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State v. Plain

Supreme Court of Iowa

June 30, 2017

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

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

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

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

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

          HECHT, Justice.

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

         I. Factual and Procedural Background.

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

         At trial, Gray testified that during the argument Plain went back to his apartment while he remained in the common area. Plain then returned with "a black handle of something in his right pocket" and the two men continued to argue. According to Gray, Plain then told him he had a gun and knew his mother-in-law's car was parked outside. At that point, Plain exited the building and Gray followed, brandishing a golf club.

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

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

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

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

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

         On the first day of trial, Plain objected to the racial composition of the jury pool, alleging a violation of his Sixth Amendment right to an impartial jury. Although African-Americans represent 8.9% of the population of Black Hawk County, the pool of potential jurors included only one African-American man among fifty-six potential petit jurors-or 1.8% of the group. Plain did not present any evidence of systematic exclusion and conceded this meant he could not prove a prima facie case; however, he asserted this was because the jury manager did not provide him with the six months' worth of data on jury pools that he requested.

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

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

         II. Standard of Review.

         We review constitutional issues de novo. State v. Chidester, 570 N.W.2d 78, 80 (Iowa 1997). We review the admission of evidence challenged as hearsay for the correction of errors at law. State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014). Improperly admitted hearsay constitutes grounds for reversal unless the proffering party establishes the error was not prejudicial. Id.

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

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

         III. Analysis.

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

          A. Prejudicial Hearsay.

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

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

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

         1. Hearsay.

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

         Under Iowa law, hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801(c) (2015)[1]. We generally exclude hearsay from admission to the record, subject to the exceptions and exclusions set forth in rules 5.802 and 5.803, because we deem it inherently unreliable-the declarant typically does not speak under oath and the party against whom the evidence is offered does not have the opportunity to cross-examine the declarant in order to test the declarant's perception, memory, or narration. See State v. Smith, 876 N.W.2d 180, 185 (Iowa 2016).

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

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

         In 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)).

         Here, 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.

         We 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.

         2. Prejudice.

         We must 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.

         The 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).

         In 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.

         Because 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.

         B. Reference to Past Conduct.

         The 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.[2] We begin with the evidence at issue.

         1. The evidence at issue.

         During 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 mistrial.

         The 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.[3] 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."

         Defense 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.

         2. Discussion.

         On appeal, Plain asserts the court abused its discretion in giving a cautionary limiting instruction instead of granting his motion for a mistrial.

         We must 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.

         Rule 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).

         Rule 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).

         In this 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.

         Because 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).

         In 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.

         Applying 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. at 901.

         However, 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.

         Finally, 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.

         C. Jury Instruction on Implicit Bias.

         The 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.

         "Iowa 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).

         Iowa 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.

         In this 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.

         Although 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.

         The 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 instructions.

         As 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.

         Our 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.

         While 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.

         D. Prosecutor's Use of the Term "Victim."

         The 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.

         In his 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.

         The court denied the motion.

         We 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 (Iowa 2011).

         1. Prosecutorial behavior.

         The 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 trial").

         We set 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 evidence.

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)).

         A 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.[4]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 ...


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