NOVEMBER 15, 2001

IOWA SUPREME COURT

State v. Anderson,_636 N.W.2d 26 (Iowa 11/15/2001). [1]  Evidence -- marital privilege.   The marital privilege exception regarding child abuse cases (Iowa Code section 232.74) is limited to cases of child abuse that result from acts or omissions of a care provider. It does not apply to injuries to children that result from acts or omissions by a non-care provider. (reversed on this ground as the court "cannot conclude beyond a reasonable doubt the guilty verdict was unattributable to the evidence admitted in violation of the marital privilege.")  [2]  Lesser included offenses -- sexual abuse third.  Neither assault nor assault with intent to inflict sexual abuse are lesser included offenses of sex abuse 3rd under the statutory rape version, as the latter does not include an element of "by force" or "against the will".  

State v. Emery, 636 N.W.2d 116 (Iowa 11/15/2001).  [1]  Subject matter jurisdiction of district court over non-waived juvenile proceedings.   Iowa Code sections 232.8 and 232.45 address the authority of the district court to adjudicate charges of delinquent acts, not its subject matter jurisdiction over such cases. Consequently, any failure to comply with the transfer procedure merely affects the authority of the district court to hear the case, which can be waived, as happened here when the defendant failed to object to the district court's adjudication of his case. [2]  Juveniles -- application of mandatory minimums.  Nothing in Iowa Code section 232.8(1)(c) suggests that juveniles who commit one of the specified drug offenses and are prosecuted as adults are to be sentenced any differently than similarly situated adults. [3]  Juveniles -- exemption from mandatory minimum.  The section 232.45(14) exemption from the mandatory minimum sentence does not apply where a juvenile's drug offense was excluded from the juvenile court's jurisdiction and consequently was never filed in juvenile court; so that defendant was not waived to district court for prosecution within the meaning of section 232.45(14). [4]  Equal protection -- juveniles transferred vs. those not transferred.  The different treatment of juveniles transferred to district court and juveniles excluded from juvenile court jurisdiction does not violate the Equal Protection Clause.

State v. Jose, 636 N.W.2d 28 (Iowa 11/15/2001)  [1]  Sentencing -- reliance on unproven charges.  Sentencing court's reference to "additional crimes" fell far short of showing inappropriate reliance on unproven charges, appearing instead to reference defendant's prior convictions.  [2] Restitution -- challenge to supplemental orders entered more than 30 days after sentencing.  Defendant who seeks to appeal supplemental restitution orders after the date for appealing the original sentence has passed, but whose restitution plan was not complete at the time of appeal, can file a petition to modify the supplemental restitution orders during the appeal, to be determined by the district court as a matter collateral to appeal.  In that event, defendant is entitled to court-appointed counsel.

State v. Kolbet, 638 N.W.2d 653 (Iowa 11/15/2001) [1]  Evidence -- use of false testimony -- standards.  The prosecution's knowing use of false testimony requires a conviction be reversed if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. Further, the prosecutor need not have actually known the testimony was false, if he or she "should" have known.  [2]  Use of false testimony of rebuttal witness found.  The State's use of rebuttal testimony, found in post-trial motion to be expressly contradicted by the materials on which the witness relied constituted a reckless disregard for the truth.  Court also found a strong likelihood that the testimony could have affected the verdict and reversed on that ground.  [3]  Evidence -- reliability for jury.  The reliability of trained trooper's speed estimates was a question for the jury. [4]  Statutes -- single subject constitutional challenge.  Constitutional challenge under "single subject" clause is untimely if not urged before the act is codified.  [5]  Equal protection.  Section 707.6A does not violate equal protection guarantees. [6]  Homicide or serious injury by vehicle -- due process challenges.  Section 707.6A contains a mens rea element -- willful or wanton disregard for the safety of others --  so as not to violate the due process clause; additionally, a cause-in-fact requirement is clearly spelled out as an element of the offense. [7]  Implied consent -- reasonable cause.  The investigating officers did not lack reasonable cause to invoke the implied-consent provisions of section 321J.6. [8] Motion to suppress -- procurement of defendant's blood.  The court did not err in denying the defendant's motion to suppress on the basis that his consent to the taking of his blood was invalidly obtained. [9]  Evidence handling.  The Court is unable to conclude that the manner in which the blood sample was handled tainted the results. [10]  Jury's knowledge of possible penalties -- no abuse of discretion.   The court was well within its discretion to keep information regarding the possible penalties from the jury. [11]  Defense witness list -- error in requiring.  The court erred in requiring defendant  to submit a list of his witnesses to the prosecution for aid in voir dire. [12]  Jury view of crime scene.  The court did not abuse its discretion in refusing to permit the jury to view the car or the crime scene. [13]  Recusal -- no abuse of discretion in determining unnecessary.  Record did not support finding of abuse of discretion in the determination that recusal was not necessary because judge had experienced family loss at the hands of a drunk driver.

