IN THE SUPREME COURT OF IOWA

No. 14–1112

Filed April 8, 2016

STATE OF IOWA,

Appellee,

vs.

KENNETH OSBORNE ARY,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Rebecca 

Goodgame Ebinger (pretrial motions) and Lawrence P. McLellan (trial), 

Judges.

The State seeks further review of a court of appeals decision 

reversing a defendant’s criminal conviction. DECISION OF COURT OF 

APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN 

PART AND REVERSED IN PART; CASE REMANDED WITH 

DIRECTIONS.

Patrick W. O’Bryan, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney 

General, John P. Sarcone, County Attorney, and Daniel Voogt, Assistant 

County Attorney, for appellee.
2

WIGGINS, Justice.

A defendant appealed his conviction following a jury trial on three 

counts of delivery of a controlled substance in violation of Iowa Code 

section 124.401(1)(c)(3) (2013). We transferred the case to the court of 

appeals. The court of appeals reversed the conviction on the ground the 

defendant’s constitutional right to a fair trial by an impartial jury was 

violated when he was convicted by jurors who heard statements a 

prospective juror made during voir dire. The court of appeals thus 

remanded the case to the district court for a new trial without addressing

the defendant’s remaining claims. We granted the State’s application for 

further review.

On further review, we conclude the district court did not deprive 

the defendant of an impartial jury or abuse its discretion by declining to 

hold a hearing to permit the defendant to show cause for missing an 

extended discovery and deposition deadline. In addition, we conclude we 

are unable to decide the defendant’s claim of ineffective assistance of 

counsel. Finally, we agree with the State that the district court applied 

the wrong standard in ruling on the defendant’s motion for new trial on 

the ground the verdicts were contrary to the weight of the evidence. 

Accordingly, we vacate the decision of the court of appeals, reverse the 

district court judgment on the motion for new trial on the ground the 

verdicts were contrary to the weight of the evidence, and remand the case 

with instructions. We affirm the district court judgment in all other 

respects. 

I. Background Facts and Proceedings.

A jury convicted Kenneth Osborne Ary of three counts of delivery of 

a controlled substance in violation of Iowa Code section 124.401(1)(c)(3) 
3

on June 4, 2014. However, the claims before us on further review 

concern primarily the events leading up to his trial.

The State charged Ary with three counts of delivery of a controlled 

substance on October 28, 2013. On November 20, the district court 

arraigned Ary, scheduled a pretrial conference for December 19, and set 

trial for January 15. The court appointed counsel to assist him on 

November 25.1 

During the pretrial conference on December 19, Ary waived his 

right to a speedy trial. The court also scheduled a second pretrial 

conference for February 12 and rescheduled trial for February 24. The 

same day, the court issued a pretrial conference order stating Ary must 

file any motions he wished to file within forty days of his arraignment. 

Because the court arraigned Ary on November 20, his deadline for taking 

depositions as of right expired December 20, and his deadline for filing 

pretrial motions other than motions in limine expired December 30. See 

Iowa Rs. Crim. P. 2.11(4), .13(6).

During the second pretrial conference on February 12, the court 

rescheduled trial for June 2. That day, the court also issued a status 

conference order indicating it would grant no additional continuances of 

the trial date assuming witness availability. 

On February 25, Ary filed a handwritten pro se motion to produce. 

The court issued an order on March 6 stating it would withhold its ruling 

on the motion until defense counsel had an opportunity to consult with 

Ary. 

On March 11, defense counsel filed a motion to produce and a 

motion for good cause for taking depositions past the required time. In 

1We note Ary’s appellate counsel did not serve as his trial counsel.

 
4

the latter motion, counsel acknowledged the deadline for taking 

depositions had expired December 20 and asserted taking depositions 

past the deadline would not prejudice or inconvenience the State. The 

State filed a response to the motion to produce on March 14, indicating it 

would provide mandatory discovery and permit discretionary discovery. 

But the State filed a resistance to the motion for good cause on April 11, 

arguing the motion for good cause for taking depositions past the 

required time set forth no good cause for the untimely filing of the 

deposition request or permitting late discover of any type. 

The court heard arguments on the pending motions on April 22. 

During the hearing, defense counsel pointed out that after the court 

appointed counsel to assist Ary on November 25, Ary had no opportunity 

to meet with or speak to his appointed counsel until December 19. 

Thus, Ary did not meet his appointed counsel until just before his 

deadline for taking depositions as a matter of right expired on 

December 20 and his deadline for filing pretrial motions other than 

motions in limine expired on December 30. See id. Counsel further 

noted that because his office had only recently assigned him to the case, 

he remained uncertain as to whether depositions were appropriate. 

However, counsel did not identify any caselaw suggesting these facts 

amounted to good cause for missing the deadline for filing a pretrial 

motion seeking discretionary discovery or the deadline for taking 

depositions. 

The court concluded there was good cause to grant defense 

counsel one week to determine whether depositions were needed or 

further discovery was appropriate. The court ordered counsel to file 

written notice as to whether he needed to conduct depositions or further 

discovery by April 29. The court also reminded counsel the trial was still 
5

set for June 2 and it would not grant any further continuances assuming 

witness availability. Finally, during the hearing and in a writing filed 

later the same day, Ary reasserted his right to a speedy trial. 

The following day, the court issued a written order reiterating the 

April 29 deadline for filing the written notice. The order stated upon 

receipt of the notice, the court would promptly establish deadlines 

associated with any additional discovery sought. 

On April 30, one day after the extended deadline expired, defense 

counsel filed a notice of intent to take depositions and seek discovery. 

Two weeks later, the court had not yet ruled as to whether it would 

permit further discovery. On May 14, defense counsel filed a motion to 

determine the status of the pending deposition and discovery requests. 

In the motion, defense counsel indicated he realized too late in the day 

on April 29 that he was unable to meet the extended deadline the court 

had set during the April 22 hearing. Defense counsel also acknowledged

the State opposed the court granting the defendant leave to take 

depositions and seek further discovery due to this technical violation of 

the court order. 

On May 23, the court denied the pending deposition and discovery 

requests and declined to extend the deadline or permit Ary to conduct 

depositions or seek further discovery. 

