Hatter v. Warden, Iowa Men's Reformatory, C89-0062.

• Decision Date: 17 April 1990
• Docket Number: No. C89-0062.,C89-0062.
• Citation: Hatter v. Warden, Iowa Men's Reformatory, 734 F. Supp. 1505 (N.D. Iowa 1990)
• Parties: Bruce Allen HATTER, Petitioner, v. WARDEN, IOWA MEN'S REFORMATORY, Respondent.
• Court: U.S. District Court — Northern District of Iowa

734 F. Supp. 1505

Bruce Allen HATTER, Petitioner, v.WARDEN, IOWA MEN'S REFORMATORY, Respondent.

No. C89-0062.

United States District Court, N.D. Iowa, Cedar Rapids Division.

April 17, 1990.

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Mark Meyer, Cedar Rapids, Iowa, for petitioner.

Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, for respondent.

ORDER

HANSEN, District Judge.

This matter is before the court on petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed May 2, 1989, and amended September 29, 1989.

Prior History

Petitioner was convicted, after his third trial, on June 25, 1986, in the Iowa District Court for Linn County, of kidnapping in the first degree in violation of Iowa Code § 710.2.He was sentenced to life imprisonment without the possibility of parole.He appealed that conviction, raising the same issues raised in this petition,¹ to the Supreme Court of Iowa.This conviction was affirmed.SeeState v. Hatter,414 N.W.2d 333(Iowa1987)(Hatter III).Petitioner's first conviction was reversed after a finding that petitioner's arrest had been unlawful due to the arresting officers' failure to obtain an arrest warrant, and because evidence obtained from that arrest should have been suppressed.SeeState v. Hatter,342 N.W.2d 851(Iowa1983)(Hatter I).His second conviction was reversed because the trial court abused its discretion in failing to excuse for cause a juror who had been a rape victim.SeeState v. Hatter,381 N.W.2d 370(Iowa App.1985)(Hatter II).

Facts

The basic facts of the crime for which petitioner was convicted are not disputed.The primary witness against petitioner was the victim, Deborah.On December 1, 1981, petitioner, age 19, accosted Deborah, age 18 or 19, as she was leaving from a visit with her mother at Harding Junior High School in Cedar Rapids, Iowa.Petitioner's appendix, filed November 1, 1989, at 57-58.²He forced her into her car at knifepoint, handcuffed her, and drove her approximately five miles to a secluded rural area.Id. at 59-60, 62.There he forced her to perform fellatio upon him.Id. at 63.As he attempted to drive away, with the victim still in the car, the vehicle became stuck in a ditch.Id.He and Deborah walked down the road to seek assistance, and at some point petitioner removed the handcuffs from Deborah.Id. at 64.Deborah testified that while they were walking, it appeared that petitioner was going to stab her with the knife.Id.She grabbed his hand and talked him into giving her the knife in exchange for her promise that she would not tell anyone what had happened.Id. at 64-65.They flagged down a pickup truck, whose driver helped them get Deborah's car out of the ditch.Id. at 65.Deborah hid the knife underneath the floor mat in the back seat of her car.Id. at 66-67.Deborah then drove petitioner back to where he had left his car, near Harding Junior High.Id. at 67.Deborah and petitioner had attended the same high school, and at some point during the incident Deborah told petitioner that she recognized him.Id. at 60-61.Deborah did not immediately report this crime to the authorities.Later that evening she told her father about the incident but omitted the sexual abuse.Id. at 72.Her father called a friend whose son, Larry Greco, is a Cedar Rapids, Iowa, police officer.Id. at 75(testimony of Larry Greco).This officer prepared a report based on his conversation with Deborah's father.Id. at 73(testimony of victim), 75-76 (testimony of Larry Greco).Deborah's father disclosed petitioner's identity to Officer Greco, and told Officer Greco that no sexual abuse had occurred.Id. at 76(testimony of Larry Greco).It is unclear from the record whether Deborah ever spoke with Officer Greco.Seeid. at 71.Petitioner was charged with kidnapping in the first degree after making inculpatory statements regarding the incident with Deborah following his arrest for another sexual assault.

Petitioner presents several issues for decision.His arguments are primarily directed at the constitutionality of Iowa's first degree kidnapping statute and the use of his inculpatory statements for impeachment purposes.Petitioner argues that the statute is unconstitutionally vague in violation of the Fifth and Fourteenth Amendments to the United States Constitution and that the punishment imposed upon him, life imprisonment without the possibility of parole, is disproportionate to his crime in violation of the Eighth Amendment prohibition against cruel and unusual punishment.He further argues that his confession should have been suppressed as involuntary.

