State of Iowa v. Robert Paul Krogmann , 804 N.W.2d 518 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 10–0113
Filed October 7, 2011
STATE OF IOWA,
Appellee,
vs.
ROBERT PAUL KROGMANN,
Appellant.
Appeal from the Iowa District Court for Dubuque County,
Lawrence H. Fautsch, Judge.
The defendant appeals his convictions for attempted murder and
willful injury. AFFIRMED.
Dean Stowers of Stowers Law Firm, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Martha E. Trout and Jim Kivi,
Assistant Attorneys General, and John Bernau, County Attorney, for
appellee.
Matthew McCusker, Seattle, Washington, and Sonia Chopra,
Oakland, California, for amicus curiae American Society of Trial
Consultants.
2
MANSFIELD, Justice.
Robert Krogmann appeals his convictions, following a jury trial, for
attempted murder and willful injury. Krogmann contends the district
court erred in granting the State’s pretrial request to freeze all his
personal assets and requiring that he apply to the court for permission to
use those assets for his legal defense. Krogmann also maintains the
prosecutor committed reversible misconduct by asking an inflammatory
question at trial.
Although we have concerns about the propriety of the asset freeze,
we find that Krogmann failed to preserve error. We also find that error
was not preserved as to the single incident of asserted prosecutorial
misconduct and that this incident would not have amounted to reversible
error in any event. For these reasons, we affirm Krogmann’s convictions.
I. Background Facts and Proceedings.
On March 13, 2009, defendant Robert Krogmann, an individual
with a history of depression and bipolar disorder, went to the home of his
former girlfriend Jean Smith in an attempt to revive their recently ended
relationship. While there, he shot Smith three times with a handgun.
The first bullet entered Smith’s stomach, the second her arm, and the
third her spine. According to Smith, Krogmann told her “that if he
couldn’t have me, no one was going to have me and that we were both
going to die there together that day.”
Krogmann then called his son Jeff and told him what he had done.
Jeff rushed to Smith’s house dialing 911 while en route. When Jeff
arrived, he found Smith lying on the floor with her robe soaked in blood.
Jeff convinced his father to turn over the gun.
Krogmann was arrested shortly thereafter. On March 23, 2009,
the State charged Krogmann with one count of attempted murder, a
3
class “B” felony, and one count of willful injury causing serious injury, a
class “C” felony. See Iowa Code § 707.11 (2009) (attempted murder); id.
§ 708.4(1) (willful injury causing serious injury).
On March 24, 2009, the State applied for an order freezing all of
Krogmann’s assets. The unverified application stated that Smith had
suffered severe injuries necessitating lengthy hospitalization, that
Krogmann would be required to reimburse the victim for out-of-pocket
expenses associated with hospitalization and after-care, that Krogmann
would be subject to civil litigation, and that Krogmann “has a number of
assets that he may attempt to sell or transfer to avoid his financial
obligations to the victim of his offenses.”
On March 30, 2009, the district court entered the requested order
freezing all of Krogmann’s roughly $3.4 million in assets.1 The order
said:
All of the Defendant’s assets shall be frozen. The Defendant
shall make application to the Court for the sale or transfer of
an asset at which time the Court will determine whether
good cause has been shown to grant the application.
Because of a mailing error by the county attorney, Krogmann’s
attorney did not receive notice of the State’s application until March 30,
2009. Unaware that the court had already granted the State’s requested
order, Krogmann filed a resistance on April 2, 2009. The resistance
stated, in its entirety:
COMES NOW the Defendant, by counsel, and hereby
resists the State’s application for order, and in support
thereof states:
1The initial report and inventory prepared by the conservator indicated that
Krogmann, a farmer, had approximately $3.3 million in assets—$2,758,000 in real
estate; $18,834.84 in mortgages, notes, deposits and cash; and $520,912.53 in
miscellaneous property, largely farm products and equipment. A subsequent court
order referenced an updated inventory of “approximately $3.4 million.”
4
1. The State asks the Court to freeze Defendant’s
assets.
2. The State has cited no authority for such nor does
any exist.
3. Should the Court deem hearing necessary on the
State’s application, the undersigned will not be available for
hearing for one and one half weeks starting 4/6/09 due to
being in trial in federal court.
WHEREFORE, Defendant prays the Court deny the
State’s application for order, and prays for such further and
other relief as may be fair and just.
