                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1694
                              Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID MIKEL ROBBINS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, John J. Haney

(motion to suppress) and James C. Ellefson (trial), Judges.



      David Robbins appeals his convictions following a jury trial. AFFIRMED.



      Christopher A. Clausen of Clausen Law Office, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
                                         2


VOGEL, Presiding Judge.

       David Robbins appeals from his convictions for several drug-related

offenses asserting his motion to suppress should have been granted because the

application for the search warrant lacked corroboration, he was entitled to a Franks

hearing, and the district court abused its discretion in declining to reopen the

suppression record. Robbins also asserts his motions for judgment of acquittal

and new trial should have been granted. Because there is sufficient evidence to

corroborate the warrant application information and Robbins was given two

suppression hearings to make his challenges to the search warrant, his motion to

suppress evidence was properly denied. We also agree with the district court that

Robbins was competent to stand trial, there was sufficient evidence of Robbins’s

in-court identity, and there was no abuse of discretion in allowing the jury to hear

an audio recording on a different playback device in the jury room. We affirm.

   I. Background Facts and Proceedings

       On April 7, 2014, Marshalltown Police obtained a search warrant and a

S.W.A.T. team executed the warrant on a residence occupied by Robbins. Officers

found approximately one-half pound of methamphetamine, approximately two

pounds of marijuana, drug paraphernalia, and cash. An officer spoke with Robbins

following the search and asked him who occupied the northwest bedroom where

most of the contraband was found. Robbins answered, “Mel and me,” indicating

he shared the room with a woman. The conversation was captured on an audio

recording.     Robbins    was   arrested     and   charged   with   possession    of

methamphetamine with intent to deliver, in violation of Iowa Code sections

124.401(1)(b)(7) and 124.441 (2014); possession of marijuana with intent to
                                           3


deliver, in violation of Iowa Code sections 124.401(1)(d) and 124.441; failure to

affix a drug-tax stamp, methamphetamine, as a habitual offender, in violation of

Iowa Code sections 453B.3, 902.7, and 902.9(1)(c); and failure to affix a drug-tax

stamp, marijuana, as a habitual offender, in violation of Iowa Code sections

453B.3, 902.8, and 902.9(1)(c).1 Robbins proceeded to a jury trial, was convicted

of the aforementioned charges, and was sentenced.

         Robbins appeals.

    II. Standards of Review

         Our review of a district court’s ruling regarding probable cause for issuance

of a search warrant is de novo. State v. Myers, 570 N.W.2d 70, 72 (Iowa 1997).

Under our de novo review, we must determine whether the district court properly

decided whether the magistrate had a substantial basis for concluding that

probable cause existed. See State v. Green, 540 N.W.2d 649, 655 (Iowa 1995).

         We review a district court’s grant or denial of a motion in arrest of judgment

and a motion for a new trial for abuse of discretion.” State v. Smith, 753 N.W.2d

562, 564 (Iowa 2008); Millis v. Hute, 587 N.W.2d 625, 629 (Iowa Ct. App. 1998).

We will not reverse unless the court abused its discretion by making a “clearly

untenable” ruling “without reason.” State v. Andrews, 447 N.W.2d 118, 120 (Iowa

1989).

    III. Motion to Suppress

         A. Search Warrant




1
 Robbins was acquitted of another charge, unlawful gathering in violation of Iowa Code
sections 124.407 and 124.411.
                                          4


       Robbins asserts the district court should have granted his motion to

suppress evidence obtained under the search warrant because there was not

adequate corroboration of the informant’s information to meet the credibility

requirement and the application contained misrepresentations.

       “Probable cause to issue a search warrant exists ‘when the facts and

circumstances presented to the judicial officer are sufficient in themselves to justify

the belief of a reasonably cautious person that an offense has been or is being

committed.’” State v. Groff, 323 N.W.2d 204, 212 (Iowa 1982) (citations omitted).

Probable cause requires a probability determination that “(1) the items sought are

connected to criminal activity and (2) the items sought will be found in the place to

be searched.” State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). The assessment

of probable cause is not to be an overly technical exercise. Id. at 364.

       The task of the issuing magistrate is simply to make a practical,
       common-sense decision whether, given all the circumstances set
       forth in the affidavit before him, including the “veracity” and “basis of
       knowledge” of persons supplying hearsay information, there is a fair
       probability that contraband or evidence of a crime will be found in a
       particular place.

