APRIL 2, 2003

IOWA SUPREME COURT

Exclusionary rule does not apply 
to violations of Vienna Convention

State v. Buenaventure, 660 N.W.2d 38 (Iowa 4/2/2003)  [1]  Vienna convention (contact with foreign consulate when foreign national detained) violation:  exclusionary rule does not apply. Exclusionary rule does not apply to Vienna convention (article 36 – right of arrested foreign national to have consulate informed of his or her arrest or detention) violation.  Again declining to decide whether the applicable Vienna Convention article gives rise to an individually enforceable right to suppression of statements obtained in violation thereof, the Court holds for the first time that “the exclusionary rule simply does not apply to evidence obtained in violation of Article 36.”  Further, the totality of the circumstances according to which the statement was given did not reveal any due process violation.  [2]  Murder – sufficient evidence of premeditation and malice.  The brutality of the fatal beating defendant inflicted upon the victim, his sister-in-law, as well as the ill feelings he harbored against her, combined with his attempts to hide the body and otherwise remove evidence thereafter constituted sufficient evidence of premeditation and malice aforethought.  [3]  Evidence of another’s ill will toward victim correctly excluded.  No abuse of discretion in disallowing evidence (a) that the victim’s truck had been vandalized several months before her murder, presumably by someone other than defendant, as being so remote in time (5 months before the murder) as to have no probative value; nor (b) of statements victim made that she was being sexually harassed at work (hearsay to which no relevant exception applied). 

Community caretaking exception to 
warrant requirement met  

State v. Crawford, 659 N.W.2d 537 (Iowa 4/2/2003)  Search and seizure – community caretaking exception to warrant requirement.  For a warrantless seizure to qualify as an exception to the warrant requirement, three factors must be applied:  (1) did a seizure occur?  (2) if so, was the police conduct a bona fide community caretaker activity? (turns on whether the facts available to the officer at the moment of the seizure would have warranted a reasonable person to believe an emergency existed); (3) if so, did the public need and interest outweigh the intrusion upon the privacy of the citizen?  Here, police stopped defendant’s truck after receiving a report that a man had taken some pills, awoke in an agitated and physically aggressive mode, was confused, and left the caller’s home abruptly in a Ford flatbed truck.  Police did not know that defendant was a passenger, not the driver.  However, police were where they had a right to be when they observed that the driver of the truck (defendant) seemed intoxicated.  As such, the stop was valid and the subsequently-discovered evidence of defendant’s intoxication was admissible. 

Counsel’s performance regarding 
close-circuit testimony sufficient;

Indecent contact NOT a lesser included offense 
of lascivious acts 

State v. Shearon, 660 N.W.2d 52 (Iowa 4/2/2003).  [1]  Ineffective assistance – handling of closed-circuit television testimony by child witness.  Defense counsel did not render ineffective assistance by failing to object to court’s failure to follow statutory procedures for use of closed-circuit television testimony of child sex abuse victim (specifically, for failing to advise the child that the defendant would be watching her testify, and for failing to provide defendant with ongoing opportunity to communicate with his counsel in the room wherein the minor testified).  Even assuming error in failing to object to these omissions, defendant cannot demonstrate prejudice for his ineffective assistance claim:  (1) none of the main rights guaranteed by the Confrontation clause (under oath, cross-examination by counsel, demeanor evidence) were infringed by the process used; (2) further, while continuous immediate access to counsel by electronic means was not provided, a brief recess was provided before cross-examination of the victim was concluded, during which defendant had access to his lawyer, so as to preclude defendant’s claim of prejudice on that ground; (3) finally, defendant cannot demonstrate any means in which he was prejudiced by the court’s failure to advise the child that defendant would be observing her testimony, as the testimony of her therapist revealed that the child was well aware of that fact.  [2]  Lesser included offenses:  lascivious acts with a child does NOT include indecent contact with a child.  Contrary to State v. Capper, 539 N.W.2d 361 (Iowa 1995), indecent contact with a child (Iowa Code section 709.12) is not a lesser included offense of lascivious acts with a child (Iowa Code section 709.8).  [3]  DNA profiling as part of sentencing.  Conviction of the crime of lascivious acts with a child does not require DNA profiling as part of sentence (section 901.5(8A)(a)) but is statutorily authorized to be ordered if “factually appropriate”.  Given defendant’s history and the seriousness of defendant’s current offense, the court was justified in ordering DNA profiling as a term of probation.  

