review from the Iowa Court of Appeals.
from the Iowa District Court for Emmet County, David A.
appeals from a district court judgment of second-degree
F. Spies of Spies, Pavelich & Foley, Iowa City, for
J. Miller, Attorney General, Tyler J. Buller, Kelli Huser
(until withdrawal), Kevin Cmelik, and Coleman McAllister,
Assistant Attorneys General, and Doug Hansen, County
Attorney, for appellee.
case, Lee Christensen challenges his conviction of
second-degree murder following a jury trial. After the trial,
Christensen moved for a new trial based upon (1) the refusal
of the trial court to disqualify a juror who allegedly made
out-of-court statements regarding the defendant's guilt,
(2) prosecutorial misconduct related to allegedly improper
testimony from two witnesses for the State, and (3)
misconduct and bias related to extraneous information
reaching the jury about a possible riot if a certain verdict
was not returned. The district court denied the motions for a
new trial, entered judgment, and sentenced Christensen.
transferred the case to the court of appeals. The court of
appeals reversed, holding Christensen was entitled to a new
trial as a result of juror misconduct and bias. For the
reasons expressed below, we vacate the court of appeals
decision and affirm the district court judgment.
Factual and Procedural Background.
Bortvit was dating Christensen's former girlfriend.
Bortvit and Christensen both lived in Estherville, Iowa.
After Bortvit was reported missing from work, a community
search was undertaken in an effort to find him. As part of
its investigation, law enforcement wanted to speak with
Christensen. After law enforcement contacted the Christensen
family about a potential interview, Christensen's mother
asked him if he knew Bortvit's whereabouts, became
suspicious, and confronted her son. Christensen ultimately
told his father that he had killed Bortvit. Christensen
provided his father with information that led to the
discovery of Bortvit's body in a remote location.
State charged Christensen, an Estherville high school
student, with murder and other lesser included offenses. He
pled not guilty. The matter proceeded to jury trial in
Estherville. The jury found him guilty of second-degree
filed a posttrial motion attacking the verdict. He claimed
the district court erred in refusing to grant a midtrial
motion to disqualify a juror for cause. He further asserted
the verdict was tainted because of juror misconduct. He also
claimed prosecutorial misconduct associated with two
witnesses' testimony required a new trial. The district
court overruled the motion for a new trial, entered judgment,
and sentenced Christensen. Christensen appealed.
Selection of the Jury.
the jury trial began, the parties engaged in voir dire of the
jury venire. The district court began by asking the jurors
three questions: (1) whether they had heard about the case
from the media, (2) whether they had heard about the case
from sources besides the media, and (3) whether they had
formed an opinion about the case. Many jurors answered
affirmatively to one or more of the questions.
for the parties then conducted individual voir dire outside
the presence of the other venire members. The voir dire
process revealed that the events surrounding Bortvit's
death were the subject of extensive discussion in the
Estherville community. Many prospective jurors knew members
of the Christensen family, the Bortvit family, or both. In
addition, many prospective jurors further explained their
knowledge about the case from the media and from other
sources, including various Facebook postings.
number of jurors believed they could not fairly judge the
case because they had already formed opinions about the
matter. Most often, these jurors believed Christensen was
guilty. When asked if they could be fair in the proceedings,
a number said they could not. Of the sixty prospective
jurors, the district court disqualified twenty-four for
voir dire, the lawyers and prospective jurors recognized the
emotional character of the case. One prospective juror
stated, "I know that sentiments run high." Another
remarked, "[I]t is so traumatic that this has happened.
