State v. Johnson

• Decision Date: 16 August 1989
• Docket Number: No. 87-1438,87-1438
• Citation: 445 N.W.2d 337
• Parties: STATE of Iowa, Appellee, v. James Thomas JOHNSON, Appellant.
• Court: Iowa Supreme Court

Page 337

445 N.W.2d 337

STATE of Iowa, Appellee, v. James Thomas JOHNSON, Appellant.

No. 87-1438.

Supreme Court of Iowa.

Aug. 16, 1989.

Raymond E. Rogers, Acting State Public Defender, and James F. Whalen, Asst. State Public Defender, for appellant.

Thomas J. Miller, Atty. Gen., Julie Ann Halligan, Asst. Atty. Gen., John E. Billingsley, County Atty., and Cliff Wendel, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, SCHULTZ, CARTER and SNELL, JJ.

McGIVERIN, Chief Justice.

Defendant, James Thomas Johnson, appeals from his two convictions of sexual abuse in the second degree in violation of Iowa Code sections 709.1 and 709.3(2) (1985). He also appeals from the district court's order sentencing him to two consecutive twenty-five year terms in prison. On appeal, defendant contends: 1) that he was denied his right to effective assistance of trial counsel; 2) that he was denied a fair trial due to juror bias and misconduct; and 3) that the trial court failed to adequately state its reasons for sentencing him to two consecutive prison terms. The appeal was transferred to the court of appeals, which reversed, based upon defendant's ineffective assistance of counsel claim alone. We granted the State's application for further review. We now vacate the decision of the court of appeals and affirm the judgment and sentence of the district court.

I. Background facts and proceedings. From March 1983, until April 8, 1987, the date of his arrest, defendant lived together with his girlfriend, Donna, and her three daughters, Melissa, Kora and Lora. At the time of defendant's trial in July 1987, the three girls were 14, 11 and 9 years of age, respectively.

Defendant was charged, by an amended trial information, with three counts of sexual abuse involving the two younger girls, Kora and Lora.

At trial, the State presented the testimony of four witnesses: Kora, Lora, Susan Gauger, the coordinator of the Center for Child Neglect Evaluation at Iowa Lutheran Hospital in Des Moines, and Dr. Rizwan Shah, the director of the Child Sexual Assault Diagnostic Clinic at Broadlawns Medical Center in Des Moines.

In her testimony upon direct examination, Susan Gauger opined that Kora and Lora had been sexually abused. Upon redirect examination, Gauger opined that she believed the girls were telling the truth when they accused defendant of the sexual abuse. Gauger also opined that the two girls were credible. In addition, the State elicited testimony from Dr. Shah and Kora which defendant now claims was objectionable. During trial, however, no objections were raised to any of this testimony.

The case was submitted to a jury which returned a verdict of guilty on two counts of sexual abuse in the second degree. Defendant subsequently filed a motion for a new trial, alleging that one juror, S.B., had personal knowledge of hearsay information prejudicial to defendant and that S.B. shared this outside information with the other members of the jury during their deliberations.

A subsequent examination of the jurors in the presence of the trial court revealed that juror S.B. informed the other jurors that one of the girls "broke down" and cried before a teacher at school and that he had heard rumors about defendant hitting the girls. Upon examination, S.B. confirmed that he had made these comments during jury deliberations. S.B. also explained, however, that he had stated before the court during jury selection voir dire that he knew the defendant, had spoken with him, and had heard rumors about him. Despite his background knowledge concerning defendant, S.B. was not challenged for cause, or stricken from the panel by counsel.

Defendant's motion for a new trial was denied.

Judgment and sentence were rendered upon the verdict.

At defendant's sentencing hearing, the State's attorney recommended defendant be sentenced to two consecutive twenty-five year terms of incarceration. Thereafter, the court sentenced defendant to two consecutive terms.

Defendant appealed. We transferred the case to the court of appeals, which reversed on defendant's ineffective assistance of counsel claim alone.

Thereafter, we granted the State's application for further review.

