                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1839
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEROD KURT MILLER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wright County, DeDra L. Schroeder

(mistrial and dismissal motions) and James M. Drew (trial), Judges.



      Defendant appeals his convictions for willful injury causing serious injury

and domestic abuse assault (strangulation) causing bodily injury. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

       Jerod Miller appeals his convictions for willful injury causing serious injury

and domestic abuse assault (strangulation) causing bodily injury. We conclude

the retrial of Miller did not violate his right against double jeopardy because he

requested a mistrial in his first trial. We determine Miller has not shown he received

ineffective assistance on the ground defense counsel did not object to a video.

Finally, we find Miller was not denied his right to a speedy trial. We affirm Miller’s

convictions.

       I.      Background Facts & Proceedings

       Miller and his girlfriend, H.S., resided together in 2018.        Beginning on

February 23, 2018, and continuing into February 24, Miller assaulted H.S. several

times. At one point, Miller bent H.S. backward over the kitchen sink and pressed

his thumbs into her eye sockets, causing H.S. to lose consciousness. H.S.’s

mother took H.S. to the hospital, where H.S. received treatment for her injuries,

including swelling of the brain and an annular tear to her lower lumbar region. She

had bruising all over her body, including her face. H.S. also had injuries along her

neck indicative of strangulation. Dr. Subhash Sahai testified the injuries to H.S.

created a substantial risk of death.

       Miller was charged with willful injury causing serious injury, in violation of

Iowa Code section 708.4(1) (2018), and domestic abuse assault (strangulation)

causing bodily injury, in violation of section 708.2A(5). Miller gave notice of the

defenses of diminished responsibility, self-defense, and excited/agitated delirium.

       Miller was prescribed Depakote for anxiety, which was to be taken twice a

day. The Wright County jail had difficulty refilling Miller’s prescription. Lynn Morris,
                                          3


the assistant jail administrator, emailed Integrated Telehealth Partners (ITP), the

jail’s medical provider, seeking a refill before Miller ran out of his medication. At

4:45 p.m. on July 9, Janet Raines of ITP tried to fax the prescription to the

pharmacy, but the fax did not go through.

       Miller’s jury trial began on July 10.      Miller had his morning dose of

medication that day, but the jail did not have sufficient medication on hand for his

evening dose. At 4:02 p.m., Raines informed the jail she successfully faxed the

prescription to the pharmacy and also called it in to the pharmacy. The jail staff

was busy with other issues, including booking in a new inmate, and did not see the

fax from Raines until 5:30 p.m., when the pharmacy was closed. The jail staff

talked to medical professionals and received information that Miller should be fine

although he missed his evening dose of Depakote.

       On the second day of the trial, July 11, defense counsel informed the court

Miller had not received his medication the night before.         Miller received his

medication at 9:37 a.m. on July 11, so he missed one dose. Defense counsel

stated he was not alleging bad faith by the jail but there was concern because

Miller had not taken a medication usually prescribed for thought and mood

disorders. The court sent the jury home, stating the trial would resume the next

day.

       On July 12, the third day of the trial, the State presented a letter by Dr.

Kovilparambil Anthony to the court, which stated, “If someone who is stable on

Depakote misses just one dose, it can potentially reduce the therapeutic level but

whether it will have any significant effect depends on the person. Most likely it will
                                          4


not cause any major clinical issues as long as the person resumed Depakote

immediately.”

       On the same day, defense counsel stated Miller was not able to proceed

with the trial because he was unable to think clearly and focus. Counsel stated he

did not know “whether it’s going to be three days or two weeks before Mr. Miller is

prepared to proceed.”      Defense counsel requested a mistrial with prejudice,

stating, “I think we’ve shown a lot of our defense already. And I believe that Mr.

Miller would be prejudiced by having to retry this case again.” The State did not

resist the motion for a mistrial but asked that it be without prejudice so Miller could

be retried. The district court granted a mistrial without prejudice.

       On July 24, Miller filed a motion to dismiss, claiming the actions of the jail

staff should be considered State action. Miller asserted a second trial would violate

his right against double jeopardy. He also stated a second trial would violate his

right to a speedy trial, as his original speedy trial deadline had passed.

       The district court ruled as follows:

       The Court finds that the jail made reasonable efforts to maintain a
       prescription for the Defendant and that it was not intentional that
       there was a brief lapse between use of one prescription and the
       renewal of the next.
              The Court does not make a finding of any prosecutorial
       misconduct on the part of the Wright County Jail that could be
       imputed on the State of Iowa or rises to the level that necessitates
       dismissal of this matter.
              Double jeopardy does not apply in this case. The State had
       completed a portion of the State’s case in chief when this matter
       came to the attention of the Court. The Motion for Mistrial was
       granted at the request of counsel.