And whether or not he is guilty, everybody involved has been
hurt . . . ." A third potential juror stopped going out
for coffee because "[it was] too disturbing to [the
juror] to listen to other people . . . disparagingly talk
about individuals." A fourth potential juror when asked
whether they were well suited to be a juror explained,
"I just think I'm going to need a tissue a
voir dire of the entire panel, Christensen's attorney
asked the jury if anyone had "difficulty with the notion
that Lee Christensen doesn't have to prove his innocence,
doesn't have to testify, that you can't hold it
against him." No one responded in the affirmative.
close of jury selection, the district court described how the
trial would proceed. The district court stated that after the
close of the State's case, Christensen could present
evidence "if he chooses to." The district court
advised the jury, "[Christensen is] not required to
[present evidence]. As you've been told, he's
presumed innocent and the burden rests with the state."
Instructions of the District Court Related to Extraneous
the petit jury had been selected, the district court
admonished the jury to avoid extraneous communication with
anyone regarding the trial. Specifically, the district court
instructed the jury,
[Y]ou are not to converse among yourselves or with anyone
else on any subject connected with this case. . . . If anyone
should attempt to discuss this case with you or in your
presence, walk away and do not listen. However, if anyone
should persist in talking to you or in your presence, report
it immediately . . . .
the district court told the jury,
[Y]ou are admonished not to listen to, view, or read any form
of media while this case is in progress. . . . This includes
. . . the full gamut of social media, the internet, cell
phone communications, Instagram, Twitter. Just for the next
few days, I need to have you disconnect from that if
you're involved at all.
Overview of Evidence Adduced at Christensen's
6, 2015, Bortvit was working in the meat department at a
Fareway store in Estherville. That afternoon Christensen was
seen at the Fareway meat counter. His truck was also spotted
in the Fareway parking lot. Although his family was not going
to be home that evening, Christensen bought some ground beef,
which he put in the freezer when he returned home. Bortvit
left the Fareway store for his break at about 4:00 p.m.
girlfriend, Cayley Fehr, was out of town but exchanged text
messages with Bortvit during the afternoon. Bortvit told Fehr
in a text message that he was with Christensen and that
Christensen had asked for a ride because his truck had broken
down. Fehr had dated Christensen in the past and knew of the
antipathy Bortvit had toward Christensen. Later in the day,
Fehr received a text message from Bortvit's phone stating
that he no longer wanted to date or see Fehr and that they
should see other people. Fehr subsequently received a text
message from Christensen stating he had killed Bortvit.
arrived home at approximately 5:00 or 5:30 p.m. wearing a
soiled T-shirt and jeans. He and his sister went downtown for
a sandwich. Upon returning home, Christensen watched TV but
then abruptly went upstairs.
that evening, Bortvit's friends discovered his car parked
and locked in a residential area of Estherville. Police and
community members began to look for Bortvit.
next day, Christensen and his mother were driving to Sioux
Falls to catch a flight to Arizona so that Christensen could
attend a crosscountry sports camp. She learned on Facebook
that Bortvit was missing. When she told Christensen of the
news, he sat quietly. That same day, Christensen's father
participated in the search for Bortvit.
law enforcement learned that Bortvit had been seen talking to
Christensen at Fareway, they went to Christensen's home
and told his sister they wanted to talk to him. When
Christensen and his mother arrived in Arizona, his mother
received a text message indicating the police wanted to talk
to her son. After a confrontation, Christensen told his
mother that he and Bortvit had gotten into a fight, that he
got scared, and that he hit Bortvit with a rock. Thereafter,
Christensen called his father and told him that he knew where
Bortvit's body was. Christensen's father told police
that Christensen had killed Bortvit. Using directions from
Christensen, police drove to a place outside of town where
Bortvit's body was located in a pasture.
search warrant executed at the Christensen home produced a
.45 caliber pistol, ammunition, clothing, and Bortvit's
wallet in Christensen's room. In addition, investigators
found bloodstained boots in the lower level of the residence.
