State v. Cullen

• Decision Date: 17 October 1984
• Docket Number: No. 83-1163,83-1163
• Citation: 357 N.W.2d 24
• Parties: STATE of Iowa, Appellant, v. Randy G. CULLEN, Appellee.
• Court: Iowa Supreme Court

Page 24

357 N.W.2d 24

STATE of Iowa, Appellant, v. Randy G. CULLEN, Appellee.

No. 83-1163.

Supreme Court of Iowa.

Oct. 17, 1984.

Thomas J. Miller, Atty. Gen., Joseph P. Weeg, Asst. Atty. Gen., and David E. Richter, County Atty., for appellant.

Charles L. Harrington, Appellate Defender, and Linda Del Gallo, Asst. Appellate Defender, Des Moines, for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, McCORMICK, SCHULTZ, and CARTER, JJ.

REYNOLDSON, Chief Justice.

After a jury found defendant Randy G. Cullen guilty of first-degree murder, trial court sustained defendant's mistrial motion, grounded on jury misconduct. We granted the State's application for discretionary review. We now reverse and remand for reconsideration by trial court in light of the correct rule to be applied when a party seeks to impeach a jury verdict.

In the early morning hours of April 8, 1983, several fights broke out in front of the Nashville Club, a Council Bluffs tavern. A number of people were involved in the fights, among them defendant and his alleged victim, Terry Doffin.

Trial testimony disclosed defendant arrived at the Nashville Club at about 11:30 p.m. on April 7, 1983. He sat at the bar next to a friend. A fight broke out in front of the club between some women. The decedent, Terry Doffin, and his brother became involved in the fight in an effort to break it up. Defendant, hearing of the fight, went outside. There was some evidence that defendant, a former amateur boxer, previously had served as a bouncer at the club. Once outside, defendant saw the Doffin brothers engaged in a scuffle with some women. Defendant grabbed one man, then the other, was hit on the head and finally fell to the ground, wrestling with Terry Doffin. In the course of this fight, Doffin bit defendant's finger, causing a severe cut.

From this point, trial testimony is wholly inconsistent. Defendant testified he returned to the bar to treat his bloody finger, and remained there for ten or fifteen minutes. He asserted his second confrontation with Terry Doffin came when he was called outside to break up a fight between Doffin and an unidentified man. While attempting to break up this fight, defendant scuffled with Doffin again. Defendant admitted striking Doffin in the face and kicking him in the legs. Doffin's fatal injury occurred, defendant testified, when Doffin slipped and fell, striking his head on a car bumper.

Other witnesses testified that defendant, angered that Doffin had bitten off "a piece of his finger," pulled the much smaller and bleeding Doffin from a car, and, while screaming "I am going to kill you," punched and kicked Doffin into unconsciousness. Doffin later was taken to a hospital where, on April 19, 1983, he died of brain damage.

At trial a factual dispute arose whether defendant had engaged Doffin in a one-on-one confrontation during the initial fight in front of the bar. On cross-examination, defendant denied he had. The State, however, presented three rebuttal witnesses who testified defendant had engaged Doffin individually during the "first" fight. Because these witnesses were not discovered by the State until shortly before their court appearance, the defense was not informed of their identity prior to trial. Consequently, defendant objected to this evidence prior to the time the witnesses testified as "improper rebuttal," raised the possibility that the witnesses might be related to the jurors, and contended the rebuttal witnesses "could have a prejudicial effect on the jurors."

After the rebuttal witnesses had testified, defendant moved, in chambers, for a mistrial on the ground that some of the jurors resided in the same area as the rebuttal witnesses. Defendant again pointed out the possibility the jurors knew, or were related to, the witnesses. The court overruled the motion.

The court then went into the jury room to dismiss the jury for the day. At that point, three women jurors informed the court, in the presence of the other jurors, that they knew one of the rebuttal witnesses. The court admonished the jury not to discuss the matter and immediately informed counsel of the situation.

The next morning defendant renewed his motion for a mistrial, again citing prejudice as a ground. The trial court again overruled the motion. The jury was instructed and later returned a verdict of guilty of murder in the first degree.

July 25, 1983, defendant made post-trial motions for mistrial and a new trial, alleging several grounds, including jury misconduct. In support of those motions, defendant offered affidavits by jurors Smith, Rallis and Verpoorten, and the professional statement of his attorney. ¹ The Smith and Rallis affidavits were sworn and signed, in conformity with section 622.85 of the Code; the Verpoorten affidavit was not. Verpoorten was one of the three jurors who originally informed the court she knew one of the rebuttal witnesses. At the August 25 hearing on the motions, the State lodged numerous objections to the competence of the affidavits. It specifically waived any objection, however, that the Verpoorten affidavit was unsworn and unsigned.

