                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1095
                            Filed November 13, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TYLER JAMES WEBSTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Jefferson County, Myron L. Gookin,

Judge.



      Tyler Webster appeals from the judgment and conviction entered following

a jury trial and a guilty verdict on the charge of second-degree murder.

REVERSED AND REMANDED FOR A NEW TRIAL.




      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes and Kevin

Cmelik, Assistant Attorneys General, Timothy W. Dille, County Attorney, and

Denise A. Timmins, Assistant County Attorney, for appellee.




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


DOYLE, J.

       Tyler Webster appeals from the judgment and conviction entered following

a jury trial and a guilty verdict on the charge of second-degree murder. We

reverse and remand for a new trial.

       I. Background Facts and Proceedings.

       Tyler Webster and Buddy Frisbie had been good friends since their

teenage years. On the evening of August 25, 2012, Frisbie and his girlfriend,

Shelby Hall, went to a friend’s house. There, they met Webster and Knight, a

mutual friend of Frisbie’s and Webster’s. After a few hours of partying, Frisbie

and Hall decided to go fishing and invited Webster to go along.

       Frisbie and Hall drove back to their camper-trailer, located on Knight’s

property, to get their things. Webster and Knight also drove back to the campers

in Webster’s truck. It started raining, so Frisbie and Hall went into their trailer,

and Webster went in with them. Knight returned to his own trailer.

       At some point, Webster believed Frisbie was trying to force himself upon

Hall. Webster left the trailer, went outside to his truck, and got a pistol out of the

glove box. When he returned to the trailer and opened the door, Frisbie and Hall

were kissing. Webster shot Frisbie twice in the head. Hall got up and ran to

Knight’s trailer.

       Hall told Knight what happened, and he told her to hide in the back of his

trailer. Knight grabbed his shotgun and stood at his door, and Webster came

walking over with the gun still in his hand. Knight told Webster to put his gun

down or he would shoot. Webster put the gun down and Knight called 9-1-1.

Knight and Webster then walked up to the end of the road and waited for law
                                         3


enforcement to arrive. Webster was arrested thereafter. Frisbie died of the

gunshot wounds, and Webster was subsequently charged with first-degree

murder.

      After voir dire and jury selection, which was not reported, the jury was

impaneled and trial commenced.        Throughout the one-week trial, the court

admonished the jurors not to talk between themselves or to anyone else about

the case and not to read or listen to any news reports.             The court also

admonished the jurors to keep an open mind and not reach any conclusions until

the case was completed.

      After the defense rested, a record was made outside the presence of the

jury concerning an issue that had arisen concerning one juror.            The court

explained:

      [A]t this point I wanted to bring up to counsel—I had mentioned this
      off the record previously—that on [the afternoon of Thursday, April
      11], after we completed testimony . . . , I was approached by the
      clerk of court and the court attendant who indicated that they had
      received some information that one of our jurors, [“Juror”], who
      works here in the courthouse, had, previous to the trial beginning,
      mentioned to both the [clerk] as well as one of [the clerk’s]
      assistants . . . that she would probably never be picked for the jury
      in this case because she knew the family.
              Once the trial began and the clerk saw who was on the jury
      and noticed that [Juror] was on the jury, that surprised her and in
      passing on Thursday afternoon, [the clerk] mentioned to our court
      attendant . . . that she was really surprised to see [Juror] on the jury
      since she’d indicated that she knew the family.
              [The court attendant] was concerned in that she didn’t recall
      as a part of the jury selection process that she’d sat through that
      [Juror] had said anything about having any connection to either side
      of the family, whether it was Mr. Webster or [Frisbie], and so they
      brought that to my attention. And I in turn indicated to the attorneys
      that that had happened, and it’s my understanding that in order to
      maybe flesh this out a little bit more that the attorneys may want to
      ask some additional questions of [Juror] concerning her
      qualifications as a juror.
                                            4


Defense counsel then questioned Juror. Juror said she is a Facebook1 user, and

Frisbie’s parents, as well as one of Webster’s wife’s relatives, were “on [her]

Facebook.” Juror testified she had not spoken “to anyone.” Juror also said her

daughter, then twenty-seven-years old, had gone to school with and was friends

with Frisbie’s sibling. Juror said she did not know Frisbie himself, but she knew

his parents in passing. She said that on the night of the incident, her Facebook

news feed2 “was going like clockwork,” and a friend of hers was posting “just

anything she heard” concerning the shooting. When asked if she “would decide

the case based upon what [she] remember[ed] from Facebook that night,” Juror

answered:

             I did not hear enough of Facebook except for that there had
       been a shooting, somebody had died. No. Absolutely—the
       Facebook meant nothing, and only that the next day my daughter
       told me who it was because, you know, I was trying to place who it
       was. But nothing—there would be nothing decided on any of those
       conversations there.

She said she had not talked to her daughter about the shooting “other than her

[daughter] telling [her] who it was and that it was [Frisbie’s sibling] . . . , that’s all

[her daughter] ever told [her] about it because [her daughter and Frisbie’s sibling]

were—are friends.”      She said it would not be difficult for her to be fair and

impartial with the type of relationship she had with Frisbie’s parents. Additionally,

she stated:


       1
           For a full Facebook terminology primer, see Facebook’s Glossary of Terms,
available at http://www.facebook.com/help/219443701509174 (last visited 8/13/2014).
         2
           Facebook’s Glossary of Terms explains: “Your News Feed is an ongoing list of
updates on your homepage that shows you what’s new with the friends and Pages you
follow.”     http://www.facebook.com/help/128162313943092 (last visited 8/13/2014).
Facebook friends “are people you connect and share with on Facebook.”
https://www.facebook.com/help/255089167852519 (last visited 8/13/2014).
                                         5


       I’m not biased towards anyone. I don’t think, you know, the
       proceedings are spelling out, and when it comes time, I think I can
       make a fully good decision based on everything that I’ve written in
       my notes—
                ....
       —several pages that I’ve—yeah, nothing I’ve wrote anywhere else.
       All of it’s been wrote in the courtroom of course. That’s all we can.
       Everything, you know, I think I can, you know, I think I’ve taken
       good notes, and I think I’ll make a good decision based solely on
       what’s in my notes.

Webster’s attorney “pass[ed] for cause” and did not request Juror be removed

from the jury panel.

