author: LAVORATO, Chief Justice.

text:
    STATE of Iowa, Appellant, v. Valerie Lynn REEVES, Appellee.
    No. 02-0199.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Thomas J. Miller, Attorney General, Sheryl Soich and Kevin Cmelik, Assistant Attorneys General, and Michael E. Wolf, County Attorney, for appellant.
    Jon M. Kinnamon, Cedar Rapids, for appellee.
   LAVORATO, Chief Justice.

Following a remand from this court, the district court reversed Valerie Lynn Reeves’ conviction for murder in the second degree and granted her a new trial. The State appealed and we transferred the case to the court of appeals, which reversed. We granted Reeves’ application for further review. On our review, we vacate the court of appeals decision, affirm the judgment of the district court, and remand the case for further proceedings consistent with this opinion.

I. Procedural History.

A jury found Reeves guilty of second-degree murder. She appealed, contending that the district court applied the wrong standard when that court denied her motion for new trial. We transferred the case to the court of appeals. That court reversed and remanded the case to the district court with directions to apply the weight-of-the-evidence standard set out in State v. Ellis, 578 N.W.2d 655 (Iowa 1998).

On remand, the district court concluded that the weight of the credible evidence did not support the second-degree murder conviction and granted Reeves a new trial. The State appealed and we again transferred the case to the court of appeals. The court of appeals affirmed and the State filed an application for further review, which we granted. We concluded that on the issue of malice aforethought the district court erred by requiring proof of an opportunity to deliberate as a part of the inference arising from the use of a deadly weapon in second-degree murder. State v. Reeves, 686 N.W.2d 22, 26 (Iowa 2001) (Reeves I). We vacated the court of appeals decision and remanded the case for a new hearing on Reeves’ motion for new trial. Id.

On the second remand, the district court again concluded that the weight of the evidence did not support the jury’s verdict and granted Reeves a new trial. However, this time the court’s ruling was based on an analysis different from its analysis in the first remand.

The State appealed and we again transferred the case to the court of appeals. That court in a 2 to 1 decision concluded the district court abused its discretion in granting Reeves a new trial. The court reversed and remanded the case with directions to reinstate the jury verdict of second-degree murder. Reeves filed an application for further review, challenging the court of appeals decision. We granted the application and the case is now before us.

II. Applicable Law.

To aid our analysis, we think it would be helpful to review the principles we laid out in Ellis. Iowa Rule of Criminal Procedure 2.24(2)(⅞) (6) permits the trial court to grant a new trial “[w]hen the verdict is contrary to law or evidence.” In Ellis we held that “contrary to ... evidence” in this rule means “contrary to the weight of the evidence.” Ellis, 578 N.W.2d at 659. In Ellis, we took our cue from Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). In Tibbs, the Court held that double jeopardy does not bar retrial after a state appellate court sets aside a conviction because the verdict was against the weight of the evidence. Tibbs, 457 U.S. at 32, 102 S.Ct. at 2213, 72 L.Ed.2d at 655.

In Tibbs, the court noted the general rule that a defendant who successfully appeals a conviction was subject to retrial. Id. at 39-40, 102 S.Ct. at 2217, 72 L.Ed.2d at 660. The Court also noted this narrow exception: Double jeopardy precludes retrial of a defendant who successfully appeals a conviction “once the reviewing court has found the evidence legally insufficient” to support a conviction. Id. at 40-41, 102 S.Ct. at 2217, 72 L.Ed.2d at 660 (citation omitted). This standard, the Court said, means “that the government’s case was so lacking that it should not have been submitted to the jury.” Id. at 41,102 S.Ct. at 2217, 72 L.Ed.2d at 660 (citation omitted). Additionally, the Court noted that “[a] conviction will survive review ... whenever ‘the evidence and inferences therefrom most favorable to the prosecution would warrant the jury’s finding the defendant guilty beyond a reasonable doubt.’ ” Id. (citation omitted). In Ellis, we concluded “[t]hese meanings of ‘insufficiency of the evidence’ accord with our own view of the standard.” 578 N.W.2d at 658.

In Ellis, we recognized that Tibbs makes clear “there is a serious double jeopardy consequence that demands a distinction between the [sufficiency-of-the-evidence standard and the weight-of-the-evidence standard].Id. at 659. For that reason, we held that “contrary to ... evidence” in rule [2.24(2)(6)(6)] means “contrary to the weight of the evidence” as defined in Tibbs. Id.

Tibbs contrasted an evidentiary review based on the weight and the sufficiency of the evidence:

[A] conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. A reversal based on the weight of the evidence, on the other hand, draws the appellate court into questions of credibility. The “weight of the evidence” refers to “a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.”

Tibbs, 457 U.S. at 37-38, 102 S.Ct. at 2216, 72 L.Ed.2d at 658 (citations omitted).

In Ellis, we noted that federal courts apply the Tibbs weight-of-the-evidence standard on motions for new trial under Federal Rule of Criminal Procedure 33, which allows a new trial if “the interests of justice so require.” Ellis, 578 N.W.2d at 658. We quoted with approval this passage from one commentator as to when and why trial courts must use a sufficiency-of-the-evidence standard or a weight-of-the-evidence standard:

On a motion for judgment of acquittal, the court is required to approach the evidence from a standpoint most favorable to the government, and to assume the truth of the evidence offered by the prosecution. If on this basis there is substantial evidence justifying an inference of guilt, the motion for acquittal must be denied.
On a motion for new trial, however, the power of the court is much broader. It may weigh the evidence and consider the credibility of witnesses. If the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted.
... The motion [for new trial] is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

Id. at 658-59 (quoting 3 Charles A. Wright, Federal Practice and Procedure § 553, at 245-48 (2d ed. 1982)).

As one court explained:

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain a verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner.

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000).

III. Scope of Review.

The district court has broad discretion in ruling on a motion for new trial. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997); see also Iowa R.App. P. 6.14(6)(c) (“In ruling upon motions for new trial the district court has a broad but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties.”). We reverse where the district court has abused that discretion. To establish such abuse, the State must show that the district court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id. We are slower to interfere with the grant of a new trial than with its denial. Iowa R.App. P. 6.14(6)(<i).

On a weight-of-the-evidence claim, appellate review is limited to a review of the exercise of discretion by the trial court, not of the underlying question of whether the verdict is against the weight of the evidence. Widmer, 744 A.2d at 753; see also United States v. Ashworth, 836 F.2d 260, 266 (6th Cir.1988) (appellate court neither sits to judge credibility of witnesses nor to reweigh the evidence; rather appellate court is limited to examining the evidence produced at trial to determine whether the district court’s determination that the evidence does or does not “preponderate heavily against the verdict” is a clear and manifest abuse of discretion).

The standard we apply in determining whether the district court has abused its discretion in granting a new trial on a weight-of-the-evidence claim was aptly stated by one court in this passage:

The discretion of the trial court should be exercised in all cases in the interest of justice, and, where it appears to the judge that the verdict is against the weight of the evidence, it is his imperative duty to set it aside. “We do not mean ... that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and, when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as against any mere doubts of its correctness. But when his judgment tells him that it is wrong, that, whether from mistake, or prejudice, or other cause, the jury ... erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury.”

