Miranda rights voluntarily waived;
counsel not ineffective in sex abuse case
State
v. Bowers,
656 N.W.2d 349 (Iowa 12/18/2002).
[1] Miranda
waiver – voluntariness.
Defendant
voluntarily waived her Miranda rights where she agreed to speak with police upon
returning home while a search pursuant to warrant was being conducted; she took
the agent’s suggestion that the search would be disruptive to an interview at
home and was driven to the town fire department for the interview in an unmarked
squad car; she was read her Miranda rights, indicated that she understood her
rights, and waived them, and was interviewed by one agent, during which she
confessed to engaging in sexual activity with her son.
[2] Ineffective
assistance – failure to request bill of particulars.
Counsel was not ineffective in failing to request a bill of
particulars, as the trial information and the minutes clearly indicated (1) that
three separate witnesses would testify to sex acts between the defendant and her
minor son, including the type of sex acts; (2) the name of the crime charged and
code sections defining the offenses; (3) the name of the victim, the location of
the acts, and (4) a time range for the offenses (between 10/1/96 and 7/21/98).
The number and times of the sexual encounters were impossible to name
with more precision, given the statements of the victim and the defendant’s
confession. [3]
Ineffective
assistance – failure to object to evidence of other criminal acts.
Counsel was not ineffective in failing to object to evidence
of sexual activity between defendant and her minor son beyond the four instances
charged, as the State was properly permitted to offer evidence of continual
sexual activity to establish that sexual abuse occurred on at least four
separate occasions during a specified period of time. [4]
Ineffective
assistance – failure to move for a directed verdict.
Defendant’s confession, corroborated by her son’s
testimony, constituted sufficient evidence to support conviction of four
distinct acts of sexual abuse. [5]
Ineffective
assistance – failure to object during closing argument based on claim of
prosecutorial misconduct. Because
evidence of other sexual activity was properly admitted (see [3] above) it was
not improper for prosecutor to comment on it, so that defense counsel was not
ineffective in failing to challenge the prosecutor’s statements.
Summary
dismissal of postconviction petitioner overturned;
Evidentiary
hearing ordered
Manning
v. State,
654 N.W.2d 555 (Iowa 12/18/2002).
[1] Postconviction
– district court’s dismissal of petition without evidentiary hearing
reversed. Summary disposition of a postconviction petition can be
accomplished on the State’s motion under 822.6(3) according to the same
principles and rules as an application for summary judgment.
The moving party has to show the “nonexistence of a material fact and
the court is to consider all materials available to it in the light most
favorable to the party opposing summary judgment.”
If the direct appeal preceding postconviction ended in a 6.104 dismissal
but petitioner resisted the dismissal, petitioner will not be required to show
“sufficient reasons” for failing to raise the postconviction issue on direct
appeal; otherwise, the opposite is true. Claims
bearing on whether a guilty plea is knowing and voluntary raise genuine issues
of material fact precluding entry of summary disposition on those claims.
In addition, an evidentiary hearing is “ordinarily required” when
claims of ineffective assistance of counsel are properly raised on
postconviction. This defendant
raised such claims. Because he did
so and because the court order setting hearing was not deemed to notify
petitioner that he would need to present proof on any issue other than what the
State alleged (waiver), he was entitled to reversal for an evidentiary hearing
on the issues of whether trial counsel (1) led him to believe he would receive
25 years if he pled guilty and (2) pressured and encouraged him to plea guilty
without ascertaining whether a plea bargain could be reached.
Liquor convictions from unlicensed
beer tent during RAGBRAI overturned
State
v. Hobbs,
654 N.W.2d 499 (Iowa 12/18/2002).
[1] Insufficient
evidence of selling or otherwise delivering beer in violation of bootlegging
law. Insufficient evidence of the “sale” or
“gift” elements of alcohol provisions invalidated all charges against a
defendant whose application for a liquor permit during RAGBRAI was denied and
who then established a beer tent at which tips were accepted and beer was given
away. Charged with violating (1)
the bootlegging law, (2) the liquor nuisance provisions, and (3) Failure to Have
a Permit (Iowa Code section 123.59, .60 and .122) the State was held to have
failed to establish a sale of beer in violation of the law because of a lack of
evidence on the nexus between the “tips” and the distribution of beer.
Further, the Court limits the “gift” provision to situations in which
the gift itself is illegal, such as distributing to a minor or to an intoxicated
person. Finally, the inadequate evidence regarding the “sale” of
beer invalidated the conviction of Failure to Have a Permit under section
123.122.
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