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State v. Gully

Court of Appeals of Iowa

September 26, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
BRYCE LADARIS GULLY, Defendant-Appellant.

          Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.

         Bryce Gully appeals his convictions of several drug- and gun-related crimes and the sentences imposed.

          Charles J. Kenville of Kenville Law Firm, PC, Fort Dodge, for appellant.

          Thomas J. Miller, Attorney General, and Kevin Cmelik and Sharon K. Hall, Assistant Attorneys General, for appellee.

          Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          MULLINS, JUDGE.

         Bryce Gully appeals his convictions of several drug- and gun-related crimes and the sentences imposed. He contends: (1) the district court erred in denying his motion to suppress evidence obtained pursuant to a search warrant because the warrant application lacked probable cause; (2) the district court abused its discretion in denying his motions for a mistrial; (3) there was insufficient evidence to support his convictions and the district court therefore erred in denying his motions for judgment of acquittal;[1] (4) the sentences imposed amount to cruel and unusual punishment because his prior convictions supporting sentencing enhancement were committed when he was a juvenile; and (5) his trial counsel rendered ineffective assistance in failing to object to the racial makeup of the jury pool.

         I. Background Facts and Proceedings

         A. Suppression Record

         The following facts can be gleaned from the suppression record. In the early morning hours of November 27, 2015, a shooting occurred outside a pub in Fort Dodge. Upon investigation, the Fort Dodge Police Department identified Gully, Torre Mosley, and Kwane Wheat as suspects in the shooting. Detective Tom Steck applied for a search warrant for the residences in which he believed the three suspects primarily resided to search for evidence related to the shooting. Based on the information available and prior investigations, Steck believed Gully primarily resided with his girlfriend, Krystal Prince, and their two children in a residence located at 348 Avenue M West, Fort Dodge. In relevant part, the warrant application provided the following as to Gully's residence:

Through conversations with other officers, confidential informants, citizens, and through prior personal involvement and investigation by this officer it is known that GULLY commonly stays with and lives with his girlfriend, KRYSTAL [] PRINCE . . . at the residence of 348 Ave M West in Fort Dodge . . . . This officer on multiple occasions has personally seen GULLY coming and going from this specific residence and has seen vehicles GULLY drives stay overnight at the residence on multiple times along with PRINCE operating vehicles GULLY drives and vi[ce] versa. . . . PRINCE and GULLY have been involved in a[n] intimate relationship with one another for over four years and they have two children together. Officers have responded to this specific residence multiple times for GULLY. . . . GULLY lists on his Iowa drivers license information that he lives at [a] residence . . . in Marshalltown but through multiple investigations this officer has personally been involved GULLY does not live in Marshalltown any longer. GULLY has also been known to tell officers that he lives at the residence of 1128 10th Ave SW in Fort Dodge with his mother and grandmother. Through multiple prior investigations this officer has personally been involved in it is known by this officer and others that GULLY does not live at this residence nor does he have a bedroom at the residence. . . . It should also be noted that this officer personally knows that GULLY's address he has listed on his current Iowa driver's license is an old address and he has not changed in at least several months to a year.
. . . .
. . . . It is also known that the three try to disguise their addresses and stay at multiple residences in attempts to evade law enforcement but each commonly reside with the previously listed girlfriends at the previously mentioned residences. Although the three do stay at other locations the three primary residences for them have been previously identified within this affidavit.

         Attached to the warrant application were references to two anonymous tips received by law enforcement, one advising law enforcement to check the suspects' "baby mommies houses," and the other specifically advising officers to check Prince's house. Steck did not request a search warrant for any of the other residences Gully was potentially associated with. The warrant application was granted.

         B. Trial Evidence

         Upon the evidence presented at trial, a reasonable jury could make the following factual findings. Upon the grant of the warrant application, local law enforcement assembled to execute the warrant on the residence located at 348 Avenue M West. Upon executing the search warrant between 7:00 and 8:00 a.m., officers found Gully and his two young children in the home. After officers secured the residence, Sergeant Luke Fleener of the Webster County Sheriff's Department searched the main level of the residence. In the kitchen area, Fleener found a glass jar containing about twenty grams of marijuana, 3.16 grams of cocaine, and 2.34 grams of cocaine base (crack cocaine); a large number of plastic baggies consistent with the sale of narcotics; and a small scale commonly used "to weigh out exact measurements of narcotics."

         Lieutenant Matthew Lundberg of the Fort Dodge Police Department searched the basement of the residence. As a part of his search, Lundberg checked the area above the basement furnace, where he ultimately found a dark-colored duffel bag or backpack. During their inventory of the bag, Lundberg and Fleener found three handguns, loose ammunition, a plastic bag containing more than twenty grams of cocaine, and more than six pounds of marijuana in brick form. Lundberg and Fleener testified to their assessments that, due to the lack of dust and other debris on the dark-colored bag, it could not have been stored above the furnace for very long. No drug paraphernalia consistent with personal use of the drugs was found in the residence or on Gully's person. Officers also seized Gully's cellular phone. A forensic examination was conducted as to Gully's phone and text messages extracted from the phone indicated Gully was involved in the sale of marijuana and cocaine in the weeks prior to the execution of the search warrant.

