Record and brief — Coy v. Iowa

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86-6757-ASY

GRANTED

1987

Date

Title: John Avery Coy, Appellant

No.

Status: Vv.

Iowa

Docketed: Court: Supreme Court of Iowa

April 15,

Counsel fcr appellant: Papak,Paul J.

Counsel for appellee: Allen,Gordon E.

Entry Note Proceedings and Orders

17 Mar Application for an extension of time to docket an appeal

filed (A-657), and order granting same until April

18 Mar 16, 1987 by Blackmun, J., on March 7, 1987.

1 Apr G Statement as to jurisdiction and motion for leave to proceed

in forma pauperis filed.

3 May Motion of appellee Iowa to dismiss filed.

4 May DISTRIBUTED. June 4, 1987

5 May X Reply brief of appellant John A. Coy filed.

6 Jun REDISTRIBUTED. June 25, 1987

8 Jun PROBABLE JURISDICTION NOTED.

KKK EKER KEKE REE EEE EEK

9 Jul Motion of appellant for appointment of counsel filed.

11 Jul DISTRIBUTED. Sept. 28, 1987 (Motion for appointment of

counsel).

10 Jul REDISTRIBUTED. September 28, 1987

13 Jul Order extending time to file brief of appellant on the

merits until August 24, 1987.

14 Aug Motion of appellant to seal the record filed.

15 Aug Joint appendix filed.

16 Aug DISTRIBUTED. Sept. 28, 1987. (Motion of appellant to

seal the record).

19 Aug Order further extending time to file brief of appellant

on the merits until September 7, 1987.

20 Sep Brief amicus curiae of American Bar Assn. filed.

21 Sep Brief amicus curiae of Natl. Assn. of Criminal Defense

Lawyers filed.

22 Sep Brief of appellant John A. Coy fiied.

24 Sep Order extending time to file brief of appeliee on the

merits until November 9, 1987.

28 Oct Motion of appellant to seal the record GRANTED.

26 Oct Motion for appointment of counsel GRANTED and it is

ordered that Paul J. Papak, Esquire, of Iowa City, Iowa,

is appointed to serve as counsel for the appellant in

this case.

27 Oct Order further extending time to file brief of appellee

on the merits until November 23, 1987.

32 Nov Brief amicus curiae of Judge Charles B. Schudson filed.

28 Nov Brief amici curiae of Connecticut, et al. filed.

30 Nov Brief amici curise of Kentucky, et al. filed.

29 Nov Brief of appellee Iowa filed.

31 Nov SET FOR ARGUMENT. Wednesday, January 13, 1988. (3rd

No. 86-6757-ASY

Entry Date Note Proceedirys and Orders

case).

33 Dec 5 1987 CIRCULATED.

34 Dec 23 1987 X Reply brief of appellant John A. Coy filed.

35 Jan 13 1988 ARGUED.

JURISDICTIONAL

STATEMENT

Apr. 15.1997

86-6757

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTCSER TERM, 1986

JOHN AVERY COY,

Appellant,

Vv.

STATE OF IOWA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF IOWA

JURISDICTIONAL STATEMENT

PAUL J. PAPAK

University of Iowa

College of Law

Iowa City, Iowa 52242

(319) 335-9145

April 16, 1987 COUNSEL FOR APPELLANT

\V \*

i

QUESTIONS PRESENTED

Whether Iowa Code § 910A.3, when applied to permit a one-way

screening barrier to be placed between a criminal defendant and

complaining witnesses, without establishing an essential state

interest, while those witnesses are testifying in open court,

violates the right to a fair trial under the Due Process Clause

of the Fourteenth Amendment of the Constitution of the United

States.

Whether Iowa Code § 910A.3, when applied to permit a one-way

screening barrier to be placed between a criminal defendant and

complaining witnesses, without establishing an essential state

interest, while those witnesses are testifying in open court,

violates the Confrontation Clause of the Sixth Amendment of the

Constitution of the United States.

ii

TABLE OF CONTENTS \

QUESTIONS PRESENTED... ccccccccccesssscessesesssesssesess i

TABLE GF RUTMORITIES . occ cccccccccsccccscescececsccsscess ii

OPINION BELOW. .ccccccccccscssees TEETTTTITILL TTT Tritt 1

JURISDICTION... ccccccccsccessessesesessessees eeccccecess i

CONSTITUTIONAL PROVISIONS AND STATUTE........-20eeeeeuee 2

HOW THE FEDERAL QUESTION WAS RAISED.......... eoveccccese 3

STATENS GH THE GCAGR. cc ccccccccccccececcceseccesccscees 3

THE QUESTION IS SUBSTANTIAL..... Coe eeeceseesesecseeceees 5

CONCLUSION..... CEOS EOS SESE SEES SES ESOEES ESSE EEE E ES ESES 11

APPENDIX......0+6-. eevecsees COO SSO SEES SEES EES EEE S ES EEE ONS la

TABLE OF AUTHORITIES

CASES:

Coffin v. United States, 156 U.S. 432 (1895)........... 5

Dowdell v. United States, 221 U.S. 325 (1911)........... 10

Drope v. Missouri, 420 U.S. 162 (1975)......c.cccenccces s

Estelle v. Williams, 425 U.S. 501 (1976).........e0e008- 6.7.8

Gaito v. Brierly, 485 F.2d 86 (3rd Cir. 1973)........... 7 n.2

Globe Newspaper Co. v. Superior Court, 457 U.S.

S96 (1982) ......eeeeuee ceccsecs COC Se eereseeeeesese 9

Guaranty Trust Co. v. Blodgett, 287 U.S. 509 (1933)..... 6 n.i

Harrell v. Israel, 672 F.2d 632 (7th Cir. 1982)......... 7 2.3

Herbert v. Superior Court, 117 Cal. App.3d 661,

ff & S_ FF REE 12,12

Hochheiser v. Superior Court, 161 Cal. App.3d 777,

SSS Gk. BSE. BID (ISOS). ccccccccccccccesecccsecs 9,10,11

Holbrook v. Flynn, 106 S.Ct. 1340 (1986)...............6,7,8,9

Illinois v. Allen, 397 U.S. 337 (1970) ......cceecccccces 6 n.4

In re Winship, 397 U.S. 358 (1970) .......ceccccececccnce 6

Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973)

cert. denied, Kennedy v. Gray, 416 U.S. 959 (1974).. 7 n.3

Kingsley Pictures Corp. v. Regents, 360 U.S. 684

CAPSS) ce cSeeceeeseeeseseeeeeeeessecoeses eee ee ee ee © 6 n.i

Kirby v. United Status, 174 U.S. 47 (1899)..........005: 10

iii

Mattox v. United States, 156 U.S. 237 (1895)......-seees 10

Ohio v. Roberts, 448 U.S. 56 (19860).........+... ecesececs 11

Pointer v. Texas, 380 U.S. 400 (1965)..... cecesesecceces 10

Snyder v. Massachusetts, 291 U.S. 97 (1934)......020005- 10

Taylor v. Kentucky, 436 U.S. 478 (1978) ......eseeeeeceee 6

United States v. Benfield, 593 F.2d 815

COED CEG. ISTO) co cccccccoceses TTTTITITITY TTT TTT TT 10,11

United States v. Esquer, 459 F.2d 431 (7th Cir. 1972)

cert. denied, 414 U.S. 1006 (1973)...... eeocecseccese 947.5

United States v. Garcia, 625 F.2d 162 (7th Cir. 1980)

cert. denied, 449 U.S. 923 (1980) ..... ce ee ceeeees 9 n.5

United States v. Harris, 703 F.2d 508 (llth Cir. 1983)..7n.2

United States v. Inadi, 106 S.Ct. 1121 (1986)........... 1l n.2

Young v. Callahan, 700 F.2d 32 (lst Cir. 1983)

cert. denied, 464 U.S. 863 (1983) .......ceenccucces 7 n.3

STATUTES:

BOWS GHGS § SEGR. 8. cccccccscccccccccccesescccccecceseces 6,8

MISCELLANEOUS :

Berliner, The Child Witness: The Progress and Emerging

Limitations, 40 U. of Miami L.Rev. 167 (1985)........ 9 n.6

No.

IN THE SUPREY® COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JOHN AVERY COY,

Appellant,

v.

STATE OF IOWA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF IOWA

JURISDICTIONAL STATEMENT

Appellant, John Avery Coy, appeals from the final judgment

of the Supreme Court of Iowa, dated December 17, 1986, holdings

that Iowa Code section 910A.3, as applied in this case, is not

unconstitutional as being violative of appellant’s right to a

fair trial guaranteed by the Fourteenth Amendment of the

Constitution of the United States and to confront witnesses

against him guaranteed by the Sixth Amendment of the Constitution

of the United States.

OPINION BELOW

The opinion of the Supreme Court of Iowa, which appears in

the appendix hereto, p. la, infra, is reported at 397 N.W.2d 720

(Iowa 1986).

JURISDICT-°ON

The judgment of the Supreme Court of Iowa, affirming

appellant’s conviction, was entered on December 17, 1986 (App.,

infra, la). A Motion for Rehearing was filed and denied on

January 16, 1987 (App., infra, 12a).

2

A Notice of Appeal to this Court was timely filed in the

Supreme Court of Iowa on March 6, 1987 (App., infra, 13a).

This appeal is being docketed in this Court within 90 days

from the denial of rehearing below. The jurisdiction of ‘this

Court is invoked under 28 U.S.C. § 1257(2).

CONSTITUTIONAL PROVISIONS AND STATUTE

Fourteenth Amendment, United States Constitution:

No state shall * * * deprive any person of life,

liberty, or property, without due process of law * * *.

Sixth Amendment, United States Constitution:

In all criminal prosecutions, “e accused shall

enjoy the right * * * to be confrented with the

witnesses against him * * *,

Iowa Code § 910A.3:

1. A court may, upon its own motion or upon

motion of any party, order that the testimony of a

child, as defined in section 702.5, be taken in a room

other than the courtroom and be televised by closed

circuit equipment in the courtroom to be viewed by the

court. Only the judge, parties, counsel, persons

necessary to operate the equipment, and any person

whose presence, in the opinion of the court, would

contribute to the welfare and well-being of the child

may be present in the room with the child during the

child’s testimony.

The court may require a party be confined to an

adjacent room or behind a screen or mirror that permits

the party to see and hear the child during the child’s

testimony, but does not allow the child to see or hear

the party. However if a party is so confined, the

court shall take measures to insure that the party and

counsel can confer during the testimony and shall

inform the child that the party can see and hear the

child during testimony.

2. The court may upon motion of a party order

that the testimony of a child, as defined in section

702.5, be taken by recorded deposition for use at

trial, pursuant to rule of criminal procedure 12(2) (b).

3. The court may upon motion of a party admit

into evidence the recorded statements of a child, as

defined in section 702.5, describing sexual contact

performed with or on the child, not otherwise

admissible in evidence by statute or court rule if the

court determines that the recorded statements

substantially comport with the requirements for

admission under Iowa rules of evidence 803(24) or

804(5). ;

3

HOW THe FEDERAL QUESTION WAS RAISED

Seven days prior to jury trial on the charge of two counts

of lascivious acts with a child, the appellee requested that the

appellant be confined behind a screen or mirror during the

testimony of the complaining witnesses, pursuant to Iowa Code §

910A.3. The appellant resisted, arguing that implementation of §

910 A.3 “violates defendant’s rights to due process of the law

under the Fourteenth Amendment to the United States Constitution

and under the Sixth Amendment to the United States Constitution

to confront witnesses against him.” Prior to trial, appellant

reiterated his argument that the screening device permitted by 5

910A.3 was repugnant to the Due Process Clause of the Fourteenth

Amendment and the Confrontation Clause of the Sixth Amendment.

Appellant restated that position immediately prior to the

testimony of the first child witness.

On appeal to the Iowa Supreme Court, appellant again

asserted the Fourteenth and Sixth Amendment claims (App., infra,

la). The Iowa Supreme Court concluded that appellant’s

contention that the screening device authorized by § 910A.3

denied him his right to a fair trial under the Fourteenth

Amendment to the United States Constitution was without merit

(App., infra, lla). As to the Sixth Amendment claim, the Iowa

Supreme Court concluded that appellant’s “right of confrontation

was not infringed” (App., infra, 9a). It thus considered and

expressly rejected appellant’s federal constitutional claims.

STATEMENT OF THE CASE

In the early morning hours of August 3, 1985, two thirteen

year old girls were sexually molested by a man who entered the

makeshift tent where they had been sleeping. The tent was

located in the backyard of the home where one of the girls lived

and next door to the house where appellant, John Avery Coy,

4

resided. Neither girl was ever able to identify appellant as her

assailant.

On August 14, 1985, appellant was charged with two counts of

lascivious acts with a child. Seven days prior to trial, on

November 6, 1985, the appellee applied, pursuant to Iowa Code §

910A.3, to have the testimony of the two girls taken in a room

other than the courtroom and televised by closed circuit

television into the courtroom. Appellee further requested that

appellant be confined behind a screen or mirror that would permit

the appellant to see and hear the witnesses during their

testimony but would not allow the girls to see the appellant.

Appellant resisted the motion and argued that application of

Iowa Code § 910A.3 would violate his constitutional rights to a

fair trial under the Due Process Clause of the Fourteenth

Amendment and to confront the witnesses against him under the

Sixth Amendment. The trial court overruled appellant’s

objections and, on its own motion, ordered that a one-way

screening structure be erected in the courtroom and be in place

during the testimony of the two witnesses.

At trial by jury the court noted that appellee had “set up a

large screen” and that it is “a frame with a substance on it

which makes it possible for the defendant to see the witness but

the witness does not see the defendant.” (App., infra, 15a).

The court tested the device and indicated that “[(t)he thing does

cause sort of a dramatic emphasis, but we’ll have to instruct on

it if we grant the motion.” For the screening device to function

properly in the courtroom, the ceiling lights had to be turned

off and a panel of bright lights had to be focused directly on

the structure.

At trial, neither witness was able to identify the appellant

as her assailant, and the State admitted that a positive

identification of appellant was never made pre-trial. No

5

evidence was offered that the witnesses were traumatized by the

prospect of testifying before the appellant or in open court, or

that a screening barrier was, for some other reason, a necessity.

In granting the appellee’s request under § 910A.3, the court made

no finding, specific to that trial, of an essential state

interest served by placing the screening device between the

appellant and the witnesses.

Appellant, on November 19, 1985, was found guilty of two

counts of engaging in lascivious acts with a child. On appeal to

the Iowa Supreme Court, appellant noted:

Coy’s appeal provides this Court with its first

opportunity to review the constitutionality of §

910A.3, which took effect July 1, 1985. Coy argues

that the use of a screen to prevent witnesses from

viewing him at trial deprives him of the ability to

confront witnesses, and, because it creates an ‘indicia

of guilt’ denies due process.

The Iowa Supreme Court, affirming appellant’s conviction, held

that “use of the screen was not inherently prejudicial in the

circumstances of this trial” and, absent a showing of actual

prejudice, the contention that use of the screen denied appellant

his right to a fair trial was without merit (App., infra, lla)

The court further concluded that appellant’s “right of

confrontation was not infringed” (App., infra, 9a).

THE QUESTION IS SUBSTANTIAL

I.

The right to a fair trial is a fundamental liberty secured

by the Fourteenth Amendment to the United States Constitution.

Drope v. Missouri, 420 U.S. 162, 172 (1975). The presumption of

innocence, although not expressly articulated in the

Constitution, was long ago recognized by this Court as a basic

component of a fair trial under our system of justice. Coffin v.

United States, 156 U.S. 432, 453-60 (1895). To implement and

protect this presumption, courts must carefully guard against

6

dilution of the principle that guilt or innocence is to be

determined solely on the basis of probative evidence introduced

at trial and not on grounds of official suspicion, indictment,

continued custody, or other circumstances not adduced as proof at

trial. See Taylor v. Kentucky, 436 U.S. 478 (1978); In re

Winship, 397 U.S. 358 (1970).

This case presents the issue of whether a state statute

violates a criminal defendant’s right to a fair trial under the

Due Process Clause of the Fourteenth Amendment when applied to

permit a one-way screening barrier to be erected between that

defendant and complaining witnesses, in the absence of any

demonstration of an essential state interest, while those

witnesses are testifying in open court.2/

The Fourteenth Amendment does not mandate that “every

practice tending to single out the accused from everyone else in

the courtroom must be struck down.” Holbrook v. Flynn, 106 Ss.

Ct. 1340, 1345 (1986).

Whenever a courtroom arrangement is challenged as

inherently prejudicial . .. the question must be .

whether ‘an unacceptable risk is presented of

impermissible factors coming into play.’ (Citation

omitted).

Id. at 1347. Certain practices, however, “pose such a threat to

the ‘fairness of the fact-finding process’ that they must be

subjected to ‘close judicial scrutiny’*. Id. at 1345, citing

Estelle v. Williams, 425 U.S. 501, 503-504 (1976).

In Estelle v. Williams, this Court struck down the practice

of forcing a criminal defendant to wear prison clothing when

appearing before the jury, noting that “the constant reminder of

1. Iowa Code section 910A.3 does not, on its face, clearly

contemplate the erection of an in-court barrier between

defendants and victims of child abuse, during the testimony of

those victims. However, the Iowa Supreme Court construed the

statute as permitting use of such a structure in court and for

purposes of this appeal, this Court must accept the state court’s

construction and proceed to test its validity on that basis.

Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 688 (1959);

Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513 (1933).

_ a

4

the accused’s condition implicit in such distinctive,

identifiable attire may affect a juror’s judgment.” Id. at 504-

505.2/ Similarly, courts have consistently recognized that a

criminal defendant has the right to appear before the jury free

from shackles or other physical restraints, because such

practices may effect the presumption of innocence by marking the

defendant as dangerous or suggesting that his guilt is a foregone

conclusion.2/ But in Holbrook v. Flynn, this Court, while

recognizina “the threat that a roomful of uniformed and armed

policemen might pose to defendant’s chances of receiving a fair

trial”, Id. at 1347, nonetheless concluded that the use of four

troopers for extra courtroom security did not brand the defendant

“‘with an unmistakable mark of guilt.’” Id. citing, Williams,

425 U.S. at 518 (BRENNAN, J., disse ing).

In distinguishing the use of four troopers in Flynn fror

prison garb in Williams and other courtroom practices that might

be deemed inherently prejudicial, this Court pointed to the

“wider range of inferences that a juror might reasonably draw

from the officers’ presence.” Flynn, 106 S.Ct. at 1346.

While shackling and prison clothes are unmistakable

indications of the need to separate a defendant from

the community at large, the presence of guards at a

defendant’s trial need not be interpreted as a sign

that he is par*icularly dangerous or culpable.

Id.

