IN THE COURT OF APPEALS OF IOWA
No. 14-0816 Filed September 10, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
THEODORE RAY GATHERCOLE II, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Stephen B. Jackson
Jr., Judge.
Defendant appeals his convictions for attempted murder and robbery in
the first degree. AFFIRMED.
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.
Heard by Tabor, P.J., and Bower and McDonald, JJ. 2
MCDONALD, J.
Theodore Gathercole appeals his convictions for attempted murder, in
violation of Iowa Code section 707.11 (2011), and robbery in the first degree, in
violation of sections 711.1 and 711.2. On appeal, he argues there was
insufficient evidence to establish he had the specific intent to cause death, an
element of attempted murder, and there was insufficient evidence he had the
specific intent to commit a theft, an element of robbery. The defendant also
contends his right to a fair trial was violated when the district court refused to
interrupt the jury’s deliberations and poll the jury after the defendant’s counsel
discovered a news item published on a website containing information not in the
record.
I.
On June 16, 2013, Gathercole was at his ex-wife’s apartment in Cedar
Rapids. Frederick Rottmiller, a maintenance worker for the apartment complex,
came to look at a water leak in the ex-wife’s apartment. Rottmiller and
Gathercole were familiar with each other because Gathercole resided on and off
at his ex-wife’s apartment. Gathercole asked Rottmiller to lend him money, and
Rottmiller gave Gathercole twenty dollars. They then parted ways.
Later that evening, Gathercole went to Rottmiller’s apartment and asked to
borrow more money. Gathercole explained he needed transportation to visit
someone in the hospital. Rottmiller declined to loan him the money, but
Rottmiller did offer Gathercole a ride to the hospital. Rottmiller asked Gathercole
to meet him outside by his truck, and Gathercole agreed. 3
A few minutes later, Rottmiller left his apartment and proceeded outside to
meet Gathercole. Rottmiller owned two pickup trucks, which were parked next to
each other in the parking lot. As Rottmiller approached the trucks, he saw
someone he believed to be Gathercole standing between the passenger-side
door of one truck and the driver-side door of the other truck. Rottmiller went
between the two trucks to unlock the passenger-side door. As Rottmiller was
getting out the key to unlock the door, he was stabbed in the belly. A struggle
ensued, during which the assailant said, “I know I’m going to prison for this.”
Rottmiller sustained further injuries during the struggle. The assailant fled the
scene and left Rottmiller on the ground bleeding underneath the truck. At trial,
Rottmiller recalled the assailant making a statement that he was going to call
911. The assailant never called 911. Later, a passerby observed Rottmiller’s
legs protruding from under the pickup truck. The passerby attempted to assist
Rottmiller, but Rottmiller was unable to move. The passerby flagged down a taxi
driver, who called 911. While they waited for emergency assistance, the taxi
driver asked Rottmiller what happened. Rottmiler said he was attacked and it
was the “guy over there . . . in that apartment, that building.”
Paramedics arrived at the scene and transported Rottmiller to the hospital.
The doctors found Rottmiller had suffered serious injuries, including multiple stab
wounds: one to the left eye, one to the neck, and one to the abdomen near the
“belly button.” His condition was listed as severe to critical, and his injuries were
considered to present a substantial risk of death. 4
Based on Rottmiller’s identification, the police arrested Gathercole. The
State charged him with attempted murder, robbery in the first degree, and willful
injury. Trial commenced on February 3, 2014, and Gathercole’s defense was
twofold. First, he attacked the evidence of identity, arguing to the jury that it was
dark outside and no physical evidence connected him to the crime. Second, he
attacked the evidence of intent, arguing there was insufficient evidence to
establish the assailant had the intent to kill or commit a theft.