State v. Oasheim, 358 N.W.2d 291, 294 (N.D.1984) (citations omitted); accord State v. Warren, 624 A.2d 841, 843 (R.I. 1993).

IV. Analysis.

In its January 17, 2002 ruling on the second remand, the district court adopted its findings of fact from its March 15, 2000 ruling on the first remand as well as our findings of fact in Reeves I. To fully understand the district court’s reasoning on the second remand, which is the subject of this appeal, we set out our findings in Reeves I, as well as the district court’s findings on both remands.

In Reeves I, we found:

The following facts are based largely on defendant’s testimony. On September 28, 1997, Reeves left on a hitchhiking trip from her home in Normal, Illinois, to Sabula, Iowa. Along with clothing, Reeves packed her husband’s ten millimeter handgun. After her ride dropped her off in Sabula, she went to a tavern to drink and inquire about a place to stay for the night. The bartender called a local bed and breakfast, but there were no rooms available. One of the bar customers, Eugene Malone, offered to let her stay at the house he shared with his mother. Malone and Reeves had never met before, but the female bartender assured Reeves it would be all right, as the bartender knew Malone. Reeves left the bar with Malone. Malone’s autopsy indicated his blood alcohol content was nearly twice the legal limit. Reeves testified she had drunk enough she was blacking out at times and she was “very loaded.”
Malone took Reeves to his home. Reeves testified that once there, Malone made a sexual advance toward her, which she rejected. Malone’s mother later said she heard a female voice saying “no, no, no.” Reeves testified Malone became angry because Reeves had disturbed his mother, and he suggested they leave. Reeves believed Malone was taking her to stay somewhere else.
According to Reeves, Malone drove them in his truck into the country. She testified he stopped the truck and “attacked” her by leaning onto her and pinching her breasts very hard. Reeves testified she panicked, began screaming, and fired the gun although she does not remember retrieving it from her bag. Reeves ran from the truck because she was frightened Malone would follow her. For thirty hours, she wandered through road ditches and fields before entering a nearby town where she was spotted by a sheriffs deputy and arrested. Reeves said she was aware of the search being conducted by law enforcement.
Authorities later found a pile of the defendant’s clothing in a road ditch. Reeves testified she changed out of her clothes because they had blood on them and because, when she was frightened by the event, she had soiled her pants. The gun was found in a stream along with her bag approximately two miles from where the truck was found. The gun had three safeties, designed to prevent accidental discharge by dropping, but on this model all three safeties were disengaged merely by pulling the trigger.
Investigation of the crime scene revealed six shots had been fired, four of which struck Malone. At trial, Dr. Peter Stephens, a forensic pathologist, testified for the defendant. He testified that powder burns and marks on Malone’s skin indicated the first shot struck him below the arm and went into his stomach. The position of this wound was consistent with Malone leaning toward Reeves. The second shot struck the top of Malone’s right shoulder. The third grazed his right cheek and the tip of his nose. The fourth entered the back of Malone’s skull. As the shots were fired, the muzzle of the gun became increasingly elevated, which frequently occurs with inexperienced shooters and is a natural consequence of the gun’s recoil, according to this witness. He also testified that the sequence of shots was consistent with a struggle, and the progressive elevation of shots indicated Reeves had fired the gun in a continuous operation without having to reacquire the target each time the gun was fired.

Reeves, 636 N.W.2d at 23-24.

In its March 15, 2000 ruling on the first remand, the district court made these findings after stating the positions of both sides:

[I]t is the Court’s opinion that the circumstantial evidence supports the testimony of the defendant indicating that an altercation had occurred between the defendant and the victim prior to the defendant grabbing the gun and shooting the victim. There is no credible evidence which shows that the defendant had an opportunity to deliberate prior to discharging the weapon at the victim. The victim was first shot under the armpit indicating that he was reaching for the defendant, the second shot struck the victim’s shoulder, the third shot struck the victim’s face, and the fourth shot struck the victim in the back of the head indicating that the gun had continued to rise as the defendant shot rather than the defendant having to reacquire the target each time the gun discharged. The fact that this incident took place on a dark country road in Clinton County facing the opposite direction from where the defendant wished to be taken, that being Clinton, Iowa; the fact that there was no robbery or attempt to take the vehicle of the victim; the fact that these parties did not know each other prior to the defendant coming into the bar where she met the victim; the fact that the defendant did not attempt to hitchhike or immediately flee the scene to return to Illinois but wandered aimlessly around the countryside where she was then picked up in broad daylight by a sheriffs deputy as defendant walked down the county road; and the fact that the defendant appeared to have defecated in her pants either during or shortly after the incident all supports her testimony given at the trial. None of this evidence was negated by the State through the use of circumstantial evidence or testimony of the witnesses. Therefore, even with the cautionary approach that the Court uses in these type of cases, the Court is of the opinion that the weight of the credible evidence does not support the verdict by the jury for second-degree murder.

On the second remand, the district court, in its January 17, 2002 ruling, made these findings:

