from the Iowa District Court for Black Hawk County, Nathan
appeals conviction for harassment in the first degree.
AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.
Dickey of Dickey & Campbell Law Firm, PLC, Des Moines,
J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Brian Williams, County Attorney, and Molly
K. Tomsha, Assistant County Attorney, for appellee.
all-white jury in Black Hawk County convicted the defendant,
a black man, of one count of harassment in the first degree,
an aggravated misdemeanor under Iowa Code section
708.7(1)(b) (2015). On appeal, the defendant raises
several claims of error, including that the district court
erred in using only the absolute disparity method for
assessing the representativeness of a jury pool when
considering whether the racial composition of the jury pool
violated the defendant's Sixth Amendment right to an
impartial jury. We abandon the exclusive use of absolute
disparity as a test for jury representativeness under the
Sixth Amendment and permit absolute disparity, comparative
disparity, and standard deviation analyses to be used.
Because the defendant's other claims of error fail, we
conditionally affirm his conviction and remand for further
proceedings on the issue of whether the racial composition of
the jury pool violated his Sixth Amendment right to an
Factual and Procedural Background.
Plain Sr. and Randy Gray were neighbors with an acrimonious
relationship who lived in a small apartment building in
Waterloo, Iowa. Around 11:00 p.m. on July 10, 2015, Gray and
his spouse-both Caucasians-were asleep in their apartment
when they were awakened by the sound of Plain-an
African-American-sweeping a stairwell in the common area of
the apartment building. Gray left his apartment to tell Plain
to stop sweeping. When Plain refused, an argument ensued.
trial, Gray testified that during the argument Plain went
back to his apartment while he remained in the common area.
Plain then returned with "a black handle of something in
his right pocket" and the two men continued to argue.
According to Gray, Plain then told him he had a gun and knew
his mother-in-law's car was parked outside. At that
point, Plain exited the building and Gray followed,
brandishing a golf club.
testified that as he stepped outside, Plain threw a pair of
bolt cutters at his head. Gray averred the bolt cutters hit
the side of the apartment building so loud they made a sound
he thought was a gunshot.
point, Gray picked up the bolt cutters and stood on the porch
of the apartment building with the golf club and prevented
Plain from going back inside. Gray testified Plain then
threatened him repeatedly.
spouse, who had been on the phone making a 911 call during
the argument, followed the two men outside. She testified
that Plain threw the bolt cutters and that he threatened to
shoot, cut, and stab her husband.
law enforcement officers arrived at the scene, they found
Gray on the front porch and Plain in the yard. Plain told
them he had been sweeping the building when Gray came out of
his apartment waiving a golf club at him. Gray and his spouse
told the officers Plain had thrown the bolt cutters. After
interviewing everyone involved, officers seized the bolt
cutters and arrested Plain.
August 19, 2015, Plain was charged by trial information with
harassment in the first degree in violation of Iowa Code
section 708.7(2), an aggravated misdemeanor.
first day of trial, Plain objected to the racial composition
of the jury pool, alleging a violation of his Sixth Amendment
right to an impartial jury. Although African-Americans
represent 8.9% of the population of Black Hawk County, the
pool of potential jurors included only one African-American
man among fifty-six potential petit jurors-or 1.8% of the
group. Plain did not present any evidence of systematic
exclusion and conceded this meant he could not prove a prima
facie case; however, he asserted this was because the jury
manager did not provide him with the six months' worth of
data on jury pools that he requested.
trial, Plain raised a hearsay objection to testimony from the
officer about what the officer learned from the alleged
victim and his spouse, but the court concluded the testimony
was not hearsay and admitted it. Plain requested a mistrial
after determining the 911 recording in evidence contained
references to his criminal history, but the judge denied the
motion and gave a cautionary instruction instead. Plain
objected to the prosecutor's repeated reference to Gray
as the "victim" during closing argument, but the
court overruled the objection. The court also denied
Plain's request for a jury instruction addressing
implicit racial bias.
jury convicted Plain of one count of harassment in the first
degree, an aggravated misdemeanor in violation of Iowa Code
sections 708.7(1)(b) and (2). The court imposed a
two-year prison sentence, but suspended it and ordered a term
of probation running consecutively after a sentence on a
parole violation. After filing a motion for a new trial,
which was denied, Plain appealed. We retained the appeal.
