IN THE COURT OF APPEALS OF IOWA
No. 15-0226
Filed November 9, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT ARTHUR REYNOLDS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gregory W.
Steensland, Judge.
Robert Reynolds appeals his conviction for first-degree murder.
REVERSED AND REMANDED FOR NEW TRIAL.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Robert Arthur Reynolds, Fort Madison, pro se.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.
Robert Reynolds appeals his conviction for first-degree murder, objecting
to the venue of the trial and the makeup of the jury pool. Reynolds also raises
claims as a pro se litigant. We determine the trial court erroneously changed
venue of Reynolds’s trial and Reynolds is entitled to a new trial.
Reynolds also argues a jailhouse phone call should not have been
admitted into evidence because the State failed to lay the proper foundation. We
decide this issue as it is likely to reoccur on retrial and conclude the State did lay
the proper foundation for the recording’s admission into evidence. We reverse
Reynold’s conviction for first-degree murder and remand to the district court for a
new trial.
I. Background Facts and Proceedings
This case arises from events that occurred on April 8, 2014, in Oakland.
Robert Reynolds; his wife, Theresa Reynolds; Theresa’s daughter, A.H.;
Theresa’s grandchild; and a friend of Theresa’s, the decedent, ate dinner
together at the Reynolds’s home. The decedent had intended to spend the night
at Reynolds’s home with the plan that Reynolds or Theresa would drive her to
the airport in Omaha the next morning so she could fly to California to visit with
her grandson before he deployed to Afghanistan.
After dinner, the record indicates Reynolds, Theresa, A.H., and the
decedent had a social gathering with the Reynolds’s next door neighbors and
their children, where the adults consumed alcoholic beverages and conversed
with each other while the children played games. This continued until
approximately 10:30 p.m. when the neighbors and their children left the
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Reynolds’s home and returned to their own home. The record also indicates no
trouble had erupted at this point, and everyone agreed it was an enjoyable time.
After the neighbors left, A.H. retired to her bedroom in the basement of the
home. Theresa lay down on the couch in the home’s living room with her
grandchild to help the child fall asleep. Theresa and the child soon fell asleep.
Reynolds and the decedent remained in the adjacent kitchen where they
continued socializing and drinking alcohol.
Several hours later, around 3:00 a.m., A.H. awoke to loud noises coming
from the upstairs of the home. She testified she left her basement bedroom and
went up the stairs towards the living room and kitchen. Upon arriving, she noted
a stool was tipped over, and she testified she heard arguing between Reynolds
and the decedent.
A.H. grabbed the child from the living room couch and ran back
downstairs to the basement. She returned back upstairs to find Reynolds
pointing a gun at the decedent. At this time, she noticed Theresa standing
between Reynolds and the decedent. She testified she heard Theresa pleading
with Reynolds to put the gun down and also heard Reynolds telling Theresa,
“Don’t you see what’s she’s doing?”—referring to the decedent.
A.H. yelled for everyone to stop and told the decedent to run out of the
backdoor of the house, which was located in the kitchen. The decedent
remained in the kitchen.
A.H. testified she then returned to the basement bedroom to check on the
child. As she was coming back upstairs, she testified she heard three gunshots.
When she arrived at the kitchen, she saw the decedent on the kitchen floor and
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blood pooled around the decedent’s body. A.H. said she saw Reynolds standing
in the kitchen, near the stove, still holding a gun.
Theresa testified she had been awakened by the sounds of arguing
coming from the kitchen. She stated that she got up from the couch and went to
the kitchen, where she found the decedent on the floor and Reynolds standing
and yelling at her. Reynolds then left the kitchen, went to the adjacent master
bedroom, and returned with a gun in his hand. Reynolds pushed Theresa out of
the way, and he screamed that the decedent was possessed. Reynolds started
shooting.
Theresa got on the floor with the decedent’s body and told A.H. to call
911. The record indicates at this point Theresa got up, grabbed the gun, and ran
out of the kitchen backdoor, putting the gun near the garage. A.H. then returned
downstairs and called 911 from the house phone.
While A.H. was on the phone with the 911 operator, Reynolds picked up a
receiver upstairs and began speaking. A.H. then hung up the phone, grabbed
the child, and went back upstairs to attempt to leave the house. She testified she
saw Reynolds still standing in the kitchen. After leaving the house, A.H. and the
child ran to the neighbors’ house—the same neighbors who had been over at the
Reynolds’s home just hours earlier. A.H. left the child in their care, and she went
to find her mother.
Shortly thereafter, Pottawattamie County Sheriff’s deputies began arriving
on the scene, where they encountered Theresa in the street and heard her
narrative of the events.