What more clearly signals the jury to a need to separate a

criminal defendant from the community at large than an imposing,

frame structure, emphasized by special lighting, placed between

the defendant and the complaining witnesses during the testimony

2. See also United States v. Harris, 703 F.2d 508 (llth

Cir. 1983); Gaito v. Brierley, 485 F.2d 86 (3rd Cir. 1973).

3. Harrell v. Israel, 672 F.2d 632 (7th Cir. 1982); Kennedy v.

Cardwell, 487 F.2d 101 (6th Cir. 1973); see also Young v.

Callahan, 700 F.2d 32 (lst Cir. 1983) (confinement in the

courtroom, like prison garb, can erode the presumption of

innocence) .

8

of those witnesses in open court? While the Iowa Supreme Court

concluded that the structure was not inherently prejudicial

because the jury “likely concluded the screen was being used to

reduce the trauma necessarily attendant to the children’s

testimony”, (App., infra, lla), the court ignored the inescapable

inference that the appellant was the cause of that trauma and

thus guilty. Blocking the view of the appellant does not reduce

the trauma of testifying in open court except to the extent that

it reduces trauma associated with testifying in the presence of

appellant. Inevitably, the jury is led to infer that testifying

in the presence of appellant, without physical separation by the

screening barrier, would exacerbate psychological injury to the

witnesses because the appellant is guilty as charged.

Iowa Code § 910A.3, to the extent it permits the erection of

an in-court, one-way barrier between a criminal defendant and

complaining witnesses, erodes the presumption of innocence an:

poses such a threat to the fairness of the fact-finding process

that it must be subjected to the “close judicial scrutiny”

mandated by Estelle v. Williams.4/

The erection of an in-court, one-way barrier between a

criminal defendant and complaining witnesses is the sort of

inherently prejudicial practice, like shackling, that should only

be permitted where justified by an essential state interest

4. In Holbrook v. Flynn, this Court pointed out that close

scrutiny of inherently prejudicial practices is not, however,

inevitably fatal. Flynn, 106 S.Ct. at 1345. In Illinois v.

Allen, 397 U.S. 337 (1970), this Court observed that in certain

extreme situations, subjecting a criminal defendant to an

inherently prejudicial practice might be the fairest and most

reasonable way to handle him. Id. at 344. In Allen, The Court

found that defendant’s repeated disrupted behavior and use of

vile and abusive language directed at the triel judge

necessitated extreme measures. No such extreme circumstances

appear in the instant case.

9

specific to each trial. Flynn, 106 S.Ct. at 1346.2/ No

essential state interest or extreme need was advanced by appellesc

or determined by the trial court, and neither may be inferred

from the record. There was no showing that the witnesses were

traumatized by the prospect of testifying in open court or in the

presence of the appellant. Nor can such trauma be inferred from

the nature of the charge. &/ In Hochheiser v. Superior Court, 161

Cal. App.3d 777, 208 Cal. Rptr. 273 (1984), the California Court

of Appeal refused to allow the presentation of testimony by way

of closed circuit television in a molestation trial. The court

said that even if technological innovations could be used in some

cases, a generalized belief in psychological trauma was

insufficient to establish need in a particular case. Id. at 792-

93, 208 Cal. Rptr. at 283. Citing Globe Newspaper Co. v.

Superior Court, 457 U.S. 596 (1982), the court indicated that

before a trial judge authorizes the use of a technological

innovation to protect a minor witness, the prosecution must

present a factual basis supporting the nature of the potential

injury to the witness, its degree, and its potential duration.

Hochheiser, 161 Cal. App.3d at 793, 208 Cal. Rptr. at 283.

Absent a requirement of demonstrating an essential state

interest, and to the extent it permits the placement of an in-

court barrier between criminal defendants and complaining

witnesses, Iowa Code § 910A.3 is constitutionally infirm.

5. A showing of “extreme need” is required to justify the use of

ysical restraints at trial, United States v. Garcia, 625 F.2d

162 (7th Cir. 1980), and this showing should be made on the

record after a hearing. Id.; United States v. Esquer, 459 F.2d

431 (7th Cir. 1972).

6. “There is no reliable evidence to conclude that children in

general cannot testify effectively in court or that they are

universally traumatized by the experience. In fact the opposite

seems to be true. * * * Counselors have found that children

sometimes psychologically benefit by participating in the

criminal justice system.” Berliner, The Child Witness: The

Progress and Emerging Limitations, 40 U of Miami L.Rev. 167, 174-

75 (1985).

10

II.

The right of the accused to be confronted with the witnesses

against him, embodied in the Sixth Amendment, is “an essential

and fundamental requirement for . . . fair trial” which is

binding on the states, as are the standards for confrontation

developed in the federal courts. Pointer v. Texas, 380 U.S. 400,

405-406 (1965). In United States v. Benfield, 593 F.2d 815 (8th

Cir. 1979), the Eighth Circuit Court of Appeals addressed the

issue of whether a face-to-face meeting is part of the

confrontation right guaranteed by the Sixth Amendment. Tracing

the historical development of Sixth Amendment jurisprudence, and

relying on Mattox v. United States, 156 U.S. 237 (1895), Kirby v.

United States, 174 U.S. 47 (1899), Dowdell v. United States, 221

U.S. 325 (1911), and Snyder v. Massachussetts, 291 U.S. 97

(1934), the court concluded that the defendant’s rights were

abridged by the admission of a videotaped deposition of a

kidnapping victin.

After carefully considering the sixth amendment,

applicable case law, and this record, we are satisfied

that the rights of Benfield were abridged by the above

procedure. Normally the right of confrontation

includes a face-to-face meeting at trial at which time

cross-examiantion takes place. Mattox, Kirby, Dowdell

and Snyder, . . . all support that view. While some

recent cases use other language, none denies that

confrontation required a face-to-face meeting in 1791

and none lessens the force of the sixth amendment. of

course, confrontation requires cross-examination in

addition to a face-to-face ———.- + « « The right of

cross-examination reinforces the importance of physical

confrontation. Most believe that in some undefined but

real way recollection, veracity, and communication are

influenced by face-to-face challenge. This feature is

a part of the sixth amendment right additional to the

right of cold, logical cross-examination one’s

counsel. While a deposition necessarily eliminates a

face-to-face meeting between witness and jury, we find

no justification for further abri of the

defendant’s rights. A videotaped ition supplies

an environment substantially comparable to a trial, but

where the defendant was not permitted to be an active

participant in the video deposition, this procedural

substitute is constitutionally infirn.

Benfield, 593 F.2d at 821. See also Hochheiser v. Superior

Court, 161 Cal. App. 3d 777, 208 Cal. Rptr. 273 (1984); Herbert

11

v. Superior Court, 117 Cal. App. 3d 661, 172 Cal. Rptr. 850

(1981).

The adversarial nature of our criminal justice system, as

reflected in the Confrontation Clause, rests upon the assumption

that a face-to-face challenge influences recollection, veracity,

and communication, and that observing this confrontation will

assist the trier of fact in determining credibility. See

Benfield, 593 F.2d at 821; Hochheiser, 161 Cal. App. 3d at 777,

208 Cal. Rptr. at 273. While in recent years this Court has

decided many cases involving questions of the admissibility of

hearsay statements of unavailable declarants, each such case has

premised its discussion upon the principle that the Confrontation

Clause requires available complaining witnesses to be called at

trial before the jury, for examination by the prosecution in the

presence of the accused, and for cross-examination by the

accused.2/ See Ohio v. Yoberts, 448 U.S. 56 (1980).

In Herbert, a California Court of Appeal ruled that face-tc-

face confrontation was absolutely essential. It was a denial of

the defendant’s rights, under the Sixth Amendment, when he was

moved to a remote part of the courtroom where he could hear but

not see the five-year-old child when she was testifying against

him. Herbert v. Superior Court, 117 Cal. App.3d 661, 172 Cal.

Rptr. 850 (1981). The court explained the significance it

attached to face-to-face confrontation:

By allowing the child to testify against the

defendant without having to look at him or be

looked at by him, the trial court not only

denied defendant the right of confrontation

~~ A Ay - effective method of

Id. at 668, 172 Cal. Rptr. at 853. The court further stated:

The historical concept of the right of

confrontation has included the right to see

one’s accusers face-to-face thereby giving

the fact finder the opportunity of weighing

7. Cf. United States v. Inadi, 106 S.Ct. 1121, 1125-29 (1986).

12

the demeanor of the accuser when forced to

make his or her accusation before the one

person who knows if the witness is truthful.

A witness’s reluctance to face the accused

may be the product of fabrication rather than

fear or embarrassment.

Id. at 671, 172 Cal. Rptr. at 855.

While the witnesses in the instant case testified under oath

before the jury and were cross-examined by appellant’s counsel,

the trial court needlessly impeded a face-to-face challenge with

appellant. No showing was made that the witnesses were

“unavailable” to testify in appellant’s presence or that some

essential state interest was served by the infringement of

confrontation rights. In short, to the extent that Iowa Code §

910A.3 denied appellant face-to-face confrontation with witnesses

who were not “unavailable” to testify in his presence at trial,

the statute is violative of the Sixth Amendment.

CONCLUSION

For these reasons, this Court should note probable

jurisdiction of this appeal.

Respectfully submitted,

PAUL PAPAK

University of Iowa

College of Law

Iowa City, Iowa 52242

(319) 335-9145

COUNSEL FOR APPELLANT

MOTION

No. 86-6757

IN THE SUPREME COURT OF THE UNITED STATES |

OCTOBER TERM, 1986 sBepreme Cost iS

| ae | r fh

JOHN AVERY COY, VAY 18 J967 ;

!

Appellant, sOSEr es ae

nal j

Vv.

STATE OF IOWA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF IOWA

MOTION OF APPELLEE TO DISMISS

THOMAS J. MILLER

Attorney General of Iowa

*GORDON E. ALLEN

Deputy Attorney General

Hoover state Office Building

Des Moines, IA 50319

ROXANN M. RYAN

Assistant Attorney General

COUNSEL FOR APPELLEE

May 14, 1987

*Counsel of Record

«jie

MOTION TO DISMISS

Appellee in the above-entitled case moves to dismiss or

affirm on the grounds that the appeal does not present a federal

question which was expressly passed on and that the question

presented is so unsubstantial as not to need further argument.

STATE STATUTE INVOLVED

This appeal raises the question of the validity of Iowa Code

section 910A.3(1) (1985), which provides:

1. A court may, upon its own motion or

upon motion of party, order that the

testimony of a ld, as defined in section

702.5, be taken i

of be

the room with the child during the child’

be

STATEMENT OF FACTS eeeeeseereseess TrTTTTititT

ARGUMENT ....-seee0s “eee ee ee eee ere eee “eee eene

CONCLUSION *** “eee **#eee oe eee errr errr ee

TABLE OF AUTHORITIES

CASES:

Garrity v. New Jersey, 385 U.S. 493 (1967) ....

State v. Strable, 313 N.W.24 497 (Iowa 1981) ..

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ..

Estelle v. Williams, 425 U.S. 501 (1976) ......

Illinois v. Allen, 397 U.S. 337 (1970) ........

Holbrook v. Flynn, 106 S. Ct. 1340 (1986) .....

State v. Coy, 397 N.W.2d 730 (1986) .....6ee05-

Davis v. Alaska, 415 U.S. 308 (1974) .....-555-

Delaware v. Van Arsdall, 106 S. Ct. 1431 (1986)

United States v. Inadi, 106 S. Ct. 1121 (1986)

California v. Green, 399 U.S. 149 (1970) ......

“vee eee

vw NY WN WH

-l-

No. 86-6757

OCTOBER TERM, 1986

STATE OF IOWA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF IOWA

MOTION TO DISMISS

STATEMENT OF FACTS

Two 13-year-old girls made a make-shift tent in the backyard

in a suburban neighborhood. They were awakened by 4 man in the

middle of the night, who grabbed them by the throats and told

them not to scream. He said he expected to find only one girl.

The assailant used a flashlight he found in the tent to shine «4

light in the victims’ eyes so that they could not identify him.

He also wore make-up or a mask to hide his identity. The girls

could see that he had a watch pushed midway up his arm, with the

face of the watch directed toward the assailant's body.

The assailant ordered the girls to disrobe. He then fondled

the girls, forced them to perform an oral sex act on him and

forced the two girls “to kiss each other and pretend that they

were enjoying it.” He directed the girls to urinate in his face,

but they refused. After about 90 minutes, the assailant tied the

girls’ hands, told them he would return, and then disappeared.

One victim's father suspected that the assailant was John

Coy, @ neighbor whom the father had seen earlier. The father had

noted that John Coy, who seldom sat in the back yard, had been

watching the victim set up the make-shift tent in the back yard.

E> Beem

-2-

been watching the victim set up the make-shift tent in the back

yard.

The father told police of his suspicions and the police

discovered that Coy had an outstanding arrest warrant. When

he was arrested, he was wearing a watch pushed midway up his arm,

with the face of the watch directed toward his body.

ARGUMENT

The Federal Question Sought to be Reviewed Was Not Expressly

Raised

Appelant argues that the constitutionality of section

910A.3 has been properly presented to and decided by the Iowa

Supreme Court. This is a necessary prerequisite to appeal. See

Garrity v. New Jersey, 385 U.S. 493, 495-96 (1967).

At the trial court level, appellant argued that use of a

screen between appellant and the victims would deny him his

rights to confrontation and due process. He did not, however,

directly challenge the constitutionality of the statute. The

constitutional challenge to the statute was expressly raised by

the appellant in his direct appeal to the Iowa Supreme Court, but

it is unclear from the Court's decision whether the ruling was

based on a challenge to the statute itself or on the trial-level

challenge to the procedure used.

B

Use of a screen in Iowa trials predated section 910A.3. See

State v. Strable, 313 N.W.2d 497 (Iowa 1981). Thus, the

challenge in this case could have been to the procedure itself

rather than to the statute authorizing the procedure.

The opinion by the Iowa Supreme Court focuses on the

procedure rather than on the statute. The statute therefore has

not been adequately "drawn in question,” and does not present a

substantial federal question. See Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 476 (1975).

-3-

The Case Presents No Substantial Federal Question

Not Previously Decided By This Court

1. Due Process

Appellant contends that the use of a mirrored screen is so

inherently prejudicial that its use violates his right to due

process. This Court has generally disapproved the use of

“inherently prejudicial” practices, such as requiring an accused

to wear prison clothing or requiring an accused to be bound and

gagged during trial. See Estelle v. Williams, 425 U.S. 501, 503-

04 (1976); Illinois v. Allen, 397 U.S. 337 (1970).

In Holbrook v. Flynn, 106 S. Ct. 1340, 1346 (1986), this

Court examined the features of a challenged practice to decide

whether it should be deemed “inherently prejudicial." The Court

focused on "the wider range of inferences that a juror might

reasonably draw" from the challenged practice. Id. If jurors

may draw harmless inferences or no inferences at all, the

practice is not deemed “inherently prejudicial." Id. at 1346-47.

The Court adopted a case-by-case approach, id. at 1346, and held

that it is a defendant's burden to show prejudice. Id. at 1348.

In the case at bar, the jury reasonably could have and

probably did, draw nonprejudicial inferences from the use of the

screen. First, the screen was used only during the testimony of

the two young victims. Its use was thus quite limited.

Second, the trial court's instruction to the jury minimized

any possible prejudice and discouraged any unfavorable inferences

by the jury. The trial court told the jurors:

It's quite obvious to the jury that there's a screen

device in the courtroom. The General Assembly of Iowa

recently passed a law which provides for this sort of a

procedure in cases involving children. Now, I would

caution you now and I will ceution you later that you

are to draw no inference of any kind from the presence

of that screen. You know, in the plainest language,

that is not evidence of the defendant's guilt, and it

shouldn't be in your mind as an inference as to any

guilt on his part. It's very important that you do

that intellectual thing.

-4-

The use of a screening device is not in itself an indication

of guilt. It does not “separate a defendant from the community

at large” nor must it be interpreted "as a sign that he is

particularly dangerous or culpable." It is as much a reflection

on the witness as it is on the defendant.

Appellant has cited no case in which any court has fourd the

use of a screen device to be inherently prejudicial. Because of

the wide range of inferences the jurors may draw from its use, a

screen device is not inherently prejudicial.

2. Confrontation

Appellant argues that the use of a one-way, mirrored screen

during a child's testimony violates his sixth amendment right to

confront witnesses and that the prosecution is required to show

the necessity of use of the screen, apparently because of the

“unavailability” of the witnesses.

At trial, appellant did not specifically allege that a

showing of necessity or unavailability was required to protect

his confrontation right. Nonetheless the Iowa Supreme Court held

that the trial court "had no obligation to make an independent

finding of necessity." State v. Coy, 397 N.W.2d 730 (Iowa

1986).

On the question of confrontation rights, this Court has long

said that “(t]he main and essential purpose of confrontation is

to secure for the opponent the opportunity of cross-examination."

Davis v. Alaska, 415 U.S. 308, 315 (1974), quoted in Delaware v.

Van Arsdall, 106 S. Ct. 1431, 1435 (1986). A showing of

unavailability or “necessity” is not constitutionally required in

every case. United States v. Inadi, 106 S. Ct. 1121, 1125

(1986).

Moreover, the purposes of the confrontation clause have been

served in the specific facts presented in the case at bar. Most

importantly, the defendant was given an unlimited right to cross-

examine the victims, so the essential purpose of the

4 i we SO 2 _— = ~~ ——— _ es iS

-5-

confrontation clause was served. See California v. Green, 399

U.S. 149, 158 (1970). In addition, the witnesses appeared in the

courtroom, in full view of the jury; they gave their testimony

under oath; Appellant could see the witnesses from his vantage

point; defense counsel could sit anywhere in the courtroom; and

the witnesses were aware that appellant was sitting behind the

screen. There was no violation of any recognized constitutional

right to confrontation.

CONCLUSION

Wherefore, appellee respectfully submits that the question

upon which this case depends was not timely raised and is so

unsubstantial as not to need further argument. The State of Iowa

respectfully moves the Court to dismiss this appeal, or, in the

alternative, to affirm the judgment entered in the cause by the

Iowa Supreme Court.

THOMAS J. MILLER

Attor General of Iowa

ROXANN M. RYAN

Assistant Attorney General

The undersigned hereby certify that on the 3 ~ day of May,

1987, three copies of the foregoing document were deposited in a

United States Post Office mailbox, with postage prepaid, and

addressed to counsel for the petitioner:

PAUL PAPAK

Clinical Law Programs

College of Law

University of Iowa

Iowa City, IA 52242

The undersigned further certify that all parties required to

be served have been served.

