State of Iowa v. Lee Samuel Christensen

IN THE SUPREME COURT OF IOWA

No. 17–0085

Filed June 7, 2019

STATE OF IOWA,

Appellee,

vs.

LEE SAMUEL CHRISTENSEN,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Emmet County, David A.

Lester, Judge.

Defendant appeals from a district court judgment of second-degree

murder. DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

Leon F. Spies of Spies, Pavelich & Foley, Iowa City, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Kelli Huser (until

withdrawal), Kevin Cmelik, and Coleman McAllister, Assistant Attorneys

General, and Doug Hansen, County Attorney, for appellee.

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APPEL, Justice.

In this case, Lee Christensen challenges his conviction of second-

degree murder following a jury trial. After the trial, Christensen moved for

a new trial based upon (1) the refusal of the trial court to disqualify a juror

who allegedly made out-of-court statements regarding the defendant’s

guilt, (2) prosecutorial misconduct related to allegedly improper testimony

from two witnesses for the State, and (3) misconduct and bias related to

extraneous information reaching the jury about a possible riot if a certain

verdict was not returned. The district court denied the motions for a new

trial, entered judgment, and sentenced Christensen. Christensen

appealed.

We transferred the case to the court of appeals. The court of appeals

reversed, holding Christensen was entitled to a new trial as a result of

juror misconduct and bias. For the reasons expressed below, we vacate

the court of appeals decision and affirm the district court judgment.

I. Factual and Procedural Background.

A. Introduction. Thomas Bortvit was dating Christensen’s former

girlfriend. Bortvit and Christensen both lived in Estherville, Iowa. After

Bortvit was reported missing from work, a community search was

undertaken in an effort to find him. As part of its investigation, law

enforcement wanted to speak with Christensen. After law enforcement

contacted the Christensen family about a potential interview,

Christensen’s mother asked him if he knew Bortvit’s whereabouts, became

suspicious, and confronted her son. Christensen ultimately told his father

that he had killed Bortvit. Christensen provided his father with

information that led to the discovery of Bortvit’s body in a remote location.

The State charged Christensen, an Estherville high school student,

with murder and other lesser included offenses. He pled not guilty. The

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matter proceeded to jury trial in Estherville. The jury found him guilty of

second-degree murder.

Christensen filed a posttrial motion attacking the verdict. He

claimed the district court erred in refusing to grant a midtrial motion to

disqualify a juror for cause. He further asserted the verdict was tainted

because of juror misconduct. He also claimed prosecutorial misconduct

associated with two witnesses’ testimony required a new trial. The district

court overruled the motion for a new trial, entered judgment, and

sentenced Christensen. Christensen appealed.

B. Selection of the Jury. Before the jury trial began, the parties

engaged in voir dire of the jury venire. The district court began by asking

the jurors three questions: (1) whether they had heard about the case from

the media, (2) whether they had heard about the case from sources besides

the media, and (3) whether they had formed an opinion about the case.

Many jurors answered affirmatively to one or more of the questions.

Counsel for the parties then conducted individual voir dire outside

the presence of the other venire members. The voir dire process revealed

that the events surrounding Bortvit’s death were the subject of extensive

discussion in the Estherville community. Many prospective jurors knew

members of the Christensen family, the Bortvit family, or both. In

addition, many prospective jurors further explained their knowledge about

the case from the media and from other sources, including various

Facebook postings.

A number of jurors believed they could not fairly judge the case

because they had already formed opinions about the matter. Most often,

these jurors believed Christensen was guilty. When asked if they could be

fair in the proceedings, a number said they could not. Of the sixty

prospective jurors, the district court disqualified twenty-four for cause.

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During voir dire, the lawyers and prospective jurors recognized the

emotional character of the case. One prospective juror stated, “I know that

sentiments run high.” Another remarked, “[I]t is so traumatic that this

has happened. And whether or not he is guilty, everybody involved has

been hurt . . . .” A third potential juror stopped going out for coffee because

“[it was] too disturbing to [the juror] to listen to other people . . .

disparagingly talk about individuals.” A fourth potential juror when asked

whether they were well suited to be a juror explained, “I just think I’m

going to need a tissue a lot.”

During voir dire of the entire panel, Christensen’s attorney asked

the jury if anyone had “difficulty with the notion that Lee Christensen

doesn’t have to prove his innocence, doesn’t have to testify, that you can’t

hold it against him.” No one responded in the affirmative.

At the close of jury selection, the district court described how the

trial would proceed. The district court stated that after the close of the

State’s case, Christensen could present evidence “if he chooses to.” The

district court advised the jury, “[Christensen is] not required to [present

evidence]. As you’ve been told, he’s presumed innocent and the burden

rests with the state.”

C. Instructions of the District Court Related to Extraneous

Communications. After the petit jury had been selected, the district court

admonished the jury to avoid extraneous communication with anyone

regarding the trial. Specifically, the district court instructed the jury,

[Y]ou are not to converse among yourselves or with anyone

else on any subject connected with this case. . . . If anyone

should attempt to discuss this case with you or in your

presence, walk away and do not listen. However, if anyone

should persist in talking to you or in your presence, report it

immediately . . . .

Further, the district court told the jury,

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[Y]ou are admonished not to listen to, view, or read any form

of media while this case is in progress. . . . This includes . . .

the full gamut of social media, the internet, cell phone

communications, Instagram, Twitter. Just for the next few

days, I need to have you disconnect from that if you’re involved

at all.

D. Overview of Evidence Adduced at Christensen’s Trial. On

June 6, 2015, Bortvit was working in the meat department at a Fareway

store in Estherville. That afternoon Christensen was seen at the Fareway

meat counter. His truck was also spotted in the Fareway parking lot.

Although his family was not going to be home that evening, Christensen

bought some ground beef, which he put in the freezer when he returned

home. Bortvit left the Fareway store for his break at about 4:00 p.m.

Bortvit’s girlfriend, Cayley Fehr, was out of town but exchanged text

messages with Bortvit during the afternoon. Bortvit told Fehr in a text

message that he was with Christensen and that Christensen had asked for

a ride because his truck had broken down. Fehr had dated Christensen

in the past and knew of the antipathy Bortvit had toward Christensen.

Later in the day, Fehr received a text message from Bortvit’s phone stating

that he no longer wanted to date or see Fehr and that they should see

other people. Fehr subsequently received a text message from Christensen

stating he had killed Bortvit.

Christensen arrived home at approximately 5:00 or 5:30 p.m.

wearing a soiled T-shirt and jeans. He and his sister went downtown for

a sandwich. Upon returning home, Christensen watched TV but then

abruptly went upstairs.

Late that evening, Bortvit’s friends discovered his car parked and

locked in a residential area of Estherville. Police and community members

began to look for Bortvit.

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The next day, Christensen and his mother were driving to Sioux

Falls to catch a flight to Arizona so that Christensen could attend a cross-

country sports camp. She learned on Facebook that Bortvit was missing.

When she told Christensen of the news, he sat quietly. That same day,

Christensen’s father participated in the search for Bortvit.

After law enforcement learned that Bortvit had been seen talking to

Christensen at Fareway, they went to Christensen’s home and told his

sister they wanted to talk to him. When Christensen and his mother

arrived in Arizona, his mother received a text message indicating the police

wanted to talk to her son. After a confrontation, Christensen told his

mother that he and Bortvit had gotten into a fight, that he got scared, and

that he hit Bortvit with a rock. Thereafter, Christensen called his father

and told him that he knew where Bortvit’s body was. Christensen’s father

told police that Christensen had killed Bortvit. Using directions from

Christensen, police drove to a place outside of town where Bortvit’s body

was located in a pasture.

A search warrant executed at the Christensen home produced a .45

caliber pistol, ammunition, clothing, and Bortvit’s wallet in Christensen’s

room. In addition, investigators found bloodstained boots in the lower

level of the residence. A search of Christensen’s grandfather’s farm

produced three .45 caliber cartridge cases and three slugs. The trunk of

Bortvit’s car contained clothing and other items covered with blood.

An autopsy revealed that Bortvit died from multiple gunshots and

that his body exhibited bruising and abrasions. A projectile retrieved from

Bortvit’s body was traced to the .45 caliber pistol found in Christensen’s

room. Testing of the pistol revealed Bortvit’s, but not Christensen’s, DNA

on the grip of the gun. Examiners did not test the gun for blood or other

biological sources of DNA.

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The jury received the case on June 30, 2016, and deliberated into

the evening without reaching a verdict. The jury returned to deliberate on

July 1. That morning, the jurors delivered a note to the district court

indicating they were “stuck between two verdicts and need[ed] to know

what [their] options [we]re.” The district court replied that the jurors

“should continue to deliberate if [they] believe it would be productive in

reaching a unanimous verdict.” Later on the afternoon of July 1, the jurors

returned a verdict of second-degree murder.

E. Issue of Juror Disqualification. During the trial, a member of

the news media received a note stating that “there is a jury member telling

people the young man is guilty and . . . she is sticking to it.” The note also

identified juror K.B. by a phonetic spelling of the juror’s name. The

member of the news media provided the note to the district court, and law

enforcement conducted an investigation. The investigation revealed an

employee of a local café heard a patron state that a juror, while at a family

gathering, “kept on talking about the trial and that Lee Christensen was

guilty and was going to find him guilty no matter what.”

Law enforcement prepared an investigative report and the café

employee signed a written statement describing the events. These

documents were admitted into evidence as court exhibits. No testimony

was obtained from the employee who provided the written statement nor

from the person in the café who was overheard stating the juror had made

up her mind on the question of Christensen’s guilt.

The district court summoned juror K.B. into chambers. The court

conducted an examination of the juror without objections of either party.

When asked whether she had spoken to anyone about the case, the juror

stated, “I don’t believe I did. I think I said I was a juror maybe, you know,

or they knew I was a juror.” When asked whether she had expressed an

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opinion about Christensen’s guilt, she said she did not because she did

not know. When pressed whether she made any statements about

Christensen’s guilt, she stated, “I don’t believe I did. I don’t think I ever

said anything about his guilt or innocence.” When asked if she was

certain, the juror responded, “I’m trying to think. I don’t remember making

any statements about the guilt or innocence because I do not know.”

Christensen moved to remove the juror. The district court denied the

motion.

Christensen again raised the issue of juror disqualification in a

motion for new trial. The district court denied the motion, declaring the

ruling, among others, was “consistent with and supported by existing Iowa

law, and, more importantly, neither prejudiced Christensen nor violated

his rights to a fair trial and due process of law under the constitutions of

the United States and the State of Iowa.”

F. Overview of Alleged Prosecutorial Misconduct.

1. Presumption of innocence/burden of proof. During the trial, the

State called criminalist Tara Scott as a witness. During her examination,

Scott testified that DNA from Bortvit was detected on the grip of the

handgun asserted to be the weapon used to kill him. She also testified

that the handgun was not screened for blood and that forensic testing was

not conducted to determine if the source of the DNA was Bortvit’s skin or

perspiration (which might suggest Bortvit at one point held the gun).

Further, on cross-examination, Scott testified that scrapings found

underneath Bortvit’s fingernails were not tested because Scott had been

told that “no struggle was indicated.”

On redirect, the prosecution asked Scott if the physical evidence was

available for testing by others. Scott testified that it was. Christensen

objected and asked to be heard outside the presence of the jury. Outside

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the jury’s presence, Christensen objected to the question and answer

which “inferred that the defendant has not taken steps to prove his own

innocence.” Christensen argued the testimony violated the district court’s

ruling in a motion in limine and constituted “a direct comment on the

defendant’s presumption of innocence and the burden of proof in this

case.” In light of the statement, Christensen said that the court could not

“unring the bell.” He moved for a mistrial. The State responded that the

questioning did not cross the line, that the answer was not clear, and in

any event, that a curative instruction would be sufficient to cure any error.

The district court concluded that the questioning did not violate the

motion in limine but did have the implication that the defendant has an

obligation to prove his innocence. This, the court said, was improper. The

court determined that rather than grant a mistrial, it would provide the

jury with a curative instruction.

When the jury returned to the courtroom, the district court told the

jury:

There was . . . a question by [the prosecution] to the effect that

[items of evidence] were available for someone else to test

them; is that right? And the answer was yes. At that time

there was the objection made. I will tell you now that line of

questioning was improper because in my opinion that

reversed the roles that have been clearly stated to you several

times now by suggesting that the defendant somehow has an

obligation to prove his innocence. We’ve told you many, many

times, including in our preliminary instructions that that is

not the case. So, at this point in time, I am directing you to

disregard that line of questioning and disregard those answers

because, again, those were improper. Understood?

Everybody please acknowledge. I’ll acknowledge that all

members of the jury have confirmed their understanding.

2. False testimony. The State also called DCI investigator Peter

Wagner as a witness. Wagner testified he used a metal detector to search

for shell casings on the Christensen farm to determine where Bortvit’s fatal

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injuries were inflicted. Wagner offered inconsistent testimony on cross-

examination as to whether a metal detector had, in fact, been used.

Wagner acknowledged that he stated in a pretrial deposition that he was

unsure whether a metal detector was used. On redirect, however, Wagner

claimed that he had spoken with another crime scene investigator, Keri

Davis, during a lunch recess and that she told him a metal detector had,

in fact, been used.

After the redirect examination, Christensen’s counsel contacted

Davis, who confirmed she had talked with Wagner but told him that a

metal detector was not used at the scene because the middle rod of the

detector was missing. Christensen’s counsel moved for a mistrial,

asserting the State had introduced false testimony.

The district court had Davis testify by phone in chambers. She

confirmed what defense counsel had told the court, namely, that the metal

detector was not used, that she had not told Wagner the metal detector

was used, and that she had not told Wagner her deposition testimony to

that effect was incorrect.

The district court did not grant Christensen’s motion for mistrial.

Yet, the district court was plainly concerned. In chambers outside the

presence of the jury, the district court stated that it did not find Wagner

“intentionally falsif[ied]” his testimony but that it “borders on reckless

because it strictly was an opinion that he reached based on his discussions

with [Davis].” The district court advised Wagner that “[he] came very close

to having recklessly offered false testimony here” and that he should be

“very careful” when he phrased his answers to questions.

When the jury returned to the courtroom, the district court

addressed the question of Wagner’s testimony. The district court noted

that Wagner had provided testimony concerning statements attributed to

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Keri Davis, a fellow investigator at the scene, which Wagner attributed to

her from a conversation between the two of them made over the lunch

recess. The district court then stated,

As those statements currently are in the record, I believe they

could easily be construed by you as somewhat misleading,

and so at my request and at my direction, the state is going to

recall Mr. Wagner to further clarify and explain that

testimony.

