State of Iowa v. Tyler James Webster

IN THE SUPREME COURT OF IOWA
No. 13–1095
Filed June 19, 2015
STATE OF IOWA,
Appellee,
vs.
TYLER JAMES WEBSTER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Jefferson County, Myron L.
Gookin, Judge.
The State seeks further review of a court of appeals decision
reversing the defendant’s conviction of second-degree murder and
remanding for a new trial. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Denise A.
Timmins, and Heather Ann Mapes, Assistant Attorneys General, and
Timothy W. Dille, County Attorney, for appellee.
Alan R. Ostergren, Muscatine, for amicus curiae Iowa County
Attorneys Association.
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APPEL, Justice.
Tyler Webster shot and killed Buddy Frisbie. The State charged
Webster with first-degree murder. A jury returned a guilty verdict of
second-degree murder. Webster filed a posttrial motion seeking to vacate
the conviction on grounds of juror misconduct. Webster also challenged
several evidentiary rulings in which the district court refused to admit
evidence that reflected poorly on Frisbie. The district court denied
Webster’s posttrial motion and entered judgment. Webster appealed.
On appeal, Webster claimed his conviction should be vacated
because of juror misconduct and juror bias. Specifically, Webster
claimed a juror failed to disclose that her daughter was a good friend of
Frisbie’s stepsister. Webster further claimed the same juror engaged in
discussions about the case with third parties, posted comments on
Facebook, and “liked” a comment posted by Frisbie’s stepmother on
Facebook related to the trial. Webster also appealed the judgment based
upon assorted errors in the district court’s evidentiary rulings.
We transferred the case to the court of appeals. The court of
appeals held there was no reversible juror misconduct, but reversed
Webster’s conviction on the issue of juror bias. We granted further
review. For the reasons expressed below, we vacate the decision of the
court of appeals and affirm the judgment of the district court.
I. Factual Background and Proceedings.
A. Factual Overview. Webster and Frisbie were long-time
friends. On August 25, 2012, Webster, Frisbie, a mutual friend Doug
Knight, and Frisbie’s girlfriend Shelby Hall attended a party together.
They decided to go fishing. Frisbie and Hall went to Frisbie’s trailer to
retrieve fishing gear, and Webster joined them in the trailer as it began to
rain. Knight went to his own trailer nearby.
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In Frisbie’s trailer, Webster claimed he believed Frisbie was
sexually assaulting Hall. He left the trailer, went to his truck, grabbed a
gun, came back to the trailer, and shot Frisbie in the face at close range
to avoid hitting Hall, whose body partially covered Frisbie.
Hall ran to Knight’s trailer and explained what had just happened.
Knight retrieved a shotgun, and when Webster approached the trailer
with a gun in his hand, Knight told him to put the gun down. Webster
complied and Knight called 911. Webster admitted to the dispatcher that
he had just shot Frisbie. Dispatch instructed Webster to walk to the end
of the driveway, lie on his stomach, and wait for law enforcement to
arrive. Law enforcement arrived and arrested Webster without incident.
The State charged Webster with first-degree murder. Prior to the
start of trial, the court ruled on motions in limine. Jury selection was
not reported. During the week-long trial, the court reminded the jury of
its “long admonition” previously given. The long admonition, however, is
not part of the record. The first admonition found in the record occurred
before the noon recess during the first day of trial. This admonition
stated:
And so at this time I will again remind you of that long
admonition that I previously read to you about you don’t talk
between yourselves, you don’t talk with anyone else, you
don’t listen or read any news reports. This matter is not yet
submitted so you don’t communicate with anyone or each
other about what you have heard so far, and you keep an
open mind and you don’t come to any conclusions.
The court gave a similar rendition of this admonition numerous times
throughout the trial.
B. In Camera Examination of the Juror. After the defense
rested, and outside the presence of the jury, the district court alerted the
parties to an issue that had arisen in the case. The district court told the
4
parties that the clerk of court and the court attendant had advised the
court they had received information that one of the jurors had stated
prior to being seated that she would probably never be picked for the jury
because “she knew the family.” The district court stated the court
attendant was concerned because she had sat through voir dire and did
not recall the juror saying anything about her connection to either
family.
The court then conducted an in camera hearing and the juror was
questioned. The juror told the court that her twenty-seven-year-old
daughter was friends with Frisbie’s half-sister or stepsister as they had
attended high school together. The juror stated she did not know
Frisbie, and other than telling her daughter she had jury duty, she did
not discuss the case with her. She also stated she was friendly with
Frisbie’s parents, as they worked in the courthouse and she also worked
in the courthouse. She also noted she thought she knew a family
member of Webster’s wife. Webster’s attorney noted the juror’s
familiarity with these individuals commenting, “I understand this is a
small town.” When asked if the relationships would cause her to be
biased, the juror stated she would not be biased and would rely upon her
notes in making her decision.
The juror further stated she was a Facebook 1 user and knew about
the shooting the night of the incident through Facebook. She stated that
while she had been on Facebook during the trial playing games, she had
“not read anybody else’s postings, because [she] kn[ew] if they posted
something [she] didn’t want to know about it.” At the conclusion of the
1For an overview of Facebook terminology, see Facebook’s Glossary of Terms,
available at http://www.facebook.com/help/219443701509174 (last visited
5/21/2015).
5
in camera examination of the juror, the defense declined to challenge the
juror for cause.
C. Submission of the Case and the Verdict. The next day, the
parties completed closing arguments and the case was submitted to the
jury. In its jury instructions, the district court stated, in relevant part:
You may not communicate about this case before reaching
your verdict. This includes cell phones, and electronic media
such as text messages, Facebook, MySpace, LinkedIn,
YouTube, Twitter, email, etc. Do not do any research or
make any investigation about this case on your own. Also,
do not research any information about this case, the law, or
the people involved, including the parties, the witnesses, the
lawyers, or the judge. This includes using the Internet to
research events or people referenced at trial.
After being instructed, the jury deliberated and returned a verdict finding
Webster guilty of murder in the second degree in violation of Iowa Code
sections 707.1 and 707.3 (2013).
D. Posttrial Motion. After the verdict, Webster filed a combined
motion for new trial and arrest of judgment. Webster asserted that
subsequent to the verdict Karen Taylor, a convenience store employee,
told the defense that during the course of trial she observed the same
juror in the store talking about the trial with two or three other
customers. In addition, Webster also asserted the defense received
information from Sheila Ross, who employed the defendant’s mother as a
housekeeper. Ross recalled a conversation she had with the juror a few
days after the verdict in which the juror told her that she looked up
Knight’s age and that he was not as “old” as defense counsel had
contended. Ross further indicated the juror informed her that the juror’s
daughter regarded Frisbie as “the sweetest nicest most soft spoken good
guy” and regarded Webster as “loud mouth verbally aggressive and
generally not a good person.” Ross also stated the juror told her that “no
6
one asked [the juror] to recuse herself for knowing the Frisbie family so
she just kept her mouth shut and did not offer that up.”
In addition, Webster contended the district court denied him a fair
trial by prohibiting him from introducing evidence that Frisbie’s ex-wife
was nine months pregnant when Frisbie punched her in the stomach
and by prohibiting Webster from introducing evidence of Frisbie’s felon
status and “prison mentality.” Webster claimed this information was
essential to his defense of justification because it would put his actions
in context.
The district court held a hearing on Webster’s combined motion.
Taylor was the first witness to testify. She stated during the course of
the trial she heard the juror discuss the case at a convenience store
where she worked. Taylor testified she heard a customer state,
“[E]veryone knows he’s guilty,” and the juror responded “Yeah.” Taylor
also testified the juror told her that Webster “had plead not guilty . . .
and [the jury had] to decide guilt or innocence.”
Ross testified next. She did not know the juror personally but
became familiar with her when she attended jury selection and the trial.
Webster’s mother had been Ross’s housekeeper and Ross considered
Webster’s mother a friend. Ross testified that after trial she heard the
juror in a Hy-Vee store “loudly proclaiming about the trial and the
results of the trial . . . and [that] he deserved what he got.” Ross further
testified the juror indicated that Webster could have gotten help from
Knight because Knight was not an old man, as she had “looked up his
age.” Ross further testified the juror told her that the juror’s daughter
“knew both [Webster and Frisbie] when they were young, and that
[Frisbie] was just this kind, sweet, gentle, polite person” and Webster
“was a mouthy, aggressive . . . verbally—you know, aggressive person.”
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When Ross asked the juror why she did not recuse herself like another
potential juror did when that juror told the lawyers that the juror knew
the Webster and Frisbie families, the juror responded “[T]hey did not ask
me, so I didn’t tell them.” When Ross inquired if the lawyers had asked
whether anyone knew the Frisbie family, the juror replied “nope,” giving
Ross the impression that the juror was proud that she had “dodged that
one.”
Webster’s wife, Ann Webster, also testified at the hearing. She
stated she had heard rumors there was a juror who knew the Frisbie
family and Ann began looking at Facebook. She testified that about a
month before trial, Frisbie’s stepmother wrote on the juror’s wall, “Have a
wonderful day.” Ann also testified that on April 11, during the trial,
Frisbie’s stepmother posted on her own Facebook wall, “Give me
strength,” and at some point 2 the juror’s daughter “[l]ike[d]” the
comment. 3 After trial, Ann stated the juror posted a summary of her jury
service on the juror’s Facebook wall. Also after trial, Ann noted the juror
responded to a Facebook posting by Frisbie’s stepmother by stating, “I
wish you could have gotten murder in lst degree. I can safely say that
this was a very hard decision. I could talk to you more about it if you
wanted at some point—just message me.”
The juror also testified at the posttrial hearing. First, regarding the
convenience store communication, the juror admitted there were a few
2It
is not entirely clear from the record, including the exhibit of the Facebook
page admitted at the posttrial hearing on the combined motion, when the comment was
liked. However, the parties appear to agree that it was liked “during trial.”
3Later, when shown a copy of the Facebook printout admitted at the hearing,
Ann was asked to “read that line right up there,” in reference to the “Give me strength”
comment. Ann answered, “This one says, ‘[the juror], [a second individual] and 12
others like this.’ ” After reviewing the Facebook printout, it is unclear whether the line
Ann was reading refers to the “Give me strength” comment or a different comment. The
juror later testified that she “probably” had “liked” Frisbie’s stepmother’s comment.
