State of Iowa v. Kenneth Osborne Ary , 2016 Iowa Sup. LEXIS 43 ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 14–1112
Filed April 8, 2016
STATE OF IOWA,
Appellee,
vs.
KENNETH OSBORNE ARY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Rebecca
Goodgame Ebinger (pretrial motions) and Lawrence P. McLellan (trial),
Judges.
The State seeks further review of a court of appeals decision
reversing a defendant’s criminal conviction. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN
PART AND REVERSED IN PART; CASE REMANDED WITH
DIRECTIONS.
Patrick W. O’Bryan, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney
General, John P. Sarcone, County Attorney, and Daniel Voogt, Assistant
County Attorney, for appellee.
2
WIGGINS, Justice.
A defendant appealed his conviction following a jury trial on three
counts of delivery of a controlled substance in violation of Iowa Code
section 124.401(1)(c)(3) (2013). We transferred the case to the court of
appeals. The court of appeals reversed the conviction on the ground the
defendant’s constitutional right to a fair trial by an impartial jury was
violated when he was convicted by jurors who heard statements a
prospective juror made during voir dire. The court of appeals thus
remanded the case to the district court for a new trial without addressing
the defendant’s remaining claims. We granted the State’s application for
further review.
On further review, we conclude the district court did not deprive
the defendant of an impartial jury or abuse its discretion by declining to
hold a hearing to permit the defendant to show cause for missing an
extended discovery and deposition deadline. In addition, we conclude we
are unable to decide the defendant’s claim of ineffective assistance of
counsel. Finally, we agree with the State that the district court applied
the wrong standard in ruling on the defendant’s motion for new trial on
the ground the verdicts were contrary to the weight of the evidence.
Accordingly, we vacate the decision of the court of appeals, reverse the
district court judgment on the motion for new trial on the ground the
verdicts were contrary to the weight of the evidence, and remand the case
with instructions. We affirm the district court judgment in all other
respects.
I. Background Facts and Proceedings.
A jury convicted Kenneth Osborne Ary of three counts of delivery of
a controlled substance in violation of Iowa Code section 124.401(1)(c)(3)
3
on June 4, 2014. However, the claims before us on further review
concern primarily the events leading up to his trial.
The State charged Ary with three counts of delivery of a controlled
substance on October 28, 2013. On November 20, the district court
arraigned Ary, scheduled a pretrial conference for December 19, and set
trial for January 15. The court appointed counsel to assist him on
November 25. 1
During the pretrial conference on December 19, Ary waived his
right to a speedy trial. The court also scheduled a second pretrial
conference for February 12 and rescheduled trial for February 24. The
same day, the court issued a pretrial conference order stating Ary must
file any motions he wished to file within forty days of his arraignment.
Because the court arraigned Ary on November 20, his deadline for taking
depositions as of right expired December 20, and his deadline for filing
pretrial motions other than motions in limine expired December 30. See
Iowa Rs. Crim. P. 2.11(4), .13(6).
During the second pretrial conference on February 12, the court
rescheduled trial for June 2. That day, the court also issued a status
conference order indicating it would grant no additional continuances of
the trial date assuming witness availability.
On February 25, Ary filed a handwritten pro se motion to produce.
The court issued an order on March 6 stating it would withhold its ruling
on the motion until defense counsel had an opportunity to consult with
Ary.
On March 11, defense counsel filed a motion to produce and a
motion for good cause for taking depositions past the required time. In
1We note Ary’s appellate counsel did not serve as his trial counsel.
4
the latter motion, counsel acknowledged the deadline for taking
depositions had expired December 20 and asserted taking depositions
past the deadline would not prejudice or inconvenience the State. The
State filed a response to the motion to produce on March 14, indicating it
would provide mandatory discovery and permit discretionary discovery.
But the State filed a resistance to the motion for good cause on April 11,
arguing the motion for good cause for taking depositions past the
required time set forth no good cause for the untimely filing of the
deposition request or permitting late discover of any type.
The court heard arguments on the pending motions on April 22.
During the hearing, defense counsel pointed out that after the court
appointed counsel to assist Ary on November 25, Ary had no opportunity
to meet with or speak to his appointed counsel until December 19.
Thus, Ary did not meet his appointed counsel until just before his
deadline for taking depositions as a matter of right expired on
December 20 and his deadline for filing pretrial motions other than
motions in limine expired on December 30. See id. Counsel further
noted that because his office had only recently assigned him to the case,
he remained uncertain as to whether depositions were appropriate.
However, counsel did not identify any caselaw suggesting these facts
amounted to good cause for missing the deadline for filing a pretrial
motion seeking discretionary discovery or the deadline for taking
depositions.
The court concluded there was good cause to grant defense
counsel one week to determine whether depositions were needed or
further discovery was appropriate. The court ordered counsel to file
written notice as to whether he needed to conduct depositions or further
discovery by April 29. The court also reminded counsel the trial was still
5
set for June 2 and it would not grant any further continuances assuming
witness availability. Finally, during the hearing and in a writing filed
later the same day, Ary reasserted his right to a speedy trial.
The following day, the court issued a written order reiterating the
April 29 deadline for filing the written notice. The order stated upon
receipt of the notice, the court would promptly establish deadlines
associated with any additional discovery sought.
On April 30, one day after the extended deadline expired, defense
counsel filed a notice of intent to take depositions and seek discovery.
Two weeks later, the court had not yet ruled as to whether it would
permit further discovery. On May 14, defense counsel filed a motion to
determine the status of the pending deposition and discovery requests.
In the motion, defense counsel indicated he realized too late in the day
on April 29 that he was unable to meet the extended deadline the court
had set during the April 22 hearing. Defense counsel also acknowledged
the State opposed the court granting the defendant leave to take
depositions and seek further discovery due to this technical violation of
the court order.
On May 23, the court denied the pending deposition and discovery
requests and declined to extend the deadline or permit Ary to conduct
depositions or seek further discovery.
