Clay Thomas Paulson v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-1163
Filed May 25, 2022

CLAY THOMAS PAULSON,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Boone County, John R. Flynn,

Judge.

Clay Paulson appeals the denial of his application for postconviction relief.

AFFIRMED.

Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.

Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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VAITHESWARAN, Judge.

The State charged Clay Paulson with several crimes arising from a traffic

stop in Boone, Iowa, and an inventory search of a backpack in the vehicle. A jury

found Paulson guilty of possession of a controlled substance with intent to deliver,

a tax-stamp violation, and possession of a prescription drug without a prescription.

The court of appeals affirmed the findings of guilt as well as the district court’s

conclusion that the probative value of certain text messages outweighed the

prejudicial effect. State v. Paulson, No. 17-2097, 2018 WL 6706221, at *1–2 (Iowa

Ct. App. Dec. 19, 2018). The court preserved for postconviction relief Paulson’s

contention that the messages constituted inadmissible hearsay evidence. Id. at *2.

Paulson filed a postconviction-relief application alleging his trial attorney

was ineffective (1) in failing to “properly object to hearsay regarding” the text

messages and properly preserve the issue for appellate review and (2) in failing to

“file a motion to suppress” under State v. Ingram, 914 N.W.2d 794 (Iowa 2018), on

the ground that “law enforcement searched a bag/backpack as part of an inventory

search and did not first obtain a warrant.” The postconviction court denied the

application following an evidentiary hearing.

On appeal, Paulson reprises the same two arguments. To prevail, he must

show (1) deficient performance and (2) prejudice. See Strickland v. Washington,

466 U.S. 668, 687 (1984). “To establish the first prong, [he] must show [] counsel

‘made errors so serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment.’” State v. Brown, 930 N.W.2d

840, 855 (Iowa 2019) (quoting Strickland, 466 U.S. at 687). To establish the

second prong, he “must prove by a reasonable probability that, but for counsel’s
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failure to perform an essential duty, the result of the proceeding would have been

different.” State v. Booth-Harris, 942 N.W.2d 562, 577 (Iowa 2020); accord State

v. Boothby, 951 N.W.2d 859, 865 (Iowa 2020) (“To meet the prejudice prong of his

ineffective-assistance claim, [the defendant] would have to show that without [the

exhibits], the jury would have had reasonable doubt about his guilt.”). Our review

is de novo. See State v. Doolin, 942 N.W.2d 500, 507 (Iowa 2020).

I. Hearsay – Text Messages

Three of the four text messages Paulson challenges on appeal—

Exhibits 10, 11, and 14—were drafted by a passenger in the vehicle. At trial, an

officer testified the exhibits colloquially referenced methamphetamine, money, and

the drug ecstasy. The fourth challenged message—Exhibit 12—was a text from

Paulson to the passenger stating they could “drink smoke and blow lines.” The

officer opined, “Based on the totality of everything, including the backpack, the

messages and the prior interaction amongst them, it appeared that Mr. Paulson

was engaged in selling various controlled substances.” The trial court overruled

objections to the exhibits without explicitly addressing defense counsel’s hearsay

objection. For the following reasons, we conclude there is no reasonable

probability that the outcome would have been different had counsel succeeded in

having the text messages excluded on hearsay grounds.

First, the district court instructed the jury to disregard references to

methamphetamine. The instruction was as follows: “There was testimony of

methamphetamine. . . . The defendant in this case is not charged with anything

related to methamphetamine, so you are instructed not to consider that testimony

against the defendant or to use it against the defendant in your deliberations in the
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case.” Although the instruction preceded the officer’s summary of the text

message containing a methamphetamine reference, it was generic enough to

apprise the jury that methamphetamine use, delivery, or intent to deliver was not

an issue. See State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010) (“We presume

juries follow the court’s instructions.”).