A search of Christensen's grandfather's farm produced
three .45 caliber cartridge cases and three slugs. The trunk
of Bortvit's car contained clothing and other items
covered with blood.
autopsy revealed that Bortvit died from multiple gunshots and
that his body exhibited bruising and abrasions. A projectile
retrieved from Bortvit's body was traced to the .45
caliber pistol found in Christensen's room. Testing of
the pistol revealed Bortvit's, but not Christensen's,
DNA on the grip of the gun. Examiners did not test the gun
for blood or other biological sources of DNA.
jury received the case on June 30, 2016, and deliberated into
the evening without reaching a verdict. The jury returned to
deliberate on July 1. That morning, the jurors delivered a
note to the district court indicating they were "stuck
between two verdicts and need[ed] to know what [their]
options [we]re." The district court replied that the
jurors "should continue to deliberate if [they] believe
it would be productive in reaching a unanimous verdict."
Later on the afternoon of July 1, the jurors returned a
verdict of second-degree murder.
Issue of Juror Disqualification.
the trial, a member of the news media received a note stating
that "there is a jury member telling people the young
man is guilty and . . . she is sticking to it." The note
also identified juror K.B. by a phonetic spelling of the
juror's name. The member of the news media provided the
note to the district court, and law enforcement conducted an
investigation. The investigation revealed an employee of a
local café heard a patron state that a juror, while at
a family gathering, "kept on talking about the trial and
that Lee Christensen was guilty and was going to find him
guilty no matter what."
enforcement prepared an investigative report and the
café employee signed a written statement describing
the events. These documents were admitted into evidence as
court exhibits. No testimony was obtained from the employee
who provided the written statement nor from the person in the
café who was overheard stating the juror had made up
her mind on the question of Christensen's guilt.
district court summoned juror K.B. into chambers. The court
conducted an examination of the juror without objections of
either party. When asked whether she had spoken to anyone
about the case, the juror stated, "I don't believe I
did. I think I said I was a juror maybe, you know, or they
knew I was a juror." When asked whether she had
expressed an opinion about Christensen's guilt, she said
she did not because she did not know. When pressed whether
she made any statements about Christensen's guilt, she
stated, "I don't believe I did. I don't think I
ever said anything about his guilt or innocence." When
asked if she was certain, the juror responded, "I'm
trying to think. I don't remember making any statements
about the guilt or innocence because I do not know."
Christensen moved to remove the juror. The district court
denied the motion.
again raised the issue of juror disqualification in a motion
for new trial. The district court denied the motion,
declaring the ruling, among others, was "consistent with
and supported by existing Iowa law, and, more importantly,
neither prejudiced Christensen nor violated his rights to a
fair trial and due process of law under the constitutions of
the United States and the State of Iowa."
Overview of Alleged Prosecutorial Misconduct.
Presumption of innocence/burden of proof.
the trial, the State called criminalist Tara Scott as a
witness. During her examination, Scott testified that DNA
from Bortvit was detected on the grip of the handgun asserted
to be the weapon used to kill him. She also testified that
the handgun was not screened for blood and that forensic
testing was not conducted to determine if the source of the
DNA was Bortvit's skin or perspiration (which might
suggest Bortvit at one point held the gun). Further, on
cross-examination, Scott testified that scrapings found
underneath Bortvit's fingernails were not tested because
Scott had been told that "no struggle was
redirect, the prosecution asked Scott if the physical
evidence was available for testing by others. Scott testified
that it was. Christensen objected and asked to be heard
outside the presence of the jury. Outside the jury's
presence, Christensen objected to the question and answer
which "inferred that the defendant has not taken steps
to prove his own innocence." Christensen argued the
testimony violated the district court's ruling in a
motion in limine and constituted "a direct comment on
the defendant's presumption of innocence and the burden
of proof in this case." In light of the statement,
Christensen said that the court could not "unring the
bell." He moved for a mistrial. The State responded that
the questioning did not cross the line, that the answer was
not clear, and in any event, that a curative instruction
would be sufficient to cure any error.
district court concluded that the questioning did not violate
the motion in limine but did have the implication that the
defendant has an obligation to prove his innocence. This, the
court said, was improper. The court determined that rather
than grant a mistrial, it would provide the jury with a
the jury returned to the courtroom, the district court told
There was . . . a question by [the prosecution] to the effect
that [items of evidence] were available for someone else to
test them; is that right? And the answer was yes. At that
time there was the objection made. I will tell you now that
line of questioning was improper because in my opinion that
reversed the roles that have been clearly stated to you
several times now by suggesting that the defendant somehow
has an obligation to prove his innocence. We've told you
many, many times, including in our preliminary instructions
that that is not the case. So, at this point in time, I am
directing you to disregard that line of questioning and
disregard those answers because, again, those were improper.
