State v. Mitchell

• Decision Date: 04 September 2003
• Docket Number: No. 02-0407.,02-0407.
• Citation: 670 N.W.2d 416
• Parties: STATE of Iowa, Appellee, v. John Nell MITCHELL, Appellant.
• Court: Iowa Supreme Court

670 N.W.2d 416

STATE of Iowa, Appellee, v. John Nell MITCHELL, Appellant.

No. 02-0407.

Supreme Court of Iowa.

September 4, 2003.

Rehearing Denied October 30, 2003.

Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, William E. Davis, County Attorney, and Michael J. Walton, Assistant County Attorney, for appellee.

CADY, Justice.

This is an appeal by John Nell Mitchell from a conviction for second-degree sexual abuse of a child following a new trial ordered in State v. Mitchell, 633 N.W.2d 295 (Iowa 2001) [hereinafter Mitchell I]. In Mitchell I, we considered Mitchell's challenge to the admission of the testimony at trial of two girls who testified Mitchell sexually assaulted them. Both girls were acquaintances of the victim, the girl Mitchell was accused of assaulting in both cases, whom we identify as Amy.¹ Ultimately, we concluded the district court had errantly allowed the admission of the evidence by the other victims. Mitchell I, 633 N.W.2d at 300. In doing so, we accepted Mitchell's argument that the girls' testimony was impermissible evidence of his propensity to commit similar acts against Amy while rebuffing the State's assertion that the testimony was admissible for the alternative purpose of enhancing Amy's credibility. See id. One of the issues posed in this appeal is whether similar evidence, introduced through the testimony of Amy's mother, is admissible. We further consider whether Mitchell's sentencing following his second trial was vindictive and thus unconstitutional. For the reasons that follow, we conclude that the evidence was admissible and the sentencing was proper. We affirm the district court's judgment and sentence.

I. Background Facts and Proceedings.

Amy was ten at the time Mitchell began living with her mother, Julie, in 1997. At some point during the spring of that year, Julie reported that her ex-husband—Amy's father—had sexually assaulted Amy. A social worker later took Amy to a doctor to confirm the abuse. While waiting to see the doctor, Amy confided in the social worker that it was Mitchell—not her father—who had abused her.

Amy later described several instances of abuse in a videotaped conversation with a police detective and recounted the abuse in her testimony at trial. The earliest acts of abuse included Mitchell touching Amy's breast and vaginal areas while she was clothed. This activity escalated to Mitchell touching Amy in the same areas but underneath her clothing. Subsequent acts included Mitchell performing oral sex and inserting his penis into her vagina on more than one occasion. Amy also stated that he ejaculated on one occasion and threatened to kill her if she told anyone about the sexual abuse.

Mitchell was arrested and charged with three counts of sexual abuse in the second degree. After we reversed his conviction in Mitchell I, a second trial was held. Mitchell chose to represent himself in the new trial with stand-by counsel aiding him. After a nearly weeklong trial, the jury returned a verdict of guilty on all three counts. Mitchell was then sentenced to three consecutive sentences of twenty-five years each, to run consecutive to a pre-existing two-year sentence. He challenges the district court's judgment and sentence with this appeal.

II. Standard of Review.

We review a district court's decision on the admissibility of evidence for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). A claim of vindictiveness in sentencing implicates constitutional guarantees of due process, making our review of that issue de novo. See In re C.M., 652 N.W.2d 204, 209 (Iowa 2002)

.

III. Evidence of Prior Bad Acts.

Mitchell's first claim of error centers on the admission of testimony elicited by the State on cross-examination of Amy's mother. Mitchell called Amy's mother as a witness in his case in chief, apparently in an effort to establish that she met with the police detective before his interview with Amy in an effort to slant the evidence against Mitchell or otherwise conspire against him. Mitchell's general defense at trial was that DHS social workers, Scott County law enforcement, and members of Amy's family conspired to bring about his conviction.

During Mitchell's direct examination of the mother, the following exchange occurred:

Q. You was interviewed by a Dr.—Michael Venema, a police officer, in May of '98, was you not? A. I think it was around that time. I can't swear to it.

Q. Okay. I believe his testimony is he interviewed you May of '98, the 8th day of May '98, and I believe he scheduled an appointment with [Amy] to interview her, if you have any knowledge of that I think probably in June '98, the 12th day. Do you have any knowledge of that? A. Of him interviewing her?

Q. Yeah. A. Yes, I gave him her name, so I wasn't called in on her. I was called in on [Karen] and [Susanna].

Q. Well, I'm asking you about [Amy]. A. Yes.

MR. WALTON [(the prosecutor)]: No. He was asking her about the interview, and she just told him what the interview was about.

