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State v. Keys

Court of Appeals of Iowa

May 3, 2017

STATE OF IOWA, Plaintiff-Appellee,
JASON SHIMAR KEYS, Defendant-Appellant.

         Appeal from the Iowa District Court for Cerro Gordo County, Rustin T. Davenport, Judge.

         Defendant appeals his conviction of delivery of methamphetamine in violation of Iowa Code section 124.401(1)(c)(6) (2014) following a jury trial and the district court's order substituting new State's exhibits 1, 7, and 8. AFFIRMED IN PART AND REMANDED WITH DIRECTIONS.

          Dylan J. Thomas of Dylan J. Thomas, Attorney at Law, Mason City, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J. [*]

          POTTERFIELD, Presiding Judge.

         Jason Keys appeals his conviction of delivery of methamphetamine, in violation of Iowa Code section 124.401(1)(c)(6) (2014), following a jury trial and the district court's order following the State's motion for bill of exceptions substituting State's exhibits 1, 7, and 8. He argues the court erred in multiple rulings and trial counsel was ineffective. He also argues the court erred in ruling that the State's substitute exhibits 1 and 8 were accurate copies of the originals. We remand for the district court to apply the correct standard in its ruling on the motion for new trial and preserve his ineffective-assistance-of-counsel claims for postconviction relief.

         I. Background Facts and Proceedings

         On December 4, 2014, a confidential informant, Jonathan Hjelle, notified Frank Hodak, Sheriff's Deputy and North Central Iowa Drug Task Force investigator, that he could purchase one gram of methamphetamine from Jason Keys later that day. Hodak then assembled other members of the task force to conduct a controlled buy.

         In preparation for the buy, Hodak met Hjelle at a predetermined location, searched him, fitted him with a digital recorder and live audio wire, and provided him with one hundred and thirty dollars in pre-recorded buy money. Hjelle then contacted Keys through text messages to confirm the transaction. Hjelle testified that he walked to the house where Keys was located and met Keys in the back bedroom. He stated that he sat down, handed Keys the money, and after Keys commented on an older, crisp fifty-dollar bill, Keys handed the methamphetamine to him. The members of the task force, including Hodak, surveilled the activities visually through a window and through the live audio wire. During the transaction, the audio recording revealed that Keys referenced an "old school" fifty-dollar bill, which was part of the buy money.

         After the purchase, Keys and Hjelle went outside to meet two individuals in a truck. The individuals were interested in trading a stolen bike for methamphetamine, but no transaction took place. Hodak testified that he recognized Keys's distinctive voice on the live audio wire from prior encounters and he could hear Keys explain to the individuals in the truck that he was wearing a facemask because he had active warrants. Hodak also testified that he visually recognized Keys when he exited the building even though Keys was wearing a half ski mask that partially covered the bottom portion of his face.

         Following the purchase, Hjelle returned a small bag of a white, crystal substance to Hodak. Hodak field-tested the substance, which tested positive for methamphetamine. Laboratory testing later confirmed the substance was .81 grams of methamphetamine. An arrest warrant was issued for Keys, and in May 2015, he was arrested for delivery of methamphetamine. During a recorded post-arrest interview, Hodak read Keys his Miranda rights, explained the charge was related to a controlled buy on December 4, 2014, and indicated that Keys had "options." Hodak advised Keys that he was interested "in moving up the chain" and buying from "other people." Hodak stated, "We know that you middled the deal, " and Keys responded affirmatively. Hodak then stated, "We want to move up the ladder" and would talk to the county attorney to "make the charges go away" if Keys assisted with controlled buys.

          On June 2, 2015, the State charged Keys with one count of delivery of methamphetamine, in violation of Iowa Code section 124.401(1)(c)(6), and as an habitual felony offender, as defined under section 902.8 and 902.9(1)(c). Keys filed a motion to suppress evidence arguing, in part, the post-arrest interview should be excluded from trial under Iowa Rule of Evidence 5.408, as the interview included the officer discussing working with prosecutors to reduce the charges. On August 7, 2015, a hearing was held on the issue. In its order, the district court determined Hodak's statement "You make some controlled buys for us and make these charges go away" was a promise of leniency. The court excluded portions of the post-arrest audio recording following Hodak's statement but allowed the preceding conversation between Hodak and Keys to be played for the jury as State's exhibit 8.

         At trial, Officer Hodak and informant Hjelle identified Keys as the individual each saw during the controlled buy. Officer Hodak also identified Keys's voice as a voice on the tape of the controlled buy. Keys testified he was not the individual who sold methamphetamine to Hjelle. He stated he never collected one hundred and thirty dollars from Hjelle nor did he hand anyone a bag of methamphetamine. He also stated, "I have never been a middle man, acted as a middle man, or admitted to being a middle man. And it clearly shows that on the [post-arrest interview] tape." Keys admitted on cross-examination that he had active warrants between late September and December 2014.

