from the Iowa District Court for Decatur County, Dustria A.
defendant appeals his conviction asserting juror misconduct
and ineffective assistance of counsel.
J. Booth of Unes J. Booth Law Firm, P.C., Osceola, for
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
by Vogel, P.J., and Doyle, and McDonald, JJ.
L. Smith appeals the district court's decision denying
his motion for a new trial following his conviction for
sexual abuse in the third degree, in violation of Iowa Code
section 709.4(1) (2014). He asserts the district court abused
its discretion in concluding the jury foreperson did not
commit misconduct when the foreperson failed to disclose that
he knew the defendant was on the sex offender registry. He
also claims his attorney provided ineffective assistance when
counsel failed to object to alleged prosecutorial misconduct.
For the reasons stated herein, we affirm his conviction but
preserve his claims of ineffective assistance of counsel for
Background Facts and Proceedings
November 2014, the victim reported to police Smith sexually
assaulted her in her apartment on October 18th. Before
Smith's trial began in October 2015, the district court
ruled that mention of Smith's prior bad acts would be
voir dire, a potential juror was asked generally if he knew
the parties involved or if there was anything that would
cause him pause if he were to serve on the jury. While the
juror seemed to recognize Smith's name, he did not
remember in what context he had heard the name, so he did not
say anything to the court or the attorneys. The juror in
question was chosen for the jury. Later, during the first day
of trial, the juror remembered he had seen Smith's name
on the sex offender registry a few months prior. However, the
juror did not alert the court of his knowledge. The juror was
later named jury foreperson.
witnesses testified at trial: the victim and the police
officer who interviewed both the victim and the defendant as
part of his investigation. The prosecutor questioned the
investigating officer about the consistency of the
victim's statements and the nature of Smith's
statements. The officer testified the victim's written
statement of the incident was consistent with the oral
statement she later gave. The officer testified that
Smith's statements during the investigation were
"strange, " saying it was "almost like a
Freudian slip" when Smith said "when I was
done-when we was done" referring to the sex act with the
victim. The officer testified that Smith told him he waited
around after the incident to see if the victim was all right,
which the officer testified also seemed strange. The officer
testified that he questioned "[w]hy would you wait
around after making love to somebody to see if it was all
right?" The prosecutor also asked the officer if he
thought the victim only disclosed the assault after she
discovered she was pregnant-about six weeks later. The
officer responded that he did not think that was the reason
she reported the incident.
her closing argument, the prosecutor referenced the
officer's testimony about the victim's consistent
statements and that that victim did not seem like someone who
was fabricating her story. The prosecutor also brought up a
recent Dateline story about sexual assault victims
who do not come forward for years after their alleged abuse,
as a way of explaining the fact that the victim in this case
waited several weeks to report her assault to the police.
deliberating approximately thirty minutes, the jury returned
a guilty verdict. The jury took only one vote, unanimously
convicting Smith as charged. The following evening the jury
foreperson telephoned the trial judge at her residence and
stated he and his wife were afraid due to Smith's
behavior posttrial and because he was on the sex offender
registry. The judge told the foreperson she would email the
parties' attorneys with this information. The foreperson
also spoke with the prosecutor in her office the next day
regarding his information. In response, Smith's counsel
filed a motion for new trial, asserting juror misconduct
invalidated the guilty verdict under Iowa Rule of Criminal
affidavit, agreed upon by both the State and Smith, was sent
to all the jurors, inquiring, "Did anyone mention or
discuss the sex offender registry during the course of the
trial?" All jury members answered "no." At the
posttrial hearing, the foreperson testified he did not
mention his knowledge to anyone on the jury:
Q. You didn't feel that that [knowledge of the sex
offender registry] was relevant in your deliberations, and
you just didn't say it? A. What's that?
Q. His being on the registry. A. It wasn't relevant to
what we were talking about, no.
counsel then inquired as to any bias the foreperson may have
harbored because of such knowledge.
Q. It didn't have any bearing at all on whether or not my
client was convicted of a sex abuse offense in the past? A.
No, because I knew I could give a fair judgment on what was
in the trial.
district court found the foreperson's testimony to be
credible and denied Smith's posttrial motions.
appeals his conviction claiming he was denied his
constitutional right to a fair trial under the United States
Constitution and under article I, section 10 of the Iowa
Constitution. He claims he was denied the right to an
impartial jury due to the foreperson's alleged misconduct
and bias. He also claims ineffective assistance of counsel
due to trial counsel's failure to object to prosecutorial
Standard of Review
review a denial of a motion for a new trial based upon juror
misconduct or juror bias for an abuse of discretion."
State v. Webster, 865 N.W.2d 223, 231 (2015). The
burden of proof is on the party seeking review. Id.
claims are reviewed de novo. State v. Halverson, 857
N.W.2d 632, 634 (Iowa 2015). The court ordinarily preserves
these claims for postconviction relief proceedings in order
to fully develop the record through evidentiary hearings.
Id. We will only review the claims on direct appeal
if the record is adequate. Id. at 638.
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