                   IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0126
                                  Filed July 6, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PHILLIP LEROY SMITH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Decatur County, Dustria A. Relph,

Judge.



      A defendant appeals his conviction asserting juror misconduct and

ineffective assistance of counsel. AFFIRMED.



      Unes J. Booth of Unes J. Booth Law Firm, P.C., Osceola, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Heard by Vogel, P.J., and Doyle, and McDonald, JJ.
                                          2


VOGEL, Presiding Judge.

       Phillip L. Smith appeals the district court’s decision denying his motion for

a new trial following his conviction for sexual abuse in the third degree, in

violation of Iowa Code section 709.4(1) (2014). He asserts the district court

abused its discretion in concluding the jury foreperson did not commit misconduct

when the foreperson failed to disclose that he knew the defendant was on the

sex offender registry. He also claims his attorney provided ineffective assistance

when counsel failed to object to alleged prosecutorial misconduct.         For the

reasons stated herein, we affirm his conviction but preserve his claims of

ineffective assistance of counsel for postconviction relief.

   I. Background Facts and Proceedings

       In November 2014, the victim reported to police Smith sexually assaulted

her in her apartment on October 18th. Before Smith’s trial began in October

2015, the district court ruled that mention of Smith’s prior bad acts would be

inadmissible.

       During voir dire, a potential juror was asked generally if he knew the

parties involved or if there was anything that would cause him pause if he were to

serve on the jury. While the juror seemed to recognize Smith’s name, he did not

remember in what context he had heard the name, so he did not say anything to

the court or the attorneys. The juror in question was chosen for the jury. Later,

during the first day of trial, the juror remembered he had seen Smith’s name on

the sex offender registry a few months prior. However, the juror did not alert the

court of his knowledge. The juror was later named jury foreperson.
                                         3


       Two witnesses testified at trial: the victim and the police officer who

interviewed both the victim and the defendant as part of his investigation. The

prosecutor questioned the investigating officer about the consistency of the

victim’s statements and the nature of Smith’s statements. The officer testified the

victim’s written statement of the incident was consistent with the oral statement

she later gave.     The officer testified that Smith’s statements during the

investigation were “strange,” saying it was “almost like a Freudian slip” when

Smith said “when I was done—when we was done” referring to the sex act with

the victim. The officer testified that Smith told him he waited around after the

incident to see if the victim was all right, which the officer testified also seemed

strange. The officer testified that he questioned “[w]hy would you wait around

after making love to somebody to see if it was all right?” The prosecutor also

asked the officer if he thought the victim only disclosed the assault after she

discovered she was pregnant—about six weeks later. The officer responded that

he did not think that was the reason she reported the incident.

       During her closing argument, the prosecutor referenced the officer’s

testimony about the victim’s consistent statements and that that victim did not

seem like someone who was fabricating her story. The prosecutor also brought

up a recent Dateline story about sexual assault victims who do not come forward

for years after their alleged abuse, as a way of explaining the fact that the victim

in this case waited several weeks to report her assault to the police.

       After deliberating approximately thirty minutes, the jury returned a guilty

verdict. The jury took only one vote, unanimously convicting Smith as charged.

The following evening the jury foreperson telephoned the trial judge at her
                                          4


residence and stated he and his wife were afraid due to Smith’s behavior posttrial

and because he was on the sex offender registry. The judge told the foreperson

she would email the parties’ attorneys with this information. The foreperson also

spoke with the prosecutor in her office the next day regarding his information. In

response, Smith’s counsel filed a motion for new trial, asserting juror misconduct

invalidated the guilty verdict under Iowa Rule of Criminal Procedure 2.24(2)(b)(2).

       An affidavit, agreed upon by both the State and Smith, was sent to all the

jurors, inquiring, “Did anyone mention or discuss the sex offender registry during

the course of the trial?”     All jury members answered “no.”         At the posttrial

hearing, the foreperson testified he did not mention his knowledge to anyone on

the jury:

              Q. You didn’t feel that that [knowledge of the sex offender
       registry] was relevant in your deliberations, and you just didn’t say
       it? A. What’s that?
              Q. His being on the registry. A. It wasn’t relevant to what
       we were talking about, no.

