2008-2009 - Law School

Transcription

CRIMINAL LAW NEWSLETTER
Drake Legal Clinic Criminal Defense Program
2008 – 2009
Drake University Law School
PREFACE
T
he Criminal Law Newsletter is a concise compilation of cases and
legislative developments affecting the Iowa criminal law practitioner. As
with past editions, the 2008 – 2009 Edition focuses exclusively on
criminal law and procedure, Iowa criminal law legislation, and Iowa
professional conduct decisions. The Newsletter is comprised of twelve sections. Within
each section, United States Supreme Court decisions precede Iowa Supreme Court and
Iowa Court of Appeals decisions. Each case is categorized by its salient issue. Cases
decided between July 1, 2008 and June 30, 2009 are covered.
The Newsletter is a user-friendly resource that makes the issues and holdings of
recent case law readily apparent to the reader. The issue and holding of each case are
set forth at the outset of each case summary. The facts are then briefly summarized.
Each summary concludes with an examination of the court‘s reasoning and/or analysis.
Thus, the busy practitioner, professor, or law student simply needs to glance at one or
two sentences to see precisely how a given case advances an area of the law. Then, if the
reader desires, he or she can continue reading to learn about the specific facts,
procedural posture, and analysis of a case.
We wish to thank to Professor Robert Rigg, Director of the Drake Legal Clinic, for
making this project possible. We also wish to give a special thanks to Erica Nichols and
Mara Deaton for their gracious assistance.
Current and past editions of the newsletter are available in PDF format at the
following address:
http://www.law.drake.edu/centers/nealBeaSmith/?pageID=clinicNewsletter
We hope you enjoy the 2008 – 2009 Edition of the Criminal Law Newsletter.
RICARDO N. CORDOVA
SCOTT M. WADDING
TABLE OF CONTENTS
I.
FOURTH AMENDMENT.............................................................................................. 1
A. Searches......................................................................................................... 1
B. Seizures ....................................................................................................... 10
II.
FIFTH AMENDMENT ............................................................................................... 18
A. Double Jeopardy ......................................................................................... 18
B. Miranda Rights ........................................................................................... 25
C. Right to Counsel During Interrogations ..................................................... 30
III.
SIXTH AMENDMENT ............................................................................................... 37
A. Confrontation Clause .................................................................................. 37
B. Right to Counsel .......................................................................................... 43
IV.
EIGHTH AMENDMENT ............................................................................................ 60
V.
FOURTEENTH AMENDMENT .................................................................................... 63
A. Equal Protection.......................................................................................... 63
B. Due Process ................................................................................................. 66
1. Retroactivity............................................................................................ 66
2. Right to a Fair Trial ................................................................................ 68
3. Vagueness ............................................................................................... 75
VI.
EX POST FACTO CLAUSE ......................................................................................... 78
VII.
EVIDENTIARY ISSUES.............................................................................................. 84
VIII.
STATUTORY CONSTRUCTION ................................................................................... 92
IX.
LITIGATION EXPENSES ........................................................................................ 102
X.
SENTENCING ....................................................................................................... 107
XI.
PROFESSIONAL CONDUCT ...................................................................................... 111
XII.
LEGISLATIVE ACTION .......................................................................................... 128
TABLE OF CASES ............................................................................................................... 144
Criminal Law Newsletter (2008–2009 ed.)
I.
FOURTH AMENDMENT
A.
Searches
vehicle.8 One officer found a firearm
and another discovered a bag of
cocaine.9
Gant was charged with
possession of cocaine and possession of
drug paraphernalia.10 Gant moved to
suppress the evidence, arguing that the
Court‘s decision in Belton did not
authorize a search incident to arrest
where the arrestee posed no threat and
the search would not reasonably reveal
evidence of the offense charged.11 The
Arizona Supreme Court held the search
unreasonable, and the Court affirmed.12
1. Arizona v. Gant, 129 S. Ct. 1710
(2009)
The issue before the Gant Court was
whether police may search a vehicle
incident to arrest when the arrestee has
no reasonable access to the vehicle and
the search is of no evidentiary value.1 In
a 5–4 ruling, the Court held that a
suspect‘s vehicle may only be searched
incident to arrest if it is reasonable to
believe that (1) the arrestee might gain
access to the vehicle at the time of the
search, or (2) the vehicle contains
evidence of the offense of arrest.2
The Court reasoned that the
underlying
rationale
of
searches
conducted incident to arrest outlined in
Chimel v. California, 395 U.S. 752
(1969), does not justify searches of
vehicles where the arrestee poses no
immediate threat.13
In Chimel, the
Court held that the Fourth Amendment
is not violated where officers conduct a
search incident to arrest of the area
within the immediate control of the
arrestee.14 The Court reasoned that such
searches were necessary to ensure that
the arrestee did cannot gain access to a
dangerous weapon or object.15 Belton
applied Chimel to vehicles; therefore,
any rationale expressed in Chimel
applies to searches of vehicles incident
to arrest as well.16 Fearing that a broad
interpretation
of
Belton
would
On August 25, 1999, five Tuscan,
Arizona police officers went to Gant‘s
residence to investigate suspected drug
activity.3
Upon arriving, officers
arrested a man for providing a false
name and a woman for possession of
drug paraphernalia.4 Shortly thereafter,
the officers observed Gant drive to the
residence, park, and exit the vehicle.5
Officers approached Gant and arrested
him for driving with a suspended
license.6 Each arrestee was handcuffed
and placed in the backseat of a patrol
car.7 Two officers then searched Gant‘s
Arizona v. Gant, 129 S. Ct. 1710, 1714 (2009);
see New York v. Belton, 453 U.S. 454 (1981)
(permitting warrantless vehicle searches
incident to arrest).
2 Id. at 1723–24.
3 Id. at 1714.
4 Id. at 1715.
5 Id.
6 Id.
7 Id.
1
Id.
Id.
10 Id.
11 Id.
12 Id. at 1714, 1724.
13 Id. at 1719.
14 Id. at 1716.
15 Id.
16 Id.
8
9
1
~ Fourth Amendment ~
undermine
Fourth
Amendment
safeguards, the Court held that its
decision in Chimel, as applied to
vehicles in Belton, only permits
warrantless searches of vehicles incident
to arrest if an arrestee might gain access
to the vehicle (i.e. if the arrestee is
―unsecured and within reaching distance
of the search.‖).17
police officers.23 Additionally, Gant was
handcuffed and placed in the backseat of
a patrol car.24 Gant was arrested for
driving with a suspended license—an
offense in which officers could not have
reasonably expected to find evidence
within the car.25 Under these facts, the
Court held, Gant (1) posed no threat to
officer safety, (2) was not in reaching
distance of the vehicle searched, and (3)
was not arrested for an offense
supplying a basis for which an
evidentiary search was warranted.26
Therefore, the underlying rationales for
the searches incident to arrest explicated
in Chimel and Thornton did not apply.27
In addition, applying Thornton v.
United States, 541 U.S. 615 (2004), the
Court found that a vehicle search
incident to arrest withstands Fourth
Amendment scrutiny when it is
―reasonable to believe evidence relevant
to the crime of arrestee might be found
in the vehicle.‖18 The Court observed
that most cases will not warrant a
vehicle search incident to arrest where
the suspect is arrested for a traffic
violation.19 In the context of other
offenses, however, the offense of arrest
will provide a sufficient basis for a
vehicle search incident to arrest (e.g.
drug offenses).20
2. Johnson v. Arizona, 129 S. Ct.
781 (2009)
The United States Supreme Court
considered whether, in a traffic-stop
setting, police may frisk a vehicle‘s
passenger during a valid traffic stop
where the officer has no reason to
believe that the passenger is involved in
criminal activity, but has reasonable
suspicion to believe that the passenger is
armed and dangerous.28 The Court
concluded that police need not have
cause to believe that the passenger of a
vehicle is involved in criminal activity—
in addition to the initial vehicular
violation—to initiate a Terry frisk of the
vehicle‘s passengers.29 A patdown of a
Applying the analysis outlined above,
the Court found Belton and Thornton
distinguishable. In Belton, one officer
arrested four suspects.21 Each arrestee
in Belton was not placed in handcuffs
upon arrest.22 In the case at bar,
however, Gant was arrested with two
other suspects in the presence of five
Id.
Id.
25 Id.
26 Id.
27 Id.
28 Johnson v. Arizona, 129 S. Ct. 781, 784
(2009).
29 Id.
23
Id. at 1719.
18 Id. at 1719 (quoting Thornton v. United States,
541 U.S. 615, 632 (2004)).
19 Id.
20 Id.
21 Id.
22 Id.
17
24
2
driver or a passenger during a traffic
stop is justified if the police had
reasonable suspicion that the person
subjected to the frisk was armed and
dangerous.30
time in prison for burglary and had been
out of prison for about a year.38
Trevizo questioned Johnson away
from the front-seat passenger to gain
―intelligence about the gang [Johnson]
might be in.‖39 Thus, she asked him to
get out of the car, and Johnson
complied.40
Based on Trevizo‘s
observations and Johnson‘s answers to
her questions while he was still seated in
the car, Trevizo suspected that ―he might
have a weapon on him‖ and ―patted him
down for officer safety.‖41 During the
patdown, Trevizo felt the butt of a gun
near Johnson‘s waist.42 After Johnson
began to struggle, Trevizo placed him in
handcuffs.43
Arizona gang task force officers
pulled over a vehicle after running a
license plate check that revealed the
vehicle‘s
registration
had
been
31
suspended. Johnson was a passenger
in the backseat of the vehicle.32 Officers
ordered the driver and the front-seat
passenger out of the vehicle, and Officer
Trevizo approached Johnson in the
backseat.33 When Trevizo drew near,
she observed Johnson wearing a blue
bandana and other clothing indicative of
gang involvement.34 She also noticed a
scanner in Johnson‘s jacket pocket,
which ―struck [her] as highly unusual
and cause [for] concern,‖ because ―most
people‖ do not carry around a scanner
―unless they‘re going to be involved in
some kind of criminal activity or [are]
going to try to evade the police by
listening to the scanner.‖35 Johnson
provided Trevizo his name and date of
birth, but said he had no identification
with him.36 He stated that he was from
Eloy, Arizona, a place Trevizo knew was
home to a Crips gang.37 Johnson also
informed Trevizo that he had served
Johnson was charged in state court
with possession of a weapon by a
prohibited possessor.44 He moved to
suppress the evidence as the fruit of an
unlawful search.45
The trial court
denied the motion, concluding that the
stop was lawful and that Trevizo had
cause to suspect Johnson was armed
and dangerous.46
A jury convicted
Johnson of the gun-possession charge.47
The Arizona Court of Appeals
reversed
Johnson‘s
conviction.48
Recognizing
that
―Johnson
was
Id.
Id.
40 Id.
41 Id.
42 Id.
43 Id.
44 Id.
45 Id.
46 Id.
47 Id.
48 Id.
38
39
Id.
Id.
32 Id.
33 Id.
34 Id. at 784–85.
35 Id. at 785.
36 Id.
37 Id.
30
31
3
[lawfully] seized when the officers
stopped the car,‖ the court nevertheless
concluded that prior to the frisk the
detention had ―evolved into a separate,
consensual encounter stemming from an
unrelated investigation by Trevizo of
Johnson‘s possible gang affiliation,‖
absent ―reason to believe Johnson was
involved in criminal activity,‖ the
Arizona appeals court held, Trevizo ―had
no right to pat him down for weapons,
even if she had reason to suspect he was
armed and dangerous.‖49 The United
States Supreme Court granted certiorari
and reversed the judgment of the
Arizona Court of Appeals.50
and move about at will.54 The Court
reasoned that nothing occurred that
would have conveyed to Johnson that,
prior to the frisk, the traffic stop had
ended or that he was otherwise free ―to
depart without police permission.‖55
Officer Trevizo was not constitutionally
required to give Johnson an opportunity
to depart the scene after he exited the
vehicle without first ensuring that, in so
doing, she was not permitting a
dangerous person to get behind her.56
3. Safford Unified School Dist. #1 v.
Redding, 129 S. Ct. 2633 (2009)
At issue in Redding was whether a
13-year-old
student‘s
Fourth
Amendment rights were violated when
she was subjected to a search of her bra
and underpants by school officials acting
on reasonable suspicion that she had
brought forbidden prescription and
over-the-counter drugs to school.57
Because there was no reason to suspect
the drugs presented a danger or were
concealed in the student‘s underwear,
the Court held that the search was
unreasonable.58
The Court first noted that a lawful
roadside stop begins when a vehicle is
pulled over for a vehicular violation.51
The temporary seizure of the driver and
passengers
ordinarily
remains
reasonable for the duration of the stop.52
Furthermore, inquiries into matters
unrelated to the justification for the
traffic stop do not transform the
encounter into an unlawful seizure, so
long as those inquiries do not
―measurably extend‖ the duration of the
stop.53
In October 2003, Kerry Wilson, the
assistant principal of Safford Middle
School, came into 13-year-old Savana
Redding‘s math class and asked Savana
to go to his office.59 In his office he
showed her a day planner, unzipped and
According to the Court, a traffic stop
of a car communicates to a reasonable
passenger that he or she is not free to
terminate the encounter with the police
Id.
Id.
56 Id.
57 Safford Unified School District v. Redding, 129
S. Ct. 2633 (2009).
58 Id. at 2642–43.
59 Id. at 2638.
54
Id.
50 Id.
51 Id. at 786.
52 Id.
53 Id. at 788 (quoting Muehler v. Mena, 544 U.S.
93, 100–01 (2005)).
49
55
4
open flat on his desk, in which there
were several knives, lighters, a
permanent marker, and a cigarette.60
Wilson asked Savana if the planner
belonged to her.61 She said it was, but
that a few days before she had lent it to
her friend, Marissa Glines.62 Savana
denied ownership of the planner‘s
contents.63
without pockets), which she was asked
to remove.70 Finally, Savana was told to
pull her bra out and to the side and
shake it, and to pull out the elastic on
her underpants, thus exposing her
breasts and pelvic area to some degree.71
No pills were found.72
Savana‘s mother filed suit against
Safford Unified School District # 1,
Wilson, Romero, and Schwallier for
conducting a strip search in violation of
Savana‘s Fourth Amendment rights.73
Following the two-step protocol for
evaluating claims of qualified immunity,
the Ninth Circuit held that the strip
search of Savana was unjustified under
the Fourth Amendment test for searches
of children by school officials set forth in
New Jersey v. T. L. O.,74 and that the
individual defendants were not entitled
to qualified immunity because Savana‘s
right to be free from such searches was
clearly established at the time she was
searched.75
Wilson then showed Savana several
ibuprofen and naproxen pills that were
banned under school rules without
advance permission.64 He asked Savana
whether she knew anything about the
pills in question.65 Savana answered
that she did not.66 Wilson told Savana
that he had been told that she was giving
pills to fellow students, but Savana
denied it and agreed to let Wilson search
her belongings.67 Helen Romero, an
administrative assistant, came into the
office, and together the school officials
searched Savana‘s backpack but found
nothing.68
At that point, Wilson instructed
Romero to take Savana to the school
nurse‘s office to search her clothes for
pills.69 Romero and the nurse, Peggy
Schwallier, asked Savana to remove her
jacket, socks, and shoes, leaving Savana
in stretch pants and a T-shirt (both
The Court analyzed the search under
its ―rule of reasonableness‖ stated in T.
L. O., that ―the search as actually
conducted [be] reasonably related in
scope to the circumstances which
justified the interference in the first
place.‖76 Under this standard, the strip
search unconstitutional because ―the
content of the suspicion failed to match
Id.
Id.
62 Id.
63 Id.
64 Id.
65 Id.
66 Id.
67 Id.
68 Id.
69 Id.
60
61
Id.
Id.
72 Id.
73 Id.
74 469 U.S. 325 (1985).
75 Safford, 129 S. Ct. at 2638.
76 Id. at 2642 (quoting New Jersey v. T.L.O., 469
U.S. 325, 341 (1985)).
70
71
5
the degree of intrusion.‖77 The Court
noted that, before authorizing the
search, Wilson knew that the pills were
prescription-strength ibuprofen and
naproxen, common over-the-counter
pain relievers.78 He therefore was aware
of the limited threat of the specific drugs
he was searching for, and had no reason
to suspect that large amounts of the
drugs were being passed around, or that
individual students were receiving great
numbers of pills, facts which might have
presented a greater danger, arguably
justifying an expansive intrusion into a
student‘s privacy like the one that took
place.79
in fact, in possession of the pills.83 The
Court
concluded
that
these
imperfections were substantial enough
to find the search unreasonable.84
Turning to the issue of qualified
immunity, the Court noted several
circuit court cases involving strip
searches that reached results that
differed significantly from that in
Redding.85
The varied conclusions
reached in those cases required
immunity for the school officials in
Redding.86 The cases viewing school
strip searches differently than the
Supreme Court
―were numerous
enough, with well-reasoned majority
and dissenting opinions, to raise doubts
that the prior statement of law was
sufficiently clear.‖87
Thus, the
individual defendants in Redding were
entitled to qualified immunity.88
Furthermore, Wilson could not have
believed that Savana was concealing
pills in her underwear.80 Contrary to the
school district‘s suggestion that students
often hide contraband in their clothing,
there was no evidence in the record of
any general practice among Safford
Middle School students of hiding pills in
underwear.81 Nor had Wilson received
any information that Savana was doing
so.82
4. State v. Harris, 763 N.W.2d 269
(Iowa 2009)
At issue in Harris was whether the
exigency exception to the general
warrant requirement of Iowa Code
321J.10 permits a warrantless blood
draw of a suspect if a county attorney,
not a peace officer, has reasonable
grounds to believe exigency existed.89
The Iowa Supreme Court held the
officer, not the county attorney, must
have reasonable grounds to believe that
The Court also noted that the
government failed to show that the
school officials had any reason to believe
that Savana was carrying pills in her
underwear or that the pills presented a
danger to other students, if Savana was,
Id. at 2642–43.
Id. at 2643.
85 Id. at 2644.
86 Id.
87 Id.
88 Id.
89 State v. Harris, 763 N.W.2d 269 (Iowa 2009).
83
Id.
78 Id.
79 Id.
80 Id.
81 Id.
82 Id.
77
84
6
exigency existed in order to fall within
the exigency exception of Iowa Code
321J.10A.90
manslaughter in violation of Iowa Code
section 707.5 or homicide or serious
injury by vehicle in violation of Iowa
Code section 707.6A.100 Iowa Code
section 321J.10A permits a warrantless
blood draw if all three of the following
conditions are met:
On April 17, 2006, Harris was
arrested following a traffic accident after
he struck an elderly pedestrian.91 Iowa
State Trooper Overton suspected Harris
was intoxicated.92 Harris refused to
perform field sobriety tests, but
acquiesced to Overton‘s request to take a
preliminary breath test (PBT).93 Harris
blew a .125 percent and Overton
arrested Harris.94 Once arrested, Harris
refused to provide a blood sample.95
Overton contacted an assistance county
attorney for advice on how to proceed.96
The county attorney advised Overton to
obtain a blood sample from Harris.97
Following this instruction, Overton
obtained a warrantless blood sample
from Harris.98 Overton was aware that
Harris‘ blood alcohol level would
decrease overtime, but could not
articulate any other reason to show
exigency.99
(1) The peace officer reasonably
believes the blood drawn will
produce evidence of intoxication.
(2) The method used to take the
blood sample is reasonable and
performed in a reasonable
manner by medical personnel
under section 321J.11.
(3) The peace officer reasonably
believes the officer is confronted
with an emergency situation in
which the delay necessary to
obtain a warrant under section
321J.10 threatens the destruction
of the evidence.101
Additionally, in State v. Johnson,
744 N.W.2d 340 (Iowa 2008), the Iowa
Supreme Court held that the reduction
of a person‘s blood alcohol level as time
passes is insufficient, alone, to create
exigency.102
The Johnson decision
requires ―additional circumstances‖ in
order to establish exigency.103 Courts
generally focus on temporal factors
Iowa Code section 321J.10 permits
the government to withdraw a blood
sample from an individual, with or
without the person‘s consent, if the
government (a) obtains a warrant and
(b) the person is suspected of voluntary
Id. at 274–75.
Id. at 270.
92 Id. at 270–71.
93 Id.
94 Id. at 271.
95 Id.
96 Id.
97 Id.
98 Id.
99 Id. at 274–75.
90
91
Id. at 271.
Id. at 271–72 (internal quotations omitted).
102 Id. at 272.
103 Id. at 273.
100
101
7
while considering whether additional
circumstances exist.104
the transfer of the items to Iowa police
officers without a warrant after the
items were lawfully seized by police
officials in another state.111
The court noted that the officer failed
to show that he personally had
reasonable grounds to believe that
exigency existed.105 The officer testified
that, although he was aware that one‘s
blood alcohol level reduces as time
passes, his decision to obtain a
warrantless blood sample was the result
of the county attorney‘s instruction.106
In light of Johnson, the court reiterated,
the officer did not have sufficient
grounds to show exigency.107
The Iowa Court of Appeals held that
Bentler had no legitimate expectation of
privacy, concluding that as soon as an
inmate‘s property is taken, inventoried,
and placed in a property room, the
inmate‘s expectation of privacy is
substantially or entirely reduced to the
point
that
no
constitutionally
protectable interest remains.112
After receiving a 911 emergency call,
in which a caller stated: ―[m]y brother‘s
gonna do something, I don‘t know what .
. . . My mom‘s yelling at him, saying
‗Shawn, don‘t,‘‖ Iowa law enforcement
arrived at the Bentler home.113 The
officers searched the home and
discovered Bentler‘s mother, father and
three sisters dead.114 Each had been
shot in the head with a .22 caliber
rifle.115
Shawn, the only remaining
living member of the Bentler family,
lived in Quincy, Illinois.116 Iowa law
enforcement contacted Quincy law
enforcement and asked that that they
place
Shawn
Bentler
under
117
surveillance. Bentler left his residence
shortly thereafter on his motorcycle and
was stopped by Quincy police for driving
without a valid license and on an
Because the only actor that may have
had exigency was the county attorney,
the court assessed whether the exigency
exception applied where a county
attorney, assisting a police officer, had
reasonable grounds to believe exigency
existed.108 Analogizing State v. Palmer,
554 N.W.2d 859, 856–66 (Iowa 1996),
the court found that a county attorney‘s
reasonable grounds do not serve as a
sufficient basis to establish exigency.109
Therefore, a warrant was required in
order to obtain Harris‘ blood sample.110
5. State v. Bentler, 759 N.W.2d 802
(Iowa Ct. App. 2008)
At issue in Bentler was whether any
reasonable expectation of privacy
remained in items which would prohibit
State v. Bentler, 759 N.W.2d 802 (Iowa Ct.
App. 2008).
112 Id. at 807–08.
113 Id. at 803–04
114 Id. at 804.
115 Id.
116 Id.
117 Id.
111
Id.
105 Id. at 274–75.
106 Id.
107 Id.
108 Id.
109 Id.
110 Id.
104
8
outstanding arrest warrant.118 Illinois
officers took Bentler into custody.119
Bentler filed a motion to suppress
the clothing and any evidence derived
from the clothing contending that the
initial seizure by Iowa law enforcement
agents on October 14, 2006, was
unreasonable and without probable
cause and therefore illegal under the
Fourth Amendment to the United States
Constitution and under article I, section
8 of the Iowa Constitution.129 The
district court overruled Bentler‘s Motion
to Suppress his clothing.130 Bentler was
convicted of five counts of first-degree
murder.131 Bentler appealed.132
Bentler was strip-searched and given
jail clothes as Quincy jail booking
procedure authorized.120
His street
clothing and personal effects were seized
and placed in four paper bags, which
were stapled closed.121 The bags were
then given to an Iowa Department of
Criminal Investigation (DCI) agent.122
The following day, the State of Iowa
charged Bentler with the murder of his
family members.123
Arrest warrants
were issued and served on Bentler in
Illinois.124 Bentler waived extradition,
and the Quincy jail transferred custody
of Bentler to Iowa law enforcement
officials, who transported Bentler to an
Iowa jail.125 A short time later, an Iowa
agent opened the paper bags containing
Bentler‘s clothing.126 The agent saw
what he believed might be blood on the
socks worn by Bentler at the time of his
arrest.127 Subsequent testing of the
socks in the evidence bag determined
that the stains on the socks worn by
Bentler on the day of his arrest
contained blood matching the DNA of
his mother.128
On appeal, Bentler did not challenge
the seizure of his clothing by Illinois law
enforcement.133
Instead, Bentler
claimed Iowa law enforcement officers
illegally seized his property from Illinois
law enforcement.134 The Iowa Court of
Appeals first considered whether Bentler
had a legitimate expectation to challenge
the search of his clothing conducted by
Iowa officers.135 The court first noted
that most courts deciding the issue
under the Fourth Amendment conclude
that as soon as an inmate‘s property is
taken and inventoried, the inmate‘s
expectation of privacy is substantially or
completely reduced to the point that no
constitutionally protectable interest
remains to provide a defendant standing
Id.
Id.
120 Id.
121 Id.
122 Id.
123 Id.
124 Id.
125 Id.
126 Id.
127 Id. at 804–05.
128 Id. at 805.
118
119
Id.
Id.
131 Id.
132 Id.
133 Id. at 806.
134 Id.
135 Id.
129
130
9
to challenge a search or seizure as
unconstitutional.136
a warrant.140
Thus, Iowa law
enforcement had no duty to obtain a
warrant before viewing the items legally
seized in Illinois and transferred from
Illinois to Iowa law enforcement.141
The court relied heavily on United
States v. Oaxaca, 569 F.2d 518 (9th Cir.
1978), where the Ninth Circuit Court of
Appeals upheld a warrantless seizure of
jailed suspects‘ shoes six weeks after
their arrest when the shoes remained in
lawful custody until the time when the
shoes were used as evidence.137 The
Iowa Court of Appeals found the Oaxaca
decision particularly persuasive when it
stated: ―Both the defendants and their
shoes remained in lawful custody until
the time when the shoes were taken for
use as evidence. To require a warrant
under these circumstances would be to
require a useless and meaningless
formality.‖138
Citing
substantial
precedent, the Iowa Court of Appeals
concluded that Bentler lost any
reasonable expectation of privacy he had
in the property seized when he was
booked.
―Indeed, it is difficult to
perceive what is unreasonable about the
police‘s examining and holding as
evidence those personal effects of the
accused that they already have in their
lawful custody as a result of a lawful
arrest.‖139
Because the court concluded that
Bentler lacked a reasonable expectation
of privacy to the items taken at his
booking, the court did not need to
determine
whether
the
State
unreasonably infringed a legitimate
privacy interest held by Bentler.142
B.
Seizures
1. Herring v. United States, 129 S. Ct.
695 (2009)
At issue in Herring was whether the
exclusionary rule should exclude the
fruits of a search incident-to-arrest
where the initial seizure was based upon
the officer‘s reasonable, but incorrect,
belief that an outstanding warrant to
arrest the individual existed.143 The
Court held that suppression of the
evidence was not warranted because the
error was the result of negligent
bookkeeping
by
another
law
144
enforcement employee.
Investigator Mark Anderson learned
that Bennie Dean Herring had driven to
the Coffee County Sheriff‘s Department
to retrieve something from his
The court also noted that evidence
legally obtained by one law enforcement
agency may be made available to
another law enforcement agency without
Id. (citing Oaxaca, 569 F.2d at 523).
Id.
142 Id.
143 Herring v. United States, 129 S. Ct. 695
(2009).
144 Id. at 698.
140
Id.
137 Id. at 807 (citing United States v. Oaxaca, 569
F.2d 518, 524 (9th Cir. 1978)).
138 Id. (quoting Oaxaca, 569 F.2d at 524).
139 Id. (internal quotations omitted).
136
141
10
impounded truck.145 Herring had been
involved in prior run-ins with law
enforcement, and the investigator asked
the county‘s warrant clerk, Sandy Pope,
to check for any outstanding arrest
warrants for Herring.146
When the
warrant clerk found no outstanding
warrants, the investigator asked the
warrant clerk to her counterpart in
neighboring Dale County.147 The Dale
County warrant clerk checked the
county‘s computer database which
indicated that there was an active
warrant for Herring‘s arrest.148 The
Dale County warrant clerk faxed a copy
of the warrant to the investigator.149 The
investigator arrested Herring and
discovered methamphetamine during
the ensuing search incident-t0-arrest.150
investigator learned that the warrant
had been recalled.154
Herring was indicted in the District
Court for the Middle District of Alabama
for illegally possessing the firearm and
drugs.155 He moved to suppress the
evidence on the ground that his initial
arrest had been illegal because the
warrant was no longer active.156 The
magistrate recommended denying the
motion based on the officer‘s good faith
belief that the warrant was valid.157 The
district court adopted the magistrate‘s
recommendation,158 and the Eleventh
Circuit affirmed.159
The United States Supreme Court
held that the negligent error was not
enough justify the ―extreme sanction of
exclusion‖
under
the
Fourth
160
Amendment.
Assuming that a Fourth
Amendment violation occurred when
Herring was arrested on the recalled
arrest warrant, the exclusionary rule did
not apply as the error that occurred
arose from nonrecurring and attenuated
negligence.161
There was a problem with the
warrant, however, in that it had been
recalled five months earlier.151 Normally
when a warrant is recalled, the court
clerk‘s office or a judge‘s chambers
contacts the warrant clerk, who enters
the information in the sheriff‘s computer
database and disposes of the physical
copy.152 But the information about the
recall of the warrant for Herring did not
appear in the database.153 Herring had
already been arrested and found with
the firearm and narcotics by the time the
The Court expressed its growing
disfavor with the exclusionary rule:
―The principal cost of applying the rule
is, of course, letting guilty and possibly
dangerous
defendants
go
free—
Id.
Id.
147 Id.
148 Id.
149 Id.
150 Id.
151 Id.
152 Id.
153 Id.
Id.
Id. at 699.
156 Id.
157 Id.
158 451 F. Supp. 2d 1290 (2005).
159 492 F.3d 1212 (2007).
160 Id. at 700 (quoting United States v. Leon, 468
U.S. 897 (1984)).
161 Id. at 702.
145
154
146
155
11
something that ‗offends basic concepts
of the criminal justice system.‘‖162 The
court also emphasized the marginal
deterrent value that exclusion would
have if the evidence were excluded.163
The court set forth the standard of police
culpability
required
to
warrant
exclusion: ―To trigger the exclusionary
rule, police conduct must be sufficiently
deliberate
that
exclusion
can
meaningfully deter it, and sufficiently
culpable that such deterrence is worth
the price paid by the justice system.‖164
The negligent error in Herring was far
removed from the rationale that
supports the exclusionary rule and thus
exclusion was improper.165 In Herring,
the miscommunications were not
routine or widespread and they were not
of such a culpable nature as to require
exclusion.166 Thus, exclusion was not
required when balanced against the
societal costs of letting ―the criminal ‗go
free because the constable has
blundered.‘‖167
approached by the officers, and (c) the
defendant was known by officers to have
been involved in past drug activities.168
The court concluded that the
investigatory stop was justified because
the combination of the facts known to
the arresting officer gave the officer
reasonable suspicion to believe that the
individual may have been involved in
illegal activity.169
Defendant Corbett was charged with
possession of marijuana and crack
cocaine with the intent to deliver as the
result of an investigatory stop at an
apartment building.170 Officers received
an anonymous call that there was
narcotics activity at an apartment
building.171
The responding officer
testified that he had patrolled the
specific neighborhood for the previous
ten-to-twelve years.172
He also had
received complaints of narcotics activity
in the apartment building and recently
discovered evidence of narcotics use in
the form of drug paraphernalia left at
the building.173 He recognized Corbett
from having executed two search
warrants on Corbett‘s home and from
previously
arresting
Corbett
for
174
possession of narcotics.
Corbett
consented to the search of his person
and the officer found marijuana and
2. State v. Corbett, 758 N.W.2d 237
(Iowa 2008)
The rather narrow issue in Corbett
was whether police had reasonable
suspicion to stop the defendant when (a)
the officers received an anonymous tip
implicating the individual in narcotics
activity, (b) the defendant fled when
State v. Corbett, 758 N.W.2d 237 (Iowa
2008).
169 Id. at 241–42.
170 Id. at 239.
171 Id.
172 Id.
173 Id.
174 Id.
168
Id. at 700 (quoting Leon, 468 U.S. at 908).
163 Id. at 700–03.
164 Id. at 702.
165 Id.
166 Id. at 704.
167 Id. at 704 (quoting People v. Defore, 242 N. Y.
13, 21 (1926)).
162
12
crack cocaine.175 Corbett filed a motion
to suppress, arguing that the stopping
officer did not have reasonable suspicion
to justify the stop.176 The district court
denied and a jury convicted Corbett of
possession of marijuana and crack
cocaine with the intent to deliver.177
court emphasized that an investigatory
stop is meant to resolve ambiguity of
whether criminal activity is taking
place.184
On appeal, the court noted that the
apartment was in a high crime area and
the specific building had a history of
illegal drug use on its premises.178 The
court emphasized that the anonymous
call was corroborated by the officer‘s
observations and previous experiences
in the area.179
The officer also
recognized Corbett as the subject of a
prior narcotics arrest.180 Additionally,
Corbett attempted to flee upon the
officer‘s arrival—a factor that may be
considered when assessing whether a
stop is supported by reasonable
suspicion.181 Corbett argued that he had
the right to walk away from the officer,
but the court found that argument
unconvincing, stating that Corbett
attempted to change his activity, not
merely go about his business.182
At issue in Christopher was whether
an arrest five weeks after an officer
observed the defendant commit a crime
violated the defendant‘s right to be free
from unreasonable searches and
seizures.185
The Iowa Supreme
concluded
that
Christopher‘s
warrantless arrest five weeks after the
observed criminal conduct did not
offend the Fourth Amendment of the
United States Constitution or article I,
section 8 of the Iowa Constitution.186
3. State v. Christopher, 757 N.W.2d 247
(Iowa 2008)
An off-duty police officer observed
Christopher driving on August 9,
2005.187
The next day, the officer
checked Christopher‘s driving status and
learned that Christopher was barred
from driving.188 Instead of immediately
arresting Christopher, the officer
decided to make the arrest the next time
he observed Christopher.189 Five weeks
later, on September 14, 2005, the officer
saw Christopher sitting on steps in front
of a house in Des Moines.190 The officer
arrested Christopher without a warrant
for the driving offense and searched
The court concluded that the
combination of the facts known to the
arresting officer gave him reasonable
suspicion to believe Corbett may have
been involved in illegal activity.183 The
Id.
Id.
177 Id.
178 Id. at 241.
179 Id.
180 Id.
181 Id.
182 Id.
183 Id. at 241–42.
175
Id. at 242.
State v. Christopher, 757 N.W.2d 247 (Iowa
2008).
186 Id.
187 Id. at 248.
188 Id.
189 Id.
190 Id.
176
184
185
13
incident to arrest.191 The officer found
marijuana and crack cocaine on
Christopher‘s person.192
Christopher
was charged with two counts of
possession of a controlled substance
third offense and driving while barred as
a habitual offender.193 Christopher filed
a motion to suppress, asserting that his
arrest was unlawful because the officer
failed to obtain a warrant and violated
his due process and Fourth Amendment
rights.194 The district court denied the
motion and a jury convicted Christopher
on all three counts.195
anything more than probable cause.201
The court stated that Christopher‘s
constitutional rights were adequately
protected by the requirement that he be
taken ―without unnecessary delay‖ to the
―nearest
or
most
accessible
202
magistrate.‖
4. State v. Wilkes, 756 N.W.2d 838
(Iowa 2008)
The first issue in Wilkes was whether
officers ―seized‖ Wilkes under the
Fourth Amendment prior to reasonably
suspecting Wilkes was driving a motor
vehicle while intoxicated.203 The second
issue was whether the stop, if not
initially supported by reasonable
suspicion, was a valid exercise of the
officer‘s
community
caretaking
204
function.
The Iowa Supreme Court
held that a seizure occurred only after
officers had reasonable suspicion to
believe that Wilkes was engaging in
criminal activity, and thus the court did
not consider whether the encounter was
justified
under
the
―community
caretaking‖ exception.205
On review, the State argued that the
search was a valid search incident to
arrest.196 Christopher claimed that his
arrest was unlawful, and therefore the
State could not rely upon the search
incident
to
arrest
doctrine.197
Specifically, Christopher argued that a
warrantless arrest is only lawful if it is
completed within a reasonable amount
of time after the officer observes the
crime.198 The court stated that whether
the officer had time to obtain a warrant
is irrelevant under the Fourth
Amendment.199
The only inquiry is
whether the officer had probable cause
to arrest.200
The court noted that
neither the United States Constitution
nor the Iowa Constitution require
Around midnight, patrolling officers
spotted a white truck with its headlights
on and its engine running parked.206
While approaching the vehicle, the
officers did not activate their patrol car‘s
emergency lights or siren.207
They
Id.
Id.
193 Id. at 249.
194 Id.
195 Id.
196 Id.
197 Id. at 249–50.
198 Id.
199 Id. at 250.
200 Id.
191
192
Id.
Id. (citing IOWA CODE § 804.22).
203 State v. Wilkes, 756 N.W.2d 838 (Iowa
2008).
204 Id.
205 Id. at 844–45.
206 Id. at 840.
207 Id.
201
202
14
pulled their patrol car to a distance of
about ten or fifteen feet from the
truck.208 The patrol car did not block
the truck in any way.209 After pulling up
behind the truck, the officers exited the
patrol car and approached the truck ―to
make sure everything was okay with the
driver.‖210 The officer arrived at Wilkes‘
window and smelled alcohol.211
apply, Wilkes must have been ―seized‖; a
mere ―encounter‖ does not require any
supporting suspicion of criminal
activity.220 A seizure occurs ―when the
officer, by means of physical force or
show of authority, has in some way
restrained the liberty of a citizen . . . .‖221
Although the officers were in uniform
and shined headlights on Wilkes‘ truck,
these facts were not dispositive on the
seizure issue because the United States
Supreme Court has lessened the
significance of a police uniform as a
factor in determining whether an
encounter is a seizure.222 Furthermore,
using headlights at night is simply not
coercive in the same manner as the
activation of emergency lights which
plainly imply a police command to stop
and remain.223
Shortly afterward, the officers
administered sobriety tests.212
The
officers concluded that there was a
strong likelihood that Wilkes‘ bloodalcohol level was over the legal limit.213
A preliminary breath test showed that
Wilkes was intoxicated.214 The officers
charged Wilkes for operating a motor
vehicle while intoxicated.215 Before trial,
Wilkes filed a motion to suppress,
claiming that the stop was illegal seizure
and that the evidence subsequently
obtained should be excluded at trial.216
The district court granted Wilkes‘
motion.217
The State filed for
discretionary review, and the court of
appeals affirmed.218 The Iowa Supreme
Court granted further review and
reversed.219
Next, although two officers were
involved in the encounter, one officer
remained behind the vehicle and did not
use physical force or show any authority:
―The involvement of two officers in this
fashion was certainly less threatening
than in Delgado, a case in which the
Supreme Court held that no seizure
occurred where immigration officers
stood at the exits of a building while
colleagues questioned employees.‖224
Also, the fact that officers parked behind
Wilkes‘ vehicle did not convert the
The court first explained that in
order for the Fourth Amendment to
Id.
Id. at 840–41.
210 Id. at 841.
211 Id.
212 Id.
213 Id.
214 Id.
215 Id.
216 Id.
217 Id.
218 Id.
219 Id.
208
209
Id. at 842.
Id. (internal quotations omitted).
222 Id. (citing United States v. Drayton, 536 U.S.
194, 204 (2002)).
223 Id. at 844.
224 Id. (citing INS v. Delgado, 466 U.S. 210, 218
(1984)).
220
221
15
encounter into a seizure.225 Wilkes‘
ability to drive his truck away was not
substantially impaired.226
Wilkes
himself testified at the suppression
hearing that there were at least two ways
for him to turn his truck around and
leave if he had desired.227
investigatory stop.231
The
232
answered in the affirmative.
court
Based on an anonymous phone call,
police dispatched an officer to a Subway
parking lot to investigate a suspected
intoxicated driver in a blue GMC pickup
truck.233
The officer arrived within
thirty
seconds
and
observed
Christoffersen getting into the driver‘s
seat of the blue GMC pickup truck.234 As
the officer approached, Christoffersen
put the truck into reverse and backed
into
the
police
cruiser.235
Christoffersen‘s blood alcohol level was
later determined to be .238.236 The
officer charged Christoffersen with
operating while intoxicated (second
offense).237
Christoffersen filed a
motion to suppress, alleging that the
officer illegally stopped his vehicle.238
Granting the motion, the district court
concluded that the officer seized
Christoffersen
without
reasonable
suspicion.239
The court concluded that, based on
the totality of the circumstances, no
seizure occurred under the Fourth
Amendment when officers approached
the vehicle.228 Prior to smelling alcohol
on Wilkes‘ person, the stop was
consensual. 229
Because the court concluded that a
seizure did not occur until after officers
had reasonable suspicion sufficient to
restrain Wilkes, the court did not
consider whether the encounter was
within the ―community caretaking‖
exception to the Fourth Amendment.230
5. State v. Christoffersen, 756 N.W.2d
230 (Iowa Ct. App. 2008)
On
discretionary
review,
Christoffersen argued that the officer
lacked reasonable suspicion because the
anonymous informant who reported
Christoffersen failed to provide detailed
information.240
Specifically,
Christoffersen pointed out that the
At issue in Christoffersen was
whether information provided by an
anonymous caller and corroborated by
an officer‘s observations, was sufficient
to establish reasonable suspicion for the
State v. Christoffersen, 756 N.W.2d 230, 233
(Iowa Ct. App. 2008).
232 Id.
233 Id.
234 Id.
235 Id.
236 Id.
237 Id. at 231.
238 Id.
239 Id.
240 Id. at 232.
231
Id.
Id.
227 Id.
228 Id. at 845.
229 Id.
230 Id.
225
226
16
anonymous call failed to identify the
driver, license plate number, and did not
contain any other descriptive details.241
The court stated that an anonymous call
has a rebuttable presumption of
reliability because it came from a citizen
informant.242 Furthermore, the officer
corroborated the caller‘s information
about the description of the vehicle and
location.243 Considering public safety
implications, the court found it
unnecessary to permit a vehicle to enter
the roadways where law enforcement
has received an anonymous call that the
driver is intoxicated and where the
responding officer has corroborated the
innocent details of the caller‘s
information.244
Id.
