STATE of Iowa, Appellee, v. Peter Kelly LONG, Appellant.
No. 11-0197.
Supreme Court of Iowa.
June 8, 2012.
I rеcognize that the majority does not preclude a potential postconviction relief claim based on ineffective assistance of counsel. But I fear this will be a catch-22 proposition. The claim that counsel was unable to adequately prepare for trial is rejected by the majority, at least in part, for lack of specificity, but then, in a post-conviction proceeding, the court may find that counsel‘s failure was reasonable given the time constraints and, as a result, the first prong of Strickland has not been met. Or, in the alternative, it will gloss over the problems and simply conclude that there was no showing of concrete prejudice.
III. Conclusion.
For the above reasons, I would reverse the judgment of the district court and remand the case for a new trial.
HECHT, J., joins this dissent.
Mark C. Smith, State Appellate Defender, Emily Zerkel, Student Legal Intern, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
ZAGER, Justice.
Peter Kelly Long was convicted of third-degree sexual abuse in violation of
I. Background Facts and Procedural History.
In February of 2010, A.M., who was twelve years of age, spent the weekend at the home of Peter and Tanya Long. A.M. was going to babysit the Longs’ children while the couple did some work around their house. After A.M. had gone to bed, Long entered her bedroom and sexually assaulted her. A.M. called her mother who came to the house, picked A.M. up, and drove her to the hospital where police were informed of the assault.
On July 15, Long was charged by trial information with third-degree sexual abuse in violation of
Long waived his right to a jury trial on the sentencing enhancement under
Long immediately moved for a judgment of acquittal, claiming the State had not met its burden regarding the enhancement. Specifically, Long pointed out that
The next morning, on December 2, the State moved to reopen the record, and an expedited hearing on this motion was conducted later that day. The State sought to reopen the record to call the court reporter from the 1996 guilty plea proceedings. This person could lay the foundation for the transcripts from the guilty plea proceeding where Long admitted touching the genitals of two children, which would violate
Long claimed that his defense strategy was based on the minutes of testimony the State provided at the beginning of the case. Long claimed that he knew the minutes did not include any documents that would indicate which subsection of
On December 6, the district court granted the State‘s motion to reopen the record. In its order, the district court quoted from State v. Kukowski, 704 N.W.2d 687, 693 (Iowa 2005), and found that under
On December 16, the State filed a motion to amend trial information and minutes of testimony. The supplemental minutes of testimony included listing an additional witness, Tom Kierski, a court reporter who could lay the foundation to introduce the transcripts of Long‘s prior guilty pleas and sentencing. On December 20, over Long‘s objection, the court accepted Kierski‘s testimony and admitted the shorthand notes and transcripts from Long‘s 1996 guilty pleas and sentencing. In the transcript of the guilty pleas, Long admits to touching the genitals of two girls under the age of twelve. This would constitute a violation of
Long filed his appeal on February 4, and we transferred the case to the court of appeals. The court of appeals noted that
II. Standard of Review.
A district court has broad discretion tо reopen the record to allow the State to introduce further evidence. State v. Mason, 203 N.W.2d 292, 295-96 (Iowa 1972) (“We have allowed wide leeway in reviewing discretion of trial court in permitting a case to be reopened.“); see also Teeters, 487 N.W.2d at 348 (finding the
We have also noted that the discretion afforded in these situations “must necessarily be especially broad.” Id. In describing the scope of this broad discretion, we have stated that
a trial court ... may allow reopening of the case at any stage of the trial, including after argument has commenced, if it appears “necessary to the due administration of justice.” Such a decision will ordinarily not be interfered with by a reviewing court.
... [T]he decision whether to reopen the case [is] a matter of discretion with the district court which [is] in the best position to determine what [is] “necessary and appropriate to achieve substantial justice.”
Bangs v. Maple Hills, Ltd., 585 N.W.2d 262, 267 (Iowa 1998) (citations omitted). With these principles in mind, we now review the district court‘s decision to reopen the record in this case.