[I]n viewing the weight of the credible evidence, no motive is apparent as to why Valerie Reeves would have discharged the weapon at the decedent at the time of the incident unless provocation existed.... [I]t is the opinion of this Court that the weight of the evidence does not support the verdict of murder in the second degree in that malice aforethought was not proven beyond a reasonable doubt. The Court in its prior ruling of March 15, 2000 did not address this issue due to the fact that it found that the State did not prove that the defendant had time to deliberate prior to the act of firing the weapon.
This Court is mindful of the requirement that it exercise its discretion carefully and sparingly when deciding motions for new trial based on the ground that the verdict or conviction is contrary to the weight of the evidence. The Court is also aware that unreasonable failure to sustain the verdict of a jury, who are the principal triers of the facts, would enable a trial court to disregard at will the jury’s verdict. However, the Court is also required by law under the weight-of-the-evidence standard to determine whether or not reasonable people could have come to the conclusion that the State has proven beyond a reasonable doubt the element of malice aforethought based on the evidence produced at the time of trial.
In reviewing the evidence, it is clear to this Court that the weight of the evidence supports the position of the defendant that provocation existed at the time of the discharge of the weapon....
In this case, the decedent weighed between 220 to 250 pounds. Both parties appeared to have been intoxicated when they left the establishment in Sa-bula, Iowa to go to the home of the decedent. The parties did not have a prior relationship before their initial contact the night before the incident. It would appear from the evidence based on the testimony of the decedent’s mother and that of the defendant that the decedent made a pass at the defendant at the home of his mother. The decedent’s mother heard a female voice say “No, no, no,” which indicates that she was resisting the advances of the decedent. Malone then drove his truck to an isolated area in Clinton County in the early morning hours, pointed in the opposite direction of any populated area nearby. Ms. Reeves then indicates in her testimony that Malone reached across the vehicle and attacked her by grabbing her breasts and pinching them very hard. She then, according to her testimony, reacted in a panic, started screaming, does not recall how she obtained the gun from her back pack and then heard the gun go off several times. The defendant had no history of violence, although she had been victimized herself by an incident of violent sexual abuse in New Orleans.
Once the weapon had been discharged, the defendant fled from the area of the truck, having defecated in her pants because of the situation. The testimony of Reeves was supported by the circumstantial evidence and was corroborated by Dr. Peter Stephens, a forensic pathologist. Dr. Stephens testified that the first shot struck the decedent below the arm, which indicates that he was leaning towards Reeves at the time of the discharge. He also testified that the progress of the shots indicates that Reeves did not reacquire the target and also that this was consistent with a struggle. Reeves did not attempt to flee in decedent’s vehicle, rob him or otherwise do anything inconsistent with her testimony that she left the vehicle in a panic after the shots were discharged. She then proceeded to walk around aimlessly in the area for 30 hours after placing her clothes neatly folded in a ditch and throwing her bag and gun in a creek a few miles from the site of the incident. She was then picked up walking in broad daylight down a country road by a Clinton County sheriffs deputy. She then related to the deputy what had occurred, and her testimony at trial was substantially in accord with this statement.
The Court has considered the State’s arguments ... in response to the motion filed by the defense. Although the Court considers those arguments as a possibility of what occurred during the incident, the Court, even in viewing the evidence in the light most favorable to the State, finds that the weight of the evidence does not support the position of the State.
The Court has by its ruling indicated that the weight of the evidence supports the fact that provocation existed prior to the discharge of the weapon by Valerie Reeves. Malice aforethought requires a fixed purpose or design to do some physical harm to another which must exist prior to the act being committed and continued during the act. The fact that the Court has ruled that the weight of the evidence supports the issue of provocation thereby overcoming the presumption [of malice arising from] the use of a dangerous weapon puts the burden on the State to show by credible evidence malice aforethought. The weight of the evidence supports the position of the defendant that the discharge of a weapon was panicky and provoked due to the rapid and indiscriminate firing of the weapon as indicated by the Court in its previous findings of fact.
Based on the above it is the ruling of this Court that the weight of the evidence does not support the verdict of the jury finding that malice aforethought was proven beyond a reasonable doubt....

(Citations omitted.)

All of these findings of fact have support in the record. As noted in the district court’s latest ruling, the court concluded that the weight of the evidence did not support a finding of malice aforethought.

Iowa Code section 707.1 (1997) defines murder: “A person who kills another person with malice aforethought either express or implied commits murder.” “A person commits murder in the second degree when the person commits murder which is not murder in the first degree.” Iowa Code § 707.3. Malice aforethought is therefore an essential element of second-degree murder and is an element that separates second-degree murder from other lesser included offenses. State v. Inger, 292 N.W.2d 119, 121-22 (Iowa 1980).

Malice aforethought is defined as a fixed purpose or design to do some physical harm to another existing prior to the act complained of; it need not be shown to have existed for any length of time before, ...; it is sufficient if such purpose was formed and continued to exist at the time of the injury....

State v. Hofer, 238 Iowa 820, 833, 28 N.W.2d 475, 482 (1947).

The law allows a presumption of malice aforethought from the use of a deadly weapon in the absence of evidence to the contrary. State v. Woodmansee, 212 Iowa 596, 620, 233 N.W. 725, 736 (1930). Thus, the presumption is only permissive. State v. Elam, 328 N.W.2d 314, 318 (Iowa 1982). And the presumption may be rebutted by evidence showing the killing was accidental, under provocation, or because of mental incapacity. Wood-mansee, 212 Iowa at 619, 233 N.W. at 736; see also State v. McNamara, 252 Iowa 19, 25, 104 N.W.2d 568, 572 (1960) (holding that presumption of malice aforethought arises from the use of a deadly weapon “unless there is an explanation to the contrary showing a legal excuse such as self-defense”). Although motive for the killing is not a necessary element of second-degree murder, absence of such motive may be considered on the question whether the defendant acted with malice aforethought. McNamara, 252 Iowa at 25,104 N.W.2d at 572.

The district court also submitted voluntary manslaughter to the jury. Iowa Code section 707.4 defines this offense:

A person commits voluntary manslaughter when that person causes the death of another person, under circumstances which would otherwise be murder, if the person causing the death acts solely as the result of sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a person and there is not an interval between the provocation and the killing in which a person of ordinary reason and temperament would regain control and suppress the impulse to kill.

Iowa Code § 707.4.

With respect to the deadly weapon issue, we think the district court cited evidence that preponderated heavily in support of its finding of provocation sufficient to overcome the presumption of malice aforethought. The victim’s size, his drunken stupor, his intentions as indicated by his unwanted pass at his mother’s home, his subsequent sexual assault, the circumstances under which and place where the sexual assault occurred, Reeves’ past history of being violently raped, no history of violence on the part of Reeves, and the very short interval of time between the sexual assault and the shooting all support this finding. Granted most of this evidence came from Reeves’ testimony. Obviously, the district court believed her. But credibility of the witnesses is key in a weight-of-the-evidence determination. Moreover, there was no contrary evidence in the record. This is not one of those cases where the jury had to believe one of two people in arriving at a verdict.

In addition, the district court cited other evidence that supported Reeves’ testimony. For example, the victim’s mother heard a female voice saying “No, no, no,” bolstering Reeves’ testimony that Malone made a pass at her which she resisted. The truck was found in an isolated area pointed in the opposite direction of any populated area nearby which bolstered Reeves’ testimony of the sexual assault. The forensic pathologist testified that the first shot struck Malone below the arm, indicating he was leaning towards Reeves at the time of the shot and that the progress of the shots was consistent with a struggle. These facts further support Reeves’ testimony of the sexual assault. Following the shooting, Reeves did nothing that was inconsistent with her testimony: She did not attempt to flee in the truck; she did not rob Malone; she wondered aimlessly for 30 hours after neatly folding her clothes in a ditch and throwing her bag and gun in a creek a few miles from the scene; she was picked up walking in broad daylight down a country road; her testimony was substantially in accord with the statement she gave authorities as to what happened.

In short, all of these facts and circumstances convince us that the district court had adequate reason to conclude that the weight of the evidence established the following: (1) Reeves had been provoked when she fired the gun at Malone, (2) Malone’s conduct coupled with Reeves’ pri- or history as a victim of sexual assault qualified as “conduct that would cause a reasonable person to have a sudden, violent and irresistible passion,” and (3) from the time Malone physically attacked Reeves in the truck, she did not have time to reflect and bring her passion under control.

(An argument can be made that these findings preponderate heavily in favor of finding that Reeves acted in self-defense, negating the presumption of malice. The district court submitted this defense to the jury. Because the district court did not focus on self-defense in its latest remand ruling, we may not consider this issue because to do so would entail, on our part, a re-weighing of the evidence.)

