State of Iowa v. John Joseph Vance ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-0082
Filed April 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHN JOSEPH VANCE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Benton County, Sean W.
McPartland, Judge.
John Joseph Vance appeals his convictions for sexual abuse in the
second degree and lascivious acts with a child. CONVICTIONS AFFIRMED,
SENTENCE VACATED IN PART AND REMANDED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, David C. Thompson, County Attorney, and Emily K. Nydle, Assistant
County Attorney, for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
2
BOWER, J.
John Joseph Vance appeals his convictions for sexual abuse in the
second degree and lascivious acts with a child. Vance claims the district court
erred in allowing the jury to hear statements made by a police officer during
Vance’s interrogation. He also claims the district court improperly imposed a fine
as part of his sentence. We find the statements by police were non-testimonial in
nature and properly admitted. We also find a portion of the sentence is illegal
due to the imposition of a fine for sexual abuse in the second degree. We affirm
the convictions, vacate the imposition of a fine for sexual abuse in the second
degree, and remand for resentencing consistent with this opinion.
I. Background Facts and Proceedings
On October 28, 2010, John Vance was charged with sexual abuse in the
second degree and lascivious acts with a child. He pleaded not guilty and
waived his right to a speedy trial.
Prior to trial Vance filed a motion in limine seeking to redact a portion of a
videotaped interview conducted by Deputy Jerry Michael. During the interview
Deputy Michael told Vance, “This stuff happened to [the victim], John, and it did,
and we know that it did, and I think for the most part you know that it did.” Vance
responded by saying “Yeah.” Vance sought to exclude the deputy’s statement as
impermissible opinion evidence that invaded the province of the jury. The district
court allowed the statement to be played to the jury as part of the entire
interview. A guilty verdict was returned on both charges, and Vance filed a
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motion for new trial claiming, in part, the statement by Deputy Michael should not
have been placed before the jury. The motion was denied.
Vance was sentenced to a term not to exceed twenty-five years in prison
on the sexual-abuse-in-the-second-degree charge, with a seventy percent
minimum sentence. He was also sentenced to a term not to exceed ten years in
prison on the lascivious-acts-with-a-child charge. Both sentences were to be
served concurrently. The court also imposed a fine of $1000 on each charge.
II. Standard of Review
We review the district court’s rulings on evidentiary matters for an abuse
of discretion. In re Detention of Blaise, 830 N.W.2d 310, 315 (Iowa 2013). Our
review of the legality of the sentence is for correction of errors at law. State v.
Keutla, 798 N.W.2d 731, 732 (Iowa 2011).
III. Discussion
A. Deputy’s Statement
Vance claims the deputy’s statement should not have been played for the
jury as the statement invaded the province of the jury. He claims the deputy’s
position of authority suggested the victim was telling the truth, and therefore,
Vance was guilty.
Opinion evidence is not allowed to directly comment on whether the
defendant is guilty or innocent. State v. Hulbert, 481 N.W.2d 329, 332 (Iowa
1992). There is a “fine but essential line” between opinions conveying
conclusions as to guilt or innocence and those that might help a jury. See State
v. Myers, 382 N.W.2d 91, 98 (Iowa 1986). Opinion testimony that suggests one
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party is being truthful while another dishonest, implying an opinion on guilt or
innocence, crosses this line.1 Id. at 97–98. We find Deputy Michael’s statement
was non-testimonial in nature. An officer’s stated opinion that a defendant was
not being truthful during an interview is not testimony offered to impeach the
witness. See State v. Enderle, 745 N.W.2d 438, 442–43 (Iowa 2007). As such,
the testimony was properly admitted. Id. Enderle focused on the effect of the
statement as an attack on credibility; however, we find the non-testimonial
statements by Deputy Michael did not invade the jury’s role and express an
opinion Vance was guilty, particularly in light of Vance’s later confession.
B. Sentence
The district court imposed a $1000 fine on each charge. The State
concedes the fine for sexual abuse in the second degree was illegal. The fine
was not mentioned during the sentencing but was later included in a written
sentencing order. Both parties agree this case should be remanded to the
district court for entry of an order nunc pro tunc to remove the fine from the
sentencing order.
When the district court enters a sentence the law does not permit, the
sentence is illegal. State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995). A nunc pro
tunc order is an appropriate remedy. Id.; Iowa R. Crim. P. 2.23(3)(g). We vacate
that portion of the sentence imposing a fine for the offense of sexual abuse in the
1
In Myers, an expert opinion suggested children are generally truthful when alleging
sexual abuse, which contradicted the defendant’s position and implied the victim was
testifying truthfully. Id. at 92–98.
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second degree and remand this case for resentencing consistent with this
opinion.
CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART AND
REMANDED.
Potterfield, P.J., and Doyle, J. specially concur.
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POTTERFIELD, P.J. (specially concurring)
I write separately because I disagree with the majority’s analysis of the
evidentiary issue raised by Detective Michael’s statement: “This stuff happened
to [the victim] . . . it did and we know that it did.”2 The majority treats the
argument for redacting that statement from the recorded interview of Vance as
an attack on Vance’s credibility. My reading of the parties’ briefs on appeal is
that Vance objected to the admission into evidence of the detective’s statement
because it bolstered the credibility of the victim in this case where credibility was
the principal issue for the jury to decide.
