State of Iowa v. Patrick H. Booker, Jr. ( 2023 )

IN THE SUPREME COURT OF IOWA
No. 20–1551
Submitted January 19, 2023—Filed April 21, 2023
STATE OF IOWA,
Appellee,
vs.
PATRICK HENRY BOOKER JR.,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi
Wittig, Judge.
The defendant seeks further review of the court of appeals opinion
affirming his conviction for sexual abuse in the third degree and his life sentence,
challenging the denial of his Batson claim. DECISION OF COURT OF APPEALS
AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT
OF CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND
REMANDED.
Oxley, J., delivered the opinion of the court in which all participating
justices joined. Mansfield, J., filed a concurring opinion, in which Christensen,
C.J., and McDermott, J., joined. May, J., took no part in the consideration or
decision of the case.
2
Martha J. Lucey (argued), State Appellate Defender, and Stephan J.
Japuntich (until withdrawal), for appellant.
Brenna Bird, Attorney General, and Sheryl Soich (argued), Assistant
Attorney General, for appellee.
3
OXLEY, Justice.
We are asked to decide whether the prosecutor engaged in purposeful
discrimination during jury selection in Patrick Booker’s trial for sexual abuse in
the third degree when he used a peremptory strike to remove a Black venire
member. Upon our review of the record, we conclude the strike was not motivated
in substantial part by discriminatory intent—the relevant standard under federal
law. The strike at issue here was justified by a valid nonracial basis. The stricken
juror expressed his opinion that “both parties” were to blame in describing the
sexual assault that landed his cousin in prison for fifty years in a scenario
factually similar to the case about to be tried. A prosecutor could have logically
been concerned the juror would form a similar opinion about the victim when
presented with the facts of this case. The prosecutor’s stated concern about the
juror’s opinion was, at least in this context, a valid, nonracial basis for the
peremptory strike.
I. Background Facts and Proceedings.
The defendant, Patrick Henry Booker Jr. (who is Black), was charged by
criminal complaint on May 30, 2019, with first-degree kidnapping and third-
degree sexual abuse as a second or subsequent offender.
The charges were based on an incident that occurred at the Dubuque
home of C.H. in the late-night to early-morning hours of April 14–15, 2018. C.H.
invited (among others) Booker and Andy Cheeks to her home to attend a “tattoo
party.” As C.H. described, this is an event where “people c[a]me to [her] house to
get tattoos or piercings.” Booker performed piercings at the party. C.H. planned
4
to have group sex with Booker and Cheeks after the party. When the party ended,
Booker began to insist that C.H. have sex with his brother as well; she became
uncomfortable and attempted to leave the group. Booker then slammed C.H.’s
head against a wall and made her stand by an open window, letting in cold air
“for approximately 5 1/2 hours.” When C.H. finally got permission from Booker
to leave her spot in front of the window she headed back into the bedroom to lie
down, but Booker followed her again, tearing off her clothes and, according to
C.H., forcing her to have intercourse. Fearing retribution from Booker, C.H.
waited several days after the incident before reporting it to the police.
Trial began on September 15, 2020. The jury found Booker not guilty of
first-degree kidnapping but guilty of third-degree sexual abuse. The jury also
found that Booker had committed a prior sexual offense, which enhanced the
penalty for his conviction. See Iowa Code § 902.14 (2018) (making a second or
subsequent offense for certain sexual abuse convictions a class “A” felony). On
November 23, Booker was sentenced to a mandatory term of life imprisonment.
Booker appealed, and we transferred the case to the court of appeals to
address his appellate challenges, including, inter alia: (1) neither the conviction
nor the sentencing enhancement was supported by sufficient evidence; (2) the
court erroneously overruled a Batson challenge1 to one of the State’s peremptory
strikes; (3) the court erroneously granted the State’s for-cause challenge to
another juror; and (4) the court lacked jurisdiction to enter a nunc pro tunc order
1See Batson v. Kentucky, 476 U.S. 79 (1986).
5
amending Booker’s sentence after he filed his notice of appeal. The court of
appeals rejected all of Booker’s arguments except his challenge to the court’s
jurisdiction to enter the nunc pro tunc order, and it remanded for the district
court to correct Booker’s sentence (by adding the Iowa Code section 903B.1
special sentence to the written disposition) as it had attempted to do through the
belated nunc pro tunc order in the first instance.
We granted further review to consider Booker’s Batson challenge.
II. Analysis.
“When we grant further review, we may exercise our discretion to let the
court of appeals decision stand as the final decision on particular issues.”
