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E-FILED 2013 MAR 11 9:28 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 MAR 11 9:35 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY


STATE OF IOWA, Plaintiff, Vs. MOTION TO CONTINUE TRIAL KIRK RILEY LEVIN, Defendant,

Case No. FECR 012239

COMES NOW the defendant in the above captioned matter, and hereby requests the court for a continuance of the trial in this matter, and in support thereof states as follows: 1. The defendant is charged by way of Trial Information with Murder in the 1st Degree and Kidnapping 3rd Degree. 2. There is extensive discovery material yet to be turned over to the defendant. The defendant has requested additional time to complete depositions, and file pretrial motions by separate motion. 3. The defendant needs additional time to complete his review of the discovery material and prepare a defense in this case. 4. The attorneys for the State have been contacted and they do not resist a continuance of the trial in this matter if Speedy Trial is waived. 5. It is in the interest of justice to continue the trial in this matter. 6. The defendant has signed a waiver of his Speedy Trial rights and separately filed that document.

WHEREFORE, the undersigned respectfully requests that the trial date in the above-referenced case be continued to a date mutually agreed upon by the parties and the Court.

____________/S/_______________________ CHARLES J. KENVILLE AT0004187 State Public Defenders Office 706 Central Avenue, Fort Dodge, IA 50501 Telephone: (515) 573-1140; Fax: (515)576-8365 E-mail: ckenville@spd.state.ia.us ATTORNEY FOR THE DEFENDANT

E-FILED 2013 MAR 13 4:16 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 MAR 13 4:16 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 MAR 13 4:16 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 MAR 19 1:43 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY ______________________________________________________________________________ STATE OF IOWA, Plaintiff, vs. " " " " " " " " "

CRI#INAL NO. FECR$%&&'(

ORDER )RANTIN) *OINT RECIPROCAL DISCOVERY

KIRK RILEY LEVIN, D f n!ant.

______________________________________________________________________________ T+is ,att - +as ./, 0 f/- t+ C/1-t /n t+ */int A22li.ati/n f/- R .i2-/.al Dis./v -3. T+ C/1-t, +avin4 5a,in ! t+ fil an! 0 in4 a!vis ! t+at 0/t+ 2a-ti s a4t/ t+ */int

A22li.ati/n f/- R .i2-/.al Dis./v -3, + - 03 ORDERS t+at t+ Stat s+all 2 -,it t+ ! f n!ant t/ ins2 .t an! ./23 /- 2+/t/4-a2+ t+ f/ll/6in4" a. An3 - l vant 6-itt n /- - ./-! ! stat , nts ,a! 03 t+ ! f n!ant /./2i s t+ - /f, 6it+in t+ 2/ss ssi/n, .1st/!3 /- ./nt-/l /f t+ Stat 71nl ss t+ sa, s+all +av 0 n in.l1! ! in t+ ,in1t s /f vi! n. 89 0. T+ s10stan. /f an3 /-al stat , nt ,a! 03 t+ ! f n!ant 6+i.+ t+ Stat int n!s t/ /ff - in vi! n. at t-ial 7in.l1!in4 an3 v/i. - ./-!in4s /f sa, 89 .. !. T+ ! f n!ant:s 2-i/- .-i,inal - ./-!, as is t+ n availa0l t/ t+ Stat 9 It ,s s i; ! 03 t+ Stat in ./nn .ti/n 6it+ t+ all 4 ! .-i, , an! 6+ a22-/2-iat , s10< .t t/ s.i ntifi. t sts9 . An3 0//=s, 2a2 -s, !/.1, nts, stat , nts, 2+/t/4-a2+s /- tan4i0l /0< .ts 6+i.+ a- 6it+in t+ 2/ss ssi/n, .1st/!3 /- ./nt-/l /f t+ Stat , an! 6+i.+ a- ,at -ial t/ 2- 2a-ati/n /f +is ! f ns , /- a- int n! ! f/1s 03 t+ Stat as vi! n. at t+ t-ial, /- 6 - /0tain ! f-/, /- 0 l/n4 !

E-FILED 2013 MAR 19 1:43 PM SAC - CLERK OF DISTRICT COURT

t/ t+ ! f n!ant9 f. An3 - s1lts /- - 2/-ts /f 2+3si.al /- , ntal 5a,inati/ns, an! /f s.i ntifi. t sts /- 52 -i, nts, ,a! in ./nn .ti/n 6it+ t+ 2a-ti.1la- .as , /- ./2i s t+ - /f, 6it+in t+ 2/ss ssi/n, .1st/!3 /- ./nt-/l /f t+ Stat 9 4. An3 2/li. - 2/-ts 2- 2a- ! 03 la6 nf/-. , nt /ffi. -s 6+i.+ ./n. -n t+ inv sti4ati/n /f t+ .+a-4 s 2- s ntl3 2 n!in4 a4ainst t+ D f n!ant. T+ Stat is n/t - >1i- ! t/ !is.l/s an3 !/.1, nt, stat , nt, - 2/-t /- 6itn ss t/ 0 1s ! in its - 01ttal .as .

IT IS FURTHER ORDERED t+at t+ ! f n!ant s+all all/6 t+ Stat t/ !/ t+ f/ll/6in4" a. Ins2 .t an! ./23 0//=s, 2a2 -s, !/.1, nts, stat , nts /t+ - t+an t+/s /f t+ a..1s !, 2+/t/4-a2+s /- tan4i0l /0< .ts 6+i.+ a- n/t 2-ivil 4 ! an! a- 6it+in t+ 2/ss ssi/n, .1st/!3 /- ./nt-/l /f t+ ! f n!ant an! 6+i.+ t+ ! f n!ant int n!s t/ int-/!1. in vi! n. at t-ial9 0. Ins2 .t an! ./23 t+ - s1lts /- - 2/-ts /f 2+3si.al /- , ntal 5a,inati/ns an! /f s.i ntifi. t sts /52 -i, nts ,a! in ./nn .ti/n 6it+ t+

2a-ti.1la- .as , /- ./2i s t+ - /f, 6it+in t+ 2/ss ssi/n /- ./nt-/l /f t+ ! f n!ant in 6+i.+ t+ ! f n!ant int n!s t/ int-/!1. in vi! n. at t+ t-ial /- 6+i.+ 6 - 2- 2a- ! 03 a 6itn ss 6+/, t+ ! f n!ant int n!s t/ .all at t+ t-ial 6+ n s1.+ - s1lts /- - 2/-ts - lat t/ +is t sti,/n39 .. Ins2 .t an! ./23 an3 - 2/-ts 03 ! f ns inv sti4at/-7s8 7 5.l1!in4

inv sti4at/-:s 2 -s/nal ass ss, nt /f 6itn ss: .- !i0ilit38 6+i.+ ./n. -n t+ inv sti4ati/n /f t+ .+a-4 s 2- s ntl3 2 n!in4 a4ainst t+ D f n!ant f/- /nl3 t+/s 6itn ss s t+ ! f ns int n!s t/ .all at t-ial. If t+

inv sti4at/- 2-/vi! s an /-al - 2/-t, t+ n t+ ! f ns 6ill 2-/vi! t+ Stat 6it+ a 6-itt n s1,,a-3 /f sai! /-al - 2/-t.

E-FILED 2013 MAR 19 1:43 PM SAC - CLERK OF DISTRICT COURT

IT IS FURTHER ORDERED t+at n it+ - t+ Stat n/- t+ ! f ns is - >1i- ! t/ !is.l/s an3 tan4i0l it , t/ 0 s/l l3 1s ! at t-ial as ! ,/nst-ativ vi! n. .

IT IS FURTHER ORDERED t+at it is a ./ntin1in4 !1t3 /f 0/t+ 2a-ti s t/ !is.l/s a!!iti/nal vi! n. t+at is s10< .t t/ !is./v -3 1n! - t+is O-! -.

C/2i s t/" C+a-l s *. K nvill ? n S,it+ D/14las D. Ha,, -an!

E-FILED 2013 MAR 19 1:43 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-03-19 13:43:42

page 4 of 4

E-FILED 2013 MAR 19 2:43 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY ) ) Plaintiff, ) Case No. FECR012239 ) vs. ) ) IR RI!E" !E#IN, ) ORDER ) $efen%ant. ) &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& STATE OF IOWA,

T'e $efen%ant 'as file% a (otion to Contin)e t'e t*ial. +e 'as also file% a Waive* of S,ee%- T*ial. IT IS T+E OR$ER OF T+E CO.RT t'at ,)*s)ant to %is/)ssions 0it' t'e Co)*t A%1inist*ato*2s offi/e, t'e t*ial in t'is 1atte* is *es/'e%)le% )ntil Monday, June 3, 2013, at !00 a"#", $n t%e Sa& County Cou't%ou(e $n Sa& C$ty, Io)a. 3e/a)se t'e E$(S s-ste1 is 4)st /o11en/in5 in Sa/ Co)nt-, t'e atto*ne-s a*e *e6)este% to 1ail a ,a,e* /o,- of all 1otions file% t'*o)5' t'e E$(S Sa/ Co)nt- s-ste1 to t'e )n%e*si5ne% 4)%5e at7 8)%5e Ti1 Finn, Sto*- Co)nt- Co)*t'o)se, 1319 So)t' 3 Aven)e, Neva%a, IA 90201.

Cle*: to ,*ovi%e /o,ies to7 3en S1it' SAC CO.NT" ATTORNE" $o)5las $. +a11e*an% ASSISTANT ATTORNE" ;ENERA! C'a*les 8. enville P.3!IC $EFEN$ER Co)*t A%1inist*ato*

E-FILED 2013 MAR 19 2:43 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-03-19 14:43:20

page 2 of 2

E-FILED 2013 MAY 03 8:45 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, vs. KIRK RILEY LEVIN, Defendant. MOTION TO SUPPRESS AND REQUEST FOR PRE-TRIAL HEARING Case No. FECR 012239

COMES NOW the Defendant, through his attorney, Charles J. Kenville, and pursuant to Iowa Rule of Criminal Procedure 2.12, the 5th, 6th, and 14th Amendments of the United States Constitution, and Article I section 9 of the Iowa Constitution, hereby requests that the Court enter an Order suppressing all statements of the defendant as being improperly obtained by the State. In support thereof the following is stated: 1. The defendant is charged by way of Trial Information with Murder in the 1st Degree, a Class A felony, and Kidnapping in the Third Degree, a Class C felony. Trial in this matter is currently scheduled for June 3rd, 2013, in the Iowa District Court for Sac County. 2. Any statements by the defendant to the police were given in violation of the defendants rights under the 5th and 14th Amendments of the United States Constitution, and Article I section 9 of the Iowa Constitution. 3. The defendants statements should be suppressed due to a violation of the rules set forth in Miranda and its progeny. The defendant was detained by police. The defendant was not free to leave this encounter and had his actions controlled. Miranda safeguards become applicable as soon as a suspects freedom of action is curtailed to a degree associated with formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 335 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275, 1279 (1983)). [A] court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree

E-FILED 2013 MAY 03 8:45 AM SAC - CLERK OF DISTRICT COURT

associated with a formal arrest. Countryman, 572 N.W.2d at 557-58 (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994) (citations and internal quotation omitted)).

4.

The defendant invoked his right to counsel and questioning was allowed to continue. The interrogating officers ignored the defendants request for counsel and proceeded to question him at length.

5.

The officers used improper interrogation techniques to induce the defendant to speak to them. The officers promised leniency to the defendant. Further, an officer cannot tell a subject what advantage is to be gained or is likely to be gained from making a confession. McCoy, 692 N.W.2d at 28 (citing State v. Hodges, 326 N.W.2d 345, 349 (Iowa 1982)).

6.

Any waiver of rights given by the defendant was not knowingly, intelligently, or voluntary made.

7.

Any statements made by the defendant as a result of any unwarned or improper questioning should be considered tainted and excluded from trial in this matter. WHEREFORE, the Defendant respectfully requests, after hearing on this

matter, that the Court suppress and exclude from trial all statements of the defendant in the above captioned matter that were obtained in violation of the Defendants constitutionally protected rights.
RESPECTFULLY SUBMITTED, ____________/S/________________ Charles Kenville AT0004187 Office of the Public Defender 706 Central Avenue, Fort Dodge, IA 50501 Telephone: (515) 573-1140 Fax: (515)576-8365 E-mail: ckenville@spd.state.ia.us ATTORNEY FOR THE DEFENDANT

E-FILED 2013 MAY 03 8:45 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 MAY 03 8:45 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 MAY 08 8:06 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY STATE OF IOWA, Plaintiff, v. KIRK RILEY LEVIN, Defendant.
STATES RESISTANCE TO DEFENDANTS MOTION TO SUPPRESS

Case No. FECR012239

COMES NOW, the State of Iowa and in support of its resistance asserts the following: 1. On May 3, 2013, defendant filed a Motion to Suppress asking the Court to suppress statements he made to law enforcement following his January 3, 2013, arrest. Specifically, defendant argues questioning was allowed to continue after defendant invoked his right to counsel and the officers used improper techniques to induce the defendant to speak to them. (Def.s Mot. to Suppress pp. 1-2) 2. On January 3, 2013, defendant was arrested for kidnapping Jessica Vega. Following his arrest, before ever being interviewed, Detective Erritt read defendant his Miranda rights (Ex. 1, Video of Def.s First Interview at 11:04:30 Mins.; Ex. 2, Transcript of First Interview, pp. 1-2) 1 and defendant verbally acknowledged his understanding of the same. (Ex. 1 at 11:05:21 Mins.) After being read his Miranda rights, defendant signed the written Miranda waiver form waiving his right to counsel. (Ex. 3, Rights Waiver Form, Ex. 1 at 11:06:16 Mins.) Ten minutes into his first interview, defendant made the following ambiguous or equivocal reference to an attorney: I might (inaudible) myself a lawyer. (Ex. 1 at 11:18:33 Mins.; Ex. 2, p. 10). 2 3. Before beginning defendants second interview, law enforcement again read defendant his Miranda rights. After being read his Miranda rights for a second time, defendant again acknowledged he understood his Miranda rights (Ex. 4, Video of Def.s Second Interview at 02:22:23 Mins.) and responded in the affirmative when
1 The transcript of the second interview, which is identified herein as Exhibit 5, was provided in discovery as two documents (defendants second interview part one and part two); Exhibit 5 combines parts one and two. 2 The defendants first interview began at 11:04 a.m. and went to 12:41 p.m. The defendants second interview began at 2:21 p.m. and went to 5:02 p.m.

"

E-FILED 2013 MAY 08 8:06 AM SAC - CLERK OF DISTRICT COURT

asked by Detective Koontz whether it was okay for the officers to talk to, and ask defendant questions (Ex. 4 at 02:22:49 Mins.) 3 4. "The request for counsel must be unambiguous and unequivocal". State v. Effler, 769 N.W.2d 880, 886 (Iowa 2009), citing Davis v. United States, 512 U.S. 452,459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362, 371 (1994) Further, questioning need not cease if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of circumstances would have understood only that the suspect might be invoking the right to counsel." Id. 5. In State v. Morgan, the Iowa Supreme Court determined the defendants statement, I think I need an attorney, prior to an attempt to administer a polygraph examination, fell short of an unequivocal invocation of his right to counsel. State v. Morgan, 559 N.W.2d 603 (Iowa 1997) 6. The undersigned does not know how any statement can be unambiguous or unequivocal when it begins with the qualifier might. (Ex. 1 at 11:18:33 Mins.; Ex. 2, p. 10) 7. The defendant also contends his statements should be suppressed because the officers used improper interrogation techniques to get defendant to talk to them; specifically, defendant argues the officers promised defendant leniency. (Def.s Mot. to Suppress p. 2) However, the officers statements to defendant did not go beyond urging defendant to tell the truth and the officers never promised defendant directly or impliedly a lesser sentence or any favorable treatment if defendant talked to the officers. In fact, more than once, the officers told defendant they could not make him any promises. (Ex. 2, p. 16; Ex. 5, pp. 45, 49) 8. There is no law that prohibits the police from establishing rapport with a

suspect. A statement to a criminal suspect that implies empathy or understanding for the suspect does not amount to improper inducement or coercion. State v. Jennett, 574 N.W.2d 361, 366 (Iowa Ct. App. 1997)

3 The second reading of defendants waiver of rights was not captured by the transcriptionist because she was provided a copy of the video recording missing the first two minutes. Exhibit 4 is a copy of the complete recording of defendants second interview, which includes the first few minutes of defendants second interview, wherein defendant is read, and waives his Miranda rights.

