Opinion
No. 5-012 / 04-0080
Filed February 9, 2005
Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.
Defendant-appellant appeals his conviction, following a jury trial, of theft in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Patrick Jennings, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Defendant-appellant, David Eugene Lamphear, was convicted following a jury trial of theft in the second degree, in violation of Iowa Code sections 714.1(1) and (4), 714.2(2), and 714.3 (2003). The conviction was enhanced under section 902.8 because defendant was determined to be a habitual offender. Defendant appeals, contending the district court erred in denying his motion for a mistrial because of claimed juror misconduct, in that, prior to submission the jury foreman had discussions about the case with an alternate juror who did not serve and the foreman used the alternate's name and opinions to support his position. We affirm.
Defendant was charged after he pawned and attempted to pawn items stolen in two break-ins in Sioux City that occurred on the same evening and/or early the next morning.
As a result the State filed a trial information charging the defendant with theft in the second degree as a habitual offender in violation of sections 714.1(1) and (4), 712.2(2) and 714.3, and burglary in the third degree as a habitual offender, in violation of sections 713.1, 713.6A(1), and 902.8. The trial information was later amended to add the alternatives of joint criminal conduct and aiding and abetting.
Trial commenced on November 12, 2003, and the jury began deliberating at 1 p.m. on Friday, November 14, 2003. They had not reached a verdict by 5 p.m. and were dismissed to come back on Monday the 17th. The judge arrived at the courthouse at 8 a.m. on the 17th and the court attendant told the judge that as she got in the elevator at the courthouse that morning a juror asked if she could ask the attendant a question. The attendant related that if it dealt with the jury deliberation she could not hear it. The juror told the attendant it had to do with misconduct and the attendant told the juror to write it down and give it to her. The attendant related to the judge what happened and the attorneys representing the State and the defendant were advised and asked if they wanted anything done at that time. No requests were made so the judge did not do anything.
Then at 9:30 that same morning the judge got the following note from juror Charlotte Simon: "Your Honor, a serious misconduct has occurred. Two jurors have conferred before the trial and foreman has based this information to try to sway jury."
After receiving this note the judge received a second note which apparently was from Friday and appeared to be signed by Richard Jaeger, the jury foreperson. That note said: "What are our next steps? We have a hung jury. We can only agree to one of the two counts."
The judge met with the attorneys for the State and the defendant, and it was agreed there would be a recess and the court attendant would tell Ms. Simon the judge wanted to see her. They would question her in the defendant's presence and then determine what to do next.
Ms. Simon was called and related that as the jury was first collecting for deliberation the foreman, Mr. Jaeger, said he and the alternate juror, Mr. Allen, had talked about the case. Simon said Jaeger recognized he should not be talking about it, but then went on to relate that the alternate said he made up his mind as to guilt because there were two burglaries. Simon said Jaeger then said, "That did it for me." Simon said the statement was made while most or all of the jurors were gathered around the table but formal deliberations had not started. She said the same statement was made a second time after deliberations began. Simon said Jaeger made the same observations later without attributing them to the alternate. Simon also said Jaeger's statement did not affect the way she voted.
At this point the defendant made a motion for a mistrial. He argued that alternate juror, Allen, was a dynamic personality and related well with all members of the jury socially and that his opinion would carry weight with them. The motion was not granted at that time.
It was next agreed that the court would question Jaeger, the foreman. Jaeger denied making the statements that Simon attributed to him other than admitting that on Monday morning he said to the jurors that Allen made a clarification for him. Jaeger said it was about aiding and abetting but was so irrelevant that he could not remember the purpose or topic of discussion. He further said at no time did he try to use a statement that the alternate made to influence fellow jurors. He also said what the alternate told him did not affect his ability to make an independent judgment and he did not feel that his deliberations would have changed had he not heard the comment by the alternate.
Other jurors were questioned. Juror Morgan said she didn't hear anything. Juror Dage said he didn't hear anything. Jurors Reese, Derby Barton, and Munger said they didn't recall hearing any juror saying the alternate had made a statement.
Juror Trisler said a comment was made by Jaeger early in the deliberations about a discussion with the alternate before they went in the jury room. She said the fact of the discussion concerned her more than anything else. She did not recall what was said but related that it stuck with her because a juror was not to do that. She said anything the alternate said did not affect her deliberations. Juror Wilson said during the deliberations he heard Jaeger relate something the alternate said in Friday's deliberations, but he was not certain what was said and he remembered Jaeger saying they knew they were not supposed to discuss it. When asked what it was about Wilson said,
No it was just I believe as to Mr. Lamphear's being guilty or not guilty. I don't think he said he's guilty or not guilty. But this evidence shows or something. I don't know exactly, but I do remember him saying the fact that he had talked to Mr. Allen when he wasn't supposed to be, that they were discussing it.
Wilson said the comments did not affect his understanding of the evidence. He said he felt Jaeger made the comment to gain more credibility for a certain position.
Juror Stapleton remembered some juror saying they wished the alternate was still on the jury, as he was a good guy and they liked him.
Juror Janssen said early in the deliberations Jaeger said he had discussed something with the alternate, though he knew they were not supposed to do so. Janssen said she could not remember the nature of the comment and she was not influenced by anything the foreman said about the alternate. Janssen also said it was too bad the alternate did not get to stay.
The alternate, Allen, was called. He said he told Jaeger he had some notes he wanted to talk about when they got to deliberations. This apparently was said prior to his being excused. He said he was not sure if the judge could take something he said to Jaeger as a belief or not. He said he probably gave an indication to Jaeger after the instructions that aiding and abetting was clearer. He did not believe he told Jaeger how he would go. Allen did not think he gave any indication as to whether he would vote for guilty or innocence. He said after he was dismissed as an alternate the foreman told him he would call him when the verdict was reached.
