State v. Lilly

• Decision Date: 24 May 2019
• Docket Number: No. 17-1901,17-1901
• Citation: 930 N.W.2d 293
• Parties: STATE of Iowa, Appellee, v. Kenneth L. LILLY, Appellant.
• Court: Iowa Supreme Court

930 N.W.2d 293

STATE of Iowa, Appellee,

v.Kenneth L. LILLY, Appellant.

No. 17-1901

Supreme Court of Iowa.

Filed May 24, 2019

Rehearing Denied July 15, 2019

I. Introduction.

This appeal of a conviction for aiding and abetting a bank robbery requires us to consider the defendant’s rights to an impartial jury under the Sixth Amendment to the United States Constitution and article I, section 10 under the Iowa Constitution, as well as the sufficiency of the evidence to sustain the defendant’s conviction. The defendant, an African-American, was convicted following a jury trial in North Lee County. His jury contained no African-Americans. Nor were there any African-Americans in the jury venire that reported that day. The defendant, relying on our recent decision in State v. Plain , 898 N.W.2d 801 (Iowa 2017), attempted to establish a violation of his constitutional rights by presenting documentary evidence and testimony regarding jury pools in North Lee County and jury management practices followed in North Lee County and the Iowa Judicial Branch as a whole. The district court concluded that his effort fell short.

On our review, we reject the defendant’s challenges to the sufficiency of the evidence. However, because we have made further elaboration and refinement of our analysis in Plain , we conditionally affirm and remand for further proceedings consistent with this opinion.

II. Facts and Procedural Background.

At approximately 10:11 a.m. on June 29, 2016, the Fort Madison Police Department received a 911 call reporting an apparent robbery in progress at the Fort Madison Bank and Trust. The caller, Joseph Hardin, had been waiting to cash a check at the bank’s drive-through window. A man exited from the car in front of him and entered the bank with a mask pulled over his face. Hardin then heard what sounded like a gunshot, and a bank employee waved at Hardin to drive away. While on the phone with the police, Hardin recounted details about the passenger who had stepped out of the car and entered the bank, but he could neither identify the car’s driver nor remember any specifics about the car.

Within minutes, police arrived at the bank. The robber, later identified as Lafayette Antonio Evans, spotted one of the police cars. He ran out of the bank through the back exit with a haul of cash in a zip-tie bag. Following a police chase and an exchange of gunfire, Evans was fatally shot. Investigators found a mask, a semiautomatic handgun, and a hand-held radio on Evans’s person.

The defendant, Lilly, was the uncle of Evans’s wife. Before the robbery, Lilly’s wife had received a money order from Evans’s mother. According to a witness present at the bank, a Suburban-type vehicle had dropped off Evans at the bank. This witness noticed a black fan had been clipped to the rear-view mirror of the Suburban. She also observed that the driver was a large African-American man, a general description that fit Lilly.

After seeing a Suburban parked outside of Lilly’s home, the police executed a search warrant on the vehicle on July 7. A black fan was found in Lilly’s Suburban along with a citizens band (CB) radio capable of communicating with the hand-held radio recovered from Evans.

When investigators interviewed Lilly, he stated that Evans had been staying with him until leaving his residence the night before the robbery. Lilly also claimed to have slept until about 10:30 a.m. or 11:00 a.m. the morning of the robbery on June 29, and then run some errands by himself and driven to Rockford, Illinois. Lilly added that Evans had free use of Lilly’s vehicle while staying with Lilly.

Video surveillance from local businesses disproved Lilly’s account of his whereabouts on June 29. It established that Lilly had been at a convenience store in town at 8:39 a.m., at a hardware store in town at 9:23 a.m., and at a McDonald’s near the bank at 10:14 a.m., just minutes after the 911 call reporting the robbery. Lilly also had on his person a receipt for buying a drink at the McDonald’s with a 10:15 a.m. imprint. In addition, the convenience store video showed a passenger in the Suburban who was wearing a white shirt, the same color as the shirt that Evans wore when he committed the robbery later that morning.