The court denied Miller’s motion to dismiss.
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       A new criminal trial commenced on August 7. The jury found Miller guilty of

willful injury causing serious injury and domestic abuse assault (strangulation)

causing bodily injury. Miller filed post-trial motions, which again raised the issue

of the mistrial in the earlier trial. The court declined to revisit that issue. Miller was

sentenced to a term of imprisonment not to exceed ten years on the willful injury

charge and five years on the domestic abuse assault charge, to be served

consecutively. Miller appeals.

       II.    Double Jeopardy

       Miller claims he was subjected to double jeopardy when he was tried a

second time after the declaration of a mistrial in his first trial. He states that under

the Fifth Amendment to the United States Constitution, he is protected from

repeated prosecution for the same offense.

       “The Double Jeopardy Clause of the United States Constitution ‘is

applicable to state criminal trials through the Fourteenth Amendment due process

provision.’” State v. Kramer, 760 N.W.2d 190, 194 (Iowa 2009) (citation omitted).

Under the Double Jeopardy Clause, the State cannot make multiple attempts to

convict a defendant for the same offense. Id. On constitutional claims, such as

those of double jeopardy, our review is de novo. Id.

       “The protections of the Double Jeopardy Clause are implicated only when

the accused is actually placed in jeopardy.” Id. “This state of jeopardy attaches

when a jury is empaneled and sworn, or, in a bench trial, when the judge begins

to receive evidence.” Id. Miller was placed in jeopardy when the jury was sworn

in at his first trial. See State v. Lasley, 705 N.W.2d 481, 493 (Iowa 2005) (“In a

trial by jury, jeopardy attaches when the jury is empaneled and sworn.”).
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       “The general rule [is] that the guarantee against double jeopardy does not

bar retrial of a defendant when the prior trial was terminated or reversed on the

behest of the defendant.” State v. Chase, 335 N.W.2d 630, 633 (Iowa 1983); see

also State v. Swartz, 541 N.W.2d 533, 537 (Iowa Ct. App. 1995) (“[T]he Double

Jeopardy Clause does not bar retrial of a defendant after a mistrial declared at the

defendant’s request.”). “Where the defendant, by requesting a mistrial, exercised

his choice in favor of terminating the trial, the Double Jeopardy Clause generally

would not stand in the way of reprosecution.” State v. Hurd, 496 N.W.2d 274, 276–

77 (Iowa Ct. App. 1992).

       An exception to the general rule arises if there is prosecutorial misconduct

“intended to goad” a motion for mistrial by the defendant. Swartz, 541 N.W.2d at

537. A defendant who has made a motion for a mistrial may successfully invoke

double jeopardy only where “the conduct giving rise to the successful motion for a

mistrial was intended to provoke the defendant into moving for a mistrial.” Hurd,

496 N.W.2d at 277 (quoting Oregon v. Kennedy, 456 U.S. 667, 679 (1982)).

       In addition to consent, double jeopardy does not bar the retrial of a

defendant if a mistrial was granted based on “manifest necessity to terminate the

first trial.” State v. Harrison, 578 N.W.2d 234, 238 (Iowa 1998). The term “manifest

necessity[ ] does not mean absolute necessity,” but it does require a “high degree”

of necessity. Id. “Under the doctrine of manifest necessity, a court has a duty to

declare a mistrial when the ends of public justice demand it.” Id. The State has

the burden to establish manifest necessity. Id.

       Although Miller requested a mistrial, he states that because he asked for a

mistrial with prejudice and the court granted a mistrial without prejudice, he did not
                                           7


consent to the declaration of a mistrial. Miller contends a retrial in this situation is

prohibited unless the mistrial was based on manifest necessity, and the State did

not establish manifest necessity for the mistrial. Miller asserts the retrial violated

his right against double jeopardy.

       The record shows defense counsel raised the issue of a mistrial and asked

for a mistrial with prejudice. In the alternative, defense counsel requested that if a

mistrial with prejudice was not granted, “we just continue this with the same jury

panel.” Defense counsel noted the logistical problems with the second alternative,

as it was unknown when Miller might be prepared to proceed with the trial. The

State did not resist the request but asked that if a mistrial was granted, it would be

a mistrial with prejudice. Defense counsel then requested that if a mistrial was

granted, Miller would have the opportunity to address the issues of prejudice or

dismissal of the case later.