After finding that the weight of the evidence preponderated heavily against a presumption of malice, the district court concluded the weight of the evidence preponderated heavily against a finding of malice aforethought. In support of this conclusion, the district court said: “The weight of the evidence supports the position of the defendant that the discharge of a weapon was panicky and provoked due to the rapid and the indiscriminate firing of the weapon as indicated by the Court in its previous findings of fact.” We take all of this to mean that the manner of indiscriminate and rapid firing, the sporadic nature of the rapid firing, the elevation of the weapon, and the lack of target re-acquisition showed a spontaneous response by Reeves to Malone’s sexual assault on her. Rather than showing a fixed design to do harm prior to the shooting, this evidence supports the district court’s finding that the shooting was entirely unformed and unconsidered before the provocation. Buttressing this finding is a lack of motive on the part of Reeves and any evidence that the two had a prior relationship. In short, the shooting was a product of panic and of the moment as evidenced by the fact that Reeves defecated in her pants.

Again, in making its findings, the district court, exercising its authority to weigh the evidence and determine credibility, believed Reeves as well as the forensic pathologist who testified in her favor. There was no medical expert testimony in opposition to the testimony of the forensic pathologist. In fact, the medical examiner who performed the autopsy on Malone testified he would rely on the forensic pathologist regarding his conclusions and opinions as to how the injuries Malone suffered were sustained.

We recognize, as the State contends, that the evidence supports the jury ver-diet. But as we mentioned, under the weight-of-the-evidence standard, a motion for new trial concedes this. The dissent in the most recent court of appeals decision insightfully explained away this apparent inconsistency:

The Ellis standard is an especially difficult standard, as it provides that evidence can somehow both “preponderate heavily” against a guilty verdict and yet still be adequate to convict defendant, in a second trial, beyond a reasonable doubt. The only way to reconcile two apparently contradictory evaluations of the same evidence is to rely upon credibility assessments and evidentiary inferences, which the trial court is in the best position to make.

For all these reasons, we conclude the district court properly applied the weight-of-the-evidence standard in considering the motion for new trial on the second remand. Here the court carefully weighed the evidence, determined credibility, and gave sufficient reasons for its decision that the verdict was contrary to the weight of the evidence. The court did exactly what it was required to do under a weight-of-the-evidence standard. We conclude the court acted well within its discretion in granting Reeves a new trial. We therefore vacate the court of appeals decision, affirm the judgment of the district court, and remand the case for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS.

All justices concur except STREIT, J., who takes no part.


source: Caselaw Access Project

author: CADY, Justice. CARTER, Justice

license: Public Domain

text:
    STATE of Iowa, Appellant, v. Jennifer Lynn BOOTH, Appellee. City of Iowa City, Appellant, v. Jennifer Lynn Booth, Appellee.
    No. 02-1315.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Janet Lyness, Assistant County Attorney, and Susan Dulek, Assistant City Attorney, for appellants.
    Chad W. Thomas, Iowa City, and Jill Novak, Student Legal Intern, Iowa City, for appellee.
   CADY, Justice.

In this appeal, we must determine whether the front steps and common hallway of an apartment house are public places. The appellee was charged with two alcohol-related offenses premised on her being in a public place at the time the offenses were committed. She was subsequently found guilty of both charges by a judicial magistrate, but her convictions were overturned by the district court, which concluded the front steps and hallway of the house were not public places. The State challenges the district court’s determination with this appeal. For the reasons that follow, we reverse the decision of the district court and remand for entry of an order affirming the judgment and sentence of the judicial magistrate.

I. Background Facts and Proceedings.

On August 11, 2001, an officer from the Iowa City police department responded to a report of a fight at a local apartment house. After arriving at the scene, the officer approached the appellee, Jennifer Lynn Booth, one of the tenants of the house, who was standing on the exterior steps of the building’s entryway. Booth had not been directly involved in the fight, but had information to provide to the officer. She and the officer began a conversation on the front steps but soon moved in to the common hallway of the house to continue their conversation. At all times during the conversation, Booth was intoxicated and had an open container of alcohol in her possession. These facts led the officer to issue Booth two citations, one for public intoxication and one for possession of an open container of alcohol in a public place.

A bench trial on Booth’s offenses commenced before a judicial magistrate on November 20. Booth conceded every element of the two charges against her except for the question of whether the offenses occurred in a public place. Not surprisingly, the evidence presented at the trial was focused on defining the character of the apartment house, the front steps, and the common hallway.

The evidence revealed that the house contained six, two-bedroom apartments with approximately fourteen to sixteen total residents. To access the apartments, all persons had to use the exterior steps, front entryway, and common hallway of the house. A washer and dryer were provided for the residents’ use and were kept in the common hallway. Residents were also permitted to use a small, six-space parking lot on the grounds. In addition to the tenants, the defendant testified to having seen guests of the tenants, mail carriers, and delivery people in the house. However, there was no gate or fence around the house preventing a person from walking up to the front steps. Nor were there any signs posted at the front steps or common hallway indicating that access to those areas was restricted. Moreover, no locks or other security devices prevented entry into the common hallway from the front steps.

After taking this evidence under advisement, the judicial magistrate determined that the front steps and common hallway of the apartment house were public places and found Booth guilty of both charges. Booth appealed to the district court pursuant to Iowa Rule of Criminal Procedure 2.73. After reviewing the record in the case, the district court determined the magistrate’s decision was in error in that the front steps and hallway were not public places. The district court vacated and set aside Booth’s convictions, sustained her appeal, and dismissed the charges against her. The State sought and was granted discretionary review of the district court’s decision.

II. Standard of Review.

We recently had the opportunity to summarize our standard of review for issues of statutory interpretation in In re Detention of Swanson, 668 N.W.2d 570, 574-75 (Iowa 2003):

We focus on the intent of the legislature when construing [a] statute, looking first and foremost to the language it chose in creating the act. Gardin v. Long Beach Mortgage Co., 661 N.W.2d 193, 197 (Iowa 2003). We read the statute “as a whole and give it ‘its plain and obvious meaning, a sensible and logical construction,’ ” which does not create an “impractical or absurd result.” Id. (quoting Hamilton v. City of Urbandale, 291 N.W.2d 15, 17 (Iowa 1980)). If it is necessary, “we look to prior decisions of this court and others, similar statutes, dictionary definitions, and common usage” to aid our interpretation. Id. We review the district court’s construction of the statute for correction of errors at law. See State v. Mitchell, 568 N.W.2d 493, 500 (Iowa 1997).

III. Defining a “Public Place.”

Booth was charged with two alcohol-related offenses due to her presence and conduct at the apartment house. The first charge was for public intoxication as defined by the Iowa Code:

A person shall not use or consume alcoholic liquor in any public place except premises covered by a liquor control license.... A person shall not be intoxicated or simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor.

Iowa Code § 123.46(2) (2001) (emphasis added). She was also charged with possession of an open container of alcohol in a public place, an offense defined by the Iowa City City Code:

Possession Prohibited: It shall be unlawful for any person to possess alcoholic beverages in any open container upon the public streets or alleys, including the sidewalk within the public right of way, and in any public place, except premises covered by a license or permit, and when applicable a public right of way easement agreement.

Iowa City City Code § 4-5-5(B) (emphasis added).