The case was submitted to the jury on February 6, 2014. While the jury
was deliberating, defense counsel brought to the attention of the district court a
news item published or last updated on February 5 on the Cedar Rapids
Gazette’s website. The news item stated the police had found a palm print
matching Gathercole’s palm print at the crime scene. The statement was
incorrect. A palm print was found on the side of one of the trucks, but the palm
print matched Rottmiller. Defense counsel moved for a mistrial or, in the
alternative, requested the district court poll the jury to determine if any of the
jurors were aware of the news item. The district court denied the motion for
mistrial and denied the request to interrupt deliberations in the absence of
counsel finding authority in support of the request. Defense counsel never
presented authority in support of the request to poll the jury and never raised the
issue again.
The jury found Gathercole guilty on all three counts. The district court
concluded count three, willful injury, merged into count two, robbery in the first
degree, and did not convict or sentence Gathercole on count three. The district 5
court sentenced Gathercole to a term of incarceration not to exceed twenty-five
years. Gathercole timely filed this appeal.
II.
We review a challenge to the sufficiency of evidence for correction of
errors at law. See State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014). We
“consider all of the record evidence viewed in the light most favorable to the
State, including all reasonable inferences that may be fairly drawn from the
evidence. We will uphold a verdict if substantial record evidence supports it.” Id.
at 439-40 (citation omitted) (internal quotation marks omitted). “If a rational trier
of fact could conceivably find the defendant guilty beyond a reasonable doubt,
the evidence is substantial.” State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).
But “[e]vidence that raises only ‘suspicion, speculation, or conjecture’ is not
substantial evidence.” Id. (quoting State v. Barnes, 204 N.W.2d 827, 829 (Iowa
1972)).
A.
Gathercole contends there was insufficient evidence to establish he had
the specific intent to cause Rottmiller’s death, an element of attempt to commit
murder. See Iowa Code § 707.11(1) (defining attempt to commit murder).1
1 He also argues there was insufficient evidence to establish he had the specific intent to cause serious injury, an element of willful injury. See Iowa Code § 708.4 (defining willful injury). Serious injury means “a bodily injury which creates a substantial risk of death which causes serious permanent disfigurement or extended loss or impairment of the function of any bodily part or organ.” Id. § 702.18. Because the district court merged the conviction and sentence for willful injury into the robbery conviction, and because we conclude there is sufficient evidence to support the robbery conviction, we need not address the challenge to serious injury separately. That being said, we conclude the 6
Generally, the defendant’s specific intent is incapable of direct proof. See State
v. Clarke, 475 N.W.2d 193, 197 (Iowa 1991). Instead, intent must be inferred
from the surrounding facts. Id. When viewed in the light most favorable to the
State, we conclude there is sufficient evidence establishing the intent to cause
death.
Use of a deadly weapon supports an inference the assailant acted with the
intent to commit murder. See State v. Smith, 242 N.W.2d 320, 326 (Iowa 1976)
(concluding “malice aforethought may be inferred from defendant’s use of . . . a
deadly weapon” in a second-degree-murder prosecution); State v. Hepner, 161
N.W.2d 714, 720 (Iowa 1968) (stating that use of a deadly weapon supports
inference of intent to commit murder necessary for a conviction of assault with
intent to commit murder). Here, the evidence showed the defendant stabbed
Rottmiller with a blade six to eight inches in length. The length of the blade and
its use supports an inference the defendant intended to cause Rottmiller’s death.
Gathercole’s intent to kill may also be inferred from the nature and severity
of the injuries sustained. See State v. Poyner, 306 N.W.2d 716, 718 (Iowa 1981)
(stating that multiple stab wounds supply strong evidence of malice and intent to
kill); State v. Bell, 223 N.W.2d 181, 184 (Iowa 1974) (“[T]he extent of injury may
be taken into consideration in determining defendants’ intent.”). Gathercole
stabbed the victim several times. Each injury was severe and potentially capable
of causing death. Gathercole stabbed Rottmiller in the abdomen. The wound
was deep enough that it perforated Rottmiller’s intestines. He had six to eight
same evidence establishing the intent to cause death is sufficient to establish the intent to cause serious injury. 7
inches of his intestines removed. Gathercole stabbed Rottmiller in the neck. The
wound was deep enough that it chipped Rottmiller’s vertebra and partially
separated his spinal cord. He has lost the ability to walk, and certain life
functions have been permanently altered. Gathercole stabbed Rottmiller in his
left eye. The wound was deep enough that it resulted in several surgeries.