Standard of Review.
review constitutional issues de novo. State v.
Chidester, 570 N.W.2d 78, 80 (Iowa 1997). We review the
admission of evidence challenged as hearsay for the
correction of errors at law. State v. Dudley, 856
N.W.2d 668, 675 (Iowa 2014). Improperly admitted hearsay
constitutes grounds for reversal unless the proffering party
establishes the error was not prejudicial. Id.
remaining claims are reviewed for an abuse of discretion.
"Trial courts have broad discretion in ruling on claims
of prosecutorial misconduct and we review such rulings for an
abuse of discretion." State v. Jacobs, 607
N.W.2d 679, 689 (Iowa 2000). We review denials of a mistrial
and the giving of a cautionary instruction for an abuse of
discretion. State v. Wade, 467 N.W.2d 283, 285 (Iowa
1991). Finally, we generally review a district court's
refusal to give a requested jury instruction for errors at
law; however, if the jury instruction is not required but
discretionary, we review for an abuse of discretion.
Alcala v. Marriott Int'l, Inc., 880 N.W.2d 699,
707-08 (Iowa 2016); Herbst v. State, 616 N.W.2d 582,
585 (Iowa 2000).
assessing a district court's decision for abuse of
discretion, we only reverse if the district court's
decision rested on grounds or reasoning that were clearly
untenable or clearly unreasonable. Dudley, 856
N.W.2d at 675. Grounds or reasons are untenable if they are
"based on an erroneous application of the law or not
supported by substantial evidence." Id.
raises five issues on appeal. First, he argues the judge
admitted prejudicial hearsay. Second, he asserts a reference
in the 911 recording to his past criminal conduct was grounds
for a mistrial. Third, he contends the judge improperly
denied his request for an implicit-bias jury instruction.
Fourth, he insists the prosecutor's repeated references
to Gray as a victim constituted prosecutorial error and
violated his due process rights. Finally, he asserts that the
racial composition of the jury pool violated his Sixth
Amendment right to an impartial jury.
A. Prejudicial Hearsay.
first issue on appeal is whether the district court's
admission of testimony from an officer about what he learned
from two witnesses-Gray and his spouse-constituted reversible
error. We begin with the testimony at issue:
Q. Based on your or Officer Shaaf's conversation with Mr.
[Gray] and [his spouse], did you learn what caused the mark
on the [w]all?
A. Yes, we did.
Q. And what caused the mark?
A. It was the bolt cutters hitting the wall after being
district court admitted this testimony after instructing the
jury it could only be used as evidence of the officer's
subsequent course of conduct, not as evidence that the bolt
cutters caused the mark on the wall after being thrown.
first determine whether the investigating officer's
testimony about what he learned from the alleged victim and
his spouse about the cause of the mark on the wall
constitutes hearsay. We conclude that it does.
Iowa law, hearsay is defined as "a statement, other than
one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted." Iowa R. Evid. 5.801(c)
(2015). We generally exclude hearsay
from admission to the record, subject to the exceptions and
exclusions set forth in rules 5.802 and 5.803, because we
deem it inherently unreliable-the declarant typically does
not speak under oath and the party against whom the evidence
is offered does not have the opportunity to cross-examine the
declarant in order to test the declarant's perception,
memory, or narration. See State v. Smith, 876 N.W.2d
180, 185 (Iowa 2016).
is not hearsay if it is not offered to show the truth of the
matter asserted. State v. Mitchell, 450 N.W.2d 828,
832 (Iowa 1990). An out-of-court statement offered only to
explain responsive conduct that is relevant to an aspect of
the State's case is not offered to prove the truth of the
matter asserted and is therefore not hearsay. Id.
But "if the evidence is admitted, the court must limit
its scope to that needed to achieve its purpose."