The district court took no action on Krogmann’s resistance, so on
April 28, 2009, he filed an application for interlocutory appeal with this
court. In that application, Krogmann pointed out that the district court
had frozen his assets without a hearing and had cited no authority in its
order. Krogmann argued that the district court “acted without
authority,” citing State ex rel. Pillers v. Maniccia, 343 N.W.2d 834 (Iowa
1984). He also maintained that the district court violated his “right to
due process as guaranteed by the Fourteenth Amendment to the United
States Constitution.”
Krogmann’s application was treated as one for discretionary review
and denied by this court on May 26, 2009.
Krogmann’s bond was initially set at $750,000 cash only but was
increased to $1 million cash only on June 1, 2009. To manage his frozen
assets in accordance with the court order while he was in jail, Krogmann
voluntarily established a conservatorship on April 13, 2009, naming an
attorney (not his criminal defense lawyer) as conservator. Because of the
asset-freeze order and the conservatorship, disbursement requests had
to be made by the conservator and then approved by the probate court.2
2The order appointing conservator provided, “The Conservator appointed
hereunder shall adhere to the Order of the District Court in the criminal case and make
application to the Court for authority to sell or transfer any assets other than in the
5
Thus, court permission was required to pay legal fees and other defense-
related expenses.
This process led to some delays in payments to Krogmann’s
defense lawyer. Also, two specific defense-related requests were rejected
by the probate court after having been resisted by either Smith or the
State. On July 20, 2009, following Smith’s objection, the court denied
Krogmann’s request to use his farmland as security to post bail. Then,
on October 30, 2009, following State objections, the court denied
Krogmann’s request to expend funds on a jury consultant.
At the October 27, 2009 pretrial conference preceding the criminal
trial, the parties discussed the jury consultant at some length.
Krogmann’s defense attorney explained his plan to use the consultant to
assist with jury selection. The State countered that the consultant would
be “a luxury, not a necessity.” Ultimately, the district court decided that
the defendant would be allowed to use the consultant if he were able to
retain one. The State then filed an objection in the probate court the
next day, reiterating its view that funds for a consultant should be
denied because “a jury consultant is consider[ed] a luxury rather than a
necessity” and the defendant has no “right” to a jury consultant. On
October 30, 2009, the probate court 3 denied the request for jury
consultant funds without explanation. Accordingly, Krogmann
proceeded to trial on November 2, 2009, without a jury consultant.
Because there had been a change of venue, Krogmann went to trial
in Dubuque County. Krogmann presented a diminished capacity
________________________________
normal course of the farming operation where the transfer is made for good and
valuable consideration.”
3The same judge who had conducted the pretrial conference and who would
preside over the criminal trial the following week denied this request in his capacity as
probate judge.
6
defense. The jury did not accept the defense and found him guilty of
both charges on November 6, 2009. Krogmann was subsequently
sentenced to a term of incarceration of up to twenty-five years for the
attempted murder and a term of incarceration of up to ten years for the
willful injury, with the terms to run consecutively.
Separate from the asset-freeze order, the State had also filed a
criminal restitution lien under Iowa Code section 910.10 (2009) on June
18, 2009. Following his convictions, Krogmann was ordered to pay
$35,570.14 in restitution to Smith and $18,219.54 in restitution to the
Delaware County Sheriff’s Department and the State for its prosecution
expenses.
Krogmann filed a notice of appeal on January 14, 2010. On
appeal, Krogmann argues that the asset freeze was contrary to Iowa law
and also violated his constitutional rights to due process, to be free from
unreasonable seizures, and to counsel. Additionally, Krogmann argues
that the State deprived him of the right to a fair trial when it asked him
during cross-examination, “Shot anybody today?”
II. Standard of Review.
In considering alleged violations of constitutional rights, our
standard of review is de novo. State v. Lyman, 776 N.W.2d 865, 873
(Iowa 2010). “[W]e make an independent evaluation [based on] the
totality of the circumstances as shown by the entire record.” State v.
Brooks, 760 N.W.2d 197, 204 (Iowa 2009) (internal quotation marks
omitted). “Each case must be evaluated in light of its unique
circumstances.” Id.