E-FILED 2013 MAY 08 8:06 AM SAC - CLERK OF DISTRICT COURT

9. An officer can ordinarily tell a suspect that it is better to tell the truth. State v. Hodges, 326 N.W.2d 345, 349 (Iowa 1982) 10. [A]n offer to recommend psychiatric help or an offer to inform the prosecutor of defendant's cooperation [is not] tantamount to a promise of leniency. State v. Whitsel, 339 N.W.2d 149, 153-54 (Iowa 1983) 11. In conclusion, the defendant knowingly, voluntarily, and intelligently waived his Miranda rights and at no time did defendant invoke his right to, or request counsel. Moreover, the officers questioning techniques were within the bounds of what is constitutionally permissible. WHEREFORE, the State requests that the Court deny the defendants Motion to Suppress for all the reasons stated above.

/s/ Benjamin John Smith Benjamin John Smith - AT0008834 Sac County Attorney Sac County Courthouse 100 NW State St., Suite 9 Sac City IA 50583 Telephone: 712-662-4791 Facsimile: 712-662-4123 Email: attorney@saccounty.org

E-FILED 2013 MAY 10 4:21 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, vs. KIRK RILEY LEVIN, Defendant. BRIEF SUPPORTING MOTION TO SUPPRESS No. FECR 012239

COMES NOW the Defendant, through his attorney, Charles J. Kenville, and pursuant to Iowa Rule of Criminal Procedure 2.12, the 5th, 6th, and 14th Amendments of the United States Constitution, and Article I sections 9 and 10 of the Iowa Constitution, submits to the Court the following Brief in support of the claim that the defendants statements were improperly obtained by the State: 1. The defendant is charged by way of Trial Information with Murder in the 1st Degree, a Class A felony, and Kidnapping in the Third Degree, a Class C felony. 2. A short time after the interview begins, at approximately 11:18:35 (according to the time stamp on the video) the defendant makes a statement that he might [want/need] myself a lawyer. The audio is hard to understand because of the quality of the recording and one of the officers speaks over the defendant. The officers ignore the statement and the interview continues. 3. The inquiry best framed by asking whether a reasonable officer in light of the circumstances would have understood the statement to be a request for an attorney. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362, 371 (1994). 4. In the dissenting opinion in Effler, Justice Wiggins states: In determining whether the State has violated a person's federal constitutional rights, a reviewing court cannot simply analyze a few words out of context and search for ambiguity

E-FILED 2013 MAY 10 4:21 PM SAC - CLERK OF DISTRICT COURT

through linguistic acrobatics. As anybody who speaks the English language knows, just about any word, or group of words, in isolation, may be made to look ambiguous. Thus, under Davis, the court must askwhether a reasonable police officer, in light of the circumstances, would believe that a suspect unequivocally requested the assistance of counsel. State v. Effler, 769 N.W.2d 880, 891 (Iowa 2009) 5. The defendants statement, when taken in context, is an unequivocal request for an attorney. He clearly identifies that he could be in legal jeopardy if the interview continues, there are long pauses where he does not speak to the officers or respond to their questions, and his general demeanor and body language are highly suggestive that he does not want to continue to speak to the officers. 6. The Iowa Constitution should be interpreted more strictly than the United States Constitution was in Davis. Even if the Court determined that the request was ambiguous the officers should have clarified the ambiguity rather than ignore the statement altogether. Justice Appel in his dissent in Effler points out that the Iowa Supreme Court has been willing to forge its own course on state constitutional interpretation. Justice Appel stated: A question lurking behind this case is whether this court would today follow the approach of Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), in interpreting the Iowa Constitution. In Davis, a bare majority of the United States Supreme Court decided that law enforcement had no obligation to clarify an ambiguous request for counsel made by an accused in custody after he had provided a valid waiver of his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Davis, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 37172. The majority declined to adopt the

E-FILED 2013 MAY 10 4:21 PM SAC - CLERK OF DISTRICT COURT

position advocated by the Department of Justice and other law enforcement authorities that when a suspect ambiguously requests a right to counsel, law enforcement must ask clarifying questions with the sole purpose of resolving the ambiguity. Id. at 461, 114 S.Ct. at 2356, 129 L.Ed.2d at 373. Justice Appel further questions the validity of State v. Morgan, 559 N.W.2d 603 (Iowa 1997), which relied upon Davis but was decided before the Iowa Supreme Court routinely distinguished between State and Federal Constitutional claims, stating: I question Morgan's continued vitality. Morgan is a conclusory opinion with no analysis of the underlying issue. It rests solely upon the authority of Davis, a 54 decision. Further, it was decided at a time when this court routinely adopted federal constitutional precedent as a basis for decisions under the Iowa Constitution. The officers should have clarified the defendants statement if there was any ambiguity as to whether he wanted counsel. WHEREFORE, the Defendant respectfully requests the Court suppress and exclude from trial all statements of the defendant in the above captioned matter that were obtained in violation of the Defendants constitutionally protected rights. __________/S/_______________ Charles J. Kenville AT0004187 Office of the State Public Defender 706 Central Avenue Fort Dodge, IA 50501 Telephone: (515) 573-1140 Fax: (515)576-8365 ATTORNEYS FOR THE DEFENDANT

E-FILED 2013 MAY 14 1:38 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, !s. "IR" RI#E$ #E%IN, ) ) ) ) Crim. Case No. FECR01223

ORDER

&efen'ant. ) ((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((

T)e State an' t)e &efen'ant )a!e file' a *oint A++li,ation for Re,i+ro,al &is,o!er-. T)e *oint A++li,ation for Re,i+ro,al &is,o!er- is APPRO%E& .- t)e Co/rt. IT IS SO OR&ERE&.

Cler0 to +ro!i'e ,o+ies to1 Co/nt- Attorne- 2 3en Smit) Attorne- 4eneral 2 &o/5 6ammeran' &efense Attorne- 2 C)arles "en!ille

E-FILED 2013 MAY 14 1:38 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-05-14 13:38:18

page 2 of 2

E-FILED 2013 MAY 14 1:42 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, !s. "IR" RI#E$ #E%IN, ) ) ) ) Crim. Case No. FECR01223

ORDER

&efen'ant. ) ((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((

T)e &efen'ant )as file' a *otion for C)an+e of %en,e. T)e motion is not resiste'. T)e Co,rt )as -een a'!ise' t)at t)e State .ill not resist t)e motion. After -ein+ informe' of t)e ,n'erl/in+ fa0ts, t)e *otion for C)an+e of %en,e is 1RANTE&. IT IS SO OR&ERE&. IT IS T2E F3RT2ER OR&ER OF T2E CO3RT t)at trial in t)is matter s)all 0ommen0e in Fort &o'+e, We-ster Co,nt/, Io.a, at 400 a.m. on 5,ne 3, 2013.

Cler6 to 7ro!i'e 0o7ies to4 Co,nt/ Attorne/ 8 9en Smit) Attorne/ 1eneral 8 &o,+ 2ammeran' &efense Attorne/ 8 C)arles "en!ille Sa0 Co,nt/ Cler6 of Co,rt We-ster Co,nt/ Cler6 of Co,rt Co,rt A'ministrator

E-FILED 2013 MAY 14 1:42 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-05-14 13:42:16

page 2 of 2

E-FILED 2013 MAY 23 12:49 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY STATE OF IOWA, Plaintiff, v. KIRK RILEY LEVIN, Defendant. NOTICE OF ADDITIONAL WITNESSES AND ADDITIONAL MINUTES OF TESTIMONY Case No. FECR012239

COMES NOW the undersigned Prosecuting Attorney and pursuant to the Iowa Rules of Criminal Procedure hereby gives Notice of Additional Witnesses and Minutes of Testimony in support of the Trial Information previously filed here in: 1. The expected testimony of the witnesses named in the List of Additional Witnesses filed herein are contained in the Additional Minutes of Testimony and Attachments A, B, and C, all of which are also filed herein, but are filed as secure attachments as required by the Iowa Rules of Criminal Procedure. 2. Substantial rights of the defendant are not prejudiced by the attached Additional Minutes of Testimony. 3. A wholly new and different offense is not being charged. 4. This Addition to the Minutes of Testimony is in the interest of justice.

/s/Benjamin John Smith Sac County Attorney, Benjamin John Smith AT0008834 Sac County Courthouse 100 NW State St., Suite 9 Sac City IA 50583 Telephone: 712-662-4791 Fax: 712-662-4123 Email: attorney@saccounty.org

Original filed EDMS, copies to: Public Defender, Charles Kenville Attorney Doug Hammerand Attorney Generals Office Ben Smith, Sac County Attorney Judge Timothy Finn

E-FILED 2013 MAY 23 12:49 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY STATE OF IOWA, CRIMINAL CAUSE NO. FECR012239 Plaintiff, vs. KIRK RILEY LEVIN, Defendant. NAMES OF ADDITIONAL WITNESSES: SABRINA SEEHAFER, Criminalist, Iowa Division of Criminal Investigation MIKE TATE, Criminalist, Iowa Division of Criminal Investigation KARL FRANZENBURG, Criminalist, Iowa Division of Criminal Investigation RICHARD CRIVELLO, Criminalist, Iowa Division of Criminal Investigation KATHLEEN KINSETH, Evidence Technician, Iowa DCI KERI DAVIS, Evidence Technician, Iowa Division of Criminal Investigation JOHN KRAEMER, State Medical Examiner Investigator, Iowa Office of the SME TONY HINNERS, Funeral Director, Farber and Otteman Funeral Home SUSAN CROOKHAM, Certifying Scientist, National Medical Services EDWARD SCHMITT, Father of Marilyn Schmitt SANDRA SCHMITT, Mother of Marilyn Schmitt MOLLY HENEMAN, Sister of Marilyn Schmitt KIEL PLOEN, Co-Worker of Marilyn Schmitt CHRISTIAN SCHRAMM, Co-Worker of Marilyn Schmitt TERRY BRUNS, Co-Worker of Marilyn Schmitt LIST OF ADDITIONAL WITNESSES

E-FILED 2013 MAY 23 12:49 PM SAC - CLERK OF DISTRICT COURT

JIM OBRIEN, Co-Worker of Marilyn Schmitt DON ORTNER, Co-Worker of Marilyn Schmitt DONNA JOHNSON, Co-Worker of Marilyn Schmitt DOUG REIS, Owner / Operator Reis Brothers Service Station RICK MEYER, Employee, Alta Body Shop TAMMI NIERLING, Jail Supervisor, Buena Vista County Jail TIM SPEERS, Father of Jessica Vega MATT LEVIN, Father of Defendant JACKIE MONTANGE, Special Agent, Iowa Division of Criminal Investigation LAURA MYERS, Special Agent, Iowa Division of Criminal Investigation PHILLIP KENNEDY, Special Agent, Iowa Division of Criminal Investigation CHET HARTWELL, Peace Officer, Storm Lake Police Department DAVE DOEBEL, Lieutenant, Storm Lake Police Department TODD ERSKINE, Assistant Chief of Police, Storm Lake Police Department MARK PROSSER, Chief of Police, Storm Lake Police Department KRISTAN ERSKINE, Deputy, Sac County Sheriffs Office GENESIS AGUILAR, Sister of Jessica Vega

E-FILED 2013 MAY 23 4:21 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 MAY 23 4:21 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 MAY 23 4:34 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, v. KIRK RILEY LEVIN, Defendant. COMES NOW the defendant, through undersigned counsel, and pursuant to the Constitution of the United States, the Constitution of the State of Iowa, the Iowa Rules of Criminal Procedure, and the Code of Iowa, hereby requests that this Court order the State and its counsel, witnesses, and agents, to refrain from offering any argument, statement, question or reference, either directly or indirectly, any of the matters hereinafter set forth: 1. The State and its counsel, witnesses, and agents, should be barred from offering evidence or testimony not properly noticed in the Minutes of Testimony. The Jury should not be told at any time by any party or witness in any form at any stage of the trial that the defendant has court appointed counsel or is represented by the Public Defenders Office. The Jury should not be told at any time by any party or witness in any form at any stage of the trial that the investigators from the Iowa D.C.I. investigate or assist in investigating serious or major cases or use other language that could improperly prejudice the defendant or bolster the credibility of the witness. The Jury should not be told at any time by any party or witness in any form at any stage of the trial about the Defendants alleged character until that matter is placed in issue by the Defendant. The Jury should not be told at any time by any party or witness in any form at any stage of the trial about any alleged prior bad acts by the Defendant. In addition to the general bar on this testimony the Court should exclude testimony of alleged prior crimes by the defendant. Further, the Defendant requests that this Court order the State and its counsel, witnesses, and agents, to refrain from introducing any evidence related to allegations of uncharged or unproven criminal conduct. Such evidence is irrelevant, inherently untrustworthy, and would only be offered to inflame the passions of the jury or misled the jurors so Case No. FECR 012239 MOTION IN LIMINE

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E-FILED 2013 MAY 23 4:34 PM SAC - CLERK OF DISTRICT COURT

as to prompt them to convict the defendant for reasons other than the evidence relating to the current charge. 6. The Jury should not be told at any time by any party or witness in any form at any stage of the trial about any prior criminal convictions of the Defendant that are outside the scope of Iowa Rule of Evidence 5.609(a)(2). In a criminal case the accused faces the acute prejudicial risk that if he is impeached with a similar prior conviction, then the jury may assume the defendant's guilt because he previously committed a similar crime. State v. Harrington, 800 N.W.2d 46, 50 (Iowa 2011), quoting State v. Hackney, 397 N.W.2d 723, 726 (Iowa 1986). The State and its counsel, witnesses, and agents, should be barred from offering statements that would violate the defendants right to confrontation. The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a defendant the right to be confronted with the witnesses against him. U.S. Const. amend. VI. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); State v. Bentley, 739 N.W.2d 296 (Iowa 2007). The Jury should not be told at any time by any party or witness in any form at any stage of the trial that any person in this case is a "victim". A person can be a victim only after the jury in this case makes a finding that a crime has been committed. It is an improper opinion, invades the decision making process of the jury, and unfairly prejudicial to Defendant for any person at any stage of this trial prior to the jury verdict to call or refer to any person as the "victim". The Defendant requests that this Court enter an order prohibiting the State and its counsel, witnesses, and agents, from introducing excessive or cumulative copies of photographs from the scene of the alleged crime scene and from the autopsy performed in this case. The probative value of the evidence listed in paragraphs one through nine is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. See Iowa Rule of Evidence 403. The State and its counsel, witnesses, and agents, should be barred from offering any testimony, evidence, or exhibit, or from making any legal argument that would misstate the burden of proof in this case. The Defendant requests that this Court enter an order prohibiting the State and its counsel, witnesses, and agents, from introducing any evidence regarding the

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E-FILED 2013 MAY 23 4:34 PM SAC - CLERK OF DISTRICT COURT

physical or psychological effect of the alleged crime on any individual, including, but not limited to, any testimony that could be considered as victim impact or appealing to the emotion of the crime alleged. 13. The State and its counsel, witnesses, and agents, should be barred from making any statement, comment, or argument that is intended to inflame the passions of the jury or misled the jurors so as to prompt them to convict the defendant for reasons other than the evidence introduced at trial and the law as contained in the courts instructions. State v. Graves, 668 N.W.2d 860, 876-77 (Iowa 2003); State v. Werts, 677 N.W.2d 734, 739 (Iowa 2004).

