Opinion
No. 5-822 / 04-0021
Filed February 15, 2006
Appeal from the Iowa District Court for Black Hawk County, Leonard D. Lybbert, Judge.
Michael Navarro Jones appeals from his conviction and sentence for sexual abuse in the third degree. REVERSED AND REMANDED FOR NEW TRIAL.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney Genral, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Michael Navarro Jones appeals from his conviction and sentence for sexual abuse in the third degree in violation of Iowa Code section 709.4(1) (2003).
I. Background Facts and Proceedings.
On February 7, 2003, Jones was charged with sexual abuse in the third degree in violation of Iowa Code section 709.4(1). The State amended the trial information and charged Jones with sexual abuse in the third degree, as a habitual offender, in violation of Iowa Code sections 709.4(1) and 902.8, and burglary in the first degree in violation of sections 713.1 and 713.3(c) and (d).
The charges against Jones were based on Kelley Putney's allegations that Jones sexually abused her at her apartment on January 29, 2003. Jones denied Putney's allegations and claimed both his presence there and any sex acts with Putney were consensual.
The minutes of testimony attached to the trial information indicated Putney told police officers she had been sexually abused by three other men in the past. Because Jones claimed these allegations were false, he filed two pretrial motions requesting the court to admit evidence of Putney's false allegations of sexual abuse. Jones's attorney made professional statements to the court that he obtained an Iowa Department of Human Services report indicating one of Putney's allegations of sexual abuse was unfounded. He also stated that there were witnesses who would or had testified concerning Putney's prior allegations of sexual abuse by others. The trial court's ruling on Jones's motions states:
THE COURT: I don't know that we've addressed, other than you stating it, evidence that she herself claimed that she had been raped three other times, including her father and once while she was a child, apparently. That clearly is a sexual act between others other than the defendant, and it seems to me that that falls within the rape shield law. And so my ruling on that is that the defendant will not be permitted to introduce that evidence. You may wish to on the motions in limine not only make your motion and get turned down on it, but you've got to then raise it at trial —
MR. HALL: Yes, Your Honor.
THE COURT: — by making an offer of proof, if that's appropriate. Sometimes it isn't.
MR. HALL: Yes, Your Honor.
THE COURT: That's those three instances.
Jones also filed a motion to suppress incriminating statements he made to a Waterloo police officer during an interview at the Waterloo Police Department. Jones argued the officer's failure to read him a Miranda advisory prior to the interview required exclusion of any statements or related evidence obtained as a result of his statements. The trial court denied Jones's motion to suppress after finding Jones was not in custody at the time the challenged statements were made.
At trial Putney testified that Jones showed up unannounced at her apartment on January 29, 2003. She also testified that over her resistance Jones kissed her, lifted up her shirt, fondled her, unbuttoned her pants, and forced her to have sexual intercourse with him. The State's case also included testimony from several witnesses who spoke with Putney shortly after her encounter with Jones. They described Putney as incomprehensible, hysterical, and very upset.
After the State rested and before the defendant's presentation of evidence, counsel informed the court the defense intended to call Eric McLaughlin to testify that Putney's motives for accusing Jones of sexual abuse included receipt of restitution money. Counsel further explained that he did not cross-examine Putney on these issues because he was not aware of McLaughlin's proposed testimony until after the State had rested its case in chief. After initially conceding admissibility of this testimony, the State subsequently moved to exclude the evidence on multiple grounds including relevancy and waste of time. As a result, Jones requested the court permit him to recall Putney to cross-examine her on this issue. The court initially granted Jones's request to recall Putney for additional cross-examination.
Prior to ruling on the State's objection, the court allowed Jones to make an offer of proof. The resulting offer of proof included the following testimony by McLaughlin:
Q. Can you tell the court what the motive behind Kelli maintaining she was raped? A. The reason, she told me . . . that there was some money involved if she would win her case and that's all she told me about that. . . .
Q. Why do you believe that's a reason for her to say she's been raped.? A. Because most of the time she's saying she's going out looking for a job. She never had a job when I was with her, and I was paying all her bills; and she told me she wanted to help out, and this was going to be the way that she could help me out.
On cross-examination during the offer of proof, McLaughlin testified:
Q. So was Kelli Putney denying that she'd been raped? A. No.
The court's ruling sustaining the objection states:
Well, there's certainly no direct connection. It would have to at best be an implied improper motive, because as Mr. Katcher says, it would be relevant if there's any evidence to show that this was a fabrication, that she really had consented to the sex act and fabricated the against-her-will portion of it. The mere fact that she maybe made a statement about paying McLaughlin back out of any money she got out of the victim's impact bill, which is a matter of law rather than anything else, it just doesn't cut any ice.
So I'm not — in view of that, I'm not going to allow in further testimony on the thing.
Although the trial court had earlier ruled that Jones could recall Putney for further cross-examination, the court's final ruling on the admissibility of McLaughlin's testimony precluded Jones from recalling Putney.
Jones testified that contrary to Putney's claims, she seduced him and he had consensual intercourse with her on January 27, 2003. Jones also claimed Putney accused him of sexually abusing her to explain a potentially unwanted pregnancy to her fiancé. Jones also testified, without objection or motion to strike by the State, that Putney made at least three prior allegations of sexual abuse against others in the past as described in the minutes of testimony.
The jury found Jones guilty of sexual abuse in the third degree and not guilty of burglary in the first degree. On October 10, 2003, the trial court entered judgment in accordance with the verdict and sentenced Jones to an indeterminate term of incarceration not to exceed fifteen years.