Rottmiller is now legally blind in that eye. A jury could reasonably infer
Gathercole intended to kill Rottmiller based on the nature and severity of these
injuries. See State v. Hunt, 801 N.W.2d 366, 377 (Iowa Ct. App. 2011) (affirming
conviction for attempt to commit murder where severe nature of the injuries
supported inference the defendant intended to cause death of another).
We find unpersuasive Gathercole’s argument that he lacked the intent to
kill because Rottmiller testified the assailant stated he was going to call 911.
First, while the assailant stated he was going to call 911, there is no evidence of
an actual attempt to call for help. Instead, the evidence showed the assailant left
Rottmiller on the ground to bleed out and die without calling for assistance.
Further, even if the assailant had called 911 for help after the fact, it would not
necessarily establish he lacked the requisite intent at the time of the attack. It is
equally likely he had remorse. The resolution of the evidence was for the jury,
and we decline to disturb their verdict. See State v. Thornton, 498 N.W.2d 670,
673 (Iowa 1993).
B.
Gathercole also challenges the sufficiency of the evidence establishing he
had the specific intent to commit a theft, an element of robbery. See Iowa Code 8
§ 711.1(1). Gathercole argues there is little evidence of intent to commit theft.
For example, the assailant did not demand money during the attack. In addition,
many of Rottmiller’s personal items of value were lying on the ground around
him, in his pockets, and in the bed of his truck, which would be inconsistent with
intent to commit theft. Gathercole notes that none of Rottmiller’s belongings
were ever found in Gathercole’s possession. Finally, Gathercole argues that the
State’s contention that some money could have been taken is pure speculation
and thus insufficient to support guilt. See State v. Truesdell, 679 N.W.2d 611,
618-19 (Iowa 2004).
We conclude, when the evidence is viewed in the light most favorable to
the verdict, there is substantial evidence establishing the specific intent to commit
theft. See State v. Keeton, 710 N.W.2d 531, 535 (Iowa 2006). There is
substantial evidence Gathercole was experiencing severe financial difficulties.
See State v. Boley, 456 N.W.2d 674, 679 (Iowa 1990) (affirming conviction where
the evidence showed the defendant lacked and needed funds). He did not have
a significant income. He owed back child support. He had no residence of his
own but split time between his ex-wife’s and his girlfriend’s residences. He often
relied on borrowing money from other people. Earlier in the day, prior to the
attack, Gathercole asked Rottmiller for money. Immediately prior to the attack,
Gathercole knocked on Rottmiller’s door and asked for money. Rottmiller
refused but agreed to meet Gathercole outside and give him a ride. A
reasonable jury could infer that Gathercole used this opportunity to lie in wait and
take the money Rottmiller refused to give him. Finally, we note there is evidence 9
that some of Rottmiller’s money was missing. That fact, however, is nonmaterial.
“A conviction of robbery requires proof of the intent to commit a theft and not
proof of the actual theft.” Boley, 456 N.W.2d at 679 (citing State v. Rich, 305
N.W.2d 739, 746 (Iowa 1981)). Gathercole may have simply lost his nerve and
fled the scene after realizing what he had done.
C.
For the foregoing reasons, we conclude there was sufficient evidence to
support the jury’s verdicts for attempted murder and robbery.
III.
