State v. Weaver
| Decision Date | 22 March 2000 |
| Docket Number | No. 98-1214.,98-1214. |
| Citation | 608 N.W.2d 797 |
| Parties | STATE of Iowa, Appellee, v. Ricky Lee WEAVER, Appellant. |
| Court | Iowa Supreme Court |
Gaylen V. Hassman of Engelbrecht, Ackerman & Hassman, Waverly, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Charles N. Thoman, Assistant Attorneys General, and Mark R. Cozine, County Attorney, for appellee.
Considered en banc.
Ricky Lee Weaver was convicted of second-degree sexual abuse. See Iowa Code §§ 709.1(3), 709.3(2) (1997). The conviction was reversed by the court of appeals, and we granted the State's application for further review. We vacate the court of appeals decision and affirm the judgment of the district court.
Ramona Weaver's daughter, Kendra, was the alleged victim of sexual abuse. This defendant, charged with the abuse, was married to Kendra's mother, but he is not the father of Kendra. The victim was born in December 1992. Ramona and the defendant are the parents of Kendra's half-sister, J.W., who was born in 1996. Weaver, Ramona, and the two daughters lived together in a modular home near Cherokee. The court found the following facts surrounding the event.
When Ramona returned home from work on Friday, May 16, 1997, Weaver was there with the girls, whom he had brought home from their baby-sitter. Ramona took the girls four-wheeling in the country, followed by an outing in a pizza restaurant. Ramona testified that the victim appeared to be normal at that time; any pelvic injury would be readily apparent, according to her. Ramona put the girls to bed at 9 p.m. When she put Kendra to bed, she did not see anything unusual about her and specifically saw no vaginal bleeding. Weaver returned home at 10 or 11 p.m.
The next day Ramona got up about 6 or 6:30 a.m. and left for work. The defendant was left with the girls. Ramona came home from work about 3 p.m. When she came home, her half-sister, Sheila, Sheila's husband, and Sheila's daughter were at the trailer with Weaver and Ramona's two daughters, including Kendra. Sheila and her family, who had been there since about 2 or 2:30 p.m. left soon after Ramona came home. About 4:30 p.m., Weaver told Ramona that Kendra had been bleeding from the vaginal area but said he had done nothing to cause it. He left immediately for his parents' farm.
Ramona observed vaginal bleeding and blood on Kendra's underpants. She changed Kendra's clothes and went to look for Weaver. When she found him, she asked him what had happened, and he said he did not know. When Weaver came home, he and Ramona took Kendra to a hospital in Cherokee, then to a hospital in Sioux City. A sexual assault evidence collection kit revealed Kendra had been the victim of sexual abuse. DNA tests were done on Weaver and the victim.
Dr. Michael Jung, medical director of the Marian Health Center's child protection center, had been involved in at least 800 cases of sexual abuse evaluations. He examined Kendra in the Sioux City hospital and observed fresh blood in Kendra's genital area, with continued bleeding. His examination revealed a complete tear through the hymen to the muscle that closes the sphincter. The tear was over an inch long and required sutures to repair. Dr. Jung testified that in his opinion the tear was caused by a penetrating object large enough to cause the tear. He testified the object would have been at least two fingers or an erect adult penis. In his opinion, the injury was fresh, occurring within the previous twenty-four hours.
Weaver was arrested and examined by a doctor. Blood samples and penile swabs were obtained. Pursuant to a warrant, officers searched Weaver's home, and Weaver's underpants were obtained from the county jail where he was in custody. Blood stains were found on Weaver's sweatpants and underwear. Blood stains were also found on the swab of Weaver's penis.
Kendra's DNA was found on the sweatpants but swabs of Weaver's penis and Kendra's underwear were not sufficient to identify the DNA on them. The doctor's visual examination of Weaver revealed no sign of injuries that could have caused his own bleeding.
Weaver was charged with second-degree sexual abuse. He waived his right to a jury trial, and the case was tried to the court. The court, in a detailed ruling, found the State had proven the elements of the offense beyond a reasonable doubt.
Weaver attacks his conviction on seven grounds: (1) the court's denial of his application to depose the victim, (2) sufficiency of the evidence to support the conviction, (3) admission of out-of-court statements by the victim's mother, (4) admission of statements by the defendant, (5) admission of testimony by a sheriff's deputy explaining why he had not taken fingernail scrapings from the defendant, (6) admission of "verbal and nonverbal" statements of the victim, and (7) admission of DNA evidence.
