State v. Folkerts

• Decision Date: 16 September 2005
• Docket Number: No. 03-1862.,03-1862.
• Citation: 703 N.W.2d 761
• Parties: STATE of Iowa, Appellee, v. Melissa Jean FOLKERTS, Appellant.
• Court: Iowa Supreme Court

703 N.W.2d 761

STATE of Iowa, Appellee, v. Melissa Jean FOLKERTS, Appellant.

No. 03-1862.

Supreme Court of Iowa.

September 16, 2005.

Joseph B. McCarville, Assistant Public Defender, Fort Dodge, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Timothy N. Schott, County Attorney, and Wendy Samuelson, Assistant County Attorney, for appellee.

WIGGINS, Justice.

In this appeal, we must decide whether a defendant is required to be present at the deposition of an eyewitness to a crime when the attorneys question the eyewitness regarding the identity of the perpetrator of the crime. In order to avoid an impermissibly suggestive identification of the defendant during the course of a deposition, we hold the defendant is not required to be present at the deposition until the parties have completed questioning the eyewitness as to the identity of the perpetrator. For this reason, we reverse the order of the district court and remand the case for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

At approximately 3:00 a.m. on July 17, 2003, three people allegedly broke into an elderly woman's apartment while she was asleep. One of the intruders, whom the victim described as a white female in her mid-twenties and wearing a pink shirt and jeans, asked the victim for ten dollars. The victim did not get a good look at the other two intruders. The three intruders carried out the victim's television and VCR. The woman called the police. The police found Folkerts outside the victim's residence. The victim subsequently picked Folkerts out of a photo lineup.

The State charged Folkerts with one count of second-degree burglary and one count of fourth-degree theft. Folkerts filed a "motion to establish identification procedures" asking the district court for permission to be absent from the initial portion of the deposition taken of the victim in order for her counsel to test the victim's recollection of the description of the perpetrator. The State resisted the motion. The district court denied Folkerts' motion. Although concluding the defendant's argument was "persuasive," the court believed it was compelled to deny the defendant's request based on this court's decisions in State v. Davis, 259 N.W.2d 812 (Iowa 1977) and State v. Randle, 603 N.W.2d 91 (Iowa 1999), and Iowa Rule of Criminal Procedure 2.27. We granted Folkerts' application for discretionary review, and transferred the case to the court of appeals. The court of appeals affirmed the district court's denial of Folkerts' motion.

II. Issue.

We must determine whether Folkerts is required to be present during the portion of the deposition when the parties question the victim regarding the identifying physical features of the alleged perpetrator.

III. Scope of Review.

Folkerts claims the district court erred in denying her motion. We review the district court's interpretation of our criminal rules of procedure for correction of errors at law. See Randle, 603 N.W.2d at 92

. The defendant also asserts her due process rights will be violated if she is required to be present at that part of the deposition in which the witness is questioned regarding the physical characteristics of the alleged perpetrator. Our review of this constitutional claim is de novo. State v. Davis, 679 N.W.2d 651, 655-56 (Iowa 2004).

IV. Analysis.

1. Why the district court believed it was required to compel Folkerts' presence at the deposition.

Our rules of criminal procedure provide "[i]n felony cases the defendant shall be present personally ... at ... pretrial proceedings, and ... at every stage of the trial...." Iowa R.Crim. P. 2.27(1). The purpose of rule 2.27(1) is to implement a defendant's right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution. State v. Hendren, 311 N.W.2d 61, 62 (Iowa 1981). We have previously held a defendant cannot waive his or her right of confrontation in order to be absent from a discovery deposition of an eyewitness to a crime. Davis, 259 N.W.2d at 813-14. In reaching that conclusion, we stated:

[The] [d]efendant overlooks a common-law principle of long standing. The State has the obligation in a criminal case to prove the identity of the individual who committed the crime and to do so beyond a reasonable doubt. The State is entitled to have the accused present so that the witnesses can look into his face and answer whether he is or is not the man.

Id. at 813. In Randle, we reaffirmed our decision in Davis noting a defendant does not have a constitutional right to waive his or her right to confrontation so as to be absent from a deposition. 603 N.W.2d at 93. In Davis and Randle, neither defendant raised the issue in the context of a deposition that has the likelihood of creating a situation where an impermissibly suggestive identification procedure may occur.