Gathercole argues the trial court’s refusal to poll the jury after counsel
brought the news item to the court’s attention violated his right to fair trial. See
Shepperd v. Maxwell, 384 U.S. 333, 363 (1966) (“Due process requires that the
accused receive a trial by an impartial jury free from outside influences.”). The
leading case addressing this issue in Iowa is State v. Bigley, 202 N.W.2d 56, 57-
58 (Iowa 1972). In that case, the supreme court adopted American Bar
Association Criminal Justice Standard 3.5(f) from the ABA Standards Relating to
Fair Trial and Free Press. See Bigley, 202 N.W.2d at 58. The standard reads:
If it is determined that material disseminated during the trial goes beyond the record on which the case is to be submitted to the jury and raises serious questions of possible prejudice, the court may on its own motion or shall on motion of either party question each juror, out of the presence of the others, about his exposure to that material. The examination shall take place in the presence of counsel, and an accurate record of the examination shall be kept. The standard for excusing a juror who is challenged on the basis of such exposure shall be the same as the standard of acceptability recommended in section 3.4(b), above, except that a juror who has seen or heard reports of potentially prejudicial material shall be 10
excused if reference to the material in question at the trial itself would have required a mistrial to be declared.
Id. The standard creates a mandatory duty for the district court to poll the jurors
if either counsel requests a poll of the jury and the “material disseminated during
the trial goes beyond the record on which the case is to be submitted to the jury
and raises serious questions of possible prejudice.” Id.; see also State v. Frank,
298 N.W.2d 324, 327 (Iowa 1980) (concluding the standard “imposes a
mandatory duty on the trial court to question jurors when a proper request has
been made”). If neither party raises the issue or requests a poll of the jury, the
district court may make further inquiry on its own motion at its discretion. Bigley,
202 N.W.2d at 58.2 Of course, the initial determination of whether there is a
serious question of possible prejudice is for the district court. See Mu’Min v.
Virginia, 500 U.S. 415, 430 (1991) (interpreting and applying ABA Standards for
Criminal Justice 8-3.5 (2d ed. 1980) regarding voir dire and pretrial publicity);
United States v. Hood, 593 F.2d 293, 296 (8th Cir. 1979) (stating “the trial judge
must make an initial determination as to whether the publicity creates a danger of
substantial prejudice to the accused”).
Subsequent decisions have addressed to some extent the meaning of
“serious questions of possible prejudice.” In State v. Burt, 249 N.W.2d 651, 653
2 Since Bigley, the standard has been revised to provide the district court with discretion to poll the jury in all instances. See ABA Criminal Justice Standards on Fair Trial and Pub. Discourse 8-5.5(d) (Aug. 2013), available at http://www.americanbar.org/groups/criminal_justice/standards/crimjust_standards_fairtri al_blk.html (“If, during the trial, the court determines that information has been disseminated or otherwise made publicly available that goes beyond the record on which the case is to be submitted to the jury and raises serious questions of prejudice, the court may on its own motion or on the motion of either party question each juror, out of the presence of the others, about exposure to that information.”). 11
(Iowa 1977), a shoplifting case, the defendant contended a news article
published during trial could be interpreted to connect him with another theft. The
defendant requested the district court poll the jury, which the district court
declined to do. See Burt, 249 N.W.2d at 654. The supreme court stated the
district court did not have a mandatory duty to poll the jury unless “the material
per se raises serious questions of possible prejudice.” Id. The court concluded
the material in that case did not rise to that threshold. See id. “Thus it devolved
on defendant to demonstrate evidence of jury prejudice.” Id. The court
concluded the defendant failed to establish prejudice, noting “no reason was
advanced to believe jurors had violated trial admonition.” Id. In State v. Frank,
298 N.W.2d 324, 327 (Iowa 1980), the defendant argued that the number and
content “of the news accounts surrounding . . . missing witnesses [were] of
sufficient magnitude to establish a substantial likelihood of probable jury
prejudice.” The supreme court concluded there was “no merit in this contention.
We will not presume prejudice from the mere publication or broadcast of news
stories. The trial court need not act on mere speculation.” Frank, 298 N.W.2d at
327. Two considerations were of significance in reaching that conclusion. First,
“[w]hen a jury has been clearly admonished not to expose themselves to media
publicity of the trial in which they are serving as jurors, a presumption arises that
they will not violate that admonition.” Id. Second, the supreme court was
reviewing the district court’s failure to raise the issue sua sponte for an abuse of
discretion only because the issue was not raised before the trial court. Id. at 328.
