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State v. Smith

Court of Appeals of Iowa

July 6, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
PHILLIP LEROY SMITH, Defendant-Appellant.

         Appeal from the Iowa District Court for Decatur County, Dustria A. Relph, Judge.

         A defendant appeals his conviction asserting juror misconduct and ineffective assistance of counsel. AFFIRMED.

          Unes J. Booth of Unes J. Booth Law Firm, P.C., Osceola, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Heard by Vogel, P.J., and Doyle, and McDonald, JJ.

          VOGEL, Presiding Judge.

         Phillip 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 postconviction relief.

         I. Background Facts and Proceedings

         In 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 inadmissible.

         During 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.

         Two 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.

         During 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.

         After 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 Procedure 2.24(2)(b)(2).

         An 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.

         Defense 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.

         The district court found the foreperson's testimony to be credible and denied Smith's posttrial motions.

         Smith 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 misconduct.

         II. Standard of Review

         "We 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.

         Ineffective-assistance-of-counsel 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.

         III. Right to ...


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