IN THE COURT OF APPEALS OF IOWA
No. 16-0472 Filed February 8, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
NICHOLAS ROBERT CAMPBELL-SCOTT, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
Nicholas Campbell-Scott appeals his convictions for possession of a
firearm as a felon, among others, arguing the evidence was insufficient to
support the convictions and his trial counsel was ineffective. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Doyle and McDonald, JJ. 2
DOYLE, Judge.
Following a jury trial, Nicholas Campbell-Scott was convicted of
possession of a firearm by a felon, interference with official acts while armed with
a firearm, carrying weapons, and eluding. On appeal, he argues there was
insufficient evidence to prove he possessed a weapon, an element of three of the
crimes for which he was convicted. He also asserts his trial counsel was
ineffective in several respects. Upon our review, we affirm.
I. Background Facts and Proceedings.
In September 2015, a Waterloo police officer was driving his squad car
when he observed Campbell-Scott standing next to a car. The officer knew
Campbell-Scott had had a warrant out for his arrest, and ultimately, after
Campbell-Scott drove off in the car, the car was followed by two squad cars. The
squad cars activated their lights and sirens, but the car did not stop. A pursuit
ensued, ending when the car crashed into a light pole. However, Campbell-Scott
jumped out of the driver’s front door and continued on foot, running between the
two squad cars. Officers chased Campbell-Scott about twenty feet, caught him,
and handcuffed him. A passenger trying to exit the car was removed from the
car by another officer and handcuffed.
Thereafter, officers discovered a revolver in a grassy area by a light pole,
in front of Campbell-Scott’s car. Another gun was found in the street on the
passenger side of Campbell-Scott’s car. Both guns were closer in proximity to
the passenger side of the car, and only partial fingerprints that were not suitable
for comparison were found on the guns. None of the officers saw Campbell-
Scott or his passenger throwing any weapons to the ground. However, one of 3
the officers heard the sound of a metal clink when Campbell-Scott was “bailing
out of the car,” while the officer was “trying to grab hold of [Campbell-Scott].”
The officer did not understand what the sound was until later when the revolver
was found near the light pole. One of the squad-car videos showed an object
being thrown and landing where the revolver was found, but it did not appear that
the object was thrown by Campbell-Scott.
The State charged Campbell-Scott with possession of a firearm as a felon,
in violation of Iowa Code section 724.26 (2015); interference with official acts
while possessing a firearm, in violation of section 719.1(1)(f); eluding, in violation
of section 321.279(3); and carrying weapons, in violation of section 724.4(1).
Following a jury trial, Campbell-Scott was found guilty as charged. Campbell-
Scott now appeals, challenging the sufficiency of the evidence to show he
“possessed” a firearm and asserting his trial counsel was ineffective in several
respects.
II. Sufficiency of the Evidence.
A jury’s guilty verdict will be upheld unless it lacks substantial evidence to
support it, and we review such claims for the correction of errors at law. See
State v. Reed, 875 N.W.2d 693, 704 (Iowa 2016); State v. Hickman, 576 N.W.2d
364, 366 (Iowa 1998). “Evidence is considered substantial if, when viewed in the
light most favorable to the State, it can convince a rational jury that the defendant
is guilty beyond a reasonable doubt.” Reed, 875 N.W.2d at 704-05 (citation
omitted). In making this determination, we do not review just the inculpatory
evidence; rather, all of the record evidence must be considered, “including any
reasonable inferences that may be fairly drawn from the evidence.” Id. at 705 4
(citation omitted). But, we recognize that the jury was free to reject or credit
certain evidence. See id.
Relevant here, the jury found Campbell-Scott guilty of three crimes, each
requiring proof that Campbell-Scott “possessed” a firearm as an element of the
statutory crime. See Iowa Code §§ 719.1(1)(f) (“If a person commits interference
with official acts . . . and in so doing . . . is armed with a firearm, that person
commits a class “D” felony.”), 724.4(1) (“[A] person who . . . goes armed with a
pistol or revolver, or any loaded firearm of any kind, whether concealed or not, or
who knowingly carries or transports in a vehicle a pistol or revolver, commits an
aggravated misdemeanor.”), 724.26(1) (“A person . . . convicted of a
felony . . . and who knowingly has under the person’s dominion and control or
possession . . . a firearm . . . is guilty of a class “D” felony.”); see also State v.
Thompson, No. 12-2314, 2013 WL 6686624, at *3-4 (Iowa Ct. App. Dec. 18,
2013) (discussing section 724.4(1) and its possession element); State v. Neuzil,
No. 00-1956, 2001 WL 1659114, at *2 (Iowa Ct. App. Dec. 28, 2001) (same).
