State v. Miller

• Decision Date: 30 May 1995
• Docket Number: No. 94-425,94-425
• Citation: 535 N.W.2d 144
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Tracy K. MILLER, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 144

535 N.W.2d 144

STATE of Iowa, Plaintiff-Appellee, v. Tracy K. MILLER, Defendant-Appellant.

No. 94-425.

Court of Appeals of Iowa.

May 30, 1995.

Francis C. Hoyt Jr., West Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Mary Tabor, Asst. Atty. Gen., Kevin Parker, County Atty., and John Criswell, Asst. County Atty., for appellee.

Heard by HABHAB, P.J., and CADY and HUITINK, JJ.

CADY, Judge.

This is an appeal by Tracy Miller following his convictions for delivery of drugs and failure to affix a drug tax stamp. Miller claims the convictions must be reversed because evidence was illegally seized from his premise, insufficient evidence was presented to support the convictions, and prejudice resulted when the trial court allowed tape recordings to be replayed for the jury during deliberations. We reject each claim and affirm the convictions.

The important facts of this case begin with the arrest of Richard Edwards on June 1, 1993. Edwards was arrested at a motel after delivering nine ounces of cocaine to undercover agent Beth Rouse. Edwards named his source as Tracy Miller. Edwards was released after he agreed to meet officers the next morning to assist in the investigation of Miller.

When Edwards did not show up as agreed, Rouse called his home and spoke to his wife, Jody. Rouse pretended to be a cocaine dealer. The conversation was recorded. Jody mentioned she went with her husband the night before to get "it" and said "the guy he got it from just called me this morning" because Richard failed to call to let him know everything was all right.

Edwards eventually met with officers and placed two telephone calls to Miller. Edwards was under the influence of cocaine at the time. No direct mention of drugs or money was made, but Edwards arranged to meet Miller at Miller's residence "to get the same amount." These conversations were tape recorded.

Officers wired Edwards with a body transmitter, provided him with cash for a cocaine transaction, and followed him to Miller's house in several vehicles. A white van had been dispatched to Miller's house earlier for surveillance. En route, Edwards met Miller's vehicle traveling in the opposite direction. Edwards, with the law enforcement following turned around and eventually caught up with Miller.

Edwards exited his car and went to talk with Miller. He asked Miller if he wanted the money. Miller responded not at this time. Miller told Edwards about seeing a white van parked near his residence. He told Miller he believed they had been followed and were being watched. Law enforcement moved in and arrested Miller.

Rouse applied for a search warrant for Miller's residence and out buildings. By affidavit, Rouse related the events of her earlier drug buy from Edwards. She also characterized the taped telephone conversation between Miller and Edwards to mean that Miller told Edwards to come to his residence to "drop off the money and to talk about additional drug transactions." Additionally, Rouse stated that in 1991 a UPS package was intercepted containing $50,000 Miller was sending to his brother-in-law in Florida and that Miller and his brother-in-law were involved in drug dealing. She further stated that two persons, Thomas Barton and Dennis Wentland, formerly investigated or arrested for drug violations, were stopped en route to Miller's residence on April 6, 1993 carrying $5,000 in cash. The warrant was issued. Officers subsequently seized a scale and a cutting agent from Miller's residence. No drugs or cash were found.

Miller was charged with two counts of delivery of cocaine and/or simulated cocaine and one count of failure to affix a drug tax stamp. His motion to suppress the seized items was overruled, and the case proceeded to trial.

Shortly after the jury began deliberating, it asked to have the recordings of the phone conversations which had been admitted into evidence. The district court consulted with counsel and informed the jury it would have to rely upon its recollection of the conversations. The jury renewed its request later in the day. The judge inquired into the request and learned the jury believed they would have another opportunity to hear the tape, and that some jurors felt the tape was "very muffled" when played at trial. Over Miller's objection, the district court allowed the jury to listen to the tape recordings in the courtroom.

Miller was convicted of one count of delivery and with failure to affix a drug tax stamp. The district court sentenced Miller to a term not to exceed ten years on the delivery charge and a term not to exceed five years on the tax stamp charge, the sentences to be served concurrently.

Miller appeals.

I. Jury Request

Defendant first argues the trial court abused its discretion in granting the jury's request to hear the tape recordings during the deliberations. He claims the court's action caused prejudice by over emphasizing the taped evidence, and deprived him of the opportunity to develop strategy to confront the emphasis during closing argument.

Trial courts have considerable discretion to grant or deny a request by the jury to replay tape recordings during deliberations. State v. Baumann, 236 N.W.2d 361, 366 (Iowa 1975). This discretion is written into Iowa Rule of Criminal Procedure 18(5)(g), which establishes a procedure for courts to follow in providing information to the jury during deliberations if they encounter "any disagreement as to any part of the testimony." ¹

Many factors are available to help determine whether to grant or deny a request to review certain evidence or recordings in any particular case. These factors include the reasonableness of the request, the ease or difficulty in complying with the request, and what is likely to be gained or lost. United States v. Argencourt, 996 F.2d 1300, 1305 (1st Cir.1993), cert. denied, 510 U.S. 1061, 114 S.Ct. 731, 126 L.Ed.2d 694 (1994). Other recognized considerations include the threat of unbalanced emphasis on the testimony, the length of the requested testimony, the time consumed in jury deliberations prior to the request, the complexity of the issues in the case, and the nature and specificity of the requested evidence. Kennedy v. Commonwealth, 18 Va.App. 543, 445 S.E.2d 699, 703 (1994). The probative value of the requested testimony to the fact finding process must be weighed against any prejudice to the accused. Id.

Considering all the circumstances presented in this case, we believe the trial court acted within its discretion. The request was specific and relevant to the fact finding process. It was reasonable in view of the poor quality of the voices on the tape. The tapes were easily accessible. They were not lengthy or complex. Moreover, we are unable to conclude that any testimony was unfairly overemphasized by granting the request. The initial denial of the request by the trial court failed to deter the jury from making a second request. Instead of placing undue emphasis, the repeated request by the jury was, most likely, compatible with a responsible and conscientious concern that the tapes be understood and evaluated as carefully as possible. Argencourt, 996 F.2d at 1306.

If justice is the goal of the trial process, an enlightened and informed jury is essential to both sides of the case. When doubt arises in the minds of the decision makers concerning what was said in tape recordings, it is difficult to accept, absent unusual circumstances, that either party would be prejudiced by a procedure designed to remove that doubt. See Kennedy, 445 S.E.2d at 703 (quoting State v. Wolf, 44 N.J. 176, 207 A.2d 670 (1965)); State v. Jenkins, 845 S.W.2d 787, 793 (Tenn.Crim.App.1992).

We specifically reject the notion that Miller was prejudiced by being denied the opportunity to adjust his trial...