State v. Davis

• Decision Date: 30 August 1978
• Docket Number: No. 60589,60589
• Citation: 269 N.W.2d 434
• Parties: STATE of Iowa, Appellee, v. Gary Lee DAVIS, Appellant.
• Court: Iowa Supreme Court

Page 434

269 N.W.2d 434

STATE of Iowa, Appellee, v. Gary Lee DAVIS, Appellant.

No. 60589.

Supreme Court of Iowa.

Aug. 30, 1978.

Philip F. Miller, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Faison T. Sessoms, Jr., Asst. Atty. Gen. and Robert J. Blink, Asst. County Atty., for appellee.

Considered en banc. ^*

REYNOLDSON, Chief Justice.

Defendant appeals from judgment entered upon conviction for statutory rape, a violation of § 698.1, The Code, 1975. We affirm.

From persuasive trial evidence, the jury could have found the fourteen-year-old victim and her boyfriend Charles Walker spent the evening of October 22, 1976, in a bowling alley and in a Des Moines park. Later they encountered defendant Gary Lee Davis, age seventeen. The latter and another boy invited them to a home. Once there, defendant beat Walker, then shoved the victim into a bedroom where he forcibly raped her.

A petition was filed charging defendant with being a delinquent, based upon a forcible rape in violation of § 698.1. December 15, 1976, a § 232.72 juvenile court transfer hearing was held. At the outset the State orally moved to amend the petition to substitute statutory rape for forcible rape. The motion was denied.

Defendant was transferred to district court for prosecution as an adult. The State then filed a county attorney's information charging defendant with statutory rape, a violation of § 698.1.

Defendant timely demurred to the information on the ground trial court was without jurisdiction because the offense charged was not the offense before the court in the transfer hearing. Upon submission of the demurrer, defendant orally contended the prosecution should be barred from charging statutory rape "under principles of collateral estoppel, res judicata, and by a prior ruling of the Juvenile Court which they did not appeal." The demurrer was overruled.

The jury returned a guilty verdict. Defendant was sentenced to serve a term not to exceed twenty years in the Men's Reformatory.

Appealing, defendant relies on alleged trial court errors discussed in the divisions which follow.

I. Should the demurrer have been sustained?

As we have noted above, the juvenile court judge did not permit the delinquency petition to be amended to allege statutory rape. Yet, after transfer, the county attorney's information alleged defendant violated § 698.1 in that he "did carnally know and abuse * * * a female child under the age of sixteen years." Demurring, defendant asserted he could be prosecuted only on those charges determined by and transferred from juvenile court.

The pertinent portion of the transfer statute, § 232.72 (set out in State v. Anthony, 239 N.W.2d 850, 851 (Iowa 1976)), refers to a delinquency petition "based on an alleged act." It authorizes juvenile court to refer "the alleged violation" to the appropriate prosecuting authority "for proper action under the criminal law." See Stuart v. State ex rel. Jannings, 253 N.W.2d 910, 914 (Iowa 1977).

Under the 1975 Code "delinquent child" means, Inter alia, one who has violated any state or local laws or ordinances, except any offense which is exempted by law from chapter 232. See § 232.2(12)(a). When, as here, a minor is alleged to be delinquent under this provision the petition should either identify the law or ordinance violated or adequately detail the criminal conduct involved. Cf., In Interest of Johnson, 257 N.W.2d 47, 49 (Iowa 1977) ("(T)he juvenile is entitled to adequate written notice of the charges against him.").

But as long as the act or incident is sufficiently described for purposes of a transfer hearing, we do not believe the identification of the crime committed should irrevocably bind the prosecutor's subsequent "proper action," when he seeks to alter the information to allege the manner in which the underlying violation was committed. See People v. Fuzi, 46 Mich.App. 204, 208, 208 N.W.2d 47, 50 (1973); People v. Morris, 33 Mich.App. 654, 659, 190 N.W.2d 311, 313-14 (1971); Turpin v. State, 89 Nev. 518, 520, 515 P.2d 1271, 1272-73 (1973).

In this case the alleged violation was the rape of the named victim. Under § 698.1, The Code, 1975, this offense could be committed (1) by force or against the victim's will, or (2) by sexual intercourse with a female under the age of consent. The county attorney's information, which alleged a violation of the same statute, did not charge a new offense. Cf., State v. Sheffey, 234 N.W.2d 92, 95 (Iowa 1975) (permitting amendment of information to allege "receiving" instead of "concealing" stolen property).

Davis' claim and issue preclusion arguments are also without merit. A transfer hearing does not constitute a hearing on the substantive merits of the delinquency petition's allegations. See Edwards v. State, 249 N.W.2d 851, 853 (Iowa 1977); State v. Anthony, 239 N.W.2d at 851; State v. Halverson, 192 N.W.2d 765, 768-69 (Iowa 1972).