2. Impermissibly suggestive identification procedures and due process considerations.

In Stovall v. Denno, the United States Supreme Court condemned the practice of singly, and not as part of a lineup, showing suspects to witnesses for identification purposes. 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967). When unnecessarily suggestive pretrial out-of-court identification procedures conducive to mistaken identification that are incapable of repair are used, the Due Process Clause requires exclusion of the testimony of the identification. Id. at 301-02, 87 S.Ct. at 1972-73, 18 L.Ed.2d at 1206. The Supreme Court stated, however, that the totality of the circumstances must be examined to determine if a defendant's due process rights were violated as a result of the identification procedure. Id. at 302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206.

In Neil v. Biggers, the Supreme Court reviewed the identification of a defendant by a victim at the police station without the benefit of a photo lineup. 409 U.S. 188, 195, 93 S.Ct. 375, 380, 34 L.Ed.2d 401, 408-09 (1972). The Supreme Court reviewed the case law and stated:

It is the likelihood of misidentification which violates a defendant's right to due process.... Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.

Id. at 198, 93 S.Ct. at 381-82, 34 L.Ed.2d at 410-11. In Neil, the Supreme Court reiterated that if the totality of the circumstances indicates that the identification is reliable, a court does not have to exclude testimony concerning an identification derived from a necessarily suggestive procedure. Id. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411. The Neil court then prescribed a two-part analysis to determine whether testimony concerning an identification procedure is admissible. Id. at 199-200, 93 S.Ct. at 382-83, 34 L.Ed.2d at 411. We adopted this two-part analysis in State v. Webb, 516 N.W.2d 824, 829 (Iowa 1994). See also State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993)

.

The first part of the analysis requires the court to decide whether the identification procedure was in fact impermissibly suggestive. Second, if the court finds that the procedure was impermissibly suggestive, then the court must determine whether, under the totality of the circumstances, an identification made by the witness at the time of trial is irreparably tainted. Concerning the second step, the court's focus is on whether the initial identification was reliable. Taft, 506 N.W.2d at 762. Concerning this question, the court gives weight to five factors:

(1) the opportunity of the witness to view the perpetrator at the time of the crime;

(2) the witness's degree of attention;

(3) the accuracy of the witness's prior description of the perpetrator;

(4) the level of certainty demonstrated by the witness at the confrontation;

(5) the length of time between the crime and confrontation.

Id.

The only time a court must resort to this two-part analysis is when a defendant claims the out-of-court procedure in which an eyewitness identified the defendant was impermissibly suggestive. The best way to avoid needlessly litigating a claim that an out-of-court identification was based on an impermissibly suggestive procedure is to ensure the setting in which the identification takes place does not create the opportunity for an impermissibly suggestive procedure to occur.

3. Avoiding an impermissibly suggestive identification as part of a deposition.

"At common law there was no right to take depositions, except in equity cases or by agreement of the parties." State v. Hamilton, 309 N.W.2d 471, 477 (Iowa 1981). In 1974, we first determined a defendant could take a discovery deposition of a State's witness. State v. Peterson, 219 N.W.2d 665, 669 (Iowa 1974). Subsequent to our decision in Peterson, our rules of criminal procedure authorized a defendant to take a deposition in a criminal proceeding. Iowa R.Crim. P. 2.13(1). This rule has special procedures for taking the deposition of a victim or witness who is a child, but does not contain any special procedures for the deposition of a victim or witness who is not a child. Id. r. 2.13(2). These special procedures allow a victim or witness who is a child to testify at a deposition out of the presence of the defendant, if doing so "would contribute to the welfare and well-being of the child." Id. r. 2.13(2)(b) (authorizing a child to give his or her testimony behind a screen or mirror or in an adjacent room, so long as the defendant can hear or see the child's testimony). Any identification of the defendant made at the deposition is a pretrial out-of-court identification because neither the judge nor the jury is present when the parties take the deposition. An important purpose of a deposition is to allow a defendant to take the testimony of a witness under oath to determine the extent of the witness's knowledge...