McElroy v. State, 637 N.W.2d 488, 502 (Iowa 2001).
deciding whether an out-of-court statement is offered to
explain responsive conduct, the court considers "whether
the statement is truly relevant to the purpose for which it
is being offered, or whether the statement is merely an
attempt to put before the fact finder inadmissible
evidence." Mitchell, 450 N.W.2d at 832. In
several cases, we have concluded out-of-court statements made
to law enforcement officers were admissible because they were
truly relevant for a purpose other than to prove the truth of
the matter asserted. In State v. Mann, for example,
we concluded an officer's testimony about statements from
other officers that led her to believe someone was a victim
of sexual assault was not hearsay when used to explain why
the officer transported the alleged victim to a hospital for
an examination. 512 N.W.2d 528, 536 (Iowa 1994). More
recently, in State v. DeWitt, we concluded an
officer's testimony about information he received from a
confidential source was not hearsay when offered to explain
why the police went to a store and approached the defendant
"rather than another customer displaying similar
behavior." 811 N.W.2d 460, 477 (Iowa 2012).
other cases, we have rejected claims that out-of-court
declarations were admissible because they explained
responsive conduct of law enforcement officers. For example,
in State v. Tompkins an officer testified that a
witness stated a domestic abuse defendant pushed his
girlfriend. 859 N.W.2d 631, 636 (Iowa 2015). We concluded the
officer's account of the declarant's out-of-court
statement constituted inadmissible hearsay because it
"went beyond the mere fact that a conversation occurred
and instead actually stated what the witness said."
Id. at 643. We further concluded the out-of-court
declaration recounted by the officer "did not merely
explain the investigation" but instead "directly
challenged [defense] counsel's assertion" to the
contrary. Id. In State v. Elliot, we opined
that when the "investigating officer specifically
repeats a victim's complaint of a particular crime, it is
likely that the testimony will be construed by the jury as
evidence of the facts asserted." 806 N.W.2d 660, 667
(Iowa 2011) (quoting State v. Mount, 422 N.W.2d 497,
502 (Iowa 1988), overruled on other grounds by State v.
Royer, 436 N.W.2d 637, 639-40 (Iowa 1989)).
Plain's overarching argument is that the State solicited
the testimony at issue not to explain the officer's
conduct but instead to use the weight of the officer's
authority to bootstrap statements from the alleged victim and
his wife about the cause of the mark on the wall. The State
responds that the officer's testimony is relevant to
explain the officer's subsequent decision to take the
bolt cutters into evidence and Plain into custody.
believe this case most closely resembles the situation in
Tompkins. Here, as in Tompkins, an officer
did not merely testify that a conversation occurred and about
the conclusions he reached as a result. See
Tompkins, 859 N.W.2d at 643. The officer testified that
he learned from the alleged victim and his wife that the bolt
cutters had been thrown, causing a mark in the wall. The jury
is likely to consider such a statement to be evidence of the
fact asserted. See Elliot, 806 N.W.2d at 667.
Moreover, the State did not ask why the officer took the bolt
cutters into evidence but instead asked what caused the mark.
We think this fact is telling and conclude "the
statement is merely an attempt to put before the fact finder
inadmissible evidence." See Mitchell, 450
N.W.2d at 832. Because the primary purpose of the testimony
was to prove the truth of the matter asserted, as in
Tompkins, we find the officer's testimony about
what the alleged victim and his wife told him about the cause
of the hole in the wall to be inadmissible hearsay.
also consider whether Plain suffered prejudice from the
admission of the hearsay evidence. In assessing prejudice, we
place the burden on the State to affirmatively establish that
the admission of hearsay evidence over proper objection was
not prejudicial. Elliot, 806 N.W.2d at 669. The
burden to affirmatively establish lack of prejudice is met
"if the record shows the hearsay evidence did not affect
the jury's finding of guilt." Id. Tainted
evidence that is merely cumulative does not affect the
jury's finding of guilt. Id.
evidence tending to prove Plain threw the bolt cutters was
strong. The State offered physical evidence that the bolt
cutters were thrown against the wall. The evidence included a
photograph of the hole in the wall and the bolt cutters. The
bolt cutters were damaged and had paint markings consistent
with the color of the house. Notably, the physical evidence
and the photograph came into the record without objection,
see State v. McGuire, 572 N.W.2d 545, 547-48 (Iowa
1997) (concluding there was no prejudice where
"substantially the same evidence [came] into the record
without objection"), and it was consistent with the
testimony given by Gray and his wife. Accordingly, we
conclude the challenged hearsay evidence was merely
cumulative and therefore not prejudicial. See State v.