Pursuant to the court’s instructions, Wagner was recalled as a

witness. Wagner testified that Davis had told him the metal detector was

broken at the scene. Because the broken metal detector was at the scene,

Wagner testified he assumed that Davis remembered him using it but she

did not say that in the conversation. Yet, Wagner insisted that he, in fact,

used the metal detector at the scene although its extension piece was

missing.

Christensen raised the question of prosecutorial misconduct in his

motion for a new trial. The district court denied the motion.

G. Jury Questions During Deliberations. After the jury

commenced deliberations on June 30, the jury asked the district court for

clarification of the court’s instructions. Specifically, the jury asked, “Could

we have further instructions on malice aforethought?” The parties agreed

the proper response to this question by the district court should simply be

to instruct the jury to follow the instructions previously given.

On July 1, the jury sent a second note stating, “We are stuck

between two verdicts and need to know what our options are.” With the

agreement of the parties, the district court responded they should

continue to deliberate if they believed it would be productive in reaching a

unanimous verdict.

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H. Motion for a New Trial Based on Jury Misconduct and Bias.

1. Introduction. After the jury returned its verdict, Christensen

learned about a Facebook post by “E’ville Amy” made public while the case

was still before the jury. In order to understand the context, we reproduce

the entirety of the Facebook post in the record:

There is a lot of anger expressed on this page at the delay in

verdict and the possible reasons for the delay. I was told a

couple of times at downtown market tonight that there’s

rumors of a possible riot if it’s not a verdict of guilty: first

degree murder.

I don’t know if the rumors have any substance but I want to

use this platform you have grown around my reporting here

to say: please. do. not. do. this. This community can not

sustain a riot right now. (To be clear, there’s never a good

time to riot. Peaceful demonstration against injustice ~ yes.

That’s an inalienable right as an American. But how often

have these things become anything but peaceful in our age?)

It won’t return Thomas Bortvit to us. It won’t bring the clock

back to June 5 before the chain of events that caused the

shooting. It won’t change the fact that another son of our

community will go away for a long time. You may in a certain

scenario believe it’s not long enough, but who can take a

stopwatch to the pain of loss–of a life and of what could have

been.

If you think some might consider rioting, use your influence

to stop them.

It won’t bring Thomas back. Alternatively, from what I’ve

observed, being kind to one another will let a little sliver of his

spirit shine through, if just for a moment.

We have to live here as family and community for years to

come. The only way I can see for the ripped apart places to be

whole again is love, peace, compassion, kindness, and

understanding.

Christensen moved for a poll of the jury to determine whether the

jury verdict might have been tainted by exposure to the Facebook posting

or other outside influences. The district court granted the motion. The

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district court held proceedings to poll the jury on October 18, 2018, more

than three months after the jury rendered its verdict.

2. Evidence adduced at jury poll. During the poll, each juror was

asked whether they heard or saw any comments in the news media, from

social media like Facebook, or from friends in the community that there

might be some sort of riot or violence if Christensen was not found guilty

of a certain offense. They were also asked whether they heard any

discussion by other jurors about a potential riot. Finally, if the answer

was yes, the jurors were asked when they heard the discussion or

commentary.

The first juror polled, S.G., when asked whether she heard before

the jury reached its verdict of a threat of some sort of riot or violence or

some kind of public disturbance if Christensen was not found guilty of

something, testified, “No, sir, I didn’t hear it before we reached our verdict,

no.” When asked if other jurors made comments along those lines, S.G.

stated, “Not that I can recall, no.” When pressed, S.G. again stated, “I

don’t think that it was mentioned before we reached our verdict that I know

of.” When asked if there was a possibility that such a statement was made

by another juror before the verdict was rendered, S.G. testified, “I’m going

to say no, there wasn’t any that I -- no, not even a possibility in my mind.”

The second juror, B.W., testified that he personally did not see or

hear anything related to violence outside the jury room but that “[he] did

hear in the jury room that some people had seen it on Facebook.” When

asked what specifically came up, B.W. stated, “[T]here were some threats

against the jury depending on what -- whatever decision was made” and

that jurors “just said that there are people threatening the jury.” B.W.

stated the statements were made by two female jurors. When asked at

what point in the proceedings the statements were made, B.W. responded,

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I would say it wasn’t part of our proceedings at all, you know,

as far as the decision we reached, but it was said after that

basically hey, could we get somebody to walk us to our

vehicles because some of the jurors were feeling like there

was, you know, obviously tension in the courtroom, but also

that they had seen some things on Facebook.

Further, in response to a question about whether the threats concerned a

particular verdict, B.W. replied,

That’s a really good question. I don’t think it was dependent

on what specific decision was made by the jury, just that there

were people on both sides of the issue about whatever the

decision would be made, and so that had an impact on, you

know, the jury feeling safe.

The third juror, M.S., testified to a lack of knowledge about any

possible threat of violence “until after the decision was made.” According

to M.S., she learned of the threat of violence as an explanation for why the

jury was assisted out of the courthouse. M.S. recalled, however, that a

comment in the jury room “had been mentioned a few days earlier.” M.S.

recalled that “the person talked to the judge about it.” When the court

advised M.S. that it did not remember such a conversation, the juror

responded, “[M]aybe we just discussed that maybe we should.” M.S. did

not remember who the juror was, but testified it was a female juror who

“had been told that it was all over Facebook” and who said “[s]omething to

the effect that her granddaughter had read it on Facebook.” When asked

if the comment was made at the conclusion of the evidence, while the jury

was deliberating, or before that time, the juror responded, “before that

time” and during the course of the trial.

The fourth juror, K.K., testified that she had heard “there had been

talk about a riot if [Christensen] wasn’t found guilty.” When asked where

she heard that, she stated, “I just heard it somewhere. I don’t know

where.” She also stated that at the time, she thought it “sounded

ridiculous and that was it.” She indicated she heard the comment

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sometime during the trial. She testified that she heard it out in the public

somewhere, that the comment was not directed at her, and that she did

not share what she heard with the jury. When asked if she heard other

members of the jury talking about something similar, she responded, “Not

that I recall.”

The fifth juror, T.L., testified that she did not hear of a threat of

violence outside the jury room but that one of the other jurors made a

comment that “they heard that if [the jury] didn’t vote for first degree

murder that there was going to be -- people were going to be mad or be

outside the courthouse, something to that effect.” She did not remember

when the comment was made or how many persons heard the comment.

She said it was “fairly dismissed.”

The sixth juror, J.A., testified that she had not heard of the threat

of violence outside the jury room but that it was brought up by a jury

member. According to J.A., a juror stated that “someone had told them

that if it wasn’t first degree that there would be a riot.” J.A. recalled the

comment was made “after we had made our verdict” but before the verdict

was announced in the courtroom.

The seventh juror, K.B., testified that she had not heard of a threat

of violence and that she did not remember any such discussion by the

jury.

The eighth juror, A.F., testified that she had not heard of the threat

of violence outside the jury room but recalled some discussion after the

decision had been made and announced in the courtroom. She recalled,

“I think somebody said something about a post on Facebook.” The juror

recalled that the commenting juror received the information about

Facebook from someone else. She believed that the sheriff’s office

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personnel escorted the jurors to their cars because of what the juror had

said or heard.

The ninth juror and jury foreperson, G.S., did not hear of any threat

of violence outside the jury room. He did recall other jurors stating that

they had heard something of that nature. He did not remember if the

concern over safety occurred before the verdict or after the verdict, “but

the concern was the safety of the jurors after the trial was over.” G.S.

testified, “I took a survey or a vote to see who was worried about their

safety, and most people raised their hands.” When asked whether the

source of the concern was due to a threat or something else coming from

outside the courtroom, or instead was based on the emotional nature of

the proceeding, G.S. stated, “I would say the emotional, yeah. It was highly

charged. There was a lot of emotional pressure in the jury room, as one

might expect, and that was bothersome.”

The tenth juror, R.D., testified that she did not hear of a threat of

violence outside the jury room. She also did not remember any discussion

of a threat of violence inside the jury room.

The eleventh juror, M.H., testified that she did not hear of any threat

of violence outside the jury room, but remembers a comment in the jury

room that “there might be, like, a possible riot at the courthouse.” She

testified that the comment was made on Friday prior to the jury resuming

deliberations. M.H. recalled that the juror heard about the threat in a

telephone conversation, that the source of the information was a family

member, and that the juror’s comment about a possible riot occurred on

a day before the jury returned to the courthouse to deliberate.

The twelfth juror, T.J., testified she did not hear outside the jury

room about a riot or some sort of public disturbance if Christensen was

not found guilty of something. She did recall such a comment and

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discussion by the jury but only after the verdict was announced. She

testified that juror A.F. was very emotional, was crying quite a bit, and

stated that “she had heard that somebody -- that there was a possible --

going to be a riot.” T.J. stated, “[T]hat’s all that was said.” As a result,

T.J. testified the jury asked to have deputies walk them out of the

courthouse.

At the close of the polling of the jurors, the district court made a

statement on the record. The district court said statements were made to

the court after trial that the

jurors, based on their belief that this obviously was an

emotionally charged case from what they had seen in the

courtroom, their concerns over all of the family members and

the public that had been here during the course of the trial,

[and] that they could be confronted by those individuals upon

leaving the courthouse, . . . requested safety escorts.

There was absolutely no statement made to [the court]

about anybody seeing anything on Facebook, social media, or

having heard anything out in the community that would have

led to them having those safety concerns.

3. District court ruling on motion for a new trial. In his motion for a

new trial, Christensen argued that the record established juror

misconduct and jury bias. The district court denied relief.

In its posttrial ruling, the district court summarized the testimony

of the jurors. The district court considered whether the jurors saw or

heard about the E’ville Amy Facebook post outside the courthouse. The

district court noted that none of the jurors testified they saw or read the

Facebook posting by E’ville Amy.

The district court considered the question of when the jury heard

about the possibility of public violence. The district court noted that five

jurors acknowledged they heard about the possibility of a riot or public

violence from another juror if a certain verdict was not reached. But,

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according to the district court, only one juror could recall which juror

made the statement. The district court also observed that one juror heard

about a possible riot in the community but called it “ridiculous.”

Further, the district court stated three jurors testified they did not

recall any discussion of public violence and two other jurors believed the

jurors’ safety concerns were due, at least in part, to the tension in the

courtroom between friends and family members of the Christensen and

Bortvit families. The district court noted the jury foreperson, G.S., took a

survey of the jurors to see if they felt unsafe after their verdict had been

read, and when a majority of jurors raised their hands, the court was

notified of the concern. When the court was informed of the jury’s concern

after the verdict was rendered, the court stated that no mention was made

about comments on Facebook or about someone having heard something

that led the jurors to perceive a threat to their safety.

The district court further observed three jurors testified that the

possibility of a public disturbance or public violence had been brought up

by another juror during the course of the trial and before the jury reached

its verdict. These three jurors, however, could not recall who brought up

the issue. Two of the three jurors, the court noted, could not recall when

the juror commented on the possibility of violence.

After summarizing the jurors’ testimony, the district court applied a

multifactor test set forth in State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984),

abrogated on other grounds by Ryan v. Arneson, 422 N.W.2d 491, 495

(Iowa 1988), to determine whether to grant Christensen a new trial based

on juror misconduct. Based on its review of the record, the district court

concluded Christensen failed to meet the Cullen test.

To determine whether to grant Christensen a new trial based on

juror bias, the district court considered State v. Webster, 865 N.W.2d 223,

19

236–39 (Iowa 2015). The court held Christensen did not meet his burden

of showing juror bias.

II. Discussion of Juror Disqualification.

A. Introduction. Christensen seeks a new trial because of the

alleged bias of juror K.B. Iowa Rule of Criminal Procedure 2.24(2)(b)(9)

provides that a court may grant a new trial when “the defendant has not

received a fair and impartial trial.” As we noted in Webster, “a jury

consisting of eleven impartial jurors and one actually biased juror is

constitutionally infirm without any showing that there was juror

misconduct.” 865 N.W.2d at 237 n.7.

B. Positions of the Parties.

1. Christensen’s position. Christensen claims the district court

committed reversible error when it refused to disqualify juror K.B. for

potential bias. He contends that while a district court decision denying a

motion for new trial is ordinarily reviewed for an abuse of discretion, we

review fact-finding de novo when constitutional issues are involved.

Christensen emphasizes the language used by K.B. when pressed

about whether she had made any out-of-court statement declaring

Christensen guilty. Christensen points out that K.B.’s answers when

asked about making statements about Christensen’s guilt or innocence

were guarded and circumspect: “I don’t believe I did” and “I don’t think I

ever said anything about his guilt or innocence.” (Emphasis added.)

In support of his argument, Christensen cites State v. Beckwith, 242

Iowa 228, 238–39, 46 N.W.2d 20, 26 (1951), abrogated on other grounds

by State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa 1993). In Beckwith, this

court cautioned that “trial courts should use the utmost caution in

overruling challenges for cause in criminal cases when there appears to be

a fair question as to their soundness.” Id. at 238, 46 N.W.2d at 26. The

20

Beckwith court noted that while a ruling might be technically sound, “it is

far better to give the accused the benefit of the doubt.” Id. at 239, 46

N.W.2d at 26.

2. The State’s position. The State counters that the standard to be

applied to a question of juror disqualification is abuse of discretion.

Webster, 865 N.W.2d at 231. The State recognizes an abuse of discretion

occurs when a district court order is based on an erroneous application of

law. See State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). And, even

if the case involves a constitutional question subject to de novo review, the

State emphasizes that the reviewing court gives some deference to

credibility determinations made by the district court. See State v. Carter,

696 N.W.2d 31, 36 (Iowa 2005).

The State urges us to examine the record made regarding the motion

to disqualify K.B. The State notes that K.B. repeatedly stated she had not

come to a decision regarding the guilt or innocence of the accused.

Further, the State notes there was no factual showing the juror actually

stated at a family event that she believed the defendant was guilty.

C. Discussion. On the issue of juror disqualification, we do not

decide whether the standard of review is de novo or abuse of discretion.

As in Webster, we generally agree with the fact-finding of the district court.

865 N.W.2d at 231 n.4.

Christensen’s cited case of Beckwith provides sound advice to the

district court, namely, that it makes practical sense to error on the side of

caution on a question of jury disqualification. In this case, there were two

alternate jurors available to take the place of a dismissed juror.