FURTHER the defendant requests a pre-trial hearing for determination of the admissibility of said evidence if tendered by the State. The defendant further asks the Court to instruct the aforesaid individuals by appropriate order to refrain from making any such motion, reference, argument, or interrogation without first approaching the Bench and obtaining a ruling from the Court. The Court should further order that any argument as to the admissibility of any of the evidence set out below should be made outside of the presence of both prospective jurors and those jurors who are sworn to hear this case.

__________/S/___________________ Charles J. Kenville, (AT0004187) 706 Central Avenue, Fort Dodge, IA 50501 Telephone: (515) 573-1140; Fax: (515)576-8365 E-mail: ckenville@spd.state.ia.us ATTORNEY FOR THE DEFENDANT

E-FILED 2013 MAY 24 12:12 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, PLAINTIFF, VS. KIRK RILEY LEVIN, DEFENDANT. Case No. FECR 012239

SECOND MOTION FOR CHANGE OF VENUE

COMES NOW the Defendant in the above captioned matter, through the undersigned attorney, and pursuant to Iowa Rule of Criminal Procedure 2.11(10) hereby requests a Change of Venue. In support of this Motion the defendant states as follows: 1. The defendant is charged by way of Trial Information with Murder in the 1st Degree, a Class A felony, and Kidnapping in the Third Degree, a Class C felony. 2. Trial in this matter is currently scheduled for June 3rd, 2013, in the Iowa District Court for Webster County located at the Webster County Courthouse in Fort Dodge, Iowa. 3. Venue was previously moved from Sac County to Webster County by Order of the Court dated May 14th, 2013. 4. Since the date of the Order changing venue in this case, events have occurred in Webster County which make it impossible for the Defendant to be given a fair trial. Specifically, a kidnapping and possible homicide of a young woman in Dayton, Webster County, Iowa occurred and has been extensively reported by local media. 5. Given the nature and circumstances of the allegations against the defendant it is unrealistic to think the jury will not be improperly influenced by the recent events in their county of residence. 6. Some of the potential jurors that have been selected for the term covering this matter are from or live within a few miles of Dayton. 7. Venue must be changed to ensure the defendant receives a fair trial.

WHEREFORE the defendant respectfully requests this matter be set for hearing, and after fully considering the issues in this Motion, the Court grant the defendants request to have venue changed in this case. __________/S/___________________ Charles J. Kenville, (AT0004187) Attorney for the defendant 706 Central Avenue, Fort Dodge, IA 50501

E-FILED 2013 MAY 24 12:12 PM SAC - CLERK OF DISTRICT COURT

Telephone: (515) 573-1140; Fax: (515)576-8365 E-mail: ckenville@spd.state.ia.us ATTORNEY FOR THE DEFENDANT

E-FILED 2013 MAY 30 9:18 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY STATE OF IOWA, Plaintiff, v. KIRK RILEY LEVIN, Defendant. STATES RESISTANCE TO DEFENDANTS SECOND MOTION FOR CHANGE OF VENUE Case No. FECR012239

COMES NOW the State of Iowa and resists defendants second motion for change of venue. The State respectfully requests that the Court deny defendants motion in its entirety following the May 31, 2013, hearing on the same.

/s/ Benjamin John Smith Benjamin John Smith - AT0008834 Sac County Attorney Sac County Courthouse 100 NW State St., Suite 9 Sac City IA 50583 Telephone: 712-662-4791 Facsimile: 712-662-4123 Email: attorney@saccounty.org

E-FILED 2013 MAY 30 9:18 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY STATE OF IOWA, Plaintiff, v. KIRK RILEY LEVIN, Defendant. STATES RESISTANCE TO DEFENDANTS SECOND MOTION FOR CHANGE OF VENUE Case No. FECR012239

COMES NOW the State of Iowa and resists defendants second motion for change of venue. The State respectfully requests that the Court deny defendants motion in its entirety following the May 31, 2013, hearing on the same.

/s/ Benjamin John Smith Benjamin John Smith - AT0008834 Sac County Attorney Sac County Courthouse 100 NW State St., Suite 9 Sac City IA 50583 Telephone: 712-662-4791 Facsimile: 712-662-4123 Email: attorney@saccounty.org

E-FILED 2013 MAY 31 11:48 AM SAC - CLERK OF DISTRICT COURT

IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA, Plaintiff, vs. KIRK R LEVIN ,

Case No: 02811 FECR012239 EXHIBIT LIST Pretrial Motions May 31, 2013 Presiding Judge: Timothy J. Finn

Defendant.

The following exhibits were offered and admitted by the Court at the hearing as shown above: Defendant's A - Photograph B - Photograph C- Newspaper D - Newspaper E- Newspaper F- Newspaper G - Newspaper H - Newspaper I - Newspaper J- Newspaper K- Newspaper L - Newspaper

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E-FILED 2013 MAY 31 11:48 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number FECR012239 Type: Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) EXHIBIT LIST So Ordered

Electronically signed on 2013-05-31 11:48:10

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E-FILED 2013 MAY 31 2:23 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, !s. "IR" RI#E$ #E%IN, ) ) ) ) Crim. Case No. FECR01223

ORDER

&efen'ant. ) ((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((

T)e &efen'ant file' a Se*on' +otion for C)an,e of %en-e .)i*) *ame on for )earin, /efore t)e Co-rt on +a0 31, 2013. &efen'ant offere' e!i'en*e *onsistin, of a /ill/oar' in Fort &o',e referen*in, a 1missin, teen2 in t)e Fort &o',e area 3E4)i/it A)5 a noti*e 1en'an,ere' missin,2 *on*ernin, 1"at)l0nn S)e6ar'2 .)i*) .as 6oste' at a 708%ee Store in Fort &o',e 3E4)i/it 9)5 an' e4)i/its *onsistin, of t)e front 6a,e, Fort Dodge Messenger, on +a0 21, +a0 22, +a0 23, +a0 2:, +a0 2;, +a0 2<, +a0 2=, +a0 2>, +a0 2 , an' +a0 30, 2013 3E4)i/its C ? #). All of t)ese stories .ere in referen*e to a teena,e ,irl .)o is still missin, an' .)o is /elie!e' to )a!e /een @i'na66e' alon, .it) anot)er teena,e ,irl .)o es*a6e'. T)ese e!ents o**-rre' re*entl0 in We/ster Co-nt0. &efen'ant ar,-es t)ere are some similarities /et.een t)at in*i'ent an' t)e fa*ts of t)is *ase. In !ie. of t)is 6-/li*it0 an' similarit0, t)e &efen'ant ar,-es it is im6ossi/le for )im to ,et a fair trial in We/ster Co-nt0. T)e State resists t)e a66li*ation. T)e State ar,-es t)ere are eno-,) fa*t-al 'ifferen*es /et.een t)e t.o *ases t)at a A-r0 in We/ster Co-nt0 .o-l' not /e 6reA-'i*e'. T)e State also *laims t)ere is not an0 fa*t-al s-66ort for t)e *laim t)at it .ill /e im6ossi/le to sele*t a fair A-r0 in We/ster Co-nt0. After re!ie.in, t)e matter, t)e Co-rt 'etermines t)at t)e Se*on' +otion for C)an,e of %en-e s)o-l' /e 'enie'. If, '-rin, t)e A-r0 sele*tion 6ro*ess of t)is *ase, it 'e!elo6s

E-FILED 2013 MAY 31 2:23 PM SAC - CLERK OF DISTRICT COURT

t)at t)ere are 6ro/lems in fa*t in sele*tin, a fair an' im6artial A-r0 in We/ster Co-nt0, t)e Co-rt .ill re!ie. t)is 'e*ision an', if ne*essar0, *)an,e t)e !en-e in t)e *ase. 7o.e!er, /ase' on t)e e!i'en*e 6resente', as .ell as in t)e e4er*ise of its 'is*retion, t)e Co-rt at t)is time *annot sa0 t)at it is im6ossi/le ? or e!en -nli@el0 ? t)at t)e &efen'ant *an o/tain a ne-tral A-r0 in We/ster Co-nt0. IT IS T7EREFORE T7E OR&ER OF T7E COBRT as follo.sC 1. T)e Se*on' +otion for C)an,e of %en-e is &ENIE&. 2. D-r0 trial in t)is matter s)all *ommen*e at C00 a.m. on D-ne 3, 2013, in t)e We/ster Co-nt0 Co-rt)o-se in Fort &o',e, Io.a.

Cler@ to 6ro!i'e *o6ies toC Co-nt0 Attorne0 ? 9en Smit) Attorne0 Eeneral ? &o-, 7ammeran' &efense Attorne0 ? C)arles "en!ille Co-rt A'ministrator We/ster Co-nt0 Cler@ of Co-rt

E-FILED 2013 MAY 31 2:23 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-05-31 14:23:22

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E-FILED 2013 MAY 31 2:51 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, !s. "IR" RI#E$ #E%IN, ) ) ) ) Crim. Case No. FECR01223

RULING ON DEFENDANTS MOTION TO SUPPRESS

&efen'ant. ) ((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((

On )a* 3, 2013, &efen'ant file' a )otion to S+,,ress an' a )otion for C-an.e of %en+e. T-e Co+rt 'ealt /it- t-e )otion for C-an.e of %en+e in a se,arate or'er. T-e State file' its Resistan0e to t-e )otion to S+,,ress on )a* 1, 2013. Trial is 0+rrentl* s0-e'+le' in t-is matter for 2+ne 3, 2013. T-e &efen'ant -as 3een 0-ar.e' in a Trial Information /it- t-e 0rimes of )+r'er in t-e First &e.ree an' "i'na,,in. in t-e T-ir' &e.ree. 4e -as entere' ,leas of not .+ilt*. T-is matter /as s+3mitte' to t-e Co+rt 3* /a* of sti,+lation. T-e ,arties sti,+late' t-at t-e Co+rt s-o+l' r+le on t-e )otion to S+,,ress 3ase' on its re!ie/ of t-e follo/in.5 61) 0ontents of t-e 0o+rt file, 62) t/o &%&S7s 6E8-i3it 1 an' 9) of t-e inter!ie/ of t-e &efen'ant 3* ,oli0e offi0ers, 63) E8-i3its 2, 3, an' : /-i0- are trans0ri,ts of t-e 0ontents of t-e t/o &%&7s 6E8-i3its 1 an' 9) an' E8-i3it 3 /-i0- is a 0o,* of a 'o0+ment entitle' ;Statement of Ri.-ts, A0<no/le'.ment an' Wai!er of Ri.-ts= ,+r,orte'l* si.ne' 3* t-e &efen'ant at 1150: a.m. on 2an+ar* 3, 2013. >ot- si'es -a!e s+3mitte' 3riefs. In -is motion to s+,,ress, t-e &efen'ant raises se!eral se,arate iss+es5 61) 4e 0laims t-at an* /ai!er of ri.-ts .i!en 3* -im /as not <no/in.l*, intelli.entl*, or !ol+ntaril* ma'e? 62) -e 0laims -e in!o<e' -is ri.-t to an attorne* 3+t t-at t-e ,oli0e ille.all* 0ontin+e' to @+estion -im? an' 63) t-at t-e ,oli0e +se' im,ro,er interro.ation te0-ni@+es to in'+0e t-e

E-FILED 2013 MAY 31 2:51 PM SAC - CLERK OF DISTRICT COURT

&efen'ant to s,ea< /it- t-em, in0l+'in. ,romises of lenien0* or statements a3o+t /-at -e 0o+l' .ain from ma<in. a 0onfession. Statement of Facts On 2an+ar* 3, 2013, "ir< #e!in /as arreste' for <i'na,,in. 2essi0a %e.a. Poli0e &ete0ti!e Erritt rea' &efen'ant -is Miranda ri.-ts. &efen'ant #e!in !er3all* a0<no/le'.e' -is +n'erstan'in. of t-e same, an' t-en #e!in also si.ne' a /ritten Miranda /ai!er form /ai!in. -is ri.-t to 0o+nsel. T-e inter!ie/ /it- t-e offi0er 0ontin+e' +ntil t-e &efen'ant ma'e a statement5 ;I mi.-t 6ina+'i3le) m*self a la/*er.= 6E8-i3it 1 at 11511533 min+tes.) At t-at ,oint, Offi0er "oontA an' #e!in /ere tal<in.5 ;"OONTB5 ;#E%IN5 ;"OONTB5 ;#E%IN5 ;"OONTB5 ;#E%IN5 W-at -a,,ene' /it- 2essi0aC I 'on7t <no/ /-at -a,,ene', /-* it -a,,ene'. W-at7s t-atC I 'on7t <no/ /-* it -a,,ene'. Well, tell me /-at -a,,ene'. I 'on7t t-in< it is smart for me to 'o t-at. I mi.-t 6ina+'i3le) m*self a la/*er.=

T-e @+estionin. of t-e &efen'ant 0ontin+es for a si.nifi0ant ,erio' of time t-ereafter an' t-en is re0ommen0e' se!eral -o+rs later. A trans0ri,t of t-at inter!ie/ is mar<e' as E8-i3it :. At t-e 3e.innin. of t-e se0on' inter!ie/, la/ enfor0ement offi0ers a.ain rea' #e!in -is Miranda ri.-ts. )r. #e!in a.ain a0<no/le'.e' -e +n'erstoo' -is ri.-ts an' res,on'e' affirmati!el* /-en &efen'ant "oontA as<e' /-et-er it /as o<a* for t-e offi0ers to tal< to an' as< -im @+estions.

