State of Iowa v. Antoine Tyree Williams , 929 N.W.2d 621 ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 17–1989
Filed May 24, 2019
STATE OF IOWA,
Appellee,
vs.
ANTOINE TYREE WILLIAMS,
Appellant.
Appeal from the Iowa District Court for Floyd County, Rustin T.
Davenport, Judge.
The defendant appeals his conviction for second-degree murder,
challenging the jury pool and raising several other claims of error.
AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven and Coleman J.
McAllister, Assistant Attorneys General, and Rachel A. Ginbey, County
Attorney, for appellee.
2
MANSFIELD, Justice.
I. Introduction.
This is the third case we decide today concerning a defendant’s right
to an impartial jury drawn from a fair cross section of the community. An
African-American defendant was charged with first-degree murder in Floyd
County, a county that is approximately 2.3% African-American in
population. See Iowa Code §§ 707.1, .2(1)(a) (2017). The decedent was
also African-American. The jury pool of unexcused jurors, however,
contained only one African-American. The district court overruled the
defendant’s motion to strike the jury panel. Later, the court declined to
permit defense counsel to individually voir dire the prospective jurors on
a sequestered basis concerning their racial attitudes. During trial, the
court also refused to admit into evidence the decedent’s prior criminal
record or other bad acts unless the defendant knew about them. Further,
the court declined to give the defendant’s proposed implicit-bias
instruction, noting that it had not been previously reviewed by an Iowa
court and that its subject matter was essentially covered by the latest
version of an instruction promulgated by the Iowa State Bar Association.
Lastly, the court did not allow the defendant to assert a “stand your
ground” defense because it had not become effective until after the alleged
murder had been committed. The jury found the defendant guilty of
second-degree murder. See id. § 707.2.
On appeal, we find that the district court’s voir dire ruling and its
decision not to give the implicit-bias instruction were within the court’s
discretion. We also agree with the district court that when asserting self-
defense, the defendant generally may not offer proof of prior bad acts not
known to the defendant as a way of proving the allegedly aggressive
character of the other party. And we agree that the stand your ground
3
defense does not apply to crimes committed before that law took effect.
However, we believe further consideration of the defendant’s fair-cross-
section claim is warranted in light of the decisions we are filing today in
State v. Lilly, ___ N.W.2d ___, ___ (Iowa 2019), and State v. Veal, ___ N.W.2d
___, ___ (Iowa 2019). Therefore, we conditionally affirm the defendant’s
conviction and sentence while remanding for further proceedings
consistent with Lilly, Veal, and this opinion.
II. Facts and Procedural History.
Late in the day on June 30, 2017, Shaun Biehl and his ex-girlfriend
Jocelyn Simmons were spending time at her apartment in the Clarkview
Apartments in Charles City. Biehl and Simmons were no longer in a
romantic relationship but remained friends. Their four-year-old daughter
also lived in the apartment. While Biehl was there, Nate Fleming dropped
in several times. Fleming was a relatively small man who weighed 146
pounds and was five feet, seven inches tall. According to Biehl, Fleming
was not upset or angry when he came by. Both Biehl and Simmons were
also familiar with Antoine Williams, another resident of the Clarkview
Apartments. Williams was a large man who weighed approximately 300
pounds and was six feet, seven inches tall.
Around 8:10 p.m., Biehl put his and Simmons’s daughter to bed.
Biehl and Simmons sat down to watch television. After watching a full
episode of a show, Biehl remembers hearing two gunshots outside and
running to a window that overlooked the Clarkview Apartments parking
lot. Biehl saw Williams standing outside Fleming’s red Chevy Equinox
with his arm extended into the open driver’s side door. Biehl heard two
more shots and saw muzzle flashes. He then saw Williams pull Fleming’s
body out of the vehicle, throw him on the ground, get in the truck, and
drive off.
4
Biehl called 911 on his cellphone and rushed outside to try to render
assistance. Others also came to the scene. Fleming was on his back,
bleeding with bullet wounds in his chest area, and gasping for air.
Meanwhile, Biehl spotted Williams driving back toward the group in the
Equinox. Biehl told everyone to run and ran himself. Williams sped past
the group in his vehicle and continued out of the complex. Fleming died
at the scene.
Simmons likewise recalled being with Biehl at the apartment the
evening of June 30. Fleming came by a couple of times to see her, and he
was not upset or angry, although he smelled of alcohol. Simmons also
remembered hearing shots and rushing to the window after their daughter
had been put to bed. The first thing she saw was Williams holding a gun
and standing over Fleming’s body. After that, she saw Williams get into
the red Chevy Equinox and drive away. Simmons too ran outside, and
observed Fleming lying on the ground bleeding and then losing
consciousness. She put a pillow under his head.
Christopher Vierkant, who was familiar with Williams, lived next
door to the Clarkview Apartments. On the evening of June 30, around
8:30 or 9:00 p.m., Vierkant was outside with his children. He saw Williams
walk past and said hello to him. According to Vierkant, Williams was
focused on a red car that he was walking toward. Vierkant saw an African-
American man in the red car with his hands on the wheel but could not
see the man’s face. Vierkant did not hear any talking or arguing between
Williams and the man in the red car. He then saw two flashes and heard
two bangs. At the time, he thought these were just fireworks. Vierkant
ran back outside later after the police arrived at the apartment complex.
After the police arrived, they found two .380 caliber shell casings on
the ground at the scene. They were also later able to track down the
5
abandoned red Equinox, but Williams had moved on to Chicago, Illinois.
On July 5, Williams was arrested there. On July 7, Williams was
interviewed in Chicago by a special agent with the Iowa Division of
Criminal Investigation. When asked about the evening of June 30,
Williams initially claimed that he had hung out with a group that included
Fleming and then gone over to an ex-girlfriend’s apartment and stayed
there for the night. Williams claimed he did not learn until several days
later that Fleming had been shot. Williams steadfastly denied having
anything to do with Fleming’s death, saying, “No, sir, that’s crazy.”
Later, questioning became more pointed. Williams was asked, “Do
you think that law enforcement knows that you were involved in -- in
[Fleming’s] death?” Williams acknowledged at that point that he had shot
Fleming in the parking lot of the Clarkview Apartments. He said that he
had been approaching the Chevy Equinox when Fleming “said something
that triggered him.” Williams said he was standing a few feet from the
open window of the car when he shot Fleming. He shot “however many
bullets he had in his gun.” Williams also admitted he “never saw [Fleming]
with a gun that night.”
Williams admitted that after he shot Fleming, he opened the car
door, pulled Fleming out, and got into the vehicle and drove away.
Williams said that he later broke Fleming’s cellphone into pieces and threw
them away. He also retrieved two shell casings from the car and discarded
the gun he had used to shoot Fleming. Williams said he had purchased
the gun from Ed Brown and had kept it under the sink in his apartment.
Williams went on with this version of events. He claimed that earlier
that evening of June 30, when Fleming, Williams, and others were hanging
out at the apartment complex, Fleming had questioned the group whether
they had something to do with a beating Fleming had recently received.
6
Before Fleming left in his vehicle, he allegedly told others in the group,
“You better not be standing here when I get back.” Williams told the
investigator he went to retrieve his gun after Fleming left. Williams added
that he should have let the matter go. As Williams put it, “I did it, I did it,
and I shouldn’t have done it.”
Williams did not claim in the interview that he had acted in self-
defense. To the contrary, he said, “[I]t’s on me. That’s on me.”
An autopsy report determined that Fleming died from multiple
gunshot wounds. Fleming’s body contained six gunshot wounds, which
were caused by between four and six bullets. Four bullets were recovered
from Fleming’s body. One of the wounds had gunpowder stippling, which
meant that the gun had been discharged within eighteen inches of
Fleming’s body. Fleming’s blood alcohol concentration at the time of his
death was .242.
On July 19, a trial information was filed in the Iowa District Court
for Floyd County, charging Williams with first-degree murder. See Iowa
Code §§ 707.1, .2(1)(a). On August 24, Williams moved to change the
venue from Floyd County. On September 11, the district court denied the
motion, indicating that the majority of the media articles had been factual
and that it did not believe prospective jurors would have a predisposition
about the case. The court did instruct the clerk, however, to bring in an
additional jury panel to ensure there would be sufficient numbers from
which to select a jury. On September 18, Williams filed a notice that he
intended to rely on the defense of self-defense/justification at trial. See
id. § 704; Iowa R. Crim. P. 2.11(11)(c).
Trial was scheduled to begin October 10. On October 2, Williams,
who is African-American, filed a motion to challenge the jury panel.
Williams’s motion noted that African-Americans represent 2.3% of the
7
Floyd County population according to the 2016 census, yet only two of the
166 potential jurors who submitted questionnaire responses for two jury
pools for October through December 2017 self-identified as African-
American. (One of these two had been excused.) Williams also reported
tallies for the last four years:
In the calculations overall in the [last] four years, there
were 1,404 jurors, of which, 452 did not respond to the race
question. Of the 952 remaining jurors, in this four-year span,
only 9 members reported being African American, which
would be only 0.9% of the jurors pooled from 2013 through
2017.