Generally, a transfer order following hearing is analogous to an order after preliminary hearing in which probable cause is found: It binds the juvenile to the jurisdiction of the district court for criminal prosecution. Bergman v. Nelson, 241 N.W.2d 14, 16 (Iowa 1976). A juvenile is not amenable to criminal prosecution until he or she is transferred by juvenile court. In Interest of Johnson, 257 N.W.2d at 48; State v. Halverson, 192 N.W.2d at 767-69. But all the juvenile court decides is whether such transfer is warranted. State v. Halverson, 192 N.W.2d at 769. Thus, the transfer order is not an adjudication on the merits of the rape allegations.

It follows that the doctrines of claim and issue preclusion have no applicability in this case. None of the requirements for invoking those doctrines is present. Bd. of Suprs. Carroll Cty. v. Chi. & N. W. Transp. Co., 260 N.W.2d 813, 816 (Iowa 1977); see Mauer v. Rohde, 257 N.W.2d 489, 497 (Iowa 1977); Vestal, Preclusion/Res Judicata Variables: Parties, 50 Iowa L.Rev. 27 (1964).

The State was not barred from filing the statutory rape charge, alleging violation of § 698.1, The Code, 1975. District court had jurisdiction over the prosecution for the offense charged.

II. Is § 782.4, The Code, constitutional?

We quoted the pertinent portions of § 782.4 (rape shield law) in State v. Ball, 262 N.W.2d 278, 279 (Iowa 1978).

State made a pre-trial motion to restrict cross-examination of the victim regarding her prior sexual conduct. Defense counsel resisted, asserting § 782.4 violates the United States Constitution. He stated he would ignore its provisions in course of trial, "so that you can make appropriate ruling on the constitutionality of the statute." The prosecutor replied: "(I)n any event * * * cross examination of any witnesses is always limited to those matters which are relevant and material * * *." Trial court stated it would "have to make rulings as the questions are propounded since the defendant has not seen fit to have a hearing in camera regarding any previous sexual misconduct, if any." The court overruled the motion in limine and overruled defendant's pre-trial motion to declare § 782.4 unconstitutional.

Cross-examining the victim, defense counsel asked: "(W)ithin a year prior to this time have you had intercourse with anyone?" State objected on the ground "previously discussed," and relevance. A recess was declared, and the following additional record was made:

MR. MILLER (defense counsel): That the next question I would have asked her after you sustained the other objection was whether or not she had had intercourse before October 22nd, 1976. And I would like to know if Mr. Blink would have made the same objection.

MR. BLINK (prosecutor): Same objection, relevance, Your Honor, and materiality.

MR. MILLER: Would your ruling have been the same?

THE COURT: On the basis of that question.

MR. MILLER: Sustained?

THE COURT: Yes.

MR. MILLER: I think that is all the record I want to make. That was the additional question I would have asked her.

Thus, on the basis of these two questions on cross-examination of a fourteen-year-old victim in a statutory rape prosecution, we are requested to undertake an analysis of the constitutionality of our rape shield law.

Of course we realize the primary interest secured by the confrontation clause, U.S. Const. amend. VI, is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974); State v. Carney, 236 N.W.2d 44, 46 (Iowa 1975). This sixth amendment right "is made obligatory upon the States by the Fourteenth Amendment." Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923, 926 (1965).

In State v. Carney, 236 N.W.2d at 46, we summarized other pertinent rules relating to cross-examination:

A reasonable latitude must be accorded a cross-examiner but the scope thereof as to any proper subject of inquiry rests generally in trial court's sound discretion.

Trial court's discretion in this respect is a legal discretion and should not be exercised so as to exclude matters vital and proper to the defense of one accused.

The scope of cross-examination of a State's witness should be extended liberally on behalf of a defendant charged with a grave offense. (citations omitted)

But the court has a duty to protect a witness from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate. See Smith v. Illinois, 390 U.S. 129, 133, 88 S.Ct. 748, 750, 19 L.Ed.2d 956, 959-60 (1968), quoting Alford v. United States, 282 U.S. 687, 692-94, 51 S.Ct. 218, 219-20, 75 L.Ed. 624, 627-29 (1931). And clearly, no party has a constitutional right to elicit by cross-examination facts which are irrelevant or immaterial to the issues in the case being tried.

We frequently have recognized the principle that courts have a duty to avoid constitutional questions concerning statutes when merits of a case may be fairly decided without facing such questions. State v. Fuhrmann, 261 N.W.2d 475, 477 n.1 (Iowa 1...