State v. Siemer

• Citation: 454 N.W.2d 857
• Decision Date: 18 April 1990
• Docket Number: No. 88-1899,88-1899
• Parties: STATE of Iowa, Appellee, v. Larry Thomas SIEMER, Appellant.
• Court: United States State Supreme Court of Iowa

Page 857

454 N.W.2d 857

STATE of Iowa, Appellee, v. Larry Thomas SIEMER, Appellant.

No. 88-1899.

Supreme Court of Iowa.

April 18, 1990.

Patricia M. Hulting of Roehrick, Hulting & Moisan, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Ann E. Brenden, Assistant Attorney General, James Smith, County Atty., and Melodee Hanes, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, CARTER, and NEUMAN, JJ.

NEUMAN, Justice.

The principal question posed by this appeal is whether the armor of parental authority is strong enough to shield a defendant from prosecution and conviction for the criminal confinement and torture of a child. We think not, and affirm defendant Larry Siemer's conviction for first-degree kidnapping.

I. Background facts and proceedings.

Defendant Larry Siemer is the live-in boyfriend of Donna Simmons, and together they were charged in June 1988 with the kidnapping of Donna's seven-year-old son, Tracey. ¹ The charge arose out of events beginning in December 1987 and continuing until April 1988 when Tracey was rescued by Des Moines police and child protection workers. The unspeakable horror of the case is revealed through the testimony of the young victim, his ten-year-old sister April, and the authorities who finally came to Tracey's aid.

The evidence discloses that Siemer began physically abusing Tracey in the fall of 1987. The abuse escalated after Christmas, at which time Tracey was banished to the furnace room of the basement. The room's entrance was covered with a dirty blanket, its windows were boarded over, and there was no light. There Siemer handcuffed Tracey to the rusty box springs that served as his bed. Tracey had no access to a toilet and was forced to lie in his own waste. A make-shift toilet made of a bucket and chair was eventually placed next to the bed so that Tracey could relieve himself without being freed from the handcuffs.

Siemer instructed April to handcuff Tracey to his bed every day after school. On Siemer's orders she also released him every morning at 6:30 a.m. to attend school. Tracey spent the weekends locked to his bed in the basement. Siemer told April to feed Tracey "a little food" each day but otherwise to "forget about him."

Tracey testified that from January through April Siemer beat him with a board and belt, hung him naked from a pipe in the ceiling, submerged him in ice water, cut him with a knife across his buttocks, fed him cat food, poured scalding hot water over his lower abdomen and genitals, and threatened him with further abuse if he dared reveal his plight. Medical experts testified that Tracey suffered permanent injuries from the scalding.

At no time did Tracey's mother, Donna Simmons, intervene on his behalf. April was sworn on the pain of her own punishment to keep Siemer's "secret." Eventually, one of April's playmates saw Tracey in the basement and told her parents who alerted authorities. On the day Tracey was rescued, he was found huddled under filthy blankets in his dark and foul-smelling dungeon, shaking uncontrollably from the pain of second-degree burns to his genitals.

Tracey's rescue predictably attracted wide media coverage. Iowa's only statewide newspaper, the Des Moines Register, extensively covered every aspect of the case. Typical headlines read "Des Moines Man Charged in Torture of Boy, 7," "Grandfather Tells of Threats in Torture Case," and "Mother Accused of Aiding Fiance in Torturing Seven-Year-Old." The record contains fourteen articles, including two from the newspaper's front page, and fifty-three television and radio broadcasts which directly featured the case. The media coverage tapered off during June and July, ceased in August, and flared up again in September as the trial date approached. The trial began on October 12, 1988.

Prior to trial, Siemer moved for the appointment of a communication expert to assess the impact of the news reporting on the attitudes of prospective jurors. Following denial of that motion, he moved for a change of venue on the ground that a fair trial could not be obtained in Polk County. That motion was likewise overruled, as well as a renewal of the same motion just prior to trial.