THOMAS J. MILLER

Atto General of Iowa

ty Attorney General

r State Office Building

Des Moines, IA 50319

Telephone: 515/281-5976

ATTORNEYS FOR APPELLEE

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

APPELLANT'S REPLY TO MOTION TO DISMISS

~~

Paul J. Papak

University of Iowa

College of Law

Iowa City, Iowa 52242

(319) 335-9145

COUNSEL FOR APPELLANT

May 28, 1987

FILED

MAY 9” ST

seer: -a

206 U.S. 276 (1932)... cc ccccccccccccccncecnceneneeees

State v. Coy,

ee ee GED GD Bicocccccocvccccccoseecesoses

2B U.S.C. BOS. 12G7(2) onc ccvcccccccsccccccscesesesessceces

2B U.S.C. GOS. 2103... eccccccccscccecesesesesesessssseess

ARGUMENT

Il. ‘THE FEDERAL QUESTION WAS EXPRESSLY RAISED

An appeal will lie, for purposes of 26 U.S.C. Sec. 1257(2), where the

validity of a state statute is “drawn in question,” as being repugnant to

the federal constitution, treaties or laws, and the state court's decision

- is in favor of the statute's validity. Appellee concedes (Motion of

Appellee to Diamiss, p. 2) that the validity of lowe Code Sec. 910A.3(1)

was “drawn in question” by direct appeal to the Iowe Supreme Court.

Coy"s provides this Court with its first

. “aamnete

Appellant's Brief and Argument ard Request for Oral Argument, lowe Sup: ome

Court No. 85-1842, p. 8.

At the trial court level, the district court judge clearly understood

appellant's challenge to be directed at the constitutionality of Sec.

910A.3.

Trial Transcript, pp. 21-22. Appellee suggests that since there is common

law authority for use of a screening device in lowe, appellant's challenge

could have been to the procedure itself rather than to the statute

authorizing the procedure. This argument overlooks the exmplictness of the

State's application to use a screening device:

This Application is made te Section 6 of House

—{ thai

Appendix, Supreme Court of Iowe No. 85-1842, p. 35. Application to eploy

@ screening device and constitutional challenges at the trial court ani

appellate level were directed at Towe Code Sec. 910A.3.

In Bryert ». Zismermen, 276 U.S. 63, 67 (1928), this Court said:

State v. Gay, 397 N.W.2d 730, 733 (lowe 1966). ‘Thus, the state court

eqressly upheld the validity of the state statute as against federal.

constitutional Gwallenge. Bven if the precise basis of the state court

@pinion is blurred, as appellee suggests, the failure to egressly pass on

federal comstitutional abjections to 4 state statute is treated as

equivalert to a finding of validity within the meaning of Sec. 1257 (2),

such that an appeal will lie. Lawrence vy. State Tax Oumission, 286 U.S.

276, 282-63 (1932).

Pimally, even if this Gowrt agrees thet the state statute has not beer

adequately “drawn in question,” appellart requests, pursuart to 28 U.S.C.

Sec. 2103, that the Jurisdictional] Statemert filed herein be regarded and

acted upon as 4 petition for writ of certicrari.

Tl. TS QESTioy IS SUSSTWITIAL

Appellee contends thet the screening device authorized by Ime Onde

Sec. 910A.) is not inherently prejuticial because of the wide range of

inferences the jurors mey Grew fram its use. The inescapable infereme

Grew from such « screening Gevice, however, is that the Geferciart 's

presence in court '.rther traumetizes the victim witmesses because he is

Guilty. “Sere, as im this case, the statute authorizes the erection of «

physical barrier withcovt aty showing of necessity the statute carmct pass

constitwticonal muster. Nor is the constitutional infirmity overcame by «

‘ cautionary instruction. As the Iowa Supreme Court correctly noted,

“Because inherently prejudicial practices may influence a jury

subconsciously, a court cannct always assume cautionary instructions will

be sufficient to prevent prejudice." Goy, 397 N.W.2d at 735.

CONCLUSION

For these reasons, amd for those stated in the Jurisdictional

Statement filed herein, this Court should overrule Appellee's Motion to

Dismiss and note probable jurisdiction of this appeal.

Respectfully submitted,

University of Iowa

College of Law

Iowa City, Iowa 52242

(319) 335-9145

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the Mf+\aay of May, 1987,

two copies of the Appellant's Reply to Motion to Dismiss were deposited in

a U.S. Post Office Box, with postage prepaid, and addressed to counsel for

appellee:

May 28, 1987

JOINT

APPENDIX

ius

w6 10 pe

JOSEPH F. SPANIOL, UR,

CLERK

No. 86-6757

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

JOHN Avery Coy,

Appellant,

Vv.

STATE OF IOWA,

Appellee.

On Appeal from the Supreme Court of lowa

JOINT APPENDIX

PAUL PAPAK GORDON E. ALLEN

Clinical Law Programs ROXANN M. RYAN

College of Law lowa Attorney General

University of lowa Hoover State Office Bldg.

lowa City, lowa 52242 Des Moines, lowa 50319

(319) 335-9023 (515) 281-8330

Counsel for Appellant Counsel for Appellee

———

JURISDICTION AL STATEMENT FILED APRIL 15, 1987

PROBABLE JURISDICTION NOTED JUNE 26, 1987

TABLE OF CONTENTS

Chronological List of Relevant Docket Entries

Application for Use of Screening Device, Filed Novem

ber 6, 1985

Excerpts from Hearing on Application for Use of

Order of the Supreme Court of the United States grt '

ee ee en

June 26, 1987 eee

Wate tee ett eee eens eee eee-

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

August 14, 1985

November 6, 1985

November 7, 1985

November 12, 1985

November 15, 1985

November 19, 1985

December 2, 1985

December 10, 1985

December 16, 1985

December 17, 1986

January 16, 1987

March 5, 1987

March 31, 1987

Trial Information Filed

Application for Use of Screening

Device

Hearing on Application for Use of

Screening Device

Resistance to Witness Screening

Device

Jury Trial of Action Commenced

Verdicts

Motion in Arrest of Judgment or, in

the Alternative, for a New Trial

Order and Judgment Entry

Notice of Appeal to Iowa Supreme

Court

Opinion of the Iowa Supreme Court

Rehearing Denied

Notice of Appeal to the Supreme

Court of the United States

Stipulation re Correction or Modi-

fication of the Record

(1)

2

IN THE IOWA DISTRICT COURT

FOR CLINTON COUNTY

K-6962

STATE OF IOWA,

Plaintiff

vs

JOHN AVERY Coy,

Defendant

APPLICATION

Filed Nov. 6, 1985

COMES NOW the Plaintiff and states:

(1) This Application is made pursuant to Section 6

of House File 462 of the Laws of the Seventy First Gen-

eral Assembly of the State of Iowa.

(2) Trial by. jury is scheduled for November 13, 1985,

commencing at 9:00 o’clock a.m. The Defendant is

charged with two counts of Lascivious Acts With A

Child.

(3) The Plaintiff moves this Honorable Court that

the testimony of the two child witnesses be taken in a

room other than the Courtroom and be televised by closed

circuit equipment in the Courtroom to be viewed by the

Court.

(4) Plaintiff further requests that the Defendant be

confined behind a screen or mirror that permits the

Defendant to see and hear the children during their tes-

timony but does not allow the children to see or hear the

Defendant.

(5) Plaintiff is prepared and has under construction

mirrored glass which would permit the Defendant to con-

fer with his counsel during the testimony of the children

and which would permit the Defendant to see and hear

the children during their testimony, but would not allow

the children to see or hear the Defendant.

WHEREFORE, Plaintiff respectfully moves the Court

for hearing upon this Application and that upon such

hearing this Application be granted.

/s/ Gary J. Rolfes

GaRY J. ROLFES

Assistant County Attorney

P.O. Box 157

Clinton, lowa 52732

d

IN THE IOWA DISTRICT COURT

FOR CLINTON COUNTY

(Title Omitted in Printing)

TRANSCRIPT OF PROCEEDINGS

Whereupon, pursuant to assignment, the above-entitled

matter came on for hearing before the court, commencing

at 9 a.m., on November 7, 1985 at the Clinton County

Courthouse, Clinton, lowa, before the Hon. L. D. Carsten-

sen, judge.

>. * * 7. -

[3] (Whereupon, the following proceedings were had

in open court, commencing at 9 a.m., on November 7,

1985. }

THE COURT: The State of Iowa versus John Avery

Coy, K-6962. Mr. Rolfes is here; Mr. Wolfe is here; the

defendant is here.

What’s before me, please?

MR. ROLFES: There’s an application by the State,

your Honor, pursuant to the Victim and Witness Protec-

tion Act, being House File 462 of the Laws of the 71

General Assembly of the State of lowa, effective July

1, 1985. This application is brought pursuant to Section

6 of that Act wherein a party may move the court to

have the testimony of a child witness taken in a room

other than the courtroom and be televised by closed-

circuit equipment in the courtroom to be viewed by the

court. The State is prepared to have a screen availakie

wherein the defendant would be able at all times to see

the children, to confer with his attorney but, at the same

time, the children would not be able to see the defendant.

In addition, if the court would allow the closed-circuit

equipment to be used, that could be available.

5

THE COURT: Mr. Wolfe.

MR. WOLFE: Your Honor, I knew the State was

preparing the motion yesterday, and Mr. Rolfes discussed

the matter with me. I don’t have a copy of the actual

[4] written motion. However, I understand what the

thrust of it is.

THE COURT: Hand him a copy of your application.

MR. WOLFE: We would resist the action as re-

quested by the State on a number of different grounds,

certainly one of them being the Sixth Amendment right,

confrontation of witnesses. We would also resist it from

the practical standpoint that it’s my understanding that

what’s being proposed by the State is that the jurors

would be seated in the jury box, the witnesses would be in

chambers; the judge would be present; the court reporter

would be present; I would be present; the State would be

present. I gather it’s being suggested that the defendant

would be somehow or another screened off. It would

seem to me that the primary separation is going to be

between the jurors and the witness, and I think it’s

extremely important that the jurors have an opportunity

to view the witnesses. I would certainly—

THE COURT: Mr. Wolfe, I’m afraid you've got a

little wrong notion about the practicality of it. If the

court granted the order, what would occur—and for pur-

poses of a written record I'l] describe the—that before

the bench are two counsel tables with two chairs at each,

and that the entrance to thainner court here is [5] to

the north and the jury box is to the south, and that the

chairs at counsel table, counting from the north to the

south, are, at the first table, Chairs No. 1 and No. 2, and

at the second table, Chairs No. 3 and No. 4, and that the

defendant would be seated in Chair No. 1 and his counsel

in Chair No. 2 or wherever else counsel felt it necessary

to perform his function. The State would sit at Chair

No. 2. Immediately to the south of the bench is a raised

dais, which has been used for various reasons in this

court, but which during this trial will be used as a wit-

rELiiE

rE

through a door very close to the chair.

I don’t know if that’s what’s proposed. [6] If I grant

the order, that’s what I assume will happen.

MR. WOLFE: Okay. It was my misunderstanding, I

THE COURT: That’s all right, Mr. Wolfe. I don’t

know if it’s a misunderstanding. I don’t imagine that—

MR. WOLFE: Okay.

THE COURT: Well, we came here to take a look at

be a television hookup, and so forth?

MR. WOLFE: That was the way it was explained to

me as the State’s proposal.

THE COURT: Which is fine. And I have no quarrel

with statutes. That’s very dramatic. That’s very un-

natural. That puts strange untested emphasis, which—

it’s an untested thing that we don’t know a lot about.

The screen adds something to a courtroom that we're not

used to, also, but it seems the more moderate and least

obtrusive approach.

{7] MR. WOLFE: Well, the other thing I would state

for the record is that in this case neither of the young

women have ever identified the defendant as being their

7

assailant. This is really not a matter that we're taking

issue with the young women. They’re not saying John

Coy is the person who assaulted them.

THE COURT: From my reading of the Minutes, I

anticipate that they’re not going to identify his face as

the face of the person who assaulted them.

MR. ROLFES: That's correct, your Honor.

MR. WOLFE: Certainly correct.

THE COURT: Which makes it quite a different set

of circumstances.

MR. WOLFE: Right. This is an individual who they

may have heard of, but they're not saying this is the in-

dividual who assaulted them.

THE COURT: If I do sign the order, I'd also request

that when the equipment arrives that you should, of

course, come and view it.

MR. WOLFE: I don't want to ask the court to go

back through it again. I think I basically understand.

There would be some type of opaque screen in front of the

—basically here in front of the table; would that be

correct ?

THE COURT: The screen can be seen through [8]

one way and not the other.

MR. WOLFE: I see.

THE COURT: I don’t know, you know, how practical

it is and what I'll do in order to proceed if I grant the

State’s application. The issue remains open. I'd assume

the equipment won't be here till Monday. And counsel

and his client have a right to inspect it at any time. And

if you feel need to raise the issue to the court again, raise

it and we'll take it up again.

IN THE IOWA DISTRICT COURT

FOR CLINTON COUNTY

(Title Omitted in Printing)

RESISTANCE TO WITNESS SCREENING DEVICE

Filed Nov. 12, 1985

COMES NOW defendant and states:

1. That the State has requested and the Court has

preliminarily indicated its approval of the use of a device

screening the defendant from the view of two of the

State’s witnesses. The two State’s witnesses are thirteen-

year old girls who wil] testify that they were assaulted

and were the victims of lascivious acts while they were

camping in a make-shift tent in the backyard of one of

the girls’ residence.

2. The girls have indicated in depositions taken in

connection with this matter that they are unable to

identify the defendant as their assailant.

3. That the proposed device will confront the jury and

will carry with it the connotation that the Court believes

the defendant to be, in fact, the girls’ assailant. The

natural tendency to conclude that the screen is necessary

because of the guilt of the defendant is demonstrated by

an article which appeared in the November 8 edition of

the Clinton Herald, a copy of which article is attached

hereto. In that article, reference at one point is made

to the need to have the screen between the girls and the

“offender.”

4. That the approach taken violates defendant's rights

under the Sixth Amendment to the United States Consti-

tution to confront witnesses against him.

5. That the approach also violates defendant’s rights

to due process of the law under the Fourteenth Amend-

ment to the United States Constitution. The courts have

stated in the past decisions that the defendant must be

tried in an atmosphere which does not pre-establish his

guilt. In order to enforce this right, the courts have

spoken in terms of the need to allow the defendant in

criminal proceedings to appear before juries in some-

thing other than prison garb. The courts have also indi-

cated the right of the defendant to appear in trial pro-

ceedings without shackles or handcuffs, unless such se-

curity devices are clearly needed for the safety of all

those at the trial.

WHEREFORE, the Court is requested to deny the

State’s application to use the aforementioned screening

device, and to order that no screening device be used

because such an approach would violate the defendant's

rights under the Sixth and Fourteenth Amendments to

the United States Constitution.

/s/ John J. Wolfe, Jr.

JOHN J. WOLFE, JR.

Attorney for Defendant

230 4th Ave. South

Clintor, LA 52732

(319) 243-4652

10

IN THE IOWA DISTRICT COURT

FOR CLINTON COUNTY

‘Title Omitted in Printing)

TRIAL TRANSCRIPT

November 13, 1985

[11] There is an application on file by the State asking

that a screen device be used to shield the 13-year-old

girls, who are going to be witnesses. This is done under

a statute that became effective July the first of this year,

passed by the General Assembly of the State of lowa.

The State’s application is on file. The defendant has

objected and that objection has been filed in writing.

And before we proceed to further argument, the county

attorney will proceed to set it up.

MR. ROLFES: Yes, your Honor.

THE COURT: Make a record, please. They've set

up a large screen, a picture of which will be taken at

the direction of the county attorney and at the [12) di-

rection of defense counsel by the police, and they'll make

copies available to the parties. I'd ask counsel to stipu-

late into the record for appeal, if that’s necessary. And

it’s a frame with a substance on it which makes it poe

sible for the defendant to see the witness but the witness

does not see the defendant.

Would you sit in the witness chair.

I’m seated where the defendant is. It is possible to

dimly see a person seated in the witness chair. The mo-

tion is granted that defense counsel can move wherever

he wants to in the courtroom.

11

I am also now going to sit in the witness chair.

I would make that record clear. You can see the fea-

tures of the person seated in the witness chair, but it is

dark.

I'm seated in the witness chair now, and I cannot see

anyone at defense table. It reflects the bench. The thing

does cause sort of a dramatic emphasis, but we'll have

to instruct on it if we grant the motion.

Mr. Wolfe, come into view, wil! you?

Would you like to argue, please, beyond your written

argument?

MR. WOLFE: Well, basically, your Honor—

THE COURT: And, by the way, you know, I [13]

tried to accurately say what I thought the facts were,

but you can disagree with that, too, you know.

MR. WOLFE: Well, the pictures will undoubtedly

set forth what we have here. Our objection is based

upon several constitutional principles. Certainly the first

would go to the issue of the right of confrontation under

the Sixth Amendment to the United States Constitution.

It's been explained to me that one of the reasons why

this device is being used is because it makes the young

women less uneasy, but it’s my understanding that the

right of confrontation directly deals with that issue.

I think most people coming into court in an atmospheric

position—or many people—I won't say most—but many

people would feel more comfortable if they didn't have

to have direct eye contact with the person that they're

testifying against. But the fact of the matter is that

there are two issues, two sides: One is what the young

women are saying; but the other is the fact that the ac-

cused has a righ’ to confront his witnesses. If they have

the right to know he’s confronting them-——you know, |

know they're being told they can be seen, but, on the

other hand, there’s also the matter of them seeing him.

Additionally, we would object on the grounds of due

process, This would be based on several different things.

The overwhelming thing that [14] this arrangement cer-

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14

Honor, at least I don’t see it in the Act. However, at

this time we need not concern ourselves with that because

indeed. as Mr. Wolfe has stated, the two child victims

cannot identify the assailant. However, with children as

opposed to adults, the whole idea behind statute, I

guess, is a recognition of, 1, a defendant's right

frontation; and, 2, a protection of a victim,

if the victim doesn’t know, yes, indeed is the

that molested me. If the child knows

is indeed in the courtroom that, of

create trauma for the child. It would

cihid if that person were behind a

plated in the statute. The child does

at this assailant, does not have to view this

The screen, I'm sorry to say, with the lights in this room,

didn’t work quite like we had planned.

THE COURT: I can't see anybody now. Can't see a

thing.

MR. ROLFES: The only thing we have to do is add

the lights.

THE COURT: I know.

MR. ROLFES: In the other room it appears to work

better.

'18) THE COURT: I would note I would rather have

the lights on than not have ceiling lights on in the court-

room because it would be eerie, and we're in dark

weather right now. Go ahead.

MR. ROLFES: As far as the right of confrontation

te concerned. the defendant can view the witness, can

confer with his attorney as if he were face-to-face with

the victims. I don't know how far the constitution goes

er how far our forefathers thought when they said, thou

shalt have a right of confrontation. It appears to me

that the defendant has to be able to see his accuser and

he can do that under this setup here. Does the right of

confrontation require him to seat two feet away or six

feet away or 20 feet away? Our constitution doesn't

ittege

ebr¢e :

Palit

:

HT

15

really tell us that. I think the right of confrontation is

the right to have a witness know that the defendant is

in the room and that the defendant can see and hear

don’t think the right of confrontation goes

If the court feels that this screen would be prejudicial,

I would ask the court, then, to consider a closed-circuit

television from Judge Pelton’s chambers into the court-

room the equipment at the Clinton County

Law Center. That could be set up in the other room and

a screen could still be used. A jury would [19] not even

be aware of a screen, but the jury could view the child

witnesses’ testimony via the closed-circuit.