August 31, trial court entered its order granting defendant's motion for a mistrial. The court observed this action made "defendant's Motion for New Trial ... moot.' The court specifically found "the more significant statements made by the jurors were that the jurors 'were terribly shocked and said they absolutely would not have served had they known these witnesses would be called to testify' and 'I believe this statement possibly had an effect on the jury's verdict' and 'These statements made it easier to believe the rebuttal witnesses.' " In granting the mistrial, trial court relied heavily on our language in State v. Carey, 165 N.W.2d 27, 30 (Iowa 1969), that "[i]n order that the institution of jury trials be preserved and its usefulness continued, its deliberations and pronouncements must be kept pure, and untainted, not only from all improper influences, but from the appearance thereof." (Emphasis in original.)

The State filed application for discretionary review pursuant to Iowa Code section 814.5 on September 13, 1983. We granted the application ten days later.

I. At the threshold a question arises whether a motion for a mistrial is permissible after the jury has returned its verdict. Authorities generally agree that a new trial contemplates a case has been tried and a verdict or judgment rendered, and by motion set aside. A mistrial contemplates some error that prevents the jury from returning a verdict or the court from entering judgment. 66 C.J.S. New Trial § 1 (1950); In re Estate of Bartholomae, 261 Cal.App.2d 839, 842, 68 Cal.Rptr. 332, 334 (1968); People v. Jamerson, 196 Colo. 63, 65, 580 P.2d 805, 806-07 (1978); Vilander v. Hawkinson, 183 Kan. 214, 218, 326 P.2d 273, 276 (1958); State v. Robbins, 455 S.W.2d 24, 26 (Mo.App.1970). In State v. Glenn, 234 N.W.2d 396, 403 (Iowa 1975), we wrote that "relief after return of a guilty verdict in a criminal prosecution is, in this state, statutorily limited to arrest of judgment or a new trial." The statutes referred to in Glenn, however, have since been repealed, and replaced by Iowa Rule of Criminal Procedure 23. That rule appears less restrictive. It provides, "Permissible motions after trial include motions for new trial, motions in arrest of judgment, and motions to correct a sentence." (Emphasis added.) The question whether a motion for a mistrial is available after a jury has returned its verdict thus is not settled in this state, but is not one we need to resolve here.

The defendant relied on jury misconduct as a common ground in both his motion for a new trial and mistrial. We look to the substance of a motion to determine its character. First National Bank v. Claiser, 308 N.W.2d 1, 2 (Iowa 1981). See also Brigham v. Hudson Motors, 118 N.H. 590, 593, 392 A.2d 130, 133 (1978). Without deciding whether defendant's mistrial motion was proper following the jury's verdict, we treat it as though it had been denominated a motion for a new trial.

II. Few principles of law are as well settled as our rules regarding post-trial motions predicated on jury misconduct. In recent years, we have confronted this issue several times. See State v. Harrington, 349 N.W.2d 758, 762-63 (Iowa 1984); State v. Christianson, 337 N.W.2d 502, 504-06 (Iowa 1983); Crowley v. Glessner, 328 N.W.2d 513, 514 (Iowa 1983); State v. Folck, 325 N.W.2d 368, 371-73 (Iowa 1982); State v. Rouse, 290 N.W.2d 911, 915-17 (Iowa 1980); Harris v. Deere & Co., 263 N.W.2d 727, 729-34 (Iowa 1978). These opinions establish that, to impeach a verdict on the basis of jury misconduct, three conditions must be met: (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 calculated to, and with reasonable probability did, influence the verdict. See, e.g., Folck, 325 N.W.2d at 372; Harris, 263 N.W.2d at 729-30. ² Trial court has a broad discretion in ruling on these matters. "We do not find an abuse of discretion ... unless the action of the trial court is clearly unreasonable under the attendant circumstances." Harrington, 349 N.W.2d at 761.

For the sake of clarity, we will discuss each of these three requirements in reverse order.

III. In granting Cullen's motion for a mistrial, trial court stated:

The ultimate issue involved herein is whether or not the external matters, to-wit: The possibility that the jurors were unable to give the testimony of these rebuttal witnesses the same weight as any other witnesses, influenced their verdict. The Court concludes that the answer to this inquiry does not depend on to what extent but merely to the possibility that it did. The Court concludes that it must answer this inquiry in...