       The next morning, counsel completed their closing arguments.            After

reading the jury its instructions, the court recessed the two alternate jurors. The

matter was submitted to the jury, and approximately five hours later, the jury

returned a verdict finding Webster guilty of murder in the second degree, in

violation of Iowa Code sections 707.1 and 707.3 (2011).

       Webster subsequently filed motions for a new trial and in arrest of

judgment.    Webster submitted that new evidence came to light concerning

Juror’s actions during and after the trial, and he asserted Juror’s conduct

amounted to juror misconduct, by which he was denied a fair trial. The State

resisted Webster’s motions.

       A hearing on the motions was held, and three witnesses were called to

testify about Juror’s alleged statements and actions. The first witness was an

employee at a convenience store who testified she had known Juror for a long

time, though she was “[n]ot real close friends with her.” The store employee

testified that during the week of the trial, Juror had stopped in the store to make a

purchase, and Juror had a conversation with two other customers Juror
                                         6


“evidently knew.” The store employee testified the conversation was “basically

about the trial. [The employee] did not know [Juror] was a juror at that time. But

then when [Juror] was talking to them back and forth, . . . [the employee]

concluded that [Juror] was a juror.” The employee testified one of the customers

stated, “Everyone knows he’s guilty,” and Juror responded, “Yeah.” The store

employee testified the employee asked Juror, when Juror was paying for her

purchase, if she was on the jury, and Juror told the employee she was.

Responding to another question posed by the employee, the employee testified

Juror told her Webster had “pled not guilty, . . . and [the jury had] to decide guilt

or innocence.”

       The second witness testified she knew “Webster’s mother and had

followed all along . . . the facts as understood by his mother in the trial.”

Webster’s mother was the witness’s housekeeper, and considered a friend by the

witness. The witness testified that a few days after the trial, she saw Juror in the

grocery store, and Juror “was loudly proclaiming about the trial and the results of

the trial and how just they were, and that he was guilty, and he deserved what he

got and whatever.” She testified she stopped Juror, and she and Juror discussed

the verdict. The witness testified the Juror stated Webster could have gotten

help from Knight because, contrary to Webster’s testimony, he was not an old

man and she “looked up his age.” The witness also testified that Juror told her,

“[M]y daughter . . . knew both [Webster and Frisbie] when they were young, and

that [Frisbie] was just this kind, sweet, gentle, polite person” and Webster “was a

mouthy, aggressive . . . verbally—you know, aggressive person.”           She also

testified Juror told her, “I know the Frisbie family, and those are good people.
                                           7


I . . . didn’t know [Frisbie], but I know the family, and they’re good people.” The

witness testified she asked Juror why she did not recuse herself like another

potential juror “did when he got up and said, ‘I know the Webster family and I

know the Frisbie family, and therefore I shouldn’t be on the jury.’” She testified

Juror responded, “They didn’t ask me, so I didn’t tell them.”             The witness

questioned Juror, “They didn’t ask any of the jurors if anyone knew the Frisbie

family?” The witness testified Juror said, “‘Nope,’ and she smiled and felt very

proud of herself that she’d dodged that one.”

       The third witness was Webster’s wife, who testified she had heard from a

number of people “that there was a particular juror that was discussing things

and who had actually said . . . that she knew the Frisbie family, but they never

asked her directly, so . . . she didn’t say anything.” Webster’s wife testified she

looked at Juror’s comments and activity on Facebook, and Webster’s wife printed

the pages she found where Juror had commented or “Like[d]” a post posted on

Facebook by Frisbie’s mother.3 The printed pages were offered and admitted

into evidence.

       The exhibit shows that Juror had, as of May 17, 2013, 930 Facebook

“friends.” About a month before trial commenced, on or about Juror’s birthday,

Frisbie’s mother wrote on Juror’s timeline, “Have a wonderful day.” During trial,

on April 11, 2013, Frisbie’s mother posted on her own Facebook wall, “Give me

strength,” and at some point Juror’s daughter “Like[d]” the comment.


       3
         Facebook’s Glossary of Terms provides: “Clicking Like is a way to give positive
feedback     and     connect    with    things    you      care     about.”        See
http://www.facebook.com/help/246923661994614 (last visited 8/13/2014).
                                           8


       On April 16, after the jury rendered its verdict, Juror posted the following

status update on her Facebook wall:

       So I have been kind of quiet about this because I couldn’t really talk
       about it—and especially on here. Several people knew that I have
       been on jury duty. I was one of 12 jurors for the murder trial that
       ended this evening with the ruling of guilty of 2d degree murder. I
       have never been a juror and never seen an actual trial. I did not
       realize what it entailed until this last week. It was the hardest
       decision to come up with because there are 12 people that could
       possibly here [sic] several different things or take several things
       differently. There are no winners in this. . . . [P]eople are still
       hurting because of this but I feel that justice had to prevail and the
       system worked. It may or may not have came [sic] out exactly how
       all of us wanted but there is punishment being made and also he
       still has to answer to the highest power—God!

Frisbie’s mother also posted a status on her Facebook wall after the verdict was

rendered: “Verdict back murder 2. Wanting murder 1 but will take it. We can

now move forward as best we can. I do feel for [Webster’s] family . . . .” Juror

commented on Frisbie’s mother’s status that night: “I wish you could have gotten

murder in 1st degree. I can safely say that this was a very hard decision. I could

talk to you more about it if you wanted at some point—just message me.”

       Juror also testified at the hearing.    She testified she was friends with

Frisbie’s mother on Facebook. She also testified she was friends with Frisbie’s

sibling on Facebook, who was “very good friend[]” of her daughter’s.            She

testified that during the jury deliberation,

       there was a comment made . . . that we’d loved to have been able
       to talk to [Knight] or heard [Knight]. . . . [S]omebody [said], “Well,
       this is what was stated about [Knight]; that he was old.” So I
       decided—like I said, I did not . . . feel good about sending
       somebody to prison. . . . I looked it up on the morning after
       the . . . trial, I looked it up and found out he’s my age.
                                          9


She admitted she used the computer of her employer, the Iowa Department of

Transportation, to look up Knight’s age, but she testified it was after the jury trial.

She testified she was basically just friends in passing with the Frisbie family, and

though she was not close to the family, she knew it was a good family because

her daughter said they were a good family and her “daughter would never allow

her [own] daughter to go with the Frisbie family or for the Frisbie family to babysit

[her] granddaughter if [her] daughter didn’t feel that way.” Juror testified she had

commented she could not believe she was selected for the jury panel because

she “[knew] the Frisbie family, [her] daughter is friends with the Frisbie family.”