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During this time, Reynolds remained inside his home with the decedent’s
body. The neighbors and police officers testified they could see him wandering
and pacing around the house. Despite police demands for him to exit the home,
Reynolds refused to comply. Reynolds eventually came out onto the front porch,
where he apparently sat down and opened a beer. Police officers stormed the
porch and apprehended him. Police officers then entered the home and found
the decedent’s body in the kitchen. She was pronounced dead of a gunshot
wound to the head.
During the investigation, police officers took gunshot residue swabs from
Reynolds, Theresa, and A.H.; however, apparently none of the swabs were ever
tested. Theresa and A.H.’s clothing was apparently never tested for the
presence of blood either, but Reynolds’s clothing was tested with negative
results.
A few hours after arriving at the Pottawattamie County jail, Reynolds made
a phone call to someone named “Bobby” and said, “I killed a woman last night.”
Such jailhouse phone calls are recorded and maintained offsite by a third-party
company, Securus.
Reynolds was charged with first-degree murder, in violation of Iowa Code
sections 707.1 and 707.2(2) (2013), and on November 21, 2014, a jury convicted
him. On January 21, 2015, Reynolds received a mandatory life-without-parole
sentence. See Iowa Code § 902.1.
Reynolds appeals.
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II. Discussion
A. Jury Pool and Change of Venue Reynolds contends the trial court
erred when it held trial in Council Bluffs in West Pottawattamie County but drew a
jury pool consisting solely of residents of East Pottawattamie County. The
murder occurred in Oakland, located in East Pottawattamie County. Specifically,
Reynolds argues the district court violated Iowa Code section 607A.231 and his
rights under the Sixth Amendment to the United States Constitution in that he did
not have a jury panel that represented a fair cross-section of the community.
Further, he argues that if Pottawattamie County is still a divided judicial district,
then the district court erred in changing venue to Council Bluffs without following
the procedural requirements of Iowa Rule of Criminal Procedure 2.11(10)(b)2 and
(d).3
To the extent Reynolds claims a violation of his Sixth Amendment right to
a jury drawn from a representative cross-section of the community, our review is
1
Iowa Code § 607A.23 provides:
In counties which are divided for judicial purposes, and in which
court is held at more than one place, each division shall be treated as a
separate county, and the grand jury and petit jurors, selected to serve in
the respective courts, shall be drawn from the division of the county in
which the court is held and at which the persons are required to serve.
2
Subsection (b) provides:
If the court is satisfied from a motion for a change of venue and the
evidence introduced in support of the motion that such degree of
prejudice exists in the county in which the trial is to be held that there is a
substantial likelihood a fair and impartial trial cannot be preserved with a
jury selected from that county, the court either shall order that the action
be transferred to another county in which the offensive condition does
not exist, as provided in rule 2.11(10)(c), or shall order that the trial jury
be impaneled in and transferred from a county in which the offensive
condition does not exist, as provided in rule 2.11(10)(d).
3
Subsection (d) provides, in part, “The commencement of the trial and the jury selection
process shall take place in the county in which the jury is to be impaneled. . . . The trial
court shall provide transportation for the jurors to and from the place of trial . . . .”
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de novo. See State v. Choudry, 569 N.W.2d 618, 620 (Iowa Ct. App. 1997). We
review statutory challenges for errors of law. See State v. Rimmer, 877 N.W.2d
652, 660 (Iowa 2016) (citation omitted).
Both the State and Reynolds agreed to try the case in the East
Pottawattamie courthouse in Avoca. However, logistical issues, such as lack of
internet connection, lack of space for a large jury pool to assemble, lack of
facilities for inmate holding and transportation, and possible issues with security
led the district court to decide the trial would be held at the Pottawattamie County
Courthouse in Council Bluffs in West Pottawattamie County. The court also
decided the jury pool would only include residents of East Pottawattamie County.
In the 1884 Twentieth General Assembly, the Iowa legislature divided
Pottawattamie County for judicial purposes, with one judicial seat in Council
Bluffs and the other in Avoca:
That from and after the first day of January A.D. 1885 the
said circuit court to be held at Avoca shall have original and
exclusive jurisdiction as now provided by section 162 of the Code of
Iowa of 1873, or as may be hereafter provided by law regulating the
jurisdiction of said court of all civil cases including appeals and writs
of error from inferior courts and other tribunals and guardianship
and probate matters arising in the territory in said Pottawattamie
county east of the west line of range forty.
Pleak v. Marks & Shields, 152 N.W. 63, 63-64 (Iowa 1915). “[T]he [1884] act did
not, of course, affect the district court, the sessions of which were thereafter, as
theretofore, held at Council Bluffs, and jurors, both grand and petit, were drawn
from the county as a whole.” State v. Higgins, 98 N.W. 244, 245 (Iowa 1903).