Illinois v. Gates, 462 U.S. 213, 238 (1983). When reviewing the application, all

reasonable inferences are drawn in support of the judge’s finding of probable

cause and we give great deference to the judge’s conclusion. Gogg, 561, N.W.2d

at 364. Because we give preference to searches pursuant to warrants, we resolve

doubts in favor of the warrant’s validity. State v. Weir, 414 N.W.2d 327, 330 (Iowa

1987). The amount of evidence needed to support probable cause is less than is

required to support a conviction, but more than mere suspicion of criminal activity

is needed. Id.
                                         5


       Iowa Code section 808.3 provides that the application or sworn testimony

supporting the application “must establish the credibility of the informant or the

credibility of the information given by the informant.”       When assessing the

credibility of informants, we have relied on the following factors: (1) “whether the

informant was named,” (2) “the specificity of facts detailed by the informant,” (3)

“whether the information furnished was against the informant’s penal interest,” (4)

“whether the information was corroborated,” (5) “whether the information was not

public knowledge,” (6) “whether the informant was trusted by the accused,” and (7)

“whether the informant directly witnessed the crime or fruits of it in the possession

of the accused.” Weir, 414 N.W.2d at 332.

       After reviewing the application for a search warrant and the attachments,

we determine the information contained in the application established probable

cause. The application and affidavit reveal that an informant was arrested after an

on-duty officer observed him toss marijuana to the ground. The informant stated

he:

       had been smoking meth with a Dave earlier in the day and [Robbins]
       had a large quantity of “Ice”. [The informant] said Dave lives with a
       Mel. He also said Dave deals marijuana and ice from his house on
       3rd St and W State St. [The informant] said that the ice is in a safe
       in the wall in [Robbins’s] bedroom.

       A subsequent investigation revealed Mel has a vehicle registered to West

State Street, and when the informant was shown a picture of the residence, he

confirmed that was the house where Robbins lived. As the district court found:

       [The informant’s] credibility was enhanced by the fact that he was
       named; that he directly witnessed the crime or fruits of it in the
       possession of Robbins; by the specificity of the facts detailed by him;
       that the information furnished by him was against his penal interests;
       that he was trusted by Robbins as shown by his being in the
                                          6


       residence; by saying he used drugs with Robbins earlier that day;
       and that the information he provided was not public knowledge.

       We agree with the district court these facts are sufficient to establish the

credibility of the informant and probable cause for the issuance of a search

warrant.

       B.   Franks Hearing

       Robbins’s assertion that he is entitled to a Franks hearing also fails.     In

Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court

“developed a means to examine truthfulness of an affiant in presenting evidence

to a magistrate supporting issuance of a search warrant.” State v. Niehaus, 452

N.W.2d 184, 186 (Iowa 1990). Franks limits its inquiry to a “determination of

whether the affiant was purposely untruthful with regard to a material fact in his or

her application for the warrant, or acted with reckless disregard for the truth.” See

id. (recognizing that the Iowa Supreme Court adopted an identical standard in

State v. Groff, 323 N.W.2d 204 (Iowa 1982)). If the court determines that the affiant

was purposely untruthful or acted with reckless disregard for the truth in applying

for a warrant, any offensive material is excised and “the remainder of the warrant

reviewed to determine whether probable cause existed.” Id. at 186–87.

       Because Robbins primarily asserts the informant provided false information,

not that the affiant officer was purposely untruthful or acted with reckless disregard

for the truth, the court did not err in denying his motion for a Franks hearing. In

addition, as noted above much of the information gathered from the informant was

corroborated. The district court found:

       Robbins has failed to make the requisite preliminary showing in this
       regard. No evidence presented rises to the level of showing either
                                          7


       deliberate falsehood or a reckless disregard for the truth. His offer
       of proof is merely conclusory and, frankly, appears to be an attempt
       to again cross-examine Officer Maxie and Deputy Phillips after
       having deposed each of them several times during the pendency of
       these proceedings.

       Because Robbins’s motion did not attack the truthfulness of the affiant

officer, did not show any false information in the affidavit, and there was sufficient

information to establish probable cause, the district court did not err when it denied

Robbins’s motion for a Franks hearing.

       C. Motion to Reopen Record

       Robbins moved to suppress evidence twice. The first motion was heard on

September 3, 2015; the second was heard on April 5, 2016. Robbins asserts the

district court abused its discretion when it denied him the opportunity to reopen the

record from his first suppression hearing to question two officers regarding the

search-warrant affidavit.

       A trial court has authority to allow any party to reopen the record and offer

additional evidence. See Iowa R. Civ. P. 1.920; Neimann v. Butterfield, 551 N.W.2d

652, 655 (Iowa Ct. App. 1996). The trial court enjoys wide discretion in reopening

a case for the reception of additional evidence. Neimann, 551 N.W.2d at 655.