On October 3, the State filed a resistance to Williams’s motion. The
State acknowledged that the most recent census data showed that 2.3%
of the population in Floyd County was Black or African-American, but
argued this figure should not be used for comparisons because the
African-American population was disproportionately younger and 2.3%
did not reflect the percentage actually eligible for jury service. The State
also urged the data on which Williams relied were flawed because they did
not account for jurors who declined to disclose their race on their
questionnaire responses. The State thus insisted that Williams had not
proved substantial underrepresentation or systematic exclusion under the
three-part Duren/Plain standard. See Duren v. Missouri, 439 U.S. 357,
364, 99 S. Ct. 664, 668 (1979); State v. Plain, 898 N.W.2d 801, 822 (Iowa
2017).
On October 5, the district court held a hearing on pretrial motions
at which it received exhibits and heard argument on the motion to strike
the jury panel. On October 6, the district court entered a written ruling
denying Williams’s motion to challenge the jury panel. The court found
that Williams failed to show a violation of his Sixth Amendment rights
8
under the second and third prongs of the Duren/Plain test. The court
noted,
Turning to the panels available for the defendant’s trial
the Court required the clerk to call in two separate pools.
According to Exhibit D, the last two pages, there were 103
letters sent to potential jurors in Pool 1 and 103 letters sent
to potential jurors in Pool 2. Twelve letters were either
undelivered or did not respond as to Pool 1. Thus there were
91 responses in Pool 1. In Pool 2 there were five that were
undelivered or failed to respond. There were 98 responses in
Pool 2.
In Pool [1] there are 23 potential jurors who did not
identify their ethnicity. The 23 number is derived from adding
the three who responded, the nine who were excused, and the
ten who were disqualified, and the one who was deferred.
Subtracting 23 from 91 results in 68 potential jurors who
responded and self-identified their ethnicity. In Pool 2, of the
98 responses, 28 responses did not self-identify their ethnicity
(six responding, 14 excused, six disqualified, and two
deferred). Subtracting 28 from 98 results in 70 potential
jurors who responded and self-identified their ethnicity.
Combining the two pools results in 138 individuals who
responded to their summons and who self-identified their
ethnicity. Exhibit D demonstrates that there is one self-
identified African-American who was excused from the jury.
The Court understands that the reason for the excusal is
because the individual was attending college away from home.
Panel 2 has one person [who] identified as African-American.
If the jury pool was proportional to the population, out
of 138 jurors, there should be two to three potential jurors
who are African-American. If the Court accepts the
defendant’s figure of 2.3 percent, then the number of expected
African-American jurors in the pool should be at least three
jurors.
The district court went on to reject Williams’s argument that the
excused African-American juror could not be considered because “there is
no showing that the method of excusing jurors is such that African-
Americans are excused in greater numbers than other persons of different
ethnicity or nationality.” The court then found no underrepresentation
because given the small numbers involved, “it is difficult to apply a rigid
9
statistical analysis to the matter.” The court also held there was no
showing of systematic exclusion of African-Americans from the potential
jury pool. It noted, however,
In reviewing historical numbers, the Court believes that the
state court system can do more and the Court suspects that
a more through statistical analysis would show that African-
Americans are less likely to have motor vehicle registration or
are less likely to be registered to vote. However, that showing
has not been made in this case. The Court believes that
additional lists could be used to increase the potential
numbers of distinct minority groups. However, while believing
there may be better ways to select potential jurors, this does
not mean that the current method systematically excludes
African-American jurors. The State attempts to use neutral,
readily-available lists. Defendant’s position does not address
potential other reasons for the potential underrepresentation
of African-Americans on the historical jury pools. There is not
sufficient showing that a systematic exclusion resulted from
something that the State has done.
Trial began as scheduled on October 10. Two days earlier, Williams
had moved for individualized voir dire by counsel “so that the Defendant
can effectively and adequately exercise his peremptory challenges in
selecting jurors.” For most of the day of the 10th, the court, the
prosecution, and the defense conducted voir dire, and a number of
prospective jurors were excused. In the afternoon, the defense approached
the court and specifically requested taking each of the thirty-four
prospective jurors in the box for a private interview to talk to them about
their attitudes regarding race, among other things. The State opposed the
request. The district court ruled,
THE COURT: All right. I’m going to overrule that
motion. One, for the reasons stated by the State. I -- We’ve
listened to this jury, and I think most of them have expressed
an opinion that they can be fair and impartial and don’t have
any predisposition in -- in this matter. And just from that
kind of general sampling, I don’t think it’s going to be
necessary to have an individual examination.
10
The second reason is just a matter of -- of timing. Five
minutes each -- and I think that’s generous -- times 34 is 170
minutes, which is, you know, almost three hours. And if we
take some breaks here and there for the court reporter, you
know, basically we’d be using a half a day for that.
We have a shot of getting the jury selected today. I don’t
know if that’s going to happen or not. My experience is if I
have 150 people having to come back overnight, we lose some
of them, there might be exposure to things that we don’t want
to have them exposed to. It’s a lot easier if I have 14 people
that I have to take care of -- and keep track of.
So I don’t want to spend that time in order to -- to pick
a jury, given all that; and also I -- I think it’s somewhat unfair
to -- to the jury members that we do that without, you know,
more cause shown for doing that.
Williams’s counsel proceeded to voir dire the jurors concerning
racial attitudes as a group. For example, she asked, “If you’re picked to
be on the jury and you go back to the jury room and you hear another
juror making an argument based on race, what would you do?”
During the defense case, Williams presented witnesses who testified
that Fleming had a disagreeable and boastful personality and had got into
an altercation earlier that month and threatened retaliation. Witnesses
also testified that Fleming was driving recklessly, had tried to slap a
woman, and was making threats on June 30. Witnesses also testified to
Williams’s peaceful disposition.
Additionally, Williams testified on his own behalf and gave a different
version of events than he had provided after his arrest. According to
Williams, earlier in the day on June 30, Fleming was driving recklessly
through the Clarkview Apartments parking lot, acting aggressively,
insulting people, and making threats. Williams claimed the threats
included the use of firearms.
Williams testified he obtained the gun he used to shoot Fleming from
a friend, i.e., Brown, earlier on June 30 because he was fearful of Fleming.
11
However, Brown denied at trial he had provided the gun to Williams.
Brown said he had previously seen Williams with a gun.
Williams claimed that when he approached Fleming in the Chevy
Equinox on the evening of June 30, Fleming was highly agitated and had
his music on loud, and Williams was trying to calm him down. According
to Williams, Fleming said to him, “Man, you know what, don’t even
approach my m__f__ing car,” and accused him of being in association with
the individuals who had recently beaten up Fleming. After some
exchanges back and forth, in Williams’s words, “[H]e started reaching for
what I thought was a gun.” At this point, Williams said he pulled the gun
out of his back pocket, covered his face, and fired shots at Fleming
repeatedly until the gun was empty. Williams claimed he covered his face
the entire time that he was shooting Fleming, although all the shots
apparently hit their mark. Williams also claimed that when he pulled
Fleming out of the car, “I didn’t think he was really hurt . . . .”
Even at trial, Williams admitted that he never saw a gun on
Fleming’s person:
Q. Did you ever see a weapon in the car? A. I -- I don’t
know. I didn’t check for one, though. That -- That’s my
answer.
Q. Did you see a weapon in the car? A. I did not check
for one, sir.
Q. Well, did you see Mr. Fleming with a weapon?
A. You’re just trying to switch this on me; but no, sir.
On October 18, the jury returned a verdict finding Williams guilty of
the lesser included offense of murder in the second degree. See Iowa Code
§ 707.3. On December 8, the court sentenced Williams to an
indeterminate term of imprisonment of fifty years with a mandatory
12
seventy percent minimum. See id. § 707.3(2); id. § 902.12. Williams filed
a notice of appeal, and we retained the appeal.
On appeal, Williams raises five arguments. First, he contends that
he was denied his constitutional right to a jury panel drawn from a fair
cross section of the community. Second, he contends the district court
abused its discretion in not allowing individualized voir dire of potential
jurors on race-related issues. Third, he maintains the district court erred
in excluding evidence of Fleming’s criminal history and prior acts of
violence not known by Williams. Fourth, Williams insists that the district
court erred in refusing to give his proposed jury instruction on implicit
bias. Finally, Williams contends the court erred in not following the stand
your ground amendment that was enacted in 2017 and became effective
on July 1 of that year.
III. Standard of Review.
We review constitutional questions de novo. Plain, 898 N.W.2d at
810. This includes claims of systematic exclusion of a distinctive group
from a jury pool in violation of the Sixth Amendment. See id.
