804 N.W.2d 518 (Iowa 2011), 10-0113, State v. Krogmann

Docket Nº:10-0113.
Citation:804 N.W.2d 518
Opinion Judge:MANSFIELD, Justice.
Party Name:STATE of Iowa, Appellee, v. Robert Paul KROGMANN, Appellant.
Attorney:Dean Stowers of Stowers Law Firm, West Des Moines, for appellant. Thomas J. Miller, Attorney General, Martha E. Trout and Jim Kivi, Assistant Attorneys General, and John Bernau, County Attorney, for appellee. Matthew McCusker, Seattle, Washington, and Sonia Chopra, Oakland, California, for amicus...
Judge Panel:All justices concur except ZAGER, J., who takes no part.
Case Date:October 07, 2011
Court:Supreme Court of Iowa
 
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804 N.W.2d 518 (Iowa 2011)

STATE of Iowa, Appellee,

v.

Robert Paul KROGMANN, Appellant.

No. 10-0113.

Supreme Court of Iowa.

October 7, 2011

Page 519

[Copyrighted Material Omitted]

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Dean Stowers of Stowers Law Firm, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout and Jim Kivi, Assistant Attorneys General, and John Bernau, County Attorney, for appellee.

Matthew McCusker, Seattle, Washington, and Sonia Chopra, Oakland, California, for amicus curiae American Society of Trial Consultants.

MANSFIELD, Justice.

Robert Krogmann appeals his convictions, following a jury trial, for attempted murder and willful injury. Krogmann contends the district court erred in granting the State's pretrial request to freeze all his personal assets and requiring that he apply to the court for permission to use those assets for his legal defense. Krogmann also maintains the prosecutor committed reversible misconduct by asking an inflammatory question at trial.

Although we have concerns about the propriety of the asset freeze, we find that Krogmann failed to preserve error. We also find that error was not preserved as to the single incident of asserted prosecutorial misconduct and that this incident would not have amounted to reversible error in any event. For these reasons, we affirm Krogmann's convictions.

I. Background Facts and Proceedings.

On March 13, 2009, defendant Robert Krogmann, an individual with a history of depression and bipolar disorder, went to the home of his former girlfriend Jean Smith in an attempt to revive their recently ended relationship. While there, he shot Smith three times with a handgun. The first bullet entered Smith's stomach, the second her arm, and the third her spine. According to Smith, Krogmann told her " that if he couldn't have me, no one was going to have me and that we were both going to die there together that day."

Krogmann then called his son Jeff and told him what he had done. Jeff rushed to Smith's house dialing 911 while en route. When Jeff arrived, he found Smith lying on the floor with her robe soaked in blood. Jeff convinced his father to turn over the gun.

Krogmann was arrested shortly thereafter. On March 23, 2009, the State charged Krogmann with one count of attempted murder, a class " B" felony, and one count of willful injury causing serious injury, a class " C" felony. See Iowa Code § 707.11 (2009) (attempted murder); id. § 708.4(1) (willful injury causing serious injury).

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On March 24, 2009, the State applied for an order freezing all of Krogmann's assets. The unverified application stated that Smith had suffered severe injuries necessitating lengthy hospitalization, that Krogmann would be required to reimburse the victim for out-of-pocket expenses associated with hospitalization and after-care, that Krogmann would be subject to civil litigation, and that Krogmann " has a number of assets that he may attempt to sell or transfer to avoid his financial obligations to the victim of his offenses."

On March 30, 2009, the district court entered the requested order freezing all of Krogmann's roughly $3.4 million in assets.1 The order said:

All of the Defendant's assets shall be frozen. The Defendant shall make application to the Court for the sale or transfer of an asset at which time the Court will determine whether good cause has been shown to grant the application.

Because of a mailing error by the county attorney, Krogmann's attorney did not receive notice of the State's application until March 30, 2009. Unaware that the court had already granted the State's requested order, Krogmann filed a resistance on April 2, 2009. The resistance stated, in its entirety:

COMES NOW the Defendant, by counsel, and hereby resists the State's application for order, and in support thereof states:

1. The State asks the Court to freeze Defendant's assets.

2. The State has cited no authority for such nor does any exist.

3. Should the Court deem hearing necessary on the State's application, the undersigned will not be available for hearing for one and one half weeks starting 4/6/09 due to being in trial in federal court.

WHEREFORE, Defendant prays the Court deny the State's application for order, and prays for such further and other relief as may be fair and just.