E-FILED 2013 MAY 31 2:51 PM SAC - CLERK OF DISTRICT COURT

T-e Co+rt -as /at0-e' t-e !i'eota,es of 3ot- inter!ie/s an' -as re!ie/e' t-e trans0ri,ts /-i0- /ere offere'. In -is motion to s+,,ress, &efen'ant ar.+es t-at at t-e time of t-ese interro.ations, -e /as ;'etaine'= 3* t-e ,oli0e. T-is is a fa0t /-i0- is not in 'is,+te. 4e /as not free to lea!e an' -is a0tions /ere 0ontrolle' 3* t-e ,oli0e. T-e 0riti0al iss+e for t-e Co+rt to 'etermine is t-e le.al im,li0ation of &efen'ant7s assertion t-at ;t-e &efen'ant in!o<e' -is ri.-t to 0o+nsel an' @+estionin. /as allo/e' to 0ontin+e. T-e interro.atin. offi0ers i.nore' t-e &efen'ant7s re@+est for 0o+nsel an' ,ro0ee'e' to @+estion -im at len.t-.= A.ain, t-ere is no 'is,+te t-at after t-e statement set fort- a3o!e 6;I mi.-t 6ina+'i3le) m*self a la/*er=) t-at t-e interro.ation 0ontin+e'. A''itionall*, a se0on' interro.ation /as -el' later. T-at se0on' interro.ation, -o/e!er, /as also ,re0e'e' 3* t-e ,oli0e offi0er a.ain rea'in. t-e &efen'ant -is Miranda ri.-ts an' &efen'ant 0onsentin. to t-e inter!ie/. The Defen ant ma e no s!m!"a# statement a$o%t a "a&'e# at an' othe# (o!nt %#!n) th!s !nte#*!e&. A se0on' iss+e raise' 3* t-e motion to s+,,ress is t-e alle.ation t-at ;t-e offi0ers +se' im,ro,er interro.ation te0-ni@+es to in'+0e t-e &efen'ant to s,ea< to t-em. T-e offi0ers ,romise' lenien0* to t-e &efen'ant. F+rt-er, an offi0er 0annot tell a s+3De0t /-at a'!anta.e is to 3e .aine' or is li<el* to 3e .aine' from ma<in. a 0onfession.= See, State v. McCoy, E 2 N.W.2' E 6Io/a 200:). A final iss+e raise' 3* &efen'ant is t-at an* /ai!er of ri.-ts 3* &efen'ant ;/as not <no/in.l*, intelli.entl*, or !ol+ntaril* ma'e.=

E-FILED 2013 MAY 31 2:51 PM SAC - CLERK OF DISTRICT COURT

CONCLUSIONS OF LAW +, Re-%est fo# an Atto#ne' ;T-e re@+est for 0o+nsel m+st 3e F+nam3i.+o+s7 an' F+ne@+i!o0al.7= State v. Effler, GE N.W.2' 110, 11E 6Io/a 200 ). See, also, Davis v. United States, :12 H.S. 9:2, 9: , 119 S.Ct. 23:0, 23::, 12 #.E'.2' 3E2, 3G1 61 9). ;I+estionin. nee' not 0ease if a s+s,e0t

ma<es a referen0e to an attorne* t-at is am3i.+o+s or e@+i!o0al in t-at a reasona3le offi0er in li.-t of 0ir0+mstan0es /o+l' -a!e +n'erstoo' onl* t-at t-e s+s,e0t mi.-t 3e in!o<in. t-e ri.-t of 0o+nsel.= Id. In State v. Morgan, :: N.W.2' E03 6Io/a 1 G) t-e Io/a S+,reme Co+rt -el'

t-at t-e 'efen'ant7s statement ;I t-in< I nee' an attorne*= ,rior to an attem,t to a'minister ,ol*.ra,- e8amination, fell s-ort of an +ne@+i!o0al in!o0ation of -is ri.-t to 0o+nsel. As state' a3o!e, t-ere is no 'o+3t t-at t-is interro.ation too< ,la0e at a time /-en t-e &efen'ant /as arreste' an' /-en -e /as not free to lea!e t-e interro.ation. 4is free'om of a0tion /as 0+rtaile' to a ;'e.ree asso0iate' /it- formal arrest.= 4o/e!er, t-e first iss+e 3efore t-e Co+rt is /-et-er or not t-e statement ma'e 3* t-e &efen'ant rises to t-e le!el of an +ne@+i!o0al or +nam3i.+o+s re@+est for 0o+nsel. >ase' on t-e stan'ar's en+n0iate' 3* t-e Io/a S+,reme Co+rt an' t-e H.S. S+,reme Co+rt, t-e Co+rt fin's t-at t-e statement ;I m!)ht .!na% !$"e/+ m'se"f a "a&'e#= 'oes not rise to t-e le!el of 3ein. an +nam3i.+o+s an' +ne@+i!o0al re@+est for a la/*er. In'ee', it is !er* similar to t-e statement in State v. Morgan /-ere t-e Io/a S+,reme Co+rt s,e0ifi0all* fo+n' t-at t-e statement ;I t-in< I nee' an attorne*= fell s-ort of an +ne@+i!o0al in!o0ation of

1 T-e ,erson /-o trans0ri3e' t-e ta,e ,+t ;6ina+'i3le)= in t-at trans0ri,t. T-e &efen'ant in -is >rief 0laims t-e &efen'ant state' ;J/antKnee'L= a la/*er. &efen'ant ma* 3e 0orre0t, 3+t /-at t-e &efen'ant a0t+all* sai' is s+3De0t to 'is,+te.

E-FILED 2013 MAY 31 2:51 PM SAC - CLERK OF DISTRICT COURT

'efen'ant7s ri.-t to 0o+nsel an' ref+se' to s+,,ress 'efen'ant7s statement. See, Morgan, :: N.W.2' at E03. In State v. Effler, t-e Io/a S+,reme Co+rt -el' 63* o,eration of la/, in a s,lit 'e0ision) t-at a some/-at similar statement 0on0ernin. an attorne* /as not s+ffi0ient to s+,,ress s+3se@+ent statements ma'e 3* t-e &efen'ant in t-eir interro.ation. &efen'ant, -o/e!er, 0ites 2+sti0e Wi..ins 'issentin. o,inion in Effler for t-e follo/in. ,ro,osition5 ;In 'eterminin. /-et-er t-e State -as !iolate' a ,erson7s fe'eral 0onstit+tional ri.-ts, a re!ie/in. 0o+rt 0annot sim,l* anal*Ae a fe/ /or's o+t of 0onte8t an' sear0- for am3i.+it* t-ro+.lin.+isti0 a0ro3ati0s. As an*3o'* /-o s,ea<s t-e En.lislan.+a.e <no/s, D+st a3o+t an* /or', or .ro+, of /or's, in isolation, ma* 3e ma'e to loo< am3i.+o+s. T-+s, +n'er Davis, t-e 0o+rt m+st as< M /-et-er a reasona3le ,oli0e offi0er, in li.-t of t-e 0ir0+mstan0es, /o+l' 3elie!e t-at a s+s,e0t +ne@+i!o0all* re@+este' t-e assistan0e of 0o+nsel.=

&efen'ant also 0ites t-e 'issent of 2+sti0e A,,el in Effler in ,ointin. o+t t-at t-e Io/a S+,reme Co+rt ma* ;for.e its o/n 0o+rse on state 0onstit+tional inter,retation.= 4e 0ites t-e follo/in. lan.+a.e5 ;A @+estion l+r<in. 3e-in' t-is 0ase is /-et-er t-is 0o+rt /o+l' to'a* follo/ t-e a,,roa0- of Davis v. United States, :12 H.S. 9:2, 119 S.Ct. 23:0, 12 #.E'.2' 3E2 61 9), in inter,retin. t-e Io/a Constit+tion. In Davis, a 3are maDorit* of t-e Hnite' States S+,reme Co+rt 'e0i'e' t-at la/ enfor0ement -a' no o3li.ation to 0larif* an am3i.+o+s re@+est for 0o+nsel ma'e 3* an a00+se' in 0+sto'* after -e -a' ,ro!i'e' a !ali' /ai!er of -is ri.-t to 0o+nsel +n'er Miranda v. Arizona, 319 H.S. 93E, 1E S.Ct. 1E02, 1E #.E'.2' E 9 61 EE). &a!is, :12 H.S. at 9: , 119 S.Ct. at 23::, 12 #.E'.2' at 3G1NG2. T-e maDorit* 'e0line' to a'o,t t-e ,osition a'!o0ate' 3* t-e &e,artment of 2+sti0e an' ot-er la/ enfor0ement a+t-orities t-at /-en a s+s,e0t am3i.+o+sl* re@+ests a ri.-t to 0o+nsel, la/ enfor0ement m+st as< 0larif*in. @+estions /it- t-e sole ,+r,ose of resol!in. t-e am3i.+it*. Id. at 9E1, 119 S.Ct. at 23:E, 12 #.E'.2' at 3G3.=

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T-ere -as 3een a n+m3er of re0ent Io/a S+,reme Co+rt 'e0isions /-i0- are re!ie/in. an' 0-an.in. lon.N-el' 0riminal la/ stan'ar's 3ase' on an inter,retation of t-e Io/a Constit+tion. See, State v. Cline, E1G N.W.2' 2GG 6Io/a 2000)? State v. Wilkes, G:E N.W.2' 131 6Io/a 2001)? an' State v. Bolden, No. 10N0219, A,ril 1 , 2013, Io/a S+,reme Co+rt. As a res+lt, /-at /as formerl* essentiall* ;3la0< letter la/= is no/ less 0ertain. T-e Io/a S+,reme Co+rt -as not re!ie/e' a 0ase /it- t-is s,e0ifi0 lan.+a.e /-ile en.a.e' on its 0+rrent em,-asis on re!ie/in. 0onstit+tional 0riminal la/ in !ie/ of t-e Io/a Constit+tion. W-at 0o+rse t-e Co+rt /ill ta<e in t-is ,arti0+lar 0ase is some/-at 'iffi0+lt to as0ertain. 4o/e!er, in !ie/ of t-e fa0t t-at lan.+a.e similar to t-e lan.+a.e in!o<e' 3* t-e &efen'ant -ere -as -istori0all* 3een -el', 3ot- in fe'eral an' state 0o+rts, to 3e ina'e@+ate to in!o<e t-e re@+irement t-at t-e ,oli0e sto, t-eir interro.ation, t-is Co+rt is of t-e same o,inion -ere. &efen'ant 'oes not state t-at -e /ill not tal< an* lon.er /it-o+t a la/*er. 4e 'oes not state t-at -e ;/ants= a la/*er. 4e a,,ears to state t-at -e mi.-t nee' a la/*er 3+t 'oes not reassert t-is 0laim at an* ot-er ,la0e in t-e -o+rs of interro.ation /-i0- follo/. Hn'er t-ese 0ir0+mstan0es, t-e Co+rt fin's t-at it is a fair inter,retation of t-e 0+rrent state of 0riminal la/ in Io/a to fin' t-at t-e 0ontin+e' interro.ation of t-e &efen'ant /as not !iolati!e of -is Miranda /arnin.s or 0onstit+tional ri.-ts. For t-at reason, t-is ,ortion of t-e &efen'ant7s motion to s+,,ress is 'enie'. 0, D! the Off!ce#s Use Im(#o(e# Inte##o)at!on Techn!-%es1 &efen'ant ne8t asserts t-at t-e interro.atin. offi0ers +se' ;im,ro,er interro.ation te0-ni@+es= to in'+0e &efen'ant to s,ea< to t-em. T-e* 0laim t-e offi0ers ;,romise' lenien0*.= &efen'ant im,lies t-at t-e offi0ers s+..este' it /o+l' 3e in -is a'!anta.e to ma<e a 0onfession.

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First of all, t-e Co+rt -as re!ie/e' t-e interro.ation an' fin's no s+0- im,ro,er statements. Se0on'l*, a more a00+rate s+mmation of /-at t-e offi0ers tal<e' to t-e &efen'ant a3o+t /as sim,l* to +r.e -im to tell t-e tr+t-. T-e &efen'ant fails to ,oint o+t an' t-e Co+rt 0annot fin' an* s,e0ifi0 ,la0es /-ere t-e offi0ers eit-er 'ire0tl* or im,li0itl* ,romise' &efen'ant more fa!ora3le treatment or a lesser senten0e in ret+rn for ma<in. a statement. In fa0t, t-e offi0ers s,e0ifi0all* tol' &efen'ant on se!eral o00asions t-e* 0o+l' ma<e -im no s+0,romises. As state' in State v. Gennett, :G9 N.W.2' 3E1, 3EE 6Io/a A,,. 1 G)5 ;T-ere is

no la/ t-at ,ro-i3its t-e ,oli0e from esta3lis-in. ra,,ort /it- a s+s,e0t. A statement to a 0riminal s+s,e0t t-at im,lies em,at-* or +n'erstan'in. for t-e s+s,e0t 'oes not amo+nt to im,ro,er in'+0ement or 0oer0ion.= ;An offi0er 0an or'inaril* tell a s+s,e0t t-at it is 3etter to tell t-e tr+t-.= State v. odges, 32E N.W.2' 39:, 39 6Io/a 1 12). Finall*, if t-e interro.ators ma<e an ;offer to re0ommen' ,s*0-iatri0 -el, or an offer to inform t-e ,rose0+tor of 'efen'ant7s F0oo,eration7 Js+0- is notL tantamo+nt to a ,romise of lenien0*.= State v. Witsel, 33 N.W.2' 19 , 1:3N:9 6Io/a 1 13). 2, Was Defen ants Wa!*e# of h!s R!)hts 34no&!n)"'5 Inte""!)ent"'5 o# 6o"%nta#!"' Ma e71

4ere, t-e &efen'ant /as rea' -is Miranda /arnin.s on t/o o00asions. On one o00asion -e a0t+all* si.ne' a /ritten 0onsent an' /ai!er to t-ose ri.-ts. On t-e se0on' o00asion, /-i0- /as a relati!el* s-ort ,erio' of time later, -e /as a.ain rea' t-e Miranda /arnin.s an' 0onsente' to ,ro0ee' /it- t-e interro.ation. T-e &efen'ant -as offere' no e!i'en0e to s+,,ort -is 0laim t-at &efen'ant 'i' not <no/in.l*, !ol+ntaril*, an' intelli.entl*

E-FILED 2013 MAY 31 2:51 PM SAC - CLERK OF DISTRICT COURT

/ai!e -is ri.-ts. It a,,ears to t-e Co+rt -e 'i'. Hnless t-e Co+rt is /illin. to 0reate a ,res+m,tion t-at all 'efen'ants la0< s+0- 0a,a0it*, 3ase' on t-e e!i'en0e -ere, t-e &efen'ant -as faile' to esta3lis- t-is. For all of t-e fore.oin. reasons, t-e &efen'ant7s )otion to S+,,ress is O%ERRH#E&. Cler< to ,ro!i'e 0o,ies to5 Co+nt* Attorne* M >en SmitAttorne* Oeneral M &o+. 4ammeran' &efense Attorne* M C-arles "en!ille

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State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-05-31 14:51:25

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E-FILED 2013 JUN 06 2:16 PM SAC - CLERK OF DISTRICT COURT

2RCR04 IN THE IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA, Plaintiff, vs. KIRK R LEVIN , Defendant.

Case No. 02811 FECR012239

COURT REPORTER MEMORANDUM AND CERTIFICATE

COURT REPORTER MEMORANDUM (The court reporter shall file this memorandum with the district court clerk.) Appearances: For the State: Ben Smith and Doug Hammerand For the Defendant: Charles Kenville Other: Information required by Iowa Rule of Civil Procedure 1.903(3): I, Pamela J. Hayes, am providing the following information as required by Iowa Rule of Civil Procedure 1.903(3): 1. The type of proceeding that was reported: Pretrial Motions and Criminal Jury Trial 2. The date(s) on which the proceeding occurred: May 31, June 3, 4, 5, and 6, 2013 3. The name of the court reporter who reported the proceeding: Pamela J. Hayes 4. The name of the judge who presided over the proceeding: Timothy J. Finn 5. The reporting fee for the proceeding: $200.00 (5 Days total) 6. We, the undersigned judge before whom the above-entitled case was tried, and the official court reporter who, by order of the Court, reported the same, do hereby certify that the above and foregoing is the report of the whole proceedings upon the trial and/or hearing of the above-entitled cause made and taken pursuant to the order and direction of the Court, in accordance with Iowa Code Section 624.10. /s/ Pamela J. Hayes ___________________________________ District Court Reporter
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State of Iowa Courts Case Number FECR012239 Type: Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) COURT REPORTER MEMORANDUM AND CERTIFICATE So Ordered

Electronically signed on 2013-06-06 14:16:33

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E-FILED 2013 JUN 06 2:33 PM SAC - CLERK OF DISTRICT COURT

IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA, Plaintiff, vs. KIRK R LEVIN ,

Case No: 02811 FECR012239 EXHIBIT LIST Criminal Jury Trial June 3, 4, 5, and 6, 2013 Presiding Judge: Timothy J. Finn

Defendant.

