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State v. Smith

Court of Appeals of Iowa

September 27, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
CHOROIN DEVONTEA SMITH, Defendant-Appellant.

         Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris (jury selection) and Kellyann M. Lekar (trial and posttrial motions), Judges.

         A defendant appeals his conviction challenging jury selection and the court's denial of his motion for a new trial. AFFIRMED.

          Robert W. Conrad of Conrad Law Office, Knoxville, for appellant.

          Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          VOGEL, PRESIDING JUDGE.

         Choroin 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[1] 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.

         I. Background Facts and Proceedings.

         The 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[5], " "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[5]." 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 inadmissible.").

         At the 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.

         Defense 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.

         Following 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 ...


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