Drug defendant must intend to deliver specific amount charged 

State v. Scalise, 660 N.W.2d 58 (Iowa 4/2/2003).  [1] Intent to deliver – sufficiency regarding intent to deliver specific amount. While agreeing with defendant that “there must be possession with intent to deliver with respect to the specified amount of the drug”, defendant was not entitled to relief on claim where the instructions and interrogatories were sufficient to require such a connection.  Defense counsel was not ineffective in urging a motion for judgment of acquittal on ground that there was insufficient evidence that defendant possessed with intent to deliver an amount of methamphetamine (more than five grams) which underlie the charges against her.  Assuming that counsel’s motion was not specific enough to raise that ground, the Supreme Court held that defendant was not prejudiced in any event because there was substantial evidence that she intended to deliver the charged amount:  she had more than five grams in her possession, she admitted dealing, and she had “drug notes” about her, as well as scales and cash.  Further, there was no problem with the related marshalling instructions and special interrogatory because the amount of drugs that the jury had to find clearly referred to the instruction on the drugs defendant possessed with intent to deliver.  [2]  Motion for new trial based on verdict contrary to law or evidence.  Trial court erred in conducting “sufficiency of the evidence” inquiry instead of “verdict contrary to law or evidence” when the ground urged is the latter pursuant to Iowa R. Cr. P. 2.24(2)(b)(6); reversal and remand required for finding on the relevant issue. 

Guilty plea not invalidated by representations regarding, and requirement that defendant participate in, drug court prior to sentencing 

State v. Thomas, 659 N.W.2d 217 (Iowa 4/2/2003) [1] Voluntariness of guilty plea not compromised by court’s representation that successful completion of drug court would result in dismissal of charges instead of avoidance of further sentence.  Defendant not entitled to relief on the claim that his guilty plea was not voluntarily or intelligently entered based on the statement by the district court during the plea colloquy that the charges would be dismissed if he successfully completed the drug court program.  After being incarcerated following his unsuccessful experience with drug court, defendant asserted that the original disposition was not available in the first place under Iowa Code section 124.401E(1) (Supp. 1999), authorizing only a suspended sentence as a predicate to the drug court program.  The court had the authority to order placement in drug court prior to sentencing: “[t]he promise to dismiss the case upon successful completion of the program was not a sentence, and section 124.401E(1) never came into play, just as no other sentencing options came into play at the time the plea was accepted….  Drug court is set up to permit offenders to enter the program at most any stage of a criminal proceeding, and courts are permitted to exercise all expressed or implied authority to achieve the objectives of drug court, including dismissal of a case.”  

Claim:  denial of due process for prosecution of two defendants on inconsistent theories of guilt – inconsistency not found 