We review claims of voir dire error for an abuse of discretion. State
v. Martin, 877 N.W.2d 859, 865 (Iowa 2016). Likewise, evidentiary rulings
are reviewed for an abuse of discretion. State v. Huston, 825 N.W.2d 531,
536 (Iowa 2013). This includes rulings on the admission or exclusion of
evidence regarding prior bad acts. State v. Putman, 848 N.W.2d 1, 7 (Iowa
2014). Additionally, we review the refusal to give a cautionary jury
instruction for abuse of discretion. See Plain, 898 N.W.2d at 811. We have
described the abuse-of-discretion standard as follows:
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. Grounds or reasons are untenable if
13
they are “based on an erroneous application of the law or not
supported by substantial evidence.”
Id. (quoting State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014)).
“We review rulings on questions of statutory interpretation for
correction of errors at law.” State v. Childs, 898 N.W.2d 177, 181 (2017)
(quoting State v. Iowa Dist. Ct., 889 N.W.2d 467, 470 (Iowa 2017)).
IV. Fair-Cross-Section Claim.
The jury that convicted Williams had no African-Americans on it. It
also appears there were no African-Americans on the October 10 panel
that was seated in the courtroom and went through voir dire. Williams
maintains that the jury selection process used in Floyd County violated
his Sixth Amendment right to have a jury drawn from a fair cross section
of the community. 1
1Williams argues on appeal that his rights under article I, section 10 of the Iowa
Constitution were also violated. His motion to strike the jury panel and his motion for
new trial in the district court mentioned exclusively the Sixth Amendment. When the
district court denied the motion to strike, it mentioned only the Sixth Amendment, the
only legal ground Williams had raised. However, when the district court denied the
motion for new trial at the time of sentencing, it said it had considered the matter “both
under the Federal and the State Constitutions.”
We have held that a defendant who specifically identifies only a federal
constitutional claim in the trial court has not preserved a state constitutional claim. See
Veal, ___ N.W.2d at ___; State v. Coleman, 890 N.W.2d 284, 286–87 (Iowa 2017); State v.
Prusha, 874 N.W.2d 627, 630 (Iowa 2016). It is true that the district court referred to the
Iowa Constitution sua sponte at the very end of trial court proceedings—i.e. in denying
the motion for new trial at the time of sentencing. However, a motion for new trial is too
late to raise a constitutional challenge to the jury panel. See State v. Johnson, 476 N.W.2d
330, 333–34 (Iowa 1991) (finding that a constitutional objection to the jury panel was
waived when first asserted in a postverdict motion for new trial).
A post-verdict motion challenging the jury panel simply comes too
late to comply with the policies behind the preservation requirement. At
the time of defendant’s motion, the only corrective action the trial court
could have taken would have been to sustain the motion for new trial and
conduct a second trial in front of a second jury.
Id. at 334; cf. State v. Watkins, 463 N.W.2d 411, 412–13 (Iowa 1990) (finding no waiver
when a Sixth Amendment challenge was made after the panel had been sworn).
Accordingly, we hold that Williams waived any article I, section 10 challenge to the jury
panel.
14
As noted, the district court found that Williams had failed to meet
either the second or the third Duren/Plain prong. It observed that out of
138 individuals in the combined pool, there were only two self-identified
African-Americans, but it was “difficult to apply a rigid statistical analysis
to the matter” in light of “the small numbers involved.” It also found no
showing that a particular State practice had resulted in systematic
exclusion.
In two other cases decided today, we have discussed what a
defendant must prove to establish a fair-cross-section constitutional
violation. See Lilly, ___ N.W.2d at ___; Veal, ___ N.W.2d at ___. As we have
explained, under the second Duren/Plain prong, the percentage of the
distinctive group in the population should be determined using the most
recent available census data. See Lilly, ___ N.W.2d at ___; Veal, ___ N.W.2d
at ___. These data may be adjusted to account for those who are actually
eligible to serve as jurors, for example, by eliminating the population that
is under eighteen and the population (if any) that is incarcerated in a state
prison located in the county. See Lilly, ___ N.W.2d at ___; Veal, ___ N.W.2d
at ___.
For Sixth Amendment purposes, the defendant must then show that
the percentage of the group in the jury pool is less than this expected
percentage by at least two standard deviations. See Veal, ___ N.W.2d at
___. Pools may be aggregated, so long as pools closer in time to the trial
date are not omitted when earlier pools are included. See Lilly, ___ N.W.2d
at ___; Veal, ___ N.W.2d at ___. The aggregation of pools can help solve the
Williams states in his brief that if error was not preserved “under the Iowa
Constitution, . . . trial counsel was ineffective.” Appellant’s Br. at 30. Yet beyond making
this statement, Williams has not briefed either element of ineffective assistance. See
Strickland v. Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984). We
decline to consider this claim on direct appeal.
15
“small numbers” problem observed by the district court in its thoughtful
ruling.
Once underrepresentation has been shown, the defendant must
then show that some practice or practices caused the
underrepresentation—i.e. the third Duren/Plain prong. See Lilly, ___
N.W.2d at ___; Veal, ___ N.W.2d at ___. As we have explained in Veal, for
Sixth Amendment purposes, the practice must be something more than
an item on the Berghuis v. Smith “laundry list.” Veal, ___ N.W.2d at ___
(quoting Berghuis, 559 U.S. 314, 332, 130 S. Ct. 1382, 1395 (2010)).
To illustrate how this analysis might work, in this case one African-
American juror was excused from even coming to the courthouse on
October 10 because she was in college. Williams argues that she and other
preexcused jurors should not be counted in determining the percentage of
the distinctive group in the jury pool, making the ratio 1/130 rather than
2/138. The State and the district court viewed the matter otherwise. As
the State reasons, there is no reason to omit persons who received a juror
summons from the statistics, “especially in the absence of any allegation
that hardship excusals are granted in patterns that contribute to
underrepresentation or exclusion.”
There is a potential problem with the State and the district court’s
position, at least under article I, section 10 of the Iowa Constitution. A
policy or practice relating to excusing jurors might amount to systematic
exclusion. See Lilly, ___ N.W.2d at ___. If a defendant wishes to try to
prove that it does, the defendant should not be foreclosed from doing so
by a rigid rule that calculates the pool based on who was summoned,
rather than who actually appeared. 2
2We reiterate, however, that in this case the state constitutional claim was not
preserved.
16
In this case, the district court prepared a careful ruling based on the
caselaw as it existed at the time of trial. But it did not have the benefit of
today’s decisions. As in Lilly and Veal, we believe the appropriate course
of action is to remand to give Williams a further opportunity to develop his
Sixth Amendment fair-cross-section claim using the criteria we have set
forth today. See Lilly, ___ N.W.2d at ___; Veal, ___ N.W.2d at ___.
V. Individualized Voir Dire on Racial Attitudes.
Williams next argues that he is entitled to a new trial because his
attorneys were unable to conduct individualized voir dire of the potential
jurors on race issues outside the presence of the other potential jurors.
The weight of authority places this subject within the domain of trial court
discretion, at least when the case does not have particular racial
overtones. See, e.g., United States v. Parker, 872 F.3d 1, 7, 8 (1st Cir.
2017) (“[N]o authority exists to support Parker’s theory—floated during
oral argument—that if the case facts suggest the judge should voir dire on
race, then only an individual voir dire will do.”); United States v. Hosseini,
679 F.3d 544, 555 (7th Cir. 2012) (“[O]rdinarily, questioning jurors as a
group is sufficient to satisfy the Sixth Amendment, even when the
defendant belongs to a racial, ethnic, or religious minority and juror bias
on one or more of these grounds might be a concern.”); People v. Harris,
306 P.3d 1195, 1220 (Cal. 2013) (finding no abuse of discretion in denying
the defendant’s motion for individual sequestered voir dire on race);
Commonwealth v. Robinson, 942 N.E.2d 980, 986 (Mass. App. Ct. 2011)
(finding that individual voir dire regarding racial bias was not required
because the case did not involve an alleged interracial killing, interracial
rape, or sexual offense against a child by a defendant of a different race);
Smith v. State, 977 So. 2d 1227, 1237 (Miss. Ct. App. 2008) (finding no
17
error in denial of the defendant’s motion for sequestered voir dire on
attitudes toward race).
In State v. Windsor, a case involving an African-American defendant
and a white alleged victim, we held that
trial courts in Iowa should make or permit counsel to make
specific inquiry into racial prejudice upon proper request in
similar circumstances and in any case in which a reasonable
possibility exists that the verdict might be affected by racial
prejudice.
316 N.W.2d 684, 686–87 (Iowa 1982). Yet we also held that “absent special
circumstances of the nature delineated in Ham [v. South Carolina, 409 U.S.
524, 93 S. Ct. 848 (1973)], the inquiry may be limited to a question of the
panel sufficient to call the jurors’ attention to the subject and require
response from any juror harboring racial bias.” 3 Id. at 687. In State v.