She further testified, “I’m not close friends. I don’t know if you could say I have a

total close friend.” Finally, Juror testified she also “Like[d]” Frisbie’s mother’s

“Give    me    strength” comment      “probably” during trial,     but   denied    she

“communicated” with the victim’s mother, testifying she merely “clicked a button

that said ‘[L]ike.’”

        With regard to the convenience store incident that occurred during the

trial, Juror testified she tried to avoid the conversation. When someone in the

store made a comment to her about the trial, Juror testified, “I said, trying to—

without saying anything, was, ‘Yeah, I just wish it’d be over,’ rolled my eyes,

completely wanted to get out of there.” Juror testified that as she was writing out

a check to pay for her pizza, the store clerk said something to her and Juror

responded she was a juror. The clerk asked what was being done and Juror

responded, “He pled not guilty. You have to prove guilt or innocence.”

        With regard to the grocery store incident that occurred after the trial was

over, Juror testified she had a conversation with another lady who had been in
                                        10


the jury pool. Juror testified she told the lady she thought a relationship with the

Frisbie family would keep her off the jury, but she was not asked. She testified, “I

didn’t know how to tell. I guess I’m dumb to the rules.” She told the lady it did

come out when she had the in-chambers meeting during trial. Juror was then

approached by the woman who employed Webster’s mother as a housekeeper.

Juror testified she was intimidated when the woman came at her and said, “You

put an innocent man in jail.”     Juror testified the conversation lasted a few

minutes. Later she went back to talk with the woman. Juror testified she told the

woman, “Who do you believe? You say [Webster is] a good man. The Frisbies

are good people. Who do you believe? You go with the evidence that is in front

of you, and you go with that. That’s what you have to go with.”

       The Juror was asked at the hearing: “Now, you didn’t tell us that you

knew the Frisbie family until we went back into the judge’s chambers in private;

correct?” Juror responded:

              I did not tell you, but I didn’t know how to tell you any other
       way. I was asked in jury selection up here, I said—you know, we
       were asked if we knew these people. I didn’t know the people that I
       was asked. I honestly thought that, okay, they’re asking for the
       prosecution, and here’s going to come defense and you were
       gonna ask.
              And I was—I’m like, okay, how do I do this now? I mean,
       because I was going to say something then, but I thought we had to
       wait to be asked specific questions.

       Following the hearing, the court entered its ruling denying Webster’s

motions. The court found that, based on the record made, a new trial was not

warranted and judgment should not be arrested on the basis of juror misconduct.

The court acknowledged Juror’s Facebook activity while she was a sitting juror

was “unnecessary, inappropriate, and inconsistent with the court’s admonitions,”
                                        11


but it concluded it was “not misconduct that exceeds the tolerable bounds of jury

deliberation.” Additionally, it found there was no evidence Juror’s conduct was

“calculated to, and with reasonable probability did, influence the verdict. To the

contrary, [Juror] expressed post-trial an inclination toward a [first]-degree-murder

verdict but agreed with eleven other jurors for a lesser [second]-degree-murder

verdict.” The court also found,

       if there was any undisclosed bias by [Juror] in favor of the victim’s
       family, and against the defendant, it was not reflected in the verdict
       in which she participated. Nor [was] there any indication any such
       ostensible bias influence or infected any discussions or
       deliberations of the jury as a whole.

       Webster now appeals.

       II. Discussion.

       On appeal, Webster contends the district court abused its discretion in

denying his post-trial motions because Juror’s conduct rose to the level of

misconduct that prevented him from having a fair trial.        He also challenges

certain evidentiary rulings by the trial court. To the extent we find his claims not

preserved, Webster argues his trial counsel was ineffective.

       Under both the United States Constitution and the Iowa Constitution,

criminal defendants are guaranteed due process rights to a fair trial and an

impartial jury. U.S. Const. amend. VI, XIV; Iowa Const. art. I, §§ 9, 10; see also

State v. Mootz, 808 N.W.2d 207, 221 (Iowa 2012).           That guarantee entails

freedom from both juror misconduct and juror bias. See State v. Johnson, 445

N.W.2d 337, 340-41 (Iowa 1989) (discussing claims of juror bias and juror

misconduct); State v. Cuevas, 288 N.W.2d 525, 534-35 (Iowa 1980) (same).

Even if no actual prejudice is shown, “a court must always be concerned that all
                                            12


trials maintain an appearance of propriety. Conduct which would give rise to

doubt or disrespect or which would not meet public approval should be

condemned.” State v. Lampman, 342 N.W.2d 77, 80 (Iowa Ct. App. 1983) (citing

Daniels v. Bloomquist, 138 N.W.2d 868, 872 (Iowa 1965)). Nevertheless, “due

process does not require a new trial every time a juror has been placed in a

potentially compromising situation.” Id. (citing Smith v. Phillips, 455 U.S. 209,

217 (1982)).      Similarly, juror impartiality does not demand complete juror

ignorance of issues and events. See State v. Gavin, 360 N.W.2d 817, 819 (Iowa

1985).

         A. Juror Misconduct.

         Juror misconduct is defined as a

         juror’s violation of the court’s charge or the law, committed either
         during trial or in deliberations after trial, such as (1) communicating
         about the case with outsiders, witnesses, attorneys, bailiffs, or
         judges, (2) bringing into the jury room information relating to the
         case but not in evidence, and (3) conducting experiments regarding
         theories of the case outside the court’s presence.

Black’s Law Dictionary 1089 (9th ed. 2009). Thus, the “term ‘jury misconduct’

often is used to describe both action by jurors that is contrary to their

responsibilities and conduct by others which contaminates the jury process with

extraneous influence.” 6 Wayne R. LaFave et al., Criminal Procedure § 24.9(f)

(3d ed. Dec. 2013). When allegations of juror misconduct are raised after a

verdict has been issued, our rules of criminal procedure authorize the grant of a

new trial if “the jury has received any evidence, paper or document out of court

not authorized by the court.” Iowa R. Crim. P. 2.24(2)(b)(2). More specifically:

         Based on objective facts elicited from the jurors concerning the
         alleged misconduct, the court may grant a new trial if (1) the acts or
                                       13


       statements complained of exceed tolerable bounds of jury
       deliberation, and (2) the misconduct was calculated to, and with
       reasonable probability did, influence the verdict.

