State v. Misner, 86-780

• Decision Date: 22 July 1987
• Docket Number: No. 86-780,86-780
• Citation: 410 N.W.2d 216
• Parties: STATE of Iowa, Appellee, v. Tomie Lee MISNER, Jr., Appellant.
• Court: Iowa Supreme Court

Page 216

410 N.W.2d 216

STATE of Iowa, Appellee, v. Tomie Lee MISNER, Jr., Appellant.

No. 86-780.

Supreme Court of Iowa.

July 22, 1987.

Lloyd H. Wolf of Napier, Wright & Wolf, Fort Madison, for appellant.

Thomas J. Miller, Atty. Gen., and Ann E. Brenden and Thomas H. Miller, Asst. Attys. Gen., for appellee.

Considered by REYNOLDSON, C.J., and McGIVERIN, WOLLE, LAVORATO, and NEUMAN, JJ.

REYNOLDSON, Chief Justice.

Following jury trial, defendant Tomie Lee Misner was convicted of seven counts of second-degree kidnapping, Iowa Code §§ 710.1, .3 (1985), one count of insurrection, Iowa Code § 718.1 (1985), and one count of assault while participating in a felony, Iowa Code §§ 708.1, .3 (1985). Misner has appealed from judgment imposing sentences and we affirm.

From substantial evidence in the record, the jury could have found the following facts. January 6, 1986, an uprising involving a number of Iowa State Penitentiary inmates occurred in cell house 319. This unit housed approximately ninety inmates in a segregated, highly controlled setting. Most inmates were there primarily for prison disciplinary infractions.

The uprising began on the first floor of cell house 319 when inmate Cameron, a trustee, forced his way into the guard office and at knife point accosted officer Harper, the only guard on first floor. The other six officers in the building were on different floors. Five of these six officers were delivering breakfasts to the inmates. The remaining officer was in the third floor guard office.

Cameron forced Harper to release inmate Misner, the defendant in this action, and inmate Darnell. Cameron then escorted Harper back to the office, still at knife point. Shortly thereafter, the inmates captured and forcibly detained, as they returned to the first floor office, the five guards on the breakfast detail.

Misner at knife point then forced captured officer Teel to release a number of inmates, including inmates Jeffries (a codefendant in the trial of this case) and Vance. Misner gave the knife to Jeffries who returned Teel to the first floor guard office.

Five of the six officers then were moved to the third floor office where the seventh correctional officer was taken hostage. Cameron, after helping to escort the five officers to third floor, returned to first floor and forced officer Hodgerson to call the shift captain and inform him the inmates had taken control of the cell house. Cameron and Misner told prison officials to stay out of the building and warned them the guards would be killed if their orders were not followed. Misner and Cameron then locked Hodgerson in a storage room where he remained until shortly before the uprising was terminated.

On third floor, with the possible exception of officer Harper, the officers' hands were bound with masking tape. While the uprising continued, they were guarded by a number of inmates, including Misner, all of whom were armed with a club or "shank."

From the third floor office where the officers were held, Misner called the shift captain. He warned the captain the officers had been taken "hostage" and would be hurt if anyone tried to get in the building. Misner also told the captain he would call back with demands in five or ten minutes. The inmates then discussed what demands to make, but before further communication with prison officials could occur the penitentiary's emergency response team stormed the building and quelled the uprising.

In this appeal Misner raises the four issues discussed in the following divisions.

I. Misner contends trial court erred in overruling his mistrial motion, grounded on a substitution of judges in the course of trial.

After eleven state witnesses had been called, the presiding judge, the Honorable William S. Cahill, became ill and was unable to continue. He subsequently was hospitalized. The Honorable David B. Hendrickson replaced Judge Cahill and completed the trial, entered judgment, and imposed sentences.

When the substitution occurred Misner moved for a mistrial, which Judge Hendrickson overruled.

Substitution of trial judges is authorized by Iowa Rule of Criminal Procedure 18(7)(b)(1). This rule provides:

If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying that he or she has familiarized himself or herself with the record of the trial, may proceed with and finish the trial.

Iowa R.Crim.P. 18(7)(b)(1). Iowa's rule mirrors Federal Rule of Criminal Procedure 25(a) and thus federal interpretations of that rule are relevant.

