State v. Farmer

492 N.W.2d 239, 1992 Iowa App. LEXIS 247, 1992 WL 322270
Court of Appeals of Iowa·Decided August 27, 1992·No. 90-1467·Published·Cited by 4 cases

Opinions

OXBERGER, Chief Judge.

Darren Parmer was romantically involved with Jade’s mother. Jade was eighteen months of age. The State alleges Farmer shook Jade so severely that her death resulted. The State also alleges Farmer had sexually abused the child within a period of twenty-four to forty-eight hours before her death.

[241] Farmer was charged with first-degree murder and first-degree sexual abuse. A jury found him guilty of the lesser-included offenses of involuntary manslaughter and second-degree sexual abuse. Farmer has raised several issues on appeal.

VENUE: We first consider whether the trial court erred in denying Farmer’s motion for change of venue. Appellate review of an order granting or denying a change of venue is de novo and is subject to an abuse of discretion standard. State v. Hickman, 337 N.W.2d 512, 514 (Iowa 1983). Where a change of venue has been denied, the test is whether there is a reasonable likelihood the defendant could receive a fair trial in the county. State v. Dague, 206 N.W.2d 93, 95 (Iowa 1973). Although trial courts have discretion in determining whether to change venue, they should be more willing than in prior years to look favorably upon a motion for change of venue where there has been extensive pretrial publicity. State v. Robinson, 389 N.W.2d 401, 404 (Iowa 1986). A defendant may show either proof of actual prejudice or that pretrial media accounts were so pervasive and inflammatory as to give rise to a presumption of prejudice. State v. Shipley, 429 N.W.2d 567, 576 (Iowa App.1988). Iowa Rule of Criminal Procedure 10(10)(b) allows a change of venue if the court is satisfied “that such degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county....” When considering a change of venue issue, it must be kept in mind that mere exposure to news accounts does not prove a substantial likelihood of prejudice. State v. Chadwick, 328 N.W.2d 913, 916 (Iowa 1983). A defendant must show the pretrial publicity creates a substantial likelihood of prejudice in the minds of prospective jurors. State v. Harris, 436 N.W.2d 364, 367 (Iowa 1989). The crucial determination is whether, as a result of pretrial publicity or for other reasons, a substantial number of prospective jurors hold such fixed opinions on the merits of the case that they cannot impartially judge the issues. Id.

Farmer argues there was extensive news coverage in newspapers, radio and television which should have allowed him to change venue of the trial. The initial charge against Farmer was filed in November of 1989. Farmer’s trial began on May 22, 1990, but a mistrial was declared. He was later brought to trial on July 9, 1990. On June 8, 1990, he filed for a change of venue. The trial court stated in its order denying the motion:

The Court finds that the Defendant has failed to prove by any substantial evidence that there is any prejudice existing in Linn County which would result in an inability to pick a fair and impartial jury to hear the case of State v. Farmer. There is nothing in the record which would show the impact, if any, of the newspaper articles as it had to do with the attitudes of any prospective jurors.

In support of his motion for change of venue, Farmer introduced the testimony of Barbara Roorda, a resident of Linn County, and David Farmer, the father of the defendant. We find this testimony is insufficient to establish county wide prejudice. Upon review of the news articles in question, we agree with the trial court that a vigorous voir dire of prospective jurors was a sufficient safeguard to insure a fair and impartial jury. We, therefore, affirm the trial court’s denial of Farmer’s motion for change of venue.

PROSECUTORIAL MISCONDUCT

The defendant states he was denied a fair trial due to the following prose-cutorial misconduct:

1. The prosecutors complained in front of the jury when making an evidentiary objection that the defense had not provided the State with pretrial discovery of certain defense evidence.
2. The prosecutor, when making certain objections, accused defense counsel of having misstated the record.
3. The prosecutor in his closing argument improperly referred to the defendant’s statement as a confession. The remark was “this statement isn’t literally a confession, but it is a skeleton of one.”
[242]*2424. The prosecutor in his closing argument attributed to defendant a statement made before the victim’s death which indicated the defendant hated the victim.

To prevail on a claim of prose-cutorial misconduct, the defendant must not only prove misconduct occurred, but also that it prejudiced the defendant. State v. Ruble, 372 N.W.2d 216, 218 (Iowa 1985). We do not overturn trial court rulings in the absence of a showing of abuse of discretion. State v. Love, 302 N.W.2d 115, 119 (Iowa 1981). “Abuse of discretion is shown only when it is demonstrated that such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Williams, 315 N.W.2d 45, 55 (Iowa 1982) (quoting State v. Trudo, 253 N.W.2d 101, 106 (Iowa), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 189 (1977)).

The trial court in effect told the jury the defendant’s counsel had complied with pretrial discovery requirements. The trial court overruled the prosecutor’s objections, implying the defense counsel had not misstated the record. The reference to a confession was not a prejudicial remark. The “hate” remark had been reported to the police during the investigation but later retracted.

We conclude the conduct of the prosecutor did not deny the defendant a fair trial.

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State v. Farmer, 492 N.W.2d 239, 1992 Iowa App. LEXIS 247, 1992 WL 322270 (iowactapp 1992).

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