Oshinbanjo, our court of appeals followed in Windsor’s tracks and held
that a district court did not abuse its discretion in denying “defendant’s
request to individually question prospective jurors out of the presence of
the other jurors” on the subject of racial prejudice. 361 N.W.2d 318, 321
(Iowa Ct. App. 1984).
Williams asks us, in effect, to overrule Windsor. He argues that
several decades have passed and there has been new scholarship on
implicit bias. But Williams cites no scholarship directed to the specific
issue here—namely, the effectiveness of questioning prospective jurors on
race in an individual, sequestered setting as opposed to a group setting.
3Ham, as we explained in Windsor, involved a defendant who
was a civil rights activist who alleged that local authorities had framed him
on a drug charge because of his civil rights work. Thus, racial prejudice
was a material issue affecting the merits of the case.
Windsor, 316 N.W.2d at 686.
18
On our review of the record, we find the district court did not abuse
its discretion. The defendant and the decedent were of the same race and
there is no suggestion that race played a role in the alleged crime or its
investigation. Additionally, the district court balanced Williams’s request
against other concerns. This case had received some notoriety in this
county of around 16,000 people. The district court noted that if it granted
individualized voir dire, it would no longer be possible to finish jury
selection that day. 4 The court worried that it would be more difficult to
limit the exposure of a large group of potential jurors overnight to improper
influence than to limit the exposure of a small group of actual jurors: “It’s
a lot easier if I have 14 people [twelve jurors and two alternates] that I have
to take care of and -- keep track of.” There is logic to the court’s reasoning.
The message that people need to act responsibly tends to be better received
when those people have been given responsibility. Thus, a person who
has been told she or he is an actual juror may be more prone to take the
court’s admonition seriously. Finally, we note that defense counsel’s panel
questioning on the subject of race was thoughtful and insightful.
Having said that, we emphasize that this was a murder trial where
the defendant faced a very severe sentence. Defense counsel should be
given considerable leeway in utilizing voir dire to eliminate potential racial
bias from the jury.
VI. Implicit-Bias Instruction.
At trial, the district court gave Jury Instruction 5, which stated in
part,
As you consider the evidence, do not be influenced by
any personal sympathy, bias, prejudices or emotions.
Because you are making very important decisions in this case,
you are to evaluate the evidence carefully and avoid decisions
4Jury selection was completed on March 10, the first day of trial.
19
based on generalizations, gut feelings, prejudices,
sympathies, stereotypes, or biases. The law demands that you
return a just verdict, based solely on the evidence, your reason
and common sense, and these instructions. As jurors, your
sole duty is to find the truth and do justice.
However, the court denied Williams’s request to give the following
additional instruction:
Our system of justice depends on judges like me and jurors
like you being able and willing to make careful and fair
decisions. Scientists studying the way our brains work have
shown that, for all of us, our first responses are often like
reflexes. Just like our knee reflexes, our mental responses are
quick and automatic. Even though these quick responses
may not be what we consciously think, they could influence
how we judge people or even how we remember or evaluate
the evidence.
Scientists have taught us some ways to be more careful in our
thinking that I ask you to use as you consider the evidence in
this case:
Take the time you need to test what might be reflexive
unconscious responses and to reflect carefully and
consciously about the evidence.
• Focus on individual facts, don’t jump to conclusions that may
have been influenced by unintended stereotypes or
associations.
• Try taking another perspective. Ask yourself if your opinion
of the parties or witnesses or of the case would be different if
the people participating looked different or if they belonged to
a different group
• You must each reach your own conclusions about this case
individually, but you should do so only after listening to and
considering the opinions of the other jurors, who may have
different backgrounds and perspectives from yours.
Working together will help achieve a fair result.[5]
5Achieving an Impartial Jury Project, Toolbox, Am. Bar Ass’n 17–20
(footnotes omitted), https://www.americanbar.org/content/dam/aba/publications/
criminaljustice/voirdire_toolchest.pdf (last modified Oct. 13, 2015).
20
The court noted that Williams’s proposed instruction had not been
reviewed by any Iowa court to its knowledge. The court also pointed out
that Instruction 5 in its view covered the subject matter:
Instruction 5 does talk about setting aside stereotypes,
biases, and prejudices. I think that addresses the issue. The
law -- The jury’s otherwise instructed to consider what they’ve
heard in the courtroom; and -- and if they follow those
instructions, then the race of the -- of the defendant or the --
or Mr. Fleming would not be pertinent. I’m aware of the
concerns; but, as I said, I think Instruction 5 addresses that
matter.
Williams argues on appeal that the district court’s refusal of his implicit-
bias instruction amounted to reversible error.
In Plain, the district court declined to give a different implicit-bias
instruction than the one Williams requested here. 898 N.W.2d at 816. We
noted in Plain that denial of a cautionary instruction like an implicit-bias
instruction is subject to an abuse-of-discretion standard. Id. We held the
trial court had abused its discretion “because it erroneously believed it
lacked authority from our court to give the [implicit-bias] instruction.” Id.
at 817. Yet, in the end, we found that the district court’s refusal to give
Plain’s requested implicit-bias instruction was not prejudicial. Id.
In this case, unlike Plain, the district court did not conclude it lacked
authority to give an implicit-bias instruction. Rather, it found that
Instruction 5 adequately addressed the concern. Instruction 5 was based
on the Iowa State Bar Association’s latest version of Instruction 100.8. See
Iowa State Bar Ass’n, Iowa Criminal Jury Instructions 100.8 (2018)
(revised June 2016). The Iowa State Bar Association updated Instruction
100.8 in 2016 so that it now directs the jury to “avoid decisions based on
generalizations, gut feelings, prejudices, sympathies, stereotypes, or
biases.” Id. This version of Instruction 100.8 did not exist at the time of
Plain’s trial and was not given in Plain. See Plain, 898 N.W.2d at 839 n.14
21
(Waterman, J., specially concurring) (quoting from the jury instructions).
It is also noteworthy that both Williams and Fleming were of the same
race, unlike in Plain where the defendant was African-American and the
complaining witness was white. See id. at 809 (majority opinion). Given
these factors, we find the district court did not abuse its discretion in
declining to give Williams’s requested implicit-bias instruction. 6 This does
not mean, of course, that it would have been an abuse of discretion to use
Williams’s requested instruction.
VII. Fleming’s Convictions and Other Prior Bad Acts Not Known
by Williams.
At trial, Williams asserted that he shot Fleming in self-defense. In
support of this claim, Williams was allowed to introduce (1) evidence of
Fleming’s behavior on the day of the shooting, (2) any other specific acts
by Fleming known to Williams, and (3) Fleming’s alleged reputation for
aggressive behavior. Specifically, Williams was permitted to introduce
evidence that on the evening in question, Fleming was highly intoxicated,
and that he had been acting tough, voicing threats, and driving recklessly.
Williams also was allowed to offer proof that Fleming—a person who was
short of stature—had a “Chihuahua complex.”
However, Williams was not allowed to introduce Fleming’s criminal
history report 7 or proof of specific prior acts of violence not known to
Williams. Williams contends this was error. The State, meanwhile,
responds that the district court’s ruling can be sustained on several
6Notably, in Plain, we held that an abuse-of-discretion standard of review applied
to whether an implicit-bias instruction should have been given. See Plain, 898 N.W.2d
at 811, 816. We specifically distinguished the prior case of Alcala v. Marriott International,
Inc., 880 N.W.2d 699, 707–08 (Iowa 2016), which we said did not apply to “cautionary”
instructions such as an implicit-bias instruction. Id.
7There was no offer of proof to make a record of what was in Fleming’s criminal
history, but apparently it contained a number of assault convictions.
22
grounds. Among other things, the State urges us to clarify the meaning of
Iowa Rule of Evidence 5.405.
Iowa Rule of Evidence 5.405, concerning “Methods of proving
character,” states,
a. By reputation or opinion. When evidence of a
person’s character or character trait is admissible, it may be
proved by testimony about the person’s reputation or by
testimony in the form of an opinion. On cross-examination of
the character witness, the court may allow an inquiry into
relevant specific instances of the person’s conduct.
b. By specific instances of conduct. When a person’s
character or character trait is an essential element of a charge,
claim, or defense, the character or trait may also be proved by
relevant specific instances of the person’s conduct.
Before this rule was even adopted, we held in State v. Jacoby, “It is
the rule in Iowa and the majority of jurisdictions that the quarrelsome,
violent, aggressive or turbulent character of a homicide victim cannot be
established by proof of specific acts.” 260 N.W.2d 828, 838 (Iowa 1977).
As we explained in Jacoby,
The reasons for the rule prohibiting proof of specific acts
of violence appear to be at least threefold: (1) A single act may
have been exceptional, unusual, and not characteristic and
thus a specific act does not necessarily establish one’s general
character; (2) although the state is bound to foresee that the
general character of the deceased may be put in issue, it
cannot anticipate and prepare to rebut each and every specific
act of violence; and (3) permitting proof of specific acts would
multiply the issues, prolong the trial and confuse the jury.