THE COURT: End of argument?

MR. ROLFES: Yes, your Honor.

MR. WOLFE: If I could respond. One aspect of

Mr. Rolfes’ argument is exactly what bothers me in this

approach and that’s when he said if the young women

have not identified the defendant being their assailant

but if they know he is in the courtroom and he appar-

ently being their assailant. Now, the only way you reach

that point is to make a nice jump from the presumption

of innocence to a presumption of guilt, and at that point

we are asking the young women for simply testifying

about what they know. They have no reason to presume

this man is guilty. Like everyone, they should be pre-

pared to presume he’s innocent. They’re testifying about

what they know about this case. Now, there’s someone

who’s accused, but this isn’t a contest between the two

complaining witnesses, or the two 13 year olds, and Mr.

Coy, they’re testifying to facts and it’s up to that jury

to determine whether or not it establishes this man’s

guilt. What that screen is based on is a presumption;

that is, he is, and based on that presumption, therefore,

it makes sense to have that screen there. The other

problem we’re dealing with—and one that I really didn’t

address but Mr. Rolfes again {20| brought it up—is this

whole matter of right to counsel. Where is the attorney

16

on this throughout the trial? I’m going to be seated next

to my client. Now, you know, am I going to remain

seated next to my client when I’m cross-examining the

young woman? If so, they’re going to have an eerie

situation where there’s going to be this undisclosed voice

coming from behind the blackboard. ”

THE COURT: You’re going to be wherever you wish

to be within the rail.

MR. WOLFE: Well, I would state that is going to

create an unusual situation if counsel is going to be

addressing witnesses without being able to be seen by

them and not being able to be seen by many members

of the jury. If I want to get up and move over here, I

can, but—I guess what I’m saying is this is creating an

unusual and an artificial situation, and the message be-

ing conveyed is that this man is guilty. And that is the

presumption that exists, and the question is whether or

not the jury can overcome that presumption. And it’s

our position that that violates the defendant’s right to

due process of law and the Fourteenth Amendment to

the United States Constitution.

THE COURT: I will rule. The points raised by Mr.

Wolfe are substantial and are worthy. The statute is

presumed to be constitutional. Putting it in the [21]

context of what we actually have here and the statute,

I rule that the situation as proffered is not violative of

the right to confrontation. There is danger of making

illusions of presumptions contrary to the presumptions

at law, and there should be and must be an instruction

to the jury concerning the fact that the screen is not

an inference of any kind. And both the county attorney

and the defense counsel are invited to supply the court

with requested instructions in that matter. And the

county attorney’s motion to use the device as proffered

is granted. The police will take several pictures of it at

the direction of Mr. Wolfe and at the direction of Mr.

Rolfes, and those pictures will be made available to both

and should be made a part of the record for appeal.

17

The court anticipates the possibility that certain ques-

tions may be put to witnesses that are proper questions,

maybe proper direct examination, perhaps proper cross-

examination in which it will be necessary to remove the

screen. That’s certainly possible. That would have to be

done from the bench at the time. But it certainly is

possible that the right to the pseudoprivacy may give

way to the constitutional need for people to see each

other, and that will be taken up if such question is

asked, and if it’s a question that’s admissible and if

it’s necessary to remove the screen, it should be [22]

anticipated that there’s a possibility that the screen will

be removed at some point. All to which the defendant

excepts. That ends that.

Anything else that should be brought up at this

hearing?

MR. ROLFES: I don’t believe so, your Honor.

MR. WOLFE: No, your Honor.

THE COURT: Thank you. Close the record.

[33] THE COURT: It’s quite obvious to the jury that

there’s a screen device in the courtroom. The General

Assembly of Iowa recently passed a Jaw which provides

for this sort of procedure in cases involving children.

Now, I would caution you now and I will caution you

later that you are to draw no inference of any kind from

the presence of that screen. You know, in the plainest of

language, that is not evidence of the [34] defendant’s

guilt, and it shouldn’t be in your mind as an inference as

to any guilt on his part. It’s very important that you do

that intellectual thing.

| 36) N.C.,,

witness herein, called as a witness by Plaintiff, having

been first duly sworn, was examined and testified as

follows:

18

THE COURT: Please take your time.

MR. WOLFE: Your Honor, at this time I would like

to enter an objection to the use of the screen device,

which was placed here, based on our objection, in viola-

tion of my client’s Sixth Amendment rights to the United

States Constitution, to the right to confront witnesses,

and his Sixth Amendment right, to a full, effective counsel,

because of problems I see with this, and his rights under

the Fourteenth Amendment to the United States Constitu-

tion, to due process of law.

THE COURT: The objection is overruled.

And as augmented by and in conformity with previous

rulings, counsel is, of course, free to position himself

anywhere within the rail and is not limited to being

behind the screen. And I anticipate that there might be

situations in which the screen might have to be removed.

(37) DIRECT EXAMINATION

BY MR. ROLFES:

N., do you prefer that I call you N. or Miss C?

N.

Where do you go to school, N?

Lyons Middle School.

What grade are you in?

Eighth.

N., do you know a girl by the name of C. B.?

Yes.

How do you know her?

She goes to school with me.

Is she your friend?

Yes.

. August 2, 1985 was a Friday, I believe. Did you

have any conversations with C. that day regarding the

two of you getting together?

A. Yes.

LPoPero PpePoere

19

What did you girls decide to do?

Spend the night at her house.

What were you going to do there?

A. Sleep in a tent.

Where at?

In her backyard.

What time did you go over to C.’s house?

Between 9 and 9:30.

Is that in the morning or at night?

Night.

a this tert, describe it to me a little, will you,

Bore

be =

>Eopeopere

I. was two tables put together with blankets over

them.

Q. Did you help build this tent?

A. No.

Q. Were you over at C.’s house at all that Friday

building this tent?

A. No.

Q. Were you over at her house at all?

A. No.

Q. Not until you went there about 9 o’clock that night;

correct?

A. Right.

Q. What did you bring with you?

A. A sleeping bag and a pillow?

Q. Anything else?

A. No.

. . 7 .

[46] Q. N., when this man came into that tent, what

was it like inside the tent?

A. It was pretty dark.

Q. Were you able to see this man?

A. No.

Q. Why not?

A. Because it was dark. He also was shining the

flashlight in our eyes.

{48} @Q Now, N., did you ever get a good look at this

man’s face?

A. No.

Q. Did you have any impression with regard to the

way he wore his hair?

A. He had like a little thing sticking out?

How would you describe that?

A. It was a little tail; it wasn’t very long, and it was

braided. ae”

{49} Q Do you think you could identify that man who

was in the tent that night?

A. No.

Q. You never got to really see him, did you?

A. No.

(55) CROSS-EXAMINATION

BY MR. WOLFE:

{59} @ Now, during this hour to hour and a half

that the assailant was in the tent, I think you testified

that you noticed something regarding his hair. Were

you also able to tell from looking at his hair what the

color was?

Blondish brown. How would you describe what

you observed? Was it just hair hanging down or was

it some kind of a braid or some kind of ponytail? Or

how would you describe it?

A. In the back there was like a little braid.

[64] Q. Now, within a few seconds after the person

left, did either you or C._—well, did you hear—strike that.

Did you hear anything unusual, such as a car starting,

or anything like that?

A. Yeah.

21

Q. What was that?

A. A motorcycle.

[65] Q You heard a motorcycle start. How close in

time was that to when the assailant left before you heard

the motorcycle start?

A. A couple of seconds.

[69] Q. So you were trying to tell the truth as you

best recalled it at that time.

A. Yes.

Q. Since then, of course, you've had a chance to dis-

ee eee See ome

es

MR. WOLFE: I have no other questions.

REDIRECT EXAMINATION

BY MR. ROLFES:

Q. N., just a couple of questions.

In preparing for this trial, you and I have talked

about this, haven't we?

A. Yes.

Q. Now, do I tell you what to say?

A. No.

MR. ROLFES: That's all.

(72) C.B.,

witness herein, called as a witness by Plaintiff, having

been first duly sworn, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. ROLFES:

Q. Would you prefer that I called you Miss B. or

C. or C.?

A. C,

22

Q. C., where do you live?

A. Clinton, lowa.

MR. WOLFE: Your Honor, at this time, just for

the record, I’d like to enter the objection I previously

made regarding the screen, and the same grounds.

THE COURT: Same ruling.

MR. WOLFE: Thank you.

Who do you live there with?

My mom, my dad and my two sisters.

Older sisters or younger sisters?

Older.

You’re in the eighth grade?

Yes.

How are you doing in school?

A. Pretty good.

As a matter of fact, you just had parent-teacher

erences, didn’t you?

Yes.

C., you and N.C. are close friends; right?

Yes.

You girls go to school together.

Yes.

You spent some time together this summer.

Yes.

One night this summer you invited N. to come

and spend the night, did you not?

Yes.

What were you girls going to do?

Sleep in a tent out in our backyard.

A regular tent or what?

Well, two Ping-Pong tables with blankets over it.

Now, did you engineer this thing?

Me and my neighbors.

Your neighbors were over once in a while to give

you | some help?

A. Yes.

5 OBOPOPO PO

con

prerereriopererer

23

2.1 Was N. ever over there that day to help you build

that

[74] A. No.

Q. Did you call N. or did she call you?

A. Icalled N.

Q. What time, if you recall, did she come over to

your house?

Between 9 and 9:30.

At night?

Yes.

It was a Friday night; right?

Yes.

Did you girls stay in your parents’ home for a

OPOoOPoOS

while?

A. Yes.

Q. What time do you think it was that you went

outside?

A. About 10 o’clock.

Q. Were you girls going to sleep in your sleeping

bags?

A. Yes.

Q. Did you have one too?

A. Yes.

Q. Pillow?

A. Yes.

Q. What else did you bring out there?

A. A lamp, cookies, pop, a Simon game.

[75] Q. How were you going to drink the pop?

A. Oh. And two cups.

~ What kind of cups were those?

They were plastic, and they were yellow with a

white rim inside.

Q. Where did you get those cups?

A. In the house, in the cupboard.

Q. Did you bring anything to see with you?

A. A lamp and a flashlight.

° Whose flashlight was it?

My dad’s.

24

Q. How many cups did you bring with you?

A. Two. .

Q. The next morning were there still two cups in

there?

A. No.

Q. How many?

A. One.

Q. Was your flashlight still in the tent?

A. No.

Q. Now, this tent, did you lay some blankets down

on the grass?

A. Yes.

Q. Spred them out, sort of?

A. Yes.

[76] Q. Put your sleeping bags on top of that?

A. Yes.

Q. And your pillows?

A. Yes.

Q. C., I show you what has been marked as State’s

Exhibit 1C for identification and would ask you, do you

recognize this?

A. It’s my sleeping bag. oa .

Q. Is it, oh, substantially in the same condition as it

was when you had it there on August 2 sleeping in the

tent?

A. Yes. ; .

MR. ROLFES: I offer State’s Exhibit 1C in evidence

as State’s Exhibit No. 1C.

MR. WOLFE: No objection, your Honor.

THE COURT: Exhibit 1C is admitted in evidence.

Q. You also had a pillow; right?

A. Yes.

Q. C., I show you what’s been marked as State’s Ex-

hibit 1D and ask if you recognize this.

A. My pillow. .

Q. This was in the tent with you that night?

A. Yes.

25

MR. ROLFES: I offer State’s Exhibit 1D in [77]

evidence.

MR. WOLFE: No objection.

THE COURT: Exhibit 1D is admitted in evidence.

Q. Now, you mentioned you had a couple of blankets;

right?

A. Yes.

Q. I show you what has been marked as State’s Ex-

hibit 1F for identification. Do you recognize this?

A. My blanket.

Q. Was this the blanket that you used for the floor

of your tent that night?

A. Yes.

MR. ROLFES: I offer State’s Exhibit 1F in evidence.

MR. WOLFE: Noobjection.

THE COURT: State’s Exhibit 1F is admitted.

Q. C., I show you what has been marked as State’s

Exhibit 1E for identification and would ask if you recog-

nize this.

A. A blanket.

Q. Is this also another blanket that you girls used

for floor and bedding—

A. Yes.

Q. —inside your tent?

[78] A. Yes.

Q. And all this stuff you had in there that night

when you and N. slept in your backyard; correct?

A. Yes.

MR. ROLFES: I offer State’s Exhibit 1E in evidence.

MR. WOLFE: No objection.

THE COURT: Exhibit 1E is admitted in evidence.

Q. Now, C., this was August 2 of this year. About

what time that evening did you and N. go out to your

tent?

A. About 10 o’clock.

Q. And you had all those things with you that we’ve

just gone through; correct?

A. Yes.

26

The sleeping bag and the pillow and the blankets.

Yes. Ml

What did you girls do when you got out to this

of

rOPoPsOPo

We drank pop, and we played a Simon game.

Did your Simon game have any batteries?

Well, we had to take them out of a flashlight.

Whose flashlight?

. My dad’s.

[79] - C., I show you what I’ve marked as State’s

Exhibit 2C. Do you recognize this?

A. Our batteries.

Q. Look just like them?

A. Yes.

Q. I show you what’s been marked as State’s Ex-

hibit 2B. Do you recognize this?

A. My batteries.

Q. These are batteries you took out of your flash-

light?

A. Yes. .

Q. At least they’re just like the batteries; right?

A. Yes.

Q. C., I show you what’s been marked as State s

Exhibit 2A for identification. Do you recognize this?

A. A flashlight.

Q. Whose flashlight?

A. My dad’s. ee

Q. Did you have a flashlight just like this in your

tent that night?

A. Yes.

MR. WOLFE: Objection. The question is leading.

The witness has already answered the question on the

basis of the previous question. ;

THE COURT: The answer may stay in.

[80] Q. Now, C., did the flashlight that you had have

white stuff over it?

A. No.

27

Q. Other than that, would you say it’s very similar

to yours?

A. Yes.

Q. What time do you think you girls went to sleep?

A. 10:30 or 11.

Q. You don’t really know for sure, though, do you?

A. No.

Q. Now, C., you’re asleep inside your tent. What

is the next thing you recall happening?

I saw a man craw] into our tent.

Were you sort of wakened up?

Yeah. I was half awake.

What happened next?

The man grabbed our throats.

Both of yours?

Yes.

Did he say anything?

He said, “If you scream, I’ll knock you out.”

What did you do?

We just sat there.

Were you laying down or sitting up?

Laying down.

Q. What happened next?

He asked us our age.

What did you tell him?

Thirteen.

Did ne ask you anything else?

He said, “I only thought there would be one of

you in the tent.”

Q. Do you recall if he asked you any other kinds of

questions?

He asked us if we were virgins.

Did you know what a virgin was?

No.

Then what happened?

He told us to get out of our sleeping bags.

Did you do that?

Yes.

POPOPOPOPOPO>D

_

oo

os

—

PO PO p

POPO POP

POP PO

MR. WOLFE:

MR. ROLFES:

>OPOPOPOPOPO PO PO PONOPO

28

What happened then?

He told us to take our clothes off.

Did you do that?

Yes.

Did you take off all of your clothes?

We left our panties on.

How come?

Because he told us to leave them on.

Then what happened?

A. He started feeling us around.

Where did this man touch you?

In the breast and the vagina.

What do you next recall happening, C.?

He told us to take our panties off.

Did you do that?

Yes.

Then what happened?

He started feeling us around again.

Where?

On our breasts and our vaginas.

Did this go on for a while?

Yes.

What happened to your panties?

He put them in this white bag.

Was it your white bag or his?

His.

Do you recall what next happened?

He started kissing us on the cheeks and lips.

I can’t hear you.

Speak up a little bit more, okay?

THE WITNESS: Yes.

THE COURT: Mr. Reporter, so that the jury can

hear, read the last answer.

(Whereupon, the requested portion of the [83] record

was read back by the reporter. }

Q. C., could you see this man?

A. Not very good.

Q. How come?

A. Well, it was dark, and he shined his flashlight in

our eyes.

Did you try to look at him?

No.

How come?

We were too scared.

Were you scared?

Yes.

Did you cry, or anything like that?

No.

Shake?

Yes.

So what happened next?

He took his clothes off.

Then what happened?

He made us touch his penis.

Did you?

Yes.

Because he told you to?

Yes.

But you girls didn’t want to do this, did you?

A. No.

Q. Do you recall what the next thing is that hap-

pened?

~

EOPOPOPOPOPOPOPOPOPO

A. He made us put our mouth on his penis.

Q. Did you do that?

A. Yes.

Q. Then what happened?

A. He made us lay back down.

~ oun poh aes ready to go then, do you recall?

Q. What do you recall happening next?

A. He went to the bathroom in the yellow cup.

a One of those cups that you had brought out to the

nt?

A. Yes.

30

Q. Did you go to the bathroom?

A. No. ;

Q. Was there any discussion about that?

A. He asked us if we had to go to the bathroom.

Q. Did he ask you to do anything? =

A. He asked us to go in his face, but we didn’t have

g

Q. Was it afterwards, then, that this man urinated

in this cup?

A. Yes.

Q. Could you see him do that?

5] A. No.

Q. How do you know he was doing that?

A. He told us.

Q. Did you also hear him?

A

Q

Yes. .

Now, C., was it sometime after that that this man

A. Yes.

Q. Did he talk to you girls before he left? .

A. He was trying to think of a way to get out with-

out us telling. ; .

Q. Did you have any conversations with this man

at all about telling people what happened? ee

A. He was being really nice to us, and he said, If

ou told, you’d have to go through a lot of things.

: Q. So the man has had you iay back down. What do

you recall happening next, then, C.?

He tied us up.

How did he tie you up?

With my jogging pants. ;

Did he tie up your legs or your hands or what?

Our arms, to the back.

Your arms to vour back?

Yes.

. And then what happened?

[86] A. He was trying to look for a flashlight and he

said all these naughty words.

OPOrorepr

31

Q. And then what happened?

A. He got together all his stuff, and then he said

he’d be back in two seconds. He never came back.

Did you girls stay out in the tent a while?

For about 15 minutes.

How come?

Because we thought he was going to come back.

Were you scared?

Yes.

When this man left, did he take anything of yours

him?

A. He took our panties and the cup and the flashlight.

Q. The flashlight that you identified earlier?

A. Yes.

Q. Now, C., inside your tent, when this man came

in, how would you describe that?

A. He was muscular and he was pretty tall and he

had a mask on. (sic)

Q. What was it like inside your tent?

A. It was dark.

Q. You really couldn’t see very well at all, could ycu?

A. No.

(\87] MR. WOLFE: Objection.

