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State v. Turner

Court of Appeals of Iowa

January 11, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JULIUS NATHANIEL TURNER, Defendant-Appellant.

         Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.

         Julius Turner appeals the judgment and sentence entered after a jury found him guilty of sexual abuse. AFFIRMED.

          Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux City, for appellant.

          Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Doyle and McDonald, JJ.

          DOYLE, Judge.

         Julius Turner appeals the judgment and sentence entered after a jury found him guilty of two counts of second-degree sexual abuse and one count of third-degree sexual abuse. He raises four claims on appeal: (1) the admission of certain evidence violated the Confrontation Clauses of the Federal and Iowa Constitutions; (2) his trial counsel was ineffective in failing to request a limiting instruction regarding evidence of other bad acts; (3) there is insufficient evidence to support his convictions; and (4) his convictions are contrary to the weight of the evidence.

         I. Background Facts and Proceedings.

         In 2011, the State charged Turner with two counts of second-degree sexual abuse and one count of third-degree sexual abuse following allegations that Turner had committed acts of sexual abuse on three minors. A jury found Turner guilty as charged. His convictions were vacated in a postconviction-relief action, and Turner was retried on all three counts. A jury again found Turner guilty as charged, and Turner was sentenced to life in prison without the possibility of parole on each count.

         II. Confrontation Clause.

         Turner first asserts he is entitled to a new trial because the trial court admitted evidence in violation of the Confrontation Clause of the Federal and Iowa Constitutions. Specifically, he complains that when the State failed to procure a witness at trial, the court admitted that witness's transcript of testimony from the first trial-even though the State failed to show the witness was unavailable to testify at the second trial.

         The Confrontation Clause provides that the accused has a right "to be confronted with the witnesses against him." See State v. Kennedy, 846 N.W.2d 517, 522 (Iowa 2014) (quoting both U.S. Const. amend. VI and Iowa Const. art. I, § 10). It ensures that testimonial statements from prior proceedings can only be admitted in subsequent proceedings if the declarant is unavailable and the accused has had a prior opportunity for cross-examination of the declarant. See id. There is no doubt the evidence at issue here was testimonial in nature and therefore falls under the Confrontation Clause protections. See id. (noting former trial testimony is testimonial evidence). See id. at 522-23. Likewise, Turner had an opportunity to cross-examine the witness during the first trial. The fighting issue is whether the witness was unavailable under the Confrontation Clause.

         A witness is not "unavailable" for Confrontation Clause purposes "unless the prosecutorial authorities have made a good faith effort to obtain [the witness's] presence at trial." State v. Holland, 389 N.W.2d 375, 379 (Iowa 1986) (quoting Barber v. Page, 390 U.S. 719, 724-25 (1968)). The State bears the burden of establishing unavailability, and whether the State made a good faith effort to obtain a witness's presence at trial is a question of reasonableness. See State v. Wells, 437 N.W.2d 575, 579 (Iowa 1989). Our supreme court has held a witness's act of leaving the state-on its own-is insufficient to establish unavailability. See State v. Kite, 513 N.W.2d 720, 721 (Iowa 1994) (noting the State could have paid for the witness's "mileage, room, and board in advance to alleviate any financial hardship" in returning to the state to testify at trial); Holland, 389 N.W.2d at 379 (holding the State failed to meet its burden of showing a witness's unavailability because "[t]he prosecutor should have subpoenaed the witness again for trial").

         The evidence here establishes that the State made a good faith effort to procure the witness's testimony at the second trial. The State attempted to timely serve the witness with a subpoena at her last known address. It was only three weeks before trial began when the State learned the witness was no longer at that residence and had left the area. The county attorney attempted to contact the witness through an attorney who represented her in an unrelated criminal matter. Although the attorney was unaware of where the witness was living and had difficulty staying in contact with her, the attorney was able to relay the county attorney's messages to her. Eventually, the witness called the county attorney from a Tampa, Florida phone number, but she refused to reveal her location more specifically than ...


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