Jury selection for the trial began on June 2. Early on during voir
dire, the prosecutor questioned the prospective jurors about how they
determine whether someone is telling the truth, asking, “Have you ever
been in a position where someone has told you something and you had
to decide whether you believe them or not?” Panel member J.W. raised
his hand, and the prosecutor called on him. J.W. responded with the
following information:
6
I’m a pastor, and I’ve dealt with all kinds of things with that.
So, you know, there’s people that are pretty good liars. And
you know that they’ve done something and you—they’re
pretty good at spinning the truth, so to speak, you know. So
I’ve dealt with a lot with people who, you know—you get a lot
of people that come to your church and they’re hurting, you
know, and they have issues, whether it be with alcohol,
drinking and getting in trouble driving or drugs and are
selling drugs. I’ve dealt with that. Had a lot of people that
I’ve dealt with that have gone to jail. I’ve got people that
have been accused of stealing even to an amount of felony
and somehow they spun their way out of it.
I told [fellow panel member J.K.] before I came in here I
didn’t know what the case was but I said, if it’s involving
drugs, I’d probably think the person is guilty and that’s only
because of my personal experience because I realize that a
person has a right to defend themselves and go through the
process, but I think I’m fairly prejudiced on this, any kind of
a drug case with all of my experiences because even people
that I know come from good families, they try to pretend
they’re innocent. I know the inside story, and I know they’re
not. So when it comes to this type of thing with Des Moines
Police who arrest the person on drug charges, it appears
there’s guilt.
Another panel member, A.H., spoke up in response to J.W.,
admitting she had “the exact opposite prejudice” because she believed
most drugs should be legal.
The prosecutor did not focus on what A.H. said. Instead, he
turned back to J.W. and asked, “[W]hen you reach that conclusion in
your own mind that this person has done something or they haven’t,
they’re telling you the truth or they’re not, how do you do that?” J.W.
responded,
Well, I mean, you know, you talk to them, and, you know,
you know—you’re fairly certain what’s going on.
Like, I’ll give you an example. We had a student from the
time they were in fifth grade, they were stealing, and I knew
they were stealing, so I had to set them up. We had a little
pop can to get pop, and we knew that—you’re supposed to
drop a buck in the refrigerator can and take the bottle. So
this kid would come by and he would, you know, come out
with the pop, and, you know, we kind of watched and we
started noticing, we don’t think he’s paying for this. In fact,
7
we think he’s taking money out of the can. So we marked
the—we took the serial numbers off of a $5 bill before that
afternoon when he got out of school, and this is right on his
route home. So we dropped it in the can. So when he went
in there, we went in behind him and, sure enough, the
suspicion was true.
So all through the years he was always the one identifiable
person constantly. Every time there was something
missing—so the latest case was he was stealing from his
mother. He stole from families in the church, and he denied
it every time. He always spun it. And then he got down to
where he took $1300. And he admitted it; went to court, got
a little slap, nothing. And his mother was the one that
turned him in and wished he’d have been sent off because
she wants him out of the house. He’s out of control, and
he’s just—you know, he’s a kid that just spins stuff.
And so when you know a person or when you’re around—
when you work with people a lot, you can detect what’s going
on. I mean, I know that I’m bent, I’m prejudiced because I
have never pastored a person that was accused of any type
of drug possession, usage or delivery or selling that I didn’t
know that they were guilty, and I found out and knew they
were guilty because I know the people that know them and
know that they went—they spun their story. They got out of
court. They didn’t go to prison. They came back another
time, spun out, didn’t go to prison, and then finally, they
ended up in jail and they served two terms or probably 20
some years, you know, because it got worse and got worse
and got worse.
So I’m just telling you up front that I am—I—while I want to
believe a person is innocent until proven guilty, I on the
other hand don’t think that drugs should be legalized
because it destroys people. It’s so addictive and it ruins
their lives, so—and I’ve worked with too many people every
day, day in, day out, so—I pastor over 5000 people, have a
staff of ten pastors.
J.W. continued uninterrupted, explaining he was missing a funeral
to be at the courthouse. He then concluded his response by bringing up
the conversation he had with fellow panel member J.K. when the
prospective jurors were lined up in the hallway waiting to enter the
courtroom before jury selection began. He said,
So I’m out there telling her, I hope it’s not a drug case
because I’m going to go in there—we were laughing about it a
8
little bit because of my attitude. But it’s not because I’m just
a jerk. It’s because of my experiences. I’m sorry. It’s just—
if there’s a smoking gun, then there’s a problem there.
The prosecutor responded to J.W.’s apology for his attitude toward those
accused of drug-related crimes by reassuring him, “[T]here’s nothing to
be sorry about that.”
A moment later, the prosecutor again asked J.W. how he forms an
opinion as to whether a person is telling the truth:
[O]ne of the things that you told us was you may know the
person or you may know people who know that person, or in
the situation with the can, the pop can, the pop money,
there were other facts that you believed that helped you
confirm your suspicion. Is that right?
J.W. responded, “Right.”
The prosecutor then directed the following comment to the entire
panel:
So one of the points I wanted to raise is, while you all are
fish out of water today and for the part of this process, these
are the kinds of processes, the kinds of decisions, not the
same decisions but the kinds of decisions that you make
every day. It may be in an educational situation. It may be
with your own children. It may be with people you pastor. It
may be in the insurance business. Whatever the case may
be, we make decisions using our brains in the same fashion.
Different topics but the same kind of process.
Minutes later, the prosecutor turned to prospective juror A.H. and said,
So this is a drug case. And people have different views.
[A.H.], I think you said that you believed—and I don’t want to
put words in your mouth, but you said some or most or
some drugs anyway should be legal. Now [J.W.] or myself, if
we were sitting around at Starbucks having a cup of coffee,
may have a philosophical discussion with you about that.
We may disagree.
A.H. nodded, and the prosecutor continued,
But this is a different context again. As of right now—and
this particular case involves what’s commonly called crack
cocaine. But really, whether it’s marijuana or some other
drug, right now in the state of Iowa, you can’t possess those
9
drugs; you can’t use those drugs; you can’t sell those drugs;
you can’t make those drugs. You understand that, right?
