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State v. Jonas

Supreme Court of Iowa

December 1, 2017

STATE OF IOWA, Appellee,

         On review from the Iowa Court of Appeals.

         Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

         Defendant seeks further review of his conviction for murder in the second degree. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John Sarcone, County Attorney, and Olu A. Salami, Assistant County Attorney, for appellee.

          APPEL, JUSTICE.

         In this case a gay defendant, Stephen Jonas, was charged with first-degree murder in a case with sexual overtones. Among other claims, Jonas asserts the district court improperly failed to strike for cause a potential juror who expressed bias against gay people in a jury questionnaire and in response to questioning in voir dire as required by Iowa Rule of Criminal Procedure 2.18(5)(k). Because of the district court's refusal to disqualify the potential juror, Jonas exercised one of his peremptory strikes, granted by Iowa Rule of Criminal Procedure 2.18(9), to remove the potential juror from the jury. The case proceeded to a jury trial. Jonas was convicted of second-degree murder.

         Jonas appealed. Jonas claims that because he was forced to use a peremptory strike to disqualify a potential juror who should have been disqualified for cause, reversal is required even though the challenged potential juror was not seated and there is no specific showing of prejudice in the case. Jonas recognizes our prior precedent, State v. Neuendorf, 509 N.W.2d 743, 747 (Iowa 1993), is contrary to his position and invites us to reconsider that precedent. Jonas also asserts that there was insufficient evidence to support the jury verdict and that his counsel was ineffective for failing to object to statements made by the prosecutor in closing arguments and failing to request a limiting instruction with respect to other statements made by the prosecution in closing arguments.

         We transferred the case to the court of appeals. On the question of jury selection, the court of appeals, citing Neuendorf, rejected Jonas's challenge on the ground that even if the district court erred in refusing to dismiss the potential juror, the defendant failed to show prejudice. The court of appeals further rejected Jonas's challenge to the sufficiency of the evidence and his claims that counsel was ineffective for failing to object to closing argument and failing to seek a limiting instruction.

         We granted further review. When we grant further review, we have discretion to limit the issues considered by this court. State v. Pearson, 804 N.W.2d 260, 265 (Iowa 2011). We allow the decision of the court of appeals to stand on the sufficiency-of-the-evidence and ineffective-assistance-of-counsel claims. We consider only the question of whether the verdict must be reversed under the circumstances because the district court failed to disqualify the potential juror for cause. For the reasons expressed below, we affirm.

         I. Factual and Procedural Background.

         On August 23, 2014, Zachery Paulson was found dead in the lot of his father's business bordering the Clive Greenbelt Trail. Following an autopsy, it was determined Paulson died from multiple stab and incised wounds. The police investigation focused on Jonas. Jonas ultimately admitted to stabbing Paulson but asserted he did so in self-defense.

         According to Jonas, about one week before Paulson's death, he and Paulson engaged in a mutual hug that led to kissing. Other witnesses described the encounter as unwanted and Paulson pushed Jonas away and asked him to leave. After the incident, Jonas continued to contact Paulson via text message throughout the next week. The text messages went unanswered.

         Jonas claimed on the night of Paulson's death, he went to a local bar to confront Paulson about the incident. According to Jonas, he and Paulson left the bar for a parking lot where they engaged in small talk. Jonas maintained Paulson struck him with a hammer and a fight ensued. Jonas told the police he remembered stabbing Paulson only five times. Paulson was moaning when Jonas left the scene, and Paulson eventually died from the wounds.

         On September 30, 2014, Jonas was charged by trial information with murder in the first degree. Jonas filed a notice of defense of justification. The trial began on July 2, 2015.

