Wednesday, February 09, 2005

More Legal Bloggin'

The new Iowa Court of Appeal Opinions are up. Some thoughts:



STATE V. DVORAK


The officer was patrolling when he observed defendant's pickup truck sitting at a stop sign at the intersection of 16th Street N.E. and E Avenue in Cedar Rapids. Instead of remaining stopped at the stop sign, the pickup truck pulled out and turned left in front of the squad car, which was only four to five car lengths away, causing the officer to brake in order to avoid a collision. The officer runs the plates and flips on the lights, but the defendant doesn't stop, continuing on down to First Avenue and turning right. The officer then puts the siren on, but the defendant still doesn't stop, instead continued slowly on First Avenue, turned onto 15th Street, and then pulled over. The officer testified the only reason he stopped Dvorak was because he had pulled out in front of him on 16th Street. He stated he did not observe any other traffic infractions or reasons for stopping defendant. Defendant was charged with both first offense OWI and failure to yield to an emergency vehicle. After losing a motion to suppress, he was convicted at trial of the OWI and then pled guilty to the failure to yield at sentencing. He appealed his OWI on the grounds that the officer had insufficient reason to stop his car. The Court upheld the conviction, indicating it didn't need to decide whether or not the defendant's pulling out in front of the officer was a sufficient traffic violation to justify the stop, the failure to yield alone would suffice. It didn't make a difference that the officer didn't list this as his reason to stop the vehicle, because his subjective intent to stop for one reason didn't negate the validity of the other. So long as a valid, albiet minor, traffic infraction occurred that was sufficient reason for an officer to stop a vehicle, it made no difference even if that the officers' traffic-violation ground for approaching the vehicle was pretextual.

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STATE V. JASPERSON


FACTS

On the evening of December 22, 2002, Ed Zemen received three e-mail messages from “Raylene.” In the messages, Raylene asked Ed to call 911 and told him she was at 204 East Locust in Wilton, Iowa. On his way to work, Ed passed the message along to state highway patrol officers he encountered at a gas station. The state troopers obtained the assistance of Wilton police officer John Sperstad and proceeded to 204 East Locust. Officer Sperstad recognized the house as the residence of Raylene Buck and Gary Jasperson. Raylene Buck answered the door, red-eyed, shaking, and clearly upset. The officers asked her what was going on, and she indicated that she and Jasperson were fighting again. Without further prompting, she told the officers that Jasperson had pushed her, “smacked” her in the mouth, scratched her, and choked her twice. The officers noticed she had a cut lip and what appeared to be fresh marks on her chest. Jasperson was seated on the couch in his underwear. When officers asked him what happened, he said, “It’s like she said.” Officers handcuffed, dressed, and arrested Jasperson. Buck’s injuries were photographed the next day.



ISSUES

Jasperson appealed, challenging the sufficiency of the evidence that the two were living together - a fundamental requirement of a domestic abuse charge (rather than regular assault). He also claimed his lawyer was ineffective because he didn't object to Buck's statements to the officers, as a violation of the 6th Amendment Confrontation Clause. The court found that the officers' personal knowledge that the two were living in the residence coupled the circumstantial evidence of cohabitation was sufficient to substantiate that fact.



That brought the Court to the confrontation clause issue. For non-lawyer types who don't already know, the background: The 6th Amendment provides for a defendant's federal constitutional right to be “confronted with the witnesses against him.” That right to confrontation can bar, among other things, hearsay testimony.



Buck's statements to the officers would normally be hearsay. If Person A makes a statement to Person B outside of court, like "the sun is shining," and the State wants to have Person B testify to what Person A said, in order to prove that Person A's statement was true (not simply to prove that Person A said the sun was shining, but to prove that the sun was actually shining that day), that's hearsay. It's normally excluded, and you'd have to call Person A to the stand if you want to get the statement in. There are lots of hearsay exceptions and qualifiers, including the "excited utterance" rule: a spontaneous statement made close in time to a stressful event while still in a state of excitement is generally admissible as being presumably reliable.



Traditionally, the courts have held that if testimony either falls within a “firmly rooted hearsay exception” such as an excited utterance, or it bears “particularized guarantees of trustworthiness,” it is sufficient to satisfy the 6th Amendment right to confront witnesses.



