State v. Hatter

• Decision Date: 26 November 1985
• Docket Number: No. 84-1298,84-1298
• Citation: 381 N.W.2d 370
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Bruce Allen HATTER, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 370

381 N.W.2d 370

STATE of Iowa, Plaintiff-Appellee, v. Bruce Allen HATTER, Defendant-Appellant.

No. 84-1298.

Court of Appeals of Iowa.

Nov. 26, 1985.

Mark C. Meyer of Kinnamon, Kinnamon, Russo & Meyer, Iowa City, for defendant-appellant.

Thomas J. Miller, Atty. Gen., Joseph P. Weeg, Asst. Atty. Gen., and Harold Denton, Asst. Linn Co. Atty., for plaintiff-appellee.

Heard by DONIELSON, P.J., SCHLEGEL, and HAYDEN, JJ.

SCHLEGEL, Judge.

Defendant appeals his conviction of first degree kidnapping and sexual abuse. On appeal, he raises six issues the trial court erred in: (1) refusing to remove for cause, two jurors, one of whom was a rape victim; (2) refusing to prevent the State from impeaching the defendant with illegally obtained evidence, should defendant elect to testify at trial and deny the elements of the crime charged against him; (3) Iowa Code sections 710.1 and .2 are unconstitutionally vague on their face and as applied; (4) Iowa's sentence for first degree kidnapping violates the eighth amendment's prohibition against cruel and unusual punishment; (5) refusing to instruct the jury on the penalties upon conviction of the offense charged and of the lesser included offenses; and (6) in failing to include, in the marshalling instruction, the issue of whether the confinement or removal was "incidental" to the sexual abuse. We reverse on the first issue and affirm the remaining issues.

This is defendant's second trial on the basic underlying facts. The first conviction for the same offense was reversed on appeal for reasons not essential to this appeal in State v. Hatter, 342 N.W.2d 851 (Iowa 1983).

In the second trial, the victim testified, in essence, that on December 1, 1981, defendant forced her into her car at knifepoint and then drove her to a secluded rural area where he forced her to perform oral sex. She testified also that she recognized the defendant from a high school they both attended. Defendant then allowed the victim to drive back to his car, he got out and she returned to her home. Upon arriving home she told her father what happened. Her father then called the police, who on April 1, 1982, arrested the defendant for the kidnapping and sexual abuse of not only the victim herein, but also on the same charges allegedly perpetrated on another victim on March 31, 1982.

I. Challenges for Cause. Defendant alleges that the trial court erred in refusing to disqualify two jurors for cause, forcing him to use his peremptory strikes instead. One juror was a woman who stated that she had very serious reservations about her ability to act fairly and impartially due to the nature of the offense. She eventually relented, after questioning from the State, and indicated that she thought she could return a verdict based upon the evidence presented and instructions given by the court. The second juror was a rape victim. After her initial indication that she did not think she could render a fair and impartial verdict, she also succumbed to the prosecution's inquiries and eventually stated that she, too, could try to render a fair and impartial decision.

Defendant moved to have the trial court excuse the above jurors for cause. He based his motion upon the views each juror had initially expressed, and also upon the sixth and fourteenth amendments of the United States Constitution, Article I, Section 6 and 10 of the Iowa Constitution, and on grounds of fundamental fairness. We agree with defendant that the juror who had been a rape victim should have been excused for cause.

In State v. Williams, 285 N.W.2d 248, 267 (Iowa 1979), we said:

Three principles govern our review of such questions. First, trial court is vested with broad, but not unlimited, discretion in ruling upon a challenge for cause. State v. Winfrey, 221 N.W.2d 269, 273 (Iowa 1974); State v. Beckwith, 242 Iowa 228, 232, 46 N.W.2d 20, 23 (1951); Dunahoo, The Scope of Judicial Discretion in the Iowa Criminal Law Procedure, 58 Iowa L.Rev. 1023, 1064-65 (1973). Second, a determination of a prospective juror's qualifications must rest upon the entire record of the examination. See State v. Beckwith, 242 Iowa at 238, 46 N.W.2d at 26. Third, the trial court sits as judge of the facts on the question of existence of a ground for challenge. Tobin, Tobin & Tobin v. Budd, 217 Iowa 904, 919, 251 N.W. 720, 727 (1934).