         A written questionnaire asked each potential juror the following question: "The defendant in this case is gay. Would this fact in any way influence your ability to be fair and impartial if you were selected to be a juror in this case?" A potential juror put an X next to "yes" and, in the place provided for an explanation, wrote "I would try to keep an open mind, but I would have a hard time overlooking it." During voir dire, Jonas's defense attorney asked the potential juror about the potential juror's affirmative answer to the question. The defense attorney asked, about Jonas's sexuality, "You agree that fact is going to affect your ability to be fair?" The potential juror replied, "Somewhere in the back of my mind something would come up. I just-I'm just being honest with you." The defense attorney pressed further, "So is it fair to say that you are not going to be able to give Mr. Jonas a fair trial because of that?" The potential juror answered,

I would say that young man would probably do better without me on the jury, just to be honest with you. I would try to be fair. I'm 50 years old and I would try to be fair, but he probably would have better jury selection than myself.

         The defense attorney asked, "Because is that a factor you will not be able to exclude?" The potential juror said, "I don't know if I'd be able to. I would try to exclude it, but, you know, somewhere in the back something is going to come up I guess."

         The prosecutor tried to get a different answer from the potential juror, asking if the juror could not make a decision based on the evidence. The potential juror responded, "Again, I would sit there and somewhere along the way something would come up in the back of my mind. I will try. Honestly I will try that, but the young man would probably do better with someone else." The prosecutor said, "I know you have personal feelings. Can you set those aside and made a decision based on [the evidence and the judge's instructions]?" The potential juror answered,

Again, I would try, but I'm sure there would be something that would come up. . . . I'm 50 years old. I work with truckers and guys in oil refineries and in oil wells. It's just permeated in my life. So I will try to be honest and fair, but again, there would be something that would come up. I'm just being honest.
The court then took over questioning of the potential juror:
THE COURT: When you say there is going to be something that comes up, what do you mean by that? A. You know, in the back of my mind, and I don't want to insult anybody here, I just would-I don't know. I would think I will try to be honest, but then again I would be like, oh, well. And I can't explain it exactly.
THE COURT: My question for us is this: Does the fact that the defendant, Mr. Jonas, has identified himself as a gay man, does that fact alone cause you to be biased or prejudice[d] against him in determining whether or not he's guilty or innocent in this case? A. Again, I don't think it would be determined whether he was guilty or innocent, but I would still have a bias there some place, yes.
THE COURT: Okay. So are you-if I instruct you as to what the law is, are you going to be able to follow what the law says? A. Yes.
THE COURT: Are you-does the fact that the defendant, again, is gay, does that cause you to not be able to listen to the evidence and keep an open mind with respect to guilty or not guilty, the facts of this case? Do you understand that question? That was a little bit- A. I understand that, you know, again the facts are going to be the facts and my-and that's what we will hear and that's what we will determine. But, again, somewhere down in the-
THE COURT: Well, the law doesn't require that you forget the fact that Mr. Jonas is gay, so that's why I'm concerned about the fact that you are telling us that there is something that might pop up in the back of your head. You don't have to forget the fact that he has identified himself as being gay.
Is that what you are telling the Court is that you are not going to be able to forget the fact that he's gay. Or do you think that the fact that he's gay means that more likely than not that he-that you are not going to be able to give him a fair trial? A. I think, again, the gentleman would probably do better without me on the jury. I think there could be something in the back of my mind that would- again, I'd listen to the facts. I would try my best, but it's who we are.

         The defense attorney then resumed questioning the potential juror, asking him if there will still be bias in the back of his mind. "I think there will be, yes, sir, " the potential juror replied. The defense attorney asked the potential juror if a gay man making a sexual advance to another man would bother him. The potential juror said, "[I]t would bother me, yes."

         After the potential juror left the room, Jonas's defense attorney moved to dismiss him for cause, stating, "[T]here is no question that this juror cannot be fair and impartial to Mr. Jonas because he is gay." After hearing arguments from both sides regarding the potential juror, the court made the following ruling:

Well, my problem is he has said that he's going to have it in the back of his mind and that the defendant would be better off not having him as a juror. After he said that, he still continues to express the opinion that he could be fair and unbiased and be able to try a fair case.
And I just don't think that the record is there to strike him for cause at this point. So I'm going to allow [the juror] to stay on the panel.

         The potential juror was allowed to stay on the panel until defense counsel used a peremptory strike to remove him. Jonas used all ten of his peremptory strikes.

