Opinion
No. 2-011 / 01-0371.
Filed May 15, 2002.
Appeal from the Iowa District Court for Story County, WILLIAM J. PATTINSON, Judge.
The State appeals from the district court's grant of a new trial, contending counsel failed to preserve error on the propriety of a jury instruction. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General and Timothy Meals, Assistant County Attorney, for appellant.
Alfredo Parrish, of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles Gribble, L.L.P., Des Moines, and Leonard Peel, pro se, Dallas, Texas, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
The district court granted Leonard Peel a new trial after concluding it had erroneously instructed the jury on the effect of Peel's decision not to testify. The State appealed. We conclude the district court should not have addressed the propriety of the jury instruction because Peel did not raise a timely objection to it. Accordingly, we reverse and remand.
I. Background Facts and Proceedings
The State charged Peel with second-degree robbery in connection with the theft of $180 from a Wal-Mart store in Ames. See Iowa Code § 711.1(1), (2) and 711.3 (1999). At trial, Peel elected not to testify. The court prepared jury instructions, gave trial counsel copies, and had an unreported conference on the instructions. The court then had a brief, on the record discussion with counsel concerning the instructions, before they were read to the jury. The jury found Peel guilty.
Several days after the verdict was rendered, the district court expressed concern that it had inappropriately instructed the jury concerning Peel's decision not to testify. The instruction at issue, Instruction 5, stated:
Mr. Peel did not testify in this case and he was not required to do so. Accordingly, you may not infer that Mr. Peel is guilty because he chose not to testify. The burden of proof remains upon the State to prove Mr. Peel's guilt.
Noting that, in State v. Kimball, 176 N.W.2d 864, 869 (Iowa 1970), our highest court prohibited use of this instruction in the absence of a request from defense counsel, the district court convened a hearing to determine whether Peel's attorney had in fact made such a request. At the hearing, defense counsel said he did not ask for the instruction. Additionally, he and the prosecutors stated they could not recall any discussion about it during the unrecorded instruction conference. At the conclusion of the hearing, the district court said to defense counsel, "you'll need to discuss with your client what you should do now with respect to post-trial motions."
Soon after, Peel filed a motion for new trial, alleging "it was error for the court to submit Instruction No. 5 without first having obtained the permission of the Defendant to submit that instruction." The prosecutor resisted in part on the ground that Peel's counsel had never objected to the instruction and, accordingly, had not preserved error. The district court elected to bypass any error preservation problem, reasoning that the issue would in any event be raised in a postconviction relief proceeding. The court ruled that, in light of our highest court's holding in Kimball, the instruction should not have been given. The court granted Peel a new trial.
On appeal, the State reiterates the error preservation argument raised by the prosecutor and also argues that Kimball is no longer viable. We find it unnecessary to address the substance of the court's ruling, as we agree with the State that error was not preserved.
II. Error Preservation
A motion for new trial is not a substitute for an objection at the time of the offending conduct. State v. Romeo, 542 N.W.2d 543, 552-53 (Iowa 1996) (noting defense counsel failed to preserve error when he did not object to prosecutor's allegedly improper remarks); State v. Massick, 511 N.W.2d 384, 388 (Iowa 1994) (counsel's failure to object or move for mistrial before jury returned verdict amounted to waiver of error).
Following the informal unrecorded discussion on the proposed jury instructions, the district court gave defense counsel a chance to formally object to the instructions on the record. Peel's attorney only objected to an impeachment instruction. After noting that objection, defense counsel stated, "[b]ut other than that, I have no other additions, corrections or deletions." The court proceeded to read the instructions to the jury.
Defense counsel's failure to object to the challenged jury instruction before it was read prevented the district court from later considering the issue in response to his motion for new trial and prevents us from considering the issue on appeal. State v. Morrison, 368 N.W.2d 173, 175 (Iowa 1985) (refusing to consider the identical challenge raised here when defendant did not object to the instruction on the basis of the Kimball rule). See also State v. Jewett, 219 N.W.2d 559, 560 (Iowa 1974) (stating "it is sound law and logic that a party may not sit by and permit the court to commit inadvertent error without protest, and then complain for the first time in his motion for a new trial or in the appellate court"); Cf. State v. Hartung, 239 Iowa 414, 425-6, 30 N.W.2d 497, 498 (1948) (although statute then in effect permitted counsel to wait until motion for new trial to raise objections to instructions, defense counsel waived error by stating on the record that he had no objection to the instructions). Contrast State v. Lawrence, 167 N.W.2d 912, 919-20 (Iowa 1969) (holding a post-trial objection raised only after the court apprised the parties of the problems was, nevertheless, timely). Accordingly, we reverse the district court's grant of Peel's motion for new trial and remand to the district court for reinstatement of the jury verdict.
REVERSED AND REMANDED.