8
words spoken related to the trial by the customers but stated she wanted
to avoid the discussion. She admitted telling the clerk at the store that
Webster “pled not guilty [and that y]ou have to prove guilt or innocence.”
The juror testified that although she may have used the term “Yeah” at
one point, she did not agree with a comment from one of the customers
that “[e]veryone knows he’s guilty.” The juror denied being influenced by
any of the conversations at the convenience store stating, “In no way . . .
I was not convinced by anything that had come up previously yet at all.
Nothing had convinced me.”
With respect to the Hy-Vee incident that occurred after the trial,
the juror admitted telling a person at Hy-Vee that she thought her
relationship with the Frisbie family would keep her off the jury but that
she was not asked about this relationship. At the hearing the juror
stated, “I didn’t know how to tell. I guess I’m dumb to the rules.” The
juror claimed Ross then approached her and stated, “You put an
innocent man in jail.” According to the juror she told Ross,
Who do you believe? You say [Webster is] a good man. The
Frisbies are good people. Who do you believe? You go with
the evidence that is in front of you, and you go with that.
That’s what you have to go with.
The juror acknowledged, as Ross had testified, that she looked up
Knight’s age, but had done so the morning after the trial ended and
determined that Knight was about the same age as she was.
Regarding the question of her relationship generally with the
Frisbie family, the juror testified she “never kept any of that a secret, that
[she] was friends with [the Frisbie family].” When the juror was asked,
“Now, you didn’t tell us that you knew the Frisbie family until we went
back into the judge’s chambers in private, correct?” the juror responded:
9
I did not tell you, but I didn’t know how to tell you any other
way. I was asked in jury selection up here, I said—you
know, we were asked if we knew these people. I didn’t know
the people I was asked. I honestly thought that, okay,
they’re not asking for the prosecution, and here’s going to
come defense and you were gonna ask.
And I was—I’m like okay, how do I do this now? I mean,
because I was going to say something then, but I thought we
had to wait to be asked specific questions.
The juror also testified about her Facebook activity. She testified
she was “friends” with Frisbie’s stepmother on Facebook. At the same
time, the juror testified she was not “close friends” with the Frisbies. She
admitted she “probably” clicked “Like” on Frisbie’s stepmother’s
comment, “Give me strength,” but denied that she communicated with
Frisbie’s stepmother, stating she simply “clicked a button that said,
‘like.’ ” Additionally, although she claimed not to be close to the Frisbie
family, she knew it was a good family because her daughter had said so
and her daughter would never allow the Frisbie family to babysit for her
child if she did not feel that way.
In his combined motion for new trial and arrest of judgment,
Webster argued he was denied a fair trial, but cited no constitutional or
other provision in support of his motion. At the hearing, Webster’s
attorney asked the court to set aside the verdict and order a new trial,
contending it was “the only way [Webster’s] due process rights to a fair
trial [could] be protected under both the Iowa Constitution as well as the
Federal Constitution.”
Citing Iowa Rule of Criminal Procedure 2.24(2)(b)(3)–(4), and (3)(a),
the district court denied Webster’s posttrial motion and held that a new
trial was not warranted and that judgment should not be arrested “on
the basis of juror misconduct,” as there was “insufficient evidence of
misconduct to set aside the verdict or grant a new trial.” The district
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court also noted that “if there was any undisclosed bias” on the part of
the juror, “it was not reflected in the verdict in which she participated,”
nor was there “any indication that any such ostensible bias influenced or
infected any discussions or deliberations of the jury as a whole.”
Webster appealed and we transferred the case to the court of
appeals. The court of appeals determined that while there was no basis
to upset the verdict based upon juror misconduct, the district court
ruling was reversed on the question of juror bias. We granted further
review.
II. Standard of Review.
We review a denial of a motion for a new trial based upon juror
misconduct or juror bias for an abuse of discretion. Fry v. Blauvelt, 818
N.W.2d 123, 128 (Iowa 2012) (juror misconduct); State v. Hendrickson,
444 N.W.2d 468, 472 (Iowa 1989) (juror misconduct and bias); see also
State v. Johnson, 445 N.W.2d 337, 340 (Iowa 1989) (same). Additionally,
we review evidentiary rulings for an abuse of discretion. See State v.
Nelson, 791 N.W.2d 414, 419 (Iowa 2010). “An abuse of discretion
occurs when the trial court exercises its discretion ‘on grounds or for
reasons clearly untenable or to an extent clearly unreasonable.’ ” State
v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (quoting State v. Maghee,
573 N.W.2d 1, 5 (Iowa 1971)). “ ‘A ground or reason is untenable when it
is not supported by substantial evidence or when it is based on an
erroneous application of the law.’ ” Id. (quoting Graber v. City of Ankeny,
616 N.W.2d 633, 638 (Iowa 2001)). The burden is on the party seeking
to overturn the verdict. See State v. Henning, 545 N.W.2d 322, 324–25
(Iowa 1996). 4
4There is a question of the proper standard of review regarding fact-finding
performed by the district court in the context of a motion for a new trial. There is
11
We review ineffective-assistance-of-counsel claims de novo. State
v. Halverson, 857 N.W.2d 632, 634 (Iowa 2015).
In order to succeed on an ineffective-assistance-of-counsel
claim, a defendant must prove each of the following two
elements by a preponderance of the evidence: (1) trial
counsel failed to perform an essential duty, and (2) this
failure resulted in prejudice.
State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004); see also Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,
693 (1984). Therefore, if the claim lacks prejudice and can be decided on
that ground alone, we need not address whether the attorney failed to
perform an essential duty. See Dalton, 674 N.W.2d at 119.
III. Preservation Issues Related to Juror Misconduct and
Juror Bias.
Our review in this case is impacted by the limited nature of the
advocacy and the limited record developed below. Turning first to the
advocacy of the parties, Webster did not indicate in his combined motion
for new trial and arrest of judgment the basis for his claim. He did not
cite a statute, rule, or constitutional provision. At oral argument,
Webster generally claimed a right to a fair trial under the Iowa and
United States Constitutions, but did not identify any particular
provision. In its order, the district court relied upon Iowa Rule of
Criminal Procedure 2.24(2) and (3), but did not make a ruling on any
Iowa or United States constitutional claim. Webster did not seek an
______________________
authority in other jurisdictions that fact-finding made by the district court in
considering a motion for a new trial is subject to review under a clearly erroneous
standard. See, e.g., State v. Dellinger, 696 S.E.2d 38, 42 (W. Va. 2010) (per curiam).
On the other hand, we have held, in other contexts, that when constitutional issues are
involved, our review of fact-finding is de novo. See, e.g., State v. Hoskins, 711 N.W.2d
720, 725 (Iowa 2006) (noting in search-and-seizure context that our review of the facts
is de novo, however, we give deference to district courts finding as it “had the
opportunity to evaluate the credibility of the witnesses”). In this case, we do not resolve
the issue because we generally agree with the fact-finding of the district court.
12
expanded ruling. See Lamasters v. State, 821 N.W.2d 856, 863–64 (Iowa
2012) (noting rule 1.904(2) “is one means, but not the only means, for
requesting” a ruling on a matter in order to preserve error); State v.
Krogmann, 804 N.W.2d 518, 524 (Iowa 2011) (stating that “when a court
fails to rule on a matter, a party must request a ruling by some means”);
see also Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002). As a
result, we find the question of whether the refusal of the district court to
grant a new trial or arrest judgment violated Iowa Rule of Criminal
Procedure 2.24(2) or (3) was preserved. Any claim that the district court
action violated a constitutional provision, state or federal, however, is
waived.
In addition, Webster explicitly claimed in his combined motion that
he was denied a fair trial based on juror misconduct, but did not
advance a separate argument based on juror bias. Juror misconduct
and juror bias are related, overlapping, but analytically distinct concepts.
Juror misconduct ordinarily relates to actions of a juror, often contrary
to the court’s instructions or admonitions, which impair the integrity of
the fact-finding process at trial. See generally Jimmie E. Tinsley, Jury
Misconduct Warranting New Trial, 24 Am. Jur. Proof of Facts §§ 35–38, at
697–704 and §§ 4–11, at 255–308 (2d ed. 1980 & Supp. 2014) (citing
examples). Typical acts of misconduct include communication with
others outside the jury about the case, independently investigating the
crime or accident scenes outside of judicial oversight, or engaging in
independent research about questions of law or fact. See id. Juror bias,
on the other hand, focuses on the ability of a juror to impartially
consider questions raised at trial. See 50A C.J.S. Juries § 369, at 495–
97 (2008). A biased juror is simply unable to come to a fair decision in a
case based upon the facts and law presented at trial. See id. A juror
 13
may be biased without engaging in any kind of misconduct. Conversely,
an impartial and fair-minded juror may nonetheless engage in juror
misconduct. Jurisdictions have developed a variety of approaches to
deal with questions of misconduct and bias. See generally Robert G.
Loewy, Note, When Jurors Lie: Differing Standards for New Trials, 22 Am.
J. Crim. L. 733 (1995) [hereinafter Loewy] (surveying different state and
federal approaches).
While Webster emphasized the label “juror misconduct” in his
combined motion, he also stated that the juror was biased. In its ruling,
the district court followed Webster’s word usage, generally referring to
“juror misconduct” but seemingly including juror bias within this larger
concept. The question of a challenge for juror bias may be considered
preserved based on the theory that the substance of the claim, rather
than its label, controls. See Lee v. State, 815 N.W.2d 731, 739 (Iowa
2012) (“We will not exalt form over substance when the objectives of our
error preservation rules have been met.”); Griffin Pipe Prods. Co. v. Bd. of
Revenue, 789 N.W.2d 769, 772 (Iowa 2010) (“Our issue preservation
rules are not designed to be hypertechnical.”). For the purposes of this
appeal, we address the underlying merits of the bias claim without
deciding the question of preservation. See State v. Hochmuth, 585
N.W.2d 234, 236 (Iowa 1998) (per curiam) (“Assuming without deciding
that Hochmuth has preserved error, we find her challenge . . . is without
merit.”); see also Ostergren v. Iowa Dist. Ct., ___ N.W.2d ___, ___ (Iowa
2015) (noting same).
