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State v. Bynum

Court of Appeals of Iowa

May 1, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
EARNEST B. BYNUM, Defendant-Appellant.

          Appeal from the Iowa District Court for Linn County, Nicholas Scott, District Associate Judge.

         Earnest Bynum appeals following his conviction for falsely reporting a criminal offense.

          Mark C. Meyer, Cedar Rapids, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.

          Potterfield, Presiding Judge.

         Earnest Bynum appeals following his conviction for falsely reporting a criminal offense, in violation of Iowa Code section 718.6(1) (2016).[1] Bynum asserts he was denied an impartial jury of his peers; the court abused its discretion in allowing prior-bad-acts evidence and photographs of firearms used during the police response; and the court erred in denying Bynum's requested jury instruction, which stated carrying weapons is not a crime if the person has a permit. Finding no abuse of discretion in the trial court's denial of Bynum's motions for mistrial or its evidentiary and instructional rulings, we affirm.

         I. Background Facts and Proceedings.

         In March of 2016, Bynum was living with his girlfriend Pamela Haskins in Cedar Rapids. They had known each other for years and share a son, who was about seventeen years old at the time. Haskins also has two older sons, whom Bynum knew.

         On March 9, Haskins and Bynum had a disagreement ending with Bynum pushing Haskins against a wall before he left the residence. That evening, Haskins called police to report a domestic assault.

         On March 10, Haskins was at home with her youngest son and her friend, Judy, when Haskins's older son stopped by with his daughter. About an hour after the older son arrived, the younger son was going to drive Judy to her home. When Haskins, Judy, and the teen stepped out on the front porch, spotlights were activated and police officers yelled at them to put their hands in the air. The teen was ordered to turn around, walk backwards, and get down on his knees. The older son came out of the house holding his daughter in his arms, and he too was ordered away from the house. Officers checked the house; no guns were found.[2]

         Officer Shannon Aguero explained to Haskins they were acting on a phone call and showed Haskins the phone number. Haskins recognized the number as belonging to Bynum.

         The call to which police responded came in at about 10:17 p.m. Bynum called the police nonemergency number to report that two males in a Suburban had pulled up to Haskins's address, parked over the sidewalk, and jumped out of the vehicle carrying a handgun and a rifle. He reported the men went up to the door, knocked, and entered the house. Bynum provided his phone number but not his name. Bynum denied knowing who lived at that address and denied having previously seen that vehicle.

         Officer Aguero made contact with Bynum on March 24. Bynum initially denied any knowledge of a phone call to police but later admitted to making the report on the nonemergency line. Bynum told Officer Aguero that he was in the area near Haskins's home when he saw the Suburban drive by and observed a male waving a gun in his direction. Bynum said he knew where the vehicle was going so he reported that address and followed the vehicle to Haskins's home. Bynum identified the person waving the gun as Haskins's older son. Bynum said he did not provide the man's name or his own name because he did not want to get anyone in trouble and he did not want to be a snitch.

         Bynum was charged with making a false report to law enforcement. The State sought a preliminary ruling on whether the court would allow the guns used by officers in responding to the dispatch to be shown to the jury. Bynum objected on relevance grounds. The trial court ruled it would allow photographs of the guns used by officers but not the actual guns. The court determined the photos would be relevant "to show the jury the chain of events as they occurred and actions that were initiated with that 911 [sic] phone call."

         Before trial started defense counsel made a record about the jury pool:

And I understand that the case law-I think the most recent- one of the most recent cases to deal with it is State v. Kelvin Plain, Sr. case, which I did write down the citation for, 898 N.W.2d 801, discusses a criminal defendant's Sixth Amendment right to an impartial jury and to a jury drawn from a fair cross-section of the community, and that deals primarily with the pool as a whole.
I believe that we had 35 members in the pool. There were at least two of those that were African-American. So I believe that the pool met the standard, because according to my quick research of, I believe it was the 2016 census information for Linn County, Iowa, the percentage of citizens claiming to be black or African-American was 5.2 percent. I believe we met that standard with the 2 out of 35. I did, however, want to make the record clear regarding the initial jury that did include someone who was African-American and then due to the circumstances we then did not have anyone up on the panel who was African-American. I understand we don't get to pick our jurors. We don't get to decide who comes into the box, but I did want to make that clear for the purposes of the record. And I understand that it was no fault of this court that led to that irregular procedure, but I would assert that the due to the low number of jurors that were called in, that led to the circumstances where we had to reshuffle everything and that then deprived Mr. Bynum the opportunity to have someone of his heritage in our petit jury. So I would allege that violates the due process and request a mistrial on that ground.

         The prosecutor acknowledged the events occurred as the defense asserted. The court ruled:

At this point I'm going to overrule the due process objection. Certainly you've made your record for appeal. And I would note on the 21 that we called up for the petit jury I did not see anybody of African-American heritage. There were two in the pool that you noted, but at no time did they ever make it to the petit jury so that record has been made.

         At trial, Haskins testified she and Bynum had a long-term, on-and-off relationship. When an officer showed her the phone number of the instigating call, she knew immediately it was made by Bynum "because at that time that was his MO and he was trying to do things to, not physically hurt me, but to emotionally hurt me."

         Officer Aguero testified that she and other officers were dispatched to Haskins's home based on Bynum's report of two males entering the home, one with a handgun and one with a long gun; the dispatch was a "code two" calling for lights and sirens due to a reported threat to the life of individuals. When officers arrived at the scene, dispatch provided an update that there had been a call to the same address the day before. Officer Aguero was not aware the initial call came in on the nonemergency number. She testified she believed a home invasion had occurred because the report was of individuals with guns entering the residence.

         Upon arrival, as the caller had stated, Officer Aguero observed a Suburban parked at an angle in the driveway and across the sidewalk. So she and several other officers parked down the block and surrounded the house with weapons drawn. Officer Aguero carried her patrol rifle instead of her handgun, explaining it was easier to use at longer distances. As people came out of the house, they were ordered to get down and other officers went inside to clear the house. No firearms were found.

         On cross-examination, Officer Aguero acknowledged the initial call to dispatch did not claim anyone was in danger. She also acknowledged it was not necessarily illegal for someone to possess a handgun or ...


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