Yet, the Beckwith advice to judges to be cautious when there is a

close question of disqualification for cause does not alter the requirement

that the defendant establish a sufficient basis to support disqualification

21

of a juror. Here, there was no direct evidence the juror actually made the

alleged statements about Christensen’s guilt. Rather, there was only an

anonymous note summarizing a coffee shop discussion. No one testified

that juror K.B. actually made the statements attributed to her in the

anonymous coffee shop note. The qualified language used by the juror

when she was questioned about the alleged statement, of course, is a

factor, and in some cases might be an important factor, 1 but here, the

evidence that she actually made the potentially disqualifying statements

attributed to her is hearsay upon hearsay and generally denied by the

juror. Had credible testimony been offered showing that K.B. did, in fact,

1Social science research suggest that the language actually used by a witness

provides a much better barometer of credibility than witness demeanor, which is often

misleading. In two pioneering articles, legal academics reviewing the social science

literature explain that visual cues are significantly worse than language content in

assessing credibility. Jeremy A. Blumenthal, A Wipe of the Hands, a Lick of the Lips: The

Validity of Demeanor Evidence in Assessing Witness Credibility, 72 Neb. L. Rev. 1157,

1203 (1993) (“[R]esearch has shown that observers exposed to a witness’ voice are able

to judge deceit best, and those exposed to merely a transcript and no ‘demeanor cues’ do

almost as well, up to twice as well as those who are exposed to visual cues. Thus, there

is support for the claim that findings of credibility could be reviewed de novo by appellate

courts.” (Footnote omitted.)); Olin Guy Welborn III, Demeanor, 76 Cornell L. Rev. 1075,

1075, 1104–05 (1991) (“According to the empirical evidence, ordinary people cannot make

effective use of demeanor in deciding whether to believe a witness. On the contrary, there

is some evidence that the observation of demeanor diminishes rather than enhances the

accuracy of credibility judgments. . . . To the extent that people can detect lying or

erroneous beliefs in another, they do so primarily by paying close attention to the content

of what the other says, not by observing facial expression, posture, tone of voice, or other

nonverbal behavior.”). Later research has confirmed the accuracy of those two articles

and further explains how juror biases and information asymmetry can affect lie detection.

Max Minzner, Detecting Lies Using Demeanor, Bias, and Context, 29 Cardozo L. Rev. 2557,

2558, 2578 (2008). Relying on the social science research, courts have expressed unease

with dependence on demeanor evidence to assess credibility because of its tendency to

mislead. See, e.g., United States v. Pickering, 794 F.3d 802, 805 (7th Cir. 2015)

(“[D]emeanor evidence, such as tone of voice, or gestures or posture, can be an unreliable

clue to truthfulness or untruthfulness, and thus distract a trier of fact from the cognitive

content of a witness’s testimony.”); United States v. Shonubi, 895 F. Supp. 460, 481

(E.D.N.Y. 1995) (“Gauging credibility is the best known application of demeanor.

Ironically, this may be one of its least effective uses.”), vacated on other grounds, 103 F.3d

1085 (2d Cir. 1997); State v. Rogerson, 855 N.W.2d 495, 509–10 (Iowa 2014) (Hecht, J.,

concurring specially) (explaining that “intuitive assumptions” that physical distance and

vision-blocking screens between a witness and defendant “bear[] on the assessment of

reliability may be true, but maybe not”).

22

make the statements attributed to her, we would have a different scenario.

In light of the record developed in this case, however, we decline to disturb

the ruling of the district court.

III. Discussion of Prosecutorial Misconduct.

A. Positions of the Parties.

1. Christensen’s position. Christensen asserts the district court

erred in failing to grant him a new trial based upon prosecutorial

misconduct. See State v. Graves, 668 N.W.2d 860, 867 (Iowa 2003); State

v. Piper, 663 N.W.2d 894, 913 (Iowa 2003), overruled on other grounds by

State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010). Christensen argues

prosecutorial misconduct occurred when the State elicited testimony from

Tara Scott that the physical evidence was available for testing by others.

In support of that claim he cites Hanes, 790 N.W.2d at 556. In Hanes, we

held that the state bears the burden of proof in a criminal prosecution and

that it was improper for the state to attempt to shift the burden to the

defense by suggesting that the defense could have called additional

witnesses. Id.

Christensen recognizes the district court sustained his objection to

the Scott testimony and instructed the jury to disregard the question and

the answer. According to Christensen, however, this was a case in which

the proverbial bell, when once rung, cannot be unrung. See State v.

Jackson, 587 N.W.2d 764, 766 (Iowa 1998) (“[A] reversal may only be

predicated on the proposition that the matter forbidden by the ruling was

so prejudicial that its effect upon the jury could not be erased by the trial

court’s admonition.”); State v. Williamson, 570 N.W.2d 770, 771 (Iowa

1997) (same).

Christensen also cites the testimony of Peter Wagner as establishing

prosecutorial misconduct. According to Christensen, Wagner’s testimony

23

that a metal detector was used by investigators at the Christensen farm

was false and misleading. According to Christensen, a prosecutor’s use of

false testimony violates due process. See DeVoss v. State, 648 N.W.2d 56,

64 (Iowa 2002). Christensen notes the district court observed that

Wagner’s testimony “bordered on the reckless.” Yet Christensen

recognizes the court admonished the jury that Wagner’s testimony was

misleading and provided Wagner with an opportunity to “clarify” his

testimony.

2. The State’s position. The State counters there was no

prosecutorial misconduct and, to the extent any may have occurred, it was

cured by the actions taken by the district court. On the question of

whether it was improper for Scott to testify that evidence was available for

testing by others, the State does not discuss Hanes but instead relies on

the earlier case of State v. Craig, 490 N.W.2d 795, 797 (Iowa 1992). In

Craig, we stated that “a prosecutor may properly comment upon the

defendant’s failure to present exculpatory evidence, so long as it is not

phrased to call attention to the defendant’s own failure to testify.” Id.

(emphasis omitted) (quoting State v. Bishop, 387 N.W.2d 554, 563 (Iowa

1986)).

With respect to the Wagner testimony, the State maintains

Christensen failed to show the testimony about the telephone conversation

with Davis was false, as neither Wagner nor Davis remembered what was

specifically said. Further, the State suggests the prosecution had another

witness who testified that Wagner used a metal detector.

In any event, in order for prosecutorial misconduct to be present,

the State argues, Christensen must show that the State knew the

testimony was false and that the false testimony was material to the case.

See Hamann v. State, 324 N.W.2d 906, 909 (Iowa 1982). The State asserts

24

that Christensen failed to show that the State knew the testimony was

false and that the dust-up over whether a metal detector was used to locate

metal objects at the Christensen farm is not the kind of question that

would influence the verdict in this case.

B. Discussion. We conclude the State has the better argument

with respect to the prosecutorial misconduct claim arising out of the Scott

testimony. Her testimony crossed the line established in Hanes, a case

which the State declined to address. Yet, upon objection, the district court

excluded the evidence and directed the jury to disregard it.

We do not think the error was so serious to require a mistrial. We

have said that a prosecutor’s misconduct will not warrant a new trial

unless the conduct was so prejudicial as to deprive the defendant of a fair

trial. State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999). We have noted that

“[p]rejudice can, but usually does not, result from isolated prosecutorial

misconduct.” State v. Anderson, 448 N.W.2d 32, 34 (Iowa 1989). Here,

the prosecutorial misconduct was an isolated event and was not as

prejudicial as, say, a comment on the defendant’s failure to testify in his

or her own defense.

Further, as both parties recognize, we have stated curative

instructions are generally sufficient to cure most trial errors. See State v.

Plaster, 424 N.W.2d 226, 232 (Iowa 1997). Here, the improper question,

the answer, the motion to strike, and the curative instruction happened in

rapid succession. The testimony stricken was not of a startling or

flamboyant nature that was likely to make an indelible impression on the

jury. We think the district court’s response to the timely objection at trial

provided an adequate remedy to Scott’s inappropriate testimony.

We also reject Christensen’s assertion that he is entitled to a new

trial based upon Wagner’s alleged misconduct. The district court found

25

Wagner’s testimony regarding his conversation with Davis troubling, and

so do we. But the record does not support a conclusion the State was

aware, or should have been aware, of a plan by Wagner to present false

testimony. See Hamann, 324 N.W.2d at 909. Further, Wagner returned

to the stand to clarify his prior misleading testimony about his

conversation with Davis. Ultimately, the jury was not materially misled,

and Wagner’s credibility was clearly damaged by his misstep. This

singular event on a collateral issue does not provide the basis for a new

trial.

IV. Discussion of Jury Misconduct and Bias.

A. Introduction. The Sixth and Fourteenth Amendments to the

United States Constitution and article I, sections 9 and 10 of the Iowa

Constitution guarantee a criminal defendant the right to a fair trial before

an impartial jury. U.S. Const. amends. VI, XIV; Iowa Const. art. I, §§ 9,

10; Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642 (1961). The

jury is constitutionally required to base its verdict on the evidence

developed at trial. Irvin, 366 U.S. at 722, 81 S. Ct. at 1642. The partiality

of one juror due to extraneous influence is sufficient to deny the defendant

the constitutional guarantee of an impartial trial. Parker v. Gladden, 385

U.S. 363, 366, 87 S. Ct. 468, 471 (1966) (“[P]etitioner was entitled to be

tried by 12, not 9 or even 10, impartial and unprejudiced jurors.”);

Webster, 865 N.W.2d at 237 n.7 (“[A] jury consisting of eleven impartial

jurors and one actually biased juror is constitutionally infirm . . . .”).

The constitutional right to an impartial jury may be impaired by jury

misconduct and jury bias. The concepts of juror misconduct and juror

bias are often related but are somewhat different in nature. Webster, 865

N.W.2d at 232. Juror misconduct often involves communication by a juror

with others about the case outside the jury room, independently

26

investigating the crime, or engaging in independent research on questions

of law or fact. Id. Juror bias, on the other hand, does not necessarily

involve juror misconduct, but arises when a juror is unable to fairly engage

in a determination of guilt or innocence based on the evidence at trial and

the court’s instructions. Id.

Under our rules of criminal procedure, a defendant may be entitled

to a new trial when the jury “have been guilty of any misconduct tending

to prevent a fair and just consideration of the case.” Iowa R. Crim. P.

2.24(2)(b)(3). Our rules also provide for a new trial if “the jury has received

any evidence . . . not authorized by the court.” Id. r. 2.24(2)(b)(2). Finally,

our rules provide that a new trial may be granted when “the defendant has

not received a fair and impartial trial.” Id. r. 2.24(2)(b)(9).

Also relevant is Iowa Rule of Evidence 5.606(b). Under this rule, a

juror is generally prohibited from testifying about jury deliberations except

a juror may testify about whether any extraneous information was

improperly brought to the attention of the jury. Id.

B. Positions of the Parties.

1. Christensen’s position. Christensen argues that he is entitled to

a new trial based on jury misconduct and jury bias. He cites the authority

to grant a new trial in Iowa Rules of Criminal Procedure 2.24(2)(b)(2),

(2)(b)(3), and (2)(b)(9). Christensen argues that although a denial of a

motion for new trial based upon juror misconduct or juror bias is reviewed

for an abuse of discretion, we review fact-finding de novo when

constitutional issues are involved.

The thrust of his claim is that a juror or jurors learned from sources

outside the jury there might be a riot at the courthouse in the event the

jury did not return a certain verdict. The juror or jurors then told other

27

jurors of the possibility of a riot. Christensen claims these events

prevented him from getting a fair trial.

In pressing his claim, Christensen urges us to apply a test presented

in Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954).

In Remmer, the Supreme Court stated that “[i]n a criminal case, any

private communication, contact, or tampering directly or indirectly, with a

juror during a trial about the matter pending before the jury is, for obvious

reasons, deemed presumptively prejudicial.” Id. The Remmer Court noted

that “[t]he presumption is not conclusive, but the burden rests heavily

upon the Government to establish, after notice to and hearing of the

defendant, that such contact with the juror was harmless to the

defendant.” Id. The case was remanded to allow the government to

attempt to meet its burden. Id. at 230, 74 S. Ct. at 451–52.

Christensen cites a number of federal circuit court cases in support

of a relatively stringent test. For instance, Christensen cites United States

v. Dutkel, 192 F.3d 893, 897–98 (9th Cir. 1999), abrogated on other

grounds by Godoy v. Spearman, 861 F.3d 956, 968 n.6 (9th Cir. 2017) (en

banc). In Dutkel, the United States Court of Appeals for the Ninth Circuit

held that a prima facie showing of jury tampering triggered a presumption

of prejudice and that the court should inquire whether “the intervention

interfered with the jury’s deliberations by distracting one or more of the

jurors, or by introducing some other extraneous factor into the deliberative

process.” Id. at 897. Christensen cites several additional cases for the

proposition that the court should engage in stringent review when there

are claims of external influence on a jury. See United States v. Rutherford,

371 F.3d 634, 644 (9th Cir. 2004) (“The appropriate inquiry is whether the

unauthorized conduct ‘raises a risk of influencing the verdict,’ or ‘had an

adverse effect on the deliberations.’ ” (first quoting Caliendo v. Warden of

28

Cal. Men’s Colony, 365 F.3d 691, 697 (9th Cir. 2004); and then quoting

United States v. Henley, 238 F.3d 1111, 1117 (9th Cir. 2001)); United

States v. Tucker, 137 F.3d 1016, 1031 (8th Cir. 1998) (“The question of

prejudice depends on whether ‘there is any reasonable chance that the

jury would have been deadlocked or would have reached a different verdict

but for the fact that even one reasonable juror was exposed to prejudicial

extraneous matter.’ ” (emphasis omitted) (quoting United States v. Hall,

116 F.3d 1253, 1255 (8th Cir. 1997)); United States v. Cheek, 94 F.3d 136,

144 (4th Cir. 1996) (granting relief where one juror, exposed to bribery

attempt, was “devastated and fearful”).

Christensen also urges us to apply a “heightened scrutiny” test

adopted in State v. Carey, 165 N.W.2d 27, 30 (Iowa 1969). In Carey, we

considered, among other issues, the impact of a sign in the jury room

indicating that the coffee was being jointly provided by the county clerk

and the county attorney. Id. at 28. We emphasized, “Our anxiety to

protect the jury from any conduct which would lessen public confidence

in our judicial system should be even greater in a criminal trial.” Id. at

30. Citing the coffee sign and other errors, we reversed the conviction. Id.

Christensen argues that the heightened scrutiny afforded by Carey in

criminal cases was recognized in Cullen, 357 N.W.2d at 27.