Defense counsel then inquired as to any bias the foreperson may have harbored

because of such knowledge.

              Q. It didn’t have any bearing at all on whether or not my
       client was convicted of a sex abuse offense in the past? A. No,
       because I knew I could give a fair judgment on what was in the trial.

The district court found the foreperson’s testimony to be credible and denied

Smith’s posttrial motions.

       Smith appeals his conviction claiming he was denied his constitutional

right to a fair trial under the United States Constitution and under article I, section

10 of the Iowa Constitution. He claims he was denied the right to an impartial

jury due to the foreperson’s alleged misconduct and bias.            He also claims
                                              5


ineffective assistance of counsel due to trial counsel’s failure to object to

prosecutorial misconduct.

    II. Standard of Review

       “We review a denial of a motion for a new trial based upon juror

misconduct or juror bias for an abuse of discretion.”              State v. Webster, 865

N.W.2d 223, 231 (2015). The burden of proof is on the party seeking review. Id.

       Ineffective-assistance-of-counsel claims are reviewed de novo. State v.

Halverson, 857 N.W.2d 632, 634 (Iowa 2015). The court ordinarily preserves

these claims for postconviction relief proceedings in order to fully develop the

record through evidentiary hearings. Id. We will only review the claims on direct

appeal if the record is adequate. Id. at 638.

    III. Right to an Impartial Jury

       Smith asserts the jury foreperson’s failure to disclose his knowledge that

Smith was on the sex offender registry amounted to juror misconduct and this

juror’s knowledge of Smith’s status on the registry affected Smith’s right to an

impartial jury.1 “Juror misconduct and juror bias are related, overlapping, but

analytically distinct concepts.” Webster, 865 N.W.2d at 232. “Juror misconduct

ordinarily relates to action of a juror, often contrary to the court’s instructions or

1
   In his brief and at oral argument, Smith also claims ineffective assistance of counsel
because his trial counsel failed to raise his federal and state constitutional right to a fair
trial and impartial jury in his posttrial motion. In the motion for a new trial, defense
counsel only raised the issue of the impartial jury under Iowa Rule of Criminal Procedure
2.24(2)(b)(2). However, Smith fails to articulate how the addition of constitutional claims
changes the analysis the district court engaged in under rule 2.24(2)(b)(2). Smith also
claims ineffective assistance of counsel because his trial counsel failed to request the
district court rule regarding the juror’s duty to disclose material information during trial
before deliberations and the juror’s implied bias due to his material information. Due to
the inadequacy of the record on direct appeal, to the extent Smith wishes to raise these
claims of ineffective assistance of counsel in a postconviction-relief hearing, they are
preserved. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).
                                           6


admonitions, which impair the integrity of the fact-finding process at trial. . . .

Juror bias, on the other hand, focuses on the ability of a juror to impartially

consider questions raised at trial.” Id. (citations omitted).

       A. Jury Misconduct. To determine the existence of juror misconduct,

the court applies a three-part test:

       (1) evidence from the jurors must consist only of objective facts as
       to what actually occurred in or out of the jury room bearing on
       misconduct; (2) the acts or statements complained of must exceed
       tolerable bounds of jury deliberation; and (3) it must appear the
       misconduct was calculated to, and with reasonable probability did,
       influence the verdict.

State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984); see also Ryan v. Arneson, 422

N.W.2d 491, 495 (Iowa 1988) (clarifying the first prong through an interpretation

of Iowa Rule of Evidence 5.606(b) by excluding any evidence of the internal

deliberations of the jury but allowing statements containing extraneous prejudicial

information or outside influences that were brought to bear on the jury).

       The district court did not find the jury foreperson’s actions satisfied the

misconduct requirements. In so concluding, the court found the jury foreperson

did not do any outside research, did not share his knowledge with other jurors,

and did not bring outside facts into deliberation.

