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State v. Tennant

Court of Appeals of Iowa

October 24, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
KENNETH TENNANT, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Paul L. Macek (trial) and Marlita A. Greve (sentencing), Judges.

         The defendant appeals from his conviction and sentence for tampering with a juror in violation of Iowa Code section 720.4 (2017).

          Lauren M. Phelps, Davenport, for appellant.

          Kenneth Tennant, Bettendorf, pro se appellant.

          Thomas J. Miller, Attorney General, and Timothy Hau, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., Tabor, J., and Blane, S.J. [*]

          PER CURIAM.

         Defendant Kenneth Tennant appeals his conviction and sentence for tampering with a juror in violation of Iowa Code section 720.4 (2017). On appeal, Tennant raises eight issues, including five concerning jury instructions, arising from the jury trial where Tennant represented himself.[1] Based upon our review, we affirm.

         I. Factual Background.

         This case had its beginnings in an earlier criminal case involving Tennant's son. On March 7, 2017, Tennant's son was found guilty of criminal charges by a jury. T.F. was foreman of that jury. Tennant disagreed with his son's verdict. Later on March 7, Tennant emailed T.F. raising questions about how the jury could reach the verdict it did. T.F. forwarded Tennant's email to the trial judge in the son's case asking for guidance; T.F. did not reply to Tennant.

         On March 8, Tennant sent a more strongly worded email to a number of people, including employees of the local television stations, the Alliance Defending Freedom, and someone at the United States Department of Justice. He was openly critical of the justice system, the courts, the attorneys, the judges, and the jury in his son's trial. He copied T.F. on this email. On March 10, he sent by email a "motion to arrest verdict" to the judge who presided over his son's trial; the email was also received by T.F.

         On March 12, Tennant sent an email to a long list of people, including T.F., and copied a number of other people on the email. On March 13, Tennant sent another email of a similar nature to more than ten people, including T.F., requesting an internal investigation of the officers involved in the arrest of his son, which was the basis of the son's trial.

         Finally, on March 17, Tennant sent by certified mail a packet and letter-marked confidential-to the human resources (HR) department of T.F.'s employer. The letter stated T.F. had convicted an innocent citizen and his competency and integrity should be questioned. Included in the packet was a photo of T.F. that Tennant obtained from the internet. When T.F. was informed by his employer's HR manager of this packet from Tennant, he notified the judge who presided over the trial where T.F. had served as jury foreman. A criminal investigation followed, and a criminal complaint was filed against Tennant for harassment of T.F. in connection with his service as a juror in the son's criminal trial.

         II. Procedural Background.

         On March 27, 2017, Tennant was charged by criminal complaint with one count of tampering with a juror in violation of Iowa Code section 720.4. At his initial appearance, Tennant refused to complete an application for court-appointed counsel. A trial information was filed April 5, charging him with the same crime. Tennant pled not guilty at arraignment and proceeded self-represented. He filed a number of pro se motions and documents, which were heard on May 18. At the hearing, the court again inquired if Tennant would like to fill out a financial affidavit and be considered for a court-appointed attorney. Tennant declined, claiming court-appointed counsel is a "farce." In a ruling filed on June 15, the court denied Tennant's numerous motions and again referenced Tennant's right to apply for court-appointed counsel or hire his own attorney.

         A jury trial commenced on June 26. Tennant represented himself throughout the trial. The State called several witnesses, including T.F., and presented the emails and the contents of the package sent to T.F.'s employer. Tennant called no witnesses and did not testify; however, he made an opening statement and closing argument, and he cross-examined the State's witnesses. The State admitted into evidence a YouTube video showing Tennant discussing the events surrounding his son's trial and Tennant's own arrest. Tennant attempted to offer a second video, but he was unsuccessful in laying foundation and having it admitted. At the close of the State's case, at the court's request, Tennant made a series of statements that the court interpreted as a motion for judgment of acquittal, which was denied.

         The jury found Tennant guilty, and he was sentenced to two years in prison, with prison being suspended and probation granted, a fine of $625 plus costs, and surcharge. Tennant appeals his conviction.

         III. Discussion.

         A. Whether the court erred in failing to grant Tennant's motion for mistrial.

         Tennant claims that the trial court erred in failing to grant his motion for a mistrial. Initially, the State contends Tennant did not preserve error on this issue. A mistrial motion must be made at the earliest opportunity in the progress of the case. See State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997). On our review of the record, Tennant made his request for mistrial at the earliest opportunity after the judge admonished Tennant and pointed his finger. The court immediately took a recess and addressed the situation, but it did not rule on the mistrial motion. The judge impliedly overruled the motion since the trial proceeded. We find the issue was preserved for our review.

         Generally, we review the denial of motion for mistrial for abuse of discretion. State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003), overruled on other grounds by State v Hanes, 790 N.W.2d 545, 551 (Iowa 2010). As noted, in this case Tennant represented himself. A review of the record reveals the extent to which he continually tested the patience of the court. The court exhibited an admirable degree of restraint. Earlier during the trial, the court warned Tennant to comply with the court's rulings and that his failure to do so was approaching contempt.[2]The event giving rise to Tennant's mistrial motion involved Tennant cutting off the witness from answering a question. The court intervened and the following exchange occurred:

THE COURT: Excuse me. You have to wait until the witness answers his question. I understand you're getting answers you don't like to hear, but because you don't like to hear them-
TENNANT: I'm sorry, I'm objecting to it-
THE COURT: -doesn't mean you get an opportunity to interrupt, like you're doing to me.
TENNANT: I object to that, and I think it's rude that you're pointing your finger at me, and I think it's accusatory and inflammatory, and I think what you're doing to the jury here is prejudicing them.
THE COURT: Dr. Tennant-
TENNANT: I don't need this. I'm not a lawyer, and you know I'm not a lawyer, and for you to point your finger at me in front of the jury, you have prejudiced this jury.
THE COURT: Dr. Tennant-
TENNANT: I call for mistrial.
THE COURT: Dr. Tennant-
TENNANT: This is ridiculous. You don't need to sit there and chastise me like that.
THE COURT: Ladies and gentlemen, we're going to take a recess. Remember the admonition.
(The jury recessed.)
THE COURT: Dr. Tennant-let the record reflect that we are outside the presence of the jury, in open court. The defendant is present, as is the State by counsel. Dr. Tennant, you have constantly interrupted me.
MR. TENNANT: I apologize.

         A trial judge has considerable discretion to declare a mistrial, and we will not reverse that decision absent a showing "that the trial court's discretion was exercised on grounds clearly untenable or clearly unreasonable." Id.

A trial judge must "preserve an attitude of impartiality [and guard] against giving the jury the impression that the court believes the defendant is guilty." Therefore, it is clear that when a trial judge makes prejudicial remarks about the defendant in front of the jury, the judge may order a mistrial.

State v. Brooks, No. 07-1057, 2008 WL 509068, at *5 (Iowa Ct. App. Feb. 27, 2008) (alteration in original) (citation omitted) (noting the judge declared mistrial and acknowledged he did not act ...


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