State v. Hardy

492 N.W.2d 230, 1992 Iowa App. LEXIS 248, 1992 WL 322269
CourtCourt of Appeals of Iowa
DecidedAugust 27, 1992
Docket90-1590
StatusPublished
Cited by9 cases

This text of 492 N.W.2d 230 (State v. Hardy) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Hardy, 492 N.W.2d 230, 1992 Iowa App. LEXIS 248, 1992 WL 322269 (iowactapp 1992).

Opinions

DONIELSON, Judge.

The defendant, Kenneth Hardy, met Rochelle Barry in Shagnasty’s Bar in Cedar Falls, Iowa, on the evening of August 18, 1989. When the bar closed at 2 a.m., Barry and her friend, Sara Tomson, accompanied Hardy to an isolated sand pits area in Waterloo, Iowa. When Tomson told Barry she was ready to go home, Barry and Hardy ignored her and entered a wooded area behind Tomson’s car. After waiting for close to an hour for the two to return, Tomson began looking for them. A man stopped to assist Tomson in her search, but neither was successful. A police officer then joined in the search, and Barry’s clothing was discovered strewn about an area of the woods where the grass and weeds had been matted down. The police were able to follow shoeprint impressions and footprints for some distance around the area of the sand pits, but they were unable to locate either Hardy or Barry. Tomson gave the police Hardy’s name, and a police officer went to Hardy’s house to look for him. When the officer knocked on the door to Hardy’s house at 7:30 a.m., no one answered. However, at about 9:15 a.m., the officer returned to find the door was open, and Hardy came outside to greet the officer.

Hardy then voluntarily accompanied the officer to the police station, where he signed a written waiver of his Miranda rights and gave a statement. After taking Hardy’s statement, the officers noticed some scratches on his body. They seized his shoes and shirt and ordered him to remove his shorts so the scratches could be photographed. The seizure and photographs were made prior to securing a lawful search warrant.

A full scale search was conducted for several days, but Barry was not discovered until September 2, 1989, when two men [232]*232who had been driving through the sand pits happened upon her partially buried corpse. The corpse had decomposed beyond visual recognition and had to be identified using Barry’s dental records. The autopsy showed Barry died from asphyxiation, having been suffocated after sustaining trauma and knife wounds to several areas of her body. The state medical examiner testified the entrance to Barry’s vagina had some circumferential abrasions. Yet later he testified the surface tissue at the entrance of the vagina was gone, having decomposed at a faster rate than had the majority of the rest of the body. The autopsy photos show the vaginal area was infested with maggots and badly decomposed. The increased rate of decomposition had been caused, according to the medical examiner’s testimony, by premortum trauma to the tissue resulting in bruises which, in turn, caused an increase in the rate of decomposition. In any event, the medical examiner testified he believed the condition of the vaginal area was produced by forcible sexual penetration, but no seminal fluid was found in the vagina. There was absolutely no evidence of trauma to her anus. The medical examiner could not say Barry had engaged in anal intercourse.

On August 19, 1989, between 10:30 a.m. and 11:30 a.m., Investigator Lake seized a shirt, which had allegedly been worn by Hardy the night Barry disappeared, from Melissa Watson at her place of work. Investigator Nemmers admitted the only source of information suggesting Watson possessed the shirt was a note Watson had written and the investigators had seen in Hardy’s home. However, a warrant to search Hardy’s home was not secured until after the shirt had been taken from Watson, making it abundantly clear the investigators had entered Hardy’s home without a warrant.

Hardy was charged with first-degree murder. In the pretrial proceedings, Hardy filed numerous motions in limine and evidentiary suppression motions together with other sundry motions for recusal, continuance, and to split closing argument. He also filed an application with the Iowa Supreme Court for an interlocutory appeal. The appeal and the bulk of the motions were denied.

Hardy’s evidentiary suppression motions requested his shirt, his shoes, and the photographs taken of him at the police station all be excluded from evidence because his fourth amendment rights had been infringed by various warrantless searches conducted by the police. This motion was denied.

Trial commenced on September 11, 1990. At trial the jurors were allowed to examine several items of information which possessed a particularly high potential to encourage them to make their findings on an improper basis. First, a reference to Hardy’s prior assault convictions, having been held inadmissible by the trial court due to its “particularly unfair prejudicial effect,” was inadvertently published to the jury. A curative instruction was later given.

Second, the State presented testimony from four of Hardy's prior sexual partners to show he had engaged in forceful anal, oral, and vaginal sex with his girlfriends in the past. Teresa Marvin testified the defendant forced her to have anal sex once when they were dating. Shantell Woodard, another girlfriend, testified the defendant had done the same to her. Kim Rath testified that while she was dating the defendant, he forced her to have anal, oral, and vaginal sexual intercourse on occasion. Jennifer Hoth testified that after they had been dating, she took the defendant home with her and he tied her up — quite possibly with restraints she had provided for that purpose — and he forced her to have anal and vaginal intercourse and assaulted her with a knife, leaving bruises and possibly a small cut. The trial court allowed the evidence for the limited purpose of showing the defendant’s motive or intent under Iowa Rule of Evidence 404(b), which allows evidence of other crimes or bad acts for such purposes. Hardy argued the district court erred in concluding the testimony was relevant to prove motive or intent. He also argued the testimony’s prejudicial effect outweighed its limited probative value.

[233]*233In a related issue, the trial court severely limited Hardy’s cross-examination of these witnesses, finding Iowa Rule of Evidence 412, the rape shield statute, prohibited evidence of the witnesses’ past sexual history. Hardy unsuccessfully argued that, if the testimony of the four women was to be admitted at all, he should have been allowed to impeach the women with cross-examination about their sexual histories.

Third, the trial court admitted evidence offered by the State to show that, on the night before the murder, a local cable television station had carried a movie about the life and crimes of the notorious serial killer of women, Ted Bundy. Hardy argued the testimony concerning the timing and content of this movie, “The Deliberate Stranger,” was highly prejudicial while wholly irrelevant and immaterial. The State successfully maintained this evidence was relevant because the victim’s friend, Sara Tom-son, testified Hardy told the two women “I’m no Ted Bundy” in an attempt to persuade the women he was not a threat to them.

On September 17, 1990, Hardy filed a petition for a writ of mandamus in the Iowa Supreme Court requesting the trial court be directed to allow Hardy to make offers of proof when appropriate and to allow defense counsel to approach the bench for conferences upon request. Justice Lavorato denied the writ after Judge Stigler agreed to allow Hardy to make an offer of proof.

The jury found Hardy guilty on the charge of first-degree murder, and Hardy was sentenced to a term of life in prison.

Hardy now appeals from his conviction asserting many arguments for reversal. First, he contends he is entitled to a new trial due to numerous instances of misconduct by the trial judge.

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State v. Hardy
492 N.W.2d 230 (Court of Appeals of Iowa, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
492 N.W.2d 230, 1992 Iowa App. LEXIS 248, 1992 WL 322269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hardy-iowactapp-1992.