III. Discussion.
Long claims the district court abused its discretion when it reopened the record of the trial on the enhancement in order to receive new evidence. In order to properly ground his claim, we will begin by describing the nature of the trial that was reopened to allow for additional evidence.
A. Statutory Framework.
Following this first conviction, the trial moves to its second phase:
If found guilty of the current offense, the defendant is then entitled to a second trial on the prior convictions. The prior convictions must be proven by the State at the second trial beyond a reasonable doubt, just as the current offense must be established at the first trial. Generally, the State must prove the prior convictions at the second trial by introducing certified records of the convictions, along with evidence that the defendant is the same person named in the convictions. The Stаte must also establish that the defendant was either represented by counsel when previously convicted or knowingly waived counsel.
Id. (citations and internal quotation marks omitted). This second trial is governed by
Trial of questions involving prior convictions. After conviction of the primary or current offense, but prior to pronouncement of sentence, if the indictment or information alleges one or more prior convictions which by the Code subjects the offender to an increased sentence, the offender shall have the opportunity in open court to affirm or deny that the offender is the person previously convicted, or that the offender was not represented by counsel and did not waive counsel. If the offender denies being the person previously convicted, sentence shall be postponed for such time as to permit а trial before a jury on
the issue of the offender‘s identity with the person previously convicted. Other objections shall be heard and determined by the court, and these other objections shall be asserted prior to trial of the substantive offense in the manner presented in rule 2.11. On the issue of identity, the court may in its discretion reconvene the jury which heard the current offense or dismiss that jury and submit the issue to another jury to be later impaneled. If the offender is found by the jury to be the person previously convicted, or if the offender acknowledged being such person, the offender shall be sentenced as prescribed in the Code.
B. The Decision to Reopen the Record. In this case, Long asserted his right to a trial on the question of his prior convictions, though he waived his right to a jury trial. Prior to resting its case, the State submitted certified copies of two 1996 convictions for lascivious acts with a child in violation of
It is well settled that a district court is given broad discretion to allow a рarty to reopen the record and introduce evidence that was previously omitted. See State v. Jefferson, 545 N.W.2d 248, 250 (Iowa 1996); Teeters, 487 N.W.2d at 348-49; Mason, 203 N.W.2d at 295-96. A rule that unequivocally prohibited the district court from reopening the record after the State has rested is inconsistent with our rule that a court has discretion over such matters because a hard and fast rule would preclude the district court from exercising any discretion over such an issue. See, e.g., State v. Hager, 630 N.W.2d 828, 836 (Iowa 2001) (noting that “a fixed plea deadline is the very antithesis of discretionary decision-making [because i]t precludes the exercise of discretion” (citation omitted)). Stripping the district court of the discretion to allow the State to reopen the record in a criminal trial would, therefore, be contrary to our precedent. See Mason, 203 N.W.2d at 295-96; State v. Moreland, 201 N.W.2d 713, 714-15 (Iowa 1972). However, there are issues of justice and fairness to the defendant which are implicated any time the court is asked by the State to reopen the record. Allowing the State to reopen the record in a criminal case, after the defendant has moved for a judgment of acquittal, poses a particular concern for us. We are mindful that we must
balance two competing concerns in reviews of this type: the defendant‘s interest in fairness and the court‘s search for truth. This means negotiating two potentially poor outcomes: on the one hand, permitting the state to reopen its case after the defendant has identified a deficiency rewards the state for its laxity and in practical effect makes the defendant a prosecutorial arm of the state; on the other hand, excessive procedural rigidity risks reducing the trial to “a game of technicаlities.”