Farnsworth v. State, 982 N.W.2d 128, 135 (Iowa 2022) (quoting State v. Fogg,
936 N.W.2d 664, 667 n.1 (Iowa 2019)); see State v. Jonas, 904 N.W.2d 566, 568
(Iowa 2017). We do so here with respect to all of Booker’s challenges except the
two involving the jury selection process and his challenge to the sufficiency of
the evidence for his sentencing enhancement, which the court of appeals found
was not preserved and therefore did not review. We start with the sentencing
enhancement and then address the Batson and for-cause challenges related to
the jury selection process.
A. Sentencing Enhancement Evidence. We review the sufficiency of the
evidence supporting Booker’s sentencing enhancement for correction of errors at
law. See State v. Reed, 875 N.W.2d 693, 704–05 (Iowa 2016). “[W]e view the
evidence in the light most favorable to the State, including all ‘legitimate
inferences and presumptions that may fairly and reasonably be deduced from
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the record evidence.’ ” State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022)
(quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).
Booker’s trial was conducted in two phases. In the first phase, the jury
found Booker guilty of third-degree sexual abuse under Iowa Code
section 709.4(1)(a). Immediately following that verdict, the trial proceeded to a
second phase where the State sought to prove this was Booker’s second
conviction for an act of sexual abuse in order to enhance his sentence under
Iowa Code section 902.14(1). See Iowa R. Crim. P. 2.19(9). To support the
enhancement, the State introduced a Cook County, Illinois record of conviction
for one “Patrick Booker” and offered the testimony of Andy Cheeks. The jury
found Booker had previously been convicted of an act of sexual abuse.
Booker challenges the State’s use of the record of conviction from Cook
County, arguing that since the record only identifies a “Patrick Booker,” rather
than his full name, “Patrick Henry Booker Jr.,” the State did not present
sufficient evidence to prove that the “Patrick Booker” convicted in Cook County
was actually him. The court of appeals did not address the merits of Booker’s
sufficiency claim because he failed to move for a judgment of acquittal.
The court of appeals opinion was filed nearly one month to the day before
this court’s opinion in State v. Crawford, where we held that filing a motion for
judgment of acquittal is not necessary to preserve sufficiency-of-the-evidence
challenges for appellate review. 972 N.W.2d at 200–02. Whether Booker filed a
separate motion for judgment of acquittal prior to submission to the jury of the
enhancement issue is therefore irrelevant, and we reach the merits of his claim.
7
That said, we hold that Booker’s sufficiency claim fails. To supplement the
Cook County record of conviction, the State called Andy Cheeks to testify. Cheeks
explained that he was a codefendant with Booker in the Cook County case and
identified Booker as the same “Patrick Booker” from that case. If the State offered
only the Cook County record, Booker’s argument that his surname is common
enough to question whether the prior record belonged to someone else might
have more sway. But here, Cheeks’s testimony, if believed, provided the
necessary link. See id. at 202 (drawing all inferences in favor of jury’s verdict).
The State presented sufficient evidence to support the jury’s finding that Booker
was previously convicted of an act of sexual abuse for purposes of the sentencing
enhancement, and imposition of the enhancement is affirmed.
B. Batson Challenge. Booker’s first issue with the jury selection process
involves the State’s use of a peremptory strike to remove Juror 38 from the
venire. Booker contends this strike was improperly motivated by racial
discrimination in violation of the Equal Protection Clauses of the United States
and Iowa Constitutions. U.S. Const. amend. XIV; Iowa Const. art. I, § 6; see
Batson v. Kentucky, 476 U.S. 79 (1986).
When a party challenges a peremptory strike as racially discriminatory,
Batson’s burden-shifting framework resolves the challenge through a three-step
inquiry: (1) the challenging party (here, Booker) must establish a prima facie case
of purposeful racial discrimination in the peremptory strike (i.e., the State’s
strike of Juror 38); (2) the striking party (here, the State) must proffer a
race-neutral explanation for the strike; and finally, (3) the challenging party
8
must carry the ultimate burden of proving purposeful discrimination.2 See
State v. Veal, 930 N.W.2d 319, 332 (Iowa 2019); see also Batson, 476 U.S. at 96–
98. We conduct a de novo review of the record when making this inquiry, but at
step three, “we give ‘a great deal of deference to the district court’s evaluation of
credibility when determining the true motives of the attorney’ ” who made the
strike. Veal, 930 N.W.2d at 327 (quoting State v. Mootz, 808 N.W.2d 207, 214
(Iowa 2012)).
