State v. Ary

• Decision Date: 08 April 2016
• Docket Number: No. 14–1112.,14–1112.
• Citation: 877 N.W.2d 686
• Parties: STATE of Iowa, Appellee, v. Kenneth Osborne ARY, Appellant.
• Court: Iowa Supreme Court

877 N.W.2d 686

STATE of Iowa, Appellee,

v.Kenneth Osborne ARY, Appellant.

No. 14–1112.

Supreme Court of Iowa.

April 8, 2016.

Patrick W. O'Bryan, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.

WIGGINS

, Justice.

A defendant appealed his conviction following a jury trial on three counts of delivery of a controlled substance in violation of Iowa Code section 124.401(1)(c )(3) (2013)

. We transferred the case to the court of appeals. The court of appeals reversed the conviction on the ground the defendant's constitutional right to a fair trial by an impartial jury was violated when he was convicted by jurors who heard statements a prospective juror made during voir dire. The court of appeals thus remanded the case to the district court for a new trial without addressing the defendant's remaining claims. We granted the State's application for further review.

On further review, we conclude the district court did not deprive the defendant of an impartial jury or abuse its discretion by declining to hold a hearing to permit the defendant to show cause for missing an extended discovery and deposition deadline. In addition, we conclude we are unable to decide the defendant's claim of ineffective assistance of counsel. Finally, we agree with the State that the district court applied the wrong standard in ruling on the defendant's motion for new trial on the ground the verdicts were contrary to the weight of the evidence. Accordingly, we vacate the decision of the court of appeals, reverse the district court judgment on the motion for new trial on the ground the verdicts were contrary to the weight of the evidence, and remand the case with instructions. We affirm the district court judgment in all other respects.

I. Background Facts and Proceedings.

A jury convicted Kenneth Osborne Ary of three counts of delivery of a controlled substance in violation of Iowa Code section 124.401(1)(c )(3)

on June 4, 2014. However, the claims before us on further review concern primarily the events leading up to his trial.

The State charged Ary with three counts of delivery of a controlled substance on October 28, 2013. On November 20, the district court arraigned Ary, scheduled a pretrial conference for December 19, and set trial for January 15. The court appointed counsel to assist him on November 25.¹

During the pretrial conference on December 19, Ary waived his right to a speedy trial. The court also scheduled a second pretrial conference for February 12 and rescheduled trial for February 24. The same day, the court issued a pretrial conference order stating Ary must file any motions he wished to file within forty days of his arraignment. Because the court arraigned Ary on November 20, his deadline for taking depositions as of right expired December 20, and his deadline for filing pretrial motions other than motions in limine expired December 30. See Iowa Rs. Crim. P. 2.11(4)

, .13(6).

During the second pretrial conference on February 12, the court rescheduled trial for June 2. That day, the court also issued a status conference order indicating it would grant no additional continuances of the trial date assuming witness availability.

On February 25, Ary filed a handwritten pro se motion to produce. The court issued an order on March 6 stating it would withhold its ruling on the motion until defense counsel had an opportunity to consult with Ary.

On March 11, defense counsel filed a motion to produce and a motion for good cause for taking depositions past the required time. In the latter motion, counsel acknowledged the deadline for taking depositions had expired December 20 and asserted taking depositions past the deadline would not prejudice or inconvenience the State. The State filed a response to the motion to produce on March 14, indicating it would provide mandatory discovery and permit discretionary discovery. But the State filed a resistance to the motion for good cause on April 11, arguing the motion for good cause for taking depositions past the required time set forth no good cause for the untimely filing of the deposition request or permitting late discover of any type.

The court heard arguments on the pending motions on April 22. During the hearing, defense counsel pointed out that after the court appointed counsel to assist Ary on November 25, Ary had no opportunity to meet with or speak to his appointed counsel until December 19. Thus, Ary did not meet his appointed counsel until just before his deadline for taking depositions as a matter of right expired on December 20 and his deadline for filing pretrial motions other than motions in limine expired on December 30. See id. Counsel further noted that because his office had only recently assigned him to the case, he remained uncertain as to whether depositions were appropriate. However, counsel did not identify any caselaw suggesting these facts amounted to good cause for missing the deadline for filing a pretrial motion seeking discretionary discovery or the deadline for taking depositions.