Jury selection for the trial began on June 2. Early on during voir 

dire, the prosecutor questioned the prospective jurors about how they 

determine whether someone is telling the truth, asking, “Have you ever 

been in a position where someone has told you something and you had 

to decide whether you believe them or not?” Panel member J.W. raised 

his hand, and the prosecutor called on him. J.W. responded with the 

following information:
6

I’m a pastor, and I’ve dealt with all kinds of things with that. 

So, you know, there’s people that are pretty good liars. And 

you know that they’ve done something and you—they’re 

pretty good at spinning the truth, so to speak, you know. So 

I’ve dealt with a lot with people who, you know—you get a lot 

of people that come to your church and they’re hurting, you 

know, and they have issues, whether it be with alcohol, 

drinking and getting in trouble driving or drugs and are 

selling drugs. I’ve dealt with that. Had a lot of people that 

I’ve dealt with that have gone to jail. I’ve got people that 

have been accused of stealing even to an amount of felony 

and somehow they spun their way out of it. 

I told [fellow panel member J.K.] before I came in here I 

didn’t know what the case was but I said, if it’s involving 

drugs, I’d probably think the person is guilty and that’s only 

because of my personal experience because I realize that a 

person has a right to defend themselves and go through the 

process, but I think I’m fairly prejudiced on this, any kind of 

a drug case with all of my experiences because even people 

that I know come from good families, they try to pretend 

they’re innocent. I know the inside story, and I know they’re 

not. So when it comes to this type of thing with Des Moines 

Police who arrest the person on drug charges, it appears 

there’s guilt. 

Another panel member, A.H., spoke up in response to J.W., 

admitting she had “the exact opposite prejudice” because she believed 

most drugs should be legal. 

The prosecutor did not focus on what A.H. said. Instead, he 

turned back to J.W. and asked, “[W]hen you reach that conclusion in 

your own mind that this person has done something or they haven’t, 

they’re telling you the truth or they’re not, how do you do that?” J.W.

responded,

Well, I mean, you know, you talk to them, and, you know, 

you know—you’re fairly certain what’s going on. 

Like, I’ll give you an example. We had a student from the 

time they were in fifth grade, they were stealing, and I knew 

they were stealing, so I had to set them up. We had a little 

pop can to get pop, and we knew that—you’re supposed to 

drop a buck in the refrigerator can and take the bottle. So 

this kid would come by and he would, you know, come out 

with the pop, and, you know, we kind of watched and we 

started noticing, we don’t think he’s paying for this. In fact, 
7

we think he’s taking money out of the can. So we marked 

the—we took the serial numbers off of a $5 bill before that 

afternoon when he got out of school, and this is right on his 

route home. So we dropped it in the can. So when he went 

in there, we went in behind him and, sure enough, the 

suspicion was true. 

So all through the years he was always the one identifiable 

person constantly. Every time there was something 

missing—so the latest case was he was stealing from his 

mother. He stole from families in the church, and he denied 

it every time. He always spun it. And then he got down to 

where he took $1300. And he admitted it; went to court, got 

a little slap, nothing. And his mother was the one that 

turned him in and wished he’d have been sent off because 

she wants him out of the house. He’s out of control, and 

he’s just—you know, he’s a kid that just spins stuff.

And so when you know a person or when you’re around—

when you work with people a lot, you can detect what’s going 

on. I mean, I know that I’m bent, I’m prejudiced because I 

have never pastored a person that was accused of any type 

of drug possession, usage or delivery or selling that I didn’t 

know that they were guilty, and I found out and knew they 

were guilty because I know the people that know them and 

know that they went—they spun their story. They got out of 

court. They didn’t go to prison. They came back another 

time, spun out, didn’t go to prison, and then finally, they 

ended up in jail and they served two terms or probably 20 

some years, you know, because it got worse and got worse 

and got worse. 

So I’m just telling you up front that I am—I—while I want to 

believe a person is innocent until proven guilty, I on the 

other hand don’t think that drugs should be legalized 

because it destroys people. It’s so addictive and it ruins 

their lives, so—and I’ve worked with too many people every 

day, day in, day out, so—I pastor over 5000 people, have a 

staff of ten pastors.

J.W. continued uninterrupted, explaining he was missing a funeral 

to be at the courthouse. He then concluded his response by bringing up 

the conversation he had with fellow panel member J.K. when the 

prospective jurors were lined up in the hallway waiting to enter the 

courtroom before jury selection began. He said,

So I’m out there telling her, I hope it’s not a drug case 

because I’m going to go in there—we were laughing about it a 
8

little bit because of my attitude. But it’s not because I’m just 

a jerk. It’s because of my experiences. I’m sorry. It’s just—

if there’s a smoking gun, then there’s a problem there. 

The prosecutor responded to J.W.’s apology for his attitude toward those 

accused of drug-related crimes by reassuring him, “[T]here’s nothing to 

be sorry about that.” 

A moment later, the prosecutor again asked J.W. how he forms an 

opinion as to whether a person is telling the truth:

[O]ne of the things that you told us was you may know the 

person or you may know people who know that person, or in 

the situation with the can, the pop can, the pop money, 

there were other facts that you believed that helped you 

confirm your suspicion. Is that right?

J.W. responded, “Right.” 

The prosecutor then directed the following comment to the entire 

panel: 

So one of the points I wanted to raise is, while you all are 

fish out of water today and for the part of this process, these 

are the kinds of processes, the kinds of decisions, not the 

same decisions but the kinds of decisions that you make 

every day. It may be in an educational situation. It may be 

with your own children. It may be with people you pastor. It 

may be in the insurance business. Whatever the case may 

be, we make decisions using our brains in the same fashion. 

Different topics but the same kind of process.

Minutes later, the prosecutor turned to prospective juror A.H. and said,

So this is a drug case. And people have different views. 

[A.H.], I think you said that you believed—and I don’t want to 

put words in your mouth, but you said some or most or 

some drugs anyway should be legal. Now [J.W.] or myself, if 

we were sitting around at Starbucks having a cup of coffee, 

may have a philosophical discussion with you about that. 

We may disagree.

A.H. nodded, and the prosecutor continued,

But this is a different context again. As of right now—and 

this particular case involves what’s commonly called crack 

cocaine. But really, whether it’s marijuana or some other 

drug, right now in the state of Iowa, you can’t possess those 
9

drugs; you can’t use those drugs; you can’t sell those drugs; 

you can’t make those drugs. You understand that, right?