“A temporary injunction is a preventive remedy to maintain the
status quo of the parties prior to final judgment and to protect the
subject of the litigation.” Lewis Invs., Inc. v. City of Iowa City, 703
7
N.W.2d 180, 184 (Iowa 2005) (internal quotation marks omitted). Our
review is for an abuse of discretion. Id. The decision to issue a
temporary injunction “requires great caution, deliberation, and sound
discretion.” PIC USA v. N.C. Farm P’ship, 672 N.W.2d 718, 722 (Iowa
2003) (internal quotation marks omitted). We usually will not overturn
such a decision unless there has been an abuse of discretion or violation
of a principle of equity. Id.
Prosecutorial misconduct claims are reviewed for abuse of
discretion. State v. Jacobs, 607 N.W.2d 679, 689 (Iowa 2000). Abuse is
found if “a court acts on grounds clearly untenable or to an extent clearly
unreasonable.” State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006).
III. The Asset Freeze.
The threshold question we must answer is whether Krogmann
preserved error in the district court on his objections to the asset freeze.
As noted by the State, Krogmann filed only a one-page resistance to the
State’s application in the district court, after the application had been
granted, in which he argued that no authority existed for the asset
freeze. Although Krogmann later filed a slightly more detailed application
for interlocutory appeal, that filing was with our court, not the district
court. Krogmann never supplemented his original resistance in the
district court. After learning the district court had granted the State’s
application before receiving his resistance, Krogmann made no effort to
urge the district court to withdraw its order nor did he seek a hearing
before the court.
The doctrine of error preservation has two components—a
substantive component and a timeliness component. Krogmann had to
alert the district court to his specific objections, and he had to do so in a
timely manner. In this case, Krogmann’s one-page resistance said only
8
that “[t]he State has cited no authority for [the asset freeze] nor does any
exist.” Krogmann did not raise any of the constitutional arguments that
he presents in his current appeal. In fact, he did not even argue to the
district court that the asset freeze was unconstitutional. This was
insufficient to preserve error on his constitutional arguments. See State
v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008) (stating that “[a] party
challenging the constitutionality of a statute must alert the court to what
specific constitutional provisions are allegedly compromised by the
statute” (internal alteration and quotation marks omitted)).
Krogmann did insist there was “no authority” for the asset freeze.
Some time ago, in Maniccia, we held that a district court could not enter
an injunction barring a person charged with a crime from disposing of
property that might otherwise be used to reimburse the crime victim or
the county. 343 N.W.2d at 834. As we put it, “[A] court of equity has no
inherent power to issue the injunction requested by petitioner.” Id. at
835. The only difference here is that the State sought the order within
the criminal case, instead of filing a separate civil action for injunctive
relief.
Also, the State has the statutory right to seek a criminal restitution
lien to protect both its interests and those of the victim. See Iowa Code
§ 910.10. 4 Indeed, it requested and received such a lien. Under these
circumstances, one might well question the State’s ability to obtain
4Section
910.10(1) provides, “The state or a person entitled to restitution under
a court order may file a restitution lien.” The restitution lien must set forth certain
information, including “[t]he amount of restitution the person has been ordered to pay
or is likely to be ordered to pay.” Iowa Code § 910.10(2)(g). As noted above,
Krogmann’s judgment and sentence required him to pay approximately $36,000 in
victim restitution and $18,000 in restitution to the State.
9
inherent injunctive relief beyond the statutory remedy already afforded
by section 910.10. 5
But our regular error preservation rules also require parties to
alert the district court “to an issue at a time when corrective action can
be taken.” Top of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470
(Iowa 2000). Krogmann failed to do this. Upon learning that the district
court had already entered the asset freeze, he never requested a hearing
nor sought dissolution of the order. 6 Krogmann was aware the district
court had failed to rule on his objection to the asset freeze before
granting it. Yet he never sought out the court and requested a ruling on
that objection. “There is no procedural rule solely dedicated to the
preservation of error doctrine, and a party may use any means to request
the court to make a ruling on an issue.” See Meier v. Senecaut, 641
N.W.2d 532, 539 (Iowa 2002). Still, when a court fails to rule on a
matter, a party must request a ruling by some means. Id.