Id.
243 Id.
241
242
244
Id.
17
~ Fifth Amendment ~
II.
FIFTH AMENDMENT
A.
Double Jeopardy
punishment precludes the execution of
mentally retarded offenders.250 In light
of the Court‘s ruling in Atkins, the Ohio
trial court ordered a hearing to
determine the defendant‘s mental
capacity.251 The federal district court
intervened, granted habeas relief, and
vacated Bies‘ death sentence.252 The
court of appeals affirmed, holding that
the Double Jeopardy Clause precluded
the Atkins hearing. The Supreme Court
unanimously reversed.
1. Bobby v. Bies, 129 S. Ct. 2145 (2009)
In Bies, the Court granted certiorari
on the issues of (1) whether a hearing to
determine the defendant‘s mental health
status under Atkins v. Virginia put the
defendant twice in jeopardy, and (2)
whether the issue preclusion doctrine
embodied in the Double Jeopardy
Clause barred an Atkins hearing.245
Writing for a unanimous Court, Justice
Ginsburg held that an Atkins hearing
did not put the defendant twice in
jeopardy and that the issue preclusion
doctrine embodied in the Double
Jeopardy Clause did not bar an Atkins
hearing.246
The Court first addressed whether
the Atkins hearing put the defendant
twice in jeopardy.253 The Court, relying
on Sattazahn v. Pennsylvania, 537 U.S.
101 (2003), first noted that a defendant
is only twice put in jeopardy if there has
been an acquittal.254 The Court noted
that the defendant had not previously
been acquitted because he was convicted
and sentenced to death at trial.255
Additionally, the Court found significant
the fact that Atkins had not yet been
decided when the defendant was
sentenced.256
Before
Atkins,
the
defendant‘s mental capacity was not
determinative in whether a death
sentence was appropriate.257 Atkins,
however, altered the legal landscape to
bar the execution of mentally retarded
defendants.258
Therefore, the Court
In 1992, the defendant, Michael Bies,
was convicted in Ohio of the aggravated
murder, kidnapping, and attempted
rape of a ten-year old boy.247 Following
his conviction, the sentencing court
weighed the defendant‘s mental health
status and found that Bies suffered from
―mild to borderline mental retardation .
. . .‖248 The trial court imposed the
death sentence, which withstood
appellate review.249 Nearly a decade
later, the Court decided Atkins v.
Virginia, 536 U.S. 304 (2002), holding
that
the
Eighth
Amendment‘s
prohibition on cruel and unusual
Id. at 1248.
Id. at 2149.
252 Id.
253 Id. at 2151.
254 Id. at 2152.
255 Id.
256 See id.
257 Id.
258 Id.
250
251
Bobby v. Bies, 129 S. Ct. 2145, 2149 (2009).
Id. at 2154.
247 Id. at 2148.
248 Id. at 2149.
249 Id. at 2148–49.
245
246
18
reasoned, the defendant was not entitled
to a life sentence.259
incentive to challenge the defendant‘s
mental capacity.267 Thus, with the
State‘s incentive ―substantially altered,‖
the Court concluded that the application
of the issue preclusion doctrine would
be inappropriate because it would not
advance the ―equitable administration of
the law.‖268
The Court then analyzed whether the
doctrine of issue preclusion barred an
Atkins hearing where the defendant‘s
mental capacity had before been
considered.260 The Court first stated
that ―[i]f a judgment does not depend on
a given determination, relegation of that
determination is not precluded.‖261 The
Court concluded that Bies‘ mental
capacity at trial was not determinative
because, before Atkins, mental capacity
was merely a factor to be weighed
during sentencing.262 Thus, the Court
reasoned that the doctrine of issue
preclusion did not prevent an Atkins
hearing.263 In short, Justice Ginsburg
explained, [i]ssue preclusion . . . does
not transform final judgment losers, in
civil or criminal proceedings, into
partially prevailing parties.‖264
2. United States v. Yeager, 129 S. Ct.
2360 (2009)
In Yeager, the Court considered
whether an ―apparent inconsistency
between a jury‘s verdict of acquittal on
some counts and its failure to return a
verdict on other counts affects the
preclusive force of the acquittals under
the Double Jeopardy Clause of the Fifth
Amendment.‖269 Holding that it does
not, the Court reasoned that where an
acquittal on some counts decided an
essential fact on counts in which the jury
hung, the Double Jeopardy Clause bars
reprosecution.270
In other words,
―acquittals can preclude retrial on
counts on which the jury hangs.‖271
Finally, the Court stated that the
doctrine would not apply even if the
requirements for issue preclusion were
met.265 The Court explained that
prosecutors have traditionally used the
defendant‘s mental capacity to show that
the defendant would be a threat to the
community upon release.266 However,
with mental capacity as a dispositive
factor, prosecutors have a greater
Defendant F. Scott Yeager served as
Senior Vice President of Strategic
Planning for Enron.272 Yeager and other
Enron
corporate
officers
made
statements at the company‘s annual
equity analyst conference about the
Id.
Id.
261 Id.
262 Id.
263 Id.
264 Id. at 2149
265 Id. at 2153.
266 Id.
259
Id.
Id.
269 United States v. Yeager, 129 S. Ct. 2360, 2363
(2009).
270 Id. at 2368.
271 Id. at 2370.
272 Id. at 2363.
260
267
268
19
~ Fifth Amendment ~
vitality of an Enron project.273 The value
of Enron‘s stock rose dramatically over
the next two days.274 In the following
months, Yeager sold many of his own
stocks, earning $19 million in personal
profits.275 Enron‘s project fell apart,
however, and many of Yeager‘s claims
about Enron‘s value proved to be
―illusory.‖276
A grand jury charged
Yeager and other former Enron officers
with 126 counts on five federal offenses,
primarily involving insider trading and
fraud-related activity.277
The jury
acquitted Yeager on the fraud counts but
failed to reach a verdict on the insider
trading counts.278 The court entered
judgment on the acquittals and declared
a mistrial on the hung counts.279
trading would, therefore, give the
Government a second chance at proving
a critical fact that had previously been
decided by the jury during his first
trial.283 Consequently, Yeager argued,
the issue-preclusion aspect of the
Double Jeopardy Clause required
dismissal of all the insider trading
counts.284
The
Double
Jeopardy
Clause
precludes
the
Government
from
relitigating an issue that was considered
and decided in a jury‘s acquittal.285
This case was complicated by virtue of
the jury‘s acquittal on some counts and
failure to reach a verdict on other
counts.286 The court of appeals inferred
that the jury did not decide whether
Yeager possessed insider information
because, if the jury did decide the issue,
the jury would have either convicted or
acquitted Yeager of insider trading at
the first trial.287 Therefore, the court of
appeals concluded that, where a jury is
hung on a particular count, Double
Jeopardy does not bar reprosecution.
The Supreme Court granted certiorari to
resolve a split among the circuits about
whether courts may draw such an
inference.288 The Court concluded that
the fact that a jury failed to decide on a
Approximately one year later, the
Government recharged Yeager with
some, but not all, of the insider trading
counts on which the jury had previously
hung.280 Yeager moved to dismiss all
counts, ―claiming that his acquittals on
the fraud counts precluded the
Government from retrying him on the
insider trading counts.‖281 Specifically,
he argued that the jury‘s acquittals had
decided an essential element of the
insider trading counts.282
Yeager
claimed that reprosecution for insider
Id.
Id.
275 Id.
276 Id.
277 Id.
278 Id. at 2364.
279 Id.
280 Id.
281 Id.
282 Id.
273
274
Id.
Id.
285 Id. (citing Ashe v. Swenson, 397 U.S. 436
(1970)).
286 Id.
287 Id. at 2365.
288 Id.
283
284
20
particular count may not be considered
in the issue preclusion analysis.289
impermissible inference, the Court
remanded to determine if the jury
decided whether Yeager possessed
insider information by acquitting Yeager
on the fraud counts.293
The Court reasoned that courts may
not draw inferences on what a jury did,
or did not, decide from a hung jury.290 A
jury‘s failure to reach a verdict on a
particular count is a ―nonevent‖ and
therefore is irrelevant in the issue
preclusion analysis because:
3. State v. Kramer, 760 N.W.2d 190
(Iowa 2009)
At issue in Kramer was whether a
trial court may amend an erroneous
directed verdict of acquittal if
immediately corrected prior to any
further proceedings or whether the
recently-acquitted defendant would be
twice placed in jeopardy if the trial court
corrected its verdict of acquittal and
resumed trial.294 The Iowa Supreme
Court held that a judge may amend an
erroneous directed verdict of acquittal
where
the
ruling
is
corrected
immediately and prior to any further
proceedings.295 However, as soon as a
dismissal is placed on the record and the
jury is dismissed, double jeopardy bars a
second prosecution.296
[I]f it were relevant, the fact that
petitioner has already survived
one trial should be a factor
cutting in favor of, rather than
against, applying a double
jeopardy bar. To identify what a
jury necessarily determined at
trial, courts should scrutinize a
jury‘s decisions, not its failures to
decide.
A jury‘s verdict of
acquittal
represents
the
community‘s collective judgment
regarding all the evidence and
arguments presented to it.291
Addressing the facts of the case, the
Court noted that, to determine what a
jury has decided, courts ―examine the
record of a prior proceeding, taking into
account the pleadings, evidence, charge,
and other relevant matter, and conclude
whether a rational jury could have
grounded its verdict upon an issue other
than that which the defendant seeks to
foreclose
from
consideration.‖292
Because the court of appeals drew an
Kramer was arrested for operating a
motor vehicle while intoxicated.297 A
jury trial was held on June 6, 2007.298
At the close of the State‘s case, outside of
the presence of the jury, Kramer‘s
counsel moved for a judgment of
acquittal, contending that the State
failed to present sufficient evidence
Id.
State v. Kramer, 760 N.W.2d 190 (Iowa
2009).
295 Id. at 197
296 Id.
297 Id. at 193.
298 Id.
293
294
Id. at 2368.
Id. at 2367–68.
291 Id. at 2368.
292 Id. (quoting Ashe, 397 U.S. at 444).
289
290
21
~ Fifth Amendment ~
regarding the driver of the vehicle to
allow the case to be submitted to the
jury.299 The court ordered a directed
verdict of acquittal and stated that the
―the court orders a directed verdict of
acquittal on defendant‘s motion.‖300
The state objected, arguing that Kramer
admitted that he was driving.301 The
court overruled its ruling.302 After the
court‘s revision, Kramer asserted that
double jeopardy precluded further
proceedings once the court stated that
―the motion for acquittal is granted‖ and
that the ruling was not subject to
reversal or revision.303 The court agreed
with Kramer and no further proceedings
occurred.304 The court calendar entry
for June 6, 2007 states that the case was
dismissed.305 The state appealed.306
whether a judgment is considered final
upon the district court‘s oral declaration
of acquittal or whether a judgment is
final at some point thereafter.309
The court noted that it has long
allowed the correction of an order before
its entry on the docket.310
Double
jeopardy does not bar the immediate
repair of a genuine error in the
announcement of an acquittal.311 The
State may seek to persuade the court
before the proceedings move forward.312
Kramer would have suffered no
prejudice from the immediate revision
of the acquittal order.313 The court held
that a judge may amend an erroneous
directed verdict of acquittal where the
ruling is corrected immediately and
prior to any further proceedings.314
Double jeopardy would not have been
offended if the district court had
resumed trial at that point.315 However,
the trial court noted its dismissal on the
record and dismissed the jury.316 At that
moment, jeopardy terminated and
Kramer could not later be placed in
jeopardy.317
The Iowa Supreme Court declined to
review the State‘s claim that the trial
court erred in the initial grant of
acquittal because a verdict of acquittal
cannot be reviewed without violating the
Double Jeopardy Clause.307 The court
did, however, review the State‘s claim
that the court erred in holding that it
could not immediately correct an oral
grant of acquittal and the issue of
retrial.308
The question presented
before the Iowa Supreme Court was
4. State v. Heemstra, 759 N.W.2d 151
Id.
Id.
301 Id.
302 Id.
303 Id.
304 Id.
305 Id.
306 Id.
307 Id. at 193–94.
308 Id. at 194.
299
Id. at 195.
Id.
311 Id. at 196.
312 Id.
313 Id.
314 Id.
315 Id.
316 Id.
317 Id. at 197.
300
309
310
22
The issue before the Iowa Court of
Appeals in State v. Heemstra was
whether the Iowa Supreme Court‘s
reversal of a conviction of first-degree
murder because of a legally-erroneous
jury instruction on felony-murder in
State v. Heemstra, 721 N.W.2d 549
(Iowa 2006) (Heemstra I), constituted
an acquittal such that retrial was barred
on grounds of double jeopardy and
collateral estoppel.318 The Iowa Court of
Appeals held that retrial was not
barred.319
The court then turned to each of
Heemstra‘s
contentions.
First,
principles of double jeopardy were not
violated by retrying Heemstra because
reversal for errors at trial normally does
not raise such concerns, unless the
earlier reversal was based on grounds
that the evidence was insufficient to
support the conviction.323
Because
Heemstra I considered legal errors
alone—not sufficiency of the evidence
against Heemstra—double jeopardy did
not prevent reprosecution.324
Heemstra‘s was convicted of firstdegree murder, but his conviction was
reversed due to a faulty jury instruction
that improperly defined the underlying
felony triggering the felony-murder
rule.320
When
Heemstra
was
subsequently tried and convicted of
voluntary manslaughter, he argued that
double jeopardy, collateral estoppel, and
due process barred his retrial.321
Second, Heemstra‘s claim that
Heemstra I determined issues of
ultimate fact on both felony and
premeditated murder theories and that
collateral estoppel thus barred their
reconsideration in a second trial was
misplaced.325
Collateral estoppel
generally bars prosecution in criminal
cases when an issue of ultimate fact has
once been determined by a verdict and
final judgment.326 The Iowa Court of
Appeals rejected this argument for
similar reasons and rejected Heemstra‘s
double jeopardy claim—Heemstra I did
not address the factual sufficiency of
conviction
under
a
theory
of
327
premeditated of murder.
Heemstra I
only considered whether the felonymurder jury instruction given to
Heemstra‘s
jury
was
legally
The court of appeals first emphasized
that the Iowa Supreme Court in
Heemstra I did not consider whether
there were facts sufficient to sustain a
conviction
under
a
theory
of
premeditated murder, only that legal
deficiencies existed in Heemstra‘s jury
instructions.322
State v. Heemstra, 759 N.W.2d 151 (Iowa Ct.
App. 2008).
319 Id. at 153.
320 Id. at 152 (citing State v. Heemstra, 721
N.W.2d 549, 558 (Iowa 2006) (Heemstra I)).
321 Id. at 152.
322 Id.
318
Id. (citing State v. Dullard, 668 N.W.2d 585,
597 (Iowa 2003)).
324 Id. at 153.
325 Id.
326 Id.
327 Id.
323
23
~ Fifth Amendment ~
erroneous.328
The Iowa Court of
Appeals therefore concluded it was
proper to affirm Heemstra‘s voluntary
manslaughter conviction.329
on the trespass charge at 8:54 a.m.336 At
11:00 a.m. that day, the county attorney
filed a resistance to the guilty plea on
the trespass charge because it was a
lesser included charge of the burglary
offense charged by trial information.337
On August 20, 2007, Trainer was
arraigned on the harassment and
burglary charge and the four counts of
harassment were combined into one
count.338 On August 31, 2007, after a
hearing, the magistrate denied the
State‘s resistance to Trainer‘s guilty plea
on the trespass charge and Trainer
moved to dismiss the burglary charge
based on Double Jeopardy grounds.339
On November 5, 2007, the court
dismissed the burglary charge, finding
that trespass was a lesser included
offense of burglary and prosecution was
barred by Double Jeopardy.340
5. State v. Trainer, 762 N.W.2d 155
At issue in Trainer was whether the
double jeopardy clause bars prosecution
for burglary when the defendant pled
guilty to trespassing, a lesser included
offense, but did not give notice to the
State of the plea.330 The Iowa Court of
Appeals held that the Double Jeopardy
Clause did not bar prosecution for
burglary under those circumstances.331
Trainer was initially cited on July 5,
2007 for trespassing, a simple
misdemeanor.332 On July 24, 2007, she
was charged with four counts of firstdegree harassment and second degree
burglary arising out of the same
incident.333 On August 6, 2007, Trainer
filed a motion to dismiss the harassment
charges or to combine the four counts
into one count.334 On August 13, 2007, a
hearing was held on Trainer‘s motion
and Trainer filed a written guilty plea to
the misdemeanor trespass charge.335 On
August 15, 2007, Trainer was sentenced
The State and Trainer agreed that
trespass is a lesser included offense of
second-degree burglary.341 Generally,
the Double Jeopardy Clause prohibits
prosecution for a greater offense when
the defendant has already been
acquitted or convicted of the lesser
included offense.342 However, the court
noted that subsequent prosecutions may
not
be
prohibited
under
all
343
circumstances.
The acceptance of a
guilty plea to a lesser-included offense
Id.
Id.
330 State v. Trainer, 762 N.W.2d 155 (Iowa Ct.
App. 2008).
331 Id. at 159.
332 Id. at 156.
333 Id.
334 Id.
335 Id.
328
Id.
Id.
338 Id. at 157.
339 Id.
340 Id.
341 Id.
342 Id.
343 Id. at 158.
329
336
337
24
while charges on the greater offense are
pending does not have any of the
implications of an implied acquittal.344
In this case, Trainer pled guilty without
notice to the State in an effort to avoid
prosecution on the pending burglary
charge.345 The court ruled that Trainer
was not permitted to manipulate
proceedings
in
this
manner.346
Therefore, the Double Jeopardy Clause
did not prevent the State from
prosecuting Trainer for burglary.347
B.
with a child, to a police station for
questioning.350 Ortiz spoke little or no
English.351 After signing a ―voluntary
waiver of rights‖ written in Spanish,
Ortiz stated that he did not understand
his rights.352 Then, an officer read Ortiz
the Miranda advisory in Spanish.353
Ortiz waived his rights and confessed to
inappropriate contact with a child.354
The State charged Ortiz with lascivious
acts with a child.355 Prior to trial, Ortiz
filed a motion to suppress his
statements, alleging that he did not
knowingly, intelligently, and voluntarily
waive his Miranda rights.356
The
district court granted the motion, and
the State appealed.357 The court of
appeals
reversed,
finding
Ortiz
knowingly, intelligently, and voluntarily
waived his rights.358 Ortiz appealed.359
Miranda Rights
1. State v. Ortiz, 766 N.W.2d 244 (Iowa
2009)
At issue in State v. Ortiz was whether
the State had carried its burden to prove
by a preponderance of the evidence that
defendant Ortiz (who spoke Spanish)
knowingly and intelligently waived his
Miranda rights before his interrogation
in which Ortiz admitted having
lascivious acts with a child.348 The Iowa
Supreme Court held that the State failed
to prove by a preponderance of the
evidence the defendant knowingly and
intelligently waived his Miranda rights
during a custodial interrogation.349
On appeal before the Iowa Supreme
Court, the State first argued that Ortiz
was not in custody at the time he
confessed, and therefore no waiver of
Miranda was required, even if Ortiz‘s
waiver was defective.360
The Iowa
Supreme Court disagreed, based the
factors set forth in State v. Miranda for
Id. at 247.
Id.
352 Id.
353 Id.
354 Id.
355 Id. at 248.
356 Id. at 249.
357 Id.
358 Id.
359 Id.
360 Id. at 251.
350
The police brought Luis Ortiz, who
was suspected of inappropriate contact
351
Id.
Id.
346 Id.
347 Id. at 159.
348 State v. Ortiz, 766 N.W.2d 244 (Iowa 2009).
349 Id. at 254.
344
345
25
~ Fifth Amendment ~
determining whether a defendant is in
―custody.‖361
to give Ortiz his Miranda warnings.369
The policeman did not tell Ortiz that
Ortiz was under arrest at the station or
free to leave.370 Even if Ortiz wanted to
leave, he lacked transportation return to
his vehicle.371
Applying the Miranda factors, the
court noted that the policeman
approached and asked Ortiz if Ortiz
would accompany the policeman to the
police station for an interview.362 At the
time of the request, the officer‘s badge
and gun were on his waist and in full
view of Ortiz.363
Although another
officer explained to Ortiz that he was not
under arrest and could refuse to go to
the station, Ortiz agreed without any
reluctance.364 When Ortiz agreed to go
to the station, the officer did not give
Ortiz the choice of driving his own
vehicle to the station.365
Ortiz‘s
transportation was, therefore, miles
away from the station.366
The court determined that the
purpose of the interrogation was to
obtain Ortiz‘s confession.372 To carry
out that purpose, after asking a few
preliminary questions, the policeman
confronted Ortiz with allegations made
by the victim‘s mother that Ortiz had
inappropriate
contact
with
her
373
daughter.
The officer began his
questioning by asking how many times
Ortiz had inappropriate contact with the
girl.374
The court concluded: ―[I]n light of all
the circumstances, we believe once Ortiz
was transported to the police station and
put in the interview room a reasonable
person in Ortiz‘s position would have
understood his situation to be one of
custody. Thus, [the officers conducting
the interrogation were] required to give
Ortiz his Miranda warnings before
beginning the interrogation.‖375
At the station, an officer took Ortiz to
an interview room on the second
floor.367 The officer had to use a key
card to access the elevator, giving Ortiz
the impression that a key card would be
required to exit the area as well.368 Prior
to any questioning, the police attempted
Id. (quoting State v. Miranda, 672 N.W.2d
753 (Iowa 2003)). These factors are: (1) the
language used to summon the individual; (2) the
purpose, place, and manner of interrogation; (3)
the extent to which the defendant is confronted
with evidence of [his] guilt; and (4) whether the
defendant is free to leave the place of
questioning. Miranda, 672 N.W.2d at 759.
362 Ortiz, 766 N.W.2d at 251.
363 Id.
364 Id.
365 Id.
366 Id.
367 Id.
368 Id.
361
The court then considered whether
Ortiz had knowingly and intelligently
waived his Miranda rights during the
Id.
Id.
371 Id.
372 Id.
373 Id.
374 Id.
375 Id.
369
370
26
custodial interrogation.376 The court
found that the State failed to carry its
burden.377 First, the State failed to
establish that Ortiz spoke and
understood English.378 Because of this
language barrier, it was incumbent upon
the State to prove that the warnings
given to Ortiz in Spanish provided him
meaningful advice in a language he
could comprehend and on which he
could knowingly act.379
provided that, ―You have the right to
consult with an attorney before making
any questions and have said attorney
present during the interview.‖385 The
court highlighted the fact that Miranda
requires that a suspect be informed,
―that he has the right to the presence of
an attorney, and that if he cannot afford
an attorney one will be appointed for
him prior to any questioning if he so
desires.‖386
Another problem was that Ortiz was
given a written warning that ―made no
sense.‖380 While the literal translation
contained some small portions of the
required Miranda warnings, there was
no evidence that a Spanish-reading
individual
would
read
the
written warning and understand his or
her Miranda rights.381 After Ortiz read
and signed a waiver, he twice asked
what his rights were.382
Finally, after an officer read Ortiz his
rights, the Spanish-speaking officer
asked Ortiz, ―Do you have questions
right now?‖ Ortiz replied, ―No. Not right
now. I want to know [unintelligible].‖387
The officer interrupted the remainder of
Ortiz‘s answer and the interrogation
began immediately thereafter.388 The
court was concerned about the haste
used by the officer to commence the
interrogation after Ortiz stated, ―I want
to know [unintelligible].‖389 The court
was not convinced that Ortiz‘s
unintelligible statement was not in fact a
request for further clarification of the
waiver of his rights.390 Because it was
the State‘s burden to prove Ortiz‘s
unintelligible statement was not a
request for further clarification, the
court concluded that Ortiz had not
Both Ortiz and the State introduced
the literal translation of the Miranda
warnings as read by Sanchez.383 Ortiz‘s
translation states that the Spanishspeaking officer told Ortiz, ―You have
the right to consult with an attorney
before asking questions and have this
attorney
present
during
the
384
questioning.‖
The State‘s translation
Id. at 252–54.
Id. at 254.
378 Id. at 253.
379 Id.
380 Id.
381 Id.
382 Id.
383 Id.
384 Id.
376
377
Id.
Id. (quoting Miranda v. Arizona, 384 U.S.
436, 479 (1964)).
387 Id. at 254.
388 Id.
389 Id.
390 Id.
385
386
27
~ Fifth Amendment ~
knowingly and intelligently waived his
Miranda rights.391
medical assistance.398 Garcia declined,
stating he was tired from working.399
The officer observed an odor of alcohol
on Garcia‘s breath and that Garcia had
bloodshot, watery eyes.400 The officer
noted that Garcia‘s English was not
clear.401
2. State v. Garcia, 756 N.W.2d 216
(Iowa 2008)
The issue before the court in Garcia
was whether Iowa‘s implied consent law
requires a law enforcement officer, who
has requested a person suspected of
driving under the influence to submit to
chemical testing, must make reasonable
efforts to convey the consequences of
the person‘s refusal to submit to the test
or failure of the test.392 The Iowa
Supreme Court adopted a standard
which requires an officer, under the
circumstances facing him or her at the
time of the arrest, to utilize methods
which are reasonable and would
reasonably convey Iowa's implied
consent warnings.393
The officer proceeded with field
sobriety tests.402
Garcia failed a
horizontal gaze nystagmus test.403 He
refused additional tests.404 The officer
requested a preliminary breath test at
approximately 4:15 p.m. and Garcia
registered a blood alcohol concentration
of .198.405 At approximately 5:10 p.m.,
the officer attempted to read Garcia his
Miranda rights, but Garica advised the
officer that he did not speak English.406
The officer provided Garcia a copy of his
Miranda rights in Spanish.407 Garcia
signed an English Miranda form.408
The officer read Garcia the implied
consent advisory in English and asked
him if he understood.409 Garcia replied
that he would do what the officer wanted
and signed the English version of the
implied consent form.410
Garcia‘s
Datamaster registered his BAC at .144.411
On
January
27,
2006,
at
approximately 4:00 p.m., an officer
replied to a call of a male slumped over
his steering wheel in a parking lot.394
The officer observed Garcia upon
approaching the truck.395 The officer
knocked on the window, but Garcia did
not respond.396 The officer opened the
door and discovered a can of Bud Light
in the cup holder closest to Garcia.397
The officer woke Garcia and offered
Id.
Id.
400 Id.
401 Id.
402 Id.
403 Id.
404 Id.
405 Id. at 219.
406 Id.
407 Id.
408 Id.
409 Id.
410 Id.
411 Id.
398
399
Id.
State v. Garcia, 756 N.W.2d 216 (Iowa 2008).
393 Id. at 223.
394 Id. at 218.
395 Id.
396 Id.
397 Id.
391
392
28
No attempts were made to communicate
the implied consent advisory to Garcia
in Spanish.412
the test.421 The purpose of the implied
consent advisory is to give the driver a
basis for evaluation and decisionmaking and weigh the consequences of
refusal and/or failure.422
Garcia was charged with OWI.413 He
filed a written arraignment and plea of
not guilty stating that he did not read or
understand English.414 Garcia filed a
motion to suppress the breath test
results challenging the adequacy of the
implied consent advisory given to him
and asserting that he did not understand
it when he signed it.415 The district court
denied the motion and held that Garcia
had some understanding of English.416
Garcia was found guilty of OWI and he
appealed.417
The court noted that other
jurisdictions have found that the statute
only requires the warning to be given,
not that the driver understands the
consequences for refusal.423
Garcia
argued that a reasonableness standard
should be applied as done in
Wisconsin.424 The court stated that the
purpose of Iowa Code section 321J.8 is
to advise drivers of the consequences of
submitting to or failing the chemical
test.425
The court adopted the
Wisconsin standard which requires the
officer ―under the circumstances facing
him or her at the time of the arrest to
utilize those methods which are
reasonable, and would reasonably
convey
the
implied
consent
warnings.‖426 Reasonableness under the
circumstances
requires
the
consideration that alcohol dissipates
from the blood over time and the state
cannot be expected to wait indefinitely
to obtain an interpreter.427 ―Finding an
interpreter is not absolutely necessary
and should not interfere with evidence-
On appeal, the court stated that
Iowa‘s implied consent law is based on
the ―premise that a driver impliedly
agrees to submit to a test in return for
the privilege of using the public
highways.‖418 To be valid, a person‘s
consent to the test must be voluntary,
reasoned and informed.419 The ultimate
question is whether the defendant‘s
decision to comply with a valid request
is a reasoned and informed decision.420
The decision will be invalid if the driver
is not reasonably informed of the
consequences of refusal and failure of
Id.
Id.
414 Id.
415 Id.
416 Id.
417 Id.
418 Id. at 220.
419 Id.
420 Id.
412
Id.
Id. at 220–21.
423 Id. at 221.
424 Id.
425 Id.
426 Id. (citing State v. Piddington, 623 N.W.2d
528 (Wis. 2001)).
427 Id. at 222.
413
421
422
29
~ Fifth Amendment ~
gathering purposes
consent statute.‖428
of
the
implied
courts.432
Therefore the court was
forced to determine whether ―the
judgment of the court below‖ is the
decision of the court of appeals or that of
the district court.433
An objective standard should be used
to determine whether the officer‘s
conduct reasonably conveyed the
implied consent warnings.429 The court
ruled that the officer utilized the
reasonable methods available to her at
the time of the arrest to reasonably
convey the implied consent warnings to
Garcia based on their numerous
conversations and Garcia‘s failure to
indicate that he did not understand the
warnings.430
The court held that section 602.4107
requires that, when the Iowa Supreme
Court is equally divided on an issue
upon which the district court and court
of appeals differ, the decision of the
district court is affirmed by operation of
law.434 Accordingly, the decision of the
court of appeals was vacated, and the
conviction of Effler by the district court
was affirmed by operation of law.435
The underlying issue in State v.
Effler, which led the court to be divided
in the first place, was whether Effler was
denied his Fifth Amendment right to
counsel during an interrogation.436
Three justices concluded that Effler‘s
right to counsel had been violated, three
justices concluded they had not, and the
C.
Right to Counsel During
Interrogations
1. State v. Effler, 769 N.W.2d 880 (Iowa
2009)
The first issue in State v. Effler
involved section 602.4107 of the Iowa
Code, which provides: ―When the
supreme court is equally divided in
opinion, the judgment of the court below
shall stand affirmed, but the decision of
the supreme court is of no further force
or authority.‖431 In Effler, because the
court of appeals reversed the district
court‘s conviction of defendant Effler,
the Iowa Supreme Court was faced with
contrary decisions by the lower
State v. Effler, 769 N.W.2d 880, 882 (Iowa
2009).
433 Id. at 884.
434 Id.
435 Id.
436 Id. at 882. Effler also alleged ineffective
assistance of counsel because his trial counsel
did not challenge his confession under article I,
section 9 of the Iowa Constitution, Iowa‘s
equivalent to the United States Constitution‘s
Sixth Amendment. The court made short shrift
of this argument, concluding: ―Cases involving
whether the police must ask clarifying questions
when a suspect equivocally invokes his Fifth
Amendment right to counsel have been decided
under the Fifth Amendment and its state
equivalents, not the Sixth Amendment and its
state equivalents.‖ Id. at 890.
432
Id.
Id.
430 Id. at 223.
431 IOWA CODE § 602.4107 (2009).
428
429
30
court‘s seventh justice took no part in
the decision.437
talk to a lawyer. And I will give
you a copy of this in writing. I
have read this statement of my
rights and I understand what my
rights are. I am willing to make a
statement and answer questions.
I do not want a lawyer at this
time. I understand and know
what I am doing.‖442
Effler was arrested in a public library
after he was found with J.M., a two year
old girl, locked in the men‘s
bathroom.438 The child‘s babysitter and
the librarian heard screams coming
from the bathroom, and upon prying
into the bathroom, saw Effler shirtless
kneeling next to J.M. who had been
stripped naked.439
Library patrons
trapped Effler until police arrived and
arrested him.440
―I do want a court-appointed
lawyer.‖ Effler stated.443
―Okay.‖
replied.444
The police took Effler to a police
station where a detective interviewed
Effler in a small interview room, and
videotaped the entire interview.441 The
detective began advising Effler of his
Miranda rights: ―
The
detective
―If I go to jail.‖ Effler said.445
Effler then signed a waiver of his
Miranda rights, and the two left the
room so Effler could smoke a
cigarette.446 When they returned, the
detective asked Effler some questions,
and Effler confessed to kidnapping and
sexually assaulting J.M.447
Urn, you have the right to a
lawyer, talk to a lawyer for advice
before I ask any questions and
with
you
before—during
questioning if you wish. If you
can‘t afford one, one will be
appointed to you before any
questioning if you wish. If you
decide to answer questions now
without a lawyer present, you will
still have the right to stop
answering at any time. You also
have the stop right to stop
answering at any time until you
The State charged Effler with firstdegree
kidnapping,
second-degree
sexual abuse, and failure to register as a
sex offender after a 2002 conviction for
sexual assault in Texas.448 Prior to trial,
Effler filed a motion to suppress the
confession on the ground the State
violated his Fifth Amendment right to
Id. at 885.
Id.
444 Id.
445 Id.
446 Id.
447 Id.
448 Id. at 886.
442
443
Id.
Id. at 884.
439 Id.
440 Id.
441 Id.
437
438
31
~ Fifth Amendment ~
counsel.449 The district court denied the
motion, finding Effler‘s request for
counsel ―conditioned upon his going to
jail.‖
Effler was found guilty and
sentenced to life imprisonment without
the possibility of parole.450
justices believed his statements made
after signing the Miranda waiver form
were admissible.
On the other hand, three justices felt
that Effler‘s confession should have been
suppressed, emphasizing that the test of
whether a suspect has unambiguously
asserted his right to counsel is whether
―a reasonable officer in light of the
circumstances would have understood‖
the statement to be a request for an
attorney.458 These justices believed that
no reasonable detective would believe
that Effler, through the added words ―If
I go to jail,‖ was expressing the view that
a court-appointed attorney would
provide more effective assistance in the
confines of a jail cell than in the police
interrogation room.459
Instead, a
reasonable police officer, in light of the
circumstance of the officer‘s previous
statement about jail, would believe that
Effler was just building on the prior
police comment when he requested the
assistance of counsel as part of his oral
conversation.460
Effler appealed, claiming the trial
court erred in denying his motion to
suppress and the State denied him
effective representation of counsel for
his attorney‘s failure to challenge the
statements
under
the
Iowa
Constitution.451 The court of appeals
reversed, concluding the State violated
Effler‘s Fifth Amendment right to
counsel.452
Three justices believed the detective
understood Effler‘s request for counsel
as conditional.453 These justices noted
that when Effler stated he wanted
counsel ―If I go to jail,‖ the detective was
not required to stop questioning him.454
As Effler‘s statement did not meet the
standard of clarity set forth in Davis v.
United States455 he did not invoke his
Fifth Amendment right to counsel.456
Effler subsequently signed the Miranda
waiver form and confessed.457 Because
he did not unambiguously and
unequivocally request counsel, three
Thus, because the court was
deadlocked on this issue, it turned to
Iowa Code section 602.4107.461 The
court determined that the section‘s
language ―the judgment of the court
below‖ referred to the district court
because that is more consistent with: (1)
the definition of ―judgment‖ in the Iowa
Id.
Id.
451 Id.
452 Id.
453 Id.
454 Id.
455 Davis v. United States, 512 U.S. 452, 459
(1994) (holding that a request for counsel must
be ―unambiguous‖ and ―unequivocal.‖).
456 Effler, 769 N.W.2d at 888.
457 Id.
449
450
Id. at 891–92 (quoting Edwards v. Arizona,
451 U.S. 477 (1981)).
459 Id.
460 Id.
461 Id.
458
32
Rules and Civil Procedure and Black‘s
Law Dictionary,462
(2) there is no
definition of ―judgment‖ in the Iowa
Rules of Appellate Procedure, and when
the word is used, it refers to the
judgment of district courts,463 (3)
appellate courts do not enter a judgment
on appeal; the supreme court and court
of appeals remand cases for entry of
judgment by the district court (4) the
decision the Iowa Supreme Court is
reviewing when it grants an application
for further review, is that of the district
court, not that of the court of appeals.464
attorney or a family member required
exclusion of the arrestee‘s subsequent
refusal to take a breath test.466 The Iowa
Supreme Court ruled that although it
was error to admit the refusal, the error
was harmless.467
A 911 caller alleged that a man
driving a green Dodge Intrepid was
intoxicated.468 An officer found the
vehicle and stopped the vehicle for
speeding and failure to use a turn signal
to change lanes.469 The officer observed
that Garrity had slow and slurred speech
and had the scent of alcohol on his
breath.470 The officer placed Garrity in
the back of his squad car while checking
Garrity‘s license.471
Another officer
arrived and asked Garrity how much
Garrity had to drink.472 Garrity claimed
to have consumed two beers.473 Garrity
then told the officer that he knew he was
in trouble and asked to call a narcotics
officer.474 Apparently Garrity wanted to
arrange a deal in which he would reveal
a large drug operation in exchange for
no jail time.475 The officers refused to
allow Garrity to make a call.476 At that
point Garrity voluntarily performed and
failed a preliminary breath test, blowing
The court thus concluded ―[S]ection
602.4107 requires that, when the
supreme court is equally divided on an
issue upon which the district court and
court of appeals differ, the decision of
the district court is affirmed by
operation of law.‖465
2. Garrity v. State, 765 N.W.2d 592
(Iowa 2009)
The issue in Garrity was whether an
officer‘s failure to advise a defendant of
the scope of an arrestee‘s right to call an
Id. at 882 (citing BLACK‘S LAW DICTIONARY
858 (8th ed. 2004) (defining ―judgment‖ as ―[a]
court‘s final determination of the rights and
obligations of the parties in a case,‖ and
―includes an equitable decree and any order
from which an appeal lies‖)).
463 Id. at 883 (citing IOWA R. APP. P. 6.101(1)(b)
(2009) (―A notice of appeal must be filed within
30 days after the filing of the final order or
judgment.‖); Iowa R. App. P. 6.905(2)(b)(4)
(―The appendix shall contain . . . [a] file-stamped
copy of the judgment, order, or decision in
question.‖)).
464 Id.
465 Id. at 884.
462
Garrity v. State, 765 N.W.2d 592 (Iowa
2009).
467 Id. at 598.
468 Id. at 594.
469 Id.
470 Id.
471 Id.
472 Id.
473 Id.
474 Id.
475 Id.
476 Id.
466
33
~ Fifth Amendment ~
a .133.477 He was booked at the county
jail and later charged with his third
OWI, driving with a revoked or
suspended license, and driving under
suspension while barred as a habitual
offender.478 Garrity filed a motion to
suppress a videotape recording of his
arrest and a refusal to take a breath test
on the ground that he was denied his
right to speak with an attorney or family
member when he asked to speak with a
narcotics officer.479
The trial court
denied the motion to suppress.480
Garrity opted for a bench trial and was
found guilty on all counts.481 Garrity
appealed the OWI conviction.482
motions, slurred speech, judgment, and
inability to communicate.486
The court then determined that,
although it was error to admit Garrity‘s
refusal to take the breath test, the error
was harmless.487 The court emphasized
that the defendant was pulled over after
being identified by a 911 caller as a
possible drunk driver.488
The
responding officer detected alcohol on
his breath and noticed that he was
slurring his speech.489
Garrity also
admitted to drinking and failed three
sobriety tests before asking to contact
the narcotics officer.490 Based on this
evidence, the court found Garrity guilty
of driving while intoxicated, and the
violation of his rights under Iowa Code
section 840.20 was harmless.491
The Iowa Supreme Court first noted
that the individual Garrity requested to
call was outside the scope of the Iowa
statute providing for an arrestee to call
an attorney or a family member.483
Although the individual was outside the
scope of the statute, the officer had an
obligation under Iowa Code section
840.20 to inform Garrity that his right
to a phone call was limited to an
attorney or a family member.484 The
State therefore violated his rights under
Iowa Code section 804.20.485 The Iowa
Supreme Court found that the videotape
of the arrest was properly admitted
because it showed Garrity‘s body
3. State v. Walls, 761 N.W.2d 683 (Iowa
2009)
At issue in Walls was whether the
statement ―Roger Owens, can you get in
contact with him? That‘s my attorney‖
was a request for counsel, requiring the
officer seeking to begin an interrogation
to cease until an attorney was present.492
The Iowa Supreme Court held that the
statement was an invocation of the right
to counsel and the officer was required
Id.
Id.
479 Id.
480 Id.
481 Id.
482 Id. at 595.
483 Id. at 597.
484 Id.
485 Id.
477
478
Id.
Id.
488 Id.
489 Id.
490 Id.
491 Id.
492 State v. Walls, 761 N.W.2d 683 (Iowa 2009).
486
487
34
to stop any interrogation attempts until
an attorney was present.493
proceeded with the interrogation.503
Walls confessed to some of the
allegations during this interrogation.504
Defendant Walls was convicted of
sexual abuse in the first degree, sexual
abuse in the second degree, willful
injury causing serious injury, and
kidnapping in the second degree.494 A
woman reported that she came to Des
Moines to buy drugs and spend the
weekend partying.495
The woman
reported that she had been forcibly held
against her will by a man and pistolwhipped for refusing his sexual
advances.496
Walls‘ attorney moved to suppress
the statements on the ground that
Officer Bender continued to question
Walls after he asked for an attorney.505
The district court denied the motion and
Walls was found guilty by a jury.506
Walls appealed, arguing that his
confession
obtained
during
the
interrogation
should
have
been
suppressed because the interrogating
officer failed to honor his request for
counsel in violation of his Fifth
Amendment
right
against
selfincrimination and his right to
counsel.507
The court of appeals
determined that the district court should
have suppressed the statements but that
any error in admitting the statements
was harmless.508
Walls was arrested and brought in
for questioning in connection with the
woman‘s accusations.497 Officer Bender
read him his Miranda rights and asked
him to sign a waiver.498
Walls
responded by asking if Bender could get
in contact with Roger Owens, his
attorney.499 Bender clarified the request
and Walls replied that he would love to
talk, but not on ―that recorder.‖500
Instead of terminating the interview, the
officer continued to talk and asked Walls
once again to clarify his request for an
attorney.501
Walls never clearly
answered this second request for
clarification.502
Officer
Bender
The Iowa Supreme Court granted
further review.509 Under Miranda v.