There are further problems, however, to the claims of juror
misconduct and juror bias. Although this was a first-degree murder
case, no record was made of voir dire or of the district court’s preliminary
admonition to the jury. These record shortcomings, however, do not
14
raise a question of preservation of the claims so much as affect the
viability of Webster’s claims on the merits, to which we now turn.
IV. Merits of Juror Misconduct and Juror Bias.
A. Introduction. This case requires us to explore a delicate area
of the law. It is a bedrock component of our system of justice that an
accused charged with a criminal offense receives a fair trial before an
unbiased decision-maker. See Iowa Const. art. I, § 9. We have also
established a criminal trial process with a right to counsel at every
critical stage of the proceeding and the right to confront witnesses. See
id. § 10. A jury that considers evidence produced outside the trial
process deprives the defendant of the right to counsel and the right to
confront, as well as defeats the policies advanced by our rules of evidence
and rules of procedure that help ensure just results. Further, the judge’s
instructions in a case are designed to channel the jury deliberations
according to the rule of law. See 75A Am. Jur. 2d Trial § 920, at 558–59
(2007). These basic concepts—unbiased juries, structured trial process
with the assistance of counsel for the accused, the right to confront
witnesses, and judicially crafted instructions provided to the jury to
channel decision-making according to the rule of law—are universally
admired norms.
Ensuring that these celebrated norms are the reality in each
criminal case is a crucial responsibility of the judicial branch. As with so
many things, enforcement of these norms is sometimes easier said than
done. The line between permissible and impermissible is often difficult
to discern. For instance, while we do not want jurors to be biased, we do
want them to draw upon their common experience that may cause them
to perceive evidence in a distinctive way. See, e.g., State v. Smith, 196
Iowa 1003, 1012, 193 N.W. 418, 422–23 (1923). Further, here, a jury
15
verdict has been rendered after a lengthy trial, and we have no desire to
start again for trifles. As has been often said, the accused is not entitled
to a perfect trial, but only a fair trial. See, e.g., State v. Gansz, 376
N.W.2d 887, 891 (Iowa 1985).
B. Positions of the Parties. In this appeal, Webster makes a
number of charges of juror misconduct. Although packaged as a claim of
juror misconduct, Webster also asserts he was denied a fair trial due to
impermissible jury bias. To the extent the claims presented on appeal
related to his combined motion for a new trial and arrest of judgment
were not preserved, Webster asserts ineffective assistance of counsel.
With respect to all his misconduct and bias claims, Webster
asserts the district court’s refusal to grant a new trial is subject to review
for an abuse of discretion. Johnson, 445 N.W.2d at 340. With respect to
his claim that counsel provided ineffective assistance to the extent
counsel waived his claims, Webster asserts that such constitutional
claims are reviewed de novo. State v. Risdal, 404 N.W.2d 130, 131 (Iowa
1987). 5
On his new trial claims based upon both juror misconduct and
juror bias, Webster seems to apply the three-part substantive standard
for granting a new trial based on juror misconduct articulated in State v.
Cullen, 357 N.W.2d 24, 27 (Iowa 1984). In Cullen, we stated that in order
to be entitled to a new trial based upon juror misconduct, the
(1) evidence from the jurors must consist only of objective
facts as to what actually occurred in or out of the jury room
bearing on misconduct; (2) the acts or statements
complained of must exceed tolerable bounds of jury
deliberation; and (3) it must appear the misconduct was
5Webster, however, does not assert his claim that he was entitled to a new trial
is subject to de novo review, thereby suggesting he does not assert a constitutional
basis for the motion.
16
calculated to, and with reasonable probability did, influence
the verdict.
Id.; see also Ryan v. Arneson, 422 N.W.2d 491, 495 (Iowa 1988)
(clarifying the first prong of the Cullen test by interpreting Iowa Rule of
Evidence (5).606(b) to allow statements regarding extraneous prejudicial
information or outside influence that was brought to bear on the jury,
but excluding evidence of internal deliberations of the jury).
Webster claims the juror committed misconduct by failing to fully
disclose her relationship to the Frisbie family during voir dire and at the
in camera examination during trial, by violating the admonitions of the
district court by “liking” a comment of the victim’s stepmother on
Facebook, by engaging in improper conversations about the trial with
third parties at a convenience store, and by improperly conducting extra-
record research on the age of a witness.
Although packaged as a claim of juror misconduct, Webster also
asserts he was denied a fair trial due to impermissible juror bias.
Webster recognizes that no challenge for bias was raised at trial and
therefore the issue is ordinarily waived. See State v. Cuevas, 288 N.W.2d
525, 534 (Iowa 1980). However, Webster claims waiver does not apply
here because the juror was less than honest in voir dire and at the in
camera hearing. The waiver rule, he asserts, does not apply to instances
of concealed bias. See id. at 535.
Based on the record, Webster claims the juror was impermissibly
biased. In support of the bias theory, Webster contrasts the disclosures
made by the juror at the in camera hearing during trial with her more
robust explanations of her relationship with the Frisbie family in her
after-trial statements and at the posttrial hearing. According to Webster,
the juror saw the Frisbie family as a “good family,” recognized that she
17
would not be seated as a juror because she knew the family, was not
forthcoming during voir dire about her relationship with the Frisbies,
and was evasive about her relationship with the Frisbies when
questioned in camera in order to remain on the jury. Further, Webster
contends, the juror showed her true colors after the trial when she
smugly told a friend of Frisbie’s stepmother that she was never
questioned about her relationship with the Frisbies and commented on
Frisbie’s stepmother’s Facebook post shortly after the verdict that the
juror wished there could have been a first-degree murder verdict.
The State accepts the same legal framework for reviewing a denial
of a motion for a new trial and a motion in arrest of judgment as
Webster. On the misconduct claims, the State asserts the record shows
the juror did not deliberately lie about her relationship with the Frisbies.
While it might have been desirable for her to have volunteered more
information for the attorneys to explore on voir dire, the State notes there
is no evidence she was specifically asked about her relationship with the
Frisbies in voir dire. Further, during the in camera hearing, the juror
indicated she knew the Frisbie family because her daughter was friends
with the victim’s stepsister, knew the victim’s parents well enough to
engage in small talk with them, and was Facebook friends with the
victim’s stepmother. The State notes the juror truthfully indicated she
did not know the victim and would not have recognized him on the
street. According to the State, counsel for Webster had a full opportunity
to explore any potential bias issues at the in camera hearing and any
claim for juror bias was waived by Webster’s failure to develop the record
to dismiss the juror for cause.
On the question of the asserted misconduct arising from the juror’s
liking a comment of the victim’s stepmother on Facebook during trial, the
18
State contends the juror’s conduct was of little importance. The
comment which she liked on Facebook was a declaration from the
stepmother in the midst of trial, “Give me strength.” According to the
State, the juror’s statement that she liked the “Give me strength”
statement does not relate to the merits of the case and had no
relationship to the guilt or innocence of the defendant. According to the
State, the juror did not think the inconsequential act of clicking a
computer button liking the stepmother’s status amounted to a
communication in violation of the district court’s admonition.
With respect to the claim of misconduct at the convenience store,
the State indicates the juror simply wanted to get out of the store and did
not engage in substantive conversation with other customers about the
trial itself. The State asserts there was no evidence the juror was in any
way influenced by the brief interaction.
On the issue of researching the age of one of the witnesses, the
State responds the evidence showed this happened after the verdict had
been rendered. As a result, the information obtained by the juror could
not have had any influence on the verdict in this case.
Finally, the State asserts there is no evidence of impermissible
juror bias. The State emphasizes the juror repeatedly stated she could
decide the case based upon the evidence alone. Further, the State
stresses the decision not to grant a new trial rests in the sound
discretion of the district court. See Johnson, 445 N.W.2d at 340. The
State emphasizes Webster failed to show that any alleged misconduct
“was calculated to, and with reasonable probability did, influence the
verdict.” Cullen, 357 N.W.2d at 27.
C. Discussion. We first dispose of the less difficult issues in this
case. With respect to the juror’s conversations at the convenience store,
19
we find Webster’s challenge lacks merit. There can be no question that
communications with third parties about the merits of a case outside the
confines of jury deliberations is a species of misconduct. See Iowa R. of
Crim. P. 2.24(2)(b)(2)–(3). Here, however, the juror did not initiate
impermissible conversations, but was confronted with brief conclusory
statements by third parties when picking up pizza at a convenience
store. She apparently rolled her eyes and uttered an ambiguous “Yeah”
while seeking to disengage. Our review of the record leads us to the
same factual conclusion as that of the district court, namely, that the
juror did not engage in an extended conversation on the merits of the
case with these third-party intermeddlers but simply sought to end the
nettlesome interaction and be on her way. We find no juror misconduct
here, and even if we did, we would not find that the misconduct “was
calculated to, and with reasonable probability did, influence the verdict.”
Cullen, 357 N.W.2d at 27; see also State v. Anderson, 448 N.W.2d 32, 34–
35 (Iowa 1989) (fleeting conversation between juror and reserve special
deputy, who declared, “what’s this not guilty shit,” was not basis for new
trial).
With respect to Webster’s claim that the juror conducted
impermissible research on the age of one of the witnesses, we also find
this claim lacking in merit. Iowa Rule of Criminal Procedure 2.24(2)(b)(2)
authorizes a district court to grant a new trial when the jury has received
out-of-court evidence. Of course, the introduction of material evidence
outside the rigors of the trial process raises serious problems that may
require a new trial. See State v. Folck, 325 N.W.2d 368, 372 (Iowa 1982)
(noting that “[c]onsideration of matters outside the record may, under
certain circumstances, require a new trial”); State v. Kirk, 168 Iowa 244,
256–62, 150 N.W. 91, 94–96 (1914) (remanding for new trial when jury
20
secured copy of a Code book and rendered a verdict of guilty of
manslaughter with a recommendation of mercy, believing the
punishment was fixed by the Code, when, in reality, it was fixed by the
indeterminate sentence act).