On the first day of voir dire3 (when Juror 38 was not present), the
prosecutor alluded to the Black Lives Matter movement, asking whether any of
the jurors had “attended, spoke at, or otherwise supported a demonstration in
support of Black Lives Matter.” Two jurors gave affirmative responses, but the
prosecutor did not follow up with them on this line of questioning, instead
transitioning to whether any juror got “the majority of their news from Facebook
or social media.” Black Lives Matter was not raised again after the first day of
jury selection.
Juror 38 was questioned during the second day of voir dire. In response
to the prosecutor’s first line of questioning about whether anyone ever “deserves
2Despite some discussion during oral argument about whether the Batson framework
should be discarded or modified under the Iowa Constitution, these arguments were not
advanced in the appellate briefs or at trial. We therefore analyze Booker’s Batson challenge under
the traditional three-part framework outlined by the United States Supreme Court in Batson v.
Kentucky, 476 U.S. 79. Cf. State v. Warren, 955 N.W.2d 848, 859 (Iowa 2021) (declining, but not
foreclosing, a separate analysis of whether to depart from the Fourth Amendment framework
under article I, section 8 of the Iowa Constitution where the defendant suggested the Iowa
Constitution should provide greater protection but did not actually ask us to depart from the
federal framework or separately brief and analyze the state constitutional argument).
3Booker’s trial was held under our modified COVID-19 pandemic measures, one of which
required limiting the number of people in a courtroom, which in turn necessitated splitting voir
dire into smaller, separate groups.
9
to be raped,” Juror 38 echoed the sentiments of Juror 39 that no one does, but
volunteered, “There’s always two sides to a story.”
When the prosecutor then asked whether Juror 38 believes “it’s common
for women to claim that they’ve been sexually assaulted without necessarily
having said no or something like that,” Juror 38 posited a scenario in which a
woman said she did not want to have sex but, while intoxicated, did have sex,
then after becoming sober, felt bad about the experience because she had
cheated on her boyfriend. In response to the prosecutor’s follow-up question of
whether Juror 38 believes “that happens at all,” Juror 38 explained that his
cousin was serving a fifty-year prison sentence from an incident arising “under
the same thing. They had a party, and like four or five guys had sex with a girl,
that was at the party.” Although he indicated his only knowledge of the incident
came from his cousin, when asked “who [he] blame[s] more in that situation”—
the woman “for being put in that situation,” or his cousin “for being one of the
guys who partook”—Juror 38 indicated he believed “both parties” were to blame.
Later, during defense counsel’s questioning, Juror 38 indicated that he
was running on very little sleep that morning because he worked a third-shift
(overnight) job. The court clarified that “if [he was] chosen to sit on this panel,
[the court could] provide [him] with a notice to [his] employer. [He would] not
have to work tonight.”
At the end of voir dire, the State used one of its peremptory strikes to
excuse Juror 38, and defense counsel lodged a Batson challenge. In response,
the prosecutor cited Juror 38’s third-shift job obligations and, “[m]ore
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concerning” to the State, Juror 38’s discussion about his cousin’s fifty-year
sentence for a sex abuse conviction and his apparent views that his cousin and
the victim were both to blame.
The district court initially indicated it would uphold Booker’s challenge.
The court observed that Juror 38 followed and answered questions from the
attorneys, was not as emotional as some of the jurors from the first day who
“would have probably been too emotionally vested in their own circumstances to
be able to separate that out from what was going on here in this courtroom,” and
“would be capable of following the Court’s instructions,” leading the court to
conclude the State had not met its burden to support the strike. But after taking
a brief recess to review caselaw on the issue, the court changed its mind and
overruled Booker’s Batson challenge. In revisiting the issue, the court explained
it had reviewed its notes and could not say the State was engaged in a pattern
of racial discrimination in making its strikes given the treatment of other
individuals who had also expressed varying degrees of experience with sexual
assault allegations. Ultimately, the court concluded the State provided a
race-neutral basis and allowed the strike to stand.4
Turning to our analysis of the Batson claim—because the prosecutor
offered and the court considered race-neutral justifications for the strike, “the
4It appears the district court initially applied a for-cause standard, considering whether
Juror 38 had been rehabilitated concerning his remarks about both the accused and the victim
being at fault in a sexual assault case. But, as the district court seemed to recognize after the
recess, “[t]he prosecutor’s explanation [for a peremptory strike] ‘need not rise to the level
justifying exercise of a challenge for cause.’ ” State v. Griffin, 564 N.W.2d 370, 375 (Iowa 1997)
(quoting Batson, 476 U.S. at 97).