This had been a huge asset in domestic assault cases, where victims notoriously refuse to testify, either because they were seeking reconciliation with their seemingly contrite abusers, or because the abuser had basically scared the sh*t out of them and they weren't going to risk their own necks to send the abuser to jail for a few days or months. Many abusers are not stupid enough to go smacking around the victim where witnesses are present, so the statements of the victim are usually necessary to secure a conviction. It is controversial; conceivably, a "victim" could self-inflict injuries, act excited, lie to the officers about what happened, and then the "abuser" is left to try to deflect those statements in court. Of course, that can happen if the victim chooses to testify as well.



Last year the United States Supreme Court revisited the issue of hearsay and the 6th Amendment in Crawford v. Washington, 541 U.S. 36, 58, 124 S. Ct. 1354, 1370, 158 L. Ed. 177, 198-99 (2004). The Crawford case involved a "particularized guarantees of trustworthiness" statement, a catch-all exception that is generally used when a statement doesn't fall neatly into one of the hearsay exception categories, but is kind of a hybrid split among many of them. That case involved a husband who'd stabbed a man, a wife who was prohibited from testifying against him because of spousal immunity. Statements the wife had made to police were used at trial, as statements against penal interest and corroboration of his "confession." The Court stated:

"Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed."


It held that the statements by the wife could NOT be used against Crawford.



The defendant in Jasperson argued that Crawford prohibited the State from using Bart's statements because the statements to the officers at the scene were "testimonial", and to use them was a violation of the 6th Amendment.



The Iowa Court of Appeals didn't decide whether they were testimonial or not:

"However, we conclude trial counsel did not breach a duty when he failed to object on Confrontation Clause grounds to admission of Buck’s statements through the law enforcement officers’ testimony. The law prevailing at the time of Jasperson’s trial would not have led the district court to sustain a Confrontation Clause challenge had one been made. Trial counsel is not held to standard of a “crystal gazer” who must predict future changes in established rules of law in order to provide effective assistance to a criminal defendant. State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982). The standard instead required Jasperson’s counsel to exercise reasonable diligence in deciding whether the confrontation issue was “worth raising.” State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999). We conclude Jasperson’s trial counsel was not ineffective for failing to anticipate the Supreme Court’s decision in Crawford."




Other states are dealing with Crawford fallout as well. How Appealing notes this article in the Rocky Mountain News:

When Jefferson County deputies pulled up to the Abundant Way Chalet in Evergreen on May 22, 2003, they followed a woman's piercing screams to a horrifying sight.



Through a window, they saw an enraged 24-year-old man holding his girlfriend in a headlock. Investigators later learned the man had tried to strangle her with an electrical cord, pounded her head into a tile floor and left bite marks in her scalp and back, according to the arrest affidavit.



The victim, Tamzon Gorman, told authorities she had been fighting for her life for about 45 minutes and was about to give up when she was rescued.



Prosecutors charged the suspect, Kristopher Klipner, with attempted murder, but Gorman left the state and refused to testify. . . .



This time, however, the district attorney's office faced a new conundrum: a recent U.S. Supreme Court ruling that reaffirms the right of defendants to confront their accusers at trial. . . .



While the decision is prompting review of many cases, determining its impact is likely to take time - and a significant amount of litigation.



The Colorado Court of Appeals tackled the issue twice within three months of the ruling. One decision favored prosecutors, allowing them to use a domestic violence victim's statements to a friend. The other was pro-defense, reversing a man's conviction for sexually assaulting a 7-year- old child because prosecutors used the boy's statements to police instead of putting him on the stand. . . . .



Jefferson County Deputy District Attorney Doug Cohen, who handled the Evergreen case, worries that victims will feel even more pressure to back away from prosecution. He believes juries can make their own judgments about why a victim does or doesn't testify. . . .



Cohen, faced with what he called "a very difficult decision," decided to let Klipner plead to lesser charges of menacing. Klipner was sentenced to 30 days in jail and 42 months on probation.



"Without Crawford, I wouldn't have made that offer," Cohen said. "I was left with the choice, if the victim didn't show, of possibly losing the whole case."


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And in Illinois, Nudum Pactum may have experienced the fallout of the Illinois v. Caballes case first-hand.

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