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State v. Henderson

Court of Appeals of Iowa

May 3, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
RAYMOND B. HENDERSON, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

         Raymond Henderson appeals from his convictions following a jury trial for three counts of delivery of heroin as an habitual offender, ongoing criminal conduct, and possession with intent to deliver heroin as an habitual offender.

          Lauren M. Phelps, Davenport, for appellant.

          Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant Attorney General, for appellee.

          Heard by Danilson, C.J., and Potterfield and Bower, JJ.

          DANILSON, Chief Judge.

         Raymond Henderson appeals from his convictions following a jury trial for three counts of delivery of heroin as an habitual offender, class "C" felonies, in violation of Iowa Code sections 124.401(1)(c) and 902.8 (2015); ongoing criminal conduct, a class "B" felony, in violation of Iowa Code sections 706A.2 and 706A.4; and possession with intent to deliver heroin as an habitual offender, a class "C" felony, in violation of Iowa Code sections 124.401(1)(c) and 902.8. Henderson asserts the trial court erred in denying the motion to continue trial, allowing opinion testimony regarding the contents of DVDs published at trial, allowing publication of the DVDs in their entirety including extraneous material, denying Henderson's motion for judgment of acquittal, utilizing jury instructions and verdict forms omitting the "solicited persons" definition and analysis, and denying Henderson's motion for new trial. Because we find no abuse of discretion or error of law on the part of the trial court with respect to these claims, we affirm.

         I. Background Facts & Proceedings.

         Henderson's convictions in this matter arose from a number of transactions whereby Henderson sold heroin to individuals conducting controlled buys on behalf of the Davenport Police Department. On January 31, February 7, and February 8, 2015, Henderson sold heroin to a confidential source (CS), Ryan Moss, in the amounts of .6 grams, .6 grams, and .1 grams, respectively.

         Detective Robert Myers testified that on each of those dates he met with Moss, oversaw a recorded phone call made by Moss to Henderson to set up the purchase, searched Moss' person and vehicle, provided Moss with recorded buy- fund money to purchase the heroin and devices to record the transaction, worked with other officers providing surveillance, met with Moss after the purchase to retrieve the heroin and discuss the details of the transaction, and again searched Moss' person and vehicle. Detective Myers personally observed the transaction on January 31, 2015, and was able to identify Henderson as the driver and sole occupant of the vehicle in which the purchase was completed.

         Detective Ann Sievert, who assisted with surveillance of the controlled buys, testified she observed Moss approach Henderson's vehicle on February 7, and enter Henderson's vehicle on February 8. Detective Sievert testified there was another individual present in the vehicle during the February 7 transaction. However, Detective Sievert was able to confirm Henderson was the sole occupant of the vehicle during the February 8 transaction.

         Over defense counsel's objection, Moss testified at trial that he purchased heroin from Henderson through controlled buys on January 31, February 7, and February 8, 2015. Moss also testified he was paid by the police in exchange for conducting the transactions. DVDs containing the recorded phone calls made on January 31 and February 8 and video recordings of all three transactions were entered into evidence at trial.

         Another controlled purchase of heroin from Henderson was attempted on February 25, 2015, utilizing CS Adrianna Murray. Murray testified she previously purchased .5 grams of heroin from Henderson on February 23 or 24. Because of the prior purchase, Murray became the subject of a law enforcement investigation and, as a result, agreed to participate in the attempted controlled buy on February 25 in order to avoid criminal charges.

         On February 25, officers oversaw Murray place a recorded phone call to Henderson to set up the transaction, searched Murray, and gave her recorded buy-fund money to complete the purchase. However, Murray testified Henderson wanted her to use the heroin in his presence, and they went to a pharmacy to purchase needles before completing the transaction.[1] While Murray was inside the pharmacy, officers arrested Henderson. Because of these circumstances, Murray did not effectuate a purchase of heroin from Henderson at that time. Officers located 1.45 grams of heroin concealed in Henderson's buttocks at the hospital shortly after his arrest.

         On November 15, 2015-one day before trial was set to begin-the State filed an application to amend the trial information, as well as a notice of additional minutes of testimony adding Ryan Moss to the witness list. Although there were references to a CS in the trial information and minutes of testimony, Moss had not previously been identified. Prior to the start of trial on November 16, defense counsel requested a continuance due to the late addition of Moss as a witness. The court denied the motion to continue, except to provide a half-day delay in beginning the trial. Following the jury trial, Henderson was found guilty on six of seven counts submitted to the jury. Henderson now appeals.

         II. Motion to Continue.

         First, Henderson contends his constitutional rights under the 5th, 6th, and 14th amendments to the United States Constitution, and articles 9 and 10 of the Iowa Constitution were violated because the trial court did not grant the motion to continue to remedy the State's failure to comply with the procedural requirements in adding Moss to the State's witness list the day before trial.

         However, defense counsel did not raise the constitutional claims in the motion to continue or in the motion for new trial. Instead, counsel argued the late addition of Moss to the witness list was not "in keeping with what the Rules of Criminal Procedure require." Because the constitutional claims were not timely raised, we will not review Henderson's constitutional allegations on appeal. See State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016) ("Appellate courts 'do not review issues that have not been raised or decided by the district court.'" (citation omitted)). However, we will review this claim within the parameters of the Iowa Rules of Criminal Procedure as Henderson preserved error in this regard.

         We review the trial court's denial of the motion for continuance for an abuse of discretion. State v. Clark, 814 N.W.2d 551');">814 N.W.2d 551, 560 (Iowa 2012). The trial judge has considerable discretion in determining whether to grant a motion to continue. State v. Artzer, 609 N.W.2d 526, 530 (Iowa 2000).

         Iowa Rule of Criminal Procedure 2.5(3) requires the prosecuting attorney, at the time of filing the trial information, to also file the minutes of testimony, including a notice stating the names and occupations of the witnesses and a full and fair statement of the witnesses' expected testimony. The State has a continuing duty to disclose the known residential and employment addresses of its witnesses. Iowa R. Crim. P. 2.11(12)(e).[2]

         The trial information and minutes of testimony may be amended[3] "either before or during the trial" as long as the "substantial rights of the defendant are [not] prejudiced by the amendment" and "a wholly new and different offense is [not] charged." Iowa R. Crim. P. 2.4(8)(a). Thus, the State was not entitled to amend the trial information if Henderson's substantial rights were prejudiced.[4]

         However, under Iowa Rule of Criminal Procedure 2.19(2), the State was not similarly permitted to provide notice of an additional witness the day before trial. Rule 2.19(2) provides:

[I]n the case of informations, a witness may testify in support thereof if the witness's identity and a minute of the witness's evidence has been given pursuant to these rules. . . . Additional witnesses in support of the indictment or trial information may be presented by the prosecuting attorney if the prosecuting attorney has given the defendant's attorney of record, . . . a minute of such witness's evidence, as defined in rule 2.4(6)(a) or rule 2.5(3), at least ten days before the commencement of the trial.

(Emphasis added.) In the event the State does not provide the ten-day notice of additional witnesses pursuant to rule 2.19(2), rule 2.19(3) allows the court to

order the state to permit the discovery of such witnesses, grant a continuance, or enter such order as it deems just under the circumstances. It may, if it finds that no less severe remedy is adequate to protect the defendant from undue prejudice, ...

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