                    IN THE COURT OF APPEALS OF IOWA

                                 No. 17-1443
                           Filed November 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHARLES PAUL PHIPPS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Poweshiek County, Randy S.

DeGeest, Judge.



      Defendant appeals his conviction for possession of methamphetamine,

third offense. AFFIRMED.




      Christopher A. Clausen of Clausen Law Office, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.




      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

       Charles Phipps appeals his conviction for possession of methamphetamine,

third offense. We find Phipps has not shown the district court abused its discretion

in denying his motion for new trial based on his claims he was required to wear

jail-issued footwear for the trial, there was newly discovered evidence someone

else manufactured methamphetamine at his former residence, or the State failed

to disclose exculpatory evidence. We affirm Phipps’s conviction for possession of

methamphetamine, third offense.

       I.     Background Facts & Proceedings

       On March 22, 2017, police officers went to a residence in Grinnell in

response to a report of a disturbance. Officers determined Phipps was in violation

of a no-contact order because the protected party was also in the home. Officers

arrested Phipps for violating the no-contact order. As he walked out to a patrol

car, officers noticed Phipps had a white fabric rose stuck in one of his cowboy

boots. Phipps stomped his foot and the flower fell out. Phipps told the officers,

“Leave it where it lies.” An officer picked up the flower and put it into an evidence

bag. As part of the booking process, the jailer emptied out the evidence bag and

a small plastic baggie of methamphetamine came out, as well as the flower.

       Phipps was charged with possession of methamphetamine, third or

subsequent offense, in violation of Iowa Code section 124.401(5) (2017), a class

“D” felony. The State claimed the baggie of methamphetamine had been hidden

within the petals of the white fabric rose. A lab report showed the substance in the

baggie was .15 grams of methamphetamine.
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       Prior to trial, Phipps filed a motion requesting a clothing allowance of “an

amount not to exceed $100.00 in order to obtain appropriate clothing for trial.” The

State resisted the request. At the hearing on the motion, defense counsel stated

Phipps had decorated his boots with swastikas and they would not be appropriate

for trial. The court stated,

               First of all, I wouldn’t allow him to wear—in my courtroom I
       wouldn’t allow him to wear boots that have swastikas on them. If
       that’s true he will have to have other shoes. I am not going to allow
       him to subject our jurors to that as a matter of courtroom decorum.

The prosecutor stated, “[T]he defendant has been provided by the jail flip-flop style

shoes that are black in color, and those have been worn by other defendants who

have been in custody for a trial.” The court recommended defense counsel go to

Goodwill to get clothing for Phipps at no or minimal cost. The court denied the

motion for a clothing allowance.

       The case proceeded to trial on June 13, 2017. Phipps was identified in the

courtroom by Officer Nathan Anderson, as follows, “He's seated at the far right

table wearing a checkered long-sleeved shirt with black pants and slippers or flip-

flops.” The jury found Phipps guilty of possession of methamphetamine. Phipps

stipulated this was a third or subsequent offense.1

       Phipps filed a motion for new trial, claiming there was newly discovered

evidence which cast doubt on his conviction or the State suppressed exculpatory

evidence within the meaning of Brady v. Maryland, 373 U.S. 83, 87 (1963). At the

hearing on the motion, Phipps stated after he was arrested on March 22, 2017, the



1
  Although the issue was not raised in this appeal, we note the plea colloquy requirements
established in State v. Harrington, 893 N.W.2d 36, 45–46 (Iowa 2017).
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State conducted a search warrant at his home on April 30, 2017, and arrested Gary

Dayton, who also lived in the home, for manufacturing methamphetamine. Dayton

pled guilty and was sentenced prior to Phipps’s motion for new trial. Phipps

claimed he should be granted a new trial so he could argue the methamphetamine

found in the flower actually belonged to Dayton.

      At the hearing, defense counsel also stated:

             There’s another matter which I wish to bring up, which I
      noticed when I talked to Mr. Phipps about his foot gear, and at the
      time of trial Mr. Phipps had wanted to wear his boots which had
      swastikas painted on them, and the Court prohibited that. I seem to
      remember Mr. Phipps wearing flip-flops like the ones he’s wearing
      now. They were not orange, like I thought jail flip-flops would be, but
      I have some concerns because that is a prison or jail time uniform,
      and Mr. Phipps has a right to all the presumptions of and the
      appearance of innocence walking into court.
             Just like he couldn’t appear in front of the jury wearing this, I
      don’t think he can appear in front of the jury wearing any other
      aspect.