On appeal, Jones raises the following issues:
I.The trial court erred when it found that rule 5.412(B) prohibited evidence of the alleged victim's prior false sexual abuse allegations. Prior false claims of sexual activity are admissible on the issue of credibility.
II.Trial counsel was ineffective for allowing evidence of Jones's incarceration, thereby informing the jury that he had a criminal history.
Jones makes the following arguments in his pro se brief:
I. District court erred not allowing psychological examination, evidence of false claim of rapes, and specific act of untruthfulness.
II. District court erred by not granting motion to suppress on Miranda violation.
III. Ineffective assistance of trial attorney by his failure to object or request an instruction on prior convictions and bad acts.
IV. District court erred in failing to grant motion for judgment of acquittal due to insignificant evidence to prove sexual abuse.
II. Standard of Review.
Our review is for correction of errors at law. Iowa R. App. P. 6.4. We review the admissibility of rule 5.412 evidence for abuse of discretion. State v. Baker, 568 N.W.2d 493, 496 (Iowa 1997) (citing State v. Gettier, 438 N.W.2d 1, 3 (Iowa 1989)). "We find an abuse of discretion only when the district court exercises its discretion on grounds for reasons clearly untenable or to an extent clearly unreasonable." Baker, 568 N.W.2d at 496 (citing State v. Knox, 536 N.W.2d 735, 738 (Iowa 1995)).
III. Jones's Pro Se Brief.
We initially note that Jones has failed to comply with the Iowa Rules of Appellate Procedure in his pro se brief. Specifically, Jones has failed to begin each division of his brief with a discussion of the scope of appellate review or state how and where in the record the issue was raised and decided. See Iowa R. App. P. 6.14(1)( f). Jones has also failed to file an appendix or supplemental appendix containing a file-stamped copy or other parts of the record or transcript containing the rulings on his motion to suppress incriminatory statements and motion for judgment of acquittal. See Iowa R. App. P. 6.15(1)( a).
A party's failure to comply with the rules of appellate procedure may result in a waiver of some or all of the issues raised on appeal. Ingraham v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974). If, however, the failure to comply does not require us to undertake the party's research and advocacy or assume a partisan role, we will decide the issues raised on appeal. State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999). We accordingly limit our review to issues that were raised and ruled on below and do not require us to assume a partisan role. Id.; see also Hanson v. Harvey's Casino Hotel, 652 N.W.2d 841, 843 (Iowa Ct.App. 2002).
IV. Cross-Examination/Impeachment of Complaining Witness.
As noted earlier, the trial court reversed an earlier ruling which would have allowed Jones to cross-examine Putney concerning her financial interest in the outcome of this case. The court reasoned this evidence was irrelevant in the absence of any evidence Putney fabricated the allegations against Jones or consented to a sex act with him. We disagree.
A defendant's right to cross-examine a witness is a primary interest secured by the Confrontation Clause of the Sixth Amendment, State v. Durrell, 300 N.W.2d 134, 137 (Iowa 1981), made applicable to the states by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 926 (1965). "Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. . . ." Iowa R. Evid. 5.611( b) (emphasis added). The credibility of a witness may be attacked on cross-examination by several recognized methods including prior inconsistent statements, or motives of pecuniary interest whether legitimate or corrupt. State v. Peterson, 219 N.W.2d 665, 671 (Iowa 1976). A party is given "reasonable latitude in cross-examination," Durrell, 300 N.W.2d at 173, particularly when a defendant charged with a grave offense, cross-examines the State's witness. State v. Carney, 236 N.W.2d 44, 46 (Iowa 1975). The trial court, however, still determines the scope of cross-examination exercising its sound discretion. Durrell, 300 N.W.2d at 134. The trial court's discretion should not be exercised to exclude matters "vital and proper to the defense of one accused." Carney, 236 N.W.2d at 46.
The crucial fact issue at trial was whether Jones's sex acts with Putney were consensual. Evidence of Putney's financial interest in the outcome of this case bore directly on the credibility of her claims that she did not consent to a sex act with Jones. It was also relevant to Jones's claim that Putney falsely accused him of sexual abuse to preserve her relationship with her fiancé. The trial judge's contrary findings were in error, and it was an abuse of discretion to deny Jones's request to recall Putney for further cross-examination on this issue.
Even though we have found an abuse of discretion, we need not reverse unless Jones's rights have been injuriously affected by the error or he has suffered a miscarriage of justice. State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004); see also Iowa R. Evid. 5.103( a). Prejudice is presumed unless the record affirmatively establishes otherwise. Sullivan, 679 N.W.2d at 30. In this context, we have been instructed to consider:
(1) whether the witness was important or whether [her] testimony was incidental to the issue and (2) whether the volume of direct evidence was so overwhelming that it was sufficient apart from the testimony of the witness sought to be cross-examined.
Carney, 236 N.W.2d at 46 (quoting State v. Sampson, 248 Iowa 458, 461, 79 N.W.2d 210, 212 (1956)).
Based on our review of the record, we are unable to say Jones was not prejudiced by the trial court's ruling. In the absence of other direct evidence, the State's case against Jones was not overwhelming and was entirely dependent on the jury's assessment of the credibility of the witnesses' conflicting claims on the issue of consent. Under these circumstances, we find Jones's substantial rights were injuriously affected by the trial court's ruling. The resulting error necessitates reversal of Jones's conviction and a remand of this case for a new trial.
We decline to address the remaining issues because they are controlled by the foregoing, waived by failure to preserve error below, or waived by failure to comply with the earlier cited rules of appellate procedure. The judgment of the district court is reversed and remanded for a new trial.