After the jury's interviews and counsels' arguments the court supplemented the instructions in answer to the second jury question and overruled the defense motion for new trial.
The jury immediately returned a verdict finding defendant not guilty on the count of burglary in the third degree. On the count of theft they found the defendant guilty. They found the value of the property taken to be more than $1,000 but less than $10,000.
Defendant contends he should have had a mistrial because of the improper discussion between Jaeger and Allen and because Jaeger used Allen's name in jury deliberations to gain acceptance for his position. He argues these acts and statement exceed tolerable bounds and the jury was most likely influenced by the challenged conduct.
The State contends the district court did not abuse its discretion in denying the motion for mistrial. The State concedes that Jaeger or Allen or both of them committed misconduct in discussing the case before the start of deliberations. The State contends it is not clear whether Jaeger's mention of Allen in the jury room involved the fact two burglaries had been committed or whether it involved aiding and abetting or both but, irrespective, the jurors were not exposed to outside information that exceeds tolerable bounds.
We review the district court's rulings on juror misconduct claims for an abuse of discretion. State v. Wells, 629 N.W.2d 346, 352 (Iowa 2001). An abuse of discretion is not found unless the decision was clearly unreasonable. State v. Tinius, 527 N.W.2d 414, 417 (Iowa Ct.App. 1994). Trials are to be decided on facts produced in court under rules of evidence and subject to cross-examination. State v. Arnold, 543 N.W.2d 600, 605 (Iowa 1996); State v. Folck, 325 N.W.2d 368, 372 (Iowa 1982). Iowa Rule of Criminal Procedure 2.24(2)( b)(2) provides a court may grant a new trial when the jury has received any evidence, paper, or document out of court not authorized by the court.
In addressing defendant's claim we consider that to impeach a verdict on the basis of jury misconduct, three conditions must be met: (1) evidence from the jurors must consist only of objective facts concerning what actually occurred in or out of the jury room bearing on misconduct, (2) the acts or statements complained of must exceed tolerable bounds of jury deliberations, and (3) it must appear the misconduct was calculated to, and with reasonable probability did, influence the verdict. Arnold, 543 N.W. 2d at 605; State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984).
The district court is allowed to consider testimony by a juror regarding "whether extraneous prejudicial information was improperly brought to the jury's attention." Iowa R. Evid. 606( b). The rule renders jurors incompetent to testify regarding arguments, votes, and mental reactions occurring during the deliberations. Iowa R. Evid. 606( b); Doe v. Johnston, 476 N.W.2d 28, 34 (Iowa 1991); Schwennen v. Abell, 471 N.W.2d 880, 888 (Iowa 1991); State v. Johnson, 445 N.W.2d 337, 341 (Iowa 1989); Ryan v. Arneson, 422 N.W.2d 491, 495 (Iowa 1988). This is essentially the federal rule. See, e.g., Tanner v. United States, 483 U.S. 107, 121, 107 S. Ct. 2739, 2748, 97 L. Ed. 2d 90, 106 (1987).
It was proper for the district court to consider the jurors' proof that an extraneous matter had been brought to the jury room. Doe, 476 N.W.2d at 34. However, to the extent the district court relied on the testimony of individual jurors to assess the influence or lack influence of the infraction was improper. Id.
Consequently we consider the testimony of the jurors as to improper discussion being brought into the room but do not consider the individual assessment of the jurors as to the effect it had or did not have on them. Doe, 476 N.W.2d at 34.
When there is proof that extraneous material has reached the jury room, the party seeking reversal on a misconduct claim must prove "that the misconduct was calculated to, and with reasonable probability did, influence the verdict." Id. at 35; Johnson, 445 N.W.2d at 342. The impact of the misconduct is to be judged objectively by the trial court in light of all the allowable inferences brought to bear on the trial as a whole. Doe, 476 N.W.2d at 35.
The Iowa Supreme Court has rejected a rule whereby prejudice would be presumed to result from the introduction of extraneous material. Id. In doing so it noted a certain amount of leeway must be built into the system so that a relatively minor incident of misconduct is not allowed to disrupt what may have been a lengthy, costly, and otherwise fair trial. Id.
There was strong evidence defendant was involved, knew the property he pawned and attempted pawn had been stolen, or he knowingly aided and abetted the thief. The facts brought out at trial show that the old Central High School in Sioux City, Iowa, termed the "Castle on the Hill" was being renovated when in the early morning hours of July 15, 2003, it was broken into and certain construction company property was taken, including a Milwaukee cordless hammer drill and four Motorola two-way radios. A break in at the Tyson Events Center was discovered at 7 a.m. the same morning, and several items were taken including a generator, a builder's level, and an electric miter box. And a steel storage structure had also been broken into and a cut-off saw, Versa-Clutch screw guns, a grinder and a stereo/radio were missing.
The construction supervisor for the "Castle on the Hill" project, James Heffernan, visited a nearby pawnshop later that same morning and found the missing drill there. Defendant had pawned the drill an hour or two earlier. The shop owner called the police and while waiting for them, defendant reappeared at the shop with a number of items stolen from the Events Center and the storage structure. Defendant was informed the drill he pawned earlier had been identified as being stolen and police were on their way. Defendant left the shop leaving the stolen items there.
The district court did not abuse its discretion in denying the motion for mistrial. While there was misconduct it does not appear to have been egregious nor was it of such magnitude as to create a reasonable probability it influenced the jury.