The court concluded there was good cause to grant defense counsel one week to determine whether depositions were needed or further discovery was appropriate. The court ordered counsel to file written notice as to whether he needed to conduct depositions or further discovery by April 29. The court also reminded counsel the trial was still set for June 2 and it would not grant any further continuances assuming witness availability. Finally, during the hearing and in a writing filed later the same day, Ary reasserted his right to a speedy trial.

The following day, the court issued a written order reiterating the April 29 deadline for filing the written notice. The order stated upon receipt of the notice, the court would promptly establish deadlines associated with any additional discovery sought.

On April 30, one day after the extended deadline expired, defense counsel filed a notice of intent to take depositions and seek discovery. Two weeks later, the court had not yet ruled as to whether it would permit further discovery. On May 14, defense counsel filed a motion to determine the status of the pending deposition and discovery requests. In the motion, defense counsel indicated he realized too late in the day on April 29 that he was unable to meet the extended deadline the court had set during the April 22 hearing. Defense counsel also acknowledged the State opposed the court granting the defendant leave to take depositions and seek further discovery due to this technical violation of the court order.

On May 23, the court denied the pending deposition and discovery requests and declined to extend the deadline or permit Ary to conduct depositions or seek further discovery.

Jury selection for the trial began on June 2. Early on during voir dire, the prosecutor questioned the prospective jurors about how they determine whether someone is telling the truth, asking, "Have you ever been in a position where someone has told you something and you had to decide whether you believe them or not?" Panel member J.W. raised his hand, and the prosecutor called on him. J.W. responded with the following information:

I'm a pastor, and I've dealt with all kinds of things with that. So, you know, there's people that are pretty good liars. And you know that they've done something and you—they're pretty good at spinning the truth, so to speak, you know. So I've dealt with a lot with people who, you know—you get a lot of people that come to your church and they're hurting, you know, and they have issues, whether it be with alcohol, drinking and getting in trouble driving or drugs and are selling drugs. I've dealt with that. Had a lot of people that I've dealt with that have gone to jail. I've got people that have been accused of stealing even to an amount of felony and somehow they spun their way out of it.

I told [fellow panel member J.K.] before I came in here I didn't know what the case was but I said, if it's involving drugs, I'd probably think the person is guilty and that's only because of my personal experience because I realize that a person has a right to defend themselves and go through the process, but I think I'm fairly prejudiced on this, any kind of a drug case with all of my experiences because even people that I know come from good families, they try to pretend they're innocent. I know the inside story, and I know they're not. So when it comes to this type of thing with Des Moines Police who arrest the person on drug charges, it appears there's guilt.

Another panel member, A.H., spoke up in response to J.W., admitting she had "the exact opposite prejudice" because she believed most drugs should be legal.

The prosecutor did not focus on what A.H. said. Instead, he turned back to J.W. and asked, "[W]hen you reach that conclusion in your own mind that this person has done something or they haven't, they're telling you the truth or they're not, how do you do that?" J.W. responded,

Well, I mean, you know, you talk to them, and, you know, you know—you're fairly certain what's going on.

Like, I'll give you an example. We had a student from the time they were in fifth grade, they were stealing, and I knew they were stealing, so I had to set them up. We had a little pop can to get pop, and we knew that—you're supposed to drop a buck in the refrigerator can and take the bottle. So this kid would come by and he would, you know, come out with the pop, and, you know, we kind of watched and we started noticing, we don't think he's paying for this. In fact, we think he's taking money out of the can. So we marked the—we took the serial numbers off of a $5 bill before that afternoon when he got out of school, and this is right on his route home. So we dropped it in the can. So when he went in there, we went in behind him and, sure enough, the suspicion was true.

So all through the

...