The district court took no action on Krogmann's resistance, so on April 28, 2009, he filed an application for interlocutory appeal with this court. In that application, Krogmann pointed out that the district court had frozen his assets without a hearing and had cited no authority in its order. Krogmann argued that the district court " acted without authority," citing State ex rel. Pillers v. Maniccia, 343 N.W.2d 834 (Iowa 1984). He also maintained that the district court violated his " right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution."

Krogmann's application was treated as one for discretionary review and denied by this court on May 26, 2009.

Krogmann's bond was initially set at $750,000 cash only but was increased to $1 million cash only on June 1, 2009. To manage his frozen assets in accordance with the court order while he was in jail, Krogmann voluntarily established a conservatorship on April 13, 2009, naming an attorney (not his criminal defense lawyer) as conservator. Because of the asset-freeze order and the conservatorship, disbursement requests had to be made by the conservator and then approved by the probate

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court.2 Thus, court permission was required to pay legal fees and other defense-related expenses.

This process led to some delays in payments to Krogmann's defense lawyer. Also, two specific defense-related requests were rejected by the probate court after having been resisted by either Smith or the State. On July 20, 2009, following Smith's objection, the court denied Krogmann's request to use his farmland as security to post bail. Then, on October 30, 2009, following State objections, the court denied Krogmann's request to expend funds on a jury consultant.

At the October 27, 2009 pretrial conference preceding the criminal trial, the parties discussed the jury consultant at some length. Krogmann's defense attorney explained his plan to use the consultant to assist with jury selection. The State countered that the consultant would be " a luxury, not a necessity." Ultimately, the district court decided that the defendant would be allowed to use the consultant if he were able to retain one. The State then filed an objection in the probate court the next day, reiterating its view that funds for a consultant should be denied because " a jury consultant is consider[ed] a luxury rather than a necessity" and the defendant has no " right" to a jury consultant. On October 30, 2009, the probate court 3 denied the request for jury consultant funds without explanation. Accordingly, Krogmann proceeded to trial on November 2, 2009, without a jury consultant.

Because there had been a change of venue, Krogmann went to trial in Dubuque County. Krogmann presented a diminished capacity defense. The jury did not accept the defense and found him guilty of both charges on November 6, 2009. Krogmann was subsequently sentenced to a term of incarceration of up to twenty-five years for the attempted murder and a term of incarceration of up to ten years for the willful injury, with the terms to run consecutively.

Separate from the asset-freeze order, the State had also filed a criminal restitution lien under Iowa Code section 910.10 (2009) on June 18, 2009. Following his convictions, Krogmann was ordered to pay $35,570.14 in restitution to Smith and $18,219.54 in restitution to the Delaware County Sheriff's Department and the State for its prosecution expenses.

Krogmann filed a notice of appeal on January 14, 2010. On appeal, Krogmann argues that the asset freeze was contrary to Iowa law and also violated his constitutional rights to due process, to be free from unreasonable seizures, and to counsel. Additionally, Krogmann argues that the State deprived him of the right to a fair trial when it asked him during cross-examination, " Shot anybody today?"

II. Standard of Review.

In considering alleged violations of constitutional rights, our standard of review is de novo. State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010). " [W]e make an independent evaluation [based on] the totality of the circumstances as shown by the entire record."

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State v. Brooks, 760 N.W.2d 197, 204 (Iowa 2009) (internal quotation marks omitted). " Each case must be evaluated in light of its unique circumstances." Id.

" A temporary injunction is a preventive remedy to maintain the status quo of the parties prior to final judgment and to protect the subject of the litigation." Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180, 184 (Iowa 2005) (internal quotation marks omitted). Our review is for an abuse of discretion. Id. The decision to issue a temporary injunction " requires great caution, deliberation, and sound discretion." PIC USA v. N.C. Farm P'ship, 672 N.W.2d 718, 722 (Iowa 2003) (internal quotation marks omitted). We usually will not overturn such a decision unless there has been an abuse of discretion or violation of a principle of equity. Id.

Prosecutorial misconduct claims are reviewed for abuse of discretion. State v. Jacobs, 607 N.W.2d 679, 689 (Iowa 2000). Abuse is found if " a court acts on grounds clearly untenable or to an extent clearly unreasonable." State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006).

III. The Asset Freeze.

The threshold question we must answer is whether Krogmann preserved error in the district court on his objections to the asset freeze. As noted by the State, Krogmann filed only a one-page resistance to the State's application in the district court, after the application had been granted, in which he argued that no...

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