September 2005

Arrest -- mistake in effectuating arrest

State v. Freeman, 705 N.W.2d 293 (Iowa 2005) (9/23/05) (No. 04–782).  Defendant's possession of a knife with a blade less than five inches long provided the officer probable cause to arrest him and conduct a search of his vehicle. Despite the fact that knife's blade length did not constitute a dangerous weapon, the officer's actions were reasonable. An officer need not have a ruler in his/her possession to make an "on-the-spot" probable cause determination. Even if the officer had a ruler, he was not required to abandon his investigation to measure the knife.

Habitual offenders – Drug crime recidivism.

State v. Freeman, 705 N.W.2d 286 (Iowa 2005) (9/23/05) (No. 04–781).  Iowa Code section 124.401(5), which provides enhanced penalties for repeat drug offenders, should be treated as an habitual offender provision intended to deter and punish persistent violators who have not responded to the restraining influence of conviction and punishment. That is, each offense must be complete as to a conviction, sentence and commitment to prison before the commission of the next to qualify for enhanced punishment. In reaching this result, the majority relied heavily on previous interpretations of section 902.8.  (Petition for rehearing filed on October 7th to correct language requiring "commitment to prison." That language is no longer contained in the statute nor has it been interpreted to still be required.)

Admissibility of blood test results

State v. DeMaray, 704 N.W.2d 60 (Iowa 2005) (9/23/05).  The implied consent law at section 321J.11 is not the exclusive means by which law enforcement may obtain a blood sample from the defendant in an operating while intoxicated case. Under section 321J.18, the State may introduce any competent evidence bearing on the question whether the driver was under the influence. In this case, the deputy validly obtained the defendant’s medical records through a signed release. While these records – showing the defendant’s BAC was .10 – were privileged under section 622.10, the defendant waived the privilege by consenting to the hospital’s release of his records to the deputy.

State v. Tesch, 704 N.W.2d 440 (Iowa 2005) (9/30/05). The defendant, who was 15 years old at the time of the offense, challenged his waiver to adult court to be tried for second-degree criminal mischief. The Court noted that Iowa Code section 232.45 confers broad discretion on the juvenile court in considering factors such as available services and prospects for rehabilitation. Although faced with contradictory evidence, the juvenile court reached the sound conclusion that the juvenile’s long-term rehabilitation would be influenced by the consequences he faced if he did not comply with the terms of release. The juvenile court officer testified that it was fair to infer from the extent of the vandalism to highway signs and barricades caused by the defendant and his two friends that they realized the seriousness of the potential consequences. Those consequences involved a motorist suffering severe injuries when he drove into an unmarked construction trench.

Victim impact statements -- Definition of victim.

State v. Tesch, 704 N.W.2d 440 (Iowa 2005) (9/30/05). A motorist who was injured as a result of the defendant’s acts of criminal mischief to highway signs and barricades was entitled to deliver a victim impact statement because he qualified as a victim under the statutory definition at Iowa Code section 915.10(3) which includes "a person who has suffered physical, emotional, or financial harm as the result of a public offense or delinquent act." However, his wife did not meet the definition of victim because her husband was able to give a victim impact statement himself; only if the victim is a minor, dead or incompetent may an immediate family member fill in. (Distinguishing State v. Matheson, 684 N.W.2d 243 (Iowa 2004), the court found no prejudice from the wife’s statement: "We don’t think this statement told the court anything that it did not already know.")

Depositions -- State has no right to insist on defendant's presence at the outset where identity an issue

State v. Folkerts, ___N.W.2d ___ (Iowa 2005) (9/16/2005) Possibility of tainted identification during deposition vs. State's right to insist on defendant's presence during depositions.  "To avoid the likelihood that a tainted identification may take place during the part of the deposition when the parties question an eyewitness regarding the identity of the perpetrator of the crime, the district court should allow a defendant to be absent from that part of the deposition. Accordingly, we disavow our holding in [State v. Davis, 259 N.W.2d 812 (Iowa 1977)] and [State v. Randle, 603 N.W.2d 91 (Iowa 1999) (11/17/99)] to the extent those cases would require the defendant to be present at the deposition of an eyewitness when it is likely an impermissibly suggestive identification would take place. [Defendant's] request to be absent from the deposition of the victim during the questioning of the victim as to the perpetrator's identity should have been granted by the district court." (Court further opines on how to avoid the problem: "[a]s to all cases pending, if the identity of the perpetrator of the crime is at issue and a defendant makes a timely motion to be absent from that part of the deposition when the parties question an eyewitness concerning the identity of the perpetrator of the crime, the court may allow the defendant to be absent during that part of the deposition. If the court allows a defendant to be absent, questions regarding identity should take place at the beginning of the deposition. All parties shall complete their examinations of the witness regarding identity before the defendant is required to be present. After all parties have asked these questions, the defendant shall be required to be present at the deposition.")  (dissent by Cady and Larson, JJ.: "The majority disavows our established jurisprudence, sidesteps the barren record in this case, and draws upon a psychological study about mistaken eyewitness identification to formulate a new per se rule. This is not the way courts operate. We disavow laws or rules when they violate the Constitution, not when we do not like them. A procedure exists under our law to adopt new rules of criminal procedure, and we should rely upon that process to change our rules if change is warranted. In the meantime, defendants must rely upon the Constitution, as we should, to challenge the specific procedures based upon the specific facts and circumstances. The district court properly decided the issue in this case. I would affirm the district court. The rule adopted by the majority is improper, unnecessary, and impractical.").