Because the potential for disruption and confusion is inherent in all cases in which substitution of judges is contemplated, substantial caution must be exercised in order to insure a defendant's right to a fair trial is fully protected. Although the decision whether to substitute trial judges is committed to the sound discretion of trial court, substitution should be denied and trial delayed or mistrial granted if it reasonably is shown substitution will substantially prejudice defendant's right to a fair trial. See State v. Sereg, 229 Iowa 1105, 1120-21, 296 N.W. 231, 238 (1941); see also United States v. Lane, 708 F.2d 1394, 1396-97 (9th Cir.1983); United States v. Santos, 588 F.2d 1300, 1303-04 (9th Cir.), cert. denied, 441 U.S. 906, 99 S.Ct. 1994, 60 L.Ed.2d 374 (1979); United States v. Boswell, 565 F.2d 1338, 1341-42 (5th Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978) (each holding the failure to comply fully with rule 25(a) was not grounds for reversal in the absence of a showing of prejudice).

After reviewing the record before us, we conclude this substitution of trial judges was appropriate. There is no question Judge Cahill was unable to continue due to illness. Judge Hendrickson, in replacing Judge Cahill, certified he had familiarized himself with the record. Before ruling on Misner's motions for acquittal and directed verdict Judge Hendrickson reviewed the testimony given by the witnesses he did not hear testify. The record reveals full compliance with rule 18(7)(b)(1).

Misner argues that, regardless of whether rule 18(7)(b)(1) was complied with, his right to a fair trial was prejudiced as a result of the substitution. We disagree.

Misner first argues Judge Hendrickson failed to consider certain factual distinctions in how the officers were seized and confined, pointing out that one of the officers was never removed from his office but was confined there for the entire period of the uprising. A review of the record, however, shows Judge Hendrickson was fully aware of this distinction when considering Misner's motions for directed verdict and acquittal and when instructing the jury. No prejudice has been demonstrated.

Misner also asserts he was prejudiced when Judge Hendrickson, without benefit of having heard all relevant testimony, denied his motion for mistrial based upon juror misconduct. Assuming Judge Hendrickson was not wholly familiar with the juror misconduct issue when he overruled Misner's mistrial motion, that failure is of no consequence. As we note in division II, Misner has failed to establish the juror's alleged misconduct affected the jury's deliberations. Thus, even if erroneous, no prejudice could have resulted from trial court's ruling.

We conclude substitution was properly made and Misner was not prejudiced by the substitution. It follows that trial court did not abuse its discretion in denying Misner's mistrial motion. See State v. Bishop, 387 N.W.2d 554, 564 (Iowa 1986).

II. Misner next asserts trial court erred in several rulings relating to the jury. These claims involve trial court's refusal to grant a change of venue and its denial of various juror-related mistrial motions.

Addressing the change of venue issue, we note initially that while our review of this constitutionally-based claim is de novo, reversal is required only when trial court has abused its discretion in denying the motion. State v. Spargo, 364 N.W.2d 203, 207 (Iowa 1985). Trial court must determine whether "such degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county." Iowa R.Crim.P. 10(10)(b). Specifically, Misner " 'must show either actual prejudice on the part of the jury or must show that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed.' " State v. Wilson, 406 N.W.2d 442, 445 (Iowa 1987) (quoting Spargo, 364 N.W.2d at 207); State v. Robinson, 389 N.W.2d 401, 403 (Iowa 1986); State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985).

In seeking to establish a presumption of prejudice, Misner presented to trial court a large number of news reports dealing with the January 6 uprising. After reviewing these reports, we find they were on the whole objective, factual reports expressing no view on Misner's guilt or innocence. Further, Misner points to nothing in the reports that is inaccurate, misleading, or obviously intended to inflame the public against him.

The news reports submitted by Misner merely detailed the events of January 6. Exposure to newsworthy events will not alone give rise to a presumption of prejudice. Additionally, to the extent particular jurors may be substantially prejudiced against a defendant, rigorous voir dire can be trusted to expose these prejudices. State v. Ware, 338 N.W.2d 707, 713 (Iowa 1983); State v. Chadwick, 328 N.W.2d 913, 916 (Iowa 1983).

Finally, the news accounts in question were almost exclusively confined to a short period immediately following the January 6 incident. That period of hot activity was separated from trial by more than four months. Even if we were inclined to believe the tone of the articles was inflammatory, Misner has made no showing the period...