                   IN THE COURT OF APPEALS OF IOWA

                                      No. 19-0320
                                  Filed June 3, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAWARN LAMAR MONCRIEF,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse,

Judge.



      The defendant appeals his convictions and raises ineffective-assistance-of-

counsel claims. AFFIRMED.



      Shawn C. McCullough of Powell & McCullough, PLC, Coralville, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., May, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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BLANE, Senior Judge.

       Dawarn Lamar Moncrief appeals his convictions for possession with intent

to deliver methamphetamine, possession of contraband, and failure to possess a

tax stamp. His appeal is based solely on a claim of ineffective assistance of his

trial counsel for failing to take pre-trial depositions of the State’s witnesses and

failure to sufficiently cross-examine the State’s witnesses at trial. Because we find

the record inadequate to address these ineffective-assistance-of-counsel claims

on direct appeal, we preserve them for possible postconviction-relief proceedings

and affirm the convictions.

       I.     Factual and procedural background.

       On August 30, 2018, following a traffic stop, police searched a vehicle and

found four individual, tied-off plastic baggies containing a total of thirty-seven

grams of methamphetamine. The smaller bags were in a larger plastic bag within

a paper sack under the front passenger seat of the stopped vehicle. Moncrief was

in the rear passenger seat. In the front passenger seat was Casandra Lewis.

Lewis testified for the State at trial that Moncrief attempted to pass her the plastic

bag containing the methamphetamine as officers stopped the vehicle. When she

refused, he hid the bag in a paper sack under her seat. While patting down

Moncrief, an officer found a weighing scale in his pants pocket that had

methamphetamine residue on it.        When Moncrief was searched while being

booked into the jail, an officer discovered a plastic baggie containing

methamphetamine in Moncrief’s rectum.

       On September 11, the State filed a trial information charging Moncrief with

count I: possession of a controlled substance with intent to deliver,
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methamphetamine more than five grams, in violation of Iowa Code section

124.401(1)(b)(7) (2018); count II: possession of contraband, in violation of Iowa

Code section 719.7(3)(a) and 719.7(4)(b); and count III: failure to affix tax stamp,

in violation of Iowa Code section 453B.12. A jury trial was held on November 27

and 28, 2018, and Moncrief was convicted on all three counts. On February 19,

2019, Moncrief was sentenced to twenty-five years for Count I, five years for Count

II, and five years for Count III, with each sentence run concurrently. Moncrief

appeals.

      II.    Discussion.

      Because a claim counsel was ineffective implicates the constitutional right

to counsel, we review such claims de novo. State v. Ary, 877 N.W.2d 686, 704

(Iowa 2016) (citing State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012)). We resolve

a claim of ineffective assistance of counsel on direct appeal only when the record

is adequate. Clay, 824 N.W.2d. at 494.

      Moncrief claims his trial counsel was constitutionally ineffective 1 because

his attorney failed to take depositions before trial even though, as he now claims,

he had requested counsel depose witnesses, particularly Lewis. To prevail on a

claim of ineffective assistance of counsel, Moncrief must show counsel failed to

perform an essential duty and prejudice resulted. See id. at 495 (describing the

test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984)). When the


1 Our legislature recently amended Iowa Code section 814.7 to prohibit appeals
courts from addressing claims of ineffective assistance on direct appeal. See 2019
Iowa Acts ch. 140 § 31. But in State v. Macke, our supreme court determined this
amendment applies only prospectively and does not apply to cases that were
pending appeal on July 1, 2019, as this case was. 933 N.W.2d 226, 228 (Iowa
2019).
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record is inadequate to review the claim on direct appeal, we do not reach the

issue but allow the defendant to raise it in a separate postconviction-relief action.

State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011).

       Failure of defense counsel to depose State witnesses is not per se

ineffective assistance. A defense attorney may conclude that depositions are

unnecessary for a number of reasons, including “the element of surprise at trial.”

See Schnieder v. State, No. 17-1361, 2019 WL 141008, at *2 (Iowa Ct. App. Jan.

9, 2019). Further, Moncrief’s allegation in his brief that he requested his trial

attorney to depose the State witnesses is not supported in the record before us.

Based on the current record, we cannot determine if Moncrief made the request or

whether counsel had a reasonable justification for not taking depositions.

       Moncrief further argues that if his counsel had deposed Lewis, this would

have provided necessary information to more fully cross-examine her and also line

up witnesses to impeach her testimony, thereby casting doubt on her credibility.

At a minimum, the defendant’s counsel deserves a chance to explain any

perceived deficiencies in his performance. State v. Coil, 264 N.W.2d 293, 296

(Iowa 1978). Without further development of the record, we again are unable to

say that Moncrief’s attorney was ineffective in his cross-examination.

       The second prong Moncrief must establish is that trial counsel’s ineffective

assistance resulted in prejudice—that there was a reasonable probability of a

different outcome. Upon our review, we again find the record is inadequately

developed to allow such a determination in this appeal. We affirm Moncrief’s

convictions and preserve the ineffective-assistance-of-counsel issues for
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postconviction relief to allow full development of the record. See State v. Petty,

925 N.W.2d 190, 196 (Iowa 2019).

      AFFIRMED.
