State v. Reetz, No. 7-936/06-1577 (Iowa App. 3/14/2008)
| Decision Date | 14 March 2008 |
| Docket Number | No. 7-936/06-1577,7-936/06-1577 |
| Court | Iowa Court of Appeals |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. NEAL CARROL REETZ, Defendant-Appellant. |
Appeal from the Iowa District Court for Floyd County, Bryan H. McKinley, Judge.
Defendant appeals his conviction for sexual abuse in the third degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, and Jesse Marzen, County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Baker, J., and Brown, S.J.*
Neal Reetz was charged with sexual abuse in the third degree under Iowa Code section 709.4(2)(a) (2003). Section 709.4(2)(a) applies when a person commits a sex act, the persons are not cohabiting as husband and wife, and "[t]he other person is suffering from a mental defect or incapacity which precludes giving consent." Reetz admitted having sexual relations with Glenda, who is mildly mentally retarded, but claimed these encounters were consensual. The State's position is that Glenda was not capable of consenting.
The State designated Dr. Brent Seaton, a clinical neuropsychologist and psychologist, as its expert to testify on the issue of Glenda's ability to consent. Dr. Seaton personally evaluated Glenda. He also relied upon an interview of Glenda by a social worker, Julie Kelly, and reports by psychiatrist Dr. Michael Taylor and psychologist Dr. Dan Rogers. Reetz filed a motion in limine raising hearsay and Confrontation Clause issues. The district court ruled that as long as defendant had the reports relied upon by Dr. Seaton, he could testify to correspondence he received from other experts and underlying data.
The case proceeded to trial. Dr. Seaton testified he had personally examined Glenda and administered a series of tests designed to measure her mental capacity. He concluded she did not have "the capacity to knowingly and willingly enter into sexual activity or to consent to sexual activity." He stated she "basically lacks the ability to recognize the risks and benefits, recognize alternatives, and to even make a choice" due to her mental incapacity. On intellectual testing Glenda's age-equivalent scores were between five to ten years of age.
Glenda testified she did not want to have sex with Reetz, but did not know what to do when he asked her for sex. She stated she took her own clothes off, but did not know why she had done so. She was unable to articulate any reasons why people would or would not want to have sex. Glenda's testimony revealed a very child-like manner.
Reetz presented the testimony of Jim Hughes, and attempted to present evidence of Glenda's reputation in the community regarding sexual activity. The State objected based on Iowa Rule of Evidence 5.412(c)(1) and on the grounds of hearsay and relevance. Further testimony by Hughes as to Glenda's reputation for sexual activity was offered outside the presence of the jury. The court determined the proffered testimony was inadmissible on the grounds raised by the State. At the trial, Hughes and other witnesses testified to Glenda's level of independence.
The jury returned a verdict finding Reetz guilty of third-degree sexual abuse. The district court denied Reetz's motion in arrest of judgment and motion for new trial. Reetz was sentenced to a term of imprisonment not to exceed ten years. He now appeals.
Reetz raises concerns about the testimony of Dr. Seaton based on the Sixth Amendment Confrontation Clause and the hearsay rules of evidence. Our standard of review on constitutional issues, such as those presented by the confrontation clause, is de novo. State v. Newell, 710 N.W.2d 6, 23 (Iowa 2006). On issues of hearsay we review for the correction of errors at law. State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003).
A. In a motion in limine, Reetz asked that Dr. Seaton not be permitted to testify to the statements of Kelly and Dr. Taylor, who were not present to be cross-examined. In ruling on the motion in limine, the district court stated that as long as defendant had the underlying materials, it would "allow Dr. Seaton in his testimony to rely upon correspondence received from other experts and underlying data." The court stated it would accept additional record outside the presence of the jury and revisit the issue at that time.