A.H. responded, “I understand.” The prosecutor then asked A.H. if she
could set aside her personal opinion and follow a jury instruction from
the judge. A.H. indicated she would, but she added, “It would go against
my conscience.” When asked if she understood that jurors should not
ignore the facts or the law in reaching a verdict, A.H. confirmed she did.
Following this exchange, the prosecutor explained to the jurors
that ignoring the facts or the law in reaching a verdict is called jury
nullification. In his words,
Jury nullification involves jurors who believe because they’re
jurors they can disregard facts; they can disregard what the
law is and just do whatever you want because you’re a juror.
That’s not how we do it here. Does anybody feel that way,
that’s how they’re going to handle a case like this, relating to
the evidence?
J.W. immediately responded to the prosecutor’s explanation:
I’m not sure I understand your question. If you’re asking the
question whether or not I think that I could be impartial or
the fact that I could know what the law is and what I’m
supposed to do and actually be able to do that, I really—I do
not think I can, I mean, honestly. And that’s to be fair to the
gentleman being accused in the sense that, you know, I’m
going to have a very difficult time with that because I’ve
never known anyone where—and, I mean, you know, a lot of
situations.
I mean, I’m 61. I’ve been in this thing for 40 years, and I’ve
worked with lots and lots of people, and I’ve never known a
case where someone was falsely accused of possession or
using or delivery; never once when it wasn’t true. Never.
I have 20 law officers in my congregation. And, you know,
Mark Wilson, wore [a badge] for years, my best friend. And I
don’t—I just have to say that I’m really going to have a hard
time because I know the evidence is going to be both sides,
and I’m going to be bent toward hearing the State. And
that’s fine, I’ll do it, but I’m just telling you. This same kid,
last Saturday, stole from his best friend’s grandmother 60
bucks out of her purse. That’s the type of thing I’m talking
10
about. When they get off and they get off and they get off
and they spin off, technicality, they’re right back at it again.
Everyone that ever got off of a drug charge was right back
out and doing it, and they never learned. And I don’t know
what the answer is because I’m not sure putting people in
jail over drug charges, at least doing—you know, actually
using the drugs, but when you’re delivering it or making it or
selling it is a different program.
When J.W. finished speaking, the prosecutor explained to him the
jurors would only determine whether the defendant was guilty, not what
the punishment was. J.W. responded by saying, “I don’t even know the
law. I don’t know what would happen; but one thing I’ve witnessed is an
awful lot of guilty people that get off.”
The prosecutor then called on A.H., who had raised her hand to
explain her “main objection” to the illegality of drugs was that “the legal
ramifications” of drug convictions are devastating and “sometimes more
troublesome than the actual symptoms of some drugs that people do.”
Before A.H. finished speaking, J.W. interrupted, saying,
Excuse me. But the other side of that is kids who are being
given stuff and influenced with stuff, good kids from good
families that get ruined by people who pedal this for their
profit. That’s an issue, and that’s why I think the law has to
be stiff on this thing.
The prosecutor thereafter explained the concept of the burden of
proof to the panel. After distinguishing between the concept of the
burden of proof and the reasonable-doubt standard the impaneled jurors
would have to apply, the prosecutor asked the panel members what they
think of when they hear the phrase “beyond a reasonable doubt.” The
prosecutor called on one prospective juror, who expressed the opinion
that the phrase means “you can’t have any doubt in your mind
whatsoever” to find a defendant guilty of a crime. The prosecutor next
called on J.W., who explained his contrary view as follows: “Reasonable.
11
Reasonable doubt. Not absolute, certain, totally positive, convinced 100
million percent, because nobody would ever be found guilty. Because
unless I was there and saw him, I couldn’t find him guilty in this case.”
Minutes later, the court recessed for a lunch break. After the
prospective jurors departed from the courtroom, defense counsel moved
to disqualify the entire jury panel, arguing J.W.’s statements had tainted
the other prospective jurors and prejudiced them against Ary. The
prosecutor resisted the motion, arguing there was no evidence J.W. had
tainted the panel and no basis to discharge the entire panel or declare a
mistrial. The judge denied the motion, acknowledging J.W. made a
number of comments but concluding they had not tainted the panel to
the point that the court was required to grant a mistrial.
After counsel and the judge returned from lunch, defense counsel
moved to strike J.W. for cause outside the presence of the panel. The
judge responded,
[Defense counsel] must have been reading my mind over the
noon hour because I had some concerns with regard to
[J.W.’s] comments. While I denied the motion for mistrial, I
am concerned that what he might say this afternoon that
that may go beyond where he is today in his comments and
may taint the jury pool with comments later this afternoon.
In light of his concern that J.W. might say something that would taint
the other prospective jurors during the remaining voir dire of the panel,
the judge agreed to bring J.W. into the courtroom so counsel could
question him outside the presence of the other panel members.
During individual voir dire, J.W. once again discussed his
conversation with fellow panel member J.K. outside the courtroom. After
several minutes of questioning, the judge granted defense counsel’s
motion to strike J.W. for cause outside the presence of the panel.
12
The prosecutor then asked to conduct individual voir dire on
several other prospective jurors based on responses to questions
appearing on their juror questionnaires. Specifically, the prosecutor
requested individual voir dire with one prospective juror who had
suffered multiple head traumas, three prospective jurors who had prior
convictions, one prospective juror who had a connection to another
pending case, and one prospective juror whose family member had
testified in a murder trial. Additionally, the prosecutor requested
individual voir dire with prospective jurors A.H. and J.K. The court
granted all the prosecutor’s requests for individual voir dire with
particular panel members.
During individual voir dire with prospective juror J.K., the
prosecutor asked her whether the comments J.W. made outside the
courtroom might affect her ability to be a fair and impartial juror. J.K.
answered they would not. At no other point during jury selection did the
prosecutor or defense counsel ask any other prospective juror whether
any of the statements J.W. made might affect his or her ability to be fair
or impartial. Defense counsel never requested individual voir dire with
any of the prospective jurors to explore whether the statements J.W.
made might influence them in any way.
