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Right to counsel --
constitutional and statutory rights as applied to alleged
parole violators
Pfister v. Iowa District Court for Polk County, ___ N.W.2d ___
(Iowa 11/10/04) (Sup. Ct. No. 02-1513).
Right to counsel – alleged parole
violators. Iowa statute providing that alleged
parole violators do not have the right to appointed counsel (§
908.4(2)) is constitutional under both state and federal
constitutions. The Constitution does not require the
appointment of counsel for all parole violators, just those
presenting certain circumstances described in Gagnon v.
Scarpelli, 411 U.S. 778 (1973). As such, due process does
not require the automatic appointment of counsel for alleged
parole violators. However, due process does require that the
alleged parole violator be told that he or she has a right to
request counsel so as to be able to assert a right to counsel
– to which the violator may be entitled if the Gagnon
criteria are met. Finally, the state is required to pay for
the services of a constitutionally-required (distinguishing
this case from
Maghee v.
State, 639 N.W.2d 28, 30 (Iowa 2002)) court-appointed
attorney. The statute eliminating the state public defender’s
responsibility for court-appointed counsel fees in parole
revocation proceedings is still constitutional, however,
because there is still statutory authority for the payment of
such fees under Iowa Code § 815.1.
No rebuttable presumption of
drug possession by virtue of ownership or operation of vehicle
State
v. Kemp, ___ N.W.2d ___ (Iowa 11/10/04) (Sup. Ct. No. 03-1785)
[1] Possession of drugs -- no
rebuttable presumption flowing from ownership or operation of
vehicle in which drugs are found. Ownership or
operation of a vehicle in which drugs are found does not
create a rebuttable presumption of possession. Where the
district court (in a bench trial) erroneously relied on such a
presumption, the remedy is remand for the court’s
reconsideration of the evidence without applying the
unwarranted presumption. [2]
Constructive possession: factors demonstrating.
The factors to be considered in determining whether a
defendant had constructive possession of contraband include:
(1) incriminating statements made by the defendant, (2)
incrimination actions of the defendant upon the police’s
discovery of drugs among or near the defendant’s personal
belongings, (3) the defendant’s fingerprints on the packages
containing the drugs, and (4) any other circumstances linking
the defendant to the drugs. Additionally, in a motor vehicle
case, the court may consider these factors: (1) whether the
contraband was in plain view, (2) whether it was with the
defendant’s things; (3) whether it was found on the same side
of the car seat or next to the defendant, (4) whether the
defendant was the owner of the vehicle and (5) whether
defendant engaged in suspicious activity.
Consistency of Instructions
and Verdict re (1) Conspiracy to Manufacture and (2)
Manufacture of Methamphetamine
State v. Fintel, ___ N.W.2d ___ (Iowa 11/10/04) (Sup. Ct. No.
03-0889) [1] Instructions
and verdict on charges of conspiracy to manufacture and actual
manufacture of methamphetamine. No inconsistency
existed between either the jury instructions or the outcome,
regarding conviction of conspiracy to manufacture
methamphetamine but acquittal of actual manufacture.
[2] Conspiracy to manufacture
methamphetamine – sufficient evidence of agreement.
Sufficient evidence of conspiracy to manufacture
methamphetamine existed from the following: (1) defendant
knew meth was being manufactured in his apartment, (2) he was
there when the manufacturing occurred; (3) he knew of the
presence of acid and anhydrous ammonia in his apartment; (4)
he admitted to police that his addition had driven him to let
meth be manufactured in his apartment, (5) he led a
manufacturer of meth to his [defendant’s] bedroom with the
intention of “getting high”, in response to the visitor’s
inquiry “[d]oes anyone want to get high?” and (6) defendant’s
apartment was littered with necessary ingredients and utensils
for manufacturing. [3] Sentence enhancement for manufacturing
meth in the presence of a minor. Enhancement for
manufacturing meth in the presence of a minor does not apply
to conviction for conspiracy to manufacture meth, as held in
State v. Corsi, 686 N.W.2d 215, 222 (Iowa 2004). |
