                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1052
                                Filed July 9, 2015


JUSTIN ALAN ROBUCK,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Richard B. Clogg,

Judge.



      Justin Robuck appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Joseph P. Vogel of Vogel Law, P.L.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney

General, Michael K. Jacobsen, County Attorney, and James W. Cleverley Jr.,

Assistant County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.

      Justin Robuck appeals the district court’s denial of his application for

postconviction relief from his 2008 conviction for murder in the second degree, in

violation of Iowa Code section 707.3 (2007). Upon our review, we affirm the

court’s order denying Robuck’s application for postconviction relief.

I.    Background Facts and Proceedings

      In 2008, following a jury trial, Robuck was convicted of second degree

murder following the stabbing death of Jerry Pittman II.       The following facts

surrounding the murder were set out in our opinion on direct appeal:

      On the night of Friday, October 5, 2007, Robuck and a group of
      friends, including Tyler Oberhart, Ray Travis, Courtney Hummel,
      and Mishana Cornejo, spent the evening partying together. Earlier
      that evening, Oberhart gave Pittman some Xanax pills in exchange
      for marijuana, and Oberhart later discovered that the marijuana he
      received was actually lawnmower clippings. Around 3:00 a.m.,
      October 6, Robuck, Oberhart, Travis, Hummel, and Cornejo, went
      to Pittman’s house in order to “punk him out,” or scare him into
      giving them their marijuana or money back. When they arrived at
      Pittman’s, Robuck, Oberhart, and Travis exited the car, all carrying
      a knife or other weapon. After summoning Pittman to come out of
      the house, they discovered he was in the backyard wielding a knife.
      Threats were exchanged, and Pittman lunged at Oberhart. Pittman
      then went into the garage, purportedly to get the marijuana, but
      instead came out of the garage swinging a PVC pipe and struck
      Oberhart. After wrestling the pipe away from Pittman, Oberhart told
      Pittman, “You better run.” Pittman began running, chased by
      Oberhart and Robuck, both armed with knives, and Travis, armed
      with a rock-like weapon. Upon catching him, Oberhart held him to
      the ground by sitting on his upper body and Robuck sat on
      Pittman’s legs. Both Oberhart and Robuck repeatedly stabbed
      Pittman. A later autopsy would reveal Pittman suffered twenty-nine
      stab wounds. Immediately after the stabbing, the three returned to
      the car with Robuck exclaiming, “I killed him. I killed him. I killed
      him . . . . I stabbed him at least 30 times.” He also said, “He is
      dead. He is dead. He is fricking dead.”
             During the altercation, Robuck’s hand was injured. When he
      later sought medical treatment at a hospital, he informed the doctor
      he threw a knife into the air, and as it came back down, the knife
                                          3


         stabbed him in the hand. Suspicious of the explanation, the doctor
         contacted the police. Robuck told the police a different story as to
         how his injury occurred. Following an investigation, Robuck and
         Oberhart were charged with first-degree murder.

State v. Robuck, No. 08-1864, 2009 WL 3775128, at *1 (Iowa Ct. App. Nov. 12,

2009).

         Robuck filed an application for postconviction relief. Among other claims,

Robuck raised a claim of juror misconduct: “Failure of a juror to allow [Robuck] to

have the opportunity to full develop his case before establishing a verdict.”

Zachary Seaman, Robuck’s friend, testified in Robuck’s defense at his criminal

trial. At the PCR hearing, Seaman testified that during the trial, after the jury was

sworn in but before he testified, he was waiting in the hallway outside the

courtroom and overheard a juror say, “I don’t understand why we’re doing this.

He’s already guilty.” Seaman stated the juror “sounded like he was talking to

fellow jurors, people that were around him,” but Seaman could not recall if other

jurors acknowledged the comment.

         Rona Skow, whose daughter was best friends with Robuck, also testified

at Robuck’s criminal trial. At the PCR hearing, Skow testified she was in the

hallway sitting by Seaman when she heard a juror comment, “He’s guilty, let’s

just get it over. I have better things to do.” Skow believed the jury was on the

way back from lunch on a day during the first week of trial. Skow did not see the

juror make the comment to anyone else and no one responded to the comment.

         According to Robuck, the juror’s comment made during trial in the hallway

leading to the courtroom—overheard by two of his witnesses—constitutes juror

misconduct entitling him to a new trial. The State countered that Robuck failed to
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prove the juror’s statements were calculated to, and probably did, influence the

jury’s verdict. Following the hearing, the district court entered an order denying

Robuck’s claim. Robuck appeals.