Hildreth, 582 N.W.2d 167, 170 (Iowa 1998).
addition, the trial court gave a jury instruction limiting
the purposes for which the hearsay testimony could be used.
We have held that an instruction limiting the "purposes
for which this evidence [can] be used" may serve as
"an antidote for the danger of prejudice." See
State v. Putman, 848 N.W.2d 1, 15-16 (Iowa 2014). In
this case, the district court instructed the jury not to
consider the out-of-court declaration as evidence of the
truth of the matter asserted and did so prior to the
testimony being given.
the officer's testimony was cumulative of other evidence
and the court gave an instruction limiting the purposes for
which the evidence could be used, we find no reversible error
on this issue.
Reference to Past Conduct.
second issue on appeal is whether the district court abused
its discretion when it denied Plain's motion for a
mistrial after a 911 call was played to the jury that
allegedly contained prejudicial references to Plain's
probation status and status as a felon. We begin with the evidence at issue.
The evidence at issue.
the first day of trial, the State played for the jury a
redacted recording of a 911 call Gray's spouse made
during the incident. After the trial adjourned for the night,
defense counsel listened to the recording and heard
statements on the tape that Plain was wearing a GPS
monitoring device and was not afraid to go "back to
prison." The following morning, Plain requested a
district court denied the request for a mistrial, noting it
had "not hear[d] any reference to going back to prison
or the GPS device" when the recording was played for the
jury. The court offered instead to give
a cautionary limiting instruction to the jury to alleviate
any potential harm, if Plain wished. But the court cautioned
that "from [its] listening to the 911 call, . . . the
cautionary instruction would almost be bringing attention to
something that they didn't hear."
counsel subsequently requested-and the court gave-a
cautionary instruction. The instruction stated,
As to . . . the 911 recording, there may have been references
to a GPS monitoring device and/or time spent in prison. The
jury is to disregard any statement made regarding a GPS
monitoring device and/or time spent in prison during the
course of your deliberation and in reaching your verdict.
appeal, Plain asserts the court abused its discretion in
giving a cautionary limiting instruction instead of granting
his motion for a mistrial.
first determine whether the evidence was inadmissible. Under
Iowa Rule of Evidence 5.404(b) (2015),
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that the
person acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.
5.404(b) excludes evidence of other crimes not on
grounds of relevance but "based on the premise that a
jury will tend to give other crimes, wrongs, or acts evidence
excessive weight and the belief that a jury should not
convict a person based on his or her previous misdeeds."
State v. Nelson, 791 N.W.2d 414, 425 (Iowa 2010).
5.404(b) expressly permits evidence of other crimes,
wrongs, or acts for "proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Iowa R. Evid. 5.404(b).
This list is not exclusive; rather, we admit evidence of
other crimes, wrongs, or acts if there is a noncharacter
theory of relevance and the evidence is material to a
legitimate issue other than the defendant's general
criminal disposition. Nelson, 791 N.W.2d at 425.
Even if there is a noncharacter theory of relevance,
"the probative value of the evidence [must] not [be]
substantially outweighed by the danger of unfair prejudice to
the defendant." State v. Cox, 781 N.W.2d 757,
761 (Iowa 2010).
case, the State did not offer a noncharacter theory of
relevance that is probative of a factor other than a general
propensity to commit wrongful acts. Nor does the evidence fit
into a category expressly permitted by rule
5.404(b). Thus, the evidence of Plain's prior
criminal history is inadmissible under Iowa law.
the evidence was inadmissible, we must determine whether the
court abused its discretion by granting a cautionary limiting
instruction rather than a mistrial. Generally, a district
court's decision not to grant a mistrial but to offer a
cautionary instruction instead is entitled to broad
deference. See State v. Wade, 467 N.W.2d 283, 285
(Iowa 1991). Cautionary instructions are sufficient to
mitigate the prejudicial impact of inadmissible evidence
"in all but the most extreme cases." State v.