       Miller raised an alternative argument, asking for a continuance, but noted

the logistical problems with this scenario, as he did not know how long it would be

before he could continue with the trial. Miller asserted he was unable to continue

with the trial on July 12. Additionally, after the district court stated it was inclined

to grant the motion for mistrial without prejudice, Miller could have withdrawn his

motion for mistrial but did not do so. See Hurd, 496 N.W.2d at 277.

       In ruling on Miller’s motion to dismiss on double jeopardy grounds, the

district court stated, “The Motion for Mistrial was granted at the request of counsel.”

Although Miller did not receive exactly the type of mistrial he requested, we find

the first trial “was terminated or reversed on the behest of the defendant.” See

Chase, 335 N.W.2d at 633.
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        In this appeal, Miller does not claim he requested a mistrial due to

provocation by the prosecution. On this basis, we determine the case does not

come within the exception to the general rule that arises if there is prosecutorial

misconduct “intended to goad” a motion for mistrial by the defendant. See Swartz,

541 N.W.2d at 537.

        We have already determined Miller requested the declaration of a mistrial.

Therefore, we are not required to consider his arguments concerning whether the

mistrial was based on manifest necessity.1 See Harrison, 578 N.W.2d at 238

(finding manifest necessity should be considered when a defendant has not

consented to a mistrial).

        As noted, “[w]here the defendant, by requesting a mistrial, exercised his

choice in favor of terminating the trial, the Double Jeopardy Clause generally would

not stand in the way of reprosecution.” Hurd, 496 N.W.2d at 276–77. We conclude

the retrial of Miller did not violate his right against double jeopardy because he

consented to the declaration of a mistrial in this first trial. See Chase, 335 N.W.2d

at 633.

        III.   Ineffective Assistance

        Miller claims he received ineffective assistance because defense counsel

did not object to the State’s presentation of a video evidencing Miller arguing with




1Even   if we were to consider the doctrine of manifest necessity, we would find the
declaration of a mistrial was demanded by the ends of public justice. See Harrison,
578 N.W.2d at 238. Defense counsel stated, “[Miller’s] in no position to proceed
today,” and the State did not disagree. Defense counsel also noted the difficulty
with continuing the case, stating it could be “three days or two weeks before Mr.
Miller is prepared to proceed.”
                                           9


H.S. about a week prior to the incidents giving rise to the criminal charges.2 Miller

asserts the video was inadmissible under Iowa Rule of Evidence 5.404(b), as

evidence of prior bad acts. He states the evidence was unduly prejudicial because

it reflected adversely on his character.

       We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, a defendant must prove: (1) counsel failed to

perform an essential duty and (2) prejudice resulted to the extent it denied the

defendant a fair trial. Id. A defendant’s failure to prove either element by a

preponderance of the evidence is fatal to a claim of ineffective assistance. See

State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       Iowa Rule of Evidence 5.404(b)(1) provides, “Evidence of a crime, wrong,

or other act is not admissible to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with the character.” The

evidence may be admissible, however, to show “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Iowa R. Evid. 5.404(b)(2).

       In determining whether evidence is admissible under rule 5.404(b), we

consider the following three-step analysis:

       (1) “the evidence must be relevant and material to a legitimate issue
       in the case other than a general propensity to commit wrongful acts”;

2  The State contends that claims of ineffective assistance of counsel may no
longer be considered in a direct appeal, based on amended section 814.7 (2020).
The Iowa Supreme Court has determined this statutory provision became effective
on July 1, 2019, and does not apply retroactively. State v. Macke, 933 N.W.2d
226, 231 (Iowa 2019). The recent changes to section 814.7 do not apply in this
appeal. Supreme Court precedent binds us.
                                         10


       (2) “there must be clear proof the individual against whom the
       evidence is offered committed the bad act or crime”; and (3) if the
       first two prongs are satisfied, “the court must then decide if [the
       evidence’s] probative value is substantially outweighed by the
       danger of unfair prejudice to the defendant.”

State v. Richards, 879 N.W.2d 140, 145 (Iowa 2016) (quoting State v. Sullivan,

679 N.W.2d 19, 25 (Iowa 2004)).

       The video was relevant to the issues of motive and intent because it showed

Miller was angry with H.S. Miller was in a custody dispute with his ex-wife and she

wanted to use evidence of his relationship with H.S. against him, which caused

Miller to get angry with H.S. Miller claimed he was acting in self-defense and H.S.

was the aggressor. The video was relevant to show Miller attacked H.S. because

he was angry with her, not because he was acting in self-defense. Miller did not

dispute he was in the video.3

       We find the first two elements were met and turn to the issue of whether the

probative value of the evidence is outweighed by the danger of unfair prejudice.