Understood? Everybody please acknowledge. I'll
acknowledge that all members of the jury have confirmed their
State also called DCI investigator Peter Wagner as a witness.
Wagner testified he used a metal detector to search for shell
casings on the Christensen farm to determine where
Bortvit's fatal injuries were inflicted. Wagner offered
inconsistent testimony on cross-examination as to whether a
metal detector had, in fact, been used. Wagner acknowledged
that he stated in a pretrial deposition that he was unsure
whether a metal detector was used. On redirect, however,
Wagner claimed that he had spoken with another crime scene
investigator, Keri Davis, during a lunch recess and that she
told him a metal detector had, in fact, been used.
the redirect examination, Christensen's counsel contacted
Davis, who confirmed she had talked with Wagner but told him
that a metal detector was not used at the scene because the
middle rod of the detector was missing. Christensen's
counsel moved for a mistrial, asserting the State had
introduced false testimony.
district court had Davis testify by phone in chambers. She
confirmed what defense counsel had told the court, namely,
that the metal detector was not used, that she had not told
Wagner the metal detector was used, and that she had not told
Wagner her deposition testimony to that effect was incorrect.
district court did not grant Christensen's motion for
mistrial. Yet, the district court was plainly concerned. In
chambers outside the presence of the jury, the district court
stated that it did not find Wagner "intentionally
falsif[ied]" his testimony but that it "borders on
reckless because it strictly was an opinion that he reached
based on his discussions with [Davis]." The district
court advised Wagner that "[he] came very close to
having recklessly offered false testimony here" and that
he should be "very careful" when he phrased his
answers to questions.
the jury returned to the courtroom, the district court
addressed the question of Wagner's testimony. The
district court noted that Wagner had provided testimony
concerning statements attributed to Keri Davis, a fellow
investigator at the scene, which Wagner attributed to her
from a conversation between the two of them made over the
lunch recess. The district court then stated,
As those statements currently are in the record, I believe
they could easily be construed by you as somewhat misleading,
and so at my request and at my direction, the state is going
to recall Mr. Wagner to further clarify and explain that
to the court's instructions, Wagner was recalled as a
witness. Wagner testified that Davis had told him the metal
detector was broken at the scene. Because the broken metal
detector was at the scene, Wagner testified he assumed that
Davis remembered him using it but she did not say that in the
conversation. Yet, Wagner insisted that he, in fact, used the
metal detector at the scene although its extension piece was
raised the question of prosecutorial misconduct in his motion
for a new trial. The district court denied the motion.
Jury Questions During Deliberations.
the jury commenced deliberations on June 30, the jury asked
the district court for clarification of the court's
instructions. Specifically, the jury asked, "Could we
have further instructions on malice aforethought?" The
parties agreed the proper response to this question by the
district court should simply be to instruct the jury to
follow the instructions previously given.
1, the jury sent a second note stating, "We are stuck
between two verdicts and need to know what our options
are." With the agreement of the parties, the district
court responded they should continue to deliberate if they
believed it would be productive in reaching a unanimous
Motion for a New Trial Based on Jury Misconduct and
the jury returned its verdict, Christensen learned about a
Facebook post by "E'ville Amy" made public
while the case was still before the jury. In order to
understand the context, we reproduce the entirety of the
Facebook post in the record:
There is a lot of anger expressed on this page at the delay
in verdict and the possible reasons for the delay. I was told
a couple of times at downtown market tonight that there's
rumors of a possible riot if it's not a verdict of
guilty: first degree murder.
