Opinion
No. 2-859 / 01-2039.
Filed December 30, 2002.
Appeal from the Iowa District Court for Linn County, KRISTIN K. HIBBS, Judge.
Applicant appeals the postconviction court's dismissal of his postconviction proceeding. AFFIRMED.
Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Denver D. Dillard, County Attorney, and Todd Tripp, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Applicant Jeremy Atwood was convicted of two counts of vehicular homicide under Iowa Code section 707.6A(1)(b) (1997). He appealed raising a number of challenges, one of which arose out of the trial court's handling of an anonymous telephone threat made to the public defender's office during trial. The supreme court affirmed applicant's conviction on all issues, reserving to him the right to pursue in a postconviction proceeding a challenge to his trial attorney's failure to object to the trial judge visiting with the jury about the phone call in applicant's absence. State v. Atwood, 602 N.W.2d 775 (Iowa 1999). This appeal comes from the postconviction court's dismissal of the postconviction proceeding raising the preserved issue. The court found applicant failed to show either that his trial counsel was ineffective or that he was prejudiced. In this appeal applicant contends those findings were in error. We affirm.
The challenged activity occurred on the morning scheduled for final arguments in applicant's initial trial. A receptionist in the public defender's office heard from an anonymous caller that the trial participants, including the prosecutor, defense counsel, and jurors, would all be killed unless a certain verdict was returned. The receptionist was unable to remember whether a conviction or acquittal was demanded. Upon learning of the telephone call, the trial judge told the parties and the spectators present in the courtroom that closing arguments would be delayed because of a threatening telephone call. The judge next met with the attorneys and applicant, telling them of the call and outlining security precautions being taken. The judge invited suggestions from those present as to what the jury should be told. The judge then proposed he tell the jury in the jury room on the record, in general terms, that the proceedings were delayed because there had been a threatening telephone call. The judge also indicated his intent to have any questions from the jury recorded and to review them with counsel before answering. Applicant's trial attorneys objected to the judge's suggested procedure. They did not feel the jury should be told of the threat and moved for a mistrial or a total sequestration of the jurors. The trial judge overruled the applicant's motions. The judge, accompanied by his court reporter, went to the jury room where he explained the situation to the jurors. Following this the court reporter read from the record to applicant and his attorney the trial judge's conversation with the jury. Applicant's trial attorney then, without success, renewed his objections to the procedure. Closing arguments were given the next day. The case was submitted to the jury, which found applicant guilty on both counts.
The record does not show that applicant's attorneys requested that they and applicant be present in the jury room when the judge spoke to the jurors or that they have the opportunity to conduct further voir dire after the trial judge talked to the jurors about the threat.
The exact comments of the trial judge are set forth below:
THE COURT: For the benefit of the record, the Court is visiting with our 14 jurors in this case in our jury conference room.
Ladies and gentlemen, I wanted to explain to you why we're delayed. We made wonderful progress the first six days, and we're a day or two ahead of schedule. But what happened this morning was shortly before we were scheduled to begin our closing arguments there was brought to the Court's attention the fact that an anonymous phone call that was threatening in nature and directed to virtually all of the participants in this trial had been placed. And, obviously, that was something that I then had to deal with.
Unfortunately, this is something that occasionally occurs at the courthouse, not often but once in awhile, and we just have to deal with an issue when it comes up. And I have taken what steps that I think are appropriate. Obviously, involved some law enforcement officers to investigate the circumstances. And, in addition, taken some steps to ensure that we have enhanced security during the course of the trial.
And when we come back tomorrow, I wanted to make you aware that I have got our metal detector, and things like that, that are set up, and I'm going to go ahead and use those. We use those fairly often in connection with cases that occur at the courthouse. And I am going to go ahead and set those up and have those operative tomorrow.
One thing I guess I would like to say is, you know, I know this is something that's new to you, but we occasionally have to go down this road. Obviously, if somebody makes a call, even if we believe it is a crank call, we have to react to it appropriately rather than ignore it, which is what I have tried to do here.
And right now we're scheduled to reconvene with closing arguments commencing tomorrow at ten o'clock. Because this all happened we could not make the arrangements that were necessary to go ahead and start arguing the case this afternoon. So that's where we are at this point in time.
I guess one thing that I would like to tell you by way of reassurance is I have been in this district for 25 years, 12 as a lawyer, and 13 as a judge; and although we get calls of this nature from time to time, I'm aware of no occasion in 25 years that I have been around here where anybody has ever followed up in connection with a call of this nature. So I did feel, though, that it's appropriate to make you aware of why you have been sitting up here since ten o'clock since we have tried to minimize occasions when that has occurred during the trial.
Now, I have not yet excused the parties. They're downstairs, and they're waiting for some instructions from the Court just to confirm that we're starting tomorrow at ten o'clock.
If you had any questions, I had indicated to them that I didn't feel it was appropriate for me to respond without reviewing a question that a juror may have had. But if there was anything that you thought you needed to ask the Court at this time, I can make a note of that; and if I can respond, I will. And if it's not something that's appropriate for me to respond to, I hope you would understand that that's the case.
And before we excuse you this afternoon, I do need to double-check with the parties. But anything that anybody wanted to take up with the Court?
(There was no response by any jury member.)
THE COURT: Well, I appreciate very much your patience. Obviously, this is something that was not what I would have planned for your morning this morning, or mine either for that matter. But I've done what I believe it was necessary for me to do, and I'm trying to get all our "ducks in a row" so that we can get this case concluded. So bear with me, I should be able to tell you maybe within 15 minutes or so whether or not you can go on home, and we can get this case to the jury tomorrow morning hopefully.
Okay. All right. Thanks for your patience, jurors.