Id. (quoting Henderson v. State, 218 S.E.2d 612, 615 (Ga. 1975)).
Then, after we had adopted rule 405 of the Iowa Rules of Evidence,
which later became rule 5.405, we reaffirmed Jacoby. See Klaes v. Scholl,
375 N.W.2d 671, 675–76 (Iowa 1985). In Klaes, a citizen sued police
officers for assaulting him. Id. at 672. The testimony was in conflict as to
who was the aggressor. Id. at 673. We indicated that evidence of the
23
citizen’s “character for violence” would be admissible. Id. at 674. Quoting
the rule 405, we said that “defendants could of course have introduced
evidence of [the citizen’s] violent character by reputation or opinion
testimony.” Id. at 675. Yet we held it was improper for the district court
to have admitted specific instances of the citizen’s prior conduct. Id. at
675–76. We rejected the notion that character is an essential element of
a claim of self-defense, stating,
We believe, however, that in cases like this one the “issue” in
question is not one of character but rather of conduct. We hold
therefore the evidence of Scholl’s prior conduct did not go to
an essential element of self-defense as required by [rule
5.405(b)] and was not admissible.
Id. at 676 (citations omitted).
Three years later, however, we were confronted with the same issue
in State v. Dunson, 433 N.W.2d 676, 677 (Iowa 1988), a criminal assault
case where the defendant raised a claim of self-defense. The defendant
sought to introduce evidence that shortly after the altercation in question,
the alleged victim followed him and ran him over with her automobile. Id.
at 679. We quoted rule 5.405(b) but did not address the distinction
between conduct evidence and opinion or reputation evidence. Id. at 680–
81. Nor did we comment on whether the victim’s character for violence is
an essential element of a self-defense claim. Id. We did not mention or
even cite to Klaes. Id. Rather, we simply said that the evidence was
“relevant” and “material” and therefore should have been admitted on that
basis. Id.
In State v. Fish, the court noted that “most states with evidentiary
rules similar to the Federal Rules of Evidence permit the defendant to
introduce reputation and opinion evidence, but not specific acts of
violence, to prove the victim’s violent character.” 213 P.3d 258, 268 (Ariz.
24
Ct. App. 2009). Citing Dunson, the Arizona court noted that Iowa was one
of two states not to follow this approach, but it implicitly criticized Dunson
for failing to discuss “the essential element issue.” Id. at 269.
Uncertainty exists today as to the applicable rule in Iowa. The court
of appeals decision in State v. Shearon, 449 N.W.2d 86 (Iowa Ct. App.
1989), illustrates this point. There the court of appeals said, “Specific
instances of conduct may be used to demonstrate character when
character is an essential element of a claimed defense.” Id. at 87. Yet the
court declined to take a position on whether character is an essential
element of self-defense in a criminal case, stating,
This court notes that in the context of a civil case in
which it was claimed that the combative character of an
alleged assault victim should have been admitted, the Iowa
Supreme Court held that specific instances of the victim’s
conduct did not go to an essential element of the defendant’s
claim of self-defense. Klaes v. Scholl, 375 N.W.2d 671, 676
(Iowa 1985). As the State has not made an analogous
argument in this case, we assume the applicability of [rule
5.405(b)] and address our attention to whether Coaklay’s
testimony was relevant and/or prejudicial.
Id. at 87 n.1. Ultimately, it found the specific-act evidence inadmissible
anyway because it “would have been substantially prejudicial and would
have outweighed the probative value . . . .” Id. at 88.
Recently, in State v. Webster and State v. Einfeldt, we upheld on
other grounds the exclusion of specific acts evidence that had been offered
to prove a homicide victim’s aggressive character. See Webster, 865
N.W.2d 223, 243–44 (Iowa 2015); Einfeldt, 914 N.W.2d 773, 783–84 (Iowa
2018). Yet we did say in Einfeldt, “[I]f the accused asserts he or she acted
in self-defense, specific instances of the victim’s conduct may be used to
demonstrate his or her violent or turbulent character.” 914 N.W.2d at
784. The State urges that this statement, which was not necessary to our
decision, misstates the law.
25
We conclude today that the plain text of rule 5.405 should be
followed. That text allows specific-acts evidence to be used to prove
character only when character is an “essential element” of a charge, claim,
or defense. Iowa R. Evid. 5.405(b).
Character is not an essential element of justification. Iowa Code
section 704.3 provided, “A person is justified in the use of reasonable force
when the person reasonably believes that such force is necessary to defend
oneself or another from any actual or imminent use of unlawful force.”
Depending on the facts and circumstances, a reasonable belief may exist—
or may not exist—regardless of the other person’s character.
Indeed, when Rule 5.405 was adopted, the Official Comment
embraced Jacoby as “an example of Iowa application” of subsection (b).
Jacoby, as noted, does not allow specific acts to prove a victim’s character.
260 N.W.2d at 838.
Furthermore, Dunson has come under criticism. Professor Laurie
Doré has noted that Dunson did not overrule Klaes and is inconsistent
with it. 7 Laurie Kratky Doré, Iowa Practice SeriesTM: Evidence § 5.405:2,
at 324–25 (2017 ed.) [hereafter Doré]. In her view, Klaes is right:
[U]nless a defendant claims to have known about the victim’s
violent conduct (and therefore acted reasonably in using
defensive force), a defendant seeking to admit evidence of a
victim’s character to support self-defense should only be
permitted to use reputation or opinion evidence, not specific
instances of the victim’s conduct.
Id. at 325–26.
One of Professor Doré’s former colleagues, Professor James Adams,
has likewise criticized Dunson for “ignoring the analysis in Jacoby and
Klaes” and giving “no effect” to the first part of rule 5.405. James A.
Adams, Admissibility of Proof of an Assault Victim’s Specific Instances of
Conduct as an Essential Element of a Self-Defense Claim Under Iowa Rule
26
of Evidence 405, 39 Drake L. Rev. 401, 416–17 (1990). He goes on to say
that “nothing in the Iowa Rules of Evidence or the Federal Rules of
Evidence from which they were derived . . . suggests such an interpretation
[i.e., the interpretation in Dunson] is appropriate or desirable.” Id. at 429.
Even if Dunson were correct, Professor Adams believes it would be subject
to criticism for making a change in interpretation “without discussion of
prior case law or any basis for the change.” Id.
Thus, we hold that a defendant asserting self-defense or justification
may not prove the victim’s aggressive or violent character by specific
conduct of the victim unless the conduct was previously known to the
defendant. See Klaes, 375 N.W.2d at 676 (“[W]e are not dealing with the
special situation in which the person claiming self-defense had actual
knowledge of the other person’s prior acts of violence.”); Jacoby, 260
N.W.2d at 838–39 (“[A]ccording to most courts . . . if, prior to the homicide,
the defendant . . . knew of other acts of violence of the deceased, he may,
in support of his contention that he had reasonable grounds to believe
himself in imminent danger from an assault by the deceased, introduce
evidence of such prior unlawful acts of violence by the deceased.”
(alteration in original) (quoting 40 Am. Jur. 2d, Homicide, § 306, at 575));
Doré, § 5.405:2, at 325 (distinguishing the situation where “a defendant
claims to have known about the victim’s violent conduct”).
Our interpretation of rule 5.405 gives full effect to the rule. There
are some cases where character is an essential element—Klaes gives
alienation of affections and slander as examples. 375 N.W.2d at 676.
Professor Doré notes, “In child custody situations . . . , the character trait
of moral unfitness may be an element and specific instances of conduct
may be used to demonstrate that character trait.” Doré, § 5:405:2, at 526–
27. But self-defense is not one of those situations.
27
Accordingly, we hold the district court did not err in ruling that
Williams could not introduce Fleming’s criminal record or other specific
acts of violence not previously known to Williams.
VIII. Stand Your Ground Defense.
Lastly, Williams argues the district court erred when it held that
amended Iowa Code section 704.1, which became effective on July 1, 2017,
did not apply in his case. See 2017 Iowa Acts ch. 69, § 37 (codified at Iowa
Code § 704.1 (2018)). During the 2017 session, the general assembly
rewrote section 704.1 to read as follows:
1. “Reasonable force” means that force and no more
which a reasonable person, in like circumstances, would
judge to be necessary to prevent an injury or loss and can
include deadly force if it is reasonable to believe that such
force is necessary to avoid injury or risk to one’s life or safety
or the life or safety of another, or it is reasonable to believe
that such force is necessary to resist a like force or threat.
2. A person may be wrong in the estimation of the
danger or the force necessary to repel the danger as long as
there is a reasonable basis for the belief of the person and the
person acts reasonably in the response to that belief.
3. A person who is not engaged in illegal activity has no
duty to retreat from any place where the person is lawfully
present before using force as specified in this chapter.
Iowa Code § 704.1 (2018).