Campbell-Scott argues the record evidence was insufficient to prove he had
possession of a firearm.
In establishing whether a defendant had “possession” within the meaning
of these statutes, proof of actual possession is not required. See State v.
Maxwell, 743 N.W.2d 185, 193 (Iowa 2008); State v. Cashen, 666 N.W.2d 566,
569 (Iowa 2003); see also Reed, 875 N.W.2d at 705 (explaining that the same
constructive-possession principles found in drug-possession cases apply to
possession-of-firearms cases). Rather, proof of constructive possession is
sufficient to establish possession. See Reed, 875 N.W.2d at 708. 5
Constructive possession of a firearm “exists when the evidence shows the
defendant ha[d] knowledge of the presence of the [weapon] and ha[d] the
authority or right to maintain control of it.’” Id. at 705 (citation omitted). Whether
this occurred “turns on the peculiar facts of each case” and “may be proved by
inferences,” such as when the firearm is found in the defendant’s exclusive
possession. Id. at 705. But if the firearm is not found in the defendant’s
exclusive possession, the defendant’s knowledge of the weapon and control over
it must be established by proof, such as showing the defendant had actual
knowledge of the firearm or from “incriminating statements or [other]
circumstances from which a jury might lawfully infer knowledge . . . .” Id. at 708.
Here, Campbell-Scott did not have actual possession of either firearm, nor
could either firearm be said to be in his exclusive possession, given the presence
of the passenger in his car. Nevertheless, viewing the record evidence in the
light most favorable to the State, the evidence provides circumstances from
which the jury could lawfully infer Campbell-Scott had knowledge of and
dominion over a firearm—namely, his elusion of the police and the presence of
two guns found at the scene of the crash after he and his passenger attempted to
flee. This evidence is more than Campbell-Scott’s mere proximity to the
contraband found. Campbell-Scott was the driver of the vehicle that eluded
police. Though there may be numerous reasons Campbell-Scott fled from police,
such as his intoxication or the outstanding arrest warrant, the jury could
reasonably infer that he did not stop because he knew there were firearms in the
vehicle. See, e.g., State v. Wilson, 878 N.W.2d 203, 214 (Iowa 2016) (“[T]he
inferential chain connecting an act of flight to guilt for the crime charged can 6
reasonably be drawn . . . when the timing of the act suggests ‘the sudden onset
or the sudden increase of fear in the defendant’s mind that he or she will face
apprehension for, accusation of, or conviction of the crime charged.’” (citation
omitted)). Moreover, as the officers testified at trial, two guns being found at the
scene where two fleeing suspects were apprehended supports an inference that
each person had possession and control of one of the guns prior to each gun’s
disposal. Although the contraband was not in Campbell-Scott’s physical
possession at the time of his arrest, viewing the facts in the light most favorable
to the State, we conclude there is substantial evidence one of the firearms was in
Campbell-Scott’s constructive possession. We therefore affirm on this issue.
III. Ineffective Assistance of Counsel.
Campbell-Scott also argues his trial counsel was ineffective in three
respects. He argues his rights under Iowa Code section 804.20 and Miranda1
were violated, and he asserts his counsel was ineffective for not moving to
suppress his statements and the results of his alcohol test based upon each of
the claimed violations. He also argues his trial counsel was ineffective for not
objecting to a jury instruction’s omission of the following sentence, which is found
in the model jury instruction: “A person’s mere presence at a place where a thing
is found or proximity to the thing is not enough to support a conclusion that the
person possessed the thing.” Campbell-Scott also claims cumulative error.
1 In Miranda v. Arizona, 384 U.S. 436, 479 (1966), the United States Supreme Court held that a suspect subjected to custodial interrogation must be warned of “the right to remain silent,” anything said “can be used against [the suspect] in a court of law,” “the right to the presence of an attorney,” and if the suspect “cannot afford an attorney one will be appointed . . . prior to any questioning if so desired.” 7
“To prevail on a claim of ineffective assistance of counsel, the claimant
must show counsel failed to perform an essential duty and prejudice resulted.”
State v. Ary, 877 N.W.2d 686, 704 (Iowa 2016). Our review is de novo, and the
claim fails if either element is lacking. See State v. Schlitter, 881 N.W.2d 380,
388 (Iowa 2016).
