State v. Christianson

• Citation: 337 N.W.2d 502
• Decision Date: 17 August 1983
• Docket Number: No. 68063,68063
• Parties: STATE of Iowa, Appellee, v. Kevin Roy CHRISTIANSON, Appellant.
• Court: United States State Supreme Court of Iowa

Page 502

337 N.W.2d 502

STATE of Iowa, Appellee, v. Kevin Roy CHRISTIANSON, Appellant.

No. 68063.

Supreme Court of Iowa.

Aug. 17, 1983.

Francis C. Hoyt, Jr., Appellate Defender, and Linda Del Gallo, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Steven M. Foritano, Asst. Atty. Gen., and Jack W. Dooley, County Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McGIVERIN, LARSON, and WOLLE, JJ.

REYNOLDSON, Chief Justice.

The court of appeals affirmed defendant's conviction of two counts of second-degree sexual abuse, a violation of Iowa Code sections 709.1, .3. Defendant filed application for further review, requesting us to review that court's failure to reverse on the ground of jury misconduct. We granted further review and now affirm the decisions of the court of appeals and the district court.

Under this record the jury could have found defendant was Cindia Dutton's boyfriend. Further, that one night when baby-sitting with her children, Jude, age eight, and Tawnya, age five, he subjected them to various acts of sexual abuse.

The State's case consisted largely of evidence placing the children with defendant at the time and place in issue, together with Jude's testimony concerning the acts, corroborated by his complaints to two witnesses the following morning.

Cindia Dutton, testifying for the defense, sought to impugn Jude's credibility as a witness. She described him as a troublemaker and a liar, and asserted she and the defendant had discussed sending him to a military school for disciplinary purposes. Referring to such a school, Cindia testified "that the tuition could be partly paid by the military since my ex is a disabled veteran."

Defendant's new trial motion alleged jury misconduct on the ground juror Kay Loeffelholz had told the other jurors her son had been the victim of a sexual attack, a fact defendant asserts was not revealed on the juror questionnaire or on voir dire. He further asserts it was misconduct for juror William Hobbs to contact the Veterans Administration, learn that veteran's benefits were not available to pay Jude's military school expenses unless his father was killed in action or awarded the medal of honor, and report this fact to other jury members. Trial court overruled this motion. Defendant asserts this was error that should have been recognized by the court of appeals.

We parenthetically note defendant has never contended he was deprived of his sixth amendment right to confrontation by reason of his inability to cross-examine Hobbs. See Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966).

I. General Principles.

Our decisions have distinguished between impermissible inquiries into the internal workings of the jury and evidence of "external matters improperly brought to bear on the [jury's] deliberations [that] may be used to attack a verdict." Crowley v. Glessner, 328 N.W.2d 513, 514 (Iowa 1983); State v. Rouse, 290 N.W.2d 911, 916-17 (Iowa 1980). ¹

We have held jury misconduct justifies a new trial only if the defendant produces proof, by competent evidence, that the misconduct "was calculated to, and it is reasonably probable that it did, influence the verdict." State v. Cuevas, 288 N.W.2d 525, 535 (Iowa 1980); Harris v. Deere & Co., 263 N.W.2d 727, 730 (Iowa 1978).

Trial courts possess "broad discretion" in deciding whether evidence of alleged jury misconduct warrants a new trial. State v. Cuevas, 288 N.W.2d at 535; State v. Cuevas, 281 N.W.2d 627, 632 (Iowa 1979); accord State v. Feddersen, 230 N.W.2d 510, 514 (Iowa 1975). We do not find an abuse of discretion unless "such discretion was exercised on grounds ... or to an extent clearly unreasonable." State v. Morrison, 323 N.W.2d 254, 256 (Iowa 1982).

II. Juror Loeffelholz's Conduct.

By affidavit attached to the State's resistance to the new trial motion, juror Loeffelholz admitted relating the experience that her son was a victim of sexual abuse. Defendant argues trial court should have granted his motion for new trial because Loeffelholz was guilty of misconduct in relating this experience and in not disclosing the event on voir dire or on the jury questionnaire.