The record here, however, reveals the juror engaged in the research
after the jury rendered its verdict to confirm her views based upon the
evidence offered at trial. Once the jury renders its verdict, jurors are free
to research factual and legal questions as much, or as little, as they
desire. See, e.g., Wilgus v. F/V Sirius, Inc., 665 F. Supp. 2d 23, 27–28
(D. Me. 2009) (finding record failed to show that during trial juror
discovered extraneous information and therefore finding no evidence of
juror misconduct).
The most serious issues in this case relate to the question of juror
bias. Iowa Rule of Criminal Procedure 2.24(2)(b)(9) provides that the
district court may grant a new trial when “the defendant has not received
a fair and impartial trial.” Juror bias may be actual or implied. Actual
juror bias occurs when the evidence shows that a juror, in fact, is unable
to lay aside prejudices and judge a case fairly on the merits. See United
States v. Wood, 299 U.S. 123, 133, 57 S. Ct. 177, 179, 81 L. Ed. 78, 82
(1936). Implied bias arises when the relationship of a prospective juror
to a case is so troublesome that the law presumes a juror would not be
impartial. See id.; see also McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548, 558, 104 S. Ct. 845, 851, 78 L. Ed. 2d 663, 673 (1984)
(Brennan, J., concurring in judgment); Philip Staten, Clarifying the
Implied Bias Doctrine: Bringing Greater Certainty to the Voir Dire Process
in the Military Justice System, 2011-Mar. Army Law. 17, 17–21 (2011)
[hereinafter Staten] (canvassing Supreme Court precedent regarding
21
implied juror bias). 6 Implied bias has been found to arise, for instance,
when a juror is employed by a party or is closely related to a party or
witness. See, e.g., McHugh v. Proctor & Gamble Paper Prods. Co., 776
A.2d 266, 270 (Pa. Super. Ct. 2001) (noting that “close relationship,
familial, financial, or situational, with the parties, counsel, victims, or
witnesses” can give rise to a presumption of bias); Staten, 2011-Mar.
Army Law. 17, at 20.
Here, our focus is on the question of whether the district court
abused its discretion in finding that the prospective juror was not
actually biased. 7
Showing that a juror is actually biased poses difficult problems of
proof. Ordinarily, however, questioning of prospective jurors in voir dire
is the method to smoke out actual juror bias. Voir dire, which literally
means, “ ‘to speak the truth,’ ” allows attorneys to determine whether
there is a case for dismissing a juror and to form an intelligent basis for
the exercise of preemptory challenges. See State v. Dellinger, 696 S.E.2d
38, 43 (W. Va. 2010) (per curiam) (quoting Michael ex rel. Estate of
6Chief Justice Marshall recognized implied bias in the famous treason case of
Aaron Burr, stating that a prospective juror “may declare that notwithstanding these
prejudices he is determined to listen to the evidence, and be governed by it; but the law
will not trust him.” United States v. Burr, 25 F. Cas. 49, 50 (D. Va. 1807).
7The United States Supreme Court has held that when a juror is seated who
deliberately concealed bias that would have required he or she be dismissed for cause,
reversal of any subsequent conviction is required. United States v. Martinez-Salazar,
528 U.S. 304, 316, 120 S. Ct. 774, 782, 145 L. Ed. 2d 792, 803–04 (2000). The theory
is that a jury consisting of eleven impartial jurors and one actually biased juror is
constitutionally infirm without any showing that there was juror misconduct which was
“calculated to, and with reasonable probability did, influence the verdict.” Cullen, 357
N.W.2d at 27; see also Martinez-Salazar, 528 U.S. at 316, 120 S. Ct. at 782, 145 L. Ed.
2d at 803–04; Parker v. Gladden, 385 U.S. 363, 366, 87 S. Ct. 468, 471, 17 L. Ed. 2d
420, 423 (1966) (per curiam) (noting a defendant is “entitled to be tried by 12, not 9 or
even 10, impartial and unprejudiced jurors”). In two relatively recent cases involving
both juror misconduct and juror bias, we applied the three-pronged Cullen test to juror
misconduct but not to juror bias. See Johnson, 445 N.W.2d at 340–42; Cuevas, 288
N.W.2d at 534–35. We need not reach the issue in this case, however, as we do not find
the district court abused its discretion in determining a lack of actual bias in this case.
22
Michael v. Sabado, 453 S.E.2d 419, 426 (W. Va. 1994)). We have held
that a party who fails to avail himself or herself of procedures for
identifying bias waives later challenges for juror impartiality. See State v.
Coffee, 182 N.W.2d 390, 395–96 (Iowa 1970) (citing cases).
A troublesome scenario emerges, however, when a potential juror
fails to tell the truth in response to questions in voir dire designed to
probe potential juror bias. Of course, a nervous prospective juror may
simply forget a fact, make an unintentional misstatement, or
misunderstand the question. Or, a juror may decline to answer a
question to avoid personal embarrassment. See, e.g., United States v.
Stewart, 317 F. Supp. 2d 432, 438–39 (S.D.N.Y. 2004) (noting failure of
prospective jurors to disclose criminal justice records does not show bias
under the circumstances).
Of particular concern, however, is a juror who declines to
truthfully answer a voir dire question in order to avoid being removed
from the jury panel. When a juror conceals information in voir dire in
order to avoid either a strike for cause or a preemptory strike, it deprives
the accused “of the ability to determine whether [the juror] harbored any
prejudices or biases against [the accused] or in favor of the State.”
Dellinger, 696 S.E.2d at 43. In addition, deliberate lying by a juror in
voir dire may strongly suggest the kind of actual bias that may require
disqualification of that juror and, if the juror participates in jury
deliberation, may require a new trial. See, e.g., United States v. Colombo,
869 F.2d 149, 150–52 (2d Cir. 1989) (remanding for findings of fact when
juror intentionally failed to disclose brother-in-law was government
attorney in order to sit on case); United States v. Scott, 854 F.2d 697,
698–700 (5th Cir. 1988) (reversing and remanding for new trial when
prospective juror did not disclose that his brother was a deputy sheriff
23
investigating the case and court found this as evidence that the juror
wanted to serve but did not disclose the relationship because it would
have prevented his service).
Here, however, there is no evidence the juror provided false
testimony during voir dire. Of course, the fact that voir dire was not
reported poses a difficult evidentiary problem for Webster. The parties
seem to agree, however, that during voir dire, one prospective juror
volunteered she had relationships with the parties. The parties further
agree that the juror was not specifically asked about her relationship
with the Frisbies. We do not think the failure to volunteer an answer to
an unasked question amounts to juror misconduct. See, e.g., McGaha v.
Commonwealth, 414 S.W.3d 1, 4–7 (Ky. 2013) (finding juror who did not
disclose in voir dire that she was friends with victim’s wife on Facebook
did not give false answer when juror stated they were casual friends but
did not volunteer the Facebook connection).
Further, in the in camera examination, the juror stated that she
knew the Frisbies in passing, that her daughter was a friend of Frisbie’s
stepsister, that she knew Frisbie’s parents well enough to say “Hi” to
them, and that she was Facebook friends with Frisbie’s stepmother. 8 At
this point, the door was open to further explore these issues. See
Johnson, 445 N.W.2d at 340 (noting that party must pursue issue and
juror for cause when party has adequate notice of possible prejudice
8In Sluss v. Commonwealth, two jurors may have been Facebook friends with the
mother of the victim, despite statements in voir dire that they did not know the victim
or her family. 381 S.W.3d 215, 221, 229 (Ky. 2012) (remanding for hearing to
investigate potential juror misconduct). During voir dire, the jurors were not asked
directly whether they were Facebook friends with the victim’s mother. Id. at 221. The
court noted the mere fact that the jurors were Facebook friends was not determinative,
but it was the underlying nature of the relationship and the information that a juror
knows that frames whether that juror could reasonably be viewed as biased. Id. at 222–
23. The court further noted that false answers by jurors on voir dire could give rise to
serious constitutional issues. Id. at 225.
 24
toward defendant). However, Webster’s lawyer elected not to thoroughly
explore the nature of the relationship, including the intriguing mention
that she and Frisbie’s stepmother were friends on Facebook. Instead,
Webster’s counsel asked a series of questions that seemed more designed
to rehabilitate the juror than challenge her. At the conclusion of the
hearing, Webster did not challenge the juror for cause. Based on the
record before us, we cannot conclude the juror engaged in misconduct by
lying during the in camera hearing. 9
In short, we are not faced with a juror who lied during voir dire or
during an in camera hearing in order to avoid the risk of being
disqualified. Thus, an important feature present in many actual
disqualification cases is lacking here. Further, both at the in camera
hearing and in testimony related to the combined motion for new trial
and arrest of judgment, the juror emphatically emphasized that she was
capable of, and did in fact, base her verdict solely on the evidence. See,
e.g., State v. Walters, 426 N.W.2d 136, 139 (Iowa 1988) (“ ‘It is sufficient
if the juror can lay aside his impressions or opinion and render a verdict
based on the evidence presented in court.’ ” (quoting Irvin v. Dowd, 366
U.S. 717, 723, 81 S. Ct. 1639, 1643, 6 L. Ed. 2d 751, 756 (1961))). Of
course, the juror’s testimony may be self-serving, but the district court
found her testimony credible. The mere fact a juror has knowledge of
parties or witnesses does not indicate actual bias or require juror
disqualification. See, e.g., Green v. State, 757 S.E.2d 856, 858–59 (Ga.
2014) (noting “juror’s knowledge of, or non-familial relationship with, a
9On the issue of juror’s lying during voir dire, there is some division in the
caselaw as to whether the standard is objective or subjective. See Loewy, 22 Am. J.
Crim. L. at 736–37 & n.21 (noting “critical distinction” between standards and
surveying state approaches). We need not determine the issue here because the claim
fails under either test.
25
witness, attorney, or party provides a basis for disqualification only if it is
shown that it has resulted in the juror having a fixed opinion of the
accused’s guilt or innocence or a bias for or against the accused”); see
also Ex parte Killingsworth, 82 So. 3d 761, 764–65 (Ala. 2010) (per
curiam) (noting same); Marsillett v. State, 495 N.E.2d 699, 707 (Ind.