State v. Watkins, 659 N.W.2d 526 (Iowa 4/2/2003)  [1]  Prosecutorial discretion – presentation of supposedly inconsistent theories of guilt.  State’s reliance on allegedly inconsistent theories of guilt in separately prosecuting defendant and her co-defendant did not deny due process because they were not inconsistent.  The Court distinguishes defendant’s case, tried separately from her boyfriend for the abuse of her minor son, from those in which foreign courts have held that “a selective use of evidence by the prosecution in order to establish inconsistent factual contentions in separate criminal prosecutions for the same crime may be so egregious and lacking in good faith as to constitute a denial of due process.”  Iowa court views these holdings as a “narrow exception to the right of the prosecution to rely on alternative theories in criminal prosecutions albeit that they may be inconsistent … [particularly where] the evidence is not clear concerning which of two persons is the active perpetrator of the crime and which of them is an aider and abettor of the active perpetrator.”  [2]  Motion for bill of particulars.  No abuse of discretion in denying defendant’s motion for bill of particulars in child endangerment case.  “The specificity with which the State must charge a crime varies depending on the nature of the evidence available to the prosecution.”  Criminal allegations of the existence of injuries and a range of time within which they occurred, based on postmortem x-ray studies that could not identify precisely when physical abuse occurred, “do not need to be more precise than the evidence itself.”  Likewise, the bill of particulars was not required to force the State to designate “whether defendant or [her boyfriend] was the actual perpetrator” of the abuse.  [3]  Disallowance of diminished capacity defense.  Trial court not incorrect in refusing to uphold proffered diminished responsibility defense because (1) evidence was insufficient to show relationship between alleged defense and any particular act, and (2) this defense does not go to crimes in which the only mental element is that the defendant act “knowingly.”  [4]  Void for vagueness – child endangerment by “substantial risk” and by “permit[ting] continuing physical or sexual abuse.  The statutory definitions of child endangerment spelled out in section 726.6(1)(a) and 726.6(1)(e) are neither unconstitutionally vague nor overbroad.  [5]  Motion for new trial based on newly discovered evidence – how undertaken when trial was to court.   When trial is to the court and defendant moves for a new trial based on newly discovered evidence, court may reopen the record, consider additional evidence, and render new findings and judgment.  Having done so, defendant’s claim for relief based on newly discovered evidence “can only succeed if the newly proffered evidence was such as to entitle her to acquittal as a matter of law”, which is not the case here.  [6]  Child endangerment – sufficiency of the evidence.  Sufficient evidence existed to uphold defendant’s conviction of child endangerment where evidence indicated most of the child victim’s skeletal injuries occurred when defendant was exclusively responsible for the child; and the defendant’s boyfriend was the perpetrator, defendant would have been guilty of knowing permitting physical abuse.

Accomplice testimony corroboration – sufficiency
Child endangerment – enhancement for three separate acts:  timing and placement

State v. Yeo, 659 N.W.2d 544 (Iowa 4/2/2003)  [1] Accomplice testimony – sufficiency of corroboration.  Testimony of accomplice to four acts of child endangerment was sufficiently corroborated in light of evidence from child’s biological father regarding his observation of child’s injuries after defendant moved in with child’s mother, two people who witnessed defendant committing an act of abuse, two doctors who testified to the nature and cause of injuries resulting from the eyewitnessed act of abuse, yet another doctor; and facts that all of injuries occurred only after defendant came to live with the child.  [2] Child endangerment – enhancement for three separate acts.  Although the enhanced punishment authorized by section 726.6A has been interpreted to require proof “with enough precision to enable a jury to be satisfied beyond a reasonable doubt of a time and place where each of the three acts occurred,” State v. Hickman, 576 N.W.2d 364, 368 (Iowa 1998), this requirement was prompted by an absence of evidence “separating one particular act of abuse from other acts of abuse”.  The Court now holds that this rule “does not mean that evidence of the precise time and place of each incident or act is required, but merely means the three or more acts must be separated by time and place so that each incident is separate and distinct.”  Precise hours or days are not required in the face of such evidence, which existed in this case.  [3] Conviction of alternative means of committing crime.  Defendant tried and convicted of the “skeletal injury” version of child endangerment, though charged with the “serious injury” version, not entitled to relief:  “an examination of the record reveals that the State produced substantial evidence supporting the skeletal injury alternative, and more importantly, [defendant] anticipated and defended against the alternative at nearly every stage of his trial.”  In addition, defendant failed to challenge the trial information at any point.