Most notable is subsection 3, a new stand your ground provision,
which eliminates any duty to retreat before using force if one is not
engaged in illegal activity. Id. The legislature provided that the 2017
amendment would not become effective until July 1, 2017—a few hours
after Williams shot Fleming the evening of June 30. See 2017 Iowa Acts
ch. 69, § 50; Iowa Code § 3.7(1) (2017).
We conclude the district court made the right call when it held the
2017 amendment did not apply in this case. The amendment was a
28
change in substantive law, and it was the legislature’s prerogative not to
make that change effective until July 1.
Williams relies on Iowa Code section 4.13(2), which provides,
If the penalty, forfeiture, or punishment for any offense is
reduced by a reenactment, revision, or amendment of a
statute, the penalty, forfeiture, or punishment if not already
imposed shall be imposed according to the statute as
amended.
However, the 2017 amendment did not alter the punishment for murder;
at most, it expanded the scope of a potential defense. See 2017 Iowa Acts
ch. 69, § 37 (codified at Iowa Code § 704.1 (2018)).
Recently, in State v. Harrison, we held that the 2016 legislation
dividing what had been second-degree robbery (a class “C” felony) into
second-degree robbery and third-degree robbery (a class “C” felony and an
aggravated misdemeanor) did not apply retroactively. 914 N.W.2d 178,
205 (Iowa 2018). We explained,
It is a well-settled law that substantive amendments to
criminal statutes do not apply retroactively. Since third-
degree robbery did not exist in the Iowa Code at the time of
Harrison’s offense, Harrison was not entitled to a jury
instruction differentiating between felony robbery and
misdemeanor robbery.
Id. (citations omitted). We think Harrison controls here. 8
IX. Conclusion.
For the foregoing reasons, we conditionally affirm Williams’s
conviction and sentence, but we remand this case for further consideration
of Williams’s claim that his jury was not drawn from a fair cross section of
the community in violation of the Sixth Amendment. If the court rejects
8Inany event, it is highly questionable whether the facts of this case present a
stand your ground situation. Williams did not claim Fleming approached him; rather,
Williams acknowledged he approached Fleming and then shot him while he sat in the
vehicle.
29
that claim, then Williams’s conviction and sentence shall stand. If the
court accepts that claim, Williams shall receive a new trial.
AFFIRMED ON CONDITION AND REMANDED WITH
DIRECTIONS.
Cady, C.J., and Wiggins and Appel, JJ., concur in divisions IV, VII,
and VIII of the court’s opinion but dissent as to divisions V and VI.
Waterman, Christensen, and McDonald, JJ., concur in divisions V,
VI, VII, and VIII of the court’s opinion but dissent as to division IV.
30
#17–1989, State v. Williams
WIGGINS, Justice (concurring in part and dissenting in part).
I agree with the majority opinion’s analysis in division IV on the fair-
cross-section claim, in division VII on Fleming’s convictions and other
prior bad acts not known by Williams, and in division VIII on the “stand
your ground” defense. I feel compelled to dissent from the majority
opinion’s analysis in division VI on the implicit-bias instruction and in
division V on individualized voir dire on racial attitudes.
Iowa is one of the worst states in the Union regarding racial disparity
in imprisonment. As I pointed out in State v. Plain, a 2016 report by The
Sentencing Project showed blacks made up 3.1% of Iowa’s population,
while 25.8% of Iowa’s prison population was black. 898 N.W.2d 801, 830
(Iowa 2017) (Wiggins, J., concurring specially). These statistics are
disgraceful. I believe this racially disparate treatment of blacks by our
criminal justice system is due to implicit racial bias.
Although the judicial system cannot fix the problem on its own, it is
incumbent on every judge in every county courthouse to do whatever is
necessary to make sure black men and women receive a trial with a fair
and impartial jury free of racial bias. This starts with not only recognizing
the existence of racial bias in our state, but also making a concerted effort
to rid our courthouses of any hint of racial bias. This task requires
diligence and extra trial time.
The majority in Plain mandated courts be proactive about implicit
bias in the future when it said, “We strongly encourage district courts to
be proactive about addressing implicit bias; however, we do not mandate
a singular method of doing so.” Id. at 817 (majority opinion). In my
concurring opinion, I stated,
31
Due to the disgraceful disparity in the punishment and
incarceration between blacks and whites, we should not wait
for further research and study on the issue of implicit bias
and racial disparity. The demand for justice to our black
citizens does not allow for further stalling. A defendant and
his or her counsel are in the best position to know whether
the circumstances of the present case warrant an implicit-bias
instruction. A defendant and his or her counsel are also in
the best position to determine whether instructing jurors on
implicit bias may lead to a better outcome or not.
In the future when a defendant requests an implicit-
bias instruction and implicit bias may have an effect on a jury,
there is no reason for the court not to instruct the jury on
implicit bias.
Id. at 830 (Wiggins, J., concurring specially). Two other justices agreed
with this language. Id.
Nevertheless, the district court here chose to ignore it. The
instruction given by the court stated,
As you consider the evidence, do not be influenced by
any personal sympathy, bias, prejudices or emotions.
Because you are making very important decisions in this case,
you are to evaluate the evidence carefully and avoid decisions
based on generalizations, gut feelings, prejudices,
sympathies, stereotypes, or biases. The law demands that you
return a just verdict, based solely on the evidence, your reason
and common sense, and these instructions. As jurors, your
sole duty is to find the truth and do justice.
This was not an instruction aimed at addressing implicit bias. Rather it
was an instruction dealing with personal sympathy, conscious biases or
prejudices, or emotions.
Implicit biases are held deep in the subconscious, and as humans,
we are often unaware of them or their influence on our cogitations and
actions. E.g., Mark W. Bennett, Unraveling the Gordian Knot of Implicit
Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the
Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev.
149, 149 (2010) (“Implicit biases are the plethora of fears, feelings,
32
perceptions, and stereotypes that lie deep within our subconscious,
without our conscious permission or acknowledgement. Indeed, social
scientists are convinced that we are, for the most part, unaware of them.
As a result, we unconsciously act on such biases even though we may
consciously abhor them.”); Anthony G. Greenwald & Linda Hamilton
Krieger, Implicit Bias: Scientific Foundations, 94 Calif. L. Rev. 945, 946
(2006) (“[T]he science of implicit cognition suggests that actors do not
always have conscious, intentional control over the processes of social
perception, impression formation, and judgment that motivate their
actions.”); Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev.
1124, 1129 (2012) [hereinafter Kang et al.] (“[Implicit social cognition’s,
which includes implicit bias,] impact on a person’s decisionmaking and
behaviors does not depend on that person’s awareness of possessing these
attitudes or stereotypes. Consequently, they can function automatically,
including in ways that the person would not endorse as appropriate if he
or she did have conscious awareness.”). In addition, research portends
that implicit bias will influence jurors unless the court expressly brings
the subject to the jurors’ attention. See, e.g., Kang et al., 59 UCLA L. Rev.
at 1184–86. Thus, a jury instruction addressing implicit bias must clearly
present itself as one on implicit bias and must target the hidden and
subconscious nature of that type of bias. The bias instruction given in
this case did not do so. 9
9This can be seen by comparing the language of the instruction given in this case
with an actual implicit-bias instruction given by a federal district court judge, for
example. Now-retired Judge Mark W. Bennett, who served in the United States District
Court for the Northern District of Iowa, used to give the following implicit-bias instruction:
Do not decide the case based on “implicit biases.” As we discussed in jury
selection, everyone, including me, has feelings, assumptions, perceptions,
fears, and stereotypes, that is, “implicit biases,” that we may not be aware
of. These hidden thoughts can impact what we see and hear, how we
remember what we see and hear, and how we make important decisions.
33
The requested instruction covered implicit bias. It stated,
Our system of justice depends on judges like me and jurors
like you being able and willing to make careful and fair
decisions. Scientists studying the way our brains work have
shown that, for all of us, our first responses are often like
reflexes. Just like our knee reflexes, our mental responses are
quick and automatic. Even though these quick responses
may not be what we consciously think, they could influence
how we judge people or even how we remember or evaluate
the evidence.
Scientists have taught us some ways to be more careful in our
thinking that I ask you to use as you consider the evidence in
this case:
Take the time you need to test what might be reflexive
unconscious responses and to reflect carefully and
consciously about the evidence.
• Focus on individual facts, don’t jump to conclusions that
may have been influenced by unintended stereotypes or
associations.
• Try taking another perspective. Ask yourself if your
opinion of the parties or witnesses or of the case would be
different if the people participating looked different or if
they belonged to a different group?
• You must each reach your own conclusions about this case
individually, but you should do so only after listening to
and considering the opinions of the other jurors, who may
have different backgrounds and perspectives from yours.
Working together will help achieve a fair result.
Because you are making very important decisions in this case, I strongly
encourage you to evaluate the evidence carefully and to resist jumping to
conclusions based on personal likes or dislikes, generalizations, gut
feelings, prejudices, sympathies, stereotypes, or biases. The law demands
that you return a just verdict, based solely on the evidence, your individual
evaluation of that evidence, your reason and common sense, and these
instructions. Our system of justice is counting on you to render a fair
decision based on the evidence, not on biases.