To secure Booth’s convictions, the State had the burden of showing that she was in a public place at the time the offenses were committed. A “public place” in this context is defined as “any place, building, or conveyance to which the public has or is permitted access.” Id. § 123.3(27). The Iowa City City Code uses this definition as well. Iowa City City Code 4-5-1 (“This chapter shall incorporate by reference the definitions, restrictions, requirements and limitations contained in chapter 123, code of Iowa, as amended.”). Thus, we must determine whether Booth was in a place “to which the public has or is permitted access” when the offenses were allegedly committed. Id. § 123.3(27).

Booth argues that we should adopt the approach taken by the district court and apply our holding in State v. Lake, 476 N.W.2d 55 (Iowa 1991) in her favor. In Lake, we determined that the defendant was not in a public place for purposes of the public intoxication statute while she was sitting in her friend’s vehicle even though the vehicle was in a public location. See id. at 55-56. In reaching our ultimate conclusion in Lake, we observed, “[a] right of public access is the touchstone of the section 123.3[(27)] definition of public place.” Id. at 55. Launching from this observation, Booth asserts the front steps and common hallway of the apartment house are not public places because only tenants, invited guests, and perhaps other members of the public who would have a legitimate reason to enter the building were permitted access to the building. Thus, she believes, because neither the tenants nor their invited guests should be considered part of the general public, no member of “the public has or is permitted access” and the front steps and hallway are not public places. Iowa Code § 123.3(27). In essence, Booth argues public access to a place or building under the statute requires access to be permitted to all the public.

The State responds to Booth’s argument by attempting to undercut what it believes is a far too permissive interpretation of the statute. It argues that the adoption of Booth’s approach to the definition of “public place” would be contrary to the purpose of alcohol consumption control laws and would permit offenders to evade charges in areas that the laws were meant to cover. Moreover, the State takes issue with what it believes is a mischaracterization of the nature of the apartment house and Booth’s right to act within it, noting her lease explicitly conveyed to her the control of only her apartment and not the entire house.

At the core of both parties’ arguments is their disagreement over the extent “to which the public has or is permitted” access to the front steps and common hallway. Id. The controversy over this issue belies underlying issues related to defining the nature of “the public” in this context and what it means for the public to have access to a location. We agree that Lake has an important role in resolving these questions, but the legislature’s intent must guide our ultimate resolution. Gardin, 661 N.W.2d at 197. As in Lake, we believe it is necessary to place the statute’s language in proper context to ensure its proper construction. See Lake, 476 N.W.2d at 56.

We have not previously had the opportunity to specifically consider the legislature’s intent in barring public intoxication, nor have we considered the intent behind Iowa City’s open container law. Yet, both are tied closely — by placement in the code or by invocation of its provisions — to Iowa Code chapter 128. This connection warrants recognition of the broader statutory context of both offenses at issue in this case. Chapter 128 constitutes the Iowa Alcoholic Beverage Control Act, a statute created “for the protection of the welfare, health, peace, morals, and safety of the people of the state” which “shall be liberally construed for the accomplishment of that purpose.” Iowa Code § 123.1. This statement of legislative intent is consistent with the conclusions of “several jurisdictions” that,

statutes proscribing public intoxication serve two general purposes. First, they are designed to prevent nuisance and annoyance to members of the general public. Second, they also serve as a protection against offenders who endanger the well-being of themselves or others.

State v. Runner, 172 W.Va. 720, 310 S.E.2d 481, 483 (1983). We approach this case with our legislature’s intent and these statutory purposes in mind.

In arguing for its application, Booth focuses on our conclusion in Lake that “[a] right of public access is the touchstone of the section 123.3[(27)] definition of public place.” 476 N.W.2d at 56. However, Lake was premised on two other observations that must be kept in mind in resolving this appeal. Although our “touchstone” comment was intended as a summation of the definition of a public place, we also focused on the statutory language of the public intoxication law, concluding that, “while defendant was occupying the privately owned motor vehicle either on the public street or in the public parking lot, she was in a conveyance to which the public was not permitted access,” thus making the vehicle private. Id. This conclusion was bolstered by our recognition that there was a “private nature of automobiles” established by “nearly thirty years of fourth amendment jurisprudence” that had made clear that “absent some special circumstance, even police officers are not entitled to enter private automobiles on the public highways.” Id. at 56-57.

Lake essentially recognized a “bubble” of privacy in the vehicle although it was in an otherwise public location. To a large extent, this case involves a similar concept. The State argues, at least implicitly, that Booth’s own apartment may be a private location, but the bubble bursts once she crosses the threshold of her apartment door into the common areas of the house. Booth seemingly argues that, similar to a single-family home, everything at or behind the front door of the apartment house should be presumptively private. Although both of these arguments are appealing, several factors — including legislative intent, the laws’ purposes, and prior case precedents — indicate that the State’s approach to this issue is the correct one.

We believe it is clear that both the public intoxication and open container laws are, at least, “designed to prevent nuisance and annoyance to members of the general public” and “serve as a protection against offenders who endanger the well-being of themselves or others.” Runner, 310 S.E.2d at 483; see also Iowa Code § 123.1. Thus, in determining whether Booth violated these laws, we must consider the effect of her alleged violations on those around her. This includes her fellow tenants. Although each has signed a lease in the same building, each remains entitled to be free from nuisance and annoyance and to be protected from the actions of a fellow tenant. See State v. Culp, 433 N.E.2d 823, 827 (Ind.Ct.App.1982) (Buchanan, J., dissenting) (“Intoxicated persons, be they tenants of the building or guests of tenants, are not guests of the remaining tenants. These remaining tenants are part of the ‘public’ and should not be compelled to tolerate drunkenness in close proximity to their abode.”). This key factor mandates a construction of the statute that protects the interests of an offender’s fellow tenants and others in the common areas of the apartment house so as to avoid an evasion of legislative intent and purpose. The statute would have little protective effect if it only applied to those areas where all members of the public would have access.

This conclusion finds support in our pri- or cases, particularly State v. Davidson, 217 N.W.2d 630 (Iowa 1974). See also State v. Elliott, 557 N.W.2d 887, 889-90 (Iowa 1996). In Davidson, we determined that a tenant who was found in the common hallway of his apartment complex and charged with carrying a concealed weapon was not entitled to invoke a statutory exception to the crime based on his carrying the weapon “in his own dwelling house or other land possessed by him.” Davidson, 217 N.W.2d at 631. In reaching this conclusion, we rebuffed the defendant’s argument that “when he was in the common hallway adjacent to his apartment he was at a place where he was entitled to be under his lease” thus bringing the hallway “within the statutory term ‘dwelling house or other land possessed by him.’ ” Id. at 631-32. We reasoned that accepting the defendant’s argument “would permit one [carrying a concealed weapon] to wander about apartment buildings inhabited by hundreds of persons simply because his own living quarters were located somewhere” in the complex, a result contrary to legislative intent. Id. at 632.

