State v. SR

Decision Date30 June 2017
Docket NumberNo. 16-0061,16-0061
PartiesSTATE OF IOWA, Appellee, v. KELVIN PLAIN SR., Appellant.
CourtIowa Supreme Court

STATE OF IOWA, Appellee,
KELVIN PLAIN SR., Appellant.

No. 16-0061


June 30, 2017

Appeal from the Iowa District Court for Black Hawk County, Nathan Callahan, Judge.

Defendant appeals conviction for harassment in the first degree. AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.

Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, Brian Williams, County Attorney, and Molly K. Tomsha, Assistant County Attorney, for appellee.

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HECHT, Justice.

An all-white jury in Black Hawk County convicted the defendant, a black man, of one count of harassment in the first degree, an aggravated misdemeanor under Iowa Code section 708.7(1)(b) (2015). On appeal, the defendant raises several claims of error, including that the district court erred in using only the absolute disparity method for assessing the representativeness of a jury pool when considering whether the racial composition of the jury pool violated the defendant's Sixth Amendment right to an impartial jury. We abandon the exclusive use of absolute disparity as a test for jury representativeness under the Sixth Amendment and permit absolute disparity, comparative disparity, and standard deviation analyses to be used. Because the defendant's other claims of error fail, we conditionally affirm his conviction and remand for further proceedings on the issue of whether the racial composition of the jury pool violated his Sixth Amendment right to an impartial jury.

I. Factual and Procedural Background.

Kelvin Plain Sr. and Randy Gray were neighbors with an acrimonious relationship who lived in a small apartment building in Waterloo, Iowa. Around 11:00 p.m. on July 10, 2015, Gray and his spouse—both Caucasians—were asleep in their apartment when they were awakened by the sound of Plain—an African-American—sweeping a stairwell in the common area of the apartment building. Gray left his apartment to tell Plain to stop sweeping. When Plain refused, an argument ensued.

At trial, Gray testified that during the argument Plain went back to his apartment while he remained in the common area. Plain then returned with "a black handle of something in his right pocket" and the two men continued to argue. According to Gray, Plain then told him he

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had a gun and knew his mother-in-law's car was parked outside. At that point, Plain exited the building and Gray followed, brandishing a golf club.

Gray testified that as he stepped outside, Plain threw a pair of bolt cutters at his head. Gray averred the bolt cutters hit the side of the apartment building so loud they made a sound he thought was a gunshot.

At that point, Gray picked up the bolt cutters and stood on the porch of the apartment building with the golf club and prevented Plain from going back inside. Gray testified Plain then threatened him repeatedly.

Gray's spouse, who had been on the phone making a 911 call during the argument, followed the two men outside. She testified that Plain threw the bolt cutters and that he threatened to shoot, cut, and stab her husband.

When law enforcement officers arrived at the scene, they found Gray on the front porch and Plain in the yard. Plain told them he had been sweeping the building when Gray came out of his apartment waiving a golf club at him. Gray and his spouse told the officers Plain had thrown the bolt cutters. After interviewing everyone involved, officers seized the bolt cutters and arrested Plain.

On August 19, 2015, Plain was charged by trial information with harassment in the first degree in violation of Iowa Code section 708.7(2), an aggravated misdemeanor.

On the first day of trial, Plain objected to the racial composition of the jury pool, alleging a violation of his Sixth Amendment right to an impartial jury. Although African-Americans represent 8.9% of the population of Black Hawk County, the pool of potential jurors included

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only one African-American man among fifty-six potential petit jurors—or 1.8% of the group. Plain did not present any evidence of systematic exclusion and conceded this meant he could not prove a prima facie case; however, he asserted this was because the jury manager did not provide him with the six months' worth of data on jury pools that he requested.

During trial, Plain raised a hearsay objection to testimony from the officer about what the officer learned from the alleged victim and his spouse, but the court concluded the testimony was not hearsay and admitted it. Plain requested a mistrial after determining the 911 recording in evidence contained references to his criminal history, but the judge denied the motion and gave a cautionary instruction instead. Plain objected to the prosecutor's repeated reference to Gray as the "victim" during closing argument, but the court overruled the objection. The court also denied Plain's request for a jury instruction addressing implicit racial bias.