1986) (noting juror’s mere knowledge of or acquaintance with a victim is
not enough to disqualify juror). The district court explained to the
parties prior to the in camera hearing that court personnel had advised
him the juror had stated the fact that she knew the victim’s family would
disqualify her from jury duty. As the above cases demonstrate, if the
juror in fact had that belief, it would have been a mistake of law.
That brings us to the most troublesome point in the case. There is
some suggestion the juror, after the in camera inspection but prior to the
verdict, clicked “like” on a Facebook comment by the victim’s stepmother
which stated, “Give me strength.” A juror who directly violates the
admonitions of the court and communicates with the mother of a crime
victim about a case certainly raises questions about her ability to be an
impartial juror. This action occurred after voir dire and apparently after
the in camera hearing. Thus, Webster has not waived his bias challenge
based upon this event, which would not have been uncovered through
diligent use of ordinary trial processes.
However, the record here does not disclose the court’s initial
admonition or when the juror clicked “like.” In any event, while the short
form admonition to the jury in the record indicated that the juror should
not communicate with parties and witnesses about the case, the juror
apparently thought (erroneously) that merely clicking “like” on Facebook
was not a “communication.” Moreover, the communication did not relate
to the guilt or innocence of the accused, but only showed a degree of
26
empathy for a grieving stepmother who lost her son. A juror who does
not have empathy for a grieving mother whose son was a homicide victim
would be awfully cold hearted. If we disqualified jurors because they
empathized with the family of crime victims, we would have no jurors.
See, e.g., Oro-Jimenez v. Commonwealth, 412 S.W.3d 174, 180–81 (Ky.
2013) (finding juror conversation with a victim in a robbery case
regarding “how [the victim] was doing” and stating that the juror was
sorry the victim had to go through all that, was innocent and did not give
rise to a basis for a new trial). We find no abuse of discretion on this
point.
Notwithstanding our resolution of the issues in this appeal, we do
not approve of the juror’s conduct in this case. While the click of the
mouse does not require reversal of Webster’s criminal conviction, it is
troublesome nevertheless. While it did not occur in this case, a single
click of the mouse on Facebook can trigger cascading responses.
Further, messages posted on Facebook may be viewed by many persons,
generating a perception of a miscarriage of justice.
In the future our district courts would do well to recognize that in
this day and age, our jurors are part of the new electronic world. This
can pose a problem in our jury trials. We have held that the click of the
mouse in this case was not misconduct sufficient to require a new trial
under the three-part Cullen test. We have also held that the click of the
mouse was insufficient to establish that the juror was actually biased in
light of the record developed at the posttrial hearing. The click of the
mouse did, however, show poor judgment.
Indeed, there is a growing body of highly publicized cases showing
the risk posed by jurors engaged in electronic and social media activity.
In one case, a juror conducted a Facebook poll regarding how she should
27
vote in a case during jury deliberation. See Urmee Khan, Juror
Dismissed From a Trial After Using Facebook to Help Make a Decision, The
Telegraph, Nov. 24, 2008, http://www.telegraph.co.uk/news/news
topics/lawreports/3510926/Juror-dismissed-from-a-trial-after-using-Fa
cebook-to-help-make-a-decision.html. In an Arkansas death penalty
case, a juror tweeted 10 throughout the trial and continued to do so even
after being told to stop. Dimas-Martinez v. State, 385 S.W.3d 238, 247–
48 (Ark. 2011). In another case, a tweeting juror rambled about trial
proceedings. United States v. Fumo, 639 F. Supp. 2d 544, 555 (E.D. Pa.
2009), aff’d in part and rev’d in part on other grounds, 655 F.3d 288 (3d
Cir. 2011). In a Tennessee case, a juror contacted an expert witness
whom she had known in the past to opine, “[Y]ou did a great job . . . .
You really explained things so great!!” State v. Smith, 418 S.W.3d 38, 43
(Tenn. 2013). In a Georgia case, a juror found definitions on Google
relating to an affirmative defense of habitation as it related to motor
vehicles. Chambers v. State, 739 S.E.2d 513, 517–18 (Ga. Ct. App.
2013). As noted by one commentator, “many jurors do not see blogging,
tweeting or posting as communication, or at least they don’t consider it
to fall within the rubric of traditional admonitions.” Rosalind R. Greene
& Jan Mills Spaeth, Are Tweeters or Googlers in Your Jury Box?, 46-Feb.
Ariz. Atty. 38, 39 (2010); see also Robert P. MacKenzie III & C. Clayton
Bromberg Jr., Jury Misconduct What Happens Behind Closed Doors, 62
Ala. L. Rev. 623, 638 (2011) (“The fastest developing area in the realm of
juror misconduct involves the use of e-mail, social networking sites such
as Facebook, and microblogging sites such as Twitter during trial.”).
10For an overview of Twitter terminology, see The Story of a Tweet, available at
https://about.twitter.com/what-is-twitter/story-of-a-tweet.
28
In order to address the new risks, authorities suggest that courts should
frequently, as a matter of course, instruct jurors not to use social media
to communicate about the trial and clearly explain what constitutes
communication. See, e.g., Steiner v. Superior Ct., 164 Cal. Rptr. 3d 155,
163 (Ct. App. 2013); Kervick v. Silver Hill Hosp., 72 A.3d 1044, 1059 &
n.11 (Conn. 2013). The admonition should be given early and often,
beginning at the time jurors are sworn and repeated periodically as the
trial progresses. While there are many sources of potential admonitions,
the United States Judicial Conference Committee on Court
Administration and Case Management has recommended that federal
district courts use an admonition related to electronic media that may
provide a guide to Iowa judges. See Judicial Conference Comm. on Ct.
Admin. & Case Mgmt., U.S. Cts., Proposed Model Jury Instructions: The
Use of Electronic Technology to Conduct Research on or Communicate
about a Case (2012), available at www.uscourts.gov/
file/3159/download?token=3s0ovosm [hereinafter Proposed Model Jury
Instructions]; see also U.S. Cts., Revised Jury Instructions Hope to Deter
Juror Use of Social Media During Trial (2012), available at
www.uscourts.gov/news/2012/08/21/revised-jury-instructions-hope-
deter-juror-use-social-media-during-trial. The instruction states, in part:
I know that many of you use cell phones, Blackberries,
the internet and other tools of technology. You also must
not talk to anyone at any time about this case or use these
tools to communicate electronically with anyone about the
case. This includes your family and friends. You may not
communicate with anyone about the case on your cell
phone, through e-mail, Blackberry, iPhone, text messaging,
or on Twitter, through any blog or website, including
Facebook, Google+, My Space, LinkedIn, or YouTube. You
may not use any similar technology of social media, even if I
have not specifically mentioned it here. I expect you will
inform me as soon as you become aware of another juror’s
violation of these instructions.
29
Proposed Model Jury Instructions. The instructions also state this
admonition “should be provided to jurors before trial, at the close of a
case, at the end of each day before jurors return home, and other times,
as appropriate.” Id. A trial court providing jurors with admonitions such
as those in the federal model will minimize the risk of unnecessary and
costly mistrials due to the failure of jurors to clearly understand their
obligations in the electronic world.
V. Evidentiary Issues.
A. Positions of the Parties. Webster makes two evidentiary
arguments on appeal. First, he contends the district court erred when
ruling Webster could elicit testimony that Frisbie punched his ex-wife,
but not testimony that she was pregnant at the time. Second, Webster
argues he should have been able to introduce evidence regarding
Frisbie’s “prison mentality,” specifically his violent aggression towards
authority figures, and felon status. Webster emphasizes this evidence
was essential to show Frisbie’s violent character and support his
assertion of self-defense and defense of others.
Prior to trial, the trial court made several preliminary rulings
regarding admissibility of evidence, including disallowing testimony that
Frisbie punched his ex-wife while she was pregnant. During trial,
Webster made an offer of proof on this matter. Regarding Frisbie’s prison
mentality, although Webster resisted the State’s motion in limine
regarding Frisbie’s prior nonviolent criminal history, the trial court
sustained the State’s motion in limine on this point, again indicating it
was not a final ruling. Webster’s trial counsel did not raise the issue of
the admissibility of Frisbie’s felonies at trial, Webster therefore argues his
attorney provided ineffective assistance for failing to request to present
this information.
30
At the outset, the State concedes that because Webster raised the
issue of Frisbie punching his pregnant ex-wife during trial, this
evidentiary claim was preserved; however, evidence relating to Frisbie’s
prison mentality and felon status was not raised during trial and
therefore this issue must be presented under an ineffective-assistance-of-
counsel-framework.
On the merits, the State argues the district court properly excluded
evidence showing Frisbie’s ex-wife was pregnant when he punched her in
the stomach because the probative value was substantially outweighed
by its prejudicial impact. The State asserts this additional evidence
would not have added significant probative value not otherwise shown by
Frisbie’s ex-wife’s testimony that Frisbie punched her, and further, the
risk of unfair prejudice was high, in that a jury would be especially
sensitive to crimes against a pregnant woman.
Regarding Webster’s second contention, under an ineffective-
assistance framework, the State asserts that a request to admit the prior
felonies would have been meritless, as references to Frisbie’s violent
reactions to authority were shown by other witnesses and the probative
value of references to prior felonies would have been substantially
outweighed by their prejudicial impact. Finally, the State argues
Webster has not proven by a reasonable probability that the result would
have been different had the evidence been admitted.
B. Preservation. It is undisputed that at the pretrial hearing on
the motions in limine the trial court made no final evidentiary rulings
related to the claims at issue. Webster’s first evidentiary claim, that
Frisbie punched his ex-wife in the stomach when she was pregnant, was
preserved, as an offer of proof was made at trial regarding this incident.