Once counsel completed the individual voir dire, the judge
summoned all the prospective jurors back into the courtroom, and the
prosecutor resumed voir dire of the entire panel. Shortly thereafter, the
prosecutor moved to remove A.H. for cause in the presence of the
remaining panel members. The judge granted the motion, also in the
presence of the other panel members. Defense counsel never asked the
court to inform the panel it dismissed J.W. for cause during individual
voir dire.
13
Once the prosecutor finished questioning the panel members, the
judge gave defense counsel an opportunity to do so. Counsel then
exercised their strikes and selected the panel members who would serve
on the jury. The impaneled jurors included just three people questioned
during individual voir dire, including J.K. None of the impaneled jurors
other than J.K. were ever asked by defense counsel whether they could
be impartial or whether any of the statements J.W. made might affect
their ability to be impartial.
Over two days of trial, the jurors heard testimony by eight
Des Moines police officers and a confidential informant. The jury
returned guilty verdicts on each of the three counts of delivery of a
controlled substance with which the State had charged Ary, each count
relating to one of three controlled drug buys the testimony indicated the
confidential informant had completed for the officers in the fall of 2013.
Before his sentencing, Ary filed a combined motion for a new trial
and motion in arrest of judgment requesting the court to order a new
trial. In the motion, Ary argued the verdicts were contrary to the
evidence and asserted a structural error had deprived him of a fair and
impartial trial. See id. 2.24. In addition, Ary asserted the court
erroneously denied the motion he lodged during voir dire seeking
dismissal of the entire jury panel due to the statements J.W. made. In
support of this claim, defense counsel cited Mach v. Stewart, a case in
which the Ninth Circuit Court of Appeals concluded impaneling jurors
who heard a prospective juror’s expert-like statements during voir dire
violated a defendant’s right to an impartial jury under the Sixth
Amendment to the United States Constitution. 137 F.3d 630, 633 (9th
Cir. 1997).
14
The court denied the motion for a new trial on the ground the
verdicts were contrary to the weight of the evidence, concluding the jury
had been presented with sufficient evidence to support a guilty verdict on
each of the three delivery counts. The court also denied the motion for
new trial on the ground it deprived Ary of his right to an impartial jury by
impaneling jurors who heard the statements J.W. made.
Ary appealed, advancing the following arguments. First, Ary
contended the court erroneously denied his right to an impartial jury
under article I, section 10 of the Iowa Constitution and the Sixth
Amendment to the United States Constitution because the statements
J.W. made during jury selection had tainted the entire jury panel.
Second, Ary argued the court abused its discretion by denying his
deposition and discovery requests without conducting a hearing to
permit defense counsel to show cause for his failure to meet the deadline
the court set for filing the notice of intent to take depositions and seek
discovery. Third, Ary claimed he received ineffective assistance of
counsel because his counsel filed the notice of intent to take depositions
and seek discovery after the deadline for doing so had expired. Finally,
Ary argued the court erroneously applied the sufficiency-of-the-evidence
standard rather than the weight-of-the-evidence standard in denying his
motion for new trial on the ground the verdicts were contrary to the
evidence.
We transferred the case to the court of appeals. The court of
appeals reversed the conviction and remanded the case to the district
court for a new trial, concluding the district court had failed to take
adequate curative measures to ensure the impartiality of the prospective
jurors following the statements J.W. made during voir dire. Accordingly,
the court of appeals declined to address Ary’s remaining claims.
15
The State filed an application for further review, which we granted.
II. Issues.
The issues we consider in this appeal are as follows. First,
whether the district court denied Ary a fair trial by an impartial jury.
Second, whether the district court abused its discretion by declining to
set a hearing to permit defense counsel to show cause for missing the
extended discovery and deposition deadline. Third, whether Ary received
ineffective assistance of counsel when defense counsel filed the notice of
intent to take depositions and seek discovery after the deadline the
district court set for doing so had expired. Fourth, whether the district
court erroneously applied the incorrect standard in denying Ary’s motion
for new trial on the ground the verdicts were contrary to the weight of the
evidence.
III. Whether the District Court Denied Ary a Fair Trial By an
Impartial Jury.
A. Standard of Review. During voir dire, defense counsel moved
to disqualify the entire jury panel on the ground the statements J.W.
made prejudiced the other prospective jurors against Ary. The district
court concluded it was not obligated to grant the motion and denied it.
Because there was no procedural basis on which the court might have
been obligated to grant the motion, the constitutional basis for the claim
was obviously apparent. Accordingly, Ary has properly preserved both
his federal and state constitutional claims. See In re Det. of Hodges, 689
N.W.2d 467, 469–70 (Iowa 2004); State v. Hernandez-Lopez, 639 N.W.2d
226, 233 (Iowa 2002).
Ary contends the standard of review for his claim that the court
denied him a fair trial by an impartial jury is de novo. In its brief on
appeal, the State conceded the standard of review for this claim is
16
de novo. In its application for further review, however, the State argues
the proper standard is abuse of discretion. We have previously
considered claims arising in similar circumstances under both standards
of review. Compare State v. Gavin, 360 N.W.2d 817, 818 (Iowa 1985),
with State v. Staker, 220 N.W.2d 613, 617 (Iowa 1974). Because we
conclude we would reach the same conclusion applying either standard
of review, we need not decide which standard applies.
To preserve error on a constitutional claim, counsel should inform
the district court of the constitutional basis for any motion a party
makes. When a party raises only a specific federal constitutional basis
for a claim in district court and does not raise the question of ineffective
assistance of counsel on appeal, the parallel state constitutional question
is not preserved. State v. Prusha, 874 N.W.2d 627, 630 (2016). However,
when a party does not indicate the specific constitutional basis for a
claim to which parallel provisions of the federal and state constitutions
apply, we regard both the federal and state constitutional claims as
preserved. State v. DeWitt, 811 N.W.2d 460, 467 (Iowa 2012); State v.