       Robbins contends the district court’s denial to reopen the suppression

record was unreasonable because he did not have a fair and full opportunity to

examine the two officers who were originally scheduled to testify. Robbins asserts,

following a hearing on his second motion to suppress in which he represented

himself, he had a better understanding of his case and wished to reopen the record

of his first motion to suppress hearing. The district court denied the motion. Upon
                                         8


our review of the record, we conclude the district court acted within its discretion

in denying the motion.

       Robbins’s counsel received notice two days prior to the first suppression

hearing that the officers would not be present to testify. In his motion to reopen,

he stated: “The undersigned [counsel] was provided an email, two days prior to the

hearing indicating the witnesses would not be present. The undersigned [counsel]

did not see the email until the time of the hearing.”   Although Robbins had time

to subpoena the officers prior to the hearing, he did not do so. After keeping the

record open to allow Robbins to submit deposition transcripts of three law

enforcement officers as well as his own notes detailing his arguments in support

of his motion, the court denied the motion. Further, this request to reopen the

September 2015 suppression hearing came in April 2016, approximately seven

months after the first suppression hearing he wished to reopen. Given these

circumstances, we find no abuse of discretion in the district court’s refusal to

reopen the first suppression hearing record.
                                          9


    IV. Post-Trial Motions

       A. Drug-Tax Stamp

       Associated with both of the possession-with-intent-to-distribute charges

were two additional drug-tax-stamp violations. During the State’s case, and on

direct examination of the sheriff’s deputy, the State failed to introduce evidence of

the drug-tax-stamp violation. After Robbins cross-examined the witness, the State,

on redirect, attempted to introduce the drug-tax-stamp violation and Robbins’s

counsel objected to the question as being beyond the scope of cross-examination.

The State then moved to reopen the record and introduce the violations.

       The district court acted within its discretion in allowing the State to provide

additional testimony from one of the officers on redirect to include testimony

regarding the drug-tax-stamp charges. As the State notes, the drug-tax-stamp

charging details were contained in the minutes of evidence. Additionally, the State

sought to offer testimony during redirect examination of the same witness shown

in the minutes of evidence. Consequently, we conclude the court did not abuse its

considerable discretion in reopening the record to admit testimony about the drug-

tax-stamp violations.

    B. Supplying the Jury with a Different Playback Device

       Robbins contends the district court abused its discretion when it allowed the

jury to listen to the recording captured by the deputy upon Robbins’s arrest on a

different device during deliberations.2 The audio was played during trial on a large


2
  Robbins asserts the jury committed misconduct by considering improper evidence
related to the playback device. This argument was not raised at the trial court level,
therefore Robbins has not properly preserved his misconduct claim for our review. See
State v. Eames, 565 N.W.2d 323, 326 (Iowa 1997) (stating issues must ordinarily be
                                           10


television speaker, but when the jury asked to hear it again during deliberations,

the court provided the jury with a smaller, portable playback device.

       Iowa Rule of Criminal Procedure 2.19(5)(e) provides, in part:

       Upon retiring for deliberations the jury may take with it all papers and
       exhibits which have been received in evidence, and the court’s
       instructions; provided, however, the jury shall not take with it
       depositions, nor shall it take original public records and private
       documents as ought not, in the opinion of the court, to be taken from
       the person possessing them.

       “This rule ‘leaves it to the trial court, in its discretion, to determine whether

exhibits are to be taken by the jury during deliberation.’” State v. Jackson, 387

N.W.2d 623, 629 (Iowa 1986) (citations omitted). The trial court should consider,

“(i) whether the material will aid the jury in a proper consideration of the case; (ii)

whether any party will be unduly prejudiced by submission of the material; and (iii)

whether the material may be subjected to improper use by the jury.” Id.

       We conclude the district court acted within its discretion to allow the jury

access to a smaller “boom box” to listen to the recording. Robbins does not argue

the court improperly admitted the recording into evidence, the recording is

different, or the jury used the recording for an improper purpose. He only argues

that the second device played the recording more clearly. Because the district

court provided the jury with the capability to replay the recording to aid in its

ultimate verdict, there is no abuse of discretion.

       Even assuming the court abused its discretion, Robbins does not show the

recording alone prompted the jury’s verdict. In addition to the recording, the deputy




presented to and passed upon by the trial court before they may be raised and adjudicated
on appeal).
                                            11


who recorded the conversation testified to the disputed words. Robbins claims

when asked who occupied the bedroom where much of the evidence was found,

he said, “Melanie.” However, when replayed on a clearer device, Robbins was

heard to say “Mel and me.” Robbins was even able to cross-examine the deputy

as to his recollection, and the deputy confirmed that Robbins had implicated

himself by saying, “Mel and me.” Upon our review of the record, we find even if

the smaller playback device should not have been provided to the jury, any error

was harmless.