Kang et al., 59 UCLA L. Rev. at 1182–83 (quoting Mark W. Bennett, Jury Pledge Against
Implicit Bias (2012) (unpublished manuscript) (on file with authors)). Judge Bennett’s
instruction is strikingly similar to the one given in the instant case. But, unlike Judge
Bennett’s instruction, the instruction given here does not specifically mention “implicit
biases,” their hidden nature, or their potential unintended effect.
34
Achieving an Impartial Jury Project, Toolbox, Am. Bar Ass’n 17–20
(footnotes omitted), https://www.americanbar.org/content/dam/aba/
publications/criminaljustice/voirdire_toolchest.pdf (last modified Oct. 13,
2015).
This instruction first explains to the jurors the concept of implicit
bias. Id. at 17–18 & nn.68–71. The instruction then requires the jurors
to be aware of implicit bias when considering the matter. See id. at 18 &
nn.72–73. Finally, it tells the jurors to focus on the facts without jumping
to any conclusions influenced by stereotypes. Id. at 19 & n.74. It also
tells the jurors to look at the evidence from the perspective of a person
belonging to a different group. Id. at 19 & nn.75–76.
The majority reviewed this case on abuse of discretion. That is
incorrect. We overturned the prior law on abuse-of-discretion review when
a party requests a jury instruction. Alcala v. Marriott Int’l, Inc., 880 N.W.2d
699, 707–08 (Iowa 2016). In Alcala, we held review of “refusals to give a
requested jury instruction [is] for correction of errors at law” when Iowa
law requires the instruction be given. Id. at 707. “Iowa law requires a
court to give a requested instruction if it correctly states the applicable law
and is not embodied in other instructions.” Id. (quoting Sonnek v. Warren,
522 N.W.2d 45, 47 (Iowa 1994)). As noted above, the district court did not
embed the requested instruction in the instruction it gave the jury. Racial
bias goes to the heart of a fair trial. A fair trial is a tenet of due process in
this country. The instruction given concerned personal bias, not implicit
bias. Moreover, the requested instruction is a correct statement of law.
Therefore, I would find an error at law for not giving the requested
instruction.
As to the majority’s analysis regarding individualized voir dire on
racial attitudes, I must also dissent. In light of the great racial disparity
35
in imprisonment in this state, I disagree with the district court judge’s
conclusion that expediently completing voir dire in one day was more
important than Williams’s quest to find a jury free of racial bias. The
majority’s myopic and maladroit paralogism that the district court found
it was more important to finish voir dire in one day rather than to worry
that a prospective juror would be exposed to improper influences overnight
is an excuse, not a reason. It is also illogical. Wouldn’t the same concern
apply to jurors the parties picked to serve? Why wouldn’t these jurors be
subject to the same improper influences? Admonitions take care of this
problem. See, e.g., State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010) (“We
presume juries follow the court’s instructions.”).
It appears to me that the judge did not allow individual voir dire for
no other reason than to shorten the trial. This is unacceptable, especially
considering the State charged Williams with first-degree murder with the
penalty being life in prison without the possibility of parole. This is
equivalent to the death penalty in Iowa.
Studies show jurors do not always disclose everything in voir dire.
E.g., Collins v. State, 158 A.3d 553, 562 n.8 (Md. 2017). Thus, it is
necessary to do a thorough voir dire to root out implicit bias. That takes
time. Scheduling concerns should not be the basis for refusing to conduct
individual voir dire. United States v. Blitch, 622 F.3d 658, 667 (7th Cir.
2010) (finding abuse of discretion when trial judge decided not to conduct
individualized voir dire on the issue of juror bias because of scheduling
concerns regarding the judge’s upcoming commitment to sit by
designation on another court). Therefore, I would find an abuse of
discretion in not allowing individualized voir dire.
In conclusion, I would reverse the judgment of the district court and
remand for a new trial.
Cady, C.J., joins this concurrence in part and dissent in part.
36
#17–1989, State v. Williams
APPEL, Justice (concurring in part and dissenting in part).
I concur with the majority opinion except for divisions VI
(individualized voir dire) and VII (implicit bias).
I want to specifically point out, on the issue of fair cross section of
the jury, I agree for reasons discussed in my opinion in State v. Lilly, ___
N.W.2d ___, ___ (Iowa 2019) (Appel, J., concurring specially). I dissent,
however, on the question of whether the district court abused its discretion
in refusing to give an implicit-bias instruction. I also dissent on the
question of whether a defendant may be permitted to engage jurors
individually in voir dire about race issues.
I. Systemic Approach Required.
I write separately to emphasize, again, that in order to ensure
criminal defendants receive a fair and impartial trial with a cross section
of members of the community, a systemic approach is required. The
progress that has been made today on the question of fair cross section in
jury pools is important. See id. But in my view, the promise of providing
defendants with a fair and impartial trial free from racial discrimination
will require an across-the-board approach. Any effective effort to address
the potential of racial bias must include approval of individual inquiry of
racial bias in voir dire, revision or abandonment of the approach to
peremptory challenges of Batson v. Kentucky, 476 U.S. 79, 93–98, 106
S. Ct. 1712, 1721–24 (1986), see State v. Veal, ___ N.W.2d ___, ___ (Iowa
2019) (Appel, J., dissenting), the availability of an implicit-bias instruction
at the request of the defendant as suggested by the American Bar
Association, and development of the principles outlined in Peña-Rodriguez
v. Colorado, 580 U.S. ___, ___, 137 S. Ct. 855, 869 (2017), which permit a
defendant to penetrate the jury box when there is evidence that the verdict
37
was tainted by racial discrimination. This case involves the questions
surrounding an implicit-bias instruction and individualized voir dire.
II. Implicit-Bias Instruction.
I agree fully with Justice Wiggins’s opinion on the question of
whether the district court erred in failing to give an implicit-bias
instruction in this case. The district court declined to give the proposed
instruction because, in its view, the instruction has not been specifically
approved by this court and other instructions adequately covered the
subject. The district court was plainly incorrect in both of these
observations.
In State v. Plain, 898 N.W.2d 801, 811 (Iowa 2017), we considered a
case where the district court declined to give an implicit-bias instruction.
The district court denied the instruction because “it knew of no authority
approving or requiring the instruction and because the instruction was
not included in the Iowa State Bar Association’s model instructions.” Id.
at 817.
In Plain, this court rejected the district court’s “no authority”
rationale. The Plain court emphasized that the cautionary implicit-bias
instruction proposed in the case was a correct statement of
antidiscrimination principles and was thus permitted under Iowa law. Id.
Because the district court’s judgment relied upon an error of law, the
majority concluded that the district court’s decision refusing to give the
instruction was an abuse of discretion. Id.
This case is indistinguishable from Plain. The ABA model
instruction, although more verbose than that proposed in Plain, is a
correct statement of law. As in Plain, prior approval of this court or the
Iowa State Bar Association was not required.
38
Further, in this case, the district court suggested that other
instructions regarding burden of proof and other instructions were the
equivalent of an implicit-bias instruction. In particular, the district court
seemed to rely on Instruction 5, which generally stated that jurors were
not to be influenced by “any personal sympathy, bias, prejudices or
emotions,” to “evaluate the evidence carefully,” to “avoid decisions based
on generalizations, gut feelings, prejudices, sympathies, stereotypes, or
biases,” and to return a verdict based “solely on the evidence, your reason,
and common sense.”
There is nothing wrong, of course, with Instruction 5. But it does
not cover the question of implicit bias. Implicit bias is bias that is
subconscious or unintentional. See generally Plain, 898 N.W.2d at 830–
36 (Appel, J., concurring specially). Because of the often unrecognized but
potentially very powerful pull of implicit bias, the American Bar
Association has recommended that judges should give an instruction on
implicit bias. While we have not yet required a particular approach to
implicit bias, the Plain court declared, “We strongly encourage district
courts to be proactive about addressing implicit bias; however, we do not
mandate a singular method of doing so.” Id. at 817 (majority opinion). It
was error for the district court to conclude that Instruction 5 covered the
same subject matter as an implicit-bias instruction.
The concept of implicit bias is old, but the notion of an implicit-bias
instruction is somewhat new. Change comes hard. In my view, however,
the time has come, and has in fact long since passed, to adjust our
approach to implicit bias in our courtrooms. Giving an appropriate
implicit-bias instruction at the request of the defense is not a panacea, but
it moves us in the right direction in seeking to ensure that racial bias plays
no part in our justice system.
39
There is some good news in all of this. Researchers have found that
instructions that emphasize fairness and the importance of recognizing
racial bias can have impact. Elizabeth Ingriselli, Note, Mitigating Jurors’
Racial Biases: The Effects of Content and Timing of Jury Instructions, 124
Yale L.J. 1690, 1714–15 (2015). The impact is probably greatest if the
instruction is given at the beginning of trial as well as after the evidence is
received.