THE COURT: The answer goes out. You’re lead-

ing too much.

wi

SOPo PO PO

Q. Did you look at this man very “uch?

A. Not very much.

Q. Why not?

A. Because we were scared. He looked scared.

Q. Any other reason?

A. It was dark.

Q. Would anything happen if you tried to look at

him?

A. He’d shine the flashlight in our eyes.

Q. Now, C., was this man wearing any jewelry,

that you could tell.

A. He had a watch.

Q. You could see that?

A. Yes.

32

Q. How was his watch worn? ;

A. It was halfway up his arm, almost to his elbow,

and it was—the face was upside down.

Q. What do you mean “upside down”?

A. It was right here.

Q. Do you want to show these people how this watch

was worn.

A. It was way up here, and it was upside down. The

face was right here.

[88] Q. Do you recall much about that watch? What

kind of band it had, or anything like that?

A. It was = stretch band.

Q. Now, this man himself, what, if anything, did you

notice about his hair?

A. It was blondish brown, and he had a little pony-

tail in the back and I think it was braided.

Are you positive?

No.

Why not?

Because it was dark.

Did you also think you saw something else?

. I thought I saw a green mask on him; and he had

holes in the eyes, the mouth and the nose, and then right

here he had makeup.

Q. C., are you absolutely positive about that?

A. No.

Q. Why not”

A. Because it was dark.

Q. If you saw tha mas again, would you be able to

>OoPOoPe

identify him?

A. No.

Q. Why not?

A. Because he probably looks different.

Q. Did you ever have a good look at him?

[89] A. No.

. Now, C., this hair that you mentioned, ponytail

or whatever, what was your impression as to how long

this was?

33

A. It was only about an inch long.

Q. Are you positive it was braided?

A. No.

Q. C., in preparing for this trial, you and I have

come into this room and talked, haven’t we?

A. Yes.

Q. And you tell me what you’re going to say; right?

A. Yes.

Q. Dol tell you what to say?

A. Kind of.

Q. Dol have you make things up?

A. No.

Q. Dol have you tell the truth?

A. Yes.

MR. WOLFE: Your Honor, I would object for the

leading nature of the questions.

THE COURT: Well, don’t lead, but there’s no ques-

tion to rule upon at the moment. Some of those questions

were not leading.

Members of the jury, a leading question is a question

which suggests the answer.

[90] Go ahead, Mr. Rolfes.

Q. C., sometime ago you submitted what we call a

deposition, didn’t you?

A. Yes.

Q. Now, in preparing for trial, did you review that

again?

Yes.

Do you recall that deposition?

Yes.

Mr. Wolfe was asking you questions; right?

Yes.

How would you describe the man’s voice?

It was pretty low.

. C., during this time that this man was in the tent

with you, did you have any contact of any kind with N.?

A. He made us kiss each other.

OPOoroOPop

34

Q. Did he tell you anything more? or

A. He said, “Feel like you’re enjoying it.

Q. C., when this was all over, sometime later did

Sergeant Lyle Smith come to your home?

A. Yes.

Q. Why did he come to your home?

A. He had to take hair samples.

Q. Did you give him some?

[91] A. Yes. .

Q. What kind of hair samples did you have to give

A. Head hair and pubic hair samples.

Q. Did that hurt to do that?

A. A little.

Q. Then what did you do with them after they were

pulled?

A. I gave them to Lyle Smith.

Q. Did you put them in something?

A. An envelope.

Q. C., I show you what has been marked as State’s

Exhibit 7C for identification. Can you identify that?

A. Yes.

Q. What is it, please?

A. Hair samples. ; '

Q. Is State’s Exhibit 7C an envelope in which you

put your head hairs?

A. Yes.

Q. I show you what has been marked as State’s Ex-

hibit 7D for identification. Would you identify that?

A. Pubic hair samples.

Q. You put them in this envelope?

A. Yes. ;

Q@. And you gave them to Detective Sergeant Lyle

Smith?

[92] A. Yes. an .

MR. ROLFES: I offer State’s Exhibit 7C in evidence.

MR. WOLFE: No objection. .

THE COURT: State’s Exhibit 7C is admitted.

35

MR. ROLFES: I offer State’s Exhibit 7D into evi-

dence.

MR. WOLFE: No objection.

THE COURT: State’s Exhibit 7D is admitted into

evidence.

Q. Now, C., after this man left, what was it that was

missing from your tent?

A. The cup, the flashlight and our panties.

MR. ROLFES: Thank you. I don’t have any further

questions.

THE COURT: Mr. Wolfe will talk to you now.

MR. WOLFE: Your Honor, can counsel appreach the

bench?

THE COURT: You may.

(Whereupon a discussion was had out of the hearing

of the jury and reporter. )

THE COURT: Mr. Wolfe will address the jury.

MR. WOLFE: Ladies and gentlemen of the jury, un-

fortunately attorneys make errors in keeping their ma-

terial together. The previous witness—there was an

[93] exchange regarding the height of the assailant, and

in seeking to raise questions whether or not there had

been a prior inconsistent statement regarding the height,

I made reference to a deposition. It was my error. I

was making reference to Miss B.s’ deposition, not to

Miss C.s’ deposition. And in order not to have any-

one misled, it should be understood that the deposition

taken on August 21, on page 32, lines 8 through 17, the

exchange took place:

“Now, going with your assailant, I realize he

never stood up or you didn’t see him when he stood

up. Is there any way you can describe, though—was

he short? Did you have the impression he was short?

Did you have the impression he was tall, medium?”

The answer was:

“Tall—medium.”

36

Which is consistent with what the witness testified

to from the stand, and I didn’t want to leave the impres-

sion that she had incorrectly stated it at an earlier time.

THE COURT: Have you understood what Mr. Wolfe

said?

The indications are affirmative.

You may cross-examine.

(94] MR. WOLFE: Thank you.

THE COURT: Thank you, Mr. Wolfe.

CROSS-EXAMINATION

BY MR. WOLFE:

Q. Hi.

A. Hi.

Q. We've had a chance to meet before, haven’t we?

A. Yes.

Q. In fact, | made reference to August 21, what was

called depositions, and we met at that time, didn’t we?

A. Yes.

Q. The same subject was discussed; is that correct?

A. Yes.

THE COURT: Before we start, is there any juror

that can’t sit for another 20 minutes? I really think

it would be wise—we’ve been sitting a long time. We

will recess now for at least 10 minutes.

Remember the admonition.

(Whereupon, court was recessed at 11:20 a.m., on

November 14, 1985, and reconvened at 11:33 a.m., on

November 14, 1985.)

THE COURT: C. B. is on the stand, and she is

under oath.

And, Mr. Wolfe, you may cross-examine.

[95] BY MR. WOLFE:

Q. Good morning.

A. Hi.

37

Q. We had a chance to meet a couple weeks ago—no,

it would be more than that—probably more like a couple

months ago. That was, I believe, August 21, which

would have been roughly three weeks after this incident

took place; is that correct?

A. Yes.

Q. Now, what I’d like to do is to go over a few

points to just clarify some of the matters. It’s been

your misfortune, shall we say, to discuss this with many

different people since August 2; is that correct?

A. Yes.

Q. In fact, immediately after the incident you dis-

cussed it with some investigating officers for purposes

of helping them identify who the assailant would have

been.

A. Yes.

Q. And then after that you, of course, discussed it

with myself and Mr. Rolfes at depositions. And then

more recently you’ve had a chance to review some of

that here in the courtroom; isn’t that correct?

A. Yes.

Q. By that, I mean earlier this week, before we con-

vened here, you had a chance to go through some of this

{96} with Mr. Rolfes.

A. Yes.

Q. Now, at the time that you spoke to the police

officers immediately after the incident or at the time the

deposition was given, at all those times you were teiling

the facts as best you could recall them, weren’t you?

A. Yes.

Q. Now, at both of those times—in other words, in

discussing the matter with the pclice and also later dis-

cussing it with me, you recalled your assailant wearing

a mask, didn’t you?

A. Yes.

Q. Now, could you explain for the jury what you

recali that mask being? How did it look?

38

A. I think it was green, and it had holes cut in the

eyes and nose and the mouth and right here.

Q. Now, you think it was green. Was it like one

iece of material, is that all it was? .

‘ A. Well, it looked like it was tied together, like little

knots.

Q. Possibly like a sock, or something like that, that

was wound around the head?

A. Yes.

Q. What was the color of the sock?

A. I think it was green.

[97] Q. Now, was there anything else over that? Was

there anything in addition to that?

A. It looked like there was a nylon over it.

Q. A nylon over the top of it?

A. Yes.

Q. Now, you mentioned that the sides were cut out

where the cheeks were at; is that correct?

A. Yes.

Q. Was there also an area cut out for the eyes?

A. Yes.

Q. Was there also a point for the mouth?

A. Yes.

Q. I don’t know, was there for the ears and for the

nose? I don’t want to suggest there was. I don’t know

whether or not there was.

A. I think so.

Q. Now, was there any kind of makeup, that you

could see? | .

A. Well, I think there was white stripes and red

stripes.

Q. Various colored stripes?

A. Yes.

Q. Would that be red, white and also some other

colors?

A. I can’t remember.

39

[98] Q. Now, in attempting to help the police identify

your assailant, do you recall talking to a Detective

Speakman?

A. Yes.

Q. Did you tell him about the ponytail?

A. I don’t remember.

Q. Now, if he would indicate that you made refer-

ence to a ponytail, blondish brown, extending approxi-

mately three to four inches below the mask, would that

seem to be consistent with what you probably told him?

A. It was about an inch long.

Q. So if he put down three to four inches, would it

be your recollection that you didn’t say that at that

time or that he got it incorrect?

A. I don’t know.

Q. This would have been the morning after it took

place?

A. (No yerbal response. )

Q. You're not sure?

A. No.

Q. Now, C., at various times did you come into close

contact with the assailant from the standpoint of being

required to kiss him?

A. Yes.

Q. In fact, that was on about three different [99]

occasions during the course of the time that he was in

the tent; is that correct?

A. I don’t remember.

Q. But it was more than once?

A. Yeah.

Q. One of those times you said he kissed you on the

cheek.

A. Yes.

Q. Another time he kissed you on the mouth; is that

correct?

A. Yes.

40

Q. Was there one point where he grabbed your hair

and forced you to kiss him?

A. I think so.

Q. Now, in all those times, of course, you were in

direct contact with his face. That’s, of course, correct,

isn’t it?

A. Yes.

Q. Was it your impression at all of those times

that he had a mask on?

A. I’m not sure. .

Q. Well, you’ve had a chance to review the deposi-

tion you gave on August 21.

A. Yes.

Q. Now, do you recall that in there you gave a rather

[100] detailed explanation of this mask?

A. Yes. .

Q. In giving that explanation, did you believe that

the man actually had a mask on?

A. I’m not sure.

Q. Well, you were under oath at that time, weren't

you? You were supposed to tell the truth.

A. Yes. Mg

Q. And you sought to do so, didn’t you?

A. Yes.

Q. Now, at that time you indicated that your assail-

ant wore a mask.

r poe you described it the way you've described it

to the jury now; is that correct?

A. Yes.

Q. In doing that at that time, you were telling the

matter as you thought to be correct; isn’t that true?

A. Yes.

Q. Now, were you provided with copies of the deposi-

tion that you gave?

A. Yes.

41

Q. Was N. supplied with a copy of the deposition

she gave?

A. Yes.

[101] Q. Did you become aware of the fact that there

was an inconsistency between what she said about the

mask and what you said about the mask?

A. Yes.

Q. Now, you've also testified about a watch. Now,

some watches—watches are getting to be very fancy.

Some watches have a luminous dial and also luminous

numbers, I believe, and I’m sure it’s true some watches

even light up. You can punch a little button and they

light up. Now, you indicated that the face of this watch

was upside down. What was on the face? I mean was

it a watch with a face similar to the courtroom clock,

where there are numbers on it, was it somehow or an-

other lit up? In view of the fact that the face was up-

side down, I gather you saw the face.

A. Yes.

Q. Can you describe what the face looked like?

A. There were numbers on it.

Q. Now, somewhat similar to that? Is that the style

we're talking about?

A. Yes.

Q. Now, the assailant was wearing some type of

pants or trousers when he came into your tent.

A. Yes.

Q. To your recollection, you can’t recall anything

[102] else that he had on?

A. No.

Q. Is it your recollection that the trousers were rolled

up above his knees?

A. Yes.

Q. They were rolled up somewhat above his knees,

was that correct?

A. Yes.

Q. And that they were blue trousers; is that correct?

A. Yes.

42

Q. And that they also had a white stripe or maybe

what we’d call white piping down the side?

A. Yes. a

Q. Was the white on any other place or was it just

down the side?

A. I think just the side.

Q. Was there also in the tent some kind of a Tupper-

ware holder? I think you mentioned that you had some

cookies with you.

A. Yes.

Q. Could you describe that for the jury? Was that

like a pan with a lid on it? How would you describe

it?

A. It was a plastic white thing, and you could see

through it, and it had a lid on it. .

Q. Was that in the tent when the assailant was

there?

(103) A. Yes. re

Q. During the course of the assailant’s stay in your

tent, did he end up moving many of your items around?

A. He knocked some over. .

Q. He had contact with the clock you had in there;

is that correct?

A. Yes, he looked at it.

Q. He also grabbed your flashlight and he took your

flashlight.

A. Yes.

Q. Do you recall whether or not he had any contact

with the Tupperware?

No.

Q. You don’t know, is that it?

A. (No verbal response. )

Q.

A

>

Now, did the assailant take the underpants?

Yes.

Q. How long would you estimate that the assailant

was in the tent with you?

A. About an hour and a half.

43

Q. Do you know what time it was you went into the

house? |

A. About five minutes to 6.

Q. By 6 o’clock on August 2, was it light?

A. Yes.

{104} Q. Now, were you able to notice that it was

get‘ing lighter earlier in the morning?

x Yes.

Q. Was that because your assailart «would look out

the side of the tent at times?

A. You could see the light coming through.

Q. So the light—it was tending to light up the tent

a little bit itself; is that correct?

A. Yes.

Q. Now, you’ve testified that the assailant urinated

in one of the plastic glasses that you had. Was this be-

fore or after he was lying down between you and Miss

C.?

A. Before.

Q. Before. Okay. And then sometime after that he

spent some time trying to figure out how he could leave

and get away; is that correct?

A. Yes.

Q. And at that point he was just lying between you

and N.

A. Yes.

Q. Now, did you ever notice what happened to the

urine in the cup? That sounds rather silly, perhaps, but

did he throw it out or did he just put it down or did

he take it with him when he left? I’m not talking about

the [105] cup, I’m talking about what was in it.

A. I think he took it with him.

Q. So that was just sitting someplace in the tent,

and then later on, when he left, he picked it up and he

took it with him.

A. Yes.

Q. Now, if I couid just ask you something else in con-

nection with the watch.

44

You’ve indicated you could see that the face was up-

side down, and you’ve indicated that there were numbers

on the face. Was this a luminous dial or—how were

you able to see the numbers in view of the fact that it

was dark in the tent?

A. It was getting lighter by that time.

Q. So you were able to see it by just looking at it?

A. Yes.

Q. Now, after your assailant left, did you hear a

motorcycle start up?

A. Yes.

Q. Arather loud motorcycle?

A. Yes.

Q. Was this, say, half a minute or so after you heard

him leave the tent?

A. Yes.

Q. Did that come from the general direction that

would [106] be from the street in front of your house?

A. I think it was in back of my house.

Q. After you heard that motorcycle start up, did you

ever see the assailant again?

A. No.

Q. Now, had you ever used tuis tent before?

A. Yes.

Q. Had you ever had any of your friends come over

and join you?

A. My neighbors had.

Q. Your neighbors had. Would the tent be taken

down and then put back up? Is that the way it worked?

A. Yes.

Q. Do you have any idea how many times you had

done this before? Was it maybe once or twice or was it

frequently?

A. Twice.

Q. Twice. Okay. Now, do you recall what height

your assailant was?

A. He was pretty tall.

45

Q. Do you recall telling me at the time your deposi-

tion was taken thet he was prob i

saad probably abovt medium

A. Yeah.

Q. Yes?

[107] A. Yes.

Q. Now, at that time was that your be

. / t

what his height was? 7 rae

A. Yes.

* = you have any reason to change that now?

. No.

Q. Se you would think h

nationale e would have been about

MR. ROLFES: I would ask couns

: el, yo H

"a at in the deposition he’s referring to. —pheaan

ean E COURT: Are you going to pursue the deposi-

MR. WOLFE: No.

THE COURT: Show him what you’re talking about.

Q. Now, when the assailant left your tent, he took a

—a of things with him, didn’t he?

. Yes.

Q. It would be your recollection tha

t h

that had some urine in it. si" flan

A. Yes.

Q. And he took a flashligh epee

' ght he had brought w

and a flashlight that you had in the tent. ug ith him

A. Yes.

. He took

5 - ook the underpants that belonged to you and

A. Yes.

Q. And, of course, he had o i

he wilt slainn n the blue trousers with

Yes.

Q. It was your recollection the next day and at the

time the deposition was taken that h :

: e also ,

mask on his face; is that correct? a WE the

A. Yes.

46

Is there anything else you can recall that he took?

He took his white bag.

He took his white bag.

Yes.

One other thing. Is it your recollection what the

color of his hair was, the hair that you saw?

A. Blondish brown.

MR. WOLFE: I have no other questions.

OPOoPe

REDIRECT EXAMINATION

BY MR. ROLFES:

Q. C., you heard a motorcycle start; right?

A. Yes.

Q. Are you sure how much time elapsed between the

time this man left and the time this motorcycle started?

MR. WOLFE: Objection. The question is [109] lead-

ing.

THE COURT: Overruled. You may answer.

THE WITNESS: No.

Q. Was it quiet outside?

A. Yes.

Q. Are you sure from what direction you heard this

noise?

A. I’m not really sure.

Q. Are you sure how far away this noise was?

A. No.

MR. WOLFE: Your Honor, I would continually ob-

ject to the questions as leading.

THE COURT: Just do it on time and you'll have

your record. She answered. That time you had time to

object, and the objection is not timely. The answer may

stay in. There will be no standing objection.

C., don’t answer very rapidly. Pause a little bit so

that Mr. Wolfe can object.

MR. ROLFES: I have no further questions.

THE COURT: Mr. Wolfe.

47

RECROSS-EXAMINATION

BY MR. WOLFE:

Q. C., do you ecall telling Detective Speakman about

the motorcycle.

A. Yes.

[110] Q. If it was his recollection that you said you

heard it start about 30 seconds after the assailant left

the tent, would that probably be what you told him?

A. Yes.

Q. But you are also saying that was an estimate, and

it may have been a minute or two minutes or three min-

utes, but it was shortly after the assailant left the tent.

Would that be a correct way to put it?