Arizona, if a person indicates he wants
an attorney, the interrogation must
cease until an attorney is present.510 The
court identified Walls‘ statement, ―Roger
Owens, can you get in contact with him?
That‘s my attorney‖ as a request for
counsel and at that time. Officer Bender
Id. at 689.
Id. at 684.
495 Id. at 684.
496 Id.
497 Id.
498 Id. at 685.
499 Id.
500 Id.
501 Id.
502 Id.
493
Id.
Id.
505 Id.
506 Id.
507 Id.
508 Id.
509 Id.
510 Id. at 685–86 (citing Miranda v. Arizona, 384
U.S. 436, 444 (1996)).
494
503
504
35
~ Fifth Amendment ~
was, therefore, required to cease all
interrogation until an attorney was
present.511 Officer Bender‘s decision to
proceed
violated
Walls‘
Fifth
Amendment
rights
against
self512
incrimination and to counsel.
The
court then concluded that the error was
not harmless, overruling the court of
appeals.513
Id. at 686.
Id.
513 Id.
511
512
36
III. SIXTH AMENDMENT
conduct chemical analysis upon police
request.519
A. Confrontation Clause
Melendez-Diaz was charged with
distributing and trafficking cocaine.520
At trial, the prosecution submitted into
evidence the bags seized from the police
cruiser.521
It also submitted three
―certificates of analysis‖ showing the
results of the forensic analysis
performed on the seized substances.522
The certificates reported the weight of
the seized bags and stated that the bags
―[h]a[ve] been examined with the
following results: The substance was
found to contain: Cocaine.‖523
The
certificates were sworn to before a
notary public by analysts at the State
Laboratory
Institute
of
the
Massachusetts Department of Public
Health,
as
required
under
524
Massachusetts law.
1. Melendez-Diaz v. Massachusetts, 129
S. Ct. 2527 (2009)
At issue in Melendez was whether
forensic drug lab reports were
―testimonial‖
under
the
Sixth
Amendment.514
The United States
Supreme Court held that the reports
were testimonial, and therefore their
admission violated Melendez-Diaz‘s
Sixth Amendment right to confrontation
because the analysts who generated the
reports were not called as witnesses at
trial.515
Luis Melendez-Diaz and two other
individuals were arrested after police
officers witnessed the men conducting
what appeared to be a drug
transaction.516 The officers observed
Melendez-Diaz and his co-arrestees
fidgeting and making furtive movements
during the transport to the police
station.517 The officers searched the
police cruiser and found a plastic bag
containing 19 plastic bags with a white
substance resembling cocaine hidden
between the front and back seats.518
They submitted the seized evidence to a
state laboratory required by law to
Melendez-Diaz objected to the
admission of the certificates, asserting
that
Crawford
v.
Washington525
required the analysts to testify in
person.526 The objection was overruled,
and the certificates were admitted
pursuant to state law as ―‘prima facie
evidence of the composition, quality,
Id.
Id.
521 Id. at 2530–31.
522 Id. at 2531.
523 Id.
524 Id. (citing MASS. GEN. LAWS, ch. 111 § 13 (West
2006)).
525 541 U.S. 36 (2004).
526 Melendez-Diaz, 129 S. Ct. at 2531.
519
520
Melendez-Diaz v. Massachusetts, 129 S. Ct.
2527 (2009).
515 Id. at 2542.
516 Id. at 2530.
517 Id.
518 Id.
514
37
~ Sixth Amendment ~
and the net weight of the narcotic . . .
analyzed.‘‖527
Various formulations of this core
class of testimonial statements
exist: ex parte
in-court
testimony or its functional
equivalent -- that is, material
such as affidavits, custodial
examinations, prior testimony
that the defendant was unable to
cross-examine, or similar pretrial
statements that declarants would
reasonably expect to be used
prosecutorially;
extrajudicial
statements . . . contained in
formalized testimonial materials,
such as affidavits, depositions,
prior testimony, or confessions;
statements that were made under
circumstances which would lead
an objective witness reasonably
to believe that the statement
would be available for use at a
later trial.533
The jury found Melendez-Diaz guilty,
but he appealed, arguing that admission
of the certificates violated his right to be
confronted with the witnesses against
him
protected
by
the
Sixth
528
Amendment.
The Appeals Court of
Massachusetts rejected his claim and the
United States Supreme Court granted
certiorari.529
The Court first noted that the Sixth
Amendment provides that ―[i]n all
criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with
the witnesses against him.‖530
The
Court then restated the holding of
Crawford—that the Sixth Amendment
guarantees a defendant‘s right to
confront those ―who ‗bear testimony‘‖
against him.531
Thus, a witness‘s
testimony against a defendant is
inadmissible unless the witness testifies
at trial or, if the witness is unavailable,
the defendant had a prior opportunity
for cross-examination.532
Under the Crawford rubric, the
Court concluded that the documents
submitted against Melendez-Diaz were
clearly affidavits, despite the fact that
under Massachusetts law they were
classified as ―certificates.‖534 Moreover,
the certificates were a ―‘solemn
declaration or affirmation made for the
purpose of establishing or proving some
fact.‘‖535 The fact in question was that
the substance found in the possession of
Melendez-Diaz and his codefendants
was cocaine.536 That was exactly what
The Court next described the class of
testimonial statements that Crawford
identified as covered under the Sixth
Amendment confrontation clause:
Id. (citing MASS. GEN. LAWS, ch. 111 § 13 (West
2006)).
528 Id.
529 Id.
530 Id. (quoting U.S. CONST. amend VI).
531 Id. (quoting Crawford, 541 U.S. at 51).
532 Id.
527
Id. (quoting Crawford, 541 U.S. at 51–52).
Id. at 2532.
536 Id.
533
534
38
the analysts would have been expected
to assert if called to testify at trial.537
Therefore, the certificates submitted
against
Melendez-Diaz
were
the
functional equivalent of in-court
testimony, doing ―precisely what a
witness does on direct examination.‖538
trial and that petitioner had a prior
opportunity to cross-examine them,
Melendez-Diaz had a right to confront
the analysts at trial.544
The Court also pointed out that not
only were the certificates ―‗made under
circumstances which would lead an
objective
witness
reasonably
to
believe that the statement would be
available for use at a later trial,‘‖539 but
under Massachusetts law the sole
purpose of the certificates was to
provide ―prima facie evidence of the
composition, quality, and the net
weight‖540 of the analyzed substance.541
Because
the
state-law
provision
describing the purpose of the affidavits
was reprinted on the affidavits
themselves, the Court considered it
reasonable to conclude that the analysts
were aware of the affidavits‘ evidentiary
purpose.542
At issue in Harper was whether the
admission of hospital-bed statements
made by a badly-burned woman to an
emergency room doctor violated the
defendant‘s Sixth Amendment right to
confrontation.545 The Iowa Supreme
Court found that the hospital-bed
statements were nontestimonial and
therefore the Confrontation Clause did
not preclude the admission of the
statements even though the declarant
was unavailable to testify.546
2. State v. Harper, 770 N.W.2d 316
(Iowa 2009)
On January 7, 2006, Michael,
Harper, and other friends were drinking
and doing drugs at Michael‘s house.547
Harper left Michael‘s house around 4:30
a.m., but made eight phone calls to her
house before 6:35 a.m.548 Around 9:30
a.m., a couple driving by Michael‘s home
noticed the home was on fire and called
the fire department.549 A fireman found
Michael in the basement, lying face
down, hands and feet bound, and
Thus, under Crawford, the analysts‘
affidavits submitted against MelendezDiaz were testimonial statements, and
the analysts were ―witnesses‖ for
purposes of the Sixth Amendment.543
Because there was no showing that the
analysts were unavailable to testify at
Id.
Id. (quoting Davis v. Washington, 547 U.S.
813 (2006)).
540 MASS. GEN. LAWS, ch. 111 § 13.
541 Melendez-Diaz, 129 S. Ct. at 2532.
542 Id.
543 Id.
537
538
Id.
State v. Harper, 770 N.W.2d 316 (Iowa 2009).
546 Id. at 318.
547 Id. at 318.
548 Id.
549 Id.
544
545
39
~ Sixth Amendment ~
wrapped in a burning comforter.550
Michael was severely burned.551
statements
because
they
were
561
nontestimonial.
The court identified
precedent establishing that statements
to medical personnel are nontestimonial
in most circumstances.562
Such
statements are made to assist physicians
in the diagnosis and treatment of the
patient.563
Therefore, because the
statements were nontestimonial, their
admission did not run afoul the
Confrontation Clause.564
In the emergency room, an x-ray
technician heard Michael murmur,
―Harper did it, Harper did it.‖552 After a
physician discovered Michael was
conscious, he asked her what had
happened.553
Michael stated that
Harper raped and bound her, and then
set her house on fire.554 The physicians
completed a rape kit and another
attending physician inquired into what
had happened.555
Michael again
identified Sessions Harper as her
assailant.556 Michael‘s mother stated
that Michael mouthed the word
―Sessions‖ repeatedly from her hospital
bed.557 Eighteen days later, Michael
died from complications.558
3. State v. Schaer, 757 N.W.2d 630
(Iowa 2008)
The Schaer court addressed whether
Schaer‘s right to confrontation was
violated by the admission of hearsay
testimony implicating Schaer in a
domestic assault.565 The court held that
the testimony offered by the victim‘s
stepsister and medical providers was
proper and that counsel‘s failure to
object to the police officer‘s testimony
did not constitute ineffectiveness of
counsel.566
Harper was convicted after the
district court allowed the State to admit
Michael‘s incriminating statements.559
Harper appealed, claiming, inter alia,
that the admission of the statements
violated the Confrontation Clause.560
After concluding that the statements fell
within the excited utterance and dying
declaration exceptions to the hearsay
rule, the court concluded that the
district court properly admitted the
Teresa Bergan, the victim, and David
Schaer were involved in a romantic
relationship and living together on June
3, 2004. Sometime between 9:00 p.m.
and 10:00 p.m. on that evening, Bergan
called her stepsister, Sarah Reckner, and
told her stepsister that she and Schaer
Id.
Id.
552 Id.
553 Id.
554 Id.
555 Id.
556 Id.
557 Id.
558 Id.
559 Id.
560 Id.
550
551
Id. at 322.
Id.
563 Id.
564 Id.
565 State v. Schaer, 757 N.W.2d 630, 631 (Iowa
2008).
566 Id. at 638–39.
561
562
40
―had gotten into a fight.‖567 Bergan,
bloody and beaten, met Reckner at a
nearby church.568 Reckner took Bergan
to the emergency room where Bergan
was interviewed by a nurse, doctor, and
subsequently, a police officer.569 Bergan
identified Schaer as her assailant during
these interviews.570 At trial, Bergan
recanted her testimony, so the State
called Reckner, the medical personnel,
and the police officer to testify against
Schaer.571 A jury convicted Schaer of
domestic abuse with intent to cause
serious injury and with willful injury
causing serious injury.572
that Bergan‘s statements were not made
―during a deposition, while under oath,
or during a police interrogation.‖576 The
court distinguished State v. Bentley, 739
N.W.2d 296 (Iowa 2007), noting that
the circumstances surrounding Bergan‘s
statements ―lack[ed] the indicia of
formality
that
characterized
the
577
interview in Bentley.‖
The court
highlighted that no relationship existed
between the medical personnel and law
enforcement officer in this case.578
Before reaching the merits of the
police officer‘s testimony, the court
found that Schaer failed to preserve
error to challenge officer‘s testimony.579
During pretrial, the district court
reserved ruling on Schaer‘s motion in
limine to preclude the officer‘s
statements until trial.580
At trial,
however, Schaer‘s trial counsel failed to
object as the officer described Bergan‘s
statements
during
the
officer‘s
testimony.581 Thus, on appeal, the court
examined the issue through the lens of
ineffectiveness of counsel.582 Without
deciding whether Schaer‘s trial counsel
―failed to perform an essential duty,‖ the
court concluded that Schaer suffered no
prejudice by the officer‘s testimony.583
The court reasoned that the officer‘s
On appeal, Schaer argued that the
testimony offered by Reckner, the
medical personnel, and the police officer
was testimonial hearsay and therefore
the Confrontation Clause was violated
when the trial court admitted the
testimony.573 The court first concluded
that the Bergan‘s statements to Reckner
and the medical personnel were
nontestimonial.574 The court reasoned
that Bergan‘s statements were not made
to prove some fact; rather, ―[t]hey were
made to obtain assistance and treatment
for her injuries.‖575 Also, the court noted
Id.
Id.
569 Id.
570 Id. at 632.
571 Id.
572 Id. (citing I OWA C ODE §§ 708.1, 708.2A (2)(c),
708.4(1) (2003)).
573 Id. at 631.
574 Id .at 636.
575 Id. at 636 (citing Crawford v. Washington,
541 U.S. 36, 51 (2004) (stating ―testimony . . . is
typically a solemn declaration or affirmation
567
568
made for the purpose of establishing or proving
some fact.‖) (internal quotations omitted)).
576 Id.
577 Id. at 637.
578 Id.
579 Id. at 635.
580 Id. at 634.
581 Id.
582 Id. at 637.
583 Id. at 638.
41
~ Sixth Amendment ~
testimony was ―cumulative of other
properly admitted testimony.‖584 The
court accordingly held that Schaer‘s trial
counsel was not ineffective.585
Before the Iowa Supreme Court,
Shipley asserted that the custodian of
the record must be available for crossexamination in order to comply with the
The court
identified two distinct issues: first,
whether the underlying public record
may be admitted without a live witness
testifying and subject to crossexamination;
secondly,
whether
statements made by the custodian of
records in authenticating the underlying
driving record may be admitted without
the custodian‘s testimony.594
4. State v. Shipley, 757 N.W.2d 228
(Iowa 2008)
The salient issue in Shipley was
whether hearsay information contained
in an abstract of a driving record may be
admitted
without
violating
the
The Iowa
Supreme Court held that such
information
is
constitutionally
587
admissible.
The
court
discussed
recent
developments in the area of Sixth
Amendment right to confrontation and
Crawford v. Washington, 541 U.S. 36
(2004).595 The court recognized that
Crawford
did
not
provide
a
comprehensive
definition
of
―testimonial‖ evidence, but did offer
four examples of testimonial evidence:
grand jury testimony, preliminary
hearing
testimony,
former
trial
testimony, and statements resulting
from police interrogations.596 The court
noted that the Crawford opinion did not
specifically address the issue of business
records, but that Chief Justice
Rehnquist‘s
concurring
opinion
suggested that official records are
outside the scope of the Confrontation
Clause.597
Shipley was charged with driving
under revocation in violation of Iowa
Code section 321J.21.588 At trial, Shipley
challenged the lack of a human
signature on the certified driving
abstract as a violation of his Sixth
Amendment right to confrontation.589
The district court denied the motion,
and the abstract was admitted into
evidence.590 Shipley was convicted of
driving with a revoked driver‘s license.591
The court of appeals reversed, holding
that the record‘s admission violated the
Confrontation Clause of the Sixth
Amendment.592
Id. at 638.
Id. at 638.
586 State v. Shipley, 757 N.W.2d 228 (Iowa
2008).
587 Id. at 237.
588 Id. at 230.
589 Id. at 231.
590 Id.
591 Id.
592 Id.
584
585
Id.
Id.
595 Id. at 235.
596 Id.
597 Id. at 236.
593
594
42
The court found that the information
contained in a driving abstract was
nontestimonial.598 The court noted that
Shipley‘s driving abstract was created
prior to the events leading up to his
criminal prosecution and would have
existed without a prosecution.599 Thus,
the record was created without the
inquisitorial investigative function that
Crawford was designed to avoid.600 The
court held that Shipley‘s driving record
abstract was nontestimonial under
Crawford and admissible without a live
witness.601
with a certificate of authenticity is
presented by the custodian of records in
the routine course of business.605
Therefore, the court held, the admission
of a certified copy of Shipley‘s driving
abstract did not violate Shipley‘s Sixth
Amendment right to confrontation.606
B.
Right to Counsel
1. Montejo v. Louisiana, 129 S. Ct. 2079
(2009)
In Montejo, the Court considered the
scope and continued viability of the rule
announced in Michigan v. Jackson, 475
U.S. 625 (1986), forbidding police from
initiating interrogation of a criminal
defendant once he has requested
counsel at an arraignment or similar
proceeding.607 In a 5-4 ruling, the Court
overruled Jackson, holding that police
may initiate interrogation of criminal
defendants who are represented by
counsel, subject to the MirandaEdwards-Minnick line of cases.608
The court also addressed the second
issue of whether Crawford was violated
when the district court allowed an outof-court certification of authenticity to
establish the foundation for the
admission of Shipley‘s driving record.602
The court distinguished the driving
record
certification
from
the
certification of
records prepared
specifically for criminal prosecution,
such as lab reports.603 The court noted
that the purpose of the driving record
certification was not to avoid crossexamination, but only to allow
admission of a record prepared in a nonadversarial setting prior to criminal
proceedings.604 The court concluded
that a Confrontation Clause violation
does not occur when a driving abstract
On September 6, 2002, Montejo was
arrested for his participation in the
robbery and murder of Lewis Ferrari.609
During his preliminary hearing, the
court appointed Montejo an attorney
after charging him with first-degree
Id.
Id.
600 Id. at 238.
601 Id.
602 Id.
603 Id.
604 Id. at 238–39.
598
Id. at 239.
Id.
607 Montejo v. Louisiana, 129 S. Ct. 2079 (2009)
(quotations omitted).
608 Id. at 2091.
609 Id. at 2082.
599
605
606
43
~ Sixth Amendment ~
murder.610 Montejo did not request nor
did he deny the appointment.611 Later
that day, detectives approached Montejo
in prison and requested that he assist
the detectives in finding the murder
weapon.612
After being read his
Miranda rights, Montejo agreed to aid
the detectives.613 While riding along
with the officers, Montejo composed an
inculpatory letter apologizing to his
victim‘s widow.614 The district court
admitted the letter into evidence and a
jury found Montejo guilty.615
The
Louisiana Court affirmed, holding that a
criminal defendant must affirmatively
request an attorney in order to invoke
his Sixth Amendment right to counsel.616
Montejo appealed, arguing that the
detectives
could
not
initiate
interrogation once he was represented
because such initiation following
representation was per se coercive under
the
Court‘s
previous
ruling
in
Jackson.617 The Supreme Court granted
certiorari.618
between
defendants
in
different
620
States.‖
The Court noted that some
jurisdictions appoint counsel to indigent
defendants sua sponte or automatically
upon a finding of indigency.621 Arbitrary
distinctions would result between
jurisdictions
because
those
that
automatically appoint counsel fail to
provide the defendant an opportunity to
affirmatively invoke right to counsel.622
Thus, defendants in these jurisdictions
would never fall within the prophylactic
protection offered by Jackson because
they would never affirmatively assert
their right to counsel.623
The Court noted that the thrust of
the Jackson decision was to prevent
governmental badgering causing the
defendant to second-guess his decision
to invoke his right to counsel.624 The
Court found that the protections
afforded in the Miranda-EdwardsMinnick line of cases provided sufficient
prophylaxis
to
protect
criminal
defendants from governmental coercion
during
custodial
interrogation.625
Therefore, the protection afforded in
The
Court
rejected
both
619
arguments.
First, the Court rejected
Louisiana‘s
affirmative
invocation
interpretation of Jackson, finding the
standard unworkable and susceptible to
―arbitrary and anomalous distinctions
Id. at 4.
Id.
622 Id.
623 Id. 2084.
624 Id. at 2085.
625 Id. at 2090; see Minnick v. Miss., 498 U.S.
146 (1990) (precluding subsequent interrogation
once Miranda rights have been invoked, unless
counsel is present during the interrogation);
Edwards v. Arizona, 451 U.S. 477 (1981)
(providing that interrogation must immediately
stop once a defendant has invoked his right to
counsel); Miranda v. Arizona, 384 U.S. 436
(1966) (requiring governmental officials to
advise criminal defendants of their right to
counsel during a custodial interrogation).
620
621
Id.
Id.
612 Id.
613 Id.
614 Id.
615 Id.
616 Id. at 2083.
617 Id.
618 Id.
619 Id.
610
611
44
Jackson was superfluous, and the Court
accordingly rejected its prior ruling.626
and was charged with possession.633
Later, Carroll pled guilty, but the district
court denied his request for a deferred
judgment.634 Carroll appealed, claiming
that his attorney provided ineffective
assistance because, inter alia, the
attorney failed to file a motion to
suppress all evidence from the barn
search.635
2. State v. Carroll, 767 N.W.2d 638
(Iowa 2009)
The issue in Carroll was whether a
guilty plea may be set aside because the
defendant‘s
attorney
provided
ineffective assistance in failing to seek
suppression
of
the
defendant‘s
confession.627
Overruling Speed v.
State, 616 N.W.2d 158 (Iowa 2000), the
court held that a guilty plea under those
circumstances may be set aside.628
The court held that a defendant who
pled guilty because his attorney was
ineffective should not be treated
differently than a defendant who is
found guilty at trial due to ineffective
assistance.636 The court stated that ―[i]t
is not sensible to hold that [a] defendant
should bear the negative consequences
of counsel‘s ineffective assistance
because he pled guilty, but the
defendant [who went to trial and lost]
should get a second chance for justice
because he chose a trial.‖637 Applying
Zacek v. Brewer, 241 N.W.2d 41 (Iowa
1976), the court explained that a caseby-case analysis of each claim of
ineffectiveness is necessary and that the
defendant must prove that ―his counsel
breached a duty and prejudice
resulted.‖638 Prejudice will be found if
the party seeking relief shows ―that but
for counsel‘s breach of duty, the party
seeking relief would not have pled guilty
In Carroll, officers received a report
of an underage drinking party in
LeClaire, Iowa.629
The responding
officers arrived at the address to which
they were dispatched and heard sounds
of a party emanating from a nearby
barn.630 The officers, without a warrant,
went into the barn and observed several
juveniles drinking alcohol.631
The
officers then searched the premises and
discovered a brick of marijuana.632
Although Cory Wulf, the host of the
party, was initially arrested for
possession of marijuana, Carroll claimed
ownership of marijuana the next day
Id.
State v. Carroll, 767 N.W.2d 638, 643 (Iowa
2009).
628 Id. at 644.
629 Id. at 640.
630 Id.
631 Id.
632 Id.
626
627
Id.
Id.
635 Id.
636 Id. at 643–44.
637 Id.
638 Id. at 644.
633
634
45
~ Sixth Amendment ~
and would have elected instead to stand
trial.‖639
Supreme Court limited its review to the
jury-trial waiver issue.645
3. State v. Keller, 760 N.W.2d 451 (Iowa
2009)
A trial by jury is required unless
voluntarily and intelligently waived by a
defendant in writing and is preserved in
the trial court‘s record.646 The Iowa
Supreme Court has propounded five
factors for establishing whether a waiver
was knowing and intelligent.647 Keller
filed a written waiver, but it did not
include the areas of inquiry required
under State v. Liddell.648
The court
noted that the record did not contain a
colloquy between Keller and the district
court regarding the jury waiver.649
At issue in Keller was whether Keller
was entitled to a new trial based on
ineffective assistance of counsel when
Keller‘s trial counsel failed to assure that
Keller‘s waiver of the right to a jury trial
was accompanied by a personal, in-court
colloquy between Keller and the court as
required by Iowa law.640 The Iowa
Supreme Court held that trial counsel
failed to perform an essential duty, but
prejudice resulting from the error was
not established.641
The court previously held that a
failure to assure compliance with rule
2.17(1) constitutes a breach of duty by
trial counsel, but that prejudice is not
presumed.650 In Keller‘s case, the court
found that Keller established that
counsel failed to perform an essential
duty.651 However, the record did not
establish prejudice by a preponderance
of the evidence.652 Therefore, the court
decided to preserve the issue for any
postconviction relief sought by Keller.653
Keller was convicted of Operating
While
Intoxicated
(OWI),
first
642
offense.
On appeal, Keller argued
that the district court erred in denying
her motion to suppress evidence and
that her trial counsel was ineffective for
failing to assure that her jury-trial
waiver was knowing, voluntary and
intelligent.643
The court of appeals
concluded there was no error in the
denial of her motion to suppress, but
found that her counsel rendered
ineffective assistance by not ensuring
Keller‘s waiver was completed in
accordance with Iowa Rule of Criminal
Procedure 2.17(1).644
The Iowa
4. State v. Smith, 761 N.W.2d 63 (Iowa
2009)
Id.
Id. at 452.
647 Id.
648 Id.; State v. Liddell, 672 N.W.2d 805 (Iowa
2003).
649 Keller, 756 N.W.2d at 452.
650 Id. at 452–53.
651 Id. at 453.
652 Id.
653 Id.
645
646
Id.
State v. Heller, 756 N.W.2d 451 (Iowa 2009).
641 Id. at 453.
642 Id. at 451.
643 Id.
644 Id.
639
640
46
The issues in Smith were whether
Smith‘s
attorney‘s
concurrent
representation of a witness to testify for
Smith presented an actual or potential
conflict of interest and whether
disqualification of Smith‘s attorney was
warranted.654 The Iowa Supreme Court
held that only a potential conflict existed
and disqualification of Smith‘s attorney
was not warranted.655
discovered Marlon Earsery was among
the potential witnesses and was at that
time represented on unrelated charges
by Eric Parrish, a colleague from Parrish
law firm.664 The minutes of testimony
indicated
that
Earsery
was
a
foundational witness for the purpose of
admittance of audiotapes of telephone
calls.665
Montgomery discussed this
with the prosecuting attorneys, who
suggested there was no actual conflict
presented by Montgomery‘s continued
representation of Smith.666
Smith
sought
out
Attorney
Montgomery of the Parrish law firm in
July of 2006 when Smith was a prime
suspect in a murder investigation in
Waterloo.656 Smith turned himself in
and was charged with a drug offense.657
Montgomery was hired to represent
Smith on the drug charge.658 In August
2006, Smith was charged with firstdegree murder and again hired
Montgomery to represent him.659
Witness lists and minutes of testimony
were
not
provided
at
Smith‘s
arraignment.660
Montgomery sought
court-appointed co-counsel to assist in
Smith‘s defense.661 Mike Lanigan of
Waterloo was appointed.662 Lanigan
and Montgomery had no personal or
professional association prior to their
mutual representation of Smith.663 In
December
2006,
Montgomery
Montgomery and Lanigan agreed
that Lanigan would handle all
questioning or deposing involving
Earsery.667 Montgomery also took steps
in his firm to avoid all knowledge of
Earsery‘s
confidences
and
never
discussed either case with Attorney
Parrish.668 Montgomery proceeded as
lead counsel until May 2007 with the
understanding
that
no
conflict
existed.669 He spent considerable time
developing Smith‘s defense, deposed
over 50 witnesses and the defense was
planned
and
organized
with
670
Montgomery as lead counsel.
On May
9, 2007, the State filed a request for a
Watson hearing to determine conflict of
interest.671
At that time, the State
asserted that Montgomery should be
disqualified because of the conflict with
State v. Smith, 761 N.W.2d 63 (Iowa 2009).
Id. at 76.
656 Id.
657 Id.
658 Id.
659 Id. at 65–66.
660 Id.
661 Id. at 66.
662 Id.
663 Id.
654
655
Id.
Id. at 66–67.
666 Id.
667 Id. at 67.
668 Id.
669 Id.
670 Id.
671 Id. at 67–68.
664
665
47
~ Sixth Amendment ~
Earsery.672 Smith acknowledged and
voluntarily
waived
the
possible
673
conflict.
But the district court found
Earsery to be a key witness and required
Montgomery‘s
complete
674
disqualification.
existed.681 The presence of co-counsel
who was without conflict, Smith‘s
voluntary
waiver,
Montgomery‘s
avoidance at the firm of Earsery matters,
and the fact that the State‘s claim was
speculative all weighed against a finding
that an actual conflict existed.682 The
court
stated
that
Lanigan‘s
representation mitigated the risk that
Smith
would
receive
inadequate
representation.683 The court concluded
that the district court abused its
discretion by failing to make that
distinction.684 The court also noted that
there was no evidence that Lanigan was
incapable of handling the direct
examination of Earsery if necessary.685
Smith‘s interlocutory appeal.675
The
court emphasized that choice of counsel
is
an
element
of
the
Sixth
Amendment.676 In general, defendants
are free to choose who they employ and
a trial court may only disqualify counsel
if necessary to preserve the integrity,
fairness,
and
professionalism
of
677
proceedings.
The court considered the nature of
Montgomery‘s conflict and explained
that if an actual conflict exists, a
defendant‘s conviction must be reversed
because prejudice is presumed.678
However, if there is merely a possibility
of conflict, prejudice is not presumed.679
The court held that Smith‘s Sixth
Amendment right to counsel was
violated
when
Montgomery
was
680
disqualified.
The court agreed that
the possibility of a conflict was present,
but noted several facts that weighed
against a finding that an actual conflict
The court discussed the applicable
rules of professional conduct and stated
that Parrish‘s representation of Earsery
must
be
directly
adverse
to
Montgomery‘s representation of Smith
or the representation of either client
must
be
materially
limited
by
representation of the other to constitute
an actual conflict.686 The court
concluded
that
concurrent
representation under the circumstances
in Smith‘s case met neither standard,
and thus the district court abused its
discretion
by
disqualifying
687
Montgomery.
Id. at 68.
Id.
674 Id.
675 Id.
676 Id. at 69.
677 Id.
678 Id. at 70.
679 Id.
680 Id. at 72.
672
673
Id.
Id. at 72–74.
683 Id.
684 Id.
685 Id.
686 Id. at 75.
687 Id.
681
682
48
The court did, however, hold that
partial disqualification of Montgomery
was appropriate because a potential
conflict existed.688 The court found that
Montgomery was disqualified from any
aspect of Smith‘s defense involving
Earsery.689
Partial disqualification
mitigated any possible conflict while
simultaneously minimizing interference
with Smith‘s right to choice of
counsel.690
amount of alcohol before leaving for a
motel sometime after midnight.694 The
victim awoke the next morning naked
with a lump on her head, bruises on her
inner thighs, and was unable to recall
the events of the previous night.695 One
week later, the victim went to the police
who arranged a taped phone call in
which she would attempt to secure an
admission from Cromer.696 She called
him and repeatedly accused him of
raping her and taking advantage of her
drunken state.697
Cromer initially
denied her allegations stating, ―It wasn‘t
like that,‖ but after the victim pressed
him for about thirty minutes he
admitted that he ―took advantage of a
drunk girl‖ and that he would call the
encounter ―date rape‖ if it happened to
his sister.698 At trial, the State offered
the recording into evidence without
objection.699 The State played the tape
recording in its entirety.700 The jury
convicted Cromer of third-degree sexual
abuse.701 Cromer appealed.702
5. State v. Cromer, 2009 Iowa Sup.
LEXIS 37 (Iowa 2009)
At issue in Cromer was whether
defense counsel‘s failure to object to the
introduction of a recorded telephone
conversation between the defendant and
the victim of sexual abuse constituted
ineffective assistance of counsel where
(a) the victim was being coached by the
police, (b) the victim forcefully and
emotionally accused the defendant of
raping her while the victim was
unconscious, and (c) the recording
contained the victim‘s opinion that the
defendant had raped her.691 The court
held that Cromer received ineffective
assistance of counsel, resulting in
prejudice to his case.692 The court
ordered a new trial.693
Evaluating the ineffective assistance
of counsel issue, the Iowa Supreme
Court first found that Cromer‘s trial
counsel failed to perform an essential
duty.703 The court evaluated whether
Id. at *3.
Id.
696 Id. at *4.
697 Id. at *4–5.
698 Id. at *5–6.
699 Id. at *7–8.
700 Id.
701 Id. at *8.
702 Id. at *9–11.
703 Id. (citing State v. Horness, 600 N.W.2d 294,
298 (Iowa 1999)).
694
Cromer and a friend met the victim
at a bar where the two consumed a large
695
Id. at 75–76.
Id.
690 Id.
691 State v. Cromer, 2009 Iowa Sup. LEXIS 37
(Iowa 2009).
692 Id.
693 Id. at *7.
688
689
49
~ Sixth Amendment ~
defense counsel should have objected to
the admission of the tape on grounds
that it was overly prejudicial evidence
under Iowa Rule of Evidence 5.403.704
First, the conversation was very
emotional.705 Cromer and the victim
were longtime friends and the victim
repeatedly
appealed
to
their
706
friendship.
The victim was distraught
throughout the conversation.707 The
victim also spoke of her inability to
sleep, her anger, and shame.708 The
police were present and coached the
victim through the call.709
They
encouraged her with hand motions to
keep the conversation running.710 The
court viewed these facts as creating a
coercive
environment;
thereby
substantially
reducing
the
tape
711
recording‘s probative value.
blurred the legal definition of rape
because the parties had a lengthy
discussion about ―date rape‖ and what
they believed constituted date rape.714
The court stated that competent defense
counsel would have objected to at least
some of the statements made on the
recording, and would have requested a
limiting instruction on others.715
Competent trial counsel also would have
objected to the victim‘s recorded
statement that ―you guys raped me‖ as
improper
opinion
testimony,
particularly in light of the fact that the
victim had no actual recollection of the
events that transpired.716
Under the prejudice prong of
Cromer‘s ineffective assistance of
counsel claim, the court found that
―[u]nder all the facts and circumstances,
a reasonable probability exists that the
result would have been different had
trial
counsel
objected
to
the
inadmissible
evidence,
and
our
confidence in the verdict is sufficiently
undermined so as to require reversal of
the conviction.‖717
Next, the court found that the tape‘s
reduced probative value was outweighed
by its prejudicial effect.712 This was
because of several statements made by
the victim on the recording appealed to
the emotions of the jury because the
victim repeated her belief that Cromer
was not a ―decent guy‖ and stated that
―little pieces‖ of her had been ―taken
away.‖713
The tape also improperly
6. State v. Bentley, 757 N.W.2d 257
(Iowa 2008)
Bentley was convicted for the firstdegree kidnapping and first-degree
murder of J.G., a ten-year-old girl.718
Id. at *16 (citing IOWA RULES OF EVIDENCE
5.403).
705 Id. at *18.
706 Id.
707 Id.
708 Id. at *18–19.
709 Id. at *19.
710 Id.
711 Id.
712 Id. at *23.
713 Id. at *21.
704
Id. at *21–22.
Id. at *22.
716 Id. at *23–24.
717 Id. at *26.
718 State v. Bentley, 757 N.W.2d 257 (Iowa
2008).
714
715
50
On appeal, Bentley argued that the
evidence was insufficient to support his
conviction for first-degree kidnapping,
that his attorney was ineffective for
failing to request a new trial for juror
misconduct and for failing to object to
an
instruction
defining
―malice
aforethought,‖ and that the judge
imposed a consecutive sentence based
upon an improper purpose.719 The Iowa
Supreme Court held that (1) substantial
evidence supported Bentley‘s conviction
for first-degree kidnapping, (2) Bentley‘s
attorney was not ineffective for failing to
object to the ―malice aforethought‖ jury
instruction
and
that
the
juror
misconduct issue should be addressed in
a postconviction relief proceeding, and
(3) Bentley‘s consecutive life-sentences
were not based upon an improper
reason.720
Police immediately suspected
Bentley kidnapped the child.726
that
The next day, police received a tip
from Robin Walker and Danny Hill, who
suspected that Bentley may have taken
the child to a trailer on the Orval Yoder
Turnpike.727
Walker and Hill were
aware of the trailer because they were
considering purchasing the trailer from
Bentley.728 Police soon arrived and
discovered J.G.‘s lifeless body in the
vanity beneath the sink.729
DNA
samples collected from J.G.‘s body
matched Bentley‘s DNA.730 Also, DNA
samples recovered from Bentley‘s
fingernails matched J.G.‘s DNA.731
Bentley was charged and convicted of
first-degree kidnapping and first-degree
murder.732
The judge imposed two
consecutive life sentences, stating that
the sentence should send a message that
any ―future application for commutation
of sentence ‗should not be taken
seriously.‘‖733
On March 24, 2005, Bentley was
making vehicle repairs at J.G.‘s home.721
Bentley worked late into the evening,
occasionally entering J.G.‘s home to
warm himself.722 At 8:00 p.m., J.G.‘s
grandmother put J.G.‘s brother and
sister to bed while Bentley left the
home.723 J.G.‘s grandmother then went
to check on J.G, but J.G. was missing.724
J.G.‘s grandmother immediately called
J.G.‘s mother and then the police.725
The court first found that substantial
evidence supported Bentley‘s conviction
for first-degree kidnapping.734 Although
no direct evidence linked Bentley to the
kidnapping, the court found that ―there
was ample circumstantial evidence to
support a finding that [Bentley]
Id.
Id.
728 Id.
729 Id. at 261.
730 Id.
731 Id.
732 Id.
733 Id.
734 Id. at 263.
726
727
Id. at 261.
Id. at 259–67.
721 Id. at 259.
722 Id.
723 Id. at 260.
724 Id.
725 Id.
719
720
51
~ Sixth Amendment ~
removed J.G. from her home.‖735 The
court explicated that Bentley was at
J.G.‘s home at about the time J.G. was
kidnapped, Bentley left unobserved
from J.G.‘s home on March 24th, there
was no forced entry, J.G. was too young
to be able to transport herself to the
trailer, a witness testified that,
approximately two hours after the
kidnapping, Bentley asked for directions
to a road leading to the trailer, officers
found Bentley in the trailer the next
morning, the trailer was smeared with
J.G.‘s blood, and Bentley‘s sperm was
found inside J.G.‘s body.736 Therefore,
because ―direct and circumstantial
evidence are equally probative for the
purposes of proving guilt beyond a
reasonable doubt,‖ the court found that
substantial evidence supported Bentley‘s
conviction
for
first-degree
737
kidnapping.
held that proper adjudication of the
issue required a more developed
record.741 Consequently, the court held
that the issue should be addressed in a
postconviction relief proceeding.742
Bentley also argued that his counsel
was ineffective for failing to object to a
jury instruction defining ―malice
aforethought‖ as:
―Malice‖ is a state of mind which
leads one to intentionally do a
wrongful act to the injury of
another out of actual hatred, or
with an evil or unlawful purpose.
Malice may be established by
evidence of actual hatred, or by
proof of a deliberate or fixed
intent to do injury.
Malice may be found from the act
and conduct of the defendant,
and the means used in doing the
wrongful and injurious act.743
The court then addressed Bentley‘s
ineffective
assistance
of
counsel
claims.738 Bentley first argued that his
attorney was ineffective for failing to
request a new trial for juror
misconduct.739
Specifically, Bentley
argued that, because a juror referenced a
dictionary to look up ―necromancy‖ and
used
Amazon.com
find
―The
Necromantic Ritual Book‖ (a book
introduced at trial), his attorney should
have demanded a new trial.740 The court
Bentley argued that these instructions
allowed the jury to convict him ―without
finding he had malice before the act
causing J.G.‘s death.‖744 The court,
however, rejected Bentley‘s assertion,
noting that the statement that malice ―is
a state of mind which leads one to
intentionally do a wrongful act‖
sufficiently informed the jury that
Id.
Id.
737 Id. at 262–63 (internal quotations omitted).
738 Id. at 263–64.
739 Id. at 264.
740 Id.
735
736
Id.
Id.
743 Id. at 265.
744 Id.
741
742
52
malice was required before the wrongful
act.745
sentence.751
Therefore, the court
concluded, ―the message broadcasted by
the sentencing court in this case is not
improper because it does not bind or
limit the board of parole or the governor
in any future consideration of
commutation of the sentences.‖752
Finally, the court found that the
imposition of two consecutive life
sentences was not based upon an
improper reason.746 During sentencing,
the district court noted that:
7. State v. Johnson, 756 N.W.2d 682
(Iowa 2008)
The nature of the acts, the fact
that these were different acts of
violence that involve their own
level of cruelty and that this be as
signal to any future parole board
or governor that any application
of commutation should not be
taken seriously.747
At issue in Johnson was whether a
defendant‘s right to counsel was violated
when the defendant waived his right to
an attorney and proceeded to trial with
standby counsel and the trial court
placed restrictions on the role the
standby counsel could serve.753 The
Iowa Supreme Court held that the trial
court properly limited the involvement
of Johnson‘s standby counsel.754
The Supreme Court explained that a
district court may not consider the effect
that a sentence will have on the
defendant‘s eligibility for parole during
sentencing.748
However, Bentley‘s
sentence did not implicate his eligibility
for parole; rather, it concerned Bentley‘s
application for commutation.749 The
court explained that ―unlike parole, the
date a person is eligible for
commutation of sentence is independent
of the length of the sentence
imposed.‖750
The consecutive life
sentences did not have an impact on the
parole board‘s ability to review Bentley‘s
commutation application, or on whether
the governor would commute Bentley‘s
A witness saw Johnson walking
toward a bank with white bags in his
pockets and a black stocking cap on his
head.755 The witness wrote down the
license plate number of Johnson‘s
vehicle and then saw Johnson return to
his vehicle, carrying a gun and white
bags full of ―something.‖756 The witness
provided this information to the
police.757
With a warrant, officers
searched Johnson‘s apartment and
discovered a BB pistol along with a
Id.
Id.
753 State v. Johnson, 756 N.W.2d 682, 685
(2008).
754 Id. at 690.
755 Id. at 685.
756 Id.
757 Id.
751
752
Id.
Id. at 266.
747 Id.
748 Id.
749 Id.
750 Id.
745
746
53
~ Sixth Amendment ~
duffel
bag
containing
money.758
Johnson was charged with first degree
robbery.759
guilty.769 He appealed the denial of the
motion
to
suppress
and
the
constitutionality of the district court‘s
limitations on his standby counsel‘s
involvement.770 The court of appeals
found that the search warrant was valid
and the denial of Johnson‘s motion to
suppress was proper.771 The court of
appeals also found that district court did
not abuse its discretion in limiting
Johnson‘s
standby
counsel‘s
participation.772
Johnson elected to represent himself
at trial.760 The court appointed standby
counsel to assist Johnson.761 Johnson
filed a motion to suppress, challenging
the validity of the search warrant, but
the district court denied his motion on
the ground that Johnson lacked
standing to contest the search.762 A jury
convicted Johnson and he appealed.763
The court of appeals reversed and
remanded for a new trial because
Johnson‘s jury instructions were
defective.764
At his second trial,
Johnson filed another motion to
suppress, again claiming that the search
warrant was defective.765 His motion
was denied again, this time on the
ground of res judicata.766 During the
second trial, the court instructed
Johnson‘s standby counsel to refrain
from volunteering information or
assistance to Johnson and that he could
only reply to direct requests.767 Johnson
wanted standby counsel to volunteer
information and make suggestions if he
saw
something
that
Johnson
768
overlooked.
