State v. Rademacher
| Decision Date | 21 December 1988 |
| Docket Number | No. 87-1448,87-1448 |
| Citation | 433 N.W.2d 754 |
| Parties | STATE of Iowa, Appellant, v. Eric RADEMACHER, Appellee. |
| Court | Iowa Supreme Court |
Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., Lynn Fillenwarth, County Atty., and Richard Meyer, Asst. County Atty., for appellant.
Joseph L. Fitzgibbons, Steven D. Nelson, and Harold W. White of Fitzgibbons Bros., Estherville, for appellee.
Considered by CARTER, P.J., and LAVORATO, NEUMAN, SNELL, and ANDREASEN, JJ.
This is an appeal by the State in a criminal prosecution. The trial of defendant, Eric Rademacher, on a charge of lascivious acts with a child under Iowa Code section 709.8 (1985) was terminated when the district court granted defendant's motion for mistrial based on prosecutorial misconduct. Subsequently, the district court ordered that retrial of the defendant was barred on double jeopardy grounds. The State seeks a reversal of that order. On review of the record, we affirm the district court.
The trial information in the present case charging defendant with a violation of Iowa Code section 709.8 was filed on October 29, 1986. The trial of the case to a jury commenced on July 21, 1987. The motion for mistrial which resulted in the termination of the trial and which gives rise to the double jeopardy issue presented on this appeal was based on a violation by the assistant county attorney of the district court's pretrial ruling on admissibility of evidence.
A pretrial motion in limine filed by the defendant sought to preclude testimony by a child abuse investigator employed by the Iowa Department of Human Services concerning a conceptual profile of child abuse victims and perpetrators which has been developed by an expert in the field. This profile involves matters such as rapport between victim and perpetrator, an unusual degree of sexual knowledge on the part of the victim, and notable reluctance of family members to disclose the surrounding circumstances. In ruling on the motion in limine, the district court stated:
[T]he witness may testify that child sexual abuse follows recognizable and established patterns of behavior. Additionally, I think she may testify as to facts in this case, but I think that she'll not be allowed to testify or give her opinions about the facts of this case falling into a pattern of sexual abuse [under the profile]. [E]xperts are simply not allowed to express their opinions or conclusions on issues that are for the ultimate decision of the jury.
To that extent, Mr. Fitzgibbons, your limine motion is sustained, and the prosecutor is duly admonished not to inquire into these areas.
When pressed by the prosecutor for clarification of this ruling at a later point in the trial, the court stated:
I spoke about the witness being able to testify that it's--child abuse falls into a recognizable, established pattern of behavior. And I think she can testify as to the facts as she knows them in this case, but may not testify or give her opinions about the facts of this case falling into a pattern of sexual abuse.
Does that help you?
Following this explanation by the court, the following colloquy occurred:
Later, during the examination of the witness to whom the motion in limine related, the assistant county attorney asked her to outline the conceptual profile of child abuse behavior which had been developed by an expert identified as Dr. Susan Sgroi. After the witness had described some of the behavioral patterns contained in the profile, the county attorney directed the following question to the witness:
Q. What characteristics or symptoms of Dr. Sgroi did you find in this case to be significant?
At this point, defense counsel interrupted, and the following colloquy took place out of the presence of the jury:
[DEFENSE COUNSEL]: I believe it was the Court's earlier ruling regarding this particular witness that she could talk about conceptual framework and then she could talk about it separately what factors there might be.
And now the question I believe posed to the witness is specifically, "What characteristics in this case-or, what characteristics of Dr. Sgroi's conceptual framework are present in this case and are significant", I think it's beyond the Court's previous ruling, and I object to it.
...Your Honor, the defendant makes the Motion for Mistrial and base it on the Court's previous ruling.
Second, the witness would be able to testify as to the facts of this case as she understood them to be.
Third, she would be allowed to testify that child sexual abuse falls into recognized and established patterns of behavior. The witness would not be allowed to testify as to conclusions about sexual abuse.... I did not want the facts in this case applied to the behavioral problems.
Now,it seems to me when you ask the witness about significant behavioral patterns in this case, it is directly in violation of the limine ruling.
At this point, the motion for mistrial was overruled and the testimony resumed.
After directing more questions to the witness concerning characteristics developed in the Sgroi profile the assistant county attorney directed the following question to the witness.
Q. Miss Hagedorn, what facts did you see in this case that fit within the conceptual framework of Dr. Sgroi? A. We had a special relationship between Eric [defendant] and Elizabeth [the victim]. We had incidents that took place over time. We had increasingly intimate kinds of contact .... Secrecy was present in this particular case. We had--
At this point, defense counsel again moved for a mistrial. After a discussion between the court and counsel on the record out of the presence of the jury, the motion was granted.
The district court's order granting a mistrial was entered on July 23, 1987. On July 27, 1987, defendant moved to dismiss any further prosecution of the case on double jeopardy grounds. That motion was granted by the court on October 7, 1987. In the present appeal from that order, the State asks us to overturn the provisions barring reprosecution of the defendant.
At the outset, we consider a jurisdictional argument lodged by the defendant. He claims that the State is not entitled to an appeal as a matter of right from the October 7, 1987, order barring further prosecution. He bases his claim on language contained in State v. Edwards, 279 N.W.2d 9, 10 (Iowa 1979), which indicates that the State may appeal as of right only in cases where the defendant has not previously been placed in jeopardy. We disagree with this conclusion. First, to the extent that the argument is based on statutory interpretation, the statute under consideration in the Edwards case was section 793.1 of the 1977 Iowa Code. The appeal of the State in the present case was taken pursuant to Iowa Code section 814.5(1)(a) (1985). That statute grants the state a right of appeal from "[a]n order dismissing an indictment, information, or any count thereof."
Moreover, we believe the reference in the Edwards case to instances where the defendant had not been placed in jeopardy was intended to denote that no appeal as of right would be granted in instances where the defendant had been acquitted in the district court. See, e.g., State v. Fairmont Creamery Co., 153 Iowa 702, 716, 133 N.W. 895, 896-97 (1911). The latter consideration, we believe, pertains to issues of mootness rather than questions of jurisdiction. Such considerations are not present where the issue raised in the appeal is whether the double jeopardy bar should be invoked in instances where an acquittal has not occurred.
Our consideration of the arguments of the parties pertaining to the double jeopardy issue is simplified by their agreement as to the applicable legal standard. Both parties accept as controlling law the plurality opinion of the Supreme Court in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). That opinion declared that, even where a mistrial motion results from a clear prosecutorial overreaching, the public interest in allowing a retrial outweighs the double jeopardy bar. Id. at 675-76, 102 S.Ct. at 2089-90, 72 L.Ed.2d at 424. The double jeopardy bar will attach, however, if the Court finds it was the intention of the prosecution to deliberately force a mistrial situation with the aim of aborting the pending prosecution. Id. We recognized these standards for applying the double jeopardy bar of the federal constitution in State v. Chase, 335 N.W.2d 630, 632 (Iowa 1983), and State v. Bell, 322 N.W.2d 93, 94 (Iowa 198...
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