State v. Atwood

• Decision Date: 17 November 1999
• Docket Number: No. 98-1387.,98-1387.
• Citation: 602 N.W.2d 775
• Parties: STATE of Iowa, Appellee, v. Jeremy ATWOOD, Appellant.
• Court: Iowa Supreme Court

602 N.W.2d 775

STATE of Iowa, Appellee, v. Jeremy ATWOOD, Appellant.

No. 98-1387.

Supreme Court of Iowa.

November 17, 1999.

As Amended on Denial of Rehearing December 8, 1999.

Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Moss, Dunn & Montgomery, L.L.P., for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Denver D. Dillard, County Attorney, and Harold L. Denton, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and LARSON, CARTER, CADY, and ANDREASEN,¹ JJ.

LARSON, Justice.

Jeremy Atwood was convicted of two counts of vehicular homicide under Iowa Code section 707.6A(1)(b) (1997). He appealed, challenging the district court's refusal to change venue and several rulings made during trial. His main challenge, however, arises out of the trial court's handling of an anonymous telephone threat during the trial. We treat this last issue first.

I. The Threat.

This case, which involved the deaths of two young children who were struck by the defendant's car, evoked strong emotions in the local community. During the trial, on the morning scheduled for final arguments, a receptionist in the public defender's office heard from an anonymous caller that the trial participants, including the prosecutor, defense counsel, and jurors, would all be killed unless a certain verdict was returned. The receptionist, understandably shaken, could not remember whether a conviction or acquittal was demanded. The judge delayed closing arguments, originally scheduled for morning, until 1 p.m. However, at 1:15 p.m., without the jury present, the judge announced to the parties and the spectators present in the courtroom that closing arguments would be delayed because of the threatening phone call. The court met with the attorneys and Atwood. The court related the gist of the telephone call and outlined the precautions being taken. The court invited discussion and suggestions from the parties as to what to tell the jury. The court proposed it go to the jury room and tell the jury on the record, in very general terms, that the proceedings were delayed due to the receipt of a threatening phone call. Defense counsel objected to this procedure and moved for a mistrial or a total sequestration of the jurors. Counsel for the defendant, however, did not request to be present in the jury room when the judge spoke to the jurors, and this is the basis for Atwood's ineffective-assistance-of-counsel issue discussed later.

The court overruled the defendant's motions and went to the jury room, with his court reporter. He explained the situation to the jurors, and we set out the full text of the court's remarks later in this division. Immediately after the court's discussion, the court reporter read to the defendant and the attorneys the record of the conversation with the jury. Defense counsel renewed, unsuccessfully, their objection to the procedure. The trial went forward. The parties made their closing arguments the next day, and the case was submitted to the jury, which found Atwood guilty on both counts.

On appeal Atwood renews his complaint about the way the court handled the threat. He argues the court (1) exposed the jury to extrajudicial material, which affected their ability to render an impartial verdict—a violation of the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections IX and X of the Iowa Constitution; and (2) improperly denied the defendant his right to be present during all trial proceedings, thus violating the same federal and state constitutional provisions.

A. The extraneous material. In the context of alleged juror misconduct based on consideration of evidence outside the record, we have said "when there is proof that extraneous material has reached the jury room, the party seeking to overturn the verdict must show `that the misconduct was calculated to, and with reasonable probability did, influence the verdict.'" State v. Henning, 545 N.W.2d 322, 324-25 (Iowa 1996) (quoting Doe v. Johnston, 476 N.W.2d 28, 35 (Iowa 1991)).

This defendant asks that we adopt a per se rule that would make any communication between a judge and jury, outside the presence of the defendant, reversible error. We decline to adopt such a rule. We believe that, for a claim of error to prevail in such a case, the party making such a claim must show a reasonable likelihood that the extraneous evidence influenced the verdict. Cf. Henning, 545 N.W.2d at 324-25.