See id.    “Unfair prejudice arises when the evidence ‘appeals to the jury’s

sympathies, arouses its sense of horror, provokes its instinct to punish, or . . . may

cause a jury to base its decision on something other than the established

propositions in the case.’” State v. Wilson, 878 N.W.2d 203, 216 (Iowa 2016)

(citation omitted). One factor we may consider in determining whether evidence is

unfairly prejudicial is to compare the “enormity of the charged and uncharged

crimes.” State v. Larsen, 512 N.W.2d 803, 808 (Iowa Ct. App. 1993). In the video,

Miller yelled and swore at H.S., which we find was not unduly prejudicial in


3This exhibit is referred to as a video throughout the record. The exhibit contains
only audio of the defendant’s voice.
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comparison to the crime alleged in this case. The State presented evidence to

show H.S. was severely beaten and had potentially life-threatening injuries.

       We find no breach in failing to object to the admission of video.            The

probative value of the evidence was not outweighed by the danger of unfair

prejudice. See State v. Duncan, 710 N.W.2d 34, 40 (Iowa 2006). Defense counsel

does not breach an essential duty by failing to file a meritless motion. See State

v. Ross, 845 N.W.2d 692, 701 (Iowa 2014).

       Furthermore, even if defense counsel had breached an essential duty, the

evidence does not show Miller was prejudiced by counsel’s performance.

“[P]rejudice exists when ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’”

Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001) (citation omitted). Miller beat

H.S. several times, causing her injuries severe enough to create a substantial risk

of death. It is not reasonably probable that the exclusion of the video would have

led to a different result in the criminal trial. We find Miller has not shown he

received ineffective assistance of counsel.

       IV.    Pro Se Brief

       On May 17, 2019, Miller filed a pro se supplemental brief. The State filed a

motion to strike the pro se brief, claiming it did not comply with the rules of appellate

procedure and could not be considered under a recent amendment to section

814.6A(1). The Iowa Supreme Court determined the motion to strike should be

submitted with the appeal.

       Section 814.6A(1) was amended effective July 1, 2019. See Iowa Code

§ 3.7(1); State v. Draine, 936 N.W.2d 205, 206 (Iowa 2019). We have determined
                                             12


a defendant’s pro se brief that is filed before the effective date of the legislation

may be considered. See State v. Smith, No. 18-2052, 2020 WL 376554, at *4 n.1

(Iowa Ct. App. Jan. 23, 2020); State v. Syperda, No. 18-1471, 2019 WL 6893791,

at *12 (Iowa Ct. App. Dec. 18, 2019). Miller’s pro se brief was filed before July 1,

2019, and therefore consideration of the brief is not barred by section 814.6A(1).

           Although Miller’s pro se supplemental brief does not follow all of the rules

of appellate procedure for briefing found in Iowa Rule of Appellate Procedure

6.901, we will consider the merits of the issues he raises. See In re Estate of

DeTar, 572 N.W.2d 178, 181 (Iowa Ct. App. 1997) (noting that “as a matter of

grace” we may consider a pro se brief that does not fully comply with the appellate

rules if “we can do so without assuming a partisan rule and undertaking [a party’s]

research and advocacy”).

           Miller claims his right to a speedy trial was violated.4 His claim, however, is

based on the assertion the district court improperly granted a mistrial in this case.

He contends the court erred by granting a mistrial and because of this his speedy

trial rights continued to run. He states the speedy trial deadline expired before the

retrial.

           We have already determined the district court properly granted a mistrial in

his case. The speedy trial deadline resets at the time a mistrial is declared, giving

the State ninety days to try a defendant after the mistrial declaration. State v.

Zaehringer, 306 N.W.2d 792, 794–95 (Iowa 1981); see also State v. Fisher, 351



4 Miller also claims the district court erred by denying his motion to dismiss. We
have considered the mistrial and double jeopardy issues and do not discuss them
further.
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N.W.2d 798, 802 (Iowa 1984) (noting the ninety-day period for trying a case would

begin with an order for mistrial). The court declared a mistrial on July 12 and the

second trial began on August 7, well within the ninety-day period. We find Miller

was not denied his right to a speedy trial.

       We affirm Miller’s convictions for willful injury causing serious injury and

domestic abuse assault (strangulation) causing bodily injury.

       AFFIRMED.
