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State v. Christensen

Supreme Court of Iowa

June 7, 2019

STATE OF IOWA, Appellee,

          On review from the Iowa Court of Appeals.

          Appeal from the Iowa District Court for Emmet County, David A. Lester, Judge.

         Defendant appeals from a district court judgment of second-degree murder.

          Leon F. Spies of Spies, Pavelich & Foley, Iowa City, for appellant.

          Thomas 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.

          APPEL, Justice.

         In this 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. Christensen appealed.

         We 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.

         I. Factual and Procedural Background.

         A. Introduction.

         Thomas 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.

         The 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 murder.

         Christensen 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.

         B. Selection of the Jury.

         Before 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.

         Counsel 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.

         A 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 cause.

         During 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 lot."

         During 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.

         At the 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."

         C. Instructions of the District Court Related to Extraneous Communications.

         After 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 . . . .

         Further, 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.

         D. Overview of Evidence Adduced at Christensen's Trial.

         On June 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.

         Bortvit's 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.

         Christensen 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.

         Late 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.

         The 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.

         After 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.

         A 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.

         An 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.

         The 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.

         E. Issue of Juror Disqualification.

         During 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."

         Law 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.

         The 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.

         Christensen 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."

         F. Overview of Alleged Prosecutorial Misconduct.

         1. Presumption of innocence/burden of proof.

         During 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 indicated."

         On 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.

         The 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 curative instruction.

         When the jury returned to the courtroom, the district court told the jury:

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 understanding.

         2. False testimony.

         The 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.

         After 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.

         The 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.

         The 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.

         When 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 testimony.

         Pursuant 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 missing.

         Christensen raised the question of prosecutorial misconduct in his motion for a new trial. The district court denied the motion.

         G. Jury Questions During Deliberations.

         After 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.

         On July 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 verdict.

         H. Motion for a New Trial Based on Jury Misconduct and Bias.

         1. Introduction.

         After 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 age?)
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 moment.
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 understanding.

         Christensen 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.

         2. Evidence adduced at jury poll.

         During 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.

         The 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 my mind."

         The 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. responded,

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.

         Further, 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.

         The 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.

         The 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."

         The 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."

         The 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 courtroom.

         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.

         The 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.

         The 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."

         The 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 jury room.

         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.

         The 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.

         At the 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 ...

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