Johnson was found
The Iowa Supreme Court ruled that
the search warrant was valid and
supported by probable cause.773 Thus,
the district court‘s failure to rule on the
validity of the search warrant in
Johnson‘s second trial was harmless,
even if res judicata did not bar Johnson
from reasserting a violation of his
Fourth Amendment rights.774
The court next considered Johnson‘s
claim that his Sixth Amendment rights
were violated.775 The court first noted
that the Sixth Amendment guarantees
the right to self-representation and the
right to counsel—but those rights are
mutually exclusive.776 Johnson did not
have an absolute right to both.777 The
court explained that a trial court has the
discretion to appoint standby counsel
Id.
Id.
760 Id.
761 Id.
762 Id.
763 Id.
764 Id.
765 Id.
766 Id.
767 Id. at 685–86.
768 Id. at 686.
758
759
Id.
Id.
771 Id.
772 Id.
773 Id.
774 Id.
775 Id.
776 Id. at 687.
777 Id.
769
770
54
and place restrictions upon the scope of
standby counsel‘s representation, so
long as the limitations are reasonable.778
The court concluded that the limitations
placed on Johnson‘s standby counsel
were reasonable because the restrictions
were (1) directed at asserting logistical
control over the courtroom, and (2) they
did not interfere with Johnson‘s ability
to consult with his standby counsel.779
mischief, domestic abuse assault and
first-degree kidnapping in 1996.783 The
State
offered
Kirchner
a
plea
784
agreement.
The agreement provided
that the State would reduce the charges
to second-degree kidnapping and
second-degree burglary if Kirchner to
plead guilty.785
Kirchner‘s attorney
forwarded a copy of the plea offer to
Kirchner, who was out on bond.786
Kirchner rejected the offer against the
advice of his attorney.787
8. Kirchner v. State, 756 N.W.2d 202
(Iowa 2008)
During his trial, Kirchner exhibited
bizarre behavior and his attorney
requested a mistrial, asserting that his
client was mentally incompetent.788 A
mistrial was granted and Kirchner was
found incompetent as a consequence of
psychosis
related
to
chronic
methamphetamine
use.789
Approximately
one
month
later,
Kirchner was determined to have
regained competency and a second trial
began in January 1998.790
The question presented in Kirchner
was whether an objective or subjective
standard should apply to ineffective
assistance of counsel claims where the
defendant accepts a plea bargain.780 The
Iowa
Supreme
Court
reaffirmed
established precedent, holding that a
subjective standard applies when
considering ineffective assistance of
counsel claims in this context.781 In
other words, the relevant inquiry is
whether the defendant would have
accepted or rejected the plea offer if he
had been correctly advised by counsel—
not whether a reasonable person would
have accepted or rejected the plea offer
if they had been correctly advised by
counsel.782
Before his second trial, the State
offered to allow Kirchner to plead to
―just about anything,‖ as long as it
resulted in a prison term.791 Kirchner
rejected the offer and the case proceeded
to trial.792 Kirchner requested a new
Kirchner was charged with two
counts of first-degree burglary, criminal
Id. at 203.
Id.
785 Id.
786 Id.
787 Id.
788 Id.
789 Id.
790 Id.
791 Id.
792 Id.
783
784
Id. at 689.
Id.
780 Kirchner v. State, 756 N.W.2d 202, 203 (Iowa
2008).
781 Id. at 204.
782 Id.
778
779
55
~ Sixth Amendment ~
attorney but the court denied his
request.793 Kirchner was found guilty of
all counts and sentenced to life without
parole.794 Kirchner‘s convictions were
affirmed on direct appeal.795 Kirchner
then filed for postconviction relief,
asserting that his trial counsel was
ineffective by erroneously advising him
as to the strength of the State‘s case on
the kidnapping charge.796
Kirchner
alleged that his attorney‘s advice caused
him to reject the State‘s twenty-five year
plea offer.797 Kirchner testified that
counsel told him the State‘s case was
circumstantial and Kirchner could
prevail.798 Kirchner‘s attorney testified
that his recollection of his advice was
that the kidnapping charge was the
weakest charge of all the charges.799
Kirchner did not deny that he was
advised by counsel to accept the plea
offer.800
measure of prejudice in determining
whether a defendant would have
accepted a plea offer and received a
lesser sentence but for the ineffective
assistance of counsel.803
The court
rejected Kirchner‘s claim that his
attorney misrepresented the strength of
the State‘s case by characterizing the
kidnapping charge as ―weak.‖804 The
court stated that Kirchner‘s attorney
advised him to accept the state‘s plea
offer because the evidence supported
convictions on the charges.805
The
record established that Kirchner would
not have accepted a plea offer regardless
of his attorney‘s advice.806 The court
ruled
that
Kirchner
failed
to
demonstrate prejudice and denied his
petition for postconviction relief.807
Before the Iowa Supreme Court,
Kirchner argued that courts should ask
―whether a reasonable person would
have accepted or rejected the plea offer
if correctly advised by counsel.‖801 The
Iowa Supreme Court found no support
for Kirchner‘s proposed objective
standard.802 The court held that a
subjective standard is the proper
In Hallock, the Iowa Court of
Appeals
considered
whether
an
ineffective assistance of counsel claim
was established
where (a)
the
defendant‘s attorney failed to correct the
trial court‘s error by neglecting to
inform a defendant entering an Alford
plea that mandatory parole was
required, and (b) the defendant failed to
offer evidence showing that he would
have rejected the plea if not for his
9. State v. Hallock, 765 N.W.2d 598
Id.
Id. at 203–04.
795 Id. at 204.
796 Id.
797 Id.
798 Id.
799 Id.
800 Id.
801 Id. at 205.
802 Id. at 205.
793
794
Id. at 206.
Id.
805 Id.
806 Id. at 207.
807 Id.
803
804
56
attorney‘s failure.808 The Iowa Court of
Appeals held that an ineffective
assistance of counsel claim was not
established under those circustances.809
arrest of judgment and consented to
immediate sentencing.816 Hallock was
sentenced
to
fifteen
years
817
imprisonment.
The Department of
Corrections notified the court that the
sentencing order failed to contain the
mandatory ten-year period of parole
required under Iowa Code section
903B.2.818
The court held a
resentencing hearing and amended the
sentence to include the mandatory
parole.819
Hallock appealed his conviction for
assault with intent to commit sexual
abuse causing bodily injury other than
serious injury.810 He argued that his
counsel was ineffective in handling his
guilty plea.811 Hallock was charged with
burglary in the first degree, sexual abuse
in the second degree, intimidation with
a dangerous weapon, and possession of
a firearm by a felon.812 The charges
resulted from an incident where Hallock
broke into the home of the mother of his
children, fired a handgun at her bed,
told her she was going to die, put the
gun to her head, and forced her to have
sex with him twice.813
On appeal, Hallock alleged that his
counsel was ineffective.820
Hallock
argued that his counsel should have
challenged the plea for lack of a factual
basis.821 He claimed that his Alford plea
to the assault charge did not have a
factual basis in the minutes of testimony
and there is no evidence of the victim
sustaining any injury.822 The district
may not accept a guilty plea without first
determining that there is a factual basis
indicating guilty, even when a defendant
gives an Alford plea.823 When trial
counsel allows a defendant to plead
guilty and a factual basis does not exist,
counsel has failed to perform an
essential duty.824
Following a plea agreement, the
State amended the trial information
from to burglary in the first degree to
burglary in the second degree, and from
sexual abuse in the second degree to
assault with intent to commit sexual
abuse causing injury other than serious
injury.814 Hallock entered an Alford
plea on the assault charge and guilty
pleas on the three remaining charges.815
Hallock waived his right to a motion in
The court examined the record
before the district court at the guilty plea
State v. Hallock, 765 N.W.2d 598 (Iowa Ct.
App. 2009).
809 Id. at 606.
810 Id. at 601.
811 Id.
812 Id.
813 Id.
814 Id.
815 Id.
Id.
Id.
818 Id.
819 Id.
820 Id. at 602.
821 Id.
822 Id. at 603.
823 Id.
824 Id.
808
816
817
57
~ Sixth Amendment ~
hearing to determine if there was in fact
a factual basis for Hallock‘s plea.825 The
State conceded that the minutes of
testimony from Hallock‘s trial did not
clearly establish an injury.826
No
evidence in the record indicated that the
assault caused the victim to suffer pain
or physical impairment.827 However,
the court indicated that there may have
been additional facts that would support
an inference that the victim suffered
bodily injury.
Therefore, the court
vacated the sentence on the assault
charge and remanded for such a
determination.828
citizenship
bars
or
deportation,
ineligibility for federal benefits, and
revocation of a driver‘s license.832 The
court explained that a ten-year parole
provision is not collateral because it
comes directly from a sentencing
statute.833 Thus, the district court was
required to inform Hallock of the parole
condition before accepting his plea.834
Additionally, Hallock‘s trial counsel
failed to perform an essential duty when
he neither corrected the court‘s
omission nor filed a motion in arrest of
judgment.835
However, the court
rejected Hallock‘s ineffectiveness claim
because Hallock failed to prove that
there was a reasonable probability that
he would not have entered a plea if not
for his attorney‘s failure to correct the
court.836
Hallock next contended that his plea
was not knowing and voluntary and that
the court failed to inform him of the
mandatory ten-year parole provision he
faced.829 Iowa law makes clear that a
trial court must ensure that a defendant
understands the consequences of a plea,
including the maximum and minimum
sentences possible.830 The State argued
that the ten-year parole provision was a
collateral consequence of Hallock‘s plea
and that the court therefore did not have
any obligation to inform the defendant
of the provision.831
The court
distinguished
other
collateral
consequences of a plea, such as the loss
of civil rights, increased punishment for
habitual offenses, immigration and
C.
Right to a Speedy Trial
Vermont v. Brillon, 129 S.Ct. 1283
(2009)
At issue in Brillon was whether a
delay caused by a court appointed
attorney weighs against the State under
the Barker four-part right to speedy trial
balancing test. In a 7-2 decision, Justice
Ginsburg announced that delays caused
by the defendant‘s attorney weighs
against the defendant regardless of
Id. at 603–04.
Id. at 604.
827 Id.
828 Id.
829 Id.
830 Id. at 604–05.
831 Id. at 605.
825
826
Id.
Id. at 605–06.
834 Id. at 606.
835 Id.
836 Id.
832
833
58
whether counsel was
publicly retained.837
privately
or
agent when acting, or failing to act, in
furtherance of the litigation,‖ applies
regardless of whether the lawyer is
privately or publicly retained.847 The
Court noted that the responsibilities and
duties of court appointed counsel are
identical to counsel who are privately
retained.848 Furthermore, the Court
concluded that a contrary ruling would
encourage court appointed counsel to
use inappropriate delay tactics in an
effort to dismiss the case on speedy-trial
grounds.849 The Court, therefore, held
that delays caused by a defendant‘s
attorney weigh against the defendant
under the Barker balancing test, even if
the attorney is publicly appointed.850
The Court noted, however, that an
exception to this rule applies where
delay is caused by a ―systemic
breakdown in the public defender
system.‖851
In July 2001, Brillon was charged
with felony domestic assault and
habitual offender offenses.838 The court
appointed Brillon six different attorneys
while he was awaiting trial.839 A jury
convicted Brillon in June 2004.840
Brillon filed a motion to dismiss, which
alleged that the three-year delay violated
his right to a speedy trial.841 The trial
court denied the motion and sentenced
Brillon to a term of imprisonment of 12
to 20 years.842 The Vermont Supreme
Court reversed, holding that the three
year delay was ―extreme‖ under the
Barker balancing test.843 In assessing
the ―reasons for the delay‖ prong of the
Barker analysis, the Vermont Supreme
Court weighed the delays caused by the
Brillon‘s fourth, fifth, and sixth
attorneys against the State because an
appointed attorney is a the equivalent of
a State actor.844 The Supreme Court
reversed.845
The Court reasoned that the
Vermont Supreme Court erred when it
weighed the appointed counsels‘ delays
against the State.846 The general rule
that ―the attorney is the [defendant‘s]
Vermont v. Brillon, 129 S.Ct. 1283, 1293
(2009).
838 Id. at 1287.
839 Id.
840 Id. at 1289.
841 Id.
842 Id.
843 Id. at 1285
844 Id. at 1288.
845 Id. at 1293.
846 Id. at 1291.
837
Id. at 1290–91 (quoting Coleman v.
Thompson, 501 U.S. 722, 753 (1991)).
848 Id. at 1291.
849 Id. at 1292.
850 Id. at 1293.
851 Id. at 1292.
847
59
~ Eighth Amendment ~
IV.
EIGHTH AMENDMENT
unconstitutional or illegal on any of the
asserted grounds.856
State v. Wade, 757 N.W.2d 618 (Iowa
2008) and
Wade entered a beauty salon and
inquired
about
a
pubic
wax
857
procedure.
He unzipped his pants,
exposed his pubic hair to a stylist,
zipped his pants, turned toward another
stylist, placed his hand down his pants,
and rubbed himself.858
The State
charged Wade with indecent exposure, a
serious misdemeanor, in violation of
Iowa Code section 709.9.859 Wade pled
guilty and then filed a motion to
determine the constitutionality of Iowa
Code section 903B.2, which imposes a
special sentence for a person convicted
of a misdemeanor under chapter 709.860
Wade asserted the application of section
903B.2 violated the cruel and unusual
punishment clause of the Eighth
Amendment, the Equal Protection
Clause of the Fourteenth Amendment,
and
the
separation
of
powers
doctrine.861 The district court found the
special sentence provisions of section
903B.2
were
―illegal
and
unconstitutional‖ and refused to impose
the special sentence on Wade.862 The
State appealed.863
State v. Baines, 2008 Iowa Sup. LEXIS
149 (Iowa 2008)
Four issues were considered in
Wade.
First, whether the special
sentence imposed under Iowa‘s indecent
exposure statute, which commits the
convicted person into the custody of the
director of the Iowa department of
corrections for a period of ten years,
violates the cruel and unusual
punishment clause of the Eighth
Amendment.852 Second, whether the
Iowa indecent exposure statute violated
the equal protection clause of the
Fourteenth Amendment.853
Third,
whether the Iowa indecent exposure
law‘s parole provisions are a violation of
the separation of powers doctrine
because it allows an administrative
parole judge to revoke an offender‘s
special sentence and sentence him or
her to a prison term for parole
violations.854
Fourth,
whether
imposition of the special sentence is
illegal because of a purported conflict
with
the
maximum
period
of
confinement and length of probation
provisions of other Iowa code
sections.855 The Iowa Supreme Court
held that the statute was not
The court first noted that only
―grossly disproportionate‖ sentences
Id. at 621.
Id.
858 Id. at 621–22.
859 Id. at 622.
860 Id.
861 Id.
862 Id.
863 Id.
856
857
State v. Wade, 757 N.W.2d 618 (Iowa 2008).
Id.
854 Id.
855 Id.
852
853
60
violate the Eighth Amendment and that
substantial deference is given to the
legislature in its prescription of
penalties.864
Analysis of whether a
sentence is grossly disproportionate
begins by measuring ―‘the harshness of
the penalty against the gravity of the
offense.‘‖865
offenders who have committed sex
crimes
advances
the
important
governmental objective of protecting
citizens from sex crimes.870 Iowa Code
section
903B.2
subjects
persons
convicted of class ―D‖ felony offenses or
misdemeanors under chapter 709 to a
special sentence.871
The section
therefore merely places offenders who
have committed certain sex crimes in a
unique class and imposes a special
sentence upon them.872 However, Wade
argued
that
subjecting
serious
misdemeanants and felons to the same
special sentence is unreasonable
because misdemeanants are treated less
harshly than felons elsewhere in Iowa‘s
sentencing structure.873
The court
dismissed
that
argument
by
emphasizing that the nature of an
offense under Iowa code section 709.9 is
a sex crime.874 Therefore, offenders who
commit sex crimes are similarly
situated, whether their particular
offense is classified as a misdemeanor or
felony.875 In sum, the court concluded:
―Wade‘s equal protection argument fails
because under Iowa Code section
903B.2 offenders who commit serious
misdemeanor sex crimes and offenders
who commit felony sex crimes are not
treated differently.‖876
Iowa‘s indecent exposure statute
commits an offender into the custody of
the Department of Corrections where
―the person shall begin the sentence
under supervision as if on parole.‖866
Any
additional
imprisonment
is
incurred only if the terms of parole are
violated.867 The court thus concluded
that the statute‘s penalty is not ―grossly
disproportionate‖ to the acts of
committing the crime of indecent
exposure and subsequently violating
parole terms; thus Wade‘s sentence was
not cruel and unusual punishment.868
Turning to its equal protection
analysis, the court first stated that ―‗the
Fourteenth Amendment does not deny
to States the power to treat different
classes of persons in different ways.‘‖869
With regard to its indecent exposure
law, the legislature could have rationally
determined
that
a
classification
imposing a special sentence on all
Id. (quoting State v. Cronkhite, 613 N.W.2d
664, 669 (Iowa 2000)).
865 Id. (quoting State v. Seering, 701 N.W.2d 655,
670 (Iowa 2005)).
866 Id. at 624 (quoting IOWA CODE § 903B.2).
867 Id. (citing IOWA CODE § 903B.2).
868 Id.
869 Id. (citing Reed v. Reed, 404 U.S. 71, 75–76
(1971)).
864
Id.
Id. at 625.
872 Id.
873 Id.
874 Id.
875 Id.
876 Id.
870
871
61
~ Eighth Amendment ~
Wade also argued that 903B.2
violated the separation of powers
doctrine because it allowed an
administrative parole judge to revoke an
offender‘s special sentence and impose a
prison term if the defendant violated the
conditions of his parole.877 Rejecting
this argument, the court explained that
the legislature simply extended Iowa‘s
parole supervision scheme to require
additional supervision for sex offenders
consistent with the State‘s legitimate
objective of protecting citizens from sex
crimes.878
Moreover, the sentence
imposed under Section 903B.2 is
mandatory.879 Any consequences from a
parole violation are executive or
administrative decisions, and no judicial
function is involved.880
Parole
modification and revocation decisions
are considered parole decisions rather
than sentencing decisions.881 Thus, the
consequences of a parole violation under
Section 903B.2 do not involve
sentencing functions, which ―are clearly
reserved to the judiciary,‖ and therefore
the statute does not violate the
separation-of-powers doctrine.882
that section 903B.2 imposes an illegal
sentence.883
In State v. Baines, Baines alleged
that the special sentence provisions of
Iowa Code section 903B.2 violate the
United States Constitution‘s Equal
Protection Clause, the separation-ofpowers doctrine, and the prohibition on
cruel and unusual punishment.884 The
court found that the legal issues were
identical to those in State v. Wade, 757
N.W.2d 618, 2008 Iowa Sup. LEXIS 150
(Iowa 2008), which held that section
903B.2
withstood
constitutional
885
scrutiny.
Therefore, the court held
that section 903B.2 is ―neither illegal
nor unconstitutional.‖886
Finally, the court concluded that the
specific provisions of section 903B.2
prevail over the more general provisions
of section 903.1(1)(b), which the district
court concluded were in conflict and
Id. at 627.
Id. at 628.
879 Id.
880 Id.
881 Id.
882 Id.
877
Id. at 629.
State v. Baines, 2008 Iowa Sup. 149, at *1
(Iowa 2008).
885 Id.
886 Id.
878
883
884
62
V.
FOURTEENTH AMENDMENT
A.
Equal Protection
Following her conviction, Mitchell
challenged the statute on due process
and equal protection grounds.888 The
court dismissed Mitchell‘s due process
argument because Mitchell failed to
preserve error for appellate review, and
the court found that section 726.6 did
not violate the equal protection clauses
of the United States and Iowa
constitutions because a rational basis
existed to treat unmarried sex offenders
differently than married sex offenders
under section 726.6.889
1. State v. Mitchell, 757 N.W.2d 431
(Iowa 2008)
Mitchell was convicted of child
endangerment in violation of Iowa Code
sections 726.6(1)(h) and 726.6(7)
(2005). Section 726.6 provides:
A person who is the parent,
guardian, or person having
custody or control over a child or
a minor child under the age of
eighteen with a mental or
physical disability, or a person
who is a member of the
household in which a child or
such a minor resides, commits
child endangerment when the
person . . . .
The court first found that Mitchell
failed to preserve her due process
claim.890
Mitchell included a due
process claim in her supplemental
brief.891 The district court, however, did
not decide the issue in its ruling.892
Mitchell did not file a motion to enlarge
the ruling and did not otherwise request
that the district court address the
issue.893 Citing Meier v. Senecaut, 641
N.W.2d 532, 539 (Iowa 2002), the court
explained that Mitchell, therefore, failed
to preserve error.894
h. Cohabitates with a person
after knowing the person is
required to register or is on the
sex offender registry as a sex
offender under chapter 692A.
However, this paragraph does
not apply to a person who is a
parent, guardian, or a person
having custody or control over a
child or a minor who is required
to register as a sex offender, or
to a person who is married to
and living with a person required
to register as a sex offender.887
Turning to the equal protection
claim, the court first addressed ―whether
the statute makes a distinction between
similarly
situated
individuals.‖895
Section 726.6 applies only to non-
Id. at 433.
Id. at 439–40.
890 Id. at 435.
891 Id.
892 Id.
893 Id.
894 Id.
895 Id. at 436.
888
889
State v. Mitchell, 757 N.W.2d 431, 434–35
(Iowa 2008).
887
63
~ Fourteenth Amendment~
married couples who cohabitate.896 The
statute, therefore, creates a distinction
between married and non-married
couples.897 Because these classes are
similarly situated, the court reasoned,
section 726.6 is subject to equal
protection scrutiny.898
being.904
This financial obligation,
however, did not create the same
interest in the child‘s welfare as that of a
parent or a stepparent.905 The court,
therefore,
reasoned
that
―[t]he
legislature could have reasonably
concluded that unmarried cohabitation
of a parent with a sex offender poses
greater danger to children than
cohabitation
between
married
persons.‖906
Consequently, section
726.6 did not contradict the equal
protection clauses of the federal and
Iowa constitutions.907
The second step in the court‘s
analysis was to determine ―whether to
apply strict scrutiny or rational basis in
reviewing the statute.‖899
Mitchell
conceded that Iowa courts have not
extended protected-class status to
unmarried persons.900 Therefore, the
court applied a rational basis test to
determine the constitutionality of
section 726.6.901
2. State v. Willard, 756 N.W.2d 207
(Iowa 2008)
At issue in Willard was whether Iowa
Code section 692A.2A, which prohibits
sex offenders from living within twothousand feet of a school or child care
facility, was a bill of attainder, a
violation of the equal protection clause,
or a denial of procedural due process.908
The Iowa Supreme Court held that the
two-thousand-foot rule is not a bill of
attainder and does not violate equal
protection or procedural due process.909
A statute survives an equal
protection challenge under the rational
basis test ―if the classification is
reasonable and operates equally upon
each person within the class.‖902 The
relevant inquiry in this case was
―whether there [was] some ground of
difference that rationally explain[ed] the
different treatment accorded married
and unmarried persons under section
726.6(1)(h).‖903 The court noted that
―cohabitation‖ suggested that the
cohabitating sex offender had some
financial interest in the child‘s well-
In April 1997, Willard pled guilty to
two counts of indecent contact with his
twelve-year-old step-daughter.910 As a
result, he is subject to the sex offender
Id.
Id.
906 Id.
907 Id. at 439.
908
State v. Willard, 756 N.W.2d 207, 210 (Iowa
2008).
909 Id.
910 Id. at 211.
896
904
897
905
Id.
Id.
898 Id.
899 Id. at 436.
900 Id.
901 Id.
902 Id. at 437.
903 Id. (internal quotations omitted).
64
registry and may not live within twothousand feet of a school or child care
facility pursuant to Iowa Code section
692A.2A.911 In February 2004, an Iowa
federal district court held the twothousand-foot rule unconstitutional on
several grounds and enjoined the State
from enforcing it.912 The Eighth Circuit
Court of Appeals reversed and, after the
appellate court‘s reversal, Willard
bought a house within two-thousand
feet of a school.913 In October 2005, the
sheriff informed Willard that Willard
could not live in the house.914 Willard
was charged with violating the statute
and subsequently filed a motion to
dismiss alleging that the statute was
unconstitutional.915 The motion was
denied and Willard was convicted.916
Willard appealed, alleging that the
statute was a bill of attainder and
violated his rights to equal protection
and procedural due process.917
section 692A.2A identifies a class of
individuals: sex offenders whose victims
were minors.920 However, being subject
to residency restrictions is not
punishment.921 The court accordingly
rejected Willard‘s bill of attainder
argument.922
Second, Willard claimed that section
692A.2A denied him equal protection
under the Fourteenth Amendment and
the Iowa Constitution Art. 1, section
6.923 But Willard failed to identify the
classes of similarly situated persons
singled out for differential treatment by
the statute.924 Willard argued that the
statute severely impaired his ability to
make a home with his family.925 An
infringement of a familial right,
however, is ―unconstitutional only when
an infringement has a direct and
substantial impact on the familial
relationship.‖926 The court held that the
two-thousand-foot rule does not prevent
sex offenders from living with their
families.927 The court noted that the
two-thousand-foot rule is not the perfect
protection against the danger posed by
sex offenders, but flawless perfection is
not necessary to satisfy the rational
basis test.928
The court explained that a ―bill of
attainder is a legislative act that inflicts
punishment on a particular individual or
readily identifiable group without a
judicial trial.‖918 A bill of attainder is
prohibited under both the Iowa and
United States constitutions.919
The
court acknowledged that Iowa Code
Id.
Id.
913 Id.
914 Id.
915 Id.
916 Id.
917 Id.
918 Id. (citing Atwood v. Vilsack, 725 N.W.2d 641,
651 (Iowa 2006)).
919 Id. at 212.
Id.
Id.
922 Id.
923 Id.
924 Id. at 213.
925 Id.
926 Id. (citing State v. Seering, 701 N.W.2d 655,
663 (Iowa 2005)).
927 Id. at 213.
928 Id.
911
920
912
921
65
Third, Willard argued that
section 692A.2A denied him procedural
due process under the Fourteenth
Amendment and Iowa Constitution
article I, section 9.929 Procedural due
process is violated when state action
threatens to deprive a person of a
protected liberty or property interest.930
Willard contended that the statute
interfered with his right to contract and
that he was entitled to a pre-deprivation
hearing.931 The court ruled that the
right to contract was not directly
affected by the statute and nothing
prevented Willard from purchasing the
house, but only from living there.932
B.
murder.933 The Iowa Supreme Court
held that Heemstra is not retroactive.934
In 1992, Goosman was charged with
first-degree
murder
following
a
935
shooting.
The State proceeded on two
theories: premeditation with malice
aforethought and felony murder.936 The
underlying felony supporting felony
murder was willful injury.937 The jury
was instructed that a first-degree
murder conviction could be secured by
either by showing that the defendant
acted
willfully,
deliberately,
premeditatedly, and with specific intent
to kill, or, in the alternative, by showing
that Goosman shot Mackey with a
specific intent to cause a serious injury
and that Mackey sustained a serious
injury.938 The jury convicted Goosman
of first-degree murder, and his
conviction was affirmed in 1994.939
Due Process
1. Retroactivity
a.
Goosman v. State, 764 N.W.2d
539 (Iowa 2009)
The Iowa Supreme Court decided
Heemstra nearly twelve years after
Goosman‘s conviction was affirmed.940
In Heemstra, the Iowa Supreme Court
reversed a murder conviction, holding
that because the act causing willful
injury was the same act that caused the
victim‘s death, the assault necessarily
merged into the murder and thus could
not serve as a predicate felony for felony
At issue in Goosman was whether
federal due process required the
retroactive application in postconviction
relief proceedings of State v. Heemstra,
the decision in which the Iowa Supreme
Court limited the availability of willful
injury as a predicate offense for felony
Goosman v. State, 764 N.W.2d 539 (Iowa
2009).
934 Id. at 540.
935 Id.
936 Id.
937 Id.
938 Id.
939 Id.
940 Id.
933
Id. at 214.
Id.
931 Id.
932 Id.
929
930
66
murder.941 Because Heemstra had been
convicted on a general verdict which
could have rested on either a felonymurder theory or on a finding of
premeditation with malice aforethought,
the court vacated his conviction.942
However, the court made clear that:
―The rule of law announced in this case
regarding the use of willful injury as a
predicate felony for felony-murder
purposes shall be applicable only to the
present case and those cases not finally
resolved on direct appeal in which the
issue has been raised in the district
court.‖943
Goosman challenged the
constitutionality of this restriction on
the applicability of Heemstra.944
does not require retroactive application
of the decision.947
Under this framework, the court
determined that ―Heemstra clearly
involved a change in law and not a mere
clarification.‖948
Therefore Goosman
could not benefit from the rule
announced in Heemstra and the denial
of his petition for post-conviction relief
was affirmed.949
b.
Scott v. State, 2009 Iowa Sup.
LEXIS 70 (Iowa 2009)
At issue in was whether federal due
process
required
the
retroactive
application
in
postconviction-relief
proceedings of State v. Heemstra, the
decision in which the Iowa Supreme
Court limited the availability of willful
injury as a predicate for felony
murder.950
The Iowa Supreme Court surveyed
federal law involving retroactivity and
set forth two general propositions.945
First, where a court announces a new
rule of substantive law that simply
―clarifies‖ ambiguities in existing law,
federal due process requires that the
decision be retroactively applied to all
cases, including collateral attacks where
all avenues of direct appeal have already
been exhausted.946 Second, where a
court announces a ―change‖ in
substantive law which does not clarify
existing law but overrules prior
authoritative precedent on the same
substantive issue, federal due process
The Iowa Supreme Court rejected the
contention that federal due process
required Heemstra to be applied
retroactively.951 The court it reached
this decision based on its decision in
Goosman v. State, discussed above.952
Id.
Id. at 545.
949 Id.
950 Scott v. State, 2009 Iowa Sup. LEXIS 70
(Iowa 2009).
951 Id. at *2.
952 Id. (citing Goosman v. State, 764 N.W.2d 539
(Iowa 2009)).
947
Id. at 541 (citing State v. Heemstra, 721
N.W.2d 549, 558 (Iowa 2006)).
942 Id. (citing Heemstra, 721 N.W.2d at 558–59).
943 Id.
944 Id.
945 Id. at 544.
946 Id.
941
948
67
2. Right to a Fair Trial
a.
drug addiction.958 During Cole‘s trial,
the prosecutors withheld statements
tending to substantiate Cole‘s drug
addiction,
including
statements
acknowledging Cone‘s ―drunk or high‖
disposition, that Cole ―acted real weird‖
and ―looked wild eyed‖ two days before
the murders.959 The prosecutors also
withheld documents that could have
been used to impeach witnesses who
contested Cole‘s drug addiction.960
Cone v. Bell, 129 S.Ct. 1769
(2009)
The relevant issue to the Iowa bench
and bar presented in Cone was whether
evidence withheld by prosecutors during
Cone‘s trial was material to Cone‘s
conviction
and
sentencing,
thus
violating Brady v. Maryland, 373 U.S.
83 (1963). The Court held the disclosure
requirements announced in Brady apply
equally in the trial and sentencing
phases of a criminal proceeding.953
Consequently, the Court remanded the
case because the suppressed evidence
may have been material to Cone‘s
sentence, even though the evidence was
not material to his conviction.954
The Supreme Court held that the
suppressed evidence was not material as
to Cole‘s conviction.961 The Court first
noted that the evidence supporting
Cole‘s legal sanity was substantial.962 Of
particular relevance was the fact that
Cole‘s drug addiction and posttraumatic
stress disorder began some 13 years
before the murders.963 During this time,
the defendant was able to ―complete his
education, travel, and function in a civil
society.‖964
Thus, the suppressed
evidence did not rise to the level of
materiality under Brady even though it
tended to support Cole‘s insanity
defense.965
Cole was charged with two counts of
first-degree murder, two counts of
murder in the perpetration of a
burglary, three counts of assault with
intent to murder, and one count of
robbery by use of deadly force following
a crime spree stemming from a robbery
of a jewelry store.955 Cole, facing
overwhelming evidence, argued that he
was not guilty by reason of insanity.956
He offered evidence that he was
suffering from chronic amphetamine
psychosis during the commission of the
crimes.957 Cole argued that this
condition was induced by his severe
The Court then remanded the case to
the district court so that full
consideration could be made to
determine whether the suppressed
evidence was material to Cole‘s
Id.
Id. at 1783.
960 Id. at 1783–84.
961 Id. at 1786.
962 Id. at 1785.
963 Id.
964 Id.
965 Id.
958
959
Cone v. Bell, 129 S. Ct. 1769, 1784 (2009).
Id. at 1786.
955 Id.
956 Id.
957 Id.
953
954
68
sentence.966 The Court distinguished
the standard of materiality between a
conviction and sentence. The Court
said: ―There is a critical difference
between the high standard Cole was
required to satisfy to establish insanity
as a matter of Tennessee law and the far
lesser standard that a defendant must
satisfy to qualify evidence as mitigating
in a penalty hearing in a capital case.‖967
At the sentencing phase, the jury was
required to consider whether Cone‘s
―capacity . . . to appreciate the
wrongfulness of his conduct or to
conform
his
conduct
to
the
requirements
of
the
law
was
substantially impaired as a result of
mental disease or defect or intoxication
which was insufficient to establish a
defense to the crime but which
substantially affected his judgment.‖968
In light of this lower standard, the Court
held that the suppressed evidence could
have mitigated Cole‘s culpability in the
minds of the jurors.969 Therefore, the
Court remanded the case to the district
court to rule on whether the suppressed
evidence was material to Cole‘s
sentence.970
b.
In Osborne, the Court addressed the
issue of whether one has a constitutional
right to subject DNA evidence to testing
in a postconviction relief setting.
Osborne filed a § 1983 action
challenging Alaska‘s postconviction
relief procedures.971
Specifically,
Osborne alleged that the procedures
violated his procedural and substantive
due process rights to have access to DNA
evidence that was used against him at
trial.972
The majority, rejecting
Osborne‘s argument, held that one does
not have a constitutional right to obtain
postconviction access to DNA used
against him/her at trial.973
Osborne was convicted in Alaska for
kidnapping,
sexual
assault,
and
974
assault.
His conviction stemmed
from a 1993 incident in which he, and an
accomplice, solicited sex from a
prostitute.975 Once the prostitute was in
Osborne‘s vehicle, the two men pulled
out a gun and forced the prostitute to
have intercourse with one man while the
other forced her to perform fellatio.976
The men then beat, choked, and ordered
her to lay face down in the snow.977
They shot at her, and the bullet grazed
her head.978 She survived.979 A blue
Dist. Attorney’s Office for the
Third Judicial Dist. v. Osborne,
129 S. Ct.2308 (2009)
Dist. Attorney‘s Office for the Third Judicial
District v. Osborne, 129 S. Ct. 2308, 23 14-15
(2009).
972 Id.
973 Id. at 2321–23.
974 Id. at 2314.
975 Id. at 2313.
976 Id.
977 Id.
978 Id.
979 Id.
971
Id. at 1786.
Id. at 1785.
968 Id. at 1786 (quoting TENN. CODE ANN. § 39-2203(j)(8) (1982)).
969 Id.
970 Id.
966
967
69
condom that was used during the sexual
assault was later recovered and tested
for DNA.980 Less than a week later,
Osborne‘s
accomplice
implicated
981
Osborne in the crime.
Osborne‘s DNA
was consistent with the DNA recovered
from the crime scene.982
generally ―reluctant to expand the
concept of substantive due process
because guideposts for responsible
decision making in this unchartered
area are scarce and open-ended.‖988 Te
Court emphasized that no historical
right to DNA evidence existed to prove
one‘s innocence.989
Additionally, to
fashion a substantive due process right
under these circumstances would curtail
legislative action by Congress and the
states.990
Also, a substantive due
process right to DNA testing would
effectively create a new constitutional
code in which the judiciary would be
required to address the vast number of
derivative issues that would arise.991
Such decision making, concluded the
Court, is better left to Congress and the
state legislative bodies.992
The Court rejected the Ninth
Circuit‘s conclusion that government
disclosures required by Brady v.
Maryland, 373 U.S. 83 (1963) extends
to the postconviction environment.983
Instead, the appropriate procedural due
process analysis asks whether Alaska‘s
postconviction
relief
procedures
―offends some fundamental principle of
justice‖ or ―transgresses any recognized
principle of fundamental fairness in
operation.‖984 The Court, evaluating the
procedures set forth in the Alaska
postconviction statute, concluded that
the procedures set forth therein were
adequate to satisfy procedural due
process.985
Consequently,
the
defendant‘s procedural due process
rights were not violated when the
defendant was denied access to the DNA
evidence used against him at trial.986
c.
Hedgpath v. Pulido, 129 S.Ct. 530
(2008)
In Pulido, the Court faced the issue
of whether an unconstitutional jury
instruction that instructed the jury on
multiple theories of guilt, one of which
was invalid, is subject to harmless error
analysis on review. Ruling 6-3, the Court
held that such an error is not
―structural,‖ and therefore is subject to
harmless error analysis on review.
The Court also refused to recognize a
substantive due process right to DNA
testing.987 The Court noted that it is
Id.
Id.
982 Id.
983 Id. at 2319–20.
984 Id. at 2320 (quoting Medina v. California,
505 U.S. 437, 446, 448 (1992)).
985 Id. at 2320–2323.
986 Id.
987 Id. at 2322.
980
981
Id. (quoting Collins v. Harker Heights, 503
U.S. 115, 125 (1992)).
989 Id.
990 Id. at 2322–23.
991 Id.
992 Id.
988
70
Pulido was convicted of felony
murder by a California jury.993
Pulido appealed, alleging that the jury
was improperly instructed.994 He argued
that the instructions ―permitted the jury
to find [him] guilty of felony murder if
he formed the intent to aid and abet the
underlying felony before the murder,
but they also permitted the jury to find
him guilty if he formed that intent only
after the murder.‖995 The California
Supreme Court agreed that the
instructions were unconstitutional, but
upheld Pulido‘s conviction on the
ground that he suffered no prejudice.996
Pulido then sought habeas relief, which
was granted by the district court.997 On
the State‘s appeal, Pulido argued that
such an improper instruction is
―structural‖ and therefore invalidated
his conviction regardless of whether the
error was harmless.998 The court of
appeals agreed, holding that the
improper
jury
instruction
was
―structural.‖ The Court reversed.
improper, with the instructional errors
made in Neder, Roy, Pope, and Rose.1000
The Court in each of those cases found
that the errors were not structural, and
therefore they were subject to harmless
error analysis.1001 Focusing its attention
on Neder, the Court reasoned that ―[a]n
instructional error arising in the context
of multiple theories of guilt no more
vitiates all the jury‘s findings than does
omission or misstatement of an element
of the offense when only one theory is
submitted.1002 Thus, the Court held, an
instructional error of this variety is
subject to harmless error analysis.1003
d.
Rivera v. Illinois, 129 S. Ct. 1446
(2009)
At issue in Rivera was whether the
Fourteenth Amendment Due Process
Clause requires automatic reversal of a
conviction if all seated jurors were
qualified and unbiased, but the state
trial court erroneously denied a
defendant‘s peremptory challenge to the
seating of a juror. The Supreme Court
unanimously held that the Due Process
Clause did not require reversal.1004
The Court first refused to follow the
holdings in Stromberg and Yates,
finding that they were decided before
Chapman,
which
held
that
constitutional errors can be harmless.999
The Court then analogized the error
made with a jury instruction on multiple
theories of guilt, one of which was
Id.; see Neder v. U.S., 527 U.S. 1 (1999)
(omission of an element of an offense); Ca. v.
Roy, 519 U.S. 2 (1996) (erroneous aider and
abettor instruction); Pope v. Il., 481 U.S. 497
(1987) (misstatement of an element of an
offense); Rose v. Clarke, 478 U.S. 570 (1986)
(erroneous burden-shifting as to an element of
the offense).
1001 Id.
1002 Id.
1003 Id.
1004 Rivera v. Illinois, 129 S. Ct. 1446 (2009).
1000
Hedgpath v. Pulido, 129 S.Ct. 530, 531
(2008).
994 Id.
995 Id.
996 Id.
997 Id.
998 Id.
999 Id. at 532.
993
71
Rivera was charged with first-degree
murder in Illinois.1005 Rivera, who is
Hispanic, allegedly shot and killed
Marcus Lee after mistaking Lee for a
member of a rival gang.1006 During jury
selection, Rivera‘s counsel questioned
prospective juror Deloris Gomez, a
business office supervisor a hospital‘s
outpatient orthopedic clinic.1007 Gomez
stated that she sometimes interacted
with patients during the check-in
process and acknowledged that Cook
County Hospital treats many gunshot
victims, but stated that her work
experience would not affect her ability to
be impartial.1008
After questioning
Gomez, Rivera‘s counsel sought to use a
peremptory challenge to excuse her.1009
At that point in the jury's selection,
Rivera had already used three
peremptory challenges.1010 Two of the
three were exercised against women;
one of the two women thus eliminated
was African-American.
Illinois law
affords each side seven peremptory
challenges.1011
reasons for his concern.1013 The judge
instead requested Rivera‘s counsel to
state his reasons for excusing Gomez.1014
Rivera‘s counsel first stated that Gomez
saw victims of violent crime on a daily
basis.1015 Counsel then added that he
was ―pulled in two different ways‖
because Gomez had ―some kind of
Hispanic
connection
given
her
1016
name.‖
At that point, the judge
interjected that Gomez ―appears to be an
African American‖—the second ―African
American female‖ the defense had
struck.1017 Ultimately the judge denied
the challenges and Gomez was seated.
Rivera‘s case proceeded to trial and the
jury, with Gomez as its foreperson,
found Rivera guilty of first-degree
murder.1018
Rivera appealed and eventually
reached the Illinois Supreme Court.1019
Although that court disagreed with the
trial judge‘s assessment that the defense
was discriminating against Gomez on
the basis of her gender, it affirmed
Rivera‘s conviction.1020 The Illinois High
Court concluded ―that the record fails to
support a prima facie case of
discrimination of any kind.‖1021 As a
consequence, the trial judge erred, first
in demanding an explanation from
Rivera‘s counsel, and next, in denying
Rather than dismissing Gomez, the
trial judge called counsel to chambers,
where he expressed his concern that the
defense was discriminating against
Gomez.1012 He did not specify the type
of discrimination he suspected or the
Id. at 1450.