On direct appeal applicant contended the manner in which the trial court handled the threat (1) exposed the jury to extrajudicial material, which affected their ability to render an impartial verdict — a violation of the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections IX and X of the Iowa Constitution; and (2) improperly denied applicant his right to be present during all trial proceedings, thus violating the same federal and state constitutional provisions. Atwood, 602 N.W.2d at 778.
In rejecting these claims on direct appeal the supreme court noted that applicant did not claim any of the judge's comments were inaccurate or prejudicial. Rather, he claimed if the court were to discuss the matter with the jury, it should have gone further and inquired of the jurors as to what effect, if any, the threat had on them. Id. at 780. The supreme court also commented that to do so would have magnified the event and exacerbated any effect it might have on the jurors. Id. The court further noted that while applicant's lawyers voiced concern that the threat would be reported on the evening news, the jury was admonished they were to avoid media coverage and conversations with others about the case and the court was entitled to presume the jurors would follow its admonition. Id. (citing State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998)). The supreme court held that the trial court's refusal to examine the jurors sua sponte was within its discretion and found no error or abuse of discretion in the procedure implemented by the trial court in addressing the matter with the jury. Id.
Atwood's complaint here is that he received ineffective assistance of counsel at the trial because his attorney failed to participate in the meeting between the judge and jury concerning the telephone threat and failed to insist on individual voir dire of the jurors concerning the effect of the threat. The district court found both that Atwood had failed to demonstrate the required prejudice and that trial counsel was not ineffective.
The postconviction court recognized that neither attorney recalled asking to be present when the trial judge talked to the jury but both were convinced the trial judge was firm in its conviction to go before the jury without others present. The postconviction court also found it was reasonable for the attorneys to believe that the presence of all the parties in front of the jury would have placed undue emphasis on the threat.
A defendant claiming ineffective assistance must prove, by a preponderance of the evidence, that his trial counsel failed in an essential duty and that prejudice resulted. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). This prejudice must give rise to a reasonable probability that, but for counsel's errors, the results of the proceeding would have been different. State v. Carrillo, 597 N.W.2d 497, 500 (Iowa 1999).
We agree with applicant that had his attorneys requested to be present, and had they requested that he be present during the trial judge's conversation with the jury, it would have been error for the trial judge not to have granted the request. One of the basic rights guaranteed by the Confrontation Clause in the Constitution is the accused's right to be present in the courtroom at every stage of his trial. See Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356 (1970); State v. Webb, 516 N.W.2d 824, 830 (Iowa 1994); State v. Meyers, 426 N.W.2d 614, 616 (Iowa 1988); see also U.S. Const. amend. VI; Iowa R.Crim.P. 2.27(1). This right is not an absolute right, and it may be lost by consent or at times even by misconduct. Allen, 397 U.S. at 342-43, 90 S.Ct. at 1060, 25 L.Ed.2d at 358; Webb, 516 N.W.2d at 830; see also State v. Moore, 276 N.W.2d 437, 440-41 (Iowa 1979); State v. Blackwell, 238 N.W.2d 131, 135 (Iowa 1976); Iowa R.Crim.P. 2.27(2). Although we may presume prejudice when a defendant is not present at trial, the presumption may be rebutted. Webb, 516 N.W.2d at 830; State v. Wise, 472 N.W.2d 278, 279 (Iowa 1991).
Applicant's attorneys, after conferring with each other and with applicant, elected to (1) seek a mistrial, or (2) seek to have the jury sequestered to keep the evidence from them. Both of their motions in this regard were overruled. We agree with the postconviction court that there was no indication on the record that applicant's attorneys sought to be present with their client during the time the trial judge visited with the jury.
In postconviction proceedings defense attorney Sissel testified that he and co-counsel, after reviewing the comments made by the trial judge to the jury, were of the opinion not to do anything more in regard to the jury, as that would only further taint what had already been tainted. Brian Sissel felt it was a mistake not to request on the record that he be present with co-counsel and the applicant during the judge's discussion with the jury because, in being absent, they were unable to observe the jurors' demeanors when they learned of the threat. Defense attorney Shay Ross-Boon testified he was somewhat ambivalent about the issue and that part of him agreed with the idea and another part agreed that they would exacerbate the situation by calling too much attention to it.
Applicant contends he was prejudiced because there was no way of knowing whether the fact the jury learned of the threat had an effect on the verdict.
The State contends that even if trial counsel were ineffective, the evidence was so compelling that the telephone threat and the manner in which defense counsel responded to it were not significant, given the evidence against the defendant.
Applicant was on trial for driving a car that hit and killed two children who were going door to door selling candy to raise money for a soccer team. Applicant drove his car across the center line of a county road, and there was considerable evidence he was driving at a high rate of speed and not paying attention to his driving.
The record indicates applicant's trial counsel explored the way to handle the threat and considered various options, including the request for a mistrial. Ross-Boon testified that paying too much attention to the issue might have exacerbated it. The supreme court came to a similar conclusion in discussing applicant's contention that if the trial court was to discuss the matter with the jury, it should have gone further and inquired of the jurors as to what effect, if any, the threat had on them. Atwood, 602 N.W.2d 775. The court in that discussion noted that to do as applicant suggested, would magnify the event and exacerbate any effect it might have on the jurors. Id. In scrutinizing trial counsel's performance we are highly deferential and we indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). A defendant is not entitled to perfect representation but rather only that which is within the range of normal competency. Karasek v. State, 310 N.W.2d 190, 192 (Iowa 1981). We agree with the postconviction court that trial counsel were not ineffective. The course they chose to take on the challenged issue was reached after considerable consideration and was a reasonable professional decision. We affirm on this basis.