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affirming the district court's denial of a motion for new trial noting, in part, "the motion for new trial was based solely on the new statements by [the witness], and consequently depended greatly on her credibility," thus, "the court's determination in this regard is vital"
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No. 3-204 / 02-0399.
Filed May 29, 2003.
Appeal from the Iowa District Court for Buena Vista County, DON E. COURTNEY, PATRICK M. CARR, and JOHN P. DUFFY, Judges.
Santos Martinez appeals his conviction and sentencing for the offense of second-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Christen Odell, Assistant Attorney General, Phil Havens, County Attorney, and Richard Kimble, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and HUITINK and VOGEL, JJ.
Santos Martinez appeals the judgment and sentence entered upon his conviction for second-degree sexual abuse. We affirm.
I. Background Facts and Proceedings.
On March 19, 2001, the State charged Santos Martinez with second-degree sexual abuse, in violation of Iowa Code section 709.3(2) (1999), based on his alleged abuse of A.C., the seven-year old daughter of his girlfriend, Mary Castillo. A.C. revealed the sexual abuse to a child protective worker for the Iowa Department of Human Services (DHS) after she was removed from the family home due to physical abuse. Pursuant to a plea agreement, Castillo agreed to testify against Martinez, in return for the prosecutor's agreement to drop child endangerment charges against her. At trial, A.C. testified that while her mother was at work, Martinez had touched her "privates" with his hand, mouth, and penis. On October 30, 2001, a jury trial was held, which ended in a deadlocked jury. Upon retrial, the jury found Martinez guilty as charged and the court sentenced him to a term of incarceration not to exceed twenty-five years. Martinez appeals.
II. Mistrial.
Prior to the first trial, the court sustained Martinez's motion in limine seeking to exclude from evidence certain prior bad acts evidence. Again, prior to the retrial, the court sustained another motion in limine, this one seeking to preclude the State from using evidence from Dr. M. J. Jung to the effect that, even though Dr. Jung did not find evidence of physical injury to A.C., such a negative finding is not uncommon and does not mean no abuse was perpetrated. During testimony from DHS investigator Susan Garvin, the State broached the topic of the lack of physical evidence of abuse. The court sustained an objection to the testimony, but overruled Martinez's motion for mistrial based on prosecutorial misconduct. Martinez now appeals from this ruling.
We review a ruling denying a motion for mistrial for errors at law. See State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998). Trial courts are granted discretion in determining whether a mistrial is appropriate. See State v. Taylor, 336 N.W.2d 721, 727 (Iowa 1983).
The court sustained an objection to the following examination of Susan Garvin by prosecutor Richard Kimble:
Q. Mr. Murray asked you about the findings of Dr. Jung's examination?
A. Yes.
. . .
Q. Were you surprised by that?
A. Not at all.
Q. Why?
It is important to note the remedial measures taken by the court following the objectionable questioning of Susan Garvin. Immediately following defense counsel's objection, the court sustained the objection. In addition, the court instructed the court reporter to re-read the testimony, ordered it stricken from the record, and specifically instructed the jury not to consider the question and answer. Finally, the court subsequently gave the jury a written instruction to disregard any evidence stricken from the record.
We conclude the district court did not abuse its discretion in denying the motion for mistrial. As our supreme court observed in State v. Peterson, 189 N.W.2d 891, 896 (Iowa 1971), when improper evidence has been promptly stricken and the jury admonished to disregard it, there has been no erroneous ruling by the district court. Consequently, a reversal may only be predicated on the proposition that the matter forbidden by the ruling was so prejudicial that its effect upon the jury could not be erased by the trial court's admonition. See State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998). In addition, ordinarily the striking of improper testimony cures any error. See Peterson, 189 N.W.2d at 896. Only in extreme instances where it is manifest that the prejudicial effect of the evidence on the jury remained, despite its exclusion, and influenced the jury is the defendant denied a fair trial and entitled to a mistrial. Id.
In light of the substantial testimony offered, and the fleeting nature of the question and answer, together with the court's curative instructions, we conclude the court did not abuse its discretion in denying defendant's motions for mistrial.
III. A.C.'s Testimony by Closed Circuit Television.
Pursuant to the State's request, the court allowed A.C. to testify at trial via closed circuit television, out of the presence of the jury and Martinez. On appeal, Martinez contends this procedure violated his Sixth Amendment right to confront witnesses against him.