However, this provision was amended by the Twenty-Second General Assembly
to require “grand and petit jurors [to be] drawn and summoned for the terms at
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Council Bluffs from the territory west of west line or range 40, and for the terms at
Avoca from the territory east of the west line of range 40.” Id. An 1888
amendment at the Twenty-Second General Assembly “enlarged the jurisdiction
of the Avoca court giving it jurisdiction over criminal matters, and providing for a
grand jury in that court.” State v. Pelser, 163 N.W. 600, 602 (Iowa 1917). The
record reflects the Avoca courthouse has not functioned as a working courthouse
for a decade. The clerk’s office has been closed since 1992. Court is routinely
held in Council Bluffs. One of the questions raised by Reynolds is whether the
1884 and 1888 legislation remained in effect to govern the location of Reynolds’s
2014 trial and the geographical source of potential jurors.
During pretrial, Reynolds learned the jury pool was being assembled only
from East Pottawattamie County, leading him to file a motion requesting that trial
be moved to the Avoca courthouse or some other suitable location in East
Pottawattamie County. Alternatively, he moved that a jury be assembled from
West Pottawattamie County in accordance with Iowa Code section 602.6105(2),4
which requires court to be held at each county seat in counties that have two
county seats, and in accordance with section 607A.23, which provides that in
counties with more than one county seat and in which court is held at more than
one place the jury “be drawn from the division in which the court is held and at
which the persons are required to serve.”
Reynolds also contended the district court should draw jurors from the
county as a whole and that the failure to do so denied him a representative
4
Section 602.6105(2) was amended in 2015 to omit specific reference to Pottawattamie
County and Avoca. 2015 Iowa Acts ch. 138, § 70.
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cross-section of the community in the jury pool. The court denied Reynolds’s
motion. Trial was held in Council Bluffs but with an East Pottawattamie County
jury.
Following trial, Reynolds again argued in his motion for new trial that the
use of a jury from only East Pottawattamie County violated his Sixth Amendment
right to a fair cross-section of the community in the jury pool. Reynolds
introduced into evidence census reports showing the minority populations of
Pottawattamie County as a whole. However, the district court again denied his
motion and also denied his request for a further evidentiary hearing to determine
if and to what extent minorities were represented or excluded from juries drawn
exclusively from East Pottawattamie County.
On appeal, Reynolds maintains Pottawattamie County is no longer divided
into two judicial county seats, and as such, he argues the jury should have been
drawn from all of Pottawattamie County and not just from east or west.
Conversely, the State argues Pottawattamie County is in fact divided into two
judicial county seats because the 1884 law has never been repealed, and
because the incident occurred in East Pottawattamie, the district court correctly
assembled a jury exclusively from the eastern part of the county.
The State’s argument would apply the 1884 statute to trigger the effect of
Iowa Code section 607A.23, despite the clear language of section 607 A.23 that
its application is limited to counties “in which court is held at more than one
place.” Only in that situation does section 607A.23 require separate jury pool—
but then it requires the jury be drawn “from the division in which court is held”—
Council Bluffs.
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Reynolds argues in the alternative that holding trial in West Pottawattamie
County but drawing jurors only from East Pottawattamie County amounted to a
sua sponte order to change venue. When a county is divided for judicial
purposes, each division is to be treated as a separate county. See Iowa Code
§ 607A.23. Our court has held that when a trial in a county that had been divided
for judicial purposes selects jurors from the other division in that same county,
the trial court has changed venue. See State v. Ewart, 502 N.W.2d 624, 626
(Iowa Ct. App. 1993) (explaining how a defendant requested a change of venue
and trial judge determined to select jurors from the northern part of the county in
a trial geographically based in the southern part). We said in Ewart, “When
venue is changed it can be done by moving the entire trial or going to another
county to select a jury and returning to the original county for trial.” Id. at 625. In
Ewart, we concluded the defendant had received his requested change of venue.
There was no such request by Reynolds, nor did the State request a change of
venue. No finding of an inability to find fair and impartial jurors in the western
part of the county was made. Iowa R. Crim. P. 2.11(10)(b).
Iowa Rule of Criminal Procedure 2.11(10) allows a court to change the
venue of a case when it is presented with a satisfactory motion. See State v.