31
Webster’s second evidentiary claim, regarding Frisbie’s felon status
and prison mentality, however, was not preserved. It is undisputed that
Webster never attempted to enter into evidence the fact that Frisbie had
been to prison or that he was consumed by a prison mentality, which he
argued was needed to give context to specific instances of Frisbie’s
conduct and his reaction to authority figures (i.e., Frisbie would have
seen Webster as an authority figure in trying to intervene and protect
Hall and therefore Webster’s actions were reasonable). After Webster
attempted to address these issues in the pretrial hearing and was
preliminarily denied, he did not attempt to introduce this evidence at
trial. He raised the issue again for the first time in his combined motion
for new trial and arrest of judgment. The district court denied Webster’s
combined motion. Therefore, these claims were not preserved and must
be addressed under an ineffective-assistance-of-counsel framework. See
Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974) (noting a ruling on a
motion in limine “is not a ruling on evidence and should not, except on a
clear showing, be used to reject evidence”); see also Quad City Bank &
Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 90–92 (Iowa 2011)
(holding that failure to renew request to present expert testimony about
accountant’s work papers or to elicit further ruling from trial court as to
its admissibility failed to preserve error); Johnson v. Interstate Power Co.,
481 N.W.2d 310, 317 (Iowa 1992) (en banc) (holding that ruling
sustaining motion in limine only prohibited mentioning matter to jury
without first securing court permission and did not specifically rule
evidence in issue was inadmissible and therefore alleged error was not
preserved when the defendant failed to raise issue at time of cross-
examination, make offer of proof, or secure ruling on admissibility).
32
C. Merits. Although relevant evidence is generally admissible,
Iowa R. Evid. 5.402, the trial court may exclude relevant evidence “if its
probative value is substantially outweighed by the danger of unfair
prejudice . . . or [amounts to a] needless presentation of cumulative
evidence,” id. r. 5.403. We utilize a two-part test to decide whether
evidence should be excluded under rule 5.403. State v. Huston, 825
N.W.2d 531, 537 (Iowa 2013). “First, we consider the probative value of
the evidence. Second, we balance the probative value against the danger
of its prejudicial or wrongful effect upon the triers of fact.” Id. (citations
omitted) (internal quotation marks omitted). Probative value refers to
“ ‘the strength and force of the evidence to make a consequential fact
more or less probable.’ ” State v. Martin, 704 N.W.2d 665, 671 (Iowa
2005) (quoting Rodriquez, 636 N.W.2d at 240).
Unfairly prejudicial evidence, on the other hand, appeals to
the jury’s sympathies, arouses its sense of horror, provokes
its instinct to punish, or triggers other mainsprings of
human action that may cause a jury to base its decision on
something other than the established propositions in the
case.
Id. at 672 (internal quotation marks omitted); see also State v. Brown,
569 N.W.2d 113, 117 (Iowa 1997). In Martin, we noted that in weighing
probative value and unfair prejudice, the court considers:
(1) the need for the proffered evidence “in view of the issues
and other available evidence,” (2) whether there is clear proof
it occurred, (3) the “strength or weakness of the prior-acts
evidence in supporting the issue sought to be prove[d],” and
(4) the degree to which the evidence would improperly
influence the jury.
704 N.W.2d at 672 (quoting State v. Henderson, 696 N.W.2d 5, 11 (Iowa
2005)); see also State v. Putman, 848 N.W.2d 1, 10 (Iowa 2014)
(“Weighing probative value against prejudicial effect ‘is not an exact
science,’ so ‘we give a great deal of leeway to the trial judge who must
33
make this judgment call.’ ” (quoting State v. Newell, 710 N.W.2d 6, 20–21
(Iowa 2006))).
“Evidence of a homicide victim’s prior violent or turbulent
character is ordinarily immaterial and not admissible at trial.” State v.
Shearon, 449 N.W.2d 86, 88 (Iowa Ct. App. 1989) (citing State v. Jacoby,
260 N.W.2d 828, 837 (Iowa 1977)). “An exception to this general rule
exists where the accused asserts that he or she acted in self-defense and
the slightest supporting evidence is introduced.” Id. (noting “[s]pecific
instances of conduct may be used to demonstrate character when
character is an essential element of a claimed defense”); Jacoby, 260
N.W.2d at 837 (noting that when the defendant asserts self-defense, “the
violent, quarrelsome, dangerous or turbulent character of the deceased
may be shown, both by evidence of his or her reputation in that respect
and by witnesses who can testify from an actual knowledge of the
victim’s character”). However, even otherwise relevant admissible
evidence is inadmissible “if its probative value is substantially
outweighed by the danger of unfair prejudice.” Huston, 825 N.W.2d at
537 (internal quotation marks omitted).
1. Frisbie punching his pregnant ex-wife. During trial, the district
court ruled that the “specific instance of the violent act, the striking, is
relevant,” but the “probative value [of the fact that Frisbie’s ex-wife was
pregnant at the time of the strike] is substantially outweighed by the
danger of unfair prejudice.”
Here, the trial court correctly found that Frisbie’s act of striking his
ex-wife was relevant to show Frisbie’s violent/aggressive character.
Punching a woman would support the “violence against women” claim
that Webster contended, and the district court found, was relevant to
show Frisbie was the first aggressor. However, admitting the additional
34
fact of Frisbie’s ex-wife’s pregnancy was not essential for Webster to
prove his defense. Therefore, although this evidence is minimally
relevant, the district court did not abuse its discretion in excluding it by
finding its probative value was substantially outweighed by the danger of
unfair prejudice. See, e.g., Shearon, 449 N.W.2d at 87–88 (excluding
testimony of the victim’s attempted rape of a woman hours before the
victim’s death because it presented a risk that the jury might think he
“got what he deserved”); see also id. at 88 (“Unfair prejudice exists when
minimally relevant evidence could lead a jury to improperly use it to
reach a decision based on inflammatory and emotional considerations
that are unfavorable to a victim because of his or her conduct or
lifestyle.”).
In considering the Martin factors, on balance, we cannot say the
trial court did not fairly weigh the probative value of the evidence against
the probable dangers of unfair prejudice of admitting it. The first (need
for evidence) and fourth (improperly influence) factors weigh against
admitting the evidence. See Martin, 704 N.W.2d at 672–73 (holding the
district court should have excluded testimony about defendant’s prior
arrests and violent tendencies, as “the first and fourth factors weigh[ed]
heavily against admission of the evidence”). Regarding the first factor,
there was evidence presented from numerous sources that Frisbie was
sexually violent towards women, including testimony from Frisbie’s ex-
wife that Frisbie raped her twice over the course of their relationship and
struck her multiple times, including in the stomach. In addition,
Webster’s wife Ann testified that in her opinion Frisbie was sexually
violent. Webster testified about what Frisbie told him about how he
violently sexually assaulted women, including his first wife. Finally,
Special Agent Jeff Uhlmeyer testified that he retrieved a computer Frisbie
35
had utilized in the past that contained a commercially produced video
relating to sexual violence against women. Therefore, “the need for the
proffered evidence was weak in light of the other available evidence.”
Martin, 704 N.W.2d at 672; cf. Gregg v. United States, 683 F.3d 941, 945–
46 (8th Cir. 2012) (holding prior specific acts would be unfairly
prejudicial when, in proving self-defense, the defendant introduced
enough evidence to show the victim’s propensity for violence).
Although the second (clear proof of occurrence) and third (strength
or weakness of prior-acts evidence) Martin factors tend to lend support
for admission of the evidence, the fourth factor also weighs against
admission of the evidence. 704 N.W.2d at 672. As the State contends,
“the jury would foreseeably be sensitive to crimes against a pregnant
woman.” Although this fourth factor is a somewhat close call, based on
this factor, we cannot say the trial court abused its discretion in
excluding the fact that Frisbie’s ex-wife was pregnant at the time Frisbie
punched her. Cf. id. at 672–73 (noting the fact that the defendant was
violent “could only serve to inflame the passions of the jury”). We
emphasize the narrowness of the trial court’s ruling, as evidence of
Frisbie’s other violent behavior towards his ex-wife was allowed.
Lastly, we note that even if the probative value of the evidence
related to Frisbie’s ex-wife’s pregnancy warranted its admission, its
exclusion would fall within the realm of harmless error. See id. at 673
(applying harmless error test to trial court’s evidentiary error); State v.
Caples, 857 N.W.2d 641, 648 (Iowa Ct. App. 2014) (concluding that there
was “overwhelming evidence of guilt and any evidentiary error was
harmless”); Shearon, 449 N.W.2d at 88 (“Evidence of Shearon’s guilt was
overwhelming and would sustain a finding of harmless error in this
case.”).
36
2. Felon status and prison mentality. Webster next claims his
counsel was ineffective for not attempting to introduce evidence of
Frisbie’s felon status and prison mentality, arguing that without this
information, the jury could not fairly assess the reasonableness of
Webster’s actions in the face of Frisbie’s violence against Hall. Beginning
with the prejudice prong under an ineffective-assistance claim, we find
Webster has not shown there is a “reasonable probability that the
outcome would have been different” had this specific evidence been
admitted. See Everett v. State, 789 N.W.2d 151, 160 (Iowa 2010).
Webster was able to present evidence of Frisbie’s “hatred of authority”
through other means and therefore, had testimony regarding Frisbie’s
prior felonies been admitted, it would not have assisted Webster’s
defense.
There was evidence presented that Frisbie was generally known as
a violent person who hated “authority figures.” Webster himself testified
at length about the importance of not “crossing the line” with Frisbie,
because once he exerted any amount of perceived authority, Frisbie
could snap. Regarding the suggested threesome, Webster testified that
he didn’t want to participate and when he discussed the topic with
Frisbie, he would always try to change the conversation because
[t]here was a delicate balance that had to be maintained, and
it was important not to upset the balance with [Frisbie],
because if you were to appear as what I would describe as an
authoritative figure, then you could essentially be looked at
differently in his eyes more so as an enemy and not as a
friend.
Webster clarified that if he were to cross the line he would be viewed by
Frisbie like others who had crossed the line and would be subject to
Frisbie’s violent outbursts. This testimony helped explain to the jury
Webster’s theory of the case, namely that he did not have any other
37
choice but to use deadly force when he saw what he believed was Frisbie
attempting to rape Hall, and that if he had tried to intervene, Frisbie
could have reacted violently towards him or Hall.
The jury, therefore, had ample evidence presented to it regarding
Frisbie’s relevant prison mentality to put the contended reasonableness of
Webster’s actions in context. The jury also heard testimony from multiple
sources related to the unreasonableness of Webster’s use of deadly force.
Therefore, Webster has failed to prove by a preponderance of the evidence
that his trial counsel’s failure to introduce evidence of Frisbie’s felon
status and prison mentality resulted in prejudice.