The following exhibits were offered and admitted by the Court at the hearing as shown above: State's 1 - Belt 2 - Knife Handle 3 - Knife Blade 4 - Yellow Rope from Roadway 5 - Defendant's Sweatpants 6 - Defendant's Sweatshirt 7 - Defendant's Gray T-Shirt 8 - Defendant's Socks 9 - Defendant's Boxers/Briefs 10 - Defendant's Handwritten Statement 11 - Photograph 12 - Photograph 13 - Photograph 14 - Photograph 15 - Photograph 16 - Photograph 17 - Photograph 18 - Photograph 19 - Photograph 20 - Photograph 21 - Photograph 22 - Photograph 23 - Photograph

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24 - Photograph 25 - Photograph 26 - Photograph 27 - Photograph 28 - Photograph 29 - Photograph 30 - Photograph 31 - Photograph 32 - Photograph 33 - Photograph 34 - Photograph 35 - Photograph 36 - Photograph 37 - Photograph 38 - Photograph 39 - Photograph 40 - Photograph 41 - Photograph 42 - Photograph 43 - Photograph 44 - Photograph 45 - Photograph 46 - Photograph 47 - Photograph 48 - Photograph 49 - Photograph 50 - Photograph 51 - Photograph 52 - Photograph 53 - Photograph 54 - Photograph 55 - Photograph 56 - Photograph 57 - Photograph 58 - Photograph 59 - Photograph 60 - Photograph 61 - Photograph 62 - Photograph 63 - Photograph 64 - Photograph 65 - Photograph 66 - Photograph 67 - Photograph 68 - Photograph 69 - Photograph 70 - Photograph 71 - Photograph 72 - Photograph
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73 - Photograph 74 - Photograph 75 - Photograph 76 - Photograph 77 - Photograph 78 - Photograph 79 - Photograph 80 - Photograph 81 - Photograph 82 - Photograph 83 - Photograph 84 - Photograph 85 - Photograph 86 - Photograph 87 - Photograph 88 - Photograph 89 - Photograph 90 - Photograph 91 - Photograph 92 - Photograph 93 - Dr. Thompson's CV 94 - Autopsy Report 95 - Photograph 96 - Photograph 97 - Photograph 98 - Photograph 99 - Photograph 100 - Photograph 101 - Photograph 102 - Photograph 103 - Photograph 104 - Photograph 105 - Photograph 106 - Photograph 107 - Photograph 108 - Photograph 109 - Photograph 110 - Photograph 111 - Photograph 112 - Photograph 113 - Photograph 114 - Photograph 115 - Photograph 116 - Photograph 117 - Photograph 118 - Photograph 119 - DVD of Crime Scene 120 - DVD of 1st Interview 121 - DVD of 2nd Interview
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Defendant's A- Photograph

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E-FILED 2013 JUN 06 2:33 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number FECR012239 Type: Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) EXHIBIT LIST So Ordered

Electronically signed on 2013-06-06 14:32:36

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2013.1111!--! M1I0--I6IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY

STATE OF IOWA Plaintiff, vs. KIRK RILEY LEVIN, Defendant. JURY INSTRUCTIONS CRIMINAL NO. FECR012239

By Trial Information filed in this Court, the State of Iowa charges that on or about the 3
rd

day of January, 2013 in Sac County, Iowa, the Defendant, Kirk Riley Levin,

committed the crimes of: Count I - Murder in the First Degree. The offense of Murder in the First Degree

has within it the lesser included offenses of Murder in the Second Degree, Voluntary Manslaughter, and Involuntary Manslaughter. Count II - Kidnapping in the Third Degree. The offense of Kidnapping in the Third

Degree has within it the lesser included offense of False Imprisonment. The Defendant has entered pleas of not guilty to the charges contained in the Trial Information. You have been impaneled and sworn to resolve the fact issues generated by

the charge and the Defendant's denial.

INSTRUCTION NO. 1 Defendant, Kirk Riley Levin, has entered pleas of not guilty. The pleas of not guilty

are a complete denial ofthe charges and placed the burden on the State to prove guilt beyond a reasonable doubt. Whenever I instruct you the State must prove something, it If the State does not prove the

must be by evidence beyond a reasonable doubt.

Defendant guilty beyond a reasonable doubt, your verdict must be not guilty.

INSTRUCTION NO. 2 The Trial Information is the document that formally charges the Defendant with the crimes and is merely the method by which the Defendant is brought into Court for trial. is not evidence. INSTRUCTION NO. 3 Kirk Riley Levin is presumed innocent and not guilty. This presumption of It

innocence requires you to put aside all suspicion which might arise from the arrest, charge, or the present situation ofthe Defendant. The presumption of innocence remains with

the Defendant throughout the trial unless the evidence establishes guilt beyond a reasonable doubt.

INSTRUCTION NO. 4 You must determine the Defendant's guilt or innocence from the evidence and the law in these instructions. You must consider all ofthe instructions together. ofthe applicable law. No one instruction includes all

INSTRUCTION NO. 5 Nothing I have said or done during the trial was intended to give any opinion as to the facts, proof, or what your verdict should be.

INSTRUCTION NO. 6 You shall base your verdict only upon the evidence and these instructions. Evidence is: 1. 2. Testimony in person or by deposition. Exhibits received by the Court. You may examine the exhibits closely, but be

careful not to alter or destroy them.

If you handle an exhibit that has been chemically

treated, or which has blood on it, outside of its plastic package, use the latex gloves I have provided. 3. Stipulations, which are agreements between the attorneys.

Facts may be proved by direct evidence, circumstantial evidence, or a combination of both. Sometimes, during a trial, references are made to pre-trial statements and reports, witnesses' depositions, or other miscellaneous items. Only those things formally offered Documents or

and received by the Court are available to you during your deliberations.

items read from or referred to, which were not offered and received into evidence, are not available to you. The following are not evidence: 1. 2. 3. 4. Statements, arguments, questions and comments by the lawyers. Objections and rulings on objections. Any testimony I told you to disregard. Anything you saw or heard about this case outside the courtroom.

INSTRUCTION NO. 7 In considering the evidence, you make deductions and reach conclusions according to reason and common sense. evidence, or both. Facts may be proved by direct evidence, circumstantial

Direct evidence is evidence from a witness who claims actual Circumstantial evidence is evidence about a The law makes no Give all the evidence

knowledge of a fact, such as an eyewitness.

chain of facts which show a Defendant is guilty or not guilty.

distinction between direct evidence and circumstantial evidence. the weight and value you think it is entitled to receive.

INSTRUCTION NO. 8 Decide the facts from the evidence. Consider the evidence using your Try to reconcile any conflicts in the

observations, common sense, and experience.

evidence; but if you cannot, accept the evidence you find more believable. In determining the facts, you may have to decide what testimony you believe. You may believe all, part or none of any witness's testimony. There are many factors which you may consider in deciding what testimony to believe, for example: 1. believe. 2. 3. of facts. 4. The witness's interest in the trial, his or her motive, candor, bias, and prejudice. Whether a witness has made inconsistent statements. The witness's appearance, conduct, age, intelligence, memory, and knowledge Whether the testimony is reasonable and consistent with other evidence you

INSTRUCTION NO. 9 During the trial, you have been allowed to take notes. you to the jury room to use in your deliberations. evidence. You may take these with

Remember, these are notes and not

Generally, they reflect the recollection or impressions of the evidence as

viewed by the person taking them, and may be inaccurate or incomplete. Upon reaching a verdict, leave the notes in the jury room, and they will be destroyed.

INSTRUCTION NO. 10 You have heard testimony from persons described as experts. Persons who have

become experts in a field because of their education and experience may give their opinion on matters in that field and the reasons for their opinion. Consider expert testimony just like any other testimony. reject it. You may accept it or

You may give it as much weight as you think it deserves, considering the

witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.

INSTRUCTION NO. 11 In this case the Defendant has decided not to testify. The Defendant is not The burden of

required to testify, and no inference of guilt shall be drawn from that fact. proof remains upon the State to prove the guilt of the Defendant.

INSTRUCTION NO. 12 The duty ofthe jury is to determine if the Defendant is guilty or not guilty. In the event of a guilty verdict, you have nothing to do with punishment.

INSTRUCTION NO. 13 If there is a reasonable doubt as to the degree ofthe crime, the Defendant shall only be convicted ofthe degree for which there is no reasonable doubt.

INSTRUCTION NO. 14 The Defendant has been charged with two counts. bringing each ofthe charges to trial. This is just a method for

If you find the Defendant guilty or not guilty on any

one ofthe two counts, you are not to conclude the Defendant is guilty or not guilty on the other. You must determine whether the Defendant is guilty or not guilty separately on

each count.

INSTRUCTION NO. 15 When two or more alternate theories are presented, or where two or more facts would produce the same result, the law does not require each juror to agree as to which theory or fact leads to his or her verdict. It is the verdict itself which must be unanimous,

not the theory or facts upon which it is based.

INSTRUCTION NO. 16 Evidence has been offered to show that the Defendant made statements at an earlier time and place. If you find any of the statements were made, then you may consider them as part of the evidence, just as if they had been made at this trial.

INSTRUCTION NO. 17 The burden is on the State to prove Kirk Riley Levin guilty beyond a reasonable doubt. A reasonable doubt is one that fairly and naturally arises from the evidence in the case, or from the lack or failure of evidence produced by the State. A reasonable doubt is a doubt based upon reason and common sense and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a Proof beyond a reasonable doubt, therefore, must be

reasonable person hesitate to act.

proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. all possible doubt. If, after a full and fair consideration of all the evidence, you are firmly convinced of the Defendant's guilt, then you have no reasonable doubt and you should find the Defendant guilty. But if, after a full and fair consideration of all the evidence in the case, or from the lack or failure of evidence produced by the State, you are not firmly convinced of the Defendant's guilt, then you have a reasonable doubt and you should find the Defendant not guilty. However, proof beyond a reasonable doubt does not mean proof beyond

INSTRUCTION NO. 18

To commit a crime a person must intend to do an act which is against the law. While it is not necessary that a person knows the act is against the law, it is necessary that the person was aware he was doing the act and he did it voluntarily, not by mistake or accident. of his acts. You may, but are not required to, conclude a person intends the natural results

INSTRUCTION NO. 19 The law provides that a person commits Murder in the First Degree when that person, with the specific intent to kill another person, willfully, deliberately, with premeditation, and with malice aforethought, kills another person. The definitions of certain terms used in this and following instructions are as follows: 1. "Malice" is a state of mind which leads one to intentionally do a wrongful act to It may be

the injury of another out of actual hatred, or with an evil or unlawful purpose.

established by evidence of actual hatred, or by proof of a deliberate or fixed intent to do injury. It may be found from the acts and conduct ofthe Defendant and the means used Malice requires only such deliberation that

in doing the wrongful and injurious act.

would make a person appreciate and understand the nature ofthe act and its consequences, as distinguished from an act done in the heat of passion. 2. "Malice aforethought" is a fixed purpose or design to do some physical harm to It does not have to exist for any

another which exists before the act is committed. particular length of time.

It is sufficient if it exists any time before the killing.

Malice aforethought may be inferred from the Defendant's use of a dangerous weapon. 3. 4. reflect. 5. 6. "Premeditate" is to think or ponder upon a matter before acting. "Specific intent" means not only being aware of doing an act and doing it "Willful" means intentional or by fixed design or purpose and not accidental.
I

"To deliberate" is to weigh in one's mind, to consider, to contemplate, or to

voluntarily but, in addition, doing it with a specific purpose in mind. Because determining the Defendant's specific intent requires you to decide what he was thinking when the act was done, it is seldom capable of direct proof. Therefore, you

INSTRUCTION NO. 19 (Continued) should consider the facts and circumstances surrounding the act to determine the Defendant's specific intent. the natural results of his acts. 7. A "dangerous weapon" is any device or instrument designed primarily for use You may, but are not required to, conclude a person intends

inflicting death or injury, and when used in its designed manner is capable of inflicting death. It is also any sort of instrument or device actually used in such a way as to indicate

the user intended to inflict death or serious injury, and when so used is capable of inflicting death. Deliberation and premeditation need not exist for any particular length of time before the act. If a person has the opportunity to deliberate and uses a dangerous weapon against another resulting in death, you may, but are not required to, to infer that the weapon was used with malice, premeditation and specific intent to kill.

INSTRUCTION NO. 20 Count I The State must prove all of the following elements of Murder in the First Degree: On or about the 3 day of January, 2013, the Defendant stabbed and/or strangled Marilyn Schmitt.
2. 3. 4.
rd

Marilyn Schmitt died as a result of being stabbed and/or strangled.

i
The Defendant acted with malice aforethought. The Defendant acted willfully, deliberately, premeditatedly, and with specific

intent to kill Marilyn Schmitt. If the State lias proved all of the elements, the Defendant is guilty of Murder in the First Degree. If trie State has failed to prove any one of the elements, the Defendant is not

guilty of Murder in jthe First Degree, and you will then consider the charge of Murder in the Second Degree, exp ained in Instruction No.21.

INSTRUCTION NO. 21 Count I The State must prove all of the following elements of Murder in the Second Degree: 1. On or about the 3 day of January, 2013, the Defendant stabbed and/or strangled Marilyn Schmitt. 2. 3. Marilyn Schmitt died as a result of being stabbed and/or strangled. The Defendant acted with malice aforethought.
rd

If the State has proved all ofthe elements, the Defendant is guilty of Murder in the Second Degree. If the State has failed to prove any one of the elements, the Defendant is

not guilty of Murder in the Second Degree, and you will consider the charge of Voluntary Manslaughter, as explained in Instruction No. 25.

INSTRUCTION NO. 22 Murder in the Second Degree does not require a specific intent to kill another person. INSTRUCTION NO. 23 Concerning element No. 2 of Instruction Nos. 20 and 21, the wounds inflicted by the Defendant resulted in the death of Marilyn Schmitt if it caused or directly contributed to the death of Marilyn Schmitt.

INSTRUCTION NO. 24 Count I The State must prove all of the following elements of Voluntary Manslaughter: 1. On or about the 3 day of January, 2013, the defendant stabbed and/or strangled Marilyn Schmitt. 2. 3. Marilyn Schmitt died as a result of being stabbed and/or strangled. The stabbing and/or strangulation were done solely by the reason of sudden,
rd

violent and irresistible passion resulting from serious provocation. If the State^ has proved all of the elements, the defendant is guilty of Voluntary Manslaughter. Ifjthe State has failed to prove any one of the elements, the Defendant is

not guilty of Voluntary Manslaughter, and you will then consider the charge of Involuntary Manslaughter as charged in Instruction No. 26.

INSTRUCTION NO. 25 Concerning element number 3 of Instruction No. 24, a "serious provocation" is conduct that wou d cause a reasonable person to have a sudden, violent and irresistible passion. Passion is not sudden, violent, and irresistible if there is an interval of time during which a reasonable person would, under the circumstances, have time to reflect and bring his passion under control and suppress the impulse to kill. Words alone, however abusive or insulting, cannot be serious provocation.

INSTRUCTION NO. 26 Count I The State must prove all of the following elements of Involuntary Manslaughter: 1. On or about the 3 day of January, 2013, the Defendant recklessly stabbed and/or strangled Marilyn Schmitt. 2. 3. The Defendant did act in a manner likely to cause death or serious injury. By doing the act, the Defendant unintentionally caused the death of Marilyn
i
rd

Schmitt. If the State has proved all of the elements, the Defendant is guilty of Involuntary Manslaughter. If the State has failed to prove any one of the elements, the Defendant is not guilty of Count

INSTRUCTION NO. 27

A person is "reckless" or acts "recklessly" when he willfully disregards the safety of persons or property. unintentional injury. It is more than a lack of reasonable care which may cause Recklessness is conduct which is consciously done with willful

disregard of the consequences and a person knows or should know a risk of harm to another is created. Though recklessness is willful, it is not intentional in the sense that

harm is intended to result.

INSTRUCTION NO. 28 COUNT I I The State must prove all of the following elements of Kidnapping in the Third Degree: 1. On or about the 3rd day of January, 2013, the defendant confined and/or removed Jessica Vega from one place to another. 2. The Defendant did so with the specific intent to: a) b) 3. subject Jessica Vega to sexual abuse; or secretly confine Jessica Vega

The Defendant knew he did not have the consent or authority of Jessica Vega to do so.

If the State has proved all of the elements, the defendant is guilty.

If the State has

failed to prove any one ofthe elements, the Defendant is not guilty of Kidnapping in the Third Degree, and you will consider the charge of False Imprisonment, as explained in Instruction No. 32.