Applying heightened scrutiny under Remmer or Carey, Christensen

argues, he is entitled to a new trial because of juror misconduct.

Christensen asserts that the misconduct arose when jurors received

external information about the possibility of a riot if a certain verdict was

not returned and when this information was communicated to the jury

during their deliberations.

Christensen canvasses the record developed in the jury poll to

support his mistrial motion. Christensen notes that one juror testified

29

that two jurors had seen a Facebook post indicating that people were

threatening violence depending on what decision the jury made. He

emphasizes testimony that those two jurors saw postings about violence

against the jury. Viewing Facebook postings about the trial, according to

Christensen, would violate the instructions of the court to avoid contact

with social media. Christensen notes that one juror testified that another

juror told the jury that she had overheard talk in the community about a

riot if the defendant was found not guilty.

The misconduct continued, Christensen asserts, when the jurors

shared the extraneous information with other members of the jury.

Christensen observes the jury poll demonstrated that nine of the twelve

jurors were aware of the potential threat. He further notes that one juror

testified that comments were made about the threat a few days before the

verdict was rendered and before the conclusion of evidence. In addition,

he points out, two jurors recalled that another juror had spoken by

telephone with a family member about the riot threat before the jury

returned to continue its deliberations on Friday.

Christensen argues the threat had an impact on the jurors’ concern

for their own safety. Christensen cites the testimony of the jury foreperson

who stated that after the verdict was rendered, he took a poll of jurors and

a majority raised their hands when asked whether they were concerned

about their personal safety. Christensen points out juror testimony that

the perceived threat played a role in the jury’s request for a police escort

when jurors walked to their cars after rendering their verdict. Another

juror, he notes, recalled being told the threat was “all over Facebook” and

that this threat was the reason the jury was led out of the courthouse.

Christensen also directs our attention to a third juror’s testimony

concerning a juror who heard of the threat and was very emotional and

30

upset. He further points out that one juror was sufficiently alarmed about

her safety to ask the sheriff to patrol her home after the conclusion of the

trial.

Christensen cites two cases from other jurisdictions in which threats

of public violence gave rise to a change in venue. In Lozano v. State, 584

So. 2d 19, 22 (Fla. Dist. Ct. App. 1991) (per curiam), the Florida appellate

court held that the district court erred in failing to grant a change of venue

in a police shooting case that had attracted media attention and caused a

Miami neighborhood to erupt into civil disturbance. The Lozano court

noted that several jurors were affected by the fear of violence and that

several had heard from friends or relatives that there might be a

disturbance if the defendant was found guilty. Id. at 22 n.5. The Florida

court stated,

Surely, the fear that one’s own county would respond to a not

guilty verdict by erupting into violence is as highly

“impermissible [a] factor” as can be contemplated. Surely too,

there was an overwhelmingly “unacceptable risk” of its having

adversely affected Lozano’s—and every citizen’s—most basic

right under our system: the one to a fair determination of his

guilt or innocence based on the evidence alone.

Id. at 22–23 (quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691,

1693 (1976)).

Christensen also cites Powell v. Superior Court, 283 Cal. Rptr. 777,

787 (Ct. App. 1991). In this case, the California appellate court confronted

a situation in which white police officers were charged with assaulting

Rodney King, an African-American man. Id. at 778–80. In granting a

change of venue, the Powell court noted that “[it] must draw the inevitable

inference about the possibility of threats which would surface during the

trial itself.” Id. at 787. The Powell court found the possibility of threats of

violence would “add another impermissible factor into the boiling cauldron

31

surrounding this case, making it imperative to take every step possible to

ensure that an impartial unbiased jury be seated.” Id.

Under the circumstances here, Christensen contends there is no

doubt that one or more jurors were exposed to the Facebook posting about

a potential riot and that some of the jurors were exposed to this

information as early as days before deliberation and certainly before the

verdict was rendered. The jury poll, he notes, revealed that nine of the

jurors were aware of discussion of a possible riot in the community if a

certain verdict was not rendered, that one of them was emotionally upset

about it, that the jury poll taken immediately after the verdict was

rendered revealed sufficient concern that law enforcement escorted the

jury from the courtroom, and that one of the jurors asked to have her home

patrolled after the verdict was rendered.

Christensen presses that the extraneous information about a

potential riot was calculated to, and with reasonable probability did,

influence the verdict. While Christensen recognizes the district court

noted that two jurors commented that they considered the threats

“ridiculous” or “fairly dismissed,” such consideration was impermissible

under Iowa Rule of Evidence 5.606(b). Christensen urges us to instead

consider objectively the potential impact on the jury verdict. See State v.

Henning, 545 N.W.2d 322, 325 (Iowa 1996). Noting twenty-four of sixty

prospective jurors were disqualified for cause, Christensen argues that the

case involved a star athlete killing a popular college student that generated

community sentiment. If even one juror was not impartial as a result of

the possibility of a riot, Christensen argues he is entitled to a new trial.

See Parker, 385 U.S. at 365–66, 87 S. Ct. at 471; Webster, 865 N.W.2d at

237 n.7.

32

2. The State’s position. The State suggests the proper standard of

review for juror misconduct is abuse of discretion, citing Webster, 865

N.W.2d at 231. The State again recognizes, however, that an erroneous

application of law is an abuse of discretion. Rodriquez, 636 N.W.2d at 239.

The State also cites Carter, 696 N.W.2d at 36, a case involving de novo

review of constitutional issues, for the proposition that even when

constitutional issues are involved, the court on appeal gives deference to

findings of fact because of the district court’s ability to assess the

credibility of witnesses.

The State asserts that in seeking a new trial based on juror

misconduct, a defendant must satisfy the multipronged approach outlined

in Cullen, 357 N.W.2d at 27, and utilized in Webster, 865 N.W.2d at 235–

36. First, the evidence bearing on misconduct must be based only on

objective facts as to what occurred. Webster, 865 N.W.2d at 234. Second,

“the acts or statements complained of must exceed tolerable bounds of

jury deliberation.” Id. (quoting Cullen, 357 N.W.2d at 27). Third, “it must

appear the misconduct was calculated to, and with reasonable probability

did, influence the verdict.” Id. (quoting Cullen, 357 N.W.2d at 27).

In canvassing the jury poll record, the State argues there was no

juror misconduct. The State asserts the evidence revealed that one juror

apparently spoke to her granddaughter and the granddaughter—not the

juror—saw the threat on Facebook. Another juror, according to the State,

simply heard a community member comment about a threat to the jury’s

safety. The State notes there was no evidence that a juror saw the threat

by violating the court’s instruction against viewing material on social

media. The State discounts the testimony of the juror who stated that two

jurors had directly seen the threat on Facebook.

33

The State further recognizes that in State v. Johnson, 445 N.W.2d

337, 342 (Iowa 1989), overruled on other grounds by State v. Hill, 878

N.W.2d 269, 274–75 (Iowa 2016), we held that outside information relayed

to the jury before or during jury deliberations exceeds the permissible

bounds of jury deliberation. In Johnson, a juror told other jurors that one

of the defendant’s victims “broke down” and cried in front of a teacher at

school. Id. at 339. The juror also told other jurors that he had heard

rumors the defendant hit the victims. Id. The State, however maintains

that Johnson does not apply here because the district court concluded

from its credibility findings that no juror discussed the threat during jury

deliberations.

Further, the State argues there was no reasonable probability the

threat to the jurors’ safety affected the verdict. The State relies on

statements from some jurors that the threat was “ridiculous” and “fairly

dismissed.” While one juror was described as being upset, the State

argues she did not hear of the threat until after the verdict. Finally, the

State claims the jurors’ request for a police escort upon leaving the

courthouse was attributed to all the family members and public attending

the trial and a desire to avoid confrontation when leaving the courthouse.

Finally, the State argues there was no reasonable probability that

the jury’s verdict was impacted because the State’s evidence was so strong.

The State notes the defendant admitted at trial, and to both his parents

prior to trial, that he shot the victim. The State further notes other

evidence, such as the gun retrieved from the defendant’s home and his

bloodstained pants and boots, supports the second-degree murder verdict.

Finally, the State contends the evidence at trial established the defendant

was upset with his ex-girlfriend.

34

C. Proper Framework for Evaluating Juror Misconduct.

1. Introduction. The first issue we must resolve is the proper legal

framework for determining whether a reversible case of jury misconduct is

present. A district court that misapplies the legal test commits reversible

error. Rodriquez, 636 N.W.2d at 239. If the district court applied the

correct test, the second issue that arises is the proper standard of review

on appeal. Once we have determined the proper legal standard and the

standard of review to be applied on appeal, we can then apply the law to

the facts of this case.

In considering these questions, we recognize there are two

competing interests in considering how to handle juror misconduct. On

the one hand, a core tenet of our system of government, enshrined in the

right to counsel and due process provisions of the Iowa and United States

Constitutions, is the notion that criminal convictions are imposed only by

a fair and impartial jury based solely on the evidence. See James W.

Diehm, Impeachment of Jury Verdicts: Tanner v. United States and

Beyond, 65 St. John’s L. Rev. 389, 393 (1991) [hereinafter Diehm].

On the other hand, intrusive inquiries into jury deliberations could

undermine right-to-counsel and due process goals. See id. If jurors

understand the public will have access to deliberations, they may be more

controlled by perceptions of public opinion than the evidence at hand. See

id. at 438; Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev.

886, 894 (1983). As a result, jury privacy is essential to public confidence

in the verdict. Tanner v. United States, 483 U.S. 107, 120–21, 107 S. Ct.

2739, 2748 (1987). Further, there is an interest in finality. Id. at 120,

107 S. Ct. at 2747. Attacking verdicts, sometimes years later, may put the

prosecution at a disadvantage as memories fade, witnesses become

unavailable, and evidence is lost. Diehm, 65 St. John’s L. Rev. at 402.

35

Yet, few would argue that finality considerations trump the need to avoid

miscarriages of justice that may occur if a defendant is tried by a partial

jury.

The task is complicated by our evolving rules of evidence. Under

Federal Rule of Evidence 606(b) and its Iowa counterpart, Iowa Rule of

Evidence 5.606(b), a court is generally prohibited from inquiring into jury

deliberations. Although inquiry into precisely what extraneous

information was presented to a juror or jurors is permissible, exploration

of the actual impact on jurors by asking them how the extraneous

information impacted the deliberations and verdict is off limits. See United

States v. Williams-Davis, 90 F.3d 490, 496 (D.C. Cir. 1996); State v. Wilson,

878 N.W.2d 203, 210 (Iowa 2016). Further, the passage of time can be

problematic on record development. See Moore v. Knight, 368 F.3d 936,

941–42 (7th Cir. 2004) (“[I]t is ridiculous to base such a determination [of

whether or not there was prejudice] on the predictable lack of evidence so

many years after the fact.”). Because of the barriers presented by

evidentiary rules, and often by the passage of time, questions of what

presumptions and burdens of proof apply under various circumstances

are critical to case outcomes when assessing whether extraneous

influences prevented the defendant from receiving a fair trial.

And there is a further complication, namely, the era of the Internet.

Because of the Internet, the likelihood of jurors receiving extraneous

information has exponentially increased. See Bennett L. Gershman,

Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev.

322, 324 (2005). In June 2013, Wikipedia had almost eight billion page

views. Anna H. Tison, United States v. Lawson: Problems with Presumption

in the Fourth Circuit, 91 N.C. L. Rev. 2244, 2244 (2013). A low threshold

for court intervention could significantly impact the stability of verdicts.

36

In the end, it would be difficult to argue that verdicts could never be

impeached as a result of injection of extraneous information into the jury

process. On the other hand, setting the bar too low could well backfire

and could impose unacceptable costs that are at best weakly linked to trial

outcomes. As is often the case in the law, it is a delicate balance.

2. Competing approaches to extraneous influences on jurors in

United States Supreme Court caselaw. We begin with a discussion of a

thread of four United States Supreme Court cases dealing with the right

to an impartial jury. As will be seen, the cases are at least somewhat

inconsistent and have led to a variety of permutations in the lower federal

courts.

The first significant case is the capital murder case of Mattox v.

United States, 146 U.S. 140, 13 S. Ct. 50 (1892). In Mattox, jurors

submitted affidavits posttrial indicating the bailiff had discussed the case

with the jury and a newspaper article related to the case was read to the

jury. Id. at 142–43, 13 S. Ct. at 51. The bailiff had told the jury that the

deceased in the case was the defendant’s third victim. Id. at 142, 13 S. Ct.

at 51. The newspaper article stated this was the defendant’s second trial,

the evidence against him was “very strong,” and “friends of Mattox gave up

all hope of any result but conviction.” Id. at 143, 13 S. Ct. at 51–52.

The Mattox Court addressed the question of what evidence should

be considered in impeaching the jury’s verdict. The Mattox Court stated

that a member of the jury could testify on the question of the existence of

any extraneous influence, although not as to how far that influence

operated upon the juror’s mind. See id. at 149, 13 S. Ct. at 52–53. At

least in capital cases, the Mattox Court declared that “[p]rivate

communications, possibly prejudicial, between jurors and third persons .

. . are absolutely forbidden, and invalidate the verdict, at least unless their

37

harmlessness is made to appear.” Id. at 150, 13 S. Ct. at 53. In support

of the notion that extraneous communications were “absolutely

forbidden,” the Mattox Court cited state court cases from Michigan and

Kansas. Id. (citing State v. Snyder, 20 Kan. 306, 308–10 (1878); People v.

Knapp, 3 N.W. 927, 929–31 (Mich. 1879)). Although there were other

bases for reversal, the unanimous Mattox Court made clear the extraneous

influence introduced to the jury in this case would have been reversible

error as well. Id. at 151, 13 S. Ct. at 53.

The next case in the thread is Remmer, 347 U.S. 227, 74 S. Ct. 450,

decided more than fifty years after Mattox. In Remmer, the defendant was

charged with, and convicted of, willful evasion of federal income taxes. Id.

at 228, 74 S. Ct. at 450. The defendant learned after trial that an

unnamed person told the jury foreman that the foreman could profit by

bringing in a verdict favorable to the defendant. Id. at 228, 74 S. Ct. at

450–51. The juror reported the incident to the judge, who informed the

prosecution but not the defense. Id. at 228, 74 S. Ct. at 451. The FBI

then conducted an investigation and produced a report, which was

considered by the judge and the prosecutors alone. Id. The judge and

prosecution again considered the matter without the defense and, in light

of the FBI report, concluded that “the statement to the juror was made in

jest.” Id.