Forgery -- use of another's name on appearance bond; no specific proof other person did not authorize; sufficient evidence of tampering with records; sufficient evidence of fraudulent practice involving duplicate title

State v. Acevedo, ___ N.W.2d ___ (Iowa 2005) (9/16/2005) [1]  Signing appearance bond in the name of another person; no specific proof that person did not authorize use of name. Sufficient evidence existed to demonstrate that defendant's use of a real person's name not authorized and that defendant acted with an intent to defraud. While the State did not produce any evidence who the real person was or that he had not authorized defendant to act in his name, the Court was satisfied by the circumstantial evidence: had defendant been authorized to use the other person's identity, such authorization "would have had to have been prearranged with regard to future arrests suffered by defendant. This is highly unlikely. Persons do not willingly allow themselves to suffer criminal convictions resulting from undesignated acts that another person might commit in the future or to suffer the collateral consequences that can flow from such convictions such as driver's license revocations. The fact that it would have been a criminal act to do that also weighs heavily in favor of the jury's determination that the real Adrian Alonzo did not consent to the use of his name in the bail-bond transaction." Further, defendant's intent to defraud was demonstrated by defendant's giving false information regarding his identity when booked and then when released on bond. [2] Sufficient evidence existed for defendant's conviction of tampering.  Sufficient evidence for tampering with records by defendant's falsification of an application for a certificate of title to a motor vehicle: "section 715A.5, under which defendant was charged, has been interpreted broadly to include not only formal business records but also other writings that have been falsified with an intent to deceive."  (further, "[t]hat defendant acted with intent to deceive is almost an inescapable conclusion from the evidence. He deliberately provided the name of another person to motor vehicle authorities in order to obtain a certificate of title to a motor vehicle that he could not have obtained using his correct name."  [3] Fraudulently uses a false or fictitious name.   Sufficient evidence of violation of section 321.97 found where defendant used the name of another person to try and secure a duplicate title: "[t]he jury could find from the evidence that defendant's attempt to obtain a certificate of title by giving false identification was an attempt to secure a muniment of title to a motor vehicle that he could not have obtained by using his true name."

 
"Child or a minor under the age of eighteen with a mental or physical disability" -- not void for vagueness.

State v. Millsap, __ N.W.2d __ (Iowa 2005) (9/2/2005). [1] Statute not void for vagueness regarding definition of victim.  The language limiting section 726.6(1) to those having custody or control of "a child or a minor under the age of eighteen with a mental or physical disability" is not void for vagueness. The meaning of section 726.6(1) is easily ascertainable by reference to the statutory definition of "child" provided by the legislature. Section 726.6(1) applies to persons having custody or control of a person under the age of fourteen years or a minor under the age of eighteen with a physical or mental disability. Therefore, the statute gives fair warning of the prohibited conduct and does not violate the void-for-vagueness doctrine. [2] Child endangerment -- sufficient evidence of "knowingly". Substantial evidence existed that defendant knowingly acted in a manner that created a substantial risk to a child by placing his two nephews, aged 9 and 10, atop unsecured brush and branches in the bed of a truck with only side panels on it, and driving down a city street: defendant had given the children instructions on how to ride in the back of the truck each time they had ridden there in the past, defendant had been made aware earlier in the day that the children were not following his instructions on how to ride safely, and even if defendant did not place the children atop the brush, they required monitoring to assure that they did not reposition themselves in that spot: "all the State was required to prove[] [was] defendant's knowledge that the children were in a position of substantial risk." [3] Recusal issues -- disqualifying factors -- requirements for showing of personal bias or prejudice.  "Canon 3 suggests that a judge's impartiality might be questioned where the judge 'has a personal bias or prejudice concerning a party.' ... Only personal bias or prejudice stemming from an extrajudicial source constitutes a disqualifying factor. ...Judicial predilection or an attitude of mind resulting from the facts learned by the judge from the judge's participation in the case is not a disqualifying factor. ... In addition, 'actual prejudice must be shown before a recusal is necessary.'..."  (no grounds for recusal that would support finding of abuse of discretion where (1) defendant's criticism of judge's interpretation of controlling statute did not constitute the type of bias that warrants recusal; (2) the fact that defendant filed a complaint against the judge with the Commission did not automatically require recusal, and (3) the charges made in the complaint, that the court had ruled erroneously on legal issues, were not the kind of charges that would lead a reasonable person to question the judge's impartiality notwithstanding the defendant's filing of the complaint; distinguishing this case from In re Inquiry Concerning Stigler, 607 N.W.2d 699 (Iowa 2000) on the bases of both the nature of the complaint and the judge's admitted bias.).  [4] Consecutive sentences -- court failed to exercise discretion to consider probation.  The trial court failed to exercise its discretion to consider probation as a sentencing option on a driving-while-barred charge in conjunction with sentencing on two child endangerment charges. The requirement that the defendant be sentenced to confinement on the child-endangerment charges did not preclude the option of a suspended sentence on the driving-while-barred charge. [5] Consecutive sentences -- consideration of victims not inappropriate.  "[T]he existence of two victims is clearly a circumstance of the crime. In addition, the fact that two deaths resulted from the defendant's criminal actions increased the severity of the offense. Therefore, we do not think the trial court abused its discretion in considering this fact in choosing an appropriate sentence."