STATE OF IOWA, Plaintiff-Appellee, vs. EDWARD ALLEN BOHNSACK, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-913 / 05-2005
Filed December 28, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
EDWARD ALLEN BOHNSACK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Fredrick E.
Breen, District Associate Judge.
Defendant appeals from his convictions for third-degree burglary, as an
habitual offender, and possession of burglary tools. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney
General, Timothy N. Schott, County Attorney, and Ricki Osborn, Assistant
County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MAHAN, P.J.
Edward Bohnsack appeals from his convictions for third-degree burglary,
as an habitual offender, and possession of burglary tools. He argues the district
court erred in denying his motion to excuse a juror for cause and in denying his
motions for mistrial and for new trial based on jury misconduct. He also raises a
claim of ineffective assistance of counsel. We affirm.
I. Background Facts and Proceedings
The morning of trial, Barb Besch, defense counsel’s secretary, overheard
a conversation about Bohnsack between three potential jurors who had noticed
Bohnsack napping during jury selection. A potential male juror commented to
two female jurors, later identified as Dawn Donnelly and Kathleen Anderson, “I
sure would be paying a lot more attention if I was in his [Bohnsack’s] shoes.”
The male juror was not identified. According to Besch, one of the two women,
whom she could not identify, agreed with the male juror’s comments. Besch
believed that potential juror Christine Bloom, who was sitting next to Donnelly,
also probably heard the conversation.
After Besch informed defense counsel of the conversation, and counsel in
turn informed the district court, Kathleen Anderson was removed for cause.
Dawn Donnelly was questioned about the conversation and her ability to be
impartial. Donnelly admitted she and two other jurors spoke about Bohnsack’s
demeanor and “the fact that he was napping.” Donnelly admitted that “if it was
me sitting up there, I wouldn’t be napping.” She believed, however, she could be
a fair and impartial juror and explained that she presumed Bohnsack to be
innocent.
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Bohnsack’s counsel moved to excuse juror Donnelly for cause.
The
district court denied the motion:
I don’t see any cause for excusing this panelist. She accepts the
presumption of the defendant’s innocence in a way the last panelist
who was excused did not. She said she can be fair and impartial.
She has views about people who commit thefts, that they should be
punished if convicted. That doesn’t mean she’s made a judgment
about this gentleman’s guilt or innocence.
Following the denial of his motion to excuse juror Donnelly for cause,
Bohnsack’s counsel moved for a mistrial based on the conversation about
Bohnsack sleeping during voir dire. The court denied the motion but allowed
Bohnsack to continue examining potential jurors about the conversation.
Christine Bloom testified she heard the conversation between jurors
Donnelly and Anderson, but did not participate in it.
From where she was
seated, Bloom could not tell if Bohnsack was sleeping.
During the morning
break, Bloom heard potential juror Stephanie Vote ask a group of people outside
smoking if anyone had seen Bohnsack falling asleep. (The district court had
dismissed Vote prior to Bloom’s testimony.) Bloom testified the conversations
she overheard had not affected her opinion about Bohnsack’s guilt or innocence.
Juror Brian Fishel testified the only time he heard mention of Bohnsack’s
demeanor was during counsel’s examination of potential juror Vote. He had not
been paying attention to the other jurors, nor did he participate in the
conversation outside during the break.
Juror Kari Johnson testified she had not heard comments about
Bohnsack’s demeanor, other than during counsel’s examination of potential juror
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Vote. She had not witnessed Bohnsack acting sleepy or acting like he was not
paying attention.
Juror
Thomas
Flagg
recalled
Vote’s
comment
during
counsel’s
examination of her, but testified he had not heard similar comments about
Bohnsack’s demeanor from other jurors. He had not seen Bohnsack sleeping.
Bohnsack renewed his motion for a mistrial following the examination of
the jurors. The district court again denied the motion. It noted that defense
counsel had
scrupulously gone through all of the panelists . . . and secured their
statement that they can be fair and impartial despite the fact that
they, apparently, heard Ms. Vote voice her concern early on in the
proceedings. So her statements at that time are not grounds for a
mistrial.
....
I think that the whole thrust of the evidence is that we’ve excused
one juror [Anderson] who—for reasons really not related to the
statements in question but because she had kind of a–just a fiftyfifty impression of the defendant’s guilt or innocence, which is more
opinion than she has any right to have at this time and she could
not accept the presumption of innocence even if she was instructed
to do so. None of the other jurors have declared that to be any
problem or concern, that is, panelists that we examined. We’re still
in the process [of] examining the jury. . . . And so the motion for
mistrial is overruled.
The jury convicted Bohnsack of third-degree burglary and possession of
burglar’s tools. Bohnsack stipulated to his prior convictions and admitted his
status as an habitual offender. The district court denied Bohnsack’s motion for a
new trial and sentenced him to fifteen-year and two-year indeterminate terms of
incarceration on the two convictions, to be served consecutively.
appeals.
Bohnsack
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II. Standard of Review
We review the district court’s denial of Bohnsack’s challenge of juror
Donnelly for cause for an abuse of discretion. State v. Neuendorf, 509 N.W.2d
743, 746 (Iowa 1993). Similarly, our review of the court’s denial of Bohnsack’s
motions for mistrial and new trial is for an abuse of discretion. State v. Atley, 564
N.W.2d 817, 821 (Iowa 1997); State v. Lawrence, 559 N.W.2d 292, 294 (Iowa Ct.
App. 1996).
III. Discussion
Challenge for Cause. The test applied in ruling on challenges for cause
under Iowa Rule of Criminal Procedure 2.18(5)(k) is “whether the juror holds
such a fixed opinion that he or she cannot judge impartially the guilt or innocence
of the defendant.”
Neuendorf, 509 N.W.2d at 746 (citation omitted).
Juror
Donnelly was questioned about her ability to be fair and impartial. Based on her
responses, the district court found, “She accepts the presumption of the
defendant’s innocence . . . .”
The record shows the district court properly
exercised its discretion in denying Bohnsack’s challenge for cause.
Motion for Mistrial. We assume without deciding a motion for mistrial
was proper in this case. Cf. Wilkins v. State, 583 S.E.2d 905, 907 (Ga. Ct. App.
2003) (motion for mistrial was premature where alleged juror misconduct
occurred before the jury had been sworn or trial had begun; proper motion was
“for the removal and replacement of the individual jurors”). Bohnsack argues that
mistrial was appropriate because “at least one juror, and perhaps more due to
jury contamination, faced ineligibility due to a propensity to use the pretrial
observations in question as a reason to find defendant guilty.”
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In light of the statements elicited from potential jurors, as outlined above,
the district court acted within its discretion in denying the motion for mistrial. The
two potential jurors who expressed an opinion of the defendant not based upon
objective facts were excused. The remainder of the jurors either did not hear or
were not affected by other jurors’ comments or Bohnsack’s actions. The district
court acted well within its discretion in denying the motion for mistrial.
Motion for New Trial. Bohnsack’s brief includes no argument related to
the district court’s alleged failure to grant a new trial based on juror misconduct.
Accordingly, he has waived this issue on appeal, and we need not address it.
Iowa R. App. P. 6.14(1)(c).
IV. Ineffective Assistance of Counsel
Other than citing case law relevant to ineffective assistance of counsel
claims, Bohnsack offers no specifics as to counsel’s errors or omissions or how
he was prejudiced thereby. Therefore, we are left with nothing to review. Id.
AFFIRMED.
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