Krogmann refers us to other filings where he raised objections to
the asset freeze. 7 Yet for various reasons, we find those filings
insufficient to preserve error. First, Krogmann refers us to his April 28,
5The State notes on appeal that section 910.10(5) provides, “This section does
not limit the right of the state or any other person entitled to restitution to obtain any
other remedy authorized by law.” (Emphasis added.) Still, this begs the question of
how the asset freeze was “authorized by law.”
6Had this been a temporary injunction in a civil case, the rules make it clear
that a motion to dissolve would be an appropriate procedural avenue:
A party against whom a temporary injunction is issued without notice
may, at any time, move the court where the action is pending to dissolve,
vacate or modify it. Such motion shall be submitted to that court. A
hearing shall be held within ten days after the filing of the motion.
Iowa R. Civ. P. 1.1509.
7After oral argument, Krogmann submitted a document entitled “supplemental
record references” to support his assertions of error preservation. The State moved to
strike this filing but also responded to it. We deny the motion to strike but have
considered both the “supplemental record references” and the State’s response to them.
10
2009 application for an interlocutory appeal and a stay of the freeze
order. That application mentioned the lack of a prior hearing, Maniccia,
and the Fourteenth Amendment right to due process. That application,
however, was directed at us, not the district court. While Krogmann
apparently mailed an informational copy to the district court clerk, he
did not request the district court to take action.
Next, Krogmann calls attention to his postverdict motion for new
trial. In that motion, Krogmann argued as grounds for new trial that he
could not hire a jury consultant because of the asset freeze and that his
due process rights were violated when defense counsel needed additional
funds and a hearing had to be held “via the conservatorship.” However,
a motion for new trial is not the appropriate time to raise matters for the
first time that could have been raised earlier. See Hobbiebrunken v.
G & S Enters., Inc., 470 N.W.2d 19, 23 (Iowa 1991); State v. Winquist, 247
N.W.2d 256, 259 (Iowa 1976). We have previously held that a defendant
cannot await the outcome of a jury trial “and then raise an issue of
which he was aware from the beginning.” State v. Traywick, 468 N.W.2d
452, 455 (Iowa 1991); accord State v. Jackson, 397 N.W.2d 512, 514
(Iowa 1986).
Krogmann also points us to a motion to continue trial that he filed
shortly before the November 2, 2009 trial date. In that motion, he raised
the Sixth Amendment to the U.S. Constitution. However, his argument
there was that denying a continuance would deprive him of rights
guaranteed by the Sixth Amendment. The motion did not even mention
the asset freeze.
Lastly, Krogmann directs us to several filings and developments in
the conservatorship proceeding, not the criminal case. As noted, shortly
after the district court issued the order in the criminal case freezing his
11
assets, Krogmann voluntarily established a conservatorship. Thereafter,
the conservator had to obtain probate court approval whenever
additional funds were needed for Krogmann’s defense. On September 2,
2009, Krogmann’s defense counsel responded directly when the victim
objected to the conservator’s request for additional criminal defense
funds, stating that such objections “chill[ed]” his defense. On September
18, the probate court ruled that it “will not refuse to pay these sums as
the Defendant has a right to competent counsel under the Sixth
Amendment . . . .” On October 20, 2009, the conservator submitted a
letter from Krogmann’s defense counsel to the probate court invoking
this language and requesting additional money.
While these events illustrate certain effects of the asset-freeze
order, they cannot be deemed objections to the order itself. Also, they
were filed in a separate proceeding, the conservatorship, not the criminal
case.
On a related note, Krogmann emphasizes that the probate court
denied permission for him to use his personal assets as security for bail
and to hire a jury consultant. If this were an appeal in the
conservatorship, we might be able to review those particular rulings.
Since this appeal is from the judgment in the criminal case, however,
those matters are relevant only as consequences of the asset freeze. As
we have noted, Krogmann did not make a timely or sufficient objection to
that freeze. 8
Our determination that Krogmann has failed to preserve error does
not mean we approve of the asset freeze. We are troubled by the State’s
8Krogmann has not pursued an ineffective assistance counsel claim on this
appeal relating to the asset freeze or the conservatorship. Our opinion does not
preclude Krogmann from pursuing such a claim in the context of a postconviction relief
proceeding.
12
effort to tie up a criminal defendant’s personal assets without citing any
rule or statute, without making a verified filing, and without citing the
district court to relevant authority (Maniccia). We are also troubled by
the State’s attempts to use the asset freeze, once it was in place, to object
to defense expenditures not on the ground they would jeopardize
restitution or other victim compensation (the alleged reasons for the
asset freeze), but simply because the State deemed them unnecessary.