When jury selection commenced, all but one of the original panel of thirty-two jurors reported having heard of the case. Twenty of the thirty-two members of the panel admitted responding negatively to allegations that a child had been beaten, handcuffed, and confined in a damp basement. When pressed by defense counsel about their negative feelings, however, many equivocated. Several jurors attempted to explain what they perceived to be the difference between their reaction to the original charges and their duty not to prejudge the defendant. The following colloquy with defense counsel exemplifies the jurors' attitude and counsel's resistance to it:

Q. Just by virtue of walking in this courtroom you've changed your mind?

A. No. When you first read an article, and not that I believe everything that I read in the Register, but when you read an article and it's something that happens to a child or anybody, anything that happens, that happens to be awful, that you just automatically think oh, this is bad, and then you're put in a position that us as juror that it's up to us to decide if a person is guilty. Then I think you think twice of it. You don't understand what I'm saying.

Q. Well, that's fine. It doesn't matter. I want you to say whatever you really feel.

A. Well, that's the way I feel.

The first day of voir dire, counsel moved to strike the entire panel because of the negative attitudes held by twenty of the thirty-two members of the panel. The court denied the motion but thereafter permitted counsel to voir dire the jurors individually. At the close of the second day counsel renewed his motion to strike the entire panel, citing the prejudicial impact of the news reporting. The motion was denied.

A total of twenty-three jurors were dismissed for cause. Eleven were dismissed when they admitted that the nature of the charges would hinder their ability to judge impartially. Three were dismissed who had read newspaper accounts of plea negotiations during the first and second days of voir dire. Two were dismissed because of their familiarity with parties linked to the case. Seven jurors who held negative impressions were dismissed even though several indicated that their negativism related to the allegations themselves and not to the defendant, or that they were capable of setting aside those negative feelings and deciding the case solely on the evidence presented.

Of the twelve jurors who were ultimately seated, only one had not heard of the case. Six of the eleven jurors familiar with the case had formed no opinion toward the defendant. One juror reported being "shocked" by the allegations but felt he was capable of setting aside his initial reaction. Two other jurors who originally held a negative impression stated that their oaths as jurors would assure their commitment to judge impartially. One juror changed her reaction from negative to "no opinion" based on the fact that she did not have enough information about the case. The last juror stated that although she believed the crime was "terrible," she had not given a thought to the "individual people" involved.

At the conclusion of voir dire, defense counsel again moved for change of venue. The court denied the motion based on defendant's failure to establish either actual or presumptive prejudice. As a last resort, the defendant moved to waive his right to a jury trial. The State resisted the motion. The court rejected defendant's request because Iowa Rule of Criminal Procedure 16(1) does not permit a defendant to waive a jury within ten days of trial without the State's consent.

The jury found Siemer guilty as charged. On appeal, Siemer seeks reversal on the following grounds: (1) the trial court's refusal to change venue denied him a fair trial; (2) because he stood in loco parentis with the victim, he cannot be convicted of kidnapping as a matter of law; (3) the State failed to prove that Tracey's confinement was more than incidental to the underlying crime of child abuse; and (4) the rule requiring prosecutorial consent to waive a jury within ten days of trial violates defendant's constitutional right to trial by jury. We shall consider the arguments in the order presented.

II. Change of venue.

Iowa Rule of Criminal Procedure 10(10)(b) provides that upon motion of the defendant, the trial court may transfer venue to another county

[i]f the court is satisfied ... that such degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county....

This right to a fair trial by impartial jurors has its underpinnings in our state and federal constitutions. Irvin v. Dowd, 366 U.S. 717, 721, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961); State v. Walters, 426 N.W.2d 136, 138 (Iowa 1988). Accordingly, we review de novo the record made for purposes of challenging the denial of a motion for change of venue. State v. Gavin, 360 N.W.2d 817, 818 (Iowa 1985). Reversal is warranted only where the trial court's decision demonstrates an abuse of discretion. State v. Harris, 436 N.W.2d 364, 367 (Iowa 1989); Walters, 426 N.W.2d at 138; State v. Robinson, 389 N.W.2d 401, 403 (Iowa 1986).

A defendant relying on jury prejudice as a ground for reversal must show (1) publicity attending the trial that is so pervasive and inflammatory that prejudice must be presumed, or (2) actual prejudice on the part of the jury. State v. Spargo, 364 N.W.2d 203, 207 (Iowa 1985). Siemer claims that the record supports reversal on either ground. We cannot agree.

To sustain a claim of presumptive prejudice, the defendant must prove that the publicity attending the case was "pervasive and inflammatory." H...