               The jury foreman . . . remembered after he was seated in the
       jury box as a juror, and at some point after the trial started, that he
       had seen somewhere on the Internet that the defendant was a
       registered sex offender.
               [The juror] did not perform any research about the
       defendant’s status as a sex offender during the trial or
       deliberations. His testimony was that he remembered that he had
       seen this at some time ago before the trial.
               The Court finds that [the juror] is credible, and I find that his
       testimony was credible. [The juror] did not disclose his recollection
       of seeing the defendant on the sex offender registry to this Court
       until after the trial. [The juror] did not mention his recollection of the
                                          7


       defendant’s—his recollection of seeing the defendant was on the
       sex offender registry to any other juror at any time during the trial or
       during deliberations.     This was confirmed by the notarized
       questionnaires that were mailed to and received from every other
       juror. And those questionnaires asked if there was ever any
       mention made about the sex offender registry during the trial or
       during deliberations, and every questionnaire was returned with a
       “no” on it.

       In addition, the court concluded the jury foreperson’s knowledge could not

have reasonably affected the verdict because only one vote was taken and it was

unanimous.

              Again, based upon the fact that this knowledge was not
       shared with any of the other jurors, it was not discussed at any time
       during deliberations, only one vote was taken and that vote was
       unanimous, guilty, the Court finds that there is absolutely no
       reasonable probability that [the juror’s] privately retained knowledge
       of the defendant’s status on the sex offender registry had any
       influence on the verdict

       The district court has broad discretion when determining misconduct and

its ruling will only be deemed an abuse of discretion if it is clearly unreasonable.

Cullen, 357 N.W.2d at 27 (citation omitted).

       Here, the first prong of the Cullen misconduct test is satisfied. Objective

evidence was presented by way of the jury foreperson’s testimony at the hearing

on Smith’s motion for new trial. The jury foreperson testified he realized he had

seen Smith’s name on the sex offender registry sometime during the first day of

trial. However, the second prong is not satisfied because the district court found

his nondisclosure did not exceed tolerable bounds of jury deliberation.           In

particular, the district court considered that the foreperson did not share the

information with any of his fellow jurors. This conclusion was supported by the

juror affidavits, which all confirmed the sex offender registry was not discussed at
                                          8


any time during the trial. Finally, the third prong is also not satisfied; because the

jury foreperson testified that he kept the information to himself, the district court

found there was no reasonable probability it influenced the verdict. 2 The court is

to use a common sense approach when evaluating whether misconduct

influenced the verdict. State v. Tinius, 527 N.W.2d 414, 417 (Iowa Ct. App.

1994). The district court’s findings were supported by the record, and we find no

abuse of discretion in the court’s denial of Smith’s motion based on juror

misconduct.

       B.   Juror Bias.    “Juror bias . . . focuses on the ability of a juror to

impartially consider question raised at trial. A biased juror is simply unable to

come to a fair decision in a case based upon the facts and law presented at trial.”

Webster, 865 N.W.2d at 232. Juror bias can be actual or implied. United States

v. Wood, 299 U.S. 123, 133 (1936). It can be supported by statements made

after the jury reaches a verdict. State v. Cuevas, 288 N.W.2d 525, 535 (Iowa

1980). Bias can also be supported by the reasonable belief that the jury member

is biased. See State v. Carey, 165 N.W.2d 27, 30 (Iowa 1969).

       The jury foreperson testified that because he lives in a small community,

he routinely checks the sex offender registry in order to protect his children. The

district court is given broad discretion in fact-finding, and it found the jury

foreperson’s testimony believable when he said he was able to keep his

knowledge of the sex offender registry separate from the trial.

             [The juror] testified that the defendant’s status on the sex
       offender registry had no bearing on him and he was able to, quote,

2
 The juror also did not purposely position himself to become the foreperson. He stated
he was named foreperson because he just happened to sit at the head of the table.
                                          9


       give a fair judgment on what was in the trial. He testified that it did
       not give him bias and he was able to set aside that knowledge and
       make a decision based upon only the evidence that was presented
       in the trial.