A.H. responded, “I understand.” The prosecutor then asked A.H. if she 

could set aside her personal opinion and follow a jury instruction from 

the judge. A.H. indicated she would, but she added, “It would go against 

my conscience.” When asked if she understood that jurors should not 

ignore the facts or the law in reaching a verdict, A.H. confirmed she did. 

Following this exchange, the prosecutor explained to the jurors 

that ignoring the facts or the law in reaching a verdict is called jury

nullification. In his words, 

Jury nullification involves jurors who believe because they’re 

jurors they can disregard facts; they can disregard what the 

law is and just do whatever you want because you’re a juror. 

That’s not how we do it here. Does anybody feel that way, 

that’s how they’re going to handle a case like this, relating to 

the evidence? 

J.W. immediately responded to the prosecutor’s explanation:

I’m not sure I understand your question. If you’re asking the 

question whether or not I think that I could be impartial or 

the fact that I could know what the law is and what I’m 

supposed to do and actually be able to do that, I really—I do 

not think I can, I mean, honestly. And that’s to be fair to the 

gentleman being accused in the sense that, you know, I’m 

going to have a very difficult time with that because I’ve 

never known anyone where—and, I mean, you know, a lot of 

situations. 

I mean, I’m 61. I’ve been in this thing for 40 years, and I’ve 

worked with lots and lots of people, and I’ve never known a 

case where someone was falsely accused of possession or 

using or delivery; never once when it wasn’t true. Never. 

I have 20 law officers in my congregation. And, you know, 

Mark Wilson, wore [a badge] for years, my best friend. And I 

don’t—I just have to say that I’m really going to have a hard 

time because I know the evidence is going to be both sides, 

and I’m going to be bent toward hearing the State. And 

that’s fine, I’ll do it, but I’m just telling you. This same kid, 

last Saturday, stole from his best friend’s grandmother 60 

bucks out of her purse. That’s the type of thing I’m talking 
10

about. When they get off and they get off and they get off 

and they spin off, technicality, they’re right back at it again. 

Everyone that ever got off of a drug charge was right back 

out and doing it, and they never learned. And I don’t know 

what the answer is because I’m not sure putting people in 

jail over drug charges, at least doing—you know, actually 

using the drugs, but when you’re delivering it or making it or 

selling it is a different program.

When J.W. finished speaking, the prosecutor explained to him the 

jurors would only determine whether the defendant was guilty, not what 

the punishment was. J.W. responded by saying, “I don’t even know the 

law. I don’t know what would happen; but one thing I’ve witnessed is an 

awful lot of guilty people that get off.” 

The prosecutor then called on A.H., who had raised her hand to 

explain her “main objection” to the illegality of drugs was that “the legal 

ramifications” of drug convictions are devastating and “sometimes more 

troublesome than the actual symptoms of some drugs that people do.” 

Before A.H. finished speaking, J.W. interrupted, saying,

Excuse me. But the other side of that is kids who are being 

given stuff and influenced with stuff, good kids from good 

families that get ruined by people who pedal this for their 

profit. That’s an issue, and that’s why I think the law has to 

be stiff on this thing.

The prosecutor thereafter explained the concept of the burden of 

proof to the panel. After distinguishing between the concept of the 

burden of proof and the reasonable-doubt standard the impaneled jurors 

would have to apply, the prosecutor asked the panel members what they 

think of when they hear the phrase “beyond a reasonable doubt.” The 

prosecutor called on one prospective juror, who expressed the opinion 

that the phrase means “you can’t have any doubt in your mind 

whatsoever” to find a defendant guilty of a crime. The prosecutor next 

called on J.W., who explained his contrary view as follows: “Reasonable. 
11

Reasonable doubt. Not absolute, certain, totally positive, convinced 100 

million percent, because nobody would ever be found guilty. Because 

unless I was there and saw him, I couldn’t find him guilty in this case.” 

Minutes later, the court recessed for a lunch break. After the 

prospective jurors departed from the courtroom, defense counsel moved 

to disqualify the entire jury panel, arguing J.W.’s statements had tainted 

the other prospective jurors and prejudiced them against Ary. The 

prosecutor resisted the motion, arguing there was no evidence J.W. had 

tainted the panel and no basis to discharge the entire panel or declare a 

mistrial. The judge denied the motion, acknowledging J.W. made a 

number of comments but concluding they had not tainted the panel to 

the point that the court was required to grant a mistrial. 

After counsel and the judge returned from lunch, defense counsel 

moved to strike J.W. for cause outside the presence of the panel. The 

judge responded,

[Defense counsel] must have been reading my mind over the 

noon hour because I had some concerns with regard to 

[J.W.’s] comments. While I denied the motion for mistrial, I 

am concerned that what he might say this afternoon that 

that may go beyond where he is today in his comments and 

may taint the jury pool with comments later this afternoon. 

In light of his concern that J.W. might say something that would taint 

the other prospective jurors during the remaining voir dire of the panel, 

the judge agreed to bring J.W. into the courtroom so counsel could 

question him outside the presence of the other panel members. 

During individual voir dire, J.W. once again discussed his 

conversation with fellow panel member J.K. outside the courtroom. After 

several minutes of questioning, the judge granted defense counsel’s 

motion to strike J.W. for cause outside the presence of the panel. 
12

The prosecutor then asked to conduct individual voir dire on 

several other prospective jurors based on responses to questions 

appearing on their juror questionnaires. Specifically, the prosecutor

requested individual voir dire with one prospective juror who had 

suffered multiple head traumas, three prospective jurors who had prior 

convictions, one prospective juror who had a connection to another 

pending case, and one prospective juror whose family member had 

testified in a murder trial. Additionally, the prosecutor requested 

individual voir dire with prospective jurors A.H. and J.K. The court 

granted all the prosecutor’s requests for individual voir dire with

particular panel members. 

During individual voir dire with prospective juror J.K., the 

prosecutor asked her whether the comments J.W. made outside the 

courtroom might affect her ability to be a fair and impartial juror. J.K. 

answered they would not. At no other point during jury selection did the 

prosecutor or defense counsel ask any other prospective juror whether

any of the statements J.W. made might affect his or her ability to be fair 

or impartial. Defense counsel never requested individual voir dire with 

any of the prospective jurors to explore whether the statements J.W. 

made might influence them in any way. 

