State v. Newman, 67407

• Decision Date: 24 November 1982
• Docket Number: No. 67407,67407
• Citation: State v. Newman, 326 N.W.2d 796 (Iowa 1982)
• Parties: STATE of Iowa, Appellee, v. Donald Eugene NEWMAN, Appellant.
• Court: Iowa Supreme Court

Page 796

326 N.W.2d 796

STATE of Iowa, Appellee, v. Donald Eugene NEWMAN, Appellant.

No. 67407.

Supreme Court of Iowa.

Nov. 24, 1982.

Francis C. Hoyt, Jr., Appellate Defender, and Patrick R. Grady, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Teresa Baustian, Asst. Atty. Gen., and Dan L. Johnston, Polk County Atty., for appellee.

Considered by LeGRAND, P.J., and UHLENHOPP, HARRIS, McCORMICK, and McGIVERIN, JJ.

UHLENHOPP, Justice.

This appeal involves five issues which arose in the prosecution of defendant Donald Eugene Newman on charges of first-degree kidnapping and third-degree sexual abuse. We will relate the facts in our consideration of the separate issues. Some of the issues we determined in State v. Newman, 326 N.W.2d 788 (Iowa 1982) (Newman I).

I. Lineup. The pretrial lineup involved in this case was the same lineup involved in Newman I. The facts in the two cases are sufficiently similar to make the decision of this issue in that case determinative here. Based on that decision, we hold that defendant's present contention is untenable, including his contention relating to lack of counsel. See State v. Watts, 244 N.W.2d 586, 589 (Iowa 1976) (following Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)).

II. Evidentiary rulings. One of the contested issues in the trial of this case was the identity of the individual who committed the offense. In different counts the information charged that defendant committed similar offenses on three separate occasions with three different victims, one involving J.E.L. on February 25, 1980; another--the present one--involving M.A.B. on February 27, 1980; and a third involving Y.G. on March 27, 1980. At defendant's request, the three occurrences were separated for trial. The first of the three occurrences was not brought up in the present trial.

Defendant was first convicted in Newman I on the charges involving Y.G. Over defendant's objection at the present trial involving M.A.B., the trial court allowed the State to introduce testimony by Y.G. that Newman was the individual who victimized her on March 27, 1980. The court admitted this testimony on the issue of the identity of M.A.B.'s assailant. Defendant claims this was error.

We faced a similar problem in a case involving sex acts with a child in Des Moines. State v. Cott, 283 N.W.2d 324 (Iowa 1979). We stated:

In reviewing trial court's exercise of discretion in admitting the testimony regarding defendant's prior offense, we first consider the bases upon which relevance of the evidence may be found. The general rule is that "one crime cannot be proved by proof of another." The purpose of the rule is to exclude from the jury's consideration evidence which has no relevancy except to show that the defendant is a bad person and thus likely committed the crime in question. Consequently, evidence which is relevant to prove some fact or element in issue other than the defendant's criminal disposition escapes the rule's prohibition. We have accordingly recognized certain categories of permissible objectives for proof of prior criminal acts:

(1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or system of criminal activity embracing the commission of two or more crimes so related that proof of one tends to prove the other, (5) identity of the person charged with the commission of the crime.

Id. at 326 (citations omitted). After rejecting other bases of admissibility, we held that evidence of prior instances involving sex acts in Ames with another child was relevant on the identity issue in the Des Moines case. We said:

Rather, we hold the testimony was relevant here to establish the identity of the defendant as the perpetrator of the offense. Identity of the assailant was apparently the principal issue at trial. Although the prosecutrix was able to assist in the completion of a composite drawing of a bearded assailant which bears some resemblance to defendant, picked defendant's photograph from an array and also picked defendant in a line-up, she also incorrectly described defendant as having orange hair and facial hair. Furthermore, she stated that he was wearing blue jeans on the day of the incident when in fact it appears he had been wearing blue-and-white striped bib overalls. Also, defendant presented alibi testimony which accounted for his whereabouts during most of the time span within which the incident allegedly occurred.

Testimony regarding the Ames incidents tended to prove the identity of defendant as the same person who committed both crimes because of the similarity of the acts involved and the method by which they were accomplished. In both the Ames and Des Moines incidents, the man removed his clothing and induced the little girl to touch his genitals. Also, he either removed or had the girl remove her pants and then touched the girl's pubic area. Both girls were given small amounts of money and instructed to tell their families that they had found it. Moreover, the victim of the Ames incidents also identified defendant as the assailant.