The district court is in the best position to judge the credibility of the jury

foreperson’s testimony. See Webster, 865 N.W.2d at 238–39 (deferring to the

district court’s assessment of the juror’s credibility and stating, “The mere fact a

juror has knowledge of parties or witnesses does not indicate actual bias or

require juror disqualification”).   Finding no abuse of discretion, we affirm the

district court’s denial of Smith’s motion for a new trial based on juror bias.

   IV. Prosecutorial Misconduct

       Next, Smith argues his counsel was ineffective when counsel failed to

object to what he asserts was prosecutorial misconduct.            Smith claims the

prosecution’s actions are reversible error when the prosecutor questioned the

investigating police officer in an effort to bolster the victim’s credibility and when

the prosecutor made improper statements during closing arguments.

       In order to succeed on an ineffective-assistance-of-counsel claim, a

defendant must prove each of the following two elements by a preponderance of

the evidence: (1) trial counsel failed to perform an essential duty and (2) this

failure resulted in prejudice. State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004).

Both elements must be proven by a preponderance of the evidence. State v.

Keller, 760 N.W.2d 451, 452 (Iowa 2009).

       The first prong of the test is determined by comparing counsel’s work

“against the standard of a reasonably competent practitioner, with the

presumption that the attorney performed his duties in a competent manner.”
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State v. Stallings, 658 N.W.2d 106, 109 (Iowa 2003). To fulfill the second prong,

“the defendant must show that, but for counsel’s error, there is a reasonable

probability that the results of the trial would have been different.” Id.

       In order to determine whether counsel was ineffective in failing to object to

prosecutorial misconduct, we must first determine whether prosecutorial

misconduct occurred. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). To do

so, the court considers the following factors:

       (1) the severity and pervasiveness of the misconduct; (2) the
       significance of the misconduct to the central issues in the case; (3)
       the strength of the State’s evidence; (4) the use of cautionary
       instruction or other curative measures; and (5) the extent to which
       the defense invited the misconduct.

Id.; see also State v. Schlitter, 881 N.W.2d 380, 394 (Iowa 2016) (making a

distinction between prosecutorial misconduct and prosecutorial error and noting

the Graves multifactor test for prosecutorial misconduct “easily translate[s] to an

evaluation of prosecutorial error”). It is the prejudice that is the deciding factor,

not the misconduct itself. Graves, 668 N.W.2d at 869.

       Smith’s first claim of prosecutorial misconduct involves the questioning of

the police officer who interviewed the victim.          The prosecutor asked the

investigating officer, “Was the statement that [the victim] provided you consistent

with what she had previously told you? A. Yes.” Smith states the prosecutor

erred when asking this question as it was an attempt to bolster the victim’s

credibility. Our supreme court has held “it is not proper to . . . ask[] one witness if

another witness is untruthful, mistaken, or to otherwise ask the witness to

comment on the credibility of another witness.” Nguyen v. State, 707 N.W.2d

317, 325 (Iowa 2005) (emphasis added). However, it does not cross the line for
                                         11

a witness to comment on the consistency of an alleged victim’s statements

throughout multiple interviews.     State v. Dudley, 856 N.W.2d 668, 678 (Iowa

2014). The jury is free to use this information to make its decision about the

alleged victim’s credibility. Id.

       The defense’s trial strategy was to attack the credibility of the victim. In

shoring up the victim’s version of the incident, the prosecutor inquired of the

officer whether the victim’s testimony had remained consistent throughout the

investigation.   There is a fine line between testifying about consistency of

information and credibility of the source of the information. See id. at 677, 678

(recognizing the “very thin line between testimony that assists the jury in reaching

its verdict and testimony that conveys to the jury that the [victim’s] out-of-court

statements and testimony are credible” and concluding testimony from the

investigator that said the victim’s “statements were consistent throughout the

interview” did not cross the line). The jury was free to use the officer’s affirmative

answer regarding consistency in making its own decision regarding the credibility

of the victim’s testimony.      See id. at 678 (“The jury is entitled to use this

information to determine the victim’s credibility. This information gives the jury an

insight into the victim’s memory and knowledge of the facts.”). We conclude this

questioning did not rise to the level of prosecutorial misconduct.

