State v. Morris

Decision Date27 April 2011
Docket NumberNo. 1-097,No. 10-1245,1-097,10-1245
PartiesSTATE OF IOWA, Plaintiff-Appellant/Cross-Appellee, v. ANDREA MORRIS, Defendant-Appellee/Cross-Appellant.
CourtIowa Court of Appeals

Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

The State appeals a district court ruling granting a defendant a new trial and the defendant cross-appeals. AFFIRMED.

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, John P. Sarcone, County Attorney, and Nan Horvat and Steve Foritano, Assistant County Attorneys, for appellant.

Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellee.

Heard by Vogel, P.J., Vaitheswaran, J., and Mahan, S.J.* Tabor, J., takes no part.

VAITHESWARAN, J.

Andrea Morris, found guilty of first-degree murder, was granted a new trial based on questions arising from her attorney's consumption of alcohol. The State's appeal and Morris's cross-appeal raise several issues, one of which we find dispositive: Morris's exclusion from what we determine was a "stage of the trial" within the meaning of Iowa Rule of Criminal Procedure 2.27(1).

I. Background Proceedings

The State charged Morris with first-degree murder in connection with the death of a Des Moines man. Morris was represented by lead attorney Robert Powers and another attorney, both employed by the State public defender. During trial, several people smelled alcohol on Powers, including the trial judge's court reporter and a substance abuse counselor who happened to be at the courthouse. The latter two individuals privately disclosed their observations to the trial judge.

Following these disclosures, the trial judge met with Powers in chambers and outside the presence of Morris, her other attorney, or the prosecutors. He confronted Powers with the allegations of alcohol use. Powers responded that he had one or two glasses of wine the night before. The trial judge made his own observations of Powers, which he later testified to in a deposition. The judge also met with the State public defender, who had learned from Morris's second attorney that Powers smelled of alcohol during trial. This meeting did not include Morris or her attorneys. Morris was not informed of anyone's concerns about Powers's alcohol use until after trial.

As noted, the jury found Morris guilty as charged. At this stage, a new attorney was appointed to represent her. He filed a motion for new trial and a motion to recuse the trial judge based on his ex parte conversations with Powers and the State public defender. The court denied the recusal motion and scheduled the new trial motion for an evidentiary hearing.

At the hearing, the court reporter who smelled alcohol on Powers testified that she noticed it after Powers went home to get something and came back to court. She stated the odor was "noticeable." The substance abuse counselor similarly testified that, on the first day of trial, she smelled a "strong odor of alcohol" coming from Powers and, based on her professional experience, she "believe[d] it was fresh."

Power's co-counsel also was called to testify. She stated she smelled alcohol around Powers on the first day of trial, and the smell was "very strong." She stated she also smelled alcohol on Powers on the second, third, and fourth days of trial, although the smell was mild. The trial judge called Powers into his chambers on the third day of trial. Morris was in the courtroom at the time of this in-chambers discussion. Co-counsel notified three people in her office of her observations, speaking to the State public defender twice. She did not notify Morris.

Following the evidentiary hearing, the trial judge denied the new trial motion. In his ruling, the court stated, "At no time did the court independently smell any odor of alcohol coming from Mr. Powers's breath or person."

Morris filed a direct appeal from her judgment and sentence. We reversed the court's denial of the recusal motion and remanded for reconsideration of thenew trial motion by a different judge. See State v. Morris, No. 07-1835 (Iowa Ct. App. June 17, 2009).

The new judge assigned to consider the new trial motion granted the motion following an evidentiary hearing. The State appealed and Morris cross-appealed.

II. Analysis

The district court granted the new trial motion on several grounds. Among them was a conclusion that the in-chambers meeting between the trial judge and Powers was a critical stage of trial, requiring Morris's presence.1 The court reasoned that Morris's absence "deprived [her] of the opportunity to develop the facts of Powers's alcohol use at the time of trial." The State takes issue with this conclusion, arguing that Morris's "presence at the proceeding would not have assisted the trial court in deciding whether it was necessary to intervene in counsel's representation."