Id.
1007 Id. at 1451
1008 Id.
1009 Id.
1010 Id.
1011 Id. (citing Ill. Sup. Ct. Rule 434(d) (West
2006)).
1012 Id.
Id.
Id.
1015 Id.
1016 Id.
1017 Id.
1018 Id.
1019 Id. at 1452.
1020 Id.
1021 Id.
1005
1013
1006
1014
72
Rivera‘s peremptory challenge of
Gomez.1022 However, the court held that
the denial of Rivera‘s peremptory
challenge was a harmless error and did
not require automatic reversal.1023
person for which he is legally
accountable. A person is legally
accountable for the conduct of another
person when he is an accomplice of such
other person in the commission of the
crime‖ and that “[a] person is an
accomplice in the commission of a crime
if, with knowledge that it will promote
or facilitate the commission of the
crime, he or she either: (1) solicits,
commands, encourages, or requests
another person to commit the crime or
(2) aids or agrees to aid another person
in planning or committing the
crime.‖1029 The United States Supreme
Court held that the jury instruction was
not
ambiguous
or
objectively
unreasonable and reversed the Ninth
Circuit. 1030
The Supreme Court affirmed.1024
The Court stated that because Rivera
was tried before a qualified jury
composed
of
individuals
not
challengeable for cause, the loss of a
peremptory challenge due to a state
court‘s good-faith error was not a matter
of federal constitutional concern.1025
Rather, it was a matter for the state to
address under its own laws.1026 ―[A]
mere error of state law . . . is not a denial
of due process.‖1027
The Court
concluded
that
―Rivera
received
precisely what due process required: a
fair trial before an impartial and
properly instructed jury, which found
him guilty of every element of the
charged offense.‖1028
e.
Sarausad was the driver of the
vehicle used in a fatal gang-related drive
by shooting.1031 He was convicted by a
jury as an accomplice to second-degree
murder,
attempted
murder,
and
assault.1032 He was sentenced to twentyseven years of imprisonment.1033 The
Washington
courts affirmed
his
conviction and sentence on direct review
and his state-court motions for
postconviction relief were denied.1034
Waddington v. Sarausad, 129 S.
Ct. 823 (2009)
At issue in Waddington was whether
the jury was properly instructed on the
issue of accomplice liability when it was
instructed: ―You are instructed that a
person is guilty of a crime if it is
committed by the conduct of another
At trial, Sarausad had contended that
there was no evidence that he was aware
Id.
Id.
1024 Id. at 1456.
1025 Id. at 1453.
1026 Id.
1027 Id. at 1454 (quoting Engle v. Isaac, 456 U.S.
107 (1982)).
1028 Id. at 1456.
Waddington v. Sarausad, 129 S. Ct. 823, __
(2009) (quoting Sarausad v. State, 39 P. 3d 308,
319 (Wash App. 2001)).
1030 28 U.S.C. §2254(d)(1).
1031 Sarausad, 129 S. Ct. at 827.
1032 Id. at 829.
1033 Id. at 826.
1034 Id. at 829.
1022
1029
1023
73
that the co-defendant intended to shoot
the victim.1035 During seven days of
deliberations, the jury asked five
questions, three of which related to the
intent requirement for accomplice
liability.1036
In response to each
question, the judge instructed the jury to
reread
the
accomplice-liability
instructions and to consider the
instructions as a whole.1037
that the inmate have knowledge of the
crime with which the inmate was
charged as an accomplice. 1042
Furthermore, there was no reasonable
likelihood that the prosecutor‘s arguably
improper closing statement influenced
the jury, since both the prosecution and
the defense focused on the inmate‘s
knowledge of the shooting.1043
The Court noted that Sarausad and
his co-defendant had admitted under
oath that they anticipated a fight, and
yet the prosecutor never argued that
their admission was a concession of
accomplice liability for murder.1044 She
instead argued that Sarausad knew that
the shooting was intentional because he
slowed his car down as he approached
the deceased in order to help his codefendant fire his weapon.1045
The
closing argument of Sarausad‘s attorney
also directed the jury to the proper legal
question by challenging the jury to look
for evidence that Sarausad ―had
knowledge that his assistance would
promote or facilitate the crime of
premeditated murder‖ and arguing that
no such evidence existed.1046
After his conviction, Sarausad sought
a federal writ of habeas corpus, arguing
that the trial court‘s instructions to the
jury failed to clarify that the inmate
must have knowledge of the murder,
rather than any crime, in order to be
convicted as an accomplice to the
murder, in view of the prosecutor‘s
argument that accomplice liability was
premised on ―in for a dime, in for a
dollar.‖1038 The federal district court
granted Sarausad‘s habeas petition and
ruled in favor of Sarausad.1039 The
Ninth Circuit affirmed.1040
United States Supreme Court
reversed, finding that the instructions
made it clear to the jury that, in order to
find Sarausad guilty as an accomplice,
he must have had knowledge that his
conduct would promote or facilitate the
commission of the murder.1041
The
instruction
properly
quoted
the
accomplice-liability statute in requiring
Based on the preceding facts and the
high burden a defendant like Sarausad
faces when challenging an instruction
that quotes a statute, the Court
concluded: ―Put simply, there was no
evidence of ultimate juror confusion as
Sarausad, 109, 39 P. 3d, at 311.
Sarausad, 129 S. Ct. at 829.
1037 Id.
1038 Id.
1039 Id. at 829.
1040 Id.
1041 Id. at 835.
1035
1036
WASH. REV. CODE § 9A.08.020 (2008).
Sarausad, 129 S. Ct. at 833.
1044 Id.
1045 Id.
1046 Id.
1042
1043
74
to the test for accomplice liability under
Washington law.‖1047
detected a strong odor of alcohol coming
from Feregrino, that Feregrino‘s eyes
were bloodshot and watery, and that his
speech was slurred.1053
After a
horizontal gaze nystagmus test indicated
intoxication,
Feregrino
refused
additional tests and was placed under
arrest for OWI.1054
3. Vagueness
State v. Feregrino, 756 N.W.2d 700
(Iowa 2008)
The first issue in Feregrino was
whether the Carter Lake noise ordinance
was unconstitutionally vague.1048 The
second issue was whether a defendant
claiming ineffective assistance of
counsel must show prejudice, in
addition to breach of essential duty,
where counsel failed to ensure
compliance with the jury-trial waiver
provisions of Iowa Rule of Criminal
Procedure 2.17(1).1049
The Iowa
Supreme Court held that the noise
ordinance was not unconstitutional.1050
It also held that a defendant claiming
ineffective assistance of counsel due to
counsel‘s failure to ensure compliance
with Iowa‘s jury-trial waiver provisions
must show, not only that counsel
breached an essential duty, but must
also show actual prejudice.1051
Feregrino was charged with first
offense OWI and violation of a Carter
Lake municipal noise ordinance.1055 He
filed a motion to suppress the evidence
of his intoxication, claiming that the
officer lacked probable cause or
reasonable suspicion to stop Feregrino‘s
vehicle because the noise ordinance
justifying
the
stop
was
1056
unconstitutionally vague.
The
district court rejected his contention.1057
Also, prior to trial on November 14,
Feregrino signed a written waiver of his
right to a jury trial.1058 Before trial, the
district court engaged in a very short
colloquy with Feregrino about his
waiver.1059 Feregrino was convicted of
first offense OWI.1060 The district court
dismissed the charge of violating the
noise
ordinance
because
an
unauthorized individual had amended
the original citation improperly.1061
At about 4:00 a.m., a Carter Lake
police officer stopped Feregrino‘s vehicle
after hearing loud music emanating
from the vehicle about one-hundred feet
away.1052
During the stop, Hansen
Id.
Id.
1055 Id.
1056 Id.
1057 Id.
1058 Id.
1059 Id. at 703.
1060 Id.
1061 Id.
1053
1054
Id.
State v. Feregrino, 756 N.W.2d 700 (Iowa
2008).
1049 Id.
1050 Id. at 708.
1051 Id.
1052 Id. at 702.
1047
1048
75
Feregrino appealed his conviction,
reasserting that the Carter Lake noise
ordinance
was
unconstitutionally
1062
vague.
In addition, Feregrino made
an
ineffective-assistance-of-counsel
claim, which argued that his jury-trial
waiver did not meet the standards
established by State v. Stallings, 658
N.W.2d 106, 111 (Iowa 2003).1063
Further relying on Stallings, Feregrino
asserted that prejudice should be
presumed because of the structural
defect in his jury-trial waiver.1064
car radio so high that it can be heard one
hundred feet away is far louder than
needed to be heard by car occupants and
cannot be mistaken for any ordinary
use.1068
The court did note that while it may
not be easy to measure whether noise
escaping a vehicle can be heard onehundred feet away, such an issue is not a
problem of vagueness.1069 The ―onehundred-feet‖ language of the ordinance
actually provides more descriptive
notice to the ordinary person.1070 The
one-hundred-feet determination was
problem of proof, which is present in
any criminal statute incorporating
measurements
into
its
specific
1071
elements.
Whether Feregino‘s radio
could be heard at a distance of onehundred feet was a question to be
decided by the jury.1072
The Iowa Supreme Court first
considered Feregrino‘s claim that the
Carter Lake Municipal Ordinance was so
vague as to violate his right to due
process.1065 The ordinance provides:
―The following circumstances are
considered per se violations as being
loud, raucous, and disagreeable noises
causing disturbance to the general
public and a violation of this Chapter . . .
Noise emanating from a motor vehicle
that can be heard from a distance of
one-hundred (100) feet or more.‖1066
The Iowa Supreme Court concluded that
―a person of ordinary understanding
would know that cranking up the car
radio to extraordinarily loud levels will
expose the operator to a citation for
violation
of
the
ordinance.‖1067
Furthermore, turning the volume on a
The Iowa Supreme Court also took
no issue with the ―per se prong‖ of the
ordinance; according to the court, it was
not so vague as to encourage
discriminatory enforcement.1073
The
court emphasized the neutral scope of
the ordinance: ―[I]t applies if a motor
vehicle operator is blasting the music of
Beethoven or Rihanna, the latest from a
Hawkeye, Cyclone, or Panther athletic
contest, or the details of a special deal
on vinyl home siding. The fact that the
Id.
Id.
1064 Id.
1065 Id. at 704.
1066 Id. at 703 (quoting Carter Lake Municipal
Ordinance 55.12 (cc)).
1067 Id. at 704.
1062
Id.
Id.
1070 Id.
1071 Id.
1072 Id.
1073 Id. at 705.
1063
1068
1069
76
ordinance focuses on all loud noises
rather than specific loud noises, for
vagueness purposes, is a strength rather
than a weakness.‖1074 The officer who
heard Feregrino‘s radio only needed to
determine the objective fact of whether
the noise was sufficiently loud to be
heard one hundred feet away—such a
determination was not a subjective
judgment concerning the type of noise
involved.1075
The court overturned Stalling.1079
The court noted that the defendant‘s
right to a jury trial has not necessarily
been violated where each requirement of
a jury waiver has not been met.1080 A
requirement of an oral colloquy related
to a jury-trial waiver is a procedural
device, not a constitutional end or
constitutional ―right.‖ 1081
Applied to Feregrino‘s case, while it
was clear that his counsel breached a
duty, the record before it was
inadequate to make the determination
of whether Feregrino was actually
prejudiced—therefore the court decided
to preserve the issue for Feregrino‘s
postconviction relief proceedings.1082
The
court
next
considered
Feregrino‘s ineffective assistance of
counsel claim. The court discussed
Stallings, in which the court held that a
written waiver as well as an in-court
colloquy should be used to assure a
proper jury-trial waiver was made
knowingly
and
intelligently.1076
Stallings also held that a failure to
assure compliance with the rule
constituted a breach of duty by trial
counsel.1077
Furthermore,
while
ordinarily
a
defendant
claiming
ineffective assistance of counsel must
show both a breach of duty and
prejudice, in Stallings the court held
that a violation of the rule amounted to
―one of those rare cases of a ‗structural‘
defect
in
which
prejudice
is
1078
presumed.‖
Id.
Id.
1076 Id. (citing State v. Stallings, 658 N.W.2d 106,
110–11 (Iowa 2003).
1077 Id. at 705–06 (citing Stallings, 658 N.W.2d
at 112).
1078 Id. at 706 (citing Stallings, 658 N.W.2d at
112).
1074
1075
Id. at 708.
Id. at 707.
1081 Id.
1082 Id. at 709.
1079
1080
77
~ Ex Post Facto Clause ~
VI.
EX POST FACTO CLAUSE
two-tenths days for each day the inmate
demonstrates
good
conduct
and
satisfactorily
participates
in
any
program or placement status identified
by the director to earn the reduction‖
Iowa Code § 903A.2(1)(a) (2001).1088 In
2005, this section was amended.1089 The
amended statute provides: ―[A]n inmate
required to participate in a sex offender
treatment program shall not be eligible
for a reduction of sentence unless the
inmates participates and completes a
sex
offender
treatment
program
1090
established by the director.‖
During
a 2006 classification meeting, the DOC
advised Holm that the amendment
applied to him and provided him an
opportunity to participate in the SOTP
program.1091
Holm refused to
1092
participate.
As a consequence,
Holm‘s original discharge date was
pushed back from April 9, 2008 to April
9, 2010.1093
After exhausting his
administrative remedies, Holms applied
for postconviction relief arguing that the
2005
amendment
violated
the
constitutional prohibition on ex post
facto laws and that its application
violated his procedural due process
rights.1094
1. Holm v. Jones County Ct., 767
N.W.2d 409 (Iowa 2009)
The Holm court addressed the issue
of whether the 2005 amendment to
Iowa Code section 903A.2(1)(a) could be
retroactively applied to a defendant who
had been convicted before a 2005
amendment went into effect.1083 The
amendment at issue required convicted
sex offenders to undergo a sex offender
treatment program (SOTP) in order to
accrue earned time under Iowa Code
chapter 903A.1084 Holm argued that the
amendment violated the constitutional
prohibition on ex post facto laws and his
procedural due process rights.1085
Annulling the defendants writ, the Iowa
Supreme Court ruled that the 2005
Amendment of Iowa Code section
903A.2(1)(a) was not in violation of the
constitutional prohibition on ex post
facto laws and did not violate the
defendant‘s procedural due process
rights.1086
In 2003, Holm was convicted and
sentenced for third-degree sexual abuse
in violation of Iowa Code section 709.4
(2001).1087 At that time, Iowa Code
section 903A.2(a)(4) provided that
certain inmates would be ―eligible for a
reduction of sentence equal to one and
The court first addressed whether
the amendment was an ex post facto
Id. at 413 (quoting IOWA C ODE § 903(1)(a)
(2001)).
1089
Id.
1090 IOWA CODE § 903A.2(1)(a) (West Supp.
2005) (emphasis added).
1091Holm, 767 N.W.2d at 413.
1092 Id.
1093 Id. 414.
1094 Id.
1088
Holm v. Jones County Ct., 767 N.W.2d 409
(Iowa 2009).
1084 Id. at 412.
1085 Id.
1086 Id. at 416–17, 418.
1087 Id. at 412.
1083
78
law.1095 In this respect the federal and
state constitutions forbid both ―the
application of a new punitive measure to
conduct already committed,‖ and an
increases in the ―severity of the
punishment for a crime after its
commission.‖1096 A statute violates the
Ex Post Facto Clause if it is (1)
retroactive and (2) more onerous than
the law in effect on the date of the
offense.‖ 1097
Because the 2005
amendment ―applies to a crime that
occurred prior to its enactment,‖ it is
retroactive.1098 As to the second prong,
the court stated that the statute did not
impose new duties or obligations.1099
The 2005 amendment did not make any
substitutive changes to the pre-existing
statute; instead, it merely corrected
previous
misapplication
of
the
1100
statute.
Thus, held the court, the
amendment was merely a ―clarification‖
of the 2001 version of the statute and
thus did not create a more onerous
punishment.1101 Therefore, the 2005
amendment did not violate the Ex Post
Facto Clause.1102
penalties for his prior offense were going
to change; (2) he was not given a
sufficient written statement of reasons
and
findings
for
the
DOC‘s
determination that he was to lose his
right to earned time; and (3) there was
no neutral or impartial fact finder
involved in the procedural process the
DOC provided, as the determination of
whether he required to receive SOTP
treatment was made by the prison
treatment director.1104
Applying the
Eldridge test, the court rejected these
arguments.1105
The first step of the Eldridge test is
to determine ―whether a protected
liberty
or
property
interest
is
1106
involved.‖
The court found that Iowa
law creates a liberty interest by
providing for earned-time credits.1107
Thus, the first prong of the Eldridge test
was satisfied.1108
Next, the court assessed ―the risk of
an erroneous deprivation of a protected
interest and the value of additional or
substitute procedural safeguards.‖1109
The court found that the defendant‘s
refusal to sign the Sex Offender
Treatment Program Refusal Form gave
him notice of the consequences of
refusing to participate in the SOTP
program.1110 This, in conjunction with
The court then turned to the
procedural due process analysis.1103 The
defendant made three arguments with
respect to this issue: (1) he was given no
advance notice that the charges or
Id. at 415–17.
Id. at 415.
1097 Id.
1098 Id.
1099 Id. at 416.
1100 Id.
1101 Id.
1102 Id. at 417.
1103 Id. at 417–418.
1095
Id. at 417.
Id.; see Mathews v. Eldridge, 424 U.S. 319,
335 (1976).
1106 Eldridge, 424 U.S. at 335 (1976).
1107 Holm, 767 N.W.2d at 414.
1108 Id. at 418.
1109 Id.
1110 Id.
1096
1104
1105
79
the procedures employed by the DOC,
were sufficient to mitigate the risk of an
erroneous deprivation of his future right
to accrue earned time.1111
to an inmate convicted before the
amendment went into effect was an ex
post facto law and therefore inconsistent
with the Iowa and United States
constitutions.1118
Finally, the court addressed the
probable
value
of
additional
1112
safeguards.
Holm was given an
opportunity to appeal to the deputy
warden.1113
The court found that
replacing the deputy warden with an
administrative
law
judge
would
―increase the state‘s fiscal and
administrative burdens, while providing
little, if any, additional safeguard to the
process.‖1114 Thus, the probable value of
additional safeguards did not outweigh
the state‘s interests.1115 Therefore, held
the court, Holm‘s procedural due
process rights were not violated.1116
Inmate Denny Propp brought a
postconviction relief action challenging
a determination by the department of
corrections (DOC) that he was ineligible
to receive earned-time credit after he
was removed from a sex offender
treatment program for misconduct.1119
Iowa Code section 903A.2 provides for a
reduction in sentence for good conduct
and
satisfactory
participation
in
1120
specified programs.
The statute was
amended in 2001 and 2005.1121 Propp
argued that the statute violated the Ex
Post Facto Clause because the offense
for which Propp was incarcerated was
committed prior to the amendments to
the statute.1122 The district court held
that the application of the amended
section 903A.2 statute to Propp violated
the ex post facto clauses of the United
States and Iowa constitutions.1123 The
State brought a certiorari action to
challenge the decision.1124
2. State v. Henry County Ct., 759
N.W.2d 793 (Iowa 2009)
At issue in State v. Henry County Ct.
was whether the 2001 amendment to
Iowa Code Section 903A.2 could be
retroactively applied to a defendant who
had been convicted before the 2001
amendment went into effect without
running afoul the ex post facto clauses of
the Iowa and federal constitutions.1117
The Iowa Supreme Court answered that
the application of the 2001 amendment
Propp was sentenced to twenty-five
years imprisonment for a 1997
conviction of third-degree sexual
abuse.1125 At the time of his sentencing,
Id.
Id.
1113 Id.
1114Id.
1115 Id.
1116 Id.
1117 State v. Henry County Ct., 759 N.W.2d 793
(Iowa 2009).
Id. at 802.
Id. at 794.
1120 Id.
1121 Id.
1122 Id.
1123 Id.
1124 Id.
1125 Id. at 794–95.
1111
1118
1112
1119
80
section 903A.2 allowed a reduction of
sentence through good-time credits of
one day for each day of good conduct.1126
Propp could earn a further reduction of
up to five days a month for satisfactory
participation in a variety of activities
and programs, including treatment
programs.1127 In 2000, the statute was
amended to require a reduction of one
and two-tenths a day for each day an
inmate demonstrates good conduct and
satisfactorily participates in a program
identified by the director.1128
Good
conduct alone was no longer enough to
qualify an inmate for earned-time
credits.1129 In 2005, the statute was
amended
with
respect
to
sex
1130
offenders.
This amendment required
an inmate to participate in a sex
offender treatment program (SOTP) to
be eligible for reduction of his
sentence.1131
Inmates who refused
treatment were removed from treatment
or failed to complete the program were
not eligible for earned-time credits.1132
prison
time
was
extended
by
approximately four months due to his
inability to accumulate earned-time
credits.1135
Propp argued that his
unsatisfactory performance cannot,
consistent with the Constitution,
lengthen his sentence.1136
The court first determined that the
amendment to section 903A.2 was
retrospective because it applied to
prisoners who were convicted for an
offense committed prior to its
enactment.1137 The relevant question
was whether Propp knew, when he
committed his crime and was sentenced,
that he would have to successfully
participate in a sex offender treatment
program to be eligible for a reduction of
his sentence.1138
The court next
considered whether the amended statute
made the punishment for Propp‘s crime
more onerous.1139 At the time Propp was
sentenced, he could earn good time
credits by following prison rules, but
after the amendments he could no
longer earn any credits.1140 Propp was
automatically entitled to one day of good
conduct credit for each day he avoided a
disciplinary violation under the original
statute.1141 Under the amended statute,
he had to also meet extra conditions to
receive credits.1142 The court held that
the difference is a ―substantive change in
Propp was required to participate in
the SOTP, but was removed from the
program in April 2006.1133 He did not
lose the credits he already earned, but
he was deemed ineligible to receive
further earned-time credits until he was
reinstated into the program.1134 Propp‘s
Id. at 795.
Id.
1128 Id.
1129 Id.
1130 Id.
1131 Id.
1132 Id. at 795–96.
1133 Id. at 796.
1134 Id.
1126
Id.
Id.
1137 Id. at 799.
1138 Id.
1139 Id. at 800.
1140 Id.
1141 Id. at 801.
1142 Id.
1127
1135
1136
81
the formula used to calculate a reduction
in sentence‖ and therefore applying the
2001 amendment to Propp violated the
Ex post Facto Clause. 1143
court informed Cowles that if convicted
he would be required to serve a
minimum of seventy percent of the
sentence for the Class B felony.1149
Cowles requested immediate sentencing
and the parties jointly recommended the
maximum sentence of twenty-five years
on the class B felony, ten years on each
of the four Class C felonies and five
years on the Class D felony, with the
sentences to run concurrently.1150 The
court noted that Iowa Code section
902.12
prescribes
a
mandatory
minimum period of incarceration for
sexual abuse in the second degree.1151
3. State v. Cowles, 757 N.W.2d 614
(Iowa 2008)
At issue in Cowles was whether a
sentencing provision effective on July 1,
1996 violated the Ex Post Facto Clause if
applied to an offense committed
approximately between April 9, 1996
and February 2, 1997.1144 The court
concluded that under the circumstances
in Cowles‘ case, the mandatory
minimum sentence did not violate the
Ex Post Facto Clauses of the Iowa and
United States constitutions.1145
Cowles subsequently filed an
application for correction of illegal
sentence asserting that the sentence
violated state and federal constitutional
prohibitions on ex post facto laws.1152
The district court concluded that the
mandatory minimum sentence violated
the prohibitions against ex post facto
laws because the sentencing provision
was effective as of July 1, 1996 and the
plea colloquy established the crime was
committed before the statute.1153 The
court corrected the sentence by deleting
reference to section 902.12.1154 The state
sought discretionary review, the court of
appeals affirmed and the Iowa Supreme
Court granted further review.1155
Cowles was charged with twenty
counts of sexual abuse in the second
degree (Class B felony), four counts of
sexual abuse in the third degree (Class C
felony) and one count of incest (Class D
felony).1146 The parties reached a plea
agreement and Cowles pled guilty to one
count of sexual abuse in the second
degree, four counts of sexual abuse in
the third degree and one count of
incest.1147 To establish a factual basis for
the plea, the court asked Cowles if he
engaged in a sex act with his daughter
prior to February 3, 1997 and Cowles
responded affirmatively.1148 The district
Id.
State v. Cowles, 757 N.W.2d 614, 617 (Iowa
2008).
1145 Id.
1146 Id. at 615.
1147 Id.
1148 Id.
Id.
Id. at 616.
1151 Id.
1152 Id.
1153 Id.
1154 Id.
1155 Id.
1143
1149
1144
1150
82
The court explained that Iowa Code
section 902.12 became effective on July
1, 1996 and originally required that
100% of a sentence be served, but in
2003, the section was amended to allow
parole and work release after serving
70% of the maximum sentence.1156 The
court explained that the Ex Post Facto
Clause prevents: ―(1) making criminal
and punishing an act that was innocent
when done; (2) reclassifying a crime as a
greater offense after it was committed;
(3) attaching greater punishment to a
crime after it was committed; and (4)
altering the rules of evidence after the
crime in order to convict an
offender.‖1157 The court concluded that
applying the mandatory minimum
sentence to Cowles did not violate the Ex
Post Facto Clause because Cowles
admitted perpetrating a sex act on a
person under twelve years old between
April 9, 1996 and February 2, 1997.1158
In Cowles‘ plea colloquy, the court found
an implicit admission of illegal conduct
committed by Cowles after July 1,
1996.1159
The court found that the
record made by the parties evidenced an
admission of guilt for acts after July 1,
1996.1160
The court did state that
Cowles‘ case should be distinguished
from cases in which a general jury
verdict of guilt leaves a court with
uncertainty as to whether the verdict
was based on a valid factual or legal
basis.1161 In Cowles, there was no such
uncertainly about the basis Cowles‘
conviction.1162
Id.
Id. at 617 (citing Collins v. Youngblood, 497
U.S. 37, 42 (1990)).
1158 Id.
1159 Id.
1160 Id.
1156
1157
1161
1162
83
Id.
Id. at 617–18.
~ Evidentiary Issues ~
VII. EVIDENTIARY ISSUES
shot this man in his head and in his
chest‖ and taken ―his keys, his wallet,
about $ 350.00, and . . . a vehicle.‖1169
1. Kansas v. Ventris, 129 S. Ct. 1841
(2009)
At trial, Ventris took the stand and
blamed the crimes on Theel.1170 The
government sought to call the informant
to testify to Ventris‘s prior contradictory
statement; Ventris objected.1171
The
State conceded that there was ―probably
a violation‖ of Ventris‘ constitutional
right to counsel, but nonetheless argued
that the statement was admissible for
impeachment purposes because the
violation ―doesn‘t give the Defendant . . .
a license to just get on the stand and
lie.‖1172 The trial court agreed with the
State and allowed the informant‘s
testimony, but instructed the jury to
cautiously consider the informant‘s
testimony because it was given in
exchange for benefits from the State.1173
The jury ultimately acquitted Ventris of
felony murder and misdemeanor theft
but returned a guilty verdict on the
aggravated burglary and aggravated
robbery counts.1174 The Kansas Supreme
Court reversed the conviction, and held
that ―[o]nce a criminal prosecution has
commenced, the defendant‘s statements
made to an undercover informant
surreptitiously acting as an agent for the
State are not admissible at trial for any
At issue was whether a defendant‘s
incriminating statement to a jailhouse
informant, elicited in violation of Sixth
Amendment right to counsel, is
admissible at trial to impeach the
defendant. The Supreme Court held
that such testimony was admissible for
impeachment purposes.1163
Ventris and Theel reached an
agreement to confront Ernest Hicks in
his home.1164 The pair testified that they
intended simply to investigate rumors
that Hicks abused children.1165 During
the encounter, one or both of the pair
shot and killed Hicks with a .38-caliber
revolver.1166 Officers arrested Ventris
and Theel after two friends of the couple
who had helped transport them to
Hicks‘ home gave the police a tip.1167
Before Ventris‘ trial for murder and
aggravated robbery, officers planted an
informant in Ventris‘ holding cell and
instructed him to ―keep [his] ear open
and
listen‖
for
incriminating
1168
statements.
According to the
informant, in response to his statement
that Ventris appeared to have
―something more serious weighing in on
his mind,‖ Ventris divulged that ―[h]e‘d
U.S. v. Ventris, 129 S. Ct. 1841 (2009).
Id. at 1844.
1165 Id.
1166 Id.
1167 Id.
1168 Id.
Id.
Id.
1171 Id.
1172 Id.
1173 Id.
1174 Id.
1163
1169
1164
1170
84
reason, including the impeachment of
the defendant‘s testimony.‖1175
that the trial court improperly admitted
the prior incidents.1180
The U.S. Supreme Court reversed the
Kansas Supreme Court, holding that the
interests safeguarded by such exclusion
were outweighed by the need to prevent
perjury and to assure the integrity of the
trial process.1176 The Court reiterated an
earlier case which had stated: ―It is one
thing to say that the Government cannot
make an affirmative use of evidence
unlawfully obtained. It is quite another
to say that the defendant can . . . provide
himself
with
a
shield
against
contradiction of his untruths.‖1177
Precluding the State from using
―traditional truth-testing devices of the
adversary process‖ when a defendant
commits perjury is too high a price to
pay for the vindication of the right to
counsel.1178
Reynolds got into a fight with his
girlfriend‘s ex-husband outside a pool
hall.1181 He was charged with assault
causing bodily injury.1182 The trial court
permitted the State to present evidence
that
Reynolds
had
―harassed,
threatened, assaulted, and intimidated‖
the victim on several occasions in the
past in order to demonstrate Reynolds‘
―motive, intent, and opportunity‖ to
commit the crime, as allowed under the
Iowa Rules of Evidence 5.404(b).1183 At
trial, the victim testified to eleven
separate affrays or arguments between
Reynolds and himself, many involving
references to an affair between the
victim and Reynolds‘ ex-wife.1184 The
trial court did not issue a limiting
instruction to the jury following the
admission of the prior bad acts.1185 The
Iowa Court of Appeals reversed the trial
court with regard to the prior bad acts
instruction.1186 The State appealed.1187
2.
State v. Reynolds, 765 N.W.2d
283 (Iowa 2009)
The issue in Reynolds was whether
the trial court improperly admitted 11
prior incidents in which defendant
pushed, threatened, or cursed at the
victim of the current offense under Iowa
Rules of Evidence 5.404(b) and
5.403.1179 The Iowa Supreme Court held
that the prior bad acts ranged from
assault to mere cursing.1188 The court
questioned the trial court‘s decision to
issue a blanket ruling that the prior bad
Id. at 295.
Id. at 286
1182 Id. at 287.
1183 Id. at 288.
1184 Id.
1185 Id.
1186 Id.
1187 Id. at 289.
1188 Id.
1180
Id.
1176 Id. at 1847.
1177 Id. at 1846 (quoting Walder v. United States,
347 U.S. 62, 65 (1954)).
1178 Id. (quoting Harris v. New York, 401 U.S.
222, 225 (1971)).
1179 State v. Reynolds, 765 N.W.2d 283 (Iowa
2009).
1175
1181
85
acts would all be admitted.1189 The court
stated that trial courts should only issue
such rulings with specificity to each
piece of evidence.1190
was high.1196 The court remanded for a
new trial.1197
3. State v. Stone, 764 N.W.2d 565 (Iowa
2009)
Although the court found the
evidence relevant to establish motive
(not general propensity), the court
found the evidence inadmissible because
the danger of unfair prejudice
outweighed its probative value.1191 First,
five of the prior incidents occurred more
than four years before Reynolds‘ instant
offense.1192
Also, the evidence
concerning the victim‘s affair with
Reynolds‘ ex-wife had previously been
disclosed.1193 Next, although Reynolds
admitted to threatening the victim on
several occasions, the parties did not
agree on exactly what transpired on each
occasion.1194 Additionally, the incidents
did not demonstrate Reynolds‘ motive
on the night in question (i.e Reynolds‘
hatred of Kramer) because they
occurred at different times and under
different circumstances four years
earlier.1195
Based on the preceding
incidents stacked together, the danger of
the jury improperly concluding that
Reynolds had a propensity for assault,
and therefore he committed this crime,
The first issue in Stone was whether
a driver may be prosecuted for driving
while his license was denied or revoked
if
the
Iowa
Department
of
Transportation (DOT) subsequently
rescinded the revocation.1198 The second
issue was whether it was improper for a
trial court to refuse to allow a driver to
introduce his certified driving record, as
it existed after the DOT rescinded his
license revocation, showing his license
was not revoked on the date for which
the defendant was with driving with a
revoked license.1199 The Iowa Supreme
Court held the prosecution of a driver
for driving with a suspended license can
proceed even if the license revocation is
later rescinded.1200 With regard to the
second issue, the court found that it was
proper to exclude a DOT record
indicating that the defendant‘s license
was not suspended at the time of the
offense.1201
Id. at 292.
Id. at 295. Although the court already
reversed based on the improperly admitted
evidence of prior acts, the court also stated that
Reynold‘s requested jury instructions on
character evidence should have been given to the
jury, as Reynold‘s character for peacefulness was
at issue. Id. at 294.
1198 State v. Stone, 764 N.W.2d 565 (Iowa 2009).
1199 Id.
1200 Id. at 551.
1201 Id.
1196
1197
Id. at 290.
Id. at 291
1191 Id.
1192 Id.
1193 Id.
1194 Id.
1195 Id. at 291–92.
1189
1190
86
Stone was pulled over for having
expired license plate tags.1202 Stone‘s
truck was wet on a night without
precipitation
and
there
was
a
McDonald‘s bag with warm food in the
truck.1203 The officers discovered that
Stone was driving with a suspended
license for an OWI test refusal.1204 The
officers learned that Stone did not have
a work permit, but Stone did not
produce the permit when the officer
requested it.1205 Stone informed the
officer that he was on his way home
from work.1206 The officer placed Stone
under arrest, informing Stone that ―a
work permit does not authorize
someone to wash a vehicle or go to
McDonald‘s.‖1207
After
Stone‘s
arraignment, but before his trial, the
DOT issued a letter to Stone informing
him that his refusal to take an OWI test
was rescinded and removed from his
record, and that he was once again
eligible to operate motor vehicles in
Iowa.1208 The trial court excluded the
DOT letter on the ground that it would
be confusing and that it was
irrelevant.1209
he knew he could only drive in situations
allowed by his temporary work
permit.1210
Therefore, the only fact
relevant to Stone‘s prosecution was the
status of his license on the date he was
arrested for driving with a revoked
license.1211 The DOT‘s later rescission of
Stone‘s license revocation did not
change the fact that on the date when he
was stopped, his license was revoked
and he was driving his vehicle in a
manner not permitted by his work
permit.1212 As a consequence, the DOT‘s
rescission of Stone‘s revocation did not
prevent the State from prosecuting
Stone for driving while his license was
denied or revoked for an OWI test
refusal.1213 Moreover, the defendant was
properly precluded from introducing a
DOT record showing that Stone‘s license
was not suspended on the date of the
offense.1214 The record was changed
subsequent to the offense and did not
change the fact that Stone‘s license was
suspended on the date in question.1215
Therefore, it was irrelevant that the DOT
record showed that Stone‘s license was
not revoked.1216
The Iowa Supreme Court noted that
prior to the DOT‘s rescission of Stone‘s
license revocation, Stone had notice that
his driving privileges were revoked, and
4. State v. Helmers, 753 N.W.2d 565
(Iowa 2008)
At issue in Helmers was whether it is
proper to grant a motion to bifurcate a
Id. at 547.
Id.
1204 Id.
1205 Id.
1206 Id.
1207 Id.
1208 Id.
1209 Id. at 547–48.
1202
Id. at 550.
Id.
1212 Id.
1213 Id.
1214 Id. at 551.
1215 Id.
1216 Id.
1203
1210
1211
87
trial in order to consider the elements of
stalking while subject to a no-contact
order separately.1217 The Iowa Supreme
Court held that bifurcating the trial was
an abuse of discretion because the
probative value of the no-contact order
was not substantially outweighed by the
danger of unfair prejudice.1218
stated that under Rule 5.403‘s balancing
analysis, the no-contact order would be
highly probative and the likelihood that
the jury would use it improperly could
be lessened with a jury instruction on
the limited use of the no-contact
order.1226
5. State v. Rex, 2008 Iowa Sup. LEXIS
148 (Iowa 2008)
Helmers was charged with stalking
while subject to a no-contact order.1219
In 2005, a no-contact order was issued
against Helmer following Helmers‘
conviction of harassing and stalking the
same victim involved in this case. 1220
Helmers moved to bifurcate the trial and
prevent evidence of the no-contact order
from being presented to the jury.1221 The
district court granted the motion.1222
In Rex, the Iowa Supreme Court
examined whether (1) the admission of a
photocopy of a check was error, (2) trial
counsel was ineffective for failing to
object to the admission of the
photocopied check, and (3) the evidence
was sufficient to support the defendant‘s
conviction for second-degree theft.1227
The court held that the district court
erred when it allowed the photocopied
check into evidence, that Rex‘s attorney
was ineffective for failing to object to the
check‘s admission, and that there was
sufficient evidence to support the
defendant‘s conviction.1228 The court
remanded for a new trial.1229
On discretionary review, the court
found that the no-contact order was a
―key piece of evidence to prove one of
the elements of stalking.‖1223 The court
stated that the existence of the nocontact order would relate to Helmer‘s
knowledge that the victim would be
placed in reasonable fear of bodily
injury.1224 The no-contact order was
highly probative of whether the
defendant knew his actions would be
insulting or offensive.1225 The court
A jury convicted Rex of theft in the
second degree.1230 During trial, the
State produced evidence that Rex
received a $7,000 check from Bank of
America.1231 The State alleged that Rex
cashed the check with knowledge that it
would not be paid when presented by
State v. Helmers, 753 N.W.2d 565 (Iowa
2008).
1218 Id. at 567.
1219 Id. at 566.
1220 Id.
1221 Id. at 567.
1222 Id. at 567.
1223 Id.
1224 Id.
1225 Id.
1217
Id. at 568–69.
State v. Rex, 2008 Iowa Sup. LEXIS 148, at
**2–3 (Iowa 2008).
1228 Id.
1229 Id. at *3.
1230 Id. at *1.
1231 Id.
1226
1227
88
the bank.1232 The exhibit at issue was
photocopy of the $7,000 check.1233 The
word ―counterfeit‖ was written on the
exhibit.1234 The State offered the check
into evidence without objection.1235
injury.1241 On appeal, Mott alleged that
(1) insufficient evidence supported his
first-degree kidnapping conviction, (2)
his attorney was ineffective for failing to
file a motion for new trial challenging
the verdict as against the weight of the
evidence, (3) the district court abused its
discretion when it appointed ―hybrid‖
representation, and (4) the district court
abused its discretion by denying Mott‘s
motion for substitute counsel.1242 The
court of appeals affirmed.1243
The Supreme Court found that the
State failed to lay sufficient foundation
to admit the check pursuant to the
business records exception to the
hearsay rule.1236 The court explained
that the State did not show that the
check was ―made either by a person with
knowledge or by a reliable, nonhearsay,
computer-generated source.‖1237
The
court also held that Rex‘s counsel was
ineffective for failing to object to the
exhibit‘s admission.1238
The court
reasoned that the exhibit was essential
to the State‘s case, and the admission of
the
exhibit
was,
therefore,
1239
prejudicial.
After concluding that
sufficient evidence supported Rex‘s
conviction, the court vacated the
decision of the court of appeals, and
reversed and remanded the case for a
new trial.1240
During an evening of gambling and
drinking, Mott and Lisa Floyd, the
victim, went to the Brew Haus with a
group of friends.1244
As Mott was
leaving the establishment, he punched a
man in the face for commenting on
Mott‘s friends‘ dancing abilities.1245
Mott blamed Floyd for the fracas.1246
Mott verbally and physically assaulted
Floyd—swearing at her and punching
her in the face and ribs.1247 Floyd‘s
friends dropped Floyd off at Mott‘s
house so Floyd could retrieve her
vehicle.1248 As Floyd was backing out of
Mott‘s driveway, Mott threw a large
metal
padlock
through
Floyd‘s
1249
windshield.
The
windshield
―exploded,‖ spraying broken glass
6. State v. Mott, 759 N.W.2d 140 (Iowa
Ct. App. 2008)
A jury convicted Mott of first-degree
kidnapping and assault causing bodily
Id.
Id. at *2.
1234 Id.
1235 Id.
1236 Id. at **2–3.
1237 Id. at *3 (internal quotations omitted).
1238 Id.
1239 Id. (citing State v. Reynolds, 746 N.W.2d
837, 843 (Iowa 2008)).
1240 Id.
State v. Mott, 759 N.W.2d 140 (Iowa Ct. App.
2008).
1242 Id. at 143.
1243 Id. at 151.
1244 Id. at 143.
1245 Id. at 143–144.
1246 Id. at 144.
1247 Id.
1248 Id.
1249 Id.
1232
1241
1233
89
throughout the vehicle and on Floyd.1250
Floyd drove to a gas station to tend to
her wounds.1251 Mott arrived shortly
thereafter, grabbed Floyd by the hair,
and said ―Let‘s go, bitch, now.‖1252 Floyd
drove her vehicle back to Mott‘s house
because ―she did not know what else to
do.‖1253 While at Mott‘s home, Mott beat
Floyd, threatened to rape and kill her,
and threw a knife at her twice.1254 The
next morning, Floyd went to the hospital
to address her injuries.1255 That evening,
Floyd
reported
Mott
to
the
1256
authorities.