Harrington, 805 N.W.2d 391, 393 n.3 (Iowa 2011); King v. State, 797
N.W.2d 565, 571 (Iowa 2011). When counsel does not advance a distinct
analytical framework under a parallel state constitutional provision, we
ordinarily exercise prudence by applying the federal framework to our
analysis of the state constitutional claim, but we may diverge from
federal caselaw in our application of that framework under the state
constitution. See In re Det. of Matlock, 860 N.W.2d 898, 903 (Iowa 2015);
State v. Short, 851 N.W.2d 474, 491 (Iowa 2014); State v. Baldon, 829
N.W.2d 785, 822–23 (Iowa 2013) (Appel, J., concurring specially); State v.
Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); Racing Ass’n of Cent. Iowa
v. Fitzgerald, 675 N.W.2d 1, 6–7 (Iowa 2004).
17
Because Ary did not advance a distinct analytical framework for
his claim under article I, section 10 of the Iowa Constitution, we apply
the federal framework applied to claims under the Sixth Amendment to
the United States Constitution in considering his state constitutional
claim.
B. Analysis. “Unquestionably, a person accused of committing a
crime has a fundamental right to a fair trial by an impartial jury whose
determination of guilt or innocence is based exclusively on evidence
admitted at trial.” State v. Frank, 298 N.W.2d 324, 326 (Iowa 1980). The
right to a criminal trial by an impartial jury is guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and
article I, sections 9 and 10 of the Iowa Constitution. See State v. Walters,
426 N.W.2d 136, 138 (Iowa 1988). The right to a fair trial by an
impartial jury is an essential requirement of due process. State v.
Siemer, 454 N.W.2d 857, 861 (Iowa 1990). However, as the United States
Supreme Court has acknowledged,
Impartiality is not a technical conception. It is a state
of mind. For the ascertainment of this mental attitude of
appropriate indifference, the Constitution lays down no
particular tests and procedure is not chained to any ancient
and artificial formula.
United States v. Wood, 299 U.S. 123, 145–46, 57 S. Ct. 177, 185, 81 L.
Ed. 78, 88 (1936).
Ary asserts the statements J.W. made during voir dire mirror those
the Ninth Circuit relied upon to conclude a trial court violated a
defendant’s right to an impartial jury in Mach. 137 F.3d at 631–33. In
that case, the Ninth Circuit considered a petition for habeas corpus filed
by a defendant convicted of sexual conduct with a minor. Id. at 631.
The defendant claimed a biased jury convicted him because an exchange
18
between the trial judge and a potential juror during voir dire
“impermissibly tainted the jury pool to the extent that the court should
have granted a mistrial.” Id. at 632. The potential juror who
participated in the exchange was a social worker employed by child
protective services. Id.
The exchange began when the potential juror told the judge “she
would have a difficult time being impartial given her line of work, and
that sexual assault had been confirmed in every case in which one of her
clients reported such an assault.” Id. The judge continued questioning
the potential juror in front of the entire jury panel, thereby eliciting three
additional statements from her “that she had never, in three years in her
position, become aware of a case in which a child had lied about being
sexually assaulted.” Id. The judge also elicited statements from the
potential juror indicating “she had taken child psychology courses and
worked with psychologists and psychiatrists” and “worked with children
as a social worker for the state for at least three years.” Id. at 633.
At one point, the judge warned the potential juror who made the
statements that she would have to determine whether the defendant was
guilty based on the evidence presented at trial if she served on the jury.
Id. When asked if she could do that, the potential juror stated she
“probably” could. Id. at 632. Nonetheless, she went on to make another
statement indicating “she had never known a child to lie about sexual
abuse.” Id. at 633. The judge then asked the other potential jurors if
any of them disagreed with that statement, and not a single potential
juror responded. Id. When the defendant moved for a mistrial on the
ground the entire panel had been tainted by the exchange, the court
denied the motion but struck the social worker for cause. Id. at 632.
19
The Ninth Circuit applied the following standard to determine
whether the court violated the defendant’s right to a fair trial by an
impartial jury under the federal constitution:
The Sixth Amendment right to jury trial “guarantees to
the criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors.” “Even if ‘only one juror is unduly biased
or prejudiced,’ the defendant is denied his constitutional
right to an impartial jury.” Due process requires that the
defendant be tried by a jury capable and willing to decide the
case solely on the evidence before it.
Id. at 633 (citations omitted) (first quoting Irvin v. Dowd, 366 U.S. 717,
722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961); then quoting
United States v. Eubanks, 591 F.2d 513, 517 (9th Cir. 1979)). Applying
this standard, the Ninth Circuit concluded that following the motion for
mistrial, at a minimum the judge “should have conducted further voir
dire to determine whether the panel had in fact been infected” by the
social worker’s expert-like statements. Id. Because the judge conducted
no additional voir dire to determine whether the statements affected the
other potential jurors, the Ninth Circuit presumed the statements had
biased at least one juror who convicted the defendant in violation of his
right to an impartial jury. Id.We find the voir dire in this case to be distinguishable from the voir
dire conducted in Mach. In Mach, neither the trial judge nor counsel
conducted voir dire to determine what effect, if any, the statements the
potential juror made might have had on the other potential jurors. In
contrast, the district court judge in this case acknowledged the
statements J.W. made could have affected the other panel members and
allowed counsel from both sides the opportunity to question the other
panel members individually to determine whether the statements had in
20
fact infected them. The subsequent individual voir dire revealed no bias
on the part of the other panel members.
Expressions of bias or prejudice by a single prospective juror
ordinarily do not constitute a sufficient ground for disqualification of an
entire jury panel. Staker, 220 N.W.2d at 616. However, we acknowledge
“remarks made during voir dire could become so inflammatory and
potentially prejudicial that an entire panel could be disqualified.” State
v. Misner, 410 N.W.2d 216, 220 (Iowa 1987) (emphasis added).