State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998); see also Johnson, 445

N.W.2d at 340 (stating there are three elements: “(1) [E]vidence 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.”); see also State v. Henning, 545 N.W.2d 322, 324 (Iowa 1996) (finding

Henning was entitled to a new trial where extraneous prejudicial information was

improperly brought to the jury’s attention and it was very likely that information

would prejudice the views of a typical juror). In ruling on an allegation of juror

misconduct, the district court enjoys broad discretion. Proctor, 585 N.W.2d at

845. Consequently, we review the court’s ruling for an abuse of discretion, which

will only be found it the discretion was exercised “on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.” State v. Rodriquez, 636

N.W.2d 234, 239 (Iowa 2001). “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.” Id.

       Only evidence relating to conduct which occurred prior to the jury’s

reaching a verdict is relevant to Webster’s argument of juror misconduct.

Cuevas, 288 N.W.2d at 535. Here, that evidence would include the convenience

store incident that occurred during the course of the trial, Juror’s “liking” the
                                         14


victim’s step-mother’s Facebook post, “Give me strength,” and Juror’s less than

candid responses made during the in-chambers questioning.

         Juror engaged in conversation about the trial with other customers and the

store clerk at a convenience store. Under the circumstances as explained by the

Juror, we do not find the incident to be sufficient evidence of misconduct

warranting the grant of a new trial.

         We agree with the trial court that Juror’s “liking” the “Give me strength”

Facebook post was “unnecessary and inappropriate, and inconsistent with the

Court’s admonitions.” Although Juror should have refrained from responding to

the post, we do not find the incident, standing alone, to be sufficient evidence of

misconduct warranting the grant of a new trial.

         Most troubling, and a much closer question, is Juror’s failure to fully

disclose to the court, the parties, and their attorneys, the extent of her

relationship with the victim’s family when questioned in chambers. But, we do

not find the incident, standing alone, to be sufficient evidence of misconduct

warranting the grant of a new trial.

         Juror’s misconduct during the trial cannot be condoned in any way shape

or form.     Nevertheless, and even if we consider her acts of misconduct

collectively, we cannot say the trial court abused its discretion in denying

Webster’s motions for new trial and in arrest of judgment on the juror misconduct

issue, for there is no evidence the misconduct was calculated to, and with

reasonable probability did, influence the verdict. So, we turn to the juror bias

issue.
                                         15


       B. Juror Bias.

       Separate from the issue of juror misconduct is juror bias. While couched

in terms of “juror misconduct,” Webster’s motions for new trial and in arrest of

judgment certainly cover the juror-bias issue. The testimony taken at the hearing

and the argument made thereafter also address the issue of juror bias.4

       A biased juror that sits on a jury, though takes no explicit action, can, by

itself, render the jury’s verdict unfair. See State v. Neuendorf, 509 N.W.2d 743,

746 (Iowa 1993); State v. Bruce, 48 Iowa 530, 535 (1878) (stating that by

excluding “all partial, biased, and prejudiced jurors,” “a true verdict on the

evidence submitted on the trial” will be rendered). “Jury bias, either actual or

apparent, undermines society’s confidence in its judicial system.” 50A C.J.S.

Juries § 369. A defendant is “entitled to be tried by [twelve], not [nine] or even

[ten] impartial and unprejudiced jurors.” Parker v. Gladden, 385 U.S. 363, 366

(1966).

       However, the mere fact a juror knows a witness or other related party is

not a basis for a challenge for cause, without more. See Iowa R. Crim. P. 2.18(5)

(detailing grounds of challenges for cause); State v. Sommer, 86 N.W.2d 115,

124-25 (Iowa 1957); see also Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir.

2011) (“[T]he fact that a juror was acquainted with the victim or her

family . . . would not suggest that the juror would harbor any particular bias

regarding insanity as a criminal defense.”); Ex parte Killingsworth, 82 So. 3d 761,

       4
          Webster’s counsel argued at the hearing: “Under these circumstances, Your
Honor, no legal judgment can be pronounced on the verdict had in this case where there
consists these concerns and these questions regarding a juror’s conduct and her
loyalties, both prior, during, and after the trial.” (Emphasis added.)
                                          16


764 (Ala. 2010) (“The fact that a prospective juror knows the victim or members

of the victim’s family does not automatically disqualify the prospective juror for

cause.”); State v. Burgess, 703 S.E.2d 512, 514 (S.C. Ct. App. 2010) (“[T]he fact

that a juror has some relationship with the victim does not automatically require

the trial judge to remove the juror.”).

       Generally speaking, a guilty verdict will not be overturned in the absence

of some factual showing, and not mere speculation, that a seated juror was not

impartial. See Neuendorf, 509 N.W.2d at 746. “For the purpose of determining

juror prejudice, the relevant question is not what a juror has been exposed to, but

whether the juror holds such a fixed opinion of the merits of the case that he or

she cannot judge impartially the guilt or innocence of the defendant.” Gavin, 360

N.W.2d at 819 (citing Patton v. Yount, 467 U.S. 1025, 1035 (1984)); State v.

Rhodes, 288 N.W. 98, 103 (Iowa 1939) (“A person is qualified to act as a juror

when it is apparent from his entire examination that, notwithstanding his present

knowledge of the facts or any opinion which he may have formed therefrom, he

can try the case fairly and impartially on the evidence alone.”); see also Davis v.

Woodford, 384 F.3d 628, 643 (9th Cir. 2004). “Any claim that the jury that did

serve in the case was not impartial must be based on matters that appear of

record.” Neuendorf, 509 N.W.2d at 747. A claim of juror bias may be “logically

supported by statements of the allegedly biased juror made either before or after

the rendition of the verdict.” Cuevas, 288 N.W.2d at 534.

       Here, Juror believed, and told others in the courthouse, she would not be

selected for the jury panel because of her relationship with the victim’s family.

Juror’s daughter was a very good friend of the victim’s sibling, and Juror’s
                                         17


daughter discussed the case with Juror, to the extent, if not more, that Juror had

formed an opinion of the victim’s family (“they’re good people”), and the victim

(he “was just this kind, sweet, gentle, polite person”), and the defendant (he “was

a mouthy, aggressive . . . verbally—you know, aggressive person”). Juror was

also “friends” with the victim’s mother on Facebook, and the two communicated

on the social network before, during, and after the case.         Even after being

admonished not to discuss the case with others, and in spite of having been

called into a conference to discuss her “friendship” with the victim’s mother, Juror

“Like[d]” the victim’s mother’s comment during the course of the trial.