      The district court denied the motion for new trial. The court found the

evidence Dayton had pled guilty to manufacturing methamphetamine would not

materially affect the outcome of Phipps’s criminal trial. The court found “there was

evidence that established beyond a reasonable doubt that Mr. Phipps was guilty

as charged.” On the matter of Phipps’s footwear, the court found:

      There was no objection made to any of that clothing on the date of
      the trial. I can’t sit here and tell you what his shoes were that date,
      but I know if they had been orange, you would have objected, sir.
      And I thought he looked quite nice actually the day of the trial, so I
      don’t believe that ground has been established at all.

      Phipps was sentenced to a term of imprisonment not to exceed five years.

Phipps now appeals his conviction.
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       II.     Standard of Review

       “Trial courts have wide discretion in deciding motions for new trial.” State

v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). “When the district court exercises its

discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable, an abuse of discretion occurs.” State v. Dudley, 856 N.W.2d 668,

675 (Iowa 2014).

       III.    Footwear for Trial

       Phipps claims he should have been granted a new trial because the district

court improperly required him to wear jail shoes for the trial.2 The court ruled

Phipps could not wear his own footwear for the trial, which were cowboy boots

decorated with swastikas, “as a matter of courtroom decorum.” See State v.

Lawrence, 167 N.W.2d 912, 914 (Iowa 1969) (stating a court has the inherent

power to impose decorum in the courtroom). Phipps wore footwear provided by

the jail during his criminal trial. Phipps claims he was denied a fair trial because

the court denied his request for a clothing allowance and would not permit him to

wear his boots.

       We first note Phipps never stated he wanted to wear his cowboy boots for

the trial. In support of the motion requesting a clothing allowance, defense counsel

specifically argued it would be prejudicial for Phipps to appear in the cowboy boots

with swastikas on them and this was the reason he wanted a clothing allowance

to purchase different footwear. The issue of whether Phipps was denied a fair trial

because he was prohibited from wearing his cowboy boots was not raised before


2
   The footwear worn by Phipps during the trial is described variously as slippers, sandals,
or flip-flops.
                                          6


the district court. We conclude this issue has not been preserved for our review.

See State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995) (noting issues must be

raised at the earliest opportunity in order to preserve error, even constitutional

issues).

       We turn then to the issue of whether Phipps was denied a fair trial because

he wore footwear issued by the jail. We have previously stated:

                Defendants are entitled to the indicia of innocence in the
       presence of the jury. The state cannot compel a defendant to stand
       trial in identifiable prison clothing. Requiring a defendant to appear
       in prison clothing creates an unacceptable risk the jury may
       consciously or subconsciously be influenced in their deliberations.
       The practice is, therefore, inherently prejudicial.

State v. Johnson, 534 N.W.2d 118, 126 (Iowa Ct. App. 1995) (citations omitted);

see also Estelle v. Williams, 425 U.S. 501, 512 (1976) (noting “the State cannot,

consistently with the Fourteenth Amendment, compel an accused to stand trial

before a jury while dressed in identifiable prison clothes”).

       While Phipps wore footwear provided by the jail for his criminal trial, the

evidence does not show his footwear could be described as “identifiable prison

clothing.” See Estelle, 425 U.S. at 512; Johnson, 534 N.W.2d at 126. During the

trial, Officer Anderson testified Phipps was wearing “a checkered long-sleeved

shirt with black pants and slippers or flip-flops.” In the motion for a new trial,

defense counsel stated, “I seem to remember Mr. Phipps wearing flip-flops like the

ones he’s wearing now. They were not orange, like I thought jail flip-flops would

be, but I have some concerns because that is a prison or jail time uniform . . . .”

Additionally, the district court stated, “I can’t sit here and tell you what his shoes
                                            7


were that date, but I know if they had been orange, you would have objected, sir.

And I thought he looked quite nice actually the day of the trial . . . .”

         We conclude the district court did not abuse its discretion in denying

Phipps’s motion for new trial on the ground he was improperly required to wear

footwear provided by the jail for his trial. Phipps did not provide any evidence to

show he was required to stand trial in identifiable prison clothing and, thus, has not

shown he was prejudiced by the footwear he wore for the trial. See id.