       Next, Smith claims the prosecutor committed misconduct when the officer

testified to what he believed to be “strange” behavior by Smith during the

interview. The prosecutor asked, “What else did [Smith] tell you?” After the court

overruled defense counsel’s hearsay objection, the officer testified:
                                         12


               A. If I can put my mind back on the chronology of your
      question here. He makes a statement to me that is strange.
      Chronologically, it is almost like a Freudian slip. He says, When I
      was done—when we was done.
               Q. What did that indicate to you? A. Well, that he was
      initially speaking in first person, speaking “when I was done” and
      correcting it to say, “When we was done.”
               Q. Did that indicate to you that this was a joint action
      between the two of them or something that he was doing? A. Not
      to me. What he says next is that, “I stayed around and waited for a
      while to see if it was all right with her,” which I thought was strange
      also. Why would you wait around after making love to somebody to
      see if it was all right?

Police officers are allowed to testify about their impressions and observations

made during an investigation. See Robeson v. Dilts, 170 N.W.2d 408, 413 (Iowa

1969) (allowing in a police officer’s opinion testimony regarding the course

vehicles took in a traffic accident based on his observations on the scene). This

testimony was not improper, nor was the prosecutor guilty of misconduct or error

when eliciting this testimony.    The jury was free to consider the officer’s

observations about Smith’s statements made during the investigation.            Trial

counsel’s failure to object does not fall below standards of a reasonably

competent attorney. If Smith’s counsel had objected to this testimony, it is likely

the outcome of the trial would not have changed.

      However, other instances of alleged prosecutorial misconduct are less

clear. Smith further argues the prosecutor committed objectionable misconduct

when the prosecutor asked the investigating officer:

            Q. [Officer], tell me, based on [the victim’s] written statement
      and the interview that you did with her on November 20, 2014, did
      you believe that a crime had occurred? . . . A. I reserved an open
      mind at that point.

The prosecutor also asked the officer:
                                           13


            Q. Did [the victim] give you any indication that the only
      reason she was reporting [the sexual assault] was because of the
      pregnancy? A. No.

Smith asserts the officer’s testimony that he did not believe the pregnancy was

the reason for reporting the sexual assault bolstered the victim’s later testimony

that her pregnancy was not the reason she reported the assault.

      Smith also claims the prosecutor committed misconduct during her closing

argument on two separate occasions.             First, Smith claims the prosecutor

bolstered the victim’s testimony when she said:

              The actions of [the victim] sitting here are not the actions or
      the emotions of somebody who fabricated a story. I would like to
      assure you that if this statement of events and if what she told you
      had been fabricated, it wouldn’t have gotten to this point.
              As a law enforcement officer, that is [the investigating
      officer’s] job to kind of determine what is believable and what is not
      believable. Had he not made that assessment, then it never would
      have gotten to this point.

      Next, Smith claims the prosecutor committed misconduct when she

referenced information that did not come into trial as evidence. The prosecutor

stated in her rebuttal closing argument:

             I don’t have the exact statistic. I wish I did. I wish I had
      done a little bit of research. I am here to tell you that the majority of
      sexual assault cases go unreported.
             I don’t know if anyone saw Dateline last week where they
      were interviewing the victims of Bill Cosby. I think seventeen to
      twenty victims who came forward, and most of them said they
      never called the police. That is not uncommon. I can tell you that.
      I have seen it. It is not uncommon that women are assaulted, that
      women are raped, and they never call the police.
             You know why that is? Because, unfortunately, our society,
      we victimize those people. Our society says, “Well, you know
      what? Because she only said no three times and she didn’t kick
      and scream and try to run away, she deserved it.”
             I don’t know about you, but I don’t want to live in a society
      where no doesn’t mean no. I think each and every one of us has a
                                         14


         duty—has a duty to listen to her story, and we have a duty to do
         justice and do what is right in this case.