Immediately after trial, Juror communicated to the victim’s mother on the social-

networking site she “wish[ed the victim’s mother] could have gotten murder in 1st

degree.”

       Perhaps any one of these factors, alone, would not rise to the level of

evidencing a bias on Juror’s part. But taken together, it is impossible to find

anything but an implied bias, if not actual bias, of Juror. Juror clearly disobeyed

the court’s repeated admonitions, and we can have but little faith in her self-

serving declarations she would decide the case based on the evidence alone.

Yet, even if Juror was wholly sincere in her statement that she could be impartial,

it is difficult to accept for it runs counter to human nature, given her relationship

with and feelings about the victim’s family. See State v. Jackson, 203 A.2d 1, 7-8

(N.J. 1964) (finding juror’s friendship with witness compromised the confidence in

the basic fairness of the trial and entitled Jackson to a new trial); see also United

States v. Tucker, 243 F.3d 499, 509 (8th Cir. 2001) (observing “that the idea of

presumed bias is reserved for extreme cases, such as when a juror is a close
                                          18

relative of a party or victim in the case”); Little v. Commonwealth, 422 S.W.3d

238, 242 (Ky. 2013) (“There are occasions when, despite the juror’s answers, a

juror’s ‘familial, financial or situational’ relationship with the parties will be

sufficient to sustain a motion to strike for cause, where such relationships are

likely to ‘subconsciously affect [the juror’s] decision in the case.’”); State v.

Galindo, 774 N.W.2d 190, 222-23 (Neb. 2009) (considering if “the conditions

behind a juror’s familiarity with a party, victim, attorney, or witness are such that

those connections would probably subconsciously affect his or her decision of

the case adversely to the defendants”); Commonwealth. v. Lesko, 15 A.3d 345,

413 (Pa. 2011) (“A challenge for cause should be granted when the prospective

juror has such a close relationship, familial, financial, or situational, with the

parties, counsel, victims, or witnesses that the court will presume a likelihood of

prejudice.”); State v. Bruno, 60 A.3d 610, 622 n.3 (Vt. 2012) (“The law infers bias

when, irrespective of the answers given on voir dire, the prospective juror has

such a close relationship with a participant in the trial, be it a witness, a victim,

counsel, or a party, that the potential juror is presumed unable to be impartial.”).

       Due to her relationship with the victim’s family, evidenced by her own

statements of her relationship with the family, her communication with the

victim’s mother before, during, and after trial, particularly in light of her daughter’s

close relationship with the victim’s family and Juror’s “wish” the victim’s mother

had gotten a first-degree murder conviction, we must conclude Juror could not be

impartial.

       Furthermore, Juror’s own self-assessment of her bias is illuminating. She

herself believed she would not be selected as a juror because of her relationship
                                         19


with the Frisbie family. And her excuse (“I didn’t know how to tell you”) for not

saying something about her relationship with the Frisbie family during voir dire

rings hollow. It is without apparent dispute that another venireman got up during

voir dire and said, “I know the Webster family and I know the Frisbie family, and

therefore I shouldn’t be on the jury.” Moreover, she was less than forthcoming

when questioned in chamber about her relationship with the Frisbie family. All

this points to Juror’s partiality.

       This is not just a case of whether or not Webster shot Frisbie; Webster

admitted he shot Frisbie. The issue is ultimately whether Webster was justified in

his actions, and thus, Webster’s credibility and his rendition of the facts of

Frisbie’s history and his behavior the night in question are directly at issue here.

Webster was entitled to have twelve impartial jurors consider his defense, not

merely eleven, and there is no way we can determine what the outcome would

have been without Juror on the panel who held an opinion about the Frisbie

family and “wish[ed]” the victim’s mother had gotten a first-degree murder verdict.

       Although the following are cases were decided in the context of ineffective

assistance of counsel claims, they are instructive in this case. In Virgil v. Dretke,

the court was confronted with a situation where, due to counsel’s deficient

performance, two people who admitted bias were allowed to sit on the jury. 446

F.3d 598, 612 (5th Cir. 2006).       The court concluded, given the fundamental

nature of seating an impartial jury, the result of Virgil’s trial was unreliable. Id.

The court stated:

       “The jury box is a holy place.” Our criminal justice system is
       predicated on the notion that those accused of criminal offenses
       are innocent until proven guilty and are entitled to a jury of persons
                                          20


       willing and able to consider fairly the evidence presented in order to
       reach a determination of guilt or innocence.

Id. at 613 (quoting United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976)).

       The Fifth Circuit lacked confidence in the adversarial process that resulted

in Virgil’s conviction: “Expressed in Strickland [v. Washington, 466 U.S. 668

(1984)] terms, the deficient performance of counsel denied Virgil an impartial

jury, leaving him with one that could not constitutionally convict, perforce

establishing Strickland prejudice with its focus upon reliability.” Id. at 613-14.

       The Eighth Circuit also held that a defendant whose attorney fails to

attempt to remove biased persons from a jury panel is prejudiced. See Johnson

v. Armontrout, 961 F.2d 748, 755-56 (8th Cir. 1992), called into doubt by United

States v. Johnson, 688 F.3d 494 (8th Cir. 2012). In Johnson, the court rejected

the government’s argument that the seating of biased jurors did not affect the

outcome of the trial, and therefore, there was no showing of prejudice under

Strickland, explaining: “This is an assumption we cannot make.               Trying a

defendant before a biased jury is akin to providing him no trial at all.             It

constitutes a fundamental defect in the trial mechanism itself.” Id. at 755; see

also Hughes v. United States, 258 F.3d 453, 463 (6th Cir. 2001) (holding when a

biased juror is impaneled, prejudice under Strickland is presumed, and a new

trial is required); accord Miller v. Webb, 385 F.3d 666, 672 (6th Cir. 2004).

       Integrity is the cornerstone of our judicial process and that integrity

“depends on the guarantee that every litigant receive a fair trial.”        Tobias v.

Smith, 468 F. Supp 1287, 1289 (W.D.N.Y. 1979); see also, e.g., Powers v. Ohio,

499 U.S. 400, 413 (1991) (“The purpose of the jury system is to impress upon the
                                          21


criminal defendant and the community as a whole that a verdict of conviction or

acquittal is given in accordance with the law by persons who are fair.”); Walker v.