Once counsel completed the individual voir dire, the judge 

summoned all the prospective jurors back into the courtroom, and the 

prosecutor resumed voir dire of the entire panel. Shortly thereafter, the 

prosecutor moved to remove A.H. for cause in the presence of the 

remaining panel members. The judge granted the motion, also in the 

presence of the other panel members. Defense counsel never asked the 

court to inform the panel it dismissed J.W. for cause during individual 

voir dire. 
13

Once the prosecutor finished questioning the panel members, the 

judge gave defense counsel an opportunity to do so. Counsel then 

exercised their strikes and selected the panel members who would serve 

on the jury. The impaneled jurors included just three people questioned 

during individual voir dire, including J.K. None of the impaneled jurors 

other than J.K. were ever asked by defense counsel whether they could 

be impartial or whether any of the statements J.W. made might affect 

their ability to be impartial. 

Over two days of trial, the jurors heard testimony by eight 

Des Moines police officers and a confidential informant. The jury 

returned guilty verdicts on each of the three counts of delivery of a 

controlled substance with which the State had charged Ary, each count 

relating to one of three controlled drug buys the testimony indicated the

confidential informant had completed for the officers in the fall of 2013. 

Before his sentencing, Ary filed a combined motion for a new trial 

and motion in arrest of judgment requesting the court to order a new 

trial. In the motion, Ary argued the verdicts were contrary to the 

evidence and asserted a structural error had deprived him of a fair and 

impartial trial. See id. 2.24. In addition, Ary asserted the court 

erroneously denied the motion he lodged during voir dire seeking 

dismissal of the entire jury panel due to the statements J.W. made. In 

support of this claim, defense counsel cited Mach v. Stewart, a case in 

which the Ninth Circuit Court of Appeals concluded impaneling jurors 

who heard a prospective juror’s expert-like statements during voir dire 

violated a defendant’s right to an impartial jury under the Sixth 

Amendment to the United States Constitution. 137 F.3d 630, 633 (9th

Cir. 1997). 
14

The court denied the motion for a new trial on the ground the 

verdicts were contrary to the weight of the evidence, concluding the jury 

had been presented with sufficient evidence to support a guilty verdict on 

each of the three delivery counts. The court also denied the motion for 

new trial on the ground it deprived Ary of his right to an impartial jury by 

impaneling jurors who heard the statements J.W. made. 

Ary appealed, advancing the following arguments. First, Ary 

contended the court erroneously denied his right to an impartial jury 

under article I, section 10 of the Iowa Constitution and the Sixth 

Amendment to the United States Constitution because the statements 

J.W. made during jury selection had tainted the entire jury panel. 

Second, Ary argued the court abused its discretion by denying his 

deposition and discovery requests without conducting a hearing to 

permit defense counsel to show cause for his failure to meet the deadline 

the court set for filing the notice of intent to take depositions and seek 

discovery. Third, Ary claimed he received ineffective assistance of 

counsel because his counsel filed the notice of intent to take depositions 

and seek discovery after the deadline for doing so had expired. Finally, 

Ary argued the court erroneously applied the sufficiency-of-the-evidence 

standard rather than the weight-of-the-evidence standard in denying his 

motion for new trial on the ground the verdicts were contrary to the 

evidence. 

We transferred the case to the court of appeals. The court of 

appeals reversed the conviction and remanded the case to the district 

court for a new trial, concluding the district court had failed to take 

adequate curative measures to ensure the impartiality of the prospective 

jurors following the statements J.W. made during voir dire. Accordingly, 

the court of appeals declined to address Ary’s remaining claims.
15

The State filed an application for further review, which we granted. 

II. Issues.

The issues we consider in this appeal are as follows. First, 

whether the district court denied Ary a fair trial by an impartial jury. 

Second, whether the district court abused its discretion by declining to 

set a hearing to permit defense counsel to show cause for missing the 

extended discovery and deposition deadline. Third, whether Ary received 

ineffective assistance of counsel when defense counsel filed the notice of 

intent to take depositions and seek discovery after the deadline the 

district court set for doing so had expired. Fourth, whether the district 

court erroneously applied the incorrect standard in denying Ary’s motion 

for new trial on the ground the verdicts were contrary to the weight of the 

evidence.

III. Whether the District Court Denied Ary a Fair Trial By an 

Impartial Jury. 

A. Standard of Review. During voir dire, defense counsel moved 

to disqualify the entire jury panel on the ground the statements J.W. 

made prejudiced the other prospective jurors against Ary. The district 

court concluded it was not obligated to grant the motion and denied it. 

Because there was no procedural basis on which the court might have 

been obligated to grant the motion, the constitutional basis for the claim 

was obviously apparent. Accordingly, Ary has properly preserved both 

his federal and state constitutional claims. See In re Det. of Hodges, 689 

N.W.2d 467, 469–70 (Iowa 2004); State v. Hernandez-Lopez, 639 N.W.2d 

226, 233 (Iowa 2002). 

Ary contends the standard of review for his claim that the court

denied him a fair trial by an impartial jury is de novo. In its brief on 

appeal, the State conceded the standard of review for this claim is 
16

de novo. In its application for further review, however, the State argues 

the proper standard is abuse of discretion. We have previously 

considered claims arising in similar circumstances under both standards 

of review. Compare State v. Gavin, 360 N.W.2d 817, 818 (Iowa 1985), 

with State v. Staker, 220 N.W.2d 613, 617 (Iowa 1974). Because we 

conclude we would reach the same conclusion applying either standard 

of review, we need not decide which standard applies. 

To preserve error on a constitutional claim, counsel should inform

the district court of the constitutional basis for any motion a party 

makes. When a party raises only a specific federal constitutional basis 

for a claim in district court and does not raise the question of ineffective 

assistance of counsel on appeal, the parallel state constitutional question 

is not preserved. State v. Prusha, 874 N.W.2d 627, 630 (2016). However,

when a party does not indicate the specific constitutional basis for a 

claim to which parallel provisions of the federal and state constitutions 

apply, we regard both the federal and state constitutional claims as 

preserved. State v. DeWitt, 811 N.W.2d 460, 467 (Iowa 2012); State v. 