One resolution of the problem raised in this scenario would have been for the trial court to simply grant the defendant's motion for mistrial. We do not believe this was required under the circumstances of this case, nor would this resolution be advisable on policy grounds; litigants whose trial was proceeding badly could simply arrange for a threatening phone call and thereby start over again under a mistrial order. The court, we believe, acted properly to alert the jurors, without alarming them and without informing them that the threatened action was contingent on a certain jury verdict. We set out now, in more detail, the court's resolution of the problem.

After the threat was reported to the judge, the judge summarized the content of the call to the extent the receptionist could recall it. In proposing its solution to the problem, the court then stated to the defendant and the attorneys:

Counsel, I'll listen to you before making a final decision, but I tend to think that the most reasonable way to proceed here, and perhaps the fairest from the point of view of both the Defendant and the State, would be for the Court to personally make a brief statement to the jury informing them in general terms that the proceedings were delayed because of a threat that was called in. And I don't think it's necessary to provide them with all the specific details, but I think it is appropriate in view of concerns for their safety as well to provide them with general information indicating that there were general threats made to, essentially, all the participants in this case.

I would intend to tell them that I had referred the call for investigation and taken the actions that I thought were reasonable and appropriate to provide for additional security. And then instruct them that if anyone attempted to have any contact with them regarding the case, they should, as previously instructed, immediately let the Court know about that so that I could take whatever actions were appropriate. And then reconvene and indicate that they would be called upon to hear the case and decide it tomorrow morning at ten o'clock.

It seems to me that it would not be appropriate for me to answer a lot of questions. If they have questions, I probably would just have the reporter note those questions so the State and the Defendant would have an opportunity to be aware of those before I made any kind of a response.

Counsel for the State had no objection to this proposal, but defense counsel did; they moved for a mistrial, which was denied. As proposed, the judge and the court reporter met with the jurors.

We set out the court's statements to the jury in full because the content of that statement is essential to a resolution of the issue raised in this division as well as the following subdivision concerning Atwood's exclusion from that communication. The court stated to the jury:

THE COURT: For the benefit of the record, the Court is visiting with our 14 jurors in this case in our jury conference room.

Ladies and gentlemen, I wanted to explain to you why we're delayed. We made wonderful progress the first six days, and we're a day or two ahead of schedule. But what happened this morning was shortly before we were scheduled to begin our closing arguments there was brought to the Court's attention the fact that an anonymous phone call that was threatening in nature and directed to virtually all of the participants in this trial had been placed. And, obviously, that was something that I then had to deal with.

Unfortunately, this is something that occasionally occurs at the courthouse, not often but once in awhile, and we just have to deal with an issue when it comes up. And I have taken steps that I think are appropriate. Obviously, involved some law enforcement officers to investigate the circumstances. And, in addition, taken some steps to ensure that we have enhanced security during the course of the trial.

And when we come back tomorrow, I wanted to make you aware that I have got our metal detector, and things like that, that are set up, and I'm going to go ahead and use those. We use those fairly often in connection with cases that occur at the courthouse. And I am going to go ahead and set those up and have those operative tomorrow.

One thing I guess I would like to say is, you know, I know this is something that's new to you, but we occasionally have to go down this road. Obviously, if somebody makes a call, even if we believe it is a crank call, we have to react to it appropriately rather than ignore it, which is what I have tried to do here.

And right now we're scheduled to reconvene with closing arguments commencing tomorrow at ten o'clock. Because this all happened we could not make the arrangements that were necessary to go ahead and start arguing the case this afternoon. So that's where we are at this point in time.

I guess one thing that I would like to tell you by way of reassurance is I have been in this district for 25 years, 12 as a lawyer, and 13 as a judge; and although we get calls of this nature from time to time, I'm aware of no occasion in 25 years that I have been around here where anybody has ever followed up in connection with a call of this nature. So I did feel, though, that it's appropriate to make you aware of why you have been sitting up here since ten o'clock since we have tried to minimize occasions when that has occurred during the trial.

Now, I have not yet excused the parties.

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