11
preliminary issue of whether [Booker] ha[s] made a prima facie showing [is]
moot.” Mootz, 808 N.W.2d at 218 (quoting Hernandez v. New York, 500 U.S. 352,
359 (1991)). That said, we briefly address the court of appeals’ conclusion that
“striking the sole Black juror on a panel is not itself sufficient to generate an
inference of purposeful racial discrimination” at the first Batson step. Batson
necessarily requires a heavily context-specific inquiry, so although striking the
sole Black juror does not, in a vacuum, establish a prima facie case, that fact in
itself is relevant to the analysis and may be sufficient when viewed in context.
Cf. Batson, 476 U.S. at 93–97 (“We have confidence that trial judges, experienced
in supervising voir dire, will be able to decide if the circumstances concerning
the prosecutor’s use of peremptory challenges creates a prima facie case of
discrimination against black jurors.”); cf. also Miller-El v. Dretke, 545 U.S. 231,
239 (2005) (“[W]e accordingly held [in Batson] that a defendant c[an] make out a
prima facie case of discriminatory jury selection by ‘the totality of the relevant
facts’ about a prosecutor’s conduct during the defendant’s own trial.” (quoting
Batson, 476 U.S. at 94)).
At step two, the State must proffer a racially-neutral justification for its
strike. “At this step of the inquiry, the issue is the facial validity of the [attorney’s]
explanation. Unless a discriminatory intent is inherent in the [attorney’s]
explanation, the reason offered will be deemed race neutral.” Mootz, 808 N.W.2d
at 218 (alterations in original) (quoting Hernandez, 500 U.S. at 360). A
prosecutor’s justifications “ ‘need not rise to the level justifying exercise of a
challenge for cause’ but must be race-neutral and ‘related to the particular case
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to be tried.’ ” Veal, 930 N.W.2d at 334 (quoting State v. Griffin, 564 N.W.2d 370,
375 (Iowa 1997)). At this stage, the reasons given need not be “persuasive, or
even plausible.” Mootz, 808 N.W.2d at 218 (quoting Purkett v. Elem, 514 U.S.
765, 768 (1995) (per curiam)). “It is not until step three ‘that the persuasiveness
of the justification becomes relevant.’ ” Id. (quoting Purkett, 514 U.S. at 768).
In this case the State offered two justifications for its strike: (1) Juror 38’s
third-shift work obligations; and (2) Juror 38’s views about his cousin’s
imprisonment for a similar crime—specifically “[t]he lesson he drew from his
cousin[’s] [experience] was that there were two sides to every story, and that the
victim and his cousin were probably equally to blame.” For brevity’s sake, we will
refer to this justification as the “cousin narrative.” Both of these are facially
race-neutral reasons.
First, the effect of Juror 38’s third-shift job on his ability to focus during
trial is not a characteristic peculiar to his race. Cf. Purkett, 514 U.S. at 769 (“The
wearing of beards is not a characteristic that is peculiar to any race.” (quoting
EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 190 n.3 (3d Cir. 1980))). We agree
with the court of appeals’ recent conclusion that this is a facially neutral
justification for a strike. See State v. Price, No. 19–1692, 2021 WL 4593228, at
*4–5 (Iowa Ct. App. Oct. 6, 2021) (deferring to district court’s determination that
juror’s work obligation, which “allows her very little time to sleep,” was a valid,
race-neutral justification for a peremptory strike); State v. Malone, No. 19–1680,
2021 WL 1400709, at *5–6 (Iowa Ct. App. Apr. 14, 2021) (“The prosecutor also
13
noted S.M.’s late-night work shift, which appeared to leave her less than alert in
the court room. These are race-neutral reasons.”).
Second, in regard to the cousin narrative, we “have repeatedly noted that
a juror’s interactions with law enforcement and the legal system are . . . valid,
race-neutral reason[s] for a peremptory challenge.” Veal, 930 N.W.2d at 334(quoting Mootz, 808 N.W.2d at 219). Booker claims that this justification is at
least implicitly race-based because African-Americans are more likely to have
negative interactions with law enforcement, leading to more experience with the
criminal justice system than the general population and, as a result, a greater
likelihood that African-Americans will be excluded from juries. But that is not
what happened here. Rather than relying on some tangential negative encounter
with law enforcement to say that Juror 38 might be biased against police or the
State generally, the State’s justification focused on how Juror 38’s familiarity
with and perspective of a very similar set of circumstances might shape his
perspective of this particular case. Under the circumstances, we cannot say this
justification inherently violates equal protection. See Mootz, 808 N.W.2d at 218(“The reason given must, in and of itself, violate equal protection” for a challenge
to succeed at step two of the Batson analysis).