A. Yes.

Q. So it might have been a minute or two minutes

more, but there was no question that it took place shortly

after he left.

A. Yes.

Q. Now, you’re also saying you’re not sure exactly

what street the motorcycle left from. Is that also correct?

A. Yes.

Q. But is it also safe to say that you had the im-

pression it was close to the general vicinity of the house

and where the tent was at?

A. Yes.

Q. It could have been maybe on the street, east or

west of you, but it was someplace close to where you

were at?

A. Yes.

[112] JOHN KILGORE,

witness herein, called as a witness by Plaintiff, having

been first duly sworn, was examined and testified as

follows:

eG—

48

DIRECT EXAMINATION

BY MR. ROLFES:

Q. Would you please state your occupation ?

A. My occupation is that of a criminalist for the

Iowa Division of Criminal Investigation, criminalistics

laboratory. , ,

[119] Q. What was that, sir?

A. That box contained a flashlight, two batteries and

a plastic cup. A,

Q. Mr. Kilgore, I show you State’s Exhibit 2A and

ask you if you recognize this.

A. Yes, I do.

[120] Q. What, if anything, did your examination re-

veal, Mr. Kilgore?

A. My examination revealed that there were three

latent fingerprints suitable for examination on the ex-

terior surface of this flashlight.

[121] Q. Now, Mr. Kilgore, please state your conclu-

sion.

A. My conclusions are that two of the latent impres-

sions developed on State’s Exhibit 2A were made by the

same individual whose rigiut index fingerprint is on the

fingerprint card, State’s Exhibit No. 5, bearing the name

John Avery Coy. The third latent impression on State’s

Exhibit 2A was made by the same individual whose right

middle fingerprint is on State’s Exhibit No. 5, the finger-

print card, bearing the name John Avery Coy.

[123] Q. Now, Mr. Kilgore, did you also attempt to

make lifts on other items?

A. Yes.

Q. Specifically what, sir?

A. Two batteries and a plastic cup.

49

Q. Are these the same two batteries and plastic cup

that you’ve previously testified to were in the small box

marked State’s Exhibit 2?

A. Yes.

Q. Mr. Kilgore, I hand you what’s been marked as

State’s Exhibit 2C and ask if you could identify that,

sir.

A. Yes, I can. This is one of the batteries that I had

processed to determine if there were any suitable latent

fingerprints on it.

Q. With regard to that exhibit, sir, were you able to

determine whether or not there were any suitable latent

fingerprints on that particular battery?

A. I was able to determine that there were no suit-

able latent impressions on the battery suitable for exam-

ination.

[124] Q. I hand you what has been marked as State’s

Exhibit 2B for identification and would ask if you could

identify that.

A. Yes. Exhibit 2B is the other battery that was in-

cluded with the previously mentioned battery that I had

examined. I made an examination of this battery for

the presence of latent fingerprints but found no latent

fingerprints suitable for identification.

[132] PAUL J. BUSH,

witness herein, called as a witness by Plaintiff, having

been first duly sworn, was examined and testified as

follows:

50

DIRECT EXAMINATION

BY MR. ROLFES:

Q. Mr. Bush, what is your occupation or profession?

A. My occupation is a criminalist for the Iowa Divi-

sion of Criminal Investigation, State crime lab.

[135] Q. What exhibits, sir, do you recall receiving

from the City of Clinton Police Department relative to

this case?

A. As far as evidence concerning this case, I received

on 8-6-’85 items including bedding from a tent, hair and

fingerprints from a tent, body samples from John Coy,

known fingerprint cards, plastie cup and flashlight and

batteries, clothing of N.C., clothing of C.B. Also, I re-

ceived on 11-4-’85 an envelope containing head and pubic

hairs from both N.C. and C.B. Also, on 11-6-’85 I was

resubmitted or rereceived known hair samples from items

that I initially talked about on evidence received 8-6-’85.

[149] Q. Now, Mr. Bush, what was it that your tests

revealed?

A. As far as these items are concerned, the three

pubic hairs that were recovered from the bedding from

the tent were examined and found to be similar to John

Coy’s known pubic hairs. They were also compared to

the known pubic hairs of both C.B. and N.C. and were

found to be dissimilar to their known pubic hairs, As

far as the head hair that was recovered from the blue

shorts, it was found to be similar to the known head hairs

of John Coy. It was also compared to the known head

hairs of C.B. and N.C. and found to be dissimilar from

both those two individual’s known head [150] hairs.

[153] Q. Do you recall when that was, sir?

A. As far as the first items, the bedding—that was

mailed back on 11-1-’85 by myself. As far as the other

51

evidence, the known hairs of C.B. and [154] N.C. and

the hairs that were resubmitted, they were mailed back

by myself on 11-7-’85 by first-class mail.

A. Yes, that’s correct. They were returned at the

same time that the bedding was returned, on 11-1-’85.

MR. ROLFES: Thank you, Mr. Bush. I have no

further questions.

* * e e

CROSS-EXAMINATION

BY MR. WOLFE:

[156] Q. Now, in connection with the analysi

4 sis refer-

ence is made to the fact that five hairs pn eran

from the package in Exhibit B, which is identified as

a an envelope containing hair and fingerprints from

Was it possible to identify whose hair w imi

the hair found in that envelope? Sou guates

A. As far as the five hairs that were recovered

from

the tent that I talked about here in Exhibit B, I only

compared those to the known hairs of John Coy. I did

not compare those to C.B.s’ or N.C.s’ known hairs.

Q. Were those hairs similar to John Coy’s?

-y “ay they were not.

. it is not known who they may have been simi-

tb At least we know they were not similar to John

A. Yes, that’s correct.

[161] IB.

witness herein, called as a witness by Plaintiff, having

been F .

oa docu duly sworn, was examined and testified as

52

[162] DIRECT EXAMINATION

BY MR. ROLFES:

Mr. B., you’re the father of C.?

Yes.

Where are you employed, sir?

Du Pont.

Here in Clinton?

Yes.

How long have you been employed there?

Twenty-one years.

Q. Mr. B., as a part of your employment with Du

Pont, are you issued any types of equipment?

A. Yes; certain tools.

Q. Could you give me some examples, sir?

A. Different wrenches, flashlights, and stuff like that.

Q. Were you, as part of your employment at Du

Pont’s, ever issued a flashlight or flashlights?

A. Yes.

Q. Do you recall how many?

A. A couple of them.

[163] Q. These flashlights, would you describe them

to me, sir?

A. Well, they’re all the same: black with a little

silver ring on the back end where you could hook it on

to something, and a red cap.

Q. On August 2, 1985, do you recall if you had any

such flashlight or flashlights in your possession?

A. Yes.

Q. How many, if you recall?

A. Two.

Q. Now, that night, August 2, 1985, your daughter

and N. went out to sleep in a tent in your backyard;

is that correct?

A. Yes.

Q. Do you recall whether or not they took one of

your flashlights—

A. Yes.

POPo Pore

53

Q. —with them?

A. Yes.

Q. And did they, sir?

A. Yes.

Q. Did you mark those flashlights in any way?

A. No.

os * oe *

[164] Q. What does that Exhibit 2A look like?

A. It looks like one of my flashlights.

4 Can you be certain?

Well, the front end usual] ts ban i

around the rim from putting it in the = ay

Q. But you had basically not made any particular

type of marking on your Du Pont flashlight; is that

correct, sir?

A. No.

Q. Now, when you leok at that flashli i i

, ght, identified as

Exhibit 2A, how does that rim that , i

appear to you? et nates

A. It’s damaged.

Q. And yours was also damaged?

A. Yes.

Q. Now, Mr. B., with regard to i

, . your flashlight that

the girls used that night, did that have any other [165]

—s about it, that you can recall?

. Well, I think it had an extra bulb in the end of

it, and it didn’t work when she was going to take it a,

I had blue industrial batteries in it and I changed them

to red industrial batteries that night that she used it.

[168] Q. Now, Mr. B., in the ear! i

, Mr. B., y-evening hours, late

afternoon on August 2, 1985, did you h ic

meee lca you have occasion to

A. Yes.

Q. Was your daughter C. in your backyard?

A. Yes.

54

Q. What was she doing?

A. She was building a tent.

[169] Q. Do you recall seeing anyone else?

Yes.

Who?

John Coy.

About when was this?

Around 6 in the evening.

Where?

. Sitting in the Bingham backyard back by the gar-

den in a lounge chair, facing the house, where he’s never

sat before.

Q. Facing which house, sir?

A. Straight up toward the Bingham house.

Q. Did you have occasion at about this time to be in

the neighborhood or in close proximity to your daughter’s

tent?

A. Yes. We were going out to pick tomatoes around

that time, and as we walked out to the garden, he just

got up and left the chair and went up to the house.

Q. Was C. outside at that time?

A. Yes.

Q. From the area of the tent, were you able to ob-

serve Mr. Coy in the Bingham backyard?

A. Yes.

Q. Was there anything obstructing the view?

A. No.

[170] Q. Mr. B., I show you what has been marked

as State’s Exhibit No. 13 for identification and ask you

if you recognize that.

A. Yes.

Q. What is it a picture of?

A. It’s part of the Bingham’s privacy fence and the

chain link fence, with a gate, going into their backyard.

It also shows the lounge chair down by the garden.

POoOPOoOPOoP

[175] Q. Mr. B., I show you what’s been marked as

State’s Exhibit 19 for identification and ask you if you

recognize that.

A. Yes.

Q. What is that a picture of, sir?

A. It’s taken from another angle from behind the

garden showing the house. If you look at this closely,

if you was back here coming through the yard or some-

thing, you don’t really notice the tent from this distance.

[177] Q. Now, Mr. B., on August 3, 1985 after you

became aware of what had occurred, had you gone out-

side, sir?

A. I just looked out the back door. I didn’t go near

the tent.

Q. Did you have occasion to see in the area of the

Bingham residence?

A. Yes.

Q. Particularly in the area of the gate?

A. Yes.

Q. Now, that picture would be State’s Exhibit 13.

What, if anything, did you notice about that gate, sir?

A. From my back porch I could see over my patio

and I could see the gate. It was open.

Q. Mr. B., I show you what has been marked as

State’s Exhibit 2D for identification and would ask if

you can recognize this.

A. Yes.

Q. Would you please describe what this is?

A. That’s a yellow plastic cup.

{178} Q. Did you and your wife have these in your

house?

Yes.

ag regard to C. and N., did they have any?

es.

What did they do with them, sir?

2Ppo>

A. They took them out to the tent that night with

them.

Q. How many?

A. Two. :

Q. Were there two there the next morning?

A. No.

Q. Was your flashlight there the next morning, sir?

A. No.

[181] (Whereupon, the following in-camera proceedings

were had, commencing at 9 a.m., on November 15, 1985.)

THE COURT: State of Iowa versus Coy. The de-

fendant is present; his counsel, Mr. Wolfe, is present;

Mr. Rolfes, the assistant county attorney, is present.

We're out of the hearing and presence of the jury, in

open court.

Mr. Wolfe.

MR. WOLFE: Your Honor, yesterday | objected to

the use of a screen that was placed between the defense

table and the witness limiting the view of the witness

to the defense table. A limited view was available by the

defendant observing the witness through a clouded screen.

At that time, on various grounds, which are a matter of

record, I objected to the use of the screen. The court

overruled the motion. I would again make the same

motion, the testimony having taken place with the screen

being present. I would additionally move for a mistrial

on the grounds that it is impossible to cure the preju-

dice and damage done to the defendant’s case by the use

of the screen.

THE COURT: The defendant’s motion for mistrial

is overruled.

57

[193] DAVID SPEAKMAN,

witness herein, called as a witness by Plaintiff, having

been first duly sworn, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. ROLFES:

Q. Sergeant Speakman, how long have you been em-

ployed with the City of Clinton Police Department?

A. About 18 years.

{194} Q. Did you have occasion to become involved in

an investigation relative to this case?

A. Yes, sir. When I came in at 7 o’clock I was told

there had been an assault on two young girls and that

the girls were at Mercy Hospital. I was told where the

assault had taken place.

Q. What, if anything, did you do next?

A. I called Sergeant Smith. He was the acting De-

tective-Bureau captain and as such my immediate su-

perior. He was off duty for the weekend but on call for

emergencies. I called him because there were split [195]

duties, two things that needed to be done, and only one of

me. The interviews at the hospital had to be done and

the crime scene had to be processed. I called Sergeant

Smith and asked him if he would handle the crime scene

and then I went to Mercy to interview the two girls.

{196} A. What time was it that we moved to the B.s’

home?

Q. Yes, sir.

A. Shortly after 9 o’clock in the morning.

Q. What did you proceed to do there?

58

A. Weil, several things. The interview with C.B.

was undertaken at the B.s’ home. Prior to that we had

all—by “we” I mean the B. family—I think some of the

neighbors were around—and I had looked around the

yard. I had not yet seen the crime [197] scene and

wanted to look at it. I was in the backyard when Mr.

B. told me that the neighbor was heading down the side-

walk.

Q. Who was that, sir?

A. The neighbor that he pointed to was later iden-

tified by me as Mr. Coy, the defendant here.

Q. What, if anything, did you do then?

A. I went to my squad car and radioed for assist-

ance, and then drove down to the corner about half a

block south of the B.s’ home and stopped Mr. Coy.

Q. Approximately what time would that have been,

sir?

A. Shortly before 10 o’clock.

Q. What, if anything, did you observe when you

stopped Mr. Coy?

A. His general appearance—as to specifics about his

general appearance, he appeared to be normally clothed

for that day. He was—had a knapsack—a small knap-

sack on his back, and he was carrying a black case, a

hard plastic case, like a suitcase.

Q. Officer, did you observe anything about his ap-

pearance which was out of the ordinary?

A. He was wearing a watch in an unusual way.

Q. Would you describe that, sir?

A. He had the watch pushed way up his forearm, and

the watch was turned with the face towards the inside

of [198] the arm instead of the more usual, towards the

outside.

Q. Did you have occasion on August 3, 1985 to exe-

cute a search warrant?

A. Yes, sir.

Q. Where was that, sir?

59

A. That was at the residence where we were in-

formed Mr. Coy was living. The address is 1625 Ninth

Street Northwest.

Q. Would you please describe your search of the

Bingham residence.

A. Well, we searched the entire home, every room

there, from top to bottom as best we could. We rou-

tinely on searches like this where—there was nobody

home. We were the only two people in the house. We

usually split up and cover a room at a time, and then the

other officer will cover that room at a later time so that

we get double coverage on rooms.

[199] Q. What, if anything, did you find in your

search of this residence?

A. Well, we found many things. The things that we

found that were listed in the search warrant and which

were in line with this case were a flashlight—we found

a black-and-red flashlight, two batteries, a plastic cup.

* * * &

[201] Q. Now, officer, with regard to this cup, where

exactly was it that you found this?

A. Just inside the back door of the Bingham resi-

dence where Mr. Coy was living. This would be the

kitchen. It’s a door from the backyard. You climb some

stairs and there’s a door. When you get in the door

there’s a kitchen, and just inside the kitchen door is a

trash can. The cup was found in that trash can.

Q. During your search of the Bingham home, were

you able to locate any other cups similar to or like the

re -~ that has been marked as State’s Exhibit 2D?

. No, sir.

Q. Did you look for other cups similar to that?

A. Yes, we did.

Q. How would you describe your search of that resi-

dence?

60

A. Exhaustive. We went through the place several

times.

Q. You were not able to locate any other cups of

that nature; is that correct?

A. That’s correct.

[207] CROSS-EXAMINATION

BY MR. WOLFE:

Q. In connection with the interviews, did the young

[208] women give a description of their assailant?

A. Yes, sir, they did.

Q. Did either or both make reference to him having

a ponytail?

A. Both of them did, yes, sir.

Q. Do you recall from your records approximately

what type of length they were talking about?

A. Length?

Q. Yes.

A. Three to four inches is what I recall.

Q. Now, was there anything else—three to four inches

below something? Did they make reference to any type

of mask?

A. Yes, sir.

[209] Q. Now, reference was made to a watch that

John Coy was wearing that morning.

A. Yes, sir.

Q. Do you recall if that was a digital watch?

A. No, I don’t recall for sure. My best recollection

was that it was, but I don’t recall for sure.

[212] Q. Did you make a thorough search for those?

A. Yes, sir.

Q. Did you find them?

A. None that we felt compared, no, sir.

61

Q. Now, you were also looking for dark blue trousers

with a white stripe down each side. Was that based

upon a description given you of what the assailant was

wearing?

A. Yes, sir.

Q. Did you make a thorough search for those?

A. Yes, sir.

Q. Did you find them?

A. No, sir.

Q. You were also looking for a green-cloth mask with

cutouts for eyes, mouth and nose.

A. Yes, sir.

Q. Did you find anything that appeared to be in line

with that?

A. No, sir.

[213] LYLE SMITH,

witness herein, called as a witness by Plaintiff, having

been first duly sworn, was examined and testified as

follows:

[214] DIRECT EXAMINATION

BY MR. ROLFES:

Q. Sergeant Smith, how long have you bee ,

Clinton Police Department? y n with the

A. Nineteen years.

[230] Q. Officer, in your investigation of the crime

scene of the B. residence, you had occasion to view this

makeshift tent; is that correct?

A. Yes, sir.

m ae -- the general area of the neighborhood; is that

A. Yes.

62

Q. Is that tent visible from the front of the [231]

B. home?

A. No, it’s not.

Q. Is it visible from the neighbors in back of the

B. home?

A. I believe it would be very difficult for anyone from

the rear of the B. residence to see that tent.

CROSS-EXAMINATION

BY MR. WOLFE:

[235] Q. Now, were you able to account for the

motorcycle after carrying out the canvass of the neigh-

borhood?

A. No.

[236] Q. Now, as I understand it from Detective

Speakman, you also were looking for two girls’ panties

based upon what the young women said were taken from

them; is that correct?

A. Yes, sir.

Q. Did you make a thorough search for those panties?

A. I believe so.

Q. Did you have any luck in finding them?

A. No, sir.

Q. There was also mention made to a pair of white

(sic) trousers with white piping on the side. Did you

look for those?

A. They were blue with white stripes—

Q. I’m sorry.

[237] Av —but, yes, we looked for them and didn’t

find them.

Q. I think there was also reference made to a green

mask with holes cut out for the eyes and the nose and

the mouth.

A. Yes.

Q. Did you look carefully for anything that would

seem to match that?

A. Yes, we did.

Q. Now, that was based upon what, one of the young

women saying the assailant was wearing such a mask?

A. Yes, sir.

Q. Did you have any luck in finding that mask?

A. No.

& & & e

[295] (Whereupon, the following in-camera proceed-

ings were had, commencing at 9:30 a.m., on November

18, 1985.)

[296] We are in chambers; the defendant’s present;

his counsel, Mr. Wolfe is present; the assistant county

attorney is present; the press is present. The State has

rested. We are out of the hearing of the jury, we are

out of the presence of the jury.

