                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1128
                             Filed August 15, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JILL TJERNAGEL,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hamilton County, James A.

McGlynn, Judge.



      Jill Tjernagel appeals the district court’s denial of her motion to dismiss a

criminal prosecution following a reversal of her conviction and remand for a new

trial. REVERSED AND REMANDED.



      Brandon J. Brown, Robert P. Montgomery, and Gina M. Messamer of

Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann, LLP, Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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MULLINS, Judge.

       A jury convicted Jill Tjernagel of second-degree sexual abuse. Tjernagel

appealed her conviction, raising the following arguments:

       (1) trial counsel rendered ineffective assistance resulting in prejudice
       by failing to object to (a) impermissible expert testimony consisting
       of vouching for the credibility of the victim, using statistics to imply
       guilt, profiling the defendant, and giving information that was within
       the common knowledge of the jurors, and (b) misconduct by the
       prosecutor in soliciting expert vouching testimony; (2) the district
       court erred in denying her motion for new trial based on her claims
       of impermissible vouching testimony by expert witnesses; (3) the jury
       wrongfully considered extraneous and inaccurate information
       regarding punishment; (4) her rights to compulsory process and due
       process were violated when the district court quashed subpoenas for
       prosecutor testimony in relation to her claims of prosecutorial
       misconduct; and (5) cumulative evidentiary and constitutional errors
       violated her rights to a fair trial and due process.

State v. Tjernagel, No. 15-1519, 2017 WL 108291, at *1 (Iowa Ct. App. Jan. 11,

2017). A panel of this court concluded Tjernagel’s trial counsel did not render

“ineffective assistance in failing to object to the expert witnesses’ testimony based

on claims the experts used statistics at trial, profiled Tjernagel as a sex offender,

or testified about topics within the common knowledge of the jurors.” Id. at *10.

However, we found Tjernagel’s trial counsel rendered ineffective assistance in

failing to object to statements made by expert witnesses vouching for the alleged

victim’s credibility and truthfulness. Id. “We [did] not reach Tjernagel’s other

claims.” Id. We reversed Tjernagel’s conviction and remanded the matter for a

new trial. Id. Although Tjernagel raised several grounds for relief in her first

appeal, the only relief sought was a new trial. We granted a new trial and did not

need to reach any other grounds in order to resolve the appeal.
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       On remand, Tjernagel filed a pretrial motion to dismiss in which she

contended the State committed prosecutorial misconduct by eliciting the vouching

testimony and a second trial should therefore be barred by the double jeopardy

provision of the Iowa Constitution. The double jeopardy issue was not raised in

her first appeal.     In her motion and supporting brief, Tjernagel requested

subpoenas for the purpose of examining the prosecutors in an evidentiary hearing.

       Acknowledging this court did not reach the prosecutorial-misconduct issue

on direct appeal, the district court viewed Tjernagel’s motion as a request “to

amend, enlarge, correct, or otherwise modify” this court’s decision. The court

stated the “threshold question” was whether it “has the authority or jurisdiction to

consider an issue the appeals court did not reach.” Ultimately, the district court

declined to consider the merits of the motion, reasoning that our appellate ruling

mandated a new trial and it was therefore “without authority or jurisdiction to grant

the defense motion.” In response to Tjernagel’s subsequent motion to reconsider,

the district court ruled:

       If the Court of Appeals had wanted the trial court to hold a hearing in
       which the prosecutor is subpoenaed and examined and in which the
       defense would be allowed to make an evidentiary record on
       prosecutorial misconduct, then the Court of Appeals would have,
       could have and should have remanded with those explicit
       instructions. For whatever reasons, the Court of Appeals chose not
       to remand with those directions. Instead, the Court of Appeals
       provided this court with one simple direction: to retry the defendant.

The court therefore denied the motion to dismiss.

       The supreme court ultimately granted Tjernagel’s subsequent application

for discretionary review, stayed the proceedings in the district court, and

transferred the matter to this court for resolution. Our review is for correction of
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errors at law. State v. Dixon, 534 N.W.2d 435, 438 (Iowa 1995), receded from on

other grounds by State v. Huss, 657 N.W.2d 447, 453–54 (Iowa 2003).

       On appeal, Tjernagel argues the district court had authority and jurisdiction

to consider the motion to dismiss and the court therefore erred in declining to

entertain the merits of the motion. The State agrees but argues the error was

harmless because Tjernagel’s motion would have failed on the merits. The State

requests that we consider the merits of the motion to dismiss for the first time on

appeal, affirm the denial of the motion, and remand the case for a new trial.

       Although we may choose to proceed with a review of the merits of

Tjernagel’s double jeopardy claim, “we are not bound to do so.” See Squealer

Feeds v. Pickering, 530 N.W.2d 678, 682 (Iowa 1995), abrogated on other grounds

by Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38 (Iowa 2004).

The parties agree the district court erred in declining to consider the merits of

Tjernagel’s motion to dismiss.      Although in her first appeal Tjernagel raised

prosecutorial misconduct as a ground for relief, she did not raise a double jeopardy

issue or claim of dismissal, so we had no cause to consider those issues. As such,

after the remand, Tjernagel should not have been denied her day in court to be

heard and fully litigate her motion. Cf. Raher v. Raher, 129 N.W. 494, 506 (Iowa

1911) (“Every one is entitled to his day in court, and to the right of being heard

before a [ruling] of any kind is rendered against him.” (citation omitted)), overruled

on other grounds by Edwards v. Smith, 29 N.W.2d 404, 407 (Iowa 1947). We find

it more appropriate for the motion to dismiss to be fully litigated before the district

court than before an appellate court. Cf. Iowa State Dep’t of Health v. Hertko, 282

N.W.2d 744, 755 (Iowa 1979) (declining, where district court improperly failed to
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consider the merits of a motion, to consider the merits on appeal and instead

directing the same to be considered by the district court on remand).

       We decline to consider the merits of the motion to dismiss for the first time

on appeal. We therefore reverse the district court’s denial of Tjernagel’s motion to

dismiss and remand the matter to the district court for consideration of the motion

on the merits. At this juncture, we decline Tjernagel’s request that we “instruct the

district court to allow a subpoena on the prosecutors from [her] first trial” for the

purpose of developing a factual record.1 The district court should be and is allowed

to consider all aspects of Tjernagel’s motion before it decides any of the issues.2

       REVERSED AND REMANDED.




1
  The parties agree Tjernagel’s request that we order the motion to dismiss to be
considered by a different judge on remand has been rendered moot. We therefore take
no action on that request.
2
  This opinion is limited to deciding Tjernagel is entitled to a hearing on her motion and is
not intended to suggest any particular outcome of any aspect of the pending issues.