During the trial, Dr. Seaton was questioned about the basis for Kelly's meeting with Glenda. Reetz objected on hearsay and confrontation grounds, and the court sustained the objection. Dr. Seaton was also asked whether Kelly was reporting about Glenda's sexual activity with defendant. Reetz again objected on hearsay and confrontation grounds, and the objection was sustained. Dr. Seaton testified it was his practice to review other reports in reaching an opinion. Dr. Seaton was then questioned as to Kelly's findings. Reetz's hearsay and confrontation objections were overruled. Dr. Seaton testified Kelly's report concluded there was reason for concern about sexual activity between Glenda and defendant.
Dr. Seaton was questioned about Dr. Taylor's findings. Reetz objected on hearsay and confrontation grounds, and the court sustained the objection. Outside the presence of the jury, the court revisited the issue raised in the motion in limine. The prosecutor stated Reetz had access to the materials relied upon by Dr. Seaton, and defense counsel agreed he had those materials. On the basis of relevancy, the court ruled Dr. Seaton should be questioned only on the issue of capacity to consent. The trial resumed, and Dr. Seaton testified Dr. Taylor concluded "it's inconceivable to believe that Glenda would be able to willingly and knowingly consent to sexual activity." Reetz did not object to this testimony.
The State claims Reetz failed to preserve error on his claims regarding Dr. Seaton's testimony about Dr. Taylor because he did not object to the questions about the contents of Dr. Taylor's report. The ruling on the motion in limine did not preserve error because the district court stated it would revisit the issue during the trial. See State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006) ().
Furthermore, the court did not add anything to its previous ruling during the conference outside the presence of the jury. Reetz had previously raised several objections on hearsay and Confrontation Clause grounds, and some were sustained and some were overruled. Thus, it was not clear that further objections would be of no avail. See State v. Taylor, 310 N.W.2d 174, 177 (Iowa 1981) (). Because Reetz did not object to the questions about the contents of Dr. Taylor's report, in this portion of the opinion we will address only Dr. Seaton's testimony about Kelly's report.
B. We turn to Reetz's hearsay argument as it pertains to Iowa Rule of Evidence 5.703, which provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the trial or hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Under rule 5.703, experts may base their opinion upon hearsay, and the expert may testify concerning the hearsay evidence, if it is "of a type reasonably relied upon by experts." See Brunner v. Brown, 480 N.W.2d 33, 37 (Iowa 1992). Evidence under this rule is "admitted for the limited purpose of showing the basis for the expert witnesses' opinions; it is not admissible as substantive evidence of the matters asserted therein." Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 183 (Iowa 2004). "Admitting the substance of a non-testifying expert's opinion is not a hearsay use at all." State v. Rogovich, 932 P.2d 794, 798 (Ariz. 1997). An expert may refer to the findings of another expert's report, as long as this is not the sole basis for the expert's opinion. See Sauerwin v. State, 214 S.W.3d 266, 270 (Ark. 2005).
Dr. Seaton testified he reviewed documents provided to him by other professionals in the health care field. He stated these reports were of the type that other professionals in his field would reasonably rely upon in conducting evaluations and reaching opinions. Dr. Seaton testified briefly to the conclusion in the report by Kelly. Kelly's report did not comment upon whether Glenda had the capacity to consent, and stated only there were concerns about Glenda's sexual relationship with defendant.
The evidence was admitted to show the basis for Dr. Seaton's opinions. See Gacke, 684 N.W.2d at 183. It was not admitted as substantive evidence of the matters in the report. See id. Furthermore, Dr. Seaton interviewed Glenda and performed extensive testing himself. It is clear his testimony did not serve merely "as a conduit for another non-testifying expert's opinion." See Rogovich, 932 P.2d at 798 n.1.
We conclude Dr. Seaton's testimony regarding Kelly's report did not violate the rules against hearsay.
C. Under the Sixth Amendment, a defendant has the right to confront witnesses against him. State v. Wells, 738 N.W.2d 214, 218 (Iowa 2007). Reetz asserts Dr. Seaton's testimony about Kelly's report should have been deemed inadmissible because he was unable to cross-examine Kelly.
In Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004), the United States Supreme Court determined the Confrontation Clause prohibited the admission of testimonial statements made by an unavailable witness who has not been subject to cross-examination. Statements that are nontestimonial...
To continue reading
Request your trial