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IN THE COURT OF APPEALS OF IOWA No. 6-913 / 05-2005 Filed December 28, 2006

STATE OF IOWA, Plaintiff-Appellee, vs. EDWARD ALLEN BOHNSACK, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Webster County, Fredrick E. Breen, District Associate Judge.

Defendant appeals from his convictions for third-degree burglary, as an habitual offender, and possession of burglary tools. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Timothy N. Schott, County Attorney, and Ricki Osborn, Assistant County Attorney, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.

2 MAHAN, P.J. Edward Bohnsack appeals from his convictions for third-degree burglary, as an habitual offender, and possession of burglary tools. He argues the district court erred in denying his motion to excuse a juror for cause and in denying his motions for mistrial and for new trial based on jury misconduct. He also raises a claim of ineffective assistance of counsel. We affirm. I. Background Facts and Proceedings The morning of trial, Barb Besch, defense counsel's secretary, overheard a conversation about Bohnsack between three potential jurors who had noticed Bohnsack napping during jury selection. A potential male juror commented to two female jurors, later identified as Dawn Donnelly and Kathleen Anderson, "I sure would be paying a lot more attention if I was in his [Bohnsack's] shoes." The male juror was not identified. According to Besch, one of the two women, whom she could not identify, agreed with the male juror's comments. Besch believed that potential juror Christine Bloom, who was sitting next to Donnelly, also probably heard the conversation. After Besch informed defense counsel of the conversation, and counsel in turn informed the district court, Kathleen Anderson was removed for cause. Dawn Donnelly was questioned about the conversation and her ability to be impartial. Donnelly admitted she and two other jurors spoke about Bohnsack's demeanor and "the fact that he was napping." Donnelly admitted that "if it was me sitting up there, I wouldn't be napping." She believed, however, she could be a fair and impartial juror and explained that she presumed Bohnsack to be innocent.

3 Bohnsack's counsel moved to excuse juror Donnelly for cause. district court denied the motion: I don't see any cause for excusing this panelist. She accepts the presumption of the defendant's innocence in a way the last panelist who was excused did not. She said she can be fair and impartial. She has views about people who commit thefts, that they should be punished if convicted. That doesn't mean she's made a judgment about this gentleman's guilt or innocence. Following the denial of his motion to excuse juror Donnelly for cause, Bohnsack's counsel moved for a mistrial based on the conversation about Bohnsack sleeping during voir dire. The court denied the motion but allowed Bohnsack to continue examining potential jurors about the conversation. Christine Bloom testified she heard the conversation between jurors Donnelly and Anderson, but did not participate in it. From where she was During the morning The

seated, Bloom could not tell if Bohnsack was sleeping.

break, Bloom heard potential juror Stephanie Vote ask a group of people outside smoking if anyone had seen Bohnsack falling asleep. (The district court had dismissed Vote prior to Bloom's testimony.) Bloom testified the conversations she overheard had not affected her opinion about Bohnsack's guilt or innocence. Juror Brian Fishel testified the only time he heard mention of Bohnsack's demeanor was during counsel's examination of potential juror Vote. He had not been paying attention to the other jurors, nor did he participate in the conversation outside during the break. Juror Kari Johnson testified she had not heard comments about Bohnsack's demeanor, other than during counsel's examination of potential juror

4 Vote. She had not witnessed Bohnsack acting sleepy or acting like he was not paying attention. Juror Thomas Flagg recalled Vote's comment during counsel's

examination of her, but testified he had not heard similar comments about Bohnsack's demeanor from other jurors. He had not seen Bohnsack sleeping. Bohnsack renewed his motion for a mistrial following the examination of the jurors. The district court again denied the motion. It noted that defense counsel had scrupulously gone through all of the panelists . . . and secured their statement that they can be fair and impartial despite the fact that they, apparently, heard Ms. Vote voice her concern early on in the proceedings. So her statements at that time are not grounds for a mistrial. .... I think that the whole thrust of the evidence is that we've excused one juror [Anderson] who--for reasons really not related to the statements in question but because she had kind of a

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