II.    Standard of Review

       We review the district court’s ruling on an application for postconviction

relief for correction of errors. See Perez v. State, 816 N.W.2d 354, 356 (Iowa

2012). Insofar as Robuck’s claim rests on constitutional principles, we review it

de novo. See State v. Oliver, 812 N.W.2d 636, 639 (Iowa 2012).

III.   Discussion

       At the outset, the State challenges the timeliness of Robuck’s juror

misconduct claim.1 The State claims Robuck “was required to raise his jury

misconduct claim before sentencing in 2008” and Robuck “did not present

sufficient cause to justify the untimeliness of his challenge” or “prove actual

prejudice” under Iowa Code section 822.8 (providing that postconviction relief

may not be granted on claims not asserted in prior applications for relief in the

absence of a showing of good cause). See Osborn v. State, 573 N.W.2d 917,

921 (Iowa 1998) (“[A]ny claim not properly raised on direct appeal may not be

litigated in postconviction unless there is a showing of ‘sufficient reason’ or

‘cause’ for not properly raising it previously, and of actual prejudice resulting from

the alleged error.”).



1
   The State also raised this issue before the district court. Cf. DeVoss v. State, 648
N.W.2d 56, 63 (Iowa 2002) (“Unquestionably, the State could have urged in the district
court DeVoss’ failure to raise in her direct appeal her ineffective-assistance-of-counsel
claim regarding her trial counsel’s failure to pursue the coaching issue at the original
trial. The State’s failure to do so waives DeVoss’ failure to comply with section 822.8,
allowing us to proceed to the merits of DeVoss’ postconviction-relief claims.”).
                                           5


       Robuck presented no evidence regarding when he or his counsel became

aware of the juror’s comment. He presented no sufficient reason or cause why

he was prevented from making a timely challenge to the juror’s comment. And

although ineffective assistance of counsel may provide “sufficient reason” or

“cause” to permit this issue to be raised for the first time in a proceeding for

postconviction relief, Robuck does not raise his claim alternatively in that guise.

See Osborn, 573 N.W.2d at 921; also State v. Fountain, 786 N.W.2d 260, 263

(Iowa 2010) (“Ineffective-assistance-of-counsel claims are an exception to the

traditional error-preservation rules.”).

       Bypassing this error preservation concern in an effort to stave off another

potential postconviction-relief proceeding, see State v. Taylor, 596 N.W.2d 55, 56

(Iowa 1999) (bypassing an error-preservation problem and proceeding to the

merits of the appeal), we conclude Robuck’s claim is unpersuasive. “[I]n order to

be entitled to a new trial based upon juror misconduct, the

       (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. Webster, ___ N.W.2d. ___, ___, 2015 WL 3814823, at *8 (Iowa 2015)

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

Arneson, 422 N.W.2d 491 (Iowa 1988) (clarifying the first prong of the Cullen test

by interpreting Iowa Rule of Evidence [5].606(b) to allow statements regarding

extraneous prejucicial information or outside influence that was brought to bear
                                         6


on the jury, but excluding evidence of internal deliberations of the jury). We

begin and end our analysis of Robuck’s claim with the third requirement.

      The evidence presented by Robuck on the juror’s comment is far from

convincing. The evidence came in the form of testimony from two of Robuck’s

friends who also testified on his behalf at the criminal trial. Although Skow stated

she heard the juror’s comment while sitting beside Seaman, Skow and Seaman

gave inconsistent accounts of the substance of the juror’s comment, the day the

comment was made, and the location of the juror who made the comment.

Moreover, both Seaman and Skow admitted they did not know the intent of the

juror’s comment or whether the other jurors even heard the comment, and both

stated no other juror responded to the comment and the comment was not

repeated. Additionally, we observe the district court “has a broad discretion in

ruling on these matters.”    Cullen, 357 N.W.2d at 27, see also Webster, ___

N.W.2d. at ___, 2015 WL 3814823, at *5 (“We review a denial of a notion for new

trial based upon juror misconduct or juror bias for an abuse of discretion.”). Had

this matter been brought to the attention of the trial court in a timely manner, in

light of the evidence presented at the PCR hearing, we seriously doubt the court

would have ordered a new trial.

      Upon our review, we conclude Robuck failed to prove the juror’s comment

“was calculated to, and with reasonable probability did, influence the verdict” and

his claim of juror misconduct fails. See Webster, ___ N.W.2d at ___, 2015 WL

3814823, at *10. The PCR court did not err in denying Robuck’s application for

postconviction relief. We therefore affirm.

      AFFIRMED.