III. Individual Voir Dire of Jurors Regarding Racial Bias.
I also conclude that the district court erred in not allowing individual
voir dire. I join Justice Wiggins’s opinion on this point as well. I write
separately to emphasize the limitations of conventional group voir dire in
rooting out racial bias and the modest potential of individual voir dire,
properly handled, in addressing the potential of racial bias.
First, closed-end judge-based questioning is ineffective in identifying
racially prejudiced jurors. As noted by a leading scholar many years ago,
closed-end questions from the court, such as questioning whether the
jurors can be fair and impartial, base their verdict on the evidence, and
follow the court’s instructions, would not smoke out professed racists like
Lester Maddox or George Wallace. Albert W. Alschuler, The Supreme Court
and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury
Verdicts, 56 U. Chi. L. Rev. 153, 160 (1989); see also Barbara Allen
Babcock, Voir Dire: Preserving “Its Wonderful Power,” 27 Stan. L. Rev. 545,
547 (1975) (noting a juror motivated to remain on a panel “will evade or
misconstrue, unconsciously or deliberately, general voir dire questions in
order to avoid answering and possibly being struck”).
We have previously recognized the shortcomings of voir dire by legal
catechism. In Jonas, we canvassed various authorities cautioning against
relying upon a “magic question” approach to voir dire in juror
40
rehabilitation. State v. Jonas, 904 N.W.2d 566, 571–72 (Iowa 2017); see
also Dingle v. State, 759 A.2d 819, 826–28 (Md. 2000) (explaining that a
simple, perfunctory examination by a judge would not reveal
misconceptions or unconscious biases); James H. Gold, Voir Dire:
Questioning Prospective Jurors on Their Willingness to Follow the Law, 60
Ind. L.J. 163, 188–90 (1985) (arguing that defendants should be permitted
to individually question prospective jurors to expose possible bias against
a rule of law).
Further, aside from the nature of the questioning, the environment
matters. As noted some time ago, “Collective questioning on sensitive
issues may not elicit a response from some jurors who would respond in
private.” Commonwealth v. Shelley, 409 N.E.2d 732, 740 n.12 (Mass.
1980). As a result, the ability of the defense to engage in individualized
voir dire, while hardly foolproof, at least increases the likelihood of
identifying jurors who may not be fair and impartial.
In addition, the advent of the large body of social psychology
literature on implicit bias means that if a lawyer is to engage in effective
voir dire, the advocate cannot skate over the surface with collective
questions to jurors about explicit racial bias, which all will deny in any
event. A more individualized approach is required if implicit bias is to be
explored. See Nat’l Ctr. for St. Cts., Jury Trial Innovations 69 (G. Thomas
Munsterman et al. eds., 1st ed. 1997) (stating that individual voir dire is
the best method for jury candor); John H. Blume et al., Probing “Life
Qualification” Through Expanded Voir Dire, 29 Hofstra L. Rev. 1209, 1250
(2001) (explaining that social science research supports individually
questioning jurors to get candid answers); Neal Bush, The Case for
Expansive Voir Dire, 2 Law & Psychol. Rev. 9, 20 (1976) (observing that the
court is intimidating to potential jurors and individual voir dire may make
41
them feel more comfortable); Cynthia Lee, A New Approach to Voir Dire on
Racial Bias, 5 U.C. Irvine L. Rev. 843, 846 (2015) [hereinafter Lee]
(explaining that while closed-end questions are unlikely to be helpful, a
series of open-end questions educating jurors about implicit bias may be
helpful); David Suggs & Bruce D. Sales, Juror Self-Disclosure in the Voir
Dire: A Social Science Analysis, 56 Ind. L.J. 245, 261 (1981) (advocating
individual voir dire); Tania Tetlow, Why Batson Misses the Point, 97 Iowa
L. Rev. 1713, 1740 (2012) (“The right to voir dire about racial prejudice
remains an incredibly important procedural protection to root out juror
racism.”); see also Am. Bar Ass’n, Principles for Juries & Jury Trials 65, 73
(2005) (encouraging questioning of juries both as a panel and individually,
and citing studies showing focused examination in more private setting
can yield invaluable information regarding juror qualifications).
Further, even if individual voir dire about race-related issues does
not lead to the exercise of a strike, it can serve to mitigate the potential
effects of implicit bias. Social science studies suggest that calling jurors’
attention to the possibility of implicit bias can be a helpful tool in causing
jurors to reflect and lessen its impact. See Lee, 5 U.C. Irvine L. Rev. at
843 (summarizing studies).
There is no claim in this case that the victim was white. But the
better-reasoned state court cases indicate that a member of a racial
minority is entitled to conduct voir dire on the issue of racial prejudice
even if the victim is not of another race. See Maes v. Dist. Ct., 503 P.2d
621, 625 (Colo. 1972) (en banc) (holding that there is a right to inquire on
voir dire regarding racial views under the Colorado Constitution even if the
crime does not have a racial element); People v. Baker, 924 P.2d 1186,
1191 (Colo. Ct. App. 1996) (discussing a right to inquire into the racial
views of the venire pool under the due process and jury trial provisions of
42
the Colorado Constitution); State v. Marsh, 362 A.2d 523, 525 (Conn.
1975) (“Our state, by constitutional provision, allows the questioning of
each prospective juror individually by counsel, and, within that
framework, counsel is entitled to interrogate on the subject of race
prejudice.”); Bowie v. State, 595 A.2d 448, 453 (Md. 1991) (explaining that
state law permits questioning of jurors for racial prejudice in a trial of an
African-American charged with murder at the request of defense); State v.
Williams, 550 A.2d 1172, 1190 (N.J. 1988) (stating that when the
defendant is a member of a racial minority, a more searching voir dire
should be conducted if requested).
The usual reason expressed for curtailing voir dire is time. But as
was observed long ago, “[E]xpedition is clearly subsidiary to the duty to
impanel an impartial jury.” United States v. Dellinger, 472 F.2d 340, 370
n.42 (7th Cir. 1972).
Here, the defendant, an African-American, was about to be tried for
first-degree murder. He faced the prospect of life in prison without parole,
Iowa’s equivalent of the death penalty. African-Americans comprised only
2.3% of the population of the county in which he was being tried. Further,
in addition to starting as a distinct minority, the jury panel was not
representative of the population of African-Americans. The trial judge
declined to draw new jury pools because they would no doubt suffer from
the same defect as the pool before the district court. So, with a virtual
assurance that no African-Americans would be on this jury, the district
court was unwilling to take a few extra minutes to allow the defendant to
explore sensitive issues involving racial bias even though the African-
American defendant faced life in prison without parole. That, to me, is an
abuse of discretion. To the extent State v. Windsor, 316 N.W.2d 684, 687
(Iowa 1982), is to the contrary, I would overrule it.
43
IV. Conclusion.
The best way to ensure fair and impartial juries for African-
Americans is to have African-Americans serving on Iowa juries. See
Georgia v. McCollum, 505 U.S. 42, 61, 112 S. Ct. 2348, 2360 (1992)
(Thomas, J., concurring) (“[S]ecuring representation of the defendant’s
race on the jury may help to overcome racial bias and provide the
defendant with a better chance of having a fair trial.”); Peters v. Kiff, 407
U.S. 493, 503–04, 92 S. Ct. 2163, 2169 (1972) (“When any large and
identifiable segment of the community is excluded from jury service, the
effect is to remove from the jury room qualities of human nature and
varieties of human experience . . . . [I]ts exclusion deprives the jury of a
perspective on human events that may have unsuspected importance in
any case that may be presented.”); State v. LaMere, 2 P.3d 204, 212 (Mont.
2000) (“[D]iversity begets impartiality.”); Samuel R. Sommers, On Racial
Diversity and Group Decision Making: Identifying Multiple Effects of Racial
Composition on Jury Deliberations, 90 J. Personality & Soc. Psychol. 597,
597 (2006) (explaining that racially diverse juries were more amenable to
a discussion of racism, discussed more trial evidence, and made fewer
errors). But that is not enough. We must look to other potential tools to
address both explicit and implicit bias. Although individualized voir dire
and explicit bias instructions do not guarantee impartiality, they certainly
promote it. Because of the failure to allow individual voir dire and the
failure to give an explicit bias instruction at the request of the defendant,
I would reverse the conviction and remand for a new trial.
44
#17–1989, State v. Williams
McDONALD, Justice (concurring in part and dissenting in part).
For the reasons set forth in my separate opinions in State v. Lilly,
___ N.W.2d ___, ____ (Iowa 2019), and State v. Veal, ____ N.W.2d ___, ____
(Iowa 2019), I respectfully dissent from division IV of Justice Mansfield’s
opinion and the resultant judgment. I concur in full in the remainder of
Justice Mansfield’s opinion.
Waterman, and Christensen, JJ., join this concurrence in part and
dissent in part.