Vagueness of Iowa's Kidnapping Statute

Petitioner first argues that Iowa's first degree kidnapping statute, Iowa Code § 710.2, as interpreted by the Supreme Court of Iowa, is unconstitutionally vague and uncertain in its application to the facts of this case in violation of the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution.Petitioner argues that the dividing line between second degree sexual abuse and first degree kidnapping is too vague to put a reasonable person on notice as to what conduct falls into each category.

The relevant Iowa Code³sections are as follows:

Kidnapping defined.A person commits kidnapping when he or she either confines a person or removes a person from one place to another, knowing that he or she has neither the authority nor the consent of the other to do so; provided, that to constitute kidnapping the act must be accompanied by one or more of the following:

. . . . .

3.The intent to ... subject the person to a sexual abuse.

Iowa Code § 710.1(1981).

Kidnapping in the first degree.Kidnapping is kidnapping in the first degree when the person kidnapped, as a consequence of the kidnapping, suffers serious injury, or is intentionally subjected to torture or sexual abuse.

Iowa Code § 710.2(1981).

Sexual abuse defined.Any sex act between persons is sexual abuse by either of the participants when the act is performed with the other participant in any of the following circumstances:

1.Such act is done by force or against the will of the other.In any case where the consent or acquiescence of the other is procured by threats of violence toward any person, the act is done against the will of the other.

. . . . .

Iowa Code § 709.1(1981).

Sexual abuse in the second degree.A person commits sexual abuse in the second degree when the person commits sexual abuse under any of the following circumstances:

1.During the commission of the sexual abuse the person displays in a threatening manner a deadly weapon, or uses or threatens to use force creating a substantial risk of death or serious injury to any person.

. . . . .

Iowa Code § 709.3(1981).

Kidnapping in the first degree is a class "A" felony, Iowa Code § 710.2(1981), punishable by life imprisonment without the possibility of parole.Iowa Code § 902.1(1981).Sexual abuse in the second degree is a class "B" felony, Iowa Code § 709.3(1981), punishable by an indeterminate sentence up to 25 years.Iowa Code §§ 902.3,902.9 (1981).A person serving an indeterminate sentence is released from custody after the completion of the maximum term unless released earlier on parole as determined by the Iowa Board of Parole.SeeIowa Code § 902.6,Iowa Code Chapter 906(1981).

In State v. Rich,305 N.W.2d 739(Iowa1981), the Supreme Court of Iowa recognized that a sexual abuse always contains some element of confinement or removal.The Rich court, in interpreting Iowa Code § 710.1, found that the Iowa legislature

intended the terms "confines" and "removes" to require more than the confinement or removal that is an inherent incident of commission of the crime of sexual abuse.Although no minimum period of confinement or distance of removal is required for conviction of kidnapping, the confinement or removal must definitely exceed that normally incidental to the commission of sexual abuse.Such confinement or removal must be more than slight, inconsequential, or an incident inherent in the crime of sexual abuse so that it has a significance independent from sexual abuse.Such confinement or removal may exist because it substantially increases the risk of harm to the victim, significantly lessens the risk of detection, or significantly facilitates escape following the consummation of the offense.

The rationale for this conclusion is that we do not believe the legislature intended to afford the prosecution a choice of two penalties of such a disparate nature for the typical crime of sexual abuse.The disparity between the sentences for first-degree kidnapping and third-degree sexual abuse—life imprisonment as opposed to not more than ten years—is significant.Although the plain language of section 710.1 appears to encompass the usual case of sexual abuse, in which some movement or confinement occurs, a literal interpretation of the statutory language would not be sensible or just.We therefore believe that because of the substantial disparity between sentences the legislature intended the kidnapping statute to be applicable only to those situations in which confinement or removal definitely exceeds that which is merely incidental to the commission of sexual abuse.

Rich,305 N.W.2d at 745.

Challenges for vagueness which do not involve First Amendment freedoms generally must be examined in light of the facts of the case at issue.United States v. Powell,423 U.S. 87, 92-93, 96 S.Ct. 316, 319-20, 46 L.Ed.2d 228(1975);United States v. Mazurie,419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706(1975);Sodders v. Parratt,693 F.2d 811, 812-13(8th Cir.1982).The fact that the legislature might "have chosen `clearer and more precise language' equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague."Powell,423 U.S. at 94, 96 S.Ct. at 321(quoti...