In State v. Jones, 511 N.W.2d 400, 408 (Iowa Ct. App. 1993), the defendant 12
requested the district court poll the jury where members of the defendant’s family
stated they saw a local television news program they interpreted to mean the
defendant carried the burden of disproving certain allegations. The district court
denied the request, which our court affirmed, concluding the defendant failed to
establish prejudice where no copy of the news items was provided to the court
and there was no evidence the jury violated the admonition. Jones, 511 N.W.2d
at 408.
In light of the foregoing authority, we conclude the phrase “serious
questions of possible prejudice” encompasses both a qualitative and quantitative
component. See United States v. Duperval, 777 F.3d 1324, 1332 (11th Cir.
2015) (“The court should first determine if the material raises serious questions of
possible prejudice. If it does, the court should then determine the likelihood that
the damaging material has in fact reached the jury.”); United States v. Aragon,
962 F.2d 439, 444 (5th Cir. 1992) (“First, the district court must look at the nature
of the news material to determine whether the material is innately prejudicial.
Second, the court must then discern the probability that the publicity has in fact
reached the jury.”); Ladner v. State, 868 S.W.2d 417, 423 (Tex. App. 1993)
(adopting two-part approach).
With respect to the qualitative component, the relevant inquiry is whether
the content of the communication was substantially prejudicial to the defendant’s
case. Relevant considerations include, but are not limited to: “(1) whether the
publicity goes beyond the record or contains information that would be
inadmissible at trial, (2) how closely related the material is to matters at issue in 13
the case, (3) the timing of the publication during trial, and (4) whether the
material speculates on the guilt or innocence of the accused.” State v. Holly, 201
P.3d 844, 849 (N.M. 2009). There can be little doubt that the news item here
satisfies the first component. The defendant contested identity during the course
of trial, highlighting the lack of physical evidence connecting him to the crime. A
news report wrongly stating that the police had palm print evidence connecting
the defendant to the attack went to the heart of the case.
With respect to the quantitative component, only a publication creating a
reasonable inference the jury was exposed to the publication jeopardizes the
defendant’s right to fair trial. See, e.g., Mu’Min, 500 U.S. at 427-28 (discussing
the “extraordinary publicity” required to jeopardize the right to fair trial); Murphy v.
Florida, 421 U.S. 794, 799 (1975) (discussing the threshold level of pervasive
media coverage required to jeopardize the right to fair trial and rejecting “the
proposition that juror exposure . . . to news accounts of the crime with which he is
charged alone presumptively deprives the defendant of due process”); Irvin v.
Dowd, 366 U.S. 717, 725 (1961) (discussing the “barrage of newspaper
headlines, articles, cartoons and pictures was unleashed against [the defendant]
during the six or seven months preceding his trial” and explaining approximately
95% of the households in the vicinage were exposed to such reports); Gabriel G.
Gregg, ABA Rule 3.6 and California Rule 5-120: A Flawed Approach to the
Problem of Trial Publicity, 43 UCLA L. Rev. 1321, 1365 (1996) (“There is,
however, very little hard evidence that demonstrates that juries are prejudiced by
trial publicity. In fact, most tests and studies that have examined the prejudicial 14
effect of trial publicity on juries have been quite inconclusive: Scientific research
has not revealed a strong connection between trial publicity of any sort and jury
prejudice.”). In an increasingly fractured market for news distribution and
consumption—the decline of traditional media and the rise of websites, blogs,
tweets, and social media—the mere fact news was published anywhere, standing
alone, does not necessarily give rise to an inference of juror exposure requiring
further inquiry. See Bierman v. Weier, 826 N.W.2d 436, 468-69 (Iowa 2013)
(Hecht, J., concurring in part and dissenting in part) (explaining technological
change facilitating greater publication of information from individuals blurs the
legal distinction between traditional news media and smaller publishers of
information); Frank, 298 N.W.2d at 327 (“We will not presume prejudice from the
mere publication or broadcast of news stories. The trial court need not act on
mere speculation.”). For example, would prejudicial information published in a
single post on an infrequently read blog or in a single tweet from a largely
unfollowed Twitter account, although both technically published and accessible to
the jury, trigger the court’s duty to poll the jury? We think not. Thus, the court’s
duty to inquire further is only invoked where there is sufficient evidence to
establish the communication or communications at issue were disseminated with
sufficient frequency and breadth to afford a reasonable inference that a member
of the jury more likely than not would have been exposed to the communication
or communications at issue. See Duperval, 777 F.3d at 1332; Aragon, 962 F.2d
at 444; Harper v. Ballard, No. 2:13-7421, 2015 WL 1431164, at *24 (S.D.W. Va.
