Opinion
No. 2-416 / 00-2051.
Filed November 15, 2002
Appeal from the Iowa District Court for Linn County, WILLIAM L. THOMAS (pretrial discovery ruling) and KRISTIN L. HIBBS (trial and sentencing), Judges.
The defendant appeals from his conviction for second-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, and Denver Dillard, County Attorney, for appellee.
Heard by HUITINK, P.J., and ZIMMER and MILLER, JJ.
Henry Parrish, Jr. appeals from his conviction for second-degree sexual abuse. He contends (1) the district court erred in excluding evidence of false allegations of sexual abuse, and (2) the district court abused its discretion by excluding testimony relevant to his theory of defense. He argues that if error was not preserved on these claims, then his trial counsel was ineffective. We affirm.
I. BACKGROUND FACTS.
Viewing the evidence in the light most favorable to the State, the jury could have found the following facts.
Parrish was the live-in boyfriend of A.W.'s mother. On a Sunday in mid-October 1999, Parrish was watching A.W., then nine years of age, and her younger brother while their mother was working. Parrish told A.W.'s younger brother to take a shower. He then scooped A.W. up from a chair and carried her into his bedroom, where he told her to remove her clothes. Parrish also disrobed. He was wearing "Looney Tunes" underwear. He told the victim to get onto the bed. Parrish then "put his private inside [the victim's] private." She identified her private as her vagina, and his private as being between his legs. After Parrish had intercourse with A.W., she walked into the bathroom and noticed she was bleeding. Parrish told her to take a shower, and gave her one of her mother's sanitary pads. Parrish told the victim that he would kill her if she told anyone what had happened.
The victim went to school the next day. At school, A.W. was observed bleeding rather heavily. She initially stated she fell on her bicycle, causing her injury. When asked if anyone touched her inappropriately, she did not answer. A.W. continued bleeding and was taken to the hospital.
At the hospital, an examination revealed she had a gaping laceration resembling an episiotomy extending from the backside of her vagina towards her rectum. The victim had lost one quarter of her blood volume as a result of the hemorrhage. Doctors repaired her injury under general anesthesia.
The victim's hymen was intact in 1997, but was missing in October 1999. Doctors testified that the victim's injury was not self-inflicted or a straddle injury, and that a firm object had been "jammed in a very forceful manner" into the victim's vagina within the preceding twelve to forty-eight hours. In the emergency room, A.W. told a nurse that her stepdad, referring to Parrish, "puts his finger in me."
Parrish was charged with first-degree sexual abuse. At trial, Parrish denied that he had sexually abused the victim. The jury returned a verdict finding him guilty of second-degree sexual abuse. He was sentenced to a term of imprisonment not to exceed twenty-five years. Parrish appeals.
II. PRIOR FALSE ALLEGATIONS ISSUE.
Parrish first contends the trial court erred in excluding evidence of the child victim's prior false allegations of sexual abuse. He maintains that Iowa Rule of Evidence 5.412 does not bar admission of this evidence. Commonly referred to as the "rape shield law," rule 5.412 provides that evidence of a sexual abuse victim's past sexual behavior is generally inadmissible at trial. Parrish asserts that evidence of false allegations is constitutionally required to be admitted under the exception in rule 5.412( b)(1). He specifically contends the court's refusal to admit such evidence impinged upon his right to confrontation and meaningful cross-examination.
We begin our analysis by expressing some concern about the manner in which Parrish has framed this issue on appeal. Although the defendant refers to the trial court's exclusion of evidence, his actual challenge is directed to the propriety of a discovery ruling made by the district court rather than to the exclusion of evidence at trial.
The defendant deposed A.W. in February of 2000. Prior to her deposition, a dispute arose concerning whether the child should be questioned on the subject of prior false allegations of sexual abuse. The State objected to that line of questioning under rule 5.412. The parties made a brief record and agreed to defer that issue until later. The deposition then proceeded.
Three months later, Parrish moved for additional discovery. He requested that he be allowed to conduct a second discovery deposition of the victim to ask her whether she had made prior allegations of sexual abuse against certain specified people, whether the abuse took place or whether the allegations were false, and whether she had recanted the allegations. He argued the information was not subject to rule 5.412 and was relevant and material to his ability to prepare for trial.