I don't know if the rumors have any substance but I want
to use this platform you have grown around my reporting here
to say: please. do. not. do. this. This community can not
sustain a riot right now. (To be clear, there's never a
good time to riot. Peaceful demonstration against injustice ~
yes. That's an inalienable right as an American. But how
often have these things become anything but peaceful in our
It won't return Thomas Bortvit to us. It won't bring
the clock back to June 5 before the chain of events that
caused the shooting. It won't change the fact that
another son of our community will go away for a long time.
You may in a certain scenario believe it's not long
enough, but who can take a stopwatch to the pain of loss-of a
life and of what could have been.
If you think some might consider rioting, use your influence
to stop them.
It won't bring Thomas back. Alternatively, from what
I've observed, being kind to one another will let a
little sliver of his spirit shine through, if just for a
We have to live here as family and community for years to
come. The only way I can see for the ripped apart places to
be whole again is love, peace, compassion, kindness, and
moved for a poll of the jury to determine whether the jury
verdict might have been tainted by exposure to the Facebook
posting or other outside influences. The district court
granted the motion. The district court held proceedings to
poll the jury on October 18, 2018, more than three months
after the jury rendered its verdict.
Evidence adduced at jury poll.
the poll, each juror was asked whether they heard or saw any
comments in the news media, from social media like Facebook,
or from friends in the community that there might be some
sort of riot or violence if Christensen was not found guilty
of a certain offense. They were also asked whether they heard
any discussion by other jurors about a potential riot.
Finally, if the answer was yes, the jurors were asked when
they heard the discussion or commentary.
first juror polled, S.G., when asked whether she heard before
the jury reached its verdict of a threat of some sort of riot
or violence or some kind of public disturbance if Christensen
was not found guilty of something, testified, "No, sir,
I didn't hear it before we reached our verdict, no."
When asked if other jurors made comments along those lines,
S.G. stated, "Not that I can recall, no." When
pressed, S.G. again stated, "I don't think that it
was mentioned before we reached our verdict that I know
of." When asked if there was a possibility that such a
statement was made by another juror before the verdict was
rendered, S.G. testified, "I'm going to say no,
there wasn't any that I -- no, not even a possibility in
second juror, B.W., testified that he personally did not see
or hear anything related to violence outside the jury room
but that "[he] did hear in the jury room that some
people had seen it on Facebook." When asked what
specifically came up, B.W. stated, "[T]here were some
threats against the jury depending on what -- whatever
decision was made" and that jurors "just said that
there are people threatening the jury." B.W. stated the
statements were made by two female jurors. When asked at what
point in the proceedings the statements were made, B.W.
I would say it wasn't part of our proceedings at all, you
know, as far as the decision we reached, but it was said
after that basically hey, could we get somebody to walk us to
our vehicles because some of the jurors were feeling like
there was, you know, obviously tension in the courtroom, but
also that they had seen some things on Facebook.
in response to a question about whether the threats concerned
a particular verdict, B.W. replied,
That's a really good question. I don't think it was
dependent on what specific decision was made by the jury,
just that there were people on both sides of the issue about
whatever the decision would be made, and so that had an
impact on, you know, the jury feeling safe.
third juror, M.S., testified to a lack of knowledge about any
possible threat of violence "until after the decision
was made." According to M.S., she learned of the threat
of violence as an explanation for why the jury was assisted
out of the courthouse. M.S. recalled, however, that a comment
in the jury room "had been mentioned a few days
earlier." M.S. recalled that "the person talked to
the judge about it." When the court advised M.S. that it
did not remember such a conversation, the juror responded,
"[M]aybe we just discussed that maybe we should."