Lilly was arrested on October 26 and charged in the North Lee County District Court with aiding and abetting first-degree robbery under Iowa Code sections 703.1, 711.1, and 711.2. He entered a plea of not guilty on November 18. On September 14, 2017, Lilly, an African-American, filed a motion challenging the jury pool as not a fair cross section of the community. He pointed out that no one who answered a jury questionnaire for that pool identified himself or herself as African-American. All but three who disclosed their race responded that they were "White" or "Caucasian," and of those three, one self-identified as "Asian," one as "Other," and the third as "White/Black." Lilly also noted that according to the 2013 United States census, 3.2% of the Lee County population was African-American. The court conducted an evidentiary hearing on Lilly’s challenge, receiving testimony from Dawn Willson, a judicial specialist responsible for picking the names for jury service in North Lee County, and Mark Headlee, the information technology director for the Iowa Judicial Branch. The court also received exhibits, including the last five years of "race reports" from North Lee County jury pools.

On September 25, the court denied Lilly’s motion. It concluded that "the defendant has failed to establish ... that any underrepresentation of African-Americans on the list is due to a systematic exclusion of the group in the jury selection process." Jury selection began the following day, and no African-American jurors were seated in the jury of six men and six women.

In its initial jury instructions before opening statements, the district court gave the following instruction on implicit bias:

Reach your verdict without discrimination. In reaching your verdict, you must not consider the defendant’s race, color, religious beliefs, national origin or sex. You are not to return a verdict for or against the defendant unless you would return the same verdict without regard to his race, color, religious beliefs, national origin or sex.¹

After the State finished its case-in-chief, Lilly moved for a judgment of acquittal. The court denied the motion. Lilly renewed his motion for acquittal at the close of evidence, which the court again denied. The court gave the same implicit-bias instruction in its final instructions.

On September 29, the jury found Lilly guilty of robbery in the first-degree. On November 22, the court denied Lilly’s motion for new trial and sentenced him to twenty-five years in prison subject to a 70% mandatory minimum. See Iowa Code §§ 902.9(1)(b ), .12(1)(e ) (2016). Lilly appealed, and we retained the appeal.

On appeal, Lilly contends the racial composition of the jury pool violated his rights to an impartial jury under the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution. He contends the evidence was insufficient that he aided and abetted Evans in the robbery of the bank. He also contends he received ineffective assistance of counsel when his counsel failed to move for a judgment of acquittal as to first-degree robbery based on the lack of evidence that he knew a firearm would be used in the robbery.

III. Standard of Review.

"We review constitutional issues de novo." Plain , 898 N.W.2d at 810. We also review ineffective-assistance-of-counsel claims de novo. State v. Harris , 891 N.W.2d 182, 185 (Iowa 2017). "However, when the claim is that counsel was ineffective in failing to move for judgment of acquittal, this implicates the question whether such a motion would have been meritorious, which turns on the sufficiency of evidence." State v. Henderson , 908 N.W.2d 868, 874–75 (Iowa 2018).

Sufficiency of the evidence claims are reviewed for corrections of errors at law. See Iowa R. App. P. 6.907 ; see also Harris , 891 N.W.2d at 186. In making determinations regarding the sufficiency of the evidence, we "view the evidence in the light most favorable to the state, regardless of whether it is contradicted, and every reasonable inference that may be deduced therefrom must be considered to supplement that evidence." Harris , 891 N.W.2d at 186 (quoting State v. Jones , 281 N.W.2d 13, 18 (Iowa 1979) ). If the record contains substantial evidence to support the defendant’s conviction, we will uphold a trial court’s denial of a motion of acquittal. Id. "Evidence is substantial if it would convince a rational trier of fact the defendant is guilty beyond a reasonable doubt." Id. (quoting State v. Jorgensen , 758 N.W.2d 830, 834 (Iowa 2008) ). Evidence can be either circumstantial or direct, or both. Id. Evidence is substantial if a reasonable trier of fact would be convinced that the defendant is guilty beyond a reasonable doubt. Henderson , 908 N.W.2d at 875.

IV. Analysis.

A. Composition of the Jury Pool. Lilly, an African-American, challenges the composition of the jury pool in North Lee County from which his jury was selected.² None of the jurors who heard his case was African-American. Of the pool from which his jury was selected, one person marked "Other" on the questionnaire, one marked "Asian," and one marked "White/Black." None of them, however, were part of the venire from which Lilly’s jury was chosen.³

Before trial, a hearing was held in which Lilly was given the opportunity to show that African-Americans were being systematically underrepresented in North Lee County jury pools. Lilly presented "race reports" for the last five years of jury pools from late 2012 to late 2017 in North Lee County. The reports showed that on the approximately 2789 questionnaires returned during the last five years, only fourteen potential jurors self-reported as being African-American. Approximately 30% of respondents did not disclose...