         During closing arguments, the State argued Keys admitted to being a middle man in the post-arrest interview. The State also said:

And the fact is it's common sense, common sense. Does it look- Does he sound like a drug dealer, does he look like a drug dealer, does the case look like-excuse me. Does the case look like a drug dealer case; and does it look like the evidence shows that he, in fact, delivered Methamphetamine?

         When discussing the role of the confidential informant and the informant's relationship with the police, the state explained, "This is dangerous work, folks. You're dealing with drug dealers. You're dealing with people that are not, in essence, the most innocent people, I guess, is a way to put it. These people can be dangerous."

         The jury returned a verdict finding Keys guilty as charged.

         Following the district court's denial of Keys's motion for new trial, Keys appealed. For reasons not disclosed in the record, State's exhibit 1, a longer recording containing witness interviews and the full post-arrest interview of Keys, which was not admitted into evidence; State's exhibit 7, the recording of the drug buy; and exhibit 8, the redacted audio recording of the post-arrest interview after the partial grant of Keys's motion to suppress evidence, did not arrive to the Iowa Supreme Court as part of the record. The originals could not be found. The district court ordered the State to prepare duplicate copies and set a hearing on the matter. On June 28, 2016, a hearing was held on the issue whether the substitute exhibits were appropriate to submit to the supreme court as the corrected record. Keys's trial counsel stated he believed the substitutes were accurate copies of the originals. Keys claimed the substitute copies omitted a statement by the police, "That's why we're willing to work with you, " in response to Keys's statement, "I don't do drugs." In its order, the court concluded the substitute copies were accurate representations of the State's exhibits and directed the clerk to forward substitute exhibits 1, 7, and 8 to the supreme court. Keys appealed the June 28, 2016 district court order. On September 6, 2016, the supreme court consolidated both appeals. The case was then transferred to this court.

         II. Standards of Review.

         Evidentiary rulings are generally reviewed for abuse of discretion. State v. Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003). Rulings that apply the promise-of-leniency doctrine are reviewed for errors at law. See State v. Polk, 812 N.W.2d 670, 674 (Iowa 2012).

         Claims of ineffective assistance of counsel are reviewed de novo. See, e.g., State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003).

         "Sufficiency of evidence claims are reviewed for a correction of errors at law." State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

         "[W]e review a claim that the district court failed to apply the proper standard in ruling on a motion for new trial for errors at law." State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016).

         III. Discussion

         A. Evidentiary Issues.

         1. Promises of Leniency.

         Keys argues the district court erred in admitting those portions of his post-arrest interview which preceded the officer's explicit offer of leniency. Specifically, he argues the district court evaluated the conversation between Keys and Hodak under the promise-of-leniency standard instead of Iowa Rule of Evidence 5.408.[1] Under rule 5.408, the entire conversation was inadmissible if it was part of a compromise or negotiation. To the extent the court was correct in applying the promise-of-leniency standard, Keys argues the officer's "promise of leniency" began when the parties discussed "options" and law enforcement's desire to "move up the chain."

         First, we agree with the district court's analysis of the audio tape under the promise-of-leniency doctrine. Under the promise-of-leniency rule, statements made by the defendant are inadmissible "where the prisoner has been influenced by any threat or promise." State v. Howard, 825 N.W.2d 32, 40 (Iowa 2012). On the other hand, rule 5.408 "is ordinarily not applicable in a criminal case, except in a plea-bargain situation." State v. Burt, 249 N.W.2d 651, 652 (Iowa 1977) (emphasis added). During the post-arrest interview, Keys was interviewed by an officer and not engaged in plea-bargaining with the district attorney. Accordingly, rule 5.408 is inapplicable to the post-arrest interview.

         Second, the district court did not err in admitting the earlier portions of the post-arrest interview. The standard to determine whether a promise of leniency was made is "whether the language used amounts to an inducement which is likely to cause the subject to make a false confession." Howard, 825 N.W.2d at 40. Generally, the language must reference how the suspect would be helped in order for the court to find the defendant was promised leniency. See State v. McCoy, 692 N.W.2d 6, 28 (Iowa 2005) ("The line is crossed if the officer also tells the suspect what advantage is to be gained or is likely from making a confession." (citations omitted)); State v. Bunker, No. 13-0600, 2014 WL 957432, at *2 (Iowa Ct. App. Mar. 12, 2014) ("[T]he detective did not cross the line because she omitted any reference to how Bunker would be helped."); State v. Foy, No. 10-1549, 2011 WL 2695308, at *3-4 ...

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