State v. Austin

585 N.W.2d 241, 1998 Iowa Sup. LEXIS 235, 1998 WL 733841
CourtSupreme Court of Iowa
DecidedOctober 21, 1998
Docket97-1284
StatusPublished
Cited by16 cases

This text of 585 N.W.2d 241 (State v. Austin) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Austin, 585 N.W.2d 241, 1998 Iowa Sup. LEXIS 235, 1998 WL 733841 (iowa 1998).

Opinion

LARSON, Justice.

David Austin was convicted of second-degree sexual abuse and appealed, claiming error in (1) admitting into evidence a videotaped interview of the victim, and (2) sentencing Austin to serve a minimum of one-half of a twenty-five-year sentence. We affirm the conviction but vacate the sentence and remand for resentencing.

I. Facts.

This case involves an eight-year-old female victim, A.H. Austin had lived with the girl’s mother and her three children since December 24, 1995. On May 7, 1996, the victim’s mother left the family home to take one of her children to the doctor. She made arrangements for A.H. to go to a friend’s apartment after school. However, A.H. did not go directly to the friend’s apartment but stopped by her own apartment.

A.H. testified that when she got home Austin was there. She told him that she was supposed to go to her friend’s house. Austin accused her of lying. He told her to go to her room and remove her clothes, and she compliéd. Austin .came into the room and told her to turn away from him. A.H. provided slightly divergent testimony about whether she was standing up or leaning over the bed when the defendant touched her from behind. She then described the alleged assault.

A.H. told her cousin about the incident, and the report found its way to the victim’s mother, who immediately took her to a doctor. This doctor referred A.H. to Dr. Opde-beeck, a specialist who concluded that A.H. probably suffered vaginal penetration consistent with the abuse allegation.

Shannon Cooper, a social worker at St. Luke’s Child Protection Center, videotaped an interview with A.H. prior to Dr. Opde-beeek’s examination. An officer of the Waterloo Police Department, a police investigator, and a member of the child abuse unit of *243 the department of human services, observed Cooper’s interview through a two-way mirror.

II. The Videotape.

The court admitted the videotape of the interview on the ground that the defendant had “opened the door” by cross-examining the victim, using a summary of the videotape. We review a trial court’s ruling on admissibility of evidence under such circumstances for an abuse of discretion. State v. Padgett, 300 N.W.2d 145, 147 (Iowa 1981).

The videotaped interview was summarized, and prior to trial, the State furnished Austin with a copy of the summary. Austin did not receive a copy of the videotape itself. Using the summary, Austin’s attorney attempted to highlight inconsistencies between A.H.’s statements at the interview and her testimony at trial. The State argued, successfully, that Austin’s use of parts of the summary of the interview opened the door for the State to introduce the whole videotape.

Austin objected that the tape was inadmissible hearsay and was not the best evidence because A.H. had already testified at trial. This exchange followed:

THE COURT: Okay, anything else, Mr. Werner?
MR. WERNER [Defense Counsel]: Well only that the summary that I used to cross-examine [A.H.] and quoted from was furnished to me by the prosecution and is supposedly a complete — a[n] accurate summary of the tape.
THE COURT: Well when you — when you did that and used it, did the whole thing go in or just parts of it?
MR. WERNER: Of course only parts of it.
THE COURT: Well then the rest of it could be put in, I would think, in order to make it complete. I don’t know the answer to that. But that’s typically, when part of the statement is introduced, the other party can put it all in. I think on the basis that it’s being offered as a prior consistent statement and — and for the purposes of completeness, I will admit it....

In allowing the State to admit the videotape itself, the court relied on two rules of evidence, including rule 106(a), which provides:

When an act, declaration, conversation, writing, or recorded statement, or part thereof, is introduced by a party, any other part or any other act, declaration, conversation, writing, or recorded statement is admissible when necessary in the interest of fairness, a clear understanding, or an adequate explanation.

See 7 James A. Adams & Kasey W. Kincaid, Iowa Practice § 106.1, at 72 n. 11 (1988) [hereinafter Adams & Kincaid] (“Iowa Rule 106 establishes an independent standard for the admissibility of the additional evidence, thus obviating any debate concerning whether such evidence may be admitted only if otherwise admissible.”).

Austin proposes a restrictive reading of rule 106(a). He argues that, because his cross-examination was based on the summary of A.H.’s interview and he did not introduce either the summary or the videotape itself, the State failed to show a basis for the introduction of the videotape under rule 106(a). Under rule 106(a), we believe it is not the form of the evidence that opens the door, but rather the source and substance of the evidence that allegedly provides the predicate for offering the remainder of the “act, declaration, conversation, writing, or recorded statement....” Adams & Kincaid § 106.1, at 72 n. 11. Here, the defendant admits that parts of the summary were used in cross-examining the witness. We do not believe the actual introduction of the summary or the video was required to allow the State to introduce the video in response to Austin’s cross-examination.

According to one commentary, a broad application of rule 106(a) should be favored:

By its own terms, rule 106 is applicable when all or part of an “act, declaration, conversation, writing, or recorded statement ... is introduced by a party-” Although a technical reading of the rule would limit its applicability to cases where the primary evidence is actually introduced, the underlying goal of the rule suggests that it should apply where testimony *244 concerning a document is elicited but the document itself is not formally introduced. A contrary result could enable litigants to circumvent the concerns of fairness and completeness upon which the rule is predicated.

Adams & Kincaid § 106.1, at 71.

In this case, Austin chose very specific points from the interview about which to cross-examine A.H. Taken out of the context of the entire interview, the jury might have concluded that A.H.’s statements at the interview were inconsistent with her testimony at trial concerning such matters as whether Austin beat her before or after the assault or both times. The videotaped interview also helped to clear up apparent inconsistencies pointed out on cross-examination on such matters as whether A.H. was standing or prone during the assault.

The court was well within its discretion in allowing introduction of the videotaped interview. Under similar evidence rules, other jurisdictions have agreed. See, e.g., State v. Eugenio, 219 Wis.2d 391, 579 N.W.2d 642

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Bluebook (online)
585 N.W.2d 241, 1998 Iowa Sup. LEXIS 235, 1998 WL 733841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-austin-iowa-1998.