Finally, proceeding to step-three of the Batson inquiry, we must “decide
whether to believe the [attorney’s] explanation for the peremptory challenges,” or
whether the reasons given are merely pretext for racial discrimination. Id. at 219(alteration in original) (quoting State v. Veal, 564 N.W.2d 797, 807 (Iowa 1997),
overruled in part on other grounds by State v. Hallum, 585 N.W.2d 249 (Iowa
14
1998), vacated, 527 U.S. 1001 (1999)). At this stage, “[b]ecause the trial judge’s
finding whether purposeful discrimination exists will largely turn on evaluation
of credibility, a reviewing court ordinarily should give those findings great
deference.” State v. Knox, 464 N.W.2d 445, 448 (Iowa 1990); see also Veal, 930
N.W.2d at 327 (noting that although review is de novo, “we give ‘a great deal of
deference to the district court’s evaluation of credibility when determining the
true motives of the attorney when making strikes’ ” (quoting Mootz, 808 N.W.2d
at 214)). The ultimate inquiry is whether, under the totality of the circumstances,
the strike was “motivated in substantial part by discriminatory intent.”
Flowers v. Mississippi, 139 S. Ct. 2228, 2244 (2019) (quoting Foster v. Chatman,
578 U.S. 488, 513 (2016)).
Booker challenges whether Juror 38’s third-shift work schedule really
motivated the prosecutor’s strike, pointing to the district court’s statement it
would clear his absence with his employer, and the lack of record support for
the prosecutor’s belief that Juror 38 would nonetheless continue working during
the trial. See Snyder v. Louisiana, 552 U.S. 472, 485 (2008); Miller-El, 545 U.S.
at 252 (noting that “[i]f the stated reason [for a strike] does not hold up” it has
“pretextual significance” that “does not fade because a trial judge, or an appeals
court, can imagine a reason that might not have been shown up as false”). We
need not decide whether the prosecutor offered the third-shift concern as a
pretext to hide his real motive because we conclude that Juror 38’s cousin
narrative justified the prosecutor’s strike on nonracial grounds.
15
In determining whether the prosecutor’s proffered justification for a
peremptory strike is pretextual, courts may consider “a variety of evidence,”
including whether the prosecutor struck or kept similarly situated jurors and
whether his explanation for the strike is consistent with the record. Flowers,
139 S. Ct. at 2243 (listing evidence a Batson challenger may present to support
his claim, including “side-by-side comparisons of black prospective jurors who
were struck and white prospective jurors who were not struck in the case; [and]
a prosecutor’s misrepresentations of the record when defending the strikes
during the Batson hearing”). Here, it is true that the prosecutor misstated the
record (whether intentionally or not) in defending against the Batson challenge
when he claimed Juror 38 “expressed very clearly that his opinion was, his
cousin was wrongfully accused.” At the very least, that premise is belied by
Juror 38’s statement that “both parties” were to blame in his cousin’s case—i.e.,
both the victim and his cousin.
Nonetheless, Juror 38’s cousin narrative raised legitimate concerns given
its similarity to the facts of the case at hand. The prosecutor sought to identify
jurors who might be unsympathetic to the victim, asking the jury whether C.H.
“br[ought] [the rape] upon herself” by inviting Booker to her apartment and
initially agreeing to have sex with him and Andy Cheeks. As the prosecutor
discussed extensively during closing arguments, the specific facts of the case did
not paint C.H. in a sympathetic light, which might have made jurors skeptical of
16
her claim.5 But C.H. was the linchpin of the State’s case.6 Given Juror 38’s
perspective of his cousin’s experience, it is no mystery why the prosecutor felt
he could have a more difficult time persuading Juror 38 to believe C.H. and view
the case from the State’s perspective. It would be fair for the prosecutor to have
concerns that when asked, “Did [C.H.] bring it upon herself,” Juror 38 would be
more receptive than others to the notion that she did.
Importantly, the prosecutor did not limit his concerns about potential
“victim blaming” solely to Juror 38. Juror 24 indicated prior experience with
instances affirmatively involving false accusations of sexual abuse, and the State
successfully challenged her for cause. Jurors 4 and 18 also indicated they knew
someone accused of sexual assault, and although it is not clear from the record
which party struck them, neither served on the petit jury. We therefore find—as
did the district court, to whom we give “a great deal of deference,” Veal,
930 N.W.2d at 327 (quoting Mootz, 808 N.W.2d at 214)—that the prosecutor’s
stated motivation to strike Juror 38 based on the cousin narrative was sincere.