This observation in Davidson can be analogized to this case, even though different statutes are at issue. Concealed weapon, public intoxication, and open container laws are each meant to ensure the well being of the public, including persons who also happen to be co-tenants with an offender. See Elliott, 557 N.W.2d at 889-90; Davidson, 217 N.W.2d at 632; Runner, 310 S.E.2d at 483. An interpretation that did not take these fellow tenants into account would leave them subject to the limited protective capabilities of a landlord but largely preclude effective law enforcement for a number of offenses that the legislature has sought to prevent. See Iowa Code § 123.46(2); see also id. § 124A.4 (advertising “to promote the distribution of imitation controlled substances”); id. § 723.4(1) (disorderly conduct); id. § 724.22(7) (permitting access to a loaded firearm by a child). This would be an impractical and absurd result, clearly contrary to legislative intent and purpose. Gardin, 661 N.W.2d at 197. Thus, the statutory requirement of public access does not require all members of the public to have access to the place in question. We do not believe our legislature intended such a narrow application of the statute because it would fail to protect many members of the public.

Moreover, in as much as the result in Lake was premised on or supported by our observation that Fourth Amendment jurisprudence establishes the “private nature of automobiles,” the same cannot be said for the front steps or common hallway of the apartment house. Lake, 476 N.W.2d at 56. Most courts considering the issue have concluded that a tenant has no reasonable expectation of privacy in the front steps or common hallway of a multi-unit apartment complex for purposes of Fourth Amendment analysis. See United States v. Noham, 3 F.3d 1239, 1242 (9th Cir.1993) (“Most other [United States Courts of Appeals] agree a tenant does not have a reasonable expectation of privacy in an apartment building hallway or other common area.”); United States v. Calhoun, 542 F.2d 1094, 1100 (9th Cir.1976) (“The hallway of an apartment building ... is a ‘public’ place for purposes of interpreting the Fourth Amendment.”); State v. Santiago, 224 Conn. 494, 619 A.2d 1132, 1136 (1993) (“The simple fact that there is a porch or stoop in front of a house [(in this case, an apartment house)] does not make the threshold a place entitled to fourth amendment protection.”); see also United States v. Conner, 948 F.Supp. 821, 838-39 (N.D.Iowa 1996) (collecting cases). Thus, the private vehicle in Lake is distinguishable from the front steps and common hallway here. Any potential Fourth Amendment analogy between the two cases would likely warrant a comparison between the vehicle in Lake and Booth’s own apartment. The won-private nature of the front steps and common hallway only bolsters our conclusion that both laws at issue in this case were meant to include these areas.

Thus, we believe both the public intoxication and open container laws were intended to include Booth’s co-tenants as part of “the public” as defined by Iowa Code section 128.3(27). It is undisputed that each of her fellow tenants had the right to come and go through the front steps and common hallway of the apartment house, meaning the public “has or is permitted access” to these areas. See Iowa Code § 123.3(27). Thus, Booth was in a public place at the time her offenses were allegedly committed. The district court’s conclusion to the contrary was in error.

IV. Conclusion.

We reverse the decision of the district court and remand for entry of an order affirming the judgment and sentence of the judicial magistrate.

REVERSED AND REMANDED.

All justices concur except CARTER, J. and LAVORATO, C.J., who dissent.

CARTER, Justice

(dissenting).

I disagree with the conclusion of the court that the apartment house hallway and entry steps were public places so as to make either the state statute or local ordinance applicable to that area. We recognized in State v. Lake, 476 N.W.2d 55, 57 (Iowa 1991), that “[a] right of public access is a touchstone of the section 123.3(23) definition of a public place.” For purposes of applying that definition, I submit that public access refers to access by the public at large without invitation. I am confident that neither the tenants in this apartment building nor the building’s owner have chosen to open it up to public access. Those persons who are welcome there come by invitation, express or implied.

In determining whether the areas where the alleged crimes were committed were public places, the majority relies on three factors that have absolutely no bearing on whether Booth’s acts fall within the statutory definition of the crimes of which she has been convicted. These are the defendant’s status in the common areas of the building under the terms of her lease, the sensibilities of the other tenants in the building, and Fourth Amendment jurisprudence concerning a reasonable expectation of privacy. The tenant’s status in the common areas of the building under her lease in no way governs the right of public access. Nor do the tenant’s sensibilities to the conduct of other tenants.

Fourth Amendment jurisprudence was referred to in the Lake case to confirm the private nature of an automobile interior. The Fourth Amendment jurisprudence relied on by the majority is in no way determinative of a right to admission on the part of the general public. That is because there are many places where the general public is not admitted but where persons present do not enjoy a reasonable expectation of privacy. The district court acted properly in reversing the judgment of the magistrate, and I would affirm its order.

LAVORATO, C.J., joins this dissent.

      . Throughout the proceedings in her case, Booth has further supported her position through invocation of an analogy to the front steps of a single-family home, which, she asserts, clearly would not be a public place for purposes of the public intoxication or open container laws. The district court accepted this analogy as proof of the private nature of the common areas of the apartment house. However, we believe the front steps of a single-family home are clearly distinguishable from the front steps of Booth's apartment house. While the front steps of a single-family home permit regular access for the homeowners and their guests, the front steps of the apartment house are a common thoroughfare through which each tenant and their guests must pass. Moreover, while a single individual or family may bar access to the front steps of a single-family home, no single tenant holds the right to bar access to the apartment house. Ultimately, these distinguishing qualities convince us to avoid applying Booth’s analogy in resolving the issues presented in this case. We leave for another day any other questions related to the character of the front steps of a single-family home.

      . Although “several jurisdictions” have recognized the underlying purposes of laws such as those at issue in this case, each jurisdiction's interpretation of those laws turns on particular statutory language and interpretive principles. State v. Runner, 172 W.Va. 720, 310 S.E.2d 481, 483 (1983). Not surprisingly, some courts have found that the front steps and common hallway of an apartment complex are public places in circumstances nearly identical to those in this case while other courts have determined that these areas are not public places in similar circumstances. Compare Bailey v. State, 334 Ark. 43, 972 S.W.2d 239, 243 (1998), and People v. Perez, 64 Cal.App.3d 297, 134 Cal.Rptr. 338, 340 (1976), with City of Green v. Rhoades, No. 20169, 2001 WL 251351, at *2 (Ohio Ct.App. Mar. 14, 2001), and State v. Culp, 433 N.E.2d 823, 826 (Ind.Ct.App.1982). While we note the various conclusions reached by these courts, we believe the differences in statutory language and interpretive principles applicable to each case negate the value of these precedents for the resolution of this appeal.

      . In State v. Breuer, 577 N.W.2d 41, 42 (Iowa 1998), we considered whether the defendant had a legitimate expectation of privacy in the stairway/hallway "leading from the outer door of [his] apartment building to his upstairs apartment door” as part of our broader analysis of the defendant’s Fourth Amendment claim. The trial record in Breuer revealed, "that there were only two apartments in the building and that Breuer was the only tenant who used the hallway.” Breuer, 577 N.W.2d at 46. For this reason, "the hallway was not an area used by other people coming and going in the building and therefore [could not] be considered a 'common area.' ” Id. at 46-47. Thus, we concluded Breuer had a legitimate expectation of privacy in the hallway. See id. at 47. In reaching this conclusion, however, we specifically observed that, “those cases holding that a tenant does not have a reasonable expectation of privacy in hallways or common areas of multi-unit apartment buildings are not applicable to this case.” Id. at 47 n. 5 (emphasis added); see also State v. Anderson, 517 N.W.2d 208, 212 (Iowa 1994) ("[I]t is not necessary [in this case] to fully explore the extent to which the occupants of a multiple housing dwelling unit are entitled to an expectation of privacy.”).


author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Lawrence Scott DAME, Appellant.
    No. C8-02-1597.
    Supreme Court of Minnesota.
    Oct. 23, 2003.