M.S. did not remember who the juror was, but testified it was
a female juror who "had been told that it was all over
Facebook" and who said "[s]omething to the effect
that her granddaughter had read it on Facebook." When
asked if the comment was made at the conclusion of the
evidence, while the jury was deliberating, or before that
time, the juror responded, "before that time" and
during the course of the trial.
fourth juror, K.K., testified that she had heard "there
had been talk about a riot if [Christensen] wasn't found
guilty." When asked where she heard that, she stated,
"I just heard it somewhere. I don't know
where." She also stated that at the time, she thought it
"sounded ridiculous and that was it." She indicated
she heard the comment sometime during the trial. She
testified that she heard it out in the public somewhere, that
the comment was not directed at her, and that she did not
share what she heard with the jury. When asked if she heard
other members of the jury talking about something similar,
she responded, "Not that I recall."
fifth juror, T.L., testified that she did not hear of a
threat of violence outside the jury room but that one of the
other jurors made a comment that "they heard that if
[the jury] didn't vote for first degree murder that there
was going to be -- people were going to be mad or be outside
the courthouse, something to that effect." She did not
remember when the comment was made or how many persons heard
the comment. She said it was "fairly dismissed."
sixth juror, J.A., testified that she had not heard of the
threat of violence outside the jury room but that it was
brought up by a jury member. According to J.A., a juror
stated that "someone had told them that if it wasn't
first degree that there would be a riot." J.A. recalled
the comment was made "after we had made our
verdict" but before the verdict was announced in the
seventh juror, K.B., testified that she had not heard of a
threat of violence and that she did not remember any such
discussion by the jury.
eighth juror, A.F., testified that she had not heard of the
threat of violence outside the jury room but recalled some
discussion after the decision had been made and announced in
the courtroom. She recalled, "I think somebody said
something about a post on Facebook." The juror recalled
that the commenting juror received the information about
Facebook from someone else. She believed that the
sheriff's office personnel escorted the jurors to their
cars because of what the juror had said or heard.
ninth juror and jury foreperson, G.S., did not hear of any
threat of violence outside the jury room. He did recall other
jurors stating that they had heard something of that nature.
He did not remember if the concern over safety occurred
before the verdict or after the verdict, "but the
concern was the safety of the jurors after the trial was
over." G.S. testified, "I took a survey or a vote
to see who was worried about their safety, and most people
raised their hands." When asked whether the source of
the concern was due to a threat or something else coming from
outside the courtroom, or instead was based on the emotional
nature of the proceeding, G.S. stated, "I would say the
emotional, yeah. It was highly charged. There was a lot of
emotional pressure in the jury room, as one might expect, and
that was bothersome."
tenth juror, R.D., testified that she did not hear of a
threat of violence outside the jury room. She also did not
remember any discussion of a threat of violence inside the
eleventh juror, M.H., testified that she did not hear of any
threat of violence outside the jury room, but remembers a
comment in the jury room that "there might be, like, a
possible riot at the courthouse." She testified that the
comment was made on Friday prior to the jury resuming
deliberations. M.H. recalled that the juror heard about the
threat in a telephone conversation, that the source of the
information was a family member, and that the juror's
comment about a possible riot occurred on a day before the
jury returned to the courthouse to deliberate.
twelfth juror, T.J., testified she did not hear outside the
jury room about a riot or some sort of public disturbance if
Christensen was not found guilty of something. She did recall
such a comment and discussion by the jury but only after the
verdict was announced. She testified that juror A.F. was very
emotional, was crying quite a bit, and stated that "she
had heard that somebody -- that there was a possible --going
to be a riot." T.J. stated, "[T]hat's all that
was said." As a result, T.J. testified the jury asked to
have deputies walk them out of the courthouse.
close of the polling of the jurors, the district court made a
statement on the record. The district court said statements
were made to the court after trial that the
jurors, based on their belief that this obviously was an
emotionally charged case from what they had seen in the
courtroom, their concerns over all of the family members and
the public that had been here during the course of the trial,
[and] that they could be confronted by those ...