At the threshold, we note the record contains neither a transcript of the voir dire examination nor any jury questionnaire. Generally, "[i]t is defendant's obligation to provide this court with a record affirmatively disclosing the error relied upon." State v. Ludwig, 305 N.W.2d 511, 513 (Iowa 1981); accord State v. Mark, 286 N.W.2d 396, 402 (Iowa 1979); State v. Bakker, 262 N.W.2d 538, 544 (Iowa 1978). A defendant may waive error by failing to provide us with a record that affirmatively shows the basis of the alleged error. State v. Campbell, 294 N.W.2d 803, 811 (Iowa 1980).

Defendant has not demonstrated Loeffelholz was asked any questions that would elicit the information about her son, either on the questionnaire or on voir dire. We find no error on this prong of his complaint.

The second prong of the claimed Loeffelholz misconduct concerns her reference during jury deliberations to her son's sexual abuse. The State asserts this did not constitute prejudicial misconduct.

In Rouse, 290 N.W.2d at 916-17, we said the discussions of the jurors, and their motivations and mental or emotional reactions inhered in the verdict and could not be utilized in an attack on it. Loeffelholz's comment arguably falls within this protective rule.

Further, even if this communication were not protected by the above rule, there is insufficient indication of prejudice to cause us to conclude trial court abused its discretion in failing to grant a new trial. We reached the same result in State v. Folck, 325 N.W.2d 368, 372-73 (Iowa 1982), where one juror supplied the jury with information concerning an alibi witness's residence, another made statements concerning a shelter referred to in the evidence, and still another said that patrons of a certain bar were not people to be believed. In State v. Lass, 228 N.W.2d 758 (Iowa 1975), several jurors related personal observations of individuals experiencing hypoglycemia and diabetic attacks. We then wrote:

Jurors undoubtedly discuss a variety of subjects in considering cases. As a practical matter, courts cannot be too strict on jury discussions or few verdicts could stand. The matters which jurors bring up and discuss in the privacy of their room largely inhere in their verdict. Trial courts have broad discretion in these matters.

Id. at 771 (citations omitted).

We find no error in trial court's failure to grant a new trial based on the alleged Loeffelholz misconduct.

III. Juror Hobbs' Conduct.

Juror William Hobbs, during the course of trial, called the Veterans Administration and obtained information that contradicted Cindia Dutton's testimony relating to the availability of veteran's benefits for Jude's military schooling. He communicated this during jury deliberations. Defense counsel obtained affidavits from several jurors implying Hobbs' information partially influenced their belief that Cindia Dutton lied during her testimony. These affidavits were countered by affidavits obtained by the State from two other jurors.

We note preliminarily that occurrences such as this would be rarer if trial courts would give a simple oral instruction or admonition ² along with the other oral directions given pursuant to Iowa Rule of Civil Procedure 199(a). See Wiedenfeld v. Chicago and N.W. Transp., 252 N.W.2d 691, 701 (Iowa 1977).

The State concedes in its brief that Hobbs' actions constituted misconduct. We thus turn to the critical question whether Hobbs' action "was calculated to, and it is reasonably probable that it did, influence the verdict." Cuevas, 288 N.W.2d at 535. Our analysis is aided by reference to several of our decisions.

In State v. Little, 164 N.W.2d 81, 82 (Iowa 1969), defendant asserted it was jury misconduct when "several members of the jury made unauthorized trips to the scene of defendant's arrest for the express purpose of a view of the scene and were influenced by their observations and in turn influenced others of the jury." Although we held this misconduct, we reasoned that "[t]he supporting affidavits fall far short of showing any reasonable probability, as our decisions require, that the unauthorized view of the premises influenced the verdict." Id. at 83.

In an effort to determine nighttime visibility, the jury in State v. Houston, 209 N.W.2d 42 (Iowa 1973), experimented by turning off the jury room lights and looking through the window. We held trial court did not abuse its discretion in denying defendant's new trial motion, observing:

Historically, we have considered ... situations [of alleged jury misconduct] with a bemused but limited tolerance for the ingenuity of jurors and the realization a rigid approach would result in...