      John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, MN, for Respondent.
   OPINION

HANSON, Justice.

Appellant Lawrence Scott Dame was convicted of five counts of murder in the first degree, in violation of Minn.Stat. § 609.185(a)(1) (2002), in connection with the deaths of his sister, Donna Mimbach, her husband, Todd Mimbach, and then-three children, Daniel Mimbach, age 22 months; Amber Duval, age 9; and John Mimbach, age 12. On appeal, Dame argues that (1) the district court erred in admitting crime-scene and autopsy photographs during the mental-illness phase of a bifurcated trial, (2) the district court erred by delaying jury deliberations after closing arguments, (3) it was prosecutorial misconduct for the state to question a witness regarding a matter that had been ruled inadmissible by the district court, and (4) the accumulation of these errors deprived him of a fair trial. We affirm.

During the evening of October 18, 2000, Dame took a hammer from the Mimbachs’ garage and severely bludgeoned his sister’s family to death and then cut four of the victims’ throats. Dame pleaded not guilty and not guilty by reason of mental illness. Pursuant to Minn. R.Crim. P. 20.02, the district court properly bifurcated the trial into a guilt phase and a mental-illness phase. During the jury voir dire, Dame waived his right to a jury trial for the guilt phase of the trial and submitted those issues to the court on stipulated facts. The court found that the state had proven the elements for each of the five counts of first-degree murder beyond a reasonable doubt.

The mental-illness phase of the trial was conducted before a jury. The test for the mental-illness defense in Minnesota is:

[T]he person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong.

Minn.Stat. § 611.026 (2002) (this test is commonly referred to as the “M’Naghten Rule”).

Three forensic psychiatrists testified as expert witnesses about Dame’s mental status at the time of the crime. Dame’s expert testified that Dame suffered from a mental illness he diagnosed as paranoid schizophrenia. He further testified that although Dame knew the nature of his acts, he did not know that his acts were wrong. The state’s expert, as well as the court-appointed expert, testified that Dame was not suffering from any mental illness but only from an extreme character or personality disorder, characterized as psychopathy. Each of these two witnesses testified that Dame did know the nature of his acts and that they were wrong and each diagnosed Dame as malingering.

The jury found Dame guilty of five counts of first-degree murder, rejecting Dame’s mental-illness defense. Dame does not challenge the district court’s instructions to the jury on the mental-illness defense, the legal test for mental illness in Minnesota, or the sufficiency of the evidence to support the jury’s verdict. Instead, he only argues that procedural errors deprived him of a fair trial.

I.

Dame argues that the district court erred in admitting crime-scene and autopsy photographs. Prior to the stipulation of phase one of the trial, the court carefully reviewed each of 78 crime-scene and autopsy photographs offered by the state. Some depicted the victims where they were found in the home, some showed the injuries after the victims had been cleaned for purposes of the autopsy, and some were photographs of x-rays. The court weighed the probative value of each photograph with its potential prejudicial effect and determined that 42 of them would be excluded.

After the commencement of phase two of the trial, the court re-examined the state’s offered photographs and again determined admissibility based on their relevancy to the mental-illness defense. Based on this review, the court excluded an additional 12 photographs. When the state’s forensic pathologist used diagrams to assist her testimony on the issue of Todd Mimbach’s death, the court sustained Dame’s objection to the photographs of Todd Mimbach, ruling that the state could introduce either the diagrams or the photographs, but not both. Thus, 7 photographs of Todd Mimbach were excluded. The court ultimately admitted 13 colored photographs and 4 photographs of x-rays.

The photographs selected for admission were presented to the jury as part of the testimony of the state’s forensic pathologist. She testified to the condition of the bodies at the crime scene and during autopsy. The photographs were used to supplement her testimony and to demonstrate her conclusions about the cause and manner of death.

Rulings on the admissibility of photographs as evidence are in the broad discretion of the district court and will not be reversed on appeal absent a showing of a clear abuse of discretion. State v. Stewart, 643 N.W.2d 281, 292 (Minn.2002). In determining the admissibility of photographs, the district court must consider the relevance of each photograph and must also weigh the probative value of that photograph against its prejudicial effect. Minn. R. Evid. 401, 408.

Clearly, the photographs would have been admissible in the trial of the guilt phase. We have held on numerous occasions that photographs of a crime scene and the victims are important in assisting the trier of fact in determining the elements of the alleged crime. State v. Lee, 645 N.W.2d 459, 467-68 (Minn.2002); State v. Sullivan, 502 N.W.2d 200, 202 (Minn.1993); State v. Jobe, 486 N.W.2d 407, 416-17 (Minn.1992). Gruesome photographs are part of the reality of gruesome crimes. Jobe, 486 N.W.2d at 417. But we have cautioned that graphic photographic evidence should be carefully monitored by the district court to prevent an undue prejudicial effect on the jury. Id.

This ease presents a unique issue. Normally, the same jury hears both the guilt phase and the mental-illness phase of a trial, and thus the jury would be exposed to the crime-scene photographs during the guilt phase. Minn. R.Crim. P. 20.02, subd. 6(2). But here the jury did not hear the guilt phase and the question presented is whether the photographs are relevant solely to the mental-illness phase. Only two other jurisdictions have addressed the use of photographs in similar situations.

In Shepherd v. State, 547 N.E.2d 839, 841 (Ind.1989), the defendant conceded at trial that he had murdered the victim. The only remaining issue was that of the defendant’s mental status. Id. The Indiana Supreme Court, noting that the photographs are relevant “as an aid to understanding the pathologist’s findings on the cause of death,” held that crime-scene photographs were properly admitted by the trial court. Id. at 841-42.

In People v. Galimanis, 765 P.2d 644, 646 (Colo.Ct.App.1988), the Colorado Court of Appeals held that in a sanity hearing, prior to a hearing on the substantive elements of the crime, graphic photographic and videotape evidence of a decapitation was relevant. Specifically, the court held that the evidence was probative of the defendant’s ability to deliberate. Id.

Dame’s argument that the photographs contain no relevant information to Dame’s mental status is unpersuasive. Although the photographs are not as probative for determining the mental status of the defendant as they are for determining the elements of first-degree murder, the photographs still retain probative value for the second phase of the trial. The district court correctly determined that circumstantial evidence about a person’s behavior, activities, and conduct is helpful to the jury in determining Dame’s state of mind at the time of the murders. This court has previously indicated that the jury may view circumstantial evidence that relates to cognition, volition, and capacity to .control behavior when determining the defendant’s state of mind. State v. Wilson, 539 N.W.2d 241, 244 (Minn.1995).