Nonetheless, the statements J.W. made in the presence of the other
prospective jurors in this case did not reference the defendant, convey
personal knowledge of the underlying facts at issue, or relay objective
data that might otherwise bear on the case. Considered in context, we
think it was clear that J.W. was expressing his strong personal opinions
regarding persons accused of drug crimes, not relaying objective data
concerning their credibility or likelihood of guilt. Under these
circumstances, we decline to presume the statements the prospective
jurors heard during voir dire affected their ability to be impartial.
Finally, we note we are unable tell from the record whether defense
counsel was satisfied the statements J.W. made did not taint the other
prospective jurors or whether he was simply ineffective. At no point
during the initial voir dire of the entire jury panel did defense counsel
ask to approach the bench or move to strike J.W. for cause. Rather, he
moved to disqualify the entire panel only after the court recessed for
lunch and moved to strike J.W. for cause just before voir dire resumed.
In addition, at no point did defense counsel request individual voir dire
with the other prospective jurors to determine whether J.W.’s statements
might affect their ability to be impartial.
21
Notwithstanding these failures, defense counsel had the
opportunity at least to begin exploring whether the statements might
have affected the other prospective jurors when the court granted the
prosecutor’s request to question eight panel members individually. But
defense counsel declined to ask any of those panel members whether the
statements J.W. made might influence them in any way. Similarly, once
the court reconvened the entire panel, defense counsel did not ask the
court to inform the panel it dismissed J.W. for cause during individual
voir dire or ask the panel members whether the statements J.W. made
might affect them.
Had defense counsel requested the court to intervene sooner or by
different means, the court could have struck J.W. for cause before he
made some of the concerning statements, issued a cautionary or curative
instruction to the panel, or permitted counsel to individually question
every panel member to ensure the statements did not affect them. See,
e.g., United States v. Lussier, 423 F.3d 838, 840 (8th Cir. 2005).
Similarly, had defense counsel taken advantage of readily available
avenues for exploring whether the statements affected the other panel
members, he might have been able to discern whether the statements
actually had any impact. The purpose of voir dire is to give counsel an
opportunity to discover information that may be useful in exercising
peremptory strikes and challenging jurors for cause, thereby ensuring
the selection of jurors who will consider the facts presented during trial
fairly and impartially. See State v. Tubbs, 690 N.W.2d 911, 915 (Iowa
2005); State v. Proctor, 585 N.W.2d 841, 844–45 (Iowa 1998); see also
Mu’Min v. Virginia, 500 U.S. 415, 431, 111 S. Ct. 1899, 1908, 114
L. Ed. 2d 493, 509 (1991). However, voir dire cannot serve its purpose
effectively in the absence of effective counsel.
22
Accordingly, we conclude the statements J.W. made during voir
dire were not so prejudicial as to warrant a presumption they tainted at
least one member of the jury panel. We find no basis for reversing the
conviction based on the district court’s denial of Ary’s motion to
disqualify the entire jury panel or a violation of his right to a fair trial by
an impartial jury.
IV. Whether the District Court Abused Its Discretion by
Declining to Hold a Hearing to Allow Ary to Show Cause For Missing
the Extended Deadline Set by the District Court.
A. Standard of Review. We review district court rulings denying
an extension of a discovery deadline for an abuse of discretion. Nedved
v. Welch, 585 N.W.2d 238, 239 (Iowa 1998). The State contends Ary did
not preserve error as to this claim because Ary never asserted good cause
for missing the deadline before the district court. For purposes of our
analysis, we assume without deciding Ary preserved error. See State v.
Clark, 814 N.W.2d 551, 563 & n.8 (Iowa 2012).
B. Analysis. Discovery matters are ordinarily committed to the
sound discretion of the trial court. State v. Gates, 306 N.W.2d 720, 725
(Iowa 1981). We will find a discovery ruling indicates an abuse of
discretion only when it reflects an exercise of discretion on grounds
clearly untenable or to an extent clearly unreasonable. Nedved, 585
N.W.2d at 239–40. The party challenging the district court’s
administration of the discovery rules has the burden to prove an abuse of
discretion occurred. State v. Grimme, 338 N.W.2d 142, 144 (Iowa 1983).
Reversal on the ground the district court abused its discretion in ruling
on a discovery matter is appropriate only if the party challenging the
ruling demonstrates the abuse of discretion prejudiced the substantial
rights of the defendant. Gates, 306 N.W.2d at 725.
23
The Iowa Rules of Criminal Procedure require a defendant to file a
request for discovery “no later than 40 days after arraignment.” Iowa R.
Crim. P. 2.11(4); see State v. Ortiz, 766 N.W.2d 244, 250 (Iowa 2009).
Thus, a defendant’s failure to file a discovery request by this deadline
generally constitutes a waiver of his or her right to depose witnesses or
seek discovery, “but the court, for good cause shown, may grant relief
from such waiver.” Iowa R. Crim. P. 2.11(3). Similarly, the rules permit
a defendant to depose State witnesses within thirty days of arraignment
as of right, but the district court may extend that deadline for good cause
shown. Id. r. 2.13(1), (6); Grimme, 338 N.W.2d at 145.
Because the court arraigned Ary on November 11, he was entitled
to take depositions as of right until December 20 and file discretionary
discovery requests until December 30. Nevertheless, Ary did not file his
pro se motion to produce until February 25, and his counsel did not file
the motion to produce and motion for good cause for taking depositions
past the required time until March 11. During a hearing on April 22, the
district court in its discretion found good cause existed to grant defense
counsel one week to determine whether Ary would seek depositions or
additional discovery.
Despite the April 29 deadline, defense counsel did not file a notice
of intent to take depositions and seek discovery until April 30. At that
time, defense counsel did not acknowledge the untimely filing in any way
before or after filing the notice, despite the looming trial date and the
court’s stated intention to promptly establish further discovery deadlines
upon its receipt. In fact, defense counsel only acknowledged the
untimely filing when he sought clarification regarding the status of the
pending deposition and discovery requests on May 14, at which time he
made no effort to show good cause for missing the extended deadline or
24
provide the court with any specific information regarding the discovery or
depositions sought. By that point, the trial date was less than three
weeks away, and the State opposed granting the pending requests.