Lockhart, 726 F.2d 1238, 1249 (8th Cir. 1984) (Arnold, J., concurring) (“If due

process means anything, it means a trial before an unbiased judge and jury.”).

Any compromise to this integrity, or even appearance of compromise, is not

acceptable. See, e.g., Teague v. Lane, 489 U.S. 288, 342 (1989) (Brennan, J.,

dissenting) (noting the destruction of “the appearance of justice casts doubt on

the integrity of the judicial process”); In re Murchison, 349 U.S. 133, 136 (1955)

(“Fairness of course requires an absence of actual bias in the trial of cases. But

our system of law has always endeavored to prevent even the probability of

unfairness.”); Offutt v. United States, 348 U.S. 11, 14 (1954) (“[J]ustice must

satisfy the appearance of justice.”).     When a biased juror is impaneled, the

fundamental fairness of the proceedings is called into question. This indelible

taint can only be abated by a new trial. See Hughes, 258 F.3d at 463. “The right

to a jury trial is a bulwark of liberty enshrined in the Constitution.       Because

‘justice must satisfy the appearance of justice,’ courts need to ensure that tainted

jury verdicts—even those reached after long and costly trials—do not stand.”

United States v. Daugerdas, 867 F. Supp. 2d 445, 448 (S.D.N.Y. 2012).

Consequently, we must find the court abused its discretion in denying Webster’s

motion for new trial. Webster is entitled to a new trial with an impartial jury.

       Because we conclude Webster is entitled to a new trial, we need not

address his other issues. For the foregoing reasons, we reverse the district
                                        22


court’s ruling and remand the case for a new trial.

        REVERSED AND REMANDED FOR A NEW TRIAL.

        Vaitheswaran, J., concurs; McDonald, J., concurs in part and dissents in

part.
                                         23


MCDONALD, J. (concurring in part and dissenting in part)

       I concur in the majority’s holding that the district court did not abuse its

discretion in denying Webster’s motion for new trial based on his claim of juror

misconduct. I respectfully dissent from the majority’s finding of juror bias and the

majority’s decision to reverse and remand this matter for new trial. Webster’s

claim of juror bias is not properly presented for appellate review. To the extent

the claim of juror bias is properly presented for appellate review, the claim fails

on the merits. First, Webster waived the claim. Second, controlling federal and

state authority provides the post-trial hearing on Webster’s motion for new trial

that afforded him the opportunity to prove juror bias is all the relief to which

Webster is constitutionally entitled.   Third, and related, there is no basis for

concluding the district court clearly abused its discretion in denying Webster’s

motion for new trial. I would thus affirm the judgment of the district court.

       The issue of juror bias was not presented to or decided by the district

court, and the claim is thus not preserved for our review. See Taft v. Iowa Dist.

Ct., 828 N.W.2d 309, 322 (Iowa 2013) (“We do not reach this argument,

however, because it was not adequately raised and was not decided in the

district court.”); State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (“The rule of

error preservation applies with equal strength to constitutional issues.”). As the

majority makes clear, juror misconduct and juror bias are separate and distinct

claims. Here, Webster’s motion for new trial presented only a claim of juror

misconduct. Paragraph five of the motion states the juror’s actions “amount to

juror misconduct which denied the Defendant a fair trial.” Paragraph six of the

motion states the juror’s failure to fully disclose her relationship with the victim’s
                                          24


family “would be juror misconduct.” In the same paragraph, Webster argued the

juror’s use of information about the family learned outside trial was “juror

misconduct.”    The district court’s ruling characterized Webster’s argument as

follows: “Alleged juror misconduct which denied Defendant a fair trial.”      The

district court then made findings of fact and conclusions of law related only to a

claim of juror misconduct. The district court held “the Court cannot conclude a

new trial is warranted, or that judgment should be arrested, on the basis of jury

misconduct.” The district court further held “[t]here is insufficient evidence of

misconduct to set aside the verdict or grant a new trial.”         While there is

discussion in the ruling regarding juror bias, the discussion is limited to bias as

evidence of misconduct and not a stand-alone claim of juror bias. Nowhere does

the district court address a separate claim of juror bias. Webster did not request

the district court amend or enlarge its ruling to address a stand-alone claim of

juror bias. Accordingly, error is not preserved.

       Even assuming the issue of juror bias was preserved for appellate review,

the claim fails on the merits. First, Webster waived his claim of juror bias by

failing to challenge the juror prior to the jury being sworn:

       It is well settled that known objections, or those which may be
       ascertained, are waived if no challenge is made before the jury is
       sworn. . . . The bias objection may have also been based upon [the
       juror’s] alleged prior knowledge of defendant.         That was
       unquestionably an appropriate subject of inquiry during voir dire,
       and thus could have been ascertained in time for an expedient
       motion. Thus, that basis for the objection may also be considered
       waived.
State v. Cuevas, 288 N.W.2d 525, 534 (Iowa 1980) (citations and internal

quotation marks omitted); see United States v. Johnson, 688 F.3d 494, 501 (8th
                                           25


Cir. 2012) (holding the “failure to object at the time the jury is empaneled

operates as a conclusive waiver if the basis of the objection is known or might

have been known or discovered through the exercise of reasonable diligence”);

State v. Johnson, 445 N.W.2d 337, 340 (Iowa 1989) (holding bias claim was

waived by failing to challenge juror prior to jury being impaneled); Smith v. State,

656 P.2d 277, 282 (“This Court has repeatedly held that it is the appellant’s duty

on voir dire examination to inquire into all matters which are within his knowledge

and which might affect a juror’s qualifications, and if he fails to do so, he waives

any objection on that point even though disqualification is unknown to him until

after the verdict is rendered.”). In this case, the challenged juror did not make

misrepresentations to or otherwise mislead the attorneys or the court regarding

her relationship with the victim’s family during voir dire. Instead, the attorneys

failed to ask questions that would have elicited a response revealing the

relationship. Cuevas and Johnson are controlling, and they hold the failure to

challenge this juror constitutes waiver.

       Second, Webster also waived his right to make a claim of juror bias by

failing to challenge this juror during trial. During the course of trial, information

came to the court’s attention regarding this juror’s relationship with the victim’s

family. The district court allowed voir dire. Although Webster contends the juror

did not provide complete information regarding the nature of her relationship with

the victim’s family during voir dire, the record belies the claim. The juror stated

she had known the victim’s family since the time her daughter was in high school.