Further, the district court correctly determined that the photographs were relevant to the question of whether Dame knew the nature and consequences of his acts. They show a consistent pattern in the infliction of injuries and illustrated the pathologist’s description of the nature and sequence of the injuries.

Dame argues that the district court should have directed the state to use autopsy diagrams, which were less graphic. The district court did require the state to choose between diagrams and photographs. But the district court’s function is to look to the relevancy and probative value of the evidence, not to choose one form of evidence over another. Minn. R. Evid. 401, 408.

The district court thoroughly examined each photograph, specifically re-examined each photograph for the mental-illness phase of the trial, and carefully weighed each photograph’s probative value against its prejudicial or cumulative effect. Where the court found repetition or non-relevant depictions in a photograph, the court excluded it.

We conclude that the district court did not abuse its discretion in allowing the autopsy and crime-scene photographs to be admitted in the mental-illness phase of the bifurcated trial.

II.

Dame argues that the court erred in delaying the jury instructions and deliberations after closing arguments were completed. Summation was completed on Friday, May 31, 2002. Due to a commitment of one of the jurors for the weekend, the judge delayed jury instructions and deliberations until the following Monday, June 3, 2002.

The issue of whether a district court has discretion to delay jury deliberations after closing arguments is one of first impression for this court. The court of appeals has determined that a district court’s decision regarding the scheduling of the submission of a case to the jury should only be overturned if the court has clearly abused its discretion. See State v. Stahlberg, 373 N.W.2d 843, 844 (Minn.App.1985), rev. denied (Minn. Oct. 24, 1985). In Stahlberg, the court of appeals held that the district court, concerned with submitting the case to the jury late in the day, did not abuse its discretion when it decided to adjourn at 2:30 p.m. and delayed charging the jury until the following day. Id.

As a general matter, a district court has considerable discretion in controlling procedural aspects of the trial. State v. Richards, 495 N.W.2d 187, 197 (Minn.1992); State v. Burch, 284 Minn. 300, 315, 170 N.W.2d 543, 553 (1969). “[A] criminal defendant seeking a new trial for an alleged defect in proceedings bears the burden of showing not only that there was a defect but that the defect was prejudicial.” State v. Crandall, 452 N.W.2d 708, 710 (Minn.App.1990) (citing State v. Sanders, 376 N.W.2d 196, 204 (Minn.1985)).

Dame has provided no evidence of actual prejudice, but argues that prejudice should be presumed. We have recognized a presumption of prejudice only in those cases where the district court’s procedural choices resulted in a high probability of prejudice to the defendant. For example, in State v. Costello, 646 N.W.2d 204, 215 (Minn.2002), we held that allowing jurors to question witnesses was error and was not subject to a harmless-error analysis because it would be impossible to determine the effects of the error. In Crandall, the district court inadvertently allowed an alternate jury member to remain with the jury for the initial part of deliberations. 452 N.W.2d at 710. The court of appeals held that this was a clear violation of court procedure and that the contamination of the jury process was a serious error that resulted in a presumption of prejudice. Id.

We see no basis for presuming prejudice here. The court’s delay of the jury instructions and deliberations did not violate any rule and did not create a high probability of prejudice. Moreover, the court specifically instructed the jurors, at the conclusion of closing arguments and throughout the trial, that they were not to speak with anyone about the case or to come to conclusions on their own. The court reminded the jurors not to do any investigating on -their own. We conclude that the district court did not abuse its discretion when delaying jury instructions and deliberations until the following Monday.

III.

Dame argues that the prosecutor committed misconduct by questioning a witness about a topic that had been ruled irrelevant by the district court. After much discussion, the court announced that testimony concerning Dame’s medical treatment after his arrest was not relevant to the determination of mental illness at the time of the offense. The court expressed reservations about this ruling, noting that Dame’s use or lack of use of mental-health resources could be considered relevant to the issue of feigning a mental illness. The court stated that it was receptive to an offer of proof that evidence of mental-health treatment was relevant to the mental-illness defense.

During the direct examination of the court-appointed forensic psychiatrist, the state asked whether Dame was taking medication after his arrest. Dame objected. The court sustained the objection and the witness was not allowed to answer. After a recess, Dame moved for a mistrial, claiming that the prosecutor’s question was misconduct. The court denied that motion.

The state has a duty to see that the defendant receives a fair trial. State v. Henderson, 620 N.W.2d 688, 701-02 (Minn.2001). Granting of a new trial based on prosecutorial misconduct rests within the discretion of the district court. Id. at 702. “[The supreme court] will not disturb a district court’s conclusion that no misconduct occurred unless the misconduct, viewed in light of the entire record, was so inexcusable, serious, and prejudicial that the defendant’s right to a fair trial was denied.” Id. at 702.

In Henderson, we concluded that the prosecutor did not commit misconduct by asking two questions with the intention of eliciting improper and prejudicial evidence, one of which was answered before objection. Id. In the present case, the prosecutor asked only one question and the objection to that question was sustained before the witness answered. The prosecutor did not continue that line of questioning. Additionally, the court properly instructed the jury that they were not to consider any questions posed by attorneys that the court did not allow to be answered by the witness.

It is also arguable that the question was not clearly prohibited by the court’s earlier ruling. The court discussed this issue with the parties on more than one occasion. Additionally, our review of the record shows that the subject of Dame’s medication after the offense had already been opened by Dame’s counsel during the direct examination of Dame’s expert witness, who confirmed that Dame was not receiving medication at the various times that he interviewed him in the jail. We conclude that the state’s single question was not misconduct and, in any event, was not prejudicial. See Henderson, 620 N.W.2d at 702.

Affirmed.

      . Malingering was defined at trial as "feigning or exaggeration of psychiatric symptoms for secondary gain.”

      . The standard for the admissibility of photographs was set forth in State v. DeZeler, 230 Minn. 39, 46-47, 41 N.W.2d 313, 319 (1950):
      Photographs are admissible as competent evidence where they accurately portray anything which it is competent for a witness to describe in words, or where they are helpful as an aid to a verbal description * ⅜ * provided they are relevant to some material issue; and they are not rendered inadmissible merely because they vividly bring to jurors the details of a shocking crime or incidentally tend to arouse passion or prejudice.

      . This caution was expressed in Jobe:

      While the fact that [the photographs] are horrifying does not make them inadmissible, we want to remind courts and prosecutors of our increasing discomfort with the large numbers of autopsy and crime scene photos being admitted. Given the possible prejudicial effect on the jury of viewing these gruesome scenes, we ask that courts exercise their discretion to ensure that the jury is adequately informed without being overwhelmed.

        Jobe, 486 N.W.2d at 417.

      .The mental-illness defense in Indiana differs somewhat from Minnesota since the option of guilty but mentally ill is available in that jurisdiction. See Shepherd, 547 N.E.2d at 842.

      . "[A] trial court need not determine that the photographs and other visual aids are necessary in order to admit them into evidence. The appropriate test regarding the admissibility of photographs and other visual aids is relevance, in other words, whether the photographs and other visual aids are helpful to the jury.” State v. Walen, 563 N.W.2d 742, 748 (Minn.1997).