After trial, the defendant moved for a new trial. Id. His attorneys

asserted that if they had known of the investigation, they would have

moved for a mistrial and requested that the juror in question be replaced

by an alternate juror. Id. at 228–29, 74 S. Ct. at 451. The district court,

without holding a hearing, denied the motion, and the D.C. Circuit

affirmed. Id. at 229, 74 S. Ct. at 451.

38

The Remmer Court, in a brief unanimous opinion by Justice Minton,

vacated the appellate decision and remanded to the district court. Id. at

230, 74 S. Ct. at 451–52. In a criminal case, the Remmer Court noted that

any private communication, contact, or tampering directly or

indirectly, with a juror during a trial about the matter pending

before the jury is, for obvious reasons, deemed presumptively

prejudicial, if not made in pursuance of known rules of the

court and the instructions and directions of the court made

during the trial, with full knowledge of the parties.

Id. at 229, 74 S. Ct. at 451. In connection with the presumption of

prejudice, the Remmer Court stated, “The presumption is not conclusive,

but the burden rests heavily upon the Government to establish, after

notice to and hearing of the defendant, that such contact with the juror

was harmless to the defendant.” Id.

The Remmer Court further emphasized that sending an FBI agent

during a trial to investigate a juror concerning his conduct “is bound to

impress the juror and is very apt to do so unduly.” Id. The Remmer Court

stressed that a juror must be free to participate in deliberations “without

the F.B.I. or anyone else looking over his [or her] shoulder.” Id.

In this noncapital case, the Supreme Court did not use the absolute

terms of Mattox but instead established a rebuttable presumption that

could be overcome by the state only on a showing that the extraneous

influence was harmless. Id. The Remmer Court directed the district court

to hold a hearing on harm to the defendant and explained that if harm was

found the district court should grant a new trial. Id. at 230, 74 S. Ct. at

451–52. When the case returned, the Court reviewed the transcript

developed in the district court on remand, concluded that the juror

appeared to be under psychological pressure due to the bribe offer, and

remanded for a new trial. Remmer v. United States, 350 U.S. 377, 381–82,

76 S. Ct. 425, 427–28 (1956).

39

Thirty years after Remmer, the United States Supreme Court

considered a question of juror bias in the case of Smith v. Phillips, 455 U.S.

209, 102 S. Ct. 940 (1982). Phillips was convicted of two counts of murder

and one count of attempted murder. Id. at 210, 102 S. Ct. at 942. He

learned that during trial a juror was an active job applicant for a position

as a major felony investigator with the district attorney’s office. Id. at 212,

102 S. Ct. at 943. Members of the district attorney’s office, including the

two attorneys actually prosecuting Phillips, learned of the application more

than a week before the end of Phillips’s trial but elected not to advise the

court or the defendant. Id. at 212–13, 102 S. Ct. at 943–44. After trial,

the district attorney learned of the application and informed the court and

defense attorneys. Id. at 213, 102 S. Ct. at 944.

Upon learning of the juror’s employment application, the defendant

moved to set aside the verdict. Id. The trial court denied the motion,

finding that while the application was an “indiscretion,” it “in no way

reflected a premature conclusion as to [Phillips’s] guilt, or prejudice

against [Phillips], or an inability to consider the guilt or innocence of

[Phillips] solely on the evidence.” Id. at 213–14, 102 S. Ct. at 944.

Phillips sought federal habeas corpus relief. Id. at 214, 102 S. Ct.

at 944. The district court imputed bias to the juror because “the average

[person] in [the juror’s] position would believe that the verdict of the jury

would directly affect the evaluation of his job application.” Id. (quoting

Phillips v. Smith, 485 F. Supp. 1365, 1371–72 (S.D.N.Y. 1980)). The

district court decreed that Phillips should be released unless granted a

new trial within ninety days. Id. The Second Circuit affirmed by a divided

vote, noting that “it is at best difficult and perhaps impossible to learn

from a juror’s own testimony after the verdict whether he was in fact

‘impartial.’ ” Id. (quoting Phillips v. Smith, 632 F.2d 1019, 1022 (2d Cir.

40

1980)). The Second Circuit relied on the failure of the prosecutors to timely

disclose the potential problem as violating due process in reversing the

conviction. Id.

Before the Supreme Court, Phillips argued that the Court could not

possibly rely solely upon the testimony of the juror in question. Id. at 215,

102 S. Ct. at 945. The defendant argued that it would be impossible for

him to prove the degree of bias through a Remmer-type hearing and that

a conclusive presumption should arise under the facts of the case. Id.

In an opinion by Justice Rehnquist, a divided Supreme Court

rejected the notion that the juror’s employment application itself was

sufficient to establish the basis for a new trial. See id. at 217, 102 S. Ct.

at 946. Instead, the majority held the proper approach was a Remmer-

type hearing “in which the defendant has the opportunity to prove actual

bias.” Id. at 215, 102 S. Ct. at 945. The Phillips majority, therefore, may

have suggested it was departing from Remmer both on the issue of

presumption and the harmless error standard required to overcome the

presumption.

In a concurring opinion, Justice O’Connor noted that “whether a

juror is biased or has prejudged a case is difficult, partly because the juror

may have an interest in concealing his own bias and partly because the

juror may be unaware of it.” Id. at 221–22, 102 S. Ct. at 948 (O’Connor,

J., concurring). Nonetheless, in most cases, Justice O’Connor concluded

that a posttrial hearing would be adequate to determine whether a juror is

biased. Id. at 222, 102 S. Ct. at 948. Yet, Justice O’Connor recognized

that in some instances the use of a conclusive presumption might be

justified. Id.

Justice Marshall, joined by Justices Brennan and Stevens,

dissented. Id. at 224, 102 S. Ct. at 949 (Marshall, J., dissenting). Justice

41

Marshall emphasized that “[t]he right to a trial by an impartial jury lies at

the very heart of due process.” Id. at 224, 102 S. Ct. at 950. In his view,

the majority erred in concluding that Phillips’s right to an impartial trial

was adequately protected by a postevidentiary hearing to determine

whether the jury was actually biased. Id. at 228, 102 S. Ct. at 952.

According to Justice Marshall, the probability of bias in the case arising

from pursuit of employment was high yet it would be very difficult to prove

the bias in a posttrial hearing. Id. at 230, 102 S. Ct. at 953. Justice

Marshall cited precedent for the proposition that “[b]ias or prejudice is

such an elusive condition of the mind that it is most difficult, if not

impossible, to always recognize its existence.” Id. at 231, 102 S. Ct. at 953

(quoting Crawford v. United States, 212 U.S. 183, 196, 29 S. Ct. 260, 265

(1909)). Justice Marshall asserted that when the probability of bias is very

high, a juror should be “automatically disqualified, despite the absence of

proof of actual bias.” Id.

The last United States Supreme Court case is United States v. Olano,

507 U.S. 725, 113 S. Ct. 1770 (1993). In this case, the defendants were

convicted of crimes related to a loan kickback scheme. Id. at 727–29, 113

S. Ct. at 1774–75. In Olano, alternates were permitted to sit in the jury

room during deliberations but were instructed not to participate. Id. The

question in Olano was whether the presence of the alternates during jury

deliberations was “plain error” subject to correction under Federal Rule of

Criminal Procedure 52(b). Id. at 727, 113 S. Ct. at 1774.

In an opinion by Justice O’Connor, the Olano Court concluded that

plain error under rule 52(b) was not present. Id. at 737, 113 S. Ct. at

1779. The majority emphasized that in order to qualify under the rule, the

error must be of a kind that “affects substantial rights” of the party. Id.

In order to so qualify, the Olano Court declared that the error must

42

“seriously affect[] the fairness, integrity or public reputation of judicial

proceedings.” Id. at 732, 113 S. Ct. at 1776, (quoting United States v.

Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046 (1985)).

The Olano Court concluded that no such violation of the defendant’s

rights occurred by the mere presence of alternate jurors in the jury room.

Id. at 737, 113 S. Ct. at 1779. The Olano Court recognized there might be

situations in which an intrusion into the jury room could be presumed

prejudicial, but even in these cases, the ultimate inquiry continues to be

whether the intrusion affected the jury’s deliberation and thereby its

verdict. Id. at 739, 113 S. Ct. at 1780. Under the posture of the case, the

Olano Court declined to find the mere presence of alternate jurors

prejudicial. Id. at 740–41, 113 S. Ct. at 1781.

Justice Stevens, joined by Justices White and Blackmun, dissented.

Id. at 743, 113 S. Ct. at 1782 (Stevens, J., dissenting). Justice Stevens

argued,

[S]ome defects bearing on the jury’s deliberative function are

subject to reversal regardless of whether prejudice can be

shown, not only because it is so difficult to measure their

effects on a jury’s decision, but also because such defects

“undermin[e] the structural integrity of the criminal tribunal

itself.”

Id. at 743, 113 S. Ct. at 1782–83 (alteration in original) (quoting Vasquez

v. Hillery, 474 U.S. 254, 263–64, 106 S. Ct. 617, 623 (1986)). Justice

Stevens declared that if a proper objection had been made, reversal would

have been required. Id. at 744, 113 S. Ct. at 1783. Because no objection

was made in the case, however, Justice Stevens framed the issue as

whether the court of appeals’ reversal of Olano’s conviction was an abuse

of discretion. Id. at 745, 113 S. Ct. at 1783. Justice Stevens concluded

that it was not. Id. at 745, 113 S. Ct. at 1784.

43

3. Caselaw in lower federal courts. In light of the different

approaches in the United States Supreme Court cases, it is not surprising

that the lower federal courts have adopted different approaches to juror

misconduct and bias and, in particular, the continued viability of the

Remmer principles. Below we review how the federal courts have dealt

with aspects of Remmer. First, we consider whether a presumption of

prejudice occurs in cases involving extraneous influences on jurors.

Second, we review how the federal courts handle the prejudice issue.

The caselaw on the question of whether to apply a Remmer-type

presumption of prejudice in this field is nuanced and often fact-specific.

Generally, however, as noted in United States v. Lawson, 677 F.3d 629,

643 (4th Cir. 2012), it appears that the Second, Fourth, Seventh, Ninth,

Tenth, and Eleventh Circuits continue to apply the Remmer presumption

of prejudice in at least some cases involving external influences on jurors.

See Godoy, 861 F.3d at 964 n.3; United States v. Moore, 641 F.3d 812, 828

(7th Cir. 2011); United States v. Ronda, 455 F.3d 1273, 1299 (11th Cir.

2006); United States v. Greer, 285 F.3d 158, 173 (2d Cir. 2000); Mayhue v.

St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 922–23 (10th Cir. 1992).

Several circuits apply Remmer in some circumstances involving

external influences on jurors. For instance, in United States v. Bradshaw,

281 F.3d 278, 287–88 (1st Cir. 2002) (quoting United States v. Boylan, 898

F.2d 230, 261 (1st Cir. 1990)), the First Circuit stated that the Remmer

presumption “is applicable only where there is an egregious tampering or

third party communication which directly injects itself into the jury

process.” In United States v. Lloyd, 269 F.3d 228, 238 (3d Cir. 2001), the

Third Circuit applied the Remmer presumption of prejudice when a jury is

exposed to extraneous information “of a considerably serious nature.” In

another case, Stephens v. South Atlantic Canners, Inc. (Coca Cola Co.), 848

44

F.2d 484, 486 (4th Cir. 1988) (quoting Haley v. Blue Ridge Transfer Co.,

802 F.2d 1532, 1537 n.9 (4th Cir. 1986)), the Fourth Circuit noted that

the Remmer presumption was applicable for “more than innocuous

interventions.”

In contrast, the Fifth, Sixth, Eighth, and District of Columbia

Circuits seem to follow the approaches of Smith and Olano and do not

employ a presumption of prejudice. See United States v. Sylvester, 143

F.3d 923, 933–35 (5th Cir. 1998); Williams-Davis, 90 F.3d at 495–97;

United States v. Blumeyer, 62 F.3d 1013, 1017 (8th Cir. 1995); United

States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984).

There is an additional question addressed in the federal cases

besides the issue of whether a Remmer presumption is available. The

federal cases also address the question of how to determine prejudice

which might rebut a presumption, if one is available, or which might

otherwise be part of a defendant’s burden in establishing a basis for

mistrial or obtaining a new trial.

In Remmer, the burden of proof rested with the government. There

is authority suggesting that the burden of proof remains with the

government in some circumstances, particularly in jurisdictions that

continue to apply the Remmer presumption. See Cheek, 94 F.3d at 141

(explaining that extrajudicial comments shift burden of proof to

government); United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995)

(explaining that government has the burden of showing harmlessness);

United States v. Scisum, 32 F.3d 1479, 1484 (10th Cir. 1994) (holding that

government failed to meet its heavy burden of showing harmlessness);

United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984) (“Prejudice

from extrinsic evidence is assumed in the form of a rebuttable presumption

and the government bears the burden of demonstrating that the

45

consideration of the evidence was harmless.”). However, in some circuits

taking the view that Remmer was largely abandoned in Smith and Olano,

the burden remains with the defendant. See, e.g., Pennell, 737 F.2d at

532.

Many federal courts have characterized the general question as

being whether there is a “reasonable possibility” that the extrinsic material

influenced the verdict. See, e.g., Cheek, 94 F.3d at 138; United States v.

Maree, 934 F.2d 196, 201–02 (9th Cir. 1991), abrogated on other grounds

by United States v. Adams, 432 F.3d 1092, 1095 (9th Cir. 2006); United

States v. Rowe, 906 F.2d 654, 656–57 (11th Cir. 1990); Dickson v. Sullivan,

849 F.2d 403, 404 (9th Cir. 1988). Other federal courts have suggested

that “substantial likelihood of prejudice” is the proper test. See, e.g.,

Lloyd, 269 F.3d at 243.

In any event, it is clear that “[t]here is no bright line test for

determining whether a defendant has suffered prejudice from an instance

of juror misconduct.” Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir.