The court then examined Mott‘s
claim for ineffective assistance of
counsel.1261 Mott alleged that his trial
counsel was ineffective because counsel
failed to challenge the sufficiency of the
evidence on the specific intent element
of kidnapping in the first degree.1262 The
court
explained
that,
generally,
ineffectiveness claims are preserved for
postconviction proceedings.1263
The
court determined, however, that the
record was adequate to address the
issue.1264 Examining the record, the
court
concluded
that
Mott‘s
ineffectiveness claim was meritless.1265
On appeal, Mott argued that ―there
was insufficient evidence that he
removed Floyd from QuikTrip and
forced her to drive her own car back to
his house against her will.‖1257 The court
noted that Mott grabbed Floyd by her
hair, and said, ―Let‘s go bitch, now‖
during the QuikTrip confrontation. 1258
The court found that Floyd left with
Mott because ―[s]he was injured, scared,
and did not want him to hurt her
again.‖1259 Based on these facts, the
court concluded that there was
substantial evidence to support Mott‘s
conviction for kidnapping in the first
degree.1260
Turning to Mott‘s abuse of discretion
arguments, the court of appeals found
that the district court acted within its
discretion when it appointed hybrid
representation, and when it denied
Mott‘s motion for substitute counsel.1266
The
court
found
that
hybrid
representation was appropriate because
the appointment was made ―after an
adequate colloquy,‖ and after the court
―repeatedly advised Mott on the
disadvantages of following his personal
trial strategy,‖ and finally because the
court ―accommodated Mott‘s requests
for control over his representation to the
extent possible.‖1267 Furthermore, the
court of appeals found that the district
court did not abuse its discretion by
Id.
Id.
1252 Id.
1253 Id.
1254 Id.
1255 Id.
1256 Id.
1257 Id.
1258 Id. at 146.
1259 Id.
1260 Id.
1250
1251
Id.
Id.
1263 Id.
1264 Id. at 147.
1265 Id.
1266 Id. at 147–49.
1267 Id.
1261
1262
90
denying Mott‘s motion for substitute
counsel because ―Mott‘s requests were
based on his general complaints
regarding his dislike of public defenders,
the requirement that he wear restraints
during meetings with counsel, and
disagreements over trial strategy.‖1268
Finally, the court dismissed Mott‘s
pro se claims.1269 Mott first claimed that
insufficient evidence supported the
marshalling instruction for kidnapping;
however, the court explained that Mott
was not prejudiced by the instruction
because each element listed in the
instruction was supported by substantial
evidence.1270
Also, Mott raised a
number of evidentiary issues.1271
Rejecting each of these arguments, and
finding one meritless, the court affirmed
Mott‘s conviction for kidnapping in the
first degree.1272
Id. at 149.
Id. at 149–51.
1270 Id. at 150.
1271 Id. at 150–51.
1272 Id.
1268
1269
91
~ Statutory Construction ~
VIII. STATUTORY CONSTRUCTION
cohabitating with . . . him as a
spouse.‖1276 Hayes moved to dismiss the
indictment, contending that Section
922(g)(9), applies only to persons
previously convicted of an offense that
has as an element a domestic
relationship between aggressor and
victim.1277 He argued that this is crucial
because the battery conviction did not
designate a domestic relationship
between offender and victim as an
element of the offense.1278 The United
States District Court for the Northern
District of West Virginia rejected
Hayes‘s argument and denied his
motion to dismiss the indictment.1279
Hayes then entered a conditional guilty
plea and appealed.1280
The United
States Court of Appeals for the Fourth
Circuit reversed.1281
1. United States v. Hayes, 129 S. Ct.
1079 (2009)
At issue in Hayes was whether
―misdemeanor crime of domestic
violence,‖ which is a predicate felony for
the crime of felon in possession of a
firearm, included misdemeanor battery
convictions where the battered victim
was the offender‘s spouse. Phrased
differently, to trigger the possession
ban, must the predicate misdemeanor
identify as an element of the crime a
domestic relationship between aggressor
and victim? The Court held that the
domestic relationship need not be a
defining element of the predicate
offense, but evidence of a domestic
relationship must be established beyond
a reasonable doubt in the prosecution
for felon in possession of a firearm.1273
The Supreme Court reversed the
Fourth Circuit.1282 According to the
Court, it sufficed for the Government to
charge and prove a prior conviction that
was, in fact, for an offense committed
against a spouse or other domestic
victim.1283
The
Court
found
unpersuasive the Fourth Circuit‘s textual
arguments
to
the
contrary.1284
Construing Section 922(g)(9) to exclude
a domestic abuser convicted under a
generic battery statute, as opposed to
Hayes was indicted by a federal
grand jury under 18 U.S.C. section
922(g)(9) after a rifle was found in his
possession by police executing a search
warrant.1274 The indictment identified
Hayes‘ predicate misdemeanor crime of
domestic violence as a 1994 conviction
for battery in violation of West Virginia
law.1275 The victim of that battery, the
indictment alleged, was Hayes‘ thenwife, a person who ―shared a child in
common‖ with Hayes and ―who was
Id.
Id.
1278 Id.
1279 Id.
1280 Id.
1281 Id.
1282 Id. at 1089.
1283 Id.
1284 Id. at 1084–87.
1276
1277
United States v. Hayes, 129 S. Ct. 1079
(2009).
1274 Id. at 1082–83.
1275 Id. at 1083.
1273
92
one that designates a domestic
relationship as an element of the
offense, would frustrate Congress‘
purpose in making domestic violence a
predicate offense for purposes of Section
922(g)(9).1285 Practical considerations
strongly
supported
the
Court‘s
reasoning because many persons who
engage in domestic violence are often
charged under generic criminal statutes
instead of domestic violence statutes.1286
Finally, the Court rejected Hayes‘
argument that the rule of lenity should
serve to resolve the matter in his favor
because ―the text, context, purpose, and
what little there is of drafting history‖ of
Section 922(g)(9) did not create any
ambiguity that necessitated invoking the
rule of lenity.1287
whether ―the date on which the
judgment became final,‖ is postponed by
a state court‘s decision during collateral
review to grant a defendant the right to
file an out-of-time direct appeal.1291 The
Court answered the question in the
affirmative.1292
In November 1995, Jimenez was
sentenced to a forty-three-year term of
imprisonment for burglarizing a place of
habitation
and
violating
his
probation.1293 After his initial appeal
was dismissed, he filed a state habeas
appeal arguing that he was denied his
right to a meaningful appeal.1294 This
state habeas appeal was granted on
September 25, 2002.1295 However, his
conviction was yet again affirmed.1296
The Texas Court of Criminal Appeals
denied discretionary review on October
8, 2003.1297 Time for seeking certiorari
review of that decision with the United
States Supreme Court expired on
January 6, 2004.1298 On June 29, 2005,
his second application for a state writ of
habeas corpus was denied.1299 On July
19, 2005, he filed a federal petition for a
writ of habeas corpus.1300
2. Jimenez v. Quarterman, 129 S. Ct.
681 (2009)
The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA)
established a 1-year time limitation for a
state prisoner to file a federal habeas
corpus petition.1288 That year runs from
the latest of four specified dates.1289
Jimenez involved the date provided by §
2244(d)(1)(A) of AEDPA, which is ―the
date on which the judgment became
final by the conclusion of direct review
or the expiration of the time for seeking
such review.‖1290 The Court considered
To establish the timeliness of his
petition, Jimenez relied on 28 U.S.C. §
Jimenez v. Quarterman, 129 S. Ct. 681
(2009).
1292 Id. at 686.
1293 Id. at 683.
1294 Id.
1295 Id.
1296 Id. at 684.
1297 Id.
1298 Id.
1299 Id.
1300 Id.
1291
Id. at 1087.
Id.
1287 Id. at 1088–89.
1288 28 U.S.C. §2244.
1289 Id. at § 2244(d)(1).
1290 Id. at § 2244(d)(1)(A).
1285
1286
93
2244(d)(1)(A), which provides ―the date
on which the judgment became final by
the conclusion of direct review or the
expiration of the time for seeking such
review‖ as the trigger for AEDPA‘s 1year limitations period.1301 He argued
that his judgment thus became final on
January 6, 2004, when time expired for
seeking certiorari review of the decision
in his out-of-time appeal. Until that
date, he argued, direct review of his
state-court
conviction
was
not
complete.1302
but the United States Supreme Court
granted certiorari and reversed.1306
The Court first restated the principle
that with respect to postconviction relief
for federal prisoners, the conclusion of
direct review occurs when ―this Court
affirms a conviction on the merits on
direct review or denies a petition for a
writ of certiorari.‖1307 The Court further
opined that if a federal prisoner chooses
not to seek direct review in this Court,
then a conviction becomes final when
―the time for filing a certiorari petition
expires.‖1308 The Court adhered to this
settled understanding, which it stated
comports with the most natural reading
of AEDPA.1309 As a result, direct review
cannot conclude for purposes of §
2244(d)(1)(A) until the availability of
direct appeal to the state courts, and to
the
Supreme
Court
has
been
1310
exhausted.
Until that time, the
―process of direct review‖ has not
―com[e] to an end‖ and ―a presumption
of finality and legality‖ cannot yet have
―attache[d] to the conviction and
sentence.‖1311
With January 6, 2004, as the start
date, Jimenez contended that his July
19, 2005, petition was timely because
the statute excludes from the 1-year
limitations period ―[t]he time during
which a properly filed application for
State post-conviction or other collateral
review with respect to the pertinent
judgment or claim is pending.‖1303 He
had a state habeas application pending
from December 6, 2004, through June
29, 2005, so less than one year of
included time—specifically, 355 days—
passed between January 6, 2004, and
July 19, 2005.1304
Therefore, under AEDPA, once the
Texas Court of Criminal Appeals
reopened direct review of Jimenez‘s
September 25, 2002 conviction, that
conviction was no longer final for
The District Court disagreed and
dismissed Jimenez‘s habeas petition as
time barred.1305 The Court of Appeals
affirmed the District Court‘s dismissal,
Id.
Id. (quoting Clay v. United States, 537 U.S.
522, 527 (2003)).
1308 Id. (quoting Clay, 537 U.S. at 527 (2003)).
1309 Id.
1310 Id.
1311 Id. at 685–86 (quoting Barefoot v. Estelle,
463 U.S. 880 (1983)).
1306
1307
Id.
Id.
1303 Id. (quoting 28 U.S.C. § 2244(d)(2)).
1304 Id.
1305 Id.
1301
1302
94
purposes of § 2244(d)(1)(A).1312 Rather,
the order ―granting an out-of-time
appeal restore[d] the pendency of the
direct
appeal,‖1313
and Jimenez‘s
conviction was again capable of
modification through direct appeal to
the state courts and the Supreme Court
on certiorari review.1314 Thus, it was not
until January 6, 2004 that his conviction
became ―final‖ through ―the conclusion
of direct review or the expiration of the
time for seeking such review‖ under §
2244(d)(1)(A).1315
The
Court
emphasizing:
concluded
expiration of the time for seeking
review of that appeal.1316
3. Johnson v. Story County Ct., 756
N.W.2d 845 (Iowa 2008)
At issue in Johnson was whether
Iowa‘s civil commitment statute, section
229A.8(5)(e), requires the committed
person to disprove the State‘s case to
gain access to a final hearing for a
determination
on
whether
the
committed person is eligible for release
from civil commitment.1317 The Iowa
Supreme Court held courts should apply
the following standard in determining
whether the committed person is
entitled to a final hearing to determine
their eligibility for release: ―[I]f the
committed person presents admissible
evidence that could lead a fact finder to
find reasonable doubt on the issue of
whether his mental abnormality has
changed such that he is unlikely to
engage in sexually violent offenses, then
the committed person should be granted
a final hearing.‖1318
by
Our decision today is a narrow
one. We hold that, where a state
court grants a criminal defendant
the right to file an out-of-time
direct appeal during state
collateral review, but before the
defendant has first sought federal
habeas relief, his judgment is not
yet ‗final‘ for purposes of §
2244(d)(1)(A). In such a case, ‗the
date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review‘
must reflect the conclusion of the
out-of-time direct appeal, or the
In July 2001, Johnson was civilly
committed as a sexually violent predator
under the Commitment of Sexually
Violent Predators Act. 1319 Prior to his
commitment, Johnson was diagnosed
with an antisocial personality disorder
that predisposes him to commit future
Id. at 686.
Id. (quoting Ex parte Torres, 943 S.W.2d
469, 472 (Tex. Crim. App. 1997)).
1314 Id.
1315 Id.
Id.
Johnson v. Story County Ct., 756 N.W.2d 845
(Iowa 2008).
1318 Id.
1319 Id. at 847; I OWA C ODE § 229A.
1312
1316
1313
1317
95
sexually violent offenses.1320 Following
his 2001 commitment, Johnson had five
annual reviews, but in each, his request
for a final hearing (to determine if he
was eligible for release) was denied.1321
At his October 2006 annual review, the
State submitted evidence that Johnson
was not ready for release.1322 The State
also submitted Johnson‘s current
progress assessment, which included a
transcript from a clinical interview in
which Johnson stated that he was not
ready for release.1323
determine whether he was eligible for
release.1327
Johnson‘s writ, and stated: ―It would be
illogical and contrary to the legislature‘s
allocation of the burden of proof to
interpret section 229A.8(5)(e) to
require the committed person to
disprove the state‘s final-hearing case in
order to obtain a final hearing.‖1328 Such
an interpretation would ignore the
language of section 229A, which
requires only that there be ―‗competent
evidence which would lead a reasonable
person to believe a final hearing should
be held.‘‖1329 The language used in
section 229A.8(5)(e), led the court to
believe a reasonable person would give
the committed person a hearing when
there is competent evidence that would
allow a fact finder to find reasonable
doubt on the issue of whether his mental
abnormality has changed.1330 Such an
interpretation of the statute does not
foreclose the district court from
evaluating the evidence presented by the
committed person to determine whether
the evidence could support a reasonable
doubt finding and whether a reasonable
person would conclude that this
evidence, if believed, could lead to
release.1331 It does not, however, permit
the district court to conduct a minihearing on the issue of whether the
Johnson submitted a report by Dr.
Richard Wollert that declared Johnson
no longer suffered from a mental
abnormality and was not likely to
commit sexually violent offenses if he
was released.1324 Wollert‘s conclusion
was largely based on actuarial data
demonstrating the risk of recidivism
decreases with age, and Johnson‘s risk
of reoffending, at age sixty, was only ten
percent.1325 The district court weighed
the evidence presented by both parties
and determined Johnson had not shown
by a preponderance of the evidence he
was entitled to a final hearing.1326
Johnson filed a writ of certiorari with
the Iowa Supreme Court, asserting the
district court exceeded its jurisdiction
when it weighed evidence to determine
he was not entitled to a final hearing to
Id.
Id.
1322 Id.
1323 Id.
1324 Id.
1325 Id.
1326 Id.
1320
Id.
Id. at 850.
1329 Id. at 850 (quoting IOWA CODE § 229A.8(5)
(emphasis in original)).
1330 Id.
1331 Id. at 850–51.
1321
1327
1328
96
committed person still suffers from a
mental abnormality.1332
whether his mental abnormality has
changed, such that he is unlikely to
engage in sexually violate offenses, then
the committed person should be granted
a final hearing.‖1336
In
determining
whether
the
committed person is entitled to a final
hearing, the district court should
proceed under the following standard:
―[I]f the committed person presents
admissible evidence that could lead a
fact finder to find reasonable doubt on
the issue of whether his mental
abnormality has changed such that he is
unlikely to engage in sexually violent
offenses, then the committed person
should be granted a final hearing.‖1333
Johnson met this standard by
submitting the report of Dr. Wollert.1334
Carmody and Garren were both
civilly committed pursuant to Iowa Code
chapter 229A.1337 Iowa Code chapter
229A provides for the civil commitment
of sexually violent predators.1338 Each
year, those civilly committed under
chapter 229A may request a final
hearing on whether the committed
person should be released.1339 Both
petitioners requested a final hearing
during their respective annual reviews
and both were denied a final hearing.1340
Carmody and Garren each filed petitions
for writs of certiorari, challenging the
district court‘s denial of a final
hearing.1341
4. Carmody v. Henry County Ct., 2008
Iowa Sup. LEXIS 147 (Iowa 2008)
and Garren v. Polk County Ct., 2008
Iowa Sup. LEXIS 146 (Iowa 2008)
Relying on the analytical framework
set forth in Johnson v. Iowa Dist. Ct.,
756 N.W.2d 845 (Iowa 2008), the courts
reiterated that the committed person
bears the burden at an annual review to
show that he is eligible for release or
transitional release.1342 The committed
person must prove, by a preponderance
of the evidence, that there is ―competent
evidence which would lead a reasonable
person to believe a final hearing should
The Carmody and Garren courts
assessed the appropriate standard in
determining
whether
a
person
committed pursuant to Iowa Code
section 229A.4 is entitled to a final
hearing to determine if he is eligible for
release or transitional release.1335 The
courts, per curiam, held that ―if the
committed person presents competent
evidence that could lead a fact finder to
find reasonable doubt on the issue of
Id. at 851.
Id.
1334 Id.
1335 Carmody v. Iowa Dist. Ct., 2008 Iowa Sup.
LEXIS 147, at *4 (Iowa 2008); Garren v. Iowa
Dist. Ct., 2008 Iowa Sup. 146, at *4 (Iowa
2008).
Id.; Garren, 2008 Iowa Sup. at *4.
Id. at 2; Garren, 2008 Iowa Sup. at *2.
1338 Id.; Garren, 2008 Iowa Sup. at *2.
1339 Id. at *4; Garren, 2008 Iowa Sup. at *4.
1332
1336
1333
1337
97
be held.‖1343 Competent evidence does
not mean credible evidence; rather, it
means evidence that would be
admissible at trial.1344 At the final
hearing, the burden is on the State to
show beyond a reasonable doubt that
―the
committed
person‘s
mental
1345
abnormality has not changed.‖
The
committed person bears no burden at
the final hearing.1346
Because both
Carmody and Garren were denied a final
hearing before Johnson, the court
sustained Carmody‘s and Garren‘s writs,
and remanded the cases to be
adjudicated consistent with Johnson.1347
woman, who lived near the first woman,
heard heavy breathing outside her
bedroom window and something
rubbing up against the window
screen.1351 She did not look out her
window.1352
An officer saw Isaac
standing outside of the second woman‘s
window.1353 Isaac was looking into the
window and had a hand on his
crotch.1354 The officer testified that it
appeared as though Isaac was
masturbating or fondling himself.1355
The officer shined a flashlight toward
Isaac, and Isaac turned toward the
officer.1356 The zipper on Isaac‘s pants
was down and Isaac‘s penis was outside
of his pants near his hand.1357 The
officer could not tell whether Isaac‘s
penis was erect.1358 Isaac fled and the
officer caught up to him, tackling him to
the ground.1359 The officers observed
that Isaac‘s hands were oily and his
penis was outside his pants.1360 Isaac
was charged with indecent exposure,
interference with official acts, and two
counts of harassment in the third
degree.1361 The district court found him
guilty of all counts and Isaac appealed
the indecent exposure conviction
5. State v. Isaac, 756 N.W.2d 817 (Iowa
2008)
State v. Isaac involved the narrow
issue of whether there was sufficient
evidence to convict Isaac of indecent
exposure under Iowa Code section
709.9.1348 The Iowa Supreme Court
concluded that there was insufficient
evidence
to
support
Isaac‘s
conviction.1349
Officers responded to a woman‘s
report that she heard someone outside
her window making sexual moans, but
officers initially failed to find anyone
outside of the home.1350
Another
Id.
Id.
1353 Id.
1354 Id.
1355 Id.
1356 Id.
1357 Id.
1358 Id.
1359 Id.
1360 Id.
1361 Id.
1351
1352
Id.; Garren, 2008 Iowa Sup. at *4.
Id. at *4 n.2; Garren, 2008 Iowa Sup. at *4
n.2.
1348 State v. Isaac, 756 N.W.2d 817 (Iowa 2008).
1349 Id. at 821.
1350 Id. at 818.
1343
1344
98
challenging the
evidence.1362
sufficiency
of
the
finding that Isaac exposed himself to the
officer for the purpose of arousing or
satisfying sexual desires.1371 The court
ordered Isaac‘s conviction reversed.1372
indecent exposure is a ―visual assault‖
crime.1363 The State needed to produce a
victim who saw Isaac‘s exposed
genitals.1364 Indecent exposure has four
elements: (1) exposure of genitals or
public hair to someone other than a
spouse; (2) the act is done to arouse the
sexual desire of either party; (3) the
viewer was offended by the conduct; and
(4) the actor knew or should have know
that the victim would be offended.1365
The court summarized that indecent
exposure is only exposure with a sexual
motivation inflicted upon an unwilling
viewer.1366
The court stressed that
streaking, nude protesting, or urinating
in public is outside the scope of the
indecent exposure statute.1367
6. State v. Jorgensen, 758 N.W.2d 830
(Iowa 2008)
In Jorgensen, the Iowa Supreme
Court considered whether Iowa‘s
indecent exposure statute requires
knowledge by the actor of the identity of
his actual victim.1373
The court
answered in the affirmative, holding that
the actor can be found guilty of indecent
exposure by exposing himself to an
audience that the actor was not
specifically aware existed.1374
A loss-prevention employee observed
Jorgensen
fondling
himself
and
exposing his penis while masturbating
on a closed-circuit surveillance camera
in a public store.1375 The employee
contacted two fellow employees who
also observed Jorgensen‘s behavior.1376
The employees contacted the police and
detained Jorgensen.1377 The woman who
Jorgensen had been following was never
identified.1378
All three employees
stated
they
were
offended
by
The statute requires that the purpose
of the exposure was to satisfy sexual
desires.1368 The State satisfied the first
element with the officer‘s testimony that
he saw Isaac‘s penis.1369 However, no
sexual purpose could be inferred from
Isaac‘s remarks, conduct or the
circumstances of the incident in
question.1370
No facts supported a
Id.
Id. (quoting State v. Bauer, 447 N.W.2d 209,
211 (Iowa 1983)).
1364 Id.
1365 Id.
1366 Id.
1367 Id. at 820.
1368 Id.
1369 Id.
1370 Id.
1362
1363
Id.
Id. at 821.
1373 Id. at 834–35.
1374 Id.
1375 Id. at 832–33.
1376 Id. at 833.
1377 Id.
1378 Id.
1371
1372
99
Jorgensen‘s conduct and none were
married to him.1379
knowledge of the specific person to
whom he is exposing himself.1386 The
exposure must be intentional and not
accidental, and the intent required not
need be directed to anyone in
particular.1387 Furthermore, the court
stated that deliberateness may be
assumed when it is almost certain that
someone could walk by and observe the
defendant exposing himself.1388 The
court noted that it was reasonable to
assume that exposure in a public place
would be observed by more persons
than defendant‘s targeted audience.1389
This includes viewers by closed-circuit
video systems in a public shopping
area.1390
The crime of indecent exposure
contains four elements: (1) exposure of
the genitals to someone other than the
person‘s spouse or a sexual act in
presence or view of a third person; (2)
the act is done to arouse sexual desires
of either party; (3) the viewer was
offended; (4) the actor knew or should
have
known
victim
would
be
offended.1380
Jorgensen argued that
there was insufficient evidence showing
that he knew he was being watched or
that his conduct would be offensive.1381
He also claimed that he did not expose
himself with the intent to arouse his or
their sexual desires.1382
7. State v. Plowman, 757 N.W.2d 684
The Iowa Supreme Court identified
the issue as whether the statute required
knowledge by the actor of the identity of
his actual victim or if he can be found
guilty of exposing himself to an audience
that he was not specifically aware of.1383
The court explained that the statute did
not define the term ―expose,‖ but courts
have held that indecent exposure is a
visual assault crime.1384 Therefore, the
first element of the crime requires the
defendant to ―expose or cause to be
visible or open to view his or her
genitals.‖1385 The statute did not require
the defendant to be aware or have
The question presented to in
Plowman was whether the twelve-year
enhancement
period
for
OWI
convictions begins running on the day of
the conviction or the day after.1391 The
Iowa Court of appeals ruled that the
statutory twelve-year enhancement
period begins running on the day after a
conviction.1392
Plowman was convicted of thirdoffense operating while intoxicated.1393
Id. at 836.
Id.
1388 Id.
1389 Id.
1390 Id.
1391 State v. Plowman, 757 N.W.2d 684, 685
(Iowa Ct. App. 2008).
1392 Id. at 686.
1393 Id. at 685.
1386
1387
Id.
Id.
1381 Id.
1382 Id.
1383 Id. at 834–35.
1384 Id. at 835.
1385 Id.
1379
1380
100
He challenged the enhancement to a
third offense under the look-back
provision of Iowa Code section
321J.2(4)(a).1394 Plowman was arrested
for OWI on December 7, 2005.1395 He
had prior convictions for OWI on
December 7, 1993 and April 1, 1996.1396
Plowman argued that the December 7,
1993 conviction could not be considered
because it was outside the twelve-year
window and would have been expunged
from his driving record on December 7,
2005.1397
period begins running on the date
following a conviction.1401
The Iowa Court of Appeals stated
that Iowa Code section 321.12(4)
expressly states that convictions ―shall
be deleted from the operating records
twelve years after the date of
conviction.1398
Further, the court
utilized the dictionary definition of
―after‖ and stated that it is ―a generally
accepted rule that in computing a period
of time ‗from‘ or ‗after‘ a day, date, act,
or event, the day or event from which
the time is calculated is excluded and
the last day of the period is
included.‖1399 The court also looked to
Iowa Code section 4.1(34) and
interpreted it to apply to enhancement
calculations,
as
well
as
filing
1400
deadlines.
The court concluded that
under Iowa Code section 4.1(34) the
statutory twelve-year enhancement
Id.
Id.
1396 Id.
1397 Id.
1398 Id. at 686.
1399 Id.
1400 Id.
1394
1395
1401
101
Id.
~ Litigation Expenses ~
IX. LITIGATION EXPENSES
remanded the
proceedings.1405
1. State v. Dudley, 766 N.W.2d 606
(Iowa 2009)
case
for
further
The court first found that the
repayment obligation infringed upon
Dudley‘s state and federal right to
counsel.1406 Distinguishing Fuller v.
Oregon, 417 U.S. 40 (1974) and State v.
Haines, 360 N.W.2d 791 (Iowa 1985),
the court explained that the statute did
not contain sufficient safeguards for
indigent defendants who are unable to
pay.1407 Under the statute, ―an acquitted
defendant will be charged with the full
expense of his legal assistance without
regard to whether he will ever have the
funds to pay.‖1408
Because Haines
hinged on the fact that the statute
exempted those who are unable to pay,
the court concluded that Iowa Code
section 815.9 did not contain the
procedural safeguards required to
satisfy the defendant‘s state and federal
right to counsel.1409
At issue in Dudley was the
constitutionality of Iowa Code chapter
815. Chapter 815 imposes a repayment
obligation on indigent defendants who
used state appointed counsel at trial and
were acquitted. The court held that (1)
the statute violated Dudley‘s right to
counsel, (2) the statute violated the
Equal Protection Clause of the federal
Constitution, (3) Dudley‘s attorney was
ineffective for failing to raise an
additional equal protection claim, and
(4) Dudley‘s due process rights under
the federal and Iowa constitutions were
not violated.
Dudley, represented by appointed
counsel, was acquitted in October
2004.1402 Following Dudley‘s acquittal,
the district court judge scheduled a
hearing
to
determine
Dudley‘s
repayment obligations pursuant to Iowa
Code section 815.9(4).1403 During a
hearing on the constitutionality of the
statute, the district court judge ruled
against Dudley and the court of appeals
affirmed.1404
The Supreme Court
vacated the court of appeals‘ ruling,
reversed the district court‘s holding, and
The court then analyzed Dudley‘s
equal protection claim. Dudley argued
that the difference in treatment between
indigent defendants and other civil
judgment
debtors
was
not
1410
constitutionally permissible.
Relying
on James v. Strange, 707 U.S. 128
(1972), the court held that the ―different
treatment of acquitted defendants such
as Dudley compared to ordinary
Id. at 626.
Id. at 613–15.
1407 Id. at 614.
1408 Id.
1409 Id.
1410 Id. at 616.
1405
1406
State v. Dudley, 766 N.W.2d 606 , 611(Iowa
2009).
1403 Id.
1404 Id. at 611–12.
1402
102
judgment debtors violates the Equal
Protection Clause.‖1411
[the difference] in treatment.‖1417 The
court noted how the supervisory
authority of the criminal justice system
allows it to monitor the defendant‘s
community
service
activities.1418
Therefore, because the acquitted
defendants are not subject to the same
supervisory authority, the State had a
rational basis for the distinction.1419
After concluding that Dudley had a
right to counsel at the hearing following
his conviction, the court analyzed
Dudley‘s ineffectiveness claims.1412 The
court first examined whether Dudley‘s
attorneys should have raised an
additional equal protection claim
alleging that there is no rational basis
for the distinction between indigent
defendants represented by contract
attorneys and indigent defendants
represented by the public defender.1413
The court also found that Dudley‘s
attorney‘s failure to raise the equal
protection amounted to failure to
exercise due diligence and that Dudley
was
prejudiced
as
a
result.1414
Consequently, Dudley‘s attorney was
ineffective.1415
After finding that Dudley‘s attorney
was also ineffective for failing to object
to a court report fee levied against
Dudley, the court examined Dudley‘s
procedural due process argument.1420
The court first determined that notice
was sufficient even though Dudley was
not expressly advised of the repayment
obligation because it was a matter of
public record.1421 Additionally, the court
found that the evidentiary hearing
satisfied due process requirements.1422
Finally, the court held that Dudley did
not have standing to challenge the
statute as facially unconstitutional for
failing to provide for a hearing because
Dudley was, in fact, provided a
hearing.1423
Dudley also contended that his
attorney was ineffective because the
attorney failed to assert an equal
protection claim alleging that no
rational basis existed to distinguish
indigent acquitted defendants and
convicted defendants.1416
The court,
rejecting this argument, found that ―the
practical distinctions between a civil
judgment and restitution order entered
as part of a sentence adequately justify
2. State v. Sluyter, 763 N.W.2d 575
(Iowa 2009)
In Sluyter, the Iowa Supreme Court
considered whether an acquitted
defendant‘s failure to pay court costs
Id.
Id.
1419 Id.
1420 Id. at 624–25.
1421 Id.
1422 Id. at 625.
1423 Id. at 625–26.
1417
Id. at 617.
1412 Id. at 619–20.
1413 Id. at 621.
1414 Id. at 622–23.
1415 Id. at 623.
1416 Id.
1411
1418
103
created civil or criminal liability
enforceable with contempt power.1424
The court held that trial courts are not
authorized to invoke the power of
contempt to enforce a civil cost
judgment.1425
provide
that
a
defendant‘s
reimbursement obligation is enforceable
by contempt.1433 The court next pointed
out that because Sluyter was acquitted of
the criminal charges, the cost judgment
entered against him could not have been
―part of the fine to be imposed as
penalty for an offense.‖1434 Therefore,
the judgment created only civil liability.
The court then stated that although a
district court has inherent power to
punish persons who fail to obey its
orders, earlier case law had made clear
that that power is limited and required
the State to enforce a civil cost judgment
―by execution,‖ not through a court‘s
contempt power.1435
The court
concluded that based on the legislative
history of the relevant statutes, the
location of the civil contempt power in
the
Iowa
Code,
and
certain
constitutional problems arising from
circumventing civil judgment collection
protections, the district court was not
authorized to use the power of contempt
to enforce a civil cost judgment such as
the one entered against Sluyter.1436
Sluyter was charged with various
crimes and was appointed counsel based
on his indigent status.1426
The
prosecution dropped one of the charges
before trial, and Sluyter was acquitted of
the remaining charges.1427 Immediately
after the trial, the court issued an order
taxing Sluyter for his appointed
attorney‘s fees and associated costs as
required under Iowa Code section
815.9(3), (4).1428 The court required
Sluyter to pay $50 per month toward the
total cost of approximately $8,000.1429
The court set several dates for showcause proceedings in which the court
would monitor the payment of the
debt.1430 The court specified that if
Sluyter failed to personally appear, a
warrant would issue for his arrest.1431
When Sluyter failed to appear for a
proceeding, a warrant for his arrest was
issued by the district court judge.1432
3. State v. McKinney, 756 N.W.2d 678
(Iowa 2008)
that Iowa Code section 815.9 does not
At issue in McKinney was whether
the State or county must bear the costs
of material-witness fees incurred in a
prosecution enforcing a state law. The
court held that the State, not the county,
State v. Sluyter, 763 N.W.2d 575 (Iowa
2009).
1425 Id. at 584.
1426 Id. at 577.
1427 Id.
1428 Id.
1429 Id. at 579.
1430 Id.
1431 Id.
1432 Id.
1424
Id. at 581.
Id. at 582 (quoting LaRue v. Burns, 268
N.W.2d 639, 641 (Iowa 1978)).
1435 Id. (quoting LaRue, 268 N.W.2d at 641).
1436 Id. at 584.
1433
1434
104
is responsible for witness fees, including
material-witness fees, when the county
incurs the expense during a prosecution
that enforces a state law.1437
county a right to appeal in any case.1446
The court stated that the county was not
left without a remedy because the rules
of procedure provide for certiorari
proceedings to originate at the appellate
level to review the jurisdiction of lower
tribunals and the legality of their
actions.1447
The county is essentially
challenging the legality of the district
court‘s order that it pay a materialwitness fee.1448 The question is purely
legal
and
certiorari
review
is
appropriate.1449
McKinney was arrested and detained
for use as a material witness for fiftythree days.1438 During a hearing, the
district court determined that McKinney
was entitled to receive $40 for each day
that he was held as a material witness
pursuant to Iowa Code § 815.6.1439 The
court ordered the State to pay McKinney
$2,120.1440 The State failed to pay the
fee and McKinney filed an application
with the district court for payment of the
fee with interest.1441 At that hearing, the
parties asked the court to determine
whether the State or the county was
responsible for payment of the fee.1442
The district court ordered the county to
pay the fee and the county appealed.1443
Iowa Code section 815.6 does not
specifically
designate
the
actual
government entity responsible for the
material-witness fee.1450
Statutes
relating to the same subject matter must
be considered in light of their common
purpose and harmonized.1451 Iowa Code
section 331.756 charges the county
attorney with the responsibility to
enforce the state laws and prosecute
violations of the law in the name of the
state.1452 The county was enforcing the
state law when it detained McKinney as
a material witness.1453
The Iowa Supreme Court reviewed
the issues for errors at law to decide if
the county has the right to appeal the
ruling and, if so, which entity was
responsible for paying the materialwitness fee.1444
The rules governing
civil appeals do not apply to questions of
material-witness fees.1445 Iowa Code
Chapter 814 does not explicitly give the
Iowa Code sections 602.1302–.1303
established a uniform system of funding
for the court system and to pay witness
fees.1454 The expenses of operating and
1437
State v. McKinney, 756 N.W.2d 678, 682
(Iowa 2008).
1438 Id. at 679.
1439 Id.
1440 Id.
1441 Id.
1442 Id.
1443 Id.
1444 Id.
1445 Id.
Id. at 680.
Id.
1448 Id.
1449 Id.
1450 Id.
1451 Id.
1452 Id.
1453 Id.
1454 Id. at 680–81.
1446
1447
105
maintaining the judicial branch are paid
out of the general fund for the judicial
branch.1455 Iowa Code sections 622.69
and 622.72 mandate fees to lay and
expert witnesses and do not exclude
material witness fees.1456 Iowa Code
section 602.1303 details local funding
responsibilities and suggests that the
legislature intended the State to pay the
costs of the actions prosecuted under
state law while cities and counties bear
the costs for actions prosecuted under
city and county law.1457 The court found
further support in Iowa Code sections
815.13 and 331.506(2).1458
county to pay the material witness
fees.1463
The court stated that the only way to
harmonize all of the statutes was to
conclude that the legislature intended
for the State to pay any other witness
fees incurred in a prosecution under
state law.1459 The material witness fees
due to McKinney were incurred
vindicating state law.1460 The purpose of
the material-witness fee statute is to
secure the presence of the witness at
trial.1461 It serves to ensure that each
citizen meets his public duty to testify to
knowledge of a crime.1462
The court concluded that the district
court acted illegally by ordering the
Id. at 681.
Id.
1457 Id.
1458 Id. at 681–82.
1459 Id. at 682.
1460 Id.
1461 Id.
1462 Id.
1455
1456
1463
106
Id.
X.
SENTENCING
―freaked‖ when she observed Jacob‘s
lifeless body in the bathwater.1470 After
her
conviction,
Anfinson
sought
postconviction relief, claiming that her
trial attorney was ineffective for failing
to
investigate
her
postpartum
1471
depression.
1. Anfinson v. State, 758 N.W.2d 496
(Iowa 2008)
The issue in Anfinson was whether
Anfinson‘s trial attorney was ineffective
for failure to investigate and assert
defenses
based
on
postpartum
depression.1464 Vacating the court of
appeals decision and reversing and
remanding the district court‘s judgment,
the court held that, although the trial
attorney was not ineffective for failure to
investigate
Anfinson‘s
postpartum
depression with regard to Anfinson‘s
insanity and diminished responsibility
defenses, the trial attorney was
ineffective for failing to offer evidence of
Anfinson‘s postpartum depression for
Anfinson‘s accidental death defense.1465
The court first concluded that
Anfinson‘s attorney was aware of
Anfinson‘s postpartum depression and
that counsel immediately declined to
investigate
Anfinson‘s
condition
outright.1472 The court examined
whether counsel‘s failure to investigate
constituted ineffectiveness with respect
to the insanity defense, diminished
responsibility defense, and accidental
death defense.1473 The court first found
that Anfinson did not show a probability
of success on the insanity issue.1474 The
court pointed out that no mental health
expert, including Anfinson‘s, testified
that Anfinson suffered from a mental
defect or disease at the time of Jacob‘s
death.1475 Therefore, the court reasoned,
Anfinson did not show that her counsel
was ineffective with respect to the
insanity defense.1476
Anfinson was convicted of seconddegree murder for the death of her
infant son, Jacob.1466 Jacob‘s father
reported Jacob missing fifteen days after
Jacob was born.1467
Police began
searching for the child and transported
Anfinson and Jacob‘s father to the police
station.1468 While there, Anfinson said
that she had been bathing Jacob and
that he drowned when she left to answer
the telephone.1469 Anfinson also said
that she submerged Jacob in the shallow
waters of Saylorville Lake because she
The court next addressed whether
Anfinson‘s attorney was ineffective for
failing
to
investigate
Anfinson‘s
postpartum depression to support a
Anfinson v. State, 758 N.W.2d 496, 498
(Iowa 2008).
1465 Id. at 502, 504–05.
1466 Id. at 498.
1467 Id.
1468 Id.
1469 Id.
Id.
Id.
1472 Id. at 499–501.
1473 Id. at 502–06.
1474 Id. at 502.
1475 Id.
1476 Id.
1464
1470
1471
107
~ Sentencing~
diminished responsibility defense.1477
Diminished responsibility is a common
law defense, and it ―allows a defendant
to negate the specific intent element of a
crime by demonstrating due to some
mental defect she did not have the
capacity to form that specific intent.‖1478
However, diminished responsibility
does not allow a defendant to rebuff
general intent.1479
Thus, because
Anfinson was convicted of seconddegree murder, a general intent crime,
diminished responsibility would not
have had an impact on Anfinson‘s
conviction.1480 Consequently, Anfinson
failed to prove that her attorney‘s failure
to investigate postpartum depression
was prejudicial with regard to her
diminished responsibility defense.1481
(2) Why Anfinson behaved
irrationally
in
subsequently
taking Jacob‘s body to the lake,
burying it under rocks, returning
to her home, and going to sleep;
and
(3)
Why her affect was flat and
emotionless later that same day
when she was questioned by
investigators about the child‘s
disappearance.
The court stated that counsel‘s
―accidents happen‖ defense would not
have had a great likelihood of success
unless these three questions were
answered.1483 The court also found that
counsel‘s failure to investigate or proffer
evidence of Anfinson‘s postpartum
depression was not a reasonable
strategic decision.1484
The court
concluded that ―our confidence in the
outcome of Anfinson‘s criminal trial is
shaken by trial counsel‘s failure to
reasonably investigate and prove his
client‘s mental condition in furtherance
of the accidental death defense.‖1485
Consequently, Anfinson‘s attorney was
ineffective for failing to investigate
Anfinson‘s
postpartum
depression
further to advance Anfinson‘s accidental
death defense.1486
Finally, the court addressed whether
Anfinson‘s attorney was ineffective for
failing to offer evidence of Anfinson‘s
postpartum depression to advance her
accidental death claim.1482 Anfinson
claimed that the evidence would have
explained:
(1) Why Anfinson was so
distracted and inattentive on
September 20, 1998 that she left
her
two-week-old
baby
unattended in bath water;
Id.
Id.
1479 Id.
1480 Id. at 503–04.
1481 Id. at 504.
1482 Id.
1477
1478
Id.
Id. at 505.
1485 Id.
1486 Id.
1483
1484
108
2. State v. Smith, 753 N.W.2d 562 (Iowa
2008)
903B.1.1494 On January 11, 2007, five
days before resentencing, Smith filed a
motion in arrest of judgment and an
application to withdraw his guilty
plea.1495 The sentencing court granted
Smith a new trial holding that it could
correct an illegal sentence at any time
and that Smith‘s sentence was illegal
because it did not include the
mandatory
lifetime
supervision
requirement.1496
The issue before the Iowa Supreme
Court in State v. Smith was whether the
district court should have considered a
motion in arrest of judgment filed five
days prior to Smith‘s resentencing.1487
The court held that the district court was
in error when it considered the motion
in arrest of judgment.1488
Smith entered a negotiated guilty
plea to first-degree burglary, thirddegree sexual abuse as a habitual
offender, and assault causing injury as a
habitual offender.1489 Smith accepted
immediate sentencing and waived his
right to file a motion in arrest of
judgment.1490 Smith was sentenced on
June 27, 2006 on all counts.1491 The
sentencing judge failed to inform Smith
that that Smith would be subject to
mandatory lifetime supervision as a
result of his guilty plea to the habitual
offender sexual assault charge.1492 The
sentence was subsequently set aside on
October 31, 2006, because it did not
conform to Iowa Code section 903B.1
and resentencing was scheduled for
December 18, 2006.1493 At resentencing,
Smith requested to withdraw his plea of
guilty because he was not informed of
the potential for mandatory lifetime
supervision under Iowa Code section
The State argued that the district
court improperly considered the motion
in arrest of judgment because Smith
waived his right to file the motion at his
original sentencing hearing.1497 Smith
claimed his motion in arrest of
judgment was timely because it was filed
five days prior to resentencing.1498 Iowa
Rule of Criminal Procedure 2.2391
requires the court to sentence a
defendant within a reasonable time after
the entry of a guilty plea, but not less
than fifteen days after the plea and
requires the defendant to file a motion
in arrest of judgment no later than fortyfive days after the plea, and in any case
no later than five days before the
sentencing.1499
The Iowa Supreme Court stated that
the two rules of procedure must be
construed together and that if the
―sentencing date is set for more than
State v. Smith, 753 N.W.2d 562 (Iowa 2008).