Nevertheless, we generally preserve ineffective-assistance-of-counsel
claims for postconviction-relief proceedings, where a proper record can be
developed. See State v. Null, 836 N.W.2d 41, 48 (Iowa 2013). “That is
particularly true where the challenged actions of counsel implicate trial tactics or
strategy which might be explained in a record fully developed to address those
issues.” State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). “[A]t a postconviction
relief hearing, trial counsel will have an opportunity to explain [his or] her conduct
and performance.” State v. Blair, 798 N.W.2d 322, 329 (Iowa Ct. App. 2011). A
lawyer, like any accused, is entitled to his or her day in court, especially when his
or her professional reputation is impugned. See State v. Bentley, 757 N.W.2d
257, 264 (Iowa 2008). Consequently, we will only address claims of ineffective
assistance of counsel on direct appeal when the record is sufficient to decide the
issue. See State v. Ross, 845 N.W.2d 692, 697 (Iowa 2014). We find the record
adequate here.
A. Section 804.20 Violation.
Iowa Code section 804.20 provides for “a limited statutory right to counsel
before making the important decision to take or refuse the chemical test under
implied consent procedures.” State v. Hellstern, 856 N.W.2d 355, 361 (Iowa
2014) (citation omitted). The statute specifically states, in relevant part: 8
Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney.
(Emphasis added.)
Campbell-Scott states he invoked his section 804.20 “statutory right while
still on scene at the accident,” and, citing State v. Moorehead, 699 N.W.2d 667,
672 (Iowa 2005), he asserts that right was violated because he was not allowed
“to make his phone call immediately upon arrival at the police station.” The State
concedes that Campbell-Scott asked to call his girlfriend at the scene of the
crash. However, it argues the State’s obligations under section 804.20 were
satisfied when Campbell-Scott was permitted to contact his girlfriend at the police
station before any field sobriety testing began. We agree.
It is true Campbell-Scott was not permitted to call his girlfriend
immediately after his initial request. But, section 804.20 does not contain the
word “immediately.” Rather, as set out above, it only requires the call be granted
“without unnecessary delay after arrival at the place of detention.” Iowa Code
§ 804.20. A section 804.20 claim “must be decided in the context of the
situation” the defendant was in at the time of the request, see State v. Bowers,
661 N.W.2d 536, 542 (Iowa 2003), and we apply “an objective consideration of
the statements and conduct of the arrestee and peace officer, as well as the
surrounding circumstances” concerning the request, Moorehead, 699 N.W.2d at
672. Here, Campbell-Scott was permitted to call his girlfriend after arriving at the
police station before the implied consent advisory was read to him, and there is 9
no evidence that the short “delay,” if any, was excessive. Campbell-Scott’s
section 804.20 rights were not violated in this case; therefore, Campbell-Scott’s
trial counsel had no duty to file a motion to suppress on this basis. 2 See Ross,
845 N.W.2d at 698 (“Trial counsel has no duty to raise an issue that lacks
merit.”). Consequently, Campbell-Scott’s claim of ineffective assistance on this
point fails as a matter of law.
B. Miranda Violation.
At the scene, after Campbell-Scott was captured and handcuffed, he was
advised of his Miranda rights. Thereafter, Campbell-Scott asked to call his
girlfriend and an officer told him, “Yep, we’ll make phone calls and get everything
squared away in just a second.” Officers asked Campbell-Scott questions
thereafter, including who owned the car and if Campbell-Scott had been drinking.
Campbell-Scott answered their questions. He was placed in the squad car with
his passenger about seven minutes after asking to call his girlfriend. Shortly
thereafter, an officer came back to the car and gave the Miranda warnings to
both Campbell-Scott and the passenger. After verifying that both Campbell-Scott
and the passenger understood, the following exchange occurred:
CAMPBELL-SCOTT: We exercise our rights to remain silent. OFFICER: Well good. I would too after we just found the gun, man. Okay? CAMPBELL-SCOTT: What gun? OFFICER: The gun that’s . . . about five feet from the car. [CAMPBELL-SCOTT OR PASSENGER]: [Unintelligible]. OFFICER: The handgun that’s five feet from the car. CAMPBELL-SCOTT: Who’s side? What you talking about?
2 See also our opinion of State v. Smith, No. 16-0749, 2017 WL _____, at *_ (Iowa Ct. App. Feb. 8, 2017) (The approximately eleven minutes that passed between the time of Smith’s arrival at the police station and the time he was allowed to make a phone call was not an “unnecessary delay” and did not violate section 804.20.). 10
OFFICER: You better decide that.