Following hearing, the district court denied defendant's motion for an additional discovery deposition. In its ruling, the court discussed the rape shield law and also pointed out that Parrish was free to present the testimony of the people he mentioned during A.W.'s original deposition in February.
The trial court ruled in relevant part as follows:
I conclude that Iowa Rule of Evidence 412 does not preclude trial evidence concerning false allegations of sexual abuse. That determination does not answer the question whether such evidence, if offered, would be admissible, under some other rule, say, as an attack on character. Nor does that determination answer the more immediate question, whether such evidence may be sought directly from the victim in a deposition.
First, I believe that Iowa Rule of Evidence 412 does preclude discovery of matters which are otherwise precluded by the rule of evidence. Any other decision would mean that the victim could be subjected to questioning about prior allegations of sexual abuse and the truth of those allegations, i.e., her sexual behavior, when it would be obvious to all that the evidence could never be put before the jury. I do not believe that the drafters of the rule contemplated that their work could be so easily avoided.
Second, I believe that this restriction does not prejudice the defendant in any manner. If the defendant knows of people concerning whom this complaining witness has made false allegations, then he may simply seek to present their testimony. The record made at the deposition in February indicates that the defendant believes he has such knowledge. There defendant's other attorney, Mr. Grinde, stated: "One of the topics is whether she has ever made any prior false allegation or allegation of sexual abuse towards other individuals and later recanted those allegations. There was a list of people that I went through . . . including a Mr. Davis, Mr. Manuel, Billy Stevenson and perhaps others . . ."
Third, such statements are often not allowed into evidence, even when there is third party evidence of false statements. The reasons include the desire to try the issues in the case, and not one or more other cases not charged. (Citation omitted.)
Fourth, the courts do not appear to favor such evidence when it is a general attack on the credibility of the complaining witness. (Citation omitted.)
We review discovery matters for the abuse of discretion. State v. Froning, 328 N.W.2d 333, 335 (Iowa 1982). We do not reverse an error in the administration of discovery rules unless the substantial rights of the defendant were prejudiced. Id. at 335-36. The trial court is vested with broad discretion in ruling on discovery matters. Munzenmaier v. City of Cedar Rapids, 449 N.W.2d 369, 371 (Iowa 1989).
On appeal, both the State and the defendant are critical of some aspects of the trial court's conclusions regarding the rape shield law and its application here. Regardless of whether the court's analysis of rule 5.412 was correct, we conclude the court did not abuse its discretion in denying a second deposition of the child victim. In his motion for additional deposition testimony, Parrish specifically stated that he wished to question the victim as to "whether she made prior allegations of sexual abuse against certain specified people." His counsel stated during the first deposition,
In the context of this case, we find it unnecessary to address the issue of whether prior false allegations of rape constitute evidence of sexual behavior protected by the rape shield law. Our supreme court has not spoken definitively on this issue. See State v. Alvey, 458 N.W.2d 850, 852 (Iowa 1990) (concluding it did not need to resolve whether past false claims of rape fall within prohibition of rape shield law because question presented was one of relevancy).
One of the topics is whether she has ever made any prior false allegation or allegations of sexual abuse towards other individuals and later recanted those allegations. There was a list of people that I went through . . . including a Mr. Davis, Mr. Manuel, Billy Stevenson and perhaps others.
These statements indicate that Parrish actually had in mind certain specific people who may have been the victims of false allegations. The information he sought from A.W. was available from other sources. Under the circumstances presented here, we conclude the trial court did not abuse its discretion in denying a second deposition. In reaching this conclusion, we do not mean to suggest that a defendant may never obtain discovery of false allegations of sexual abuse in criminal proceedings. We recognize that there will be cases where such discovery is appropriate.
We also conclude no substantial rights of Parrish were violated by the court's discovery ruling. At trial, the victim testified before the jury that she had recanted a prior allegation of sexual abuse against Parrish in 1997. This attacks her credibility more than if she had previously recanted allegations against others.