Id. at 563.
1489 Id. at 564.
1490 Id. at 563.
1491 Id.
1492 Id.
1493 Id.
Id.
Id.
1496 Id.
1497 Id.
1498 Id.
1499 Id. (citing IOWA R. CRIM. P. 2.23(1),
2.24(3)(b)).
1487
1494
1488
1495
109
~ Sentencing~
fifty days after the plea, the maximum
time a defendant has to file the motion
in arrest of judgment is forty-five days
from the plea.‖1500 If the sentencing
date ―is less than fifty days after the
plea, the maximum time a defendant has
to file the motion is no later than five
days before the sentencing.‖1501 The
court further stated that Smith‘s original
voluntary waiver continues to apply at
his resentencing and the district court
was in error when it considered the
motion in arrest of judgment.1502 When
a defendant claims a plea was not made
knowingly and voluntarily but the
defendant failed to file a motion in
arrest of judgment, the proper remedy is
to raise the issue on postconviction
relief. 1503 The court remanded the
matter for resentencing and noted that
Smith could bring an action for
postconviction relief challenging his
guilty plea.1504
Id.
Id. (citing Niles v. Iowa Dist. Ct., 683 N.W.2d
539, 541 (Iowa 2004)).
1502 Id.
1503 Id.
1504 Id. at 565.
1500
1501
110
XI. PROFESSIONAL CONDUCT
shall be deemed a certificate that:
counsel has read the motion,
pleading, or other paper; that to
the best of counsel‘s knowledge,
information, and belief, formed
after reasonable inquiry, it is well
grounded in fact and is warranted
by existing law or a good faith
argument for the extension,
modification, or reversal of
existing law; and that it is not
interposed for any improper
purpose, such as to harass or
cause an unnecessary delay or
needless increase in the cost of
litigation. . . . If a motion,
pleading, or other paper is signed
in violation of this rule, the court,
upon motion or upon its own
initiative, shall impose upon the
person who signed it, a
represented party, or both an
appropriate sanction, which may
include an order to pay the other
party or parties the amount of the
reasonable expenses incurred
because of the filing of the
motion, pleading, or other paper,
including a reasonable attorney
fee.
1. Barnhill v. Polk County Ct., 765
N.W.2d 267 (Iowa 2009)
The issue in Barnhill was whether
the district court abused its discretion
when it imposed a $25,000 sanction
after determining that Barnhill violated
Iowa Code section 619.19 (2001) and
Iowa R. Civ. P. 1.413. Writing for the
majority, Justice Streit found that (1)
Barnhill
violated
these
ethical
provisions, and (2) the $25,000 fine was
appropriate.
In 2001, Barnhill filed a seven-count
class-action lawsuit against Tamko, a
roof shingle manufacturer and its
president
and
CEO,
David
1505
Humphreys.
The district court
dismissed six of the seven counts.1506
Humphreys moved for sanctions against
Barnhill for violating Iowa Code section
619.19 (2001) and Iowa R. Civ. P.
1.413(1).1507 The district court found
that Barnhill violated 1.413(1) on each of
her claims, and the court fined her
$25,000.1508
Rule 1.413 and Iowa Code section
619.19 (2001) are identical in substance
and provide:
The court explained that that this
rule ―creates three duties known as the
reading,
inquiry,
and
purpose
1509
elements.‖
Each
duty
is
independent, so a violation of one is a
violation of the rule.1510 The attorney‘s
conduct is evaluated under an objective
Counsel‘s signature to every
motion, pleading, or other paper
1505
Barnhill v. Polk County Ct., 765 N.W.2d 267,
270 (Iowa 2009).
1506 Id. at 271.
1507 Id.
1508 Id.
1509
1510
111
Id. at 272.
Id.
~ Professional Conduct ~
standard.1511 The court noted that Iowa
courts consider several factors when
analyzing whether 1.413 has been
violated, including:
(10) The extent to which counsel
had to rely upon his or her client
for facts underlying the pleading,
motion, or other paper; and
(1) The amount of time available
to the signer to investigate the
facts and research and analyze
the relevant legal issues;
(11) The resources available to
devote to the inquiries.1512
Applying these factors, the court
concluded that the district court acted
within its discretion when it concluded
that Barnhill violated 1.413.1513
(2) The complexity of the factual
and legal issues in question;
(3) The extent to which presigning
investigation
was
feasible;
The court then turned to the issue of
whether the $25,000 sanction was
appropriate. The court stated that the
aims of rule 1.413 sanctions are
compensation and deterrence.1514 The
court set forth the factors a district court
is to consider when levying a sanction
under 1.413.1515 The district court is to
consider the four factors articulated by
the Fourth Circuit, which are:
(4) The extent to which pertinent
facts were in the possession of the
opponent or third parties or
otherwise not readily available to
the signer;
(5) The clarity or ambiguity of
existing law;
(6) The plausibility of the legal
positions asserted;
(1) The reasonableness of the
opposing party‘s attorney‘s fees;
(2) The minimum to deter;
(7) The knowledge of the signer;
(3) The ability to pay; and
(8) Whether the signer is an
attorney or a pro se litigant;
(4) Factors related to the severity
of the . . . violation.1516
(9) The extent to which counsel
relied upon his or her client for
the facts underlying the pleading,
motion, or other paper;
With these factors in mind, the
district court may also consider the
Id. at 273.
Id. at 273–76.
1514 Id. at 277.
1515 Id. at 276–77.
1516 Id. at 277 (internal quotations omitted).
1512
1513
1511
Id.
112
factors announced
including:
by
the
ABA,
(9) The impact of the sanction on
the offender, including the
offender‘s ability to pay a
monetary sanction;
(1) The good faith or bad faith of
the offender;
(10) The impact of the sanction
on the offended party, including
the offended person‘s need for
compensation;
(2) The degree of willfulness,
vindictiveness, negligence or
frivolousness involved in the
offense;
(11) The relative magnitude of
sanction necessary to achieve the
goal or goals of the sanction;
(3) The knowledge, experience
and expertise of the offender;
(4) Any prior history of
sanctionable conduct on the part
of the offender;
(12) Burdens on the court system
attributable to the misconduct,
including consumption of judicial
time and incurrence of juror fees
and other court costs;
(5) The reasonableness and
necessity of the out-of-pocket
expenses
incurred
by
the
offended person as the result of
the misconduct;
(13) The degree to which the
offended person attempted to
mitigate any prejudice suffered
by him or her;
(6) The nature and extent of
prejudice, apart from out-ofpocket expenses, suffered by the
offended person as a result of the
misconduct;
(14) The degree to which the
offended person‘s own behavior
caused the expenses for which
recovery is sought;
(7) The relative culpability of
client and counsel, and the
impact on their privileged
relationship of an inquiry into
that area;
(15) The extent to which the
offender persisted in advancing a
position while on notice that the
position was not well grounded in
fact or warranted by existing law
or a good faith argument for the
extension,
modification
or
reversal of existing law; and
(8) The risk of chilling the
specific
type
of
litigation
involved;
113
(16)
The
time
of,
and
circumstances surrounding, any
voluntary withdrawal of a
pleading, motion or other
paper.1517
practice law for eighteen months.1523
The Iowa Supreme Court found that
Barry‘s conduct violated numerous
provisions and suspended his license for
one year.1524
Applying these factors to the case at
bar, the court found that the district
court did not abuse its discretion in
imposing the $25,000 sanction.1518 The
court noted that the district court
appropriately
balanced
the
compensatory and deterrent purposes of
the rule.1519 The court also said that the
―legal and factual issues involved and
the sheer number of pleadings, motions,
discovery, and hearings‖ warranted the
$25,000 sanction.1520
Barry‘s position as a county attorney
became full-time in January 2003.1525
Barry instituted a practice of allowing
donations to the Cass County Sheriff‘s
office in lieu of community service or in
exchange for the release of seized
property.1526
The Code specifically
prohibited donation to a governmental
unit for part of a defendant‘s community
service obligation.1527 Seized property
may be released if forfeiture is
unnecessary; however the donations
were to take place of the seized
property.1528 Thus, under the statute,
the donation was to be delivered to the
attorney general and not retained by the
sheriff.1529 The Attorney General never
authorized the donations to be retained
by the Sheriff‘s Office.1530
Barry also
engaged in a probation supervision
program, in which he, as the county
attorney, was the probation officer and
would allow donations to be made in
lieu of probation violations being
brought before the court.1531 Barry also
directed probationary fees to be paid to
the county attorney in violation of
2. Iowa Supreme Court Attorney
Disciplinary Board v. Barry, 762
N.W.2d 129 (Iowa 2009)
This disciplinary action arose from
Barry‘s conduct as a Cass County
Attorney.1521 The Iowa Supreme Court
Attorney Disciplinary Board (Board)
filed a complaint against Barry with the
Grievance Commission alleging various
violations of the Code of Professional
Responsibility.1522
The Commission
found that Barry‘s conduct violated
numerous provisions and recommended
a suspension of Barry‘s license to
Id.
Id.
1525 Id. at 132.
1526 Id. at 132–34.
1527 Id. at 132–33.
1528 Id. at 133.
1529 Id.
1530 Id.
1531 Id. at 134–36.
1523
1524
Id. at 276–77.
Id. at 277–78.
1519 Id.
1520 Id. at 278.
1521 Iowa Sup. Ct. Atty. Disc. Bd. v. Barry, 762
N.W.2d 129,131 (Iowa 2009).
1522 Id.
1517
1518
114
statute.1532 Barry seized ammunition
and weapons delivered to his home for
his personal use.1533 Barry admitted that
he knew that all seized firearms were
required by law to be disposed of by the
Division of Criminal Investigation.1534
Barry made plea deals with defendants
to make donations to the Sheriff‘s Office
for leniency on sentences or return of
property.1535
approximately 50 informally.1543 As a
probation officer he had a duty to revoke
probation for violations.1544 He never
withdrew as counsel for the State in any
of these matters.1545 Barry had the
Sheriff‘s Office purchase a Sako rifle
with the drug fund, but the Board was
unable to establish that the rifle was for
Barry‘s personal use.1546
Barry admitted to possession of
weapons and ammunition that had been
seized or forfeited, and that it was illegal
under state law to possess such
items.1547 Barry returned ten weapons
to the Sheriff in February 2004 when
the media began investigating.1548 When
Barry became full-time county attorney
he requested a vehicle from the
county.1549
Barry and the Sheriff
purchased a Chevy Tahoe online for
$12,726.1550 The drug fund was to fund
$9,000 toward the purchase.1551 Barry
never actually used the Tahoe.1552
The funds donated to the Sheriff‘s
Office were deposited in the Sheriff‘s
drug fund.1536 The Board of Supervisors
authorized the fund to make drug buys
or to pay informants.1537 Under Barry‘s
system the fund grew substantially.1538
Barry reviewed the ledgers in January
2004 which showed $13,000.1539 Barry
admitted that the county treasurer
should have been auditing the fund and
that he did not direct the Sheriff‘s Office
to send the fund to the treasurer until a
story broke in the newspaper regarding
it.1540 The Sheriff used the fund to pay
for Barry‘s cell phone and was planning
to purchase a vehicle for Barry.1541 Barry
admitted that he knew the fund was not
in compliance with state law.1542
The court found that Barry violated
the following provisions of the Iowa
Code of Professional Responsibility:
(1)
DR
1-102(5)-conduct
prejudicial to the administration
of justice.1553 Barry‘s conduct of
Barry acted as probation officer for
at least 100 cases formally and
Id. at 133.
Id. at 136.
1534 Id.
1535 Id. at 133–35.
1536 Id. at 135.
1537 Id.
1538 Id.
1539 Id.
1540 Id.
1541 Id.
1542 Id. at 136.
Id.
Id.
1545 Id.
1546 Id.
1547 Id.
1548 Id.
1549 Id.
1550 Id. at 137.
1551 Id.
1552 Id.
1553 Id.
1532
1543
1533
1544
115
making illegal plea agreements
gave the public the impression
that justice was for sale in Cass
County.1554 Barry‘s conduct as
probation officer and county
attorney violated this rule by
allowing violators to make
contributions to avoid revocation
of probation.1555 Barry prejudiced
the administration of justice by
disregarding
the
law
and
hampered the efficient and
proper operation of the courts.1556
these items for his personal
use.1562 He further admitted that
he knew the state law required
the state treasurer to audit the
sheriff‘s drug fund and that his
conduct of reviewing the ledgers
evidences his knowing violation
of the law.1563
The court did not find a violation
regarding illegal plea agreements that
required contributions to the Sheriff‘s
drug fund.1564 While Barry should have
known the plea agreements were illegal,
that alone does not satisfy the
knowledge requirement of DR 7102(A)(8).1565 No judicial officer ever
indicated to Barry that his conduct was
illegal.1566
(2) DR 1-102(6)-conduct that
adversely reflects on the fitness to
practice law.1557 Barry‘s conduct
resulted in a diminishment of
public confidence in the law.1558
Barry engaged in questionable
practices that permeated all
aspects of his tenure as full-time
county attorney.1559
Barry‘s prior disciplinary history was
an aggravating factor when considering
his sanction.1567 Barry maintained that
his conduct was commonplace and done
in the open with no objection.1568 The
court held that the fact unethical
conduct is ―commonplace‖ does not
mitigate the severity of the violation.1569
The court noted that a sanction is meant
to protect the public and the integrity of
the profession in the eyes of the
public.1570 Barry‘s actions violated the
rules and brought the whole system of
(3)
DR
7-102(A)(8)-in
representation
of
clientknowingly engage in illegal
conduct or conduct contrary to a
discipline rule.1560
Barry
admitted he knew the forfeited
and seized firearms were to be
sent to the state department for
disposal.1561
He knowingly
violated the statute by possessing
Id.
Id.
1564 Id. at 140.
1565 Id.
1566 Id.
1567 Id.
1568 Id. at 140–41.
1569 Id. at 141.
1570 Id.
1562
Id.
1555 Id.
1556 Id. at 138.
1557 Id.
1558 Id.
1559 Id.
1560 Id.
1561 Id. at 139.
1554
1563
116
criminal justice into disrepute.1571 The
public should not view the court system
as a mere business deal and those with
money should not receive a sweeter
deal.1572 The court suspended Barry‘s
license to practice law for one year.1573
denied responsibility.1579
Flooring
Gallery refused payment to Miller on an
unrelated job.1580 The Flooring Gallery
made a settlement demand for $4,600
based on Miller‘s one year warranty of
his work.1581 Miller denied the existence
of the warranty and told Buchanan that
the document evidencing the written
warranty was a forgery.1582
Miller
threatened to file criminal charges
against the Flooring Gallery owners.1583
Buchanan, on behalf of Miller, made an
offer to settle the dispute for the sum of
$1,000 and a reciprocal release of all
claims including affirmation that all
evidence of the warranty forgery would
be destroyed and that Miller would not
cooperate
with
any
criminal
investigation against the Flooring
Gallery owners.1584
Disciplinary Board v. Buchanan, 757
N.W.2d 251 (Iowa 2008)
The Iowa Supreme Court Attorney
Disciplinary Board charged Todd
Buchanan with violations of the Iowa
Code of Professional Responsibility for
Lawyers based on Buchanan‘s offer to
settle a client‘s dispute by destroying
evidence of a forged document and
promising his client‘s noncooperation in
a criminal investigation.1574 The Iowa
Supreme Court Grievance Commission
found that Buchanan engaged in
prejudicial conduct in violation of DR 1102(A)(5) and issued a private
admonition.1575 The Board appealed the
disposition.1576
The Flooring Gallery‘s counsel
forwarded the letter to the Board.1585
The Board alleged violations of:
(1) DR 1-102(A)(5)—a lawyer
shall not engage in conduct that
is
prejudicial
to
the
administration of justice);
Buchanan was retained by Scott
Miller in a dispute over a shower
installation project.1577 Flooring Gallery
contracted with Miller to install shower
tile.1578 Problems developed and Miller
(2) DR 1-102(A)(6)—a lawyer
shall not engage in conduct that
adversely reflects on the
fitness to practice law);
Id.
Id.
1573 Id.
1574 Iowa Sup. Ct. Atty. Disc. Bd. v. Buchanan,
757 N.W.2d 251, 253 (Iowa 2008).
1575 Id.
1576 Id.
1577 Id.
1578 Id.
1571
1572
Id.
Id.
1581 Id.
1582 Id.
1583 Id.
1584 Id. at 253–54.
1585 Id. at 254.
1579
1580
117
(3)
DR
7-102(A)(1)—in
representation of client, a lawyer
shall not take various actions that
would serve merely to harass or
maliciously injure another;
law embraces
competence.1590
more
than
legal
The court found that Buchanan
clearly implied in his letter to the
Flooring Gallery that Miller‘s signature
on the warranty was a forgery and
agreed to participate in the destruction
of the evidence and withholding of
evidence.1591 The fact that Buchanan‘s
offer to destroy and withhold evidence
was not acted upon did not lessen the
wrongfulness of the attempt.1592 The
public expects attorneys to uphold the
law and aid in the administration of
justice.1593 The court agreed with the
commission that Buchanan violated DR
1-102(A)(5) and his actions reflected
adversely on his fitness to practice law in
violation of DR 1-102(A)(6).1594 The
court also found that the private
admonition was an insufficient sanction,
but Buchanan‘s conduct did not warrant
a suspension or revocation of his
license.1595 Buchanan did not have any
prior disciplinary violations.1596 The
court decided to publicly reprimand
Buchanan and taxed the costs of the
proceeding against him.1597
(4)
DR
7-102(A)(8)—in
representation of client, a lawyer
shall not knowingly engage in
other illegal conduct or conduct
contrary to a disciplinary rule;
and
(5) DR 7-105(A)—a lawyer shall
not present, participate in
presenting, or threaten to present
criminal charges solely to obtain
an advantage in a civil matter.1586
The Commission concluded that
Buchanan violated DR 1-102(A)(5) and
issued a private admonition.1587 The
Board claimed that Buchanan‘s offer to
destroy evidence in a purported forgery
and withhold evidence in a criminal
prosecution was conduct prejudicial to
the administration of justice and
adversely reflected on Buchanan‘s
fitness to practice law in violation of DR
1-102(A)(5), (6).1588 The court agreed
with the Commission and stated that DR
1-102(A)(5) has been held to apply to
conduct that hampered operation of the
courts.1589 Moreover, fitness to practice
Disciplinary Board v. Casey, 761
N.W.2d 53 (Iowa 2009)
Id.
Id.
1592 Id.
1593 Id. at 256.
1594 Id.
1595 Id. at 256–57.
1596 Id. at 257.
1597 Id.
1590
1591
Id.
Id.
1588 Id.
1589 Id. at 255.
1586
1587
118
The Board alleged that Casey
violated ethical rules by neglecting client
maters, failing to timely disburse funds,
misrepresenting the status of an estate
to the court, prematurely taking probate
fees, and failing to cooperate with the
Board.1598 The Grievance Commission
found that Casey violated the Iowa Code
of Professional Responsibility and Iowa
Rules of Professional Conduct and
recommended his license be suspended
for two months.1599
and he did not pay court costs until
2006.1608
The
second
client
was
the
Schockemoehl estate, in which Casey
was retained by the co-executors in
March 2004.1609
Casey opened the
estate, but failed to proceed with the
administration in a timely matter.1610
The district court certified the matter
delinquent.1611 In June 2006, the court
approved the final report.1612
In
September 2006, the co-executors
sought to reopen the estate because real
property had not been properly
transferred.1613 The estate had not been
closed because Casey had not complied
with payment of a bequest.1614
The court noted that Casey had been
an attorney for thirty-four years and that
the disciplinary action stemmed from
the representation of two clients.1600
First, the Trenkamp personal injury
action was filed in May of 2003.1601
Casey failed to do anything to advance
the suit after it was filed.1602 He failed to
respond to defense requests or stay in
contact with his client.1603 He settled
the case on the courthouse steps the day
of trial for $20,000.1604 Casey received
the settlement check in September
2004.1605 He did not have the plaintiff‘s
case dismissed until December 2004.1606
Casey failed to pay out the proceeds
until June 2005.1607 He did not pay
Wellmark for their lien until April 2007,
The Board was notified of the
delinquency under the probate rules and
sent several requests to Casey regarding
the matter.1615
Casey failed to
1616
respond.
The Board also discovered
that
Casey
misrepresented
the
decedent‘s marital status on paperwork
with the state and the court.1617
The
Board determined that Casey took his
entire fee for the probate matter and
placed it in his operating account before
the final report was filed.1618
Iowa Sup. Ct. Atty. Disc. Bd. v. Casey, 761
N.W.2d 53, 55 (Iowa 2009).
1599 Id.
1600 Id.
1601 Id. at 55–56.
1602 Id. at 56.
1603 Id.
1604 Id.
1605 Id.
1606 Id.
1607 Id.
Id.
Id.
1610 Id.
1611 Id.
1612 Id.
1613 Id.
1614 Id.
1615 Id. at 56–57.
1616 Id. at 57.
1617 Id.
1618 Id.
1598
1608
1609
119
The Board filed a complaint
regarding each of these clients.1619 With
regard to the Trenkamp matter, the
Board alleged violations of: DR 6101(A)(2) and (3), DR 7-101(A), and DR
1-102(A)(1), (4), (5), and (6).1620 To the
extent Casey‘s conduct occurred after
the adoption of the Iowa Rules of
Professional Conduct on July 1, 2005,
the Board contended Casey violated
Rules
32:1.15(d)
and
32:8.1,
32:8.4(a),(c) and (d) and 32:1.4.1621
With regards to the Schockemoehl
estate, the Board alleged Casey‘s actions
violated DR 6-101(A), DR 7-102(A)(3),
(5), (7), and (8), and DR 1-102(A)(1),
(3), (4), (5), and (6).1622 Again to the
extent the conduct occurred after July 1,
2005, the Board alleged violations of the
Rules 32:1.1, 32:1.2(d), 32:1.3, 32:1.5(a),
32:1.15(c), 32:3.3(a)(1) and 32:8.4(a),
(c), and (d).1623
her case.1627 He did not offer any
explanation
for
the
untimely
distribution of settlement funds.1628
Regarding the Schockemoehl estate,
Casey acknowledged he made mistakes
and attributed them to the co-executors
advising him that no property was
owned by the surviving spouse and
decedent jointly.1629 The Commission
concluded that the Board proved Casey
neglected
the
Trenkamp
and
Schockemoehl matters in violation of
DR 6-101(A)(2) and (3) and rules 32:1.3
and 32:1.15(d).1630 The Commission
found that the misrepresentations in the
estate matter were a violation of DR 1102(A)(4) and rules 32:3.3(a)(1) and
32:8.4(c).1631
The
Commission
determined that the premature taking of
the probate fee was a violation of Iowa
Court Rule 7.2(4) and Casey‘s failure to
respond to the Board violated rules
32:8.1(b) and 32:8.4(d).1632
The
Commission concluded that a twomonth suspension was warranted of
Casey‘s license.1633
At the Grievance Commission, Casey
did not file a timely answer and also
failed to
respond
to
discovery
requests.1624 Casey was not allowed to
offer exhibits or call witnesses on his
behalf.1625 He was allowed to testify,
and, with the exception of fee agreement
issues with Trenkamp, he did not
dispute the evidence.1626
Casey
contended that Trenkamp was a difficult
client and unrealistic about the value of
The court acknowledged that the
ethical rules do not define neglect but
that it has been interpreted to involve
indifference and consistent failure to
perform obligations assumed.1634 ―It is a
form of professional incompetence that
often involves procrastination, such as a
Id.
Id.
1621 Id.
1622 Id. at 58.
1623 Id.
1624 Id.
1625 Id.
1626 Id.
Id.
Id.
1629 Id.
1630 Id. at 59.
1631 Id.
1632 Id.
1633 Id.
1634 Id.
1619
1627
1620
1628
120
lawyer doing little or nothing to advance
the interests of a client after agreeing to
represent the client.‖1635
The court
found that the evidence in this case
supports the Commission‘s finding that
Casey
neglected
the
Trenkamp
1636
matter.
The court found it significant
and troubling that Casey neglected to
disburse the settlement proceeds.1637
The court found this conduct violated
DR 6-101(A)(3) and DR 1-102(A)(5) and
(6).1638 Additionally, the court stated
that it is well known that an attorney has
an obligation to cooperate with
disciplinary authorities and that failure
to respond to an investigation is a
separate act of misconduct.1639 Casey‘s
untimely responses were a violation of
rules 32:8.1 and 32:8.4(d).1640 The court
found that upon their review the Board
failed to establish that Casey violated
DR 1-102(A)(4), DR 6-101(A)(2), DR 7101(A) and rule 32:8.4(c) in the
Trenkamp matter.1641
misrepresenting the marital status of the
decedent.1643 The court explained that
Casey had an obligation to truthfully
prepare documents filed with the court
and to provide the surviving spouse with
his required notice regarding taking
under the will.1644 He further had an
ethical obligation not to assist his clients
with fraudulent conduct.1645 Iowa Court
Rule 7.2(4) restricts an attorney in a
probate matter from taking the second
half of his court-approved fees until the
final report is filed.1646 The court agreed
that the Board proved that Casey‘s
conduct in taking his entire fee prior to
filing the final report violated rule
32:1.5(a) and the failure to deposit in his
trust account violated rule 32:1.15(c).1647
The court found that this conduct
reflects adversely on Casey‘s fitness to
practice law in violation of DR 1102(A)(6).1648 Furthermore, the conduct
was
also
prejudicial
to
the
administration of justice in violation of
DR 1-102(A)(5) and rule 32:8.4(d).1649
The court held that Casey‘s
delinquent
handling
of
the
Schockemoehl estate supports of finding
of neglect in violation of DR 6-101(A)(3)
and rule 32:1.3.1642 The Board also
established that Casey violated DR 7102(A)(3), (5), (7) and (8) and DR 1102(A)(3) and (4) when he filed papers
with the court and department
The court concluded that Casey‘s
failure to respond to the Board in the
estate matter was a violation of rules
32:8.1 and 32:8.4(d).1650 However, the
Board did not prove that Casey violated
rule 32:1.1 relating to competence and
Id.
Id.
1637 Id.
1638 Id.
1639 Id. at 60.
1640 Id.
1641 Id.
1642 Id.
Id.
Id.
1645 Id.
1646 Id. at 61.
1647 Id.
1648 Id.
1649 Id.
1650 Id.
1635
1643
1636
1644
121
preparedness in his representation of
the estate.1651
complex and protracted.1660 AlbertoPortillo gave $5,000 to Piazza, but
Piazza did not deposit it in his client
trust account.1661 The Iowa Supreme
Court determined that the $ 5,000
payment constituted an advance fee was
required to have been deposited by
Piazza into his client trust account.1662
Neglect that is compounded by other
misconduct may require a harsh
sanction.1652 Trenkamp suffered harm
by Casey‘s delinquent handling of the
settlement funds.1653 Misrepresentation
to a court is a serious breach of
professional ethics.1654
Premature
appropriation of funds is a serious
violation; but it alone does not require
revocation.1655 Prior discipline is an
aggravating factor.1656
Casey was
privately admonished for neglecting a
client‘s matter previously.1657 The court
also noted that the goals of the
discipline: deterrence, protection of the
public, maintenance of the reputation of
the bar and the actor‘s fitness to practice
law.1658 The court held that because of
the misrepresentations and premature
taking of probate fees a three month
suspension was warranted.1659
an advance fee, by definition, constitutes
a fee paid in advance of services to be
rendered and must be deposited into a
client trust account.1663 At the time
Piazza received the $5,000 payment, he
had not earned the fee.1664 A flat fee is
an advance fee that is earned when the
legal services are completed and
therefore must be deposited in a client
trust account and an accounting must be
provided to the client prior to
withdrawal of the fees from the trust
account.1665
The court reiterated,
―[s]uch a rule not only protects lawyers
from potentially unethical conduct, but
it also protects the client‘s interests.‖1666
However, attorneys may set in a fee
agreement ―reasonable milestones when
their interest in portions of the fee
becomes fixed, such that they may . . .
withdraw a corresponding amount of
Disciplinary Board v. Piazza, 756
N.W.2d 690 (2008)
Piazza agreed to defend AlbertoPortillo in state or federal court for a set
amount of money regardless of whether
the work was short and simple or
Iowa Sup. Ct. Atty. Disc. Bd. v. Piazza, 756
N.W.2d 690, 692–93 (2008).
1661 Id. at 693.
1662 Id. at 696.
1663 Id.
1664 Id. at 697.
1665 Id. at 698.
1666 Id. (citing Iowa Sup. Ct. Bd. of Prof‘l Ethics &
Conduct v. Apland, 577 N.W.2d 50, 59 (Iowa
1998)).
1660
Id.
1652 Id.
1653 Id.
1654 Id.
1655 Id. at 62.
1656 Id.
1657 Id.
1658 Id.
1659 Id.
1651
122
fees from the trust account.‖1667
However, there was no evidence of any
such agreement by Piazza.1668 The court
concluded that Piazza violated DR 9102(A) (failing to put client funds in
trust account) and DR 9-102(B)(3)
(failing to render an accounting to
client).1669
present.1674 Also, the court noted that
Piazza had no prior ethical infractions
and is currently conforming to his
ethical obligations by entering into
written fee agreements and sending out
contemporaneous accountings.1675 The
court held that public reprimand was
the appropriate sanction.1676
The court also ruled that Piazza
deposited unearned fees in his personal
account in violation of DR 1- 102(A)(4),
(5) and (6), which provides that ―a
lawyer shall not . . . engage in conduct
involving dishonesty, fraud, deceit or
misrepresentation . . . ; engage in
conduct that is prejudicial to the
administration of justice; [or] engage in
any other conduct that adversely reflects
on the fitness to practice law.‖1670 The
court has previously held that failure to
place advance fee payments in a client
trust account is not permissible.1671
Disciplinary Board v. Wright, 758
N.W.2d 227 (Iowa 2008)
The Iowa Supreme Court Attorney
Disciplinary Board charged Wright with
violations of the Iowa Code of
Professional Responsibility based on his
actions during an appeal.1677
The
Grievance Commission found that
Wright‘s actions were prejudicial to the
administration of justice (DR 1102(A)(5) and DR 1-102(A)(1)) and
recommended the imposition of a public
reprimand.1678 The charges arose from
Wright‘s representation of Samantha
Brown in a paternity and child custody
dispute.1679 Brown agreed to pay Wright
based on an hourly contract and a
minimum fee of $3,000 at $100 a
month.1680 Brown‘s claim for custody
was denied and Wright filed a notice of
appeal on March 26, 2004.1681 Wright
informed Brown that in order to proceed
The court then determined that the
appropriate sanction for Piazza was a
public reprimand.1672 In the past, the
sanction for similar violations ranged
from a public reprimand to suspension
or revocation.1673
But in the cases
warranting more serious discipline,
additional
violations
or
other
aggravating
circumstances
were
Id.
Id.
1669 Id.
1670 Id. at 698 (quoting Iowa Code of Prof‘l
Responsibility DR 1-102(A)(4), (5), and (6)).
1671 Id. (citing Iowa Sup. Ct. Atty. Disc. Bd. v.
Kadenge, 706 N.W.2d 403, 408 (Iowa 2005)).
1672 Id. at 699.
1673 Id.
Id.
Id. at 700.
1676 Id.
1677 Iowa Sup. Ct. Atty. Disc. Bd. v. Wright, 758
N.W.2d 227, 228 (Iowa 2008).
1678 Id.
1679 Id.
1680 Id.
1681 Id.
1667
1674
1668
1675
123
with the appeal the cost of the transcript
must be paid by Brown.1682 Brown
attempted to raise the funds necessary
for the transcript.1683 Wright hired an
independent paralegal to prepare the
combined certificate and certified that
he would pay for the transcript in
accordance with the requirements of
Iowa Rule of Appellate Procedure
6.10(2)(b).1684 At the time he executed
the certificate, Wright had no intention
of completing the appeal if Brown failed
to advance the cost of the transcript.1685
There were errors in the certificate—
including an order to purchase the
transcript from the wrong court
reporter.1686
Wright contacted Brown and Brown
informed him she still did not have the
money for the transcript.1691 Wright did
not cure the default.1692 On November
5, 2004, the clerk of court dismissed
Brown‘s appeal.1693
Wright paid the docketing fee for the
appeal on May 3, 2004.1687 The court
reporter did not prepare a transcript
because the combined certificate was
not mailed to her.1688 The deadline for
filing Brown‘s proof brief and appendix
passed and the clerk notified Wright of
his delinquency.1689
On October 5,
2004, the clerk informed Wright that
the appeal would be dismissed for want
of prosecution if the default was not
cured within 15 days and a copy of the
dismissal order would be sent to the
Iowa Supreme Court Board of
Professional Ethics and Conduct.1690
(4) DR 1-102(A)(1) violation of a
disciplinary rule;
The Board filed a complaint charging
Wright with violations of:
(1) DR 7-101(A) failure to seek the
lawful objectives of a client;
(2) DR 6-101(A) neglecting a
client‘s legal matter;
(3)
DR
2-110
improper
withdrawal from employment;
(5) DR 1-102(A)(4) engaging in
conduct involving dishonesty,
fraud,
deceit
or
misrepresentation;
(6) DR 1-102(A)(5) conduct
prejudicial to the administration
of justice;
(7) DR 1-102(A)(6) conduct
adversely reflecting on the fitness
to practice law.1694
The Commission concluded that
Wright violated DR 1-102(A)(5) and DR
1-102(A)(1) when he filed the combined
Id.
1683 Id.
1684 Id. at 229.
1685 Id.
1686 Id.
1687 Id.
1688 Id.
1689 Id.
1690 Id.
1682
Id.
Id.
1693 Id.
1694 Id. at 229–30.
1691
1692
124
certificate with the knowledge he would
not pursue the appeal if Brown failed to
raise the funds for the transcript.1695
Wright appealed, arguing that he did not
violate any disciplinary rules.1696
Wright‘s conduct occurred before July 1,
2005 and was governed by the Iowa
Code of Professional Responsibility for
Lawyers.1697 The court has previously
imposed discipline on lawyers failing to
prevent administrative dismissals of
appeals.1698 Wright argued that the
dismissal of Brown‘s appeal was not
neglect, but a deliberate decision.1699
Wright was unwilling and not
contractually obligated to advance the
cost of the transcript.1700 The court held
that the Board failed to prove Wright
neglected Brown‘s interests.1701
The
court noted that Wright protected
Brown‘s interest by commencing and
maintaining the appeal notwithstanding
her failure to pay his fees.1702 However,
the court found that Wright was not
relieved of his responsibility for the
matter even if Brown did not wish to
proceed with her appeal.1703 The court
was not persuaded that Wright had
intended to dismiss the appeal before
the administrative dismissal.1704 The
court stated that Wright knew by
October 20, 2004 that Brown was
unable to pay for the transcript and yet
he failed to take any action to dismiss
the appeal.1705
The
court
concluded
that
Wright‘s actions were prejudicial to the
administration of justice in violation of
DR 1-102(A)(5) and also DR 1102(A)(1).1706 The court proceeded to
review the sanction imposed by the
Commission.1707 The court noted that
Wright had been publicly reprimanded
in 2001 and admonished on two prior
occasions and had been practicing since
1981.1708 Prior violations of disciplinary
rules are an aggravating factor used to
determine the appropriate sanction.1709
Therefore, a public reprimand was
appropriate.1710 The court did find that
the Commission had taxed costs to
Wright in excess of the allowed
transcript costs and reduced his cost. 1711
Disciplinary Board v. Van Beek, 757
N.W.2d 639 (Iowa 2008)
In Van Beek, the Iowa Supreme
Court examined whether Van Beek
should be disciplined for violating
several provisions of the Code of
Professional Responsibility. The court
also addressed the level of discipline
that should apply, if discipline was
appropriate. The court concluded that
Id. at 230.
Id.
1697 Id.
1698 Id.
1699 Id.
1700 Id.
1701 Id.
1702 Id.
1703 Id. at 230–31.
1704 Id. at 231.
1695
1696
Id.
Id.
1707 Id.
1708 Id.
1709 Id.
1710 Id.
1711 Id. at 231–32.
1705
1706
125
Van Beek should be disciplined and
should be suspended from the practice
of law in Iowa indefinitely, and she shall
not have the possibility of reinstatement
for two years.1712
name of the elderly testator.1717
However, the Commission concluded
that the Board proved the remaining
allegations.1718
The Commission
suspended Van Beek for two years and
conditioned her reinstatement upon a
successful mental evaluation.1719
Van Beek was an alcoholic and
suffered from severe depression.1713 She
had twice before been publicly
reprimanded for unethical conduct.1714
The charged Van Beek in six counts of
multiple professional responsibility
violations.1715
The charges included
―alteration of a will by substituting a
page of the will with another page and
then presenting the will to the court
without
disclosing
her
actions,‖
completing ―the signature of an elderly
testator outside the presence of the
testator and the witnesses to the will,‖
signing a will for an executor but
claiming that the signature was
authentic, taking attorney fees without
authorization,
mingling
unearned
attorney fees with her personal account,
―signing a client‘s name to a tax form,‖
and filing an appeal without the
permission of her client.1716
The supreme court agreed with the
findings of the Commission.1720
In
determining the appropriate level of
discipline, the court said that it
considers ―the nature of the alleged
violations, the need for deterrence, the
protection of the public, maintenance of
the reputation of the [bar] as a whole,
and the respondent‘s fitness to continue
to practice law.‖1721 The court noted that
Van
Beek‘s
conduct
involved
―dishonesty,
deceit,
and
1722
misrepresentation.‖
The court also
found that Van Beek was guilty of
neglect and collecting fees without
authorization.1723
After stating that precedent supports
a three-year suspension, the court went
on to consider the aggravating and
mitigating circumstances of the case.1724
Among the aggravating circumstances
were Van Beek‘s two prior public
reprimands and harm to Van Beek‘s
clients.1725 The court then considered
The Grievance Commission of the
Supreme Court of Iowa found that the
Board did not establish the ―false
attestation‖ portion of Count I and did
not establish that Van Beek signed the
Id. at 642.
Id.
1719 Id.
1720 Id.
1721 Id. at 642–43.
1722 Id. at 643.
1723 Id.
1724 Id. at 644–45.
1725 Id.
1717
1718
Iowa Sup. Ct. Atty. Disc. Bd. v. Van Beek, 757
N.W.2d 639, 644 (Iowa 2008).
1713 Id. at 641.
1714 Id.
1715 Id. at 641–42.
1716 Id.
1712
126
Van Beek‘s depression and alcoholism as
mitigating factors.1726 Considering these
factors together, the court concluded
that Van Beek should be suspended
from the practice of law indefinitely,
with no possibility of reinstatement for
two years.1727
1726
1727
Id.
Id. at 645.
127
~ Legislative Action ~
XII. LEGISLATIVE ACTION
2009-Sex Offender Registry
material to a minor,1738 (8) Rental or
sale of hard core pornography to a
minor,1739
(9) Admitting minors to
premises where obscene material is
exhibited,1740 (10) Receipt or possession
of child pornography in violation of
Federal law,1741 (11) Material containing
child pornography,1742 (12) Misleading
domain names on the internet,1743 (13)
Misleading words or digital images on
the internet,1744 (14) Failure to file a
factual statement regarding an alien,1745
(15) Transmitting information about a
minor to further criminal sexual
conduct,1746 (16) Any sexual offenses in
another
jurisdiction
or
offenses
prosecuted by federal, military or
foreign jurisdictions,1747 and (17) Any
sex offense under prior laws of any
jurisdiction similar to the offenses listed
above.1748
1. Sexually Violent Predators
Sexually
violent
predator
qualifications are set forth in 42 U.S.C.
section 14071, entitled ―The Jacob
Wetterling Crimes Against Children and
Sexually Violent Offender Registration
Program.‖1728 Offenders classified as
sexually violent predators must register
for life.1729
a.
Tier I Offenses
Individuals convicted of tier I, II, or
III offenses1730 must register for at least
ten years.1731 Tier I offenses include: (1)
Sex abuse in the second degree if
committed by a person under the age of
fourteen and the victim is under the age
of twelve,1732 (2) Sex abuse in the third
degree committed by a person under the
age of fourteen,1733 (3) Sex abuse in the
third
degree,1734
(4)
Indecent
1735
exposure,
(5) Harassment if there is a
determination that the crime was
sexually motivated,1736 (6) Stalking if
there is a determination the crime was
sexually
motivated,1737
(7)
Dissemination or exhibition of obscene
b.
Tier II Offenses
Id. § 692A.102(1)(a)(8)(a).
Id. § 692A.102(1)(a)(8)(b).
1740 Id. § 692A.102(1)(a)(9).
1741 Id. § 692A.102(1)(a)(10) (citing 18 U.S.C. §
2252 (2008)).
1742 Id. § 692A.102(1)(a)(11) (citing 18 U.S.C. §
2252(A)).
1743 Id. § 692A.102(1)(a)(12) (citing 18 U.S.C. §
2252(B)).
1744 Id. § 692A.102(1)(a)(13) (citing 18 U.S.C. §
2252(C)).
1745 Id. § 692A.102(1)(a)(14) (citing 18 U.S.C. §
2424 ).
1746 Id. § 692A.102(1)(a)(15) (citing 18 U.S.C. §
2425).
1747 Id. § 692A.102(1)(a)(16).
1748 Id. § 692A.102(1)(a)(17).
1738
1739
IOWA CODE ANN. § 692A.101(30) (West).
Id. § 692A.106(5).
