Children v. Burton

• Citation: 331 N.W.2d 673
• Decision Date: 16 March 1983
• Docket Number: No. 66367,66367
• Parties: Peter CHILDREN, Appellee, v. James R. BURTON, Victor Dunn, and City of Charles City, Iowa, Appellants.
• Court: United States State Supreme Court of Iowa

Page 673

331 N.W.2d 673

Peter CHILDREN, Appellee, v. James R. BURTON, Victor Dunn, and City of Charles City, Iowa, Appellants.

No. 66367.

Supreme Court of Iowa.

March 16, 1983.

Rehearing Denied April 18, 1983.

Walter C. Schroeder, Mason City, for appellant Burton.

Don W. Burington of Laird, Burington, Bovard, Heiny, McManigal & Walters, Mason City, for appellant Dunn.

Jim D. DeKoster of Swisher & Cohrt, Waterloo, for appellant Charles City.

Lex Hawkins, Glenn L. Norris, and George F. Davison, Jr., of Hawkins & Norris, Des Moines, for appellee.

Considered en banc.

UHLENHOPP, Justice.

In this appeal we review a judgment for $1,250,000 awarded to plaintiff Peter Children in a false arrest action against two Charles City police officers--Victor Dunn and James R. Burton--and their employer, the City of Charles City. The officers and city appeal the trial court's overruling their motions for directed verdict, judgment notwithstanding verdict, and new trial.

Both sides presented evidence of the background of the arrest. In late 1978 and early 1979 a rash of indecent exposure incidents were reported in various Charles City and Mason City stores. They involved a man masturbating under racks of ladies' clothing. One individual appeared to be involved. Descriptions of the man seen in the stores were similar, his sexual acts were similar, the testimony refers to "the" suspect or flasher, and, indeed, one man was ultimately convicted. Regarding the Charles City incidents, the first occurred in December 1978 at a J.C. Penney store in Cedar Mall and was witnessed by Joyce Winters. On January 25, 1979, two further incidents occurred at Cedar Mall, one at Spurgeon's and one at Stevenson's. Sherry Tweed, a clerk at Spurgeon's, reported to Officer Burton at the store "That a man had been masturbating down by the--underneath this clothes rack, that he had gotten up and left the store." She later testified that this was based on a report by a customer that a man was lying between the racks playing with himself with his parts exposed and on Tweed's seeing the man pull up his zipper when he got up. The customer testified to seeing a man masturbating under clothes racks with his genitals exposed. June Temple, a clerk at Stevenson's, also reported an incident the same evening when a man came into the store twice. She stated to Officer Burton, "I just had some guy expose himself to me." At trial she testified:

Q. I see. Did you or did you not tell him [Burton] that there was a man in there that exposed himself or words to that effect? [Objection, ruling.] The Witness: Yes, I did.

The police complaint sheet for this incident stated, "Red Owl, Gibson, Roberts, K-Mart Penneys Ref exposure at Spurgeons and Stevensons." Burton's memo for the police file stated: "Stevensons 1-25-79. June Temple. 5'8"'--5-9 Dirty dishwater Blonde Hair or Gray. 34-35 Years old. Down on his knees with both hands inside his pants jacking off." On February 7, 1979, Chris Rissler, another of Stevenson's clerks, reported a similar incident. Her description of the man matched previous ones. She reported to Officer Skillen, "From the desk she saw the man she was talking to earlier sitting by the floor--on the floor by the rack. He had his penis out and was masturbating."

Officer Burton, assigned to the night shift, headed up an investigation of these incidents. He also worked with the Mason City Police Department on the case. Officer Dunn, assigned to the day shift, was not involved in the investigation, as all the reported incidents occurred at night. Dunn was aware of the incidents, however, and of the ongoing investigation, and he had seen the police logs concerning the incidents. He had also seen a composite drawing of the suspect that the Mason City and Charles City police departments issued, and he had casually conversed with June Temple about the incidents. Dunn testified in answer to questions by Children's attorney on direct examination:

Q. And isn't it true that before April the 8th, 1979, you had talked to June Temple or she had talked to you, really I think it was, about these incidents? A. Yes. She had asked me one time when I was patrolling through the mall if we had caught the subject yet or the suspect.