Mar. 27, 2015) (stating the mid-trial publicity must be “so invasive that the setting 15
of the trial becomes inherently prejudicial” and that “[m]erely citing to media
coverage . . . is not enough”); Harper v. People, 817 P.2d 77, 85 (Colo. 1991)
(“The circumstances of the article’s publication present a reasonable possibility of
jury exposure.”).
Relevant considerations into this second component include the profile or
visibility of the publisher in the relevant community, the prominence of the
information within the publication, the frequency of publication, whether the
information has been published by multiple sources, whether the information has
been published across different media platforms. See Harper, 817 P.2d at 85;
Holly, 201 P.3d at 849. Another relevant consideration is whether the jury has
been “been clearly admonished not to expose themselves to media publicity of
the trial in which they are serving as jurors.” Frank, 298 N.W.2d at 324; see also
Bailey v. State, No. 05-13-01536-CR, 2015 WL 1649946, at *4 (Tex. App. Apr.
13, 2015) (concluding defendant did not establish prejudice where the jury was
admonished). If so, “a presumption arises that they will not violate that
admonition.” Frank, 298 N.W.2d at 324. Only a strong showing of mid-trial
publicity substantially prejudicial to the defendant’s case and likely to reach the
jury should overcome the presumption. Finally, we are cognizant of the fact that
“[t]he judge of that court sits in the locale where the publicity is said to have had
its effect and brings to his evaluation of any such claim his own perception of the
depth and extent of news stories that might influence a juror.” Mu’Min, 500 U.S.
at 427. 16
We cannot conclude the district court erred in refusing to question the
jurors individually during deliberations or abused its discretion in failing to do so
on its own motion. In this case, the news article was posted to the website of the
Cedar Rapids Gazette, a prominent newspaper in the locality. There is no
information in the record regarding when the article was originally posted to the
website or what updates were made after the time of the original posting. There
is no information in the record regarding the placement or prominence of the
news article on the website. There is no information in the record regarding the
number of page views. The district court clearly admonished the jury to not
access news media during trial. There is nothing in the record demonstrating the
news item was republished by other sources. Nor is there anything in the record
establishing similar information was published by other sources. We hold that a
single news item posted on the website of a local newspaper containing
misinformation regarding the defendant’s trial, without more, does not raise
“serious questions of possible prejudice” requiring the district court to interrupt
jury deliberations and question the jurors individually. See Bigley, 202 N.W.2d at
58; see also United States v. Hankish, 502 F.2d 71, 77 (4th Cir. 1974) (“We do
not hold that every newspaper article appearing during trial requires such
protective measures. Unless there is substantial reason to fear prejudice, the
trial judge may decline to question the jurors.”); Tunstall v. Hopkins, 126 F. Supp.
2d 1196, 1206 (N.D. Iowa 2000) (explaining the constitutional right to due
process is implicated by mid-trial publicity only where the mid-trial publicity is “so 17
massive, inflammatory, widespread and pervasive that prejudice ought to have
been presumed”).
IV.
For the foregoing reasons, we affirm the defendant’s convictions and
sentences.
AFFIRMED.