1730 Id. § 692A.102(1)(a).
1731 Id. § 692A.106(1).
1732 Id. § 692A.102(1)(a)(1).
1733 Id. § 692A.102(1)(a)(2).
1734 Id. § 692A.102(1)(a)(3)–(4).
1735 Id. § 692A.102(1)(a)(5).
1736 Id. § 692A.102(1)(a)(6).
1737 Id. § 692A.102(1)(a)(7).
1728
1729
128
Tier II offenses include: (1)
Detention in a brothel,1749 (2) Lascivious
acts with a child,1750 (3) Solicitation of a
minor to engage in a sex act,1751 (4)
Solicitation of a minor to solicit a person
to engage in a sex act with a child,1752 (5)
Solicitation of a minor to engage in an
illegal sex act-indecent contact with a
child,1753 (6) False imprisonment of a
minor,1754 (7) Assault with intent to
inflict sexual abuse with no injury,1755
(8) Invasion of privacy/nudity,1756 (9)
Felonious stalking if there is a
determination the offense was sexually
motivated,1757 (10) Indecent contact with
a child who is thirteen,1758 (11)
Lascivious acts with a minor,1759 (12)
Sexual exploitation by a counselor or
therapist when the victim is thirteen or
older,1760 (13) Sexual misconduct with
offenders and juveniles when the victim
is thirteen or older,1761 (14) Kidnapping a
non minor if the crime was sexually
motivated,1762 (15) Soliciting a minor to
engage another in prostitution,1763 (16)
Incest committed against an adult
dependant,1764 (17) Incest with a
minor,1765 (18) Sexual exploitation of a
minor by promoting material depicting a
prohibit sex act or by possession
material depicting a prohibited sex
act,1766 (19) Material involving sexual
exploitation of a minor,1767 (20)
Production
of
sexually
explicit
depictions of a minor for import into the
United States,1768 (21) Transportation of
a minor for illegal sexual activity,1769(22)
Coercion and enticement of a minor for
illegal
sexual
activity,1770
(23)
Transportation of minors for illegal
sexual activity,1771 (24) Travel with the
intent to engage in illegal sexual activity
with a minor,1772 (25) Engaging in illicit
sexual conduct in a foreign place,1773
(26) Video voyeurism of a minor,1774 (27)
Any sexual offenses in another
jurisdiction or offenses prosecuted by
federal,
military
or
foreign
1775
jurisdictions,
and (28) Any sex
offense under prior laws of any
Id. § 692A.102(1)(b)(17).
Id. § 692A.102(1)(b)(18).
1767 Id. § 692A.102(1)(b)(19) (citing 18 U.S.C. §
2252(a)).
1768 Id. § 692A.102(1)(b)(20) (citing 18 U.S.C. §
2260)).
1769 Id. § 692A.102(1)(b)(21) (citing 18 U.S.C. §
2421)).
1770 Id. § 692A.102(1)(b)(22) (citing 18 U.S.C. §
2422(a)–(b)).
1771 Id. § 692A.102(1)(b)(23) (citing 18 U.S.C. §
2423(a)).
1772 Id. § 692A.102(1)(b)(24) (citing 18 U.S.C. §
2423)).
1773 Id. § 692A.102(1)(b)(25) (citing 18 U.S.C. §
2423(c)).
1774 Id. § 692A.102(1)(b)(26) (citing 18 U.S.C. §
1801)).
1775 Id. § 692A.102(1)(b)(27).
1765
1766
Id. § 692A.102(1)(b)(1).
Id. § 692A.102(1)(b)(2).
1751 Id. § 692A.102(1)(b)(3).
1752 Id. § 692A.102(1)(b)(4).
1753 Id. § 692A.102(1)(b)(5).
1754 Id. § 692A.102(1)(b)(6).
1755 Id. § 692A.102(1)(b)(7).
1756 Id. § 692A.102(1)(b)(8).
1757 Id. § 692A.102(1)(b)(9).
1758 Id. § 692A.102(1)(b)(10).
1759 Id. § 692A.102(1)(b)(11).
1760 Id. § 692A.102(1)(b)(12).
1761 Id. § 692A.102(1)(b)(13).
1762 Id. § 692A.102(1)(b)(14).
1763 Id. § 692A.102(1)(b)(15).
1764 Id. § 692A.102(1)(b)(16).
1749
1750
129
above.1776
c.
touch,1787 (12) Kidnapping is sexual
abuse if committed during the
offense,1788 (13) Kidnapping of a minor if
there is a determination the offense was
sexually motivated,1789 (14) Assault with
intent to commit sexual abuse resulting
in serious or bodily injury,1790 (15)
Burglary in the first degree if the person
commits sexual abuse,1791 (16) Any other
burglary in the first degree if there is a
motivated,1792 (17) Attempted burglary
in the first degree if there is a
motivated,1793 (18)
Burglary in the
second degree if there is a determination
the offense was sexually motivated,1794
(19) Attempted burglary in the second
degree if there is a determination the
offense was sexually motivated,1795 (20)
Burglary in the third degree if there is a
motivated,1796 (21) Attempted burglary
in the third degree if there is a
motivated,1797
(22)
Criminal
1798
transmission of HIV,
(23) Human
trafficking if sexual abuse or contact is
an element of the offense,1799 (24)
Purchase or sale of a human being if
Tier III Offenses
Tier III offenses include: (1) Murder
if sex abuse is committed during the
offense,1777 (2) Murder if there is a
motivated,1778
(3)
Voluntary
Manslaughter if there is determination
the offense was sexually motivated,1779
(4) Involuntary manslaughter if there is
a determination the offense was sexually
motivated,1780 (5)Attempted Murder if
sexually motivated,1781 (6) Sexual abuse
in the first degree,1782 (7) Sexual abuse in
the second degree-use of a weapon or
aiding and abetting,1783 (8) Sexual abuse
seconddegree-victim is under twelve and
the defendant is fourteen or older,1784
(9) Sexual abuse in the third degree-by
force, person in a position of authority,
or the person is four or more years older
and fourteen or older,1785 (10) Sexual
abuse in the third degree-if the victim is
suffering from a mental defect or is
twelve or thirteen and the defendant is
fourteen or older,1786 (11) Lascivious acts
with a child-fondling or touching or
permitting the victim to fondle or
Id. § 692A.102(1)(c)(11).
Id. § 692A.102(1)(c)(12).
1789 Id. § 692A.102(1)(c)(13).
1790 Id. § 692A.102(1)(c)(14).
1791 Id. § 692A.102(1)(c)(15).
1792 Id. § 692A.102(1)(c)(16).
1793 Id. § 692A.102(1)(c)(17).
1794 Id. § 692A.102(1)(c)(18).
1795 Id. § 692A.102(1)(c)(19).
1796 Id. § 692A.102(1)(c)(20).
1797 Id. § 692A.102(1)(c)(21).
1798 Id. § 692A.102(1)(c)(22).
1799 Id. § 692A.102(1)(c)(23).
1787
1788
Id. § 692A.102(1)(b)(28).
Id. § 692A.102(1)(c)(1).
1778 Id. § 692A.102(1)(c)(2).
1779 Id. § 692A.102(1)(c)(3).
1780 Id. § 692A.102(1)(c)(4).
1781 Id. § 692A.102(1)(c)(5).
1782 Id. § 692A.102(1)(c)(6).
1783 Id. § 692A.102(1)(c)(7).
1784 Id. § 692A.102(1)(c)(8).
1785 Id. § 692A.102(1)(c)(9).
1786 Id. § 692A.102(1)(c)(10).
1776
1777
130
sexually motivated,1800
(25) Sexual
exploitation of a minor-causing a minor
to engage in a prohibited sex act,1801 (26)
Indecent contact with a child under the
age of thirteen,1802 (27) Sexual
exploitation by a counselor or therapist
with a child under the age of
thirteen,1803 (28) Sexual misconduct
with juvenile and offenders under the
age of thirteen,1804 (29) Child stealing if
sexually motivated,1805 (30) Enticing
away a minor where the intent is to
commit sexual abuse or have sexual
contact,1806 (31) Sex trafficking of
children.1807 (32) Aggravated sexual
abuse,1808 (33) Sexual abuse under the
federal statute,1809 (34) Sex abuse of a
minor or ward in violation of the federal
statute,1810 (35) Abusive sexual contact
in violation of the federal statute,1811(36)
Violation of federal statutes resulting in
death,1812 (37) Sexual exploitation of
children under the federal statute,1813
(38) Selling or buying children under
the federal statute,1814 (39) Any sexual
offense in another jurisdiction or
offenses prosecuted by federal, military
or foreign jurisdictions,1815 and (40) Any
sex offense under prior laws of any
above.1816
Any conviction of an offense that
would qualify the person as a sexually
violent predator is a tier III level
offense.1817 Also any tier II level offense
committed against a person under the
age of thirteen.1818
d.
Enhancement of tiers based on
Prior Convictions
Prior conviction of a tier I offense
elevates a second tier I conviction to a
tier II level.1819 Prior convictions of tier
II offenses or prior reclassification of
tier I conviction to a tier II level will
reclassify the individual to a tier III
level.1820
Id. § 692A.102(1)(c)(24).
Id. § 692A.102(1)(c)(25).
1802 Id. § 692A.102(1)(c)(26).
1803 Id. § 692A.102(1)(c)(27).
1804 Id. § 692A.102(1)(c)(28).
1805 Id. § 692A.102(1)(c)(29).
1806 Id. § 692A.102(1)(c)(30).
1807 Id. § 692A.102(1)(c)(31) (citing 18 U.S.C. §
1591.
1808 Id. § 692A.102(1)(c)(32) (citing 18 U.S.C. §
2241).
1809 Id. § 692A.102(1)(c)(33) (citing 18 U.S.C. §
2242).
1810 Id. § 692A.102(1)(c)(34) (citing 18 U.S.C. §
2243).
1811 Id. § 692A.102(1)(c)(35) (citing 18 U.S.C. §
2244).
1812 Id. § 692A.102(1)(c)(36) (citing 18 U.S.C. §
2245).
1800
Second or subsequent convictions
that require registration shall be
required to register for life.1821
1801
Id. § 692A.102(1)(c)(37) (citing 18 U.S.C. §
2251).
1814 Id. § 692A.102(1)(c)(38) (citing 18 U.S.C. §
2251A).
1815 Id. § 692A.102(1)(c)(39).
1816 Id. § 692A.102(1)(c)(40).
1817 Id. § 692A.102(4).
1818 Id. § 692A.102(5).
1819 Id. § 692A.102(2).
1820 Id. § 692A.102(3).
1821 Id. § 692A.106(4).
1813
131
d.
Multiple Offenses under a Single
Indictment/Information
the first degree,1837 (15) Burglary in the
second degree,1838 (16) Attempted
burglary second degree,1839 (17) Burglary
in the third degree,1840 and (18)
Attempted burglary in the third
degree.1841
If an individual is charged with
multiple offenses in a single indictment,
the offenses are considered a single
offense for registration purposes.1822
e.
If the conviction is in another
jurisdiction, military, federal or foreign
court the department of public safety
will make the determination of whether
the offense was sexually motivated.1842
Sexually Motivated Offenses
All three tiers of offenses refer to
offenses that are sexually motivated. If
the allegation is made that an offense is
sexually motivated, a judge or jury must
make that finding beyond a reasonable
doubt.1823 The list of offenses include:
(1) Murder in the first degree,1824
(2) Murder in the second degree,1825
(3) Voluntary manslaughter,1826 (4)
Involuntary
manslaughter,1827
(5)
1828
Attempted
murder,
(6)
1829
1830
Harassment,
(7) Stalking,
(8)
1831
Kidnapping in the first degree,
(9)
1832
Kidnapping in the second degree,
(10) Kidnapping in the third degree,1833
(11) Child stealing,1834 (12) Purchasing or
sale or attempted purchase or sale of a
person,1835 (13) Burglary in the first
degree,1836 (14) Attempted burglary in
2. Sex Offender Registry
a.
Who must register
Any person who is convicted of a tier
I, II, or III offense must register, as well
as individuals convicted in another
jurisdiction who are subject to that
jurisdiction‘s registry if the person
resides, is employed, or attends school
in Iowa.1843
The obligation to register begins
from the date of placement on
probation,1844 release on parole or work
release,1845
or
release
from
incarceration.1846
Adjudicated
Id. § 692A.102(6).
Id. § 692A.126(1).
1824 Id. § 692A.126(1)(a).
1825 Id. § 692A.126(1)(b).
1826 Id. § 692A.126(1)(c).
1827 Id. § 692A.126(1)(d).
1828 Id. § 692A.126(1)(e).
1829 Id. § 692A.126(1)(f).
1830 Id. § 692A.126(1)(g).
1831 Id. § 692A.126(1)(h).
1832 Id. § 692A.126(1)(i).
1833 Id. § 692A.126(1)(j).
1834 Id. § 692A.126(1)(k).
1835 Id. § 692A.126(1)(l).
1836 Id. § 692A.126(1)(m).
1822
Id. § 692A.126(1)(n).
Id. § 692A.126(1)(o).
1839 Id. § 692A.126(1)(p).
1840 Id. § 692A.126(1)(q).
1841 Id. § 692A.126(1)(r).
1842 Id. § 692A.126(2)(7)(3).
1843 Id. § 692A.103(1).
1844 Id. § 692A.103(1)(a).
1845 Id. § 692A.103(1)(b).
1846 Id. § 692A.103(1)(c). See In re S.M.M. 558
N.W.2d 405, 408 (Iowa 1997) (―The purpose of
chapter 692A is clear: to require registration of
sex offenders and thereby protect society from
those who because of probation, parole, or other
1823
1837
1838
132
delinquents must register from the date
of release from a juvenile facility,1847
beginning date of attendance at an
educational institution,1848 or from the
date of conviction of a sex offense
requiring registration.1849
The motion to waive the registration
requirement must be made and the
hearing held before the juvenile is
discharged from the jurisdiction of
juvenile court.1855 If the juvenile is in an
outpatient treatment program for sex
offenders the court may temporarily
suspend the registration requirement
until the juvenile completes or is
discharged from the program.1856 The
court defers final order until completion
or discharge.1857 The final order must be
entered within thirty days of the
completion or discharge.1858
If a person is incarcerated there is no
registration obligation, but the required
period of registration is tolled until the
person is released.1850
b.
Waiving
the
registration
requirement for juvenile.
The
court
may
waive
the
requirement that a juvenile must
register.1851 The waiver is obtained by
filing a motion on behalf of the
juvenile.1852 There must be reasonable
notice to the parties and a hearing on
the motion.1853 Upon a finding of good
cause the court may modify or suspend
the registration requirement.1854
The order waiving or modifying the
registration requirement must contain:
(1) Written finding stating the reasons
for the modification or suspension1859
and (2) Appropriate restrictions on the
juvenile to protect the public during the
time the registry requirement is
suspended or modified.1860 After the
order is entered, the juvenile court must
notify the superintendant of the
education institution where the juvenile
is enrolled and the court must notify the
department of public safety with five
days of the decision.1861
releases are given access to members of the
public. This, we believe , is the sense in which
‗release‘ is used in section 692A2(1); it is simply
the antithesis of incarceration.‖).
1847 IOWA CODE ANN. § 692A.103(1)(d) (West).
See In re S.M.M. 558 N.W.2d 405, 408 (Iowa
1997) (holding that a dispositional order placing
the appellant with parents subject to
probationary supervision by juvenile court is an
order that ―allows the juvenile to avoid physical
confinement‖—thus the juvenile was released
under the prior statute).
1848 IOWA CODE ANN. § 692A.103(1)(e) (West).
1849 Id. § 692A.103(1)(f).
1850 Id. § 692A.103(2).
1851 Id. § 692A.103(3).
1852 Id. § 692A.103(5).
1853 Id. § 692A.103(5).
1854 Id. § 692A.103(5).
The registration requirement cannot
be modified or waived if the juvenile was
fourteen or older at the time of the
offense1862 and the court made a finding
Id. § 692A.103(5)(a).
Id. § 692A.103(5)(b).
1857 Id.
1858 Id. § 692A.103(5)(c).
1859 Id. § 692A.103(5)(d).
1860 Id.
1861 Id. § 692A.103(6).
1862 Id. § 692A.103(4)–(5)(e).
1855
1856
133
at the time of the adjudication that: (1)
the offense was committed by force,1863
or (2) The offense was committed by
threat of serious violence,1864 or (3) The
offense was committed by rendering the
victim unconscious or involuntary
drugging.1865
c.
a. Gathering relevant information
if the person is classified as a
sexually
violent
predator,
including
anticipated
future
residences,
offense
history,
documentation of treatment for
mental
abnormality
or
1871
personality disorder.
Determination of Requirement to
Register
b. Informing the individual of
their duty to register and
ensuring applicable forms are
provided and signed.1872
A
person
may
request
the
Department of Public Safety to
determine if he or she is required to
register and whether the time
requirement to register has expired.1866
The application is made on forms
provided by the department.1867 After
receipt of all documentation the
department has ninety days to make a
determination.1868
d.
c. Informing the individual he or
she must appear before the
sheriff and report changes in
residence,
employment,
or
attendance at an educational
institution of the county where
the change occurred within five
business days.1873
Duty to Facilitate Registration
The obligation to advise a person
to register is placed on two separate
entities: (1) The sheriff, warden, or
superintendent of a facility if the person
is incarcerated or released from
incarceration1869 or (2) The court if the
person is released from foster care,
residential treatment, or placed on
probation without incarceration.1870
d. Informing the individual he or
she must appear before the
sheriff of the county of their
principal residence of changes
and
other
relevant
1874
information.
e. Informing the individual that
if she or she establishes
residence, becomes employed, or
is
a
student
in
another
jurisdiction, they must notify the
The entity is responsible for:
Id.
Id.
1865 Id.
1866 Id. § 692A.116(1).
1867 Id. § 692A.116(2).
1868 Id. § 692A.116(3).
1869 Id. § 692A.109(1).
1870 Id. § 692A.109(1).
1863
1864
Id. § 692A.109(1)(a).
Id. § 692A.109(1)(b).
1873 Id. § 692A.109(1)(c).
1874 Id. § 692A.109(1)(d).
1871
1872
134
sheriff of the county of the
persons principal residence and
register in the new
jurisdiction within five days.1875
k. Informing the person they are
subject to criminal prosecution by
State or Federal authorities for
violations
of
the
registry
1882
provisions.
f. Instructing the individual to
read and sign a form stating it is
the duty of the individual to
register and that the person
understands that duty. If the
person cannot read or will not
cooperate, the entity will orally
advise the person and make a
written record.1876
e.
Registration Process
Individuals subject to the registry
must appear within five business days to
register with the sheriff of each county
where the person has a residence, works,
or is a student.1883 If a person changes
residence, work, or where the person is a
student, that change must be report to
the sheriff of each county the change
occurred.1884 The registration requires
the person to provide relevant
information to the sheriff including:
g. Providing a copy of ―Exclusion
zones
and
employment
restrictions‖ if the person was
convicted of an aggravated
offense against a minor,1877 and
advise them any consequences for
violation.1878
1. Birth date.1885
2.
Passport and immigration
documents.1886
i. If the person was convicted of
an aggravated offense against a
minor,1879 providing a copy of the
―2000 foot rule‖ and advising the
person of its restrictions.1880
3. Drivers license or government
issued identification card.1887
4. DNA sample.1888
j. Advising the person regarding
the photograph requirement that
the sheriff will impose when he or
she appears for registration or
verification.1881
5. Educational institutions and
addresses attended.1889
6. Employment information.1890
Id. § 692A.109(1)(j).
Id. § 692A.104(1).
1884 Id. § 692A.104(1).
1885 Id. § 692A.101(23)(2).
1886 Id. § 692A.101(23)(3).
1887 Id. § 692A.101(23)(4).
1888 Id. § 692A.101(23)(5).
1889 Id. § 692A.101(23)(6).
1882
Id. § 692A.109(1)(e).
1876 Id. § 692A.109(1)(f).
1877 Id. § 692A.101(2).
1878 Id. § 692A.109(1)(g) (citing id. § 692A.113).
1879 Id. § 692A.101(2).
1880 Id. § 692A.109(1)(h) (citing id. § 692A.114).
1881 Id. § 692A.109(1)(i).
1875
1883
135
number and locations the vehicle
is parked.1902
7. Fingerprints.1891
20. Name, gender, and birth date
of
each
person
in
the
1903
residence.
8. Internet identifiers.1892
9. Name, nicknames, aliases, or
ethnic or tribal name, real name
protected by federal statute.1893
Individuals subject to the registry
must notify the sheriff of the county of
their principal residence of any changes
to the ―relevant information‖ within five
business days.1904 Persons subject to
register must report a new residence,
employment or attendance at an
educational institution of another
jurisdiction to the sheriff of the county
of the principal residence as well as
report to registering agency within five
business days.1905 If an individual has
multiple residences the individual must
report to the sheriff of each county
where the residences are located and
give the dates when the person will be at
the residence and the date the person
will leave.1906 All information for the
registry, changes, and verification shall
be made with the sheriff‘s office and
must be signed and dated by the
individual.1907
10. Palm prints.1894
12. Photographs.1895
13. Physical description-marks,
scars, tattoos.1896
14.
Professional
information.1897
licensing
15. Residence.1898
16. Social security number.1899
17. Telephone numbers-landline
and wireless.1900
18.
Temporary lodging and
length of stay.1901
19. Vehicle information including
registration number, license plate
f.
Fees and civil penalties
The individual is required to pay an
annual fee of twenty five dollars to the
sheriff‘s office beginning with the first
Id. § 692A.101(23)(7).
1891 Id. § 692A.101(23)(8).
1892 Id. § 692A.101(23)(9).
1893 Id. § 692A.101(23)(10).
1894 Id. § 692A.101(23)(11).
1895 Id. § 692A.101(23)(12).
1896 Id. § 692A.101(23)(13).
1897 Id. § 692A.101(23)(14).
1898 Id. § 692A.101(23)(15).
1899 Id. § 692A.101(23)(16).
1900 Id. § 692A.101(23)(17).
1901 Id. § 692A.101(23)(18).
1890
Id. § 692A.101(23)(20).
Id. § 692A.101(23)(21).
1904 Id. § 692A.104(3).
1905 Id. § 692A.104(5).
1906 Id. § 692A.104(6).
1907 Id. § 692A.104(7).
1902
1903
136
meeting with sheriff.1908 The fee may be
paid in installments or waived.1909
There also is civil penalty of two
hundred dollars paid to the district court
clerk‘s office.1910 There is no fee and
penalty assessed against individual who
were acquitted by reason of insanity.1911
g.
to do so, requiring the State to prove the
defendant knew they had to register.1916
h.
Temporary Lodging
Individuals have five business
days to appear in person and notify the
sheriff of the county of their principal
residence, or any location the individual
is staying, when away from their
principal residence for more than five
days.1917
Criminal Penalties
Failure to comply with the
registration requirement has several
penalty provisions. A first offense is an
aggravated misdemeanor carrying a
maximum penalty of an indeterminate
term of not to exceed two years in
prison.1912
A second or subsequent
offense is a Class D felony carrying a
term not to exceed five years in
prison.1913 A conviction of a person of
another sex offense against a minor or
sexually violent offense while they are
subject to the residency restriction will
enhance the sentence to a class c felony
carrying an indeterminate sentence of
up to ten years.1914 Also the person‘s
obligation to register will be extended an
additional ten years from the date the
original
registration
would
have
1915
expired.
Under the predecessor
statute, the Iowa Supreme Court held
that the failure to register applied only
where the defendant ―willfully‖ refused
i.
Penalties
Failure to comply with the temporary
lodging registration requirement has
several penalty provisions. A first
offense is an aggravated misdemeanor
carrying a maximum penalty of an
indeterminate term not to exceed two
years in prison.1918
A second or
subsequent offense is a Class D felony
indeterminate term not to exceed five
years in prison.1919 A conviction of a
person of another sex offense against a
minor or sexually violent offense while
they are subject to the residency
restriction will enhance the sentence to a
Class C felony carrying an indeterminate
sentence of up to ten years.1920 Also, the
person‘s obligation to register will be
extended an additional ten years from
Id. § 692A.110(1).
Id.
1910 Id. § 692A.110(2).
1911 Id. § 692A.110(3).
1912 Id. § 692A.111(1).
1913 Id.
1914 Id. § 692A.111(1).
1915 Id. § 692A.105(3).
1908
1909
State v. Tippet, 624 N.W.2d 176 (Iowa 2001).
IOWA CODE ANN. § 692A.105 (West).
1918 Id. § 692A.111(1).
1919 Id.
1920 Id.
1916
1917
137
the date the original registration would
have expired.1921
j.
up to ten years.1929 Also the person‘s
obligation to register will be extended an
additional ten years from the date the
original
registration
would
have
1930
expired.
The Iowa Supreme Court
previously held that failure to give notice
of a change in address was not governed
by the predecessor statute.1931 That
decision is unlikely to survive the
legislative changes of 2009.1932
Verification of Information for
the Registry
Individuals are required to
appear in person in the county of their
principal residence1922 where they
registered initially to verify residence,
employment, and attendance as a
student as well as allow the sheriff to
photograph the individual.1923
The
verification takes places yearly for a tier
I offender,1924 every six months for a tier
II offender,1925 and every three months
for a tier III offender.1926
A person who knowing provides false
information during their registration,
change of relevant information or
verification of relevant information
commits a crime.1933
k.
Failure to comply with the
verification requirement has several
penalty provisions. A first offense is an
aggravated misdemeanor carrying a
term not to exceed two years in
prison.1927 A second or subsequent
offense is a Class D felony carrying a
term not to exceed five years in
prison.1928 A conviction of a person of
another sex offense against a minor or
sexually violent offense while they are
subject to the residency restriction will
enhance the sentence to a Class C felony
carrying an indeterminate sentence of
Penalties
Knowing providing false information
has several penalty provisions. A first
indeterminate term not to exceed two
years in prison.1934 A second or
restriction will enhance their sentence to
a Class C felony carrying an
Id. § 692A.105(3).
Id. § 692A.104(4).
1923 Id. § 692A.108(1).
1924 Id. § 692A.108(1)a.
1925 Id. § 692A.108(1)b.
1926 Id. § 692A.108(c).
1927 Id. § 692A.111(1).
1928 Id.
Id.
Id. § 692A.105(3).
1931 State v. Reiter, 601 N.W.2d 372, 373 (Iowa
1999).
1932 IOWA CODE ANN. § 692A.111(1) (West).
1933 Id. § 692A.112.
1934 Id. § 692A.111(1).
1935 Id.
1921
1929
1922
1930
138
indeterminate sentence of up to ten
years.1936 Also, the person‘s obligation
to register will be extended an additional
ten years from the date the original
registration would have expired.1937
safety, classifies the individual as lowrisk,1945 (4) The individual is not
incarcerated,1946 and (5) Correctional
services have stipulated to the
modification and a certified copy of the
stipulation
is
attached
to
the
application.
3. Modification of Sex Offender Registry
Requirements
If the person is not under
supervision but is still subject to the
registry, he or she may receive a
modification
under
the
above
conditions, although the individual is
not required to obtain a stipulation from
the department of public safety.1947
The 2009 legislation allows for a
modification
of
the
registration
1938
requirement by the court.
If the
individual is on probation, parole,
special sentence or other conditional
release, they may file an application with
the district court.1939 The application
must be filed in the county of the
individual‘s principal residence.1940
Notice must be given to the county
attorney of the principal residence, the
county attorney of the county where the
conviction occurred, the department of
public safety, and the victim.1941 The
court may or may not conduct a
hearing.1942 The court will do so if all of
the following conditions are met: (1) At
least two years have passed since the
registration requirement was imposed if
it is a tier I offense, five years if is tier II
or III offense,1943 (2) The individual has
completed all sex offender treatment
programs,1944 (3) A risk assessment,
approved by the department of public
If the court modifies the registration
requirement, a copy is sent to the county
attorney, the sheriff‘s department, and
the victim.1948
4. Residency Restrictions ―2000 foot
rule‖
a.
Generally
Sex offenders that are required to
register who have been convicted of an
―aggravated offense against a minor‖ are
subject to the rule.1949
Aggravated
offenses against a minor are convictions
of:
(1) Sexual abuse in the first
degree,1950 (2) Sexual abuse in the
second degree,1951 and (3) Sexual abuse
in the third degree, except for the
Id.
Id. § 692A.105(3).
1938 Id. § 692A.128.
1939 Id. § 692A.128(1).
1940 Id. § 692A.128(3).
1941 Id. § 692A.128(4).
1942 Id. § 692A.128(5).
1943 Id. § 692A.128(2)(a).
1944 Id. § 692A.128(2)(b).
1936
1937
Id. § 692A.128(2)(c).
Id. § 692A.128(2)(d).
1947 Id. § 692A.128(6).
1948 Id. § 692A.128(7).
1949 Id. § 692A.114(1)(c).
1950 Id. § 692A.101(2)(a).
1951 Id. § 692A.101(2)(b).
1945
1946
139
statutory rape provisions where one
person is fourteen or fifteen and the
person is four or more years older than
the other.1952
The predecessor statute survived due
process and vagueness challenges in the
Eighth Circuit.1963 The Iowa Supreme
Court held the prior statute did not
violate due process, the Ex Post Facto
Clause, or the right against self
incrimination, nor did the sentencing
provisions constitute cruel and unusual
punishment.1964
Residency is defined as each
dwelling or other place where the person
―resides, sleeps or habitually lives.‖1953
It also includes mobile or transitory
living quarters where the offender is
―stationed regularly.‖1954
b.
The statute prohibits individuals
from residing within 2000 feet of the
real property comprising a school or
child care facility.1955 There are several
exemptions:
(1) The person is
1956
incarcerated,
(2) The person is the
subject
of
a
mental
health
1957
commitment,
(3)
The
person
established residence prior to July 1,
2002,1958 (4) The school or child care
facility was established after the person
established residency,1959 (5) The person
is a minor,1960 (6) The person is a ward
of the state and the court grants an
exemption,1961 or (7) The person is a
patient or resident at a health care
facility and the court grants an
exemption.1962
Penalties
A first offense is an aggravated
misdemeanor carrying a maximum
penalty not to exceed an indeterminate
term of two years in prison.1965 A second
or subsequent offense is a Class D felony
extended an additional 10 years from
have expired.1968
c.
Id. § 692A.101(2)(c).
Id. § 692A.101(24).
1954 Id.
1955 Id. § 692A.114(2).
1956 Id. § 692A.114(3)(a).
1957 Id. § 692A.114(3)(b).
1958 Id. § 692A.114(3)(c).
1959 Id. § 692A.114(3)(d).
1960 Id. § 692A.114(3)(e).
1961 Id. § 692A.114(3)(f).
1962 Id. § 692A.114(3)(g).
Limitations on Counties and
Municipalities
1952
1953
Doe v. Miller, 405 F.3d 700, 708–09 (8th
Cir. 2005), cert denied 546 U.S. 1034 (2005).
1964 State v. Seering, 701 N.W.2d 655, 659 (Iowa
2005); State v. Groves, 742 N.W. 2d 90, 93
(Iowa 2007).
1965 Id. § 692A.111(1).
1966 Id.
1967 Id.
1968 Id. § 692A.105(3).
1963
140
Political subdivisions of the state
cannot adopt any regulation or
ordinance restricting residency of a sex
offender—and any ordinances or
regulations adopted in the past are
rendered void and unenforceable.1969
library without the written permission of
the library administrator,1976
(7)
Loitering within three hundred feet of
the real property of a public library,1977
or (8) Loitering on or within three
hundred feet of a place intended for the
use of minors including:
5.
Exclusion Zones and Prohibited
Employment
a. Playgrounds available to the
public.
An individual who has been
convicted of a ―sex offense against a
minor‖1970 is prohibited from: (1) Being
present on the real property of an
elementary or secondary school without
the written permission of the school
administration unless enrolled as a
student,1971 (2) Loitering within three
hundred feet of elementary or secondary
school unless enrolled as a student,1972
(3) Being present on or in any vehicle or
conveyance owned, leased or contracted
by a school without written permission
from the school administrator when the
vehicle is used to transport students
unless the person is a student,1973 (4)
Being present on the real property of a
child care facility without the written
permission of the child care facility
administrator,1974 (5) Loitering within
three hundred feet of the real property
of a child care facility,1975 (6) Being
present on the real property of a public
b. Children‘s play areas available
to the public.
c. Recreational or sports-related
areas when used by a minor.
d. Swimming or wading pools
made available to the public when
used by a minor.
e. Beaches made available to the
public when used by a minor.1978
f. Any premises or grounds of a
facility providing services for
dependant adults.1979
There are exceptions for individuals
who are convicted of sex offenses
against a minor who reside in a dwelling
located within three hundred feet of
protected areas,1980 who is the parent or
guardian transporting their own minor
child or ward to protected areas,1981 or
Id. § 692A.127.
Those with convictions classified under tier
I, II, or III, if committed against or involving a
minor. Id. § 692A.101(28).
1971 Id. § 692A.113(1)(a).
1972 Id. § 692A.113(1)(b).
1973 Id. § 692A.113(1)(c).
1974 Id. § 692A.113(1)(d).
1975 Id. § 692A.113(1)(e).
1969
1970
Id. § 692A.113(1)(f).
Id. § 692A.113(1)(g).
1978 Id. § 692A.113(1)(h).
1979 Id. § 692A.115.
1980 Id. § 692A.113(2)(a).
1981 Id. § 692A.113(2)(b).
1976
1977
141
who is entitled to vote and the polling
location is within a protected area.1982
extended an additional 10 years from
have expired.1991
6. Employment
Individuals convicted of a sex
offense against a minor cannot: (1)
Operate, manage, be employed, contract
with, or volunteer for any fair or carnival
when a minor is on the premises,1983 (2)
Operate, manage, employed, contract
with, or volunteer for any arcade or
amusement center when a minor is on
the premises,1984 (3) Operate, manage,
employed, contract with, or volunteer
for elementary or secondary school,
child care facility, or public library,1985
or (4) Operate, manage, be employed,
contract with, or volunteer at any place
intended for the use of minors including
playgrounds, children‘s play area,
recreation or sports related area,
swimming pools, wading pools or
beaches.1986 Individuals may not be
employed by facility providing services
for dependant adults.1987
7. Information made available to the
Public
The department of public safety is
required to make certain information
available to the public.1992
The
information is posted on an internet site
including:
a. The person‘s date of birth.1993
b. The person‘s name, nickname,
and aliases including ethnic or
tribal names.1994
Punishments for a conviction of an
individual for violation of the restricted
zones or employment vary. A first
carrying a maximum penalty not to
exceed an indeterminate term of two
years in prison.1988
A second or
c. Photographs of the person.1995
d.
The person‘s physical
description,
including
scars,
1996
marks and tattoos.
Id. § 692A.113(2)(c).
Id. § 692A.113(3)(a).
1984 Id. § 692A.113(3)(b).
1985 Id. § 692A.113(3)(c).
1986 Id. § 692A.113(3)(d).
1987 Id. § 692A.115.
1988 Id. § 692A.111(1).
Id. § 692A.111(1).
Id.
1991 Id. § 692A.105(3).
1992 Id. § 692A.121(2)(b).
1993 Id. § 692A.121(2)(b)(1)(a).
1994 Id. § 692A.121(2)(b)(1)(b).
1995 Id. § 692A.121(2)(b)(1)(c).
1982
1989
1983
1990
142
e. The person‘s residence.1997
f.
The
offense
requiring
registration and citation to the
applicable statute.1998
g. Whether the person is subject
to the ―2000 foot‖ rule.1999
h. Whether the person is subject
to
the
exclusion
zone
restrictions.2000
Id. § 692A.121(2)(b)(1)(d).
Id. § 692A.121(2)(b)(1)(e).
1998 Id. § 692A.121(2)(b)(1)(f).
1999 Id. § 692A.121(2)(b)(1)(g).
2000 Id. § 692A.121(2)(b)(1)(h).
1996
1997
143
TABLE OF CASES
Anfinson v. State, 758 N.W.2d 496 (Iowa 2008) ........................................................... 107
Arizona v. Gant, 129 S. Ct. 1710 (2009) .............................................................................. 1
Barnhill v. Polk County Ct., 765 N.W.2d 267 (Iowa 2009) ............................................. 111
Bobby v. Bies, 129 S. Ct. 2145 (2009) ............................................................................... 18
Carmody v. Henry County Ct., 2008 Iowa Sup. LEXIS 147 (Iowa 2008) ........................ 97
Cone v. Bell, 129 S.Ct. 1769 (2009) ................................................................................... 68
Dist. Attorney‘s Office for the Third Judicial Dist. v. Osborne, 129 S. Ct.2308 (2009)
........................................................................................................................................ 69
Garren v. Polk County Ct., 2008 Iowa Sup. LEXIS 146 (Iowa 2008) .............................. 97
Garrity v. State, 765 N.W.2d 592 (Iowa 2009) ................................................................. 33
Goosman v. State, 764 N.W.2d 539 (Iowa 2009) ............................................................. 66
Hedgpath v. Pulido, 129 S.Ct. 530 (2008) ........................................................................ 70
Herring v. United States, 129 S. Ct. 695 (2009) ............................................................... 10
Holm v. Jones County Ct., 767 N.W.2d 409 (Iowa 2009) ................................................ 78
Iowa Sup. Ct. Atty. Disc. Bd. v. Barry, 762 N.W.2d 129 (Iowa 2009) ............................. 114
Iowa Sup. Ct. Atty. Disc. Bd. v. Buchanan, 757 N.W.2d 251 (Iowa 2008) ...................... 117
Iowa Sup. Ct. Atty. Disc. Bd. v. Casey, 761 N.W.2d 53 (Iowa 2009) ............................... 118
Iowa Sup. Ct. Atty. Disc. Bd. v. Piazza, 756 N.W.2d 690 (2008) ................................... 122
Iowa Sup. Ct. Atty. Disc. Bd. v. Van Beek, 757 N.W.2d 639 (Iowa 2008)...................... 125
Iowa Sup. Ct. Atty. Disc. Bd. v. Wright, 758 N.W.2d 227 (Iowa 2008) ......................... 123
Jimenez v. Quarterman, 129 S. Ct. 681 (2009) ................................................................ 93
Johnson v. Arizona, 129 S. Ct. 781 (2009) .......................................................................... 2
Johnson v. Story County Ct., 756 N.W.2d 845 (Iowa 2008) ............................................ 95
Kansas v. Ventris, 129 S. Ct. 1841 (2009) ......................................................................... 84
Kirchner v. State, 756 N.W.2d 202 (Iowa 2008) .............................................................. 55
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) ................................................ 37
Montejo v. Louisiana, 129 S. Ct. 2079 (2009) .................................................................. 43
Rivera v. Illinois, 129 S. Ct. 1446 (2009) ...........................................................................71
Safford Unified School Dist. #1 v. Redding, 129 S. Ct. 2633 (2009) .................................. 4
Scott v. State, 2009 Iowa Sup. LEXIS 70 (Iowa 2009) .................................................... 67
State v. Bentler, 759 N.W.2d 802 (Iowa Ct. App. 2008) .................................................... 8
State v. Christoffersen, 756 N.W.2d 230 (Iowa Ct. App. 2008) ....................................... 16
State v. Christopher, 757 N.W.2d 247 (Iowa 2008) ......................................................... 13
State v. Corbett, 758 N.W.2d 237 (Iowa 2008) ................................................................ 12
State v. Cowles, 757 N.W.2d 614 (Iowa 2008) .................................................................. 82
State v. Cromer, 2009 Iowa Sup. LEXIS 37 (Iowa 2009) ................................................ 49
State v. Dudley, 766 N.W.2d 606 (Iowa 2009)............................................................... 102
State v. Effler, 769 N.W.2d 880 (Iowa 2009) ................................................................... 30
State v. Feregrino, 756 N.W.2d 700 (Iowa 2008) ............................................................ 75
State v. Garcia, 756 N.W.2d 216 (Iowa 2008) .................................................................. 28
State v. Hallock, 765 N.W.2d 598 (Iowa Ct. App. 2009) .................................................. 56
State v. Harper, 770 N.W.2d 316 (Iowa 2009) ................................................................. 39
State v. Harris, 763 N.W.2d 269 (Iowa 2009) .................................................................... 6
State v. Heemstra, 759 N.W.2d 151 (Iowa Ct. App. 2008) ............................................... 22
State v. Helmers, 753 N.W.2d 565 (Iowa 2008) ............................................................... 87
State v. Henry County Ct., 759 N.W.2d 793 (Iowa 2009) ................................................80
State v. Isaac, 756 N.W.2d 817 (Iowa 2008) ..................................................................... 98
State v. Johnson, 756 N.W.2d 682 (Iowa 2008) .............................................................. 53
State v. Jorgensen, 758 N.W.2d 830 (Iowa 2008) ........................................................... 99
State v. Keller, 760 N.W.2d 451 (Iowa 2009) ................................................................... 46
State v. Kramer, 760 N.W.2d 190 (Iowa 2009) ................................................................ 21
State v. McKinney, 756 N.W.2d 678 (Iowa 2008) .......................................................... 104
State v. Mitchell, 757 N.W.2d 431 (Iowa 2008) ................................................................ 63
State v. Mott, 759 N.W.2d 140 (Iowa Ct. App. 2008) ....................................................... 89
State v. Ortiz, 766 N.W.2d 244 (Iowa 2009) .................................................................... 25
State v. Plowman, 757 N.W.2d 684 (Iowa Ct. App. 2008) ............................................. 100
State v. Rex, 2008 Iowa Sup. LEXIS 148 (Iowa 2008) ....................................................88
State v. Reynolds, 765 N.W.2d 283 (Iowa 2009) ............................................................. 85
145
~ Table of Cases ~
State v. Schaer, 757 N.W.2d 630 (Iowa 2008) ................................................................. 40
State v. Shipley, 757 N.W.2d 228 (Iowa 2008) ................................................................ 42
State v. Sluyter, 763 N.W.2d 575 (Iowa 2009) ............................................................... 103
State v. Smith, 761 N.W.2d 63 (Iowa 2009) ..................................................................... 46
State v. Stone, 764 N.W.2d 565 (Iowa 2009) ................................................................... 86
State v. Trainer, 762 N.W.2d 155 (Iowa Ct. App. 2008) ................................................... 24
State v. Wade, 757 N.W.2d 618 (Iowa 2008) .................................................................... 60
State v. Walls, 761 N.W.2d 683 (Iowa 2009) .................................................................... 34
State v. Wilkes, 756 N.W.2d 838 (Iowa 2008) ................................................................. 14
State v. Willard, 756 N.W.2d 207 (Iowa 2008) ................................................................ 64
United States v. Hayes, 129 S. Ct. 1079 (2009) ................................................................ 92
United States v. Yeager, 129 S. Ct. 2360 (2009)............................................................... 19
Vermont v. Brillon, 129 S.Ct. 1283 (2009) ....................................................................... 58
Waddington v. Sarausad, 129 S. Ct. 823 (2009)............................................................... 73
146

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