A few minutes later, the officer returned to the car and told Campbell-Scott and
the passenger, “Guys, I’m sorry. I meant plural. Plural. Okay? Thank gosh for
in car camera videos too.”
Campbell-Scott was transported to the police station shortly thereafter and
taken to an interview room. Prior to the start of the interview, the officer again
advised Campbell-Scott of his rights under Miranda, and Campbell-Scott agreed
to talk to the officer. About an hour into the interview, after the officer mentioned
the guns found at the scene, Campbell-Scott told the officer he wanted a lawyer.
The officer essentially tried to persuade Campbell-Scott to talk to him, but
Campbell-Scott repeated that he wanted a lawyer, and the officer ended the
interview.
On appeal, Campbell-Scott argues that, “[g]iven the totality of the
circumstances, it is clear that the officers violated Campbell-Scott’s invocation of
his right to remain silent and his statements should have been excluded” by way
of a motion to suppress. He maintains that his statement in the squad car, that
he was exercising his right to remain silent, meant any further conversation with
him by the officers violated his Miranda rights. We disagree.
“Law enforcement officers are required to give Miranda warnings when a
suspect is in custody and subjected to interrogation.” Schlitter, 881 N.W.2d at
395. “For purposes of the Fifth Amendment, a suspect is in custody ‘as soon as
a suspect’s freedom of action is curtailed to a “degree associated with formal
arrest.”’” State v. Tyler, 867 N.W.2d 136, 171 (Iowa 2015) (citations omitted). “In
a Miranda claim, interrogation consists of the express questioning and words and 11
actions beyond those normally part of arrest and custody ‘that the police should
know are reasonably likely to elicit an incriminating response from the suspect.’”
Schlitter, 881 N.W.2d at 395.
“When a suspect invokes the right to remain silent, the authorities must
scrupulously honor the suspect’s right to cut off questioning.” State v. Palmer,
791 N.W.2d 840, 848 (Iowa 2010). In determining whether the suspect’s right
was “scrupulously” honored, we examine the totality of the circumstances,
considering whether: (1) the police immediately ceased the interrogation upon
the suspect’s invocation of his right to remain silent, (2) the police resumed
questioning only after the passage of a significant period of time, (3) before
resuming questioning, the police provided the suspect with a fresh set of Miranda
warnings, and (4) a new police officer, in another location, restricted the second
interrogation to a crime that had not been a subject of the earlier interrogation.
See id. at 846. Yet, a suspect’s “invocation of the right to remain silent [does] not
‘create a per se proscription of indefinite duration upon any further questioning by
any police officer on any subject, once the person in custody has indicated a
desire to remain silent,’” including “subsequent questioning by the same officer
about the same crimes.” Id. at 849 (citation omitted).
Here, it is true that the period of time that passed between Campbell-
Scott’s statement in the squad car and the subsequent interview at the police
station was relatively short. Nevertheless, considering the totality of the
circumstances, we do not find the officer failed to scrupulously honor Campbell-
Scott’s initial request to exercise his rights. Though the officer made a comment
immediately following Campbell-Scott’s initial request to exercise his rights while 12
in the squad car, the comment did not rise to the level of an “interrogation,” even
if it did elicit a response from Campbell-Scott. Most importantly, Campbell-Scott
was again advised of his Miranda rights at the police station prior to the interview,
and he agreed to speak to the officer; there is no evidence Campbell-Scott’s
decision was not knowingly, voluntarily, or intelligently made. Given the totality of
the circumstances, Campbell-Scott’s rights under Miranda were not violated.
Accordingly, Campbell-Scott’s trial counsel had no duty to file a motion to
suppress on this basis, see Ross, 845 N.W.2d at 698, and his claim of ineffective
assistance on this point fails as a matter of law.
C. Jury Instruction.
The jury was instructed:
The word “possession” includes actual as well as constructive possession, and also sole as well as joint possession. A person who has direct physical control of something on or around his/her person is in actual possession of it. A person who is not in actual possession, but who has knowledge of the presence of something and has the authority or right to maintain control of it either alone or together with someone else, is in constructive possession of it. If one person alone has possession of something, possession is sole. If two or more persons share possession, possession is joint.
See also Iowa Crim. Jury Instructions 200.47. Campbell-Scott asserts his trial
counsel was ineffective because he did not object to the jury instruction’s
omission of this sentence: “A person’s mere presence at a place where a thing is
found or proximity to the thing is not enough to support a conclusion that the
person possessed the thing.” Campbell-Scott maintains that because that 13
sentence was not included, the instruction was incorrect and authorized the jury
to find him guilty without the necessary proof. See Cashen, 666 N.W.2d a 572
(“A defendant’s mere proximity to contraband is insufficient to support a finding of
constructive possession.”). He argues his trial counsel had a duty to object to the
instruction, and he was prejudiced by that failure.