Harrington, 805 N.W.2d 391, 393 n.3 (Iowa 2011); King v. State, 797 

N.W.2d 565, 571 (Iowa 2011). When counsel does not advance a distinct 

analytical framework under a parallel state constitutional provision, we 

ordinarily exercise prudence by applying the federal framework to our 

analysis of the state constitutional claim, but we may diverge from 

federal caselaw in our application of that framework under the state 

constitution. See In re Det. of Matlock, 860 N.W.2d 898, 903 (Iowa 2015); 

State v. Short, 851 N.W.2d 474, 491 (Iowa 2014); State v. Baldon, 829 

N.W.2d 785, 822–23 (Iowa 2013) (Appel, J., concurring specially); State v. 

Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); Racing Ass’n of Cent. Iowa 

v. Fitzgerald, 675 N.W.2d 1, 6–7 (Iowa 2004). 
17

Because Ary did not advance a distinct analytical framework for 

his claim under article I, section 10 of the Iowa Constitution, we apply 

the federal framework applied to claims under the Sixth Amendment to 

the United States Constitution in considering his state constitutional 

claim.

B. Analysis. “Unquestionably, a person accused of committing a 

crime has a fundamental right to a fair trial by an impartial jury whose 

determination of guilt or innocence is based exclusively on evidence 

admitted at trial.” State v. Frank, 298 N.W.2d 324, 326 (Iowa 1980). The 

right to a criminal trial by an impartial jury is guaranteed by the Sixth 

and Fourteenth Amendments to the United States Constitution and 

article I, sections 9 and 10 of the Iowa Constitution. See State v. Walters, 

426 N.W.2d 136, 138 (Iowa 1988). The right to a fair trial by an 

impartial jury is an essential requirement of due process. State v. 

Siemer, 454 N.W.2d 857, 861 (Iowa 1990). However, as the United States 

Supreme Court has acknowledged, 

Impartiality is not a technical conception. It is a state 

of mind. For the ascertainment of this mental attitude of 

appropriate indifference, the Constitution lays down no 

particular tests and procedure is not chained to any ancient 

and artificial formula. 

United States v. Wood, 299 U.S. 123, 145–46, 57 S. Ct. 177, 185, 81 L. 

Ed. 78, 88 (1936).

Ary asserts the statements J.W. made during voir dire mirror those 

the Ninth Circuit relied upon to conclude a trial court violated a 

defendant’s right to an impartial jury in Mach. 137 F.3d at 631–33. In 

that case, the Ninth Circuit considered a petition for habeas corpus filed 

by a defendant convicted of sexual conduct with a minor. Id. at 631. 

The defendant claimed a biased jury convicted him because an exchange 
18

between the trial judge and a potential juror during voir dire 

“impermissibly tainted the jury pool to the extent that the court should 

have granted a mistrial.” Id. at 632. The potential juror who 

participated in the exchange was a social worker employed by child 

protective services. Id. 

The exchange began when the potential juror told the judge “she 

would have a difficult time being impartial given her line of work, and 

that sexual assault had been confirmed in every case in which one of her 

clients reported such an assault.” Id. The judge continued questioning 

the potential juror in front of the entire jury panel, thereby eliciting three 

additional statements from her “that she had never, in three years in her 

position, become aware of a case in which a child had lied about being 

sexually assaulted.” Id. The judge also elicited statements from the 

potential juror indicating “she had taken child psychology courses and 

worked with psychologists and psychiatrists” and “worked with children 

as a social worker for the state for at least three years.” Id. at 633.

At one point, the judge warned the potential juror who made the 

statements that she would have to determine whether the defendant was 

guilty based on the evidence presented at trial if she served on the jury. 

Id. When asked if she could do that, the potential juror stated she 

“probably” could. Id. at 632. Nonetheless, she went on to make another 

statement indicating “she had never known a child to lie about sexual 

abuse.” Id. at 633. The judge then asked the other potential jurors if 

any of them disagreed with that statement, and not a single potential 

juror responded. Id. When the defendant moved for a mistrial on the 

ground the entire panel had been tainted by the exchange, the court 

denied the motion but struck the social worker for cause. Id. at 632. 
19

The Ninth Circuit applied the following standard to determine 

whether the court violated the defendant’s right to a fair trial by an 

impartial jury under the federal constitution:

The Sixth Amendment right to jury trial “guarantees to 

the criminally accused a fair trial by a panel of impartial, 

‘indifferent’ jurors.” “Even if ‘only one juror is unduly biased 

or prejudiced,’ the defendant is denied his constitutional 

right to an impartial jury.” Due process requires that the 

defendant be tried by a jury capable and willing to decide the 

case solely on the evidence before it.

Id. at 633 (citations omitted) (first quoting Irvin v. Dowd, 366 U.S. 717, 

722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961); then quoting 

United States v. Eubanks, 591 F.2d 513, 517 (9th Cir. 1979)). Applying 

this standard, the Ninth Circuit concluded that following the motion for 

mistrial, at a minimum the judge “should have conducted further voir 

dire to determine whether the panel had in fact been infected” by the 

social worker’s expert-like statements. Id. Because the judge conducted 

no additional voir dire to determine whether the statements affected the 

other potential jurors, the Ninth Circuit presumed the statements had 

biased at least one juror who convicted the defendant in violation of his 

right to an impartial jury. Id.

We find the voir dire in this case to be distinguishable from the voir 

dire conducted in Mach. In Mach, neither the trial judge nor counsel 

conducted voir dire to determine what effect, if any, the statements the 

potential juror made might have had on the other potential jurors. In 

contrast, the district court judge in this case acknowledged the 

statements J.W. made could have affected the other panel members and

allowed counsel from both sides the opportunity to question the other 

panel members individually to determine whether the statements had in 
20

fact infected them. The subsequent individual voir dire revealed no bias 

on the part of the other panel members. 

Expressions of bias or prejudice by a single prospective juror 

ordinarily do not constitute a sufficient ground for disqualification of an 

entire jury panel. Staker, 220 N.W.2d at 616. However, we acknowledge 

“remarks made during voir dire could become so inflammatory and 

potentially prejudicial that an entire panel could be disqualified.” State 

v. Misner, 410 N.W.2d 216, 220 (Iowa 1987) (emphasis added). 