2000) (quoting Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997),

overruled in part on other grounds by Payton v. Woodford, 299 F.3d 815,

827–29 & n.11 (9th Cir. 2002)). A number of federal courts, however, have

articulated a nonexclusive factor test to aid courts in determining the issue

of prejudice. For example, the Ninth Circuit has suggested that factors

relevant to the prejudice inquiry include

(1) whether the material was actually received, and if so, how;

(2) the length of time it was available to the jury; (3) the extent

to which the juror discussed and considered it; (4) whether

the material was introduced before a verdict was reached, and

if so at what point in the deliberations; and (5) any other

matters which may bear on the issue of the reasonable

possibility of whether the extrinsic material affected the

verdict.

46

Dickson, 849 F.2d at 406 (quoting Marino v. Vasquez, 812 F.2d 499, 506

(9th Cir. 1987)). Other cases have also articulated multifactor

formulations to guide courts in determining the prejudice issue. See

Lloyd, 269 F.3d at 239–41 (identifying as factors the relationship of

extraneous information to jury’s findings, extent of the jury’s exposure,

timing of the jury’s receipt of the extraneous information, length and

structure of jury deliberations, and content of jury instructions).

Most lower federal courts have emphasized that the determination

of prejudice is an objective inquiry. For example, in Greer, 285 F.3d at

173, the Second Circuit embraced Remmer in a case involving extra-record

information. In determining whether the extra-record information was

harmless, the court emphasized that the determination was an objective

one based upon the probable effect on a “hypothetical average juror.” Id.

(quoting United States v. Calbas, 821 F.2d 887, 896 n.9 (2d Cir. 1987)).

The Greer court emphasized that it would be improper for a district court

to inquire into, or admit affidavits concerning, whether the extra-record

information had an impact on a juror or the jury. Id.; see also Lloyd, 269

F.3d at 237–38 (emphasizing consideration of objective, not subjective,

impact on hypothetical average juror); Cheek, 94 F.3d at 143 (holding the

district court erred in relying on juror’s mental processes when

formulating findings of fact); United States v. Howard, 506 F.2d 865, 869

(5th Cir. 1975) (stating that on remand the district court must disregard

affidavit purporting to reveal alleged influence of extrinsic matter and avoid

examination concerning jurors’ mental processes). Cf. United States v.

Armstrong, 654 F.2d 1328, 1333 n.2 (9th Cir. 1981) (“Even though courts

must apply an objective test in evaluating juror influence questions

because jurors may not testify about their deliberations, it was proper for

47

the District Court to consider juror Gingras’s statements in her note since

they were before the court.” (Citation omitted.)).

Several federal courts have considered whether the number of jurors

who are aware of the external influence is material in the calculation of

prejudice. In Parker, 385 U.S. at 365–66, 87 S. Ct. at 471, the United

States Supreme Court stated that due process is violated if one juror is

improperly influenced. Following the Supreme Court’s lead, the federal

caselaw suggests that the number of jurors who heard or were aware of

the external influence does not weigh heavily in the analysis. See, e.g.,

Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (“The bias or prejudice

of even a single juror would violate Dyer’s right to a fair trial.”); Lawson v.

Borg, 60 F.3d 608, 613 (9th Cir. 1995) (“The number of jurors affected by

the misconduct does not weigh heavily in the prejudice calculus for even

a single juror’s improperly influenced vote deprives the defendant of an

unprejudiced, unanimous verdict.”); United States v. Delaney, 732 F.2d

639, 643 (8th Cir. 1984) (“If a single juror is improperly influenced, the

verdict is as unfair as if all were.” (quoting Stone v. United States, 113 F.2d

70, 77 (6th Cir. 1940))); Tillman v. United States, 406 F.2d 930, 937 (5th

Cir. 1969) (“[I]f only one juror is improperly influenced, the trial is as unfair

as if every juror was so influenced.”), vacated on other grounds, 395 U.S.

830, 89 S. Ct. 2143 (1969) (per curiam). But see Lloyd, 269 F.3d at 240

(stating that the extent to which jury is exposed to extraneous information

is a factor in determining prejudice).

4. Caselaw in other states. The caselaw in the states on the

question of how to handle extraneous influences on juries is varied. For

instance, in Georgia, a Remmer-type presumption applies not only to

extraneous influences but to any type of irregular juror conduct. Holcomb

v. State, 485 S.E.2d 192, 195 (Ga. 1997). The Georgia caselaw, however,

48

distinguishes between inconsequential and irregular conduct. Lamons v.

State, 340 S.E.2d 183, 184 (Ga. 1986) (“[S]ome irregularities are

inconsequential.”). See generally Rachel Morelli, Comment, The Connected

Juror’s Effect on the Sixth Amendment Right to an Impartial Jury and

Georgia’s Presumption of Prejudice, 7 J. Marshall L.J. 527, 529 (2014)

(discussing presumption of harm to defendant whenever there is irregular

juror conduct). Similarly, the Connecticut Supreme Court concluded

recently that the Remmer-type presumption remains good law in a jury

tampering case. State v. Berrios, 129 A.3d 696, 712 (Conn. 2016).

Like the federal courts, state law cases that follow Remmer tend to

leave the burden of proof with the state. See, e.g., id. at 713. In State v.

Stafford, 678 P.2d 644, 647 (Mont. 1984), however, the Montana Supreme

Court placed the burden on the defendant to show prejudice from a letter

circulated to the jury urging the jury to resist court instructions. Similarly,

in Massey v. State, 541 A.2d 1254, 1259 (Del. 1988), the Delaware

Supreme Court placed the burden of showing actual prejudice on the

defendant unless there are inherently prejudicial egregious

circumstances.

Some state cases embrace the reasonable-possibility test. For

instance, in Wiser v. People, 732 P.2d 1139, 1142 (Colo. 1987) (en banc),

the Colorado Supreme Court stated that the test was “whether there is a

‘reasonable possibility’ that extraneous contact or influence affected the

verdict to the detriment of the defendant.” The Wiser court collected

federal and state cases to the same effect. Id. Later, in People v. Wadle,

97 P.3d 932, 937 (Colo. 2004) (en banc), the Colorado court applied the

reasonable possibility test.

In contrast, the New Mexico Supreme Court recently overhauled its

approach to handling cases in which jurors receive extraneous material in

49

Kilgore v. Fuji Heavy Industries Ltd., 240 P.3d 648, 656 (N.M. 2010). The

Kilgore court abandoned the notion of presumption of prejudice for a new

approach. Id. Under Kilgore, the proper inquiry is whether “there is a

reasonable probability that the extraneous material affected the verdict or

a typical juror.” Id. The Kilgore court stated that whether there is a

reasonable probability that the extraneous material affected the jury

included consideration of five factors:

1. The manner in which the extraneous material was

received;

2. How long the extraneous material was available to the jury;

3. Whether the jury received the extraneous material before

or after the verdict;

4. If received before the verdict, at what point in the

deliberations was the material received; and

5. Whether it is probable that the extraneous material

affected the jury’s verdict, given the overall strength of the

opposing party’s case.

Id.; see also In re Hamilton, 975 P.2d 600, 614 (Cal. 1999) (embracing

“probability of prejudice” test); Commonwealth v. Sneed, 45 A.3d 1096,

1115 (Pa. 2012) (embracing “reasonable likelihood of prejudice” test

(quoting Carter ex rel. Carter v. U.S. Steel Corp., 604 A.2d 1010, 1016 (Pa.

1992))).

State courts have used an objective test for evaluating claims of jury

misconduct. In Wiser, 732 P.2d at 1142, the Colorado Supreme Court

employed an objective test to determine what effect misconduct would

have on a typical jury. Similarly, in Buchholz v. State, 366 N.W.2d 834,

840 (S.D. 1985), the South Dakota Supreme Court emphasized that the

inquiry must apply an objective test and focus on the effect of the

extraneous information on a typical juror.

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5. Iowa caselaw. Iowa caselaw has long been reluctant to set aside

jury verdicts on grounds of jury misconduct. Our traditional cases

emphasize that in order for a new trial to be granted based on jury

misconduct, it must be shown that the misconduct influenced the jury in

reaching its verdict. See State v. Jackson, 195 N.W.2d 687, 689 (Iowa

1972) (collecting cases).

A case with a somewhat unusual posture is Carey, 165 N.W.2d 27.

In that case, the defendant was convicted of the crime of aggravated

burglary. Id. at 28. In Carey, coffee was provided in the jury room with a

typewritten sign indicating it was furnished by the county clerk and the

county attorney. Id. The defendant moved for a mistrial, which the district

court denied. Id. at 28–29. We found the practice would lessen public

confidence in our judicial system and declared it “fraught with danger, one

that is calculated to bring the administration of justice into disrepute, and

one which all courts should zealously guard against.” Id. at 30.

In light of other trial errors, however, we were not required to

determine whether reversal would be appropriate based on the issue. Id.

More than a decade later, however, we decided Omaha Bank for

Cooperatives v. Siouxland Cattle Cooperative, 305 N.W.2d 458 (Iowa 1981).

In this case, we reversed a civil judgment after a jury foreman spoke to

defense lawyers, made an offer to buy them drinks which was accepted,

and engaged in extended conversation. Id. at 461–62. We found in Omaha

Bank there was not sufficient evidence to support a finding that the

contact was not prejudicial to the adverse party. Id. at 462.

After Carey and Omaha Bank, we considered a first-degree murder

case in which the defendant sought a new trial based upon jury

irregularity in Cullen, 357 N.W.2d at 25. In this case, three jurors advised

the court, in front of the other jurors, that they knew one of the rebuttal

51

witnesses and that “they absolutely would not have served had they known

these witnesses would be called to testify.” Id. at 26. The district court

granted the mistrial, noting that juror statements made it easier for other

jurors to believe the rebuttal witnesses. Id. at 26–27. In granting the relief,

the district court relied on language in Carey, emphasizing that jury

deliberations and pronouncements must be free “not only from all

improper influences, but from the appearance thereof.” See id. at 27

(quoting Carey, 165 N.W.2d at 30).

The Cullen court reversed. In doing so, it found that our precedents

established that in order to impeach a verdict, a three-pronged test must

be met: (1) evidence must consist only of objective evidence, (2) the acts or

statements must exceed tolerable bounds of jury deliberation, and (3) the

misconduct must appear calculated to, and with reasonable probability

did, influence the verdict. Id.

The Cullen court also considered the question of prejudice. The

Cullen court rejected the district court’s approach that the “possibility”

jurors would be unable to give appropriate weight to the testimony of

rebuttal witnesses was sufficient for reversal. Id. at 28. The court

emphasized that there must be a reasonable probability the verdict be

influenced, a test that the court declared “is not easy to satisfy.” Id.

Importantly, the Cullen court noted that Carey was inapposite

because it dealt with a distinct issue. Id. The Cullen court emphasized

the distinction between manipulation of the jury by outsiders, as in Carey,

and cases concerned only with the internal operation of the jury. Id. The

Cullen court stated that in the case of manipulation of the jury by

outsiders, a stricter rule is justified to keep the jury above suspicion. Id.

The Cullen court did not indicate what that stricter rule might be. Still,

52

the plain suggestion is the three-pronged Cullen approach might not apply

to outside efforts to manipulate the jury. Id.

In at least one case decided after Cullen, however, we rejected the

notion that introduction of extraneous evidence gave rise to a presumption

of prejudice. In Doe v. Johnston, 476 N.W.2d 28, 34 (Iowa 1991), we

considered whether the circulation of a cartoon about the case in the jury

room provided grounds for a new trial. The cartoon depicted a judge telling

the jury, “The verdict should be guilty or not guilty. There’s no provision

for guiltyish.” Id.

In Johnston, we first held that jurors were incompetent to testify

about the impact of the cartoon on their verdict. Id. The Johnston court

stated, “When there is proof that extraneous material has reached the jury

room, the party seeking reversal on a misconduct claim must prove ‘that

the misconduct was calculated to, and with reasonable probability did,

influence the verdict.’ ” Id. at 35 (quoting Johnson, 445 N.W.2d at 342).

The Johnston court cited with approval a federal case emphasizing that the

court’s task was to determine whether extraneous information would

prejudice an “objective, ‘typical juror.’ ” Id. (citing Urseth v. City of Dayton,

680 F. Supp. 1084, 1089 (S.D. Ohio 1987)).

In Johnston, we rejected a claim that “prejudice is presumed to

result from the introduction of extraneous information.” Id. We noted that

some leeway was required in order to prevent a relatively minor matter

from disrupting what might be a lengthy, costly, and otherwise fair trial.

Id. On the facts, we concluded that injection of a humorous cartoon would

not prompt an objective juror to reverse his or her view after days of

testimony and jury deliberation. Id. The Johnston discussion, however,

seems to suggest that we were rejecting presumption of prejudice where

the intrusion into the jury was minimal.

53

In the recent case of Webster, the defendant challenged a district

court’s denial of a posttrial motion for a new trial. 865 N.W.2d at 226. In

Webster, the conduct of a juror was challenged on grounds that the juror

was less than candid during voir dire about her relationship with the

victim’s family, engaged in a brief trial-related communication with a third

party at a convenience store during the trial, impermissibly engaged in

outside-the-record research on the age of one of the witnesses, and

improperly clicked “like” on a Facebook comment in which the victim’s

stepmother stated “Give me strength.” Id. at 234–35.

The defendant failed to preserve constitutional error in this case. Id.

at 232. Webster asserted that review was for abuse of discretion. Id. at

233. In light of the advocacy, we stated that our review of jury misconduct

was for abuse of discretion, but observed in a footnote that we did not

address the question of whether de novo review would be appropriate if

constitutional issues were involved. Id. at 231 & n.4. With respect to the

legal standard to be applied to juror misconduct and juror bias, Webster

asked us to apply the standard articulated in Cullen, 357 N.W.2d at 27.

865 N.W.2d at 234. We were thus not asked to consider the implications

of Remmer and its progeny or the approach in Carey. We did not explore

adopting these standards that no one asked us to consider.

In Webster, we rejected the claims of juror misconduct by

conducting a factual review in which the standard of review and even the

substantive legal standards were largely irrelevant. See id. at 235–41. We

concluded the juror did not provide false testimony in voir dire about her

relationship with the victim’s family, the juror basically dusted off an

interloper at a brief stop at a convenience store, the outside-the-record

research occurred after the verdict was rendered, and the clicking of “like”

on Facebook, though reflecting bad judgment, reflected empathy for the

54

stepmother who lost her son and did not relate to the guilt or innocence of

the accused. Id.