Parrish also claims the court's refusal to allow pretrial deposition questioning on this subject violated his constitutional right to confront witnesses and disallowed him meaningful cross-examination. He failed to preserve error on this issue by not raising it before the district court. Thus, we consider his claim as an ineffective-assistance-of-counsel claim.
We reviewclaims of ineffective assistance of counsel de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). In reviewing such claims de novo, we give weight to the lower court's findings concerning witness credibility. Iowa R.App.P. 6.14(6)( g); Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984). Parrish must demonstrate both ineffective assistance and prejudice to prevail on his claim that trial counsel was ineffective. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). Both elements must be proven by a preponderance of the evidence. Id. We affirm if either element is lacking. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
To establish the first prong, Parrish has to prove that his trial attorney performed below the standard demanded of a reasonably competent attorney. Ledezma, 626 N.W.2d at 142. Once ineffective assistance is proven, Parrish must establish that the error caused prejudice. Id. at 143. To sustain this burden, he is required to demonstrate "`that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).
We conclude Parrish had no Confrontation Clause rights that were violated during pretrial discovery. State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000) (rejecting defendant's challenge to trial court's refusal to allow pretrial discovery on basis of Confrontation Clause); Froning, 328 N.W.2d at 336-37 (holding that denial of defendant's pretrial discovery motion did not deprive him of his Sixth Amendment right to confrontation). Therefore, his attorney breached no duty in failing to raise this meritless issue before the district court. Greene, 592 N.W.2d at 29.
We affirm the trial court on this issue.
III. THEORY OF DEFENSE ISSUE.
Parrish asserts that the trial court abused its discretion by excluding relevant testimony, namely evidence of the neighborhood boys' sexually charged conduct with the victim. He contends this evidence was relevant to his theory of defense. The trial court prevented Parrish from detailing the antics of Billy Stevenson or other neighborhood boys, including the watching of pornographic films with A.W., any attempts to take off her pants, or inappropriate wrestling with her.
On appeal, Parrish suggests this evidence was relevant to show the neighborhood boys were the source of A.W.'s injury. He acknowledges his trial counsel failed to raise this specific claim before the trial court, and thus may not have preserved error on this issue. In an offer of proof to the district court regarding this evidence, trial counsel stated he was not attempting to prove that any of the neighborhood boys were responsible for A.W.'s injury. Counsel informed the trial court that the evidence was being offered to demonstrate the defendant's interest in protecting the victim from this type of behavior. The trial court indicated that defense counsel could explore the issue of Parrish's protectiveness, but excluded testimony of A.W.'s prior sexual victimization citing the rape shield law. The court also noted that the sexual antics of the neighborhood boys was not probative, and that any marginal probative value would be outweighed by its prejudicial effect and confusion of the issue.
"Our error preservation rule requires that issues must be presented to and passed upon by the district court before they can be raised and decided on appeal." State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995). We agree that error was not preserved on the theory of admissibility the defendant now asserts on appeal. As a result, we will review Parrish's alternative claim that his trial counsel was ineffective in failing to preserve error.
We conclude Parrish has not shown the requisite prejudice. He is unable to show that the result of his proceeding would have been different had the evidence of the boys' sexual conduct been presented to the jury. The jury heard that Parrish contended someone else had been the perpetrator of the abuse on the victim. He stated, "I told [the police] about some of the stuff that was going on." He testified that the victim was not allowed to play with some neighborhood kids because they were inappropriate.
The State presented evidence that the abuse occurred while the victim was in Parrish's care. His palm prints and the victim's blood were on her mattress pad. The victim identified Parrish, and not any neighborhood boys, as the perpetrator. We conclude that the admission of evidence specifically outlining the behavior of the neighborhood boys would not have changed the outcome of Parrish's trial. We affirm the trial court on this issue.
IV. CONCLUSION.
We conclude the trial court did not abuse its discretion in denying a second discovery deposition of the victim. We further conclude the court's ruling violated no substantial rights of the defendant. We determine Parrish is unable to show the requisite prejudice to establish that his trial counsel was ineffective in failing to preserve error on his claim involving evidence of the neighborhood boys' sexual conduct toward the victim.