         IV.    Newly Discovered Evidence

         Phipps claims the district court abused its discretion by denying his motion

for new trial based on a claim of newly discovered evidence. He claims the

execution of a search warrant at his former residence thirty-nine days after his

arrest    and    the   subsequent      conviction   of   Dayton     for     manufacturing

methamphetamine cast doubt on his guilt. Phipps states he should have a new

trial, where he could argue the methamphetamine found in the white flower

belonged to Dayton.

         In order to prevail on a motion for new trial based on a claim of newly

discovered evidence, a defendant must show:

         (1) that the evidence was discovered after the verdict; (2) that it could
         not have been discovered earlier in the exercise of due diligence; (3)
         that the evidence is material to the issues in the case and not merely
         cumulative or impeaching; and (4) that the evidence probably would
         have changed the result of the trial.

Moon v. State, 911 N.W.2d 137, 151 (Iowa 2018) (quoting Jones v. State, 479

N.W.2d 265, 274 (Iowa 1991)). A defendant must establish all four elements. See

State v. Smith, 573 N.W.2d 14, 21 (Iowa 1997) (discussing the third and fourth
                                       8

elements); State v. Jefferson, 545 N.W.2d 248, 249 (Iowa 1996) (discussing only

the first two elements).

       We will discuss only the fourth element—whether the evidence probably

would have changed the result of the trial. We find the evidence a search warrant

was executed at Phipps’s former residence over a month after he was arrested

and another person living in the residence, Dayton, was convicted of

manufacturing methamphetamine does not cast doubt on Phipps’s guilt. The

action against Phipps was not based on a theory of constructive possession of

methamphetamine, where Phipps could have argued the methamphetamine

belonged to someone else in the home. See State v. Reed, 875 N.W.2d 693, 705

(Iowa 2016) (noting in a theory of constructive possession when premises are

jointly occupied, evidence must be presented to show a defendant had control of

the contraband). The State claimed Phipps had actual possession, based on the

theory the methamphetamine was inside the white flower, which had been inside

Phipps’s boot. See State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (stating a

theory of actual possession applies when contraband is “found on the defendant’s

person”).

       The evidence Dayton had been manufacturing methamphetamine in the

residence where Phipps had been living does not change the analysis of the

evidence concerning Phipps’s actual possession of the methamphetamine found

when he was booked into jail. We conclude the district court did not abuse its

discretion in denying Phipps’s motion for new trial based on a claim of newly

discovered evidence.
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       V.     Exculpatory Evidence

       Phipps claims the district court should have granted his motion for new trial

on the ground the State failed to disclose exculpatory evidence. The evidence he

refers to is the same evidence discussed above—the execution of a search

warrant at his former residence and the subsequent conviction of Dayton for

manufacturing methamphetamine.

       Under Brady, 373 U.S. at 87, “the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” A Brady violation occurs when the State withholds

material evidence, which is favorable to the accused. See Cornell v. State, 430

N.W.2d 384, 385 (Iowa 1988). “Favorability in the context of Brady means that

had the prosecution disclosed the suppressed evidence and had the defense used

such evidence effectively, ‘it [might have made] the difference between conviction

and acquittal.’” Moon, 911 N.W.2d at 145 (citation omitted). “Evidence is material

when ‘there is a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different.’” State v.

Jones, 817 N.W.2d 11, 22 (Iowa 2012) (citation omitted).

       In our discussion of newly discovered evidence, we concluded the evidence

the State executed a search warrant at Phipps’s home and arrested Dayton for

manufacturing methamphetamine probably would not have changed the result of

the trial. For the same reason, we determine the evidence is not material. Phipps

has not shown a probability that if the evidence had been disclosed to him, the

result of trial would have been different. See id. The evidence someone else was
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manufacturing methamphetamine in his home did not make it less likely Phipps

was in actual possession of the methamphetamine found with his belongings in

the booking process at the jail. We find the district court did not abuse its discretion

in denying Phipps’s motion for new trial based on the claim the State failed to

disclose exculpatory evidence.

       We affirm Phipps’s conviction for possession of methamphetamine, third

offense.

       AFFIRMED.