Id. at 328. We also held that the probative value of the evidence outweighed its prejudicial effect. See also State v. Walsh, 318 N.W.2d 184 (Iowa 1982) (two homicides).

Defendant claims that the Y.G. and M.A.B. instances are too dissimilar to make one of them relevant proof of identity in the other one. He points out that "[M.A.B.'s] assailant lured her into a pickup truck and forced her to perform oral sex upon him while he continued to drive around," and that "[Y.G.'s] assailant, on the other hand, picked her up in a car, drove a long distance to a secluded area, threatened to shoot her, removed her from the car, sodomized her and dropped her off at a place other than where she was picked up."

The two instances, however, have several similarities: one girl was thirteen and the other was fifteen; both crimes occurred in the near north side of Des Moines, Iowa; they occurred within a month of each other; they both occurred between 8:00 and 8:30 p.m.; both girls were walking alone on the street when approached; in each instance the assailant drove beside the girl, flashed a star-shaped badge mounted in a dark, leather-like wallet, and claimed to be a police officer; in both instances the assailant initiated the sexual abuse in the same manner by unzipping his trousers, taking out his penis, putting the victim's hand on it, and telling her to masturbate him; each time the assailant pushed the victim's head down to his penis and forced or attempted to force her to commit fellatio; each time he told the girl when he released her he was from California; both times the victims gave similar initial identifications of their assailants and both identified the same individual in the lineup; each girl was returned to the place she was picked up or indicated she would be picked up; both times the assailant was wearing a short leather jacket and a gold watch.

We conclude that the trial court did not err in holding that the probative value of the one instance was sufficient for admissibility on the issue of identity in connection with the other instance. We likewise hold, as in Cott and Walsh, that the probative value outweighed the prejudicial effect of the evidence.

The State had to establish, of course, that present defendant Newman was Y.G.'s assailant; otherwise her testimony would be irrelevant. See Cott, 283 N.W.2d at 328 ("Moreover, the victim of the Ames incidents also identified defendant as the assailant."). In addition to Y.G.'s testimony, the state introduced circumstantial evidence through the testimony of Jerry Jones and another witness which tended to establish this essential factor. This testimony included statements about a Monza Spyder automobile and a star-shaped badge in a black notebook.

We hold that the trial court did not err in the challenged evidentiary rulings.

III. Reporting final arguments. The following occurred prior to jury arguments at the trial:

Mr. McKinney [defense attorney]: Your Honor, one other record. The Defendant has just informed me that he would like to have closing arguments reported and transcribed by the court reporter.

The Court: That will be denied. The reporter has to work on the instructions. You can stop the arguments at any time you choose and call the Court. I do not intend to be on the bench during arguments. The reporter has to complete these instructions so he can't do that while he's reporting.

Mr. McKinney: Well, we would take exception--

The Court: If you want to hire a reporter and pay for it--as I understand it, this is an indigent case, is it not?

Mr. McKinney: Yes, it is, Your Honor.

The Court: You are court appointed?

Mr. McKinney: Yes, I am, Your Honor.

The Court: If Mr. Newman wants to pay for the court reporter, he has a right to do that, but I don't intend to have Mr. Stanton do it.

Mr. McKinney: We take exception to that, Your Honor.

The Court: Very well. If you do want--you note that any time you have controversy as to arguments, the Court is available in chambers. I do not intend to sit on the bench during arguments.

Mr. McKinney: So you overrule our motion then to have it recorded?

The Court: Yes, I am.

Mr. McKinney: Your Honor, one other motion. We would request that you do stay on the bench in case anything would happen. It would be easier for a record to be made.

The Court: Very well, I'll sit on the bench.

Also subsequently:

The Court: Is there some record to be made before I read the instructions?

Mr. McKinney: Yes, Your Honor. In conference with my client, Mr. Newman, we both believe that closing arguments should be recorded. We had that right. We made the objection to have it recorded. It was overruled by the Court, and at this time, Your Honor, we would--Mr. Newman, the Defendant, would like to move for a mistrial on that basis, that he was denied his right to have closing arguments...