A final note on the prosecutor’s reference to the Black Lives Matter
movement. Although the question may have needlessly inserted race into this
case, it was not asked in Juror 38’s presence (or in the presence of any minority
juror, as far as we can tell from the record) and the prosecutor did not follow up
5“I mean, she’s a little pitiful, you know. . . . She’s not a classy individual, right?”
6If
you’re going to find reasonable doubt in this case, it has to come from
her. It has to give you a reason to think that she is telling a lie about what
happened. And if that reason is, I can’t relate to her, I don’t trust her, she’s
obviously a rough customer, if that reason is, she has made bad life choices, then
maybe she did deserve to get raped.
17
on it after two jurors gave affirmative responses. So, unless we were to say the
question so clearly reflected the prosecutor’s racial biases that his asserted
motives in striking Juror 38 are unbelievable at step three, it does not alter our
Batson analysis.
Viewing the totality of the circumstances, we cannot say that the
prosecutor’s strike of Juror 38 was substantially motivated by discriminatory
intent. The fact that a prosecutor unnecessarily proffers weak justifications (like
the work conflict justification here) when the primary reason for the strike could
easily have stood alone may itself be viewed as evidence of pretext.7 Nevertheless,
any discriminatory inference that may be deduced from that evidence does not
rise to the substantial level necessary to successfully challenge a strike under
Batson when considered under the totality of the circumstances of this case. See
Flowers, 139 S. Ct. at 2244.
For the foregoing reasons, we hold the district court did not err in
overruling Booker’s Batson challenge.
C. For-Cause Challenge. Booker’s next jury selection challenge charges
the district court with error in sustaining the prosecutor’s for-cause strike of
Juror 24. District courts are “vested with broad discretion in” ruling on for-cause
challenges to potential jurors; we accordingly review for abuse of that discretion.
Jonas, 904 N.W.2d at 570–71.
7The inference is, in essence, that “[t]he [prosecutor] doth protest too much.” William
Shakespeare, Hamlet act 3, sc. 2, l. 220.
18
Booker’s first argument on this point takes issue with the State’s failure
to specify the basis for its challenge as required under Iowa Rule of Criminal
Procedure 2.18(5). True, Juror 24 indicated facts about herself that implicated
multiple potential bases for a strike for-cause, including that she may have
known the defense attorney through “mutual acquaintances” and “Facebook
interaction,” see id. r. 2.18(5)(d); and that she had trouble hearing out of one ear,
see id. r. 2.18(5)(c). But based on the discussion held in chambers, both the
court and defense counsel were well aware of why the State was raising a for-
cause challenge. When the district court separated Juror 24 from the rest of the
venire for individual questioning on the State’s for-cause challenge, both defense
counsel (who questioned Juror 24 first during this session) and the court
focused almost exclusively on Juror 24’s personal knowledge about other
incidents of sex abuse. Juror 24 stated she knew “several [people who were]
falsely accused” of sexual assault in Dubuque in cases where the accusers
“admitted that they lied,” making her “more hesitant than most people” to judge
the case on its own merits. See id. r. 2.18(5)(k). Booker’s argument is well-taken
that the prosecutor was required to “distinctly specify the facts constituting the
cause[]” for his challenge, id. r. 2.18(5) , but we do not believe any violation in
this case constituted reversible error.
When pressed on whether her experiences would cause her to hold the
State to a higher burden than it was required to carry, Juror 24 wavered between
indicating that she “wouldn’t hold anybody to a higher standard of proving
anything,” and that she did not “want to have any doubt” because she has “seen
19
too many false accusations.” Emphasizing her former statements, Booker also
challenges the for-cause strike by arguing that despite any biases Juror 24 may
have expressed against the State or alleged victims generally, she had been
rehabilitated, thus negating the State’s grounds for the strike. The court of
appeals declined to reach the merits of this issue, agreeing with the State that
even if it was error to strike Juror 24, Booker failed to show prejudice. See
Summy v. City of Des Moines, 708 N.W.2d 333, 339–40 (Iowa 2006) (“Prejudice
from the erroneous exclusion of a juror will not be presumed.”), overruled on
other grounds by Alcala v. Marriott Int’l Inc., 880 N.W.2d 699 (Iowa 2016).