Even though a district court is given the discretion to reopen the record in a criminal prosecution, courts have held that reopening the record is more likely to be an abuse of discretion if the State is attempting to “fill a gap in its proof of a prima facie case.” 75 Am. Jur. 2d Trial § 303, at 539 (2007) (citing cases). However, if “the proof presented before resting was sufficient to sustain the charge,” then courts are less likely to find the district court abused its discretion by allowing the State to reopen the record. Id.; see also Moreland, 201 N.W.2d at 714-15 (finding the district court did not abuse its discretion in reopening the record to admit the actual drugs the defendant was accused of selling, but stating “we do not intimate that the State [ha]d to introduce the hashish in order to make a prima facie case“).
We have identified seven factors that the district court should consider before exercising its discretion and reopening the record:
(1) the reason for the failure to introduce the evidence; (2) the surprise or unfair prejudice inuring to the opponent that might be caused by introducing the evidence; (3) the diligence used by the proponent to secure the evidence in a timely fashion; (4) the admissibility and materiality of the evidence; (5) the stage of the trial when the motion is made; (6) the time and effort expended upon the trial; and (7) the inconvenience reopening the case would cause to the proceeding.
Teeters, 487 N.W.2d at 348 (citing 75 Am. Jur. 2d Trial § 382 (1991), now found at 75 Am. Jur. 2d Trial § 298, at 532-33). These factors were explicitly enumerated for the first time in Teeters. The district court‘s written ruling on the motion to reopen the record identified and analyzed how each of the factors listed in Teeters applied to the facts of this case. This clear and explicit ruling assists in our appellate review. On appellate review, we will consider the same factors analyzed by the district court and determine whether the district court‘s “discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Teeters, 487 N.W.2d at 349 (quoting State v. Morrison, 323 N.W.2d 254, 256 (Iowa 1982)).
The first factor we will examine in determining whether the district court abused its discretion by reopening the record is whether the State introduced evidence that Long was convicted of a violation of
that when the state has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal, it is an abuse of the trial court‘s discretion to permit a reopening of the case to supply the missing evidence.
The State introduced evidence that Long had been convicted of a violation of
- Fondle or touch the pubes or genitals of a child.
- Permit or cause a child to fondle or touch the person‘s genitals or pubes.
- Solicit a child to engage in a sex act.
- Inflict pain or discomfort upon a child or permit a child to inflict pain or discomfort on the person.
In addition to the certified copies of the convictions, the State played a videotape where Long discussed his previous convictions with Detective Bahr. The videotape was introduced prior to the State resting. Long stated that he was convicted in 1996 for an incident that occurred involving a young girl who “was riding on a motorcycle and I reached back and was touching her and things like that.” The conduct Long admits to in the videotape would only fall under
1. The reason for the State‘s failure to introduce the transcripts of Long‘s guilty pleas. When determining whether it is appropriate to reopen the record, we also note “the reason for the failure to introduce the evidence,” just as the district court did. See Teeters, 487 N.W.2d at 348. In this case, the State believed that be-
Even though Long did not waive the right to raise the subsection issue at the enhancement stage of his trial, it still bears on the reason the evidence was not offered. In State v. Talbert, we noted that
when the judgment entry does not designate the offense in the prior judgment, the State must supplement the judgment entry in that respect by introducing other parts of the record that do show the crime which was charged and for which the defendant was convicted and sentenced.
622 N.W.2d 297, 302 (Iowa 2001). We also suggested that when the record of a conviction is uncertain, a transcript of the criminal proceeding might establish еxactly what law the defendant previously violated. Id.
While there may have been sufficient evidence to find that Long violated
There is no indication that the State intentionally omitted the evidence that was admitted when the case was reopened or that the evidence was not found based on the State‘s lack of diligence. The reason the State did not offer the evidence that it sought to offer once the record was reopened was that Long had not raised any other objections under
2. Surprise and unfair prejudice as a result of reopening the record. The district court considered the surprise or unfair prejudice that Long might suffеr if the State were allowed to reopen the rec-
If the prosecuting attorney does not give notice to the defendant of all prosecution witnesses (except rebuttal witnesses) at least ten days before trial, the court may order the state to permit the discovery of such witnesses, grant a continuance, or enter such other order as it deems just under the circumstances.