Nonetheless, the statements J.W. made in the presence of the other 

prospective jurors in this case did not reference the defendant, convey 

personal knowledge of the underlying facts at issue, or relay objective

data that might otherwise bear on the case. Considered in context, we 

think it was clear that J.W. was expressing his strong personal opinions 

regarding persons accused of drug crimes, not relaying objective data 

concerning their credibility or likelihood of guilt. Under these 

circumstances, we decline to presume the statements the prospective 

jurors heard during voir dire affected their ability to be impartial. 

Finally, we note we are unable tell from the record whether defense 

counsel was satisfied the statements J.W. made did not taint the other 

prospective jurors or whether he was simply ineffective. At no point 

during the initial voir dire of the entire jury panel did defense counsel 

ask to approach the bench or move to strike J.W. for cause. Rather, he 

moved to disqualify the entire panel only after the court recessed for 

lunch and moved to strike J.W. for cause just before voir dire resumed. 

In addition, at no point did defense counsel request individual voir dire 

with the other prospective jurors to determine whether J.W.’s statements 

might affect their ability to be impartial. 
21

Notwithstanding these failures, defense counsel had the

opportunity at least to begin exploring whether the statements might 

have affected the other prospective jurors when the court granted the 

prosecutor’s request to question eight panel members individually. But

defense counsel declined to ask any of those panel members whether the 

statements J.W. made might influence them in any way. Similarly, once

the court reconvened the entire panel, defense counsel did not ask the 

court to inform the panel it dismissed J.W. for cause during individual 

voir dire or ask the panel members whether the statements J.W. made 

might affect them.

Had defense counsel requested the court to intervene sooner or by 

different means, the court could have struck J.W. for cause before he 

made some of the concerning statements, issued a cautionary or curative 

instruction to the panel, or permitted counsel to individually question 

every panel member to ensure the statements did not affect them. See, 

e.g., United States v. Lussier, 423 F.3d 838, 840 (8th Cir. 2005). 

Similarly, had defense counsel taken advantage of readily available 

avenues for exploring whether the statements affected the other panel 

members, he might have been able to discern whether the statements

actually had any impact. The purpose of voir dire is to give counsel an

opportunity to discover information that may be useful in exercising 

peremptory strikes and challenging jurors for cause, thereby ensuring 

the selection of jurors who will consider the facts presented during trial

fairly and impartially. See State v. Tubbs, 690 N.W.2d 911, 915 (Iowa 

2005); State v. Proctor, 585 N.W.2d 841, 844–45 (Iowa 1998); see also 

Mu’Min v. Virginia, 500 U.S. 415, 431, 111 S. Ct. 1899, 1908, 114 

L. Ed. 2d 493, 509 (1991). However, voir dire cannot serve its purpose 

effectively in the absence of effective counsel. 
22

Accordingly, we conclude the statements J.W. made during voir

dire were not so prejudicial as to warrant a presumption they tainted at 

least one member of the jury panel. We find no basis for reversing the 

conviction based on the district court’s denial of Ary’s motion to 

disqualify the entire jury panel or a violation of his right to a fair trial by 

an impartial jury. 

IV. Whether the District Court Abused Its Discretion by 

Declining to Hold a Hearing to Allow Ary to Show Cause For Missing 

the Extended Deadline Set by the District Court.

A. Standard of Review. We review district court rulings denying 

an extension of a discovery deadline for an abuse of discretion. Nedved 

v. Welch, 585 N.W.2d 238, 239 (Iowa 1998). The State contends Ary did 

not preserve error as to this claim because Ary never asserted good cause 

for missing the deadline before the district court. For purposes of our 

analysis, we assume without deciding Ary preserved error. See State v. 

Clark, 814 N.W.2d 551, 563 & n.8 (Iowa 2012).

B. Analysis. Discovery matters are ordinarily committed to the 

sound discretion of the trial court. State v. Gates, 306 N.W.2d 720, 725 

(Iowa 1981). We will find a discovery ruling indicates an abuse of 

discretion only when it reflects an exercise of discretion on grounds 

clearly untenable or to an extent clearly unreasonable. Nedved, 585 

N.W.2d at 239–40. The party challenging the district court’s 

administration of the discovery rules has the burden to prove an abuse of 

discretion occurred. State v. Grimme, 338 N.W.2d 142, 144 (Iowa 1983). 

Reversal on the ground the district court abused its discretion in ruling 

on a discovery matter is appropriate only if the party challenging the 

ruling demonstrates the abuse of discretion prejudiced the substantial 

rights of the defendant. Gates, 306 N.W.2d at 725.
23

The Iowa Rules of Criminal Procedure require a defendant to file a 

request for discovery “no later than 40 days after arraignment.” Iowa R. 

Crim. P. 2.11(4); see State v. Ortiz, 766 N.W.2d 244, 250 (Iowa 2009). 

Thus, a defendant’s failure to file a discovery request by this deadline 

generally constitutes a waiver of his or her right to depose witnesses or 

seek discovery, “but the court, for good cause shown, may grant relief 

from such waiver.” Iowa R. Crim. P. 2.11(3). Similarly, the rules permit 

a defendant to depose State witnesses within thirty days of arraignment 

as of right, but the district court may extend that deadline for good cause 

shown. Id. r. 2.13(1), (6); Grimme, 338 N.W.2d at 145. 

Because the court arraigned Ary on November 11, he was entitled

to take depositions as of right until December 20 and file discretionary 

discovery requests until December 30. Nevertheless, Ary did not file his 

pro se motion to produce until February 25, and his counsel did not file

the motion to produce and motion for good cause for taking depositions 

past the required time until March 11. During a hearing on April 22, the 

district court in its discretion found good cause existed to grant defense 

counsel one week to determine whether Ary would seek depositions or 

additional discovery. 

Despite the April 29 deadline, defense counsel did not file a notice 

of intent to take depositions and seek discovery until April 30. At that 

time, defense counsel did not acknowledge the untimely filing in any way 

before or after filing the notice, despite the looming trial date and the 

court’s stated intention to promptly establish further discovery deadlines 

upon its receipt. In fact, defense counsel only acknowledged the 

untimely filing when he sought clarification regarding the status of the 

pending deposition and discovery requests on May 14, at which time he 

made no effort to show good cause for missing the extended deadline or 
24

provide the court with any specific information regarding the discovery or 

depositions sought. By that point, the trial date was less than three 

weeks away, and the State opposed granting the pending requests. 

