This decision is published in table format in the North Western Reporter.
Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge. Jassimen Dobbins appeals from her conviction following a jury trial for delivery of a controlled substance and failure to possess a tax stamp.
Mark C. Smith, State Appellate Defender, Patricia Reynolds, Assistant Appellate Defender, and John D. Twillmann, Student Legal Intern, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Sean Corpstein, Student Legal Intern, John P. Sarcone, County Attorney, Stephan K. Bayens, Assistant County Attorney, for appellee.
Heard by Potterfield, P.J., and Doyle and Bower, JJ.
I. Background Facts and Proceedings .
In November 2011, the State filed a trial information charging Jassimen Dobbins with delivery of a class " C" controlled substance, MDMA, also known as ecstasy, in violation of Iowa Code section 124.401(1)(c)(8) (Supp. 2011). She was also charged with failure to possess a tax stamp, in violation of sections 453B.3 and .12 (2011). The minutes of testimony state that on June 14, 2011, a Des Moines police officer utilized a confidential informant (CI) to make a controlled purchase of purported MDMA from Dobbins.
According to the minutes, the CI went to the " mutually agreed upon location" to make the purchase from Dobbins, while officers surveilled the location. A surveilling officer observed a black female adult matching Dobbins's description waiting in the area of the agreed-upon location, and the officer observed the woman enter the front passenger seat of the CI's vehicle when it arrived. The CI and the woman had a short interaction, and then the woman exited the vehicle.
Officers met with the CI immediately thereafter, and the CI gave the officers a plastic bag containing eleven multicolored tablets identified as MDMA by the CI. The CI told the officers he observed Dobbins waiting for him to arrive at the previously agreed-upon location, and she then got into his vehicle. The CI stated he had a short conversation with Dobbins, and she then retrieved a plastic bag containing purported MDMA and sold it to him for an agreed-upon price. The CI stated Dobbins then got out of the vehicle and left the area. The CI was subsequently shown a photograph of Dobbins, and he positively identified Dobbins as the individual from whom he purchased the MDMA. The minutes do not detail whether the CI observed, or told the officers he observed, any specific features of Dobbins's appearance, such as hair color or tattoos.
Later, the substance purchased by the CI was tested and determined to be 1-benzylpiperazine (BZP), not MDMA. The State subsequently amended the trial information substituting BZP for MDMA to conform to the evidence.
Dobbins was arrested in October 2011 and jailed in the Polk County Jail. While in jail, she made a phone call to a friend. Their phone conversation was recorded. During the call, she explained that someone she knew gave the CI her number to purchase pills and " set her up." She admitted in the call she made the transaction, but she claimed it was not her " stuff" ; rather, she was asked to take it outside and serve the CI.
In April 2012, the State filed notices of additional witnesses. The State advised that an officer would testify concerning the content of Dobbins's recorded phone call, and that the CI would testify as to all observations he made of Dobbins and to the content of any conversation he had with Dobbins in the controlled transaction.
The CI was deposed by Dobbins at some point prior to trial. Thereafter, Dobbins requested the State to provide the CI's address. Dobbins also filed a subpoena duces tecum requesting the Des Moines Police Department provide " [a]ny and all documents, reports, photographs, video, notes and any other relevant documents relating to the investigation and/or arrest of [Dobbins]." In response, the State filed motions for a protective order and to quash the subpoena.
A hearing on the State's motions was held. There, Dobbins explained she needed the CI's address to subpoena evidence that was " directly relevant to [Dobbins's] defense." Specifically, she wanted to obtain " phone numbers of phones [the CI] was utilizing during the time in question for this offense" to acquire phone records. There was no further discussion as to how those numbers were relevant to Dobbins's charges. The State resisted providing Dobbins with the CI's address in order to insulate the CI from potential threats and intimidation. Additionally, the State noted it had already provided the CI to Dobbins for a deposition.
Following the hearing, the district court entered an order granting the State's motion for a protective order and quashing Dobbins's subpoena duces tecum. The court found Dobbins did not establish that the CI's address was necessary " for investigative purposes or to ensure service of a subpoena," and it concluded disclosure of the address, without any useful purpose, would put the CI at substantial risk, citing Iowa Rule of Criminal Procedure 2.11(12)(c).
A jury trial commenced in July 2012. The CI testified on behalf of the State. He testified he learned from a friend of Dobbins's that he could buy some MDMA from her, and he got her phone number from the friend. He testified he then called Dobbins to set up the buy, and she told him to come over. He described the buy. During cross-examination, the CI was questioned about a tattoo he described at his deposition. The CI admitted he said the person from whom he purchased the drugs had a tattoo of " this bitch" or " his bitch" on her thigh.
Polk County Jail Sergeant Steve Courtney testified as to the procedures for recording the calls of inmates, as well as the booking process when a person is arrested. On cross-examination by Dobbins, Courtney was asked if the tattoos of arrestees are recorded in any way by the jail. The State objected to the question being outside the scope of its direct examination, and the court sustained the objection.
The court and counsel then met outside the presence of the jury to make a record. Dobbins counsel explained:
The purpose of the witness Sergeant Steve Courtney is because he can lay the proper foundation for the booking records at the jail that show [Dobbins] doesn't have a tattoo as stated by the [CI].
The alternative . . . is that Ms. Dobbins can stand up, and we can show the jury her upper thigh to show there's no tattoo. And then I can photograph and submit those photographs into evidence.
The court was advised Dobbins was not planning on testifying at trial. The following exchange then occurred:
[THE COURT]: Then how do you intend to have her expose herself? Isn't that a form of testimony?
[DOBBINS'S COUNSEL]: That was my concern, Your Honor, that somehow the State would view it testimonial in nature and that that would open the door.
So then that's when I pursued the alternative option of getting the booking records from the Polk County Jail because that ...