# Record and brief — Coy v. Iowa > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0987%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1988 - **Citation:** 487 U.S. 1012 ## Text 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- FP43a4t SEELEY: 5g Es a5 *] “3 E : HHH £22 i ni ts i. 4 i iaagets bEtayé Wii; giaeg 23 cts Metts al HET .- Saicd ies 7 : Hs 83 my allt diy dh ARE =4i43; ae Mitt =: “i é aati aeieny Hg 1; iia BH Me hey 4 ii i ae ih Fislal Uf lable — ggipeqstr7s beeEopeopere 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0987%3A0. Public record. Not legal advice.