         The jury returned a verdict of guilty for murder in the second degree. Jonas appealed. The court of appeals affirmed. On the issue of jury selection, the court of appeals held Jonas could not show he was prejudiced by the denial of a for-cause strike for the potential juror because the potential juror did not serve on the jury and Jonas did not allege the remaining jury was biased as a result of his use of all of his peremptory challenges. See Neuendorf, 509 N.W.2d at 747. The court therefore declined to reach the issue of whether the district court erred in declining to strike the potential juror for cause.

         Jonas applied for further review, which we granted.

         II. Standard of Review.

         We review the district court's rulings on challenges to potential jurors for cause for abuse of discretion. State v. Tillman, 514 N.W.2d 105, 107 (Iowa 1994); State v. Hardin, 498 N.W.2d 677, 681 (Iowa 1993). The district court is vested with broad discretion in such rulings. State v. Mitchell, 573 N.W.2d 239, 240 (Iowa 1997); Tillman, 514 N.W.2d at 107.

         III. Discussion.

         A. Introduction.

         This challenge related to the failure of the district court to disqualify the potential juror raises two state law issues under Iowa Rule of Criminal Procedure 2.18(5)(k) dealing with disqualifications for cause and rule 2.18(9) providing for peremptory challenges.[1] The first issue is whether the district court abused its discretion under rule 2.18(5)(k) in failing to discharge the potential juror for cause when the potential juror, in a case involving a gay defendant in a sexual context, expressed bias against gay people in a jury questionnaire and affirmatively told the court in voir dire he would follow the court's instructions, but further advised the court that bias would remain in the back of his mind. The second issue relates to the use of peremptory challenges under rule 2.18(9). The second issue posed in this case is a variant of the Neuendorf question, namely, whether under state law a defendant must show actual prejudice when the district court unlawfully fails to disqualify a potential juror, but the potential juror is not seated because the defendant removed the potential juror through exercise of a peremptory strike.

         B. Disqualification of Juror for Cause.

         On the issue of disqualification of a juror for cause, there is authority for the proposition that when a potential juror at the outset of voir dire expresses bias or prejudice unequivocally, the potential juror should be disqualified for cause notwithstanding later, generalized statements the potential juror could be fair. See generally 58 Am. Jur. Proof of Facts 3d Challenges for Cause in Jury Selection Processes § 23, at 434-36 (2000) (describing history and proper role of rehabilitation). According to this approach, once the genie of prejudice or bias is out of the bottle, it is a fool's errand to put it back in through persistent coaxing.

         There is ample authority for this approach in the caselaw. For example, in Morgan v. Illinois, the United States Supreme Court stated when actual bias is stated, generalized affirmative response to questions like "[w]ould you follow my instructions on the law even though you may not agree" is insufficient to avoid disqualification of potential juror. 504 U.S. 719, 723-24, 733, 112 S.Ct. 2222, 2226-27, 2232 (1992). Other cases reach similar results. See, e.g., Johnson v. Reynolds, 121 So. 793, 796 (Fla. 1929) (en banc) ("It is difficult, if not impossible, to understand the reasoning which leads to the conclusion that a person stands free of bias or prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declares his freedom free from its influence."); Gosling v. Commonwealth, 376 S.E.2d 541, 544 (Va. Ct. App. 1989) (holding juror who expresses positive, unequivocal bias should be disqualified notwithstanding subsequent generalized statements regarding ability to be fair).

         Under the actual-bias cases, a later affirmative response to a "magic question" using the words fair and impartial is not enough to rehabilitate the potential juror. See State v. Fletcher, 353 P.3d 1273, 1281 (Utah Ct. App. 2015) ("[Bias] is generally not rebutted simply by a subsequent general statement by the juror that he or she can be fair and impartial . . . ." (quoting State v. Woolley, 810 P.2d 440, 445 (Utah Ct. App. 1991)). If a potential juror expresses actual bias, "the law will not trust him" to be fair and impartial. Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (quoting United States v. Burr, 25 F. Cas. 49, 50 (D. Va. 1807)). As noted in People v. Merrow, answers to the trial judge's generalized and leading questions "may suggest overt acquiescence in the trial court's ...

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