         According to Prince's testimony, she and Gully were not in a romantic relationship at the time of the above events, but his presence at her home at this time was a regular occurrence, despite the fact that Gully lived with his mother. Prince had to be to work by 6:00 a.m. on the morning of November 27, and she had previously arranged for Gully's mother to care for her and Gully's children that day. Early that morning, however, as Prince was packing the children's items for the day, Gully showed up at the residence and advised he could watch the children, who were still asleep, upon which Prince agreed and left for work.

         In August and September of 2015, Prince's younger brother, Nick Dayton, was living in Prince's basement. When shown pictures of the dark-colored bag, its contents, and the mason jar during her testimony at trial, Prince stated she had never seen any of those items before. She indicated none of the said items could have belonged to Dayton, stating, "He's just . . . not that kind of a kid." Prince specifically testified that in the two weeks prior to the execution of the search warrant on her home, she knew Gully to be involved in the sale of drugs.

         A number of the seized items were sent to the state crime lab for fingerprint and DNA analysis. Four latent fingerprints belonging to Gully were found on the mason jar found in the kitchen. Four latent fingerprints, two of which belonged to Gully, [2] were found on one of the two Walmart sacks that contained the bricks of marijuana found in the dark-colored bag in the basement. Two latent fingerprints belonging to Gully were found on the plastic "Glik's" bag that contained two of the firearms found in the bag in the basement. The criminalist who analyzed the prints explained that it is possible to transfer fingerprints from one item to another, but opined none of the fingerprints he found on these items were transferred. The DNA profile obtained from one of the firearms that was tested contained a mixture of DNA from at least three individuals. Gully, as well as fewer than one out of ten unrelated individuals, was identified as a possible contributor to the mixed profile.

         C. Proceedings

         Gully was charged by trial information with the following crimes: possession of cocaine with intent to deliver, possession of cocaine base with intent to deliver, possession of marijuana with intent to deliver, three counts of felon in possession of a firearm, and two counts of failure to affix a drug-tax stamp.[3] As to all three possession-with-intent-to-deliver charges, the State additionally alleged that, during the commission of the crimes, Gully was in the immediate possession or control of a firearm. See Iowa Code § 124.401(1)(e) (2015). As to the cocaine and cocaine-base possession charges and the tax-stamp violations, Gully was alleged to have been a second or subsequent offender. See id. § 124.411. Gully was charged as a habitual offender as to all eight counts. See id. § 902.8.

         Gully filed a pretrial motion to suppress the evidence obtained pursuant to the search warrant, contending, among other things, "No basis existed for granting the warrant for the residence in which the state alleged [he] resided." Following a hearing, the court denied the motion, concluding the magistrate had a reasonable basis for concluding probable cause existed to issue the search warrant.

         Ultimately, a jury found Gully guilty as charged. The issue of prior convictions and sentencing enhancement was considered by the court, and Gully stipulated he was previously convicted of willful injury causing bodily injury in March 2010 and two counts of possession of marijuana with intent to deliver in April 2013, all class "D" felonies.

         Thereafter, Gully filed a motion in arrest of judgment and a motion for a new trial. In his motion in arrest of judgment, Gully contended the evidence was insufficient to support his conviction and the court's use of his prior convictions for sentencing-enhancement purposes amounted to cruel and punishment because he was a juvenile at the time he committed those crimes. In his motion for a new trial, Gully repeated his sufficiency-of-the-evidence argument and additionally contended, among other things, juror misconduct occurred during the trial. The court denied the motions and proceeded to sentencing.

         As to sentencing, Gully repeated his argument that the court's use of his prior convictions for sentencing-enhancement purposes amounted to cruel and punishment because he was a juvenile at the time he committed those crimes. The court rejected the argument and sentenced Gully to three concurrent terms of incarceration not to exceed thirty years for the possession-with-intent-to-deliver charges; three concurrent terms of incarceration not to exceed fifteen years for the felon-in-possession-of-a-firearm charges; and two concurrent terms of incarceration not to exceed fifteen years for the drug-tax-stamp charges. The court ordered the concurrent drug-possession sentences and concurrent firearms sentences to be served consecutively for a total term of incarceration not to exceed forty-five years. The court suspended the sentences for the drug-tax-stamp charges and, if ever served, ordered them to be served concurrently with one another and with all other sentences.

         As noted, Gully appeals. Additional facts will be set forth below as are relevant to the issues raised on appeal.

         II. Motion to Suppress

         Gully argues the district court erred in denying his motion to suppress evidence obtained pursuant to the search warrant, contending the warrant lacked probable cause. We review a challenge to a search warrant for an alleged lack of probable cause de novo, based on the totality of the circumstances. See State v. McNeal, 867 N.W.2d 91, 99 (Iowa 2015). "[W]e do not make an independent determination of probable cause," we merely determine "whether the issuing judge had a substantial basis for concluding probable cause existed." Id. (quoting State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997)).

         The United States and Iowa Constitutions protect against unreasonable searches and direct that no warrants shall issue without probable cause. U.S. Const. amend. IV; Iowa Const. art. I, § 8; see McNeal, 867 N.W.2d at 99. The test to ...


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