Does the defense wish to address the court?

MR. WOLFE: Yes, your Honor. At the close of the

State’s evidence we would move the court to order a

judgment of acquittal. We would do this on the grounds

that the State has failed to introduce evidence that would

support a finding by the jury that the defendant is guilty

as charged. Additionally, and in the alternative, we

would renew our objection to the use of the screen device

that was in the courtroom during the testimony of N.C.

and C.B., and we, at this time, would renew our motion

for a mistrial based upon grounds previously stated.

With that we would submit the motions, your Honor.

THE COURT: The Motion for Directed Verdict of

Acquittal is overruled and denied. The Motion for Mis-

trial is overruled and denied. * * *

/

64

[297] SHERRILL WOHLSTADTER,

witness herein, called as a witness by Defendant, having

been first duly sworn, was examined and testified as

follows:

[299] @Q. Now, based on your acquaintanceship with

John, have you ever noticed him wearing a hairstyle in-

volving either a ponytail or a short braid, or anything

of that sort?

A. He’s never had his hair that long.

Q. So you’ve never noticed that kind of hairstyle?

A. No.

Q. Also, are you familiar with the type of watch

that he wore?

A. Yes, I am.

Q. How did you happen to notice—

A. Okay. Well, we were playing an engagement at

Molly Murphy’s, which used to be the Shot Tower, and

we were setting up equipment, and we had everything

already, and it was about 15 minutes before we were

ready to go on—and I don’t wear a watch—and this is

just kind of a freak incident—but I asked John—I said,

“Well, you know, now that I’ve got all this equipment

set up I forgot my guitar. How much time do I have

to run home and get it before we play?” and he said,

“Well”—he checked his watch and that’s when I noticed

it was a digital. I looked at it and I said, “Oh God, I’ve

only got 10, 15 minutes.”

[302] KAREN BINGHAM,

witness herein, called as a witness by Defendant, having

been first duly sworn, was examined and testified as

follows:

. . > *

[304] Now, during the period of time that you knew

John, from April up until the last time you saw him,

how would you describe his haircut?

A. Conservative. Typical conservative haircut.

Q. Did you ever notice him to wear some type of

pr’ uytail or some type of braid in his hair?

A. Never.

Q. Do you think it would have been possible, due to

the length of his hair?

(305) A. No. His hair is much too short or too fine.

Q. Now, what kind of a watch did he have?

A. He had a digital watch, black, plastic digital

watch.

Q. Was it an expensive watch?

A. No, a fairly cheap watch.

on Did that have numbers similar to the clock up

A. No, it had digital numbers.

[306] Q. Are you aware of the fact that one of the

things that was being looked for was blue trousers with

white piping?

A. Yes.

i Did you make an effort to discover whether or not

re were any blue trousers with white piping i

pa : piping in your

Yes, I did.

Did you find any?

No.

Did you make a thorough search?

Very.

Were there also some girls’ panties listed?

Uh-huh, yes.

. Now, would these panties have been different than

those worn by your daughter?

A. The search warrant said that the panties that

were looked for were size 12, and most of my daughter’s

were size 10. And, again, I looked very thoroughly. I

didn’t find any such items.

Q. Did you find anything that would appear to have

been the makings of some type of a mask?

A. No, sir.

>POPO POD

©

[307] Q. Did you ever see John riding a motorcycle

here in Clinton?

A. Never.

[309] JOHN AVERY COY,

having

witness herein, called as a witness by Defendant,

been first duly sworn, was examined and testified as

follows:

[314] Q. Do you recall what kind of a haircut you

had at that time?

AL It was basically what I have now but a little

shorter.

Q. Do you recall what kind of a watch you had?

A. Yes, I do. ro

. What kind was that

i It was a digital, one of those—I don’t think they’re

more than four or five dollars at K Mart. .

Q. Now, is that similar to the watch you’re wearing

at the present time?

A. Yes, it is, very similar.

Q. How tall are you?

A. Six-foot-three.

Q. Do you have a pair of blue trousers with white

piping?

A. No, I don’t.

Q. John, during the early-morning hours of Satur-

day morning, which I think is August 3, did you go into

a tent on the Bingham (sic) property?

A. A tent on the “Bingham” property?

(315! Q. Right—pardon me—on the B. property.

A. No, I did not.

Q. Did you in any way molest or have any contact

with two 13-year-old girls that evening?

A. No, sir, I did not.

67

Q. Do you have any knowledge regarding a mask

that may have been worn by someone in that vicinity?

A. No, I don’t.

Q. Have you ever ridden a motorcycle while you've

been here in Clinton?

A. No, I haven’t.

Q. Do you have any close friends who own motor-

cycles?

A. Nota single one.

Q. John, that morning when you got up, was there

some action you took regarding the mail? I’m talking

now about Saturday morning.

A. Yes, there was.

Q. What was that?

A. I didn’t collect the mail every day, as I hardly

ever got any mail myself there. I went out to check the

mail, and I brought the mail in.

Q. Now, did you notice anything in the way of debris

or garbage or anything that appeared to be—

[316] A. Yes, I did.

Q. Could you explain to the jury what tha: was?

A. There was a—the plastic cup that’s been shown

as evidence here was in my driveway, and also, there

was a flashlight on the correr of the driveway just

outside of the garage door.

Q. Was there any other garbage that you picked up

when you went out there?

A. It was like a cupeake wrapper, a plastic wrapper.

There was something else. I don’t recall if it was a

stick or what it was, but something else that I did pick

up.

Q. Now, dealing with the debris—by that I mean

the cup, the paper and the other thing—do you recall

what you did with that junk?

A. The flashlight was just outside of the garage door,

as I stated, and there were tools on the floor not three

feet away from there that were inside the garage. It

appeared that the flashlight had been kicked out, and I

wondered if maybe the batteries had ® “

know how long it had been out there. I took ~ ow

of the flashlight and removed the batteries—I amie

flashlight first and it didn’t work. oat i-

on the shelf just ng Pte Apdo y

knowledge, I thought I threw

bage there, but apparently I had taken the stuff upstairs

and threw it in the garbage.

69

IN THE SUPREME COURT OF IOWA

No. 85-1842

STATE OF Iowa,

Appellee,

v.

JOHN AVERY Coy,

Appellant.

Filed: December 17, 1986

Rehearing Denied: January 16, 1987

APPEAL FROM THE IOWA DISTRICT COURT

FOR CLINTON COUNTY

Considered by REYNOLDSON, C.J., and HARRIS, SCHULTZ,

LAVORATO, AND NEUMAN, J.J.

REYNOLDSON, Chief Justice

After jury trial John Avery Coy was convicted of

two counts of engaging in lascivious acts with a child

in violation of lowa Code section 709.8(1) (1985). In

this appeal he challenges two trial court rulings. Find-

ing no error, we affirm.

In the early morning hours of August 3, 1985, two

young girls, spending the night in a makeshift tent

located in the backyard of one of their homes, were

70

sexually assauited. Suspicion early focused on Coy

at that time lived next to the home where the girls were

staying. Following a search of his home, Coy was charged

and tried.

them from seeing him. He contends this violated his

sixth amendment right to confront witnesses as well as

his fourteenth amendment right to a fair trial. We first

address Coy’s fourth amendment claim.

I. Before trial, Coy moved to suppress evidence seized

during the search of his residence. While this evidence

was seized under warrant, Coy asserted a portion of the

information used to demonstrate probable cause for issu-

ing the warrant was itself obtained in violation of his

fourth amendment rights. Specifically, Coy contended

two private citizens, acting as agents of the police,

illegally entered and searched his residence. These in-

dividuals reported their findings to police who used this

information to establish the probable cause necessary

to obtain a search warrant.

Following a pretrial hearing, trial court denied the

suppression motion, finding the challenged search was

private in nature and thus beyond the scope of any

fourth amendment prohibition.

The legal principles governing Coy’s contentions are

well established. The fourth amendment, made appli-

cable to the states by operation of the due process clause

of the fourteenth amendment, Mapp v. Ohio, 367 U.S.

643, 654-57, 81 S. Ct. 1684, 1691-92, 6 L. Ed. 2d 1081,

1089-91 (1961), proscribes certain governmental action

in searches and seizures. The mandates of the fourth

amendment, however, are “wholly inapplicable ‘to a

search or seizure, even an unreasonable one, effected by

71

a private individual not acting as an agent [or instru-

ment] of the Government or with the participation or

knowledge of any governmental official.” United States

v. Jacobsen, 466 U.S. 109, 113-14, 104 S. Ct. 1652, 1656,

80 L. Ed. 2d 85, 94 (1984) (quoting Walter v. United

States, 447 U.S. 649, 662, 100 S. Ct. 2395, 2404, 65

L. Ed. 2d 410, 421 (1980) (Blackmun, J., dissenting) ) ;

see also State v. Flynn, 360 N.W.2d 762, 767 (lowa

1985); State v. Bakker, 262 N.W.2d 538, 546 (Iowa

1978).

Whether a private citizen has become an agent or in-

strument of the state depends on the total circumstances

surrounding the challenged conduct. Coolidge v. New

Hampshire, 403 U.S. 443, 487, 91 S. Ct. 2022, 2049, 29

L. Ed. 2d 564, 595 (1971). Factors variously consid-

ered and weighed by courts include: (1) whether the

state directly or indirectly encouraged or participated

in the challenged conduct; (2) whether the state, al-

though knowing the challenged conduct was occurring or

was likely to occur, did nothing to prevent it; (3)

whether the challenged conduct was intended to assist

law enforcement officials or to further some other end;

and (4) whether law enforcement officials themselves

could have undertaken the conduct without violating the

defendant’s fourth amendment rights. See id.; United

States v. Walsh, 791 F.2d 811, $i4 (10th Cir. 1986);

United States v. Ford, 765 F.2d 1088, 1090 (11th Cir.

1985) (per curiam); United States v. Miller, 688 F.2d

652, 657 (9th Cir. 1982); People v. North, 29 Cal. 3d

509, 514, 629 P.2d 19, 22, 174 Cal. Rptr, 511, 514

(1981).

At bottom, a private search, untainted by improper

governmental involvement, implicates no fourth amend-

ment interest regardless whether the search was acci-

dental or deliberate, reasonable or unreasonable, and re-

gardiess whether the search may itself give rise to civil

or criminal liability. See Jacobsen, 466 U.S. at 115,

104 S. Ct. at 1657, 80 L. Ed. 2d at 95; Burdeau v. Me-

72

Dowell, 256 U.S. 465, 475, 41 S. Ct. 574, 576, 65 L. Ed.

1048, 1051 (1921); State v. Holliday, 169 N.W.2d 768,

771 (lowa 1969).

Our review of trial court’s ruling on Coy’s suppres-

sion motion, involving as it does a claimed constitutional

violation, requires an independent, de novo evaluation

of the total circumstances shown by the record. State

v. Baldwin, —— N.W.2d , (Iowa 1986) ; State

v. Campbell, 326 N.W.2d 350, 352 (lowa 1982).

The facts surrounding the challenged search are largely

undisputed. The girls reported the attack at approxi-

mately 6 a.m. on the morning of August 3, 1985. They

were taken immediately to a nearby hospital where they

were examined and one of the girls was interviewed by

police Sergeant Speakman. Between 8:30 and 9 a.m.,

Speakman, the second girl, and her parents returned

home to the scene of the sexual assault.

While discussing the incident with the girl and her

parents, the father of the girl suggested Coy as a pos-

sible suspect. The father’s suspicions appear to have

been based largely on the girls’ statements coupled with

his own observations of Coy the day before the attack.

Coy soon was observed leaving his residence with a suit-

case.

Sergeant Speakman approached Coy and spoke with

him about the incident. While Speakman was talking

with Coy, a computer check disclosed an outstanding ar-

rest warrant for Coy, based on a traffic violation. Coy

was arrested and taken into police custody. Speakman

then returned to the girl’s home and continued inter-

viewing her.

Approximately an hour later and while the girl was

still being interviewed, her father and another neighbor

told Speakman they had just completed a search of Coy’s

residence. They reoprted finding a yellow cup like one

the assailant had taken from the girls’ tent. Sergeant

Speakman later testified he was “pleasantly surprised”

by this information.

73

On the strength of this and other information, Speak-

man applied for and obtained a search warrant for

Coy’s residence. The search warrant was executed, and

evidence later admitted against Coy was discovered and

seized. This evidence included the yellow cup, a flash-

light, and flashlight batteries, all of which matched the

description of equipment taken from the victims.

In challenging trial court’s ruling, Coy contends the

evidence should have been suppressed because in enter-

ing his residence the girl’s father and the neighbor were

acting as agents of the police. Coy argues his initial

arrest on the outstanding warrant was but a ploy used

to get him out of the way. Then, once he was in custody,

police encouraged or simply stood by while the illegal

search took place.

In taking this position Coy relies heavily on Sergeant

Speakman’s testimony he was pleasantly surprised by the

news of the discovery. Coy also emphasizes evidence

shuwing the neighbor who accompanied the girl’s father

ducing the house search had earlier been requested by

pol.ce officers to assist them in a search of the neighbor-

hood yards.

The officers, when earlier investigating the crime, were

questioned by the neighbor as they walked through his

backyard. The officers explained they were conducting

a general yard search for clothing worn by the attacker

and a yellow drinking cup, a flashlight, and apparel

taken from the girls.

The officers asked the neighbor to walk around the

neighborhood to see if he could find any of these items.

The neighbor walked through yards for several blocks

unsuccessfully looking for the evidence. Following this

search, the neighbor and the girl’s father entered and

searched Coy’s residence.

At the suppression hearing, Sergeant Speakman and

another officer testified without contradiction they had

no idea the father and the neighbor were going to search

Coy’s residence and had not encouraged them to do so.

74

The father and neighbor testified they acted wholly on

their own and no officer specifically or by implication

suggested they enter Coy’s residence.

Additionally, Coy has never contended the outstanding

warrant on which he originally was detained was

trumped up or somehow manufactured. Once Sergeant

Speakman learned of the warrant’s existence it was his

duty to place Coy under arrest. Finally, that Speakman

was pleasantly surprised by the discovery of evidence

shows nothing more than a natural reaction to unex-

pected good news.

We conclude no impermissible agency relationship was

present in this case. Trial court properly denied Coy’s

motion to suppress the evidence seized from his residence.

II. We turn now to Coy’s second claimed error. Trial

court granted State’s request that a screen be placed in

front of Coy during the two girls’ testimony. This screen

allowed Coy to see the girls and hear their testimony but

prevented them from seeing him.

Coy challenges the use of this screening device on two

grounds. He claims a violation of his constitutional right

to confront the witnesses against him. Coy additionally

asserts the screen created a strong and prejudicial infer-

ence of guilt, violating his right to a fair trial. Again

reviewing both constitutional claims de novo, we reject

Coy’s contentions. See State v. Nelson, 390 N.W.2d 589,

591 (lowa 1986); State v. Holland, 389 N.W.2d 375, 378

(lowa 1986).

Use of the screening device was authorized by a

recently enacted Iowa statute that in relevant part pro-

vides :

The court may require a party be confined to an

adjacent room or behind a screen or mirror that

permits the party to see and hear the child during

the child’s testimony, but does not allow the child

to see or hear the party.

lowa Code §910A.3(1) (Supp. 1985). The statute also

requires a court authorizing a screening device “to in-

75

sure that the [defendant] and counsel can confer during

testimony and [to] inform the child that the [defendant]

can see and hear the child during testimony.” Jd. Use of

_ a device is limited to children under age fourteen.

In challenging trial court’s authorization of the screen-

ing device, Coy makes no assertion trial court failed to

comply with the explicit terms of Iowa Code section

910A.3(1). Rather, Coy argues trial court, although

not statutorily required to do so, was constitutionally

required to find the screen was necessary before allowing

it to be used. Because we conclude the express require-

ments of section 910A.3(1) fully protect Coy’s confron-

tation right, we hold trial court had no obligation to

make an independent finding of necessity.

The sixth amendment states: “In all criminal prosecu-

tions, the accused shall enjoy the right . . . to be con-

fronted with the witnesses against him. .. .” U.S. Const.

amend. VI. The right secured to criminal defendants

by this amendment is applicable to the states by opera-

ao . he wry amendment. Pointer v. Texas, 380

S. , 403, 85 S. Ct. 1065, 1068, . Ed.

a oe 068, 13 L. Ed. 2d 923,

The confrontation right serves several basic purposes.

Contrary to Coy’s arguments, confrontation is “not

[guaranteed] for the idle purpose of [allowing a defend-

ant to] gaze [] upon the witness or of being gazed upon

by [her].” State v. Strabel, 313 N.W.2d 497, 500 (Iowa

1981) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94

S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974)). Pri-

marily, confrontation is guaranteed “for the purpose of

cross-examination, which cannot be had except by the

direct and personal putting of questions and obtaining

immediate answers.” Jd. See also Lee vy. Illinois, ——~

U.S. . , 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514

525-26 (1986); Delaware v. Van Arsdall, _— U.S. reeng

—, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674. 682-83

76

(1986) ; Holland, 389 N.W.2d at 378-79; State v. Davis,

269 N.W.2d 434, 438 (Iowa 1978).

As a secondary (and at times dispensable) purpose,

the right of confrontation enables:

[T]he judge and the jury . . . to obtain the elusive

and incommunicable evidence of a witness’ deport-

ment while testifying, and a certain subjective moral

effect is produced upon the witness. ... This sec-

ondary advantage, however, does not arise from the

confrontation of the opponent and the witness; it is

not the consequence of those two being brought face

to face. It is the witness’ presence before the tri-

bunal that secures the secondary advantage. .. .

Strabel, 313 N.W.2d at 500 (emphasis in original and

emphasis added) (quoting 5 J. Wigmore, Evidence,

§ 1395, at 153-54 (Chadbourn rev. 1974)); see also Ohio

v. Roberts, 448 U.S. 56, 69, 100 S. Ct. 2531, 2538, 65

L. Ed. 2d 597, 606 (1980); Lee, —— U.S. at ——, 106

S. Ct. at 2062, 90 L. Ed. 2d at 526; Holland, 389 N.W.

2d at 379; State v. Froning, 328 N.W.2d 333, 336 (lowa

1982) ; State v. Castillo, 315 N.W.2d 63, 66 (lowa 1982).

An additional function served by confrontation was

recently reiterated by the Supreme Court in Illinois v.

Lee. There, the Court noted confrontation “ ‘insures that

the witness will give his [or her] statements under oath

—thus impressing him [or her] with the seriousness of

the matter and guarding against the lie by the possibility

of a penalty for perjury.” —— US. at , 106 S.

Ct. at 2062, 90 L. Ed. 2d at 526 (quoting California v.

Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L.

Ed. 2d 489, 497 (1970)).