Evans, 671 N.W.2d 720, 726 (Iowa 2003). However, a court may not change
venue on its own accord because when it does so, the change is improper. See
Bennett v. Carey, 10 N.W. 634, 635 (Iowa 1881). When the district court
changes venue improperly, “prejudice is conclusively presumed because an
illegal act has been done,” and the case should be remanded for a new trial in
the appropriate venue. Ferguson v. Davis Cty., 1 N.W. 505, 509 (Iowa 1879)
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(rejecting the argument that defendant received a fair trial before an unprejudiced
jury and was therefore not prejudiced by error).
Reynolds contends that if we are persuaded that the county remains
divided, the district court incorrectly changed venue of his trial from Avoca to
Council Bluffs with no motion from either Reynolds or the State. The district
court changed the location of the trial but did not change the location from where
it summoned potential jurors. If a change of venue was otherwise called for here,
the district court should have either moved the entire case to West Pottawattamie
County and summoned jurors from West Pottawattamie County or kept the case
in East Pottawattamie County and held trial at an east Pottawattamie County
location.
We are persuaded by Reynolds’s change-of-venue argument. We reverse
his conviction and remand the case to the district court for a new trial consistent
with this opinion. Accordingly, we do not reach Reynolds’s constitutional
argument of a denial of a jury drawn from a fair cross-section of the community.
B. Admission of Jailhouse Phone Call
Next, Reynolds argues the court erred in admitting a recording of a
jailhouse phone call ostensibly made by Reynolds hours after he was arrested.
Specifically, he maintains the State failed to lay a proper foundation for the
recording’s admission into evidence.
We review a district court’s decision to admit or exclude evidence for
abuse of discretion. See State v. Paredes, 775 N.W.2d 554, 560 (Iowa 2009).
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The Pottawattamie County Jail records all phone calls, and in the hours
after his arrest, Reynolds apparently made a phone call to someone named
“Bobby” and told this person, “I killed a woman last night.”
At trial, the State called Pottawattamie County Sheriff’s Office crime scene
technician, Katie Pattee, to authenticate the recording. Pattee testified she
understood how the recording system worked. She indicated that although the
actual recordings were maintained by Securus at a different location, she had the
ability to search an online database using certain parameters. For example,
Pattee testified a search can be done by inmate name, inmate location, time of
day, or date. She then explained the retrieval of the recordings. She stated that
after a search is completed, Securus then sends Pottawattamie County Sheriff’s
Office a link with the requested recordings. Finally, she confirmed the system’s
accuracy by testifying she had completed over one hundred searches using this
phone-recording-system database and that she had never received any
erroneous results. The lead-investigating police sergeant who was familiar with
Reynolds’s voice testified that he recognized the voice on the recording to be
Reynolds’s.
The district court did not specify its basis for admitting the recording into
evidence. The State maintains the court admitted the recording as a non-
hearsay admission of a party-opponent under Iowa Rule of Evidence 5.801(d)(2),
which provides, in part, “The statement is offered against a party and is the
party’s own statement.”
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Conversely, Reynolds argues the court admitted the recording under the
business-records exception to the rule against hearsay. Iowa Rule of Evidence
5.803(6) provides:
A memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, made at or near
the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business
activity, and the regular practice of that business activity was to
make the memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified witness,
or by certification that complies with rule 5.902(11), rule 5.902(12),
or a statute permitting certification, unless the source of information
or the method or circumstances of preparation indicate lack of
trustworthiness. The term “business” as used in this subrule
includes business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for profit.
Reynolds maintains that the jailhouse-phone-call recordings should not have
been admitted because the business record is not maintained or kept by the
Pottawattamie County Jail or its employees, but rather by the third-party
company, Securus.
Our test for admitting recorded conversations is whether the evidence
establishes the recordings are accurate and trustworthy. See State v. Weatherly,
519 N.W.2d 824, 825 (Iowa Ct. App. 1994). For evidence to be admissible, it
must satisfy foundational requirements. Iowa Rule of Evidence 5.901(a) states,
“The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.” Here, Pattee testified as to how the
recording system worked, how Securus kept and maintained the recordings, how
one can search for a particular phone call or caller and on particular dates and
times, how she has never had erroneous results in the over one hundred
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searches she has conducted, and how once a search is completed Securus
sends a link with the recording to the requestor. Additionally, the sergeant from
the sheriff’s department also testified he was familiar with Reynolds’s voice and
he was positive it was Reynolds’s voice on the recording. We agree with the
district could that sufficient foundation was laid such that the phone call recording
was properly admitted into evidence.
C. Reynolds’s Pro Se Claims
Reynolds also raises issues in his brief filed as a pro se litigant. In view
of our disposition of this appeal, we need not consider the remaining issues
presented for review.
For the reasons stated above, we reverse Reynold’s conviction for first-
degree murder and remand to the district court for a new trial.
REVERSED AND REMANDED FOR NEW TRIAL.