Breitbach, 488 N.W.2d 444, 448 (Iowa 1992).
State v. Belieu, we identified several important
considerations for determining whether a cautionary
instruction can adequately mitigate the prejudicial impact of
inadmissible evidence. 288 N.W.2d 895, 901 (Iowa 1980). The
first Belieu consideration is whether the
"defendant [can] combat the evidence without compounding
the prejudice." Id. The second consideration is
how extensive the evidence is and the promptness with which
it was addressed. Id. at 901-02. Finally, we assess
prejudice-the stronger the State's evidence of
Plain's guilt is, the less prejudicial the effect of the
challenged testimony. Id. at 900-01.
these three considerations to the case at hand, we conclude
the cautionary instruction adequately mitigated any
prejudicial impact of the evidence. Although Plain's
counsel had opportunity to listen to the redacted copy of the
recording before the trial, and apparently did listen to at
least portions of it prior to trial, once the recording was
played for the jury, Plain lacked the ability to combat the
evidence without compounding the prejudice. See id.
the evidence was not extensive and the district court
promptly addressed the matter. See id. at 901-02.
Unlike in Belieu where we found numerous references
to a defendant's criminal history to be "so
pervasive and central to the defenses that its prejudicial
effect against this defendant could not reasonably be cured
by a limiting instruction, " see id., the
references here were brief and inadvertently included in the
redacted version of the recording. In such circumstances of
brief and inadvertent presentations of evidence, we have
concluded a cautionary instruction sufficiently managed the
risk of prejudice. See, e.g., id. at
901-02. Furthermore, the statements were not the substantive
focus of the recording or very obvious; they were presented
with the background noise accompanying a phone conversation
between a witness at the scene and a 911 operator. Indeed,
neither the district court nor the prosecutor recalled having
heard the statements when the recording was played for the
jury. Upon learning the recording contained the objectionable
statements, the district court acted swiftly. Although the
court concluded a mistrial was unwarranted, the court
proposed and gave a cautionary limiting instruction.
the State's evidence was strong. As we noted above, the
State presented testimony and corroborative physical evidence
and photographs all tending to establish that the bolt
cutters were thrown against the wall. Although the statements
pertaining to Plain's prior criminal history included in
the 911 recording were inadmissible under rule
5.404(b), they were brief, inadvertent, and did not
play a major part in the State's case. Because the
State's evidence on the contested point was strong, the
prejudicial effect of the challenged testimony is minimal.
See id. We find no abuse of discretion in the
district court's ruling denying the motion for mistrial
or in giving the cautionary limiting instruction.
Jury Instruction on Implicit Bias.
third issue on appeal is whether the district court's
refusal to include an antidiscrimination jury instruction
requested by Plain constituted reversible error. We generally
review refusals to give jury instructions for errors at law;
however, if the requested jury instruction is not required or
prohibited by law, we review for abuse of discretion.
Alcala, 880 N.W.2d at 707-08.
law requires a court to give a requested jury instruction if
it correctly states the applicable law and is not embodied in
other instructions." Id. at 707 (quoting
Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994)). An
issue is material if it is outcome determinative. See C
& J Vantage Leasing Co. v. Outlook Farm Golf Club,
LLC, 784 N.W.2d 753, 756 (Iowa 2010) ("An issue is
"material" [for purposes of summary judgment] if it
might affect the outcome of the suit."). "Parties
to lawsuits are entitled to have their legal theories
submitted to a jury if they are supported by the pleadings
and substantial evidence in the record."