In Webster, however, we cautioned that jurors are now part of the

electronic world and that there was a risk that jurors could engage in

electronic and social media activity during trial. Id. at 239–40. We urged

district courts to give admonitions explicitly prohibiting electronic

communications “early and often” in the course of a trial. Id. at 240–41.

D. Application of Jury Misconduct Principles to this Case.

1. Proper standard for appellate review. We first address the

question of the proper standard of review in this case. The parties dispute

whether the standard of review should be de novo or for abuse of

discretion.

When a party seeks a mistrial under our rules designed to ensure a

fair trial, but does not mention any provision of the Iowa or United States

Constitution, we have not yet decided whether the proper approach is

de novo review. In Webster, we reserved the question for another day in

light of our general agreement with the fact-finding of the district court.

Id. at 231 n.4.

We have broadly stated many times and in many contexts that when

constitutional issues are involved, the standard of appellate review of fact-

finding by the district court is de novo. See, e.g., State v. Green, 896

N.W.2d 770, 775 (Iowa 2017) (jury instruction impacting constitutional

rights); State v. Kennedy, 846 N.W.2d 517, 520 (Iowa 2014) (Confrontation

Clauses under Federal and Iowa Constitutions); Gartner v. Iowa Dep’t of

Pub. Health, 830 N.W.2d 335, 344 (Iowa 2013) (constitutionality of statutes

or administrative rule); State v. Mootz, 808 N.W.2d 207, 214 (Iowa 2012)

(state and federal equal protection in context of Batson challenge); State v.

Decker, 744 N.W.2d 346, 353 (Iowa 2008) (Iowa due process and Fifth

55

Amendment right to counsel in custodial interrogation); State v.

Leutfaimany, 585 N.W.2d 200, 203 (Iowa 1998) (Iowa due process and

Fifth Amendment right to a fair trial); State v. Morgan, 559 N.W.2d 603,

606 (Iowa 1997) (uncounseled and coerced guilty plea); State v. Dawdy,

533 N.W.2d 551, 553 (Iowa 1995) (search and seizure); State v. Schultzen,

522 N.W.2d 833, 835–36 (Iowa 1994) (right to public trial). De novo review

of constitutional issues is necessary because constitutional rules “acquire

content only through application” and “[i]ndependent review is therefore

necessary if appellate courts are to maintain control of, and to clarify, the

legal principles.” Ornelas v. United States, 517 U.S. 690, 697, 116 S. Ct.

1657, 1662 (1996). Further, de novo review of constitutional issues “tends

to unify precedent” and thus provides better insight into whether a

particular circumstance constitutes a constitutional violation. Id.

The rules implicated in this case are designed to implement the

constitutional demands of due process. If claims alleging violation of a

constitutional right merit de novo review, the same reasons suggest

de novo review may be appropriate for claims involving rules implementing

constitutional rights. Mere incantation of constitutional phrases need not

control our standard of review.

Still, in prior cases, we have reviewed with deference decisions on

claims raised under the rules of criminal procedure. For instance, as the

State points out, in State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017),

“[w]e review[ed] a district court’s application of the procedural rules

governing speedy trial for correction of errors at law” and “[w]e review[ed]

a district court’s determination whether the State carried its burden to

show good cause for the delay for abuse of discretion.” In another case

cited by the State, State v. Clark, 464 N.W.2d 861, 864 (Iowa 1991), we

reviewed a challenge to a district court’s refusal to grant separate trials

56

under our rules of criminal procedure and explained that “[w]e will reverse

a trial court’s refusal to grant a motion for separate trials only if a

defendant demonstrates an abuse of discretion.” Yet in neither case did

the parties challenge the standard of review; in both cases the parties

agreed a deferential standard of review applied. See Brief for Appellant at

25–26, State v. McNeal, 897 N.W.2d 697 (Iowa 2017) (No. 15–1606); Brief

for Appellee at 14, State v. McNeal, 897 N.W.2d 697 (Iowa 2017) (No. 15–

1606); Brief for Appellant at 13, State v. Clark, 464 N.W.2d 861 (Iowa 1991)

(No. 89–1355); Brief for Appellee at 8, State v. Clark, 464 N.W.2d 861 (Iowa

1991) (No. 89–1355).

In the context of jury misconduct and jury bias, a number of courts

have seen fit to review ultimate determinations with less deference than

ordinarily applied in motions for new trial. For instance, Judge Posner

held,

We review the district court’s findings of fact under the clearly

erroneous standard. However, because the ultimate factual

determination of impartiality depends on inferences of effect

drawn from the subsidiary facts, we believe a more critical

review of the district court’s ultimate finding of fact is

appropriate in this context than in other situations.

Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir. 1984). The Fourth Circuit

applies substantially the same standard:

The final question is whether the improper contact or

communication compromised the impartiality of the jury.

Ordinarily, the grant of a new trial is committed to the sound

discretion of the district court. However, because the ultimate

factual determination regarding the impartiality of the jury

necessarily depends on legal conclusions, it is reviewed in

light of all the evidence under a “somewhat narrowed,”

modified abuse of discretion standard giving the appellate

court “more latitude to review the trial court’s conclusion in

this context than in other situations.”

Cheek, 94 F.3d at 140 (citation omitted) (quoting Haley, 802 F.2d at 1532,

1537 nn.11–12).

57

Other jurisdictions, however, afford more deference to a trial court’s

determination. In the Eighth Circuit, “[t]he district court has broad

discretion in handling allegations of juror misconduct and its decision will

be affirmed absent an abuse of discretion.” United States v. Williams, 77

F.3d 1098, 1100 (8th Cir. 1996). In Connecticut, allegations of juror bias

or misconduct are reviewed for an abuse of discretion because “[a]ny

assessment of the form and scope of the inquiry that a trial court must

undertake when it is presented with [such] allegations . . . will necessarily

be fact specific.” State v. Brown, 901 A.2d 86, 89 (Conn. App. Ct. 2006)

(quoting State v. Sinvil, 876 A.2d 1237, 1245 (Conn. App. Ct. 2005)).

We need not resolve this issue in this case. As in Webster, 865

N.W.2d at 231 n.4, we generally agree with the fact-finding of the district

court. Therefore, the result in this case does not depend on the standard

of review. This approach is consistent with State v. Martin, 877 N.W.2d

859, 865 n.4 (Iowa 2016), where we left for another day the question of

whether claims under our rules designed to protect a defendant’s right to

a fair trial give rise to de novo review when the defendant fails to make a

constitutional claim.

2. Presumption of prejudice. We must next determine whether there

is an irrebuttable presumption of prejudice. We note Justice O’Connor’s

concurring opinion in Phillips that under the Sixth Amendment there

might be occasions where the facts are sufficiently egregious to require an

irrebuttable presumption. 455 U.S. at 222–24, 102 S. Ct. at 948–49

(O’Connor, J., concurring). And we do not regard our Iowa caselaw as

necessarily foreclosing an irrebuttable presumption in the appropriate

circumstances. But we do not find the present case involving a relatively

vague and unspecific rumor of a potential riot briefly discussed by jurors

58

sufficient to give rise to an irrebuttable presumption of the kind suggested

by Justice O’Connor.

Having concluded that there is no irrebuttable presumption of

prejudice under the facts of this case, there remains the possibility of

applying a rebuttable presumption as in Remmer, 347 U.S. at 229, 74

S. Ct. at 451, and as still applied by a majority of the federal courts. There

is caselaw suggesting that this type of Remmer presumption is particularly

appropriate in jury tampering cases. For instance, in Dutkel, 192 F.3d at

894–95, 899, the Ninth Circuit suggested that in jury tampering cases, the

Remmer presumption should apply and the state should have to meet a

heavy burden to prove that the tampering was not prejudicial.

Based on our review of the trajectory of the cases of the Supreme

Court and the federal circuits, we believe that Remmer may have some

remaining vitality under the Federal Constitution as a rebuttable

presumption in certain circumstances. And of course, we can apply such

a presumption under article I, sections 9 and 10 of the Iowa Constitution.

In this case, however, we are not dealing with direct jury tampering or

bribery efforts by third parties. Instead, we are dealing with jurors who

learned about a vague and generalized report on social media that some

unknown persons might engage in a riot related to the trial in question.

Dutkel does not provide much aid to Christensen on the facts of this case.

We agree with the courts taking the position that the Remmer-type

presumption is for “more than innocuous interventions.” Stephens, 848

F.2d at 486 (quoting Haley, 802 F.2d at 1537 n.9); see Lloyd, 269 F.3d at

238; Lamons, 340 S.E.2d at 184. While Remmer may have some remaining

vitality under federal and state law, we do not think it applies to the facts

of this case.

59

We also do not find that the principles in Carey, 165 N.W.2d at 28–

30, or Omaha Bank, 305 N.W.2d at 461–62, are applicable in this case. It

was poor judgment for the clerk and county attorney to post its message

in the jury room that the coffee was being provided by them. 165 N.W.2d

at 30. Although hardly constituting a bribe of the kind that might sway

juries, it did send an informal message that the county attorney and

members of the jury were on the same team. See id. The Carey court

clearly wanted to send a contrary message that even this small

accommodation from a party to litigation had no place in our court system

where the appearance of fairness is extremely important. See id. It is not

at all clear that but for other trial errors, the Carey court would have

reversed the conviction. See id.

In Omaha Bank, the challenged conduct involved a juror buying

drinks for lawyers and having extended conversation with the lawyers in

the midst of trial at a restaurant bar. 305 N.W.2d at 461. The Omaha

Bank court condemned the lawyers for attempting to ingratiate themselves

to a juror by accepting drinks and engaging in extended conversation with

the juror at the bar. Id. at 461–63. In the case presently before us, there

was no similar misconduct by a party or a party’s representatives.

3. Requirements of prejudice. On the question of prejudice, the

caselaw is generally divided regarding the standard of prejudice required

in extraneous influence cases. Many federal extraneous influence cases

recite a possibility-of-prejudice test, while others embrace a more

demanding reasonable-probability test. In Cullen, a case involving the

internal workings of the jury, we adopted a higher reasonable-probability

test. 357 N.W.2d at 27. We have repeatedly applied the reasonable-

probability test in a variety of settings. See, e.g., State v. Atwood, 602

N.W.2d 775, 778–80 (Iowa 1999) (holding that a judge’s communication of

60

threat made to all participants in the case, including the jury, is subject

to a reasonable likelihood or reasonable probability of prejudice test); State

v. Henning, 545 N.W.2d 322, 324–25 (Iowa 1996) (holding that extra-

record information about defendant’s prior criminal offenses sufficiently

prejudicial to meet reasonable-probability test). We apply the reasonable-

probability test of Cullen today.

We also note that our prior cases adopt the view that juror

statements about the impact of the improperly introduced influence are

not admissible on the question of prejudice. Johnston, 476 N.W.2d at 34;

Carey, 165 N.W.2d at 30. What can be considered is objective facts—who

said what to whom and when and what specifically was injected into the

jury discussion. But juror assessments about the impact of the improper

extraneous influence are off limits. Johnston, 476 N.W.2d at 34; Carey,

165 N.W.2d at 30; see also Greer, 285 F.3d at 173; Calbas, 821 F.2d at

896 n.9; Wiser, 732 P.2d at 1142; Buchholz, 366 N.W.2d at 840.

Finally, we recognize that in determining fair trial issues, one

improperly influenced juror is sufficient to require reversal. Parker, 385

U.S. at 365–66, 87 S. Ct. at 471; Webster, 865 N.W.2d at 237 n.7. We

should not be distracted by a numbers game regarding how many jurors

heard what and when they heard it. See, e.g., Lawson, 60 F.3d at 613;

Delaney, 732 F.2d at 643; Tillman, 406 F.2d at 937. The issue instead

should be focused on the question of whether any juror or jurors have

been shown to be improperly influenced such that a conviction based on

a verdict in which the juror or jurors participated simply cannot be upheld.

4. Determination of prejudice issue. We focus our analysis on the

question of prejudice. In doing so, we agree with the approach of courts

that consider multiple factors in determining the question of prejudice.

Lloyd, 269 F.3d at 240; Dickson, 849 F.2d at 406; Kilgore, 240 P.3d at 656.

61

Based on our review of the record, we conclude that Christensen

failed to show a reasonable probability that the verdict of the jury would

have been different if the extraneous influence did not reach the jury in

this case. Cullen, 357 N.W.2d at 27. Here, the threat of a riot reported to

the juror and the jury was vague, was not directed at any juror, and was

merely a hearsay statement about what purportedly appeared in social

media. Every reasonable juror knows that a wide variety of vacuous claims

and statements may appear on social media without the slightest veracity.

In addition, there was no objective support for the threat of a riot in the

record except the vague hearsay report of a Facebook comment.

There was evidence that the vague report to the jury about a

Facebook posting mentioning a riot was only briefly discussed by the jury.

There was no evidence of an extended discussion. See Dickson, 849 F.2d

at 406. Further, though the discussion about a riot appears to have

occurred prior to the jury actually reaching a verdict, the record suggests

that the discussion likely may have occurred after the jury reached its

verdict but prior to announcing it in open court. See id. There was

certainly no persuasive specific evidence that the rumors of a potential riot

were discussed at a critical stage in the jury’s deliberation. See id. Finally,

there was nothing extraordinary about the jury verdict of second-degree

murder in this case, a verdict that was well within the evidence presented

at trial. See Kilgore, 240 P.3d at 656; United States v. Sanders, 962 F.2d

660, 673 (7th Cir. 1992). There is no objective reason to consider the jury

verdict as motivated by fear from a vague speculative hearsay report on

Facebook about a possible riot.

We recognize that at least some members of the jury did express

concern about safety at the courthouse and asked for a police escort to

their cars. Another asked for an officer to patrol the juror’s home. These

62

protective measures after a controversial trial show a degree of common

sense but do not make a persuasive per se case that the jury’s verdict was

likely influenced by the vague hearsay riot rumors. See State v. Napulou,

936 P.2d 1297, 1304 (Haw. Ct. App. 1997).

Although each case will turn on its specific facts, the result we reach

here is not inconsistent with other caselaw. For instance, in Wallace v.

United States, 412 F.2d 1097, 1102 (D.C. Cir. 1969), jurors were

interviewed in chambers after a newspaper article detailed certain death

threats against the jurors. The jurors’ responses convinced the district

court that they could continue to serve as impartial jurors. Id. Similarly,

in Napulou, the court upheld a district court determination that a new trial

was not required after the jurors felt intimidated upon being followed by

the defendant’s family members, a setting far more troubling than that

presented in this case. 936 P.2d at 1304.