Q. Now, this was before April 8th? A. As I recall, it was before April 8.

Q. And she brought the subject up to you, "Had they caught the guy, yet?" A. That's correct.

On Sunday afternoon, April 8, 1979, June Temple, who had reported one of the January incidents, saw a man in Stevenson's whom she believed was the man involved in the January incident at Stevenson's. She went to Patrick Hawk, manager of Tradehome Shoe Store in the mall. Hawk testified:

Q. All right, now, in your own words, as best you can recall, what was said? A. She came into the store that day and asked us to call the police, the flasher was in Stevenson's. We--I asked her if she was--first I asked her if--if he was exposing himself, and she said no, he's just in the store; and I instructed one of my part-time people to call the police, and another employee, Dave Fisher, I asked to come with me. We wanted to go down and make sure this was the flasher.

He further testified:

Q. And if you'll tell me as best you recall what that conversation was. A. When we got out into the hallway and started down toward the Stevenson store, I asked, "Are you positive this is the flasher?" She said, "Yes, I'm positive it's him." We continued down the hallway until we got to the fountain, which is very close to the Stevenson's store, and she pointed the man out and said, "That's him. That's the flasher." Again, I asked her, "Are you positive it's him?" She said, "Yes, I am. That's the flasher."

Dave Fisher, a Tradehome employee, testified regarding this occurrence:

Q. And at that time you didn't know why they--beg your pardon? A. I knew June came down. I believe she came down now and said that there was a flasher in her store.

Q. Now, wait a minute. Let's back up a little bit. June came down, and did you hear her say something then? A. Yes, I did.

Q. And what did you hear her say? A. She said that the guy that she thought was the flasher was in the store.

Q. And who was she talking to? You or someone else? A. She was talking to Pat Hawk.

Hawk also testified that two telephone calls were made to the police. He instructed Jim Wandro, a part-time employee, to call the police, but Wandro erroneously reported the presence of an intoxicated person to the police. Hawk himself called back to the police dispatcher. He testified that he told the dispatcher June Temple had identified the man in their store as the flasher and that he requested a policeman immediately, and the dispatcher responded that someone was on the way.

The dispatcher testified:

Q. And you just tell me as best you recall what was said to you by someone. A. It was--came from the Tradehome Shoe Store, and he said that there was somebody acting strange and that they were possibly intoxicated.

Q. And what did you do in response to that? A. I called Officer Dunn by radio and advised him that there was an intoxicated person at the Tradehome Shoe Store.

Q. And tell me if you can from memory or from your log what time you called Officer Dunn and told him that? A. That would have been about 4:10 p.m.

Q. Okay. Did you get a later call from someone at the mall? A. Yeah, about 4:11 got another call back.

Q. Now, was that the same person or do you know? A. I don't know.

Q. And what was the conversation that you got or had with that person? A. Well, they advised that the person that was called in about being intoxicated was--had been identified by a clerk as the exposure subject.

Q. Exposure subject, did you say, or suspect? A. Suspect.

Q. All right. Did you misspeak? A. Misspoke.

Q. All right. And then what did you do in response to that? A. I called Officer Dunn back by radio and advised him of the change in the call.

Q. And what did you tell him as best you recall? A. I advised him that the intoxicated person call was the exposure suspect, and they just left by the south door.

When Dunn arrived at the mall parking lot, Patrick Hawk pointed out Peter Children to him. Children was in a nearby car, and Dunn approached to investigate. After talking with Children and his companion, Elizabeth Conway, Dunn ascertained that Children was not intoxicated. Children was in the driver's seat, but he could not produce a driver's license or other identification. Dunn asked if Children would accompany him to the police station. Upon Children's refusal, Dunn did not press the matter and let Children go on the condition that Mrs. Conway, who did have her driver's license, would drive.

Dunn then went to the mall entrance where he met Tradehome manager Hawk. Hawk asked Dunn why he let Children go, and relayed to Dunn that June Temple had identified Children as the flasher. Hawk testified as to events following his call to the police:

Q. Very well. All right. Now, after you had done that, what did you do? A. I came back out of Wandro's. Dave Fisher in the meantime had followed Mr. Children out and copied down his license plate number; and when I was coming out of Wandro's, Mr. Dunn was coming into the mall. I approached Mr. Dunn and said, "What are you doing? That guy's the flasher. Why didn't you arrest him?" And he asked me who had told me this, and I said June Temple, and he immediately went into Stevenson's, and I followed him into Stevenson's.

Children's attorney elicited these events on direct examination of Dunn at the trial:

Q. Okay. Just tell the jury what happened after you got in the mall. A. Pat Hawk, the manager of Tradehome, came up and said, "What'd you leave him go for? He's the flasher. June recognized him."

Q. Then what did you say? A. I just looked at him. I just walked by Stevenson's, and I asked--or June Temple was there along with Sally Snyder, and so I asked her--I asked--I said, "Are you sure it's him?" ...