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State of Iowa v. Fernando Hernandez

April 10, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
FERNANDO HERNANDEZ, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.

The opinion of the court was delivered by: Tabor, J.

Hernandez appeals from his convictions of several drug-related charges. AFFIRMED.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

A jury found Fernando Hernandez guilty of three drug-related offenses based largely on the testimony of two accomplices who cooperated with law enforcement by recording their phone conversations. On appeal, he contends the State did not sufficiently corroborate their testimony that he was involved in the crimes. He also contends the district court abused its discretion in providing the jurors with a compact disc (CD) player so that they could listen to the recorded evidence during their deliberations.

Finding sufficient independent evidence to corroborate Hernandez's identity and participation in the conspiracy, we affirm the district court's denial of his motion for judgment of acquittal. We also conclude the trial court acted within its discretion in allowing the jury access to a CD player to review phone calls during its deliberations, as the recordings were properly admitted into evidence and not testimonial in nature. Accordingly, we affirm.

I. Background Facts and Proceedings

Dale Campbell met Hernandez-who he knew as Michael-sometime in 2008 when he sold Hernandez his uncle's car. Hernandez asked Campbell if he wanted to sell methamphetamine for him. Campbell agreed and thereafter had contact with Hernandez every ten days to two weeks. Most of the time they met in person, but sometimes another person would collect money from Campbell and supply him with methamphetamine. Campbell also had frequent phone contact with Hernandez.

In 2009, the police arrested Campbell for possession of marijuana with intent to deliver. It was not his first drug-related arrest. Knowing he faced incarceration, Campbell decided to cooperate with law enforcement. He agreed to record his phone calls with Hernandez beginning in February 2010.

In a phone call recorded on February 4, 2010, Campbell arranged to purchase one ounce of methamphetamine from Hernandez. Rodney Rocha delivered the methamphetamine. Campbell also recorded a call to Hernandez after the delivery, confirming he had received the methamphetamine. Hernandez was concerned that the police were watching him, and he told Campbell that he did not want anyone to see them together.

In a phone call recorded on February 8, 2010, Campbell asked Hernandez about depositing a payment for the methamphetamine. Hernandez said he would send his daughter to collect the money. The two also discussed driving to Salt Lake City to get more methamphetamine. Hernandez wanted Campbell to round up a group of buyers to pool their money for a larger purchase.

The defendant's daughter, Erica Hernandez, collected the money from Campbell. After leaving his residence, law enforcement officers stopped her vehicle and discovered she possessed two hundred dollars in cash. Officers followed Erica to a car stereo installation business where they discovered money marked for drug buys in the cash register.

In a series of recorded conversations, Campbell expressed his interest in buying a larger amount of methamphetamine. Hernandez told Campbell he would sell him three pounds of methamphetamine, indicating he would call back with details. The next day, Hernandez asked Campbell if he needed any marijuana and also spoke of selling "ice"-a street name for methamphetamine. In a subsequent call, the men discussed the price of $20,000 for one pound of methamphetamine and Campbell said he had that much cash on hand. Hernandez told Campbell to be ready for a delivery. Hernandez also related concern about the delivery person getting arrested. He told Campbell to wire money via Western Union, giving the name "Fernando Hernandez Puga" as the recipient of the money.

Hernandez called Rocha and told him a load of methamphetamine would be transported to Des Moines in the hidden compartment of a truck. Upon its arrival, Rocha called Hernandez, who told him to deliver the methamphetamine to Campbell. Meanwhile, Hernandez called Campbell to tell him Rocha would be delivering the methamphetamine and to expect a phone call from Rocha to schedule delivery.

At the appointed time, Rocha brought Campbell 616 grams-nearly one and one-half pounds-of methamphetamine in an ice cream pail. At Campbell's signal, police arrested Rocha. Like Campbell, Rocha decided to cooperate with law enforcement. Rocha had started working for Hernandez about six months earlier, agreeing to deliver methamphetamine and pick up money for him. A search of Rocha's home yielded digital scales, baggies, and a drug ledger noting a transaction with "Erica," Hernandez's daughter. Rocha had met Hernandez only once in person, but they had frequent phone ...


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