from the Iowa District Court for Polk County, Lawrence P.
defendant challenges his three convictions for delivery of a
controlled substance (crack cocaine).
Hurd of Glazebrook, Greenberg & Hurd, LLP, Des Moines,
J. Miller, Attorney General, and Kevin R. Cmelik, Israel J.
Kodiaga, and Kelli Huser (until withdrawal), Assistant
Attorneys General, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
POTTERFIELD, Presiding Judge.
Ary appeals his three convictions for delivery of a
controlled substance (crack cocaine). He maintains the
district court erred on remand when it denied his second
motion for new trial. Additionally, he argues the judge on
remand, who was the same judge that presided over his trial,
should have granted his motion to recuse.
Background Facts and Proceedings.
2013, Ary was charged by trial information with three counts
delivery of a controlled substance (crack cocaine).
a multiple-day jury trial in June 2014, Ary was found guilty
of each of the three charges. Ary stipulated to his status
both as second or subsequent offender and an habitual
offender. Applying the corresponding enhancements, the
district court sentenced him to three consecutive twenty-one
filed a direct appeal of his conviction, in which he
challenged, among other things, the district court's
denial of his motion for mistrial based upon inflammatory
comments by a prospective juror during voir dire. A panel of
our court determined Ary's constitutional right to an
impartial jury was violated, reversed Ary's convictions,
and remanded for a new trial. See State v. Ary, No.
14-1112, 2015 WL 4935612, at *9-10 (Iowa Ct. App. Aug. 19,
supreme court granted the State's application for further
review and ruled that Ary had not been deprived of an
impartial jury. See State v. Ary, 877 N.W.2d 686,
691 (Iowa 2016). However, the supreme court determined the
district court applied the wrong standard in considering
Ary's motion for new trial and remanded to the district
court to "apply the weight-of-the-evidence standard to
rule on the motion for new trial on the ground the verdicts
were contrary to the weight of the evidence."
Id. at 707.
remand, before the district court considered Ary's motion
for new trial, Ary filed a motion urging the judge on remand,
who was the same judge who presided over the trial, to recuse
himself. The district court denied ...