from the Iowa District Court for Union County, Dustria A.
defendant appeals his two convictions of sexual abuse in the
P. DeVolder of DeVolder Law Firm, P.L.L.C., Norwalk, and
William L. Kutmus of Kutmus, Pennington & Hook, P.C.,
West Des Moines, for appellant.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
P.J., McDonald, J., and Blane, S.J. [*]
Silva Jr. appeals both of his convictions of sexual abuse in
the third degree. Silva raises a number of claims, including
that he should be granted a new trial because of juror bias,
juror misconduct, and the jury being improperly instructed
that it could convict him without reaching a consensus as to
the means of the crime. Silva also maintains trial counsel
provided ineffective assistance because they failed to object
to voir dire questions by the prosecutor that tainted the
jury pool and to vouching statements by medical personnel
August 2015, Silva was arrested and charged with two counts
of sexual abuse in the third degree. The complaints alleged
Silva had committed two sex acts, digitally penetrating the
vagina of the complaining witness and placing his exposed
penis in the complaining witness's hand against her will
and while she was incapacitated and unable to consent.
matter proceeded to trial in October 2016, and the jury
returned a general guilty verdict on both counts of sexual
abuse in the third degree.
trial Silva retained new counsel and filed a motion for new
trial and in arrest of judgment. The matter came on for
hearing in May 2016, after which the district court denied
Silva's motions and entered judgment, sentencing Silva to
two ten-year terms of incarceration to be served
maintains he was denied a fair trial due to impermissible
juror bias and claims the district court should have granted
his motion for new trial. See Iowa R. Crim. P.
2.24(2)(b)(9) (providing the court may grant a motion for new
trial when "the defendant has not received a fair and
impartial trial"). We review a denial of a motion for
new trial based on juror bias for an abuse of discretion.
State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015).
bias may be actual or implied." Id. at 236.
"Actual juror bias occurs when the evidence shows that a
juror, in fact, is unable to lay aside prejudices and judge a
case fairly on the merits, " whereas "[i]mplied
bias arises when the relationship of a prospective juror to a
case is so troublesome that the law presumes a juror would
not be impartial." Id.
Silva maintains two of the jurors on his jury were both
actually and implicitly biased. He asserts that Juror Ward
and Juror Reeves were actually biased because they concealed
their relationships with the complaining witness during voir
dire in order to be empaneled and were presumptively biased
because both jurors, as well as Silva, Silva's family,
and the complaining witness, all attended the same church.
we recognize that it is of "particular concern"
that a juror would "decline to truthfully answer a
voir dire question in order to avoid being removed from the
jury panel, " id. at 237, there is no credible
evidence that such an occurrence happened here. Both Jurors
Ward and Reeves were subpoenaed to testify at Silva's
hearing on the motion for new trial, and both testified under
oath that although each was a member of the complaining
witness's church-along with approximately 280 to 300
other members-they did not know the complaining witness or
Silva before the trial. Silva maintains such lack of
familiarity is "implausible on its face, " but the
district court found the jurors' testimony credible.
we credit the testimony of Silva's family
members about various interactions they witnessed
between the jurors in question and the various members of the
family-that the jurors had been seen shaking hands with the
family members during a portion of the church service where
all members were to shake hands with other members and the
jurors and family members both participated together in
certain church functions-such interactions do not establish
actual bias. "The mere fact a juror has knowledge of
parties or witnesses does not indicate actual bias or require
juror disqualification." Id. at 238.
Additionally, such a relationship is not so close or
dependent as to rise to the level of implied bias. See
id. at 236 ("Implied bias has been found to arise,
for instance, when a juror is employed by a party or is
closely related to a party or witness."). As our supreme
court has cited with approval, a "juror's knowledge
of, or non-familial relationship with, a witness, attorney,
or party provides a basis for disqualification only if it is
shown that it has resulted in the juror having a fixed
opinion of the accused's guilt or innocence or a bias for
or against the accused." Green v. State, 757
S.E.2d 856, 858-59 (Ga. 2014); see also Webster, 865
N.W.2d at 239. Nothing in the record before us indicates that
the jurors in question had a fixed opinion of Silva's
guilt before trial.
district court did not abuse it discretion in denying
Silva's motion for new trial based on the claim two
jurors had actual or implied bias.
maintains he was denied a fair trial due to jury misconduct
and claims the district court should have granted his motion
for new trial. See Iowa R. Crim. P. 2.24(2)(b)(2)
(providing the court may grant a motion for new trial when
"the jury received any evidence, paper or document out
of court not authorized by the court"). We review a
denial of a motion for new trial based upon juror misconduct
for an abuse of discretion. Webster, 865 N.W.2d at
Silva maintains we should find juror misconduct because
jurors Reeves and Ward, approximately one year before being
empaneled, received communications ...