Herbst, 616 N.W.2d at 585 (emphasis added) (quoting
Sonnek, 522 N.W.2d at 47).
law permits-but does not require-cautionary instructions that
mitigate the danger of unfair prejudice. See Wade,
467 N.W.2d at 285 (recognizing decision to give cautionary
instruction is discretionary); see also Breitbach,
488 N.W.2d at 448 (noting limiting instructions may be used
to combat potential prejudice from improper evidence).
Cautionary instructions include instructions that recommend a
course of action to a jury or that limit the jury's
considerations of certain facts. See Breitbach, 488
N.W.2d at 448. We review the issuance or denial of a
requested cautionary instruction for abuse of discretion and
only reverse if the district court's decision rested on
grounds or reasoning that were clearly untenable or clearly
unreasonable. See State v. Newell, 710 N.W.2d 6, 18,
32-33 (Iowa 2006) (concluding issuance of cautionary
instruction did not amount to unreasonable exercise of
discretion). Grounds or reasons are untenable if they are
"based on an erroneous application of the law or not
supported by substantial evidence." Dudley, 856
N.W.2d at 675.
case, the requested antidiscrimination jury instruction read,
Reach your verdict without discrimination. In reaching your
verdict, you must not consider the defendant's race,
color, religious beliefs, national origin, or sex. You are
not to return a verdict for or against the defendant unless
you would return the same verdict without regard to his race,
color, religious belief, national origin, or sex.
the requested instruction correctly states the law, it does
not concern a material issue because it is not outcome
determinative; therefore, it is not required. On the
contrary, the requested instruction is a cautionary
instruction because it limits the jury's consideration of
certain facts and recommends a course of action. See
Breitbach, 488 N.W.2d at 448. The instruction recommends
a course of action by asking the jurors to consciously
reflect on their decisionmaking process and limits
consideration of facts related to race, color, religious
belief, national origin, or sex. Because the requested
instruction is a cautionary instruction, the district
court's refusal to give it is reviewed for abuse of
discretion. Newell, 710 N.W.2d at 32-33.
denial of a cautionary instruction constitutes an abuse of
discretion if the district court's decision rested on
clearly untenable or unreasonable grounds, such as an
erroneous application of law. Dudley, 856 N.W.2d at
675; see also Newell, 710 N.W.2d at 18. Here, the
district court declined to give the requested implicit-bias
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
explained above, Iowa law permits cautionary instructions
designed to mitigate the danger of unfair prejudice. See
Wade, 467 N.W.2d at 285; see also Breitbach,
488 N.W.2d at 448. Thus, the cautionary instruction, which is
a correct statement of antidiscrimination principles, would
have been permitted under Iowa law. The district court,
however, refused to give the instruction because it
erroneously believed it lacked authority from our court to
give the instruction. Because the court's decision rested
on an error of law, it constituted an abuse of discretion.
inquiry does not end there. "Error in giving or refusing
to give a jury instruction does not warrant reversal unless
it results in prejudice to the complaining party."
State v. Hoyman, 863 N.W.2d 1, 7 (Iowa 2015)
(quoting State v. Cordero, 861 N.W.2d 253, 257-58
(Iowa 2015)). "When the error is not of constitutional
magnitude, the test of prejudice is whether it sufficiently
appears that the rights of the complaining party have been
injuriously affected or that the party has suffered a
miscarriage of justice." State v. Marin, 788
N.W.2d 833, 836 (Iowa 2010) (quoting State v. Gansz,
376 N.W.2d 887, 891 (Iowa 1985)), overruled on other
grounds by Alcala, 880 N.W.2d 699. "We [do] not
reverse for marginal or technical omissions . . . ."
Sonnek, 522 N.W.2d at 47. Here, Plain asserts an
abuse of discretion, not a violation of the constitution.
Under the facts of this case, there was strong evidence of
guilt. We therefore conclude the error was not prejudicial.
there is general agreement that courts should address the
problem of implicit bias in the courtroom, courts have broad
discretion about how to do so. One of the ways courts have
addressed implicit bias is by giving jury instructions
similar to the one proposed by Plain in this case. We
strongly encourage district courts to be proactive about
addressing implicit bias; however, we do not mandate a
singular method of doing so. As we conclude Plain was not
prejudiced by the denial of the requested instruction in this
case, we affirm on this issue.