When the district court denied the pending deposition and 

discovery requests on May 23, it emphasized defense counsel did not

request an extension of the April 29 deadline, bring the untimeliness of 

the filing to the attention of the court, or show good cause to excuse the 

untimeliness. The court further emphasized defense counsel failed to 

specify the particular individuals Ary intended to depose or what 

additional discovery he sought in the notice even though Ary had 

reasserted his right to a speedy trial. Accordingly, the court declined to 

exercise its discretion to further extend the discovery and deposition 

deadlines or set a hearing to allow Ary to show good cause for missing 

the April 29 deadline. 

We note defense counsel could have filed the notice of intent to 

take depositions and seek discovery with a judge in the evening after 

hours. Cf. Iowa R. Civ. P. 1.442(5). Short of that, counsel should have 

forthrightly informed the judge of his failure to meet the deadline the 

following day when he filed the notice at 8:30 a.m. Instead, he waited 

weeks before acknowledging the missed deadline in a status request. 

We also note defense counsel had reason to know the court would 

be hesitant to extend the April 29 deadline. During the hearing in which 

the district court set that deadline, counsel requested two weeks to 

determine whether to take depositions or seek additional discovery. Yet

the court granted only one week and warned it would not continue the 

trial to permit further depositions or discovery. 

Notwithstanding this warning, counsel waited until the last 

moment to assess whether further discovery or depositions would aid Ary 
25

in his defense and provided the court no information to help it establish 

additional deadlines in either the notice or the status request. When 

counsel finally acknowledged the late filing in the status request, the 

only explanation he cited for its untimeliness was his own failure to 

realize the deadline had arrived until it was too late to submit the notice

in a timely manner. We do not find this to be good cause. 

Because defense counsel missed a deadline the district court had 

already extended and failed to bring the late filing to its immediate 

attention despite the defendant’s reassertion of his right to a speedy trial, 

we conclude the court did not abuse its discretion by failing to permit 

defense counsel to show good cause for missing the April 29 deadline. 

See Clark, 814 N.W.2d at 563–64. “While we might not have made the 

same call had the decision been ours, we cannot say it was an abuse of 

discretion.” Id. at 564.

However, we caution that in exercising their discretionary 

authority over the administration of discovery matters, “courts must 

strike a careful balance between the interest in economizing discovery 

and the rights afforded criminal defendants.” Gates, 306 N.W.2d at 726. 

Furthermore, we note the State shares with every criminal defendant an 

interest in the fair and accurate adjudication of his or her criminal 

proceeding. See Ake v. Oklahoma, 470 U.S. 68, 79, 105 S. Ct. 1087, 

1094, 84 L. Ed. 2d 53, 63–64 (1985). Ever mindful of the delicate 

decisions courts must make in administering discovery in criminal cases, 

the professional civility demanded of their profession, and this shared 

interest, we anticipate that prosecutors shall continue to refrain from 

opposing generous administration of the discovery deadlines set forth in 

our criminal procedural rules absent extraordinary circumstances.
26

V. Whether Ary Received Ineffective Assistance of Counsel 

When His Counsel Missed the Deadline the District Court Had Set 

for Filing the Notice of Intent to Take Depositions and Seek 

Discovery.

A. Standard of Review. Because a claim counsel was ineffective 

implicates the constitutional right to effective assistance of counsel, we 

review such claims de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa 

2012).

B. Analysis. Ary claims his trial counsel was constitutionally 

ineffective because he filed the notice of intent to take depositions and 

seek discovery after the extended deadline set by the district court had 

expired even though Ary had clearly expressed his desire to take 

depositions and seek additional discovery. To prevail on a claim of 

ineffective assistance of counsel, the claimant must show counsel failed 

to perform an essential duty and prejudice resulted. Id. at 495 

(describing the test set forth in Strickland v. Washington, 466 U.S. 668, 

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). We resolve a 

claim of ineffective assistance of counsel on direct appeal only when the 

record is adequate. Id. at 494. 

Under the first prong of the Strickland test, we presume counsel 

performed competently unless the claimant proves by a preponderance of 

the evidence counsel failed to perform an essential duty. Id. at 495. In 

deciding whether counsel failed to perform an essential duty, we measure 

counsel’s performance against prevailing professional norms, including 

those reflected in standards set by the American Bar Association and our 

ethical rules. Id. at 495–96. 

We conclude Ary demonstrated his trial counsel failed to perform 

an essential duty. Our rules of professional conduct require lawyers to 

“act with reasonable diligence and promptness in representing a client.” 
27

Iowa R. Prof’l Conduct 32:1.3. A lawyer who neglects to file documents 

with the court in a timely manner without an adequate excuse violates 

this rule. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Mendez, 855 

N.W.2d 156, 170 (Iowa 2014). When counsel finally acknowledged he did 

not file the notice of intent to take depositions and seek discovery in a 

timely manner, he merely asserted he realized the extended deadline had 

arrived too late in the day to file the notice on time. 

Though we acknowledge counsel was unable to file the notice 

electronically because this case still had a paper file, we find this excuse 

to be unpersuasive. Counsel did not include the information the district 

court needed to promptly establish further discovery deadlines or find 

good cause for the late filing in the untimely notice. Nor did counsel 

request an extension of the deadline or immediately bring the late filing 

to the attention of the court. In light of the approaching trial date and 

the court’s warning that it would not grant a continuance to permit 

depositions or discovery, there can be no question that these failures 

collectively amounted to a failure to perform an essential duty.

To satisfy the second prong of the Strickland test, the claimant 

must prove by a reasonable probability that, but for counsel’s failure to 

perform an essential duty, the result of the proceeding would have been 

different. Clay, 824 N.W.2d at 496. This does not require the claimant 

to establish counsel’s conduct “more likely than not altered the outcome 

in the case.” State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003) (quoting 

Strickland, 466 U.S. at 693, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697). 

Rather, the claimant need only show the probability of a different result 

is “sufficient to undermine [our] confidence in the outcome” of the trial. 

Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d 

at 698). “In determining whether this standard has been met, we must 
28

consider the totality of the evidence, what factual findings would have 

been affected by counsel’s errors, and whether the effect was pervasive or 

isolated and trivial.” Id. at 882–83. 

We conclude the record is inadequate to assess whether prejudice 

resulted from trial counsel’s breach of an essential duty on direct appeal. 

In his brief, Ary argues deposing the State’s witnesses would have 

generally aided his defense and allowed him to impeach them more 

effectively at trial. Nevertheless, we conclude it is unclear from the 

record whether counsel’s failure to perform an essential duty might have 

resulted in a different outcome at trial. See Clay, 824 N.W.2d at 496. 

Therefore, Ary may bring his ineffective-assistance claim in a future 

postconviction relief action. 

VI. Whether the District Court Erroneously Applied the 

Incorrect Standard in Denying Ary’s Motion For New Trial on the 

Ground the Verdicts Were Contrary to the Weight of the Evidence.

A. Standard of Review. A district court should grant a motion for 

a new trial only in exceptional circumstances. State v. Ellis, 578 N.W.2d 

655, 659 (Iowa 1998). We generally review rulings on motions for new 

trial asserting a verdict is contrary to the weight of the evidence for an 

abuse of discretion. State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 

2006). However, we review a claim that the district court failed to apply 

the proper standard in ruling on a motion for new trial for errors at law. 

State v. Wells, 738 N.W.2d 214, 218 (Iowa 2007) (citing former Iowa Rule

of Appellate Procedure 6.4, now rule 6.907). 

B. Analysis. Ary claims the district court erroneously applied the 

sufficiency-of-the-evidence standard rather than the weight-of-theevidence standard in denying his motion for new trial. The State agrees 

the court applied the incorrect standard in ruling on the motion.
29

Iowa Rule of Criminal Procedure 2.24(2)(b)(6) permits district 

courts to grant motions for new trial when a verdict is contrary to the 

weight of the evidence. Ellis, 578 N.W.2d at 657–59 (describing the 

standard applicable to motions brought under former Iowa Rule of 

Criminal Procedure 23(2)(b)(6), now rule 2.24(2)(b)(6)). A verdict is 

contrary to the weight of the evidence only when “a greater amount of 

credible evidence supports one side of an issue or cause than the other.” 

Shanahan, 712 N.W.2d at 135 (quoting Ellis, 578 N.W.2d at 658). 

The weight-of-the-evidence standard requires the district court to 

consider whether more “credible evidence” supports the verdict rendered 

than supports the alternative verdict. Ellis, 578 N.W.2d at 658–59. It is 

broader than the sufficiency-of-the-evidence standard in that it permits 

the court to consider the credibility of witnesses. State v. Nitcher, 720 

N.W.2d 547, 559 (Iowa 2006). Nonetheless, it is also more stringent than 

the sufficiency-of-the-evidence standard in that it allows the court to 

grant a motion for new trial only if more evidence supports the 

alternative verdict as opposed to the verdict rendered. Nguyen v. State, 

707 N.W.2d 317, 327 (Iowa 2005). The question for the court is not 

whether there was sufficient credible evidence to support the verdict 

rendered or an alternative verdict, but whether “a greater amount of 

credible evidence” suggests the verdict rendered was a miscarriage of 

justice. Ellis, 578 N.W.2d at 658–59. 

In contrast to a motion for new trial brought under the sufficiencyof-the-evidence standard, a motion for new trial brought under the 

weight-of-the-evidence standard essentially concedes the evidence 

adequately supports the jury verdict. State v. Reeves, 670 N.W.2d 199, 

202 (Iowa 2003). Consequently, a district court may invoke its power to 

grant a new trial on the ground the verdict was contrary to the weight of 
30

the evidence only in the extraordinary case in which the evidence 

preponderates heavily against the verdict rendered. State v. Maxwell, 

743 N.W.2d 185, 193 (Iowa 2008); Shanahan, 712 N.W.2d at 135.

The district court judge denied Ary’s motion for new trial at the 

beginning of his sentencing hearing. In ruling on the motion, the judge 

stated,

With regard to your motion as to whether the evidence is 

sufficient, I believe the evidence was sufficient for the jury to 

convict on all three counts that they rendered a verdict on. I 

think there was sufficient evidence in the record the State 

presented; and so I’m going to deny the motion for new trial 

and for arrest of judgment on that basis.

In its sentencing order, the court indicated the reasons for its denial of 

the motion for new trial were those stated on the record during the 

sentencing hearing. 

We agree with the parties that the district court erroneously 

applied the sufficiency-of-the-evidence standard rather than the weightof-the-evidence standard in ruling on the motion for new trial on the 

ground the verdicts were contrary to the weight of the evidence. 

Appellate review of a district court ruling on a motion for new trial 

asserting the verdict was contrary to the weight of the evidence ordinarily 

does not extend to “the underlying question of whether the verdict is 

against the weight of the evidence.” See State v. Taylor, 689 N.W.2d 116, 

134 (Iowa 2004) (quoting Reeves, 670 N.W.2d at 203). Therefore, we 

reverse the district court ruling on the motion for new trial on the ground 

the verdicts were contrary to the weight of the evidence and remand the 

case to the district court to apply the correct standard in considering the 

motion.
31

VII. Summary and Disposition.

We conclude the district court did not deprive Ary of an impartial 

jury or abuse its discretion by declining to hold a hearing to permit 

defense counsel to show cause for missing the extended discovery and 

deposition deadline. Although Ary established defense counsel breached 

an essential duty, on this record we are unable to decide his claim of 

ineffective assistance of counsel. 

We further conclude the district court applied the incorrect

standard in ruling on Ary’s motion for new trial on the ground the 

verdicts were contrary to the weight of the evidence. Accordingly, we 

vacate the decision of the court of appeals, reverse the district court 

judgment on the motion for new trial on the ground the verdicts were 

contrary to the weight of the evidence, and remand the case to the 

district court. On remand, the district court should apply the weight-ofthe-evidence standard to rule on the motion for new trial on the ground 

the verdicts were contrary to the weight of the evidence. See Ellis, 578 

N.W.2d at 659 (remanding solely to allow the district court to apply the 

weight-of-the-evidence standard in ruling on a motion for new trial). We 

affirm the district court judgment in all other respects. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; 

CASE REMANDED WITH DIRECTIONS.