II. Ineffective assistance of counsel. Defendant contends that his right to effective assistance of counsel, guaranteed by the sixth amendment to the United States Constitution, was violated when his trial counsel failed to object to the admission into evidence of allegedly inadmissible testimony. Specifically, defendant identifies six instances where he believes that objections to the evidence should have been made:

(1) counsel failed to object to Gauger's testimony that in her opinion the two children were telling the truth;

(2) counsel failed to object to Gauger's testimony that in her opinion the children had been sexually abused;

(3) counsel failed to object to the testimony of Dr. Shah that in her opinion the children had been sexually abused;

(4) counsel failed to object to Kora's testimony that defendant had committed sexual acts with another juvenile in an unrelated incident;

(5) counsel failed to object to Kora's testimony that her mother believed the two girls' allegations; and

(6) counsel failed to object to Kora's testimony concerning other criminal acts by defendant.

Ordinarily, when a limited remand is not requested under Iowa Rule of Appellate Procedure 12(g), we have considered postconviction proceedings under Iowa Code chapter 663A to be the best forum for resolution of ineffective assistance of counsel claims. See State v. Powell, 400 N.W.2d 562, 565 (Iowa 1987). This is so because in postconviction proceedings a full evidentiary hearing may be held, where counsel may respond to the defendant's charges or otherwise state for the record the reasons for actions which were taken at trial. State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978).

In State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986), the defendant claimed ineffective assistance of counsel where his trial counsel failed to object to expert opinion testimony, presented by the State, that children almost never lie about child abuse. We declined to address the claim on direct appeal, however, because the defendant's trial counsel had not been given the opportunity to explain why no objection had been made. Id. As we stated in Coil, 264 N.W.2d at 296, "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned."

We find the reasoning in Bass and Coil persuasive regarding defendant's first assignment of error in this case. The present record does not provide a sufficient basis upon which to determine counsel's effectiveness, her rationale in allowing admission of the evidence, or, for that matter, defendant's participation in those decisions. Therefore, we decline to consider defendant's ineffective assistance of counsel claim in this direct appeal. Defendant's claim has been adequately preserved, however, in order to be raised by application for postconviction relief. Cf. State v. White, 337 N.W.2d 517 (Iowa 1983) (defendant's bald assertion, on direct appeal, that trial counsel had rendered ineffective assistance did not preserve the issue for postconviction relief proceedings).

III. Juror bias and misconduct. Defendant also contends that he was denied a fair trial before a panel of impartial jurors. Specifically, he argues that he is entitled to a new trial under Iowa Rule of Criminal Procedure 23(2)(b)(2) (new trial may be granted when the jury has received evidence out of court not authorized by the court). This contention is based upon allegations that juror S.B. was aware of hearsay information prejudicial to defendant and that S.B. shared this outside information with the other members of the jury. Thus, defendant says juror S.B. was biased against defendant and committed misconduct as a juror.

Initially, we note that "[t]rial courts possess broad discretion in deciding whether evidence of alleged jury misconduct warrants a new trial. We do not find an abuse of discretion unless such discretion was exercised on grounds ... or to an extent clearly unreasonable." State v. Christianson, 337 N.W.2d 502, 504 (Iowa 1983) (citations omitted).

A. Bias. Defendant concedes that during jury selection voir dire S.B. honestly disclosed his prior knowledge concerning defendant. During a posttrial examination, S.B. stated, "[W]hen you two lawyers were picking the jury, I told you that I knew [the defendant], had talked to him, had heard the rumors." Nevertheless, defendant contends S.B. was biased and this fact was concealed during the jury selection process.

" 'It is well settled that known objections, or those which may be ascertained, are waived if no challenge is made before the jury is sworn.' ... Nonetheless, we have frequently looked at the subsequent evidence of juror bias or incompetence to determine if an appellant was prejudiced by denial of his tardy motion in cases ... where such appellant was previously unaware of the grounds for objection." State v. Cuevas, 288 N.W.2d 525, 534 (Iowa 1980) (quoting State v. Grove, 171 N.W.2d 519, 520 (Iowa 1969)).

Defendant's contentions regarding juror bias are groundless. First, defendant's allegations of concealment are contrary to the record. S.B.'s statements during the posttrial examination show that he was forthright and candid during jury selection voir dire. His statements concerning his prior knowledge of the defendant provided the parties adequate notice of any possible prejudice toward defendant. Any objection defendant may have had concerning the alleged bias of S.B. was waived. See, e.g., Riessen v. Neville, 425 N.W.2d 665, 668 (Iowa App.1988) (parties waived objections by failing to timely challenge hearing impaired juror, where juror noted impairment on questionnaire which was available to counsel during jury selection voir dire).

Second, even if defendant was previously unaware of any...