INSTRUCTION NO. 29 Concerning element number 1 of Instruction No. 28, confinement or removal requires more than what is included in the commission ofthe crime of sexual abuse. A person is "confined" when her freedom to move about is substantially restricted by force, threat or deception. The person may be confined either in the place where the

restriction began or in a place to which she has been removed. No minimum time of confinement or distance of removal is required. more than slight. sexual abuse. In determining whether confinement or removal exists, you may consider whether: 1. 2. 3. The risk of harm to Jessica Vega was increased, The risk of detection was reduced. Escape was made easier. It must be

The confinement or removal must have significance apart from the

INSTRUCTION NO. 30 Concerning element number 2(a) of Instruction No. 28, sexual abuse is defined as performing a sex act on another person by force or against the other person's will.
!

A "sex act" means any sexual contact: 1. 2. 3. 4. person. 5. By a person's use of an artificial sex organ or a substitute for a sexual organ in By penetration of the penis into the vagina or anus. Between the mouth of one person and the genitals or anus of another. Between the genitals of one person and the genitals or anus of another. Between the finger or hand of one person and the genitals or anus of another

contact with genitals or anus of another. You may consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature. INSTRUCTION NO. 31 Concerning element number 2(b) of Instruction No. 28, an intent to secretly confine means more than restricting the movement of Jessica Vega. conceal or hide Jessica Vega or prevent her discovery. It means an intent to

INSTRUCTION NO. 32 Count II The State must prove all of the following elements of False Imprisonment: 1. On or about the 3 day of January, 2013, the defendant intentionally confined Jessica Vega. 2. 3. Jessica Vega was confined against her will. The Defendant did not have a reasonable belief that he had a right or authority to confine Jessica Vega. If the State has proved all of the elements, the Defendant is guilty of False Imprisonment,
: rd

the State has failed to prove any one of the elements, the Defendant is

not guilty of Count II.

INSTRUCTION NO. 33 When you begin your deliberations, you should select a foreperson. He or she

shall see that your ^deliberations are carried on in an orderly manner, that the issues are fully and freely discussed, and that every juror is given an opportunity to express his or her views. In order to return a verdict, each juror must agree to it. unanimous. It is your duty as jurors to consult with one another and reach an agreement, if you can do so without compromising your individual judgment. Each of you must decide the Your verdict must be

case for yourself, but do so only after an impartial consideration of the evidence with the other jurors. During your deliberations, do not hesitate to re-examine your view and change your opinion if convinced it is wrong. But do not change your opinion as to the weight or effect

of the evidence just because it is the opinion of the other jurors, or for the mere purpose of returning a verdict. Rememberjyou are not partisans or advocates. facts. Your sole duty is to find the truth and do justice. You are judges-judges of the

INSTRUCTION NO. 34 Occasionally, after a jury retires to the jury room, the members have questions. I

have prepared the instructions after carefully considering the case with the parties and the attorneys. I have tried to use language which is generally understandable. Usually, If, however,

questions about instructions can be answered by carefully re-reading them. you feel it necessary to ask a question, you may do so in writing.

I cannot communicate

with you without first discussing your question and potential answer with the parties and attorneys. This naturally takes time and deliberation before I can reply.

The Court Attendant who has been working with us in this case is in the same position as I am. She has taken an oath not to communicate with you except to ask if you Please do not put her on the spot by asking any questions.

have agreed upon a verdict.

If you need to notify anyone about the time you will be deliberating, for example, a spouse, babysitter, or employer, please notify the Court Attendant in writing, or before you begin your deliberations, and we will make a phone available to you for that purpose. Finally, if you have any personal communication device such as a cellular or digital telephone or paging device, you should leave those with the Court Attendant and not take them into the jury room while deliberating.

INSTRUCTION NO. 35 I am submitting for your convenience with these instructions five verdict forms in Count I and three forms of verdict in Count II. count. Count I: If you find the Defendant guilty of Murder in the First Degree, use Form of Verdict No. 1; or If you find the Defendant guilty of Murder in the Second Degree, use Form of Verdict No. 2; or If you find the Defendant guilty of Voluntary Manslaughter, use Form of Verdict No. 3; or If you find the Defendant guilty of Involuntary Manslaughter, use Form of Verdict No. 4; or If you do not find the Defendant guilty of Murder in the First Degree, Murder in the Second Degree, Voluntary Manslaughter, or Involuntary Manslaughter, you will use Form of Verdict No. 5. Count II: If you find the Defendant guilty of Kidnapping in the Third Degree, use Form of Verdict No. 6; or If you find the Defendant False Imprisonment, use Form of Verdict No. 7; or If you do not find the Defendant guilty of Kidnapping in the Third Degree or False Imprisonment, you will use Form of Verdict No. 8. After you have reached your verdicts and prepared them as above-directed, you will inform the Court Attendant and return and render your verdicts in open court. You will use but one form of verdict in each

Dated this b ^day of June, 2013.

y\
THE HON/0 RABLE TIMOT/ffV J. FINN District Court Judge, Secivma Judicial District

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY

STATE OF IOWA Plaintiff, vs. KIRK RILEY LEVIN, Defendant. CRIMINAL NO. FECR012239
i

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FORMS OF VERDICT - COUNT I

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3

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FORM OF VERDICT NO. 1 We, the Jury, find the Defendant guilty of Murder in the First Degree.

Foreperson

FORM OF VERDICT NO. 2 We, the Jury, find the Defendant guilty of Murder in the Second Degree.

Foreperson

FORM OF VERDICT NO. 3 We, the Jury, find the Defendant guilty of Voluntary Manslaughter.

Foreperson

FORM OF VERDICT NO. 4 We, the Jury, find the Defendant guilty of Involuntary Manslaughter.

Foreperson

FORM OF VERDICT NO. 5 We, the Jury, find the Defendant not guilty of Count I.

Foreperson

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY

STATE OF IOWA
i

Plaintiff,
vs.

CRIMINAL NO. FECR012239

FORMS OF VERDICT-COUNT II KIRK RILEY LEVIN,

cn

Defendant.

FORM OF VERDICT NO. 6 We, the Jury, find the Defendant guilty of Kidnapping in the Third Degree.

Foreperson

FORM OF VERDICT NO. 7 We, the Jury, find the Defendant guilty of False Imprisonment.

Foreperson FORM OF VERDICT NO. 8 We, the Jury, find the Defendant not guilty of Count II.

Foreperson

E-FILED 2013 JUN 12 3:18 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, !s. "IR" RI#E$ #E%IN, ) ) ) ) Crim. Case No. FECR01223

ORDER

&efen'ant. ) (((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((( A )*r+ trial ,as -el' in t-is matter on .*ne 3, /, 0, an' 1, 2013 in Fort &o'2e, Io,a. After 'eli3eration, t-e )*r+ fo*n' t-e &efen'ant 2*ilt+ of 4*r'er in t-e First &e2ree on Co*nt I an' "i'na55in2 in t-e T-ir' &e2ree on Co*nt II. IT IS T6E OR&ER OF T6E CO7RT as follo,s8 1. &*e to t-e Co*rt9s s:-e'*le, senten:in2 in t-is matter s-all ta;e 5la:e in t-e Sac County Courthouse in Sac City, Iowa, on Friday, u!y "#, "$%&, at %$'$$ a()( 2. P*rs*ant to Se:tion <11.1=1) of t-e Io,a Co'e, t-e &efen'ant s-all remain in :*sto'+ an' is not eli2i3le for 3ail. 3. T-e &e5artment of Corre:tional Ser!i:es s-all 5re5are an' file a 5resenten:e in!esti2ation re5ort at least >2 -o*rs 3efore t-e senten:in2 -earin2, 5*rs*ant to Io,a Co'e C-a5ter 01. T-e Cler; of Co*rt s-all f*rnis- to t-e &e5artment of Corre:tional Ser!i:es a :o5+ of t-e Trial Information an' 4in*tes of Testimon+. /. T-e Co*rt a'!ises t-e &efen'ant of -is ri2-t to file a motion in arrest of )*'2ment, 5*rs*ant to Io,a R*le of Criminal Pro:e'*re 2.2/=3), to 5reser!e -is ri2-t of a55eal to t-e Io,a S*5reme Co*rt 3ase' on an+ 'efe:t in t-e :riminal trial referen:e' a3o!e.

Cler; to 5ro!i'e :o5ies to8 Co*nt+ Attorne+ ? @en SmitAttorne+ Aeneral ? &o*2 6ammeran' &efense Attorne+ ? C-arles "en!ille Sa: Co*nt+ S-eriff &e5t. of Corr. Ser!. Co*rt A'ministrator

E-FILED 2013 JUN 12 3:18 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-06-12 15:18:54

page 2 of 2

E-FILED 2013 JUN 12 3:18 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, !s. "IR" RI#E$ #E%IN, ) ) ) ) Crim. Case No. FECR01223

ORDER

&efen'ant. ) (((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((( A )*r+ trial ,as -el' in t-is matter on .*ne 3, /, 0, an' 1, 2013 in Fort &o'2e, Io,a. After 'eli3eration, t-e )*r+ fo*n' t-e &efen'ant 2*ilt+ of 4*r'er in t-e First &e2ree on Co*nt I an' "i'na55in2 in t-e T-ir' &e2ree on Co*nt II. IT IS T6E OR&ER OF T6E CO7RT as follo,s8 1. &*e to t-e Co*rt9s s:-e'*le, senten:in2 in t-is matter s-all ta;e 5la:e in t-e Sac County Courthouse in Sac City, Iowa, on Friday, u!y "#, "$%&, at %$'$$ a()( 2. P*rs*ant to Se:tion <11.1=1) of t-e Io,a Co'e, t-e &efen'ant s-all remain in :*sto'+ an' is not eli2i3le for 3ail. 3. T-e &e5artment of Corre:tional Ser!i:es s-all 5re5are an' file a 5resenten:e in!esti2ation re5ort at least >2 -o*rs 3efore t-e senten:in2 -earin2, 5*rs*ant to Io,a Co'e C-a5ter 01. T-e Cler; of Co*rt s-all f*rnis- to t-e &e5artment of Corre:tional Ser!i:es a :o5+ of t-e Trial Information an' 4in*tes of Testimon+. /. T-e Co*rt a'!ises t-e &efen'ant of -is ri2-t to file a motion in arrest of )*'2ment, 5*rs*ant to Io,a R*le of Criminal Pro:e'*re 2.2/=3), to 5reser!e -is ri2-t of a55eal to t-e Io,a S*5reme Co*rt 3ase' on an+ 'efe:t in t-e :riminal trial referen:e' a3o!e.

Cler; to 5ro!i'e :o5ies to8 Co*nt+ Attorne+ ? @en SmitAttorne+ Aeneral ? &o*2 6ammeran' &efense Attorne+ ? C-arles "en!ille Sa: Co*nt+ S-eriff &e5t. of Corr. Ser!. Co*rt A'ministrator

E-FILED 2013 JUN 12 3:18 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-06-12 15:18:54

page 2 of 2

E-FILED 2013 JUL 16 7:02 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA, Plaintiff, VS. KIRK RILEY LEVIN, DEFENANT.

CASE NO. FECR 012239

MOTION IN ARREST OF JUDGMENT AND MOTION FOR NEW TRIAL

COMES NOW the Defendant, through undersigned counsel, and pursuant to the Iowa Rules of Criminal Procedure, hereby moves for a New Trial and/or to Arrest Judgment in this case. In support of said motion it is stated: 1. There was insufficient evidence presented to jury on the element of premeditation and deliberation. 2. The jurys verdict went against the weight of the evidence on the elements of premeditation and deliberation. 3. The Court allowed inadmissible evidence by refusing to suppress the Defendants illegally obtained statement. The Court should have granted the Motion to Suppress and prohibited the Defendants statement from being admitted into evidence. 4. The Court should have granted the Defendants second change of venue request. It was clear during jury selection that the jury was oversaturated with media coverage of the tragedy of a kidnapping and murder of a young girl in rural Webster County. The jury was obviously swayed by the emotions of that case and did not render a just verdict. WHEREFORE, it is prayed that this matter be set for hearing and for the reasons stated above that the Court set aside the jurys verdict in this case and dismiss this case or set aside the jurys verdict and set it for a New Trial. ___________/S/_____________ Charles J. Kenville Attorney for the Defendant ckenville@spd.state.ia.us Public Defenders Office 706 Central Avenue, Fort Dodge, IA 50501

E-FILED 2013 JUL 16 7:02 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA, Plaintiff, VS. KIRK RILEY LEVIN, DEFENANT.

CASE NO. FECR 012239

MOTION IN ARREST OF JUDGMENT AND MOTION FOR NEW TRIAL

COMES NOW the Defendant, through undersigned counsel, and pursuant to the Iowa Rules of Criminal Procedure, hereby moves for a New Trial and/or to Arrest Judgment in this case. In support of said motion it is stated: 1. There was insufficient evidence presented to jury on the element of premeditation and deliberation. 2. The jurys verdict went against the weight of the evidence on the elements of premeditation and deliberation. 3. The Court allowed inadmissible evidence by refusing to suppress the Defendants illegally obtained statement. The Court should have granted the Motion to Suppress and prohibited the Defendants statement from being admitted into evidence. 4. The Court should have granted the Defendants second change of venue request. It was clear during jury selection that the jury was oversaturated with media coverage of the tragedy of a kidnapping and murder of a young girl in rural Webster County. The jury was obviously swayed by the emotions of that case and did not render a just verdict. WHEREFORE, it is prayed that this matter be set for hearing and for the reasons stated above that the Court set aside the jurys verdict in this case and dismiss this case or set aside the jurys verdict and set it for a New Trial. ___________/S/_____________ Charles J. Kenville Attorney for the Defendant ckenville@spd.state.ia.us Public Defenders Office 706 Central Avenue, Fort Dodge, IA 50501

E-FILED 2013 JUL 22 12:18 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY STATE OF IOWA, Plaintiff, v. KIRK RILEY LEVIN, Defendant. Case No. FECR012239
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STATES RESISTANCE TO DEFENDANTS MOTION FOR ARREST OF JUDGMENT AND MOTION FOR NEW TRIAL

COMES NOW the State of Iowa through Sac County Attorney Ben Smith and resists Defendants combined Motion for Arrest of Judgment and Motion for a New Trial in its entirety (Motion). WHEREFORE, The State respectfully requests that following a hearing on the merits of Defendants Motion, the Court deny the Motion in its entirety and proceed to sentencing.
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/s/ Benjamin John Smith Benjamin John Smith - AT0008834 Sac County Attorney Sac County Courthouse 100 NW State St., Suite 9 Sac City IA 50583 Telephone: 712-662-4791 Facsimile: 712-662-4123 Email: attorney@saccounty.org

E-FILED 2013 JUL 22 12:18 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY STATE OF IOWA, Plaintiff, v. KIRK RILEY LEVIN, Defendant. Case No. FECR012239
!

! !