State v. Konchalski, 636 N.W.2d 1 (Iowa 11/15/2001)  [1]  Restitution -- due process challenge to section 910.3B award.  Neither substantive nor procedural due process challenge existed for defendant's section 910.3B ($150,000) restitutionary order. [2]  Restitution -- excessive fines.  Section 910.3B restitution statute does not impose an excessive fine in voluntary manslaughter cases.

State v. Kress, 636 N.W.2d 12 (Iowa 11/15/2001) [1]  Mandatory minimum for obtaining controlled substances by forgery (section 155A.24).  One-third mandatory minimum sentencing provisions apply to violations of section 155A.24 by virtue of its ties to section 124.413 and in turn 124.401.  [2]  Drug provision properly categorized as a sentencing provision, not limitation on parole.  The court concludes that section 124.413 is a sentencing provision and overrules Kinnersley v. State, 494 N.W.2d 698 (Iowa 1993), Luter v. State, 343 N.W.2d 490 (Iowa 1984), and State v. Morehouse, 316 N.W.2d 884 (Iowa 1982), to the extent they hold otherwise. [3]  Ineffective assistance of counsel.  Counsel was ineffective in failing to either correct the court's misinformation about the mandatory minimum sentencing provisions or to file a motion in arrest of judgment raising the issue, resulting in prejudice to the defendant.  

State v. Metz, 636 N.W.2d 94 (Iowa 11/15/2001) [1]  State's use of post-Miranda statements for impeachment during trial.  A defendant who remains silent after being Mirandized cannot be impeached by that silence when he testifies at trial.  Doyle v. Ohio, 426 U.S. 610 (1976).  However, if defendant talks (after receiving the warning) about his role in the offense, or offers an exculpatory story or alibi, Bass v. Nix, 909 F.2d 297 (8th Cir. 1990), he can be impeached with that prior inconsistent statement if he testifies otherwise at trial.  Anderson v. Charles, 447 U.S. 404 (1980).  Here, cross-examination of defendant about not having told his trial version to police when he spoke with them after his arrest required reversal because (1) the alleged inconsistent statement was never offered in evidence, negating the claim that the challenged cross-examination was part of an effort to impeach defendant by the prior inconsistent statement, and (2) the alleged prior inconsistent statement was "noticeably lacking in any comment by defendant on how [the victim's] death occurred or defendant's role in it."  The error was not harmless as a constitutional violation under the standard of Chapman v. California, 386 U.S 18 (1967).  [2]  No error in failing to give mistake-of-fact instruction.  Defendant's claim that, had he known who his alleged attacker was he would not have killed him, did not entitle him to a mistake-of-fact instruction given what the jury did find, in convicting him of first-degree murder.  [3]  Hearsay testimony -- defendant's admission to since-deceased person.  DCI officer testimony that pawn shop employee, who was deceased at the time of trial, quoted defendant as making inculpatory statements was inadmissible hearsay:  because other similar statements were available to the state, "the residual hearsay rule should [have been] invoked in the absence of a far greater need than that which was shown to exist."  [4]  Murder photos.  No abuse of discretion in admitting photos of decedent's body.