When the district court denied the pending deposition and
discovery requests on May 23, it emphasized defense counsel did not
request an extension of the April 29 deadline, bring the untimeliness of
the filing to the attention of the court, or show good cause to excuse the
untimeliness. The court further emphasized defense counsel failed to
specify the particular individuals Ary intended to depose or what
additional discovery he sought in the notice even though Ary had
reasserted his right to a speedy trial. Accordingly, the court declined to
exercise its discretion to further extend the discovery and deposition
deadlines or set a hearing to allow Ary to show good cause for missing
the April 29 deadline.
We note defense counsel could have filed the notice of intent to
take depositions and seek discovery with a judge in the evening after
hours. Cf. Iowa R. Civ. P. 1.442(5). Short of that, counsel should have
forthrightly informed the judge of his failure to meet the deadline the
following day when he filed the notice at 8:30 a.m. Instead, he waited
weeks before acknowledging the missed deadline in a status request.
We also note defense counsel had reason to know the court would
be hesitant to extend the April 29 deadline. During the hearing in which
the district court set that deadline, counsel requested two weeks to
determine whether to take depositions or seek additional discovery. Yet
the court granted only one week and warned it would not continue the
trial to permit further depositions or discovery.
Notwithstanding this warning, counsel waited until the last
moment to assess whether further discovery or depositions would aid Ary
25
in his defense and provided the court no information to help it establish
additional deadlines in either the notice or the status request. When
counsel finally acknowledged the late filing in the status request, the
only explanation he cited for its untimeliness was his own failure to
realize the deadline had arrived until it was too late to submit the notice
in a timely manner. We do not find this to be good cause.
Because defense counsel missed a deadline the district court had
already extended and failed to bring the late filing to its immediate
attention despite the defendant’s reassertion of his right to a speedy trial,
we conclude the court did not abuse its discretion by failing to permit
defense counsel to show good cause for missing the April 29 deadline.
See Clark, 814 N.W.2d at 563–64. “While we might not have made the
same call had the decision been ours, we cannot say it was an abuse of
discretion.” Id. at 564.
However, we caution that in exercising their discretionary
authority over the administration of discovery matters, “courts must
strike a careful balance between the interest in economizing discovery
and the rights afforded criminal defendants.” Gates, 306 N.W.2d at 726.
Furthermore, we note the State shares with every criminal defendant an
interest in the fair and accurate adjudication of his or her criminal
proceeding. See Ake v. Oklahoma, 470 U.S. 68, 79, 105 S. Ct. 1087,
1094, 84 L. Ed. 2d 53, 63–64 (1985). Ever mindful of the delicate
decisions courts must make in administering discovery in criminal cases,
the professional civility demanded of their profession, and this shared
interest, we anticipate that prosecutors shall continue to refrain from
opposing generous administration of the discovery deadlines set forth in
our criminal procedural rules absent extraordinary circumstances.
26
V. Whether Ary Received Ineffective Assistance of Counsel
When His Counsel Missed the Deadline the District Court Had Set
for Filing the Notice of Intent to Take Depositions and Seek
Discovery.
A. Standard of Review. Because a claim counsel was ineffective
implicates the constitutional right to effective assistance of counsel, we
review such claims de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa
2012).
B. Analysis. Ary claims his trial counsel was constitutionally
ineffective because he filed the notice of intent to take depositions and
seek discovery after the extended deadline set by the district court had
expired even though Ary had clearly expressed his desire to take
depositions and seek additional discovery. To prevail on a claim of
ineffective assistance of counsel, the claimant must show counsel failed
to perform an essential duty and prejudice resulted. Id. at 495
(describing the test set forth in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). We resolve a
claim of ineffective assistance of counsel on direct appeal only when the
record is adequate. Id. at 494.
Under the first prong of the Strickland test, we presume counsel
performed competently unless the claimant proves by a preponderance of
the evidence counsel failed to perform an essential duty. Id. at 495. In
deciding whether counsel failed to perform an essential duty, we measure
counsel’s performance against prevailing professional norms, including
those reflected in standards set by the American Bar Association and our
ethical rules. Id. at 495–96.
We conclude Ary demonstrated his trial counsel failed to perform
an essential duty. Our rules of professional conduct require lawyers to
“act with reasonable diligence and promptness in representing a client.”
27
Iowa R. Prof’l Conduct 32:1.3. A lawyer who neglects to file documents
with the court in a timely manner without an adequate excuse violates
this rule. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Mendez, 855
N.W.2d 156, 170 (Iowa 2014). When counsel finally acknowledged he did
not file the notice of intent to take depositions and seek discovery in a
timely manner, he merely asserted he realized the extended deadline had
arrived too late in the day to file the notice on time.
Though we acknowledge counsel was unable to file the notice
electronically because this case still had a paper file, we find this excuse
to be unpersuasive. Counsel did not include the information the district
court needed to promptly establish further discovery deadlines or find
good cause for the late filing in the untimely notice. Nor did counsel
request an extension of the deadline or immediately bring the late filing
to the attention of the court. In light of the approaching trial date and
the court’s warning that it would not grant a continuance to permit
depositions or discovery, there can be no question that these failures
collectively amounted to a failure to perform an essential duty.
To satisfy the second prong of the Strickland test, the claimant
must prove by a reasonable probability that, but for counsel’s failure to
perform an essential duty, the result of the proceeding would have been
different. Clay, 824 N.W.2d at 496. This does not require the claimant
to establish counsel’s conduct “more likely than not altered the outcome
in the case.” State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003) (quoting
Strickland, 466 U.S. at 693, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).
Rather, the claimant need only show the probability of a different result
is “sufficient to undermine [our] confidence in the outcome” of the trial.
Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d
at 698). “In determining whether this standard has been met, we must
28
consider the totality of the evidence, what factual findings would have
been affected by counsel’s errors, and whether the effect was pervasive or
isolated and trivial.” Id. at 882–83.
