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State of Iowa v. Tony Lewis Grider

February 13, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
TONY LEWIS GRIDER, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.

The opinion of the court was delivered by: Doyle, J.

Tony Grider appeals his convictions for various drug offenses. AFFIRMED.

Considered by Vogel, P.J., and Potterfield and Doyle, JJ. Bower, J. takes no part.

Tony Grider appeals his convictions for conspiring to manufacture a controlled substance and/or manufacturing a controlled substance (more than five grams of methamphetamine), possession of ephedrine and/or pseudoephedrine with the intent to manufacture a controlled substance, possession of ether with the intent to manufacture a controlled substance, and possession of marijuana, in violation of Iowa Code sections 124.401(1)(b), (4), and (5) (2009). He claims: (1) his trial counsel was per se ineffective for waiving the reporting of closing arguments in violation of Iowa Rule of Criminal Procedure 2.19(4); (2) the trial court erred in admitting evidence of his prior manufacture of methamphetamine; and (3) the trial court applied the wrong standard in reviewing his motion for new trial. Additionally, a plethora of complaints are listed in Grider's pro se supplemental brief. We affirm.

I. Background Facts and Proceedings.

In May of 2011, the Black Hawk County Sheriff's deputies conducted a "trash rip" at Grider's residence.*fn1 Deputies found several Sudafed packages stuffed inside a cigarette box, plastic tubing, syringes and syringe caps, and plastic baggies. Inside one of the baggies was a bent spoon with black burn marks. Also found was a letter addressed to Grider and a paycheck bearing his name. A search warrant was obtained for Grider's residence.

Grider lived in the home with other individuals. Grider and two other persons were present in the home when the search warrant was executed. During the search of the house, investigators found a meth pipe, marijuana, and other drug related paraphernalia in Grider's bedroom. When investigators found the detached garage locked, they asked Grider about a key to the garage. Grider did not respond. Investigators entered the garage through a window. During the search of the house, the key to the garage was found on a key ring with other keys inside the pocket of a coat which was with other items in a clothes basket located in Grider's bedroom.

During the search of the garage, investigators discovered items consistent with the manufacture of methamphetamine inside a shop vac. The items included plastic bags containing receipts, lithium battery packaging, pseudoephedrine blister packaging, coffee filters and used filters, and a Gatorade bottle containing sludge. Other items commonly used in the manufacture of methamphetamine were also found in the garage.

Grider was arrested, charged, and ultimately found guilty by a jury of four drug charges: (1) conspiring to manufacture a controlled substance and/or manufacturing a controlled substance (methamphetamine); (2) possession of ephedrine and/or pseudoephedrine with intent to manufacture a controlled substance; (3) possession of ether with the intent to manufacture a controlled substance; and (4) possession of marijuana. As a habitual offender, Grider was sentenced to twenty-five years on one count and fifteen years on each of the other counts. All sentences were ordered to be served concurrently. Grider now appeals.

II. Discussion.

A. Waiver of Reporting of Closing Arguments.

On appeal, Grider asserts his trial counsel was per se ineffective for waving the reporting of closing arguments in violation of Iowa Rule of Criminal Procedure 2.19(4). We review claims of ineffective assistance of counsel de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). Ineffective assistance of counsel requires a defendant to prove (1) trial counsel failed to perform an essential duty and (2) such failure resulted in prejudice. See id. "If the claim lacks prejudice, it can be decided on that ground alone without deciding whether the attorney performed deficiently." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). In order to show prejudice, an applicant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Madsen, 813 N.W.2d 714, 727 (Iowa 2012).

In criminal cases, the reporting of opening statements and closing arguments is mandatory: "The reporting of opening statements and closing arguments shall not be waived as provided in Iowa [Rule of Civil Procedure] 1.903(2)." Iowa R. Crim. P. 2.19(4). Reasoning that "[b]oth opening statements and closing arguments are revealing of a party's strategy and may be necessary for [an appellate court] to adequately review the performance of counsel," the rule was amended in 2010 to require the reporting of opening statements and closing arguments. State v. Fountain, 786 N.W.2d 260, 267 & n.3 (Iowa 2010).

Assuming without deciding that Grider's counsel breached an essential duty by waiving the reporting of closing arguments, we note Grider does not even give us a hint as to what occurred during closing arguments.*fn2 He does not assert any specific error arose during the course of those proceedings. He does not assert any improper argument was made. He does not assert his counsel failed to object to any improper argument. He does not assert he was prejudiced by anything that occurred during closing arguments. Finally, he does not even explain how he was prejudiced by the lack of a reported closing argument. Not having maintained anything untoward occurred during closing arguments or that he was prejudiced thereby, his claim is without merit. See State v. Oetken, 613 N.W.2d 679, 689 (Iowa 2000).

In order to side step Oetken, Grider argues a violation of rule 2.19(4) by counsel should be deemed per se ineffectiveness of counsel, or, in other words, prejudice should be presumed. "Per se-ineffective-assistance cases are strictly limited to those situations in which counsel has totally abrogated his duties, effectively depriving the defendant of counsel." State v. Moore, 638 N.W.2d 735, 739 (Iowa 2002). Our courts have adopted a narrow view of per se ineffective assistance. Id. The doctrine comes into play when "there is an unusually high risk of prejudice to a party and the proofs of prejudice may be difficult to establish . . . ." Id. at 740 (citations omitted). We cannot say that the failure to have closing arguments reported implicates a total abrogation of duties on ...


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