In its December 6 order, the district court granted the motion to reopen the record and later allowed the State to amend the trial information and minutes of testimony. The continued trial on the enhancement was scheduled for December 20. The State filed the minutes of Kierski‘s testimony, including the transcripts of Long‘s guilty plea, on December 16. At the hearing on December 20, Long objected to Kierski‘s testimony, noting that the State had only provided four days’ notice. In response, the State pointed out that there were remedies other than exclusion, such as a continuance. The district court took the motion under advisement and heard the testimony. Ultimately, the court accepted the evidence, and based on the transcripts submitted that day, the court concluded Long‘s 1996 conviction fell under
There can be no doubt that Long was prejudiced by the admission of Kierski‘s testimony and the transcripts of Long‘s guilty pleas. The question is whether that prejudice was unfair. See Teeters, 487 N.W.2d at 348. To make this determination, we will review the context in which the district court made the decision to reopen the record and acceрt the new evidence. On July 15, 2010, nearly five months before the trial, the State filed a trial information indicating that the State would be seeking the class “A” felony enhancement under
If Long‘s strategy was to wait until the State rested in the enhancement phase of the proceeding and then move for a judgment of acquittal, the variables at play in this case made that strategy risky at best. The district court noted that Long had been apprised of the fact that his prior sex offenses would be the basis for enhancing his sentence since the trial information was first filed. Based on the October 14 minutes, Long knew that Detective Bahr, who he had described his prior offense to, would be called as a witness. Bahr‘s testimony authenticated a videotape of Long discussing his prior conviction where he admitted touching a girl whо was riding on a motorcycle behind him. Based on the October 28 minutes, Long also knew that his probation officers would be called to testify and that their records might be entered into evidence. In short, it was possible that far more than just copies of his convictions would be entered into evidence.
There were other potential pitfalls to Long‘s strategy of relying solely on the subsection issue. There was the risk that the district court would reopen the record and allow the State to present more detailed evidence. Additionally, the district court judge who heard the trial in the instant prosecution was the same judge who conducted the guilty plea proceedings and sentenced Long for his prior offenses in 1996. Since the prior convictions were entered by the same court, the district court considered taking judicial notice of the entire court file of Long‘s 1996 convictions. As discussed above, it was also possible that the district court could have found any arguments other than identity and representation had been waived because Long did not raise the subsection issue prior to trial. See
We also take this opportunity to note that even though Long claims the decision to reopen the record and allow the State to amend the minutes of testimony unfairly prejudiced him, he does not say what he would have done differently if Kierski‘s name would have been given to him ten days prior to trial, or a continuance granted. The court of appeals stated
Long contends he was banking on the State‘s inability to prove the enhancement with the witnesses listed in the original minutes, and if the State had provided notice of the stronger enhancement evidence before the trial on the substantive offense, he would have had the option of pursuing a plea agreement with the State.
The court of appeals went on to note “it is the lost opportunity [to plea bargain] that creates the undue prejudice in reopening the record and allowing an additional witness.” The State‘s application for further review correctly points out that this argument “is conjecture. There is no record to show either [Long] would have made such an overture under any circumstances, or that the State would have entertained it.”
We agree with the State for two reasons. First, despite the court of appeals opinion, we do not see where Long has argued that it was the lost opportunity to plea bargain that resulted in unfair prejudice. This argument is not made in any of the pleadings or briefs submitted before the court of appeals. Since Long did not make this argument, he did not produce or
In summary, we do not feel Long was unfairly prejudiced by the district court‘s decision to reopen the record and hear Kierski‘s testimony. The evidence listed in the October 14 and 28 minutes of testimony may have been sufficient to find Long‘s prior conviction was a violation of
3. Other factors. Another factor the district court properly considered in this case was the timing of the request to reopen the record. Teeters, 487 N.W.2d at 348. One reason that courts consider the timing of the request to reopen the record “is that a jury may accord undue weight to evidence which is admitted close to the time deliberations begin.” People v. Rodriguez, 152 Cal. App. 3d 289, 199 Cal. Rptr. 433, 436 (1984). However, in this case, the enhancement trial was before a judge, and it was a very short proceeding. Therefore, there is little worry that the timing of the evidence would lead to misuse of the information. Also, since there was no jury, there were no jury instructions that had been submitted to the jury that might have needed to be modified. See Teeters, 487 N.W.2d at 349.