We conclude the record is inadequate to assess whether prejudice
resulted from trial counsel’s breach of an essential duty on direct appeal.
In his brief, Ary argues deposing the State’s witnesses would have
generally aided his defense and allowed him to impeach them more
effectively at trial. Nevertheless, we conclude it is unclear from the
record whether counsel’s failure to perform an essential duty might have
resulted in a different outcome at trial. See Clay, 824 N.W.2d at 496.
Therefore, Ary may bring his ineffective-assistance claim in a future
postconviction relief action.
VI. Whether the District Court Erroneously Applied the
Incorrect Standard in Denying Ary’s Motion For New Trial on the
Ground the Verdicts Were Contrary to the Weight of the Evidence.
A. Standard of Review. A district court should grant a motion for
a new trial only in exceptional circumstances. State v. Ellis, 578 N.W.2d
655, 659 (Iowa 1998). We generally review rulings on motions for new
trial asserting a verdict is contrary to the weight of the evidence for an
abuse of discretion. State v. Shanahan, 712 N.W.2d 121, 135 (Iowa
2006). However, we review a claim that the district court failed to apply
the proper standard in ruling on a motion for new trial for errors at law.
State v. Wells, 738 N.W.2d 214, 218 (Iowa 2007) (citing former Iowa Rule
of Appellate Procedure 6.4, now rule 6.907).
B. Analysis. Ary claims the district court erroneously applied the
sufficiency-of-the-evidence standard rather than the weight-of-the-
evidence standard in denying his motion for new trial. The State agrees
the court applied the incorrect standard in ruling on the motion.
29
Iowa Rule of Criminal Procedure 2.24(2)(b)(6) permits district
courts to grant motions for new trial when a verdict is contrary to the
weight of the evidence. Ellis, 578 N.W.2d at 657–59 (describing the
standard applicable to motions brought under former Iowa Rule of
Criminal Procedure 23(2)(b)(6), now rule 2.24(2)(b)(6)). A verdict is
contrary to the weight of the evidence only when “a greater amount of
credible evidence supports one side of an issue or cause than the other.”
Shanahan, 712 N.W.2d at 135 (quoting Ellis, 578 N.W.2d at 658).
The weight-of-the-evidence standard requires the district court to
consider whether more “credible evidence” supports the verdict rendered
than supports the alternative verdict. Ellis, 578 N.W.2d at 658–59. It is
broader than the sufficiency-of-the-evidence standard in that it permits
the court to consider the credibility of witnesses. State v. Nitcher, 720
N.W.2d 547, 559 (Iowa 2006). Nonetheless, it is also more stringent than
the sufficiency-of-the-evidence standard in that it allows the court to
grant a motion for new trial only if more evidence supports the
alternative verdict as opposed to the verdict rendered. Nguyen v. State,
707 N.W.2d 317, 327 (Iowa 2005). The question for the court is not
whether there was sufficient credible evidence to support the verdict
rendered or an alternative verdict, but whether “a greater amount of
credible evidence” suggests the verdict rendered was a miscarriage of
justice. Ellis, 578 N.W.2d at 658–59.
In contrast to a motion for new trial brought under the sufficiency-
of-the-evidence standard, a motion for new trial brought under the
weight-of-the-evidence standard essentially concedes the evidence
adequately supports the jury verdict. State v. Reeves, 670 N.W.2d 199,
202 (Iowa 2003). Consequently, a district court may invoke its power to
grant a new trial on the ground the verdict was contrary to the weight of
30
the evidence only in the extraordinary case in which the evidence
preponderates heavily against the verdict rendered. State v. Maxwell,
743 N.W.2d 185, 193 (Iowa 2008); Shanahan, 712 N.W.2d at 135.
The district court judge denied Ary’s motion for new trial at the
beginning of his sentencing hearing. In ruling on the motion, the judge
stated,
With regard to your motion as to whether the evidence is
sufficient, I believe the evidence was sufficient for the jury to
convict on all three counts that they rendered a verdict on. I
think there was sufficient evidence in the record the State
presented; and so I’m going to deny the motion for new trial
and for arrest of judgment on that basis.
In its sentencing order, the court indicated the reasons for its denial of
the motion for new trial were those stated on the record during the
sentencing hearing.
We agree with the parties that the district court erroneously
applied the sufficiency-of-the-evidence standard rather than the weight-
of-the-evidence standard in ruling on the motion for new trial on the
ground the verdicts were contrary to the weight of the evidence.
Appellate review of a district court ruling on a motion for new trial
asserting the verdict was contrary to the weight of the evidence ordinarily
does not extend to “the underlying question of whether the verdict is
against the weight of the evidence.” See State v. Taylor, 689 N.W.2d 116,
134 (Iowa 2004) (quoting Reeves, 670 N.W.2d at 203). Therefore, we
reverse the district court ruling on the motion for new trial on the ground
the verdicts were contrary to the weight of the evidence and remand the
case to the district court to apply the correct standard in considering the
motion.
31
VII. Summary and Disposition.
We conclude the district court did not deprive Ary of an impartial
jury or abuse its discretion by declining to hold a hearing to permit
defense counsel to show cause for missing the extended discovery and
deposition deadline. Although Ary established defense counsel breached
an essential duty, on this record we are unable to decide his claim of
ineffective assistance of counsel.
We further conclude the district court applied the incorrect
standard in ruling on Ary’s motion for new trial on the ground the
verdicts were contrary to the weight of the evidence. Accordingly, we
vacate the decision of the court of appeals, reverse the district court
judgment on the motion for new trial on the ground the verdicts were
contrary to the weight of the evidence, and remand the case to the
district court. On remand, the district court should 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. See Ellis, 578
N.W.2d at 659 (remanding solely to allow the district court to apply the
weight-of-the-evidence standard in ruling on a motion for new trial). We
affirm the district court judgment in all other respects.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART;
CASE REMANDED WITH DIRECTIONS.