IV. Krogmann’s Claim of Prosecutorial Misconduct in the
Criminal Trial.
We turn now to Krogmann’s argument that he was denied a fair
trial due to prosecutorial misconduct. When Krogmann took the stand
in his own defense, he testified that he had been diagnosed with bipolar
disorder, had suffered from depression, and had at times been
hospitalized. He also testified that on March 13, 2009, he had no intent
to hurt Jean Smith but was “quite depressed” and had been “suicidal
just two days previous.” Krogmann also mentioned attempts to commit
suicide after he was arrested.
The State’s cross-examination of Krogmann then began as follows:
Q. Mr. Krogmann, you were suffering, you said, from
bipolar disorder on March 13th? A. I was suffering from
depression, bipolar is my—I’m diagnosed bipolar but I would
say I was very depressed.
Q. And today you’re suffering from bipolar; isn’t that
correct? A. When you—when you have bipolar, you—you
try to medicate or you try to be medicated by medications.
Q. Sir, excuse me, my question was: You have that
disease today? A. I have bipolar, yes.
Q. Okay. Shot anybody today?
MR. BROWN: Your Honor, I object.
MR. KIVI: I’ll withdraw that question.
13
MR. BROWN: It’s argumentative.
THE COURT: Sustained.
Krogmann argues that the question, “Shot anybody today?” was
highly inflammatory and necessitates a new trial. We do not believe,
however, that Krogmann has preserved a claim of prosecutorial
misconduct. He objected only that the question was argumentative; the
district court sustained the objection and the question was withdrawn;
Krogmann then asked for no further relief such as a mistrial. Krogmann
cannot obtain a new trial based on prosecutorial misconduct when he
failed to move for a mistrial at the time. State v. Radeke, 444 N.W.2d
476, 479 (Iowa 1989); State v. Dahlstrom, 224 N.W.2d 443, 449 (Iowa
1974). Based on the exchange quoted above, the district court had no
reason to believe that Krogmann wanted anything further done with
respect to the prosecutor’s improper question.
Furthermore, to prevail on a claim of prosecutorial misconduct, the
defendant must show both the misconduct and resulting prejudice.
State v. Ruble, 372 N.W.2d 216, 218 (Iowa 1985). We consider:
“(1) the severity and pervasiveness of misconduct; (2) the
significance of the misconduct to the central issues in the
case; (3) the strength of the State’s evidence; (4) the use of
cautionary instructions or other curative measures; (5) the
extent to which the defense invited the misconduct.”
State v. Boggs, 741 N.W.2d 492, 508–09 (Iowa 2007) (quoting State v.
Graves, 668 N.W.2d 860, 869 (Iowa 2003) (internal citations omitted)).
The most significant factor is the strength of the State’s evidence. Id. at
509. “Prejudice can, but usually does not, result from isolated
prosecutorial misconduct.” State v. Anderson, 448 N.W.2d 32, 34 (Iowa
1989). “Ordinarily a finding of prejudice results from [p]ersistent efforts
14
to inject prejudicial matter before the jury.” State v. Webb, 244 N.W.2d
332, 333 (Iowa 1976).
In this case, the prosecutor’s questioning was directed toward a
legitimate trial theme: If Krogmann’s mental condition was such that he
lacked capacity to commit attempted murder on March 13, 2009, how
could he function satisfactorily on other occasions despite the same
mental condition? Still, the phrasing of the question was inflammatory
and improper. However, we do not believe this isolated incident of
misconduct was so severe or pervasive that it affected Krogmann’s right
to a fair trial. We think it unlikely that the prosecutor’s “glib” and
“sarcastic” 9 treatment of a tragic incident would have scored many points
with the jury; it is just as likely, in our view, that it would have offended
them. 10 We find no reversible error.
V. Conclusion.
For the foregoing reasons, we affirm Krogmann’s convictions.
AFFIRMED.
All justices concur except Zager, J., who takes no part.
9We borrow these adjectives from the State’s own appellate brief.
10In fact, Krogmann’s counsel tried to use this question against the State during
his closing argument. This effort stopped when the prosecutor objected and the district
court sustained the objection.