from the Iowa District Court for Black Hawk County, George L.
Todd-Harris appeals his conviction for second-degree
C. Smith, State Appellate Defender, (until his withdrawal)
and Maria Ruhtenberg, Assistant Appellate Defender, for
J. Miller, Attorney General, and Zachary Miller, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.
found Maliek Todd-Harris guilty on one count of second-degree
burglary. He challenges his conviction on direct appeal,
claiming the district court abused its discretion by denying
his motion for mistrial.
moved for mistrial on the second afternoon of trial after
noticing one of the jurors "dozing off." After
excusing the rest of the jury at the end of the day, the
court informed the juror that there was "some concern as
to whether you're tired" and that he was perceived
to have "nodded off once or twice." The juror
admitted that he could "get a little drowsy" but
did not admit that he had "ever really [fallen]
asleep." After reminding the juror that his full
attention was required during trial, the court told him to
request a break to refresh if he felt drowsy.
next day, defense counsel renewed the motion for mistrial,
alleging the juror "repeatedly dozed off, took a
nap." Counsel alleged that after the jury attendant
noticed the juror sleeping and gave him a drink of water, the
juror "continued to nod off and show no interest in this
trial." The court again denied the motion, explaining
that it had directed the court attendant to give the juror
water after noting the juror's difficulty staying awake.
It denied the motion a third time after counsel renewed it at
the close of evidence.
review a denial of a motion for a new trial based upon juror
misconduct for an abuse of discretion. State v.
Webster, 865 N.W.2d 223, 231 (Iowa 2015). A mistrial is
appropriate if the jury cannot reach an impartial verdict.
See State v. Newell, 710 N.W.2d 6, 32 (Iowa 2006).
The question is whether the court was clearly unreasonable in
concluding the jury could reach an impartial verdict. See
unable to find the district court abused its discretion on
the record before us. The juror admitted to becoming drowsy
during some portions of the trial but did not agree that he
had fallen asleep. See State v. Cuevas, 281 N.W.2d
627, 632 (Iowa 1979) (finding defendant failed to establish
misconduct of two jurors who appeared to be sleeping where
one juror denied sleeping, the other was not called, and the
bailiff did not observe any jurors sleeping); State v.
Goldensoph, No. 17-0479, 2018 WL 4360893, at *3 (Iowa
Ct. App. Sept. 12, 2018) (finding no abuse of discretion in
district court's denial of motion for mistrial where
jurors denied falling asleep). The court could observe the
juror firsthand and determine the effect his drowsiness had
on his ability to render a verdict. See State v.
Hunt, 801 N.W.2d 366, 373 (Iowa Ct. App. 2011) (noting
that the trial court has broad discretion in ruling on a
motion for mistrial because it is in a better position
"to gauge the effect of the matter on the jury"
(citation omitted)). The court acted reasonably by informing
the juror of the need to pay careful attention during trial,
asking him to request a break when necessary, and sending
water to the juror when he exhibited signs of drowsiness.
appeal, Todd-Harris asserts that the court "should be
required to conduct an investigation into how much the juror
had missed." However, he never requested such an
investigation below. Accordingly, Todd-Harris failed to
preserve error for our review. See State v. Dewitt,
811 N.W.2d 460, 467 (Iowa 2012) ("We do not review
issues that have not been raised or decided by the district
affirm Todd-Harris's conviction for ...