from the Iowa District Court for Cerro Gordo County, Rustin
T. Davenport, Judge.
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.
J. Thomas of Dylan J. Thomas, Attorney at Law, Mason City,
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.
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.
Background Facts and Proceedings
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
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.
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.
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
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.
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.
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?
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."
jury returned a verdict finding Keys guilty as charged.
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.
Standards of Review.
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).
of ineffective assistance of counsel are reviewed de novo.
See, e.g., State v. Liddell, 672 N.W.2d
805, 809 (Iowa 2003).
of evidence claims are reviewed for a correction of errors at
law." State v. Sanford, 814 N.W.2d 611, 615
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).
Promises of Leniency.
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. 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."
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.
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