STATES RESISTANCE TO DEFENDANTS MOTION FOR ARREST OF JUDGMENT AND MOTION FOR NEW TRIAL

COMES NOW the State of Iowa through Sac County Attorney Ben Smith and resists Defendants combined Motion for Arrest of Judgment and Motion for a New Trial in its entirety (Motion). WHEREFORE, The State respectfully requests that following a hearing on the merits of Defendants Motion, the Court deny the Motion in its entirety and proceed to sentencing.
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/s/ Benjamin John Smith Benjamin John Smith - AT0008834 Sac County Attorney Sac County Courthouse 100 NW State St., Suite 9 Sac City IA 50583 Telephone: 712-662-4791 Facsimile: 712-662-4123 Email: attorney@saccounty.org

E-FILED 2013 JUL 24 12:18 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUL 26 10:58 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, !s. "IR" RI#E$ #E%IN, ) ) ) ENROLLED JUDGMENT ENTRY ) &efen'ant. ) (((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((( T)is is t)e time fi*e' for senten+in,. In a''ition, t)e &efen'ant )as file' a -otion in Arrest of ./',ment an' -otion for Ne0 Trial, 0)i+) are resiste' 12 t)e State. Present for t)e State 0ere 3en4amin Smit), Sa+ Co/nt2 Attorne2, an' &o/,las 5ammeran', Assistant Attorne2 6eneral. T)e &efen'ant 0as 7ersonall2 7resent an' re7resente' 12 )is attorne2 C)arles "en!ille. T)e Co/rt )ear' t)e ar,/ments of +o/nsel on t)e -otion in Arrest of ./',ment an' -otion for Ne0 Trial. After listenin, to t)e same, t)e Co/rt o!err/les 1ot) motions an' 7ro+ee's to senten+in,. T)e 7re8senten+e in!esti,ation is re+ei!e' 12 t)e Co/rt. T)e Co/rt is informe' t)at +o/nsel for t)e State, +o/nsel for t)e &efen'ant, an' t)e &efen'ant )a!e )a' an o77ort/nit2 to e*amine t)e re7ort9 an' it is a,ree' '/rin, t)e +o/rse of t)e )earin, t)at t)is re7ort +an 1e +onsi'ere' 12 t)e Co/rt for senten+in, 7/r7oses. %i+tim im7a+t statements are 7resente'. T)e Co/rt )ears t)e statements an' re+ommen'ations 12 +o/nsel for t)e State an' +o/nsel for t)e &efen'ant. T)e &efen'ant is ,i!en an o77ort/nit2 to ma:e a statement on )is o0n 1e)alf. T)e Co/rt f/ll2 +om7lies 0it) R/le 22 of t)e Io0a R/les of Criminal Pro+e'/re. T)e &efen'ant states t)at )e )as no +a/se or reason 0)2 4/',ment s)o/l' not no0 1e 7rono/n+e' a,ainst )im. Crim. Case No. FECR01223

E-FILED 2013 JUL 26 10:58 AM SAC - CLERK OF DISTRICT COURT

IT IS T5EREFORE T5E .;&6-ENT AN& SENTENCE OF T5E CO;RT, on Co/nt I, on t)e +)ar,e of -/r'er in t)e First &e,ree, in !iolation of Io0a Co'e Se+tions <0<.1 an' <0<.2=1), as follo0s> =1) T)at t)e &efen'ant s)o/l' 1e an' is )ere12 Or'ere' +ommitte' to t)e +/sto'2 of t)e &ire+tor of t)e &i!ision of A'/lt Corre+tions of t)e State of Io0a for t)e rest of )is life. T)e &ire+tor s)all 'etermine t)e a77ro7riate 7la+e of +onfinement for t)e &efen'ant, an' to t)at en', t)e -e'i+al an' Classifi+ation Center at Oa:'ale )as 1een 'esi,nate' as t)e re+e7tion +enter to 0)i+) t)e &efen'ant s)all 1e 'eli!ere' 12 t)e Sa+ Co/nt2 S)eriff. T)e &efen'ant s)all 1e ,i!en +re'it for all time ser!e' in +/sto'2 imme'iatel2 follo0in, )er arrest, an' to t)at en', t)e Sa+ Co/nt2 S)eriff s)all +ertif2 t)at amo/nt of time to t)e &ire+tor as 0ell as t)e Sa+ Co/nt2 Cler: of Co/rt. -ittim/s s)all iss/e imme'iatel2. =2) T)at t)e &efen'ant s)o/l' 1e an' is )ere12 re?/ire' to ma:e restit/tion of @1A0,000 as re?/ire' 12 Io0a Co'e Se+tion 10.33 to t)e )eirs of -aril2n S+)mitt, an' t)at )e reim1/rse t)e Crime %i+tim Assistan+e &i!ision @B,C<A.D2 an' t)at t)e State is allo0e' an a''itional 30 'a2s 0it)in 0)i+) to file an2 s/77lemental 7e+/niar2 'ama,e statements, t)at t)e &efen'ant 7a2 +osts of t)is a+tion, an' t)at )e reim1/rse t)e state for t)e reasona1le fees of )is +o/rt8a77ointe' attorne2. T)e &efen'antEs attorne2 is ,i!en 30 'a2s 0it)in 0)i+) to file a statement for t)e le,al ser!i+es )e )as 7ro!i'e' to t)e &efen'ant. =3) All fines, s/r+)ar,es, +osts, an' fees are '/e imme'iatel2 an' s)all 1e +onsi'ere' 'elin?/ent if not 7ai' 0it)in 30 'a2s of to'a2Es 'ate. IT IS T5E F;RT5ER .;&6-ENT AN& SENTENCE OF T5E CO;RT, Co/nt II, on t)e +)ar,e of "i'na77in, in t)e T)ir' &e,ree, in !iolation of Io0a Co'e Se+tions <10.1 an' <10.D, as follo0s>

E-FILED 2013 JUL 26 10:58 AM SAC - CLERK OF DISTRICT COURT

=D) T)at t)e &efen'ant s)o/l' 1e an' is )ere12 Or'ere' +ommitte' to t)e +/sto'2 of t)e &ire+tor of t)e &i!ision of A'/lt Corre+tions of t)e State of Io0a for a term not to e*+ee' ten =10) 2ears. T)e &ire+tor s)all 'etermine t)e a77ro7riate 7la+e of +onfinement for t)e &efen'ant, an' to t)at en', t)e -e'i+al an' Classifi+ation Center at Oa:'ale )as 1een 'esi,nate' as t)e re+e7tion +enter to 0)i+) t)e &efen'ant s)all 1e 'eli!ere' 12 t)e Sa+ Co/nt2 S)eriff. T)e &efen'ant s)all 1e ,i!en +re'it for all time ser!e' in +/sto'2 imme'iatel2 follo0in, )is arrest, an' to t)at en', t)e Sa+ Co/nt2 S)eriff s)all +ertif2 t)at amo/nt of time to t)e &ire+tor as 0ell as t)e Sa+ Co/nt2 Cler: of Co/rt. -ittim/s s)all iss/e imme'iatel2. =A) No fine is im7ose' on Co/nt II. =C) T)e &efen'ant s)all s/1mit to a &NA sam7le for &NA 7rofilin, 7/rs/ant to Se+tion B1.D. =<) The sentence imposed in Co nt II sh!"" # n consec ti$e"% &ith the sentence imposed in Co nt I' T)e reasons for t)e 0it)in senten+es are +ontaine' in t)e !er1atim re+or' of 7ro+ee'in,s ta:en 12 t)e offi+ial s)ort)an' re7orter an' are in+or7orate' 12 referen+e )erein. T)e &efen'ant is informe' of )is ri,)t to a77eal. As Co/nt I is not a 1on'a1le offense, no a77eal 1on' is fi*e' in t)is +ase.

Cler: to 7ro!i'e +o7ies to> 3en4amin Smit) F Sa+ Co/nt2 Attorne2 Assistant Attorne2 6eneral F &o/,las 5ammeran' &efense Attorne2 F C)arles "en!ille &e7t. of Corr. Ser!. &ir., &i!. of A'/lt Corr. Sa+ Co/nt2 S)eriff Oa:'ale

E-FILED 2013 JUL 26 10:58 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-07-26 10:58:49

page 4 of 4

E-FILED 2013 JUL 26 10:59 AM SAC - CLERK OF DISTRICT COURT

2RCR04 IN THE IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA, Plaintiff, vs. KIRK R LEVIN , Defendant.

Case No. 02811 FECR012239

COURT REPORTER MEMORANDUM AND CERTIFICATE

COURT REPORTER MEMORANDUM (The court reporter shall file this memorandum with the district court clerk.) Appearances: For the State: Ben Smith and Douglas Hammerand For the Defendant: Charles Kenville Other: Information required by Iowa Rule of Civil Procedure 1.903(3): I, Pamela J. Hayes, am providing the following information as required by Iowa Rule of Civil Procedure 1.903(3): 1. The type of proceeding that was reported: Post Trial Motions and Sentencing 2. The date(s) on which the proceeding occurred: July 26, 2013 3. The name of the court reporter who reported the proceeding: Pamela J. Hayes 4. The name of the judge who presided over the proceeding: Timothy J. Finn 5. The reporting fee for the proceeding: $40.00 6. We, the undersigned judge before whom the above-entitled case was tried, and the official court reporter who, by order of the Court, reported the same, do hereby certify that the above and foregoing is the report of the whole proceedings upon the trial and/or hearing of the above-entitled cause made and taken pursuant to the order and direction of the Court, in accordance with Iowa Code Section 624.10. /s/ Pamela J. Hayes ___________________________________ District Court Reporter
1 of 2

E-FILED 2013 JUL 26 10:59 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number FECR012239 Type: Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) COURT REPORTER MEMORANDUM AND CERTIFICATE So Ordered

Electronically signed on 2013-07-26 10:58:56

2 of 2

E-FILED 2013 JUL 29 10:30 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 JUL 29 10:55 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, !s. "IR" RI#E$ #E%IN, ) ) ) ORDER ) Crim. Case No. FECR01223

&efen'ant. ) (((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((( T)e &efen'ant *as senten+e' on ,-l. 2/, 2013, follo*in0 a )earin0. T)e Enrolle' ,-'0ment Entr. entere' t)at 'a. +ontaine' a mista1e in t)at it *as in+onsistent *it) t)e senten+e im2ose' in o2en +o-rt. For t)at reason, t)e Enrolle' ,-'0ment Entr. entere' t)ro-0) E&3S on ,-l. 2/, 2013, is %ACATE& an' t)e Enrolle' ,-'0ment Entr. 4ein0 file' to'a. s)all 4e s-4stit-te' for t)e Or'er file' ,-l. 2/, 2013. IT IS SO OR&ERE&.

Cler1 to 2ro!i'e +o2ies to5 6en7amin Smit) 8 Sa+ Co-nt. Attorne. Assistant Attorne. 9eneral 8 &o-0las :ammeran' &efense Attorne. 8 C)arles "en!ille &e2t. of Corr. Ser!. &ir., &i!. of A'-lt Corr. Sa+ Co-nt. S)eriff Oa1'ale

E-FILED 2013 JUL 29 10:55 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-07-29 10:55:05

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E-FILED 2013 JUL 29 10:56 AM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, Plaintiff, !s. "IR" RI#E$ #E%IN, ) ) ) ENROLLED JUDGMENT ENTRY ) &efen'ant. ) (((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((( T)is is t)e time fi*e' for senten+in,. In a''ition, t)e &efen'ant )as file' a -otion in Arrest of ./',ment an' -otion for Ne0 Trial, 0)i+) are resiste' 12 t)e State. Present for t)e State 0ere 3en4amin Smit), Sa+ Co/nt2 Attorne2, an' &o/,las 5ammeran', Assistant Attorne2 6eneral. T)e &efen'ant 0as 7ersonall2 7resent an' re7resente' 12 )is attorne2 C)arles "en!ille. T)e Co/rt )ear' t)e ar,/ments of +o/nsel on t)e -otion in Arrest of ./',ment an' -otion for Ne0 Trial. After listenin, to t)e same, t)e Co/rt o!err/les 1ot) motions an' 7ro+ee's to senten+in,. T)e 7re8senten+e in!esti,ation is re+ei!e' 12 t)e Co/rt. T)e Co/rt is informe' t)at +o/nsel for t)e State, +o/nsel for t)e &efen'ant, an' t)e &efen'ant )a!e )a' an o77ort/nit2 to e*amine t)e re7ort9 an' it is a,ree' '/rin, t)e +o/rse of t)e )earin, t)at t)is re7ort +an 1e +onsi'ere' 12 t)e Co/rt for senten+in, 7/r7oses. %i+tim im7a+t statements are 7resente'. T)e Co/rt )ears t)e statements an' re+ommen'ations 12 +o/nsel for t)e State an' +o/nsel for t)e &efen'ant. T)e &efen'ant is ,i!en an o77ort/nit2 to ma:e a statement on )is o0n 1e)alf. T)e Co/rt f/ll2 +om7lies 0it) R/le 22 of t)e Io0a R/les of Criminal Pro+e'/re. T)e &efen'ant states t)at )e )as no +a/se or reason 0)2 4/',ment s)o/l' not no0 1e 7rono/n+e' a,ainst )im. IT IS T5EREFORE T5E .;&6-ENT AN& SENTENCE OF T5E CO;RT, on Co/nt I, on t)e +)ar,e of -/r'er in t)e First &e,ree, in !iolation of Io0a Co'e Se+tions <0<.1 an' <0<.2=1), as follo0s> Crim. Case No. FECR01223

E-FILED 2013 JUL 29 10:56 AM SAC - CLERK OF DISTRICT COURT

=1) T)at t)e &efen'ant s)o/l' 1e an' is )ere12 Or'ere' +ommitte' to t)e +/sto'2 of t)e &ire+tor of t)e &i!ision of A'/lt Corre+tions of t)e State of Io0a for t)e rest of )is life. T)e &ire+tor s)all 'etermine t)e a77ro7riate 7la+e of +onfinement for t)e &efen'ant, an' to t)at en', t)e -e'i+al an' Classifi+ation Center at Oa:'ale )as 1een 'esi,nate' as t)e re+e7tion +enter to 0)i+) t)e &efen'ant s)all 1e 'eli!ere' 12 t)e Sa+ Co/nt2 S)eriff. T)e &efen'ant s)all 1e ,i!en +re'it for all time ser!e' in +/sto'2 imme'iatel2 follo0in, )er arrest, an' to t)at en', t)e Sa+ Co/nt2 S)eriff s)all +ertif2 t)at amo/nt of time to t)e &ire+tor as 0ell as t)e Sa+ Co/nt2 Cler: of Co/rt. -ittim/s s)all iss/e imme'iatel2. =2) T)at t)e &efen'ant s)o/l' 1e an' is )ere12 re?/ire' to ma:e restit/tion of @1A0,000 as re?/ire' 12 Io0a Co'e Se+tion 10.33 to t)e estate of -aril2n S+)mitt, an' t)at )e reim1/rse t)e Crime %i+tim Assistan+e &i!ision @B,C<A.D2 an' t)at t)e State is allo0e' an a''itional 30 'a2s 0it)in 0)i+) to file an2 s/77lemental 7e+/niar2 'ama,e statements, t)at t)e &efen'ant 7a2 +osts of t)is a+tion, an' t)at )e reim1/rse t)e state for t)e reasona1le fees of )is +o/rt8a77ointe' attorne2. T)e &efen'antEs attorne2 is ,i!en 30 'a2s 0it)in 0)i+) to file a statement for t)e le,al ser!i+es )e )as 7ro!i'e' to t)e &efen'ant. =3) All fines, s/r+)ar,es, +osts, an' fees are '/e imme'iatel2 an' s)all 1e +onsi'ere' 'elin?/ent if not 7ai' 0it)in 30 'a2s of to'a2Es 'ate. IT IS T5E F;RT5ER .;&6-ENT AN& SENTENCE OF T5E CO;RT, Co/nt II, on t)e +)ar,e of "i'na77in, in t)e T)ir' &e,ree, in !iolation of Io0a Co'e Se+tions <10.1 an' <10.D, as follo0s> =D) T)at t)e &efen'ant s)o/l' 1e an' is )ere12 Or'ere' +ommitte' to t)e +/sto'2 of t)e &ire+tor of t)e &i!ision of A'/lt Corre+tions of t)e State of Io0a for a term not to e*+ee' ten =10) 2ears. T)e &ire+tor s)all 'etermine t)e a77ro7riate 7la+e of +onfinement for t)e &efen'ant,

E-FILED 2013 JUL 29 10:56 AM SAC - CLERK OF DISTRICT COURT

an' to t)at en', t)e -e'i+al an' Classifi+ation Center at Oa:'ale )as 1een 'esi,nate' as t)e re+e7tion +enter to 0)i+) t)e &efen'ant s)all 1e 'eli!ere' 12 t)e Sa+ Co/nt2 S)eriff. T)e &efen'ant s)all 1e ,i!en +re'it for all time ser!e' in +/sto'2 imme'iatel2 follo0in, )is arrest, an' to t)at en', t)e Sa+ Co/nt2 S)eriff s)all +ertif2 t)at amo/nt of time to t)e &ire+tor as 0ell as t)e Sa+ Co/nt2 Cler: of Co/rt. -ittim/s s)all iss/e imme'iatel2. =A) No fine is im7ose' on Co/nt II. =C) T)e &efen'ant s)all s/1mit to a &NA sam7le for &NA 7rofilin, 7/rs/ant to Se+tion B1.D. =<) T)e &efen'ant is or'ere' to re,ister on t)e Se* Offen'er Re,istr2 7/rs/ant to C)a7ter C 2A. =B) The sentence imposed in Co nt II sh!"" # n conc ##ent"$ %ith the sentence imposed in Co nt I& T)e reasons for t)e 0it)in senten+es are +ontaine' in t)e !er1atim re+or' of 7ro+ee'in,s ta:en 12 t)e offi+ial s)ort)an' re7orter an' are in+or7orate' 12 referen+e )erein. T)e &efen'ant is informe' of )is ri,)t to a77eal. As Co/nt I is not a 1on'a1le offense, no a77eal 1on' is fi*e' in t)is +ase.

