from the Iowa District Court for Black Hawk County, Bradley
J. Harris (jury selection) and Kellyann M. Lekar (trial and
posttrial motions), Judges.
defendant appeals his conviction challenging jury selection
and the court's denial of his motion for a new trial.
W. Conrad of Conrad Law Office, Knoxville, for appellant.
J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
Smith was convicted following a jury trial of willful injury
causing bodily injury, intimidation with a dangerous weapon
with intent, and possession of a firearm as a felon. He
claims (1) the district court was wrong to overrule his
Batson challenge to the State's strike of an
African-American from the jury, (2) the court should have
granted his challenge to the jury pool as not being a fair
cross-section of the community, and (3) the State solicited
improper impeachment testimony in violation of State v.
Turecek, 456 N.W.2d 219, 225 (Iowa 1990). He also claims
he is entitled to a new trial due to all of these errors.
Background Facts and Proceedings.
underlying facts of the case are not pertinent to this
appeal. It is sufficient to say Smith was convicted of
shooting DeMarcus Green in the shoulder during an argument on
the porch of a house in February 2015. Before trial, Smith
moved in limine to prevent the State from admitting evidence
from a witness, Deziaray Lewis, who, when deposed, recanted
certain statements she initially made to police. In the
motion, Smith asked the State be prohibited from questioning
Lewis regarding "the events which transpired on the
porch of 518 Rhey Street February 22, 201, "
"any identification of any person alleged to have been
seen with a gun, " and "the identification of
Choroin Smith as the person who . . . shot DeMarcus Green on
the porch of 518 Rhey Street on February 22, 201."
See Turecek, 456 N.W.2d at 225 (holding the State
may not "place a witness on the stand who is expected to
give unfavorable testimony and then, in the guise of
impeachment, offer evidence which is otherwise
hearing on the motion in limine, the State asserted:
Miss Deziaray Lewis made statements contrary to what she
initially made. The State doesn't plan to go into her
initial statement, but the State plans on calling her for the
identification of the defendant as far as the defendant's
presence there on the porch but not- initially she had said
that he was the shooter and she could identify him as the
shooter. I'm not going to ask her questions or try to
impeach her with regards to that, but I believe I can ask her
questions putting him on the porch because she did continue
to testify to that in her deposition.
counsel responded: "That's fine. That seems right to
me." Defense counsel again reiterated on the first day
of trial this understanding of the State's position
regarding the testimony of Lewis:
[The State] represented to me that he acknowledged that
Deziaray Lewis did recant during her deposition. He will be
putting her on the stand for the purpose of identifying
Choroin Smith as a person who was on the porch at the time of
the incident, and that he does not expect to get into any
matter that she recanted on.
several days of testimony, the jury returned a verdict
finding Smith guilty on all three counts. Smith's counsel
filed a motion for a new trial asserting the State had
violated the in limine order. The court denied the motion,
and Smith was ...