VI. Conclusion.
For the above reasons, the decision of the court of appeals is
vacated and the judgment of the district court is affirmed.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
All justices concur except Wiggins and Zager, JJ., who concur
specially, and Hecht, J., who concurs in part and dissents in part.
38
#13–1095, State v. Webster
WIGGINS, Justice (concurring specially).
Although I agree with the majority that, on the record made, Tyler
Webster is not entitled to a new trial, I have questions whether the
representation given Webster was effective. However, issues regarding
ineffective assistance of counsel, if any, will have to be fully explored in a
postconviction-relief proceeding.
Additionally, I am shocked that in a criminal trial in which the
State charges the defendant with a serious crime a record was not made
of the court’s admonitions or jury selection. 11
Zager, J., joins this special concurrence.
11Our rules of procedure require the court to report these matters unless waived.
Iowa R. Civ. P. 1.903(2)(a)–(b); Iowa R. Crim. P. 2.19(4). Waiver of these matters by the
parties should be shown in the record. Iowa R. Civ. P. 1.903(2). The record shows
Webster’s attorney waived reporting of jury selection. The record does not indicate
Webster’s input in the decision to waive the reporting of jury selection.
39
#13–1095, State v. Webster
HECHT, Justice (concurring in part and dissenting in part).
I agree the juror’s conversation at a convenience store and her
posttrial research into Knight’s age do not constitute juror misconduct
warranting a new trial. I also concur with the majority’s affirmance of
the district court’s evidentiary rulings. Further, I wholeheartedly join in
the majority’s recommendation of careful admonitions regarding jurors’
social media usage during trial. However, I part ways with the majority
on one very important point. I believe the evidence establishes the juror
and Frisbie’s stepmother were more than casual acquaintances and the
juror’s interactions with her on Facebook went beyond mere expressions
of empathy. I conclude the record sufficiently demonstrates the juror
and the stepmother had a relationship that rendered the juror biased.
Because my confidence in the fairness of the trial and the jury’s verdict is
shaken by evidence of bias, I would affirm the court of appeals decision
granting Webster a new trial.
“[J]urors must be—and must be perceived to be—disinterested and
impartial.” State v. Smith, 418 S.W.3d 38, 45 (Tenn. 2013) (emphasis
added); accord State v. Carey, 165 N.W.2d 27, 29 (Iowa 1969) (“[T]he jury
is to be above suspicion . . . . [W]e along with all courts have zealously
guarded the utter independence of jurors.”). Whether or not the juror in
this case was actually biased, the circumstances presented here are such
that an observer could reasonably believe she was. Cf. Carey, 165
N.W.2d at 28, 30 (granting a new trial after the county attorney’s office
provided the jury with free coffee because “any member of the public who
might become familiar with [the relevant facts]” could reasonably
conclude it was “an intentional attempt to secure favor,” even if it
genuinely was not). Even the perception of unfairness damages our
40
judicial system. See Lynch v. Kleindolph, 204 Iowa 762, 764, 216 N.W. 2,
3 (1927) (“The question before us is not . . . whether any actual wrong
resulted from the association with the juror under the circumstances
[presented here], but whether it created a condition from which the
opposing litigants and the general public might suspect that wrong
resulted from this association.” (Emphasis added.)). I would avoid that
perception and prevent that damage by granting Webster a new trial in
this case. See State v. Delgado, 588 N.W.2d 1, 5 (Wis. 1999) (“[T]he value
of finality and the sanctity of a jury verdict must yield when juror bias
undermines confidence in the fairness and impartiality of the trial.”);
State v. Gesch, 482 N.W.2d 99, 103 (Wis. 1992) (“Whether [a certain
juror]’s presence in the jury room actually hindered [deliberations] we
will never know, but what is important is the fact that it could have.”).
I. The Juror’s Actions and Omissions.
I conclude the available evidence, when considered in its entirety,
weighs against the juror’s insistence she could be impartial and
establishes her bias. Before trial, the juror told a few of her coworkers—
the clerk of court and a court attendant—that she would probably not be
selected to serve on the jury because she knew the family. Further,
evidence in the posttrial record tends to prove she stated after the trial
that she remained on the jury because she was not asked a specific
enough question during voir dire that would allow her to disclose her
relationship with the Frisbie family. The statement to her coworkers and
the posttrial statement are evidence the juror knew she had information
that could reasonably be perceived as supporting a finding of bias. “She
was intruding into a relation for which she believed herself ineligible.”
Clark v. United States, 289 U.S. 1, 10, 53 S. Ct. 465, 468, 77 L. Ed. 993,
998 (1933) (emphasis added).
41
Despite her acquaintance with the Frisbie family and her belief she
would be excused from service because of it, the juror did not volunteer
any information about her relationship with the Frisbie family during
voir dire. She later testified she did not volunteer any information
because she did not know how; she thought she had to be asked a direct
question to speak on the subject. However, although voir dire was not
reported, the parties apparently do not dispute that another prospective
juror volunteered during voir dire that he knew both the Webster family
and the Frisbie family and was consequently excused from service.
Having seen another prospective juror speak up, the challenged juror
was on notice that she could (and should) do the same. See Delgado,
588 N.W.2d at 7 (concluding that, when four members of the voir dire
panel volunteered information tending to show they would be biased,
another juror was “on notice that she should reveal” similar information
about herself). Accordingly, the challenged juror’s explanation that she
was “dumb to the rules” is unpersuasive at best. In Delgado, the
Wisconsin Supreme Court concluded that when a juror withheld material
information even after other jurors disclosed similar knowledge, a trial
court erred in finding no juror bias. See id. at 7–8. I believe Delgado
should inform our analysis here.
After a court attendant brought the juror’s pretrial comments to
the judge’s attention and expressed surprise the juror had been
empaneled, the juror testified in camera during trial that she was a
Facebook friend of Frisbie’s stepmother. I agree this connection alone
might not support a finding that the juror harbored disqualifying bias.
As the Kentucky Supreme Court has explained:
“[F]riendships” on Facebook and other similar social
networking websites do not necessarily carry the same
weight as true friendships or relationships in the community
42
. . . . The degree of relationship between Facebook “friends”
varies greatly, from passing acquaintanceships and distant
relatives to close friends and family. The mere status of
being a “friend” on Facebook does not reflect this nuance
and fails to reveal where in the spectrum of
acquaintanceship the relationship actually falls. Facebook
allows only one binary choice between two individuals where
they either are “friends” or are not “friends,” with no status
in between.
....
Consequently, a juror who is a “Facebook friend” with
a family member of the victim, standing alone, is arguably
not enough evidence to presume juror bias sufficient to
require a new trial. As with every other instance where a
juror knows or is acquainted with someone closely tied to a
case, it is the extent of the interaction and the scope of the
relationship that is the relevant inquiry.
Sluss v. Commonwealth, 381 S.W.3d 215, 222–23 (Ky. 2012). However,
in this case the extent of the interaction and scope of the relationship—
the “relevant inquiry” according to the Kentucky Supreme Court—reveals
a closer connection than “passing acquaintanceship.” See id.
Although they were friends before trial, the nature of the
relationship between the juror and Frisbie’s stepmother is most
dramatically evidenced by their Facebook communication during and
after trial. The stepmother posted a request for emotional support and
the juror responded, through the Facebook act of “liking.” As the
majority notes, the juror’s affirmative act of responding to the request
does not expressly relate to Webster’s guilt or innocence. Yet, I conclude
actions establishing disqualifying bias need not rise to that high level of
materiality. I think it evident that a reasonable person observing the
stepmother’s request for support would have understood it was directly
related to the emotional turmoil arising from the ongoing trial of the
murder charge against Webster. More importantly, a reasonable person
43
could understand the juror’s act of liking the request as the juror’s
affirmative expression of emotional support for the stepmother.
This case presents more troubling facts than Oro-Jimenez v.
Commonwealth, 412 S.W.3d 174, 180–81 (Ky. 2013). In Oro-Jimenez, a
juror conversed with a victim in a robbery case regarding “how [the
victim] was doing” and stated the juror was sorry the victim had “to go
through that.” Id. at 180. The Kentucky Supreme Court held this
interaction did not provide grounds for a mistrial. Id. at 181. However,
the interaction took place during the penalty phase, after the jury had
already rendered a guilty verdict. See id. at 180. In other words, while
the juror perhaps felt sympathy for the victim during trial, the juror at
least waited to express that sympathy directly until after rendering a
verdict on guilt. Further, I see nothing in Oro-Jimenez indicating that the
juror and the victim had a social relationship that antedated the trial. In
this case, the juror’s relationship with Frisbie’s stepmother existed before
the trial, and her communication during trial occurred before the jury
started deliberating.
The communications evidencing a relationship between the juror
and Frisbie’s stepmother continued after the trial. It seems quite clear to
me that the juror’s perception of the closeness of the relationship
demanded she communicate with the stepmother about the jury’s
verdict. Indeed, the content of the juror’s posttrial communication in
this case—“I wish you could have gotten murder in 1st degree”—carries a
more troublesome substantive connotation than the manifestation of
generalized empathy at issue in Oro-Jimenez. The juror’s posttrial
communication in this case reveals she was motivated to return a verdict
she knew her friend wanted and felt obligated to offer an explanation as
to why that did not occur. It allows for the possibility that the previous
44
Facebook expression of emotional support to the stepmother during trial
really meant “I’ve got your back,” and it evidences a closer relationship
than a juror and a victim’s family would or should typically share. See
Lynch, 204 Iowa at 764–65, 216 N.W. at 3 (concluding “the district court
should have granted a new trial” when the defendant in a civil case had
lunch with a juror during trial, even though the two men had never met
before and even though “the case on trial was never mentioned at any
time” during the meal); cf. Clark, 289 U.S. at 11, 53 S. Ct. at 468, 77 L.
Ed. at 998 (“What was sought to be attained was the choice of an
impartial arbiter. What happened was the intrusion of a partisan
defender.”).
