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IN THE SUPREME COURT OF IOWA
No. 42 / 05-1625 Filed November 16, 2007 STATE OF IOWA, Appellee, vs. DAVID MICHAEL BOGGS, Appellant.

Appeal from the Iowa District Court for Cass County, James M. Richardson, Judge.

Defendant appeals conviction for possession of methamphetamine with intent to deliver. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and Daniel Feistner, County Attorney, for appellee.

2 CADY, Justice. In this appeal, we must interpret a statutory provision relating to double jeopardy to determine if a defendant can be subjected to a retrial for a greater offense after reversal of a conviction for a lesser offense, when the greater offense was originally charged but dismissed during the first prosecution as part of an agreement between the parties in which the defendant waived a jury trial and agreed to a trial on the minutes of testimony on the lesser offense. On our review of this issue, as well as the other claims raised on appeal, we affirm the judgment and sentence of the district court. I. Background Facts and Proceedings. The relevant facts of this case date back to January 10, 2003, when law enforcement officers executed a search warrant at the residence of David Boggs in Atlantic, Iowa. The officers suspected Boggs was engaged in drug dealing and obtained a search warrant after gathering incriminating evidence from the trash left outside the residence. After entering the

residence, officers discovered Boggs seated at a desk in a room of the basement. He was startled by their unsuspected entry into the room. A large quantity of methamphetamine could be observed on the desk, and Boggs was dividing it into smaller quantities with the aid of his driver's license. There was also a chunk of methamphetamine in a plastic bag located on the desk. The quantity of methamphetamine in the bag was consistent with an amount frequently sold by drug dealers, known as an "eight ball." Officers also observed numerous accoutrements of drug use and dealing, including a razor blade, burnt foil, rolling papers, duct-taped pouch, and digital scale. There was also a bong and a "snort tube" in the area. Boggs had thirty-nine, twenty-dollar bills in his wallet. Surveillance cameras were located outside the house that allowed the occupants to

3 monitor activities outside the house on a television screen. A stash of marijuana and another bong were located in a nearby bedroom that Boggs shared with a woman. One chunk of methamphetamine found on the desk weighed 58.66 grams. The estimated street value of the methamphetamine was in excess of $6000. The "eight ball" found in the plastic bag weighed 3.25 grams. The stashes of marijuana in the bedroom weighed 7.30 grams, 2.52 grams, and 1.02 grams. Boggs was arrested and transported to jail. He was given his Miranda rights and signed a written waiver of those rights. During the course of a subsequent interview by an officer, Boggs acknowledged ownership of the methamphetamine and marijuana found in the basement. He said he obtained the methamphetamine from a person in Council Bluffs. There were also discussions between Boggs and the officer during the interview about a possible plea agreement in exchange for helpful information, and the officer spoke to the county attorney on the telephone. However, a plea bargain never materialized. Boggs was later charged by a two-count trial information. Count I charged Boggs with possession of marijuana in violation of Iowa Code section 124.401(5) (2001). Count II charged Boggs with possession of

methamphetamine (more than five grams) with intent to deliver and within 1000 feet of a public park, a class "B" felony, enhanced as a second or subsequent offender in violation of sections 124.401(1)(b)(7), 124.401A, and 124.411. Boggs eventually accepted an offer by the State to dismiss the charge of possession of marijuana and reduce Count II of the trial information to charge possession of methamphetamine (less than ten grams) with intent to deliver, a class "C" felony, enhanced as a second or subsequent offender. In

4 return, Boggs agreed to waive a jury trial and be tried to the court on the minutes of testimony. The parties contemplated this procedure would

preserve Boggs' right to appeal three claims of error: a ruling by the district court on a motion to suppress, rulings by the trial court on his request for self-representation, and the sufficiency of evidence to support a finding of guilt. At the trial on the minutes of testimony, the district court briefly questioned Boggs about the agreement before finding him guilty of the charge in the amended trial information. Boggs was then sentenced to a term of incarceration not to exceed thirty years and was fined in the amount of $1000. He filed a timely notice of appeal. During the pendency of the appeal, the State moved for summary reversal of the judgment and sentence. We granted the motion and