We begin by noting that a defendant's right to be present at certain stages of trial may be constitutionally based or rule based. See State v. Hemminger, 308 N.W.2d 17, 19 (Iowa 1981) (noting assignment of error was predicated on rule rather than constitution). Morris argues the right stems from the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, sections 9 and 10 of the Iowa Constitution as well as Iowa Rule of Criminal Procedure 2.27(1). We find it unnecessary to flesh out the parameters of her constitutionally-grounded argument, as we believe the language of the rule isdispositive. See In re S.P., 672 N.W.2d 842, 846 (Iowa 2003) (declining to address constitutional issues where statutory analysis was means of resolving the case); Wengert v. Branstad, 474 N.W.2d 576, 578 (Iowa 1991) ("We regularly decline to address constitutional questions unless their answers are necessary to dispose of the case."). That said, it is worth emphasizing that rule 2.27(1) implements constitutional guarantees. See State v. Meyers, 426 N.W.2d 614, 616 (Iowa 1998). Specifically, our highest court has stated that the Confrontation Clause of the Sixth Amendment to the United States Constitution2 and the Due Process Clause of the Fifth Amendment to the United States Constitution are implicated. See State v. Blackwell, 238 N.W.2d 131, 134 (Iowa 1976); State v. Snyder, 223 N.W.2d 217, 222 (Iowa 1974). As will become clear, this constitutional underpinning means that we cannot neatly segregate constitutional precedent from rule-based precedent.

Iowa Rule of Criminal Procedure 2.27(1) requires that, "[i]n felony cases the defendant shall... be personally present at every stage of the trial including the impaneling of the jury and the return of the verdict." "Stage of the trial" as used in this rule

includes the trial itself, from the selection of the jury through the verdict and, in addition, all pretrial and post-trial proceedings when fact issues are presented or when their dispositions, for some other reason, will be significantly aided by the defendant's presence.

State v. Foster, 318 N.W.2d 176, 179 (Iowa 1982).

There is no dispute that the trial judge's conversation with Powers about the two disclosures of smell on Powers's breath did not include Morris. The key question is whether that conversation presented "fact issues" or whether resolution of the issue raised in that conversation "for some other reason" would have been significantly aided by the defendant's presence. See id.

Like the district court, we are persuaded that the conversation raised fact questions requiring Morris's presence. The trial judge asked Powers why he smelled of alcohol while in the courthouse at the time of trial. The State concedes this information raised concerns about Powers's ability to competently defend Morris in her first-degree murder trial. At a minimum, Morris had a right to question Powers about his explanation of the alcohol smell. See Foster, 318 N.W.2d at 178 (stating "trial" includes "matters beyond the mere presentation of evidence before the trier of fact"); cf. State v. Hemminger, 308 N.W.2d 17, 19 (Iowa 1981) (noting defendant's presence not required at pretrial ruling on State's motion that "dealt strictly with a legal issue, and no evidence was presented"). She was not given this opportunity. She was deprived of a fair hearing on an issue that was critical to her defense, the competency of her lawyer. See Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S. Ct. 330, 333, 78 L. Ed. 2d 674, 679 (1934) ("[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only."), partially overruled on other grounds by Maloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).

We also believe Morris's presence would have significantly aided resolution of the issue "for some other reason." See Foster, 318 N.W.2d 179;see also Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667, 2668, 96 L. Ed. 2d 631, 647 (1987) ("[E]ven in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right 'to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'") (quoting Snyder, 291 U.S. at 105-06, 54 S. Ct. at 332, 78 L. Ed. at 678). After meeting with Powers on the third day of trial, the trial judge allowed Powers to continue representing Morris through trial, which lasted for several more days. No one was more directly affected by this decision than Morris. With her lifelong liberty at stake, she had a right to "except to the ruling of the court." Blackwell, 238 N.W.2d at 137. She was not afforded this right. As rule 2.27(1) entitled her to be present during this "stage of the trial," the trial judge's failure to ensure her presence amounted to a violation of the rule.

Our analysis cannot end here because "[t]he rule requiring a defendant in a prosecution for a felony to be...

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