State v. Gathercole

877 N.W.2d 421

STATE of Iowa, Appellee,

v.Theodore Ray GATHERCOLE II, Appellant.

No. 14–0816.

Supreme Court of Iowa.

March 25, 2016.

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik and Mary A. Triick, Assistant Attorneys General, Jerry Vander Sanden, County Attorney, and Nicholas Maybanks, Assistant County Attorney, for appellee.

HECHT, Justice.

Midtrial publicity is not a new phenomenon. See State v. Walton, 92 Iowa 455, 458–59, 61 N.W. 179, 180 (1894) (concluding when jurors viewed newspaper editorials about a criminal trial during their deliberations, "they meddled and interfered with the order of the court in a very reprehensible and unseemly manner"). But "in this day and age, our jurors are part of the new electronic world." State v. Webster, 865 N.W.2d 223, 239 (Iowa 2015). In this case, we apply precedent governing print materials to that electronic world and determine whether a factually inaccurate news story published on a local paper's website during a trial raised "serious questions of possible prejudice" requiring the district court judge to poll the jury about possible exposure to it. State v. Bigley, 202 N.W.2d 56, 58 (Iowa 1972).

I. Background Facts and Proceedings.

On June 15, 2013, Frederick Rottmiller was a maintenance man at a Cedar Rapids apartment building. Rottmiller, a septuagenarian, was called to an apartment occupied by Theodore Gathercole and his ex-wife to inspect a water leak. While there, Rottmiller loaned Gathercole twenty dollars. Hours later, after midnight, Gathercole knocked on Rottmiller's apartment door and asked for more money, claiming he wished to visit someone in the hospital and needed the funds for a taxi fare. Rottmiller refused to give Gathercole more money but offered to drive him to the hospital. Gathercole accepted the ride offer and walked away from Rottmiller's door while Rottmiller retrieved his shoes and car keys.

Rottmiller soon walked to the parking lot where his truck was parked. As he approached the truck to unlock the door, Rottmiller noticed someone standing near it. Suddenly, Rottmiller was stabbed with a knife and he collapsed to the ground. Declaring repeatedly, "I'm going to prison for this," the assailant continued the attack as Rottmiller lay on his back. The assailant fled without taking Rottmiller's wallet, cell phone, or any other property.

Later, a passerby discovered Rottmiller on the ground. The passerby summoned a taxi and prompted the driver to call 911. Police and paramedics responded to the call, and remarkably, Rottmiller survived the attack. Physicians surgically removed several inches of Rottmiller's intestine and treated other injuries including a chipped vertebra and spinal cord damage. Although he survived the attack, Rottmiller lost vision in one eye and was unable to walk for several months after the incident.

Rottmiller told an officer responding to the 911 call that "a shorter white male" had assaulted him, that he recognized the assailant, and that the assailant "lives with a female named Lorrie." Gathercole's ex-wife is named Lorrie, although Rottmiller did not expressly name Gathercole as the assailant at the time. Rottmiller later selected Gathercole from a photographic lineup of six possible suspects.

Police arrested Gathercole and charged him with attempted murder, robbery, and willful injury. Trial began on February 3, 2014. Jury selection consumed most of the first day. After empaneling the jury, the court recessed for the day and recited a lengthy jury admonition that stated, in pertinent part,

Prior to recessing, I'm required to admonish you. While I will give this admonition to you at this time, I will not go through the entire admonition each time we recess but will merely state that you must remember this admonition which has been previously given to you, therefore, please pay particular attention to it at this time.

...

You must avoid reading ..., listening to, or watching news accounts of this trial for sometimes such accounts are based on incomplete information or contain matters which would not be admissible in court and could unduly influence your ultimate decision.

....

As I said earlier, each time we recess I will not give this admonition in detail, merely I will just state that you must remember the admonition as it was given to you earlier.

The parties presented opening statements the next morning and began calling witnesses.

