Appeal from the Iowa District Court for Polk County, Robert B. Hanson (motion to suppress) and Robert A. Hutchison (trial and sentencing), Judges.
The opinion of the court was delivered by: Vogel, P.J.
A defendant appeals his conviction for possession with intent to deliver a controlled substance. AFFIRMED.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
Damien Newsome appeals his conviction of possession with intent to deliver a controlled substance, to-wit crack cocaine, in violation of Iowa Code section 124.401(1)(c) (2011). He claims the district court erred in overruling his motion to suppress because the stop of the vehicle he was a passenger in was without articulable, reasonable suspicion. He also claims there was insufficient evidence to overcome a motion for judgment of acquittal as to whether he constructively possessed the drugs. Finally, he claims his constitutional right of confrontation was violated. In the alternative to his specific arguments, he makes an umbrella claim of ineffective assistance of counsel should we find any argument unpreserved. We affirm.
I. Background Facts and Proceedings
In April 2011, after drugs-crack cocaine and heroin-were found in Darien Lucas's apartment when Newsome was present, Newsome agreed to cooperate with the Polk County Attorney's Office, by providing information about drug dealing. Even before entering into the proffer agreement, Newsome outlined to law enforcement the process of how he and others were bringing drugs from Chicago to Des Moines on the bus routes. In July, law enforcement learned that Newsome was still involved in the transportation of drugs, through the information obtained from two confidential informants, Lucas and an "unwitting source." Newsome was arrested and convicted of possession of a controlled substance with intent to deliver cocaine based crack, in violation of Iowa Code section 124.401(1)(c)(3), a class "C" felony, after a stipulated trial on the minutes of evidence. In a previously filed motion to suppress evidence he asserted the evidence was obtained as a result of an illegal search and seizure. In denying the motion to suppress, the district court made the following findings of fact:
On July 29, 2011, Officer Chad Nicolino of the Des Moines Police Department received a tip from a confidential informant that defendant, Damien Newsome, would be arriving on either the Greyhound bus or Megabus from Chicago at around 11:00 p.m., carrying an unknown quantity of crack cocaine. Officer Nicolino was familiar with both defendant and the confidential informant, Darien Lucas, from an earlier narcotics investigation. In the course of this earlier investigation, defendant was found to be in possession of crack cocaine and heroin and agreed to proffer with law enforcement. Defendant told law enforcement he was involved in the transportation of crack cocaine and heroin from Chicago to Des Moines, using either the Greyhound bus or the Megabus, and that Darien Lucas was also involved.
Lucas was later arrested, and also agreed to proffer with law enforcement, which led to the aforementioned tip about defendant's activities on the night of July 29, 2011. Prior to July 29, Lucas had supplied information to law enforcement in one other case that had led to a search warrant and arrest. He had also given information regarding two other cases that were active at the time, but had not yet led to any arrests. The information Lucas passed on to Officer Nicolino on July 29 was based on information Lucas was receiving that night from an unwitting source-someone who thought they were assisting Lucas in coordinating a drug deal and did not know he was cooperating with law enforcement. As of July 29, the Des Moines Police Department had not opened any cases, executed any search warrants, or made any arrests based on information from this particular unwitting source.
After receiving the tip from Lucas, Officer Nicolino contacted Officer Brady Carney, also of the Des Moines Police Department, who was on patrol at that time. At the direction of Officer Nicolino, Officer Carney and his partner Officer Trimble traveled to the area of Fourth and Walnut Street in downtown Des Moines, near the stops for the Greyhound bus and the Megabus and waited for further information. As the officers monitored the bus stops, Lucas remained in contact with Officer Nicolino regarding when defendant would arrive and how the officers could identify him. At one point, Lucas told Officer Nicolino that defendant would be picked up by a red or maroon minivan with a white female driver and a black male passenger. He also clarified that defendant would arrive on the Megabus, not the Greyhound bus, and told Officer Nicolino that the bus was running late and would arrive around 11:45 p.m., rather than at 11:00 p.m. as he had previously reported.
Officer Nicolino passed all of this information on to Officer Carney as he received it from Lucas. While patrolling near the bus stop, Officer Carney observed a red van with a white female driver and a black male passenger parked directly across the street from the bus stop. This van left the area briefly at around 11:10 p.m., and Lucas reported this to Officer Nicolino. At approximately 11:45 p.m., Lucas told Officer Nicolino the Megabus had arrived and defendant was in the red van, leaving the area of Fourth and Walnut. Officer Carney and Officer Trimble observed the red van heading east on Walnut Street, away from the bus stop, and initiated a traffic stop just across the Walnut Street bridge at East First and Walnut.
As Officer Carney approached the van, he observed that the passenger in the backseat later identified as defendant, appeared to be moving around. Officer Carney ordered defendant to put his hands up, and had to repeat this command several times before defendant complied. Defendant was ordered out of the van and identified as Damien Newsome. Officer Carney ordered the two front-seat passengers out of the van as well, entered the van, and observed a bag of what appeared to be crack cocaine on the floor directly below where defendant had been sitting.
After receiving Miranda warning, defendant stated someone had thrown the drugs at him from the front seat and they were not his. Defendant was then handcuffed and placed in the patrol car. The officers retrieved the plastic bag from the back seat of the van for field testing, and the contents later tested positive as crack cocaine. Defendant was charged with Possession of a Controlled Substance with Intent to Deliver and Failure to Possess a Tax Stamp.
II. Ineffective Assistance of Counsel
Newsome argues to the extent any of his claims are waived or not preserved, his trial counsel was ineffective for allowing him to waive the issue or failing to preserve the issue. A claim of ineffective assistance of counsel is reviewed de novo. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). "To establish an ineffective-assistance-of-counsel claim, a defendant must prove by a preponderance of the evidence: (1) trial counsel failed to perform an essential duty, and (2) prejudice resulted." Id."Ordinarily, ineffective assistance of counsel claims are best resolved by post-conviction proceedings to enable a complete record to be developed and afford trial counsel an opportunity to respond to the claim." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). However, if the record on direct appeal is ...