Second, the text messages and the officer’s characterization of their import

were cumulative of duly admitted testimony establishing Paulson’s intent to deliver.

As noted on direct appeal, Paulson was seated in the front passenger seat of the

vehicle that was stopped. Paulson, 2018 WL 6706221, at *1. Officers seized a

backpack in that vicinity. Id.1 At trial, the Boone police chief testified to the

contents of the backpack, which included “a sealed storage container” with “some

other pills that were individually packaged into small baggies.” An officer explained

why the baggies were important. In his words, “the way I see narcotics packaged

are generally in those small you call them Ziploc baggies . . . .” He stated the

baggies appeared to be “[n]ew.” He also testified that 176 pills were found in the

backpack.

Third, although one of the messages referred to ecstasy, which was not

among the drugs found in the backpack, Paulson’s attorney vigorously cross-

examined the officer on this point, mitigating the prejudicial effect of the reference.

1 In an appeal from separate convictions for suborning perjury and solicitation to
suborn perjury, the court of appeals concluded, “[T]he State failed to prove the
woman’s statement to the police officer concerning Paulson’s possession of a
starred backpack was admissible under the forfeiture-by-wrongdoing exception to
the hearsay rule. Because the evidence was inadmissible, we reverse and remand
for a new trial.” State v. Paulson, No. 17-1668, 2019 WL 1486395, at *5 (Iowa Ct.
App. Apr. 3, 2019).
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Because Paulson did not establish that he was prejudiced by counsel’s

failure to obtain a ruling on his hearsay objection, we affirm the postconviction

court’s denial of his ineffective-assistance-of-counsel claim.

II. Failure to File Suppression Motion – State v. Ingram

The supreme court addressed the constitutionality of warrantless inventory

searches in State v. Ingram, 914 N.W.2d 794 (Iowa 2018). The court held that

“[e]ven if . . . the police were entitled to seize the car,” “absent a knowing and

voluntary consent,” a search of a “bag—a closed container” found in the car “was

impermissible.” Ingram, 914 N.W.2d at 820. The court instructed:

Absent specific consent to search them, . . . police must
inventory closed containers left behind in the vehicle as a unit . . . .
Specifically, the police should advise the owner or operator of the
options to impoundment; personal items may be retrieved from the
vehicle; and if the vehicle is impounded, containers found within the
vehicle will not be opened but stored for safekeeping as a unit unless
the owner or operator directs otherwise.

Id. (internal citations omitted).

On appeal, Paulson contends “[t]he warrantless search” of his backpack,

“no matter what title given to it by the State of Iowa, violated both federal and state

constitutional law.” His broad assertion that the search fell outside any “of the

narrowly drawn exceptions to the warrant requirement” was not decided by the

postconviction court. The court limited its discussion to Ingram. We will do the

same.

The postconviction court concluded:

At the time of Mr. Paulson’s jury trial, . . . the Boone Police
Department’s impoundment policy and inventory policy, including
searches of containers within a vehicle, was permissible under Iowa
law. Trial counsel did not have to predict the future to be effective
and he certainly did not have the luxury of a crystal ball to foresee
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the titanic shift in the law at the time of his representation of Mr.
Paulson that was months away.

(Citations omitted.) The court’s reasoning finds support in the testimony of

Paulson’s experienced trial attorney, who stated he “did not see that as a legal

issue since it was common practice up until Ingram . . . to allow evidence in an

inventory search to come in as long as they could lay proper foundation” and “it

was . . . settled law or fairly settled that stuff found in inventory” was “admissible.”

On our de novo review, we fully concur in the court’s conclusion. See Doolin, 942

N.W.2d at 507 (stating “counsel will not be found ineffective for a lack of

‘clairvoyance’” (quoting Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008)));

Brown, 930 N.W.2d at 855 (noting counsel is “not required to predict changes in

the law”).

We affirm the postconviction court’s denial of Paulson’s postconviction-

relief application.

AFFIRMED.