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Sexually violent predator
proceedings – propriety of sanctions for failing to submit to
court-ordered mental exam
In re
Detention of Huss,
___ N.W.2d ___ (Sup. Ct. No. 02-1642) (Iowa 10/6/2004)
[1] Sanctions for refusal to submit to psychological
examination. Accused sexual predator’s mistaken belief
that the critical determination in a 229A.4 procedure (whether
the offense of which he had been convicted was a sexually
violent offense) would be made in a preliminary hearing at
which the results of his psychological exam could be used gave
him reason not to subject himself to the examination until
that question was resolved. That fact, along with accused’s
willingness to submit to the examination after the matter was
determined, convinced the Supreme Court that the sanction for
accused’s refusal – all elements asserted by the State taken
as established – should not be allowed to stand, for which
remand was ordered. (Accused was wrong in two ways: the
determination of “sexually violent offense” is made at the
final hearing, not the preliminary hearing; and a statute
protected him from use of his statements at the preliminary
hearing – statutory language that is NOT repeated with
reference to the final hearing.) [2] What hearing
determines “sexually violent” nature of offense charged under
229A.4(1). The question of whether the offense for which
defendant has been convicted or charged is a sexually violent
offense is the final hearing, at which a jury trial is
available (229A.7(3)). [3] Failure to hold final hearing
within 90 days of probable cause determination. Accused
sexual predator’s refusal to submit to statutorily-mandated
psychological evaluation justified delay in holding final
hearing.
Warrantless search:
voluntariness of consent given by cohabitant
State v. Warnell,
___ N.W.2d ___ (Sup. Ct. No. 03-1442) (Iowa 10/6/2004) (per
curiam and not published) Warrantless search:
voluntariness of consent given by cohabitant of homeowner.
Defendant, the live-in girlfriend of the owner of a house in
which drugs and drug paraphernalia were found, gave voluntary
consent to search the house. Her consent was not mere
acquiescence to a claim of lawful authority by virtue of the
officer’s mention that written consent to search had already
been given by a third person to whom the property’s owner had
granted a general power of attorney. First, there was no
“claim of lawful authority” to which she could acquiesce;
second, she consented before the Officer could fully explain
his presence, and he merely indicated that the written consent
was for the “common areas” of the house. (Defendant allowed
the officers to search her purse and the interior house
without limitation). (Court does not address alternative claim
that search was justified because authority was given by one
who had a general power of attorney over the property’s
owner).
Ineffective assistance:
counsel not ineffective regarding interpreter’s performance
State
v. Kostic,
___ N.W.2d ___ (Sup. Ct. No. 02-1752) (Iowa 10/6/2004)
Ineffective assistance: counsel not ineffective regarding
interpreter’s performance. Bosnian-speaking defendant
convicted of carrying a concealed weapon did not receive
ineffective assistance of counsel on claim that counsel
allowed several portions of trial to go uninterpreted.
Prejudice standard could not be met, in that uncontroverted
evidence regarding length of knife – greater than 5” – as well
as clear proof of defendant’s possession thereof when stopped
by police ruled out the reasonable probability that the result
of the trial would have been different had the interpreter
translated differently. However, Court reiterates its
commitment to the general standard for adequate interpretation
of trial proceedings: “word for word translation of
everything relating to the trial a defendant conversing in
English would be privy to hear.” The interpreter’s deficiency
can be imputed to the attorney as ineffective assistance of
counsel; however, the defendant must raise interpreter
problems with the court.
Juror tampering statute not
unconstitutional
State
v. Baker,
___ N.W.2d ___ (Sup. Ct. No. 03-1465) (Iowa 10/6/2004)
[1] Tampering with a juror – no violation of 1st
Amendment. Statute proscribing tampering with a juror
does not violate violator’s 1st Amendment rights. Defendant
was convicted for calling juror who had convicted defendant’s
friend of first-degree burglary, asking juror whether she knew
that she had “[given] him 25 years” and then stating “well, I
just thought you should know you gave him 25 years” before
hanging up. The jury-tampering-by-harassment statute (720.4)
prohibits harassing a juror in retaliation for anything
lawfully done by the juror in a case. “Harass” is defined
the same as in Iowa Code section 708.7; it reaches only
communication that is “without legitimate purpose” and
intended to “intimidate, annoy, or alarm” the juror, in
retaliation for a lawful act by the jury in a court case. The
First Amendment does not protect such communications because
(1) harassing conduct is not protected and (2) to the extent
there is infringement on protected speech, it is justified by
state interests. [2] Tampering with a juror – harassment
version – not void for vagueness. Reasonable person would
understand that the word “juror” in the context of tampering
with a juror (by harassment in retaliation for any lawful
conduct) means a juror whose service is ongoing or whose
service has terminated.
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