Prosecutor's Use of the Term "Victim."
fourth issue on appeal is whether Plain was denied his
constitutional right to a fair trial due to prosecutorial
misconduct or error. During the State's closing argument,
the district court permitted the prosecutor to refer to the
complaining witness as the victim, over Plain's
objection, no fewer than thirty-seven times. In her rebuttal
argument, the prosecutor used the word eleven more times.
Plain argues the prosecutor's repeated use of the term
with the court's tacit approval violated his
constitutional right to a fair trial under article I, section
9 of the Iowa Constitution and the Fifth and Fourteenth
Amendments of the United States Constitution.
motion for new trial and arrest of judgment, Plain asserted
the State's repeated references to the complaining
witness as the victim justified a new trial. At the hearing
on the motions, the prosecutor defended her actions:
[PROSECUTOR]: It was not improper for me to repeatedly refer
to Mr. Gray as the victim during closing arguments. The
testimony and evidence in this case showed that Mr. Gray was
in fact a victim. And because the testimony showed that, I am
allowed to argue that in closing arguments.
court denied the motion.
consider a claim that the defendant was deprived of a fair
trial under our doctrines of prosecutorial error and
prosecutorial misconduct. See State v. Schlitter,
881 N.W.2d 380, 393-94 (Iowa 2016) (distinguishing between
claims of prosecutorial error and prosecutorial misconduct);
State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003)
(synthesizing our prosecutorial misconduct doctrine). In
order to establish a violation of the right to a fair trial,
a defendant must show both (1) error or misconduct and (2)
prejudice. State v. Krogmann, 804 N.W.2d 518, 526
defendant must first establish the prosecutor violated a
prosecutorial duty. Prosecutors have a special role in our
criminal justice system. A prosecutor is not the ordinary
advocate, at least in the sense that "a prosecutor owes
a duty to the defendant as well as to the public."
Graves, 668 N.W.2d at 870. Although a prosecutor
should zealously and lawfully advocate on behalf of the
State, "the prosecutor's primary interest should be
to see that justice is done, not to obtain a
conviction." Id. Thus, we impose special duties
on prosecutors to ensure they act in accordance with the
special role with which they are entrusted. See,
e.g., id. ("[I]t is improper to ask the
defendant whether another witness has lied.");
DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002)
(noting the prosecutor must "assure the defendant a fair
forth standards governing a prosecutor's duty to the
defendant during closing arguments in Graves.
See 668 N.W.2d at 874. There we stated that although
we accord prosecutors "some latitude" to analyze
evidence and argue "reasonable inferences and
conclusions to be drawn from the evidence, " we do not
permit a prosecutor to "express his or her personal
beliefs." Id. We emphasized that prosecutors
may not "vouch personally as to a defendant's guilt
or a witness's credibility." Id. (quoting
State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983)).
We stressed that
[t]his is true whether the personal belief is purportedly
based on knowledge of facts not possessed by the jury,
counsel's experience in similar cases, or any ground
other than the weight of the evidence in the trial. A
defendant is entitled to have the case decided solely on the
Id. (emphasis added) (quoting Williams, 334
N.W.2d at 744). "In addition, the prosecutor is 'not
allowed to make inflammatory or prejudicial statements
regarding a defendant in a criminal action.' "
Id. (quoting State v. Leiss, 258 Iowa 787,
792, 140 N.W.2d 172, 175 (1966)).
defendant's constitutional right to a fair trial is
violated if a prosecutor fails to comply with the
requirements of due process at the trial, whether by virtue
of prosecutorial error or misconduct.Id. at 870. In addressing
fair-trial challenges based on prosecutorial behavior, we
first determine whether the prosecutor violated a duty to the
defendant. See id. If so, we consider whether that
violation was intentional or reckless. Schlitter,
881 N.W.2d at 394. An intentional or reckless violation
amounts to ...