We agree with the court of appeals. Although we have recently eased the
burden on a party seeking to establish prejudice from an erroneous denial of a
for-cause challenge, see Jonas, 904 N.W.2d at 570–71, it has been long-settled
in Iowa (and across the country generally) that in order to establish prejudice
from the erroneous grant of a for-cause challenge a party must show that “the
resulting jury was not impartial and competent,” Summy, 708 N.W.2d at 339–
40. See Johnson v. City of Waterloo, 119 N.W. 70, 71 (Iowa 1909) (collecting cases
for support of the proposition that “though a qualified juror be excused, another
equally competent and fair minded will be selected in his stead, and, if a
competent and impartial jury is finally secured before whom the cause is tried,
neither party is in a situation to complain”); see also N. Pac. R. Co. v. Herbert,
116 U.S. 642, 646 (1886) (“[I]f we regard the challenge as for cause, its allowance
did not prejudice the company. A competent and unbiased juror was selected
and sworn, and the company had, therefore, a trial by an impartial jury, which
20
was all it could demand.”); United States v. Cornell, 25 F. Cas. 650, 656 (D.R.I.
1820) (Story, J.) (“Even if a juror had been set aside by the court, for an
insufficient cause, I do not know that it is matter of error, if the trial has been
by a jury duly sworn and impaneled, and above all exceptions. Neither the
prisoner nor the government in such a case have suffered any injury.”).
Booker does not attempt to show that his petit jury was partial or
incompetent. Rather, his prejudice argument maintains that if the court erred in
allowing the strike, then it effectively granted the prosecutor an additional
peremptory strike by sparing him from using one to remove Juror 24. In essence,
Booker argues for a per se prejudice rule: once the district court is determined
to have erred as a legal matter, then the legally erroneous for-cause strike is
automatically treated as a peremptory strike. This argument has been
considered and rejected by other courts. See United States v. Mills, 987 F.2d
1311, 1314 (8th Cir. 1993) (“Mills contends that the [district court’s grant of the
prosecutor’s for-cause] strikes ‘effectively awarded the prosecution two
additional peremptory challenges.’ We disagree.”); Jones v. State, 982 S.W.2d
386, 393–94 (Tex. Crim. App. 1998) (en banc) (rejecting as flawed “the statement
that the effect of [a district court’s] erroneous exclusion [of a juror for cause] ‘is
the same as if the State had been given an extra peremptory challenge’ ” (quoting
Payton v. State, 572 S.W.2d 677, 680 (Tex. Crim. App. 1978) (en banc), overruled
by Jones, 982 S.W.2d at 386)); State v. Mendoza, 596 N.W.2d 736, 747 (Wis.
1999). We agree with their reasoning and therefore reject Booker’s argument that
21
it was enough to show he was prejudiced because the State effectively received
an extra strike.
To summarize those courts’ analysis, Booker’s position is flawed because
for-cause and peremptory strikes are inherently different mechanisms for
removing prospective jurors from a venire. The absence of one does not establish
the presence of the other. See NLRB v. Noel Canning, 573 U.S. 513, 589 (2014)
(Scalia, J., concurring in the judgment) (“To assume otherwise . . . is to commit
the fallacy of the inverse (otherwise known as denying the antecedent): the
incorrect assumption that if P implies Q, then not-P implies not-Q.”). True, the
effects of both may for all practical purposes be the same since a juror is removed
either way. But the rigor of the for-cause challenge process distinguishes even
an erroneously granted for-cause strike from an “extra” peremptory strike. The
challenging party must justify the basis for the for-cause challenge and that
challenge is scrutinized by the court. That the court makes the wrong call in that
party’s favor does not change that process. Conversely, it is precisely the absence
of that rigor—the lack of scrutiny into the reasons for the strike (aside from a
Batson challenge) and the absence of a need for any reason at all—that makes a
peremptory strike. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 147–48
(1994) (O’Connor, J., concurring) (“[T]he essential nature of the peremptory
challenge is that it is one exercised without a reason stated, without inquiry and
without being subject to the court’s control.” (quoting Swain v. Alabama, 380
U.S. 202, 220 (1965), overruled by Batson, 476 U.S. 79)); United States v. Elliott,
89 F.3d 1360, 1365 (8th Cir. 1996) (“There is simply no legal basis for this
22
argument, which fails to recognize that peremptory strikes, for which no reasons
need be given (absent a Batson challenge), are different from challenges for
cause, which by definition require a showing of cause.”); Mootz, 808 N.W.2d at
215 (noting that, aside from the Batson context, “a peremptory challenge is, by
its very nature, a capricious and arbitrary statutory right”). In other words, “[t]he
erroneous dismissal of a prospective juror constitutes an error by the court; it
does not compute as a peremptory challenge by a party.” Mendoza, 596 N.W.2d
at 747.
We therefore hold that any error in the district court’s decision to excuse
Juror 24 for cause did not prejudice Booker absent evidence that the seated petit
jury was partial or incompetent. Accordingly, reversal is not warranted on this
ground.