She stated she saw some information regarding the shooting on Facebook prior

to trial and may have had conversations with her daughter regarding the shooting
                                           26


prior to trial. Despite knowing the juror had some relationship with the victim’s

family, Webster did not challenge the juror for cause or suggest the juror be

replaced by one of the available alternate jurors. The rationale of Cuevas and

Johnson compel the conclusion that Webster’s failure to challenge this juror for

cause during trial or request an alternate replace her constitutes waiver of his

claim.

         Third, to the extent the claim was not waived, Webster received all the

relief to which he is entitled.     The only federal constitutional relief to which

Webster is entitled is a post-trial hearing affording him the opportunity to prove

actual bias or imputed/implied bias. See Smith v. Phillips, 455 U.S. 209, 215

(1982) (“[T]he remedy for allegations of juror partiality is a hearing in which the

defendant has the opportunity to prove actual bias.”); Id. at 222 (O’Connor, J.,

concurring) (“In certain circumstances, I would also hold that there are some

extreme situations that would justify a finding of implied bias.”). Likewise, the

only state constitutional relief to which Webster is entitled is the same post-trial

hearing described in Smith:

         In the instant case, defendant was given an opportunity to prove
         actual bias on the part of a juror in a hearing before the court, which
         is the appropriate remedy for allegations of juror partiality. Smith v.
         Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 946, 71 L.Ed.2d 78, 85
         (1982). . . . A court cannot presume a jury disregarded its duties
         without evidence in support of such a conclusion. State v. White,
         223 N.W.2d 173, 177 (Iowa 1974). . . .
                 Although no actual prejudice was shown, a court must
         always be concerned that all trials maintain an appearance of
         propriety. Conduct which would give rise to doubt or disrespect or
         which would not meet public approval should be condemned.
         Daniels v. Bloomquist, 258 Iowa 301, 307, 138 N.W.2d 868, 872
         (1965). However, due process does not require a new trial every
         time a juror has been placed in a potentially compromising
         situation.
                                             27

State v. Lampman, 342 N.W.2d 77, 80 (Iowa Ct. App. 1983). In this case, the

district court held a post-trial hearing in which Webster was afforded the

opportunity to prove actual bias or imputed/implied bias. To the extent the claim

of juror bias was presented in the post-trial motion, the district court held that

Webster had not proved bias. Smith and Lampman hold this is all the relief to

which Webster is entitled.5

       Fourth, the standard of review is largely dispositive of Webster’s claim.

The post-trial hearing arose in the context of Webster’s motion for new trial. It

was Webster’s burden to prove that a new trial was warranted. See State v.

Nebinger, 412 N.W.2d 180, 189 (Iowa Ct. App. 1987). The majority concludes

the district court abused its discretion in denying Webster’s motion and that

Webster is entitled to a new trial. I agree in part, and I disagree in part. I agree

with the majority that the district court is vested with broad discretion in ruling on

a motion for new trial asserting juror misconduct or other jury irregularity. See

State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998); State v. Jones, 511 N.W.2d

400, 409 (Iowa Ct. App. 1993); State v. Nebinger, 412 N.W.2d 180, 189 (Iowa Ct.

App. 1987).      I disagree with the majority that the district court abused its

discretion in denying Webster’s motion for new trial.

       “Abuse of discretion means the trial court exercised its discretion on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.”


5
  The majority cites several cases for the proposition that the seating of a partial juror is
a fundamental defect in the trial mechanism constituting Strickland prejudice. I do not
disagree with that proposition. Those cases, however, rest upon a finding that the
challenged juror was, in fact, biased. Here, as discussed below, the district court found
this juror was not biased. Thus, the cases upon which the majority relies are inapposite.
                                         28

See State v. Milom, 744 N.W.2d 117, 122 (Iowa Ct. App. 2007); Nebinger, 412

N.W.2d at 189. Other than disagreement with the district court’s finding that

Webster had not proved bias, the majority does not identify in what manner the

district court’s ruling was untenable or unreasonable. Further, in the context of a

ruling on a motion for new trial, not only is the district court’s decision reviewed

for an abuse of discretion, “[w]e do not interfere with that discretion unless there

is a clear showing of abuse.” State v. Smith, 240 N.W.2d 693, 696 (Iowa 1976);

see State v. Harrington, 349 N.W.2d 758, 761 (Iowa 1984) (“We do not find an

abuse of discretion . . . unless the action of the trial court is clearly unreasonable

under the attendant circumstances.”), abrogated on other grounds by Ryan v.

Arneson, 422 N.W.2d 491, 495 (Iowa 1988). This additional deference is granted

to the district court’s ruling because “[m]otions for new trial are not favored and

should be closely scrutinized and sparingly granted.”        State v. Weaver, 554

N.W.2d 240, 244 (Iowa 1996). On this record, I cannot conclude the district court

abused its discretion, let alone clearly abused its discretion, in denying Webster’s

motion for new trial.

       The nature of the relationship between the juror and the victim’s family, in

and of itself, is not grounds for finding bias. The relationship is not of the type

from which bias is necessarily inferred and that would support a challenge for

cause. See Iowa R. Crim. P. 2.18(5). In fact, the relationship was attenuated—

the juror’s daughter was high school friends with the victim’s half-sister or step-

sister. The victim’s mother was included in the juror’s Facebook social network,

but that fact alone does not indicate a meaningful relationship. See Sluss v.

Commonwealth, 381 S.W. 215, 222 (Ky. 2012) (noting on Facebook “a person
                                         29


can become ‘friends’ with people to whom the person has no actual connection”);

see also id. n.8 (noting the performer Lady Gaga had millions of Facebook

“friends”). Also, the inference of bias that could be drawn from the relationship

between the juror and the victim’s family, if any, is mitigated by the fact the juror

also had a relationship to the defendant’s family—the juror’s parents were good

friends of the defendant’s wife’s family. The juror was also Facebook friends with

one of Webster’s wife’s relatives.

       In addition, jurors “need not be completely ignorant of the issues and

events involved in a trial.” State v. Hoeck, 547 N.W.2d 852, 861 (Iowa Ct. App.