The State's principal witness, Rottmiller, testified unequivocally that Gathercole was the assailant. Gathercole's defense theory disputed identity, challenged Rottmiller's perception and memory, and emphasized the State produced no physical evidence placing Gathercole at the scene of the crime. The State acknowledged there was no physical evidence placing Gathercole at the crime scene but contended Rottmiller's unequivocal identification of Gathercole supported a finding of Gathercole's guilt beyond a reasonable doubt.

After the first day of testimony (February 4), the court reminded the jury to "stay away from any media accounts that there may be regarding this case." After the second day of testimony (February 5), the court similarly reminded the jury to "stay away from any media accounts of this case, and be mindful of all the rest of the admonition I gave to you."

On February 6, the parties presented closing statements. Again, the State focused on Rottmiller's testimony identifying Gathercole as the perpetrator. Gathercole's closing statement emphasized the lack of physical evidence connecting him to the crime scene and the possibility Rottmiller's perception and memory were impaired by trauma. The district court then instructed the jury and deliberations began.

As deliberations continued into the morning of February 7, Gathercole moved for a mistrial or, alternatively, a poll of the jurors about their possible exposure to a factually inaccurate media account of the case. While browsing the website of the Cedar Rapids Gazette (the Gazette) that morning, defense counsel had discovered an article about this case published on or last modified in the afternoon of February 5. The article's headline was "Police try to explain lack of crime scene evidence in a stabbing." The second paragraph of the article stated crime scene investigators had matched a palm print found on Rottmiller's truck to Gathercole. Additionally, a sentence near the end of the article stated the palm print was "the only piece of physical evidence that ties Gathercole to the scene." Both sentences were factually incorrect. As opening statements, trial testimony, and closing arguments established, the palm print actually matched Rottmiller—which was unsurprising because he owned the truck.

The record does not reveal how many page views the article had accrued prior to Gathercole's motion, how prominently the Gazette website featured it, or whether an internet reader could access the entire story without specifically clicking on the headline. The record also does not disclose whether the article appeared in the print version of the Gazette—and if it did, the specific section and page where the article appeared. Furthermore, the record does not tell us whether the article or its content was syndicated for distribution or actually distributed through other media platforms or publications that might have wider readership or exposure than the Gazette alone. However, the printed copy of the web page version of the article introduced into evidence shows some modest social media interaction had occurred. Three unidentified website visitors had "liked" the article on Facebook, two had shared a link to the article on Twitter, and three had otherwise shared the article via email or social media.

Gathercole asserted the Gazette article was prejudicial because it misstated the evidence and struck at the heart of his defense: The State presented no physical evidence connecting him to the crime scene. Gathercole acknowledged the court had admonished the jury to avoid media reports but expressed concern that any juror who read or heard about the misinformation in the article might have become confused and believed they either misheard or misunderstood the evidence presented in court. He further asserted that if one or more jurors read the article, believed it, and relied on it during deliberations, such conduct deprived him of his right to a fair trial and required a mistrial. In the alternative, Gathercole asserted the possible prejudice from the article at least required a jury poll probing whether any jurors had seen the article or read the factual misstatement.

The State resisted both motions, contending there was no reason to suspect any juror had violated the court's clear admonition to avoid media reports. See Bigley, 202 N.W.2d at 57 (concluding the defendant received a fair trial in part because "[t]here was no reason ... to believe jurors had violated [the] court's admonition"). The State contended the court should trust that jurors followed the court's instructions and serial admonitions. The State further cautioned that it believed the court should be very reluctant to interrupt the jury's ongoing deliberations.

The district court denied the motion for mistrial. The court agreed the article was factually inaccurate but credited several circumstances tending to prove the article had not prejudiced Gathercole. First, while the article misstated the evidence, it did not contain facts that were otherwise inadmissible—for example, evidence excluded under Iowa Rule of Evidence 5.404(b ). Second, the court noted, the factual misstatement appeared in the article's text, not as part of the headline. Third, no juror had approached any court staff to reveal he or she had seen or read the article. Fourth, the court had issued a stern admonition on the first day of trial and repeatedly referred to it before each day's recess—including specific...