As noted in the first principle, the trial court is vested with the discretion of whether or not to excuse a juror for cause. Winfrey, at 273. However, the supreme court in Beckwith said, "that trial courts should use the utmost caution in overruling challenges for cause in criminal cases when there appears to be a fair question as to their soundness." Beckwith, 46 N.W.2d at 26.

Although a ruling may be technically right, if it must be so doubtful as to raise a fair question as to its correctness, it is far better to give the accused the benefit of the doubt, to the end that he and all other men may be satisfied that his rights have not been invaded. Confidence in the fairness and impartiality of each member of a jury, which shall be sworn to try a man on a charge involving his life or liberty, is of the greatest importance to the welfare of the state. Indeed, it is of such paramount importance to every citizen that the time and expense necessary to secure jurors as to whom no doubt may rightly exist is an insignificant consideration.

Id.

The Iowa Rules of Criminal Procedure provide a list of factual circumstances which constitute a basis for which the trial court may sustain a challenge for cause. See Iowa R.Crim.P. 17.5(a)-(p). While the rules say that "a challenge for cause may be made" in one of the listed circumstances, the courts have consistently adhered to sustaining these challenges as a matter of course. See State v. Kuster, 353 N.W.2d 428, 433 (Iowa 1984). Iowa Rule of Criminal Procedure 17.5(m) states that a challenge for cause may be made against a juror who, "... is a defendant in a similar indictment, or complainant against the defendant or any other person indicted for a similar offense." In this case, the record is unclear whether or not the juror who was rape victim who had filed a complaint against another person. However, the similarities between the juror qualifications for challenges for cause in rule 17.5(m), and the juror who was a rape victim here are striking. They are so similar, in fact, that it can be said that it falls into the situation admonished by the Beckwith court where it is so doubtful "as to raise a fair question as to its correctness." 242 Iowa at 238-39, 46 N.W.2d at 26. Prejudice will be presumed when, as here, the defendant uses all of his peremptory challenges and uses one to remove the challenged juror. 242 Iowa at 232, 46 N.W.2d at 23. See also State v. Williams, 285 N.W.2d 248, 267 (Iowa 1979).

While the record is not verbatim, it is significant to note that the defense counsel, prosecutor, and trial court collaborated to make the record based on the testimony of the witnesses immediately after the conclusion of voir dire and all of the parties agreed it was complete and accurate. More importantly, however, because we base our holding on the background of the juror rather than what she specifically did or did not say, the completeness of the record is not decisive here.

II. Impeachment with Illegally Obtained Evidence. Defendant argues that the trial court erred when it ruled that the State would be allowed to use illegally obtained evidence for impeachment purposes should he decide to take the stand and deny the specific elements of the charges against him. He maintains that language in Walder v. United States, 237 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), supports his contention that the illegally obtained evidence cannot be used for impeachment purposes. Walder does state, in part, "He must be free to deny all the elements of the case against him without thereby giving leave to the government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief." 347 U.S. at 65, 745 Ct. at 356, 98 L.Ed. at 507. However, later U.S. Supreme Court authority has refuted the Walder language and has consistently held that illegally obtained evidence may be used to impeach a defendant should the defendant take the stand and deny the specific elements of the crime, or any knowledge or involvement with related matters. See United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The Iowa Supreme Court has had occasion to follow Harris, Hass, and Havens in recent decisions. See State v. Donelson, 302 N.W.2d 125 (Iowa 1981); State v. Campbell, 294 N.W.2d 803 (Iowa 1980); State v. Washington, 257 N.W.2d 890 (Iowa 1977). In State v. Campbell, 294 N.W.2d 803, 805 (Iowa 1980), the Iowa Supreme Court adopted the impeachment exception to the exclusionary rule when it stated "... unlawfully obtained evidence ruled inadmissible against a defendant in the prosecution's case in chief may nonetheless be used to impeach the defendant's assertions made upon direct examination."

In the present case, the police arrested defendant in his home without a search warrant or arrest warrant. Subsequent to his arrest, defendant was given his Miranda rights. Thereafter, he made oral inculpatory statements, signed a written confession, and relinquished a set of handcuffs with a key to police. The physical evidence, the statements, and the confessions obtained from this arrest were suppressed and held inadmissible for the State's case in chief in State v. Hatter, 342 N.W.2d 851, 853-57 (Iowa 1983).

Defendant argues that the precedental value of Harris has been diminished by the recent U.S. Supreme Court case of Oregon v. Elstad, 420 U.S. ---, 105 S.Ct. 1285, 84 L.Ed.2d 222. Defendant asserts that the ...