State of Iowa v. Chad L. Erwin

IN THE COURT OF APPEALS OF IOWA

No. 18-0523
Filed December 19, 2018

STATE OF IOWA,
Plaintiff-Appellee,

vs.

CHAD L. ERWIN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Patrick A. McElyea,

Judge.

Chad Erwin appeals his conviction for operating a motor vehicle without the

owner’s consent. AFFIRMED.

Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Danilson, C.J., Doyle, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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DOYLE, Judge.

Chad Erwin appeals his conviction for operating a motor vehicle without the

owner’s consent. Before the start of trial and after Erwin’s attorney spoke to Erwin

about a waiver of reporting, Erwin asked the trial court to explain what waiving

reporting of the jury selection proceedings would mean. The court informed Erwin:

You have a right to have jury selection, the verdict reading, all of the
proceedings recorded. Okay? In all honesty, it’s very difficult to
report jury selection because oftentimes people are talking at the
same time, and the court reporter, although she’s very talented, can
only take down one person at a time.
....
And we also have to then announce names. Sometimes a
microphone might need to get passed around if it’s hard to hear
people. Logistically it can be very difficult. It can take a little bit
longer. It can make it more difficult to pick a jury sometimes. That’s
typically why your attorney presents that waiver. Now, that being
said, you have every right to have that. You’re not waiving any right
to a trial or to have the jury present, or anything along those lines. It
just means that that selection process won’t be taken down by a court
reporter. Now, if something does happen where we need to speak
with a juror individually or there’s an issue that arises, we can always
ask the court reporter—we can come into chambers and we can go
into another room in the courthouse and we can make another record
about that so that your rights are preserved.

Satisfied with the explanation, Erwin then signed a written waiver of reporting.

During the jury selection, concerns arose about potential juror’s ability to

remain fair and impartial. Because the jury selection proceedings were

unreported, the trial court later explained on the record what occurred:

Just to summarize, we held a conference with [the potential juror] in
chambers, outside the presence of the [other] prospective jurors and
off the record. She voiced some concern or inability to necessarily
be fair and impartial, had a negative experience with some family
members and law enforcement and courtroom proceedings, et
cetera; and, through the questioning of counsel, did not feel like she
could be fair and impartial. The State moved to strike her for cause
and the defendant objected. The Court found that she was not going
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to be fair and impartial, or presented an issue about being fair and
impartial, and granted the motion by the State.

When given a chance to add to the record, the prosecutor stated:

I would just add that I believe that the prospective juror had
voiced that a family member had been wrongfully convicted in her
mind, and I believe she directly stated that unless she had observed
the defendant herself commit a crime, she would not find him guilty.
She felt that there had been significant evidence against her brother
which was—anyway, she felt that her brother was still innocent, and
so she had directly stated that unless she observed the defendant
committing the crime, she would not convict him.

Erwin’s attorney stated, “it was just in our opinion and the argument that we made

in chambers was that the defense felt like that was just reasonable doubt.”

Erwin now argues that the trial court’s failure to ensure reporting of the

individual conference with the potential juror violated his constitutional right a fair

trial. In his brief, Erwin erroneously states error was preserved by his timely filing

of a notice of appeal.

However error is preserved, it is not preserved by filing a
notice of appeal. While this is a common statement in briefs, it is
erroneous, for the notice of appeal has nothing to do with error
preservation. In fact, the two concepts are mutually exclusive. As a
general rule, the error preservation rules require a party to raise an
issue in the trial court and obtain a ruing from the trial court.

Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil Appeals

in Iowa: Perspectives on Present Practice, 55 Drake L.Rev. 39, 48 (Fall 2006)

(footnotes omitted); see also, e.g. State v. Lange, 831 N.W.2d 844, 846-47 (Iowa

Ct. App. 2013) (citing article).

Although he concedes that he waived reporting of the jury selection, Erwin

notes that before doing so, the trial court assured him that he could make a record

to preserve any issues that arose during jury selection for appeal. However, Erwin
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never requested reporting of the discussion with the potential juror or raised any

objection to the trial court concerning the lack of reporting. Accordingly, he failed

to preserve this claim for our review. See State v. McCright, 569 N.W.2d 605, 607

(Iowa 1997) (“Issues not raised before the district court, including constitutional

issues, cannot be raised for the first time on appeal.”).

AFFIRMED.