October 2005

State v. Kukowski, 704 N.W.2d 687 (Iowa 2005) (10/17/05).  Rule of Criminal Procedure 2.19(9) provides that, after conviction of the current offense, the defendant shall have the opportunity to affirm or deny that he is the person who was previously convicted. If the defendant denies that he is that person, sentencing shall be postponed to permit a jury trial on that issue. Under this rule, the defendant need not personally affirm or deny the prior convictions. As in an arraignment, an attorney can provide the information sought by the rule on behalf of the defendant. The district court committed reversible error by requiring the defendant personally to affirm or deny his prior convictions. Even if the defendant admits that he is the person previously convicted, this "does not necessarily serve as an admission to support the imposition of an enhanced penalty." To knowingly stipulate, a defendant should have an adequate grasp of the implications of his or her stipulation. The court has a duty to conduct a further inquiry, similar to the colloquy required under rule 2.8(2), prior to sentencing to ensure that the affirmation is voluntary and intelligent. Presumably a personal inquiry is required at this point. If the defendant denies that he is the person previously convicted, the State must prove the prior convictions beyond a reasonable doubt, generally by introducing certified records of the convictions, along with evidence that the defendant is the person named in the convictions. Compare: State v. McBride, 625 N.W.2d 372 (Iowa Ct. App. 2001) (while formal rule 8(2)(b) (now Iowa R. Cr. P. 2.8(2)(b)) colloquys are not necessary for the acceptance of a valid stipulation to prior convictions, (contra State v. Bumpus, 459 N.W.2d 619 (Iowa 1990)), trial courts must ensure that defendants knowingly and voluntarily stipulate to having them.)

Impeachment with prior drug conviction

State v. Martin, 704 N.W.2d 674 (Iowa 2005) (10/07/05).  The prosecutor’s attempt to impeach the defendant with his prior conviction for possession with intent to deliver cocaine in this possession of cocaine case was improper under State v. Daly, 623 N.W.2d 799 (Iowa 2001) because it had no bearing on the defendant’s veracity. The error in admitting this evidence was not harmless because the evidence that Martin possessed a crack pipe found in the back of the pickup he was driving (after officers saw him throw something and heard a "tink") was not overwhelming.

Ineffective Assistance – admission of exhibit with evidence tag attached; Admission of evidence of prior arrests and violent tendencies

State v. Martin, 704 N.W.2d 674 (Iowa 2005) (10/07/05).  Counsel’s failure to object to the evidence tag as hearsay was not prejudicial because the tag simply reflected the chain of custody for the crack pipe and did not summarize the State’s case. The officer’s testimony about Martin’s prior arrests and violent nature should not have been permitted under a Rule 5.403 balancing test, given its minimal relevance and substantial danger of prejudice. However, this error was harmless in light of the limiting instruction and overwhelming evidence Martin knowingly possessed the crack pipe found in his pants pocket.

State v. Lasley, 705 N.W.2d 481 (Iowa 10/28/05).  Criminal charges for selling tobacco to an underaged person on an Indian reservation should not have been dismissed on jurisdictional grounds. By virtue of Public Law 846, the state has subject matter to enforce criminal/prohibitory laws for violations on Indian reservations but not for the enforcement of civil/regulatory laws. The ban against selling tobacco to underaged persons is criminal/prohibitory, meaning that the magistrate had subject matter jurisdiction to hear the case.