The court denied Weaver's pretrial application to take the deposition of the victim. His application for authority to take the deposition is unclear as to the basis for it; it simply stated:
3. There is an additional witness who is not listed in the minutes that possess[es] evidence both material and favorable to the defendant which is not merely cumulative.
The statement in paragraph three of the application (that the proposed deponent was not listed as a witness in the minutes of testimony) suggests Weaver was relying on Iowa Rule of Criminal Procedure 12(2) under which a court may authorize the deposition of witnesses not listed in the minutes under "special circumstances." However, Weaver does not expressly state in his application that rule 12 is the basis for his application. Nor does he mention any of the specific constitutional claims he now asserts. His attorney merely alluded to the United States Constitution in his oral argument in support of his application. Although we have serious reservations about Weaver's preservation of most of the arguments he now presents, we address the merits of his four assignments of error based on the court's refusal to order pretrial discovery of the victim.
Weaver challenges the court's refusal to allow pretrial discovery on four bases: (1) Iowa Rule of Criminal Procedure 12, (2) the Compulsory Process Clause, (3) the Confrontation Clause of the Sixth Amendment to the United States Constitution, and (4) the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
A. Iowa Rule of Criminal Procedure 12. Iowa Rule of Criminal Procedure 12 allows for a criminal defendant to take the depositions of certain individuals. Subsection 1 provides a defendant the right to depose "all witnesses listed by the state on the indictment or information." This proposed deponent, the victim, was not listed in the minutes of testimony, so rule 12(1) is inapplicable. Subsection 2 of rule 12 provides for depositions of witnesses not listed in the minutes. Rule 12(2) provides:
Subsection 2 is inapplicable in this case because the rule itself makes it clear it is to be used to perpetuate testimony, not for discovery as Weaver sought to use it. Rule 12(2) allows testimony of a witness "not included in subsection 1 [] or 3 [disclosure of defense witnesses] of this rule, for use at trial ...." (Emphasis added.)
In discussing rule 12(2), we have also said:
To trigger the right of compulsory process, a defendant must make a plausible showing the testimony of the individual otherwise unavailable to the defendant was both material and favorable to his defense. This requirement is embodied in Iowa Rule of Criminal Procedure 12, which, although allowing a defendant to depose all witnesses listed by the State on its trial information, requires a defendant to establish the necessity for deposing other persons.
State v. Wagner, 410 N.W.2d 207, 213 (Iowa 1987) (citation omitted) (emphasis added).
In this case, the defendant did not claim the victim was unavailable to testify, and his general statement in his application for discovery that "the interest of justice" requires an order for deposition is insufficient to justify a discovery order under rule 12.
B. The Sixth Amendment issues. Weaver's attorney alluded to his client's Sixth Amendment rights at the hearing on his application for discovery, although it was not a part of his application. Assuming the issues were adequately raised, we proceed to discuss them.
1. Compulsory process. The United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor ....
Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (19...
To continue reading
Request your trial
-
State v. Myers
...Scope of Review. We review a claim of insufficient evidence in a bench trial just as we do in a jury trial. State v. Weaver , 608 N.W.2d 797, 803 (Iowa 2000). "If the verdict is supported by substantial evidence, we will affirm." Id. We determine whether substantial evidence supports the ve......
-
State v. Russell
...includes the right to compel a witness's presence in the courtroom and the right to offer testimony of witnesses. State v. Weaver , 608 N.W.2d 797, 802 (Iowa 2000). The Supreme Court has described the right to compulsory process as follows:The right to offer the testimony of witnesses, and ......
-
State v. Clark
...has no due process right to pretrial discovery. Jones v. Iowa Dist. Ct., 620 N.W.2d 242, 243 (Iowa 2000) (citing State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000)); accord United States v. Adcock, 558 F.2d 397, 406 (8th Cir.1977), (rejecting claim for broad discovery rights under the Sixth A......
-
State v. Sinclair
...in a jury-waived case as we would a jury verdict: If the verdict is supported by substantial evidence, we will affirm. State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). Sinclair challenges the sufficiency of the evidence to convict him of the following: second-degree kidnapping, attempted m......