Timing considerations can also take into account the stage of the trial when the motion was made, the prompt disposition of the case, and any inconvenience to the court. See Teeters, 487 N.W.2d at 348; see also 75 Am. Jur. 2d Trial § 298, at 533. In this case, the jury trial on the current offense had just ended and Long had been convicted. Long had waived his right to a jury trial on the issue of the enhancement, so any determinations concerning the evidence presented or enhancements would be made by the court. The district court judge had just heard from three witnesses, seen copies of Long‘s convictions and seen a videotape of him briefly describing what conduct led to his prior conviction. Long moved for a judgment of acquittal, and the motion was taken under advisement. The nеxt morning, the State moved to reopen the record.
The judge in this case was in the best position to assess any potential inconvenience or difficulties reopening the record would pose. As the district court noted, however, the enhancement issue had not yet been decided, and therefore, reopening the record would not inconvenience the proceeding. This is not a situation where there was concern that the trial would be unduly prolonged or where reopening the case threatened “the orderly trial process[] fundamental to our jurisprudence.” People v. Olsen, 34 N.Y.2d 349, 357 N.Y.S.2d 487, 313 N.E.2d 782, 784 (1974).
Finally, we must consider the evidence that was admitted when the court allowed the record to be reopened. See Teeters, 487 N.W.2d at 348 (noting that the court should consider the admissibility and materiality of the evidence); see also Rodriguez, 199 Cal. Rptr. at 436 (noting that admitted “evidence was decisive on the issue“). The State wanted to call a court reporter to lay the foundation to admit transcripts of Long‘s guilty pleas to lascivious acts with a child. The evidence was clearly admissible. As part of Long‘s pleas, he admitted touching the genitals of two girls under the age of twelve. This is undisputed evidence that Long‘s conviction fell under
Long exercised his right to require the State to prove beyond a reasonable doubt that he was subject to sentencing enhancement based on his prior convictions. Long was also allowed to exercise his right to remain mute and require the State meet its burden of proof. The rule governing these trials requires the State to prove that Long was the same individual convicted in the prior proceeding and that he was represented by counsel at the prior proceeding. If Long had other issues regarding his prior convictions, he needed to raise them before trial or they could be waived. He failed to do so. In response, the State prepared a case that addressed only identity and representation by counsel. When Long belatedly raised another issue, the district court did not rulе the issue was waived, or decide to take judicial notice of the court files in Long‘s previous cases, but instead reopened the record in response to Long‘s motion for a judgment of acquittal. This decision was not made in haste, as evidenced by the district court‘s well reasoned, written ruling on the matter. It was made only after careful consideration by the district court of the briefs submitted by counsel and after hearing the arguments of counsel. This careful consideration allowed the district court to fully and fairly “balance two competing concerns ... the defendant‘s interest in fairness and the court‘s search for truth.” Id. The ruling to reopen the record under the facts of this case was not an abuse of discretion.
IV. Disposition.
The district court was faced with a variety of competing interests and alternative courses of аction. The court might have deemed the issue waived, or acquitted or convicted the defendant based solely on the record before the court at that time. Instead, the district court chose to reopen the record and receive the transcripts of the defendant‘s pleas to the prior offenses. Given the specific facts of this case, reopening the record was not an abuse of discretion. Because Long has not claimed any other errors, we affirm the judgment of the district court and vacate the decision of the court of appeals.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
All justices concur except WIGGINS, J., who takes no part.