Detective Michael was presented by the State as an expert witness,
recounting his experience and training as a member of the Iowa Sex Crimes
Investigators Association. His questioning did include skepticism about Vance’s
credibility and those statements were admissible under the rationale of Enderle
and to place Vance’s answers in context. See 745 N.W.2d at 442–43.
The statement quoted above, on the other hand, simply conveyed to the
jury the detective’s belief in the credibility of the victim. “This stuff happened to
[the victim] . . . and we know that it did” tells the jury the detective absolutely
believed the victim and should have been redacted. See Myers, 382 N.W.2d at97–98 (“In this case the trial court admitted expert testimony relating to the
truthfulness of the complaining witness. We believe the effect of the opinion
testimony was to improperly suggest the complainant was telling the truth and,
2
Once Vance’s motion in limine was denied, and this statement came in during the
detective’s direct examination, Vance attempted to dilute the credibility-bolstering effect
of this statement in his cross-examination of the detective.
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consequently, the defendant was guilty.”); see also State v. Pansegrau, 524
N.W.2d 207, 210 (Iowa Ct. App. 1994) (“The Iowa courts have determined
experts should not be allowed to give an opinion on matters that directly render
an opinion on the credibility or truthfulness of a witness.”).
While the district court abused its discretion in denying Vance’s motion in
limine, not all evidentiary errors require reversal of the district court. State v.
Sullivan, 679 N.W.2d 19, 29 (Iowa 2004). The record affirmatively establishes
Vance was not prejudiced by this evidence in light of his multiple confessions
made minutes later in the same interview by the detective. See id. I therefore
concur with the majority’s decision to affirm Vance’s conviction.
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DOYLE, J. (specially concurring)
I concur but write separately. I agree the trial court did not abuse its
discretion in admitting Deputy Michael’s statement, and if there was an error, it
was harmless in light of the facts of this case. However, I believe the better
practice would have been the submission of a limiting instruction to the jury once
the statement was admitted.
While the deputy’s interview statement at issue—“This stuff happened to
[the victim], John, and it did, and we know that it did”—was non-testimonial in
nature, see Enderle, 745 N.W.2d at 442-43, it was evidence considered by the
jury. The jury was instructed to base its verdict only on the evidence and the
instructions. Further, the jury was instructed that exhibits received by the court
were evidence. The audio recording of Vance’s interview with the deputy was an
exhibit received into evidence and played for the jury. In considering this
evidence, a reasonable juror could well have inferred the statement at issue to be
an opinion of a State’s witness vouching for the victim’s truthfulness, particularly
since the deputy testified from a position of authority, as a peace officer, trained
and experienced in sex abuse investigations and in interviewing suspected sex
offenders. However, interrogation techniques employed by law enforcement
officers need not be as pure as the driven snow.
Although not condoned by appellate courts, law enforcement officers may
lie to a suspect, and do, in order to extract a confession. See, e.g., State v.
Oliver, 341 N.W.2d 25, 28 (Iowa 1983) (noting that although deceptive
interrogation tactics are disapproved, “[n]o per se rule of exclusion has
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been . . . adopted; deception is merely considered as one of the factors in
considering the overall question of voluntariness.”); State v. Boren, 224 N.W.2d
14, 16 (Iowa 1974) (“We do not believe [the detective’s] alleged ‘trick question’
constituted coercion.”); State v. Cooper, 217 N.W.2d 589, 597 (Iowa 1974)
(“Deception of any nature by representatives of the state cannot be condoned.
However, we conclude deception standing alone does not render a waiver of
constitutional rights involuntary as a matter of law unless the deceiving acts
amount to a deprivation of due process.”); State v. Hofer, 28 N.W.2d 475, 479
(Iowa 1947) (“Even the use of artifice, fraud or deception to obtain a confession
does not render it inadmissible if the means employed are not calculated to
procure an untrue statement.”); State v. Jennett, 574 N.W.2d 361, 366 (Iowa Ct.
App. 1997) (“The alleged deceptions about DNA and the search warrant did not
render [the defendant’s] confessions involuntary.”); see also 29 Am. Jur. 2d
Evidence § 744 (2008) (“Deceptive interrogation techniques alone do not
establish coercion and render a confession involuntary.”).
In view of this state of affairs, I believe limiting instructions should be
given, such as: “Statements and questions by law enforcement officers during
interviews with the defendant are not evidence to be considered for their truth.
The defendant’s answers and responses to those questions and statements are
evidence,” and we have previously suggested such an instruction be given when
requested. See State v. Esse, No. 03-1739, 2005 WL 2367779, at *3 (Iowa Ct.
App. Sept. 28, 2005). No such request was made here.
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Nevertheless, “error in an evidentiary ruling that is harmless may not be a
basis for relief on appeal.” State v. Parker, 747 N.W.2d 196, 209 (Iowa 2008). In
this case, in light of Vance’s multiple confessions, the record here affirmatively
establishes Vance was not prejudiced by the lack of a limiting introduction
concerning the deputy’s statement and any error was harmless. I therefore
concur with the decision to affirm Vance’s conviction.