State v. Naujoks, 637 N.W.2d 101  (Iowa 11/15/2001) [1]  Warrantless search of overnight guest in apartment.   Overnight guest in an apartment has a legitimate expectation of privacy.  Although probable cause existed, the warrantless search was illegal in the absence of absent exigent circumstances; here, the circumstances did not present any objective indication of fear or violence or jeopardy, nor was there any evidence of risk of escape, nor was hot pursuit or potential destruction of evidence involved. Case is remanded for new trial to remedy trial court's denial of motion to suppress.  [2]  Tainted search warrant -- effect.  Search warrant that is later found to be based on tainted information (obtained from prior unlawful search) must be examined to determine if untainted information is sufficient, as here, to establish probable cause.  [3]  Nunc pro tunc order and double jeopardy.  Nunc pro tunc order purporting to correct finding of guilt on two charges of third-degree burglary to two counts of second degree burglary violated double jeopardy.  

State v. Opperman, ___ N.W.2d ___ (Sup. Ct. No. 00-1340) (Iowa 11/15/2001).  [THIS IS A COMPANION CASE TO NAUJOKS, ABOVE and is UNPUBLISHED] [1]  Warrantless search of overnight guest in apartment.   Overnight guest in an apartment has a legitimate expectation of privacy.  Although probable cause existed, the warrantless search was illegal in the absence of absent exigent circumstances; here, the circumstances did not present any objective indication of fear or violence or jeopardy, nor was there any evidence of risk of escape, nor was hot pursuit or potential destruction of evidence involved. Case is remanded for new trial to remedy trial court's denial of motion to suppress.  [2]  Tainted search warrant -- effect.  Search warrant that is later found to be based on tainted information (obtained from prior unlawful search) must be examined to determine if untainted information is sufficient, as here, to establish probable cause. 

State v. Reeves, 636 N.W.2d 22 (Iowa 11/15/2001)  Second-degree murder:  deliberation and premeditation not required.  Second-degree murder only requires proof of malice aforethought, not deliberation and premeditation. (Overruling State v. Love, 302 N.W.2d 115 (Iowa 1981), and its progeny regarding the inference of malice accompanying the use of a deadly weapon, which in turn referenced an opportunity to deliberate:  "[t]he use of a deadly weapon, accompanied by an opportunity to deliberate, even for a short time, is evidence of malice".)

State v. Rodriquez, 636 N.W.2d 234 (Iowa 11/15/2001)  [1]  404(b) prior acts evidence.  No abuse of discretion in admitting evidence of prior acts of domestic abuse by the defendant against the victim, as bearing on the kidnapping elements of confinement, intent to cause serious injury and intent to secretly confine. [2]  "Subsequent bad act" evidence. Error, if any, in admitting evidence of a subsequent act of domestic violence was harmless. [3]  Battered women's syndrome expert evidence.  No abuse of discretion in admitting expert testimony on battered women's syndrome, as assisting the jury on the significance and meaning of the defendant's conduct and victim's reaction as well as assisting on disputed issues of confinement and intent. [4]  Unpreserved claims not reviewable on appeal.  Defendant failed to preserve error on his claim the trial judge was not impartial.  [5]  Lesser included offenses -- domestic abuse.  Domestic abuse assault is not a lesser included offense of willful injury (as d.a. requires additional element of particular type of relationship).  

State v. Sutton, 636 N.W.2d 104 (Iowa 11/15/2001) Sufficiency of the evidence -- aiding and abetting vehicular homicide.  Insufficient evidence existed on the "recklessness" element of vehicular homicide to support passenger's conviction as aider and abettor of driver whose vehicle struck and killed a child.  "Recklessness" under section 707.6A(2)(a) requires a showing of conduct "fraught with a high degree of danger, conduct so dangerous that the defendant knew or should have foreseen that harm would flow from it."  The driver's actions may have been negligent but were not "such an extreme departure from ordinary care as to constitute recklessness."  This finding reinforces the conclusion that defendant's conviction, as the vehicle's passenger, could not stand.