We conclude Martinez has failed to preserve this issue for our review. Prior to A.C.'s pretrial deposition, Martinez stipulated to the use of a one-way mirror between himself and A.C. Then, prior to A.C.'s testimony at trial, the State moved for a protective order allowing her to testify by closed circuit television. In Martinez's resistance he only objected to such a procedure unless certain steps were taken to protect his confrontation rights, such as advising A.C. of the nature of the proceedings, informing her Martinez will be able to see and hear her, and providing him with an interpreter. At trial, the court noted the parties had advised that there was no objection to presenting A.C.'s testimony by closed circuit television. Martinez's resistance and other "objections" did not preserve error on this issue. Thus, we address this issue, as requested, through the vehicle of an ineffective assistance of counsel claim.
The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142-45 (Iowa 2001). While we often preserve ineffective assistance claims for a possible postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). We review this claim de novo. State v. Belken, 633 N.W.2d 786, 794 (Iowa 2001).
The Sixth Amendment guarantees a defendant the right "to be confronted with the witnesses against him." This is referred to as the Confrontation Clause and has been interpreted as guaranteeing "the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857, 864 (1988). The Confrontation Clause reflects a preference for face-to-face confrontation at trial. Ohio v. Roberts, 448 U.S. 56, 63, 100, S.Ct. 2531, 2537, 65 L.Ed.2d 597, 606 (1980). However, the rights conferred by the confrontation clause are not absolute and may give way to other important interests. Coy, 487 U.S. at 1020, 108 S.Ct. at 2803, 101 L.Ed.2d at 866.
In Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678 (1990) the Supreme Court concluded the protection of a child witness from trauma was one public policy that may be sufficiently important, at least in some cases, to outweigh a defendant's right to face his or her accusers in court. Id. at 853, 110 S.Ct. at 3167, 111 L.Ed.2d at 683. First, the trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify; second, the trial court must find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; third, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than mere nervousness or excitement or some reluctance to testify. Id. at 855, 110 S.Ct. at 3169, 111 L.Ed.2d at 685. If this trauma impairs or handicaps a child's ability to communicate, protective measures must be adopted. State v. Rupe, 534 N.W.2d 442, 444 (Iowa 1995).
The district court held a hearing prior to A.C.'s testimony at trial in which Karen Gotto, A.C.'s therapist, and Kay Andrews, A.C.'s foster mother, testified. Gotto testified about A.C.'s extreme fear of Martinez that manifested itself in enuresis, constant questioning of her safety, and other "signs of terror." She opined that testifying in Martinez's presence would be very traumatizing and may cause A.C. to refuse to share the truth about what happened. Andrews testified that on one occasion when they ran into Martinez at a parade, A.C. was "scared spitless." She also noted A.C.'s constant worrying about her safety should they meet him again. Finally, she testified to her belief that A.C. would possibly lose her ability to testify truthfully in the presence of Martinez.
In ruling on the State's motion for a protective order, the court cited Maryland v. Craig and made the following findings:
The court specifically finds that A.C. would suffer serious emotional trauma caused by testifying in the physical presence of the defendant and that it would impair A.C.'s ability to communicate and that the protective measures stipulated to by the parties and endorsed by the Court are necessary to protect A.C. from trauma.
We conclude the district court applied the proper law in considering whether A.C. should be allowed to testify via closed circuit television. The court's findings in this regard are supported by substantial evidence, which included case-specific testimony regarding the probable effect on A.C.'s testimonial capacity and emotional makeup. We thus conclude counsel had no grounds on which to object to the procedure and that the court's ruling is supported by controlling law. Trial counsel was not ineffective in failing to raise this meritless claim. See State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998).
IV. Failure to Object to Inadmissible Evidence and Statements.
Martinez asserts counsel was also ineffective in failing to object to testimony from police officer Chris Cole that he claims infringed on his right against self incrimination and his right to due process. In particular, he points to Cole's testimony that Martinez's attorney informed him Martinez would not speak with police and Cole's testimony that during an interview Martinez personally informed Cole he would not speak to him. Martinez claims this testimony impermissibly commented on his assertion of the right to remain silent. See U.S. Const. amend. V ("No person shall . . . be compelled in any criminal case to be a witness against himself. . . .").
