substance later determined to be marijuana inside. Trooper Steffan also found another Altoids tin with a snort tube and a razor blade inside. Defendant initially denied these items were his, but later admitted ownership. The troopers took defendant to the police station for a Datamaster breath test and determined his blood-alcohol concentration to be.135.
Defendant's passenger that night, Marty Bishop, was a defense witness at trial. On cross-examination the prosecutor questioned Bishop as to his knowledge of defendant's OWI charges dating back to 1983 and 1996. Defense counsel did not object to this line of questioning.
Defendant argues his counsel rendered ineffective assistance in failing to object to this questioning and in failing to file a motion in limine to exclude all evidence of defendant's prior convictions. Defendant also argues his counsel was ineffective for failing to request a suppression hearing, following the filing of his motion to suppress, for the purposes of determining (1) whether the officers' stop of defendant's vehicle was legal, (2) whether reasonable grounds existed to administer the field sobriety tests and the PBT, and (3) whether the officers followed the proper procedure in administering the field sobriety tests.
II. SCOPE OF REVIEW
We review ineffective assistance of counsel claims de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To establish a claim of ineffective assistance of counsel, defendant must demonstrate, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from that failure. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). W
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