Christensen cites two cases in which the potential for public violence

led to a change in venue. Powell, 283 Cal. Rptr. at 787; Lozano, 584 So. 2d

at 22. We find these cases inapposite. They are pretrial change of venue

cases in which there had been massive publicity and substantial threats

of violence had arisen from the underlying incidents. We do not find them

instructive on the case at hand.

Based on the above reasoning, we conclude that Christensen has

failed to meet the Cullen test of showing a reasonable probability that the

jury would have come to a different conclusion if it had not received the

vague and speculative extraneous information about a potential riot.

E. Jury Bias. Christensen notes in passing that the district court

erred in concluding that implied bias did not warrant a new trial.

Christensen supports his claim of implied bias by pointing to the testimony

of a juror claiming that two jurors saw Facebook posts threatening the

63

jurors themselves. He also notes that the jurors were aware of the

heightened community awareness surrounding the case.

In Webster, 865 N.W.2d at 236, we explained that juror bias may be

actual or implied. “Actual juror bias occurs when the evidence shows that

a juror, in fact, is unable to lay aside prejudices and judge a case fairly on

the merits.” Id. “Implied bias arises when the relationship of a prospective

juror to a case is so troublesome that the law presumes a juror would not

be impartial.” Id. “Implied bias has been found to arise, for instance,

when a juror is employed by a party or is closely related to a party or

witness.” Id. A jury consisting of even one biased juror is constitutionally

infirm. Id. at 237 n.7.

We decline to find implied bias on the facts here. The ostensible

threat to the jury attested by one juror is hearsay-upon-hearsay. That fact

in tandem with the fact that other jurors generally testified to threats of

riots rather than of violence against the jury, leads us to doubt the

reliability of the attestation. See State v. Evans, 169 N.W.2d 200, 205

(Iowa 1969) (“Multiple hearsay is, of course, even more vulnerable to all

the objections which attach to simple hearsay.”).

Similarly, we do not find that the other threats of violence which

reached the jury give rise to implied bias. As noted, these threats were

vague, not directed at any juror, and only briefly discussed by the jurors

in the jury’s deliberation.

Finally on the facts here, we disagree with Christensen’s contention

that the heightened community awareness surrounding this case, and

jurors’ general knowledge thereof, gives rise to implied bias. It is certainly

possible that a juror’s connection to the circumstances of a case or the

community response can give rise to implied bias. See, e.g., Leonard v.

United States, 378 U.S. 544, 544–45, 84 S. Ct. 1696, 1696 (1964) (per

64

curiam) (finding implied bias where jurors in a second case against

Leonard were selected from a group which heard a guilty verdict in the

first case). But here, various members of the community were on either

sides of the guilt question, and through the voir dire process, potential

jurors were stricken for cause after expressing opinions both favorable and

unfavorable to Christensen. Christensen points to no facts concerning

any of the jurors’ connection to the community response besides their

membership in the community. Without an indication that a juror had

such a close connection to the circumstances of the case or the community

response that the juror would be unable to render a fair verdict, we cannot

make a finding that any juror or the jury was tainted by implied bias. See

Webster, 865 N.W.2d at 236. Perhaps given the verdict, Christensen

regrets not having moved for a change of venue, but he cannot remedy the

consequences of that choice through an attack on the jury that has been

selected after a thorough pretrial voir dire process.

V. Conclusion.

For the above reasons, the district court judgment is affirmed and

the court of appeals decision is vacated.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.

All justices concur except Waterman, Mansfield, and Christensen,

JJ., who concur specially, and McDonald, J., who takes no part.

65

#17–0085, State v. Christensen

WATERMAN, Justice (concurring specially).

I concur in the court’s opinion except for its discussion of the

standard of review for the denial of a motion for new trial based on juror

bias or misconduct. I write separately to emphasize that today’s decision

refraining from deciding the standard of review in this appeal does not

overrule our precedent or change the governing law, nor is a change

warranted from our review for abuse of discretion.

Indeed, in affirming the district court’s ruling that extraneous

influences on the jury did not warrant a new trial, the majority applies

the proper test from State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984),

abrogated on other grounds by Ryan v. Arneson, 422 N.W.2d 491, 495

(Iowa 1988). Citing Cullen, the majority reaches the right result, stating,

“Based on our review of the record, we conclude that Christensen failed

to show a reasonable probability that the verdict of the jury would have

been different if the extraneous influence did not reach the jury in this

case.” But the majority fails to acknowledge the standard of review

applied in Cullen, which emphasized the “[t]rial 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.’ ” Id. at 27 (quoting State v.

Harrington, 349 N.W.2d 758, 761 (Iowa 1984), abrogated on other

grounds by Ryan, 422 N.W.2d at 495).

In Doe v. Johnston, we declined an invitation to change this standard

and explained the reasons for our deference to the trial court when

extraneous material reaches the jury. 476 N.W.2d 28, 35 (Iowa 1991).

Plaintiffs urge us to retreat from this standard and

adopt, instead, a rule whereby prejudice is presumed to result

from the introduction of extraneous material. We decline the

66

invitation to do so. A certain amount of leeway must be built

into the system so that a relatively minor incident of

misconduct is not allowed to disrupt what may have been a

lengthy, costly, and otherwise fair trial. We are still convinced

that the trial court is in the best position to objectively assess

the impact of juror misconduct.

Applying this objective standard to the present case, we

find the court was well within its discretion in denying

plaintiffs’ motion for new trial.

Id. This reasoning is even more compelling today because the proliferation

of social media increases the chances for juror exposure to extraneous

material.

The majority fails to provide a persuasive reason to change the

standard of review now. We have long held that rulings on motions for

new trial or mistrial based on juror misconduct or bias are reviewed for an

abuse of discretion. See, e.g., State v. Gathercole, 877 N.W.2d 421, 427

(Iowa 2016) (“We review the district court’s refusal to grant a mistrial [for

juror bias] for an abuse of discretion.”); Fry v. Blauvelt, 818 N.W.2d 123,

128 (Iowa 2012) (“If the motion [for a new trial] is based on a discretionary

ground such as misconduct it is reviewed for an abuse of discretion.”

(alteration in original) (quoting Loehr v. Mettille, 806 N.W.2d 270, 277 (Iowa

2011))); State v. Smith, 573 N.W.2d 14, 17 (Iowa 1997) (“We apply an abuse

of discretion standard when reviewing the district court’s rulings on juror

misconduct claims . . . .”); State v. Johnson, 445 N.W.2d 337, 340–41 (Iowa

1989) (noting trial court’s “broad discretion in ruling on” motions for new

trial based on juror bias or misconduct), overruled on other grounds by

State v. Hill, 878 N.W.2d 269, 275 (Iowa 2016); State v. Hendrickson, 444

N.W.2d 468, 472 (Iowa 1989) (holding district “court did not abuse its

discretion in denying defendant’s motions” challenging allegedly biased

juror); State v. Powell, 400 N.W.2d 562, 565 (Iowa 1987) (“A trial court has

broad discretion in matters involving alleged jury misconduct, and an

67

abuse of that discretion will not be found unless the action of the trial

court is clearly unreasonable under the circumstances.”); State v.

Christianson, 337 N.W.2d 502, 504 (Iowa 1983) (“Trial courts possess

‘broad discretion’ in deciding whether evidence of alleged jury misconduct

warrants a new trial.” (quoting State v. Cuevas, 288 N.W.2d 525, 535 (Iowa

1980)); Harris v. Deere & Co., 263 N.W.2d 727, 729 (Iowa 1978) (“Trial

courts have broad discretion in ruling on motions predicated on jury

misconduct.”), superseded on other grounds by rule, Iowa R. Evid. 606(b),

as recognized in Ryan, 422 N.W.2d at 495; State v. Houston, 209 N.W.2d

42, 44–45 (Iowa 1973) (noting the “[t]rial court has broad discretion in

determining whether evidence of claimed jury misconduct justifies a new

trial” and its ruling “will not be set aside on appeal except upon showing

an abuse of such discretion”). This law is well settled and should stay that

way.

But seeds of confusion were planted when we addressed the

standard of review in State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015).

Under the heading “Standard of Review,” we accurately stated Iowa law

as follows: “We review a denial of a motion for a new trial based upon juror

misconduct or juror bias for an abuse of discretion.” Id. Yet we muddied

the waters in a footnote, stating,

There is a question of the proper standard of review regarding

fact-finding performed by the district court in the context of a

motion for a new trial. There is authority in other jurisdictions

that fact-finding made by the district court in considering a

motion for a new trial is subject to review under a clearly

erroneous standard.

Id. at 231 n.4. This footnote cited a single case for that proposition, State

v. Dellinger, 696 S.E.2d 38, 42 (W. Va. 2010) (per curiam). The Dellinger

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court described its standard of review as “deferential” to the trial court. Id.

at 42.

In reviewing challenges to findings and rulings made by a

circuit court, we apply a two-pronged deferential standard of

review. We review the rulings of the circuit court concerning

a new trial and its conclusion as to the existence of reversible

error under an abuse of discretion standard, and we review

the circuit court’s underlying factual findings under a clearly

erroneous standard. Questions of law are subject to a de novo

review.

Id. (quoting State v. Vance, 535 S.E.2d 484, 487 (W. Va. 2000)). Thus, the

trial court’s factual findings would be affirmed unless clearly erroneous—

a far cry from appellate de novo review.

Dellinger thus offers no support for de novo review of fact-finding for

juror bias or misconduct. The Webster footnote, however, went on to cite

a search and seizure case for the unremarkable proposition that we apply

de novo review to fact-finding on constitutional claims. 865 N.W.2d at 231

n.4. By suggesting a connection between two separate lines of authority,

the footnote purported to create an issue where none existed, concluding,

“In this case, we do not resolve the issue because we generally agree with

the fact-finding of the district court.” Id. What issue? We should not

compare apples and oranges. De novo review of constitutional issues has

long coexisted with our deferential review of judgment calls trial courts

make on a wide variety of rulings. There arguably is a constitutional

dimension to any ruling during a criminal trial, but that does not mean we

should now start reviewing all trial rulings de novo. I would not start here.

After Webster, we revisited the issue of juror bias claims arising from

inaccurate midtrial publicity in Gathercole and squarely held our review is

for an abuse of discretion. 877 N.W.2d at 427. In Gathercole, while an

attempted murder trial was ongoing, a local newspaper inaccurately

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reported in an online article that the police had recovered the defendant’s

palm print at the crime scene. Id. at 425. The defendant moved for a

mistrial or, alternatively, to poll the jury to determine if jurors saw the

article. Id. The district court denied the motions, and the defendant was

convicted and appealed. Id. at 426. We concluded the district court did

not abuse its discretion in denying the motions for mistrial and jury

polling. Id. at 432–33.

Despite our well-settled law on the standard of review, Christensen’s

counsel took the hint buried in the Webster footnote and argues for

de novo review. Our court today takes the same approach as in Webster,

stopping short of deciding “the issue” over the standard of review because

of general agreement with the district court’s factual findings. Yet the

court adds a lengthy discussion likely to cause further confusion,

unnecessary detours, and wasted court time. The bottom line is that

neither Webster nor today’s decision overrules our precedent holding

abuse of discretion is the proper standard of review for juror-bias and

misconduct cases.

The majority also overlooks our long-standing precedent that the

district court’s factual findings on juror bias or misconduct are binding on

the appellate court when the findings are supported by substantial

evidence. See Hutchinson v. Fort Des Moines Cmty. Servs., Inc., 252 Iowa

536, 543, 107 N.W.2d 567, 571 (1961) (“Where the facts on which a claim

of misconduct is based are in dispute we will not interfere with the trial

court’s determination of the matter if supported by substantial evidence.

Such determination has about the same force as a jury verdict.” (quoting

Hackaday v. Brackelsburg, 248 Iowa 1346, 1352, 85 N.W.2d 514, 517–18

(1957))); see also Iowa R. App. P. 6.904(3)(a) (“Findings of fact in a law

action . . . are binding upon the appellate court if supported by substantial

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evidence.”); State v. Gomez Garcia, 904 N.W.2d 172, 177 (Iowa 2017)

(“ ‘[A]buse of discretion occurs when a district court exercises its discretion

on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.’ ‘A ground or reason is untenable when it is not supported

by substantial evidence or when it is based on an erroneous application of

the law.’ ” (alteration in original) (first quoting State v. Wilson, 878 N.W.2d

203, 210–11 (Iowa 2016); then quoting Graber v. City of Ankeny, 616

N.W.2d 633, 638 (Iowa 2000))). No one claims the district court’s factual

findings in this case were not supported by substantial evidence.

Neither Christensen nor today’s majority opinion cite a single case

from any jurisdiction applying de novo review to fact-finding on juror bias

or misconduct. We should not create an issue when none exists. Going

forward, the standard of review for such cases should remain what it has

been for generations—abuse of discretion.

We have long adhered to the abuse-of-discretion standard because

of the trial judge’s superior vantage point. The trial judge presides over

the trial, with a front row seat for the testimony. See Mays v. C. Mac

Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992) (“The trial court has

before it the whole scene, the action and incidents of the trial as they

occur, and is in a much better position to judge whether the defendant

has been prejudiced by misconduct of opposing counsel, if there is

such. . . . The trial court occupies a position of vantage and is rightly given

a considerable discretion in determining whether prejudice has resulted.”

(alteration in original) (quoting Baysinger v. Haney, 261 Iowa 577, 582,

155 N.W.2d 496, 499 (1968))). When jurors are questioned, the trial judge

observes their demeanor firsthand. The trial judge is far better positioned

than an appellate court reading a cold transcript to decide whether what

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a juror said, did, or heard improperly influenced the verdict. The trial

judge can read the room in real time.

The United States Court of Appeals for the Fourth Circuit recently

reiterated the rationale for this deferential review: “As the trial judge is in

the best position to make this determination [regarding juror bias], the

inquiry is committed to his discretion, including ample leeway to formulate

the questions to be asked.” United States v. Smith, 919 F.3d 825, 834 (4th

Cir. 2019). De novo review cedes too much control to an appellate court

ill-suited to wield it. The Fourth Circuit aptly determined, “Th[e] trial judge

made reasoned judgments [to detect juror bias]. And we are not here to

micro-manage those considered choices.” Id. The same is true here.

For these reasons, I am unable to join the majority’s discussion of

the standard of review. I otherwise concur in the opinion.

Mansfield and Christensen, JJ., join this special concurrence.