“In a criminal case, the district court is required to instruct the jury as to the
law applicable to all material issues in the case.” State v. Becker, 818 N.W.2d
135, 141 (Iowa 2012), rev’d on other grounds, Alcala v. Marriott Int’l, Inc., 880
N.W.2d 699, 708 (Iowa 2016). Though “trial courts should generally adhere to
the uniform instructions,” id. at 143, “the court is not required to give any
particular form of an instruction; rather, the court must merely give instructions
that fairly state the law as applied to the facts of the case.” State v. Edouard, 854
N.W.2d 421, 434 (Iowa 2014), rev’d on other grounds, Alcala, 880 N.W.2d at
708. “The validity and sufficiency of jury instructions are not evaluated in
isolation, but rather in context with other instructions as a whole.” State v.
Schuler, 774 N.W.2d 294, 297 (Iowa 2009). But, in the context of a claim that
counsel was ineffective for failing to preserve error, “the instruction complained of
[must be] of such a nature that the resulting conviction violate[s] due process.”
State v. Thorndike, 860 N.W.2d 316, 321 (Iowa 2015) (citations omitted).
Notably, while an argument that counsel failed to object to an erroneous jury
instruction has appeal, that appeal “is diminished in most situations where
practical considerations make it unlikely that the inclusion of a particular element
in the marshaling instruction would have produced any difference in the verdict of
the jury.” State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990). Consequently, 14
when such a claim is made, the defendant “must affirmatively demonstrate
counsel’s alleged deficiency undermines our confidence in the verdict and
therefore resulted in prejudice entitling him to a new trial, regardless of whether
his claim would require reversal if it were before [the court] on direct appeal.”
Thorndike, 860 N.W.2d at 321-22.
Here, viewing the instructions as a whole, we believe they fairly state the
law as applied to the facts of the case. Nevertheless, even if the instruction had
been altered following an objection by Campbell-Scott’s trial counsel, we are not
convinced on this record there is a reasonable probability the outcome of the
proceeding would have been different. As explained above, the evidence
provides circumstances from which the jury could lawfully infer Campbell-Scott
had knowledge of and dominion over a firearm—namely, his elusion of the police
and the presence of two guns found at the scene of the crash after he and his
passenger attempted to flee. This evidence is more than Campbell-Scott’s mere
proximity to the contraband found. Because Campbell-Scott has not affirmatively
demonstrated that the inclusion of the sentence in the instructions would have
produced any difference in the verdict of the jury, Campbell-Scott cannot
establish he was prejudiced by his counsel’s alleged failure. Accordingly, his
claim of ineffective assistance of counsel on this point fails as a matter of law.
D. Cumulative Error.
Finally, Campbell-Scott asserts a general claim that, when all of the errors
are considered together, the cumulative effect deprived him of a fair trial. See
Clay, 824 N.W.2d at 501 (“[I]f a claimant raises multiple claims of ineffective
assistance of counsel, the cumulative prejudice from those individual claims 15
should be properly assessed under the prejudice prong.”). Having found no merit
to Campbell-Scott’s underlying claims that his rights under Iowa Code section
804.20 and Miranda were violated, and having concluded he failed to establish
prejudice concerning the jury instruction, we reject his claim of cumulative error.
See id. at 501-02; see also State v. Artzer, 609 N.W.2d 526, 532 (Iowa 2000);
Wemark v. State, 602 N.W.2d 810, 818 (Iowa 1999).
IV. Conclusion.
Although the firearms were not found in Campbell-Scott’s physical
possession at the time of his arrest, viewing the facts in the light most favorable
to the State, we conclude there is substantial evidence from which the jury could
find one of the firearms was in Campbell-Scott’s constructive possession. We
find no merit to Campbell-Scott’s ineffective-assistance-of-counsel claims for
failure to file a motion to suppress because we find his underlying claims that his
rights under Iowa Code section 804.20 and Miranda were violated have no merit.
Additionally, we find Campbell-Scott failed to show he was prejudiced by his trial
counsel’s failure to object to the omission of proximity language in the jury
instruction because Campbell-Scott has not affirmatively demonstrated that the
inclusion of the sentence in the instructions would have produced any difference
in the verdict of the jury. We also reject his claim of cumulative error.
Accordingly, we affirm Campbell-Scott’s convictions.
AFFIRMED.