The jury convicted Plain of one count of harassment in the first degree, an aggravated misdemeanor in violation of Iowa Code sections 708.7(1)(b) and (2). The court imposed a two-year prison sentence, but suspended it and ordered a term of probation running consecutively after a sentence on a parole violation. After filing a motion for a new trial, which was denied, Plain appealed. We retained the appeal.

II. Standard of Review.

We review constitutional issues de novo. State v. Chidester, 570 N.W.2d 78, 80 (Iowa 1997). We review the admission of evidence challenged as hearsay for the correction of errors at law. State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014). Improperly admitted hearsay

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constitutes grounds for reversal unless the proffering party establishes the error was not prejudicial. Id.

Plain's remaining claims are reviewed for an abuse of discretion. "Trial courts have broad discretion in ruling on claims of prosecutorial misconduct and we review such rulings for an abuse of discretion." State v. Jacobs, 607 N.W.2d 679, 689 (Iowa 2000). We review denials of a mistrial and the giving of a cautionary instruction for an abuse of discretion. State v. Wade, 467 N.W.2d 283, 285 (Iowa 1991). Finally, we generally review a district court's refusal to give a requested jury instruction for errors at law; however, if the jury instruction is not required but discretionary, we review for an abuse of discretion. Alcala v. Marriott Int'l, Inc., 880 N.W.2d 699, 707-08 (Iowa 2016); Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000).

When assessing a district court's decision for abuse of discretion, we only reverse if the district court's decision rested on grounds or reasoning that were clearly untenable or clearly unreasonable. Dudley, 856 N.W.2d at 675. Grounds or reasons are untenable if they are "based on an erroneous application of the law or not supported by substantial evidence." Id.

III. Analysis.

Plain raises five issues on appeal. First, he argues the judge admitted prejudicial hearsay. Second, he asserts a reference in the 911 recording to his past criminal conduct was grounds for a mistrial. Third, he contends the judge improperly denied his request for an implicit-bias jury instruction. Fourth, he insists the prosecutor's repeated references to Gray as a victim constituted prosecutorial error and violated his due process rights. Finally, he asserts that the racial composition of the jury pool violated his Sixth Amendment right to an impartial jury.

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A. Prejudicial Hearsay. The first issue on appeal is whether the district court's admission of testimony from an officer about what he learned from two witnesses—Gray and his spouse—constituted reversible error. We begin with the testimony at issue:

Q. Based on your or Officer Shaaf's conversation with Mr. [Gray] and [his spouse], did you learn what caused the mark on the [w]all? A. Yes, we did.
Q. And what caused the mark? A. It was the bolt cutters hitting the wall after being thrown.

The district court admitted this testimony after instructing the jury it could only be used as evidence of the officer's subsequent course of conduct, not as evidence that the bolt cutters caused the mark on the wall after being thrown.

1. Hearsay. We must first determine whether the investigating officer's testimony about what he learned from the alleged victim and his spouse about the cause of the mark on the wall constitutes hearsay. We conclude that it does.

Under Iowa law, hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801(c) (2015)1. We generally exclude hearsay from admission to the record, subject to the exceptions and exclusions set forth in rules 5.802 and 5.803, because we deem it inherently unreliable—the declarant typically does not speak under oath and the party against whom the evidence is offered does not have the opportunity to cross-examine the

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declarant in order to test the declarant's perception, memory, or narration. See State v. Smith, 876 N.W.2d 180, 185 (Iowa 2016).

Evidence is not hearsay if it is not offered to show the truth of the matter asserted. State v. Mitchell, 450 N.W.2d 828, 832 (Iowa 1990). An out-of-court statement offered only to explain responsive conduct that is relevant to an aspect of the State's case is not offered to prove the truth of the matter asserted and is therefore not hearsay. Id. But "if the evidence is admitted, the court must limit its scope to that needed to achieve its purpose." McElroy v. State, 637 N.W.2d 488, 502 (Iowa 2001).

In deciding whether an out-of-court statement is offered to explain responsive conduct, the court considers "whether the statement is truly relevant to the purpose for which it is being offered, or whether the statement is merely an attempt to put before the fact finder inadmissible evidence." Mitchell, 450 N.W.2d at 832. In several cases, we...

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