         Smith asserts all of these instances show an improper concerted effort on

the part of the prosecutor to bolster the credibility of the victim by inserting her

own outside-of-the-record “research” and opinion.       Smith claims counsel was

ineffective in failing to object to these statements by the prosecutor. The State

concedes in its brief that the prosecutor was wrong to mention the Dateline TV

show during closing arguments. But the State asserts the prosecutor’s statement

regarding the investigator’s assessment of the believability of the victim was

simply inferring that this trial would never had occurred had charges not be filed

after the officer’s investigation, which included interviewing both the victim and

Smith.

         The purpose of closing argument is to assist the jury in analyzing,

evaluating, and applying the evidence.        State v. Melk, 543 N.W.2d 297, 301

(Iowa 1995). An attorney can only argue a theory of the case from the evidence

admitted at trial. State v. Elliott, 806 N.W.2d 660, 674 (Iowa 2011). While a

prosecutor is afforded the latitude to draw conclusions and argue permissible

inferences derived from the evidence in closing arguments, a prosecutor cannot

create evidence. State v. Shanahan, 712 N.W.2d 121, 139 (Iowa 2006). The

test is whether the comments are founded upon relevant evidence or a legitimate

inference from the evidence.      State v. Martens, 521 N.W.2d 768, 773 (Iowa

1994).

         In addition,

         counsel is precluded from using argument to vouch personally as to
         a defendant’s guilt or a witness’s credibility. This is true whether
                                         15


       the personal belief is purportedly based on knowledge of facts not
       possessed by the jury, counsel’s experience in similar cases, or
       any ground other than the weight of the evidence in the trial.”

See State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983); see also Martens, 521

N.W.2d at 772 (“[V]ouching for a witness may induce the jury to trust the

judgment of the prosecutor rather than their view of the evidence since the

prosecutor’s opinion carries the imprimatur of the Government. . . . An argument

amounts to impermissible vouching if the jury could reasonably believe the

prosecutor was expressing a personal belief in the credibility of a witness, either

through explicit personal assurances or implicit indications that information not

presented to the jury supports the witness.”).

       The State’s evidence in this case was not overwhelming, and the

credibility of the victim was central to the case. However, based on this record,

we cannot determine whether Smith has proven his claim of ineffective

assistance. We are unable to ascertain at this time whether defense counsel’s

silence was the result of a reasonable trial strategy or whether it was due to

inattention. State v. Fountain, 786 N.W.2d 260, 266 (Iowa 2010) (“[C]laims of

ineffective assistance involving tactical or strategic decisions of counsel must be

examined in light of all the circumstances to ascertain whether the actions were a

product of tactics or inattention to the responsibilities of an attorney . . . .”

(alteration in original) (citation omitted)). “If the challenged actions of counsel

implicate trial tactics or strategy, we will not address the issue until the record is

fully developed.” State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012). In addition, if

counsel’s failure to object was a conscious trial tactic or strategy, based on this

record, we are unable to determine “if such tactic or strategy was reasonable,
                                        16

under prevailing professional norms.” See id. at 501. We therefore preserve

Smith’s prosecutorial misconduct claims for postconviction relief.

   V. Conclusion

       We conclude the district court did not abuse its discretion in denying

Smith’s motion for a new trial based on juror misconduct and juror bias.

However, we preserve for postconviction relief Smith’s claims regarding

counsel’s failure to raise the juror misconduct and bias issue under the

respective state and federal constitutional provisions, and we also preserve

Smith’s claim that his trial counsel was ineffective in failing to object to what he

claims are instances of prosecutorial misconduct. Smith’s conviction is affirmed.

       AFFIRMED.