       C. Identification

       Robbins asserts the district court erred in denying his motion in arrest of

judgment, and motion for a new trial because the State failed to make an in-court

identification of him as the person charged with the crimes. We disagree. During

trial, an officer with the Marshalltown Police Department and a deputy with the

Marshall County Sheriff’s Office, both of whom were involved with the execution of

the search warrant on Robbins’s residence, identified Robbins. One officer was

shown a picture of Robbins and he indicated the photo “fairly and accurately”

depicted Robbins as the person they arrested. Robbins did not object and the

photo was entered into evidence.3 The other officer indicated he recognized

Robbins, from previous dealings, when he entered the residence.




3
  We note, “a witness need not physically point out a defendant so long as the evidence
is sufficient to permit the inference that the person on trial was the person who committed
the crime.” State v. Kardell, No. 09-1859, 2011 WL 441961, at *8 (Iowa Ct. App. Feb. 9,
2011) (citing United States v. Alexander, 48 F.3d 1477, 1490 (9th Cir. 1995)).
                                             12


       Furthermore, Robbins’s counsel referred to the defendant as “David Mikel

Robbins” to the jury prior to jury selection.4 Robbins did not object or indicate he

was not the same David Robbins whose residence was searched and drugs were

found. Upon our review of the record, we conclude substantial evidence supports

the identity element and the district court did not abuse its discretion in denying

Robbins’s motions.

    D. Competency

       Lastly, Robbins contends the district court erred in finding he was fit to stand

trial, which impacted his ability to participate in his own defense. The basic test

for determining if a defendant is competent to stand trial is “whether the defendant

has the present ability to understand the charges against him or her and

communicate effectively with defense counsel.” State v. Rieflin, 558 N.W.2d 149,

152 (Iowa 1996), overruled on other grounds by State v. Lyman, 776 N.W.2d 865,

872–73 (Iowa 2010). Under this standard, there is a two-step inquiry that must be

conducted: “(1) whether the defendant is sufficiently coherent to provide his

counsel with information necessary or relevant to constructing a defense; and (2)

whether he is able to comprehend the significance of the trial and his relation to it.”

State v. Rhode, 503 N.W.2d 27, 35 (Iowa Ct. App. 1993). A defendant is presumed

competent to stand trial. Rieflin, 558 N.W.2d at 151–52. The trial court has the

“authority to make necessary competency determinations whenever and as often




4
  An “in-court identification is not necessary when the defendant’s attorney himself
identifies his client at trial.” Kardell, 2011 WL 441961, at *8 (citing Alexander, 48 F.3d at
1490).
                                              13

as may be required by the particular circumstances of a case.” Andrews, 447

N.W.2d at 120.

       After a December 14, 2015 hearing, the court determined there was

probable cause that Robbins was “suffering from a disorder which may prevent

[him] from appreciating the charge[s], understanding the proceedings, or assisting

effectively in his defense.”       It then ordered a competency evaluation.               The

evaluation found Robbins competent to stand trial and Robbins agreed with this

conclusion. The district court entered an order accordingly. In his motion for new

trial, Robbins asserted his physical condition caused him to be “drowsy, sluggish

and unable to maintain focus and concentration throughout the trial.” The record

provides many instances during trial in which Robbins conferred with his counsel.

The district court found Robbins “was participating in his own defense. He was

frequently at my observation orchestrating and supervising the defense. He was

directing defense counsel.” Upon our review of the record, and deferring to the

district court’s personal observations of Robbins’s demeanor,5 we conclude there

is substantial evidence to support the district court’s finding that Robbins was

competent to stand trial and the district court was within its discretion to deny his

motion for new trial on this ground.

    V. Conclusion

       Because there is sufficient independent evidence to corroborate information

on the search-warrant application, we affirm the district court’s denial of Robbins’s

motion to suppress and motion for a Franks hearing. We also find no abuse of


5
 See State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001) (giving “deference to the district
court’s fact findings due to its opportunity to assess the credibility of witnesses at trial”).
                                         14


discretion in the court’s denial of Robbins’s request to reopen the first suppression

hearing record.    As to the post-trial motions, we conclude there is sufficient

evidence of Robbins’s identity as the person charged with the crimes and the court

did not abuse its discretion in allowing the jury to hear the recording on a different

playback device, in permitting the State to question a witness on redirect to prove

the drug stamp violations, or in finding Robbins competent to stand trial, such that

Robbins’s motion in arrest of judgment or motion for new trial should have been

granted.

       AFFIRMED.
