State v. Johnson, No. 89-1181

• Court: United States State Supreme Court of Iowa
• Writing for the Court: Considered by McGIVERIN; McGIVERIN
• Citation: 476 N.W.2d 330
• Parties: STATE of Iowa, Appellee, v. Anthony Lamont JOHNSON, Appellant.
• Docket Number: No. 89-1181
• Decision Date: 16 October 1991

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476 N.W.2d 330 STATE of Iowa, Appellee,
v.
Anthony Lamont JOHNSON, Appellant. No. 89-1181. Supreme Court of Iowa. Oct. 16, 1991.

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Linda Del Gallo, State Appellate Defender, and Patricia Reynolds Lapointe, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Richard J. Bennett, Asst. Atty. Gen., William E. Davis, County Atty., James D. Hoffman and Terri Sandeman, Asst. County Attys., for appellee.

Considered by McGIVERIN, C.J., and LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.

McGIVERIN, Chief Justice.

Defendant Anthony Lamont Johnson appeals from the judgment and sentence entered by the Iowa district court for Scott County after his conviction by a jury of first-degree burglary, in violation of Iowa Code sections 713.1 and 713.3 (1989); second-degree sexual abuse, in violation of Iowa Code sections 709.1 and 709.3; and two counts of first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2. Defendant contends that he did not receive a trial by a fair and impartial jury because

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black persons were systematically excluded from the prospective juror pool. He also contends that the trial court erred by failing to give adequate reasons for imposing consecutive sentences. The court of appeals reversed the judgment of the district court and remanded for a new trial.

We, now, vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background facts and proceedings. From the evidence presented at trial, a jury could have found the following facts. On the evening of January 11, 1989, L.P. and her roommate P.S. were at home in their duplex in Davenport, Iowa. At around 8:30, they heard a knock at the front door. L.P. testified that when she was halfway to the door, a person whom she had never seen before entered the house. L.P. later identified the defendant as that person.

When the defendant entered the duplex, he was holding a gun and pointing it at L.P. He forced both L.P. and P.S. to lay down on the floor, threatened to kill them, and demanded their money. Defendant then grabbed L.P., made her empty her purse, and took her money. After he hit P.S. over the head with his gun, L.P. gave him money from P.S.'s purse. Defendant then took L.P. into the kitchen and forced her to perform an oral sex act on him.

The State filed a trial information charging defendant with one count of first-degree burglary, two counts of first-degree robbery, and one count of second-degree sexual abuse. All of these charges are class "B" felonies. See Iowa Code §§ 709.3, 711.2 and 713.3. A jury returned verdicts finding defendant guilty on all four counts.

Defendant, who is black, then filed a post-verdict motion in arrest of judgment or for new trial, alleging, inter alia, that systematic exclusion of black persons from the prospective juror pool deprived him of a fair and impartial trial by a jury of his peers. After a hearing, the district court overruled the motion. The court entered judgment on all four counts and sentenced defendant to a term of not more than twenty-five years on each count. See Iowa Code §§ 902.3 and 902.9(1). The two robbery sentences were to run concurrently, and three sentences were to run consecutively. See Iowa Code § 901.8. The result was a total indeterminate period of not more than seventy-five years.

On defendant's appeal, we transferred the case to the court of appeals. The court of appeals reversed defendant's conviction and remanded for a new trial. We granted further review and now consider the issues raised.

II. Objections to the jury panel. Defendant contends that systematic exclusion of black persons from the Scott County jury panel violated his state statutory right and state and federal constitutional rights to an impartial jury, and his federal constitutional rights to equal protection and due process of law. Iowa Code §§ 607A.1, 607A.2; U.S. Const. amends. VI, XIV; Iowa Const. art. I, §§ 6, 10.

The first issue we must consider is whether defendant's failure to object to the jury panel until after the jury was sworn waives his contention that the method of selecting juries in Scott County violates Iowa Code chapter 607A. We must next consider whether defendant's failure to object also waives consideration of his contention that Scott County's system violates provisions of the United States and Iowa constitutions.

A. Statutory objection. Iowa Code chapter 607A outlines, inter alia, the procedures county officials must follow when compiling county jury lists and selecting juries. Iowa Code section 607A.22 provides that, in preparing grand and petit jury lists, the appointive jury commission or jury manager shall use the current voter registration list, the current motor vehicle operators list, and "[a]ny other current comprehensive list of persons residing in the county, including but not limited to the lists of public utility customers, which the appointive jury commission or jury manager determines are useable for the purpose of a juror source list." Defendant asserts that Scott County officials violated these directives because they used only the current voter registration list and motor vehicle operators list in compiling the juror pool

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from which defendant's petit jury was drawn.

When a party, such as defendant, in a criminal case wishes to make a challenge to a jury panel on the ground that it was compiled in violation of statutory requirements, that party must comply with the mandate of Iowa Rule of Criminal Procedure 17(3). Rule 17(3) provides, in part, that

[b]efore any juror is sworn for examination, either party may challenge the panel, in writing, distinctly specifying the grounds, which can be founded only on a material departure from the statutory requirements for drawing or returning the jury.

(Emphasis supplied.) Under this rule, any challenge to the panel based on a departure from the statutory requirements for drawing or returning the jury must be raised prior to the time the jury panel is sworn for examination. State v. Watkins, 463 N.W.2d 411, 412-13 (Iowa 1990).

In the present case, defendant did not object to the jury panel until after the jury was sworn. More specifically, defendant first objected to the composition of the jury panel in his post-trial motion in arrest of...