Martinez also directs the court to the comments made by the prosecutor during his questioning at trial.
Q. Out of all the witnesses that have been before this court, you are the only one who got to listen to what everyone else had to say before you testified; isn't that right?
A. Yes, sir.
Q. And, in fact, before your testimony here today, you were able to meet with your attorney and review all the evidence against you, correct?
A. Yes, sir.
Q. And that allows you doesn't it to wait until other information is in and to then tell what you want to say?
Martinez contends that by this questioning the prosecutor impermissibly injected his own personal opinions into trial and only served the purpose of branding him a liar.
The record does not reveal the reason for counsel's failure to object to these questions. Because the record is inadequate to address his ineffectiveness claim on direct appeal, we preserve Martinez's right to raise it in an action for postconviction relief. See State v. Bayles, 551 N.W.2d 600, 610 (Iowa 1996).
V. Motion for New Trial Based on Newly Discovered Evidence.
On February 8, 2002, Martinez filed a motion for new trial based on newly discovered evidence, pursuant to Iowa Rule of Criminal Procedure 2.24( b)(8). He filed the motion along with an affidavit provided by A.C.'s mother, Mary Castillo, in which she basically recanted previous testimony and stated that on four occasions A.C. had denied that Martinez sexually abused her. She also made various claims of threats or coercion by police and prosecutors. At the subsequent hearing on the motion, Castillo testified she finally came forward because her conscience was bothering her. She stated she had previously testified falsely due to her fear of losing her child and because of a promise by the prosecutor that charges against her would be dropped.
This rule allows for a new trial on the basis of newly discovered evidence when "the defendant has discovered important and material evidence in the defendant's favor since the verdict, which the defendant could not with reasonable diligence have discovered and produced at trial." Iowa R.Crim.P. 2.24( b)(8).
A district court is given "unusually broad discretion" in ruling on a motion for a new trial based on newly discovered evidence. State v. Miles, 490 N.W.2d 798, 799 (Iowa 1992). From its closer vantage point the presiding trial court has a clearer view of this crucial question, and we generally yield to its determination. Id. In order to prevail on such a motion, the defendant must show the evidence (1) was discovered after the verdict, (2) could not have been discovered earlier in the exercise of due diligence, (3) is material to the issues in the case and not merely cumulative, and (4) probably would have changed the result of the trial. State v. Jefferson, 545 N.W.2d 248, 249 (Iowa 1996).
In denying the motion for new trial, the court "seriously questioned" the credibility of Castillo and noted its disinclination to believe her testimony at the hearing on the motion for new trial. The court further determined the evidence was not "newly discovered" as contemplated in the rule in that it was "well-known to the Defendant prior to trial."
We affirm the denial of the motion for new trial. The trial court was in the best position to assess Castillo's credibility. See State v. Tharp, 372 N.W.2d 280, 282 (Iowa 1985) (affirming the trial court's denial of a motion for new trial based, in part, on its determination the victim's recantation was not credible). Prosecutor Richard Kimble denied having made the threats with which Castillo accused him. Moreover, a witness' recantation testimony is looked upon with the utmost suspicion. See Adcock v. State, 528 N.W.2d 645, 648 (Iowa Ct.App. 1994). Considering the motion for new trial was based solely on the new statements by Castillo, and consequently depended greatly on her credibility, the court's determination in this regard is vital. Furthermore, we do not believe the evidence was "newly discovered." As the State notes, Martinez was clearly on notice that Castillo at times had denied the abuse occurred and that A.C. had fabricated the story. Among other items, this evidence included statements from Castillo claiming she believed A.C. was lying and DHS reports referencing various denials of abuse by A.C. Martinez could have discovered this evidence with due diligence.
VI. Summary.
We conclude the court did not abuse its discretion in denying Martinez's motion for mistrial. We also conclude counsel had no grounds on which to object to the procedure by which A.C. testified and that the court's ruling is supported by controlling law. Trial counsel was not ineffective in failing to raise this meritless claim. Because the record is inadequate to address Martinez's additional ineffectiveness claim on direct appeal, we preserve Martinez's right to raise it in an action for postconviction relief. Finally, we affirm the denial of the motion for new trial.