1996) (citation omitted). “It is sufficient if the juror can lay aside his impressions

or opinion and render a verdict based on the evidence presented in court.” State

v. Walters, 426 N.W.2d 136, 139 (Iowa 1988) (citation omitted).            Here, the

challenged juror testified that she could be impartial and render a decision based

on the evidence:

              Q. Is there anything about these relationships and your
       knowledge of these people that, you know, that would cause you
       decide this case on anything other than what you hear in the
       courtroom? A. No.
              Q. Is there anything about any of those relationships that
       would cause you to be biased in favor of one party or the other? A.
       No.
              Q. Have you made up your mind yet? A. No.

The juror’s testimony that she was not biased and could render a verdict based

solely on the evidence is sufficient, in and of itself, to conclude the district court

did not clearly abuse its discretion in denying Webster’s motion for new trial on

the ground of juror bias.
                                         30


       The majority seems to take issue with this juror’s “self-serving

declarations” that she was not biased and that she could decide the case based

solely on the evidence. The majority concludes that it is only human nature that

she would be biased. Perhaps. In Smith, the court recognized that claims of

juror misconduct or juror bias “will frequently turn upon the testimony of the juror

in question.”     Smith, 455 U.S. at 217 n.7.      The Supreme Court specifically

instructed that it is error to assume the juror’s testimony is inherently suspect:

       One may not know or altogether understand the imponderables
       which cause one to think what he thinks, but surely one who is
       trying as an honest man to live up to the sanctity of his oath is well
       qualified to say whether he has an unbiased mind in a certain
       matter.

Id. This juror testified she was not biased. The judge ruling on the motion for

new trial was the same judge who presided over the case, who observed the

juror during voir dire and during the post-trial hearing, and who was in the best

position to make a credibility determination. I would defer to the district court’s

finding in this case.

       Finally, a review of our cases shows that an attenuated relationship—

whether malevolent or benevolent—between a juror and a party or witness in the

case is generally not a ground for retrial where the juror has expressed a

willingness and ability to remain impartial. For example, in State v. Hendrickson,

444 N.W.2d 468, 471-72 (Iowa 1989), a very similar case arising in the context of

a motion for mistrial, our court affirmed the district court’s decision to deny the

motion where it was alleged the juror had animosity toward the defendant’s

companion but testified he could remain impartial. It is worth quoting from that

case at length:
                                  31


        The record shows that jury selection in the present case
began with the court administering the oath to the entire panel of
prospective jurors. During the selection process, counsel for the
State read a list of names of potential witnesses and requested that
the potential jurors, including Powell, signal if a name was familiar
to them or if they knew the person in any way. Among the names
read aloud by counsel was the name Dean Summers. Powell did
not respond.
        Powell did respond, however, to other questions, including
inquiries concerning his past jury experience. After a brief voir dire
concerning Powell’s jury experience, counsel for the State and
Powell concluded as follows:
                 Q: Mr. Powell, do you know of any reason why
        you cannot be fair and impartial? A: No. I got work
        like all the rest of them.
                 Q: Okay. But other than that, do you believe
        you can be fair and impartial? A: Yes.
                 Q: You don't know of any reason why you
        could not? A: No.
        Known objections to prospective jurors, or objections which
may be ascertained, are waived if no challenge is made before the
jury is sworn. Defendant asserts, however, that he has not waived
his objection to Powell. Rather, defendant contends that Powell’s
response (or lack of response) when asked during voir dire whether
he knew Dean Summers was less than candid, and this response
prevented defendant from discovering Powell’s potential bias.
        We believe defendant’s allegations of concealment and
underlying allegations of juror bias and misconduct are without
merit. In denying defendant’s motion for a mistrial, the district court
noted Powell’s responses, made while under oath, that he could be
fair and impartial. The trial court also noted that the alleged
relationship between defendant and Powell was highly attenuated.
        The subject matter of the information withheld by the juror
did not relate to matters constituting a challenge for cause. The
information’s only use to defendant would be to in some way
undermine the juror’s assurances that he knew of no reason why
he could not be impartial.
        It clearly would have reflected more favorably on the juror
had he been more candid in responding to the general question,
and the information might have been of value to defendant in
evaluating his choices for strikes. It does not, however, follow that
defendant was deprived of a fair trial. The general rule is that an
illegal verdict does not result from false information given by a juror
if the information is so insignificant as to indicate only a remote or
speculative influence. 47 Am.Jur.2d Jury § 209, at 797 (1969).
        There is no evidence that juror Powell could not hear and
decide defendant Hendrickson’s case impartially. Reviewing these
                                         32


       circumstances, we agree with the district court that defendant’s
       allegations of bias were speculative and did not warrant a mistrial.
       Although the trial court could have excused juror Powell and used
       an available alternate juror, the court did not abuse its discretion in
       denying defendant’s motions.

Hendrickson, 444 N.W.2d at 472 (citations omitted).

       Likewise, in State v. Kneeskern, 210 N.W.2d 465 (1926), a juror was

challenged based on preexisting knowledge of the case. During voir dire the

juror testified that he had no opinion of the case and knew nothing that would

influence his verdict except what he would hear at trial. Id. at 473. On motion for

new trial, numerous affidavits were filed averring that the challenged juror said on

the opening day of trial that he knew all about the case and knew that defendant

was guilty. Id at 473-74. The juror denied the allegations, and the district court

denied the motion for new trial. The supreme court affirmed the denial of motion

for new trial, concluding the disputed issue “was primarily for the district court.”

Id. at 474. Similarly, in State v. Becker, 140 N.W. 201 (1913), on motion for new

trial there was evidence that a juror made statements evidencing bias

notwithstanding his statement to the contrary during voir dire. The juror denied

the allegations, and the supreme court affirmed the denial of the motion for new

trial concluding the “issue was primarily for the district court, and with its

conclusion we are not inclined to interfere.” Id. at 203.

       I largely agree with the rationale of Hendricksen, Kneeskern, and Becker.

The district court is in the best position to make a credibility determination

regarding juror bias. Here, the district court did not find actual bias or implied

bias. The majority disagrees with that finding, essentially conducting de novo

review. Our case law makes clear that the district court’s finding is entitled to
                                         33

greater weight. See State v. Ebelsheiser, 43 N.W.2d 706, 713 (1950) (stating the

question of whether misconduct occurred or bias was present is a “disputed

question of fact and the trial court’s decision, upon conflicting evidence, is

controlling”). Accordingly, I would affirm the judgment of the district court.