THE COURT: She answered your question, Mr. Mitchell.

This exchange prompted the following cross-examination by the State:

Q. Mrs. [C.], Mr. Mitchell asked you about a meeting you had with Detective Venema on May 8 of 1998. A. Yes.

Q. And that meeting had nothing to do with your daughter, [Amy], did it? A. No, it did not.

Q. In fact, in the beginning of that meeting—maybe you know this; maybe you don't—Detective Venema had no idea that you were the mother of a girl that had lived with John Mitchell. A. No, he was not.

Q. He became aware of that after meeting with you. Is that correct? A. Yes, after the conversation we had about the reason I was there with [Karen] and [Susanna], then I asked him.

Q. Okay. What was the purpose of the meeting you had with Detective Venema on May 8 of 1998? A. Okay. They came up to Mrs. [P's] and asked me to come to the police station because there had been a report filed from Debbie [F.]—

Q. Who is Debbie [F.]? A. That's [Karen]—

THE DEFENDANT: Objection, your Honor. That has nothing to do with this.

A. [Karen] and [Susanna's] mother.

THE DEFENDANT: It has nothing to do with this. I object.

...

THE COURT: Can you state what your objection is?

THE DEFENDANT: My objection is Mr. Walton trying to bring in other issues that—to mislead the jury totally away from what this case is about. You instructed me not to go beyond a certain scope that he object to, which is I feel exculpatory evidence that this jury should know. If he's gonna go with that, I will go further.

THE COURT: Mr. Mitchell, based on that objection, that's overruled. You may answer.

Q. What was the purpose of the meeting with Detective Venema on May 8 of 1998? A. Okay. As I stated, Debbie [F.] made a complaint against John Mitchell—that is [Susanna] and [Karen's] mother—that he had been sexually abusing them.

Q. Okay. Who is Debbie [F.]? A. That's [Karen] and [Susanna's] mother. I lived with her for a time of period [sic].

Q. Are you a friend of Debbie [F.]? A. Yes, I am.

Q. And was John Mitchell a friend of Debbie [F.'s] family? A. Yes.

Q. Okay. Who was [Karen]? A. She's Debbie's oldest daughter.

Q. And in 1997, 1998, what was her age, approximately? A. Approximately about 12. I think she was a year older than [Amy].

Q. Okay. And that's who Detective Venema wanted to talk to you about? A. Yes.

Q. And did he want to talk to you about anything else? A. No. That was—just what knowledge I had of John having contact with these children.

Q. And were—you said children. Were there other children? A. Yes. There was [Karen's] younger sister, [Susanna], and then I told him maybe he ought to talk to my daughter [Amy] because of the way they were acting. It was all type of the same over and over—after I sat back and looked at it, each one of the children were acting out the same, throwing fits, tearing things up.

Q. And it was at that point on May 8 of 1998 that you informed Detective Venema that you had a daughter that had also been with Mr. Mitchell. A. Yes, sir.

Q. And was that the first time Detective Venema knew about [Amy]? A. Yes, sir.

Q. As far as you know? A. Yes, sir.

MR. WALTON: Thank you. I have no further questions.

Mitchell alleges that the State's cross-examination produced indirectly the same evidence of prior bad acts—the alleged sexual abuse of two other girls—which we declared inadmissible in Mitchell I where similar information was introduced directly through the testimony of the victims, Karen and Susanna. See Mitchell I, 633 N.W.2d at 300

; Iowa R. of Evid. 5.404(b). The State responds by arguing that Mitchell's objection to this evidence was insufficient to preserve this issue for appeal and, in the alternative, that the evidence was presented after Mitchell "opened the door" to refute his general conspiracy defense. The State also argues that the testimony was not impermissibly prejudicial, particularly because the prosecutor did not belabor the issue. See Iowa R. Evid. 5.403. Mitchell responds to these arguments by asserting that a fair reading of the record refutes the State's arguments related to error preservation and invited error. Moreover, even if the evidence was relevant—a point he does not concede—the State simply went too far when eliciting the prejudicial disclosure of Mitchell's alleged abuse of the other two girls.

Although there may be a question of whether Mitchell adequately preserved error by his objection, we believe this issue is resolved under both of the State's alternative arguments. See State v. Grosvenor, 402 N.W.2d 402, 406 (Iowa 1987)

("The fact that defendant appeared pro se does not excuse his failure to preserve this claim of error."). We have long subscribed to the maxim that, "`one who induces a trial court to let down the bars to a field of inquiry that is not competent or relevant to the issues...