II. Assurances of Impartiality.
Furthermore, I conclude the district court afforded too much
weight to the juror’s professed ability to be impartial. Indeed, I find
unsatisfying the notion that the principal consideration in determining
bias is the potentially biased juror’s own assurances that he or she can
be impartial. See Mary R. Rose & Shari Seidman Diamond, Judging
Bias: Juror Confidence and Judicial Rulings on Challenges for Cause, 42
Law & Soc’y Rev. 513, 518 (2008) [hereinafter Rose & Diamond]
(“[S]tudies suggest that judges declare jurors to be fair when jurors say
they can be fair.”). I recognize that in many instances, there is no other
information available, because bias challenges tend to be raised during
voir dire and adjudicated on very limited inquiries attributable in part to
the press of time. See Dov Fox, Neuro-Voir Dire and the Architecture of
Bias, 65 Hastings L.J. 999, 1012 (2014) [hereinafter Fox] (acknowledging
trial judges and lawyers conducting voir dire are often “in the precarious
position of trying to read [potential jurors’] minds in an effort to ascertain
outside influences that might affect the jurors’ decisionmaking”). I also
45
recognize that some prospective jurors claim bias “as a pretext for getting
out of service,” and judges therefore often approach bias claims
skeptically, aiming to keep a juror eligible if possible to prevent a mass
exodus from the venire. Rose & Diamond, 42 Law & Soc’y Rev. at 515–
16. But this case presents neither of those features; it arises from a
posttrial motion, when the judge could consider not only the juror’s
testimony, but the totality of other available evidence. In this procedural
posture, I think the juror’s own assurances deserve less weight and
should be treated just as skeptically as those made during voir dire by a
potential juror who flippantly says whatever they think will get them
excused from service. See State v. Lindell, 629 N.W.2d 223, 233 (Wis.
2001) (“[I]n some cases bias can be detected . . . even though [the juror]
pledges impartiality.”); see also Clark, 289 U.S. at 10, 53 S. Ct. at 468,
77 L. Ed. at 998 (affording little weight to a juror’s own testimony, even
though she “stated to the court that her mind was free from bias,”
because the other available evidence was in conflict).
Self-assessments of one’s own impartiality are often overly
optimistic. See Rose & Diamond, 42 Law & Soc’y Rev. at 516 (“[P]eople
often have difficulty producing accurate self-assessments of bias and find
it difficult to estimate whether events or prior experiences are likely to
influence them.”); see also Shari Seidman Diamond et al., Realistic
Responses to the Limitations of Batson v. Kentucky, 7 Cornell J.L. & Pub.
Pol’y 77, 92 (1997) [hereinafter Diamond et al.] (“People are often unable
to recognize the extent to which their experiences or attitudes affect their
judgments.”). Thus, “simply asking jurors whether they can be impartial
is not likely to reveal with any reliability the presence or strength of
many of the outside influences that they would in fact bring to bear on
the questions at trial.” Fox, 65 Hastings L.J. at 1011. Jurors may say
46
they can be impartial—even if they cannot be—for a variety of reasons,
and they might even be “oblivious to the . . . bias they harbor.” Id. at
1020; see also Rose & Diamond, 42 Law & Soc’y Rev. at 516 (recognizing
judges faced with a juror “who promises to be fair” must evaluate
whether the juror “is perhaps underestimating the potential difficulty of
remaining fair and impartial during the trial”).
The most pernicious example of overstated impartiality occurs
when a juror has a personal or financial interest in the parties or the
outcome, and therefore wants to be selected for or remain on the jury to
influence it. See Fox, 65 Hastings L.J. at 1023–25. There are, of course,
other more benign reasons jurors are so often confident they can be fair.
For example, jurors may profess impartiality to boost their self-image
because “questions suggest that it is ‘better’ to answer one way than
another.” Rose & Diamond, 42 Law & Soc’y Rev. at 516. In other words,
“individuals recognize that fairness is a desirable characteristic, and
most people want to believe that they possess it.” Id.; see also Diamond
et al., 7 Cornell J.L. & Pub. Pol’y at 90 (“[J]urors may be hesitant to
reveal experiences or attitudes that would embarrass them . . . .”);
Valerie P. Hans & Alayna Jehle, Avoid Bald Men and People with Green
Socks? Other Ways to Improve the Voir Dire Process in Jury Selection, 78
Chi.-Kent L. Rev. 1179, 1195 (2003) [hereinafter Hans & Jehle] (“The
desire to appear favorably is a main concern of prospective jurors, and
that shapes [what] they disclose . . . .”). Additionally, jurors may
“identify with the community or feel pressure to conform to its norms in
ways that favor a particular side”—a concern that prompted the court to
change venue for the trial of Timothy McVeigh because the possibility of
jurors feeling “pressure to conform . . . decisionmaking in a way that
would serve [the] community’s perceived interests” was too great. Fox,
47
65 Hastings L.J. at 1029, 1031–32. Frisbie’s death was gruesome and
the juror in this case acknowledged that Fairfield was abuzz both on the
night Frisbie died and during Webster’s trial. I think it is entirely
reasonable to conclude the community was very interested in these
proceedings, and this general atmosphere of rapt attention may have
influenced the juror even though she confidently testified anything she
had previously heard or read about the case would not and did not affect
her deliberations.
But most importantly, jurors often state they can be impartial
simply because they believe the judge wants them to be. See Mark W.
Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection:
The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson,
and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 160 (2010) (“As a
[federal] district court judge for over fifteen years, I cannot help but
notice that jurors are all too likely to give me the answer that they think I
want, and they almost uniformly answer that they can ‘be fair.’ ”);
Diamond et al., 7 Cornell J.L. & Pub. Pol’y at 91 (“[J]urors may be
hesitant to reveal opinions that they believe might engender disapproval
from the judge or others.”); Kurt F. Ellison, Comment, Getting Out of the
Funk: How Wisconsin Courts Can Protect Against the Threat to Impartial
Jury Trials, 96 Marq. L. Rev. 953, 979 (2013) (“[J]urors’ statements of
impartiality are often motivated by pressure from the judge . . . .”). It is
easy to capitulate when the approval of an authoritative figure might be
at stake:
[J]urors may give in to the pressure to comply and say they
can be impartial, even though their real feelings have not
changed. The judge’s approval is important to a lot of . . .
jurors and many will alter their responses or hide certain
attitudes in order to be perceived favorably.
48
Hans & Jehle, 78 Chi.-Kent L. Rev. at 1194. Of course, if a juror is just
saying what they think the judge wants to hear, their words illuminate
very little about whether they are actually biased. Because the juror in
this case could have had other reasons for stating she could be impartial,
and because the record includes other evidence of bias, I view the juror’s
assurances very skeptically.
III. The District Court’s Untenable Conclusions.
Finally, in addition to the juror’s relationship with Frisbie’s
stepmother and the weight afforded her assurances of impartiality, I
believe two of the grounds for the district court’s decision to deny
Webster’s motion for new trial are clearly untenable. Trial courts have
broad discretion to decide whether juror bias warrants a new trial. See
State v. Johnson, 445 N.W.2d 337, 340 (Iowa 1989). However, a district
court abuses that discretion if it renders a decision on clearly untenable
grounds. I think the district court did so here.
First, the district court concluded any bias the juror harbored “was
not reflected in the verdict in which she participated,” because the jury
convicted Webster of second-degree murder rather than first-degree
murder. In other words, the court concluded empaneling a juror biased
against a criminal defendant is harmless error if the biased person does
not succeed in convincing the rest of the jury that it should return a
conviction on the most serious charge available. But this principle
cannot be right, because it would deny a hypothetical defendant a new
trial if a juror concealed racial bias until after a trial convicting the
defendant only of a lesser included offense—but brazenly admitted it
when questioned after the verdict. As Webster’s trial counsel asserted
before the district court, the important consideration is not the ultimate
result, but the process of reaching it:
49
[A biased juror] is one mind, one person, that we were
deprived of having the opportunity to convince. That could
have been the one hung juror, that could have been the one
juror that held out until the very end and swayed everyone
else. Because of what happened, we are forever denied of
knowing what would have been different.
I conclude the district court’s reliance on harmless error analysis—due to
the jury’s determination that Webster committed a lesser included
offense—makes its decision on the bias issue clearly untenable.
Second, the district court denied Webster’s motion for new trial
because there was no “indication that any . . . ostensible bias influenced
or infected any discussions or deliberations of the jury as a whole.” But
how would we know if the juror’s bias influenced the deliberations? Our
rules of evidence limit challenges to verdicts by precluding presentation
of any evidence regarding jury deliberations except for the question of
“whether extraneous prejudicial information was improperly brought to
the jury’s attention or whether any outside influence was improperly
brought to bear upon any juror.” Iowa R. Evid. 5.606(b). Jurors
generally may not testify about what was said in the jury room or what
did or did not motivate any juror to reach a particular verdict. Id. (“[A]
juror may not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon that or
any other juror’s mind or emotions as influencing the juror . . . .”) In this
case, any evidence the juror’s bias was manifest during deliberations
would fall right in the sweet spot of rule 5.606(b) and be excluded from
consideration. It was in my view clearly untenable for the district court
to support its decision by citing an absence of evidence on whether bias
influenced the jury’s deliberations when evidence on this question is so
severely curtailed by the applicable rule.
50
IV. Conclusion.
When considered together and in context, the juror’s belief she
would be disqualified from service if her relationship with Frisbie’s family
was known, her silence during voir dire about her acquaintance with
that family, her less than fulsome disclosure of recent Facebook
communications with the victim’s stepmother during the in-chambers
examination, and her Facebook contacts with Frisbie’s stepmother
during and after trial are enough in my view to show a relationship giving
rise to an inference of the juror’s actual bias. The juror insisted she
could decide the case impartially, but as I have noted, people often
overestimate their own capacity for impartiality. See United States v.
Burr, 25 F. Cas. 49, 50 (C.C.D. Va. 1807) (No. 14692G) (“[A juror] may
declare that notwithstanding [his] prejudices he is determined to listen to
the evidence, and be governed by it; but the law will not trust him.”);
Lindell, 629 N.W.2d at 235 (“It is not always enough that a . . . juror
assures counsel or the court that he or she will be impartial.”). Although
I strongly endorse the majority’s recommendation of careful jury
admonitions regarding jurors’ use of social media during trial, I would
affirm the court of appeals decision granting Webster a new trial in this
case.