remanded the case for a new trial, based on a finding that the record in the case revealed the district court failed to make a valid inquiry into Boggs' request to waive counsel and represent himself. On remand, the State sought to pursue the original class "B" felony charge of possession with intent to deliver methamphetamine. Boggs filed a pretrial motion and claimed a new trial on the original charge under Count II would violate the double jeopardy provisions of Iowa Code section 811.3(3) because the crime of conviction from the first trial was a lesser included offense of the original class "B" possession of methamphetamine with intent to deliver charge. The district court overruled Boggs' motion, and the case proceeded to a jury trial on the original charges. The officers who executed the search warrant and interviewed Boggs after his arrest testified at trial. This testimony revealed Boggs was

discovered cutting methamphetamine into saleable quantities in a room in his residence set up for that purpose. It also revealed Boggs admitted

5 ownership of the drugs after his arrest. Defense counsel objected to the admissions, claiming they were inadmissible plea negotiations. To support the objection, defense counsel conducted a voir dire examination of the officer who interviewed Boggs, but the questioning failed to elicit any facts to show the admissions were made in conjunction with the plea discussions. The State presented other evidence of guilt and later

submitted evidence of Boggs' prior drug convictions to support the repeatoffender element of the charge. Following the submission of the evidence at the trial, the district court instructed the jury. One instruction informed the jury how to consider evidence of Boggs' character and reputation for drug use. This instruction told the jury they could consider Boggs' "good character or reputation" in determining the probability or lack of probability of his guilt of the crime. Defense counsel failed to object to the instruction, even though Boggs never introduced any evidence of his good character. During closing arguments, the prosecutor repeatedly mentioned the charge of possession of methamphetamine with intent to deliver in the context of the "community" and the distribution of drugs into the "community." In response to defense testimony at trial that contradicted some of the testimony of the officers who had testified at trial, the prosecutor also told the jury the officers had no reason to lie, and they told the truth. The jury found Boggs guilty of possession of marijuana and possession of methamphetamine with intent to deliver, as charged in the original indictment. Prior to sentencing, trial counsel for Boggs filed a motion to withdraw. This occurred after Boggs filed a statement with the district court listing his claims of ineffective assistance of counsel. The district court questioned

6 Boggs and his attorney before ruling on the motion. Boggs told the court it did not "really matter" to him if trial counsel continued to represent him. However, trial counsel expressed his belief that he was no longer able to zealously represent Boggs or speak on his behalf at sentencing due to his complaints of ineffective assistance of counsel. The district court overruled the motion, and the case proceeded to sentencing. The district court

sentenced Boggs to an indeterminate term of imprisonment not to exceed seventy-five years, with a mandatory one-third minimum period of confinement and a fine of $15,000. Prior to pronouncing sentence, the court gave Boggs and his attorney an opportunity to speak. Boggs

submitted a written statement in mitigation of punishment, as well as a letter of support and other written documentation of mitigation. Counsel for Boggs only reiterated his belief that it was "not appropriate" to address the court. On appeal, Boggs raises four grounds of error. First, he claims it was error to be reprosecuted on the original charge following the reversal of his original conviction. Second, he claims the district court erred in admitting his incriminating statements made to police. Third, he claims the district court erred by failing to appoint substitute counsel at the sentencing hearing. Finally, he claims trial court provided ineffective assistance during the trial. II. Standard of Review. The district court's interpretation of a statute must be reviewed for errors at law. Iowa R. App. P. 6.4; State v. Francois, 577 N.W.2d 417, 417 (Iowa 1998) ("We review the trial court's interpretation of statutes for errors of law."). To the extent Boggs raises constitutional questions, our review is de novo. Taylor v. State, 351 N.W.2d 532, 535 (Iowa 1985). We review claims of ineffective assistance of counsel de novo. State v. Tejeda, 677

7 N.W.2d 744, 753 (Iowa 2004). We normally review claims of error in the admission of evidence for abuse of discretion. State v. Rodriguez, 636

N.W.2d 234, 239 (Iowa 2001). However, when admission of evidence turns on interpretation of a statute, we review for errors of law. State v. Kjos, 524 N.W.2d 195, 196 (Iowa 1994). III. Double Jeopardy. The right to be free from double jeopardy is rooted deeply in our common law and assumes a familiar and prominent position in our state and federal constitutions. See generally Jay A. Sigler, Double Jeopardy 1

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