III. Conclusion.
For the reasons stated above, we affirm the district court’s denial of
Booker’s challenges to the sufficiency of the evidence supporting his sentencing
enhancement and to the jury selection process. As to Booker’s other challenges,
the decision of the court of appeals stands unmodified.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT OF CONVICTION
AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.
All justices concur except May, J., who takes no part. Mansfield, J., files a
concurring opinion, in which Christensen, C.J., and McDermott, J., join.
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#20–1551, State v. Booker
MANSFIELD, Justice (concurring).
I join the court’s well-reasoned opinion, but I write separately to take issue
with the prosecutor’s voir dire questioning of prospective jurors about Black
Lives Matter. In the context of this case, I believe such questioning was
inappropriate. This case didn’t involve any issue of alleged police misconduct or
even police credibility; it simply involved a Black defendant. Thus, I view the
questioning as an improper attempt to identify prospective jurors who might be
concerned about the overall status of Black Americans in our society. And just
as we don’t allow prosecutors to reflexively strike Black Americans from juries,
we shouldn’t allow prosecutors to reflexively strike whites who might be
sympathetic to Black Americans.
Voir dire took place on September 15, 2020, less than four months after
the murder of George Floyd at the hands of Minneapolis police that rocked the
nation. During voir dire of the panel, which was at that time apparently all-white,
the prosecutor asked,
Is there anyone here who has either attended, spoke at, or otherwise
supported a demonstration in support of Black Lives Matter? Is
there anyone who’s done that? Show of hands?
Two jurors raised their hands. A third juror later volunteered that they did
not attend a rally but provided a donation for Black Lives Matter. It appears that
two of these three jurors were ultimately stricken with peremptory challenges,
but the record does not indicate which side struck them.
24
This case involved a Black defendant, but it wasn’t a case with racial
overtones, and it wasn’t a case about police conduct. It was about a rape,
convincingly described in detail by C.H.
Skilled attorneys typically ask two kinds of voir dire questions in addition
to the customary, routine questions. One type of questioning involves “preselling”
the case. For example, this prosecutor asked the panel, “Who deserves to be
raped?” Surely the prosecutor didn’t expect anyone to answer that somebody
deserves to be raped. He was preselling his case.
The other type of questioning involves asking a simple factual question
where a prospective juror can be expected to give an honest answer in order to
get at the prospective juror’s underlying outlook and beliefs. That’s what I believe
the prosecutor was doing here. He was asking prospective white jurors whether
they had attended or supported a Black Lives Matter rally as a way of getting at
their views on race. To put the matter in perspective, as of July 3, 2020, two
months before this trial, it was estimated that fifteen to twenty-six million people
had already participated in demonstrations over the death of George Floyd and
others. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May
Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020),
https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-
crowd-size.html.
Many questions of the second type are unobjectionable. For example, it is
perfectly fine to ask a prospective juror whether they use a shopping list at the
supermarket or just walk the aisles. The lawyer doesn’t really care about how
25
the juror shops but is trying to get at whether the juror is likely to take a
systematic or an intuitive approach to the case. But not all second-type
questions are so innocuous. One good way of testing the legitimacy of a second-
type question is to consider how we would feel if the lawyer asked the direct
version of the question, instead of the proxy version. For example, could the
prosecutor have asked here, “Are you concerned about the status of Black
Americans in this country?” I would find that quite troubling.
I echo the views of the Nevada Supreme Court in Cooper v. State where it
criticized the state’s use of a Black Lives Matter question during voir dire and
specifically voiced concern about “questioning a veniremember’s support for
social justice movements with indisputable racial undertones.” 432 P.3d 202,
206 (Nev. 2018). As the court put it,
The question had, at best, minimal relevance to the circumstances
of this case. The question did not examine an issue apparent in this
case, and the State fails to credibly explain how this question helped
expose whether a prospective juror could “consider and decide the
facts impartially and conscientiously apply the law as charged by
the court.”
Id. (footnote omitted) (citation omitted) (quoting Johnson v. State, 148 P.3d 767,
774 (Nev. 2006) (en banc)).
The defendant here received a fair trial, and his trial counsel did not object
at the time to the Black Lives Matter voir dire inquiry. But I do not believe this
inquiry was proper. Again, this case had nothing to do with police conduct.
What’s next? In a case with a Mexican-American defendant, will the prosecutor
be able to ask whether a prospective white juror supports higher levels of
26
immigration on our southern border? Our country is polarized enough without
a voir dire process threatening to make it more so.
Christensen, C.J., and McDermott, J., join this concurrence.