Cler: to 7ro!i'e +o7ies to> 3en4amin Smit) F Sa+ Co/nt2 Attorne2 Assistant Attorne2 6eneral F &o/,las 5ammeran' &efense Attorne2 F C)arles "en!ille &e7t. of Corr. Ser!. &ir., &i!. of A'/lt Corr. Sa+ Co/nt2 S)eriff Oa:'ale

E-FILED 2013 JUL 29 10:56 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-07-29 10:56:02

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E-FILED 2013 JUL 29 2:28 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY State of Iowa, Plaintiff-Appellee, V. Kirk Riley Levin, Defendant-Appellant. ) ) ) ) ) NOTICE OF APPEAL Case No. FECR012239

To:

Thomas J. Miller, Attorney General of the State of Iowa; County Attorney; and Clerk of District Court

You and each of you are hereby notified that the above-named Defendant, does hereby appeal to the Supreme Court of Iowa from the final judgment entered herein on and all adverse rulings inhering therein.

/s/ Charles Kenville AT0004187 Office of the Public Defender 706 Central Avenue, Fort Dodge, IA 50501 Telephone: (515) 573-1140 Fax: (515)576-8365 E-mail: fortdodgepd@spd.state.ia.us ATTORNEY FOR THE DEFENDANT County Attorney Appellate Defender Office (Fax) Lucas Building, 4th Floor 321 East 12th Street Des Moines, IA 50319 Pamela Hayes (mail) 1315 S B Ave Nevada, IA 50201

Original Filed cc: Criminal Appeals Division (mail) Attorney General of Iowa Hoover Building 1305 E. Walnut Des Moines, IA 50319 Supreme Court Clerk (mail) Iowa Judicial Branch Building 1111 East Court Avenue Des Moines, IA 50319

E-FILED 2013 JUL 29 2:28 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY State of Iowa, Plaintiff, V. Kirk Riley Levin, Defendant. ) ) ) ) ) APPLICATION FOR APPELLATE COUNSEL & TRANSCRIPT Case No. FECR012239

Defendant states: 1. 2. 3. 4. Judgment has been entered against the Defendant in the above-entitled matter. Defendant is filing a Notice of Appeal in this case. Defendant is indigent and cannot afford appellate counsel or the cost of any transcripts of proceedings in this case. The State Appellate Defender Office is designated for receive appointment on trial-court appeals.

WHEREFORE, Defendant prays this Court allow the undersigned to withdraw, appoint the State Appellate Defender's Office, Fourth Floor Lucas Building, Des Moines, IA 50319, telephone (515) 281-8841, as Defendant's appellate counsel and order that a transcript of all proceedings in this case, if requested, be prepared and provided to Defendant's appellate counsel.

/s/ Charles Kenville AT0004187 Office of the Public Defender 706 Central Avenue, Fort Dodge, IA 50501 Telephone: (515) 573-1140 Fax: (515)576-8365 E-mail: fortdodgepd@spd.state.ia.us ATTORNEY FOR THE DEFENDANT

E-FILED 2013 JUL 29 2:28 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY State of Iowa, Plaintiff-Appellee, V. Kirk Riley Levin, Defendant-Appellant. ) ) ) ) ) NOTICE OF APPEAL Case No. FECR012239

To:

Thomas J. Miller, Attorney General of the State of Iowa; County Attorney; and Clerk of District Court

You and each of you are hereby notified that the above-named Defendant, does hereby appeal to the Supreme Court of Iowa from the final judgment entered herein on and all adverse rulings inhering therein.

/s/ Charles Kenville AT0004187 Office of the Public Defender 706 Central Avenue, Fort Dodge, IA 50501 Telephone: (515) 573-1140 Fax: (515)576-8365 E-mail: fortdodgepd@spd.state.ia.us ATTORNEY FOR THE DEFENDANT County Attorney Appellate Defender Office (Fax) Lucas Building, 4th Floor 321 East 12th Street Des Moines, IA 50319 Pamela Hayes (mail) 1315 S B Ave Nevada, IA 50201

Original Filed cc: Criminal Appeals Division (mail) Attorney General of Iowa Hoover Building 1305 E. Walnut Des Moines, IA 50319 Supreme Court Clerk (mail) Iowa Judicial Branch Building 1111 East Court Avenue Des Moines, IA 50319

State of Iowa Courts Type: Case Number FECR012239 CERTIFIED NOTICE OF APPEAL Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-07-29 15:25:39

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E-FILED 2013 AUG 05 10:33 AM SAC - CLERK OF DISTRICT COURT

2RCR12

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA, PLAINTIFF, VS. KIRK R LEVIN , DEFENDANT. ORDER Case No. 02811 FECR012239

The Defendant has filed a notice of appeal in the above-captioned case and has requested the appointment of counsel and the furnishing of transcripts at public expense. IT IS, THEREFORE, THE ORDER OF THE COURT as follows: 1. The State Appellate Defender is appointed to represent the Defendant in the appellate proceedings in this case. 2. The transcripts of proceedings held in this case shall be provided at public expense. CLERK TO FURNISH COPIES TO: SAC COUNTY ATTORNEY CHARLES J KENVILLE STATE PUBLIC DEFENDER STATE APPELLATE DEFENDER'S OFFICE COURT REPORTERS

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E-FILED 2013 AUG 05 10:33 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number FECR012239 Type: Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) OTHER ORDER So Ordered

Electronically signed on 2013-08-05 10:32:33

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E-FILED 2013 AUG 07 9:29 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 07 9:29 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 07 9:29 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 07 9:29 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 07 9:29 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 07 9:29 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 07 9:29 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 AUG 07 2:21 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY STATE OF IOWA, Plaintiff, v. KIRK RILEY LEVIN, Defendant. COMES NOW the State of Iowa and, to preserve and protect the respect, dignity, and privacy of the victim and the victims family, respectfully requests that the Court direct the Clerk not to upload to EDMS the following exhibits entered into evidence during the criminal trial, which contain gruesome images of the deceased victim: Exhibit Nos. 53, 54, 55, 58, 69, 70, 71, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 116, and 117. WHEREFORE the State respectfully requests that the Court enter an order consistent with the States request herein and for any additional or alternative relief the Court deems just and equitable under the circumstances. MOTION Case No. FECR012239

/s/ Benjamin John Smith Benjamin John Smith - AT0008834 Sac County Attorney Sac County Courthouse 100 NW State St., Suite 9 Sac City IA 50583 Telephone: 712-662-4791 Facsimile: 712-662-4123 Email: attorney@saccounty.org

E-FILED 2013 AUG 23 9:55 AM SAC - CLERK OF DISTRICT COURT

2RCR01

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA, Case No. 02811 FECR012239 PLAINTIFF, vs. ORDER KIRK R LEVIN , DEFENDANT.

The State's Motion filed August 7, 2013, with respect to exhibits is SUSTAINED. The exhibits referred to in the motion shall not be posted through EDMS because of their personal and confidential nature but shall be maintained by the Clerk of Court.

IT IS SO ORDERED.

CLERK TO FURNISH COPIES TO: SAC COUNTY ATTORNEY CHARLES J KENVILLE STATE PUBLIC DEFENDER

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E-FILED 2013 AUG 23 9:55 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number FECR012239 Type: Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) OTHER ORDER So Ordered

Electronically signed on 2013-08-23 09:54:31

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E-FILED 2013 SEP 10 3:18 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 10 3:18 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 10 3:18 PM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 SEP 18 11:38 AM SAC - CLERK OF DISTRICT COURT

In the Iowa District Court in and for SAC County

STATE OF IOWA, "#aintiff,

Criminal No. FECR0122 !

ORDER $s% &ir' R% (e$in, Defendant THE COURT FINDS that an Amended Statement of Pecuniary Damages has een su mitted to the Court! u"on re#ie$ of the aforementioned su mission and the State%s &otion to Amend' The Court here y ORDERS, "ursuant to Io$a Code Cha"ter ()*' that+

,- .

The defendant is ordered to "ay restitution according to the amount stated on the Amended Statement of Pecuniary Damages/ The State1s motion to Amend Sentence to Inc2ude Restitution is granted/ Restitution is to e "aid to the Crime 3ictim Com"ensation Program in the amount of $9,320.68' un2ess the defendant notifies the Court of any o 4ection to this order $ithin ten days of today1s date/

, 0.

cc: County Attorney Crime Victim Assistance Program Defense Attorney

Claim No.131158

E-FILED 2013 SEP 18 11:38 AM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Type: Case Number FECR012239 OTHER ORDER Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) So Ordered

Electronically signed on 2013-09-18 11:38:52

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E-FILED 2013 OCT 12 2:23 PM SAC - CLERK OF DISTRICT COURT

Rule 6.1401 Form 8: Reporters Certificate of Filing a Transcript. IN THE SUPREME COURT OF IOWA
STATE OF IOWA, Plaintiff, vs. KIRK RILEY LEVIN, Defendant. ) ) ) ) ) ) ) ) ) Supreme Court No. __________ District Court No. FECR012239 (Sac County) Reporters Certificate of Filing A Transcript

__________________________________________________________________

I hereby certify that on the 7th day of August, 2013, State Appellate Defender Mark C. Smith ordered the following transcripts: Pretrial motions, jury trial, and sentencing before Judge Timothy J. Finn in Sac County, in the above-captioned matter by serving a copy of the Combined Certificate. I further certify that on the 14th day of October, 2013, I filed the following transcripts: Pretrial motions, jury trial, and sentencing in Sac County before Judge Timothy J. Finn, with the Clerk of the Supreme Court.

___/s/ Pamela J. Hayes________________ Pamela J. Hayes, CSR, RMR Court Reporter Story County Courthouse 1315 South B Avenue Nevada, IA 50201 Pamela.hayes@iowacourts.gov
CERTIFICATE OF SERVICE

The undersigned certifies a copy of this reporters certificate was served on the 14th day of October, 2013, upon the following persons and upon the Clerk of the Supreme Court:

__/s/ Pamela J. Hayes_________________ Pamela J. Hayes, CSR, RMR Mark C. Smith, State Appellate Defender Attorney Generals Office, Criminal Appeals Division Sac County Clerk of Court

E-FILED 2013 OCT 12 2:23 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY STATE OF IOWA, ) ) Crim. Case No. FECR012239 Plaintiff, ) vs. ) ) KIRK RILEY LEVIN, ) ) NOTICE OF TRANSCRIPT Defendant. ) REDACTION _____________________________________________________________________________________
AN ORIGINAL TRANSCRIPT HAS BEEN FILED IN THIS CASE ORDERED BY: Attorney Mark C. Smith BEFORE JUDGE: Timothy J. Finn DATE OF PROCEEDINGS: May 31, June 3, 4, 5, 6, and July 26, 2013 BECAUSE YOUR CASE IS, OR AT SOME POINT WILL BECOME, OPEN TO THE PUBLIC, YOU ARE REQUIRED TO REVIEW THIS DOCUMENT FOR PROTECTED INFORMATION. Refer to Division VI of Chapter 16 Rules Pertaining to the Use of Electronic Data Management System for a definition of personal information that is now considered protected by the court. DOWNLOAD THE DOCUMENT MARKED BELOW FROM THE IOWA JUDICIAL BRANCH ELECTRONIC FILING WEBSITE AT www.iowacourts.state.ia.us/eFile. Under Rule 16.601(2), it is your responsibility to review this transcript and ensure that the appropriate information is designated as protected material. ______ COPY OF TRANSCRIPT WITH REDACTIONS DESIGNATED ___X__ COURT REPORTER TRANSCRIPT YOU HAVE TWENTY-ONE (21) DAYS AFTER THE FILING OF THIS NOTICE TO REVIEW AND RESPOND. If you find protected information, either as defined in Rule 16.602 or as ordered by the court, has been included in the document, you must file a Stipulation Regarding Redaction of Transcript identifying the information that must be redacted from the transcript. If you find additional information that you wish to have designated as protected under Rule 16.604, you may file a Stipulation Regarding Redaction of Transcript identifying the additional information you wish to redact. Any disagreement about whether additional information should be designated as protected will be decided by the court. Your failure to respond within twenty-one (21) days of the filing of this notice will be deemed an agreement that the transcript has been properly redacted per Rule 16.601(2), and the transcript will become public unless otherwise designated by law or court order. Date: October 14, 2013 Pamela J. Hayes Court Reporter 1315 South B Avenue Nevada, IA 50201 515-382-7434 pamela.hayes@iowacourts.gov

E-FILED 2013 OCT 23 9:01 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 23 9:01 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2013 OCT 23 10:34 AM SAC - CLERK OF DISTRICT COURT

E-FILED 2014 FEB 07 3:29 PM SAC - CLERK OF DISTRICT COURT

2RCR01

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA, Case No. 02811 FECR012239 PLAINTIFF, vs. ORDER KIRK R LEVIN , DEFENDANT.

The State has filed a Motion to Enter Exhibits into the record which were considered in ruling on Defendant's Motion to Suppress.

Defendant was earlier convicted in this case of Murder in the First Degree. Prior to his trial, the Court considered a Motion to Suppress filed by the Defendant and entered a ruling on that motion. During the hearing on the Motion to Suppress, certain exhibits were introduced into the evidence and some were placed in the record through EDMS and others were not. Certain exhibits considered by the Court in its ruling on the motion were never filed with the Clerk of Court. Both the County Attorney and the Public Defender agree that these exhibits should be part of the record and filed with the Clerk of Court.

IT IS THEREFORE THE ORDER OF THE COURT that the copies of the original exhibits which are attached to the State's motion shall be placed by the Clerk of Court in the exhibits in this trial. Additionally, Exhibits 1 and 4 which are digitial video recordings
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E-FILED 2014 FEB 07 3:29 PM SAC - CLERK OF DISTRICT COURT

of Defendant's two interviews which are formatted on DVD's will be filed with the Sac County Clerk of Court's office as part of the record in this case.

CLERK TO FURNISH COPIES TO: SAC COUNTY ATTORNEY CHARLES J KENVILLE MELINDA JEAN NYE STATE PUBLIC DEFENDER ATTORNEY GENERAL'S OFFICE

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E-FILED 2014 FEB 07 3:29 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts Case Number FECR012239 Type: Case Title STATE VS KIRK RILEY LEVIN (SPECIAL ASSIGNMENT JUDGE FINN) OTHER ORDER So Ordered

Electronically signed on 2014-02-07 15:30:07

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