In this case all three of the above purposes were ful-

filled. First, Coy’s attorney cross-examined both girls

fully and without limitation. Second, the girls’ testi-

mony, both direct and cross-examination, occurred in

court and in full view of the judge and jury, who thus

were able to observe their demeanor and determine the

77

credibility of their testimony. Third, both girls testified

under oath. Before they testified trial court carefully

insured they understood the oath and were aware of

their moral and legal obligation to tell the truth. It is

noteworthy although not constitutionally significant that

Coy was able to see and hear the girls, and, while they

could not see him, they were made aware he was there.

Under these circumstances, we conclude Coy’s right of

confrontation was not infringed. Our conclusion was

foreshadowed by State v. Strabel, in which we deter-

mined trial court’s decision to permit a blackboard to

separate a sexual abuse victim from the defendant dur-

ing the victim’s testimony, even if error, did not com-

promise defendant’s right of confrontation and thus was

a beyond the reasonable doubt. 313 N.W.2d at

In reaching this conclusion, we reject Coy’s contention

trial court could not constitutionally permit the screen

authorized by Iowa Code section 910A.3(i) absent a

showing of necessity. In the confrontation clause con-

text, the issue of necessity arises when a witness is un-

available for trial and a party seeks to introduce some

prior statement or testimony of that witness, See Rob-

erts, 448 U.S. at 65, 100 S. Ct. at 2538, 65 L. Ed 2d at

607; Barber v. Page, 390 U.S. 719, 722, 88 S. Ct. 1318

1320, 20 L. Ed. 2d 255, 258 (1968) ; State v. Zachringer,

825 N.W.2d 754, 759 (Iowa 1982) ; Castillo, 315 N.W.2d

a . Here, irls we i i

rb eel magn Be gi re present at trial and testi-

me . oa turn egy | to Coy’s assertion trial court’s

uling allowing use of the screening device im i

sibly prejudiced his right to a fair trial in Pe sony of

the fourteenth amendment. Coy argues utilization of this

device during the girls’ testimony created the same in-

ference of guilt as can prison garb, or the use of hand-

cuffs or leg irons. See Estelle v. Williams, 425 U.S. 501

512-13, 96 S. Ct. 1691, 1697, 48 L. Ed. 2d 126. 135

(1976) ; Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct.

78

1057, 1061, 25 L. Ed. 2d 353, 359 (1970) ; State v. Ellis,

350 N.W.2d 178, 183 (lowa 1984); State v. Evans, 169

N.W.2d 200, 210-11 (Iowa 1969). The Supreme Court

addressed this issue in Holbrook v. Flynn, where defend-

ant claimed prejudice in the deployment of four uni-

formed and armed state troopers in the courtroom during

his trial. —— U.S. , , 106 S. Ct. 1340, 1346,

89 L. Ed. 2d 525, 534 (1986).

In analyzing defendant’s claim, the Supreme Court

recognized certain actions may be so inherently prejudi-

cial they will only be permitted if justified by an essen-

tial state interest. Jd. The Supreme Court also made

clear, however, that when a challenged activity is not

inherently prejudicial, defendant’s right to a fair trial

is not adversely affected absent a showing of actual prej-

udice to the defendant. Jd. at ——, 106 S. Ct. at 1348,

89 L. Ed. 2d at 537. The basic inquiry, of course, must

be whether a particular practice is inherently prejudi-

cial, as Coy claims in this case.

A practice is inherently prejudicial if in a particular

case it is likely to compromise defendant’s constitutional

right “‘to have his guilt or innocence determined solely

on the basis of the evidence introduced at trial, and not

on grounds of official suspicion, indictment, continued

custody, or other circumstances not adduced as proof at

trial.’” Id. at , 106 S. Ct. at 1345, 89 L. Ed. 2d

at 533 (quoting Taylor v. Kentucky, 436 U.S. 478, 485,

98 S. Ct. 1930, 1934, 56 L. Ed. 2d 468, 475 (1978)).

If a practice gives rise to an unmistakable brand of

guilt or creates an unacceptable risk the jury may con-

sciously or subconsciously be influenced in their delib-

erations, the practice is inherently prejudicial. Jd. at

——, 106 S. Ct. at 1347, 89 L. Ed. 2d at 535-36. Because

inherently prejudicial practices may influence a jury sub-

consciously, a court cannot always assume cautionary

instructions will be sufficient to prevent prejudice.

Here, the screening device was used only during testi-

mony of the two children. The jury, already aware of

the charges and their embarrassing nature, likely con-

cluded the screen was being used to reduce the trauma

necessarily attendant to the children’s testimony. Trial

court encouraged this assumption by explaining to the

jury the device was simply something used in procedures

involving children. Further, unlike the presence of prison

garb, or gags or restraining devices, the limited use of

ao eaemn G6 net tand to teand Coy eo guilty We hold

use screen was not inheren udicial i

Cee aS the. adhta ian

use use of the screen was not inherently prejudi-

cial, a reversal would require Coy to show actual prej-

Py tegmye: So not made such a showing. His

con use screen denied hi

fair trial is without merit. ee

We affirm the district court judgment.

AFFIRMED.

80

IN THE SUPREME COURT OF IOWA

No 85-1842

STATE OF IOWA,

Appellee,

vs.

JoHN AVERY CCY,

Appellant.

After consideration by the court en banc, appellant’s

petition for rehearing in the above-captioned case is

hereby overruled and denied.

Done this 16th day of January, 1987.

THE SUPREME CoURT OF IOWA

By W. W. REYNOLDSON, Chief Justice

81

IN THE SUPREME COURT OF IOWA

Supreme Court No. 85-1842

STATE OF Iowa,

Appellee,

vs.

JOHN Avery Coy,

Appellant.

STIPULATION RE CORRECTION OR

MODIFICATION OF THE RECORD

Filed March 31, 1987

COMES NOW Piaintiff-Appellee, State of Iowa,

through counsel, and Defendant-Appellant, John Avery

Coy, through counsel, and pursuant to Iowa Rule of Ap-

pellate Procedure 10(d) stipulate and agree as follows:

1. A significant issue on appeal of this case involved

the constitutionality . a one-day screening device that

separated the defendant from two complaining witnesses

during their testimony in open court.

2. By error or accident a photograph of that one-way

screening device was never made a part of the trial court

or appellate record in this case. Said photograph would

be material to the issues presented by this appeal.

3. A photograph of the one-way screening device used

in the trial of State v. John Avery Coy is attached

hereto. Said photograph fairly and accurately depicts

the one-way screening device as employed during the

trial of John Avery Coy.

4. Said photograph and this affidavit may be part of

a supplemental record to the lowa Supreme Court in

Case No. 85-1842.

ROXANN M. RYAN B. JOHN BURNS

Assistant Attorney Genera! Assistant Appellate Defender

Hoover Building Lucas State Office Building

Des Moines, Iowa 50319 Des Moines, Iowa 50319

(515) 281-5976 (515) 281-8841

Attorney for Plaintiff- Attorney for Defendant-

Appellee Appellant

State of lowa John Avery Coy

83

SUPREME COURT OF THE UNITED STATES

ON APPEAL FROM THE

SUPREME COURT OF IOWA

ON CONSIDERATION of the motion for leave to pro-

ceed in forma pauperis it is ordered by this Court that

the motion to proceed in forma pauperis be, and the same

is hereby, granted.

The statement of jurisdiction in this case having been

submitted and considered by the Court, in this case prob-

able jurisdiction is noted.

June 26, 1987

APPELLANT’S

BRIEF.

—

> Supreme Court, U.S.

| PILED

-) \ sep sume

No. 86-6757 sae

IN THE

Supreme Court of the Anited States

OcToBER TERM, 1987

JoHN Avery Coy,

Appellant,

Vv.

STATE OF lowa,

Appellee.

ON APPEAL FROM THE

SUPREME COURT OF IOWA

BRIEF FOR THE APPELLANT

PauL PaPpak

(Counsel of Record)

ConNIE Fox-SAMSON

Student Legal Intern

BRADLEY Kruse

Student Legal Intern

Clinical Law Programs

College of Law

University of lowa

lowa City, lowa 52242

(319) 335-9023

Counsel for Appellant

ooo

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-4882

—

—_—

i

QUESTIONS PRESENTED

Whether a state statute that permits the placement of a

one-way screening device between a criminal defendant

and complaining witnesses at a jury trial, over objection

and without establishing an essential state interest or

considering less prejudicial alternatives, violates the

right to a fair trial guaranteed by the Due Process Clause

of the Fourteenth Amendment of the Constitution of the

United States.

Whether a state statute that permits the placement of a

one-way screening device between a criminal defendant

and complaining witnesses at a jury trial, over objection

and without a showing of necessity, violates the Con-

frontation Clause of the Sixth Amendment of the Consti-

tution of the United States.

PD. . an cccdusaensensdnneenaaenneneen

PLaceMENT Art Triat Or A One-Way Screen-

Inc Device Between APPELLANT AnD Com-

PLAINING Witnesses, Over Osvection AND

Wrruout EstasiisHinec AN Essentiat STaTe

InTeREsT Or ConsiperInc Less PresupiciaL

ALTERNATIVes, Viotatep Tue FourTreentu

BED ..cocecccececesounsoesnsaeanneeaes

A. Pracement Or A One-Way ScREENING

Barrier Between APPELLANT AND Com-

PLAINING Wrrnesses At Triac Was INHER-

SING) EES. . .coaneosseseutenaaes

B. Given Tue INHERENTLY PREJUDICIAL

Impact Or Tue [n-Court Screentne Bar-

rier, Sucn An Extraorpinary Device

Coup Not ConstrruTIona.cy Be

Witruovut A Suowine, Sreciric To

APPELLANT’ Triat, Tuat It Servep An

EssentTiac State Interest Anp Tuat THe

Court Carerutty Consiperep Use Or

Less PresupmciaL ALTERNATIVES ........

Pracement Or A One-Way Screentne Bar-

rier BeTween APPELLANT AND COMPLAINING

Wrrnesses Ar Triat, Over Omection AND

Wrruout A SHowtmns Or Necessrry, VroLtatep

Tue Cowrrontation Ciause OF Tue Sixts

C—O aS See eer

»

Table of Contents Continued

A. Use Or A ONE-Way SCREENING BARRIER AT

APPELLANT'S TRIAL INFRINGED ON His

Ricut To A Face-To-Face MEETING WITH

COMPLAINING WITNESSES ................

B. Tue State Dip Nor Make A SHOWING OF

NECESSITY SUFFICIENT To JUSTIFY

INFRINGEMENT ON APPELLANT'S RiGut To

nd. cccccccccccecs

IL. THe VioLatTion Or APPELLANT'S RiGut To A

Farr TriAL AND To CONFRONT ADVERSE WIT-

NESSES Causep By Tue Use Or A One-Way

SCREENING BarrieR AT TRIAL Was Nort

EEE

A. A HARMLESS Error ANALYSIS SHOULD Not

ee Me gg. ccc cccccccece

B. Even Ir A HARMLESS ERROR ANALYsis Is

Mape, THE VIOLATION OF APPELLANT'S

CONSTITUTIONAL RIGHTS CouLD Not Have

Been HarRMLESS BEYono A REASONABLE

De ecceccees

37

iv

TABLE OF AUTHORITIES

Cases Page

Barber v. Page, 390 U.S. 719 (1968) .............60.5. 35

Berger v. California, 393 U.S. 314 (1969) ............. 37

Booth v. Maryland, 107 S.Ct. 2529 (1987). ............ 19

Brewster v. Bordenkircher, 745 F.2d 913 (4th Cir.

Sendo ncecenscoddethuductastsedsseess. 24, 25, 42

Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967).......... 13

California v. Green, 399 U.S. 149 (1970)... .......... 32, 35

Chambers v. Mississippi, 410 U.S. 284 (1973)........ 37, 38

Chapman v. California, 386 U.S. 18 (1967)... 41, 42, 43, 44

Coffin v. United States, 156 U.S. 432 (1895).......... 11, 42

Commonwealth v. Keeler, 264 A.2d 407 (Pa. Super. 1970) 14

Commonwealth v. Willis, 716 S.W.2d 224 (Ky. 1986) . 39

Davis v. Alaska, 415 U.S. 308 (1974)............... 33. 36

Delaware v. Van Arsdall, 106 S.Ct. 1431 (1986)... ... 34, 43

Dorman v. United States, 140 U.S. App. D.C. 313, 435

a 46

Douglas v. Alabama, 380 U.S. 415 (1965)............. 33

Dowdell v. United States, 221 U.S. 326 (1911). 10, 32, 33, 34

Drope v. Missouri, 420 U.S. 162 (1975)........... 9, 11, 47

Elledge v. Dugger, 823 F.2d 1439 (11th Cir. 1987). 15, 25, 30

Estelle v. Williams, 425 U.S. 501

(1976) 9, 10, 11, 12, 13, 14, 15, 18, 21, 22, 23, 24, 25, 26, 31

Estes v. Texas, 381 U.S. 532 (1965). .............. 9, 12, 24

Fahy v. Connecticut, 375 U.S. 85 (1963)... 2.0.0.0... 43

Gaito v. Brierly, 485 F.2d 86 (3rd Cir. 1973) ........... 13

Gideon v. Wainwright, 372 U.S. 335 (1963)............ 41

Globe Newspaper Co. v. Superior Court, 457 U.S

(1982). cineeenus ny 10, 22, 33, 24, 2728 30, 40

Griswold v. Connecticut, 381 U.S. 479 (1965).......... 38

Guaranty Trust Co. v. Blodgett, 287 U.S. 509 (1933)... = 4

Harrell v. Israel, 672 F.2d 632 (7th Cir. 1982) ......... 15

Harrington v. California, 395 U.S. 250 (1969). ........ 44

Herbert v. Superior Court, 117 Cal. App.3d 661, 172 Cal.

Rptr. icenescocssacosethsonsecadtese % 33, 35

Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971)........ 13

Hochheiser v. Superior Court, 161 Cal. App.3d 777, 208

Cal. Rptr. 273 (1984).............. 0.00. 28, 35, 38, 40

Holbrook v. Flynn, 106 S.Ct 1340

Dnks socnedeunedsintcese 10, 16, 17, 22, 26, 30,

Vv

Table of Authorities Continued

. Page

Illinois v. Allen, 397 U.S. 337 (1970)............ 15, 20, 30

In re Murchison, 349 U.S. 133 (1955) ................ 12

In re Winship, 397 U.S. 358 (1970)................... 12

Irwin v. Dowd, 366 U.S. 717 (1961) .................. 19

Kentucky v. Stincer, 107 S.Ct. 2658 (1987)... 28, 32. 33, 37

Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959) 4

Kirby v. United States, 174 U.S. 47 (1899)....... 32, 33, 34

Long v. State, 694 S.W.2d 185 (Tex. oa 1985). 38

Mattox v. United States, 156 U.S

Sb dabdtbaunavisadaddesece is 10, 32, 33, 34, 35, 37

Miller v. State, 457 S.W.2d 848 (Ark. 1970) ........... 14

Ohio v. Roberts, 448 U.S. 56 (1980)................. 34, 37

Payne v. Anderson, 356 U.S. 560 (1958) .............. 41

People v. Shaw, 164 N.W.2d 7 (Mich. 1969)............ l4

People v. Stritzenger, 34 Cal.2d 505, 668 P-2d 738 (1983) 39

People v. Zapata, 220 Cal. A eer, 34 Cal. Rptr. 171

(1963), cert. denied 377 U.S. 406 (1964)........__ l4

Pointer v. Texas, 380 U.S. 400 (1965............... 32, 38

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 535

DU Melua ohubhnak aed bandse deed keke oveeeeds., 24

Rushen v. Spain, 464 U.S. 114 (1983) ........ 6... 43

Sheppard v. Maxwell, 284 U.S. 333 (1966) ............ 13

Simmons v. United States, 390 U.S. 377 (1968).....__. 37

Snyder v. Massachusetts, 291 U.S. 97 (1934)..... 32. 34. 38

State v. Daniels, 448 So.2d 941 (La. App. 1 Cir. 1986)... 39

State v. Melendez, 661 P24 654 (Ariz. 1982)... 9

State v. Strable, 313 N.W.2d 497 (lowa 1981). ; ee ee

State v. Tafoya, 729 P.2d 1371 (N.M. 1986)......._... 35

State v. Tolley, 226 S.E.2d 353 (N.C. 1976). ... 30

State v. Warford, 389 N.W.2d 575 (Neb. 1986)... 39

Taylor v. Kentucky, 436 U.S. 478 (1978) .........__... 12

Tumey v. Ohio, 273 U.S. 510 (1927) . | escesa’ @&

Tyars v. Finner. 709 F.2d 12 74 (9th Cir 1983). . ... 14, 25, 30

United States v. Benfield, 593 F.2d 815 (8th Cir

ee deodedleuteiddve Naueiie ts 10, 11, 33, 34

United States v. Garcia, 625 F.2d 162 (7th Cir. 1980) __. 3S

United States v. Salerno, 107 S.Ct. 2095 (1987)... l2

vi

Table of Authorities Continued

United States v. Samuel. 431 F.2d 610 (4th Cir. 1970), cert.

denied 401 U.S. 946 (1971)... 2... ccc ec cccecs 15, 24

Walker v. Butterworth, 599 F.2d 1074 (ist Cir. 1979)... 22

Walker v. Butterworth, 457 F.Supp. 1233 (D. Mass. 1978) 21

Warren v. United States, 436 A.2d 821(D.C. App. 1981) 39

Wilson v. McCarthy, 770 F.2d 1482 (9th Cir. 1985) ..... 30

Woodard v. Perrin, 692 F.2d 220 (1st Cir. 1982)....... 25, 30

Young v. Callahan, 700 F.2d 32 (1st Cir. 1983). 21, 22, 26, 30

Zygadlo v. Wainwright, 720 F.2d 1221 (11th Cir. 1983) 15, 25

MISCELLANEOUS

2 J. Elliot, DEBATES ON THE ADOPTION OF THE FED-

ERAL CONSTITUTION, (reprint 1974) (1st ed. 1836). 34

American Bar Association, GUIDELINES FOR THE FAIR

TREATMENT OF CHILD WITNESSES IN CASES

WHERE CHILD ABUSE Is ALLEGED (Approved July

el al a ee ce oe 26

American Bar Association Project on Standards for Crim-

inal Justice, Trial by Jury (App. Draft 1968) ...... 26

Beale, TREATISE ON CRIMINAL PLEADING AND PRac-

i ee tale hres eee ine de 6 14

Berliner, The Child Witness: The Progress and E merging

Limitations, 40 U. Miami L. Rev. 167 (1985) ..... 28

Biack’s Law Dictionary (5th ed. 1979)... .......... 32

Graham, Indicia of Reliability and Face to Face Con-

_frontation: a Issues in Child Sexual Abuse

Prosecutions, 40 U. Miami L. Rev. 19 (1985) ..... 39

Libai, The Protection of the Child Victim of a Sexual

Offense i

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